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Red States Can Sue NY for Election Interference in Sup. Ct.

William L. Kovacs

June 2024

Red States Can Sue NY for Election Interference in Sup. Ct.

The 2024 presidential election is being manipulated by New York, which is using its legal system as a front organization to ensure President Joe Biden prevails over former President Trump, the candidate of the more conservative states (“red states”). More concerning, however, is that the actions of the state of New York are part of a larger group of ultra-Left, Progressive states (“blue states”) dedicated to election interference that changes the behavior of voters, parties, and states across the nation. It’s time the red states utilize their legal remedy by seeking the original and exclusive jurisdiction of the U.S. Supreme Court to resolve these election interference controversies that affect all states.

Colorado’s bogus legal theory failed, so New York invents a new crime.

Initially, Colorado and Maine attempted to deny Trump ballot access by asserting that he was an ineligible presidential candidate since he had violated the insurrectionist clause of the Fourteenth Amendment. The U.S. Supreme Court unanimously struck down their claims, empathically holding state power does not extend to federal officials and candidates “Because federal officers ‘owe their existence and functions to the united voice of the whole, not a portion, of the people.’”

Subsequently, New York tried a different approach: indictment. It twisted its legal system to give voters nationwide the appearance of providing a fair trial while it schemed to deprive Trump of his constitutional rights. New York’s goal was to tarnish Trump’s reputation, to tilt the election to the blue-state candidate.

It has been less than four months since the U.S. Supreme Court unanimously struck down Colorado’s attempt to remove President Trump from the ballot. During that time, New York invented a new crime to bring against Trump. It was a combination of a misdemeanor business records violation for which the statute of limitation had run and an alleged crime of miscategorizing an expense for a non-disclosure agreement as a legal expense. This unprecedented move was clearly aimed at undermining his candidacy and influencing the election outcome.

New York then staged a trial that transformed a misdemeanor into a felony and convicted Trump of the invented crime. The New York trial court record is replete with examples of how the state, acting through a biased and conflict-ridden judge and a prosecutor campaigning to “Get Trump,” flagrantly violated the former President’s constitutional right to due process to keep him from campaigning in the federal election for President of the U.S.

At trial, New York failed to inform Trump of the alleged crime, denied him the right to put on expert witnesses on election law, and failed to require the jury to unanimously find him guilty of a specific crime as mandated by the Constitution’s Sixth Amendment. New York’s injustice is further compounded by the judge’s “Gag Order” that prevents the former President from freely speaking about the case during the presidential campaign. The Gag Order was continued even after the jury was dismissed, clearly an effort to restrict Trump’s campaign.

The 2024 election is on November 5th.

With the 2024 election just around the corner, the urgency of the situation cannot be overstated. New York’s threat to our federal election can only be resolved by one or more red states petitioning the U.S. Supreme Court to exercise its original jurisdiction over issues involving conflicts between states. If the U.S. Supreme Court does not immediately address New York’s election interference, it could permanently disrupt a “uniquely important national interest” by allowing voters in different states to believe Trump is a criminal and should not hold office.

Since the votes cast in each state are affected by the votes cast in all states, “An evolving electoral map could dramatically change the behavior of voters, parties, and States across the country, in different ways and at different times.”

This disruption could nullify the votes of millions and change the election result, leading to a chaotic and uncertain future. As the Supreme Court noted in the Colorado case,  “Nothing in the Constitution requires that we [United States] endure such chaos.” The potential consequences of inaction are too grave to ignore.

The red States have a direct path to the U.S. Supreme Court to block New York’s election interference.

Article III, Section 2, Clause 2 of the U.S. Constitution reserves a special place in the nation’s operation for states to protect the Republic from the unconstitutional election interference of states seeking to subvert the integrity of national elections. The Supreme Court, as the ultimate arbiter of the Constitution, plays the essential role in upholding this principle. The relevant part of Article III, sec 2, clause 2:

In all Cases affecting Ambassadors, other public ministers, and Consuls, and those in which a State shall be a Party, the Supreme Court shall have original jurisdiction.

This right is so significant to the functioning of the Union that Congress codified and expanded it at 28 U.S.C. sec. 1251(a) to ensure this protection is straightforward and can be immediately exercised by states.

