RICHARD J. LYMAN, WILLIAM F. WELD, and ROBERT D. CAPODILUPO, Plaintiffs, Appellants, v. CHARLES D. BAKER, in his official capacity as Governor of the Commonwealth of Massachusetts; and WILLIAM FRANCIS GALVIN, in his official capacity as Secretary of the Commonwealth of Massachusetts, Defendants, Appellees.
No. 18-2235
United States Court of Appeals For the First Circuit
March 31, 2020
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS [Hon. Patti B. Saris, U.S. District Judge]
Amy Spector, Assistant Attorney General, with whom Maura Healey, Attorney General, and Robert E. Toone, Assistant Attorney General, were on brief, for appellees.
TORRUELLA, Circuit Judge. The appellants in this case are three Massachusetts voters who challenge the constitutionality of the winner-take-all method for selecting presidential electors that Massachusetts has adopted pursuant to its authority under
I.
A. Factual Background
Because this is an appeal from the granting of a motion to dismiss, “we rehearse the facts as they appear in the plaintiffs’ complaint[] (including documents incorporated by reference therein).” Hochendoner v. Genzyme Corp., 823 F.3d 724, 728 (1st Cir. 2016).
The United States elects its president and vice president through the Electoral College, which is a body of electors appointed by each state in proportion to its representation in the Senate and the House of Representatives.
Pursuant to its constitutional authority, the Commonwealth of Massachusetts (“Massachusetts“) has enacted a statutory scheme that provides for the appointment of electors for president and vice president on a winner-take-all basis (the “WTA system“). See
The names of the candidates for presidential electors shall not be printed on
the ballot, but in lieu thereof the surnames of the candidates of each party for president and vice president shall be printed thereon in one line under the designation “Electors of president and vice president” and arranged in the alphаbetical order of the surnames of the candidates for president, with the political designation of the party placed at the right of and in the same line with the surnames.
The copies of the records of votes for presidential electors shall . . . be examined by the governor and council, who shall thereafter declare . . . the names of the persons who have received at least one-fifth of the entire number of votes cast for electors, and the number of votes received by each such person. The several persons, to the number of electors required to be chosen, who have received the highest number of votes so ascertained . . . shall . . . be deemed to be elected . . . .
The persons chosen as presidential electors shall meet at the state house on the date fixed by federal law next following their election . . . and organize by the choice of a presiding officer and secretary. The state secretary shall call the meeting to order, call the roll of electors, and preside until a presiding officer shall be chosen. . . . The secretary of the electors shall keep a journal of their proceedings and deposit the same in the office of the state secretary, where it shall be recorded and filed.
What makes the combined effect of this statutory scheme winner-take-all is that the political party of the candidate who wins the popular votе in Massachusetts (by a majority or even a plurality) claims all eleven of Massachusetts‘s electors. Specifically, since Massachusetts mandates that its eleven electors vote for their party‘s candidate,2 see
By way of example, the Democratic candidate in the 2016 presidential election, Hillary R. Clinton, received 60% of the votes (1,995,196 votes) in Massachusetts‘s statewide election and therefore took all eleven electors. Meanwhile, now-President Donald J. Trump received 32.8% of the votes (1,090,893 votes) but took no electors. The 7.2% of the votes cast for other candidates, such as the Libertarian candidate, Gary Johnson, similarly yielded no electoral votes.
Richard J. Lyman, William F. Weld, and Robert D. Capodilupo (together “Appellants“) reside and vote in Massachusetts. Weld, a former Republican Governor of Massachusetts, is currently a registered Libertarian. Lyman, a former senior official under two Republican Governors of Massachusetts (including Weld), and Capodilupo
B. Procedural Background
On February 21, 2018, Appellants sued Charles D. Baker, the current Republican Governor of Massachusetts, and William Francis Galvin, the current Secretary of Massachusetts (together “the Commonwealth“), in their official capacities to challenge the constitutionality of the WTA system as applied in Massachusetts.3 Appellants are careful to stipulate that their quarrel is not with the Electoral College itself, which they acknowledge is mandated by the Constitution. In their complaint, Appellants allege two causes of action. First, they asseverate that the WTA system “violates the ‘one person, one vote’ principle” enshrined in the
Appellants premise their equal protection claim on the notion that the “consequence” of the WTA system is that “votes for a losing presidential candidate are counted . . . only to be discarded when another candidate wins more votes . . . .” Thus, they contend that “if an individual does not vote for the winning candidate in Massachusetts, that person‘s vote translates into no representation in the state‘s multi-member Electoral College delegation.” Appellants allege that this rises to the level of аrbitrary and disparate treatment that undermines the precept of “one person, one vote.”
