Following the presumptive election of Donald Trump as President of the United States on November 8, 2016, concerned citizens mounted a last-ditch effort to convince presidential electors to deny him the presidency when the Electoral College voted on December 19.1×1. See Lilly O’Donnell, Meet the “Hamilton Electors” Hoping for an Electoral College Revolt, The Atlantic (Nov. 21, 2016), https://www.theatlantic.com/politics/archive/2016/11/meet-the-hamilton-electors-hoping-for-an-electoral-college-revolt/508433 [https://perma.cc/U9ZQ-V43W]. Though unsuccessful, this campaign placed a spotlight on the role of electors and spawned litigation in multiple jurisdictions.2×2. In In re Guerra, 441 P.3d 807 (Wash. 2019), the Washington Supreme Court — in a holding contrary to that of the instant case — found that nothing in Article II or the Twelfth Amendment “grants to . . . electors absolute discretion in casting their votes” and that a post-hoc fine for a faithless vote “[did] not interfere with a federal function.” Id. at 817. Recently, in Baca v. Colorado Department of State,3×3. 935 F.3d 887 (10th Cir. 2019). the Tenth Circuit held that Article II and the Twelfth Amendment provide for the independence of presidential electors, and thus states may not compel electors to vote in accordance with the popular vote.4×4. Id. at 955–56. While the Tenth Circuit’s decision to reach this constitutional question was surprising given the doctrine of constitutional avoidance, Baca may be the rare case where the values underlying avoidance theory actually weighed in favor of engaging on the merits.
Democrats Micheal Baca, Polly Baca, and Robert Nemanich (the “anomalous electors”5×5. Some commentators have suggested this term as an alternative to the more pejorative “faithless electors.” Id. at 931 n.17. While Ms. Baca and Mr. Nemanich were technically only prospective anomalous electors, see id. at 904, this comment omits the distinction for ease of reference. ) were appointed as Colorado presidential electors after Hillary Clinton won the popular vote in that state.6×6. Id. at 902. However, rather than voting for Secretary Clinton, they sought to cast their electoral votes for a “compromise candidate” as part of a nationwide effort to unite electors around an alternative to Donald Trump.7×7. See O’Donnell, supra note 1; see also Baca, 935 F.3d at 902–03. After learning of this plan, Colorado Secretary of State Wayne Williams said that he would remove anomalous electors.8×8. Baca, 935 F.3d at 903. In response, Ms. Baca and Mr. Nemanich (unsuccessfully) sought to enjoin him from enforcing the relevant Colorado statute.9×9. See Baca v. Hickenlooper, No. 16-1482, 2016 U.S. App. LEXIS 23391, at *19 (10th Cir. Dec. 16, 2016) (denying an emergency motion for injunction pending appeal); Baca v. Hickenlooper, No. 16-cv-02986, 2016 WL 7384286, at *6 (D. Colo. Dec. 21, 2016) (denying the request for a temporary restraining order and preliminary injunction); see also Colo. Rev. Stat. § 1-4-304(5) (2019) (“Each presidential elector shall vote for the presidential candidate . . . who received the highest number of votes at the preceding general election in this state.”). In simultaneous proceedings, Secretary Williams sued Ms. Baca and Mr. Nemanich in state court, seeking to clarify Colorado’s elector-succession process.10×10. See Baca, 935 F.3d at 903. The state district court found that Colorado electors were “required to vote” for the Clinton ticket and that a failure to do so would cause a “vacancy in the electoral college” that would need to “be immediately filled by a majority vote of the presidential electors present.”11×11. Williams v. Baca, No. 2016-cv-34522, slip op. at 1 (Colo. Dist. Ct. Dec. 13, 2016). The Colorado Supreme Court declined to consider an expedited appeal.12×12. See Baca, 935 F.3d at 903.
The Colorado electors convened to cast their votes on December 19.13×13. Id. at 904. Mr. Baca crossed out Secretary Clinton’s name on his ballot and wrote in “John Kasich.”14×14. Id. Secretary Williams promptly removed him, discarded his vote, and appointed a substitute elector.15×15. Id. After witnessing this, Ms. Baca and Mr. Nemanich “felt intimidated and pressured to vote against their determined judgment” and voted for Secretary Clinton.16×16. Id. (quoting Opening Brief of Appellants Appendix at 17, Baca, 935 F.3d 887 (No. 18-1173)).
