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Colorado Department of State, Petitioner V. Micheal Baca Et Al

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Colorado Department of State, Petitioner V. Micheal Baca Et Al No. 19-518 In the Supreme Court of the United States ____________ Colorado Department of State, Petitioner v. Micheal Baca et al., Respondents ____________ On Writ of Certiorari to the United States Court of Appeals for the Tenth Circuit ____________ Brief of Amicus Curiae National Conference of Commissioners on Uniform State Laws Supporting Petitioner ____________ Peter F. Langrock James Bopp, Jr. 111 South Pleasant Street Counsel of Record P.O. Drawer 351 Richard E. Coleson Middlebury, VT 05753-0351 Melena S. Siebert Carl H. Lisman THE BOPP LAW FIRM, PC NCCUSL President The National Building 84 Pine St. 1 South Sixth Street Burlington, VT 05401 Terre Haute, IN 47807 812/232-2434 telephone Daniel Robbins Chair, NCCUSL Exec. Comm. 812/235-3685 facsimile 15301 Ventura Blvd., Bldg E [email protected] Sherman Oaks, CA 91403 Counsel for Amicus Curiae Susan Kelly Nichols Chair, UFPEA Drafting Comm. 3217 Northampton St. Raleigh, NC 27609 Cont’d on Inside Front Cover Cont’d from Front Cover Timothy J. Berg Fennemore Craig, P.C. 2394 East Camelback Road Ste. 600 Phoenix, AZ 85016 Of Counsel for Amicus Curiae Question Presented Amicus curiae National Conference of Commission- ers on Uniform State Laws (“NCCUSL”), also known as the Uniform Law Commission (“ULC”), addresses Peti- tioner’s (“Colorado’s”) second question presented: Does Article II or the Twelfth Amendment for- bid a State from requiring its presidential elec- tors to follow the State’s popular vote when cast- ing their Electoral College ballots? Brief for Petitioner i (“Colo. Br.”). Amicus ULC focuses on this question from the per- spective of its Uniform Faithful Presidential Electors Act (“UFPEA”). Colorado suggests that the UFPEA could be jeopardized by the Tenth Circuit decision. Colo. Br. 18-19; see also Colo. Pet. 35 (“throws into doubt”). The ULC agrees and urges the Court to uphold Colorado’s “faithless elector” statute as constitutional under both Article II and the Twelfth Amendment. (i) Table of Contents Question Presented . (i) Table of Contents . (ii) Appendix Table of Contents. (iii) Table of Authorities . (iv) Interest of Amicus Curiae . 1 ULC History . 1 ULC Structure . 1 ULC Process . 2 The UFPEA. 4 Summary of the Argument . 5 Argument . 6 I. The UFPEA Is a Remove-and-Replace Pro- vision, Like Colorado’s. 6 A. The UFPEA Removes Faithless Electors Before They “Cast” a Ballot. 7 B. The UFPEA Has Been Adopted by States and Successfully Functioned. 11 C. Colorado’s Provision Is Similar to the UFPEA, but Washington’s Previous Provi- sion Differs. 13 II. The UFPEA Complies with Controlling Federal Constitutional and Statutory Pro- visions and Precedent.. 14 (ii) III. Important Principles of Individual Political Empowerment and Federalism Favor the Constitutionality of Colorado’s Faithless- Elector Statute. 23 Conclusion . 28 Appendix Table of Contents Uniform Faithful Presidential Electors Act with Prefatory Note and Comments . 1a (iii) Table of Authorities Cases Abdurrahman v. Dayton, 903 F.3d 813 (8th Cir. 2019) . 12 Abdurrahman v. Dayton, No. 16-cv-4279 (PAM/HB), 2016 U.S. Dist. LEXIS 178222, (D. Minn. Dec. 23, 2016) . 12 Asarco, Inc. v. Idaho State Tax Comm’n, 458 U.S. 307 (1982) . 4 Bush v. Gore, 531 U.S. 98 (2000) . 12 Cal. Democratic Party v. Jones, 530 U.S. 567 (2000) .......................................22 Clingman v. Beaver, 544 U.S. 581 (2005) . 22 Cousins v. Wigoda, 419 U.S. 477 (1975) . 22 Democratic Party of United States v. Wisconsin, 450 U.S. 107 (1981). 22 Flagg Bros., Inc. v. Brooks, 436 U.S. 149 (1978). 4 Gamble v. United States, 139 S. Ct. 1960 (2019) . 22 In re Guerra, 441 P.3d 807 (Wash. 2019) . 14 Janus v. AFSCME, Council 31, 138 S. Ct. 2448 (2018). 21 McDermott, Inc. v. Amclyde, 511 U.S. 202 (1994). 4 O’Brien v. Brown, 409 U.S. 1 (1972) . 22 Oregon v. Mitchell, 400 U.S. 112 (1970) . 22 Payne v. Tennessee, 501 U.S. 808 (1991) . 21 Ponte v. Real, 471 U.S. 491 (1985). 4 (iv) Ray v. Blair, 343 U.S. 214 (1952) . 12, 21-22, 24 Republican State Cent. Comm. v. Ripon Soc’y, 409 U.S. 1222 (1972) . 22 Thomas v. Cohen, 146 Misc. 836 (Sup. Ct. 1933) . 25 Constitutions, Statutes, Regulations & Rules 3 U.S.C. Chapter 1 . 14-15, 20, 24 3 U.S.C. § 1 (1948) . 4 3 U.S.C. § 6 . 8 24 Stat. 373 (1887) . 4 Colo. Rev. Stat. § 1-4-304. 13 Mich. Comp. Laws Serv. § 168.47 (LexisNexis 2019) .......................................12 Minn. Stat. § 208.40. 12 N.C. Gen. Stat. § 163-212 (2019) . 11 Sup. Ct. R. 37 . 1 U.S. Const. amend. X . 20 U.S. Const. amend. XII, § 1 . (i), 14-15, 17, 20-22, 25 U.S. Const. art. II, § 1 . (i), 14-15, 17, 20, 24 Utah Code Ann. § 20A-13-304(3) (LexisNexis 2019) .......................................12 Wash. Rev. Code § 29A.56.340 . 13 Wash. Rev. Code §§ 29A.56.080-092 . 