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 Though unsuccessful, this campaign placed a spotlight on the role of electors and spawned litigation in multiple jurisdictions.2 Recently, in Baca v. Colorado Department of State,3 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 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) were appointed as Colorado presidential electors after Hillary Clinton won the popular vote in that state.6 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 After learning of this plan, Colorado Secretary of State Wayne Williams said that he would remove anomalous electors.8 In response, Ms. Baca and Mr. Nemanich (unsuccessfully) sought to enjoin him from enforcing the relevant Colorado statute.9 In simultaneous proceedings, Secretary Williams sued Ms. Baca and Mr. Nemanich in state court, seeking to clarify Colorado’s elector-succession process.10 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 The Colorado Supreme Court declined to consider an expedited appeal.12
The Colorado electors convened to cast their votes on December 19.13 Mr. Baca crossed out Secretary Clinton’s name on his ballot and wrote in “John Kasich.”14 Secretary Williams promptly removed him, discarded his vote, and appointed a substitute elector.15 After witnessing this, Ms. Baca and Mr. Nemanich “felt intimidated and pressured to vote against their determined judgment” and voted for Secretary Clinton.16
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 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 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 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
The Tenth Circuit affirmed the dismissal of Ms. Baca and Mr. Nemanich’s claims, but reversed with regard to Mr. Baca.21 Writing for the panel, Judge McHugh22 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 She concluded that none of the anomalous electors “allege[d] an imminent personal injury that could confer standing to seek prospective relief.”24 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
Having surmounted this initial jurisdictional hurdle, Judge McHugh considered whether Mr. Baca’s case was moot.26 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 However, the court could still hear the claim because the Department expressly waived the personhood argument28 and the defect was “not obvious from the face of the complaint.”29 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
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 She determined that the Supreme Court had not resolved the question of elector independence,32 and then framed the appropriate constitutional inquiry: whether the Constitution “expressly delegated” removal power to the states.33 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 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
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 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 as does the use of the word “elector” elsewhere in the Constitution.38 The passage of the Twelfth Amendment, which “did nothing to prevent future faithless votes” despite a previous faithless elector, further reinforced this reading.39 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 and because of Congress’s countervailing practice of counting faithless votes.41 Finally, Judge McHugh found that contemporaneous authoritative sources — principally the Federalist Papers42 and Justice Story’s Commentaries on the Constitution43 — supported the principle of elector discretion.44 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 The court thus reversed the dismissal of Mr. Baca’s claim and remanded for further proceedings.46
Judge Briscoe dissented. While she acknowledged the majority’s “thorough analysis,” she would have found the case moot.47 Judge Briscoe contended that, because § 1983 does not create a remedy against a state,48 the plaintiffs were foreclosed from asserting a “plausible claim for nominal damages.”49 The case thus presented “an abstract dispute about the law” sans a constitutional case or controversy.50 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
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 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 The theory is intertwined with the “passive virtues” — courts’ use of justiciability doctrines to avoid reaching the merits.54
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 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 Such an approach promotes democratic deliberation57 and gives the question at issue time to “ripen.”58 Whatever the rationale, constitutional avoidance remains a favored tool in the federal judiciary’s arsenal59 — 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 Rather, it was a structural question regarding the Article II process explicitly detailed in the Constitution.61 This seems like precisely the type of question courts should decide. As Justice Scalia noted in his NLRB v. Noel Canning62 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
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 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 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
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 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 — that, over two centuries of practice, an “unwritten and informal” norm had developed that limited their discretion.69 Yet the legal constraints on electors remain largely undefined: twenty-one states do not place legal limits on elector choice,70 and laws in the other states establish varying degrees of control.71 In this context, courts glean little additional information by waiting, as the political branches have already reached a general understanding.72 However, if this understanding rests on an unsteady legal foundation, courts can spur democratic deliberation of a different sort.73 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 support a constitutional amendment modifying the current process,75 or revisit the Electoral College system as a whole.76
Baca may thus be the rare case where “anti-avoidance” was warranted — where the court was correct to affirmatively engage and clarify.77 True, the court’s ultimate ruling unsettled a longstanding norm and is arguably inconsistent with modern democratic values.78 But the practical effect of elector freedom is likely to be small, and can be further cabined by changes to state appointment processes.79 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.