I am reluctant to question the motives of litigators, particular a former law professor (indeed, law dean!) who now serves as the Colorado Attorney General. But I wonder about the state’s recent decision to petition the United States Supreme Court to hear the case arising from the “faithless elector” litigation from the 2016 election.
For background, I covered the earlier litigation here, including the Tenth Circuit’s 2-1 decision finding that Colorado wrongly replaced an elector who attempted to cast a vote for a candidate other than the one he pledged to support before Election Day. The one dissenting judge would have found the claim moot.
There are a number of procedural oddities in the case. For one, Colorado waived sovereign immunity, which seems like a bizarre strategic decision if Colorado wanted to defend the claim.
Colorado also did not argue that the state fell outside the scope of Section 1983 claims, which allows a “person” to be held liable for damages. The majority concluded this claim, too, was “waived.” But if Congress denied a remedy under the statute, a party cannot waive that—the federal judiciary has no power to hear the case.
The dissenting judge pointed out that there was no authority to hear the case. It’s a pretty good argument. So why not take the case to the Tenth Circuit en banc, which may be interested in cleaning up such a conclusion? It would allow Colorado’s faithless elector law to stand.
Indeed, the Eighth Circuit reached a similar result in its claim arising out of a faithless elector in Minnesota—a case the Tenth Circuit never even cited!
So why go to the Supreme Court to argue about the merits of the faithless presidential electors issue? Why do it this way, arguing that the “foundation of our nation is at risk”?
After all, if the Supreme Court looks at this case and sees a moot claim… would it take the case? It’s not clear. The Supreme Court doesn’t just engage in error correction of lower courts. Maybe it would feel compelled to correct the lower court’s decision to avoid the faithless elector precedent from sitting out there. Or, maybe it would simply kick the case because it wasn’t significant enough given the procedural error. (Or, maybe it found no procedural error at all, I suppose!)
I’m not sure why this strategic path was taken. Understandably, the Supreme Court has been asked to hear a challenge in which the Washington Supreme Court upheld fines for three faithless electors in the state—so maybe, I guess, there’s a sense of urgency. It’s easier for the United States Supreme Court to ignore a case that (1) preserves the status quo, (2) affects just one state, and (3) didn’t actually replace an elector. Adding the Colorado case (which found the statute unconstitutional, is precedent for all states in the Tenth Circuit, and actually replaced an elector) is a much riper target to find the state law unconstitutional, the opposite of what defenders of the law would want.
Alternatively, maybe the hope is to resolve this definitively by 2020, and an en banc review may still leave time for review with the United States Supreme Court.
Maybe it’s the juiciness of raising a highly salient election law challenge before the Supreme Court, or maybe it’s a strategic reason I haven’t considered. But it’s a curious one that I thought I’d highlight.
UPDATE: Professor Rick Hasen blogs his thoughts here. He writes: “Here’s one possibility I don’t think Derek covers: Colorado wants definitive Supreme Court precedent allowing states to block faithless electors. If Colorado went to the 10th circuit and won on procedural grounds, that would not resolve the merits of barring faithless electors in the 10th circuit, it would not resolve the issue nationally, and it would make it less likely the Supreme Court would take the Washington case, because there would no longer be a split among the courts.”