“The federal court of appeals will review the trial court’s ruling on whether the case should even be brought before the federal judicial system. Your TABOR Foundation is one of three entities that filed a “friend-of-the-court” urging the courts to reject the arguments of the plaintiffs, and thereby end the case and leave the Taxpayer’s Bill of Rights unchallenged. You may read the argument submitted by Mountain States Legal Foundation, the Colorado Union of Taxpayers and our Foundation, below.”
Case No. 17-1192
IN THE UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
ANDY KERR, Colorado State Representative, et al.,
Plaintiffs-Appellants,
v.
JARED POLIS, Governor of Colorado, in his official capacity, Defendant-Appellee.
On Appeal from the United States District Court for the District of Colorado
No. 11-CV-01350-RM-NYW, The Honorable Raymond P. Moore
BRIEF OF AMICI CURIAE MOUNTIAN STATES LEGAL FOUNDATION, THE COLORADO UNION OF TAXPAYERS FOUNDATION, AND THE TABOR FOUNDATION IN SUPPORT OF APPELLEE URGING AFFIRMANCE
Cody J. Wisniewski
MOUNTAIN STATES LEGAL FOUNDATION
2596 South Lewis Way
Lakewood, Colorado 80227
(303) 292-2021
cody@mslegal.org
Attorney for Amici Curiae
CORPORATE DISCLOSURE STATEMENT
The undersigned attorney for Amici Curiae, Mountain States Legal Foundation, the Colorado Union of Taxpayers Foundation, and the TABOR Foundation certifies that
Mountain States Legal Foundation, the Colorado Union of Taxpayers Foundation, and the TABOR Foundation are non-profit corporations that have no parent corporations and have never issued any stock.
Respectfully submitted this 21st day of December 2020.
/s/ Cody J. Wisniewski
Cody J. Wisniewski
MOUNTAIN STATES LEGAL FOUNDATION
2596 South Lewis Way
Lakewood, Colorado 80227
(303) 292-2021
cody@mslegal.org
Attorney for Amici Curiae
i
TABLE OF CONTENTS
Page
CORPORATE DISCLOSURE STATEMENT ……………………………………….. i
TABLE OF AUTHORITIES ………………………………………………………………… iii
IDENTITY AND INTERESTS OF AMICI CURIAE ………………………………. 1
ARGUMENT ……………………………………………………………………………………… 2
I. POLITICAL SUBDIVISION PLAINTIFFS HAVE FAILED TO
DEMONSTRATE A LEGALLY PROTECTED INTEREST …………. 4
- The Enabling Act Does Not Grant Political Subdivision Plaintiffs The Right To A Republican Form Of
Government ……………………………………………………………………. 5
- The Colorado Constitution Does Not Confer Political Subdivision Plaintiffs The Right To A Republican Form Of
Government ……………………………………………………………………. 6
- POLITICAL SUBDIVISION PLAINTIFFS HAVE FAILED TO DEMONSTRATE THAT TABOR INJURES THEIR
PURPORTED, LEGALLY PROTECTED INTERST ……………………. 7
CONCLUSION ………………………………………………………………………………….. 10
CERTIFICATE OF COMPLIANCE …………………………………………………….. 12
CERTIFICATE OF ELECTRONIC FILING …………………………………………. 13
CERTIFICATE OF SERVICE ……………………………………………………………… 14
ADDENDUM – Colorado’s Enabling Act, 18 Stat. 474 (1875)
ii
TABLE OF AUTHORITIES
Page
Cases
Arizona State Legislature v. Arizona Indep. Redistricting Comm’n,
576 U.S. 787 (2015) ……………………………………………………………………….. 8
Bennett v. Spear,
520 U.S. 154 (1997) ……………………………………………………………………….. 3
Branson Sch. Dist. RE–82 v. Romer,
161 F.3d 619 (10th Cir. 1998) …………………………………………………………. 2, 3, 4, 6, 8
City of Hugo v. Nichols,
656 F.3d 1251 (10th Cir. 2011) ……………………………………………………….. 2, 3, 4, 8
Ex parte Webb,
225 U.S. 663 (1912) ……………………………………………………………………….. 7
In re Duncan,
139 U.S. 449 (1891) ……………………………………………………………………….. 8
Kerr v. Hickenlooper,
259 F. Supp. 3d 1178 (D. Colo. 2017) ………………………………………………. 5
