Court: Court of Appeals for the Tenth Circuit; August 20, 2019; Federal Appellate Court
Micheal Baca, Polly Baca, and Robert Nemanich served as Colorado's presidential electors in the 2016 election, required by state law to vote for the winner of the popular vote, which was Hillary Clinton. Mr. Baca, however, cast his vote for John Kasich, leading to his removal by Colorado's Secretary of State and the invalidation of his vote. The remaining electors, Ms. Baca and Mr. Nemanich, subsequently voted for Clinton against their wishes. The electors filed a lawsuit against the Colorado Department of State, claiming a violation of 42 U.S.C. 1983. The district court dismissed the case, citing a lack of standing for the electors and failure to state a claim.
On appeal, the court determined that Mr. Baca had standing due to his personal injury from being removed and having his vote canceled, but Ms. Baca and Mr. Nemanich lacked standing regarding their diminished power as electors. The court affirmed the dismissal of their claims while reversing the dismissal of Mr. Baca's claim. It found that the state's actions were unconstitutional, allowing Mr. Baca to proceed with his case, and remanded for further proceedings. The opinion is structured in three parts: assessing the standing of the electors, determining the case's mootness, and evaluating the constitutionality of the state's actions against Mr. Baca.
The United States Constitution mandates that each state appoint electors equal to its congressional representation, who then vote for President and Vice President. In Colorado, electors are appointed during the general election and must vote for the candidates who received the most votes in that election. If a vacancy arises among electors, those present must fill it immediately. Electors receive a daily stipend and mileage reimbursement for their service.
In April 2016, Mr. Baca, Ms. Baca, and Mr. Nemanich were appointed as electors after Hillary Clinton and Tim Kaine won the popular vote in Colorado. Following concerns about foreign election interference, Mr. Nemanich inquired about the consequences if an elector did not vote for the winning candidates. The Secretary of State indicated that the elector could be removed and face perjury charges for not complying. Consequently, on December 6, 2016, Ms. Baca and Mr. Nemanich filed a lawsuit in the U.S. District Court for Colorado, seeking to block enforcement of the state law requiring electors to vote for the popular vote winners, claiming it violated Article II and the Twelfth Amendment of the U.S. Constitution. Their request for an injunction was denied, with the court stating they failed to substantiate their claims. An emergency injunction pending appeal was also denied, with the court criticizing the plaintiffs for lacking supporting language from the Constitution but noting potential arguments in their favor. Ultimately, the court found that the electors did not demonstrate a substantial likelihood of success on the merits of their case.
Secretary Williams initiated a lawsuit in Colorado state court against Ms. Baca and Mr. Nemanich to clarify state law on presidential electors' succession. The state district court ruled that an elector's failure to vote for the designated candidates constitutes a 'refusal to act,' creating a vacancy in the Electoral College, which must be filled by a majority vote of present electors. The Colorado Supreme Court declined to review this decision. On December 19, 2016, prior to the electors' voting, Secretary Williams required them to take a revised oath to vote in accordance with the state's popular vote results, warning of potential felony perjury for violations. Mr. Baca, despite taking the oath, altered his ballot to vote for John Kasich instead of Hillary Clinton, leading to his removal as an elector and replacement with a substitute who voted for Clinton. Subsequently, Ms. Baca and Mr. Nemanich felt coerced into voting for Clinton and Kaine. Mr. Baca's attempt to vote for Tim Kaine was also disregarded, and he was referred for a criminal investigation.
Ms. Baca and Mr. Nemanich subsequently dismissed their previous case and filed a new complaint, which included Mr. Baca and asserted a claim under 42 U.S.C. § 1983, alleging violations of their constitutional rights under Article II and the Twelfth Amendment. They sought a judgment declaring the Department's actions unconstitutional, specifically challenging the validity of 1-4-304(5), and requested nominal damages. The Department moved to dismiss the complaint for lack of standing and failure to state a claim. The district court granted the motion, determining that the electors lacked standing based on the political subdivision standing doctrine and that the Constitution does not prevent states from binding electors to the results of the popular vote. The electors filed a timely appeal, which is under the jurisdiction of 28 U.S.C. § 1291.
The court requested supplemental briefs from the parties regarding two key issues: the impact of specific Supreme Court cases on the district court's jurisdiction and the case's potential mootness due to the Colorado Department of State's status under 42 U.S.C. § 1983. The parties acknowledged that the Department is not considered a "person" under § 1983 but argued that this does not affect the court's jurisdiction. The Department waived its argument regarding its status, allowing the court to focus on the substantive issues.
The discussion is structured into three parts:
1. **Standing**: The court evaluates whether the Presidential Electors have standing to pursue their claims, ultimately concluding that only Mr. Baca has standing, as he meets the injury-in-fact requirement, while Ms. Baca and Mr. Nemanich do not.
2. **Mootness**: The court will consider whether the case is moot based on the Department's status.
3. **Merits of Mr. Baca's Claim**: The court will assess whether the district court's dismissal of Mr. Baca's claim was appropriate under Rule 12(b)(6).
The court reviews the district court's dismissal for lack of jurisdiction de novo, noting that the burden rests on the party invoking federal jurisdiction. The district court had previously applied the political subdivision standing doctrine in its dismissal, which the current court finds inapplicable in this context.
Federal courts lack jurisdiction in disputes between political subdivisions and their parent states under the doctrine of political subdivision standing. This principle is rooted in the recognition that municipalities do not possess an inherent right to self-governance beyond state legislative control, as established in *City of Trenton v. New Jersey*. Municipalities are seen as extensions of the state, created for administrative convenience, and thus their powers and privileges are subject to the state's discretion. Consequently, municipal corporations cannot invoke Federal Constitutional privileges against the state.
In the application of this doctrine, a district court determined that it extends to both political subdivisions and state officials, concluding that presidential electors, classified as state officials, were barred from standing under this doctrine. The Presidential Electors contest this classification, arguing that their office is established by the federal Constitution and not created by the state. They assert that this distinction exempts them from the political subdivision standing doctrine.
The Department counters that, regardless of the electors being classified as political subdivisions, they lack standing as state officials. However, the argument favors the Presidential Electors, as their role is defined by federal law, and they perform a federal function in electing the President and Vice-President. Furthermore, the political subdivision standing doctrine does not apply to state officials in their official capacity, as lawsuits against them effectively equate to lawsuits against the state itself. The Department's references to supportive case law do not substantiate its position, as these cases address separate legal issues concerning justiciability rather than the application of the political subdivision standing doctrine to state officers.
State officials possess standing to pursue claims based solely on personal interests, not official capacities, as established by Supreme Court precedent. This principle is underscored in cases like Smith v. Indiana and Columbus, Greenville Ry. v. Miller, asserting that the Fourteenth Amendment does not protect the mere interests of an official without a personal stake. The Supreme Court has ruled that officials cannot challenge state statutes unless adversely affected personally. A state official's belief regarding a statute's constitutionality does not confer standing absent a personal stake; a change in belief negates any claim to interest in the litigation.
