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Baca v. Colorado Department of State

United States Court of Appeals, Tenth Circuit

August 20, 2019

MICHEAL BACA; POLLY BACA; ROBERT NEMANICH, Plaintiffs-Appellants,
v.
COLORADO DEPARTMENT OF STATE, Defendant-Appellee. INDEPENDENCE INSTITUTE; DAVID G. POST; DEREK T. MULLER; MICHAEL L. ROSIN; ROBERT M. HARDAWAY, Professor of Law, University of Denver Sturm College of Law; COLORADO REPUBLICAN COMMITTEE, Amici Curiae.

          Appeal from the United States District Court for the District of Colorado (D.C. No. 1:17-CV-01937-WYD-NYW)

          Jason Harrow, Equal Citizens, Cambridge, Massachusetts (Jason B. Wesoky, Hamilton Defenders, Denver, Colorado, and Lawrence Lessig, Equal Citizens, Cambridge, Massachusetts, with him on the briefs), for Plaintiff - Appellants.

          Grant T. Sullivan, Assistant Solicitor General (Cynthia H. Coffman, Attorney General; Frederick R. Yarger, Solicitor General; LeeAnn Morrill, First Assistant Attorney

          General; Matthew Grove, Assistant Solicitor General, with him on the brief), for Appellee Colorado Department of State, Denver, Colorado.

          Michael Donofrio, Donofrio Asay PLC, Montpelier, Vermont, and Aaron Solomon, Hale Westfall, LLP, Denver, Colorado, filed an amicus brief on behalf of Michael L. Rosin and David G. Post.

          David B. Kopel, Independence Institute, Denver, Colorado, filed an amicus brief on behalf of Independence Institute.

          Michael Francisco, Statecraft, PLLC, Colorado Springs, Colorado, and Derek T. Muller, Associate Professor of Law, Pepperdine University Law School, Malibu, California, filed an amicus brief on behalf of Derek T. Muller.

          Jeffrey S. Hurd, Bernard A. Buescher, William A. Hobbs, Ireland Stapleton Pryor & Pascoe, P.C., Denver, Colorado, and Robert M. Hardaway, Professor of Law, University of Denver, Sturm College of Law, Denver, Colorado, filed an amicus brief on behalf of Robert M. Hardaway.

          Christopher O. Murray, Brownstein Hyatt Farber Schreck, LLP, Denver, Colorado, filed an amicus brief on behalf of Colorado Republican Committee.

          Before BRISCOE, HOLMES, and McHUGH, Circuit Judges.

          McHugh, Circuit Judge.