The essence of Appellants’ associational rights claim is that by discarding their votes for President and thus “limiting [their] ability to express their political preferences,” the WTA system “deprives” them of their “associational rights” simply because of their “political association and expression of political views at the ballot box.” By ensuring that Appellants’ (and similarly situated voters‘) “voices are not heard,” the WTA system allegedly incentivizes presidential candidates to disproportionately focus their campaigning activities in key “‘battleground’ states” (e.g., Florida, North Carolina, Ohio, and Pennsylvania), or swing states, with greater potential for positive electoral returns. Relatedly, Appellants allege that this feature contributes to the increasing vulnerability of the American election system to outside influences, such as hacking orchestrated by foreign governments.
In their prayer for relief, Appellants seek a declaration of the WTA system‘s unconstitutionality as well as a corresponding injunction that would bar Massachusetts from implementing the WTA system
On May 21, 2018, the Commonwealth moved to dismiss the complaint under
C. The District Court‘s Opinion
The district court allowed the Commonwealth‘s motion to dismiss Appellants’ complaint because it found the WTA system to be a valid exercise of Massachusetts‘s authority free of constitutional defect. Lyman, 352 F. Supp. 3d at 84. The court predicated its dismissal on the interrelatedness of the
As an initial matter, the court held that the Supreme Court‘s summary affirmance in Williams v. Va. State Bd. of Elections, 288 F. Supp. 622 (E.D. Va. 1968), aff‘d, 393 U.S. 320 (1969) (per curiam), which upheld Virginia‘s winner-take-all voting system against an equal protection challenge, is binding precedent that requires the dismissal of Appellants’ claims because it satisfied both prongs of the standard set forth in Mandel v. Bradley, 432 U.S. 173, 176 (1977) (stating that summary affirmances “prevent lower courts from coming to opposite conclusions on the precise issues presented and necessarily decided by those actions“). Lyman, 352 F. Supp. 3d at 85-86. Appellants argued that Williams is not controlling because: (a) there are factual distinctions between the voting laws of Virginia and Massachusetts,4 and (b) “important doctrinal shifts” in voter dilution law have since “diminish[ed] its precedential value.” Id. at 86-88. The court rejected these contentions.
Next, the district court held that even if Williams did not control, Appellants’ claims “would still fail for reasons that substantially mirror those given by the three-judge panel in that case,” which is to say that the WTA system does not violate the “one person, one vote” principle because it does not treat Appellants’ votes
Turning to the Appellants’
Because Appellants had “failed to allege legally cognizable injuries under the Equal Protection Clause or the First Amendment,” the district court concluded that they had “also failed to allege an injury to a legally protected interest for the purposes of standing.” Id. at 91. After finding that Appellants had not suffered an injury-in-fact, the district court briefly turned its attention to the question of redressability. Even if Appellants had suffered a cognizable injury, the court reasoned that their claims were ultimately “unredressable” because federal courts lack the constitutional power “to affirmatively dictate what type of elector-allocation system [a state] must use.” Id. at 92. In the court‘s view, ordering a state to implement a particular elector allocation system was inconsistent with the Constitution‘s delegation of such authority to the states and the Supreme Court‘s interpretation of that power as plenary. Id. (citing Bush v. Gore, 531 U.S. 98, 104 (2000)). Accordingly, the district court stated that the relief Appellants sought could only come from a change to Massachusetts state law or an amendment to the U.S. Constitution. Id. (citing Williams, 288 F. Supp. at 629, for the proposition that “any other proposed limitation on the selection by the State of its presidential electors would requirе Constitutional amendment“).
With this background in place, we begin our discussion of the issues.
II.
We review de novo the granting of a motion to dismiss for both lack of standing under
For the purposes of our review, we “isolate and ignore statements in the complaint that simply offer legal labels and conclusions or merely rehash cause-of-action elements.” Schatz, 669 F.3d at 55 (citing Ocasio-Hernández v. Fortuño-Burset, 640 F.3d 1, 7, 12 (1st Cir. 2011) (discussing, among other cases, Ashcroft v. Iqbal, 556 U.S. 662 (2009), and Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007))); see also Hochendoner, 823 F.3d at 731. Second, we “take the complaint‘s well-pled (i.e., non-conclusory, non-speculative) facts as true, drawing all reasonable inferences in the pleader‘s favor, and see if they plausibly narrate a claim for relief.” Schatz, 669 F.3d at 55 (citing Ocasio-Hernández, 640 F.3d at 12); see also Blum, 744 F.3d at 795. “Plausible, of course, means something more than merely possible, and gauging a pleaded situation‘s plausibility is a ‘context-specific’ job that compels us ‘to draw on’ our ‘judicial experience and common sense.‘” Schatz, 669 F.3d at 55 (quoting Iqbal, 556 U.S. at 679); see also Hochendoner, 823 F.3d at 730-31. Finally, in the course of our review, “we can consider (a) ‘implications from documents’ attached to or fairly ‘incorporated into the complaint,’ (b) ‘facts’ susceptible to ‘judicial notice,’ and (c) ‘concessions’ in [the] plaintiff‘s ‘response to the motion to dismiss.‘” Schatz, 669 F.3d at 55-56 (footnote omitted) (quoting Arturet-Vélez v. R.J. Reynolds Tobacco Co., 429 F.3d 10, 13 n.2 (1st Cir. 2005)).