28 U.S.C. 1251(a) reads:

  • The Supreme Court shall have original and exclusive jurisdiction over all controversies between two or more states. [emphasis added]

Moreover, New York’s election interference violates the rights of the voters of all states to have a fair election by denying a presidential candidate the Privileges and Immunities protections of the Fourteenth Amendment. The Supreme Court noted:

No state shall make or enforce any law which shall abridge the privileges or immunities citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

As the guardians of national elections, the red states have a crucial role to play. They can directly challenge the state of New York’s unconstitutional conduct in the U.S. Supreme Court, thereby upholding our Republic’s integrity and all citizens’ rights.

The Court’s process for handling cases under original review.

While section 1251(a) states that the ‘Supreme Court shall have original and exclusive jurisdiction, the Court views such power as discretionary. Therefore, the red states must file a ‘motion for leave to file a bill of complaint,’ a formal request for permission to present a legal case. The justices will then decide whether to accept or reject the complaint based on the merits of the case and the potential impact on the nation’s electoral process.

Historically, these state vs. state cases involved water rights, boundary disputes, and commercial fishing. The Court has rejected cases involving goods made by convicts, one state prohibiting state employee travel to another state, and inheritance taxes imposed on residents of other states. The last major state vs. state case was Florida vs. Georgia (2021): the Court rejected Florida’s claim that Georgia consumed more than its fair share of water since Florida did not prove by clear and convincing evidence a severe injury caused by Georgia.

Fortunately, an extensive trial court record for the red states makes the case ready for Supreme Court review.

By having original jurisdiction, many of these state vs. state cases arrive at the Supreme Court without the benefit of a lower court decision setting forth the facts and law relied upon by the parties. As a result, the Supreme Court must appoint a Special Master who gathers evidence, takes sworn testimony, and rules on the evidence. This process can take years for the Special Master to complete his report. The Special Master submits a report to the Supreme Court in a manner similar to an appellate court decision. The Court decides to accept or reject the Master’s report.

In the case of the Red States vs New York, there is no need for a Special Master since a comprehensive trial record is available to the Court. Moreover, the questions before the Court are all matters of law, not fact, since all the facts are contained in the trial court record. From that record, the Supreme Court can determine if the state of New York unconstitutionally used its legal system in a manner that interfered with the elections in other states.

While the Supreme Court has adjudicated presidential election controversies, e.g., Bush v. Gore, it involved private parties. However, the Court has never ruled on a controversy in which a group of states alleged another state interfered with a national election. Red States vs. New York is an opportunity for the Court to set limits on election interference by states since these types of state actions are capable of repetition.

 

Post Script

While state vs. state election interference claims rest within the Supreme Court’s original jurisdiction, New York and the actions of other blue states, e.g., Colorado and Maine, to keep Trump off the ballot may also violate numerous federal civil rights statutes, giving former President Trump standing to sue the individuals in those states, acting under color of law, who conspired to keep him off the ballot and/or interfere with the election. These statutes are 42 U.S.C. 1983 (deprivation of civil rights, privileges, and immunities), 42 U.S.C. 1985 (conspiracy to prevent Trump from holding office, obstructing justice, and depriving him of his privileges and immunities), and 42 U.S.C. 1986 (allows Trump to sue those who had the power to prevent violations of his civil rights but were negligent in not preventing them, i.e., the Governor of New York. The Civil Rights statutes may also apply to individuals such as the fifty-one intelligence officials who knew the Hunter Biden laptop was authentic but claimed it to be Russian disinformation to smear Trump and elect Biden. Also, under 42 U.S.C. 1986, the FBI agents may be sued for their negligence in failing to stop the false statements by the fifty-one intelligence officials that interfered with the 2020 election.

 

William L. Kovacs, author of Devolution of Power: Rolling Back the Federal State to Preserve the Republic. Received 5 stars from Readers’ Favorite. His previous book, Reform the Kakistocracy, received the 2021 Independent Press Award for Political/Social Change. He served as senior vice president for the U.S. Chamber of Commerce and chief counsel to a congressional committee. He can be contacted at [email protected]