Lyman v. Baker

United States Court of Appeals
For the First Circuit
No. 18-2235
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.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Patti B. Saris, U.S. District Judge]
Before
Torruella, Lipez, and Kayatta,
Circuit Judges.
David Boies, with whom James P. Denvir III, Amy J. Mauser,
Karen L. Dunn, Lisa Barclay, Amy L. Neuhardt, Hamish P.M. Hume,
Melissa Shube, Trevor P. Stutz, Nafees Syed, Boies Schiller Flexner
LLP, Jennifer D. Hackett, James R. Martin, Allison M. Vissichelli,
Zelle LLP, Mark Guerrero, Mary Whittle, Guerrero & Whittle PLLC,
Randall L. Allen, Alston & Bird LLP, David H. Fry, J. Max Rosen,
Michael B. Desanctis, Munger, Tolles & Olson LLP, Scott A. Martin,
Irving Scher, Jeanette Bayoumi, Michael D. Hausfeld, Swathi
Bojedla, Hausfeld LLP, María Amelia Calaf, Jack A. Simms, Jr.,
Ryan A. Botkin, Katherine P. Chiarello, Karen S. Vladeck, W. Reid
Wittliff, Wittliff Cutter Austin, PLLC, and Samuel Issacharoff,
were on brief, for appellants.
Amy Spector, Assistant Attorney General, with whom Maura
Healey, Attorney General, and Robert E. Toone, Assistant Attorney
General, were on brief, for appellees.
March 31, 2020
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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
Article II of the United States Constitution. They allege that
the winner-take-all elector-selection method violates their right
to an equally weighted vote under the Equal Protection Clause of
the Fourteenth Amendment as well as their associational rights
under the First and Fourteenth Amendments. The district court
dismissed their complaint for lack of standing and failure to state
a claim. Even though we determine that the appellants do have
standing to bring their claims, we agree that they have failed to
state a claim upon which relief can be granted under either of
their constitutional theories. Therefore, we affirm.
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
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electors appointed by each state in proportion to its
representation in the Senate and the House of Representatives.
U.S. Const. art. II, § 1, cl. 2; id. amend. XII. The candidate
that receives a majority of those electors' votes wins the
presidency. See id. amend. XII.1
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 id. art. II, § 1, cl. 2; see generally Mass. Gen.
Laws ch. 53-54. The core statutes providing the structure of the
WTA system are established in Massachusetts General Laws chapter
53, section 8, as well as chapter 54, sections 43, 118, and 148.
Chapter 53, section 8 states that "[t]he state committees of the
respective political parties . . . shall nominate the presidential
electors" for their parties, which "shall include a pledge by the
presidential elector to vote for the candidate named in the
filing." Chapter 54, section 43 provides:
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
1 The Twelfth Amendment also provides a mechanism for resolving
a situation in which no candidate receives a majority of the
electoral votes.
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of president and vice president" and arranged in the
alphabetical 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.
Section 118 of the same chapter proclaims:
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 . . . .
Mass. Gen. Laws ch. 54, § 118 (emphasis added). Finally,
section 148 provides:
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.
Id. § 148. As forty-seven other states plus the District of
Columbia employ a version of it, the WTA system for appointing
electors is the national norm.
What makes the combined effect of this statutory scheme
winner-take-all is that the political party of the candidate who
wins the popular vote in Massachusetts (by a majority or even a
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plurality) claims all eleven of Massachusetts's electors.
Specifically, since Massachusetts mandates that its eleven
electors vote for their party's candidate,2 see Mass. Gen. Laws
ch. 53, § 8, winning the popular vote (regardless of the margin of
victory) guarantees that all of Massachusetts's electoral votes go
to that party's candidate, see Mass. Gen. Laws ch. 54, § 118.
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
2 The intention behind this provision is to neutralize the
infamous "faithless elector" problem, whereby electors vote
independently of their sponsoring party's preference. See Baca
v. Colo. Dep't of State, 935 F.3d 887 (10th Cir. 2019), cert.
granted, No. 19-518, 2020 WL 254162 (U.S. Jan. 17, 2020) (reviewing
the constitutionality of Colorado's law requiring its presidential
electors to adhere to the mandate expressed in the state-wide
popular vote when casting their ballots in the Electoral College).
