Paul Rodriguez v. Gavin Newsom ( 2020 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
PAUL RODRIGUEZ; ROCKY CHAVEZ; No. 18-56281
LEAGUE OF UNITED LATIN
AMERICAN CITIZENS; CALIFORNIA D.C. No.
LEAGUE OF UNITED LATIN 2:18-cv-01422-
AMERICAN CITIZENS, CBM-AS
Plaintiffs-Appellants,
v. OPINION
GAVIN NEWSOM, * in his official
capacity as Governor of the State of
California; ALEX PADILLA, Secretary
of State of California, in his official
capacity as Secretary of State of the
State of California
Defendants-Appellees.
Appeal from the United States District Court
for the Central District of California
Consuelo B. Marshall, District Judge, Presiding
Argued and Submitted March 3, 2020
Pasadena, California
*
Gavin Newsom is substituted for his predecessor, Edmund G.
Brown, Jr., as Governor of the State of California. Fed. R. App. P.
43(c)(2).
2 RODRIGUEZ V. NEWSOM
Filed September 8, 2020
Before: Consuelo M. Callahan and Jacqueline H. Nguyen,
Circuit Judges, and Dana L. Christensen, ** District Judge.
Opinion by Judge Nguyen
SUMMARY ***
Civil Rights
The panel affirmed the district court’s dismissal of a
complaint which alleged that California’s winner-take-all
approach to selecting its presidential electors violates the
equal protection and First Amendment rights of California
residents who, like appellants, usually do not vote for the
State’s popular vote winner and thus enjoy no representation
among the State’s electors.
The panel held that appellants’ equal protection
challenge was foreclosed by Williams v. Virginia State
Board of Elections, a decades-old opinion that was
summarily affirmed by the U.S. Supreme Court. 288 F.
Supp. 622 (E.D. Va. 1968), aff’d, 393 U.S. 320 (1969), reh’g
denied, 393 U.S. 1112 (1969). The panel joined the three
sister circuits to have considered the issue in holding that,
under Williams, a State’s use of the winner-take-all approach
**
The Honorable Dana L. Christensen, United States District Judge
for the District of Montana, sitting by designation.
***
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
RODRIGUEZ V. NEWSOM 3
(WTA) to select its presidential electors is consistent with
the Constitution’s guarantee of equal protection. The panel
rejected appellants’ arguments that post-Williams cases
involving multimember districts raised doubts regarding
Williams’s continued viability, or that Gray v. Sanders, 372
U.S. 368, 381 (1963), a Supreme Court case that predated
Williams, controlled rather than Williams.
The panel held that appellants failed to plausibly allege
that California’s use of WTA to select presidential electors
violates the First Amendment. The panel rejected
appellants’ contentions that the WTA system burdened their
right to cast their votes effectively, to associate with like-
minded voters across the State, and to petition their
government and associate with the candidates of their
choice. Moreover, the panel held that even assuming
appellants had plausibly alleged the State’s use of WTA
imposed some minimal burden, their claims would still fail.
Any burden was—at most—minimal, and California had
identified an important interest: maximizing the impact of
the State’s electors within the Electoral College.
COUNSEL
David Boies (argued), Boies Schiller Flexner LLP, Armonk,
New York; James P. Denvir III, Amy J. Mauser, Karen L.
Dunn, Lisa Barclay, Amy L. Neuhardt, Hamish P.M. Hume,
and Katherine M. Cheng, Boies Schiller Flexner LLP,
Washington, D.C.; Trevor P. Stutz, Boies Schiller Flexner
LLP, Los Angeles, California; Luis Roberto Vera Jr.,
LULAC National General Counsel, Law Offices of Luis
Vera Jr., San Antonio, Texas; Jennier D. Hackett, James R.
Martin, and Allison M. Vissichelli, Zelle LLP, Washington,
D.C.; David H. Fry and J. Max Rosen, Munger Tolles &
4 RODRIGUEZ V. NEWSOM
Olson LLP, San Francisco, California; Michael B.
Desanctis, Munger Tolles & Olson LLP, Washington, D.C.;
Scott A. Martin, Irving Scher, and Jeanette Bayoumi,
Hausfeld LLP, New York, New York; Michael D. Hausfeld
and Swathi Bojedla, Hausfeld LLP, Washington, D.C.;
Samuel Issacharoff, New York, New York; Mark Guerrero
and Mary Whittle, Guerrero & Whittle PLLC, Austin,
Texas; Randall L. Allen, Alston & Bird LLP, Atlanta,
Georgia; Maria Amelia Calaf, Jack A. Simms Jr., Ryan A.