         Table of Contents

         I. INTRODUCTION 1

         II. BACKGROUND 2

         A. Legal Background 2

         B. Factual History 4

         C. Procedural History 7

         III. DISCUSSION PART ONE: STANDING 9

         A. Standard of Review and Burden of Proof 10

         B. Political Subdivision Standing Doctrine 10

         1. Legal Background 11

         2. Application 11

         C. General Standing Principles 15

         1. Injury in Fact 16

         a. Personal versus official interest 17

         b. Prospective versus retrospective relief 18

         i. Legal background 18

         ii. Application 21

         1) Prospective relief 22

         2) Retrospective relief 24

         a) Mr. Baca's removal from office and referral for prosecution 27

         b) Threats against Ms. Baca and Mr. Nemanich 30

         c. Legislator standing 34

         i. Legal background 34

         ii. Application 40

         2. Traceability and Redressability 43

         IV. DISCUSSION PART TWO: MOOTNESS 45

         V. DISCUSSION PART THREE: FAILURE TO STATE A CLAIM 56

         A. Standard of Review 57

         B. "Person" Under § 1983 57

         C. Constitutional Violation 61

         1. The Federal Constitution 63

         2. Legal Precedent 66

         3. Framing the Question 72

         a. Supremacy clause 73

         b. Tenth Amendment 76

         4. Constitutional Text 78

         a. Appointment power 78

         b. Article II and the Twelfth Amendment 83

         i. Role of the states after appointment 84

         ii. Use of "elector," "vote," and "ballot" 87

         1) Contemporaneous dictionary definitions 87

         2) Use of "elector" in the Constitution 91

         5. Enactment of the Twelfth Amendment 94

         6. Historical Practices 98

         a. Elector pledges 99

         b. Short-form ballots 101

         7. Authoritative Sources 105

         VI. CONCLUSION 114

         I. INTRODUCTION

         Micheal Baca, Polly Baca, and Robert Nemanich (collectively, the Presidential Electors) were appointed as three of Colorado's nine presidential electors for the 2016 general election. Colorado law requires the state's presidential electors to cast their votes for the winner of the popular vote in the state for President and Vice President. Although Colorado law required the Presidential Electors to cast their votes for Hillary Clinton, Mr. Baca cast his vote for John Kasich. In response, Colorado's Secretary of State removed Mr. Baca as an elector and discarded his vote. The state then replaced Mr. Baca with an elector who cast her vote for Hillary Clinton. After witnessing Mr. Baca's removal from office, Ms. Baca and Mr. Nemanich voted for Hillary Clinton despite their desire to vote for John Kasich.

         After the vote, the Presidential Electors sued the Colorado Department of State (the Department), alleging a violation of 42 U.S.C. § 1983. The Department moved to dismiss the complaint. The district court granted the motion, concluding the Presidential Electors lacked standing, and, in the alternative, the Presidential Electors had failed to state a claim upon which relief could be granted. The Presidential Electors now appeal.

         We conclude Mr. Baca has standing to challenge his personal injury-removal from office and cancellation of his vote-but that none of the Presidential Electors have standing to challenge the institutional injury-a general diminution of their power as electors. Therefore, we AFFIRM the district court's dismissal of Ms. Baca's and Mr. Nemanich's claims under rule 12(b)(1) for lack of standing but REVERSE the district court's standing determination as to Mr. Baca.

         On the merits of Mr. Baca's claim, we conclude the state's removal of Mr. Baca and nullification of his vote were unconstitutional. As a result, Mr. Baca has stated a claim upon which relief can be granted, and we REVERSE the district court's dismissal of his claim under rule 12(b)(6). We therefore REMAND to the district court for further proceedings consistent with this opinion.

         II. BACKGROUND

         This opinion is divided in three parts. Our analysis begins, as it must, with our power to decide the issues raised by the parties. Thus, the first part of this opinion considers the standing of each of the Presidential Electors with respect to each of their claims for relief. After concluding that only Mr. Baca has standing, we next consider whether this case is moot. Because we conclude this case is not moot, we turn to the final part of our analysis: whether the state acted unconstitutionally in removing Mr. Baca from office, striking his vote for President, and preventing him from casting a vote for Vice President. But before we tackle these separate parts of the analysis, we place our discussion in context by providing a brief legal background and then setting forth a more detailed factual and procedural history.

         A. Legal Background

         The United States Constitution provides that "[e]ach State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress." U.S. Const. art. II, § 1, cl. 2. These presidential electors convene in their respective states and "vote by [distinct] ballot for President and Vice-President." Id. amend. XII. The candidates receiving votes for President or Vice President constituting a majority of the electors appointed are elected to those respective offices. Id.

         Colorado's presidential electors are appointed through the state's general election. Colo. Rev. Stat. § 1-4-301. Nominees for presidential electors are selected at political party conventions or selected by unaffiliated presidential or vice presidential candidates. Id. §§ 1-4-302, -303. After being appointed, the presidential electors are required to convene on a specified day to take an oath required by state law and then to cast their ballots for President and Vice President. Id. § 1-4-304(1). Colorado requires the presidential electors to "vote for the presidential candidate, and, by separate ballot, vice-presidential candidate who received the highest number of votes at the preceding general election in this state." Id. § 1-4-304(5).

         If there is a vacancy "in the office of presidential elector because of death, refusal to act, absence, or other cause, the presidential electors present shall immediately proceed to fill the vacancy in the electoral college." Id. § 1-4-304(1). After all vacancies are filled, the presidential electors "proceed to perform the duties required of them by the constitution and laws of the United States." Id. A presidential elector who attends and votes at the required time and place receives $5 per day of attendance plus mileage reimbursement at $0.15 per mile. Id. § 1-4-305.

         B. Factual History

         In April 2016, Mr. Baca, Ms. Baca, and Mr. Nemanich were nominated as three of the Colorado Democratic Party's presidential electors and, after Hillary Clinton and Tim Kaine won the popular vote in Colorado, were appointed as presidential electors for the state.[1] Concerned about allegations of foreign interference in the election, Mr. Nemanich contacted Colorado's Secretary of State, Wayne Williams, to ask what would happen if a Colorado elector did not vote for Hillary Clinton and Tim Kaine. Secretary Williams responded that "his 'office would likely remove the elector and seat a replacement elector until all nine electoral votes were cast for the winning candidates.'" App. at 15. Secretary Williams also warned that the elector would likely face perjury charges.

