935 F.3d 887 (10th Cir. 2019), 18-1173, Baca v. Colorado Department of State

Docket Nº:18-1173
Citation:935 F.3d 887
Opinion Judge:McHUGH, Circuit Judge.
Party Name:Micheal BACA; Polly Baca; Robert Nemanich, Plaintiffs-Appellants, v. COLORADO DEPARTMENT OF STATE, Defendant-Appellee. Independence Institute; David G. Post; Derek T. Muller; Michael L. Rosin; Robert M. Hardaway, Professor of Law, University of Denver Sturm College of Law; Colorado Republican Committee, Amici Curiae.
Attorney:Jason Harrow, Equal Citizens, Cambridge, Massachusetts (Jason B. Wesoky, Hamilton Defenders, Denver, Colorado, and Lawrence Lessig, Equal Citizens, Cambridge, Massachusetts, with him on the briefs), for Plaintiff - Appellants. Grant T. Sullivan, Assistant Solicitor General (Cynthia H. Coffman, At...
Judge Panel:Before BRISCOE, HOLMES, and McHUGH, Circuit Judges.
Case Date:August 20, 2019
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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935 F.3d 887 (10th Cir. 2019)

Micheal BACA; Polly Baca; Robert Nemanich, Plaintiffs-Appellants,

v.

COLORADO DEPARTMENT OF STATE, Defendant-Appellee. Independence Institute; David G. Post; Derek T. Muller; Michael L. Rosin; Robert M. Hardaway, Professor of Law, University of Denver Sturm College of Law; Colorado Republican Committee, Amici Curiae.

No. 18-1173

United States Court of Appeals, Tenth Circuit

August 20, 2019

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Appeal from the United States District Court for the District of Colorado (D.C. No. 1:17-CV-01937-WYD-NYW)

Jason Harrow, Equal Citizens, Cambridge, Massachusetts (Jason B. Wesoky, Hamilton Defenders, Denver, Colorado, and Lawrence Lessig, Equal Citizens, Cambridge, Massachusetts, with him on the briefs), for Plaintiff - Appellants.

Grant T. Sullivan, Assistant Solicitor General (Cynthia H. Coffman, Attorney General; Frederick R. Yarger, Solicitor General; LeeAnn Morrill, First Assistant Attorney General; Matthew Grove, Assistant Solicitor General, with him on the brief), for Appellee Colorado Department of State, Denver, Colorado.

Michael Donofrio, Donofrio Asay PLC, Montpelier, Vermont, and Aaron Solomon, Hale Westfall, LLP, Denver, Colorado, filed an amicus brief on behalf of Michael L. Rosin and David G. Post.

David B. Kopel, Independence Institute, Denver, Colorado, filed an amicus brief on behalf of Independence Institute.

Michael Francisco, Statecraft, PLLC, Colorado Springs, Colorado, and Derek T. Muller, Associate Professor of Law, Pepperdine University Law School, Malibu, California, filed an amicus brief on behalf of Derek T. Muller.

Jeffrey S. Hurd, Bernard A. Buescher, William A. Hobbs, Ireland Stapleton Pryor & Pascoe, P.C., Denver, Colorado, and Robert M. Hardaway, Professor of Law, University of Denver, Sturm College of Law, Denver, Colorado, filed an amicus brief on behalf of Robert M. Hardaway.

Christopher O. Murray, Brownstein Hyatt Farber Schreck, LLP, Denver, Colorado, filed an amicus brief on behalf of Colorado Republican Committee.

Before BRISCOE, HOLMES, and McHUGH, Circuit Judges.

McHUGH, Circuit Judge.

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

Page 901

1) Prospective relief ... 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 42 U.S.C. § 1983. The Department moved to dismiss the complaint. The district court granted the motion, concluding the Presidential Electors lacked standing, and, in the alternative, the Presidential Electors had failed to state a claim upon which relief could be granted. The Presidential Electors now appeal.

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.

Page 902

On the merits of Mr. Baca’s claim, we conclude the state’s removal of Mr. Baca and nullification of his vote were unconstitutional. As a result, Mr. Baca has stated a claim upon which relief can be granted, and we REVERSE the district court’s dismissal of his claim under rule 12(b)(6). We therefore REMAND to the district court for further proceedings consistent with this opinion.

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." Id. amend. XII. The candidates receiving votes for President or Vice President constituting a majority of the electors appointed are elected to those respective offices. Id.

Colorado’s presidential electors are appointed through the state’s general election. Colo. Rev. Stat. § 1-4-301. Nominees for presidential electors are selected at political party conventions or selected by unaffiliated presidential or vice presidential candidates. Id. § § 1-4-302, -303. After being appointed, the presidential electors are required to convene on a specified day to take an oath required by state law and then to cast their ballots for President and Vice President. Id. § 1-4-304(1). Colorado requires the presidential electors to "vote for the presidential candidate, and, by separate ballot, vice-presidential candidate who received the highest number of votes at the preceding general election in this state." Id. § 1-4-304(5).

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." Id. § 1-4-304(1). After all vacancies are filled, the presidential electors "proceed to perform the duties required of them by the constitution and laws of the United States." Id. A presidential elector who attends and votes at the required time and place receives $5 per day of attendance plus mileage reimbursement at $0.15 per mile. Id. § 1-4-305.

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.1 Concerned about allegations of foreign interference in the election, Mr.

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Nemanich contacted Colorados Secretary of State, Wayne Williams, to...

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