Botkin, Katherine P. Chiarello, Karen S. Vladeck, and W.
Reid Wittliff, Wittliff Cutter Austin PLLC, Austin, Texas;
for Plaintiffs-Appellants.
P. Patty Li (argued), Deputy Attorney General; Paul Stein,
Supervising Deputy Attorney General; Thomas S. Patterson,
Senior Assistant Attorney General; Xavier Becerra,
Attorney General; Office of the Attorney General, San
Francisco, California; for Defendants-Appellees.
OPINION
NGUYEN, Circuit Judge:
The State of California, like forty-seven other States and
the District of Columbia, employs a winner-take-all
(“WTA”) approach to selecting its presidential electors.
Under this system, the State awards all of its electors to the
political party of the popular vote winner in the State,
regardless of relative vote share. Appellants, a coalition of
voters in California, appeal the district court’s dismissal of
their lawsuit. They allege that WTA violates the equal
protection and First Amendment rights of California
residents who, like them, usually do not vote for the State’s
RODRIGUEZ V. NEWSOM 5
popular vote winner and thus enjoy no representation among
the State’s electors.
Appellants’ equal protection challenge is foreclosed by
Williams v. Virginia State Board of Elections, a decades-old
opinion that was summarily affirmed by the U.S. Supreme
Court. 288 F. Supp. 622 (E.D. Va. 1968), aff’d, 393 U.S.
320 (1969), reh’g denied, 393 U.S. 1112 (1969)
(“Williams”). We join our three sister circuits to have
considered the issue 1 in holding that, under Williams, a
State’s use of WTA to select its presidential electors is
consistent with the Constitution’s guarantee of equal
protection. We also conclude that Appellants have failed to
plausibly allege that California’s use of WTA to select
presidential electors violates the First Amendment. We
therefore affirm.
I.
A.
Article II of the U.S. 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. “Article II, § 1’s appointments power gives the
States far-reaching authority over presidential electors,
absent some other constitutional constraint.” Chiafalo v.
Washington, 140 S. Ct. 2316, 2324 (2020). The Twelfth
Amendment adds that the electors “shall meet in their
1
Baten v. McMaster, 967 F.3d 345 (4th Cir. 2020); Lyman v. Baker,
954 F.3d 351 (1st Cir. 2020); League of United Latin Am. Citizens v.
Abbott, 951 F.3d 311 (5th Cir. 2020).
6 RODRIGUEZ V. NEWSOM
respective states and vote by ballot for President and Vice-
President . . . .” U.S. Const. amend. XII.
California, like all but two states, 2 awards all of its
electors to the party of the candidate who wins the popular
vote in the State. See California Elections Code §§ 6901,
6902, 6906, 15400, 15452, 15505. We are asked to decide
whether this method for selecting electors—WTA—is
constitutional.
B.
Appellants are self-identified Republican and third-party
voters in California. They sued then-Governor of California
Jerry Brown and California Secretary of State Alex Padilla
(collectively “California” or “the State”), contending that the
State’s use of WTA infringes their “constitutional right to an
equal vote in the presidential election.” Their core theory is
that WTA “counts votes for a losing presidential candidate
. . . only to discard them in determining [e]lectors who cast
votes directly for the presidency.” They allege that in so
doing, WTA “unconstitutionally magnifies the votes of a
bare plurality of voters by translating those votes into an
entire slate of” electors “while, at the same time, the votes
cast for all other candidates are given no effect.” This,
according to Appellants, violates the principle of “one
person, one vote.” Appellants further contend that WTA
burdens various First Amendment rights.
The district court dismissed Appellants’ complaint with
prejudice, holding that their equal protection challenge was
2
In Maine and Nebraska, “two electors go to the winner of the
statewide vote and one goes to the winner of each congressional district.”
Chiafalo, 140 S. Ct. at 2321 n.1.
RODRIGUEZ V. NEWSOM 7
“foreclosed by” McPherson v. Blacker, 146 U.S. 1 (1892),
and Williams. Williams, it noted, held that “a state’s
selection of presidential electors on a ‘winner take all basis’
does not violate the ‘one person, one vote’ principle of the
Fourteenth Amendment because ‘[i]n the selection of
electors, the [winner take all] rule does not in any way
denigrate the power of one citizen’s ballot and heighten the
influence of another’s vote.’” The district court further
determined that Williams also foreclosed Appellants’ First
Amendment claims.