         In response, Ms. Baca and Mr. Nemanich filed a complaint in the United States District Court for the District of Colorado on December 6, 2016, seeking to enjoin the Secretary from enforcing § 1-4-304(5) on the ground it violated Article II and the Twelfth Amendment to the U.S. Constitution. The district court denied the request for an injunction in an oral ruling on December 12, 2016. Baca v. Hickenlooper, No. 16-cv-02986-WYD-NYW, 2016 WL 7384286, at *1 (D. Colo. Dec. 21, 2016). Ms. Baca and Mr. Nemanich then sought an emergency injunction pending appeal, which we denied. Order at 1, Baca v. Hickenlooper (Baca I), No.16-1482 (10th Cir. Dec. 16, 2016).[2] In doing so, we criticized Ms. Baca and Mr. Nemanich for failing to point to any language in Article II or the Twelfth Amendment to support their position. Id. at 10. But we also noted that "[t]his is not to say that there is no language in Article II or the Twelfth Amendment that might ultimately support plaintiffs' position." Id. at 10 n.3. To the contrary, we predicted in a footnote that an attempt by the state to remove an elector after voting had begun was "unlikely in light of the text of the Twelfth Amendment." Id. at 12 n.4. At that stage of the proceedings, however, we concluded the Presidential Electors had "raise[d] at best a debatable argument" and therefore had not met their burden of showing a substantial likelihood of success on the merits. Id. at 10-11. We consequently held they were not entitled to an injunction pending appeal. Id. at 15.

         In an overlapping lawsuit, Secretary Williams sued Ms. Baca and Mr. Nemanich in Colorado state court, seeking guidance on Colorado's law regarding succession of presidential electors. The state district court determined that a presidential elector's failure to vote for Hillary Clinton and Tim Kaine, as required by § 1-4-304(5), is a "refusal to act" under § 1-4-304(1), and therefore "causes a vacancy in the electoral college." App. at 35. The court further decided that any "vacancy in the electoral college shall be immediately filled by a majority vote of the presidential electors present." Id. The Colorado Supreme Court declined a petition for immediate review of that order.[3]

         On December 19, 2016, the Colorado electors met to cast their votes. Before voting commenced, Secretary Williams required the electors to take a revised oath that affirmed they would vote consistently with the results of the state's popular election. Secretary Williams also warned that any elector who violated the oath may be subject to felony perjury charges. Despite taking the oath, Mr. Baca crossed out "Hillary Clinton" from his presidential ballot and wrote in "John Kasich." Secretary Williams then removed Mr. Baca as an elector, refused to count his vote, and replaced him with a substitute elector who cast a vote for Hillary Clinton. After this series of events, Ms. Baca and Mr. Nemanich "felt intimidated and pressured to vote against their determined judgment" and cast votes for Hillary Clinton and Tim Kaine. Id. at 17. Mr. Baca attempted to vote for Tim Kaine as Vice President, but the Secretary refused to count his vote. Secretary Williams then referred Mr. Baca to the Colorado Attorney General for criminal investigation.

         C. Procedural History

         Ms. Baca and Mr. Nemanich voluntarily dismissed their prior case and filed a new complaint, later joined by Mr. Baca, that is the subject of this appeal. The Presidential Electors' Second Amended Complaint asserts a single cause of action under 42 U.S.C. § 1983, alleging a violation of their constitutional rights under Article II and the Twelfth Amendment. The Presidential Electors seek relief in the form of a judgment (1) finding the Department violated their federally protected rights, (2) declaring § 1-4-304(5) unconstitutional, and (3) awarding nominal damages.[4]

         The Department filed a motion to dismiss the Second Amended Complaint under Federal Rule of Civil Procedure 12(b)(1) for lack of standing and under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim. The district court granted the motion to dismiss on both grounds. First, the district court decided the Presidential Electors lacked standing based on the political subdivision standing doctrine. Second, and in the alternative, the district court concluded the Presidential Electors failed to state a claim upon which relief could be granted because the United States Constitution does not prohibit states from binding electors to vote for the candidate who wins the state's popular vote. The Presidential Electors filed a timely notice of appeal, and we have jurisdiction under 28 U.S.C. § 1291 to consider the appeal.