Kinder Morgan CO2 Co., L.P. v. Montezuma County Bd. of Comm’rs,
396 P.3d 657 (Colo. 2017) ………………………………………………………………. 10
Lassen v. Arizona ex. rel. Arizona Highway Dep’t,
385 U.S. 458 (1967) ……………………………………………………………………….. 3
Lujan v. Defenders of Wildlife,
504 U.S. 555 (1992) ……………………………………………………………………….. 3, 4, 8, 9
Luther v. Borden,
48 U.S. 1 (1849) …………………………………………………………………………….. 4
Pacific States Tel. & Tel. Co. v. State of Oregon,
223 U.S. 118 (1912) ……………………………………………………………………….. 7-8
Warth v. Seldin,
422 U.S. 490 (1975) ……………………………………………………………………….. 4
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Constitutional Provisions
U.S. CONST. art. I, § 8 ………………………………………………………………………….. 9
U.S. CONST. art. IV, § 4 ……………………………………………………………………….. 4
U.S. CONST. art. X, § 20 ………………………………………………………………………. 1
U.S. CONST. amend. X …………………………………………………………………………. 7
COLO. CONST. Preamble ………………………………………………………………………. 7
Statutes
28 U.S.C. § 1331 ………………………………………………………………………………… 6
Colorado’s Enabling Act,
18 Stat. 474 (1875) …………………………………………………………………………. 5, 6, 7
Colo. Rev. Stat. § 22-54-101, et seq. ……………………………………………………… 10
Rules
Fed. R. App. P. 29 ………………………………………………………………………………. 12
Fed. R. App. P. 29(a)(2) ………………………………………………………………………. 1
Fed. R. App. P. 29(a)(4)(E) ………………………………………………………………….. 1
Fed. R. App. P. 32 ………………………………………………………………………………. 12
Fed. R. App. P. 32(f) …………………………………………………………………………… 12
Tenth Circuit Rule 32 ………………………………………………………………………….. 12
Other
BLACK’S LAW DICTIONARY (11th ed. 2019) ……………………………………. 8
THE FEDERALIST NO. 30 (Alexander Hamilton) ……………………………………… 9
THE FEDERALIST NO. 39 (James Madison) …………………………………………….. 8
iv
IDENTITY AND INTERESTS OF AMICI CURIAE[1]
Mountain States Legal Foundation (“MSLF”) is a nonprofit, public interest legal foundation organized under the laws of the state of Colorado. MSLF is dedicated to bringing before the courts issues vital to the defense and preservation of the right to own and use property, individual liberty, limited and ethical government, and the free enterprise system. Separation of powers is an essential feature of the American constitutional system and is necessary for the preservation of individual liberty.
The Colorado Union of Taxpayers Foundation (“CUT”) is a nonprofit corporation organized under the laws of the state of Colorado. CUT was formed to educate the public as to the dangers of excessive taxation, regulation, and government spending. CUT is dedicated to the proper implementation and interpretation of the Taxpayer’s Bill of Rights (“TABOR”). COLO. CONST. art. X, § 20.
The TABOR Foundation is an educational organization created with the express goal of defending the voter enacted TABOR. The mission of the TABOR Foundation is to develop and distribute educational materials, make public presentations, document compliance with TABOR, and provide a clearinghouse for information and analysis about the effectiveness, structure, and importance of TABOR and other tax-limitation measures.
A judicial determination in favor of Plaintiffs-Appellants would conflict with the
interests of MSLF, CUT, and the TABOR Foundation given it would serve as an intrusion upon the separation of powers and would subject Colorado taxpayers to increased taxes and larger government. MSLF, CUT, and the TABOR Foundation submit this Amici Curiae Brief in support of Defendant-Appellee Jared Polis, Governor of Colorado, in his official capacity (“Governor”), urging this Circuit affirm the district court’s judgment that Plaintiffs lack standing.
