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., 935 F.3d 887

TABLE OF CONTENTS I. INTRODUCTION ... 901 II. BACKGROUND ... 902 A. Legal Background ... 902 B. Factual History ... 902 C. Procedural History ... 904 III. DISCUSSION PART ONE: STANDING ... 905 A. Standard of Review and Burden of Proof ... 905 B. Political Subdivision Standing Doctrine ... 906 1. Legal Background ... 906 2. Application ... 906 C. General Standing Principles ... 908 1. Injury in Fact ... 908 a. Personal versus official interest ... 909 b. Prospective versus retrospective relief ... 909 i. Legal background ... 909 ii. Application ... 911 1) Prospective relief ... 911 2) Retrospective relief ... 912

a) Mr. Baca's removal from office and referral for prosecution ... 914

b) Threats against Ms. Baca and Mr. Nemanich ... 915 c. Legislator standing ... 917 i. Legal background ... 917 ii. Application ... 920 2. Traceability and Redressability ... 921 IV. DISCUSSION PART TWO: MOOTNESS ... 922 V. DISCUSSION PART THREE: FAILURE TO STATE A CLAIM ... 928 A. Standard of Review ... 928 B. "Person" Under § 1983 ... 928 C. Constitutional Violation ... 930 1. The Federal Constitution ... 931 2. Legal Precedent ... 933 3. Framing the Question ... 936 a. Supremacy clause ... 937 b. Tenth Amendment ... 938 4. Constitutional Text ... 939 a. Appointment power ... 939 b.

Article II and the Twelfth Amendment ... 942 i. Role of the states after appointment 84 ... 942 ii. Use of "elector," "vote," and "ballot" ... 943 1) Contemporaneous dictionary

definitions ... 943 2) Use of "elector" in the Constitution ... 945 5. Enactment of the Twelfth Amendment ... 947 6. Historical Practices ... 949 a. Elector pledges ... 949 b. Short-form ballots ... 950 7. Authoritative Sources ... 952 VI. CONCLUSION ... 956 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. 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). 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. 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. 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, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989), and/or Arizonans for Official English v. Arizona , 520 U.S. 43, 117 S.Ct. 1055, 137 L.Ed.2d 170 (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, 59 S.Ct. 972, 83 L.Ed. 1385 (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). 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, 43 S.Ct. 534, 67 L.Ed. 937 (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, 43 S.Ct. 534 ("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, 43 S.Ct. 534. 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, 53 S.Ct. 431, 77 L.Ed. 1015 (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, 72 S.Ct. 654, 96 L.Ed. 894 (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, 109 S.Ct. 2304, 105 L.Ed.2d 45 (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. 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, 24 S.Ct. 51, 48 L.Ed. 125 (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, 51 S.Ct. 392, 75 L.Ed. 861 (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, 117 S.Ct. 2312, 138 L.Ed.2d 849 (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, 130 S.Ct. 2743, 177 L.Ed.2d 461 (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, 120 S.Ct. 693, 145 L.Ed.2d 610 (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, 134 S.Ct. 2334, 189 L.Ed.2d 246 (2014) (quoting Lujan v. Defenders of Wildlife , 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (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, 95 S.Ct. 2197, 45 L.Ed.2d 343 (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, 117 S.Ct. 2312 ; see also id. at 818, 117 S.Ct. 2312 (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, 104 S.Ct. 3315, 82 L.Ed.2d 556 (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, 130 S.Ct. 576, 175 L.Ed.2d 447 (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, 28 S.Ct. 275, 52 L.Ed. 450 (1908) ; see also Smith , 191 U.S. at 149, 24 S.Ct. 51 ("[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, 56 S.Ct. 466, 80 L.Ed. 688 (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, 117 S.Ct. 2312.

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, 24 S.Ct. 51. "[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, 103 S.Ct. 1660, 75 L.Ed.2d 675 (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, 99 S.Ct. 2301, 60 L.Ed.2d 895 (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, 134 S.Ct. 2334 (quoting Clapper v. Amnesty Int'l USA , 568 U.S. 398, 414 n.5, 133 S.Ct. 1138, 185 L.Ed.2d 264 (2013) ). But "a plaintiff must demonstrate standing separately for each form of relief sought." Friends of the Earth , 528 U.S. at 185, 120 S.Ct. 693. 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, 94 S.Ct. 1209, 39 L.Ed.2d 505 (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.

Genentech, Inc. , 549 U.S. 118, 129, 127 S.Ct. 764, 166 L.Ed.2d 604 (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, 87 S.Ct. 1507, 18 L.Ed.2d 681 (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, 134 S.Ct. 2334. Pre-enforcement review is permitted so long as the circumstances "render the threatened enforcement sufficiently imminent." Id. at 159, 134 S.Ct. 2334. "[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 by a statute, and there exists a credible threat of prosecution thereunder.' " Id. (quoting Babbitt , 442 U.S. at 298, 99 S.Ct. 2301 ).

This requirement applies even when the law at issue has been enforced against the plaintiff in the past. See Dias v. City & Cty. of Denver , 567 F.3d 1169, 1176 (10th Cir. 2009) ; see also D.L.S. v. Utah , 374 F.3d 971, 975 (10th Cir. 2004) ("[A]ssurances from prosecutors that they do not intend to bring charges are sufficient to defeat standing, even when the individual plaintiff ha[s] actually been charged or directly threatened with prosecution for the same conduct in the past."); PeTA , 298 F.3d at 1202-03.

"Past exposure to illegal conduct does not itself show a present case or controversy regarding injunctive relief ... if unaccompanied by any continuing, present, adverse effects." O'Shea v. Littleton , 414 U.S. 488, 495-96, 94 S.Ct. 669, 38 L.Ed.2d 674 (1974). But a plaintiff seeking future relief from a law enforced against him or her in the past can establish the necessary injury in fact by either meeting the requirements for pre-enforcement review or alleging continuing adverse effects from the prior enforcement. Dias , 567 F.3d at 1176-77.