         After oral argument in this case, we asked the parties to provide supplemental briefing to address two questions:

1. Whether Will v. Michigan Dept. of State Police, 491 U.S. 58 (1989), and/or Arizonans for Official English v. Arizona, 520 U.S. 43 (1997):
(a) impact(s) the district court's jurisdiction to entertain this action; or
(b) render(s) this case moot by preventing the district court from awarding nominal damages.
2. Whether this court, assuming jurisdiction, should exercise our discretion to affirm the district court on the alternate ground that the plaintiffs have failed to state a claim upon which relief can be granted because the defendant-the Colorado Department of State-is not a "person" for purposes of liability under 42 U.S.C. § 1983.

Order at 1-2 (July 3, 2019).

         The parties filed a joint supplemental response brief acknowledging that the Department is not a "person" for purposes of § 1983. But the parties contend this court's jurisdiction is unaffected. And the Department, "for purposes of this case only, . . . expressly waive[d] the argument that it is not a 'person' under § 1983," ostensibly paving the way for the court "to proceed directly to the important issues discussed extensively in the primary briefing." Joint Resp. to Suppl. Briefing Order at 1.

         Our discussion of the jurisdictional and merits issues raised in this appeal will proceed in three parts. In Part One, we address whether the Presidential Electors have standing to pursue their claims. Concluding that only Mr. Baca has standing in this case, we proceed to Part Two, in which we discuss whether this case is moot because the Department is not a person under § 1983. Finally, in Part Three, we analyze whether the district court correctly dismissed Mr. Baca's claim under rule 12(b)(6).

         III. DISCUSSION PART ONE: STANDING

         We turn now to the district court's holding that the Presidential Electors lack standing, thereby depriving the district court, and in turn this court, of jurisdiction. First, we set out the applicable standard of review and the burden of proof. Next, we consider the district court's holding that the Presidential Electors lack standing under the political subdivision standing doctrine. Concluding that doctrine is not applicable here, we turn to whether any of the Presidential Electors can satisfy the general standing requirements of injury in fact, traceability, and redressability. Ultimately, we conclude that only Mr. Baca has satisfied the injury-in-fact prong of Article III standing. In reaching this conclusion, we reject Ms. Baca's and Mr. Nemanich's argument that they fall within a unique rule of legislative standing announced by the Supreme Court in Coleman v. Miller, 307 U.S. 433 (1939). Instead, only Mr. Baca has asserted a legislative injury. Accordingly, we consider the remaining standing factors-traceability and redressability-only as to Mr. Baca. Because Mr. Baca has satisfied all three prongs of traditional standing, we proceed to the merits of his claim. But we affirm the district court's dismissal of Ms. Baca's and Mr. Nemanich's claims under Rule 12(b)(1) for lack of standing.

         A. Standard of Review and Burden of Proof

         We review de novo a district court's dismissal for lack of jurisdiction under Federal Rule of Civil Procedure 12(b)(1). Holt v. United States, 46 F.3d 1000, 1003 (10th Cir. 1995). A motion under rule 12(b)(1) can be made on the ground that the plaintiff lacks standing and therefore the court lacks subject matter jurisdiction. Citizens for Responsible Gov't State Political Action Comm. v. Davidson, 236 F.3d 1174, 1188-89 (10th Cir. 2000). "The party invoking federal jurisdiction has the burden to establish that it is proper, and there is a presumption against its existence." Salzer v. SSM Health Care of Okla. Inc., 762 F.3d 1130, 1134 (10th Cir. 2014) (internal quotation marks omitted).[5]

         B. Political Subdivision Standing Doctrine

         In reaching its conclusion that the Presidential Electors lack standing, the district court relied on the political subdivision standing doctrine. We first elucidate the legal underpinnings of this doctrine and then explain why it is inapplicable here.

