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Petitioner, V. Respondents. ___On Petition for a Writ of Certiorari To No. 19-518 _____________ COLORADO DEPARTMENT OF STATE, Petitioner, v. MICHAEL BACA, POLLY BACA, AND ROBERT NEMANICH, Respondents. _____________ On Petition for a Writ of Certiorari to the U.S. Court of Appeals for the Tenth Circuit _____________ MOTION FOR LEAVE TO FILE AMICUS BRIEF AND AMICUS BRIEF OF THOMAS E. WEAVER IN SUPPORT OF RESPONDENTS _____________ Thomas E. Weaver PO Box 1056 Bremerton, WA 98337 (360)792-9345 [email protected] *Counsel of Record i Motion for Leave to File Amicus Brief COMES NOW, Thomas E. Weaver, and moves this Court for leave to appear as amicus curiae in support of Respondents. Thomas E. Weaver is a lawyer living and practicing in the State of Washington and licensed to practice in this Court. Mr. Weaver has argued over 350 appellate cases in the Washington appellate courts and the Ninth Circuit Court of Appeals and has been granted leave by the Washington Supreme Court to appear as amicus curiae in at least twelve cases. Mr. Weaver co- wrote the Petition for Certiorari in McLemore v. Shoreline, 19-202, certiorari pending in this Court. Mr. Weaver also has a significant interest in American political history and is currently researching and writing a book on the history of the Electoral College. Consistent with Rule 37, this brief brings to this Court’s attention relevant historical information not already brought to its attention by the parties that will assist in its decision. Mr. Weaver has no financial interest or any other interest in the outcome of this case other than presenting this Court with factually accurate textual and historical information relevant to the Questions Presented. Respondent Michael Baca has filed with this Court Blanket Consent to all amicus briefs. Petitioner has not filed blanket consent, necessitating a motion. ii Respectfully submitted, Thomas E. Weaver Thomas E. Weaver PO Box 1056 Bremerton, WA 98337 (360)792-9345 [email protected] *Counsel of Record NOVEMBER 7, 2019 iii Table of Contents Page Motion for Leave to File Amicus Brief i Table of Contents iii Table of Authorities iv Interest of the Amicus 1 Summary of Argument 2 Argument 3 2. The United States Supreme Court should grant certiorari to the second Question Presented by the Petition for Writ of Certiorari and reach the merits of this important issue 3 3. This Court should affrirm the Tenth Circuit and acknoledge the historical role of independent electors 8 Conclusion 20 iv Table of Authorities Page(s) Cases Arizona State Legislature v. Arizona Independent Redistricting Commission, 135 S.Ct. 2652, 2678, 192 L.Ed.2d 704 (2015) ...................................... 20 Bush v. Gore, 531 U.S. 98, 121 S.Ct. 525, 148 L.Ed.2d 388 (2000) ............................................... 7 Bush v. Palm Beach County Canvassing Board, 531 U.S. 70, 75, 121 S.Ct. 471, 148 L.Ed.2d 366 (2000) .................................................................... 7 INS v. Chadha, 462 U.S. 919, 103 S.Ct. 2764, 77 L.Ed.2d 317 (1983) ............................................. 20 Ray v. Blair, 343 U.S. 214, 72 S.Ct. 654, 96 L.Ed. 894 (1952) ......................................................... 4, 9 Congressional Records Congressional Globe, 42nd Congress, 2rd Session, February 12, 1873 .......................................... 5, 15 Congressional Record, 90th Congress, Volume 115, Part 1, January 6, 1969 ........................... 6, 17, 18 Niles Weekly Register, Speech to Senate, Volume 74 ........................................................................ 13 Register of Debates, 24th Congress, February 8, 1837 .................................................................... 15 v Constitutional Provisions Amendment XIV, §2 ............................................... 10 Amendment XXIII .................................................. 10 Amendment XXIV .................................................. 10 Article 1, §7 ............................................................ 11 Article II, §1 .................................................... passim Twelfth Amendment .............................................. 19 Newspapers and Periodicals Chicago Tribune, “Why Roberts Did It,” July 2, 2012 ...................................................................... 8 The Salina Journal, “It’s Official; Bush Elected President,” December 20, 1988 .......................... 19 Other Authorities Federalist 68 ........................................................ 4, 9 J. Story, Commentaries .................................... 