After careful consideration, we find that Appellants have, in fact, estаblished standing to bring their equal protection and associational rights claims sufficient to survive a
A. Standing
The parties first dispute whether the district court properly dismissed Appellants’ claims for lack of standing under
An injury-in-fact is the invasion of a legally protected interest that is both “concrete and particularized” and “actual or imminent,” as opposed to “conjectural or hypothetical.” Lujan, 504 U.S. at 560 (internal quotation marks omitted). Concreteness and particularity are two separate requirements. See Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1545 (2016). To be concrete, an injury must “actually exist“; it cannot be “abstract.” Id. at 1548. For an
Cаusation is established by demonstrating a causal connection “between the injury and the conduct complained of,” where the injury is “fairly . . . trace[able] to the challenged action of the defendant and not . . . th[e] result [of] the independent action of some third party not before the court.” Lujan, 504 U.S. at 560-61 (alterations in original) (quoting Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26, 41-42 (1976)). Finally, “it must be ‘likely,’ as opposed to merely ‘speculative,’ that the injury will be ‘redressed by a favorable decision.‘” Id. at 561 (quoting Simon, 426 U.S. at 38, 43).
Appellants contest the district court‘s finding that they lack standing because they maintain that the WTA system inflicts sufficiently concrete and particularized injuries by unequally diluting the strength of their votes for non-Democratic presidential candidates and depriving them of their right of political association. They also dispute the district court‘s findings about the “unredressability” of their claims because, in their view, the court plainly has the authority to declare the WTA system in Massachusetts unconstitutional and to enjoin its use without requiring the adoption of a proportional allocation system, and because, in the alternative, the court may nevertheless opt to grant declaratory relief alone.
In full disagreement, the Commonwealth maintains that Appellants cannot plausibly have suffered an injury to their legally protected voting or associational interests on account of the challenged WTA system because Massachusetts‘s power to determine its method of appointing presidential electors is plenary and the WTA system is devoid of constitutional infirmity. Moreover, in the Commonwealth‘s view, Appellants simply have not suffered a сoncrete and particularized injury because the winner-take-all method applies to every voter who casts a ballot in presidential elections administered in Massachusetts and because Appellants cannot show that they have been prevented from voting for the presidential candidates of their choice. Finally, inter alia, the Commonwealth contends that Appellants’ claims are not redressable because even a favorable result would not impact the selection method in the forty-seven other states (plus the District of Columbia) that use a WTA method.
We hold that Appellants have plausibly alleged an invasion of their constitutionally protected voting rights sufficient to survive a
Finally, the alleged injury is indeed redressable. Although we surely cannot order Massachusetts to adopt any one particular elector-selection method over another, it is well within the scope of our authority to rule on whether, in enacting the WTA system, Massachusetts has exercised its plenary power “in a way that violates other specific provisions of the Constitution.” Williams v. Rhodes, 393 U.S. 23, 29 (1968); see also McPherson, 146 U.S. at 24 (holding that challenge to state‘s electoral allоcation law did not present a political question). To that end, if a federal court declared Massachusetts‘s WTA system to be unconstitutional, it could enjoin its use without requiring Massachusetts to adopt Appellants’ preferred proportional allocation system. See Larson v. Valente, 456 U.S. 228, 243 n.15 (1982) (“[A] plaintiff satisfies the redressability requirement when he shows that a favorable decision will relieve a discrete injury to himself. He need not show that a favorable decision will relieve his every injury.” (emphasis in original)).
Importantly, a finding of standing here is consistent with the three-judge panel‘s decision in Williams, which resolved that the Virginia plaintiffs in that case (qualified voters from each congressional district) did “have the requisite standing” to challenge Virginia‘s winner-take-all system on equal protection grounds even though the panel ultimately rejected the claim on its merits. 288 F. Supp. at 625. We also note that none of the mirror-image suits filed in the Fourth, Fifth, and Ninth Circuits implicate the same standing issue, which seems to be because the defendants in those cases did not move to dismiss under
Having established, contrary to the district court‘s determination, that Appellants have indeed established the requisite standing to survive the
B. “One Person, One Vote” Claim
We begin by assessing whether Appellants’ allegations plausibly support a claim that the WTA system violates the “one person, one vote” principle embedded in the
1.