         1. Legal Background

         "Under the doctrine of political subdivision standing, federal courts lack jurisdiction over certain controversies between political subdivisions and their parent states." City of Hugo v. Nichols, 656 F.3d 1251, 1255 (10th Cir. 2011). This doctrine traces back to at least City of Trenton v. New Jersey, in which the Supreme Court recognized that "municipalities have no inherent right of self-government which is beyond the legislative control of the state." 262 U.S. 182, 187 (1923). "[P]olitical subdivisions are created by the state merely for convenience of administration." City of Hugo, 656 F.3d at 1255; see also City of Trenton, 262 U.S. at 185-86 ("The city is a political subdivision of the state, created as a convenient agency for the exercise of such of the governmental powers of the state as may be intrusted to it."). Therefore, "[a] municipality is merely a department of the state, and the state may withhold, grant or withdraw powers and privileges as it sees fit. However great or small its sphere of action, it remains the creature of the state exercising and holding powers and privileges subject to the sovereign will." City of Trenton, 262 U.S. at 187. Thus, "[a] municipal corporation, created by a state for the better ordering of government, has no privileges or immunities under the Federal Constitution which it may invoke in opposition to the will of its creator." Williams v. Mayor & City Council of Baltimore, 289 U.S. 36, 40 (1933).

         2. Application

         According to the district court, the political subdivision standing doctrine applies to both political subdivisions and to state officials. Because the district court concluded presidential electors are state officials, it also concluded the political subdivision standing doctrine barred the Presidential Electors' standing. The Presidential Electors disagree and argue that presidential electors are not state officials because the "state is not the 'creator' of the office of presidential elector"; rather, "the office is created by the federal Constitution." Presidential Electors' Br. at 17. Thus, they contend the political subdivision doctrine does not preclude standing here. In response, the Department asserts that even if the electors are not "political subdivisions," they lack standing because they are state officials and the doctrine "applies not only to artificial political subdivisions, such as municipalities, but also to state officers who attempt to sue the State to challenge state law." Dep't's Br. at 24. The Presidential Electors have the better side of this argument.

         Presidential electors are not political subdivisions or municipalities created by the state. The position of presidential elector is established by the federal Constitution. See U.S. Const. art. II, § 1, cl. 2. And although presidential electors are not federal officials, they exercise a federal function. See Ray v. Blair, 343 U.S. 214, 224 (1952) ("The presidential electors exercise a federal function in balloting for President and Vice-President but they are not federal officers or agents any more than the state elector who votes for congressmen."). Even if that were not the case, the political subdivision standing doctrine does not apply to state officials. A suit against a state official in his or her official capacity is "no different from a suit against the State itself." Will v. Mich. Dep't of State Police, 491 U.S. 58, 71 (1989). If a state official is acting as the "State itself," then the state official is not a political subdivision or municipality with a "parent state."

         The Department challenges this conclusion, relying on decisions it claims support application of the political subdivision standing doctrine to state officers. But our review of these cases reveals they do not stand for that proposition. Instead, they discuss two different justiciability concerns.[6]

         The first concern, discussed in more detail below, is the general proposition that a state official has standing to pursue only a personal, rather than an official, interest. The Supreme Court has long required "the interest of an appellant in this court [to] be a personal, and not an official, interest." Smith v. Indiana, 191 U.S. 138, 149 (1903). Almost every case the Department cites applies this personal interest principle, rather than the political subdivision standing doctrine. See Columbus & Greenville Ry. v. Miller, 283 U.S. 96, 100 (1931) ("The [Fourteenth Amendment] guaranty does not extend to the mere interest of an official, as such, who has not been deprived his property without due process of law or denied the equal protection of the laws."); Donelon v. La. Div. of Admin. Law ex rel. Wise, 522 F.3d 564, 566 (5th Cir. 2008) ("The Supreme Court has held that state officials lack standing to challenge the constitutional validity of a state statute when they are not adversely affected by the statute, and their interest in the litigation is official, rather than personal."); Finch v. Miss. State Med. Ass'n, Inc., 585 F.2d 765, 774 (5th Cir. 1978) ("The mental disposition of the Governor [believing a state statute is in violation of the federal Constitution] is all that gives him cause to complain; were he to change his mind tomorrow and decide, rightly or wrongly, that the statute is valid, he would no longer have any interest in the case. He has no personal stake in the outcome of this case; he will not be affected favorably by a decision that the statute is unconstitutional nor adversely by a decision that it is valid."). And the one case that does not turn on the nature of a state official's interest properly applies the doctrine to a political subdivision of the state. See Cooke v. Hickenlooper, No. 13-cv-01300-MSK-MJW, 2013 WL 6384218, at *10 (D. Colo. Nov. 27, 2013) (applying the political subdivision standing doctrine to an official capacity suit by a county sheriff because "a county in Colorado is undisputedly a political subdivision of the State of Colorado" and therefore "an official capacity claim asserted by a county Sheriff's Office is a claim asserted by a political subdivision of the State").