The three anomalous electors then filed a complaint in the U.S. District Court for the District of Colorado, asserting a cause of action under 42 U.S.C. § 1983.17×17. Id. A § 1983 claim requires a plaintiff to “prove (1) a person, (2) acting under color of state law, (3) deprived [the plaintiff] of ‘any rights, privileges, or immunities secured by the Constitution and laws.’” Id. at 922 (quoting 42 U.S.C. § 1983 (2012)). They sought a judgment finding that the Colorado Department of State (the “Department”) violated their federally protected rights, declaring the relevant Colorado statute unconstitutional, and awarding them nominal damages.18×18. Id. at 904. The anomalous electors originally sued Secretary Williams, but amended their complaint pursuant to a joint stipulation. See Baca v. Colo. Dep’t of State, No. 17-cv-01937, slip op. at 1 (D. Colo. Oct. 20, 2018) (order of the court re: stipulation of the parties). As part of this stipulation, the Department waived its sovereign immunity. Id. slip op. at 3. The district court dismissed the complaint on two grounds. First, the court held that the anomalous electors lacked standing, because their suit was barred under the political subdivision standing doctrine.19×19. Baca v. Colo. Dep’t of State, No. 17-cv-01937, slip op. at 7–13 (D. Colo. Apr. 10, 2018). This doctrine restricts federal courts’ jurisdiction “over certain controversies between political subdivisions and their parent states.” Id. slip op. at 8 (quoting City of Hugo v. Nichols, 656 F.3d 1251, 1255 (10th Cir. 2011)). Second, the court found that the plaintiffs failed to state a claim, because “state elector[s] enjoy no constitutional protection against removal by the appointing authority.”20×20. Id. slip op. at 25.
The Tenth Circuit affirmed the dismissal of Ms. Baca and Mr. Nemanich’s claims, but reversed with regard to Mr. Baca.21×21. Baca, 935 F.3d at 956. Writing for the panel, Judge McHugh22×22. Judge Holmes joined Judge McHugh’s opinion. first considered whether the plaintiffs had standing. Noting that the political subdivision standing doctrine did not apply, she proceeded to consider the general requirements for standing.23×23. Baca, 935 F.3d at 906–08 (“To satisfy Article III standing, the Presidential Electors [needed to] show an injury in fact, fairly traceable to the challenged action, that [was] redressable by the relief sought.” Id. at 908 (citing Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139, 149 (2010))). She concluded that none of the anomalous electors “allege[d] an imminent personal injury that could confer standing to seek prospective relief.”24×24. Id. at 912. However, she found that Mr. Baca met the “standing requirement for retrospective relief based on his removal from an office to which he was entitled.”25×25. Id. at 915; see id. at 921. With regard to the other claims for retrospective relief, Judge McHugh found that the electors were not entitled to retrospective relief based on “official harm to their role as electors,” id. at 912; see also id. at 912–13, the legislator standing doctrine did not apply, id. at 920–21, and the general threats that influenced Ms. Baca and Mr. Nemanich were “not sufficient to meet the personal injury-in-fact requirement,” id. at 917.
Having surmounted this initial jurisdictional hurdle, Judge McHugh considered whether Mr. Baca’s case was moot.26×26. “Mootness” refers to the termination of standing during litigation through some “intervening circumstance.” Id. at 922 (quoting Campbell-Ewald Co. v. Gomez, 136 S. Ct. 663, 669 (2016)). She acknowledged that “there [was] a major flaw in the merits of [his] § 1983 claim,” because “the Department [was] not a person for purposes of the statute.”27×27. Id. at 924. However, the court could still hear the claim because the Department expressly waived the personhood argument28×28. See id. and the defect was “not obvious from the face of the complaint.”29×29. Id. at 926; see also id. at 927–28. Moreover, Judge McHugh reasoned, the court should not raise this issue sua sponte, because where “the parties [choose] to litigate [a] case on the federal constitutional issues alone,” the “prudential rule of avoiding constitutional questions has no application.”30×30. Id. at 928–29 (quoting Zobrest v. Catalina Foothills Sch. Dist., 509 U.S. 1, 7–8 (1993)).