A plaintiff satisfies the injury-in-fact requirement for retrospective relief if he or she "suffered a past injury that is concrete and particularized." Tandy v. City of Wichita , 380 F.3d 1277, 1284 (10th Cir. 2004). "For an injury to be 'particularized,' it 'must affect the plaintiff in a personal and individual way.' " Spokeo, Inc. v. Robins , --- U.S. ----, 136 S. Ct. 1540, 1548, 194 L.Ed.2d 635 (2016) (quoting Lujan , 504 U.S. at 560 n.1, 112 S.Ct. 2130 ). ii.

Application In this case, the Presidential Electors seek three forms of relief: (1) a declaration that § 1-4-304(5) is unconstitutional, (2) a "[f]inding" that the Department violated their "federally protected rights by depriving [Mr.] Baca of his federal right to act as an Elector and by threatening and intimidating" the Presidential Electors, and (3) nominal damages of $1 each. App. at 19.

Although "a declaratory judgment is generally prospective relief," "we consider declaratory relief retrospective to the extent that it is intertwined with a claim for monetary damages that requires us to declare whether a past constitutional violation occurred." PeTA , 298 F.3d at 1202 n.2. Here, the Presidential Electors' request for a declaration that § 1-4-304(5) is unconstitutional is a traditional claim for prospective declaratory relief.

But the Presidential Electors' request for a "[f]inding" that the Department violated their "federally protected rights," App. at 19, and their corresponding request for nominal damages, is a request for retrospective declaratory relief.

In the later instance, "declaratory relief is superfluous in light of the damages claim," PeTA , 298 F.3d at 1202 n.2 (internal quotation marks omitted), and it can be pursued only if intertwined with a necessary determination that damages are warranted because a stand-alone retrospective declaratory judgment "would amount to nothing more than a declaration that [the plaintiff] was wronged," Green v. Branson , 108 F.3d 1296, 1300 (10th Cir. 1997).

We therefore do not consider the Presidential Electors' claim for a retrospective declaration that the Department violated their constitutional rights during the 2016 election separately from their claim for nominal damages. But we do separately consider their request for prospective relief in the form of a declaration that § 1-4-304(5) is unconstitutional.

We undertake that analysis now to determine whether the Presidential Electors have asserted an injury in fact entitling them to either type of relief, beginning with their claim for prospective relief and then turning to their claim for retrospective relief. 1) Prospective relief We first consider whether the Presidential Electors have standing to seek prospective relief in the form of a declaration.

The sole question with respect to prospective relief is whether any of the Presidential Electors "allege[ ] 'an intention to engage in a course of conduct arguably affected with a constitutional interest but proscribed by a statute, and [that] there exists a credible threat of prosecution thereunder.' " Susan B. Anthony List , 573 U.S. at 159, 134 S.Ct. 2334 (quoting Babbitt , 442 U.S. at 298, 99 S.Ct. 2301 ). We easily answer this question in the negative.

Nowhere in the Second Amended Complaint do the Presidential Electors allege an intent to engage in conduct implicated by § 1-4-304(5) in the future or a credible threat of future prosecution. They do not allege an intention to again run for the position of elector or, if appointed, to vote for an individual for President or Vice President who did not win the popular vote in Colorado.

See Dias , 567 F.3d at 1177 (determining the plaintiffs lacked standing for prospective relief where the challenged ordinance applied only in Denver's limits and there was no "allegation that any of the plaintiffs intend[ed] to return to the City with their dogs," so "there [was not] a credible threat of future prosecution under the Ordinance"); see also Steffel , 415 U.S. at 460, 94 S.Ct. 1209 (recognizing that the petitioner may no longer desire to engage in the prohibited handbilling and therefore on remand the district court would have to determine whether there was sufficient immediacy of the threat).

Nor does Mr. Baca allege a continuing threat of prosecution for his past violation of § 1-4-304(5); the Presidential Electors acknowledge in their reply brief that the Attorney General ultimately decided not to prosecute. As a result, the Presidential Electors cannot show a credible threat of future enforcement against them.

So, none of them alleges an imminent personal injury that could confer standing to seek prospective relief, including their request for a declaration that § 1-4-304(5) is unconstitutional. 2) Retrospective relief With respect to the claim for retrospective relief, the district court concluded the Presidential Electors did not have a personal stake in the litigation and were merely asserting an official interest based on "the diminution of power that [§ 1-4-304(5) ] allegedly causes to the electors' official role." App. at 79.

We agree that most of the Presidential Electors' complaint alleges official harm to their role as electors. Specifically, the Presidential Electors allege they were threatened and intimidated "in the exercise of their federally protected rights as presidential Electors ." App. at 8 (emphasis added). They claim § 1-4-304(5) is unconstitutional both "on its face and as applied" because it "infringes on [the Presidential Electors'] right to vote as they see fit without coercion" and its enforcement "violated [their] rights as Electors ." Id. at 9 (emphasis added).

Further, they seek to "correct the violations of their rights as Electors under

Article II and Amendment XII" because they had "the legal freedom [as] federal Electors to vote as they deem[ed] fit." Id. (emphases added). And they argue

Article II and Amendment XII provide these rights and protections to all members of the electoral college. See id. at 18 ("Article II and Amendment XII ... prohibit any person or any state from interfering with members of the Electoral College's votes for President and Vice President of the United States." (emphasis added)); id. ("Article II and Amendment XII ... prohibit any person or state from requiring members of the Electoral College to vote for specific candidates for President and Vice President of the United States." (emphasis added); id. ("The only limits on Electors' vote for President and Vice President of the United States are set forth in

Article II and Amendment XII ...." (emphasis added)). These alleged injuries are based on the Presidential Electors' official capacity as members of the 2016 electoral college. As a result, their "claim of standing is based on a loss of political power, not loss of any private right." Raines , 521 U.S. at 821, 117 S.Ct. 2312. And the scope of power exercised by a presidential elector is of no personal benefit to the elector. Cf. Smith , 191 U.S. at 149, 24 S.Ct. 51 (denying an official standing because the performance or nonperformance of his official duties "was of no personal benefit to him").

