Lead Opinion
TABLE OF CONTENTS
I. INTRODUCTION ... 901
II. BACKGROUND ... 902
A. Legal Background ... 902
B. Factual History ... 902
C. Procedural History ... 904
III. DISCUSSION PART ONE: STANDING ... 905
A. Standard of Review and Burden of Proof ... 905
B. Political Subdivision Standing Doctrine ... 906
1. Legal Background ... 906
2. Application ... 906
C. General Standing Principles ... 908
1. Injury in Fact ... 908
a. Personal versus official interest ... 909
b. Prospective versus retrospective relief ... 909
i. Legal background ... 909
ii. Application ... 911
2) Retrospective relief ... 912
a) Mr. Baca's removal from office and referral for prosecution ... 914
b) Threats against Ms. Baca and Mr. Nemanich ... 915
c. Legislator standing ... 917
i. Legal background ... 917
ii. Application ... 920
2. Traceability and Redressability ... 921
IV. DISCUSSION PART TWO: MOOTNESS ... 922
V. DISCUSSION PART THREE: FAILURE TO STATE A CLAIM ... 928
A. Standard of Review ... 928
B. "Person" Under § 1983 ... 928
C. Constitutional Violation ... 930
1. The Federal Constitution ... 931
2. Legal Precedent ... 933
3. Framing the Question ... 936
a. Supremacy clause ... 937
b. Tenth Amendment ... 938
4. Constitutional Text ... 939
a. Appointment power ... 939
b. Article II and the Twelfth Amendment ... 942
i. Role of the states after appointment 84 ... 942
ii. Use of "elector," "vote," and "ballot" ... 943
1) Contemporaneous dictionary definitions ... 943
2) Use of "elector" in the Constitution ... 945
5. Enactment of the Twelfth Amendment ... 947
6. Historical Practices ... 949
a. Elector pledges ... 949
b. Short-form ballots ... 950
7. Authoritative Sources ... 952
VI. CONCLUSION ... 956
I. INTRODUCTION
Micheal Baca, Polly Baca, and Robert Nemanich (collectively, the Presidential Electors) were appointed as three of Colorado's nine presidential electors for the 2016 general election. Colorado law requires the state's presidential electors to cast their votes for the winner of the popular vote in the state for President and Vice President. Although Colorado law required the Presidential Electors to cast their votes for Hillary Clinton, Mr. Baca cast his vote for John Kasich. In response, Colorado's Secretary of State removed Mr. Baca as an elector and discarded his vote. The state then replaced Mr. Baca with an elector who cast her vote for Hillary Clinton. After witnessing Mr. Baca's removal from office, Ms. Baca and Mr. Nemanich voted for Hillary Clinton despite their desire to vote for John Kasich.
After the vote, the Presidential Electors sued the Colorado Department of State (the Department), alleging a violation of
We conclude Mr. Baca has standing to challenge his personal injury-removal from office and cancellation of his vote-but that none of the Presidential Electors have standing to challenge the institutional injury-a general diminution of their power as electors. Therefore, we AFFIRM the district court's dismissal of Ms. Baca's and Mr. Nemanich's claims under rule 12(b)(1) for lack of standing but REVERSE the district court's standing determination as to Mr. Baca.
II. BACKGROUND
This opinion is divided in three parts. Our analysis begins, as it must, with our power to decide the issues raised by the parties. Thus, the first part of this opinion considers the standing of each of the Presidential Electors with respect to each of their claims for relief. After concluding that only Mr. Baca has standing, we next consider whether this case is moot. Because we conclude this case is not moot, we turn to the final part of our analysis: whether the state acted unconstitutionally in removing Mr. Baca from office, striking his vote for President, and preventing him from casting a vote for Vice President. But before we tackle these separate parts of the analysis, we place our discussion in context by providing a brief legal background and then setting forth a more detailed factual and procedural history.
A. Legal Background
The United States Constitution provides that "[e]ach State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress." U.S. Const. art. II, § 1, cl. 2. These presidential electors convene in their respective states and "vote by [distinct] ballot for President and Vice-President."
Colorado's presidential electors are appointed through the state's general election.
If there is a vacancy "in the office of presidential elector because of death, refusal to act, absence, or other cause, the presidential electors present shall immediately proceed to fill the vacancy in the electoral college."
B. Factual History
In April 2016, Mr. Baca, Ms. Baca, and Mr. Nemanich were nominated as three of the Colorado Democratic Party's presidential electors and, after Hillary Clinton and Tim Kaine won the popular vote in Colorado, were appointed as presidential electors for the state.
In response, Ms. Baca and Mr. Nemanich filed a complaint in the United States District Court for the District of Colorado on December 6, 2016, seeking to enjoin the Secretary from enforcing § 1-4-304(5) on the ground it violated Article II and the Twelfth Amendment to the U.S. Constitution. The district court denied the request for an injunction in an oral ruling on December 12, 2016. Baca v. Hickenlooper , No. 16-cv-02986-WYD-NYW,
In an overlapping lawsuit, Secretary Williams sued Ms. Baca and Mr. Nemanich in Colorado state court, seeking guidance on Colorado's law regarding succession of presidential electors. The state district court determined that a presidential elector's failure to vote for Hillary Clinton and Tim Kaine, as required by § 1-4-304(5), is a "refusal to act" under § 1-4-304(1), and therefore "causes a vacancy in the electoral college." App. at 35. The court further decided that any "vacancy in the electoral college shall be immediately filled by a majority vote of the presidential electors present." Id. The Colorado Supreme Court declined a petition for immediate review of that order.
C. Procedural History
Ms. Baca and Mr. Nemanich voluntarily dismissed their prior case and filed a new complaint, later joined by Mr. Baca, that is the subject of this appeal. The Presidential Electors' Second Amended Complaint asserts a single cause of action under
The Department filed a motion to dismiss the Second Amended Complaint under Federal Rule of Civil Procedure 12(b)(1) for lack of standing and under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim. The district court granted the motion to dismiss on both grounds. First, the district court decided the Presidential Electors lacked standing based on the political subdivision standing doctrine. Second, and in the alternative, the district court concluded the Presidential Electors failed to state a claim upon which relief could be granted because the United States Constitution does not prohibit states from binding electors to vote for the candidate who wins the state's popular vote. The Presidential Electors filed a timely notice of appeal, and we have jurisdiction under
After oral argument in this case, we asked the parties to provide supplemental briefing to address two questions:
1. Whether Will v. Michigan Dept. of State Police ,, 491 U.S. 58 , 109 S.Ct. 2304 (1989), and/or Arizonans for Official English v. Arizona , 105 L.Ed.2d 45 , 520 U.S. 43 , 117 S.Ct. 1055 (1997) : 137 L.Ed.2d 170
(a) impact(s) the district court's jurisdiction to entertain this action; or(b) render(s) this case moot by preventing the district court from awarding nominal damages.
2. Whether this court, assuming jurisdiction, should exercise our discretion to affirm the district court on the alternate ground that the plaintiffs have failed to state a claim upon which relief can be granted because the defendant-the Colorado Department of State-is not a "person" for purposes of liability under42 U.S.C. § 1983 .
Order at 1-2 (July 3, 2019).
The parties filed a joint supplemental response brief acknowledging that the Department is not a "person" for purposes of § 1983. But the parties contend this court's jurisdiction is unaffected. And the Department, "for purposes of this case only, ... expressly waive[d] the argument that it is not a 'person' under § 1983," ostensibly paving the way for the court "to proceed directly to the important issues discussed extensively in the primary briefing." Joint Resp. to Suppl. Briefing Order at 1.
Our discussion of the jurisdictional and merits issues raised in this appeal will proceed in three parts. In Part One, we address whether the Presidential Electors have standing to pursue their claims. Concluding that only Mr. Baca has standing in this case, we proceed to Part Two, in which we discuss whether this case is moot because the Department is not a person under § 1983. Finally, in Part Three, we analyze whether the district court correctly dismissed Mr. Baca's claim under rule 12(b)(6).
III. DISCUSSION PART ONE: STANDING
We turn now to the district court's holding that the Presidential Electors lack standing, thereby depriving the district court, and in turn this court, of jurisdiction. First, we set out the applicable standard of review and the burden of proof. Next, we consider the district court's holding that the Presidential Electors lack standing under the political subdivision standing doctrine. Concluding that doctrine is not applicable here, we turn to whether any of the Presidential Electors can satisfy the general standing requirements of injury in fact, traceability, and redressability. Ultimately, we conclude that only Mr. Baca has satisfied the injury-in-fact prong of Article III standing. In reaching this conclusion, we reject Ms. Baca's and Mr. Nemanich's argument that they fall within a unique rule of legislative standing announced by the Supreme Court in Coleman v. Miller,
A. Standard of Review and Burden of Proof
We review de novo a district court's dismissal for lack of jurisdiction under Federal Rule of Civil Procedure 12(b)(1). Holt v. United States ,
B. Political Subdivision Standing Doctrine
In reaching its conclusion that the Presidential Electors lack standing, the district court relied on the political subdivision standing doctrine. We first elucidate the legal underpinnings of this doctrine and then explain why it is inapplicable here.
1. Legal Background
"Under the doctrine of political subdivision standing, federal courts lack jurisdiction over certain controversies between political subdivisions and their parent states." City of Hugo v. Nichols ,
2. Application
According to the district court, the political subdivision standing doctrine applies to both political subdivisions and to state officials. Because the district court concluded presidential electors are state officials, it also concluded the political subdivision standing doctrine barred the Presidential Electors' standing. The Presidential Electors disagree and argue that presidential electors are not state officials because the "state is not the 'creator' of the office of presidential elector"; rather, "the office is created by the federal Constitution." Presidential Electors' Br. at 17. Thus, they contend the political subdivision doctrine does not preclude standing here. In response, the Department asserts that even if the electors are not "political subdivisions," they lack standing because they are state officials and the doctrine "applies not only to artificial political subdivisions, such as municipalities, but also to state officers who attempt to sue the State to challenge state law." Dep't's Br. at 24. The Presidential Electors have the better side of this argument.
Presidential electors are not political subdivisions or municipalities created
The Department challenges this conclusion, relying on decisions it claims support application of the political subdivision standing doctrine to state officers. But our review of these cases reveals they do not stand for that proposition. Instead, they discuss two different justiciability concerns.