The excerpt also addresses the justiciability issue, stating that jurisdiction is lacking when state agencies are so intertwined with state government that litigation resembles a state suing itself. In this context, neither party argues that Presidential Electors are closely linked to the State of Colorado, thereby avoiding the self-suing scenario. The political subdivision standing doctrine, applicable to municipalities, does not extend to presidential electors, and the determination of their standing will hinge on whether any alleged injury pertains to a personal or official interest. This necessitates an examination of general legal principles regarding standing.
To establish Article III standing, the Presidential Electors must demonstrate an injury in fact that is concrete, particularized, actual or imminent, and traceable to the challenged action, with the possibility of redress through the relief sought. Each plaintiff's standing must be assessed individually for each claim for relief. The injury must exhibit a personal stake in the outcome, meaning it cannot be conjectural or hypothetical, and must be specific to the plaintiff. Additionally, a dispute must involve more than just a legal question without a concrete threat of harm to fall within the constitutional definition of "Cases" and "Controversies."
Three key factors guide the analysis of the injury-in-fact requirement: (1) the nature of the Presidential Electors' interest (personal vs. official), (2) the type of relief sought (prospective vs. retrospective), and (3) the standing of the Electors as legislators. Each of these considerations will be examined in detail.
A party challenging the constitutionality of an act must demonstrate a personal interest adversely affected by that act, rather than an official interest related to their duties. Legal precedents establish that an interest must be personal to confer standing; public officials cannot assert claims based solely on their roles or official duties. An injury is deemed official if it arises from a public official’s role rather than personal entitlement. Additionally, mere personal dilemmas faced by officials in executing their duties do not provide standing, nor does the loss of institutional power constitute a private right. The distinction between personal and official injury is critical in determining whether the Presidential Electors can pursue prospective or retrospective relief, which will be analyzed in light of the specific relief sought. This assessment begins with a review of applicable law before applying those principles to the current situation.
A plaintiff's standing for retrospective relief hinges on past injuries, while standing for prospective relief necessitates proof of a continuing injury. Relevant case law indicates that a plaintiff may seek damages but not injunctive relief unless they can demonstrate a credible threat of future harm. To pursue prospective relief, evidence of a "good chance" of future injury is required. Although injuries typically need to be imminent, plaintiffs can seek redress before harm occurs if they allege that the future injury is "certainly impending" or poses a "substantial risk." Each form of relief—retrospective and prospective—requires separate standing to be established.
A plaintiff may pursue a pre-enforcement suit for declaratory or injunctive relief against a statute that allegedly deters constitutional rights without needing to face actual arrest or prosecution. This principle is supported by Steffel v. Thompson, which emphasizes that standing is not negated even if the plaintiff avoids conduct that provokes the statute, as such avoidance may be coerced. The Declaratory Judgment Act aims to alleviate the burden of choosing between exercising rights and risking prosecution.
Pre-enforcement review is allowed when the threat of enforcement is sufficiently imminent, with the plaintiff meeting the injury-in-fact requirement by intending to engage in conduct affected by the statute and facing a credible threat of prosecution. This requirement holds even if the law has previously been enforced against the plaintiff. Assurances from prosecutors about not pursuing charges can undermine standing, even if the plaintiff has faced past threats or charges.
Past exposure to illegal conduct alone does not demonstrate an ongoing case or controversy for injunctive relief without current adverse effects. However, a plaintiff can establish injury for future relief by satisfying pre-enforcement review criteria or by showing continued adverse effects resulting from prior enforcement. For retrospective relief, the injury must be concrete and particularized, meaning it must personally affect the plaintiff.
The Presidential Electors are seeking three forms of relief: (1) a declaration that Colorado statute 1-4-304(5) is unconstitutional; (2) a finding that the Department violated their federally protected rights by depriving Mr. Baca of his right to act as an Elector and by intimidating the Electors; and (3) nominal damages of $1 each. The request for constitutional declaration is considered traditional prospective relief, while the request for a finding of rights violation and nominal damages is viewed as retrospective relief. The latter is deemed unnecessary unless linked to a determination of damages, as a standalone retrospective declaration would only indicate the Electors were wronged. The court does not analyze the claim for retrospective declaration separately from the damages claim but will assess the prospective relief regarding the constitutionality of 1-4-304(5).
To have standing for prospective relief, the Electors must demonstrate an intention to engage in conduct affected by the statute and a credible threat of prosecution. The court finds no such allegations in the Second Amended Complaint; the Electors do not express an intent to run for Elector again or to vote contrary to the popular vote. Therefore, they lack standing for prospective relief as there is no credible threat of future prosecution under the statute.
The Presidential Electors acknowledged that the Attorney General chose not to pursue prosecution, thereby eliminating any credible threat of future enforcement against them. Consequently, they cannot demonstrate an imminent personal injury necessary for standing to seek prospective relief, including a declaration regarding the constitutionality of 1-4-304(5). Regarding retrospective relief, the district court found that the Electors lacked a personal stake in the litigation and were asserting only an official interest due to the alleged diminution of their power as Electors. Most of their claims relate to official harm rather than personal injury, as they assert they were threatened and intimidated while exercising their federally protected rights. They argue that 1-4-304(5) is unconstitutional both on its face and as applied because it infringes on their right to vote freely and that its enforcement violates their rights under Article II and Amendment XII, which protect Electors from coercion in their voting decisions. However, these claims are fundamentally about the loss of political power in their official capacity as 2016 Electoral College members, rather than personal rights. The Supreme Court precedent indicates that if the alleged injury arises solely from their official role, it does not confer standing, especially since the Electors no longer serve in that capacity. The claims are limited to their status as Democratic Electors for the 2016 presidential election, and any potential injury would not survive their departure from office, with claims passing to their successors.
Presidential Electors lack standing to assert claims because they do not possess a greater legal interest than any other citizen regarding injuries to an office they did not hold at the time of filing. The precedent set in United States v. Richardson highlights that generalized grievances do not confer standing. The standing must be assessed at the time the complaint is filed, requiring a demonstration of personal injury.
The Presidential Electors argue they experienced personal injuries due to Mr. Baca's dismissal as an elector, invalidation of his vote, and subsequent criminal investigation referral, with similar threats made against Ms. Baca and Mr. Nemanich. Despite these assertions, the district court ruled that the role of a presidential elector did not confer any meaningful pecuniary interest or substantial power, as electors receive only nominal compensation and their duties conclude after a single voting meeting.
However, the analysis acknowledges Mr. Baca's claim of injury due to the cancellation of his vote for President and the prohibition against voting for Vice President, as well as his removal from office. The court's previous conclusion on the absence of personal injury is contested, particularly regarding Mr. Baca’s stated injuries.
An injury in fact must be actual and concrete, without the necessity of involving economic loss, such as job termination. Standing jurisprudence recognizes various types of injuries beyond economic harm. The district court's view that electors have only a ministerial role and must vote according to the popular vote improperly conflates standing with the merits of the case. Presidential electors may have the constitutional discretion to cast their votes, and Mr. Baca's temporary loss of office constitutes a concrete injury in fact. However, Mr. Baca has not demonstrated an injury regarding his referral to the Colorado Attorney General for potential criminal prosecution. Although wrongful criminal proceedings can confer standing, Mr. Baca's claims lack any assertion that he was prosecuted or suffered injury due to the referral by Secretary Williams. Consequently, while Mr. Baca has established standing for retrospective relief based on his removal from office, he has not shown any injury related to the criminal investigation referral.
