Baca v. Colo. Dep't of State
| Decision Date | 20 August 2019 |
| Docket Number | No. 18-1173,18-1173 |
| Citation | 935 F.3d 887 |
| Parties | 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. |
| Court | U.S. Court of Appeals — Tenth Circuit |
TABLE OF CONTENTS
I. INTRODUCTION ... 901
II. BACKGROUND ... 902
III. DISCUSSION PART ONE: STANDING ... 905
i. Legal background ... 909
ii. Application ... 911
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
i. Legal background ... 917
ii. Application ... 920
IV. DISCUSSION PART TWO: MOOTNESS ... 922
V. DISCUSSION PART THREE: FAILURE TO STATE A CLAIM ... 928
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
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.
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.
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.
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. Nemanich contacted Colorado’s Secretary of State, Wayne Williams, to ask what would happen if a Colorado elector did not vote for Hillary Clinton and Tim Kaine. Secretary Williams responded that "his ‘office would likely remove the elector and seat a replacement elector until all nine electoral votes were cast for the winning candidates.’ " App. at 15. Secretary Williams also warned that the elector would likely face perjury charges.
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, 2016 WL 7384286, at *1 (D. Colo. Dec. 21, 2016). Ms. Baca and Mr. Nemanich then sought an emergency injunction pending appeal, which we denied. Order at 1, Baca v. Hickenlooper (Baca I ), No. 16-1482 (10th Cir. Dec. 16, 2016).2 In doing so, we criticized Ms. Baca and Mr. Nemanich for failing to point to any language in Article II or the Twelfth Amendment to support their position. Id. at 10. But we also noted that "[t]his is not to say that there is no language in Article II or the Twelfth Amendment that might ultimately support plaintiffs’ position." Id. at 10 n.3. To the contrary, we predicted in a footnote that an attempt by the state to remove an elector after voting had begun was "unlikely in light of the text of the Twelfth Amendment." Id. at 12 n.4. At that stage of the proceedings, however, we concluded the Presidential Electors had "raise[d] at best a debatable argument" and therefore had not met their burden of showing a substantial likelihood of success on the merits. Id. at 10–11. We consequently held they were not entitled to an injunction pending appeal. Id. at 15.
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.3
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