The first concern, discussed in more detail below, is the general proposition that a state official has standing to pursue only a personal, rather than an official, interest. The Supreme Court has long required "the interest of an appellant in this court [to] be a personal, and not an official, interest." Smith v. Indiana ,
As to the second justiciability concern, one of the Department's authorities concludes that jurisdiction is lacking where "state agencies [are] so closely identified with the state government, and so thoroughly controlled by the body they are suing[,] that the litigation amounts to a suit by the state against itself." Donelon ,
The political subdivision standing doctrine has no relevance here because presidential electors are not municipalities or subdivisions of the state. And we need not resolve the parties' dispute over whether the Presidential Electors were state officials because, even if they were, the political subdivision standing doctrine does not apply to state officials. In contrast, the personal interest standing requirement, highlighted by the Department's decisions, is applicable to any official-municipal, state, or federal. See Raines v. Byrd ,
Thus, we turn now to general legal principles to determine whether the Presidential Electors have standing. This analysis necessarily includes review of whether the alleged injury is to a personal or official interest.
C. General Standing Principles
To satisfy Article III standing, the Presidential Electors must show an injury in fact, fairly traceable to the challenged action, that is redressable by the relief sought. Monsanto Co. v. Geertson Seed Farms,
1. Injury in Fact
An injury satisfies the Article III standing requirement only if the injury is " 'concrete and particularized' and 'actual or imminent, not "conjectural" or "hypothetical." ' " Susan B. Anthony List v. Driehaus ,
Here, there are three considerations that inform our analysis of the injury-in-fact requirement: (1) whether the Presidential Electors' interest is personal or official in nature; (2) whether the Presidential Electors seek prospective or retrospective relief; and (3) whether the Presidential Electors have standing as legislators. We address each of these concepts in turn.
a. Personal versus official interest
"The party raising the question of constitutionality and invoking our jurisdiction must be interested in, and affected adversely by, the act, and the interest must by, the decision of the state court be of a personal, and not of an official, nature." Braxton Cty. Court v. West Virginia ,
"[A] public official's 'personal dilemma' in performing official duties that he perceives to be unconstitutional does not generate standing." Thomas ,
Whether the Presidential Electors have asserted a personal or official injury is inextricably intertwined with the question of whether the Presidential Electors have asserted an injury sufficient to support prospective or retrospective relief. Thus, we apply the personal injury requirement to the present facts, together with our application of the limitations on the Presidential Electors' ability to seek prospective or retrospective relief, which we now explain.
b. Prospective versus retrospective relief
As noted, standing is affected by the nature of the relief sought. Thus, we must determine the type of relief requested and whether the Presidential Electors can assert that claim. We begin with a discussion of the relevant law and then we apply those legal principles to the present facts.
i. Legal background
A plaintiff's "standing for retrospective relief may be based on past injuries, whereas ... claims for prospective
Although an injury must usually be imminent, a plaintiff need not wait for the harm to occur before seeking redress. Babbitt v. United Farm Workers Nat'l Union ,
In certain circumstances, a plaintiff can maintain a pre-enforcement suit for declaratory or injunctive relief "challeng[ing] a statute that he claims deters the exercise of his constitutional rights" without "first expos[ing] himself to actual arrest or prosecution." Steffel v. Thompson ,
Therefore, "[w]hen an individual is subject to [a threat of enforcement], an actual arrest, prosecution, or other enforcement action is not a prerequisite to challenging the law." Susan B. Anthony List ,
This requirement applies even when the law at issue has been enforced against the plaintiff in the past. See Dias v. City & Cty. of Denver ,
A plaintiff satisfies the injury-in-fact requirement for retrospective relief if he or she "suffered a past injury that is concrete and particularized." Tandy v. City of Wichita ,
ii. Application
In this case, the Presidential Electors seek three forms of relief: (1) a declaration that § 1-4-304(5) is unconstitutional, (2) a "[f]inding" that the Department violated their "federally protected rights by depriving [Mr.] Baca of his federal right to act as an Elector and by threatening and intimidating" the Presidential Electors, and (3) nominal damages of $1 each. App. at 19.
Although "a declaratory judgment is generally prospective relief," "we consider declaratory relief retrospective to the extent that it is intertwined with a claim for monetary damages that requires us to declare whether a past constitutional violation occurred." PeTA ,
We undertake that analysis now to determine whether the Presidential Electors have asserted an injury in fact entitling them to either type of relief, beginning with their claim for prospective relief and then turning to their claim for retrospective relief.
1) Prospective relief
We first consider whether the Presidential Electors have standing to seek prospective relief in the form of a declaration. The sole question with respect to prospective relief is whether any of the Presidential Electors "allege[ ] 'an intention to engage in a course of conduct arguably affected with a constitutional interest but proscribed by a statute, and [that] there exists a credible threat of prosecution thereunder.' " Susan B. Anthony List ,
Nowhere in the Second Amended Complaint do the Presidential Electors allege an intent to engage in conduct implicated by § 1-4-304(5) in the future or a credible threat of future prosecution. They do not allege an intention to again run for the position of elector or, if appointed, to vote for an individual for President or Vice President who did not win the popular vote in Colorado.
2) Retrospective relief
With respect to the claim for retrospective relief, the district court concluded the Presidential Electors did not have a personal stake in the litigation and were merely asserting an official interest based on "the diminution of power that [§ 1-4-304(5) ] allegedly causes to the electors' official role." App. at 79. We agree that most of the Presidential Electors' complaint alleges official harm to their role as electors.
Specifically, the Presidential Electors allege they were threatened and intimidated "in the exercise of their federally protected rights as presidential Electors ." App. at 8 (emphasis added). They claim § 1-4-304(5) is unconstitutional both "on its face and as applied" because it "infringes on [the Presidential Electors'] right to vote as they see fit without coercion" and its enforcement
Further, even if the individual electors could base standing on harm suffered in their official capacity, such a rule would not provide standing here because they no longer serve in that official position. The Presidential Electors do not contend their roles as electors extend beyond the 2016 electoral college vote. Instead, the Second Amended Complaint alleges solely that each Presidential Elector "was a Democratic Elector for the 2016 presidential election." App. at 9. As the Supreme Court noted in Raines , when plaintiffs allege an injury "solely because they are" in an official role, "[t]he claimed injury ... runs (in a sense) with the [official] seat."
Accordingly, the Presidential Electors can establish standing only by alleging a personal injury. The Presidential Electors contend they have alleged a personal injury here because Mr. Baca "was dismissed as an elector, had his vote invalidated, and then was personally referred ... for criminal investigation and potential prosecution," and Ms. Baca and Mr. Nemanich "were threatened with identical consequences." Presidential Electors' Br. at 23. Our review of the Second Amended Complaint confirms that the Presidential Electors set forth these allegations. See App. at 15 (alleging Secretary Williams
a) Mr. Baca's removal from office and referral for prosecution
The district court held that the Presidential Electors suffered no personal injury as a result of removal or threatened removal from office because the role of a presidential elector does not "confer[ ] any meaningful pecuniary interest or autonomous power" on the elector. App. at 79. The court noted that the electors receive nominal compensation (mileage reimbursement and $5) for attendance at a one-day meeting where they are required to vote for the candidate who won the popular vote in Colorado. Moreover, "[o]nce the meeting is done and the votes are cast, the electors' duties are over. There is no ongoing 'office' or 'job' that the electors have and risk losing." Id. The district court therefore concluded the Presidential Electors had suffered no personal injury that could satisfy the standing requirement. With respect to Mr. Baca, we disagree.
As we discuss below, Mr. Baca has asserted an injury in fact based on the cancellation of his vote for President and the refusal to allow him to cast a vote for Vice President. Mr. Baca has also asserted that he suffered an injury in fact when the Department removed him from his duly-appointed office as a presidential elector. An injury in fact must be actual and concrete, but there is no requirement in standing jurisprudence that the injury involve the loss of a job or office that confers pecuniary interest and ongoing duties. See Vill. of Arlington Heights v. Metro. Hous. Dev. Corp. ,
If the Presidential Electors are correct, presidential electors are constitutionally permitted to exercise discretion in casting one of 538 votes to select the President and Vice President of the United States. Under that interpretation, which we must accept as true for purposes of standing, Mr. Baca's loss of his office-however brief its existence-is an injury in fact. See Raines ,
But Mr. Baca has not alleged an injury in fact with respect to his allegation that Secretary Williams referred him to the Colorado Attorney General for investigation and potential prosecution. To be sure, "a criminal prosecution, even one that is swiftly abandoned, can confer standing." Winsness v. Yocom ,
The Second Amended Complaint is devoid of any allegation that the state prosecuted Mr. Baca criminally as a result of his vote for John Kasich, or that Mr. Baca suffered any injury stemming from Secretary Williams's referral for criminal investigation.
In summary, Mr. Baca has asserted a personal injury sufficient to meet the Article III standing requirement for retrospective relief based on his removal from an office to which he was entitled. But nowhere does the Second Amended Complaint assert an injury caused by his referral for criminal investigation.
b) Threats against Ms. Baca and Mr. Nemanich
We turn now to whether Ms. Baca and Mr. Nemanich have asserted a personal injury in fact for retrospective relief based on threats to remove them from office and refer them for prosecution if they refused to vote for the winners of the popular vote in Colorado. The Presidential Electors contend that Board of Education of Central School District No. 1 v. Allen ,
In Allen , two local boards of education sued to declare a state statute unconstitutional and to bar the commissioner of education from removing the members from office for failing to comply with it.
Appellees do not challenge the standing of appellants to press their claim in this Court. Appellants [the two boards] have taken an oath to support the United States Constitution. Believing [section] 701 to be unconstitutional, they are in the position of having to choose between violating their oath and taking a step-refusal to comply with [section] 701-that would be likely to bring their expulsion from office and also a reduction in state funds for their school districts. There can be no doubt that appellants thus have a "personal stake in the outcome" of this litigation.
Even if the Allen footnote could be read broadly to support the Presidential Electors' standing argument, subsequent decisions from the Supreme Court have limited its reach. See Schlesinger v. Reservists Comm. to Stop the War ,
Here, we need not consider Allen 's continuing vitality because even assuming its footnote remains precedential, Ms. Baca and Mr. Nemanich cannot establish standing to seek retrospective relief based on the threats to remove them from office and refer them for prosecution. In Allen , the petitioners sought prospective relief in the form of an injunction and a declaratory judgment.
