MICHEAL BACA; POLLY BACA; ROBERT NEMANICH, Plaintiffs-Appellants,
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.
from the United States District Court for the District of
Colorado (D.C. No. 1:17-CV-01937-WYD-NYW)
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.
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,
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.
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
BRISCOE, HOLMES, and McHUGH, Circuit Judges.
McHugh, Circuit Judge.
Legal Background 2
Factual History 4
Procedural History 7
DISCUSSION PART ONE: STANDING 9
Standard of Review and Burden of Proof 10
Political Subdivision Standing Doctrine 10
Legal Background 11
General Standing Principles 15
Injury in Fact 16
Personal versus official interest 17
Prospective versus retrospective relief 18
Legal background 18
Prospective relief 22
Retrospective relief 24
Baca's removal from office and referral for prosecution
Threats against Ms. Baca and Mr. Nemanich 30
Legislator standing 34
Legal background 34
Traceability and Redressability 43
DISCUSSION PART TWO: MOOTNESS 45
DISCUSSION PART THREE: FAILURE TO STATE A CLAIM 56
Standard of Review 57
"Person" Under § 1983 57
Constitutional Violation 61
Federal Constitution 63
Legal Precedent 66
Framing the Question 72
Supremacy clause 73
Tenth Amendment 76
Constitutional Text 78
Appointment power 78
Article II and the Twelfth Amendment 83
of the states after appointment 84
of "elector," "vote," and
Contemporaneous dictionary definitions 87
of "elector" in the Constitution 91
Enactment of the Twelfth Amendment 94
Historical Practices 98
Elector pledges 99
Short-form ballots 101
Authoritative Sources 105
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.
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.
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.
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.
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.
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.
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).
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.
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. 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.
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). 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.
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
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
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
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.
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).
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.
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).
DISCUSSION PART ONE: STANDING
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.
Standard of Review and Burden of Proof
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).
Political Subdivision Standing Doctrine
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
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).
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.
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
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
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").
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.
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
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.
General Standing Principles
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.").
Injury in Fact
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).
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.
Personal versus official interest
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.
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").
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.
Prospective versus retrospective relief
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.
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).
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
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)).
"[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