This July, the Supreme Court issued its decision in Chiafalo v. Washington, the “faithless elector” litigation. The Court concluded that Washington’s decision to fine its presidential electors who cast votes in violation of their promise to vote for the candidate they were pledged to support (i.e., the candidate who received the most votes in a statewide popular vote).

Colorado’s case—Baca v. Colorado Department of State—saw a slightly different fate. Because Justice Sonia Sotomayor recused due to a conflict of interest with the parties, the cases were not heard together. The Baca case presented some more complicated issues, procedurally and relating to the fact that the faithless elector was replaced, not fined.. And so the Supreme Court issued a per curiam decision sending the case back, for reasons stated in Chiafalo. Based on the slight record in the decision, however, it’s not quite clear to me that Baca would be so quickly resolved as Chiafalo.

The case was sent back to the Tenth Circuit, where it languished for a couple of months before being sent back to the District Court. As litigation proceeds, stuff happens in the interim. To start, the district court judge in Colorado who heard the case, Wiley Young Daniel, passed away in May 2019. It’s been reassigned. Today, the new judge issued an order (cleaned up):

ORDER: This matter is before the court sua sponte. The Supreme Court has resolved the appeal and reversed the judgment of the Tenth Circuit Court of Appeals. The Tenth Circuit has vacated its August 20, 2019 judgment and recalled its September 11, 2019 mandate. The Tenth Circuit has remanded to resolve any remaining issues in the case. To facilitate the court's just and speedy determination of this action, on or before November 20, 2020, the parties shall file a joint status report addressing the following: (1) the issues, if any, that this court must resolve on remand; (2) the prospects for settlement; and (3) anything else the parties wish to bring to the court's attention. This case shall be REOPENED. Status Report due on or before 11/20/2020. SO ORDERED by Judge Daniel D. Domenico on 10/19/2020.

Now, I may simply overread things—the parties may simply agree that Chiafalo is on point and dismiss the case. Or the district court agrees and tidies it up. Nevertheless, Colorado’s faithless elector law technically remains under litigation dispute under at least November 20—after Election Day, and before the Electoral College convenes….