13, 14 1 Interest of the Amicus Thomas E. Weaver1 is a lawyer living and practicing in the State of Washington and licensed to practice in this Court. Mr. Weaver has argued over 350 appellate cases in the Washington appellate courts and the Ninth Circuit Court of Appeals and has been granted leave by the Washington Supreme Court to appear as amicus curiae in at least twelve cases. Mr. Weaver co- wrote the Petition for Certiorari in McLemore v. Shoreline, 19-202, certiorari pending in this Court. Mr. Weaver also has a significant interest in American political history and is currently researching and writing a book on the history of the Electoral College. Consistent with Rule 37, this brief brings to this Court’s attention relevant historical information not already brought to its attention by the parties that will assist in its decision. Mr. Weaver has no financial interest or any other interest in the outcome of this case other than presenting this Court with factually accurate historical information relevant to the Questions Presented. 1 No counsel for any party authored this brief in whole or in part and no person or entity made a monetary contribution specifically for the preparation or submission of this brief. No person other than Amicus Curiae made a monetary contribution to its preparation or submission. The Respondents have filed blanket consent. Petitioner consent is not known. This Brief is being filed earlier than 10 days before the due date with a Motion to File. 2 Summary of Argument The second Question Presented by the pending Petition for Certiorari presents an important question of constitutional interpretation never before directly addressed by this Court: the legality of so-called “faithless,” or independent, electors. The case asks whether an elector, having been duly chosen by a State as an elector in the “manner as the Legislature thereof may direct” as required by Article II, §1, and having exercised his or her “vote by ballot for President and Vice- President” as required by the Twelfth Amendment, may then be removed as an elector and replaced by another elector? Amicus makes two arguments. First, the issue presented is an important issue for which this Court should grant certiorari. The Court has a rare opportunity with the pending case to answer this important constitutional question divorced from an active political controversy. Second, the text, history and, and practice of the Electoral College over the past two-and-a-half centuries supports the position that electors are lawfully permitted to exercise independent judgment in voting for the President and Vice- President, and frequently do. In one instance, the election of 1872, Congress ruled that three electors who failed to exercise independent judgment forfeited their votes. Every time Congress has taken up the issue of limiting elector discretion, either by congressional action or proposed 3 constitutional amendment, it has declined to act. This Court should acknowledge and affirm this history. Argument 1. The United States Supreme Court should grant certiorari to the second Question Presented by the Petition for Writ of Certiorari and reach the merits of this important issue. Although amicus believes the Tenth Circuit decision in this case should be affirmed, amicus also agrees with the petitioner that the current case presents an excellent vehicle to address for the first time the legality of electors exercising independent judgment in voting. This Court should grant certiorari as to the second Question Presented2 and affirm. 2 The Petition for Certiorari raises two Questions Presented. In the first Question Presented, Petitioner argues Respondent Michael Baca lacks standing to sue. Amicus believes this Court should deny certiorari as to the first Question Presented or, in the alternative, affirm the finding of standing for the reasons outlined in the Tenth Circuit decision. For the reasons set out in this brief, this Petition presents a rare and important question related to independent electors that should be decided on the merits. 4 Although so-called “faithless” electors3 have existed since the beginning of the republic, this Court has never directly addressed the legality of their actions. The most important case to discuss the issue, Ray v. Blair, dealt with the collateral issue of whether a state may lawfully require electors to take an oath or pledge, not what should happen if that pledge were violated. Ray v. Blair, 343 U.S. 214, 72 S.Ct. 654, 96 L.Ed. 894 (1952). Notwithstanding the fact that the legality of electoral independence was not squarely addressed by Ray v. Blair, the dissenters took it upon themselves to reach that issue, saying, “No one faithful to our history can deny that the plan originally contemplated, what is implicit in its text, that electors would be free agents, to exercise an independent and nonpartisan judgment as to the men best qualified for the Nation's highest offices.” Ray at 232 (Justice Jackson, dissenting), citing Federalist 68. Petitioner
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