The Presidential Electors have therefore failed to identify through these allegations a personal harm or injury that would entitle them to retrospective relief. Further, even if the individual electors could base standing on harm suffered in their official capacity, such a rule would not provide standing here because they no longer serve in that official position. The Presidential Electors do not contend their roles as electors extend beyond the 2016 electoral college vote.

Instead, the Second Amended Complaint alleges solely that each Presidential Elector "was a Democratic Elector for the 2016 presidential election." App. at 9. As the Supreme Court noted in Raines , when plaintiffs allege an injury "solely because they are" in an official role, "[t]he claimed injury ... runs (in a sense) with the [official] seat." 521 U.S. at 821, 117 S.Ct. 2312. If the official retires, he "no longer ha[s] a claim; the claim [is] possessed by his successor instead." Id.

So, even if the Presidential Electors had asserted the official injury suffered by their office, which they did not, they would still lack standing. Simply put, the Presidential Electors have no greater claim than any other citizen for an injury to an office they did not possess at the time they filed this lawsuit. See United States v.

Richardson , 418 U.S. 166, 176-77, 94 S.Ct. 2940, 41 L.Ed.2d 678 (1974) (rejecting standing for "a generalized grievance" when "the impact on [the plaintiff] is plainly undifferentiated and 'common to all members of the public' " (quoting Ex parte Levitt , 302 U.S. 633, 636, 58 S.Ct. 1, 82 L.Ed. 493 (1937) )); Hansen v. Harper Excavating, Inc. , 641 F.3d 1216, 1224 (10th Cir. 2011) ("[S]tanding is assessed as of the time of filing of the complaint."). Accordingly, the Presidential Electors can establish standing only by alleging a personal injury.

The Presidential Electors contend they have alleged a personal injury here because Mr. Baca "was dismissed as an elector, had his vote invalidated, and then was personally referred ... for criminal investigation and potential prosecution," and Ms. Baca and Mr. Nemanich "were threatened with identical consequences." Presidential Electors' Br. at 23. Our review of the Second Amended Complaint confirms that the Presidential Electors set forth these allegations.

See App. at 15 (alleging Secretary Williams warned that electors who failed to comply with § 1-4-304(5) would likely be removed and replaced and be subject to perjury charges); id. at 17 (alleging Secretary Williams removed Mr. Baca as an elector, refused to count Mr. Baca's vote, replaced Mr. Baca with a substitute, and referred him for criminal investigation and prosecution); id. at 18 (contending the Department deprived the Presidential Electors "of a federally protected right when it threatened to remove them as Electors, and refer them for criminal prosecution" and deprived Mr.

Baca "of a federally protected right when it removed him as an Elector"). Accordingly, we now consider whether

(1) Mr. Baca's removal as an elector and referral for criminal investigation and (2) the threats of those consequences against Ms. Baca and Mr. Nemanich, are personal injuries sufficient to sustain retrospective relief.

a) Mr. Baca's removal from office and referral for prosecution The district court held that the Presidential Electors suffered no personal injury as a result of removal or threatened removal from office because the role of a presidential elector does not "confer[ ] any meaningful pecuniary interest or autonomous power" on the elector. App. at 79. The court noted that the electors receive nominal compensation (mileage reimbursement and $5) for attendance at a one-day meeting where they are required to vote for the candidate who won the popular vote in Colorado.

Moreover, "[o]nce the meeting is done and the votes are cast, the electors' duties are over. There is no ongoing 'office' or 'job' that the electors have and risk losing." Id. The district court therefore concluded the Presidential Electors had suffered no personal injury that could satisfy the standing requirement. With respect to Mr. Baca, we disagree. As we discuss below, Mr. Baca has asserted an injury in fact based on the cancellation of his vote for President and the refusal to allow him to cast a vote for Vice President. Mr.

Baca has also asserted that he suffered an injury in fact when the Department removed him from his duly-appointed office as a presidential elector. An injury in fact must be actual and concrete, but there is no requirement in standing jurisprudence that the injury involve the loss of a job or office that confers pecuniary interest and ongoing duties. See Vill. of Arlington Heights v. Metro. Hous. Dev. Corp. , 429 U.S. 252, 262-63, 97 S.Ct. 555, 50 L.Ed.2d 450 (1977) ("It has long been clear that economic injury is not the only kind of injury that can support a plaintiff's standing.").

And the district court's rationale that electors serve a purely ministerial function and must show up and vote for the candidate who won the popular vote inappropriately conflates standing with the merits. See Ariz. State Legislature v. Ariz. Indep. Redistricting Comm'n , --- U.S. ----, 135 S. Ct. 2652, 2663, 192 L.Ed.2d 704 (2015) ("[O]ne must not 'confus[e] weakness on the merits with absence of

Article III standing.' " (second alteration in original) (quoting Davis v. United States , 564 U.S. 229, 249 n.10, 131 S.Ct. 2419, 180 L.Ed.2d 285 (2011) )). If the Presidential Electors are correct, presidential electors are constitutionally permitted to exercise discretion in casting one of 538 votes to select the President and Vice President of the United States. Under that

interpretation, which we must accept as true for purposes of standing, Mr. Baca's loss of his office-however brief its existence-is an injury in fact. See Raines , 521 U.S. at 821, 117 S.Ct. 2312 (recognizing officials would have standing to claim "depriv[ation] of something to which they personally are entitled-such as their seats as Members of Congress after their constituents had elected them "); see also Am. Humanist Ass'n, Inc. v. Douglas Cty. Sch. Dist. RE-1 , 859 F.3d 1243, 1248 (10th Cir. 2017) (emphasizing that "an injury [need not] meet some threshold of pervasiveness to satisfy

