LEAGUE OF UNITED LATIN AMERICAN CITIZENS; LEAGUE OF UNITED LATIN AMERICAN CITIZENS OF TEXAS; JOSEPH C. PARKER, JR.; HECTOR FLORES; SANFORD LEVINSON; YVONNE M. DAVIS; MARY RAMOS; GLORIA RAY; GUADALUPE TORRES; RAY VELARDE; DORIS WILLIAMS, Plаintiffs-Appellants, versus GREG ABBOTT, Governor of the State of Texas; DAVID WHITLEY, in his official capacity as Secretary of State of the State of Texas, Defendants-Appellees.
No. 19-50214
United States Court of Appeals for the Fifth Circuit
February 26, 2020
JERRY E. SMITH, Circuit Judge
Appeal from the United States District Court for the Western District of Texas
Before DAVIS, SMITH, and STEWART, Circuit Judges.
The plaintiffs—several organizations and eligible voters—challenge the constitutionality of Texаs‘s winner-take-all (“WTA“) method for selecting presidential electors. They contend that WTA violates the one-person, one-vote principle rooted in the Equal Protection Clause of the
I.
The Constitution authorizes each stаte legislature to appoint electors “in such Manner as the Legislature thereof may direct.”1 Individual citizens therefore have “no federal constitutional right to vote for electors for the President of the United States unless and until the state legislature chooses a statewide election as the means to implement its powеr to appoint members of the electoral college.” Bush v. Gore, 531 U.S. 98, 104 (2000) (per curiam). Nevertheless, “whenever the State has adopted an electoral process for determining who will represent any segment of the State‘s population,” “the Equal Protection Clause confers the substantive right to participate on an equal basis with other
In states that employ a WTA system for selecting presidential electors, the political party whose candidate receives the most votes statewide gets all the electors. That system has a long history. In fact, during the first presidential election, Pennsylvania selected its electors using WTA. McPherson v. Blacker, 146 U.S. 1, 29 (1892). After losing the 1796 presidential eleсtion—in part because two states he relied on for support, Virginia and North Carolina, split their electoral votes among multiple candidates—Thomas Jefferson convinced Virginia to adopt WTA. Id. at 31. Other states quickly followed suit; by 1832, all states except South Carolina chose their presidential electors WTA. Id. at 32. Consistent with that history, Texas has selected its electors based on a statewide WTA vote since it joined the Union.2 Today, Texas—along with forty-seven other states and the District of Columbia—continues to select all presidential electors on a WTA basis.3
II.
On appeal, the plaintiffs maintain that Texas‘s WTA structure for appointing presidential electors violates the one-person, one-vote principle rooted in the Equal Protection Clause, as well as
III.
According to the plaintiffs, “the Constitution establishes a two-stage election for President.” “In the first stage, the Constitution requires the states to select Electors.” “In the second stage, the Electors selected by the state cast the only effective votes for President allowed by the Constitution.” The plaintiffs contend that WTA violates one-person, one-vote at both stages. At the first stage, WTA violates precedent “h[olding] that states may not use at-large voting schemes for members of a multi-member body to minimize or cancel out the voting strength of minority voters.” “[B]y assigning all 38 of its electoral votes to the winner of a plurality of the votes at the second stage, Texas further dilutes Plaintiffs’ votes, discarding their votes for President in order to magnify the influence of the plurality on the Presidential elеction.”
To survive the motion to dismiss, however, the plaintiffs’ claim must not be foreclosed by controlling precedent. One giant barrier stands in their way: Williams v. Va. State Bd. of Elections, 288 F. Supp. 622 (E.D. Va. 1968), aff‘d, 393 U.S. 320 (1969) (per curiam).
In Williams, a three-judge panel rejected a one-person, one-vote challenge to Virginia‘s WTA structure for selecting presidential electors. Id. at 623. The panel concluded that appointing electors on a WTA basis did not result in “the denial of privileges outlawed by the one-person, one-vote doctrine or banned by Constitutional mandates of protection.” Id. at 627. The court reasoned,
In the selection of electors the rule does not in any way denigrate the power of one citizen‘s ballot and heighten the influence of another‘s vote. Admittеdly, once the electoral slate is chosen, it speaks only for the element with the largest number of votes. This in a sense is discrimination against the minority voters, but in a democratic society the majority must rule, unless the discrimination is invidious. No such evil has been made manifest here. Every citizen is offered equal suffrage and no deprivation of the franchise is suffered by anyone.
Id. The Supreme Court summarily affirmed. Williams, 393 U.S. at 320.
As a general matter, summary affirmances “reject the specific challenges presented” and “prevent lower courts from coming to opposite conclusions on the precise issues presented and necessarily decided by those actions.” Mandel v. Bradley, 432 U.S. 173, 176 (1977) (per curiam). Nevertheless, “[a] summary dispositiоn affirms only the judgment of the court below, and no more may be read into [the Court‘s] action than was essential to sustain that judgment.” Anderson v. Celebrezze, 460 U.S. 780, 785 n.5 (1983). “Just as with the Court‘s other precedential opinions, lower courts should assume they are bound by summary decisions until such time as the Court informs them that they are not.” Price v. Warden, 785 F.3d 1039, 1041 (5th Cir. 2015) (cleaned up). With that in mind, the district court found “no material factual distinctions or intervening doctrinal shifts that militate [Williams‘s] binding precedential nature.”