Ms. Baca and Mr. Nemanich's claims of personal injury for retrospective relief based on threats of removal from office and prosecution for not voting according to Colorado's popular vote lack standing. The Presidential Electors reference *Board of Education of Central School District No. 1 v. Allen*, which involved local boards claiming a state statute unconstitutional, asserting a personal stake in the litigation due to the conflict with their oaths to uphold the Constitution. However, subsequent Supreme Court rulings, such as *Schlesinger v. Reservists Committee to Stop the War* and *Richardson*, clarified that a generalized interest in constitutional governance does not confer standing. Lower courts have interpreted these rulings to tighten standing requirements, especially when officials are not faced with explicit constitutional prohibitions. Even if *Allen* were considered precedential, Ms. Baca and Mr. Nemanich cannot establish standing for retrospective relief, as their situation differs from *Allen*, which sought prospective relief. They have not demonstrated credible threats of future enforcement or actual injury from past threats, precluding their claims for relief.
Plaintiffs in the referenced case experienced actual injuries justifying retrospective relief, including two plaintiffs who relocated to avoid an ordinance and another whose dog was seized, leading to criminal charges. PeTA established standing for retrospective relief due to a violation of its free speech rights when protestors faced arrest threats. The Second Amended Complaint includes an allegation that Secretary Williams' actions intimidated Mr. Baca, Ms. Baca, and Mr. Nemanich, compelling them to vote against their judgment, thus limiting their discretion as electors. However, this injury pertains solely to their official capacity and does not constitute a personal injury, which is necessary for standing. The plaintiffs argue for a legislative standing exception, asserting that as electors, they can collectively enforce the effectiveness of their votes. This is grounded in precedent from Coleman, where Kansas senators sought to uphold their votes against a resolution, claiming their votes were effectively nullified. The Supreme Court affirmed their standing, emphasizing their direct interest in maintaining the efficacy of their votes. The discussion also references Raines, which examined legislator standing in a separate context involving congressional members challenging legislation.
The Court determined that the Congressmen lacked standing due to two main reasons: they could not demonstrate personal injury, and their claims were based on institutional injury affecting all Members of Congress equally rather than personal rights. Their assertion of standing stemmed from a loss of political power, which does not qualify as a personal entitlement. The injury associated with their claim would transfer to a successor if a Congress member retired, indicating the injury is tied to the seat rather than the individual. The Court distinguished this case from Coleman, highlighting that Coleman allowed legislators to sue if their votes had been nullified by legislation, which was not applicable here, as the case did not involve the validity of legislative votes. The Court noted that the Congressmen were not authorized to represent their Houses in this action, particularly since both Houses opposed the suit. It emphasized that individual members cannot assert institutional interests of a legislative body, and a single House cannot represent the interests of the legislature as a whole. Additionally, members of legislative bodies generally do not have standing to appeal decisions their body has chosen not to pursue. The Court also indicated that while standing might arise from discriminatory treatment of votes, the Congressmen failed to show that their votes were denied or rendered invalid in a manner that would support their claim.
Diminution of vote effectiveness represents an institutional injury, whereas a legislator subjected to disparate treatment may experience a personal injury. The Supreme Court's ruling in *Arizona State Legislature* established that the Arizona Legislature had standing to challenge the constitutionality of a citizens' initiative that created an independent redistricting commission, as it was asserting an institutional injury with authorized votes from both legislative chambers. This case affirmed that institutional plaintiffs can claim redress for injuries affecting all members equally. In contrast, in *Kerr*, it was determined that individual legislators lacked standing to assert an institutional injury since such injuries must impact all members uniformly. *Kerr* identified three legislator standing types: (1) institutional injury, which can only be claimed by the legislature as a whole; (2) injuries to a bloc of legislators large enough to affect a vote; and (3) personal injuries to individual legislators, such as the denial of voting rights. The excerpt notes that the Presidential Electors did not reference *Raines*, *Arizona State Legislature*, or *Kerr* in their briefs, which is notable since these cases were pivotal in the district court's denial of standing and were cited by the Department in its affirmation request.
The excerpt addresses the issue of legislative standing in relation to claims made by Ms. Baca and Mr. Nemanich regarding their voting rights as Presidential Electors. It concludes that their claims do not meet the standing criteria established by the Supreme Court, particularly in the context of the Coleman case. Mr. Baca is noted to have standing due to the nullification of his vote and his removal from office.
The Presidential Electors argue that each elector has an individual right to vote, which should grant them standing under Coleman, but this argument is deemed unconvincing for Ms. Baca and Mr. Nemanich. The Supreme Court's decision in Raines clarifies that standing exists only for legislators whose votes could have changed the outcome of a specific legislative act. In this case, even if Mr. Baca and Ms. Baca had voted differently, the outcome of the presidential election would not have altered, as Donald Trump would still have received a majority of electoral votes.
Furthermore, the relief sought by the Presidential Electors does not align with that recognized in Coleman, as they are not attempting to enforce the counting of their votes. Instead, they challenge a state law (1-4-304(5)) that they claim restricts their voting freedom. However, this challenge is viewed as an institutional injury affecting all Colorado electors equally, which the Department argues they cannot pursue since they lack authorization to represent the entire Electoral College. The discussion emphasizes the distinction between individual and collective rights in the context of legal standing.
Only institutional plaintiffs can assert institutional injuries, which affects the standing of the Presidential Electors since they do not represent a majority of Colorado electors. Even if the Electors claim an individually enforceable right to vote freely, they cannot demonstrate an individualized injury because the threats made were general and did not target individuals like Ms. Baca and Mr. Nemanich. They also did not file their claims in an official capacity, and as former electors, they lack standing for any claims of official injury.
Mr. Baca, however, has alleged a specific personal injury: his removal from office and the nullification of his vote, which directly affects him. This claim aligns with the standard for establishing personal injury as it is concrete and particularized. The discussion of traceability and redressability confirms that Mr. Baca’s injuries are linked to the Department's actions, specifically the removal and invalidation of his vote. His request for nominal damages fulfills the redressability requirement for a § 1983 action. Consequently, only Mr. Baca has established a sufficient personal injury for retrospective relief, while the claims of Ms. Baca and Mr. Nemanich were rightfully dismissed under rule 12(b)(1).
Mr. Baca's claim for prospective relief was dismissed due to a lack of alleged ongoing threats under 1-4-304(5). However, the district court incorrectly dismissed his claim for retrospective relief because he has standing based on his removal as an elector and the cancellation of his vote. The discussion then shifts to mootness, analyzing whether Mr. Baca's claim under 42 U.S.C. § 1983 is still valid. The requirements for a valid § 1983 claim include proving that a person acting under state law deprived him of constitutional rights. The dissent argues the case is moot because the Department is not a person under § 1983, but the majority disagrees, asserting that a defect in the merits does not moot the case if there has been no intervening circumstance that alters the plaintiff’s stake in the outcome. The document emphasizes that mootness relates to the plaintiff's continuing interest in the litigation, which has not changed for Mr. Baca as he continues to seek both prospective and retrospective relief, including nominal damages. The case of Arizonans for Official English v. Arizona is referenced, but it is clarified that the situation in Mr. Baca’s case does not render his claims moot, underscoring that mootness does not hinge on the merits of the claims.
