The Volokh Conspiracy

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Volokh Conspiracy

What happened in Colorado Department of State v. Baca?

The Supreme Court papered over important differences between the Washington and Colorado cases.


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:

In Colorado, however, plaintiffs faced several challenges. Were their claims moot? Could they sue a state under Section 1983—or, really, could the state waive this argument when sued for damages?

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.

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  1. I noticed this and that there were key differences between the cases.

    The nuts and bolts are this.

    The Washington case was whether or not a state could hold a faithless elector liable for damages for failing to cast the vote as he or she pledged. This struck me as quite reasonable, a contract between parties, with a clear penalty for failing to complete the contract. If an elector had a clear goal, and believed the candidate was poor, they could choose to be faithless and accept the penalty.

    The Colorado case was different. Rather than a simple penalty, it enabled Colorado to remove the elector's vote completely, seemingly after it was cast, and replace the elector with a new one. That struck me

    It effectively nullifies the elector completely, unless the state legislature disagrees. Furthermore, it's not clear that the state legislature couldn't disagree, even if the elector voted for the candidate who won the popular vote.

    1. There is no popular vote, and the sooner people get that through their heads the clearer it all becomes. But yes, the Colorado case should have been addressed seperately.

  2. Josh,
    Thanks for the summary.
    Note: In the speed to get the post out promptly; there are a number of typos. A 5-minute edit might not be out of order. 🙂

  3. "The asserted injuries were very different."

    Once the court has decided that the states can direct how the electors vote as they see fit, how much do the differences in the asserted injuries matter?

    Sure, if the electors had one, the different injuries would have called for different remedies.

    However, the court decided that they were not entitled to any remedy.

  4. Perhaps the explanation is that the Justices wanted vacations.

    Does going through all the ceremonial legalese really matter anyway? It’s not like anything they would have said in would have made any difference to the result. Why bother?

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