Will the Supreme Court DIG Colorado Department of State v. Baca?

Justice Breyer and Gorsuch were annoyed by this "manufactured litigation."

Yesterday, the Supreme Court heard oral argument in two faithless elector cases. First, Chiafalo v. Washington arose from a criminal prosecution; the state imposed a $1,000 fine against a faithless elector. Second, Colorado Department of State v. Baca arose from a civil suit; the faithless electors sued the state for not counting their votes. (Justice Sotomayor recused from this case.) The former case does not present any standing questions; the state sought to directly punish electors. The latter case does present a jurisdictional standing question: is there a cognizable injury?

Justice Ginsburg hinted at one ground of an Article III injury: stigma.

JUSTICE GINSBURG: Returning to the standing question, Baca was removed from his post. Isn't that a stigma at least? Why isn't it --it may --may not have economic consequences, but isn't it a blot on his reputation? And --and wouldn't that constitute a cognizable injury?

I don't have any strong opinions on whether Article III standing is present in Baca. But there is another, non-jurisdictional problem. Baca sued a state under Section 1983. Section 1983 permits suits against persons; but it does not permit suits against states. Usually, the state would move to dismiss such a suit on those grounds. But–for reasons I don't fully understand–Colorado has waived that argument.

Justice Breyer seemed very annoyed by this decision:

JUSTICE BREYER: Good morning. A technical question. The --this is a lawsuit brought against you, the State, under Section 1983. The court's opinions, I take it, have made clear that a State isn't a person under 1983.

Now everybody's waived that argument. Both sides would like us to rule. But can they? If someone sues a foreign country under 1983, and a foreign country can't be a defendant under 1983, can the party simply get an opinion from this Court by waiving the question?

Weiser, the Colorado AG replied:

MR. WEISER: What we're dealing with here, both under Section 1983 and Eleventh Amendment immunity, is strategic decisions made by our state in the course of litigation.

We made those decisions because we wanted to litigate this case on the merits. We believe we have a case on the merits and standing. And that's how we've chosen to proceed.

Breyer suggested that this case could amount to an advisory opinion:

JUSTICE BREYER: Well, yes, but that isn't my question. My question is, of course, you want a decision from this Court. But Mr. Smith might want a decision about how the Constitution applies to someone in Mexico or to someone in Russia.

I mean, can the parties get that advisory decision by simply saying: Oh, we waive all the jurisdictional problems or all the non-jurisdictional problems, all the problems that say this statute doesn't apply?

Weiser maintained that the state's decision was "strategic," and the Court does not have rule on the 1983 issue:

MR. WEISER: Justice Breyer, this Court will opt for whatever ground it chooses. With respect to whether the Court has to rule on this issue, the answer is no. This is not a jurisdictional question. For us, this was one of several strategic questions on what grounds to litigate.

Justice Breyer returned to this theme during his colloquy with Jason Harrow, Lessig's co-counsel:

JUSTICE BREYER: Thank you.  To go back to the technical point, you brought a suit under 1983 and –against a state. And it's fairly clear in the case law that you can't sue a state under 1983. What are we supposed to do about that?

MR. HARROW: Your –Your Honor, I'll echo what Attorney General Weiser said, which is that it's –and, indeed, I'll cite to the Court's opinion just last week in the Sineneng-Smith case, when the Court said that the courts' job is to resolve disputes as framed by the parties. And so the only way that the Court should look at that issue is if it's jurisdictional. And as Attorney General Weiser said, it's not.

I don't think Sineneng-Smith is on point. There, Judge Reinhardt hijacked a case and transformed the theory of First Amendment liability. But adversity was present at every stage. The government simply contested the defendant's new argument. Here, there is a plain and obvious 1983 problem. Both parties want to maintain the case to get a ruling on the merits. There is not adversity; there is complicity.

Breyer asked again about waiver.

JUSTICE BREYER: The problem that I view is that then any two people, a plaintiff and defendant, who would like an issue decided by us, simply have to waive enough matters so that it has to come before us because it's not jurisdictional. They interpret the statutes differently. They do whatever they have to do. What are we supposed to do about that?

MR. HARROW: Your Honor, I don't think this case implements something like that because this case is one that courts surely could hear. It was initially brought individually against the Secretary of State through a compromise that involved the plaintiffs giving up a right to attorneys' fees and other accommodations. It was somewhat reframed in order to be brought against the Department of State.

I don't fully understand the posture of the case, but Harrow did not contest Breyer's general point about 1983.

Later in the argument, Justice Gorsuch pinned Harrow on this same point. He described the case as "manufactured litigation."

MR. HARROW: Justice Gorsuch, it's even less, it's one dollar in nominal damages.

JUSTICE GORSUCH: One dollar. So it's a one dollar nominal damages. And –and why -why should we exercise our discretion to hear this case when the nominal damages are one dollar, you didn't seek Congress to count his vote, though as you point out, it's unclear whether there's a mechanism to do so, and we have a cause of action that doesn't exist based –that –that –that we are asked to overlook because of a stipulation by the parties?

Why isn't that a sort of manufactured litigation that this Court should –should decline its –should –should –should bother with, with using its discretion whether to decide a case?

I do not think parties can ask the Court to overlook the absence of a cause of action. Such an issue cannot be stipulated to. Harrow responded.

MR. HARROW: Justice Gorsuch, because once there is jurisdiction –and again, I'll just emphasize that the question of –of whether –

JUSTICE GORSUCH: I'm accepting there's jurisdiction, counsel, but this Court has discretion over what to entertain. And it also has some –some authority to emphasize the importance of –of the adversarial process and its proper uses.

I agree with Justices Breyer and Gorsuch. The Court should not entertain issues with obvious, non-jurisdictional defects, simply because the parties want a ruling on the merits.

Perhaps the remedy is to simply DIG the Colorado Case. (DIG refers to "dismiss as improvidently granted"). Indeed, Justice Sotomayor is recused in this case, so the Court would be shorthanded anyway. At a maximum, there are only six Justices in Baca who seemed comfortable reaching the merits–not a good slate to write on if this case is sharply divided.

But there is another wrinkle. Colorado raised the 10th Amendment as a defense. Washington waived it. (See Derek Muller's post). Sticking with the Washington case potentially eliminates one of the grounds to rule.

What a mess. I really, really hope the Court doesn't try to decide this case in seven weeks by the end of June. That arbitrary deadline no longer makes sense; the Justices are not jetting off to Europe for summer vacation. Take your time and get this issue right. It is too important to rush. But a DIG in the Colorado case would send an important message about "manufactured litigation."