The Ninth Circuit determined that the case involving Yniguez was not moot despite her lack of continuing interest in injunctive relief due to no longer being affected by the English-only provision. Yniguez could still seek nominal damages, even though she had not expressly requested them in her complaint. The case was remanded to allow her to present the issue of nominal damages. However, the Supreme Court rejected the notion that this late claim could overcome mootness, emphasizing that 1983 actions do not permit claims against a state. The Court noted that a nominal damages claim, which was suggested to avoid mootness, was legally non-meritorious and futile. The mootness stemmed from Yniguez's resignation from her state job, not from the failure of the nominal damages claim. The ruling clarified that a last-minute attempt to assert a damages claim cannot salvage a case that is otherwise moot, as illustrated by similar decisions in other circuits, which support the interpretation that claims for legally unavailable relief cannot prevent mootness.
The case discusses the concept of mootness in legal claims, particularly in the context of seeking injunctions versus damages. The court cites previous cases, such as *Arizonans*, where claims were deemed moot because the appellants focused only on injunctions and did not seek damages. In *Thomas R.W.*, a reimbursement claim introduced late in the appellate process was dismissed as insufficient to prevent mootness. Similarly, *Fox* rejected adding a nominal damages claim to avoid mootness when it was not originally mentioned in the complaint. However, in the case at hand, Mr. Baca has consistently pursued both prospective relief (injunction) and retrospective relief (nominal damages). The court notes that, unlike the claims in *Arizonans*, there has been no change in the status of the parties since the complaint was filed.
A critical point raised is a flaw in Mr. Baca's § 1983 claim, as the Department is not considered a "person" under the statute, according to *Will*. Despite this flaw, the Department did not raise this argument initially and waived it in supplemental briefing. Assuming Mr. Baca meets other requirements of his claim, he could succeed and be entitled to nominal damages. The court acknowledges that a claim for nominal damages can survive mootness even when prospective relief is unavailable. Although the challenged conduct is historical and will not recur, the amended Ordinance's constitutionality must still be determined, despite the plaintiff admitting no compensable injury. The dissent argues that the lack of a remedy renders the claim moot, but the majority disagrees, emphasizing that Mr. Baca is entitled to seek nominal damages of $1, especially since the Department waived its Eleventh Amendment immunity in this case.
Mr. Baca is entitled to nominal damages if he succeeds on the merits of his claim, indicating a remedy exists. The dissent’s reasoning improperly raises a personhood argument that the Department waived. The mootness analysis does not hinge on the merits of the personhood argument and assumes Mr. Baca will receive the requested relief while assessing if that relief can address his injury. The dissent asserts that Mr. Baca failed to sufficiently allege subject-matter jurisdiction and that nominal damages are unavailable, referencing Lapides v. Board of Regents. However, the court maintains that Mr. Baca's Section 1983 claim is not so frivolous as to prevent federal jurisdiction under 28 U.S.C. § 1331. The distinction between a lack of substantial federal question jurisdiction and failing to state a claim is emphasized, with the court noting that only claims deemed “wholly insubstantial and frivolous” can affect jurisdiction. Based on established legal standards, a claim can only be dismissed for lack of subject-matter jurisdiction when it is devoid of merit according to prior Supreme Court rulings. Mr. Baca's lawsuit against the Colorado Department of State is not considered insubstantial under these criteria.
Neither a state nor its officials acting in official capacities qualify as "persons" under § 1983, as established by the Supreme Court in Will v. Michigan Department of State Police and reaffirmed in Howlett v. Rose, which confirmed that entities enjoying Eleventh Amendment immunity cannot be sued under § 1983 in federal or state courts. Determining if a department is a "person" under § 1983 hinges on whether it has Eleventh Amendment immunity as an arm of the state, requiring analysis of four factors:
1. The character assigned to the entity under state law to see if it is recognized as a state agency.
2. The autonomy granted to the entity by state law, focusing on state control over it.
3. The entity's financial structure, including state funding and its ability to issue bonds or levy taxes.
4. The primary focus of the entity, whether on local or state affairs, assessed by its function, composition, and purpose.
Moreover, when evaluating financial aspects, it is crucial to determine if a money judgment would affect the state treasury, emphasizing legal liability over indirect financial impacts. Although the parties agree that the Department is not a person under § 1983, the determination of its Eleventh Amendment immunity was not immediately clear from the complaint. Thus, the federal claim is deemed to involve a legitimate federal controversy. Courts typically engage in extensive discussions of the specific department's features when ascertaining its status for § 1983 or Eleventh Amendment purposes, with dismissals based on a lack of personhood under § 1983 being considered decisions on the merits. Relevant case law illustrates this analysis across various departments and jurisdictions, often leading to conclusions about immunity based on statutory interpretations.
The district court granted a Rule 12(b)(6) dismissal, determining that the New Mexico Department of Public Safety and the New Mexico State Police do not qualify as "persons" under 42 U.S.C. § 1983. This aligns with previous cases, including Ross v. Colorado Department of Transportation, where the Colorado Department of Transportation failed to demonstrate entitlement to Eleventh Amendment immunity. Similarly, in Armijo v. New Mexico, the New Mexico Department of Transportation was also found not to be a "person" under § 1983, leading to dismissal for failure to state a claim rather than for lack of subject-matter jurisdiction.
The court noted that for a department to be considered an arm of the state, a thorough analysis must be conducted, considering factors such as state law characterization, autonomy, financial aspects, and whether the department primarily addresses local or state affairs. The complexity of these factors prevents a definitive conclusion that the claims are without merit, thus allowing the court to maintain jurisdiction under 28 U.S.C. § 1331.
Mr. Baca's potential success on his § 1983 claim could entitle him to nominal damages; therefore, the case remains active and not moot. The court also addresses whether to affirm the district court's dismissal based on the department's § 1983 personhood, despite the department waiving this argument. The analysis will continue with a focus on whether the district court's dismissal for failure to state a claim was appropriate, specifically concerning Mr. Baca's removal from office and the nullification of his vote.
The court evaluates whether to affirm the district court's dismissal of Mr. Baca's claim under Federal Rule of Civil Procedure 12(b)(6), specifically considering if the Department qualifies as a "person" under Section 1983. The court adheres to a de novo standard for reviewing dismissal motions, requiring plaintiffs to present plausible claims based on well-pleaded facts. The principle of avoiding constitutional questions suggests that if a nonconstitutional ground is available, it should be considered first. However, the court notes that it will not address nonconstitutional issues that were not raised during earlier proceedings. In this case, the Department's dismissal motion focused solely on constitutional violations related to Article II and the Twelfth Amendment, with no mention of its status as a "person" under Section 1983. Therefore, the court declines to exercise its discretion to affirm the dismissal on that alternative ground, as it was not adequately briefed or argued in the lower courts.