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former senior official under two Republican Governors of
Massachusetts (including Weld), and Capodilupo are both registered
Republicans. Appellants have consistently voted for non-Democratic
presidential candidates (i.e., Republican, Libertarian, or
otherwise), and they intend to continue casting their ballots along
such lines in future elections. Their grievance stems from the
observation that the Democratic candidate has won the popular vote
in Massachusetts (and thus all its electors) in each of the last
eight presidential elections. Notably, "the same phenomenon
occurs in reverse in heavily Republican states . . . ."
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
3 On the same day, Appellants' counsel filed parallel lawsuits on
behalf of voters in California, South Carolina, and Texas that
challenge the constitutionality of the WTA systems as applied in
those states. See League of United Latin Am. Citizens v. Abbott,
951 F.3d 311 (5th Cir. 2020); Baten v. McMaster, 374 F. Supp. 3d
563, 565-66 (D.S.C. 2019), appeal pending, No. 19-1297 (4th Cir.);
Rodríguez v. Brown, No. 2:18-cv-001422, 2018 WL 6136140, at *2
(C.D. Cal. Sept. 21, 2018), appeal pending, No. 18-56281 (9th
Cir.).
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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
Equal Protection Clause of the Fourteenth Amendment (Count 1).
Second, they assert that the WTA system "poses a severe burden" on
their First and Fourteenth Amendment rights to "associate and to
effectively express their political preference through voting that
is not outweighed by any legitimate state interest" (Count II).
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
arbitrary 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
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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 for selecting electors, or any other
constitutionally defective system, including the "selection by
Congressional District vote," in which states conduct elections
for individual electors in each of their congressional districts.
Additionally, they ask the district court to "set reasonable
deadlines for [Massachusetts] authorities to propose and then
implement" a valid method of selecting electors. If Massachusetts
authorities fail to meet the deadlines, Appellants ask the district
court to "order a proportional method of distributing Electors,
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selecting a proportional number of Electors to each party, based
on the number of votes each party's candidate receives statewide."
On May 21, 2018, the Commonwealth moved to dismiss the
complaint under Fed. R. Civ. P. 12(b)(1) and 12(b)(6) for lack of
standing and for failure to state a claim upon which relief may be
granted, respectively. Following a hearing, on December 7, 2018,
the district court granted the Commonwealth's motion to dismiss
the complaint in its entirety. Lyman v. Baker, 352 F. Supp. 3d
81, 92 (D. Mass. 2018). On December 12, 2018, Appellants timely
appealed.
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 Rule
12(b)(1) and Rule 12(b)(6) inquiries in the context of the alleged
constitutional violations. Because of its view (and the parties'
agreement) that the "injury-in-fact analysis overlaps with the
merits of plaintiffs' constitutional claims," the district court
proceeded directly to analyze the merits of the claims under the
"well-established standard for Fed. R. Civ. P. 12(b)(6)." Id. at
85.
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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
4 Appellants specifically pointed to the fact that unlike Virginia
in Williams, Massachusetts does not list the names of the
individual electors on its ballots, see Mass. Gen. Laws ch. 54,
§ 43, and it binds electors to vote for the chosen candidate by
statute, see Mass. Gen. Laws ch. 53, § 8 (requiring presidential
electors to "pledge . . . to vote for the candidate named in the
filing").
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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 disparately or arbitrarily. Id. at 88-89.
No matter the valid policy reasons for and against the WTA system,
the district court concluded that the Constitution's concession of
"plenary power to the state legislatures in the matter of the
appointment of electors," id. at 88 (alteration in original)
(quoting McPherson v. Blacker, 146 U.S. 1, 35 (1892), as well as
its endorsement of the numerical unfairness implicit in the
Electoral College, posed too great of an obstacle to Appellants'
challenge to a voting scheme that does not "treat voters
differently" or "inherently favor or disfavor a particular group
of voters," id. at 89 (citing McPherson, 146 U.S. at 40). Tying
the analysis back to standing, the court concluded that Appellants
had therefore failed to allege a legally cognizable harm under the
Equal Protection Clause. Id. at 91.
