U.S. Supreme Court Amicus Brief of Prof. Michael T. Morley in Support of Neither Party in Chiafalo v. Washington (19-465) & Colorado Dep't of State v. Baca (No. 19-518)

36 Pages Posted: 15 Apr 2020

See all articles by Michael Morley

Michael Morley

Florida State University - College of Law

Date Written: March 9, 2020


This Court should reverse the judgment of the U.S. Court of Appeals for the Tenth Circuit in Colorado Dep’t of State v. Baca. The Tenth Circuit abused its discretion in reaching the merits of Respondent Micheal Baca’s constitutional challenge to Colorado’s faithless elector law, since he lacked a valid cause of action under 42 U.S.C. § 1983. Arizonans for Official English v. Arizona, 520 U.S. 43, 69 (1997); Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989). The constitutional avoidance doctrine requires federal courts to avoid adjudicating unsettled constitutional issues when a case can be fully resolved on other, nonconstitutional grounds. Spector Motor Serv., Inc. v. McLaughlin, 323 U.S. 101, 105 (1944). This principle applies even where the parties themselves have not raised the alternate, non-constitutional issue. Neese v. S. Ry. Co., 350 U.S. 77, 78 (1955) (per curiam). The Tenth Circuit erred by adjudicating the merits of Respondent Baca’s constitutional claim rather than dismissing it under § 1983.

Additionally, this Court has recognized that Congress has primary constitutional authority for creating damages remedies for constitutional violations. Bush v. Lucas, 462 U.S. 367, 388-90 (1983). In FDIC v. Meyer, 510 U.S. 471, 486 (1994), this Court refused to create a cause of action to allow plaintiffs to sue federal agencies for damages for constitutional violations. By allowing Respondent Baca’s claim to proceed, the Tenth Circuit allowed such a suit to proceed against a state agency, despite the lack of statutory authorization. Finally, by adjudicating Respondent Baca’s constitutional challenge based on a non-existent cause of action, the Tenth Circuit issued a gratuitous advisory opinion. U.S. Nat’l Bank v. Indep. Ins. Agents of Am., 508 U.S. 439, 447 (1993); see, e.g., California v. San Pablo & T.R. Co., 149 U.S. 308, 314 (1893); cf. Muskrat v. United States, 219 U.S. 346, 348-51 (1911). For these reasons, this Court should conclude that the Tenth Circuit abused its discretion in reaching the merits of Respondent Baca’s constitutional claim. With the Tenth Circuit’s ruling set aside, this Court should dismiss the writ of certiorari in Chiafalo v. Washington as improvidently granted, since there would no longer be a split in authority requiring resolution by this Court.

In the alternative, this Court should vacate both lower courts’ judgments under the political question doctrine. The Constitution assigns Congress responsibility for counting electoral votes. See U.S. CONST. amend. XII; 3 U.S.C. § 15. As part of that authority, Congress is entitled to determine for itself the validity of electoral votes cast pursuant to states’ faithless elector laws. Cf. Nixon v. United States, 506 U.S. 224 (1993); Roudebush v. Hartke, 405 U.S. 15, 25-26 (1972). Moreover, due to Congress’ constitutional power to count electoral votes, a judicial ruling on the merits in this case creates the possibility that different branches of the federal government will reach different conclusions concerning the constitutionally required outcome of future presidential elections. The identity of the duly elected President, however, is an issue on which the nation has a compelling need to avoid “multifarious pronouncements by various departments.” Baker v. Carr, 369 U.S. 186, 216 (1962).

Should this Court reach the merits of the faithless elector issue, however, it should affirm the Supreme Court of Washington’s judgment in Chiafalo and reverse the Tenth Circuit’s judgment in Baca. Faithless elector laws are a valid implication of this Court’s holding that a state legislature’s decision to appoint presidential electors based on the outcome of a statewide popular vote triggers voters’ fundamental constitutional right to vote. See Bush v. Gore, 531 U.S. 98, 104 (2000) (per curiam). Recognizing a “fundamental” constitutional right to vote for President would be a hollow formality if a state’s electors could assert a constitutional prerogative to cast their electoral votes for a candidate who had lost the popular vote within that state—or potentially did not even participate in that state’s presidential election at all.

Keywords: presidential elector, faithless elector, presidential election, electoral college, right to vote, equal protection, bush v. gore, civil rights, 42 U.S.C. 1983, Bivens claims, implied right of action, private right of action, political question, originalism

Suggested Citation

Morley, Michael, U.S. Supreme Court Amicus Brief of Prof. Michael T. Morley in Support of Neither Party in Chiafalo v. Washington (19-465) & Colorado Dep't of State v. Baca (No. 19-518) (March 9, 2020). Available at SSRN: https://ssrn.com/abstract=3558224 or http://dx.doi.org/10.2139/ssrn.3558224

Michael Morley (Contact Author)

Florida State University - College of Law ( email )

425 W. Jefferson Street
Tallahassee, FL 32306
United States

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