Nor can they rely on past threats of enforcement to show an actual injury with respect to retrospective relief because they have failed to argue any actual injury stemming from that threat. See Dias ,
Our unaided review of the Second Amended Complaint reveals a single relevant allegation: based on Secretary Williams "changing the oath and removing [Mr.] Baca," Ms. Baca and Mr. Nemanich "felt intimidated and pressured to vote against their determined judgment." App. at 17. This allegation supports a contention that Ms. Baca and Mr. Nemanich felt unable to exercise what they believe is the full range of discretion in their roles as electors. As with most of the allegations in the complaint, however, this injury impacts only their official function as it is "not claimed in any private capacity but solely because they" were members of the electoral college. Raines ,
c. Legislator standing
The Presidential Electors also claim they fall within a limited exception to the personal injury requirement: legislators, suing as a bloc, have standing to enforce the effectiveness of their votes when their votes were sufficient to defeat or enact legislation. Coleman ,
i. Legal background
The Supreme Court first considered the question of legislator standing in Coleman , where twenty of Kansas's forty Senators who had voted against a resolution ratifying the Child Labor Amendment to the federal Constitution sued to give effect to their votes.
The Court distinguished Raines from Coleman , emphasizing that Coleman stood for, at most, "the proposition that legislators whose votes would have been sufficient to defeat (or enact) a specific legislative Act have standing to sue if that legislative Act goes into effect (or does not go into effect), on the ground that their votes have been completely nullified."
Significant for our purposes, the Court in Raines also included a footnote that suggests standing can be based on the discriminatory treatment of a legislator's vote. "Just as appellees cannot show that their vote was denied or nullified as in Coleman (in the sense that a bill they voted for would have become law if their vote had not been stripped of its validity), so are they unable to show that their vote was denied or nullified in a discriminatory manner (in the sense that their vote was denied its full validity on relation to the votes of their colleagues)." Raines ,
The Supreme Court next visited the question of legislative standing in Arizona State Legislature , --- U.S. ----,
This court had occasion to apply the holding of Arizona State Legislature in Kerr ,
In Kerr , we identified three types of legislator standing recognized by Coleman and its progeny. The first type, illustrated by Arizona State Legislature , is an institutional injury-"a harm inflicted on a legislature itself, such that it necessarily impacts all members of that legislature in equal measure." Kerr ,
The second type of legislator standing, recognized in Coleman , is an injury suffered by a bloc of legislators large enough to prevail on a vote, although in an official capacity, based on the complete nullification of their votes.
The third type of legislator standing is where an individual legislator suffers a personal injury.
The Presidential Electors never mention Raines , Arizona State Legislature , or
ii. Application
Although the Presidential Electors do mention Coleman , they give it little attention, devoting only one paragraph in their opening brief to claim that "as presidential electors for Colorado, each [Presidential Elector] was entitled to have his or her votes properly counted once voting began." Presidential Electors' Br. at 22. And in their reply brief, the Presidential Electors contend they need not comprise a majority of Colorado's electors to have standing under Coleman because "unlike a legislature, which makes decisions as a body, each elector has an individual right to vote and then transmit that vote directly to the Congress." Presidential Electors' Reply Br. at 30. The Presidential Electors' arguments are unpersuasive as to Ms. Baca and Mr. Nemanich for two reasons.
First, the Supreme Court explicitly noted in Raines that, at most, Coleman stood for "the proposition that legislators whose votes would have been sufficient to defeat (or enact) a specific legislative Act have standing to sue if that legislative Act goes into effect (or does not go into effect), on the ground that their votes have been completely nullified."
Second, the Presidential Electors are not seeking the type of relief recognized in Coleman because they are not suing to effectuate their votes. The votes Ms. Baca and Mr. Nemanich cast were certified and delivered to the President of the Senate, where they were counted. And although Mr. Baca's vote for President was not counted, he is not seeking to somehow belatedly credit that vote. In Coleman , the senators sought to compel other state actors to implement the results of their vote.
If the Department is correct and Colorado's electors constitute an institutional body for purposes of standing, the harm created by § 1-4-304(5) is an institutional injury because it necessarily "impacts all members of that [body] in equal measure." Kerr ,
If, however, the Presidential Electors are correct and each elector has an individually enforceable right to vote freely, the Presidential Electors still cannot point to an individualized injury that would permit them to seek relief to protect that right. First, the threats were made against all Colorado electors equally. They did not zero in on Ms. Baca and Mr. Nemanich individually and thus cannot support a personal injury. Second, the Presidential Electors did not bring their claim in an official capacity. And, for the reasons discussed in greater detail above, even if they had done so, they would lack standing for an official injury because they are not still electors. See App. at 9 (claiming each Presidential Elector "was a Democratic Elector for the 2016 presidential election").
Accordingly, the only potential for legislative standing is under the third proposition we elicited from Coleman in Kerr : where an individual legislator suffers a personal injury. See Kerr,
In sum, only Mr. Baca has established an injury in fact, and he has done so solely with respect to his claim for retrospective damages for his removal from office and the nullification of his vote.
2. Traceability and Redressability
Because we conclude Mr. Baca has alleged an injury in fact for purposes of retrospective relief, we now address whether that injury is fairly traceable to the Department's conduct and redressable by the relief sought. Monsanto ,
The complaint alleges "Secretary Williams, acting on behalf of the Colorado
* * *
In summary, none of the Presidential Electors alleged a personal injury sufficient to obtain the prospective relief they seek, and only Mr. Baca alleged a personal injury sufficient to obtain retrospective relief. Mr. Baca has also satisfied the requirements of traceability and redressability as to his claim for retrospective relief.
We therefore affirm the district court's dismissal of Ms. Baca's and Mr. Nemanich's claims under rule 12(b)(1). We also affirm the district court's dismissal of Mr. Baca's claim under rule 12(b)(1) -to the extent he seeks prospective relief-because Mr. Baca has not alleged a continuing threat that § 1-4-304(5) will be enforced against him. But we conclude the district court erred in dismissing Mr. Baca's claim to the extent he seeks retrospective relief because he has standing based on his removal from his role of elector and the cancellation of his vote.
IV. DISCUSSION PART TWO: MOOTNESS
Having determined Mr. Baca has standing to pursue retrospective relief, we turn to another potential jurisdictional bar: mootness. Mr. Baca brought his claim under
Mootness "has been described as 'the doctrine of standing set in a time frame: The requisite personal interest that must exist at the commencement of the litigation (standing) must continue throughout its existence (mootness).' " Arizonans for Official English ,
Here, there has been no "intervening circumstance" that could render this case moot. From its initiation, Mr. Baca has sought both prospective and retrospective relief, the latter of which includes a claim for nominal damages. Thus, the defect in the merits of Mr. Baca's § 1983 claim does not render the dispute before us moot. See DTC Energy Grp., Inc. v. Hirschfeld ,
In Arizonans , the plaintiff Yniguez, a state employee, sued the state of Arizona (along with state officials) pursuant to § 1983, seeking both a declaration that an amendment to the Arizona Constitution requiring the State to "act in English and in no other language" was unconstitutional, and an order enjoining its enforcement.
The Supreme Court rejected this attempt to create a claim for nominal damages to "overcome" mootness. Because § 1983 actions "do not lie against a State,"
Arizonans does not teach that any claim for damages against a state pursuant to § 1983 is moot; it stands for the narrower proposition that a last-minute claim for legally unavailable relief cannot overcome
Unlike Yniguez's claim in Arizonans , Mr. Baca's claim has always been for both prospective relief (injunction) and retrospective relief (nominal damages and retrospective declaration). And there has been no change in the status of the parties since the complaint was filed.
To be sure, there is a major flaw in the merits of Mr. Baca's § 1983 claim. As the parties acknowledged in supplemental briefing, Mr. Baca cannot satisfy the first prong of a § 1983 claim because the Department is not a person for purposes of the statute. Will ,
But neither in the district court nor in the briefing here did the Department raise this argument. And in its supplemental briefing, the Department confirms that, for purposes of this case, it has expressly waived the argument that it is not a person under § 1983. Assuming Mr. Baca can meet the other requirements of his § 1983 claim-the Department was acting under state law and he was deprived of a constitutional right-Mr. Baca may prevail on his claim and be entitled to nominal damages. See
The dissent suggests that the merits defect in Mr. Baca's case means there is no chance of money changing hands and further concludes this lack of remedy renders the claim moot. Dissenting Op. at 957. We disagree. Mr. Baca is seeking, and upon prevailing would be entitled to, nominal damages in the form of $1. And because the Department waived Eleventh Amendment immunity in this case, damages can be awarded. Thus, assuming Mr. Baca succeeds on the merits of his claim, there is no legal reason Mr. Baca would not be entitled to receive his nominal damages award and therefore a remedy is available in this case.
The dissent's argument does not apply the appropriate test. That is, its determination is dependent upon a decision by this court to raise sua sponte the personhood argument expressly waived by the Department. Only if we do so would it be impossible for Mr. Baca to prevail on his § 1983 claim. But, insofar as we are considering mootness, we may not consider the merits of the personhood argument because the mootness inquiry "in no way depends on the merits of the plaintiff's contention." Keller Tank Servs. II, Inc. v. Comm'r ,
The dissent also suggests that it is "appropriate to consider the 'personhood argument' in relation to mootness" because "[a]t the pleading stage[ ] a plaintiff must invoke our power to adjudicate a case by sufficiently alleging the prerequisites to subject-matter jurisdiction" and Mr. Baca has failed to do so because "the availability of nominal damages is clearly foreclosed by Lapides [v. Bd. of Regents ,
The Supreme Court has "long distinguished between failing to raise a substantial federal question for jurisdictional purposes ... and failing to state a claim for relief on the merits; only 'wholly insubstantial and frivolous' claims implicate the former." Shapiro v. McManus , --- U.S. ----,
Here, Mr. Baca has sued the Colorado Department of State. From Will , we know that "neither a State nor its officials acting in their official capacities are 'persons' under § 1983."
Whether the Department is a "person" under § 1983 therefore depends on whether the Department would enjoy Eleventh Amendment immunity as an arm-of-the-state. In undertaking this analysis, we consider "four primary factors":
First, we assess the character ascribed to the entity under state law. Simply stated, we conduct a formalistic survey of state law to ascertain whether the entity is identified as an agency of the state. Second, we consider the autonomy accorded the entity under state law. This determination hinges upon the degree of control the state exercises over the entity. Third, we study the entity's finances. Here, we look to the amount of state funding the entity receives and consider whether the entity has the ability to issue bonds or levy taxes on its own behalf. Fourth, we ask whether the entity in question is concerned primarily with local or state affairs. In answering this question, we examine the agency's function, composition, and purpose.