According to the constitutional blueprint for implementing the Electoral College, the States alone (through their legislatures) possess the power to determine the manner of appointing presidential electors. See
Plenary as a state legislature‘s power to dictate the manner of appointing presidential electors may be, it is not beyond judicial review. On the contrary, it is “always subject to the limitation that [it] may not be exercised in a way that violates other specific provisions of the Constitution.” Rhodes, 393 U.S. at 29; see also Williams, 288 F. Supp. at 626 (noting that in order to pass muster, “the manner of appointment must itself be free of Constitutionаl infirmity“). The
The
In this manner, the
One-person, one-vote jurisprudence thus requires states to “[e]nsure that each person‘s vote counts as much, insofar as it [i]s practicable, as any other person‘s.” Hadley v. Junior Coll. Dist. of Metro. Kan. City, 397 U.S. 50, 54 (1970). “[T]he crucial consideration is the right of each qualified voter to participate on an equal footing in the election process.” Id. at 55. As the Supreme Court has recognized, “[t]he right to vote can be affected by a dilution of voting power as well as by an absolute prohibition on casting a ballot.” Shaw v. Reno, 509 U.S. 630, 640-41 (1993) (alteration in original) (emphasis omitted) (quoting Allen v. State Bd. of Elections, 393 U.S. 544, 569 (1969)); see also Reynolds v. Sims, 377 U.S. 533, 555 (1964) (“[T]he right of suffrage can be denied by a debasement or dilution of the weight of a citizen‘s vote just as effectively as by wholly prohibiting the free exercise of the franchise.“). Along these lines, one‘s right to vote is impaired to an unconstitutional degree when the weight of one‘s vote is substantially diluted in comparison with the votes of citizens living elsewhere in the state. See, e.g., Moore v. Ogilvie, 394 U.S. 814, 819 (1969) (“The idea that one group can be granted greater voting strength than another is hostile to the one [person], one vote basis of our representative government.“). Therefore, now that Massachusetts has decided to let its citizens choose by ballot which presidential candidate Massachusetts will support with its electoral votes, that balloting is subject to the “one person, one vote” principle embedded in the
2.
Appellants’ challenge to Massachusetts‘s WTA system for selecting presidential electors on equal protection grounds is not the first of its kind. In Williams, Virginia voters challenged the Commonwealth of Virginia‘s use of an analogous WTA system known as the “unit rule.” See 288 F. Supp. at 624, 626 (considering “whether
Williams decides the core equal protection issue presented by this appeal: whether Massachusetts‘s WTA system undermines the “one person, one vote” principle.10 The Williams plaintiffs were ten Virginia voters who shared the conviction that Virginia‘s unit rule undermined the original intent of the Elector Clause that electors ought to be chosen on a district-by-district basis like congressional representatives -- a sentiment which Appellants in this case share. See Williams, 288 F. Supp. at 625; Opening Brief of Plaintiffs-Appellants
Deferential to the Elector Clause‘s broad grant of authority to the States, the three-judge panel in Williams rejected the equal protection claim because it saw “nothing in [Virginia‘s] unit rule offensive to the Constitution.” Id. at 627. In fact, to reach its decision on the exact issue presented here, the district court considered some of the same “possible objectionable results” of the WTA system that Appellants allege in their complaint. Id. Namely, this list included the risk of “minority presidents” (i.e., when а candidate wins a majority of the electoral votes despite losing the popular vote), and most importantly, the “disenfranchisement defect” (i.e., that the unit system “extinguishes the voice” of up to “49 percent of a State‘s voters” by allowing “State majorities to speak for them“). Id. Ultimately, the Williams court concluded:
[I]t is difficult to equate the deprivations imposed by the unit rule with the denial of privileges outlawed by the one-person, one-vote doctrine or banned by Constitutional mandates of protection. 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. Admittedly, once the electoral slate is chosen, it speaks only for the element with the largest number of votes. This is in a sense 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.