ARGUMENT
The right to a republican form of government is afforded to the people of Colorado, not to state political subdivisions. The political subdivisions of Colorado, including Plaintiffs here, have no federal constitutionally or statutorily protected interest in either a republican form of government, or the asserted derivative power to assess or retain taxes. Thus, whether the question of standing is considered in the light of whether Political Subdivision Plaintiffs have a legally protected interest under Article III or whether they have a collective or structural right to tax as a political subdivision, the answer is no. As a matter of jurisdiction, Political Subdivision Plaintiffs have no standing to bring their claims before a federal court.[2]
Article III standing requires that a plaintiff demonstrate: (1) an injury in fact to a “legally protected interest”; (2) that is fairly traceable to the challenged action; and (3) is likely to be redressed by a favorable judicial decision. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992); Bennett v. Spear, 520 U.S. 154, 167 (1997). The party invoking federal jurisdiction bears the burden of establishing these “immutable” requirements. Lujan, 504 U.S. at 561. As for political subdivision standing, this Circuit has set forth a two-factor test that a political subdivision must satisfy to have standing to sue its creating state: (1) the political subdivision must be substantially independent from the creating state; and (2) the political subdivision must be “essentially” the beneficiary of a federal trust. Branson, 161 F.3d at 629 (citing Lassen v. Arizona ex. rel. Arizona Highway Dep’t, 385 U.S. 458, 459 n.1 (1967)). This Court later clarified the second factor, noting the federal statute sought to be enforced by the political subdivision must be “directed at protecting the political subdivisions . . . .” City of Hugo, 656 F.3d at 1257 (citations omitted).
Whether this Circuit is examining the first factor of Article III standing (injury to a legally protected right) or the second factor of political subdivision standing (specific statutory protection) this Circuit is determining whether the political subdivision asserts a power that has been granted to it and whether there is an injury to that specifically granted power. Political Subdivision Plaintiffs fail to satisfy this test. The crux of Plaintiffs’ case is that TABOR deprives them of a “federally guaranteed” right to a republican form of government. FAC ¶¶ 1, 108–16; Op. Br. at 6–8, 9. Yet, Political Subdivision Plaintiffs lack a legally protected interest to a republican form of government under the Guarantee Clause, the Enabling Act, or the Colorado Constitution. Without a legally protected
3
interest, Political Subdivision Plaintiffs cannot establish Article III nor political subdivision standing. Even if Political Subdivision Plaintiffs have a legally protected interest, TABOR does not invade that interest because a republican form of government does not confer the power to tax upon Political Subdivision Plaintiffs.
I. POLITICAL SUBDIVISION PLAINTIFFS HAVE FAILED TO DEMONSTRATE A LEGALLY PROTECTED INTEREST
To assert a legally protected interest under Article III a plaintiff “must assert his own legal rights and interests, and cannot rest his claim to relief on the legal rights of third parties.” Warth v. Seldin, 422 U.S. 490, 499 (1975) (citation omitted). Similarly, under political subdivision standing, a political subdivision must assert the violation of a right that is specifically granted to the political subdivision. See Branson, 161 F.3d at 629 (finding the school districts in that case were essentially the beneficiaries of a federal land trust granted in the Enabling Act); cf. City of Hugo, 656 F.3d at 1257–58 (“Because the claims at issue here are based on a substantive provision of the Constitution, and because the Supreme Court has made clear that the Constitution does not contemplate the rights of political subdivisions as against their parent states, Hugo lacks standing under Branson.”).[3]
A. The Enabling Act Does Not Grant Political Subdivision Plaintiffs The Right To A Republican Form of Government
Despite the unambiguous text, Political Subdivision Plaintiffs argue the Enabling Act grants political subdivisions the right to a republican form of government. See Op. Br. at 17–21, 30–31. Yet, as the district court correctly determined, the people of Colorado, not political subdivisions, were granted and are guaranteed the right to a republican form of government. Kerr v. Hickenlooper, 259 F. Supp. 3d 1178, 1190–91 (D. Colo. 2017).
In 1875, Congress passed the Enabling Act to “enable the people of Colorado to form a constitution and State government . . . .” Enabling Act, Title. The Enabling Act grants the right to a republican form of government to the people of the state of Colorado:
[T]he members of the convention thus elected . . . shall declare, on behalf of the people of said territory, that they adopt the constitution of the United States; whereupon the said convention shall be . . . authorized to form a constitution and state government for said territory; provided, that the constitution shall be republican in form . . . and not be repugnant to the constitution of the United States and the principles of the declaration of
independence.
Id. § 4 (emphasis added); see Kerr, 259 F. Supp. 3d at 1190–91. (“[P]laintiffs make no attempt to explain how [Section 4] provides [Political Subdivision Plaintiffs] with a right to a Constitution ‘republican in form.’ In any event, the Court finds that, based on the present record, it does not.”).