Steadfast Ins. Co. v. Agric. Ins. Co. ,
Although the parties now concede that the Department is not a person under § 1983, it was not obvious from the face of the complaint that the Department meets our Eleventh Amendment immunity test (and therefore is not a person under § 1983 ). Thus, the federal claim asserted is not "so insubstantial, implausible, foreclosed by prior decisions of [the Supreme] Court, or otherwise completely devoid of any merit as not to involve a federal controversy." Steel Co. ,
For the personhood defect to deprive the district court of federal question jurisdiction, the answer to whether the Department is a person under § 1983 must "so clearly result[ ] from the previous decisions of [the Supreme] Court as to foreclose the subject and leave no inference that the questions sought to be raised can be the subject of controversy." Goosby ,
Mr. Baca, if successful on his § 1983 claim, would be entitled to relief in the form of nominal damages. Thus, the issues presented in this case are still "live" and "the parties [have] a legally cognizable interest in the outcome." Id. at 1256 (quoting
V. DISCUSSION PART THREE: FAILURE TO STATE A CLAIM
Having concluded Mr. Baca has standing and that this case is not moot, we proceed to the third part of this opinion: whether the district court's alternative dismissal under rule 12(b)(6) based on failure to state a claim is correct. But, because we have determined Mr. Baca has standing based only on his removal from office and the nullification of his vote, we limit our analysis to that claim. We begin by setting forth the relevant standard of review. Then, we pause to address whether we should affirm the district court's rule 12(b)(6) dismissal on the alternative ground that the Department is not a person for purposes of § 1983. Finally, because we decline to exercise our discretion to affirm the district court on an alternative ground, we consider whether Mr. Baca has stated a valid claim of deprivation of his constitutional rights.
A. Standard of Review
We review de novo the grant of a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6). Albers v. Bd. of Cty. Comm'rs of Jefferson Cty., Colo. ,
B. "Person" Under § 1983
Before we turn to the correctness of the district court's order dismissing Mr. Baca's claim under rule 12(b)(6) for failure to plead a constitutional violation, we must first decide whether to affirm the district court on an alternative nonconstitutional ground-that Mr. Baca's claim fails under rule 12(b)(6) because the Department is not a person under § 1983.
"[I]t is 'a well-established principle governing the prudent exercise of this Court's jurisdiction that normally the Court will not decide a constitutional question if there is some other ground upon which to dispose the case.' " Bond v. United States ,
Here, the Department moved to dismiss the Presidential Electors' claims under Federal Rule of Civil Procedure 12(b)(6) based solely on the contention that the Department's actions did not violate Article II or the Twelfth Amendment. And the district court's alternative dismissal under rule 12(b)(6) likewise focused solely on the constitutionality of the Department's actions. Before this court, the Department again focused solely on whether Article II and the Twelfth Amendment were violated by the Department's actions. The Department has never suggested that rule 12(b)(6) dismissal is appropriate because the Department is not a person for purposes of § 1983. To the contrary, the Department made clear in its supplemental briefing that it expressly waives any argument in this case that it is not a person under § 1983.
Based on this procedural history, we decline to affirm the district court's decision on the alternative ground that the Department is not a person under § 1983. The Department has "chose[n] to litigate the case on the federal constitutional issues alone," both before the district court and this court. Zobrest ,
For these reasons, we decline to affirm the district court's decision to dismiss Mr. Baca's claim under rule 12(b)(6) on the alternative ground that the Department is not a person under § 1983. Instead, we proceed to the issue of whether the district court correctly dismissed Mr. Baca's complaint for failure to allege the deprivation of a constitutional right.
C. Constitutional Violation
Mr. Baca sued under
In order to determine whether Mr. Baca stated a claim under § 1983, we must first determine whether Article II and the Twelfth Amendment provide Mr. Baca a "right" within the meaning of § 1983. Dennis v. Higgins ,
The parties did not brief to the district court, and the district court did not consider, whether Article II and the Twelfth Amendment provide a "right" within the meaning of § 1983. Nor did the parties adequately raise this issue in their briefing to this court.
To resolve this dispute, we examine the operations of the Electoral College created by the United States Constitution, and particularly the phenomenon known as "faithless" or "anomalous" electors.
We begin our analysis by quoting the relevant constitutional text from Article II and the Twelfth Amendment. Then we consider Supreme Court precedent to determine whether the Court has resolved this issue. Concluding it has not, we undertake that task, first identifying the proper framing of the question based on the Supremacy Clause and the Tenth Amendment. Next, we interpret Article II and the Twelfth Amendment, beginning with an analysis of the constitutional text, followed by a discussion of the historical context of the Twelfth Amendment, historical practices of the Electoral College, and authoritative sources.
1. The Federal Constitution
The original federal Constitution set forth the method for selecting the President of the United States in Article II, Section 1. At that time, the Constitution provided, in relevant part:
The executive Power shall be vested in a President of the United States of America. He shall hold his Office during the Term of four Years, and, together with the Vice President, chosen for the same Term, be elected, as follows:
Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.
The Electors shall meet in their respective States, and vote by Ballot for two Persons, of whom one at least shall not be an Inhabitant of the same State with themselves. And they shall make a List of all the Persons voted for, and of the Number of Votes for each; which List they shall sign and certify, and transmit sealed to the Seat of the Government of the United States, directed to the President of the Senate. The President of the Senate shall, in the Presence of the Senate and House of Representatives, open all the Certificates, and the Votes shall then be counted. The Person having the greatest Number of Votes shall be the President, if such Number be a Majority of the whole Number of Electors appointed; and if there be more than onewho have such Majority, and have an equal Number of Votes, then the House of Representatives shall immediately chuse by Ballot one of them for President; and if no Person have a Majority, then from the five highest on the List the said House shall in like Manner chuse the President. But in chusing the President, the Votes shall be taken by States, the Representation from each State having one Vote; A quorum for this Purpose shall consist of a Member or Members from two thirds of the States, and a Majority of all the States shall be necessary to a Choice. In every Case, after the Choice of the President, the Person having the greatest Number of Votes of the Electors shall be the Vice President. But if there should remain two or more who have equal Votes, the Senate shall chuse from them by Ballot the Vice President.
The Congress may determine the Time of chusing the Electors, and the Day on which they shall give their Votes; which Day shall be the same throughout the United States.
U.S. Const., art. II, § 1, cls. 1 - 4, amended by U.S. Const. amend. XII. Under the original version of this section, the electors each voted for two candidates. The person with the most votes became President, while the person with the second-highest number of votes became Vice President.
Almost immediately, the practical application of the Electoral College proved disappointing. For example, in 1796, the presidential electors selected Federalist candidate, John Adams, as President, but paired him with a political rival, Republican Thomas Jefferson, as Vice President. See Ray ,
These experiences convinced the founders that a change had to be made. In 1804, the Twelfth Amendment to the United States Constitution was ratified. It modified the requirements in Article II, Section 1, Clause 3, and provides:
The Electors shall meet in their respective states and vote by ballot for President and Vice-President, one of whom, at least, shall not be an inhabitant of the same state with themselves; they shall name in their ballots the person voted for as President, and in distinct ballots the person voted for as Vice-President, and they shall make distinct lists of all persons voted for as President, and of all persons voted for as Vice-President, and of the number of votes for each, which lists they shall sign and certify, and transmit sealed to the seat of the government of the United States, directed to the President of the Senate; - the President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted; - The person having the greatest number of votes for President, shall be the President, if such number be a majority of the whole number of Electors appointed; and if no person have such majority, then from the persons having the highest numbers not exceeding three on the list of those voted for as President, the House of Representatives shall choose immediately, by ballot, the President. But in choosing the President, the votes shall be taken by states, the representation from each state having one vote; a quorum for this purpose shall consist of a member or members from two-thirds of the states, and a majority of all the states shall be necessary to a choice. [And if the House of Representatives shall not choose a President wheneverthe right of choice shall devolve upon them, before the fourth day of March next following, then the Vice-President shall act as President, as in case of the death or other constitutional disability of the President. - The person having the greatest number of votes as Vice-President, shall be the Vice-President, if such number be a majority of the whole number of Electors appointed, and if no person have a majority, then from the two highest numbers on the list, the Senate shall choose the Vice-President; a quorum for the purpose shall consist of two-thirds of the whole number of Senators, and a majority of the whole number shall be necessary to a choice. But no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States.
U.S. Const. amend. XII.
With these changes, the electors voted separately for President and Vice President, thereby reducing the risk of a tie or split ticket. Since 1804, there has been a single further amendment to the formation or operation of the Electoral College-the Twenty-Third Amendment provides the District of Columbia with votes in the electoral college, and the District's designated voters are "considered, for the purposes of the election of President and Vice President, to be electors appointed by a State." Id. amend. XXIII.
2. Legal Precedent
Little case law explores the independence of electors under the Twelfth Amendment or whether electors can be removed for exercising such independence. To the extent the Supreme Court has commented on the question, both the Court and individual Justices have suggested the Constitution-as originally understood-recognized elector independence. See McPherson v. Blacker ,
The Supreme Court, however, has considered a closely analogous question-whether a primary candidate for party elector can be required to pledge to support the party's candidate. See Ray ,
In analyzing whether the Twelfth Amendment prohibited a political party from requiring such a pledge, the Court began by noting the Constitution is silent on the issue:
[t]he applicable constitutional provisions on their face furnish no definite answer to the query whether a state may permit a party to require party regularity from its primary candidates for national electors. ... Neither the language of Art. II, [§] 1, nor that of the Twelfth Amendment forbids a party to require from candidates in its primary a pledge of political conformity with the aims of the party. Unless such a requirement is implicit, certainly neither provision of the Constitution requires a state political party, affiliated with a national party through acceptance of the national call to send state delegates to the national convention, to accept persons as candidates who refuse to agree to abide by the party's requirement.
The Supreme Court next "consider[ed] the argument that the Twelfth Amendment demands absolute freedom for the elector to vote his own choice, uninhibited by pledge ."
It is true that the Amendment says the electors shall vote by ballot. But it is also true that the Amendment does not prohibit an elector's announcing his choice beforehand, pledging himself . The suggestion that in the early elections candidates for electors-contemporaries of the Founders-would have hesitated, because of constitutional limitations, to pledge themselves to support party nominees in the event of their selection as electors is impossible to accept. History teaches that the electors were expected to support the party nominees . Experts in the history of government recognize the longstanding practice . Indeed, more than twenty states do not print the names of the candidates for electors on the general election ballot. Instead in one form or another they allow a vote for the presidential candidate of the national conventions to be counted as a vote for his party's nominees for the electoral college. This long-continued practical interpretation of the constitutional propriety of an implied or oral pledge of his ballot by a candidate for elector as to his vote in the electoral college weighs heavily in considering the constitutionality of a pledge, such as the one here required, in the primary.