Turning to the Appellants' First Amendment claim, the
district court rejected the argument that the WTA system
"discard[s]" or "dilut[es]" the votes of minority party members by
reason of those members' political views. Id. at 91 (citing Vieth
v. Jubelirer, 541 U.S. 267, 314 (2004) (Kennedy, J., concurring)).
Determining that "whatever disadvantage the losing party and its
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members suffer is a function solely of their lack of electoral
success," the court concluded that Appellants failed to "allege an
associational burden for purposes of a First Amendment claim." Id.
Again, the court reiterated that in the absence of a constitutional
violation, there could be no legally cognizable harm for purposes
of standing. Id.
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
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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 require
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 Rule 12(b)(1) and failure to state
a claim under Rule 12(b)(6). See Blum v. Holder, 744 F.3d 790,
795 (1st Cir. 2014); Schatz v. Republican State Leadership Comm.,
669 F.3d 50, 55 (1st Cir. 2012). Although appellate review of a
dismissal under Rules 12(b)(1) and 12(b)(6) are "conceptually
distinct," we have stated that "the same basic principles apply in
both situations." Hochendoner, 823 F.3d at 730-31 (noting the
"parallelism" between the approach we take as to the standard of
review, burden of proof at the pleading stage, and posture towards
the facts alleged in the complaint). Thus, we need only articulate
these principles once, and we do so under the well-established
Rule 12(b)(6) standard.
For the purposes of our review, we "isolate and ignore
statements in the complaint that simply offer legal labels and
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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
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have, in fact, established standing to bring their equal protection
and associational rights claims sufficient to survive a
Rule 12(b)(1) motion to dismiss. However, we agree with the
district court that Appellants' claims cannot survive dismissal
under Rule 12(b)(6). Accordingly, we affirm the dismissal of
Appellants' complaint.
A. Standing
The parties first dispute whether the district court
properly dismissed Appellants' claims for lack of standing under
Rule 12(b)(1), centering their arguments on the injury-in-fact and
redressability prongs of the well-established inquiry. "Standing
doctrine assures respect for the Constitution's limitation of
'[t]he judicial Power' to 'Cases' and 'Controversies.'"
Hochendoner, 823 F.3d at 731 (alteration in original) (quoting
U.S. Const. art. III, § 2, cl. 1). The core focus of the inquiry
is "whether the party invoking jurisdiction had the requisite stake
in the outcome when the suit was filed." Mass. v. U.S. Dep't of
Health & Human Servs., 923 F.3d 209, 221 (1st Cir. 2019) (quoting
Davis v. Fed. Election Comm'n, 554 U.S. 724, 734 (2008)). "The
heartland of constitutional standing is composed of the familiar
amalgam of injury in fact, causation, and redressability."
Hochendoner, 823 F.3d at 731 (citing Lujan v. Defs. of Wildlife,
504 U.S. 555, 560-61 (1992)).
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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 injury to be "particularized," it must go beyond a "generalized
grievance[]," DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 344,
348 (2006) (citation omitted), to manifestly "affect the plaintiff
in a personal and individual way," Lujan, 504 U.S. at 560 n.1.
Injuries that are too "widely shared" or are "comparable to the
common concern for obedience to law" may fall into the category of
generalized grievances about the conduct of government. Becker
v. Fed. Election Comm'n, 230 F.3d 381, 390 (1st Cir. 2000); see
Lance v. Coffman, 549 U.S. 437, 442 (2007).
Causation 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)).
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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 concrete and particularized injury because the winner-
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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 Rule 12(b)(1) motion to dismiss. While
folding the injury-in-fact inquiry into the 12(b)(6) analysis has
intuitive appeal where the alleged injury is a constitutional
violation, it cannot be that a party only establishes Article III
standing on a "one person, one vote" or associational rights claim
by virtue of having successfully stated a claim for relief.
"'[V]oters who allege facts showing disadvantage to themselves as
individuals have standing to sue' to remedy that disadvantage.
Gill v. Whitford, 138 S. Ct. 1916, 1929 (2018) (quoting Baker v.