First, the Enabling Act does not address, nor even posit the existence of, the county commission or special district board, so there is no colorable argument that the Enabling Act grants those entities the right to a republican form of government. See generally,
Enabling Act; see also Kerr, 259 F. Supp. 3d at 1189 (“[T]he FAC fails to allege that the
5
plaintiffs who are the board of county commissions . . . or the special district . . . are seeking to enforce a right granted to them in the Enabling Act . . . .”).
Second, primary and secondary schools are only addressed in the Enabling Act in reference to the assignment and disposition of land for the benefit of the “common schools.” Enabling Act §§ 7, 14. A plain reading of these sections indicates Congress intended the “common schools” to have land on which to operate, and to be funded via a “permanent school-fund, the interest of which to be expended in the support of common schools.” Id.; see Branson, 161 F.3d at 629 (finding those school districts were essentially the beneficiaries of a federal land trust granted in the Enabling Act). There is no indication, however, that Congress intended to grant “common schools,” or any entity aside from the people, the right to a republican form of government. See Enabling Act §§ 4, 7, 14.
B. The Colorado Constitution Does Not Confer Political Subdivision Plaintiffs The Right To A Republican Form Of Government
Notwithstanding the plain language of the Enabling Act, Political Subdivision Plaintiffs argue this Court should look to the Colorado Constitution to determine what rights were granted by the Enabling Act, because the Colorado Constitution was established pursuant to, and in compliance with, the Enabling Act. FAC ¶¶ 111–16; Op. Br. at 18–21. Political Subdivision Plaintiffs argue that, since the Colorado Constitution sets forth a complex structure of governance and funding, the president’s grant of statehood necessarily approved that structure as being republican in form. Op. Br. at 18–21.[4]
This argument suffers a major flaw. To enter the Union, the Colorado Constitution only had to meet the base requirements of the Enabling Act; it did not provide the universe of allowable provisions. See Ex parte Webb, 225 U.S. 663, 680 (1912) (discussing the approval of Oklahoma’s Constitution that contained provisions both prescribed and not specifically prescribed in the Oklahoma Enabling Act). The Enabling Act guaranteed the people of Colorado the right to a republican form of government; thus, at a minimum, the Colorado Constitution had to guarantee the people of Colorado the same. See Enabling Act § 4. Any additional rights or powers, outside the scope of the Enabling Act, contained in the Colorado Constitution do not constitute federally conferred or protected rights or powers. See U.S. CONST. amend. X; COLO. CONST. Preamble.
Political Subdivision Plaintiffs do not have a legally protected right to a republican form of government via the Guarantee Clause, Enabling Act, or Colorado Constitution, and cannot allege an Article III injury to a protected right, nor an injury to a specifically granted right as required for political subdivision standing. Thus, Political Subdivision Plaintiffs, as a jurisdictional matter, lack standing to pursue the underlying action.
II. POLITICAL SUBDIVISION PLAINTIFFS HAVE FAILED TO DEMONSTRATE THAT TABOR INJURES THEIR PURPORTED, LEGALLY PROTECTED INTEREST
Assuming arguendo, Political Subdivision Plaintiffs have a federally protected right to a republican form of government and this Circuit chooses to weigh in on what constitutes a republican form of government,[5] TABOR does not cause any injury to that alleged right.
To establish an Article III injury, in addition to alleging a legally protected interest, a plaintiff must affirmatively allege an injury to that same interest. Lujan, 504 U.S. at 560. Similarly, under political subdivision standing, a political subdivision may only bring suit against its creating state when the political subdivision is asserting a state violation of a federal right granted to the political subdivision by the federal statute sought to be enforced.
City of Hugo, 656 F.3d at 1257–58 (citing Branson, 161 F.3d at 629, 630, 637).