The Department has explicitly waived any argument regarding its status as a "person" under 42 U.S.C. § 1983, thus the court declines to affirm the district court's dismissal of Mr. Baca's claim on that basis. The Department chose to focus solely on federal constitutional issues throughout the litigation. Jurisdictional issues must be raised by the court, yet § 1983 does not address jurisdictional matters; thus, the limitation on claims against "persons" is viewed as nonjurisdictional and treated as a component of a plaintiff's claim for relief. The court also notes that a defendant can forfeit the argument regarding a plaintiff's failure to meet the "person" requirement.
Addressing the merits, Mr. Baca alleges a violation of his constitutional rights under Article II and the Twelfth Amendment due to his removal as an elector for noncompliance with Colorado's vote-binding law. The district court dismissed his claims, asserting that the law merely codifies longstanding practices. Mr. Baca contests this, arguing that electors should retain the discretion to act independently, and that Colorado's actions infringe upon his constitutional rights. To evaluate Mr. Baca's claim under § 1983, the court must first determine whether the constitutional provisions at issue confer a right that is actionable under the statute, which involves assessing if the provision imposes obligations on the government or merely expresses a preference.
The excerpt addresses the legal question of whether the Department violated any constitutional rights conferred by Article II and the Twelfth Amendment regarding presidential electors. The parties did not sufficiently argue whether these constitutional provisions grant a "right" under Section 1983. The court must determine if the states can constitutionally remove a presidential elector during the voting process, particularly in light of an elector not adhering to state law regarding candidate selection. The analysis begins by referencing the relevant constitutional texts and examines Supreme Court precedents, ultimately concluding that the Court has not previously resolved this specific issue. The discussion involves a detailed interpretation of Article II and the Twelfth Amendment, including the historical context of the Electoral College and its practices. The original Constitution established the electoral process for selecting the President, detailing the roles of electors, their voting procedures, and the counting of votes.
The individual with the highest number of electoral votes becomes Vice President, with the Senate choosing from any candidates who tie. Congress regulates the timing of choosing electors and when they cast their votes, maintaining uniformity across the United States. Initially, electors voted for two candidates, resulting in instances like the 1796 election, where President John Adams and Vice President Thomas Jefferson were from opposing parties, and the 1800 election deadlock between Thomas Jefferson and Aaron Burr, which required multiple House votes to resolve. These outcomes prompted the ratification of the Twelfth Amendment in 1804, which mandated separate ballots for President and Vice President, ensuring that at least one candidate is from a different state than the electors. The amendment established procedures for counting votes, determining a majority for election, and stipulating that if the House does not elect a President by March 4, the Vice President assumes the role. Additionally, it confirmed that a candidate ineligible for the presidency cannot serve as Vice President, thereby aiming to prevent ties and political rivalries.
Since 1804, the only amendment affecting the Electoral College is the Twenty-Third Amendment, which grants the District of Columbia electoral votes, treating its designated voters as electors appointed by a state. Limited case law addresses the independence of electors under the Twelfth Amendment or the possibility of their removal for exercising such independence. The Supreme Court has indicated that the Constitution originally recognized elector independence. Historical expectations suggested that electors would exhibit reasonable independence in selecting the chief executive; however, practice revealed that electors often merely reflected the wishes of their appointing authority. The original intent was for electors to be knowledgeable, independent agents, free from state control, similar to U.S. Senators. The Supreme Court has addressed related issues, such as whether a political party can require primary candidates for electors to pledge support for the party's nominee. In a case involving Alabama, the Court noted the lack of specific constitutional guidance on whether a state can allow a party to impose such a requirement on its primary candidates for national electors.
The language of Article II, Section 1 and the Twelfth Amendment does not prohibit political parties from requiring candidates in their primaries to pledge political conformity. The Supreme Court affirmed that a state political party can mandate pledges as part of its electoral process, which falls under the state's authority to determine how to appoint electors, subject to constitutional limits. The Court dismissed the argument that the Twelfth Amendment guarantees electors absolute freedom to vote without pledges, noting that while it requires voting by ballot, it does not prevent electors from pledging their support in advance. The historical context supports the expectation that electors would support party nominees, as many states do not list elector candidates separately on ballots, instead allowing votes for presidential candidates to count for party nominees.
The Court concluded that the requirement for a pledge in a primary does not violate constitutional rights, as candidacy is voluntary, and candidates can choose to comply with party rules. Even if such pledges were deemed unenforceable due to an elector's constitutional freedom, this does not render the primary pledge requirement unconstitutional. The Court's ruling indicates that candidates voluntarily accept obligations when entering the primary process. However, the decision in the case referenced, Ray, did not resolve whether the pledge itself could be legally enforced.
Promises made by candidates for the electoral college may be unenforceable due to a constitutional freedom allowing electors to vote freely. However, this does not render a primary pledge requirement unconstitutional. Mr. Baca contends that Colorado statute 1-4-304(5) was enforced against him, leading to his removal as an elector, which he argues violates the federal Constitution. Unlike the circumstances in Ray, where individuals could become electors without pledging, the Colorado statute mandates compliance for all appointed electors, with no alternative means to appear on the ballot.
The Ray decision allowed states to set qualifications for electors, including requiring pledges in primaries, but did not address the removal of electors or the enforcement of pledges once electors have been appointed. Ray acknowledged the state's authority to appoint electors and the potential for requiring pledges but left unresolved whether such pledges could be enforced post-appointment or if actions against electors who vote contrary to their pledges are permissible.
Thus, the issues raised by Mr. Baca regarding the enforcement of pledges and the removal of electors after they have begun their federal duties are distinct from those in Ray, necessitating further examination of the legal standards applicable to this case, including a review of the supremacy clause beyond just preemption. The interpretation of the Constitution will follow its text as the guiding principle.
The excerpt analyzes constitutional interpretation related to the powers of presidential electors, referencing key Supreme Court cases. It begins with a review of the Census Clause and its historical context, asserting that interpretations of constitutional text should consider governmental practice when non-liberty principles are involved. The Constitution is described as designed for public understanding, using common language rather than technical terms.
Mr. Baca argues for elector discretion under the Constitution and cites the Supremacy Clause as a prohibition against state interference with electors. Conversely, the Department contends that states can bind electors to the popular vote outcome, citing the Tenth Amendment. The analysis begins with the Supremacy Clause to contextualize the dispute, then examines the Tenth Amendment to assess potential state powers over electors.
The conclusion drawn is that the Tenth Amendment does not grant states the authority to bind or remove electors. The Department's claim that the power to appoint electors includes removal or cancellation of votes is rejected. Further examination of Article II and the Twelfth Amendment leads to the conclusion that these provisions do not delegate the power to bind or remove electors to the states. The excerpt emphasizes the principle that constitutional law is supreme over state laws, asserting that state actions must not obstruct federal functions.
