The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
In May, 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 the latter case.
Yesterday, the Supreme Court decided both cases. In Chiafalo, Justice Kagan wrote a majority opinion for eight Justices. Justice Thomas concurred in judgment, joined by Justice Gorsuch. Baca, however, yielded a one sentence per curiam order:
The judgment of the United States Court of Appeals for the Tenth Circuit is reversed for the reasons stated in Chiafalo v. Washington.
Huh? There were important differences between the cases. In Washington, the electors were actually fined. In Colorado, the electors were not punished; rather, their votes were not countered. The asserted injuries were very different. Derek Muller pointed out several other distinctions:
At oral argument in Baca, Justice Stephen Breyer in particular with concerned about these procedural wrinkles in the Colorado case. Justice Samuel Alito and Neil Gorsuch also raised versions of such concerns.
I don't see how Chiafalo can resolve Baca. Here, the Court simply papered over a far more difficult case. They punted.
Another mystery. Baca included a notion that Justice Thomas concurred in judgment:
JUSTICE THOMAS concurs in the judgment for the reasons stated in his separate opinion in Chiafalo v. Washington.
But what about Justice Gorsuch? He joined Justice Thomas's concurrence in Chiafalo. Did Justice Gorsuch think the precise facts of Baca yielded a different answer?
With per curiam opinions, the Justices are not obligated to note their dissents. Justice Ginsburg explained this dynamic in the context of the death penalty:
Ginsburg cautioned not to read too much into the absence of public dissent when the court rejects 11th-hour appeals to stop executions. "When a stay is denied, it doesn't mean we are in fact unanimous," she said.
Justices Breyer and Gorsuch may have found that the case was not justiciable--they hinted as much during oral arguments. But they failed to note their dissents. If so, the majority opinion in Baca would have consisted of only five members: Roberts, Ginsburg, Alito, Kagan, and Kavanaguh. No wonder the Court had to paper over these difficulties with the per curiam reversal.