But the Supreme Court went on to state:
[E ]ven if such promises of candidates for the electoral college are legally unenforceable because violative of an assumed constitutional freedom of the elector under the Constitution, Art. II, [§] 1, to vote as he may choose in the electoral college, it would not follow that the requirement of a pledge in the primary is unconstitutional. A candidacy in the primary is a voluntary act of the applicant. He is not barred, discriminatorily, from participating but must comply with the rules of the party . Surely one may voluntarily assume obligations to vote for a certain candidate. The State offers him opportunity to become a candidate for elector on his own terms , although he must file his declaration before the primary.
Three important aspects of the Court's opinion in Ray prevent its holding from controlling the question presented here. First, the Court did not decide whether the pledge in Ray could be legally enforced.
Second, Ray notes that an individual could become a candidate for presidential elector, without taking a pledge, through an alternative method allowing independent electors to appear on the ballot.
Third, in Ray , the Court considered a requirement for the state's appointment of electors; nothing in the opinion speaks to the removal of electors who have begun performing their federal function. The Court recognized that "[a] state's or a political party's exclusion of candidates from a party primary because they will not pledge to support the party's nominees is a method of securing party candidates in the general election, pledged to the philosophy and leadership of that party."
Ray 's holding is narrow. The Court recognized the states' plenary power to determine how electors are appointed. See U.S. Const., art. II, § 1, cl. 2 ; see also Bush v. Gore ,
Overall, Ray is materially distinguishable from the facts here and thus leaves open the relevant enforcement question, even in the context of a state primary election. We turn to that question now, beginning with the relevant standard of review. We then consider Mr. Baca's reliance on the supremacy clause, specifically rejecting the Department's attempt to limit its reach to preemption jurisprudence.
3. Framing the Question
As a general rule, we interpret the Constitution according to its text. See Utah v. Evans,
In this appeal, we must interpret Article II and the Twelfth Amendment. But the parties disagree about how to frame the question. Mr. Baca contends we must determine whether "[t]he Constitution's text requires elector discretion." Presidential Electors' Reply at 11. Mr. Baca further contends that the Supremacy Clause prohibits states from interfering with a presidential elector's performance of a federal function. The Department argues instead that we must decide whether there is "any constitutional bar against the States binding their electors to the outcome of the State's popular vote." Dep't's Br. at 54. Pointing to the Tenth Amendment, the Department claims that in the absence of such a bar, the states have the power to bind or remove electors. And the Department further argues that, even if the Tenth Amendment does not retain for the states the power to remove or bind electors, that power can be found in the express power to appoint electors.
Therefore, we begin our analysis by turning to the Supremacy Clause to place the controversy in context. Then, we shift focus to the Tenth Amendment to determine whether it could reserve to the states the power to bind or remove electors. Concluding that it could not, we next consider whether the Constitution has delegated such power to the states. In answering that question, we reject the Department's argument that the power to appoint electors necessarily includes the power to remove them and to cancel an already-cast vote. We then examine the remaining text of Article II, as modified by the Twelfth Amendment, to decide whether it delegates
a. Supremacy clause
"It is a seminal principle of our law 'that the constitution and the laws made in pursuance thereof are supreme; that they control the constitution and laws of the respective States, and cannot be controlled by them.' " Hancock v. Train ,
According to the Department, Mr. Baca is asserting classic conflict preemption, which is inapplicable here because § 1-4-304(5) does not conflict with or frustrate any federal objectives. Instead, the Department claims the statute furthers congressional objectives, as reflected by Congress's enactment of a similar statute for the District of Columbia's electors, as well as a statute that permits states to make the final determination regarding any controversy or contest regarding the appointment of state electors.
The Department's argument misunderstands the scope of the Supremacy Clause. It is true that all types of preemption stem from the Supremacy Clause. See Colo. Dep't of Pub. Health & Env't, Hazardous Materials & Waste Mgmt. Div. v. United States ,
Therefore, in determining whether Mr. Baca has stated a plausible claim for relief based on his removal from his role of elector and the nullification of his vote, we must decide whether the Constitution allows states to take such action against presidential electors exercising their federal function. In undertaking this analysis, we begin with the Tenth Amendment to resolve the parties' arguments regarding how to frame the question: if we ask whether the Constitution permits states from removing electors and nullifying nonconforming votes, or if the proper inquiry is whether such activity is prohibited .
b. Tenth Amendment
The Department argues that, even if the Constitution is silent on the question, "the power to bind or remove electors is properly reserved to the States under the Tenth Amendment." Dep't's Br. at 47-48. The Tenth Amendment states, "[t]he powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." U.S. Const. amend. X. Thus, in many instances, silence is properly interpreted as an intent that the relevant power be retained by the states. But that is not true here.
The Supreme Court has instructed that the Tenth Amendment "could only 'reserve' that which existed before." U.S. Term Limits, Inc. v. Thornton ,
As a result, because the Tenth Amendment could not reserve to the states the power to remove electors or cancel their votes, the states possess such power only if expressly delegated by the Constitution.
4. Constitutional Text
Because we conclude the Tenth Amendment could not reserve to the states the power to remove from office and nullify the vote of a presidential elector, we must determine whether the Constitution expressly permits such acts. We begin by addressing the Department's argument that the state's constitutional power to appoint electors includes the power to remove them and to nullify their votes. Determining it does not, we next ascertain whether the remainder of Article II and the Twelfth Amendment delegate the states such power. Again answering that question in the negative, we consider what constitutional rights Article II and the Twelfth Amendment confer on presidential electors.
a. Appointment power
Article II provides: "Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress." U.S. Const., art. II, § 1, cl. 2. And the Supreme Court has expressly recognized Article II, Section 1, Clause 2 as one of the clauses constituting an "express delegation[ ] of power to the States to act with respect to federal elections." U.S. Term Limits ,
To be sure, "the state legislature's power to select the manner for appointing electors is plenary." Bush ,
In arguing that the power to appoint necessarily includes the power to remove and nullify an anomalous vote, the Department relies on Myers v. United States ,
True enough, Myers acknowledges a principle of "constitutional and statutory construction" that "the power of appointment carrie[s] with it the power of removal."
Because the President must place his "implicit faith" in his subordinates, "[t]he moment that he loses confidence in the intelligence, ability, or loyalty of any one of them, he must have the power to remove him without delay."
These decisions teach that the power to remove subordinates in the executive branch derives from the President's broad executive power and his responsibility to faithfully execute the laws.
Having determined that neither the Tenth Amendment nor the power to appoint electors provides the states with the power to remove electors and nullify their votes, we turn to the language of Article II, as modified by the Twelfth Amendment.
i. Role of the states after appointment
According to Mr. Baca, the states have no right to remove appointed electors or strike their votes because the Constitution provides no role for the states after appointment. Based on a close reading of the text of the Twelfth Amendment, we agree that the Constitution provides no express role for the states after appointment of its presidential electors.
Article II, as modified by the Twelfth Amendment, describes the process for selecting a President and Vice President in unusual detail, assigning specific duties to identified actors. The process begins with the state appointing electors on the date selected by Congress. See U.S. Const. art. II, § 1, cls. 2, 4. As discussed, the states have plenary power to decide how those electors are selected.
Article II charges Congress with selecting the date on which the electors will cast their votes. U.S. Const. art. II, § 1, cl. 4. The Twelfth Amendment next provides that the electors shall meet on that day in their respective states to "vote by ballot for President and Vice President."
The Constitution then specifies that the President of the Senate must open the certificates in the presence of the Senate
As the text and structure show, the Twelfth Amendment allows no room for the states to interfere with the electors' exercise of their federal functions. From the moment the electors are appointed, the election process proceeds according to detailed instructions set forth in the Constitution itself. The Twelfth Amendment directs the electors to "name in their [distinct] ballots the person voted for as President ... [and] Vice-President." U.S. Const. amend. XII. And it demands that the lists of votes certified and delivered to the President of the Senate include "all persons voted for as President, and all persons voted for as Vice-President, and the number of votes for each."
In short, while the Constitution grants the states plenary power to appoint their electors, it does not provide the states the power to interfere once voting begins, to remove an elector, to direct the other electors to disregard the removed elector's vote, or to appoint a new elector to cast a replacement vote. See
ii. Use of "elector," "vote," and "ballot"
Mr. Baca contends that not only is a role for the state beyond appointment conspicuously absent from the Constitution, but the language used-specifically the terms "elector," "vote," and "ballot"-also establishes that no such role exists because presidential electors are granted the constitutional right to exercise discretion when voting for the President and Vice President. In analyzing this contention, we first consider the meanings of those terms as understood at the time of the Constitution's ratification. Then, we compare the use of "elector" in Article II and the Twelfth Amendment with the use of that term elsewhere in the Constitution.
1) Contemporaneous dictionary definitions
"[T]he enlightened patriots who framed our constitution, and the people who adopted it, must be understood to have employed words in their natural sense, and to have intended what they have said." Gibbons v. Ogden ,
Similarly, the term "vote" was defined as "[s]uffrage; voice given and numbered," 2 Samuel Johnson, A Dictionary of the English Language (London, 6th ed. 1785); "[v]oice, [a]dvice, or [o]pinion of a [m]atter in [d]ebate," Nathan Bailey, A Universal Etymological English Dictionary (London, 1763); "to speak for or in behalf of any person or thing; also to chuse or elect a person into any office, by voting or speaking," Thomas Dyche & William Pardon, A New General English Dictionary (11th ed. 1760); "[a] suffrage, a voice given and numbered, a determination of parliament"; "to chuse by suffrage; to give by a vote," 2 John Ash, The New and Complete Dictionary of the English Language (1795); "to give or choose by votes," and "a voice," Noah Webster, A Compendious Dictionary of the English Language (1806). Correspondingly, "to vote" was defined as "[t]o chuse by suffrage; to determine by suffrage," 2 Samuel Johnson, A Dictionary of the English Language (London, 6th ed. 1785), and "to give one's [v]oice," Nathan Bailey, A Universal Etymological English Dictionary (London, 1763).
And contemporary sources defined "ballot" as a mechanism for choosing or voting. See 1 Samuel Johnson, A Dictionary of the English Language (London, 6th ed. 1785) (defining "ballot" as "[a] little ball or ticket used in giving votes, being put privately into a box or urn");
As these sources reflect, the definitions of elector, vote, and ballot have a common theme: they all imply the right to make a choice or voice an individual opinion. We therefore agree with Mr. Baca that the use of these terms supports a determination that the electors, once appointed, are free to vote as they choose.