II.
We review de novo the district court’s dismissal of a
complaint alleging a violation of constitutional rights. See
United States v. Adams, 388 F.3d 708, 710 (9th Cir. 2004).
To survive a Federal Rule of Civil Procedure 12(b)(6)
motion to dismiss, the complaint must “contain sufficient
factual matter, accepted as true, to state a claim to relief that
is plausible on its face.” Sheppard v. David Evans & Assoc.,
694 F.3d 1045, 1048 (9th Cir. 2012) (citation omitted).
III.
A.
The Constitution does not prescribe how States select
electors. To the contrary, it “conceded plenary power to the
state legislatures in the matter . . . .” McPherson, 146 U.S.
at 35; see also id. at 27 (explaining the Constitution
“recognizes that the people act through their representatives
in the legislature, and leaves it to the legislature exclusively
to define the method of effecting the object”). But a State’s
method for selecting electors must comport with equal
protection principles. Chiafalo, 140 S. Ct. at 2324 n.4; cf.
McPherson, 146 U.S. at 40 (concluding that “no
8 RODRIGUEZ V. NEWSOM
discrimination is made” in a system for selecting electors
where “each citizen has an equal right to vote”); see also
Williams v. Rhodes, 393 U.S. 23, 29 (1968) (“Rhodes”).
Equal protection requires, “as nearly as is practicable,”
that one person’s vote “be worth as much as another’s.”
Wesberry v. Sanders, 376 U.S 1, 7–8 (1964); see also Gray
v. Sanders, 372 U.S. 368, 381 (1963) (describing the
principle of “one person, one vote”). However, “[i]t hardly
follows . . . that a person is entitled to have his political party
achieve representation in some way commensurate to its
share of statewide support.” Rucho v. Common Cause,
139 S. Ct. 2484, 2501 (2019). 3 “[E]ach vote must carry
equal weight”—but “[t]hat requirement does not extend to
political parties.” Id. That is, it is not required “that each
party . . . be influential in proportion to its number of
supporters.” Id.B.
Over a century ago, the Supreme Court considered an
equal protection challenge to a Michigan law providing for
the selection of electors by district. McPherson, 146 U.S.
at 24. The Court rejected the challenge, id. at 27–36, but it
did not opine on any other system for selecting electors, see
Williams, 288 F. Supp. at 626 (explaining McPherson “did
no[] more than hold permissible and valid Michigan’s
determination to select electors by districts”). McPherson
thus does not weigh heavily in our analysis.
3
Rucho involved the application of the “one-person, one-vote”
principle to partisan gerrymandering claims. Although factually
inapposite, the case offers an instructive explication of the “one-person,
one-vote” principle.
RODRIGUEZ V. NEWSOM 9
But Williams does. The plaintiffs in Williams challenged
a Virginia law providing that “all of the State’s electors
[were to be] collectively chosen . . . by the greatest number
of votes cast throughout the entire State . . . .” Id. at 623.
The ballot included “the name of each political party and the
nominees thereof for President and Vice President,” as well
as “the names of [each] party’s elector candidates . . . .” It
“permit[ted] a voter to vote only for one or another political
party, and thus for the party’s nominees for President and
Vice President.” And a “vote cast [for a given party] . . .
constitute[d] . . . one vote for each of the 12 electors listed
thereon under the name of th[at] party and its nominees.”
Thus, all of the State’s electors were selected—as a group—
according to the popular vote in the State, and all of the
electors represented one political party.
The plaintiffs argued that the law was unconstitutional
“because it g[ave] the choice of all of the electors to the
statewide plurality of those voting in the election—‘winner
take all’—and accord[ed] no representation among the
electors to the minority of the voters.” Id. This “general
ticket” method, according to the plaintiffs, “violate[d] the
‘one-person, one-vote’ principle of the Equal Protection
Clause . . . .” Id. at 624.
The three-judge panel disagreed. Virginia’s use of WTA
did not “come within the brand of” the Supreme Court’s
“one-person, one-vote” decisions because the “system [wa]s
but another form of the unit rule,” which is not “offensive to
the Constitution.” Id. at 626–27 (noting the election of the
president by the House when no majority is obtained in the
electoral college is by unit); see also id. at 628 (quoting
Wesberry, 376 U.S at 7) (explaining it had previously held
constitutional the practice of electing members of the House
10 RODRIGUEZ V. NEWSOM
as a unit, whereby “two or more or all are running at large,
that is statewide”).