Article III" because "an identifiable trifle is enough for standing to fight out a question of principle" (quoting United States v. Students Challenging Regulatory Agency Procedures (SCRAP) , 412 U.S. 669, 689 n.14, 93 S.Ct. 2405, 37 L.Ed.2d 254 (1973) )). Thus, Mr. Baca has shown a concrete injury with respect to his removal from office. But Mr. Baca has not alleged an injury in fact with respect to his allegation that Secretary Williams referred him to the Colorado Attorney General for investigation and potential prosecution.

To be sure, "a criminal prosecution, even one that is swiftly abandoned, can confer standing." Winsness v. Yocom , 433 F.3d 727, 734 (10th Cir. 2006). "[W]rongful criminal proceedings cause a judicially cognizable injury that, according to our precedents, may be redressed through nominal damages and retrospective declaratory relief." Id. But to have standing, the plaintiff must "seek compensation for injuries sustained as a result of his criminal prosecution." Id. at 735. The Second Amended Complaint is devoid of any allegation that the state prosecuted Mr.

Baca criminally as a result of his vote for John Kasich, or that Mr. Baca suffered any injury stemming from Secretary Williams's referral for criminal investigation. Thus, Mr. Baca has identified a challenged action-referring him for investigation and potential prosecution-but he has failed to allege the referral resulted in any injury. In

summary, Mr. Baca has asserted a personal injury sufficient to meet the

Article III standing requirement for retrospective relief based on his removal from an office to which he was entitled. But nowhere does the Second Amended Complaint assert an injury caused by his referral for criminal investigation.

b) Threats against Ms. Baca and Mr. Nemanich We turn now to whether Ms. Baca and Mr. Nemanich have asserted a personal injury in fact for retrospective relief based on threats to remove them from office and refer them for prosecution if they refused to vote for the winners of the popular vote in Colorado. The Presidential Electors contend that Board of Education of Central School District No. 1 v. Allen , 392 U.S. 236, 88 S.Ct. 1923, 20 L.Ed.2d 1060 (1968), supports Ms. Baca's and Mr. Nemanich's claims of personal injury. We are not convinced.

In Allen , two local boards of education sued to declare a state statute unconstitutional and to bar the commissioner of education from removing the members from office for failing to comply with it. 392 U.S. at 240 & n.4, 88 S.Ct. 1923. The boards claimed the statute that required local public schools to lend textbooks free of charge to parochial schools violated the Establishment Clause and, therefore, compliance with the statute would violate their oaths to support the United States Constitution. Id. at 240-41, 88 S.Ct. 1923.

The Supreme Court addressed standing in a footnote, stating: Appellees do not challenge the standing of appellants to press their claim in this Court. Appellants [the two boards] have taken an oath to support the United States Constitution. Believing [section] 701 to be unconstitutional, they are in the position of having to choose between violating their oath and taking a step-refusal to comply with [section] 701-that would be likely to bring their expulsion from office and also a reduction in state funds for their school districts.

There can be no doubt that appellants thus have a "personal stake in the outcome" of this litigation. Id. at 241 n.5, 88 S.Ct. 1923 (quoting Baker v. Carr , 369 U.S. 186, 204, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962) ). Even if the Allen footnote could be read broadly to support the Presidential Electors' standing argument, subsequent decisions from the Supreme Court have limited its reach. See Schlesinger v.

Reservists Comm. to Stop the War , 418 U.S. 208, 217, 94 S.Ct. 2925, 41 L.Ed.2d 706 (1974) (holding that a "generalized interest of all citizens in constitutional governance" cannot confer standing); Richardson , 418 U.S. at 176-77, 94 S.Ct. 2940 (determining taxpayer's claim that the Central Intelligence Agency Act violated art. I, § 9, cl. 7, of the United States Constitution was "the kind of a generalized grievance" that could not confer standing); see also City of S.

Lake Tahoe , 625 F.2d at 235-36 (examining Supreme Court authority pre- and post- Allen and concluding subsequent decisions from the Court "significantly tightened standing requirements"). Based on these later Supreme Court pronouncements, some lower courts have departed from Allen where the officials "were not required to do anything that was specifically prohibited by an express term of the constitution" or were elected and therefore "in no danger of expulsion from office as a result of any action that [the official] alone believes may have violated his oath." Finch , 585 F.2d at 773-74.

Here, we need not consider Allen 's continuing vitality because even assuming its footnote remains precedential, Ms. Baca and Mr. Nemanich cannot establish standing to seek retrospective relief based on the threats to remove them from office and refer them for prosecution. In Allen , the petitioners sought prospective relief in the form of an injunction and a declaratory judgment. 392 U.S. at 240, 88 S.Ct. 1923. As discussed, however, the Presidential Electors do not have standing to seek prospective relief because they have not alleged facts that show a credible threat of future enforcement. See Bronson v.

Swensen , 500 F.3d 1099, 1112 (10th Cir. 2007) (recognizing that plaintiffs' allegations of a "credible 'threat' of prosecution" "cast[s] their injury-in-fact in prospective-relief terms"); Winsness , 433 F.3d at 732 ("When he can show that he faces a credible threat of prosecution, a plaintiff can sue for prospective relief against enforcement." (emphasis added) (internal quotation marks omitted)). Nor can they rely on past threats of enforcement to show an actual injury with respect to retrospective relief because they have failed to argue any actual injury stemming from that threat.