Appellants first argue that the district court erroneously relied on Williams in dismissing their equal protection claim because Williams never addressed their exact “contention that WTA discards votes at the first step of a two-step election as condemned in Gray footnote 12.” Appellants emphasize the narrowness of the deference we ought to afford summary orders and propose that we only adhere to them when “the factual and legal issues presented” are “identical.” At the same time, Appellants also maintain that the district court misunderstood their argument as “being rooted in . . . fаctual distinctions” between Virginia‘s and Massachusetts‘s WTA systems. Although they maintain that the factual differences they alleged are not “meaningless,” Appellants note that their more “basic point” is that their claim evades Williams‘s limited wingspan because it turns on ”Gray‘s second holding in footnote 12,” which neither the Williams
However, Williams did not, as Appellants assert, only consider the WTA system as “a one-step election for a state-level body.” In fact, the two-step election critique (i.e., that the WTA system causes individual votes to “lose their effect on the outcome at a preliminary stage in the counting,” in the sense that those votes are not tallied when determining the winner on the national stage) made more than a mere cameo. See Williams, 288 F. Supp. at 627. The court expressly weighed the issue, but it ultimately rejected the two-step critique because it was more persuaded by the notion that “[b]y voting, the minority party voters . . . set a figure which must be matched and exceeded by opposing voters before the State‘s electoral vote bloc is awarded to the opponent.” Id. at 627 (quoting Staff of S. Subcomm. on Const. Amends., 87th Cong., Memorandum on the Electoral College 23 (Oct. 10, 1961)). Along these lines, the applicability of the decision in Gray, as well as other relevant “one person, one vote” cases, was directly at issue in Williams. In fact, the core equal protection holding that “the general ticket does not come within the brand of [the one person, one vote] decisions” is a direct application of Gray‘s principles regarding the constitutionality of the unit rule. Id. at 626. Therefore, the absence in Williams of a citation to Gray‘s footnote 12, in our view, does not place Appellants’ case outside the “precise issues рresented and necessarily decided” by the summary action. Mandel, 432 U.S. at 176.
Next, Appellants allege that Williams does not control the outcome of this case under their multimember district vote dilution theory either (i.e., that by turning the selection of Massachusetts‘s electors into an election for a eleven-member district, the WTA system dilutes the strength of Appellants’ votes for non-majority party candidates). In support, they assert that White v. Regester, 412 U.S. 755 (1973), and Bush v. Gore, represent key doctrinal shifts in vote dilution law, which undermine the precedential force of Williams‘s summary order as applied to their “one person, one vote” claim. For the following reasons, this too does not persuade.
First, the comparison with White is inapposite. Appellants read White as giving “teeth to the principle that at-large elections can violate the Fourteenth Amendment if they operate to dilute the influence of political minorities.” Thus, without the benefit of cases like White, they argue, the Williams court could not have properly considered the potential for a voting system to dilute votes in an election for a multimember body. However, to characterize White as applying to the dilution of the voting strength of “political minorities” through the use of multimember districts is to misread its second holding, which stemmed from the Court‘s concern that “multimember districts [were] being used invidiously to cancel out or minimize the voting strength of racial groups.” White, 412 U.S. at 765 (emphasis added) (citing Whitcomb v. Chavis, 403 U.S. 124 (1971)). Specifically, the court in White confronted the reapportionment plan for the Texas House of Representatives in Dallas and Bexar Counties, where African-American and Mexican-American communities had been “effectively excluded” or removed from “participation in the [political] process” in any “reliable and meaningful manner” for many years on end. Id. at 767, 769. In order “to bring [those] communit[ies] into the full stream of political life of the county and State,” drawing single-member districts was “required to remedy ‘the effects of past and present [racial] discrimination.‘” Id. at 769. Appellants are not wrong that White, as well as the line of subsequent precedent to which they cite,11 developed voting rights case law with respect to the use of multimember districts; however, they stretch reason too far in characterizing those cases as forming a doctrine regarding diluting the voting strength of political minorities in general terms, when the clear focus of those cases was discrimination against racial minorities. Thus, White does not undermine the precedential force of Williams.12
Second, turning to Bush, Appellants train their eyes on the Williams court‘s “reliance on the invidiousness as a prerequisite for an equal protection violation,” which they argue has been “overcome by doctrinal developments.” They ascribe particular meaning to the fact that in Bush, the Supreme Court found that Florida‘s recount procedures violated the “one person, one vote” principle because they resulted in “arbitrary and disparate treatment” of Florida citizens’ votes without adding to that finding any discussion whatsoever of whether such discrimination was invidious. Thus, in Appellants’ view, “[b]ecause invidiousness is not a requirement of the present challenge it follows that Williams cannot have resolved [their] challenge based on a legal standard that no longer controls.” In our estimation, this misses the mark for two reasons.
First and foremost, we decline to read Bush, which expressly states that it is “limited to the present circumstances” (and fairly unique circumstances at that), 531 U.S. at 109, beyond its facts as overturning Williams, especially because it does not expressly discuss the selection of presidential electors. See Shalala v. Ill. Council on Long Term Care, Inc., 529 U.S. 1, 18 (2000) (“[The Supreme Court] does not normally overturn, or so dramatically limit, earlier authority sub silentio . . . .“).