Proceeding to the merits, Judge McHugh noted that the case turned on the constitutionality of the Department’s removal of Mr. Baca for his anomalous vote.31×31. See id. at 930–31. She determined that the Supreme Court had not resolved the question of elector independence,32×32. See id. at 935–36. Judge McHugh distinguished Ray v. Blair, 343 U.S. 214 (1952), in which the Court found that the Twelfth Amendment did not bar a loyalty pledge in Alabama’s elector primary process, id. at 215, 231, principally on the grounds that Ray did not determine the pledge’s legal enforceability and focused on elector appointment rather than removal, Baca, 935 F.3d at 935–36. and then framed the appropriate constitutional inquiry: whether the Constitution “expressly delegated” removal power to the states.33×33. Baca, 935 F.3d at 939. Judge McHugh found the Department’s claim that the Tenth Amendment reserved such power to the states unconvincing, because “no such power was held by the states before adoption of the federal Constitution.”34×34. Id. (citing U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 803–04 (1995)); see id. at 938. Nor does states’ power to appoint electors necessarily include the power to remove, she reasoned, because electors “exercise a federal function . . . when casting their ballots.”35×35. Id. at 941 (citing Burroughs v. United States, 290 U.S. 534, 545 (1934)). On this point, Judge McHugh found case law dealing with appointments and the implied power of removal inapposite, because the reasoning underlying these decisions “extends solely to the executive power.” Id. at 940.
Turning to the constitutional text, Judge McHugh noted that Article II, as modified by the Twelfth Amendment, sets out “detailed instructions” for the electoral process, but does not expressly delegate to 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.”36×36. Id. at 943. In fact, the text suggests the opposite conclusion: contemporaneous dictionary definitions of “elector,” “vote,” and “ballot” all “imply the right to make a choice,”37×37. Id. at 945. as does the use of the word “elector” elsewhere in the Constitution.38×38. See id. at 945–46. The passage of the Twelfth Amendment, which “did nothing to prevent future faithless votes” despite a previous faithless elector, further reinforced this reading.39×39. Id. at 948. While Judge McHugh acknowledged the state practice of restricting electors’ discretion, she found it noncontrolling because “practices employed — even over a long period — cannot overcome the allocation of power in the Constitution”40×40. Id. at 949 (citing McPherson v. Blacker, 146 U.S. 1, 35–36 (1892)). and because of Congress’s countervailing practice of counting faithless votes.41×41. Id. at 949–50. Finally, Judge McHugh found that contemporaneous authoritative sources — principally the Federalist Papers42×42. See The Federalist No. 64, at 389 (John Jay) (Clinton Rossiter ed., 2003); The Federalist No. 68, supra, at 410–12 (Alexander Hamilton). and Justice Story’s Commentaries on the Constitution43×43. See 3 Joseph Story, Commentaries on the Constitution of the United States § 1457, at 321–22 (Boston, Hilliard, Gray & Co. 1833). — supported the principle of elector discretion.44×44. See Baca, 935 F.3d at 952–55. Based on this analysis, Judge McHugh concluded that “Article II and the Twelfth Amendment provide presidential electors the right to cast a vote . . . with discretion.”45×45. Id. at 955. The court thus reversed the dismissal of Mr. Baca’s claim and remanded for further proceedings.46×46. Id. at 956.
Judge Briscoe dissented. While he acknowledged the majority’s “thorough analysis,” he would have found the case moot.47×47. Id. (Briscoe, J., dissenting). Judge Briscoe contended that, because § 1983 does not create a remedy against a state,48×48. Id. at 957 (quoting Arizonans for Official English v. Arizona, 520 U.S. 43, 69 (1997)). the plaintiffs were foreclosed from asserting a “plausible claim for nominal damages.”49×49. Id. (first citing Arizonans, 520 U.S. at 69; and then citing Lankford v. City of Hobart, 73 F.3d 283, 288 (10th Cir. 1996)). The case thus presented “an abstract dispute about the law” sans a constitutional case or controversy.50×50. Id. at 958 (quoting Alvarez v. Smith, 558 U.S. 87, 93 (2009)). Nor, in Judge Briscoe’s view, did the Department’s waiver of the personhood argument impact this analysis, because parties cannot use stipulations to evade the case or controversy requirement.51×51. See id. at 958–59.
