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."

NEXT: "This decision will undoubtedly go down as one of the most blatant examples of judicial activism in" the Wisconsin Supreme Court's "history"

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  1. What would be a case where there are damages though for a faithless elector whose vote is changed by the state. There's only one I can think of (if this doesn't fit).

    That's the case where a faithless elector votes, and the state changes the vote to change the result of a Presidential Election. Then the candidate who lost the election, because the state changed the elector's vote, would have a clear case for damages.

    If the court was to answer that question NOW, it would avoid the court stepping into a potentially extremely politically charged decision. They could have their previous decision on the books, in the absence of the election, and just point to that.

    1. Agreed. If *any* case is right for advisory opinions, it's something like this--where a future presidential election could turn on how this court decides this issue, and where it would be MORONIC to expect a future Sup. Ct to hear this future case quickly and--at the same time--give it full and unbiased attention. The extra benefit of deciding it now is that it would remove the "Sup. Ct is filled with partisan whores" argument that the losing side would undoubtedly scream. I don't care how this particular case is decided, now. It would be terrible to deliberately refuse to resolve this issue, since the court would deliberately be saying, "It's fine to wait, and settle this at some future point where our nation is in electoral crisis."

      (By the way; how many justices voted to grant cert in this case? I am assuming that the justices highlighted in this OP votes to refuse cert, for the reason(s) they articulated...is that correct?)

  2. Prof. Blackman, I had the same thought when listening to those questions. I also felt the CA10 dissent had the better of it at the time that decision came down. But my assumption had been that SCOTUS only took the pair of cases because the CA10 decision created a "circuit" (inter-jurisdictional? sorry, don't know the preferred term here) split with WASC. If that's right, then it would seem pointless to DIG only Colorado, because that undermines the only reason for granting Washington in the first place. And similarly, if they proceed with Washington regardless, then why even bother to DIG Colorado. The merits issue will still be decided. But your point about a possible messy opinion in Colorado with one justice recused and two unwilling to address the merits is well taken of course.

    All the above aside, and Justice K.'s (and others') "chaos" (Kaos?) theory notwithstanding, I'm still pretty skeptical of there being any practical impact on this or any other election, no matter the outcome on the merits.

  3. With regard to RBGs comment about standing - Baca made his decision because he wanted publicity for his view and he got it. It's hard to see how any stigma or negative consequences attached.

    1. Suppose you go to the polls and are denied your right to vote for Congress. What stigma or other negative consequences attach to that? One could argue you’ve lost nothing personally by having the office of congressional elector taken from you in a manner you claim is unfair or contrary to law.

      Why should you have standing?

  4. Mr. Baca’s lawyer may have made a grave mistake by suing the department of state instead of the secretary of state, and the court is entitled to dismiss the case given that the statute doesn’t permit suing a state, even if Colorado waives the issue.

    On standing, however, I think Mr. Baca clearly has standing. Standing presumes a plaintiff’s legal theory is correct unless it is obviously frivolous. And the fact that a circuit court of appeals and notable legal scholars are arguing Baca’s position makes it clearly non-frivolous. Several justice refereed to it as a close case.

    Imagine a state passed a law requiring senatorial electors to pledge to vote for a particular candidate and refused to accept any votes cast for anyone else. Would senatorial electors who wanted to vote for someone else have standing to sue? Obviously.

    What makes this case different? It may turn out different on the merits. But for standing purposes, Bacca is claiming that once he was appointed a presidential elector, the constitutes gave him a right to exercise his independent judgment in deciding who to vote for, a right similar to that possessed by electors in congressional elections.

    His legal theory may be wrong. But it is non-frivolous, and if valid means a valuable constitutional right has been taken away. This, even without the $5 per diem, clearly gives him voter standing to sue.

  5. A topic I’d suggest one of the Conspirators post about: the partially advisory popular ballot.

    Both Washington and Colorado initially argued that if a popular ballot was used at all, it had to drive the result. On questioning, they stepped back. They conceded a state could have a completely advisory ballot, whose purpose was to inform the electors but not to control their decision.

    But what about a partially advisory ballot? So long as no changes to the popular ballot are made, any addtions to the pledges asked of electors could be characterized as input from the legislature in informing electors’ choices. And since legislatures can appoint the electors themselves, with complete input, why can’t they have partial input? A pledge not to support a candidate who doesn’t visit the state, disclose tax returns, etc. has nothing to do with the choices voters make in the popular ballot. It only affects the choices electors make in the electoral ballot. What makes it different from any other pledge?

    I don’t see anything that prevents a legislature from setting up a hybrid process in which electors have input from both the voters and the legislature in helping inform their choices. Both set sets of input get with solemnity, and with an expectation that they will be binding. But under Baca’s theory, both sets of input would control the choice of who can be an elector, but do not control how the elector once appointed ultimately votes.

    Sure the Supreme Court has said that if the legislature holds a popular ballot, it can’t control who can be on the ballot or how voters can vote. But we’re not talking about that. We’re talking about the pledges electors make, not Who appears on the ballot or how the voters vote. To the extent voters vote for someone who does something an elector has pledged not to support, this does not make them disqualified from being considered. They appear on the ballot same as everyone else. The fact that electors who obey their pledges nonetheless don’t vote for them merely reflects that electors are appointed in a manner only partially, not completely, related to the popular ballot results. The ballot is partially advisory. And how the electors actually vote need not be related at all. And needn’t be related to the legislatures’ wishes either. Electors can vote for someone who violates a pledged legislative condition just as they can vote for someone who violates the wishes of the popular-ballot voters.

    And if they are selected by their party, it is probably more likely in practice that they will vote for their party nominee regardless of not visiting the state, disclosing tax returns, etc., than that they will vote for someone who isn’t their party’s nominee. They are more likely to be faithless to the legislature’s input than to the voters’.

    1. In short, I agree with Justice Kagan’s question. If “adding to the qualifications for president is something that applies to what electors promise and not solely to popular ballot voters, then requiring that electors pledge to vote only for a candidate who gets the most popular-ballot votes is as much an unconstitutional addition to the qualifications for president as requiring them to pledge to vote only for a candidate who visits the state, discloses tax returns, etc.

      The solution is to interpret the line of “adding to the presidential qualifications” cases as applying only to who can go on a popular ballot, and not relevant to the content of the pledges electors have to make, over which legislatures retain plenary control. After all, legislatures retain the power not to have a popular ballot at all and instead select electors pledged fo support the candidate the legislature votes for.

  6. I'd still like to hear some comment on the idea that counting the electoral votes - including making decisions on who got what votes - is up to Congress, and Congress has already certified the election.

    To subject an elector to criminal charges for voting wrong seems to assume that it's up to the courts, not Congress, to decide if an elector's vote was legitimately cast.

    I think this raises the question - should the courts (state or federal) be able to challenge or in any way call into question Congress's certification of the electoral count?

    1. So this poses a meta-question which precedes the faithless elector question - what business does anyone *except* Congress have in deciding what the electoral vote count is?

      1. That's an interesting point. And a pretty persuasive one. But what if Congress decided, in a close election, to not count Black elector votes? (Or, to avoid possible 13th and 14th Amendment issues, to not count the votes of Freemasons, or left-handed people, or [pick your favorite not-Constitutionally-protected class of people]? We all agree that doing this would be horrific and lead to a great deal of harm. But if Congress really does have that much power in terms of counting or ignoring electoral votes, then it really seems like the party in power could change the results of any relatively-close election, no?

  7. I support a Constitutional amendment doing away with standing. As illustrated here, its a way for Courts to avoid doing their job.

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