See Dias , 567 F.3d at 1178 (recognizing plaintiffs had suffered actual injuries for retrospective relief where two plaintiffs "were forced to move from Denver to avoid the reach of the Ordinance" and the third plaintiff's dog "was seized by animal control officers," and the plaintiff "was charged with a criminal violation of the Ordinance"); PeTA , 298 F.3d at 1203 (determining there was standing for purposes of retrospective relief because "PeTA suffered an injury in fact to its constitutionally protected right to free speech when the defendants threatened the protestors with arrest if they did not cease their demonstration" and PeTA ceased protesting in response to the threat).

Our unaided review of the Second Amended Complaint reveals a single relevant allegation: based on Secretary Williams "changing the oath and removing [Mr.] Baca," Ms. Baca and Mr. Nemanich "felt intimidated and pressured to vote against their determined judgment." App. at 17. This allegation supports a contention that Ms. Baca and Mr. Nemanich felt unable to exercise what they believe is the full range of discretion in their roles as electors.

As with most of the allegations in the complaint, however, this injury impacts only their official function as it is "not claimed in any private capacity but solely because they" were members of the electoral college. Raines , 521 U.S. at 821, 117 S.Ct. 2312 ; see also id. (recognizing claim for official injury where the "claim of standing is based on a loss of political power, not loss of any private right"). Unlike plaintiffs asserting a personal constitutional right, Ms. Baca and Mr. Nemanich are claiming injury based on their official roles as electors based on threats made against all of Colorado's electors.

The injury alleged is a general diminution of the power of the office generally. This is not sufficient to meet the personal injury-in-fact requirement of standing. c. Legislator standing The Presidential Electors also claim they fall within a limited exception to the personal injury requirement: legislators, suing as a bloc, have standing to enforce the effectiveness of their votes when their votes were sufficient to defeat or enact legislation. Coleman , 307 U.S. at 438, 59 S.Ct. 972 ; see also Kerr v.

Hickenlooper , 824 F.3d 1207, 1215 (10th Cir. 2016) (recognizing the injury in Coleman as an injury suffered in the legislators' official capacity). To address this argument, we begin by discussing the requirements for standing under Coleman and its progeny. After, we consider whether the Presidential Electors meet those requirements. i.

Legal background The Supreme Court first considered the question of legislator standing in Coleman , where twenty of Kansas's forty Senators who had voted against a resolution ratifying the Child Labor Amendment to the federal Constitution sued to give effect to their votes. 307 U.S. at 436, 59 S.Ct. 972. According to the plaintiff legislators, Kansas's Lieutenant Governor had acted beyond his authority when he broke the tie, voting in favor of ratification, allowing the resolution to pass the Kansas House. Id.

The Supreme Court described the plaintiffs as "twenty senators, whose votes against ratification have been overridden and virtually held for naught although if they are right in their contentions their votes would have been sufficient to defeat ratification." Id. at 438, 59 S.Ct. 972. The Court concluded those "senators have a plain, direct[,] and adequate interest in maintaining the effectiveness of their votes," and therefore had standing to pursue their "claimed ... right and privilege under the Constitution of the United States to have their votes given effect." Id.

The Supreme Court again considered legislator standing in Raines , where six individual members of Congress challenged the Line Item Veto Act as unconstitutional. 521 U.S. at 814, 117 S.Ct. 2312. Focusing on two main concerns, the Court concluded the Congressmen could show no personal injury and therefore lacked standing. First, the Congressmen were not "singled out for specifically unfavorable treatment as opposed to other Members of their respective bodies.

Their claim is that the Act causes a type of institutional injury (the diminution of legislative power), that necessarily damages all Members of Congress and both Houses of Congress equally." Id. at 821, 117 S.Ct. 2312. Second, the Congressmen were not claiming "they ha[d] been deprive[d] of something to which they personally [were] entitled," because their "claim of standing [was] based on a loss of political power, not loss of any private right," and that injury was "not claimed in any private capacity but solely because they are Members of Congress." Id.

Important for our purposes, the Court explained that if "one of the Members were to retire tomorrow, he would no longer have a claim; the claim would be possessed by his successor instead. The claimed injury thus runs (in a sense) with the Member's seat." Id.

The Court distinguished Raines from Coleman , emphasizing that Coleman stood for, at most, "the proposition that legislators whose votes would have been sufficient to defeat (or enact) a specific legislative Act have standing to sue if that legislative Act goes into effect (or does not go into effect), on the ground that their votes have been completely nullified." Id. at 823, 117 S.Ct. 2312 ; see also Va. House of Delegates v. Bethune-Hill , --- U.S. ----, 139 S.

Ct. 1945, 1954, 204 L.Ed.2d 305 (2019) (distinguishing Coleman because the present case "does not concern the results of a legislative chamber's poll or the validity of any counted or uncounted votes"). The Court also "attach[ed] some importance to the fact that [the Congressmen] have not been authorized to represent their respective Houses of Congress in this action, and indeed both Houses actively oppose their suit." Raines , 521 U.S. at 829, 117 S.Ct. 2312 ; see also Va. House of Delegates , 139 S.

Ct. at 1953 ("Just as individual members lack standing to assert the institutional interests of a legislature, a single House of a bicameral legislature lacks capacity to assert interests belonging to the legislature as a whole." (citation omitted)); Bender v. Williamsport Area Sch. Dist. , 475 U.S. 534, 544, 106 S.Ct. 1326, 89 L.Ed.2d 501 (1986) ("Generally speaking, members of collegial bodies do not have standing to perfect an appeal the body itself has declined to take."); United States v.

Ballin , 144 U.S. 1, 7, 12 S.Ct. 507, 36 L.Ed. 321 (1892) ("The two houses of Congress are legislative bodies representing larger constituencies. Power is not vested in any one individual, but in the aggregate of the members who compose the body, and its action is not the action of any separate member or number of members, but the action of the body as a whole ...."). Significant for our purposes, the Court in Raines also included a footnote that suggests standing can be based on the discriminatory treatment of a legislator's vote.

