On April 20, U.S. District Court Judge Edward J. Davila, an Obama appointee, dismissed Koller v Harris, n.d., 5:16cv-7069. This is the case filed in 2016 by a California Democratic presidential elector who wanted to vote for someone other than Hillary Clinton in the electoral college. He said that the California law, requiring him to vote for the presidential candidate who got the most popular votes in the November election, violates the U.S. Constitution.

Judge Davila did not decide the constitutional issue. He said the case is moot, and he also said the plaintiff lacks standing. The Davila opinion is in error as to the mootness issue. Election law constitutional cases don’t become moot because the election is over. The decision acknowledges this point, but erroneously says that the particular plaintiff must be in a position to again have a problem with the challenged law in a future election.

In Moore v Ogilvie, the U.S. Supreme Court first announced the principle that election law constitutional cases are not moot just because the election is over, whether the particular plaintiff is likely to have a problem with that law in a future election or not. In Richardson v Ramirez, 418 U.S. 24 (1974), Chief Justice William Rehnquist commented about the holding in Moore v Ogilvie. He said that the plaintiff in Moore v Ogilvie was not likely to have a problem in a future election with the law he challenged. Rehnquist wrote, on page 35, “Unlike Moore v Ogilvie, 394 U.S. 814 (1969), in which the particular candidacy was not apt to be revived in a future election…”.

Judge Davila did not mention Richardson v Ramirez, and probably he wasn’t even aware of it.