Carr, 369 U.S. 186, 206 (1962)). In fact, in Baker, considering
Tennessee residents' claim that their state's redistricting plan
violated the Fourteenth Amendment, the Supreme Court determined
that "[i]t would not be necessary to decide whether appellants'
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allegations of impairment of their votes by the 1901 appointment,
will, ultimately, entitle them to any relief, in order to hold
that they have standing to seek it." 369 U.S. at 207-08. The
appellants in Baker had standing because they were "asserting a
plain, direct and adequate interest in maintaining the
effectiveness of their votes," and not merely a generalized
grievance. Id. at 208 (internal quotation marks omitted). By the
same token, Appellants here have at least plausibly alleged a
sufficiently concrete and particularized injury-in-fact to survive
a Rule 12(b)(1) motion to dismiss. As alleged in their complaint,
Appellants reside and vote in Massachusetts and their presidential
candidates of choice (at least in the past eight elections) have
not received a single electoral vote from Massachusetts because of
the manner in which the WTA system allegedly dilutes the strength
of their votes for non-Democratic candidates and deprives them of
their right of political association. The voter, after all, is
presumptively the best person to bring a challenge to an alleged
infringement of her constitutionally protected voting rights. See
Gray v. Sanders, 372 U.S. 368, 375 (1963) (stating that "any person
whose right to vote is impaired has standing to sue" (citation
omitted)). We are also satisfied that Appellants have satisfied
their burden of showing that the alleged injuries can be fairly
traced to Massachusetts's use of the WTA system.
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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
allocation 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
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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 Rule
12(b)(1). See League of United Latin Am. Citizens, 951 F.3d at
314, 318 (affirming dismissal of claims on Rule 12(b)(6) grounds);
Baten, 374 F. Supp. 3d at 565-66 (dismissing claims on Rule
12(b)(6) grounds); Rodríguez, 2018 WL 6136140, at *4 (dismissing
claims on Rule 12(b)(6) grounds and declining to find that the
claims presented nonjusticiable political questions mandating Rule
12(b)(1) dismissal). Even if the respective motions to dismiss
in those cases did not raise the standing issue, the fact that
none of the aforementioned courts raised it sua sponte can be given
at least some weight. See In re Olympic Mills Corp., 477 F.3d 1,
6 (1st Cir. 2007) (noting the obligation "to inquire sua sponte
into our [subject matter] jurisdiction" (quoting Doyle v.
Huntress, Inc., 419 F.3d 3, 6 (1st Cir. 2005))).
Having established, contrary to the district court's
determination, that Appellants have indeed established the
requisite standing to survive the Rule 12(b)(1) motion to dismiss,
we proceed to assess their equal protection and associational
rights claims under Rule 12(b)(6).
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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 Equal Protection Clause
of the Fourteenth Amendment. As an initial matter, Appellants
challenge the district court's determination that the Supreme
Court's summary affirmance in Williams is controlling. Next,
Appellants defend their equal protection claim by splitting it
into two theories. First, based on the contents of footnote 12
in Gray, 372 U.S. at 381 n.125 -- which Appellants term the case's
second, independent holding -- they argue that the WTA system
discards their votes for a non-majority candidate at the first
step of a two-step presidential election. Second, they posit that
the WTA system could alternatively be viewed as an at-large
election for a multimember district of electors, which
unconstitutionally dilutes the strength of their votes. As we
will explain, we reject these contentions.
5 Specifically, Appellants point to the language in footnote 12,
which states that in the context of Georgia's county-unit system
(which we will later describe in detail), "the weighting of the
votes would continue, even if unit votes were allocated strictly
in proportion to population" because the votes for the candidate
who loses the county popular vote would be "worth nothing and
[would] be[] counted only for the purpose of being discarded."
Gray, 372 U.S. at 381 n.12.