11 Other Authorities Robert Bennett, Taming the Electoral College (2006) ........................................4 (v) The Federalist No. 10 (James Madison) . 25 Jesse O. Hale Jr., Reining In Renegade Presiden- tial Electors: A Uniform State Approach, Baker Ctr. J. of Applied Pub. Policy, 2010 . 26 Patrick Henry, The Virginia Stamp Act Resolu- tions, House of Burgesses, May 30, 1765. 24 Eric Manpearl, Securing U.S. Election Systems: Designating U.S. Election Systems as Critical Infrastructure and Instituting Election Secu- rity Reforms, 24 B.U. J. Sci. & Tech. L. 168 (2018). 27 Beverly J. Ross and William Josephson, The Elec- toral College and the Popular Vote, 12 J. L. & Politics 665 (1996). 24-25 Robert A. Stein, Forming a More Perfect Union: A History of the Uniform Law Commission (2013). 2 Keith E. Whittington, Originalism, Constitutional Construction, and the Problem of Faithless Electors, 59 Ariz. L. Rev. 904 (2017) . 25-26 (vi) Interest of Amicus Curiae1 ULC History In 1892, a group of distinguished lawyers estab- lished The State Boards of Commissioners for Promot- ing Uniformity of Law in the U.S. By 1905, the Com- mission had changed its name to the National Confer- ence of Commissioners on Uniform State Laws (“NCCUSL”) and adopted a constitution and bylaws. Today, it is commonly called the “Uniform Law Com- mission” or “ULC.” Louis Brandeis, Wiley Rutledge, William Rehnquist, and David Souter served as ULC Commissioners and were later appointed to the U.S. Supreme Court. Members of the ULC also include legal luminaries Karl Llewellyn and William Prosser. ULC Structure The ULC is composed of approximately 425 Com- missioners, representing each State, the District of Columbia, the Commonwealth of Puerto Rico, and the U.S. Virgin Islands. Each State determines the method and number of Commissioners appointed, with state officials, often the Governor, making appointments. Some Commissioners are state legislators, but most are practitioners, judges, or law professors—all are licensed to practice law. Commissioners receive no compensation for work with the ULC, volunteering 1 Rule 37 statement: All parties consented to filing this brief; no counsel for any party authored it in whole or in part; no party counsel or party made a monetary contribu- tion intended to fund the preparation or submission of this brief; and no person other than amicus or its counsel funded it. 2 their time.2 The ULC receives most of its financial sup- port from state appropriations, supplemented by pub- lisher revenue and foundation and federal-government grants. The ULC’s purpose is to provide non-partisan, well- conceived, and well-drafted legislation that brings clar- ity and stability to critical areas of state statutory law. The ULC strengthens federalism by recommending state statutes and procedures that, if adopted, would be consistent from state to state, but that also reflect the diverse experience of the states. As Justice Sandra Day O’Connor noted, “[t]he [ULC] plays an integral role in both preserving our federal system of govern- ment and keeping it vital.” Robert A. Stein, Forming a More Perfect Union: A History of the Uniform Law Commission Foreword (2013). ULC Process The ULC offers a deliberative, intensive, and uniquely open drafting process that not only draws on the expertise of Commissioners, but also utilizes input from legal experts, advisors, and observers represent- ing the views of other legal organizations or interests that will be subject to the proposed laws. The ULC receives proposals for new acts from state bars, state government entities, private groups, ULC Commissioners, and private individuals. A proposal is generally assigned to a Study Committee, which re- searches the topic and decides whether to recommend 2 When state law allows, some travel expenses that Commissioners incur are reimbursed, including state reim- bursement for annual-meeting attendance and reimburse- ment for costs associated with participation in the ULC committee meetings. 3 drafting an act. The ULC’s Executive Committee typi- cally reviews these recommendations. An approved recommendation leads to the creation of a Drafting Committee. An expert in the relevant legal field is chosen as the drafter (“Reporter”). Advisors from the American Bar Association, as well as other interested stakeholders, are invited to assist the Drafting Committee. Each draft act normally receives a minimum of two years of consideration,3 and all committee drafts are available for review and comment by all ULC Commissioners. The Committee of the Whole at the ULC’s annual meeting debates draft acts from Drafting Committees. Each must be considered section by section at no fewer than two annual meetings.4 Thereafter, the states vote on the act’s approval. Unless a rare exception is granted, a majority of states present, and no fewer than twenty states, must approve an act before it is officially approved.
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