The court acknowledged “possible objectionable results”
from the use of WTA, including that “as much as 49 percent
of a State’s voters may see the portion of its electoral votes
attributable to them cast for a candidate whom they oppose,”
thus “wast[ing]” their votes. Id. at 627. But any
“deprivations imposed by the unit rule” did not “equate . . .
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 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 court also explained that Virginia’s use of WTA was
“grounded on what ha[d] historically been deemed to her
best interests in the workings of the electoral college.” Id.
at 628. Faced with a choice of “appointing electors in a
manner [that would] fairly reflect the popular vote” or
“allow[ing] the majority to rule and thereby maximize the
impact of Virginia’s 12 electoral votes,” Virginia chose the
RODRIGUEZ V. NEWSOM 11
latter. Id. And in the court’s view, the decision was “[]not
. . . unwise[].” Id. In sum, the Virginia law “d[id] not
disserve the Constitution . . . .” Id. at 629.
Williams’s applicability is obvious: like Virginia did,
California awards all of its electors to the party of the
candidate who wins the popular vote in the State. Appellants
raise an equal protection challenge, contending WTA
“discard[s]” the “votes for a losing presidential candidate”
in the selection of electors. Cf. id. at 627 (considering the
argument that WTA in Virginia “wasted” the votes “cast for
a loser”). Appellants concede that Williams “addressed an
argument similar to [Appellants’] vote dilution argument
here.”
That Williams was affirmed by the Supreme Court in
summary fashion does not obviate its binding effect here, as
summary affirmances “prevent lower courts from coming to
opposite conclusions on the precise issues presented and
necessarily decided.” Mandel v. Bradley, 432 U.S. 173, 176
(1977); United States v. Blaine County, Montana, 363 F.3d
897, 904 (9th Cir. 2004) (explaining the “Supreme Court’s
summary affirmances bind lower courts”). Indeed, after the
Court summarily affirms a lower court decision declaring a
law unconstitutional, “other courts [are] not free to conclude
that the [law] invalidated [is] nevertheless constitutional.”
Mandel, 432 U.S. at 176. The same is surely true, too, for
laws declared to be constitutional.
The Supreme Court’s summary affirmance of Williams
thus controls—unless “subsequent developments suggest
otherwise” or this case does not involve the “precise issues
presented and necessarily decided” in Williams. Id.; Blaine
County, 363 F.3d at 904. Appellants argue that both
exceptions apply. We disagree.
12 RODRIGUEZ V. NEWSOM
C.
1.
Appellants argue that post-Williams cases involving
multimember districts raise doubts regarding Williams’s
continued viability. 4 They suggest that California’s
presidential election can be viewed as an election for fifty-
five electors who constitute a multimember (state-level)
body. And under this view, according to Appellants, WTA
violates Appellants’ equal protection rights by diluting their
votes.
Appellants rely on White v. Regester, a case in which the
Supreme Court affirmed a judgment invalidating certain
multimember districts, for the proposition that a state cannot
“cancel out or minimize the voting strength” of minority
voters. 412 U.S. 755, 765 (1973); see also Burns v.
Richardson, 384 U.S. 73, 88 (1966).
But Appellants oversimplify the standard. In White, the
Court explained that “multimember districts are not per se
unconstitutional . . . .” 412 U.S. at 765. Rather, they are
unconstitutional only when “used invidiously to cancel out
or minimize the voting strength” of a minority group. Id.(emphasis added). Further, “it is not enough that the
[minority] group . . . has not had legislative seats in
proportion to its voting potential.” Id. at 765–66. The group
must “produce evidence . . . that the political processes
leading to nomination and election were not equally open to
participation by the group”—“that its members had less
opportunity than did other residents in the district to
4
A multimember district is a district in which multiple candidates
are elected to represent the district, usually based on plurality voting.
RODRIGUEZ V. NEWSOM 13
participate in the political processes and to elect legislators
of their choice.” 5 Id. at 766 (emphases added).
This case does not directly fall within the ambit of White
because Appellants have not alleged invidious
discrimination. What they have alleged is that their votes are
impermissibly diluted because they do not enjoy
proportional representation among the State’s electors—but
that is “not enough.” Id. at 765–66; see also Whitcomb v.
Chavis, 403 U.S. 124, 160 (1971) (“[W]e are unprepared to
hold that district-based elections decided by plurality vote
are unconstitutional in . . . multi-member districts simply
because the supporters of losing candidates have no
legislative seats assigned to them.”).
Further, any discrimination inherent in WTA is not
invidious because “[e]very citizen is offered equal suffrage
and no deprivation of the franchise is suffered by anyone.”