The Baca majority’s decision to reach the constitutional question was surprising given the doctrine of constitutional avoidance. This doctrine counsels that courts should seek to avoid constitutional adjudication on the merits to preserve their institutional legitimacy and promote democratic deliberation. But the structural question at issue in Baca did not implicate traditional institutional credibility concerns, and the Baca court’s ultimate decision may actually help to preserve the judiciary’s legitimacy by forestalling a potential constitutional crisis. The decision may also catalyze democratic debate about the legally ambiguous underpinnings of our electoral system. Thus, Baca was the rare case where the values animating avoidance theory were actually best served by eschewing avoidance and engaging on the merits.
The Baca court’s choice to reach the merits rather than taking a jurisdictional “out” was surprising because it seemingly ran counter to the doctrine of constitutional avoidance. This doctrine suggests that courts should not decide constitutional questions “unless such adjudication is unavoidable.”52×52. Andrew Nolan, Cong. Research Serv., R43706, The Doctrine of Constitutional Avoidance: A Legal Overview 2 (2014) (quoting Spector Motor Serv., Inc. v. McLaughlin, 323 U.S. 101, 105 (1944)). Though often invoked in the statutory interpretation context, constitutional avoidance stands for the broader principle that courts “[should] not pass upon a constitutional question although properly presented . . . , if there is also present some other ground upon which the case may be disposed of.”53×53. Ashwander v. Tenn. Valley Auth., 297 U.S. 288, 347 (1936) (Brandeis, J., concurring); see also Adrian Vermeule, Saving Constructions, 85 Geo. L.J. 1945, 1948–49 (1997) (“[C]ourts should decide an antecedent statutory issue, even one waived by the parties, if its resolution could preclude a constitutional claim.” (emphasis added)). The theory is intertwined with the “passive virtues” — courts’ use of justiciability doctrines to avoid reaching the merits.54×54. See Alexander M. Bickel, The Supreme Court, 1960 Term — Foreword: The Passive Virtues, 75 Harv. L. Rev. 40, 40–47 (1961); see also Alexander M. Bickel, The Least Dangerous Branch: The Supreme Court at the Bar of Politics 71, 122–25 (2d ed. 1986); cf. Cass R. Sunstein, One Case at a Time: Judicial Minimalism on the Supreme Court 3–6 (1999) (using many of the rationales underlying the “passive virtues” to advocate for judicial minimalism in cases where the Court reaches the merits).
Proponents of constitutional avoidance point to two primary benefits. First, institutional credibility: by declining to reach constitutional questions, courts “avoid unnecessary entanglement in controversial and sensitive constitutional issues, protecting the judiciary from potential backlash by the political branches and preserving the [courts’] role as the protector[s] of established constitutional principles.”55×55. Nolan, supra note 52, at 7; see also Lisa A. Kloppenberg, Does Avoiding Constitutional Questions Promote Judicial Independence?, 56 Case W. Res. L. Rev. 1031, 1033–35 (2006) (discussing the argument that avoidance promotes judicial credibility and independence). Second, separation of powers and the promotion of the democratic process: Avoidance of constitutional rulings keeps the political branches’ options open, giving “the political processes . . . relatively free play.”56×56. Bickel, supra note 54, at 70; see also Richard L. Hasen, Constitutional Avoidance and Anti-avoidance by the Roberts Court, 2009 Sup. Ct. Rev. 181, 183 (noting that constitutional avoidance can be used to “further a dialogue with Congress” and prompt redrafting of legislation). Such an approach promotes democratic deliberation57×57. See Sunstein, supra note 54, at 4. and gives the question at issue time to “ripen.”58×58. Bickel, supra note 54, at 71. Whatever the rationale, constitutional avoidance remains a favored tool in the federal judiciary’s arsenal59×59. See, e.g., Nolan, supra note 52, at 11 (noting that the Roberts Court’s jurisprudence “illustrat[es] the continued viability” of constitutional avoidance and related doctrines). — making the Baca court’s decision not to invoke the doctrine all the more surprising.