Next, we do not understand Bush to definitively alter the doctrinal requirements of “one person, one vote” claims in every instance. In Bush, Florida‘s court-ordered recount of ballots cast in the 2000 presidential election violated the
In any event, while proving the invidiousness of an election system may not always be required to establish a valid equal protection claim, the Supreme Court has factored a showing of invidiousness into the prima facie case for violations of the
3.
Even if Williams were not binding, we would agree that Appellants still fail to state a “one person, one vote” claim as a matter of law. Appellants’ equal protection claim does not withstand scrutiny because the WTA system does not deny Appellants equal participation in the political process by, for example, unevenly counting their votes or favoring or disfavoring any particular set of voters. Drawing from Gray, Appellants’ first equal protection theory is that the WTA system severely burdens their right to an equally weighted vote by discarding their votes for president at the first step of a two-step presidential election. Appellants’ second thеory is that the WTA system unconstitutionally dilutes their votes even if viewed as an election for a multimember, state-level body of electors instead of the first step in a two-step presidential election.
The allegations in the complaint do not demonstrate that the WTA system “by . . .
Moreover, that one political party has prevailed in the past eight election cycles (or thirty-two years) does not necessarily signify the unequal treatment of political parties either. A fuller picture of Massachusetts electoral history suggests that the Republican Party, for example, has enjoyed periods of sustained success at the ballot box in both presidential and gubernatorial elections (the latter overlapping with the eight election cycles decried by Appellants).
Thus, we find no difficulty completing the logical progression articulated by the Supreme Court in McPherson, where it upheld Michigan‘s use of the congressional district system for appointing electors against a constitutional challenge (the first of its kind). “If presidential electors are appointed by the legislatures, no discrimination is made; if they are elected in districts where each citizen has an equal right to vote, the same as any other citizen has, no discrimination is made.” McPherson, 146 U.S. at 40. Likewise, if presidential electors are appointed on a WTA basis, and every citizen has an equal right to vote, no discrimination is made. Because that is plainly the case in Massachusetts, we do not disturb the ruling below on this point.
Appellants do not allege any invidiousness about the WTA system in Massachusetts either. While Appellants maintain that they need not allege invidiousness to state an equal protection claim, they nevertheless cite to historical evidenсe to illustrate that the origins of the WTA can be traced to the realpolitik between Republicans and Federalists in the early days of the republic. That the initial design of the WTA system may have contemplated the consolidation of electoral power in the majority party at any given time does not necessarily make it invidiously discriminatory. The United States’ system of representative democracy was built on compromises that sought to promote geographic equality by way of numerical balancing acts like the Electoral College and equal representation in the Senate. We recognize that Appellants do not challenge the “numerical inequality” that inheres in the Elector Clause vis-à-vis its interrelatedness with the Electoral College (which effectively gives highly populated states fewer
To begin, Appellants build their case on the assertion that the district court erroneously ignored Gray‘s second, independent holding in rejecting their analogy to the two-step system that the Supreme Court declared unconstitutional in that case. Gray involved a challenge to the Georgia Democratic Party‘s use of a county-unit system to conduct primaries for U.S. Senator and statewide offices, including for governor. See Gray, 372 U.S. at 370. Under Georgia‘s variation — which the state legislature had actually amended during the course of the litigation — the primary was divided into two steps with two metrics: units and votes. See id. at 372. Counties were allotted two units for the first 15,000 residents. See id. Counties then gained an additional unit for each of the next intervals of 5,000, 10,000, and 15,000 residents, and thereafter, an additional two units for each additional interval of 30,000 residents. See id. To win the nomination in the first leg, a candidate needed to receive a majority of both the county units and the popular vote (with a majority of the popular vote breaking a tie in unit votes). See id. However, the state held a second “run-off” primary if no candidate won both the majority of the units and popular votes. See id. To win in the second leg, a candidate simply needed to amass the highest number of units. See id.
Because the county-unit system “weight[ed] the rural vote more heavily than the urban vote and weight[ed] some small rural counties heavier than other larger rural counties,” the Supreme Court struck it down on equal protection grounds. Id. at 379. In terms of the
Appellants contend that the district court understandably latched onto this aspect of the holding in Gray at the expense of its second holding, which in Appellants’ view, is of greater relevance to the outcome of their case. Footnote 12 of Gray states:
The county unit system, even in its amended form . . . would allow the candidate winning the popular vote in the county to have the entire unit vote of that county. Hence the weighting of the votes would continue, even if unit votes were allocated strictly in proportion to population. Thus if a candidate won 6,000 of 10,000 votes in a particular county, he would get the entire unit vote, the 4,000 other votes for a different candidate being worth nothing and being counted only for the purpose of being discarded.