2) Use of "elector" in the Constitution
Mr. Baca also points to the use of the word "elector" elsewhere in the Constitution as support for his position that electors may vote freely. This approach is sound because, "[w]hen seeking to discern the meaning of a word in the Constitution, there is no better dictionary than the rest of the Constitution itself." Ariz. State Legislature ,
The term "electors" is used in Article I of the federal Constitution. Members of the House of Representatives are "chosen every year by the people of the several states, and the Electors in each state shall have the qualifications requisite for Electors of the most numerous branch of the state legislature." U.S. Const. art. I, § 2, cl. 1 (emphases added). The term "electors" as used there refers to the citizen voters who choose the persons who will represent them in the House of Representatives. The term "electors" is also used in the Seventeenth Amendment. Although Senators were "chosen by the legislature" of the state at the time of the founding,
It is beyond dispute that the "electors" under Article I, Section 2, Clause 1, and the Seventeenth Amendment exercise unfettered discretion in casting their vote at the ballot box.
The freedom of choice we ascribe to congressional electors comports with the contemporaneous dictionary definitions of elector discussed above. And because we treat usage of a term consistently throughout the Constitution, Verdugo-Urquidez ,
* * *
In summary, the text of the Constitution makes clear that states do not have the constitutional authority to interfere with presidential electors who exercise their constitutional right to vote for the President and Vice President candidates of their choice. The Tenth Amendment could not reserve to the states the power to bind or remove electors, because the electoral college was created by the federal Constitution. Thus, if any such power exists, it must be delegated to the states by the Constitution. But Article II contains no such delegation. Nor can the states' appointment power be expanded to include the power to remove electors or nullify their votes. Unlike the President's right to remove subordinate officers under his executive power and duty to take care that the laws and Constitution are faithfully executed, the states have no authority over the electors' performance of their federal function to select the President and Vice President of the United States.
5. Enactment of the Twelfth Amendment
The historical impetus for enactment of the Twelfth Amendment provides additional support for our conclusion that presidential electors are free to exercise discretion in casting their votes. As noted, under Article II, Section 1, as originally written, "the electors of each state did not vote separately for President and Vice-President; each elector voted for two persons, without designating which office he wanted each person to fill." Ray ,
This is exactly what happened in 1800. The electors' vote resulted in seventy-three votes each for Thomas Jefferson and Aaron Burr, sixty-five votes for John Adams, sixty-four votes for Charles Pinckney, and one vote for John Jay. 10 Annals of Cong. 1024 (1801). Because two individuals received votes that constitute a majority of the electors appointed, but tied for the number, it was up to the House of Representatives to choose one of the two as President. U.S. Const. art. II, § 1, cl. 3. It took the House thirty-six rounds of voting to select Thomas Jefferson as President. 10 Annals of Cong. 1028 (1801).
The 1796 election resulted in a different problem. Federalists urged their electors to support John Adams and Thomas Pinckney, while Anti-Federalists (Democratic-Republicans) urged support for Thomas Jefferson and Aaron Burr. Stephen J. Wayne, The Road to the White House 2016 6 (10th ed. 2016). But roughly forty percent of electors ignored this party guidance. John Ferling, Adams vs. Jefferson: The Tumultuous Election of 1800 166 (2004). Instead, many Federalist electors, mainly from New England, withheld votes from Thomas Pinckney to ensure that Thomas Pinckney did not receive the same number of votes as John Adams, thereby guaranteeing John Adams the Presidency. Wayne, supra , at 6. As a result of this plan, John Adams received seventy-one votes, while Thomas Pinckney received a mere fifty-nine votes. Id. But this plan backfired, in part, because Thomas Jefferson received sixty-eight votes, thereby finishing ahead of Thomas Pinckney. Id. The 1796 electoral college vote consequently resulted in a President who, although disclaiming political affiliation, strongly favored Federalists, serving with a Vice President who was the leader of the opposing party. Id. As the Supreme Court has recognized, this created a "situation [that] was manifestly intolerable." Ray ,
"The Twelfth Amendment was brought about as the result of the difficulties caused by the procedure set up under [Article] II, [Section] 1."
At the time of the 1796 election, Pennsylvania used a popular vote to select its presidential electors, but state law gave the governor only a short window in which to certify the winners of the race, even if all votes had yet to be counted. Id. at 362-63. By the time that window closed in 1796, thirteen of the fifteen Jefferson electors had received the most votes but, because votes from Greene County had yet to be returned, Samuel Miles and Robert Coleman-two of the electors from the " 'Federal and Republican' slate"-had eked out a victory. Id. at 363.
Once the Greene County votes were received, it became clear that all fifteen Jefferson electors should have won in Pennsylvania. Id. The two excluded Jefferson electors went to Harrisburg and demanded to vote as presidential electors, but they were denied. Id. Yet, "[p]ressure ran high for all the electors to fulfill the will of the majority, and ... Samuel Miles cracked and cast a Jefferson vote." Id. This decision brought ire on Samuel Miles, with a critic in a Philadelphia newspaper writing, "What, do I chuse Samuel Miles to determine for me whether John Adams or Thomas Jefferson shall be President? No! I chuse him to act, not to think." Wayne, supra , at 6. The essence of the complaint was that Samuel Miles had violated the expectation that he would cast his vote for John Adams. Despite this experience, the Twelfth Amendment did nothing to prevent future faithless votes.
Instead, the Twelfth Amendment changed only the balloting process, allowing electors to designate separately a vote for President and Vice President. Compare U.S. Const. art. II, § 1, cl. 3 ("The Electors shall ... vote by ballot for two persons ...."), with id. amend. XII ("[The Electors] shall name in their ballots the person voted for as President, and in distinct ballots the person voted for as Vice-President ...." (emphasis added)). Important for our purposes, the Twelfth Amendment does not deviate from the original Constitution's use of "elector," "vote," and "ballot." Compare id. art. II, § 1, cl. 3 ("The Electors shall meet in their respective states, and vote by ballot for two persons, of whom one at least shall not be an inhabitant of the same state with themselves."), with id. amend. XII ("The Electors shall meet in their respective states and vote by ballot for President and Vice-President, one of whom, at least, shall not be an inhabitant of the same state with themselves ...."). Nor does the Twelfth Amendment contain any language restricting the electors' freedom of choice or delegating the power to impose such restrictions to the states. Thus, the historical context of the Twelfth Amendment supports our textual conclusion that states cannot interfere with the presidential electors' votes and that presidential electors have the constitutional right to exercise discretion when casting those votes.
In granting the Department's motion to dismiss under rule 12(b)(6), the district court emphasized the longstanding practice of electors binding themselves to and complying with the will of the people of the state. The Department takes a similar approach on appeal, emphasizing the longstanding practice of electors giving pledges to vote for specific candidates and the use of the short-form ballot which prints the names of the presidential and vice presidential candidates rather than the presidential electors. The Department argues these historical practices support its view that Colorado did not violate the Constitution by removing Mr. Baca. Again, we disagree.
a. Elector pledges
It is true that a pledge requirement is consistent with longstanding practices. As the Supreme Court noted in Ray, there is a "long-continued practical interpretation of the constitutional propriety of an implied or oral pledge of his ballot by a candidate for elector as to his vote in the electoral college."
Although we concur with the Department's review of historical practice, we cannot agree that these practices dictate the result the Department seeks. First, and most importantly, the practices employed-even over a long period-cannot overcome the allocation of power in the Constitution. McPherson ,
Indeed, we are aware of no instance in which Congress has failed to count an anomalous vote, or in which a state-before Colorado-has attempted to remove an elector in the process of voting, or to nullify a faithless vote. And on only one occasion has Congress even debated whether an anomalous vote should be counted. In 1969, six Senators and thirty-seven Representatives objected to counting
In the most recent 2016 election, Congress counted thirteen anomalous votes from three states. Specifically, Congress counted presidential votes for Colin Powell (three from Washington),
This uninterrupted history of Congress counting every anomalous vote cast by an elector weighs against a conclusion that historical practices allow states to enforce elector pledges by removing faithless electors from office and nullifying their votes.
b. Short-form ballots
The Department next points to the states' historical practice of using short-form ballots as "incompatible with electors exercising independent discretion" because "[v]oters have no basis for judging the prospective electors' qualifications or trustworthiness, let alone uncovering their identities," and "[a] voter ... understandably believes that he or she is casting [his or her] ballot for actual presidential and vice-presidential candidates." Dep't's Br. at 59. The Department's position can be rephrased as a contention that because states have chosen, over time, to use a short-form ballot, thereby allowing voters to believe they are voting directly for presidential and vice presidential candidates, electors are now bound to make that misperception true. The Supreme Court has foreclosed such a conclusion.
In McPherson , the Supreme Court considered a challenge to Michigan's statute allowing for its presidential electors to be appointed by state districts.
The Court also rejected an argument that the states' method of choosing electors by district would not have been constitutionally objectionable "if the operation of the electoral system had conformed to its original object and purpose," but that it "had become so in view of the practical working of that system." McPherson ,
Doubtless it was supposed that the electors would exercise a reasonable independence and fair judgment in the selection of the chief executive , but experience soon demonstrated that, whether chosen by the legislatures or by popular suffrage on general ticket or in districts, they were so chosen simply to register the will of the appointing power in respect of a particular candidate . In relation, then, to the independence of the electors, the original expectation may be said to have been frustrated. But we can perceive no reason for holding that the power confided to the states by the constitution has ceased to exist because the operation of the system has not fully realized the hopes of those by whom it was created. Still less can we recognize the doctrine that because the constitution has been found in the march of time sufficiently comprehensive to be applicable to conditions not within the minds of its framers, and not arising in their time, it may therefore be wrenched from the subjects expressly embraced within it, and amended by judicial decision without action by the designated organs in the mode by which alone amendments can be made .
Over a century later, the Court reaffirmed the decision in McPherson and emphasized that "[t]he individual citizen has no federal constitutional right to vote for electors for the President of the United States unless and until the state legislature chooses a statewide election as the means to implement its power to appoint members of the electoral college." Bush ,
The same analysis is true in this case. "The question before us is not one of policy, but of power ...." McPherson ,
For the foregoing reasons, historical practice of using short-form ballots and of most electors complying with their pledges do not undermine our conclusion that the state could not constitutionally remove Mr. Baca or strike his vote for refusing to comply with the demands of § 1-4-304(5).