"Just as appellees cannot show that their vote was denied or nullified as in Coleman (in the sense that a bill they voted for would have become law if their vote had not been stripped of its validity), so are they unable to show that their vote was denied or nullified in a discriminatory manner (in the sense that their vote was denied its full validity on relation to the votes of their colleagues)." Raines , 521 U.S. at 824 n.7, 117 S.Ct. 2312.

That is, while diminution of the effectiveness of all votes equally is an institutional injury, a legislator whose vote is singled out for disparate treatment may have suffered a personal injury. The Supreme Court next visited the question of legislative standing in Arizona State Legislature , --- U.S. ----, 135 S. Ct. 2652, 192 L.Ed.2d 704. There, the Arizona Legislature claimed a recently passed citizens' initiative establishing an independent redistricting commission unconstitutionally infringed on the Arizona Legislature's constitutional responsibility for redistricting. 135 S. Ct. at 2663.

The Court determined that, in contrast to Raines , the Arizona Legislature itself had standing to pursue this claim because it was "an institutional plaintiff asserting an institutional injury, and it commenced th[e] action after authorizing votes in both of its chambers." Id. at 2664. And, as in Coleman , the Arizona Legislature challenged an action that would "completely nullif[y]" an otherwise effective vote of the institution. Id. at 2665 (alteration in original) (quoting Raines , 521 U.S. at 823, 117 S.Ct. 2312 ).

This court had occasion to apply the holding of Arizona State Legislature in Kerr , 824 F.3d 1207. There, several parties, including a group of current state legislators, challenged the constitutionality of a provision of the Colorado Constitution that limited the revenue-raising powers of state and local governments. Kerr , 824 F.3d at 1211.

We held the individual legislators lacked standing to assert an institutional injury, which we defined as "those that do not 'zero[ ] in on any individual Member' " but instead are " '[w]idely dispersed' and 'necessarily impact[ ] all [m]embers of [a legislature] equally.' " Id. at 1214 (first, second, fourth, and fifth alterations in original) (quoting Arizona State Legislature , 135 S. Ct. at 2664 ). In Kerr , we identified three types of legislator standing recognized by Coleman and its progeny.

The first type, illustrated by Arizona State Legislature , is an institutional injury-"a harm inflicted on a legislature itself, such that it necessarily impacts all members of that legislature in equal measure." Kerr , 824 F.3d at 1215. A claim for redress of such an injury can be brought solely by an institutional plaintiff. "[I]ndividual legislators may not support standing by alleging only an institutional injury." Id. at 1214.

The second type of legislator standing, recognized in Coleman , is an injury suffered by a bloc of legislators large enough to prevail on a vote, although in an official capacity, based on the complete nullification of their votes. Id. Such a claim can be asserted by the bloc of legislators, even without the authorization of the legislative body itself, if that bloc is large enough to have controlled the result of the legislative action. Id. at 1214-15. The third type of legislator standing is where an individual legislator suffers a personal injury. Id. at 1216.

"For example, if a particular subset of legislators was barred from exercising their right to vote on bills, such an injury would likely be sufficient to establish a personal injury." Id. ; see also Raines , 521 U.S. at 824 n.7, 117 S.Ct. 2312 (distinguishing from arguments where legislators' "vote was denied or nullified in a discriminatory manner (in the sense that their vote was denied its full validity in relation to the votes of their colleagues)"). A claim of this nature "zeroes in on the individual and is thus concrete and particularized." Kerr , 824 F.3d at 1216.

The Presidential Electors never mention Raines , Arizona State Legislature , or Kerr in their briefs to this court. This is surprising because the district court relied on all three cases in denying standing, and the Department cites them in asking us to affirm the district court's decision. Because these cases represent the Supreme Court's and this court's direction on legislative standing, we explain why none support a conclusion that Ms. Baca and Mr. Nemanich can advance their claims here, but they do support Mr. Baca's claim for standing based on the nullification of his vote and his removal from office. ii.

Application Although the Presidential Electors do mention Coleman , they give it little attention, devoting only one paragraph in their opening brief to claim that "as presidential electors for Colorado, each [Presidential Elector] was entitled to have his or her votes properly counted once voting began." Presidential Electors' Br. at 22.

And in their reply brief, the Presidential Electors contend they need not comprise a majority of Colorado's electors to have standing under Coleman because "unlike a legislature, which makes decisions as a body, each elector has an individual right to vote and then transmit that vote directly to the Congress." Presidential Electors' Reply Br. at 30. The Presidential Electors' arguments are unpersuasive as to Ms. Baca and Mr. Nemanich for two reasons.

First, the Supreme Court explicitly noted in Raines that, at most, Coleman stood for "the proposition that legislators whose votes would have been sufficient to defeat (or enact) a specific legislative Act have standing to sue if that legislative Act goes into effect (or does not go into effect), on the ground that their votes have been completely nullified." 521 U.S. at 823, 117 S.Ct. 2312. Coleman , therefore, provides that a group of legislators whose votes are sufficient to achieve their desired outcome have standing to challenge the nullification of those votes and the corresponding contrary result.

Here, even if Mr. Baca, Ms. Baca and Mr. Nemanich had successfully voted for John Kasich, the winner of the 2016 presidential election would not have changed. Donald J. Trump would have still received 304 electoral votes, 163 Cong. Rec. H189 (daily ed. Jan. 6, 2017), a number constituting "the majority of the whole number of Electors appointed," U.S. Const. amend. XII. Second, the Presidential Electors are not seeking the type of relief recognized in Coleman because they are not suing to effectuate their votes. The votes Ms. Baca and Mr.