         As to the second justiciability concern, one of the Department's authorities concludes that jurisdiction is lacking where "state agencies [are] so closely identified with the state government, and so thoroughly controlled by the body they are suing[, ] that the litigation amounts to a suit by the state against itself." Donelon, 522 F.3d at 567-68 (quoting Rogers v. Brockette, 588 F.2d 1057, 1065 (5th Cir. 1979)). In such circumstances, the "state is essentially suing itself," and "there is no 'case or controversy.'" Id. at 568 (quoting Rogers, 588 F.2d at 1065). Here, neither party alleges the Presidential Electors are so closely identified with the State of Colorado that the action is essentially the state suing itself.

         The political subdivision standing doctrine has no relevance here because presidential electors are not municipalities or subdivisions of the state. And we need not resolve the parties' dispute over whether the Presidential Electors were state officials because, even if they were, the political subdivision standing doctrine does not apply to state officials. In contrast, the personal interest standing requirement, highlighted by the Department's decisions, is applicable to any official-municipal, state, or federal. See Raines v. Byrd, 521 U.S. 811, 821 (1997) (applying the personal interest requirement to members of Congress); Thomas v. Mundell, 572 F.3d 756, 760-61 (9th Cir. 2009) (applying personal interest requirement to county official).

         Thus, we turn now to general legal principles to determine whether the Presidential Electors have standing. This analysis necessarily includes review of whether the alleged injury is to a personal or official interest.

         C. General Standing Principles

         To satisfy Article III standing, the Presidential Electors must show an injury in fact, fairly traceable to the challenged action, that is redressable by the relief sought. Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139, 149 (2010). In considering whether standing exists, we focus individually on each plaintiff and on each claim for relief asserted. Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 185 (2000) ("[A] plaintiff must demonstrate standing separately for each form of relief sought.").

         1. Injury in Fact

         An injury satisfies the Article III standing requirement only if the injury is "'concrete and particularized' and 'actual or imminent, not "conjectural" or "hypothetical."'" Susan B. Anthony List v. Driehaus, 573 U.S. 149, 158 (2014) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992)). This injury-in-fact requirement "helps to ensure that the plaintiff has a 'personal stake in the outcome of the controversy.'" Id. (quoting Warth v. Seldin, 422 U.S. 490, 498 (1975)). Therefore, "a plaintiff's complaint must establish that he has a 'personal stake' in the alleged dispute, and that the alleged injury suffered is particularized as to him." Raines, 521 U.S. at 819; see also id. at 818 (requiring a plaintiff to "allege personal injury fairly traceable to the defendant's allegedly unlawful conduct and likely to be redressed by the requested relief" (quoting Allen v. Wright, 468 U.S. 737, 751 (1984))). "[A] dispute solely about the meaning of the law, abstracted from any concrete actual or threatened harm, falls outside the scope of the constitutional words 'Cases' and 'Controversies.'" Alvarez v. Smith, 558 U.S. 87, 93 (2009).

         Here, there are three considerations that inform our analysis of the injury-in-fact requirement: (1) whether the Presidential Electors' interest is personal or official in nature; (2) whether the Presidential Electors seek prospective or retrospective relief; and (3) whether the Presidential Electors have standing as legislators. We address each of these concepts in turn.

         a. Personal versus official interest

         "The party raising the question of constitutionality and invoking our jurisdiction must be interested in, and affected adversely by, the act, and the interest must by, the decision of the state court be of a personal, and not of an official, nature." Braxton Cty. Court v. West Virginia, 208 U.S. 192, 197 (1908); see also Smith, 191 U.S. at 149 ("[T]he interest of an appellant in this court [must] be a personal, and not an official, interest . . . ."); Ashwander v. Tenn. Valley Auth., 297 U.S. 288, 348 (1936) (Brandeis, J., concurring) ("[T]he challenge by a public official interested only in the performance of his official duty will not be entertained."). A plaintiff is asserting an official, rather than personal, injury if the injury alleged is not based upon something to which the plaintiff is personally entitled but instead based upon the plaintiff's entitlement in his or her official role. Raines, 521 U.S. at 821. An official has no personal interest when he has "certain duties as a public officer to perform" and "[t]he performance of those duties was of no personal benefit to him," and "[t]heir nonperformance was equally so." Smith, 191 U.S. at 149.