Id. at 381 n.12. To confirm the weight of the footnote, Appellants cite to the Supreme Court‘s statement in Gordon v. Lance, that “in Gray . . . we h[e]ld that the county-unit system would have been defective even if unit votes were allocated strictly in proportion to population.” 403 U.S. 1, 4 (1971).
Although the analogy between Georgia‘s county-unit system and the WTA system has intuitive appeal, Gray does not in our
Whatever the added effect of footnote 12, the core concern in Gray was that the county-unit system perpetuated a form of geographic discrimination within the state of Georgia that magnified the voice of rural voters.13 In other words, the equal protection violation stemmed from the observation that every voter in the Democratic primary was not “equal to every other voter in his State.” Id. at 380. Moreover, even in recognizing the point raised in footnote 12 that Georgia‘s county unit system “would have been defective even if unit votes were allocated strictly in proportion to population,” Gordon — the case to which Appellants cite — noted that the “defect” to which footnote 12 referred
“continued to be geographic discrimination.” 403 U.S. at 4-5. This confirms that the discarding of the votes was never the core focus of the holding. Rather, it was the disparate treatment that ran afoul of the
Massachusetts‘s WTA system is not materially analogous because the role of counties in Georgia and the role of states under the federal Constitution materially differ. Counties qua counties in Georgia did not have the power to select Georgia‘s governor. Rather, the voters chose the governor by ballot; hence any attempt to use “two steps” to weight those votes differently raised equal protection issues. States, by contrast, have the power to select the electors who vote for president. And under the Constitution, a state can decide for itself, without any plebiscite, whether to cast its full support behind a single candidate. Massachusetts decided to do so. That left only a single decision for voters: which candidate? On that decision, Massachusetts chose to turn to its voters, conducting a single, one-step electoral process just as it does to select a governor. In short, on the question assigned to voters in Massachusetts, there is only a one-step vote, with no dilution.
Moreover, the Constitution directly addresses this issue in a manner that shows no inkling of requiring a plebiscite. For instance, in the event that the electoral vote is not decisive, the vote goes to the House of Representatives to break the tie in the Electoral College, with each state having one, winner-take-all vote. See
Accordingly, Appellants’ two-step theory does not hold weight even factoring in the contents of footnote 12 in Gray.
Moving to Appellants’ second equal protection theory asserting vote dilution in a multimember district of electors, we find that it too fails to carry the day. Appellants contend that even if viewed as a single-step election for a slate of electors, the WTA system severely burdens their
Their argument is premised on the original intent that the Electoral College would function as a deliberative body. See McPherson, 146 U.S. at 36 (“[I]t was supposed that the electors would exercise a reasonable independence and fair judgment in the selection of the chief executive, but . . . the original expectation may be said to have been frustrated.“). By this logic, Massachusetts denies equal representation to the citizens who vote for minority party candidates because the WTA system ensures that they will not be represented by any electors in the Electoral College. Appellants thus argue, relying on Burns, 384 U.S. at 88, that the WTA system “‘cancel[s] out the voting strength’ of minority voters in order to consolidate power in the hands of the plurality.”
There is no question that multimember apportionment schemes can violate the dictates of the
We see a useful parallel to the impact of the WTA system in Massachusetts. If the WTA system could indeed be characterized as a multimember district — which we
Whitcomb, of course, recognizes that multimember districts “may be subject to challenge” under certain circumstances of vote dilution. Id. at 143 (citing Fortson, 379 U.S. at 439). The Court added to its holding that the “tendency” of a multimember district to have such an effect “is enhanced when the district is large and elects a substantial proportion of the seats in either house of a bicameral legislature . . . or if it lacks provision for at-large candidates running from particular geographical subdistricts.” Id. at 143-44 (citing Burns, 384 U.S. at 88). Appellants submit that the use of the WTA system in Massachusetts aptly illustrates the “dilutive characteristics” that were absent in Whitcomb. Under their analogy, Massachusetts‘s unicameral body of eleven electors is the “district,” and since one hundred percent (“a substantial proportion“) of “the seats,” or electors, are awarded to the party whose candidаte wins the popular vote, the dilutive effect is at its peak. However, this parallel is based on a strained reading of the holding in Whitcomb, which stands for the proposition that multimember districts only prompt equal protection claims when “conceived or operated as purposeful devices to further racial . . . discrimination.” Whitcomb, 403 U.S. at 160 (emphasis added). And as we have explained, Appellants do not allege such invidiousness behind the WTA system in Massachusetts.
Additionally, Appellants hypothesize that since it would be unconstitutional for Massachusetts to provide for the election of its state senators using a single-slate, at-large WTA election (because it would result in single-party rule), it is therefore unconstitutional to adopt the WTA system to appoint Massachusetts‘s slate of electors. This analogy does not quite pan out, as presidential electors are not a comparable body of representatives, especially now that the Electoral College has effectively lost its deliberative character.