In Leser v. Garnett, the Supreme Court ruled that an Ohio constitutional provision requiring a referendum on proposed amendments post-legislative ratification violated Article V of the U.S. Constitution. The Court emphasized that presidential electors perform federal functions under constitutional authority. Mr. Baca claims that the Department, through Secretary Williams, unconstitutionally interfered with his duties as a presidential elector. The Department counters that Baca's assertion of conflict preemption is misplaced since the relevant statute does not conflict with federal objectives and aligns with congressional goals, evidenced by similar statutes for D.C. electors and state discretion in elector appointment controversies.
The Department's view misinterprets the Supremacy Clause, which not only encompasses preemption but also protects federal functions from state control. The analysis must determine if the Constitution allows states to remove electors or nullify their votes. The Department argues that any power regarding electors is reserved to the states under the Tenth Amendment, which holds that powers not delegated to the U.S. or prohibited to the states are reserved for them. However, the Supreme Court has indicated that the Tenth Amendment only reserves powers that existed prior to the Constitution. Thus, the case hinges on whether the Constitution explicitly permits such state actions against presidential electors.
In *U.S. Term Limits, Inc. v. Thornton*, the Supreme Court ruled that states do not have the authority to impose additional qualifications on members of Congress, emphasizing that the right to elect representatives to the National Legislature is derived solely from the Constitution. The Court stated that the Tenth Amendment does not grant states the power to add qualifications to those expressly enumerated in the Constitution, as such power must originate from delegated national sovereignty rather than reserved state powers. The ruling further clarified that states cannot remove or bind presidential electors, as they held no such power prior to the federal Constitution's adoption. The provisions governing federal elections indicate that the Framers intended for powers over the election of federal officers to be delegated to the states, not reserved. Consequently, any state power to remove electors or nullify their votes must be expressly granted by the Constitution. The discussion then shifts to whether the Constitution explicitly allows states to act in this manner, concluding that neither Article II nor the Twelfth Amendment provides states with the power to remove electors or invalidate their votes. Article II does grant states the authority to appoint electors, which the Supreme Court recognizes as an express delegation of power, but it does not imply a corresponding power to remove them.
Mr. Baca argues that while the President has the power to remove subordinate executive officials, this power does not extend to the removal of presidential electors. The court agrees, stating that the state's power to appoint electors does not encompass the ability to remove them as punishment for unusual votes. The state legislature has plenary authority to determine how electors are appointed, but this authority does not include the power to cancel votes after electors have been appointed and are fulfilling their federal roles. The Department's argument, which draws on Myers v. United States to suggest that the power to appoint inherently includes the power to remove, is interpreted more narrowly by the court. While Myers establishes that the power of appointment includes the power of removal, this principle is limited to executive powers and is based on the need for the President to have the ability to manage and remove those who assist in executing government functions. Therefore, the principle does not apply to the appointment and removal of electoral officials.
The executive power granted to the President includes the exclusive authority to remove executive officers, a principle supported by historical precedents and Supreme Court rulings. The mandate for the President to ensure the faithful execution of laws underpins this removal power, which has been understood since 1789 as essential for maintaining accountability of executive officers. Supreme Court cases, particularly Myers and Free Enterprise Fund, affirm that the President holds broad administrative control and must be able to remove subordinates for whom he cannot bear responsibility.
In contrast, the role of presidential electors is distinct; they perform a federal function when casting votes, not merely assisting the states in executing state responsibilities. Consequently, states lack the authority to remove electors or nullify their votes, as neither Article II of the Constitution nor the Twelfth Amendment grants such powers. The states' responsibilities are confined to the appointment of electors, with no further involvement in their actions post-appointment.
The interpretation of Article II and the Twelfth Amendment indicates that presidential electors have the right to vote without state interference. Historical context and the specific language of the Twelfth Amendment support the conclusion that states lack authority over electors after their appointment. Once electors are selected, the Constitution does not assign any further role to states in the election process. The appointment occurs as determined by Congress, and electors are tasked with casting their votes for President and Vice President, compiling distinct lists of those votes, certifying them, and transmitting the results to the President of the Senate. The process is structured to prevent state intervention; states cannot remove electors or void their votes, as the Constitution mandates that all votes cast must be included in the official count sent to the President of the Senate. Furthermore, the Constitution explicitly limits the number of electors per state, prohibiting the appointment of additional electors to alter the voting outcome.
The Constitution allows states to appoint electors but prohibits them from interfering once voting has commenced. States cannot remove an elector, instruct other electors to disregard a removed elector's vote, or appoint a new elector for a replacement vote. Without explicit constitutional delegation, states lack authority over these actions. Furthermore, Mr. Baca argues that the Constitution's language, particularly the terms "elector," "vote," and "ballot," implies that electors have the discretion to vote for President and Vice President. To analyze this, the meanings of these terms as understood at the time of the Constitution's ratification are examined. Contemporaneous dictionary definitions indicate that the framers intended for electors to have discretion when voting. The term "elector" was generally defined as someone with the right to vote for an office, while "vote" was associated with suffrage and expressing a choice.
Definitions of "suffrage," "ballot," and "elector" from historical sources emphasize the right to choose or express an opinion through voting methods, such as using small balls or tickets in private. Various dictionaries, including those by Samuel Johnson and Noah Webster, clarify that "ballot" refers to a mechanism for casting votes without revealing individual choices. The text asserts that this understanding supports the view that appointed electors have the freedom to vote as they wish. Additionally, the use of "elector" in the Constitution reinforces this interpretation, as the term is consistently linked to citizen voters who elect representatives. In Article I, electors are described as having qualifications similar to those of state legislature electors, while the Seventeenth Amendment establishes that Senators are elected by the people, further underscoring the notion of electors as representatives of the electorate's will. The document concludes that the definitions and constitutional references collectively affirm the autonomy of electors in their voting decisions.
Electors, as defined in Article I, Section 2, Clause 1, and the Seventeenth Amendment, possess the discretion to vote freely at the ballot box, a principle fundamental to representative democracy as established by the Constitution. The right to vote for preferred candidates is essential to democracy, and any restrictions undermine representative government. The Constitution prohibits outright denial of voting rights and also protects against ballot manipulation. The consistent use of the term "elector" throughout the Constitution indicates that states cannot remove electors or nullify their votes for not adhering to a pledge to vote based on popular election outcomes. The Twelfth Amendment guarantees presidential electors the right to choose candidates without state interference. Additionally, the Tenth Amendment does not grant states the authority to bind or remove electors, as the electoral college is established by federal law, and no such power is delegated to states under Article II. States' roles are limited to appointing electors, after which electors are constitutionally empowered to exercise their voting discretion. The historical context surrounding the Twelfth Amendment further supports the view that presidential electors should have the freedom to vote according to their judgment.