The plaintiffs assert that the district court erred in holding that Williams controls, because Williams didn‘t address the plaintiffs’ argument that, as in Gray v. Sanders, 372 U.S. 368 (1963), WTA discards the plaintiffs’ votes for President. That theory is flawed. The Williams plaintiffs based their claims on Gray, which the Court had decided six years earlier. See Williams, 288 F. Supp. at 626 (“Principal reliance for [the plaintiffs‘] argument is the ‘one-person, one-vote’ doctrine announced in Gray . . . .“). Moreover, the Williams plaintiffs made a nearly identical one-person, one-vote chаllenge to a functionally indistinguishable WTA system. Unsurprisingly, every district court to confront the plaintiffs’ argument has held that Williams controls.7
The first critical doctrinal shift that postdates Williams, according to the plaintiffs, is White v. Regester, 412 U.S. 755 (1973). The plaintiffs point out that “[i]t was not until White . . . that the Court would hold an at-large election for multiple members of a multi-member body violated the
White‘s holding thus dealt with race-based vote dilution, which is consistent with Williams‘s holding that discrimination against a political minority does not violate one-person, one-vote, because “in a demoсratic society the majority must rule, unless the discrimination is invidious.” Williams, 288 F. Supp. at 627. The plaintiffs do not allege that Texas‘s WTA system was adopted to cancel out the voting strength of any particular group. Consequently, White does not implicitly overrule Williams.
Contrary to the plaintiffs’ contentions, Bush v. Gore also doesn‘t overrule Williams. That case involved a unique application of the one-person, one-vote rule that had nothing to do with WTA. In it, the Court reaffirmed that “the statе legislature‘s power to select the manner for appointing electors is plenary; it may, if it so chooses, select the electors itself, which indeed was the manner used by state legislatures in several States for many years after the framing of our Constitution.” Bush, 531 U.S. at 104. “Having once granted the right to vote on equal terms,” however, “the State may nоt, by later arbitrary and disparate treatment, value one person‘s vote over that of another.” Id. at 104–05. The Court then ruled that the recount procedures adopted by the Florida Supreme Court treated voters arbitrarily and disparately because the “standards for accepting or rejecting contested ballots might vary not оnly from county to county but indeed within a single county from one recount team to another.” Id. at 106.
Even if we assume that Bush v. Gore has precedential value—despite аn express pronouncement that Court‘s “consideration [was] limited to the present circumstances,” 531 U.S. at 109—and that it altered the one-person, one-vote landscape, it did not overturn Williams. Bush v. Gore dealt with the arbitrary and disparate treatment of voters, whereas in Williams, all of Virginia‘s voters participated in the election on equal terms. The Court in Bush v. Gore had no reason to discuss or reference Williams, much less overturn it. And the “Court does not normally overturn, or so dramatically limit, earlier authority sub silentio.” Shalala v. Ill. Council on Long Term Care, Inc., 529 U.S. 1, 18 (2000).
IV.
Because Williams did not confront an argument that appointing presidential electors through a WTA system violates freedom of association, we must address the substance of those claims.10 The plaintiffs aver that WTA burdens their right (1) to a meaningful vote, (2) to associate with оther voters, and (3) to associate with candidates and petition electoral representatives. The district court dismissed those contentions and held that the plaintiffs hadn‘t stated a cognizable burden. Other district courts have held the same.11
The plaintiffs next assert that “WTA burdens Plaintiffs’ rights to associate with their party for the election of presidential candidates.” They reason that WTA “negates the ability of Texas Democrats to associate in a way analogous to that of extreme forms of partisаn gerrymandering” because “even if they are highly successful in associating for the election of their chosen presidential candidate, Texas Democrats will predictably receive zero electoral votes.” The Supreme Court has recognized the right of individuals to associate by voting for their preferred political party, as well as the right of political parties to define their membership, set policy objectives, and select candidates to represent them. See Timmons v. Twin Cities Area New Party, 520 U.S. 351, 357–58 (1997); Tashjian v. Republican Party of Conn., 479 U.S. 208, 214–15 (1986). Nevertheless, “[t]he
Finally, the plaintiffs assert that Texas‘s WTA system gives an incentive to national candidates and elected officials to ignore Texas‘s voters and focus on “swing states.” They allege that WTA consequently renders their votes and voices meaningless. The plaintiffs, however, produce no caselaw or legal reasoning to justify that as a cognizable burden. Moreover, there is a critical distinction between a system that diminishes voters’ motivation to participate and one that burdens their ability to do so. Although WTA may indirectly decrease the incentive of members of perennially losing political parties to vote, it does not hinder their actual ability to vote.
More generally, the plaintiffs do not allege any harms suffered “by reason of their view[s].” Vieth v. Jubelirer, 541 U.S. 267, 314 (2004) (Kennedy, J., concurring in the judgment). Instead, any disadvantage they allege is solely a consequence of their lack of electoral success. But “the function of the election process is to winnow out and finally reject all but the chosen candidates.” Burdick v. Takushi, 504 U.S. 428, 438 (1992) (quotation marks omitted). “Attributing to elections a more generalized expressive function would undermine the ability of States to operate elections fairly and effiсiently.” Id.
Democratic elections necessarily result in winners and losers. The frustration of losing, however, does not violate the Constitution. The judgment of dismissal is AFFIRMED.