7. Authoritative Sources
The parties also rely on authoritative sources for their respective interpretations of Article II and the Twelfth Amendment, including the Federalist Papers and Justice Story's Commentaries on the Constitution. As we now explain, these sources buttress our conclusion that the Constitution prohibits the state from removing presidential electors performing their federal function, even where the electors vote contrary to a state-imposed requirement.
In the Federalist Papers,
It was desirable, that the sense of the people should operate in the choice of the person to whom so important a trust [the presidency] was to be confided.33 This end will be answered by committing the right of making it, not to any preestablished body, but to men chosen by the people for the special purpose, and at the particular conjuncture .
It was equally desirable, that the immediate election should be made by men most capable of analyzing the qualities adapted to the station , and acting under circumstances favourable to deliberation , and to a judicious combination of all the reasons and inducements that were proper to govern their choice . A small number of persons, selected by their fellow citizens from the general mass, will be most likely to possess the information and discernment requisite to so complicated an investigation .
The Federalist No. 68 (Alexander Hamilton) (George W. Carey & James McClellan eds., 2001) (emphases added).
There can be little doubt in reading Federalist 68 that Alexander Hamilton understood the Constitution to entrust the selection of the President to "a small number of persons" selected for their ability to "analyz[e] the qualities adapted to the station" of President.
This reading of Federalist 68 is consistent with Hamilton's discussion of the "dissimilar modes of constituting the several component parts of the government." The Federalist No. 60 (Alexander Hamilton) (George W. Carey & James McClellan eds., 2001). In Federalist 60, Hamilton explains that "[t]he house of representatives being to be elected immediately by the people; the senate by the state legislatures; the President by electors chosen for that purpose by the people; there would be little probability of a common interest to cement these different branches in a predilection for any particular class of electors."
In short, the Federalist Papers are inconsistent with the Department's argument that the electors are mere functionaries who can vote only for the candidate dictated by the state. Instead, these contemporaneous interpretations of the federal Constitution support the conclusion that the presidential electors were to vote according to their best judgment and discernment.
Contrary to the Department's characterization, Justice Story expressed similar views in his Commentaries on the Constitution:
It has been observed with much point, that in no respect have the enlarged and liberal views of the framers of the constitution, and the expectations of the public, when it was adopted, been so completely frustrated, as in the practical operation of the system, so far as relates to the independence of the electors in the electoral colleges . It is notorious, that the electors are now chosen wholly with reference to particular candidates, and are silently pledged to vote for them. Nay, upon some occasions the electors publicly pledge themselves to vote for a particular person; and thus, in effect, the whole foundation of the system, so elaborately constructed, is subverted. The candidates for the presidency are selected and announced in each state long before the election; and an ardent canvass is maintained in the newspapers, in party meetings, and in the state legislatures, to secure votes for the favourite candidate, and to defeat his opponents. Nay, the state legislatures often become the nominating body, acting in their official capacities, and recommending by solemn resolves their own candidate to the other states. So, that nothing is left to the electors after their choice, but to register votes, which are already pledged; and an exercise of an independent judgment would be treated, as a political usurpation, dishonourable to the individual, and a fraud upon his constituents.
3 Joseph L. Story, Commentaries on the Constitution of the United States § 1457 (1833) (emphases added) (footnote omitted).
The Department relies on this Commentary to argue that presidential electors acting independently would be a "political usurpation" and a "fraud upon [their] constituents." Dep't's Br. at 58. But this interpretation does not withstand careful scrutiny. Justice Story begins his commentary with the recognition that the framers and
Mr. Baca and the amicus briefs filed in support of his position also cite numerous contemporaneous statements showing that the framers and early Congressmen (including those involved in passing the Twelfth Amendment) believed presidential electors were to act with discretion. In response, the Department alleges that "[t]he historical record ... reveals, at best, an inconsistent and largely conflicting paper trail of opinions by the Framers regarding the electors' proper roles." Dep't's Br. at 56. But the Department has failed to point to any contemporaneous source that contradicts an understanding of elector discretion-except the inaccurate portrayals of Federalist Number 68 and Justice Story's Commentaries we reject above. Instead, the Department relies on modern sources for its proposition. While it is true that the states now almost uniformly require electors to pledge their votes to the winners of the popular election, that does not speak to the states' ability to enforce those pledges after voting has begun by removing the elector and nullifying his vote.
Contemporaneous authoritative sources-mainly in the form of the Federalist Papers and Justice Story's Commentaries-support our reading of the Constitution as providing the electors the discretion to vote for the presidential candidate of their choice. They therefore support our conclusion that the Constitution does not grant to the states the power to remove electors who vote independently, despite the electors' pledge to cast their votes for the winners of the popular election. Because voting as an elector is a federal function, Burroughs ,
* * *
Article II and the Twelfth Amendment provide presidential electors the right to cast a vote for President and Vice President with discretion.
Secretary Williams impermissibly interfered with Mr. Baca's exercise of his right to vote as a presidential elector. Specifically, Secretary Williams acted unconstitutionally by removing Mr. Baca and nullifying his vote for failing to comply with the vote binding provision in § 1-4-304(5). Mr. Baca has therefore stated a claim for relief on the merits, entitling him to nominal damages.
VI. CONCLUSION
For the foregoing reasons, we AFFIRM the district court's dismissal of Ms. Baca's and Mr. Nemanich's claims under rule 12(b)(1) for lack of standing. But we REVERSE the district court's dismissal of Mr. Baca's claim under both rule 12(b)(1) and rule 12(b)(6). Therefore, we REMAND to the district court for further proceedings consistent with this opinion.
Notes
At oral argument, the Department claimed Mr. Baca had not been officially appointed. In a post-argument letter to this court, the Department corrected this statement and acknowledged that Mr. Baca's appointment had been finalized.
Typically a motion to dismiss under rule 12(b)(6) must rest on the contents of the complaint alone. Gee v. Pacheco ,
The Presidential Electors have not briefed to this court any argument concerning the constitutionality of § 1-4-304(1). Consequently, we do not consider that issue separately. See Reedy v. Werholtz ,
By stipulation, the Department waived any claim to immunity, the Presidential Electors relinquished any claims under
The Presidential Electors argue that this court decided the standing issue in Baca I . But Baca I determined standing "given the preliminary record before us," and only "[a]t this stage of the proceedings." Order at 7, Baca I , No. 16-1482. And, importantly, in Baca I, Mr. Nemanich and Ms. Baca were seeking only prospective relief while they were under a direct threat of enforcement. Therefore, we agree with the district court that we must visit the standing question anew in this case as to each elector and as to each claim for relief.
The Department also claims a footnote in our decision, City of Hugo v. Nichols ,
Mr. Baca is the only Presidential Elector who voted in violation of § 1-4-304(5) and suffered ramifications, in the form of removal from office, under § 1-4-304(1). He is therefore the only plaintiff who might establish standing for prospective relief through continuing adverse effects of a prior enforcement. But Mr. Baca has not alleged any continuing adverse effects from the prior enforcement that could be alleviated through prospective relief, so we do not consider this as a potential basis for standing.
Even if the Presidential Electors had alleged an intention to run for elector and, if appointed, to vote for an individual who did not receive the popular vote, such allegations may have been too speculative to support finding a credible threat of prosecution. Cf. Golden v. Zwickler ,
The Presidential Electors' reply brief contends, for the first time, that Mr. Baca was subject to "a long investigation that consumed [his] time and money" before the Attorney General decided not to prosecute. Presidential Electors' Reply Br. at 29 n.5. Because this allegation was not included in the complaint, we need not consider whether this injury is fairly traceable to Secretary Williams's referral rather than, as the Department argues, solely to the Attorney General's actual investigation.
In the context of the political subdivision standing doctrine, we have also distinguished Allen . In City of Hugo , we reasoned that standing in Allen was "based on the individual board members' personal stake in losing their jobs."
This court has left open the question whether a group of legislators large enough to prevail on a vote would have standing to assert an institutional injury. Kerr v. Hickenlooper ,
In a later opinion, albeit in dicta, the Supreme Court recognized that a school board member seeking to protect the effectiveness of his vote would be required to seek "mandamus or like remedy." See Bender v. Williamsport Area Sch. Dist. ,
The Presidential Electors represent only three of Colorado's nine electors. The Presidential Electors do not argue that, if Colorado's electors are the relevant institutional body, fewer than a majority of the electors would be sufficient to act on behalf of the institution.
The dissent cites Lexmark International, Inc. v. Static Control Components, Inc. , for the proposition that we cannot "recognize a cause of action that Congress has denied."
Outside that context, the Court has enforced the waiver of statutory elements. For example, Congress did not create a Title VII cause of action against an employer with fewer than fifteen employees. 42 U.S.C. §§ 2000e(b), 2000e-2(a). But the Supreme Court held in Arbaugh v. Y&H Corp. that this limitation was nonjurisdictional and therefore waivable., 514-15, 546 U.S. 500 , 126 S.Ct. 1235 (2006). 163 L.Ed.2d 1097
Similarly, Congress did not create a § 1983 action against arms of the states. But this requirement is a nonjurisdictional element of a plaintiff's claim. "Nothing in the text of [§ 1983 ] indicates that Congress intended courts, on their own motion, to assure that the [personhood] requirement is met."Id. at 514 ,. 126 S.Ct. 1235
The Presidential Electors filed a motion with this court seeking leave to conform the Second Amended Complaint to state a claim directly under the Constitution rather than § 1983, if this court determined the failure to meet the "person" element of a § 1983 claim created a jurisdictional barrier. Because we conclude there is no jurisdictional defect, we deny without prejudice the Presidential Electors' motion to conform the Second Amended Complaint as moot.
In a footnote in its standing argument, the Department argues that Article II and the Twelfth Amendment are not privately enforceable under § 1983 because "[m]erely exercising a 'federal function' under the cited provisions does not, by itself, confer constitutional rights that may be vindicated in federal court." Dep't's Br. at 30 n.4. This argument is inadequately briefed and therefore waived. Alder v. Wal-Mart Stores, Inc. ,
The term "Electoral College" is not used in the Constitution but has come to refer to the presidential electors created by Article II, Section 1. Traditionally, presidential electors who cast a vote contrary to the appointing power's wishes or contrary to the elector's pledge have been referred to as "faithless electors." More recently, some commentators have substituted the term "anomalous electors" to avoid the pejorative connotation implicit in the more traditional phrase. For purposes of this opinion, we use the terms interchangeably.