Electors in each state historically voted for two candidates without distinguishing between President and Vice-President, leading to potential ties that could result in a decision by the House of Representatives. This occurred in the 1800 election when Thomas Jefferson and Aaron Burr each received seventy-three votes, forcing the House to elect Jefferson after thirty-six rounds of voting. The 1796 election illustrated a different issue, where Federalists attempted to manipulate the voting by urging electors to support John Adams and Thomas Pinckney, but many electors disregarded this guidance. Consequently, Adams received seventy-one votes, while Pinckney received fifty-nine, and Jefferson garnered sixty-eight votes, leading to a split-party presidency with Adams (Federalist) as President and Jefferson (Democratic-Republican) as Vice President. The Supreme Court noted that such a situation was "manifestly intolerable," prompting the adoption of the Twelfth Amendment to address these electoral complications, highlighted by the contentious outcomes of the 1796 and 1800 elections. Notably, Samuel Miles, a Pennsylvania elector, cast a vote for Jefferson instead of Adams, despite running on a Federalist ticket, reflecting the complexities of electoral affiliations and commitments during this period.
In the 1796 election, Pennsylvania's process for selecting presidential electors involved a popular vote, but the governor had a limited timeframe to certify the results, even if all votes were not counted. Thirteen out of fifteen Jefferson electors were leading, but due to delays in reporting votes from Greene County, two electors from the Federal and Republican slate, Samuel Miles and Robert Coleman, were declared the winners. Once the Greene County votes were counted, it was evident that all Jefferson electors should have prevailed. The two excluded Jefferson electors sought to cast their votes but were denied. Eventually, Miles voted for Jefferson despite backlash from constituents who felt he should adhere to the majority's will. This incident highlighted the expectation that electors would not act independently, particularly in relation to the vote for John Adams. The Twelfth Amendment, which modified the voting process to allow separate ballots for President and Vice President, did not address or restrict the electors' discretion in their voting. It maintained the original Constitution's language regarding electors and ballots and lacked provisions for state-imposed restrictions on electors' votes. This historical context indicates that states cannot interfere with the votes of presidential electors, affirming their constitutional right to exercise discretion. The district court's dismissal of a related case emphasized the practice of electors aligning with the public's will, but the Department's appeal suggests a misunderstanding of these practices, arguing that Colorado's removal of an elector did not violate the Constitution. However, the pledge requirement and reliance on historical practices do not negate the constitutional rights of electors to vote independently.
The Supreme Court's decision in Ray establishes that there is a longstanding interpretation of the constitutional appropriateness of implied or oral pledges of electoral votes by electors, with a historical expectation for electors to support party nominees. Despite acknowledging historical practices where electors generally honor their pledges, it is emphasized that such practices cannot override constitutional power allocations. Historical records show a precedent for anomalous votes, dating back to 1796, when Elector Samuel Miles voted against his pledge, and Congress counted that vote. Since then, around 166 additional anomalous votes have been counted without congressional objection, with Congress only once debating the validity of an anomalous vote in 1969, ultimately deciding to count it. The most recent instance in the 2016 election saw Congress count thirteen anomalous votes from various states, consistent with historical practices. This continuous counting of anomalous votes argues against states' abilities to enforce elector pledges through removal or nullification of votes. Additionally, the Department's claim that the use of short-form ballots undermines electors' discretion is countered by the notion that voters may not have adequate information about electors' qualifications but generally believe they are voting directly for presidential candidates.
The Department argues that because states have opted for short-form ballots, leading voters to believe they are directly electing presidential and vice-presidential candidates, electors must conform to this belief. However, the Supreme Court has rejected this notion. In *McPherson*, the Court upheld Michigan's law allowing presidential electors to be appointed by state districts, emphasizing the plenary power granted to state legislatures by the Constitution regarding elector appointment. The Court acknowledged a historical evolution towards popular elections but maintained that states retain the constitutional authority to appoint electors in any manner they choose. The Court dismissed arguments that the method of electing electors by district was unconstitutional simply because it diverged from the original intent of the electoral system or public expectation. It asserted that the constitutional power of states endures even if the practical application of that power has changed over time. The Court further emphasized that the Constitution cannot be altered by judicial interpretation without a formal amendment process, reaffirming in a later case that citizens do not have a federal constitutional right to vote for electors unless the state legislature opts for a statewide election.
The document asserts that while citizens in states now vote for Presidential electors, states retain the constitutional power to appoint electors as outlined in Article II. It emphasizes that historical practices or policies cannot limit the constitutional authority granted, referencing the McPherson case to illustrate that electors' exercise of discretion in voting does not invalidate their role, even if they deviate from pledges. Historical practices, including the use of short-form ballots and the general compliance of electors with pledges, do not undermine the conclusion that states cannot remove electors or invalidate their votes based on noncompliance with state laws. The discussion incorporates authoritative sources, such as the Federalist Papers and Justice Story's Commentaries, reinforcing the view that the Constitution prohibits state interference with electors performing their federal duties. Alexander Hamilton's insights in Federalist No. 68 are highlighted, explaining the rationale behind the electoral college, emphasizing the need for a selection process that mitigates the risks of corruption and foreign influence by empowering electors chosen specifically for their discernment and judgment.
The excerpt outlines the constitutional framework for the selection of the President of the United States, emphasizing the role of electors chosen directly by the people. It asserts that the Constitution excludes individuals with potential biases—such as sitting senators and representatives—from serving as electors, ensuring that those tasked with the election are free from undue influence. The text highlights that electors are to be a small, knowledgeable group, selected for their ability to assess the qualifications necessary for the presidency, thus facilitating a careful and deliberate decision-making process.
The excerpt also references Federalist No. 68, attributing to Alexander Hamilton the understanding that electors should operate independently, without being bound by a preestablished body. This independence is meant to prevent manipulation and ensure that the election reflects the will of the people. Furthermore, Hamilton's Federalist No. 60 illustrates that different branches of government would be elected through varying methods, reinforcing the distinct role of electors in the presidential selection process. John Jay similarly emphasizes that the president is chosen by select groups of electors appointed explicitly for that purpose, further supporting the notion that the electoral process is designed to prevent conflicts of interest and promote a fair election.
Electors are expected to be enlightened and respectable citizens who exercise their judgment in selecting distinguished candidates for the presidency, contrary to the Department's assertion that they are mere functionaries bound to vote according to state directives. This understanding aligns with Hamilton's views in Federalist 68 and Jay's in Federalist 64, which emphasize the electors' role as independent decision-makers. Justice Story's Commentaries on the Constitution further illustrate this point, highlighting that the framers envisioned electors acting independently, a view that has been undermined by current practices where electors are often pledged to specific candidates. Story criticizes this trend, noting it frustrates the original intent of the Constitution and the expectations of the public. He does not endorse the practice of electors publicly pledging their votes, suggesting that it compromises their constitutional authority. The issue at hand concerns the powers of electors rather than policy implications, as delineated in McPherson.
The excerpt outlines the interpretation of the constitutional role of presidential electors, emphasizing that their discretion to vote is protected by the Constitution. It asserts that the written law cannot be invalidated by the actions of electors exercising their powers in a specific manner, as highlighted in historical commentaries by Justice Story and the Federalist Papers. Despite the Department's claim of conflicting historical opinions about the role of electors, it fails to provide contemporaneous evidence contradicting the understanding that electors have discretion in their voting. The excerpt asserts that, while states may require electors to pledge their votes, they lack the authority to remove electors or nullify their votes once voting has commenced. It argues that the electors' voting is a federal function, which transcends state-imposed limitations. The Constitution, particularly Article II and the Twelfth Amendment, grants electors the right to vote independently for presidential candidates without state interference. Furthermore, the states' authority is limited to appointing electors, and they have no subsequent role in the voting process, which is governed by detailed constitutional procedures.
