Amicus Brief of Professor Michael T. Morley in Support of Neither Party, Colorado Dep't of State v. Baca, No. 19-519 (U.S. 2019)

29 Pages Posted: 6 Dec 2019

See all articles by Michael Morley

Michael Morley

Florida State University - College of Law

Date Written: November 20, 2019


The U.S. Supreme Court should grant the petition for certiorari, vacate the judgment of the U.S. Court of Appeals for the Tenth Circuit, and remand for immediate dismissal of the case. The Tenth Circuit held that Article II and the Twelfth Amendment of the U.S. Constitution prohibit a state from binding its presidential electors. It concluded that a state cannot require its electors to cast their electoral votes for the presidential candidate who received the plurality of votes within that state. Based on this reasoning, the court held Colorado’s Elector Binding Law, Colo. Rev. Stat. § 1-4-304, unconstitutional.

The Tenth Circuit’s ruling purports to resolve a critical issue of constitutional law that presents a matter of first impression for this Court. It calls into question the validity of laws binding presidential electors in 29 other jurisdictions. It impacts the constitutional right to vote of tens of millions of voters throughout the nation, potentially undermining public confidence in the presidential election process. And it was wholly unnecessary. Respondents’ sole cause of action in the Second Amended Complaint was a claim under 42 U.S.C. § 1983 against Petitioner Colorado Department of State. The Tenth Circuit properly held that Respondents lacked standing to seek prospective relief concerning future elections, and a standalone claim for declaratory relief concerning the long-completed 2016 election would be useless, The only justiciable avenue for relief that had not become moot was Respondent Micheal Baca’s claim for $1 in nominal damages against the Colorado Department of State.

As the Tenth Circuit itself candidly admitted, however, § 1983 does not create a cause of action for damages against state agencies. Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989). The court nevertheless chose to adjudicate Respondent Baca’s claim because Petitioner had agreed to refrain from invoking sovereign immunity or arguing that § 1983 does not apply to it. Based solely on the parties’ agreement, the Tenth Circuit adjudicated an unsettled, far-reaching, and controversial question of constitutional law with nationwide impact, notwithstanding the complete lack of a valid underlying cause of action. “[T]he State and arms of the State . . . are not subject to suit under § 1983 in either federal court or state court.” Howlett v. Rose, 496 U.S. 356, 365 (1990). The Tenth Circuit erred by adjudicating a type of claim this Court has characterized as “nonexistent,” Arizonans for Official English v. Arizona, 520 U.S. 43 (1997), and “not . . . valid,” Lapides v. Bd. of Regents, 535 U.S. 613, 617 (2002). The error was especially problematic in this case because it led the court to unnecessarily resolve an unresolved constitutional issue. Federal courts are required to avoid gratuitously adjudicating constitutional questions when non-constitutional grounds exist for resolving a case. See Neese v. S. Ry. Co., 350 U.S. 77, 78 (1955) (per curiam); Alma Motor Co. v. Timken-Detroit Axle Co., 329 U.S. 129, 136 (1946).

The Tenth Circuit’s decision to award a remedy—damages against a state agency—that Congress did not authorize also undermined separation-of-powers principles. See Franklin v. Gwinnett Cnty. Pub. Sch., 503 U.S. 60, 74 (1992). Indeed, the Tenth Circuit allowed Respondent to bring against a state agency the very type of statutorily unauthorized claim for damages arising from constitutional violations that this Court expressly refused to recognize against federal agencies in FDIC v. Meyer, 510 U.S. 471, 486 (1994). By willfully basing its ruling upon an incorrect construction of § 1983, the Tenth Circuit also issued an unconstitutional advisory opinion in violation of Article III. See U.S. Nat’l Bank v. Independent Insurance Agents of America, 508 U.S. 439, 447 (1993). The Tenth Circuit was not bound by Petitioner’s purported “waiver” of the § 1983 issue and, especially under the circumstances of this case, should not have accepted it. This Court should grant certiorari for the sole purpose of vacating the Tenth Circuit’s gratuitous constitutional adjudication.

Moreover, Article III’s adverseness requirements limit litigants’ ability to manufacture constitutional litigation through strategic stipulations and waivers. Arizonans for Official English, 520 U.S. at 71; Muskrat v. United States, 219 U.S. 346, 361-63 (1911); California v. San Pablo & T.R. Co., 149 U.S. 308, 314 (1893). The parties’ cooperation in crafting a lawsuit to secure a judicial ruling on the constitutionality of Colorado’s Elector Binding Law further undermines this case’s justiciability. Again, vacating the Tenth Circuit’s judgment is the proper remedy.

Keywords: presidential elector, 42 u.s.c. 1983, elector binding, faithless elector, civil rights, private right of action, bivens claim, advisory opinion, article iii, separation of powers, justiciability, friendly suit, adversity requirement

Suggested Citation

Morley, Michael, Amicus Brief of Professor Michael T. Morley in Support of Neither Party, Colorado Dep't of State v. Baca, No. 19-519 (U.S. 2019) (November 20, 2019). Available at SSRN: or

Michael Morley (Contact Author)

Florida State University - College of Law ( email )

425 W. Jefferson Street
Tallahassee, FL 32306
United States

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