Williams, 288 F. Supp. at 627. Thus, even if the selection of
California’s electors could be framed as the election of a
multimember district and post-Williams multimember
district cases constituted a “subsequent development,” 6 the
cases would not undermine Williams.
5
The Court relied on a plethora of findings regarding “the history of
official racial discrimination in Texas.” Id. at 766–69 (noting that
“Mexican-Americans in Texas . . . had long ‘suffered from, and
continue[d] to suffer from, the results and effects of invidious
discrimination and treatment in the fields of education, employment,
economics, health, politics and others’” (citation omitted)).
6
We do not generally “conclude [the Supreme Court’s] more recent
cases have, by implication, overruled an earlier precedent.” Agostini v.
Felton, 521 U.S. 203, 237 (1997). If Court precedent “has direct
application in a case, yet appears to rest on reasons rejected in some other
line of decisions, [we] should follow the case which directly controls,
14 RODRIGUEZ V. NEWSOM
Another purported “subsequent development” is that
federal law has changed since Williams regarding “unit”
voting for members of the House. As discussed above, see
supra Part III.B., in Wesberry the Supreme Court affirmed
the constitutionality of voting for representatives by unit.
Williams, 288 F. Supp. at 628. The Williams court found it
“notable that Congress . . . ha[d] [also] . . . countenanced”
the practice. Id. Appellants point out that Congress has
since changed the law to require that states use single-
member districts for congressional elections. See 2 U.S.C.
§ 2c. This is correct but the change in law is immaterial to
the constitutionality of unit voting.
The last “subsequent development” is a purported
doctrinal shift toward eliminating the requirement of
invidiousness. Appellants argue the Supreme Court has
“clarified that, although invidiousness may be relevant to
certain challenges, . . . there are electoral systems that are
sufficiently arbitrary in their treatment of voters that no
showing of invidiousness is required.” See Bush v. Gore,
531 U.S. 98, 104–05 (2000)). The Bush Court found an
equal protection violation due to “arbitrary and disparate
treatment”; it did not discuss whether the discrimination was
“invidious.” Id.We are not persuaded. First, the precedential value of
Bush is limited. See id. at 109 (“Our consideration is limited
to the present circumstances . . . .”). Second, it is unlikely
the Court would have silently changed a fundamental feature
of its voting rights equal protection jurisprudence. See
Shalala v. Ill. Council on Long Term Care, Inc., 529 U.S. 1,
leaving to [the Supreme] Court the prerogative of overruling its own
decisions.” Id. (quoting Rodriguez de Quijas v. Shearson/Am. Express,
Inc., 490 U.S. 477, 484 (1989)).
RODRIGUEZ V. NEWSOM 15
18 (2000). Indeed, even before Williams the Court noted that
equal protection requires “faithful adherence to a plan of
population-based representation, with such minor deviations
only as may occur in recognizing certain factors that are free
from any taint of arbitrariness or discrimination.” Roman v.
Sincock, 377 U.S. 695, 710 (1964) (emphasis added). Third,
Williams’s approval of WTA was based on a finding of non-
invidiousness and a finding of non-arbitrariness. See
Williams, 288 F. Supp. at 628 (characterizing Virginia’s use
of WTA as “historically . . . deemed to [be in the State’s]
best interests” and “[]not . . . unwise[]”).
Appellants also identify factual differences between
Williams and this case, but the differences are immaterial. In
Virginia, Appellants emphasize, electors’ names were on the
ballot; by contrast, the California ballot today lists only the
candidates and their parties. But in Virginia the electors’
names were associated with candidates and political parties,
and the inclusion of such names on the ballot does not appear
to have affected the court’s analysis. Further, Appellants
note that, unlike in California today, the electors in Virginia
had no legal obligation to support their parties’ nominees.
But the distinction is irrelevant: how electors vote is different
from how they are selected, cf. Chiafalo, 140 S. Ct. at 2321–
22, and, in any event, Virginia’s electors voted—as would
be expected—for their parties’ nominees, Williams, 288 F.
Supp. at 626 (noting that in the 1960 election, Virginia voters
split 52.4% to 47% but the Republican nominee “was
credited with 100% [o]f Virginia’s electoral votes”).
California’s current system for selecting electors is thus
substantively identical to Virginia’s at the time of Williams.