Nemanich cast were certified and delivered to the President of the Senate, where they were counted. And although Mr. Baca's vote for President was not counted, he is not seeking to somehow belatedly credit that vote. In Coleman , the senators sought to compel other state actors to implement the results of their vote. 307 U.S. at 436, 59 S.Ct. 972. In explaining why the senators had standing, the Court said, "[w]e think that these senators have a plain, direct[,] and adequate interest in maintaining the effectiveness of their votes ." Id. at 438, 59 S.Ct. 972 (emphasis added).

Rather, the Presidential Electors' main challenge to § 1-4-304(5) is that it "restrict[s] the legal freedom of federal Electors to vote as they deem fit." App. at 9. This injury impacts all of Colorado's presidential electors equally. Consequently, the Department contends the Presidential Electors allege an institutional injury they cannot pursue because they "were not authorized to represent Colorado's Electoral College as a whole." Dep't's Br. at 32.

The Presidential Electors disagree, asserting that "unlike a legislature, which makes decisions as a body, each elector has an individual right to vote and then transmit that vote directly to Congress." Presidential Electors' Reply Br. at 30. If the Department is correct and Colorado's electors constitute an institutional body for purposes of standing, the harm created by § 1-4-304(5) is an institutional injury because it necessarily "impacts all members of that [body] in equal measure." Kerr , 824 F.3d at 1215. "[O ]nly an institutional plaintiff possesses standing to assert an institutional injury." Id.

Because the Presidential Electors do not represent a majority of the Colorado electors -the relevant institution under the Department's theory-they lack standing to sue for an institutional injury. If, however, the Presidential Electors are correct and each elector has an individually enforceable right to vote freely, the Presidential Electors still cannot point to an individualized injury that would permit them to seek relief to protect that right. First, the threats were made against all Colorado electors equally. They did not zero in on Ms. Baca and Mr.

Nemanich individually and thus cannot support a personal injury. Second, the Presidential Electors did not bring their claim in an official capacity. And, for the reasons discussed in greater detail above, even if they had done so, they would lack standing for an official injury because they are not still electors. See App. at 9 (claiming each Presidential Elector "was a Democratic Elector for the 2016 presidential election"). Accordingly, the only potential for legislative standing is under the third proposition we elicited from Coleman in Kerr : where an individual legislator suffers a personal injury.

See Kerr, 824 F.3d at 1216 ("For example, if a particular subset of legislators was barred from exercising their right to vote on bills, such an injury would likely be sufficient to establish a personal injury."). Here, Mr. Baca has alleged that the Department struck his vote for President and removed him from office, preventing him from casting his vote for Vice President. This is the type of injury that "zeros in on [Mr. Baca] individually and is thus concrete and particularized." Id. He has therefore alleged a personal injury in fact. In sum, only Mr.

Baca has established an injury in fact, and he has done so solely with respect to his claim for retrospective damages for his removal from office and the nullification of his vote. 2. Traceability and Redressability Because we conclude Mr. Baca has alleged an injury in fact for purposes of retrospective relief, we now address whether that injury is fairly traceable to the Department's conduct and redressable by the relief sought. Monsanto , 561 U.S. at 149, 130 S.Ct. 2743. We conclude Mr. Baca meets both requirements.

The complaint alleges "Secretary Williams, acting on behalf of the Colorado Department of State, willfully removed [Mr.] Baca as an Elector [and] refused to count Mr. Baca's vote [for President or Vice President]." App. at 17. Mr. Baca's injuries-removal from office and nullification of his vote-are fairly traceable to the Department's conduct-removing him from office and striking his vote for President. And the complaint seeks a determination that the Department violated Mr. Baca's "federal right to act as an Elector," entitling him to "nominal damages of $1 ... for the violation of [his] rights." Id. at 19.

Nominal damages are sufficient to satisfy the redressability requirement for a § 1983 action. See Faustin v. City, Cty. of Denver, Colo. , 268 F.3d 942, 948 (10th Cir. 2001). * * * In

summary, none of the Presidential Electors alleged a personal injury sufficient to obtain the prospective relief they seek, and only Mr. Baca alleged a personal injury sufficient to obtain retrospective relief. Mr. Baca has also satisfied the requirements of traceability and redressability as to his claim for retrospective relief. We therefore affirm the district court's dismissal of Ms. Baca's and Mr. Nemanich's claims under rule 12(b)(1). We also affirm the district court's dismissal of Mr. Baca's claim under rule 12(b)(1) -to the extent he seeks prospective relief-because Mr.

Baca has not alleged a continuing threat that § 1-4-304(5) will be enforced against him. But we conclude the district court erred in dismissing Mr. Baca's claim to the extent he seeks retrospective relief because he has standing based on his removal from his role of elector and the cancellation of his vote. IV. DISCUSSION PART TWO: MOOTNESS Having determined Mr. Baca has standing to pursue retrospective relief, we turn to another potential jurisdictional bar: mootness. Mr. Baca brought his claim under 42 U.S.C. § 1983, which requires Mr.

Baca prove (1) a person, (2) acting under color of state law, (3) deprived him of "any rights, privileges, or immunities secured by the Constitution and laws." 42 U.S.C. § 1983. Relying on Arizonans for Official English v. Arizona , 520 U.S. 43, 117 S.Ct. 1055, 137 L.Ed.2d 170 (1997), the dissent concludes that because the Department is not a person for purposes of § 1983, and Mr. Baca therefore cannot satisfy the first element of his § 1983 claim, this case is moot. Respectfully, we disagree that the defect in the merits of Mr. Baca's claim-a defect that the Department expressly waived-renders this case moot.