However, in Baca, institutional credibility considerations actually weighed in favor of direct engagement with the constitutional question. To begin with, the question presented was not the type of divisive political issue that most concerns proponents of constitutional avoidance.60×60. Recent examples of such issues include affirmative action and voting rights. See id. at 17–18. Rather, it was a structural question regarding the Article II process explicitly detailed in the Constitution.61×61. See Baca, 935 F.3d at 942. This seems like precisely the type of question courts should decide. As Justice Scalia noted in his NLRB v. Noel Canning62×62. 134 S. Ct. 2550 (2014). concurrence: “It is not every day that [the Court] encounter[s] a proper case or controversy requiring interpretation of the Constitution’s structural provisions,” and thus the Court should “take every opportunity” to reaffirm those principles.63×63. Id. at 2617 (Scalia, J., concurring in the judgment); see also Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803) (“It is emphatically the province and duty of the judicial department to say what the law is.”); Gerald Gunther, The Subtle Vices of the “Passive Virtues” — A Comment on Principle and Expediency in Judicial Review, 64 Colum. L. Rev. 1, 25 (1964) (noting that excessive use of avoidance may “enervat[e] principle to an impermissible degree”). The Baca court’s decision to reach and expound upon the constitutional question may also have been motivated by awareness of parallel litigation in Washington State, see In re Guerra, 441 P.3d 807 (Wash. 2019), and a desire to provide additional reference for the Supreme Court should it choose to take up the question.
Indeed, deciding the constitutional question in a relatively apolitical setting may actually preserve courts’ legitimacy by forestalling a potential constitutional crisis. In 2000, George W. Bush prevailed in the presidential election with a bare majority of 271.64×64. Jeff Trandahl, Office of the Clerk, U.S. House of Representatives, Statistics of the Presidential and Congressional Election of November 7, 2000, at 74 (2001), http://clerk.house.gov/member_info/electionInfo/2000election.pdf [https://perma.cc/47JD-MQC2]. If faithless electors were to change the outcome of a similarly close election in the future, the courts would likely be called on to resolve the question of elector discretion in a highly politicized, time-sensitive environment à la Bush v. Gore.65×65. 531 U.S. 98 (2000); see Ron Elving, The Florida Recount of 2000: A Nightmare that Goes on Haunting, NPR (Nov. 12, 2018, 5:00 AM), https://www.npr.org/2018/11/12/666812854/the-florida-recount-of-2000-a-nightmare-that-goes-on-haunting [https://perma.cc/9WHU-L323]. Far better to settle the matter behind the “veil of ignorance” when an election is not on the line and the stakes — and the risk to the judiciary’s legitimacy — are much lower.66×66. Professors Guy-Uriel Charles and Luis Fuentes-Rohwer have proposed a similar “ounce of prevention” approach in the political question context. See Guy-Uriel E. Charles & Luis E. Fuentes-Rohwer, The Supreme Court, 2017 Term — Comment: Judicial Intervention as Judicial Restraint, 132 Harv. L. Rev. 236, 239–41 (2018) (“[J]udicial intervention in [certain] context[s] is an act of judicial restraint because it obviates the need for the Court to take sides later on substantive partisan disputes . . . .” Id. at 241.); see also Eric A. Posner & Adrian Vermeule, Constitutional Showdowns, 156 U. Pa. L. Rev. 991, 1042 (2008) (“[T]heorists of the passive virtues . . . ignor[e] the opportunity cost of failures to clarify the constitutional rules in ways that can avoid more conflict in the future.”).