-23-
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 U.S. Const. art. II, § 1,
cl. 2; id. amend. XII. The text of the Elector Clause reads:
"Each 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 . . . ." Id. art. II, § 1, cl. 2. In interpreting
the bounds of the Elector Clause, the Supreme Court has stated
that "[t]he state legislature's power to select the manner for
appointing electors is plenary." Bush, 531 U.S. at 104 (citing
McPherson, 146 U.S. at 35). It is precisely for this reason that
the Constitution does not prescribe or endorse any selection method
in particular. See McPherson, 146 U.S. at 28 ("The final result
[of the constitutional convention] . . . reconciled contrariety of
views by leaving it to the state legislatures to appoint directly
by joint ballot or concurrent separate action, or through popular
election by districts or by general ticket, or as otherwise might
be directed."); see also id. at 27 ("The constitution does not
provide that the appointment of electors shall be by popular vote,
nor that the electors shall be voted for upon a general ticket,
-24-
nor that the majority of those who exercise the elective franchise
can alone choose the electors."). State legislatures have
utilized a variety of appointment mechanisms since the framing of
the Constitution, but in recent memory, "[h]istory has . . .
favored the voter." Bush, 531 U.S. at 104.6 Of course, the hand
that giveth, also taketh away (if it so desires). See id. (citing
McPherson, 146 U.S. at 35) ("The State . . . after granting the
franchise in the special context of Article II, can take back the
power to appoint electors.").7
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
6 Only Nebraska and Maine have adopted an alternative to the WTA
system. They employ a hybrid version of district voting. See Me.
Rev. Stat. Ann. tit. 21-A, § 805.2 (2020); Neb. Rev. Stat. § 32-714
(2019). Under this modern iteration, the candidate who wins the
statewide popular vote receives the two at-large electoral votes
(i.e., the two votes each state is entitled to for its senatorial
representation), and the candidate who wins a plurality of the
votes in each congressional district receives one electoral vote
for that district (i.e., two in Maine and three in Nebraska).
7 For example, in advance of the 1800 presidential election, the
Massachusetts legislature took back the appointment power from its
citizens and picked the electors itself. See Neal R. Peirce, The
People's President: The Electoral College in American History and
the Direct-Vote Alternative 67 (1968). Historically, the
Massachusetts legislature experimented quite frequently before
settling on the WTA system. Between 1804 and 1820 alone,
Massachusetts rotated through the general ticket system (1804), a
joint ballot of the legislature (1808, 1816), and the congressional
district system (1812, 1820), only to return to the general ticket
system in 1824. See McPherson, 146 U.S. at 32.
-25-
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
Constitutional infirmity"). The Equal Protection Clause of the
Fourteenth Amendment is one such well-established limitation (the
First Amendment is another, as we will explain later). See Rhodes,
393 U.S. at 29 ("[N]o State can pass a law regulating elections
that violates the Fourteenth Amendment[] . . . ."); Wesberry v.
Sanders, 376 U.S. 1, 17-18 (1964) ("Our Constitution leaves no
room for classification of people in a way that unnecessarily
abridges [their] right [to vote].").
The Equal Protection Clause guarantees that the
government will not treat "those who are similarly situated"
differently. In re Subpoena to Witzel, 531 F.3d 113, 118 (1st Cir.
2008); see U.S. Const. amend. XIV, § 1 ("[N]or shall any State
. . . deny to any person within its jurisdiction the equal
protection of the laws."). In the context of voting rights,
"[h]aving once granted the right to vote on equal terms, the State
may not, by later arbitrary and disparate treatment, value one
person's vote over that of another." Bush, 531 U.S. at 104—05
(citing Harper v. Va. Bd. of Elections, 383 U.S. 663, 665 (1966)).8
8 Importantly for our analysis, citizens do not have a "federal
-26-
In this manner, the Equal Protection Clause safeguards the "equal
weight accorded to each vote and the equal dignity owed to each
voter." Id. at 104. This is the meaning of "one person,
one vote," a steadfast democratic principle which the Supreme
Court articulated in Gray, 372 U.S. at 381. At its core, the
precept stands for the "idea that every voter is equal to every
other voter in his State." Id. at 380. In other words, once
states establish a geographical unit for electing a political
representative, "all who participate in the election are to have
an equal vote--whatever their race, whatever their sex, whatever
their occupation, whatever their income, and wherever their home
may be in that geographical unit." Id. at 379; see also Burns v.
Richardson, 384 U.S. 73, 88 (1966) (recognizing that electoral
systems cannot be used to "cancel out the voting strength of racial
or political elements of the population" (quoting Fortson v.
Dorsey, 379 U.S. 433, 439 (1965))).
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.