We thus hold, as three of our sister circuits recently
likewise have held, that Williams controls and forecloses
Appellants’ equal protection claim. Baten, 967 F.3d at 355–
16 RODRIGUEZ V. NEWSOM
56 (following the reasoning of Williams in rejecting an
identical equal protection claim because a summary
affirmance “prevent[s] lower courts from coming to opposite
conclusions on the precise issues presented and necessarily
decided by” the case summarily affirmed (citation omitted));
Lyman, 954 F.3d at 366 (concluding that Williams
“require[d] the dismissal” of an identical equal protection
claim because it “decide[d] the core equal protection issue
presented”); League of United Latin Am. Citizens, 951 F.3d
at 315–17 (characterizing Williams as a “giant barrier
stand[ing] in the[] way” of an identical equal protection
claim).
2.
Appellants also argue that Gray, a Supreme Court case
that predated Williams, controls rather than Williams. In
Gray, the Supreme Court struck down the Georgia
Democratic Party’s (“GDP”) primary election system. The
system was based on “county unit[s]”: the GDP assigned
each county a certain number of units, and the candidate who
received the most votes in a given county was awarded all of
the county’s units. 7 Gray, 372 U.S. at 370–71. The effect
of the system was to weight counties disproportionately. Id.7
In other contexts, “general ticket” or “unit” voting refers to a single
bloc (such as the group of electors in Williams). In Gray, each county
was assigned multiple “units,” each of which functioned like an elector.
Originally, each county received two units for each of its
representatives in Georgia’s House of the General Assembly. Gray,
372 U.S. at 371. Later, the law was amended to resemble a “bracket
system,” whereby counties were allotted units in rough proportion with
their populations. For example, counties with 0 to 15,000 residents were
allotted two units, with an additional unit allotted for the next 5,000
people. Id. at 372. The Court rejected both forms. Id. at 381 & n.12.
RODRIGUEZ V. NEWSOM 17
at 373 (explaining that counties constituting one-third of the
State’s population enjoyed a “clear majority of county
units”); see also id. at 379 (explaining that the 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 Court held the system
unconstitutional, id. at 381, and then further specified in a
footnote that the district court had properly enjoined the use
of the system, even in its amended form:
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 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.
Appellants read Gray as having two distinct holdings:
first, the disproportionate allocation of units was
unconstitutional; and second, the system would be
unconstitutional even if units were allocated proportionately
because the winner of a county would be awarded all of the
county’s units.
Appellants focus on the second holding, arguing the
system Gray described is similar to California’s. Appellants
contend that in California, just as in Gray, the presidential
18 RODRIGUEZ V. NEWSOM
election is “conducted in two steps: at the first step, each
state receives a set number of electoral votes and conducts
an election to allocate those votes; and at the second step,
those votes are tallied to determine the President.” And just
as in Gray, a losing candidate’s votes are “discarded” in
California before they can affect the election. Appellants
further argue that this “two-step” structure is distinguishable
from the structure in Williams, which comprised a single
step: a “vote for [e]lectors.”
We reject Appellants’ attempt to distinguish Williams by
way of analogy to Gray. WTA in California is, for the
reasons discussed above, materially identical to the system
in Williams—and Williams was decided after Gray. 8 There
is little to support Appellants’ argument that California’s
system is similar to Gray’s (a purported “two-step” system)
but different from Williams’s (a purported “one-step”
system). Nothing in Gray supports such a reading and, more
importantly, the system in Williams was essentially the same
as those in California and Gray—whether characterized as
one-step or two-step. 9 Just as in Gray and in California
today, the system in Williams involved Virginia’s
“receiv[ing] a set number of electoral votes and conduct[ing]
8
Williams also specifically rejected a “one-person, one-vote”
argument based on Gray. Williams, 288 F. Supp. at 626. Although
Williams did not discuss Gray’s footnote 12, the holding in that footnote
would have been the one (of the purported two holdings in Gray) more
relevant to Williams.
9
Appellants’ purported distinction between Williams’s WTA
system, on the one hand, and Gray’s and California’s, on the other, is
that Williams “rest[ed] on the premise that voters vote for [e]lectors”
because the electors’ names were on the ballot and the electors were not
required to vote for a particular candidate. Those distinctions were not
material to the court’s reasoning in Williams, nor do they meaningfully
distinguish Williams’s system from California’s.
RODRIGUEZ V. NEWSOM 19
an election to allocate those votes,” and then “tall[ying]” the
votes “to determine the President.”
Further, the analogy to Gray falls short. 10 Gray’s central
concern was the presence of geographic discrimination in the
GDP’s primary election system. Gray, 372 U.S. at 379.