The “distinguishing feature of [a republican form of government] is the right of the people to choose their own officers for governmental administration, and pass their own laws in virtue of the legislative power reposed in representative bodies . . . .” In re Duncan, 139 U.S. 449, 459–62 (1891). James Madison defined a republic as “a government which derives all its powers directly or indirectly from the great body of the people,” and goes on to state it is “ESSENTIAL” that a republic “be derived from the great body of the society, not from an inconsiderable proportion, or a favored class of it.” THE FEDERALIST NO. 39 (James Madison) (emphasis in original); see Republic, BLACK’S LAW DICTIONARY (11th ed. 2019) (defining republic as a “system of government in which the people hold sovereign power and elect representatives who exercise that power”) (emphasis added). In the entire text of Federalist No. 39, while Madison discusses the essential and sufficient features of a republic in depth, at no point does Madison mention taxation. Similarly, the Constitution,
Tel. & Tel. Co. v. State of Oregon, 223 U.S. 118, 133 (1912); see Arizona State Legislature v. Arizona Indep. Redistricting Comm’n, 576 U.S. 787, 795 n.3 (2015) (“The people’s sovereign right to incorporate themselves into a State’s lawmaking apparatus, by reserving for themselves the power to adopt laws and to veto measures passed by elected representatives, is one this Court has ranked a nonjusticiable political matter.”) (citations omitted).
8
rather than presuming taxation is inherent in a republican form of government, specifically grants Congress the power to tax in Article I. U.S. CONST. art. I, § 8.
Political Subdivision Plaintiffs do not cite any authority that suggests the ability to tax by political subdivisions is a requirement of a republican form of government. While Political Subdivision Plaintiffs cite to Federalist Nos. 10, 30, 39, 51, and 57, none of those papers support their proposition. FAC ¶¶ 5–7. Federalist No. 30, the only cited paper to discuss taxing powers, provides: “[t]he conclusion is, that there must be interwoven, in the frame of the government, a general power of taxation, in one shape or another.” THE FEDERALIST NO. 30 (Alexander Hamilton). That statement, however, specifically indicates the national government must have a general power of taxation. Id.; U.S. CONST. art. I, § 8. Hamilton draws this conclusion from the necessity of the federal government to provide for the “support of the national forces” and “for the payment of the national debts contracted.” THE FEDERALIST NO. 30 (Alexander Hamilton). At no point does Hamilton extend the need for the power to tax to the states, or to entities created by the state, such as political subdivisions. See id. If the power to tax was inherent in the republican form of government, Hamilton would have addressed it in Federalist No. 30, or Madison would have addressed it in Federalist No. 39. Additionally, the Framers would not have had to specifically grant that power to Congress in the Constitution. Political Subdivision Plaintiffs failed to establish that taxation is an inherent necessity for a republican form of government, despite it being their burden to meet. Lujan, 504 U.S. at 560–61.
In fact, Political Subdivision Plaintiffs admit their power to tax was granted by statute “after” ratification of Colorado’s Constitution. Op. Br. at 20 (“[T]he first Colorado
9
legislature after statehood . . . [gave] authority to the school boards to determine . . . the amount of additional revenue to be raised by special taxation if a district was willing to fund beyond its original appropriation.”) (internal quotation omitted and emphasis added). Again, if the right to tax was inherent in a republican form of government, “the first Colorado legislature” would not have engaged in the meaningless exercise of statutorily granting the power to political subdivisions because the right would have already existed. Id.; see Colo. Rev. Stat. § 22-54-101, et seq.; Kinder Morgan CO2 Co., L.P. v. Montezuma County Bd. of Comm’rs, 396 P.3d 657, 664 (Colo. 2017) (“We strive to avoid statutory interpretations that render certain words or provisions superfluous or ineffective.”).
CONCLUSION
Political Subdivision Plaintiffs believe they know better than the people of Colorado and seek to weaponize a right guaranteed to the people of Colorado—via the Guarantee Clause, the Enabling Act, and the Colorado Constitution—against the people. What could be less of a republican form of government than a political subdivision suing its creating state to override a constitutional amendment that was enacted by a popular vote of the people? If Plaintiffs are concerned about TABOR’s effects, they should appeal to the people, from which Plaintiffs derive their power and authority, not to the federal judiciary. Based on the foregoing, amici curiae respectfully request this Circuit affirm the district court’s judgment dismissing this case for a lack of jurisdiction.
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DATED this 21st day of December 2020.