Finally, as previously explained, any comparison to White is inapposite. While “political elements” are certainly a protected class in the voting rights context, White was concerned with an altogether different form of deep-seeded exclusion of racial minorities from equal participation in the political process that extended temporally far beyond the eight election cycles to which Appellants point in their complaint. Therefore, Appellants do not adequately state a claim under a multimember district theory either.
Accordingly, we affirm the district court‘s ruling that Appellants have failed
C. Associational Rights Claim
We turn our attention to whether Appellants’ allegations plausibly support a claim that the WTA system violates their associational rights under the
Together, the
No bright line rule exists to aid our inquiry. Instead, to decide whether a state election law violates the aforementioned associational rights, we employ a balancing test that weighs the “‘character and magnitude’ of the burden the State‘s rule imposes on those rights against the interests the State contends justify that burden, and [then] consider the extent to which the State‘s concerns make the burden necessary.” Timmons, 520 U.S. at 358 (quoting Burdick v. Takushi, 504 U.S. 428, 434 (1992)). We apply strict scrutiny to a state election law that severely burdens a plaintiff‘s associational rights, meaning that it must be “narrowly tailored and advance a compelling state interest.” Id. By contrast, “[l]esser burdens . . . trigger less exacting review.” Id.; see Anderson, 460 U.S. at 788 (“[T]he state‘s important regulatory interests are generally sufficient to justify reasonable, nondiscriminatory restrictions.“).15
Elections are hard-fought political battles won by the power of persuasion. See Schatz, 669 F.3d at 52 (observing that the electoral process “sometimes has the feel of a contact sport, with candidates, political organizations, and others trading rhetorical jabs and sound-bite attacks in hopes of landing a knockout blow at the polls“). The WTA system raises the stakes of victory, but it does not deprive any group of Massachusetts voters of “an equal opportunity to win votes” during the statewide election. Rhodes, 393 U.S. at 31. It would be troublesome indeed if, like Ohio‘s ballot access measure in Rhodes, Massachusetts‘s WTA system imposed signature requirements that made it “virtually impossible” for a political pаrty to slot their candidate onto the statewide ballot. Id. at 24-25. That, however, is not the case in Massachusetts, which offers the candidates whom Appellants support the “equal opportunity to win votes.” Rhodes, 393 U.S. at 31. Indeed, Appellants cannot and have not alleged that the WTA system restricts their ability to express their political preferences in Massachusetts by keeping their preferred candidates off the ballot. See Anderson, 460 U.S. at 786-88. Appellants’ preferred candidates did appear on the ballot in the 2016 presidential election and Appellants allege that they exercised their right to vote (the alleged harm being that their votes were effectively “discarded” by virtue of the WTA system).
Instead, Appellants assert that the WTA system has the effect of “distorting the political process” in such a manner that severely burdens their associational rights because it “incentivizes candidates to ignore Massachusetts . . . and its [political] minority voters in each election cycle,” which in turn exposes the national election system to foreign interference as well. Having contextualized Massachusetts‘s use of the WTA system vis-à-vis the Electoral College as being in line with the national norm, it would not be sensible now to
Lastly, we note that in the course of its analysis, the district court turned to the Supreme Court‘s gerrymandering jurisprudence because it sheds some light on how to assess the “character and magnitude” of the burden imposed by state election law on associational freedoms.16 For these purposes, it is particularly troubling “when a State purposely ‘subject[s] a group of voters or their party to disfavored treatment.‘” Gill, 138 S. Ct. at 1938 (Kagan, J., concurring) (emphasis added) (alteration in original) (quoting Vieth, 541 U.S. at 314 (Kennedy, J., concurring)).
Appellants contend that the district court incorrectly dismissed their claim on the basis that the WTA system does not purposely burden their associational rights by reason of their views. The Commonwealth, for its part, suggests that the district court drew the parallel to gerrymandering as a means of “observing that the winner-take-all system is a neutral rule, the application of which does not turn on the viewpoint of a particular individual, group, or party.” While intent (i.e., purpose) may not be a
required element of an associational rights claim, we tend to agree with the Commonwealth that the larger point is that the WTA system is a rule of neutral and even-handed application that does not burden the associational rights of any voter or party by reason of their views.
Therefore, Appellants have not sufficiently alleged that the WTA system burdens their associational freedom. Even if we were pressed to find that some burden resulted, it is surely not severe, and its “character and magnitude” is too slight to exert any significant force in the relevant balancing test that cannot be overcome by any regulatory interest of Massachusetts.
III.
In conclusion, even though Appellants do have standing to bring their claims, we agree with the district court that they have failed to state a claim for relief for
Affirmed.