That concern extended to Gray’s footnote 12:
[I]n [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. We noted that if a
candidate received 60% of the votes cast in a
particular county he would receive that
county’s entire unit vote, the 40% cast for the
other candidates being discarded. The defect,
however, continued to be geographic
discrimination. Votes for the losing
candidates were discarded solely because of
the county where the votes were cast. Indeed,
votes for the winning candidate in a county
were likewise devalued, because all marginal
votes for him would be discarded and would
have no impact on the statewide total.
Gordon v. Lance, 403 U.S. 1, 4–5 (1971) (citing Gray,
372 U.S. at 381 n.12) (emphasis added). We have similarly
interpreted Gray. See Angle v. Miller, 673 F.3d 1122, 1129–
30 (9th Cir. 2012) (citing Gray, 372 U.S. at 381 n.12) (“Gray
and Gordon suggest that, with respect to a statewide
10
We recently rejected an attempt to “take a single sentence in
[Gray] . . . and transform it into a new voting rights principle . . . .” Pub.
Integrity All., Inc. v. City of Tucson, 836 F.3d 1019, 1026 (9th Cir. 2016)
(en banc).
20 RODRIGUEZ V. NEWSOM
election, a state must count votes on a statewide, rather than
a district-by-district, basis. Doing otherwise devalues votes
based on where voters happen to live.”).
No comparable concern about geographic discrimination
exists here. Appellants claim their votes are “discarded
because they live in California, and it is the California
Democratic Party that benefits and takes advantage of a two-
step election involving defined geographical units to
consolidate votes.” But the Court’s concern in Gray was that
votes in Georgia were treated differently based on the voters’
location within the state; in California, all votes are treated
equally regardless of where they are cast.
IV.
Appellants allege that a WTA system burdens their First
Amendment rights to cast their votes effectively, to associate
with like-minded voters across the State, and to petition their
government and associate with the candidates of their
choice.
No First Amendment challenge was brought in Williams.
Because Appellants’ First Amendment claims do not
implicate the “precise issues presented and necessarily
decided” in Williams, Mandel, 432 U.S. at 176, Williams
does not control them. But we may affirm on any ground
supported by the record, ASARCO, LLC v. Union Pacific
Railroad Co., 765 F.3d 999, 1004 (9th Cir. 2014), and,
because Appellants do not state a claim, we affirm.
A.
“[E]ach and every citizen has an inalienable right to full
and effective participation in the political process[] . . . .”
Reynolds v. Sims, 377 U.S. 533, 565 (1964). That includes
RODRIGUEZ V. NEWSOM 21
the right to “cast [one’s] votes effectively,” which requires
that no voter be “denied an opportunity to cast a ballot at the
same time and with the same degree of choice among
candidates available to other voters.” Dudum v. Arntz,
640 F.3d 1098, 1106, 1109 (9th Cir. 2011) (citation omitted).
Appellants go further, asserting that their right to full and
effective participation precludes the “diluting and
discarding” associated with WTA. But Appellants offer no
support for stretching this right beyond its plain meaning and
established precedents. 11 Because Appellants can
participate fully in California’s presidential election,
including voting for their preferred candidates, their right to
cast an effective vote is not burdened.
B.
“The freedom of association protected by the First and
Fourteenth Amendments includes partisan political
organization. The right to associate with the political party
of one’s choice is an integral part of this basic constitutional
freedom.” Tashjian v. Republican Party of Connecticut,
479 U.S. 208, 214 (1986) (citations omitted).
11
Citing Rhodes, Appellants argue that California’s use of WTA
“removes their ‘basic incentive’ for participating in the presidential
election at all.” But in Rhodes, Justice Harlan decried a statutory scheme
that denied voters “any opportunity to participate in the procedure by
which the President is selected.” Rhodes, 393 U.S. at 41 (Harlan, J.,
concurring). Here, by contrast, Appellants have every opportunity to
participate in the State’s presidential election.
Another case cited by Appellants, Tashjian v. Republican Party of
Connecticut, 479 U.S. 208, 216 (1986), held that a statute restricting a
political party’s ability to open its primary to non-members “limit[ed]
the [p]arty’s associational opportunities.”