         "[A] public official's 'personal dilemma' in performing official duties that he perceives to be unconstitutional does not generate standing." Thomas, 572 F.3d at 761 (quoting City of S. Lake Tahoe v. Cal. Tahoe Reg'l Planning Agency, 625 F.2d 231, 237 (9th Cir. 1980)). And the "loss of . . . institutional power" is "not the loss of any private right" as it "run[s] with the office." Id. at 762; see also Donelon, 522 F.3d at 568 (determining official has no "personal stake" in the litigation where "he seeks to exercise what he believes are the full extent of his official powers under federal and state law").

         Whether the Presidential Electors have asserted a personal or official injury is inextricably intertwined with the question of whether the Presidential Electors have asserted an injury sufficient to support prospective or retrospective relief. Thus, we apply the personal injury requirement to the present facts, together with our application of the limitations on the Presidential Electors' ability to seek prospective or retrospective relief, which we now explain.

         b. Prospective versus retrospective relief

         As noted, standing is affected by the nature of the relief sought. Thus, we must determine the type of relief requested and whether the Presidential Electors can assert that claim. We begin with a discussion of the relevant law and then we apply those legal principles to the present facts.

         i. Legal background

         A plaintiff's "standing for retrospective relief may be based on past injuries, whereas . . . claims for prospective relief require a continuing injury." PeTA, People for the Ethical Treatment of Animals v. Rasmussen, 298 F.3d 1198, 1202 (10th Cir. 2002); see also City of Los Angeles v. Lyons, 461 U.S. 95, 109-10 (1983) (recognizing a plaintiff's standing to seek damages but not injunctive relief). To obtain prospective relief, a plaintiff must show a credible threat of future harm. See Ward v. Utah, 321 F.3d 1263, 1267-69 (10th Cir. 2003). "[W]hile a plaintiff who has been constitutionally injured can bring a § 1983 action to recover damages [retrospective relief], that same plaintiff cannot maintain a declaratory or injunctive action [prospective relief] unless he or she can demonstrate a good chance of being likewise injured in the future." Facio v. Jones, 929 F.2d 541, 544 (10th Cir. 1991).

         Although an injury must usually be imminent, a plaintiff need not wait for the harm to occur before seeking redress. Babbitt v. United Farm Workers Nat'l Union, 442 U.S. 289, 298 (1979). Instead, "[a]n allegation of future injury may suffice if the threatened injury is 'certainly impending,' or there is a '"substantial risk" that the harm will occur.'" Susan B. Anthony List, 573 U.S. at 158 (quoting Clapper v. Amnesty Int'l USA, 568 U.S. 398, 414 n.5 (2013)). But "a plaintiff must demonstrate standing separately for each form of relief sought." Friends of the Earth, 528 U.S. at 185. Thus, where both prospective and retrospective relief are requested, standing for each must be separately established.

         In certain circumstances, a plaintiff can maintain a pre-enforcement suit for declaratory or injunctive relief "challeng[ing] a statute that he claims deters the exercise of his constitutional rights" without "first expos[ing] himself to actual arrest or prosecution." Steffel v. Thompson, 415 U.S. 452, 459 (1974). And even when "the plaintiff ha[s] eliminated the imminent threat of harm by simply not doing what he claimed the right to do," standing is not precluded "because the threat-eliminating behavior was effectively coerced." MedImmune, Inc. v. Genetech, Inc., 549 U.S. 118, 129 (2007). "The dilemma posed by that coercion-putting the challenger to the choice between abandoning his rights or risking prosecution-is 'a dilemma that it was the very purpose of the Declaratory Judgment Act to ameliorate.'" Id. (quoting Abbott Labs. v. Gardner, 387 U.S. 136, 152 (1967)).

         Therefore, "[w]hen an individual is subject to [a threat of enforcement], an actual arrest, prosecution, or other enforcement action is not a prerequisite to challenging the law." Susan B. Anthony List, 573 U.S. at 158. Pre-enforcement review is permitted so long as the circumstances "render the threatened enforcement sufficiently imminent." Id. at 159. "[A] plaintiff satisfies the injury-in-fact requirement where he alleges 'an intention to engage in a course of conduct arguably affected with a constitutional interest but proscribed ...


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