Democratic process considerations also favored direct engagement in Baca. Constitutional avoidance may promote democratic deliberation in cases where a ruling would prematurely calcify a contested norm.67×67. See, e.g., Bickel, supra note 54, at 70–71; Sunstein, supra note 54, at 4–5. But, prior to the 2016 election, the role of presidential electors was subject to relatively little scrutiny or democratic debate. The common understanding was that electors were “clerks, not kingmakers”68×68. Keith E. Whittington, Originalism, Constitutional Construction, and the Problem of Faithless Electors, 59 Ariz. L. Rev. 903, 936 (2017). — that, over two centuries of practice, an “unwritten and informal” norm had developed that limited their discretion.69×69. Id. at 927; see id. at 929. Yet the legal constraints on electors remain largely undefined: twenty-one states do not place legal limits on elector choice,70×70. See Nat’l Ass’n of Sec’ys of State, Summary: State Laws Regarding Presidential Electors 1 (2016), https://www.nass.org/sites/default/files/surveys/2017-08/research-state-laws-pres-electors-nov16.pdf [https://perma.cc/5B78-4XQF]. and laws in the other states establish varying degrees of control.71×71. See generally id. (compiling relevant state statutes). In this context, courts glean little additional information by waiting, as the political branches have already reached a general understanding.72×72. Cf. Bickel, supra note 54, at 70–71. However, if this understanding rests on an unsteady legal foundation, courts can spur democratic deliberation of a different sort.73×73. See Cass R. Sunstein, Beyond Judicial Minimalism, 43 Tulsa L. Rev. 825, 841 (2008) (arguing that “incompletely theorized agreements should be subject to scrutiny and critique”); cf. Cass R. Sunstein, Public Deliberation, Affirmative Action, and the Supreme Court, 84 Calif. L. Rev. 1179, 1182–85 (1996) (noting, albeit in a discussion of narrow rulings, the role that courts can play in drawing public attention to underexamined issues). By reaching the constitutional question and foregrounding the tension between modern understandings and the Constitution, the Baca court provided political actors and society clarity. This clarity may spark generative democratic debate — for example, over whether to heighten scrutiny of potential electors,74×74. See, e.g., Vikram David Amar, Three Observations About the (Limited) Impact of the Tenth Circuit’s Recent Decision (in Baca v. Colorado Department of State) Concerning “Faithless” Electors in the Electoral College, Justia: Verdict (Sept. 5, 2019), https://verdict.justia.com/2019/09/05/three-observations-about-the-limited-impact-of-the-tenth-circuits-recent-decision-in-baca-v-colorado-department-of-state-concerning-faithless-electors-in-the-electoral [https://perma.cc/CYR2-YCRL]. support a constitutional amendment modifying the current process,75×75. See John Laidler, End the Electoral College?, Harv. Gazette (Oct. 21, 2019), https://news.harvard.edu/gazette/story/2019/10/harvard-panel-debates-effectiveness-of-electoral-college [https://perma.cc/J485-SLFY]. or revisit the Electoral College system as a whole.76×76. See, e.g., Editorial Board, Opinion, Fix the Electoral College — Or Scrap It, N.Y. Times (Aug. 30, 2019), https://nyti.ms/2Lbj3q6 [https://perma.cc/DQK8-CUQV].
Baca may thus be the rare case where “anti-avoidance” was warranted — where the court was correct to affirmatively engage and clarify.77×77. See Hasen, supra note 56, at 183 (describing “anti-avoidance” as the Court “setting itself up to address a constitutional question head-on [even when the question] was not properly presented”). True, the court’s ultimate ruling unsettled a longstanding norm and is arguably inconsistent with modern democratic values.78×78. See Noah Feldman, Opinion, Appeals Court Opens the Door to Electoral College Chaos, Bloomberg (Aug. 25, 2019, 9:21 AM), https://www.bloomberg.com/opinion/articles/2019-08-25/electoral-college-chaos-is-possible-over-faithless-elector-ruling [https://perma.cc/3GRN-5TUP]. But the practical effect of elector freedom is likely to be small, and can be further cabined by changes to state appointment processes.79×79. See Amar, supra note 74 (arguing that states — which under the Baca court’s reasoning retain plenary appointment authority — could significantly reduce faithlessness by appointing electors from among candidates’ campaign staffs on the eve of the election). More important is the very fact of judicial engagement with the uncomfortable realities of the Electoral College system. Such engagement brings the anachronisms of the system into sharp focus and may center and legitimize proposals for reform. Thus, the Baca court’s approach not only promoted the virtues underlying avoidance theory but could also provoke constitutional evolution in a more fundamental sense.