22 RODRIGUEZ V. NEWSOM
According to Appellants, WTA burdens their right to
“associate with like-minded voters” by “distort[ing] the
electoral process”: “those who do not support the
Democratic candidate in California have little reason to
drum up support for a candidate who will receive zero
electoral votes . . . .” In these types of cases, the Supreme
Court has “focused on the [challenged] requirements
themselves, and not on the manner in which political actors
function under those requirements.” N.Y. State Bd. of
Elections v. Lopez Torres, 552 U.S. 196, 205 (2008). And
WTA does not limit Appellants’ ability to associate with
like-minded voters. At base, Appellants contend they are not
incentivized to associate, not that they cannot. 12
C.
The right to petition “protects the right of individuals to
appeal to courts and other forums established by the
government for resolution of legal disputes.” Borough of
Duryea, Pa. v. Guarnieri, 564 U.S. 379, 387 (2011). More
generally, it “allows citizens to express their ideas, hopes,
and concerns to their government and their elected
representatives.” Id. at 388. But this right is uni-directional;
it does not require government officials or politicians to
12
Gill v. Whitford, 138 S. Ct. 1916 (2018), cited by Appellants, is
inapposite. In Gill, Justice Kagan articulated a theory of associational
harm in the context of partisan gerrymandering. She posited that a
partisan gerrymander may infringe the associational rights of the
members of a “disfavored party” by “depriv[ing] [them] of their natural
political strength,” thus creating challenges with respect to “fundraising,
registering voters, attracting volunteers, generating support from
independents, and recruiting candidates.” Id. at 1938–39 (Kagan, J.,
concurring). But partisan gerrymandering is different than selecting
electors with WTA; only the former is closely connected to the problems
with party infrastructure that Justice Kagan identified.
RODRIGUEZ V. NEWSOM 23
respond, or even listen, to citizens. Smith v. Ark. State
Highway Emps., Local 1315, 441 U.S. 463, 465 (1979)
(holding that “the First Amendment does not impose any
affirmative obligation on the government to listen [or] to
respond,” nor does it “guarantee that a speech will persuade
or that advocacy will be effective” (quotation marks and
citation omitted)).
Appellants theorize that WTA causes presidential
candidates to “ignore California’s minority voters in each
election cycle,” which “undermines the core relationship . . .
between constituents and their representatives.” But
Appellants again mistakenly focus on the incentives that
flow from WTA. The issue is whether WTA burdens
Appellants by limiting their ability to petition, not whether
WTA changes politicians’ behaviors. See Lopez Torres,
552 U.S. at 205. Appellants do not allege any restrictions on
their ability to petition.
D.
Even assuming Appellants had plausibly alleged the
State’s use of WTA imposed some minimal burden, their
claims would still fail. Under Burdick v. Takushi, 504 U.S.
428 (1992), a “flexible standard” applies to laws regulating
the right to vote: we “must weigh ‘the character and
magnitude of the asserted injury’ . . . against ‘the precise
interests put forward by the State as justifications for the
burden imposed by its rule,’ taking into consideration ‘the
extent to which those interests make it necessary to burden
the plaintiff’s rights.’” Id. at 434 (citations omitted).
“[W]hen a state election law provision imposes only
‘reasonable, nondiscriminatory restrictions[,]’ . . . ‘the
State’s important regulatory interests are generally sufficient
to justify’ the restrictions.” Id. (citations omitted).
24 RODRIGUEZ V. NEWSOM
Any burden is—at most—minimal, and California has
identified an important interest: “maximiz[ing] the impact of
the State’s electors within the Electoral College.” WTA
increases the voting power of the State within the electoral
college, as all of its votes are cast in support of one
candidate. And it also protects California against the use of
WTA by the forty-seven other States that have adopted it.
Cf. Williams, 288 F. Supp. at 626 (explaining that Thomas
Jefferson recognized the merit of “protect[ing] his State
against the use of [WTA] by other States” and relied on this
justification in advising Virginia to adopt WTA, despite his
preference for district-based selection of electors).
Appellants characterize California’s interest as
“illegitimate and incorrect.” It is purportedly “illegitimate”
because “WTA does not maximize the power of the State as
a whole; instead, it maximizes the voting strength of a
plurality of California voters.” But Appellants conflate the
intrastate and interstate effects of WTA; WTA maximizes
the State’s interstate power, and is thus not a “restatement of
the very burden [Appellants] have identified.” The interest
is allegedly “incorrect” because WTA results in
“presidential candidates generally ignor[ing] California
voters,” which “subverts the power of the State.” Appellants
again misconstrue the interest; it is to maximize the State’s
power in the electoral college, not to attract campaigns.
* * *
Because Appellants fail to state a claim under either of
their constitutional theories, we affirm the district court’s
dismissal of the complaint with prejudice.
AFFIRMED.