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 power to appoint
members of the electoral college." Bush, 531 U.S. at 104 (citing
U.S. Const. Art. II, § 1).
-27-
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
-28-
embedded in the Equal Protection Clause of the Fourteenth
Amendment.
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 Article II, Section 1 considered alone or with
Constitutional safeguards, permits the selection of the electors
by a general election in which the entire electorate of the State
may collectively vote at one time upon all of the electors").9
After granting certiorari, the Supreme Court summarily affirmed
the decision of the three-judge panel of the district court in a
9 There is historical irony in the link between the challenges to
Virginia's and Massachusetts's WTA systems. As is now legend,
after John Adams (of Massachusetts) defeated Thomas Jefferson (of
Virginia) in the 1796 presidential election by a three-vote margin,
Virginia switched from the district system (which it had used in
the first three presidential elections) to the general ticket
system (whereby electors are selected on a winner-take-all basis
by a statewide popular vote) to ensure that all of its twenty-one
electoral votes would go to a single party's candidate. See
Peirce, supra note 7, at 64-66; see also Letter from Thomas
Jefferson to James Monroe (Jan. 12, 1800) in 9 The Works of Thomas
Jefferson, 90 (Paul Leicester Ford, ed. 1904) ("[All agree that an
election by districts would be best, if it could be general; but
while [ten] states ch[oose] either by their legislatures or by a
general ticket, it is folly [and] worse than folly for the
other [six] not to do it.").
-29-
per curiam opinion and then denied a motion for rehearing.
See Williams, 393 U.S. 320, reh'g denied, 393 U.S. 1112 (1969)
(per curiam). Given the clear overlap of issues, a citation to
Williams would, in our view, decide the present case but for the
fact that Williams remains good law as a one-line summary
affirmance by the Supreme Court instead of a merits opinion. We
thus echo the district court in the case at hand: the Supreme
Court's summary affirmance is not necessarily an endorsement of
the three-judge panel's reasoning. See Lyman, 352 F. Supp. 3d at
86 (citing Mandel, 432 U.S. at 176). To that end, summary actions
are meant to be understood as "applying principles established by
prior decisions to the particular facts involved" and not as
"breaking new ground." Mandel, 432 U.S. at 176. Nevertheless
"[t]hey do prevent lower courts from coming to opposite conclusions
on the precise issues presented and necessarily decided by those
actions." Id.; see also Anderson v. Celebrezze, 460 U.S. 780, 784
n.5 (1983). For substantially the same reasons articulated by the
district court below (with a few tweaks), we agree that Williams
requires the dismissal of Appellants' equal protection claim at
this stage.
Williams decides the core equal protection issue
presented by this appeal: whether Massachusetts's WTA system
-30-
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 at 8, Lyman v. Baker,
No. 18-2235 (1st Cir. Apr. 17, 2019) ("WTA, which in modern times
makes the role of Electors purely ministerial, is inconsistent
10 In the aforementioned parallel case, the Fifth Circuit held
that the Supreme Court's summary affirmance in Williams required
the dismissal of the appellants' equal protection challenge to
Texas's WTA system, rejecting along the way all of the same
arguments that Appellants make here as to why Williams does not
control. See League of Latin Am. Citizens, 951 F.3d at 314-317.
Additionally, we note -- as the district court did -- that the
Fourth and Ninth Circuits have also considered and rejected equal
protection challenges to WTA systems. See Williams v. North
Carolina, No. 3:17-cv-00265, 2017 WL 4935858, at *1 (W.D.N.C. Oct.
31, 2017) (rejecting challenge to North Carolina's WTA system as
"decisively foreclosed by binding precedent"), aff'd sub nom.
Williams v. N.C. State Bd. of Elections, 719 F. App'x 256 (mem)
(4th Cir. 2018); Conant v. Brown, 248 F. Supp. 3d 1014, 1025 (D.
Or. 2017) (holding challenge to Oregon's WTA system to be defeated
because "Williams is still good law"), aff'd, 726 F. App'x 611
(9th Cir. 2018). Other lower courts have reached similar results
too. See, e.g., Schweikert v. Herring, No. 16-cv-00072, 2016 WL
7046845, at *1 (W.D. Va. Dec. 2, 2016) (dismissing challenge to
Virginia's WTA system because "[t]he precise issue contained in
[the] complaint was . . . dismissed, and affirmed summarily" in
Williams); Hitson v. Baggett, 446 F. Supp. 674, 676 (M.D. Ala.)