"[T]he Supremacy Clause, of its own force, does not create rights enforceable under § 1983." Golden State Transit Corp. v. City of L.A. ,
By Constitutional amendment, the District of Columbia is entitled to electors who "shall [be] appoint[ed] in such manner as the Congress may direct," and who "shall be considered, for the purposes of the election of President and Vice President, to be electors appointed by a state." U.S. Const. amend. XXIII. The Department points to the statute attempting to bind electors in the District of Columbia to the winner of the popular vote as evidence that it is consistent with Congress's objectives for presidential electors to be subject to vote-binding provisions, and therefore that § 1-4-304(5) does not violate Supremacy Clause principles. But this turns the Supremacy Clause on its head. Congress's power to adopt legislation is cabined by the powers granted in the Constitution, not the converse.
Mr. Baca also argues that requiring electors to vote for the candidate winning the popular vote in the state unconstitutionally adds new requirements for both holding the office of elector and the office of President and Vice President. Cf. U.S. Term Limits, Inc. v. Thornton ,
To illustrate this point, we need look no further than the Constitution's delegation of power to the state executive to appoint a replacement to finish the term of a Senator unable to do so. U.S. Const. amend. XVII. ("When vacancies happen in the representation of any State in the Senate, the executive authority of such State shall issue writs of election to fill such vacancies: Provided, That the legislature of any State may empower the executive thereof to make temporary appointments until the people fill the vacancies by election as the legislature may direct."). Under the Department's theory, the power of the state executive to appoint the replacement Senator would include the power to interrupt a session of the United States Senate and demand that a vote cast by the replacement Senator be nullified. We can find nothing in the Constitution that would allow this state intrusion on the operations of the federal government.
Even if the power to appoint did include the power to remove, however, that power would not be without limitation. The powers granted to the states by the Constitution "are always subject to the limitation that they may not be exercised in a way that violates other specific provisions of the Constitution." Williams ,
As we discuss below, the Constitution provides presidential electors with discretion in casting their votes for President and Vice President, and expressly requires that all votes cast for President and Vice President be listed and delivered to the Senate. As a result, a state could not constitutionally exercise any presumed removal power in contravention of these constitutional mandates.
Most of the Department's arguments focus on whether the text of the Twelfth Amendment prohibits, rather than permits, the states' interference with electors by binding their votes, removing them from office, or discarding their votes. But, as discussed above, the Tenth Amendment could not reserve to the states any power over the electors. Therefore, the states have power to interfere with electors exercising their federal function only if the Constitution delegates that power to the states.
For the period of 1750-1800, the following four dictionaries are considered "the most useful and authoritative for the English language": Samuel Johnson, A Dictionary of the English Language ; Nathan Bailey, A Universal Etymological English Dictionary ; Thomas Dyche & William Pardon, A New General English Dictionary ; and John Ash, The New and Complete Dictionary of the English Language . Scalia & Garner, Reading Law: The Interpretation of Legal Texts 419 (2012). There are four additional dictionaries deemed the most relevant for the period of 1801-1850-dictionaries from 1806, 1818, 1828, and 1850. Id. at 420. Because the Twelfth Amendment was adopted in 1804, the only one of these relevant for our purposes is Noah Webster's 1806 dictionary, A Compendious Dictionary of the English Language . Id.
Suffrage was defined as "a [n]ote given at an [e]lection in favour of any [p]erson; [a]pprobation or [a]llowance in general," Nathan Bailey, A Universal Etymological English Dictionary (London, 1763), and "[a] vote, a voice given in a controverted point," 2 John Ash, The New and Complete Dictionary of the English Language (1795); see also 2 Samuel Johnson, A Dictionary of the English Language (London, 6th ed. 1785) (defining suffrage as "[v]ote; voice given in a controverted point").
The parties dispute whether the Constitution requires secret ballots. We need not resolve this dispute because the contemporaneous definitions show that ballots indicate a choice, regardless of whether that choice is published to others.
This freedom is not without constitutional limit. The presidential electors are bound by the constitutional directions regarding electors' votes and by who may serve as President or Vice President. See U.S. Const. amend. XII (requiring electors to vote for at least one candidate not from the elector's state); id. art. II, § 1, cl. 5 (mandating the President be a natural born citizen and at least thirty-five years old); id. amend. XIV, § 3 (prohibiting anyone from serving as President or Vice President who has taken an oath to support the Constitution and then "engaged in an insurrection or rebellion against the same"); id. amend. XXII, § 1 (limiting the President to two terms in office).
The Supreme Court has upheld laws regulating this right as constitutional under the state's authority to prescribe the time, place, and manner for holding elections for Senators and Representatives, provided by Article I, Section 4, Clause 1, where the laws
regulated election procedures and did not even arguably impose any substantive qualification rendering a class of potential candidates ineligible for ballot position. They served the state interest in protecting the integrity and regularity of the election process, an interest independent of any attempt to evade the constitutional prohibition against the imposition of additional qualifications for service in Congress. And they did not involve measures that exclude candidates from the ballot without reference to the candidates' support in the electoral process.
U.S. Term Limits ,
The Constitution does not delegate to the states the power to proscribe the time, place, and manner of electors casting their votes for President and Vice President. The Constitution assigns the responsibility of determining the time of voting to Congress, U.S. Const. art. I, § 1, cl. 4, and does not delegate to the states the power to set the place or manner of voting. Thus, the states have less-not more-power under the Twelfth Amendment than they do with respect to regulating the elections of Senators and Congresspersons.
FairVote does not list Mr. Nemanich as one of these anomalous votes. FairVote, Faithless Electors , https://www.fairvote.org/faithless_electors (last visited Jan. 10, 2019). But, according to the Second Amended Complaint, after becoming an elector, Mr. Nemanich executed a pledge to vote for Bernie Sanders for President. Mr. Nemanich was later required by the Department to take an oath stating that he would vote for Hillary Clinton. Although Mr. Nemanich complied with that later oath and voted for Hillary Clinton, he violated his initial pledge to vote for Bernie Sanders.
The Washington Supreme Court recently upheld the imposition of fines against these faithless electors. In re Guerra,
The cases the district court and the Department rely upon that determined electors do not have independence (although not in the context of a constitutional challenge to restrictions) have all fallen within this same trap. See Spreckles v. Graham ,
The Federalist Papers are a collection of essays written by Alexander Hamilton, John Jay, and James Madison in support of ratification of the federal Constitution.
The Department attempts to use this first sentence to say that "Hamilton himself expressed contradictory positions on whether electors were to exercise discretion." Dep't's Br. at 55-56. Federalist 68 cannot be read fairly to support this interpretation. When this sentence is put into context with the rest of the paragraph, Alexander Hamilton's view that electors were selected to make an informed choice in selecting the President is apparent.
Although Justice Story wrote almost thirty years after adoption of the Twelfth Amendment, his Commentaries on the United States Constitution have been relied on by the Supreme Court as informative on issues of constitutional interpretation. See, e.g. , District of Columbia v. Heller,
The Department also relies on arguments that several of the founding fathers "advocated for direct popular election of the President." Dep't's Br. at 55. But, as is obvious from the text of Article II and the Twelfth Amendment, that position did not prevail. See U.S. Const. amend. XII.
"After pinpointing [the specific constitutional right at issue], courts still must determine the elements of, and rules associated with, an action seeking damages for its violation." Manuel v. City of Joliet, III. , --- U.S. ----,
Dissenting Opinion
While the majority has presented a thorough analysis in support of its ruling, I would not reach the merits of the issues presented but would instead conclude that this case is moot.
"Under settled law, we may dismiss th[is] case [as moot] ... only if 'it is impossible for a court to grant any effectual relief whatever' to [the Presidential Electors] assuming [they] prevail[ ]." Mission Prod. Holdings, Inc. v. Tempnology, LLC , --- U.S. ----,
No such chance exists. Section "1983 creates no remedy against a State." Arizonans for Official English v. Arizona ,
Absent a plausible claim for nominal damages, this case is moot.
It makes no difference that the Department has waived Eleventh Amendment sovereign immunity. Supp. App. at 116. "The barrier [to recovering nominal damages i]s not ... Eleventh Amendment immunity, which the State could waive. The stopper [i]s that § 1983 creates no remedy against a State." Arizonans ,
Nor can the Department save this case from mootness by waiving "the argument that it is not a 'person' under § 1983." Supp. Br. at 1; see Estate of Harshman v. Jackson Hole Mountain Resort Corp. ,
The majority distinguishes this case from Arizonans by explaining that, in Arizonans , "it was not the failure of the improvised nominal-damages claim under § 1983 that mooted the case; it was [the plaintiff]'s departure from state employment." Maj. Op. at 923. I understand the holding in Arizonans to turn on whether the plaintiff could obtain prospective or retrospective relief. Even without the claim for prospective relief (which was unavailable because the plaintiff no longer worked for the state), the case would not have been moot if the plaintiff could obtain nominal damages. Utah Animal Rights Coal. v. Salt Lake City Corp. ,
The majority also concludes that " Arizonans does not teach that any claim for damages against a state pursuant to § 1983 is moot; it stands for the narrower proposition that a last-minute claim for legally unavailable relief cannot overcome certain mootness." Maj. Op. at 923-24. I disagree. Arizonans did more than discuss the timeliness of the nominal damages claim.
Because we cannot grant relief to the Presidential Electors, I would dismiss the appeal as moot.
"We can raise issues of standing and mootness sua sponte because we 'have an independent obligation to determine whether subject-matter jurisdiction exists, even in the absence of a challenge from any party.' " Collins v. Daniels ,
Without an award of nominal damages, a retrospective declaration that the Presidential Electors' rights were violated "would amount to nothing more than a declaration that [they] w[ere] wronged." Green v. Branson ,
The majority concludes that "we may not consider the merits of the personhood argument because the mootness inquiry 'in no way depends on the merits of the plaintiff's contention.' " Maj. Op. at 925 (quoting Keller Tank Servs. II, Inc. v. Comm'r ,
Other courts have similarly concluded that a futile claim for damages cannot sustain an otherwise moot case. Int'l Bhd. of Teamsters, Local Union No. 639 v. Airgas, Inc. ,
I would not entertain the parties' attempt to rewrite the Presidential Electors' pleadings on the fly. The parties urge us to overlook the Presidential Electors' deficient pleadings because "any alleged defect is a technicality in the purest sense: it does not affect, in any way, the substantive ability of [the Presidential Electors] to bring an identical legal claim .... against the former Secretary in his individual capacity." Supp. Br. at 17. In the parties' eyes, "[s]uch a case would be, in every respect, identical to that here."