On July 3, the Tenth Circuit panel that is hearing Baca v Colorado Department of State, 18-1173, asked attorneys on both sides to file supplemental briefs on whether the Tenth Circuit should even adjudicate the case. The issue is whether presidential electors have a constitutional right to vote for any qualified candidate, or whether they can be fired if they vote for a presidential candidate other than the individual who received the most popular votes in the state.

The Tenth Circuit order says, “The parties are hereby directed to file simultaneous supplemental briefs on or before July 19, that address the following questions: 1. Whether Will v Michigan Dept. of State Police, 491 U.S. 58 (1989), and/or Arizonans for Official English v Arizona, 520 US 43 (1997); (a) impact(s) the district court’s jurisdiction to entertain this action; or (b) render(s) this case moot by preventing the district court from awarding nominal damages. 2. Whether this court, assuming jurisdiction, should exercise our discretion to affirm the district court on the alternate ground that the plaintiffs have failed to state a claim upon which relief can be granted because the defendant – the Colorado Department of State – is not a “person” for purposes of liability under 42 USC 1983.”