Electors who violate state pledges to vote for the winners of the popular election cannot be removed or have their votes nullified under the federal Constitution, as there is no explicit authority for states to interfere with electors' discretion in voting for President and Vice President. Secretary Williams unlawfully removed Mr. Baca and nullified his vote, violating his constitutional rights, thus allowing Mr. Baca to claim relief and nominal damages. The district court's dismissal of claims by Ms. Baca and Mr. Nemanich was affirmed due to lack of standing, while Mr. Baca's claim was reversed and remanded for further proceedings. The Department's mistaken assertion regarding Mr. Baca's appointment was later corrected. Typically, motions to dismiss under rule 12(b)(6) rely solely on the complaint, but judicial notice may be taken of relevant public records. The court did not address the constitutionality of specific state provisions, as it was not raised on appeal. The court emphasized that states cannot indirectly remove electors through statutes if direct removal is unconstitutional. By stipulation, the Department waived immunity claims, and the Presidential Electors limited their damages to nominal amounts, waiving attorney fees. The standing issue was previously determined in Baca I, but only based on the preliminary record and specific claims for relief.
The district court's assessment of standing must be revisited for each elector and claim for relief. The Department references a footnote from *City of Hugo v. Nichols* which indicates that the political subdivision standing doctrine applies to state officials suing the state, clarifying that political subdivisions cannot sue state officials in their official capacities. Mr. Baca, the only Presidential Elector who faced removal for voting in violation of state law, is the sole potential plaintiff who could demonstrate standing for prospective relief due to ongoing adverse effects from prior enforcement. However, he has not claimed any such continuing adverse effects, negating this basis for standing. Allegations of future intentions by the Presidential Electors to vote against the popular vote are deemed speculative and insufficient to establish a credible threat of prosecution. Moreover, a new claim in the reply brief about Mr. Baca's prior investigation expenses is not considered since it was not included in the original complaint. The distinction made in prior cases regarding standing based on personal stakes of individual board members is noted, but the court declines to resolve whether a sufficiently large group of legislators could assert an institutional injury in this context.
The Supreme Court has previously indicated that a school board member aiming to safeguard the effectiveness of their vote must pursue a "mandamus or like remedy," as established in Bender v. Williamsport Area School District. Additionally, the Court acknowledged that an institution can seek prospective relief against a law that would nullify its effective vote, as noted in Ariz. State Legislature v. Ariz. Independent Redistricting Commission. In the context of the Presidential Electors, it is highlighted that they constitute only three of Colorado's nine electors without arguing that a majority is necessary for institutional action. The dissent references Lexmark International, Inc. v. Static Control Components, Inc. to support the notion that causes of action not recognized by Congress cannot be acknowledged. However, Lexmark's comments were specific to statutory standing, and the Court has permitted waivers of statutory limitations in other instances, such as in Arbaugh v. Y&H Corp. concerning Title VII claims. The Presidential Electors' motion to amend their Second Amended Complaint to assert a constitutional claim rather than a § 1983 claim was denied as moot, with the court finding no jurisdictional defect. Furthermore, the Department's argument that Article II and the Twelfth Amendment are not enforceable under § 1983 was deemed insufficiently briefed and thus waived. The term "Electoral College," while not explicitly stated in the Constitution, refers to the presidential electors defined in Article II, Section 1. The document explains that electors who vote against the appointing power's wishes are traditionally called "faithless electors," though some now prefer "anomalous electors" to avoid negative connotations. Lastly, it is noted that the Supremacy Clause does not, by itself, create rights enforceable under § 1983, as established in Golden State Transit Corp. v. City of L.A.
The Supremacy Clause frames the analysis of the rights of presidential electors and states. The Constitution's XXIII Amendment allows the District of Columbia to appoint electors as directed by Congress, and these electors are treated as state electors for presidential elections. The Department argues that a statute binding D.C. electors to the popular vote aligns with Congress's intent, suggesting that such vote-binding provisions do not conflict with the Supremacy Clause. However, this interpretation contradicts the Constitution, which limits Congressional authority to its constitutional powers, rather than allowing Congressional actions to define state powers. Mr. Baca contends that mandating electors to vote for the popular vote winner adds unconstitutional requirements for electors and for the presidency, referencing U.S. Term Limits, Inc. v. Thornton. The conclusion is that the Constitution does not grant states the power to remove electors beyond the specified constitutional grounds, negating the need to determine if Baca's removal was unconstitutional due to additional qualifications. The appointment of a replacement Senator by the state executive illustrates that while states can fill vacancies, they cannot disrupt federal operations or nullify federal votes. State powers must not violate explicit constitutional provisions, including the discretion granted to electors in casting votes and the requirement to submit these votes to the Senate, thus prohibiting any state action that undermines these constitutional mandates.
The Department's arguments primarily address whether the Twelfth Amendment restricts states from binding electors' votes, removing them, or discarding their votes, suggesting that the Tenth Amendment does not grant states authority over electors. States can only interfere with electors’ federal functions if the Constitution explicitly delegates such power to them. For understanding the language of the time, several authoritative dictionaries from 1750-1800 are identified, with Noah Webster's 1806 dictionary being particularly relevant since the Twelfth Amendment was adopted in 1804. Definitions of "suffrage" include various interpretations of voting and expression of approval. The dispute over whether the Constitution mandates secret ballots is deemed unnecessary to resolve, as definitions indicate that ballots reflect choice regardless of their public disclosure. Constitutional limits exist: electors must follow specific mandates regarding their votes and qualifications for presidential candidates. The Supreme Court has upheld state laws regulating election processes under Article I, Section 4, which govern elections without imposing additional qualifications for candidates, thus serving to maintain election integrity while not excluding candidates based on their electoral support.
The Constitution does not grant states the authority to regulate the time, place, and manner of electors voting for President and Vice President; this responsibility lies with Congress, as specified in Article I, Section 4. The states possess less power under the Twelfth Amendment regarding presidential elections compared to elections for Senators and Congresspersons. Mr. Nemanich, an elector, initially pledged to vote for Bernie Sanders but was later required to take an oath to vote for Hillary Clinton, which he complied with, thus violating his pledge. The Washington Supreme Court upheld fines against faithless electors in a related case, In re Guerra, although the legal issues differ significantly from whether a state can remove an elector after voting has begun. Historical perspectives indicate that electors were intended to exercise independent judgment, despite practical practices that have constrained this independence. The Constitution does not explicitly require electors to vote according to state directives; however, further inquiry into historical documents and interpretations, including the Federalist Papers and Justice Story’s Commentaries, suggests that electors were meant to make informed choices. The text of Article II and the Twelfth Amendment reflects that the founding fathers did not ultimately favor direct popular election of the President. The document concludes by noting that the parties have not addressed certain elements of Mr. Baca's claim, which the district court will need to resolve.