Respectfully submitted,
/s/ Cody J. Wisniewski
Cody J. Wisniewski
MOUNTAIN STATES LEGAL FOUNDATION
2596 South Lewis Way
Lakewood, Colorado 80227
(303) 292-2021
cody@mslegal.org
Attorney for Amici Curiae
11
CERTIFICATE OF COMPLIANCE
I certify that, pursuant to Federal Rules of Appellant Procedure 29 and 32, Tenth Circuit Rule 32, and this Circuit’s Order dated October 14, 2020, establishing page limits, that the foregoing Amicus Curiae Brief is limited to one-half of Appellee’s Supplemental Brief, excluding the parts of the brief exempted by Federal Rule of Appellant Procedure
32(f). This brief has been prepared in a proportionally spaced typeface using Microsoft
Word in Times New Roman 13-point font.
DATED this 21st day of December 2020.
/s/ Cody J. Wisniewski
Cody J. Wisniewski
MOUNTAIN STATES LEGAL FOUNDATION
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CERTIFICATE OF ELECTRONIC FILING
In accordance with this Court’s CM/ECF User’s Manual and Local Rules, I hereby certify that a copy of the foregoing has been scanned for viruses with SentinelOne
Antivirus, updated December 21, 2020, and is free of viruses according to that program. In addition, I certify that all required privacy redactions have been made and the electronic version of this document is an exact copy of the written document to be filed with the Clerk.
DATED this 21st day of December 2020.
/s/ Cody J. Wisniewski
Cody J. Wisniewski
MOUNTAIN STATES LEGAL FOUNDATION
13
CERTIFICATE OF SERVICE
I hereby certify that on December 21, 2020, I electronically filed the foregoing with the Clerk of the Court for the United States Court of Appeals for the Tenth Circuit by using the appellate CM/ECF system.
I certify that all participants in this case are registered CM/ECF users and that service will be accomplished by the appellate CM/ECF system.
/s/ Cody J. Wisniewski
Cody J. Wisniewski
MOUNTAIN STATES LEGAL FOUNDATION
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ADDENDUM
[1] Pursuant to Fed. R. App. P. 29(a)(2), Plaintiffs-Appellants Andy Kerr, et al. consent to the filing of this amici curiae brief. Defendant-Appellee also consents to the filing of this amici curiae brief. Pursuant to Fed. R. App. P. 29(a)(4)(E), the undersigned affirms that no counsel for a party authored this brief in whole or in part, and no person or entity other than MSLF, its members, or its counsel, made a monetary contribution specifically for the preparation or submission of this brief.
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[2] While the Governor’s brief demonstrates that Political Subdivision Plaintiffs lack political subdivision standing in this matter, the brief erroneously defines the inquiry as a prudential one, rather than a threshold jurisdictional question. Gov. Supp. Br. at 9–11. When this Circuit examined political subdivision standing in Branson and City of Hugo, those inquiries were considered as a matter of jurisdiction. See Branson Sch. Dist. RE-82 v. Romer, 161 F.3d 619, 627 (10th Cir. 1998) (considering political subdivision standing on appeal from a motion to dismiss); City of Hugo v. Nichols, 656 F.3d 1251, 1254 (10th Cir. 2011) (“[T]his court vacates the district court’s order and remands the case to the district court to dismiss for lack of federal jurisdiction.”) (emphasis removed). This Circuit should treat its standing inquiry here as such.
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[3] Political Subdivision Plaintiffs fail to allege that the Guarantee Clause, U.S. CONST. art. IV, § 4, grants rights or powers to political subdivisions, much less to Political Subdivision Plaintiffs. See FAC, ¶¶ 12, 22, 47, 110. Nor could they allege such facts. See Luther v. Borden, 48 U.S. 1, 47 (1849) (“No one, we believe, has ever doubted the proposition, that, according to the institutions of this country, the sovereignty in every State resides in the people of the State, and that they may alter and change their form of government at their own pleasure.”). Given Political Subdivision Plaintiffs have not and cannot allege they have a legally protected right under the Guarantee Clause, they lack a legally protectable interest under Article III or political subdivision standing. See Lujan, 504 U.S. at 560–61; City of Hugo, 656 F.3d at 1257–58.
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[4] Of note, the Colorado Constitution is not a federal statute and does not purport to grant federal rights. If Political Subdivision Plaintiffs are alleging TABOR violates a state conferred right, that claim should have been brought in a state court. See 28 U.S.C. § 1331.
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[5] The Supreme Court consistently treats claims for a violation of a republican form of government as political questions “not cognizable by the judicial power.” Pacific States
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