Mootness "has been described as 'the doctrine of standing set in a time frame: The requisite personal interest that must exist at the commencement of the litigation (standing) must continue throughout its existence (mootness).' " Arizonans for Official English , 520 U.S. at 68 n.22, 117 S.Ct. 1055 (quoting United States Parole Comm'n v. Geraghty , 445 U.S. 388, 397, 100 S.Ct. 1202, 63 L.Ed.2d 479 (1980) ). Thus, a case becomes moot when "an intervening circumstance deprives the plaintiff of a personal stake in the outcome of the lawsuit[ ] at any point during litigation." Campbell-Ewald Co. v.

Gomez , --- U.S. ----, 136 S. Ct. 663, 669, 193 L.Ed.2d 571 (2016) (quoting Genesis Healthcare Corp. v. Symczyk , 569 U.S. 66, 72, 133 S.Ct. 1523, 185 L.Ed.2d 636 (2013) ); see also Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc. , 528 U.S. 167, 191, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000) (distinguishing standing doctrine from mootness because "by the time mootness is an issue, the case has been brought and litigated, often ... for years").

Although some subsequent actions will clearly moot a case by depriving the parties of a continuing interest in the litigation, "as when the parties have settled or a plaintiff pursuing a nonsurviving claim has died," we must also be mindful that "[t]o abandon the case at an advanced stage may prove more wasteful than frugal." Friends of the Earth , 528 U.S. at 191-92, 120 S.Ct. 693. Here, there has been no "intervening circumstance" that could render this case moot. From its initiation, Mr. Baca has sought both prospective and retrospective relief, the latter of which includes a claim for nominal damages.

Thus, the defect in the merits of Mr. Baca's § 1983 claim does not render the dispute before us moot. See DTC Energy Grp., Inc. v. Hirschfeld , 912 F.3d 1263, 1269 (10th Cir. 2018) ("The doctrine of mootness in no way depends on the merits of the plaintiff's contention." (quotation marks omitted)). Nor do we read Arizonans as holding otherwise.

In Arizonans , the plaintiff Yniguez, a state employee, sued the state of Arizona (along with state officials) pursuant to § 1983, seeking both a declaration that an amendment to the Arizona Constitution requiring the State to "act in English and in no other language" was unconstitutional, and an order enjoining its enforcement. 520 U.S. at 49-51, 117 S.Ct. 1055.

While her case was pending before the Ninth Circuit, Yniguez resigned from state employment, and Arizona's Attorney General suggested that this new development rendered the case moot because it now "lack[ed] a viable plaintiff." Id. at 59-60, 117 S.Ct. 1055. The Ninth Circuit rejected the suggestion of mootness, noting that although Yniguez "may no longer be affected by the English only provision" (and therefore lacked any continuing interest in injunctive relief), she could still pursue nominal damages despite failing to "expressly request nominal damages" in her complaint.

Id. at 60, 117 S.Ct. 1055 (quoting Yniguez v. Arizona , 975 F.2d 646, 647 (9th Cir. 1992) ). The Ninth Circuit then returned the case to district court to provide Yniguez an opportunity to "place before the [court], explicitly, the issue of nominal damages." Id. at 60-61, 117 S.Ct. 1055. The Supreme Court rejected this attempt to create a claim for nominal damages to "overcome" mootness.

Because § 1983 actions "do not lie against a State," id. at 69, 117 S.Ct. 1055, the Court concluded, "[i]t should have been clear to the Court of Appeals that a claim for nominal damages, extracted late in the day from Yniguez's general prayer for relief and asserted solely to avoid otherwise certain mootness, bore close inspection. On such inspection, the Ninth Circuit might have perceived that Yniguez's plea for nominal damages could not genuinely revive the case." Id. at 71, 117 S.Ct. 1055 (citation omitted).

But, crucially, it was not the failure of the improvised nominal-damages claim under § 1983 that mooted the case; it was Yniguez's departure from state employment: "Yniguez's changed circumstances-her resignation from public sector employment to pursue work in the private sector-mooted the case stated in her complaint." Id . at 72, 117 S.Ct. 1055. With respect to the rejection of the tardy nominal damages claim, the Court concluded the claim could not be added to the action because it was futile. See McKinley v.

Kaplan, 177 F.3d 1253, 1256 (11th Cir. 1999) ("[T]he reason the plaintiff's attempted addition of a damages claim could not obviate the mootness problem in Arizonans for Official English was that such a damages claim would, as a matter of law, be non-meritorious and futile."). Arizonans does not teach that any claim for damages against a state pursuant to § 1983 is moot; it stands for the narrower proposition that a last-minute claim for legally unavailable relief cannot overcome certain mootness.

See id. at 69, 117 S.Ct. 1055 ("[T]he claim for relief the Ninth Circuit found sufficient to overcome mootness was nonexistent." (emphasis added)). Decisions from other circuits and an unpublished decision from this circuit are consistent with this reading of Arizonans . See Chi. United Indus. v. City of Chicago , 445 F.3d 940, 948 (7th Cir. 2006) (holding that a damage claim saved the case from complete mootness and citing Arizonans as creating an exception "for cases in which a damages claim is added at the last minute in a desperate attempt to stave off the dismissal of the case as moot"); Lillbask v. Conn.

Dep't of Educ., 397 F.3d 77, 90 (2d Cir. 2005) (upholding dismissal of the action as moot despite general claim for such "other relief as the Court deems just and proper" and citing Arizonans as directing close inspection of a claim for nominal damages extracted late in the day from a general prayer for relief); Harris v. Itzhaki, 183 F.3d 1043, 1050 (9th Cir. 1999) (holding that claims for prospective relief had become moot, but that damage claim included in plaintiff's initial prayer for relief was unaffected by Arizonans ); Harris v.

City of Houston, 151 F.3d 186, 191 (5th Cir. 1998) (citing Arizonans and holding case was moot where "the appellants limited and focused their pleading and arguments solely to enjoining the annexation and election" and did not seek

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