(dismissing challenge to the "statewide and at-large features" of
Alabama's WTA system), aff'd without opinion, 580 F.2d 1051 (5th
Cir. 1978), cert. denied, 439 U.S. 1129 (1979).
-31-
with [the original] design."). Seeking declaratory and injunctive
relief -- just as Appellants did below -- they challenged
Virginia's WTA system vis-à-vis three causes of action, the second
of which presented the precise issue raised by Appellants.
Williams, 288 F. Supp. at 623-24. Specifically, the Williams
plaintiffs alleged that "the general ticket method violates the
'one-person, one-vote' principle of the Equal Protection Clause of
the Fourteenth Amendment, i.e., the weight of each citizen's vote
must be substantially equal to that of every other citizen." Id.
at 624 (citing Gray, 372 U.S. at 381). The district court noted
that plaintiffs imputed unfairness to the plan "because it g[ave]
the choice of all of the electors to the statewide plurality of
those voting in the elections -- 'winner take all' -- and
accord[ed] no representation among the electors to the minority of
the voters." Id. at 623.
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
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presidents" (i.e., when a 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.
Id.
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
-33-
also maintain that the district court misunderstood their argument
as "being rooted in . . . factual 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 court nor its
plaintiffs endeavored to cite or distinguish.
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
-34-
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 presented 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
-35-
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
-36-
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
11 See, e.g., Thornburg v. Gingles, 478 U.S. 30, 47 (1986); United
States v. Blaine Cty., 363 F.3d 897, 916 (9th Cir. 2004); NAACP v.
Gadsden Cty. Sch. Bd., 691 F.2d 978, 983 (11th Cir. 1982); Montes
v. City of Yakima, 40 F. Supp. 3d 1377, 1414 (E.D. Wash. 2014);
Citizens for a Better Gretna v. City of Gretna, 636 F. Supp. 1113,
1135 (E.D. La. 1986), aff'd, 834 F.2d 496 (5th Cir. 1987), cert.
denied, 492 U.S. 905 (1989).
12 Appellants also take a related historical tack. At the time
of its decision, the Williams court noted that Congress had
"expressly countenanced" state-wide at-large elections of
congressional representatives. 288 F. Supp. at 628. However,
Appellants submit that, motivated by the fear that Southern states
would utilize multimember districts to dilute the voting strength
of racial minorities (as exemplified by the Texas counties in
White), Congress changed the law to require that states with two
or more representatives use single-member districts. See 2 U.S.C.
§ 2c. That change went into effect beginning with the ninety-
first congress, which convened the year after Williams was decided.
In our view, this does not alter the doctrinal landscape, for as
the district court in the present case noted, "multimember
districts are not per se unconstitutional." White, 412 U.S. at
765. In any event, the court in Williams seemed to be acutely
aware of this because, in the same breath that it acknowledged
congressional approval of multimember districts at the time, it
cited the aforementioned amendment as to future elections. See
288 F. Supp. at 624. Moreover, what is true for the election of
U.S. Representatives (a process over which Congress retains
oversight per Article I, section 4), is not necessarily true for
the appointment of presidential electors (a process over which, as
previously discussed, Congress does not retain any oversight).
-37-
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
-38-
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 Equal
Protection Clause because "the standards for accepting or
rejecting contested ballots might vary not only from county to
county but indeed within a single county from one recount team to
another." 531 U.S. at 106. This lack of uniform "statewide
standards for determining what is a legal vote" violated Florida's
"obligation to avoid arbitrary and disparate treatment of the
members of its electorate." Id. at 105, 110. In Bush, the absence
of uniform standards indicated to the Court that there was no rhyme
or reason for the arbitrary and disparate treatment of ballots,
and therefore, an inquiry into invidiousness would have been out
of place.
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
Equal Protection Clause in the voting rights context both before
Williams and after Bush. See, e.g., Harris v. Ariz. Indep.
Redistricting Comm'n, 136 S. Ct. 1301, 1307 (2016) ("[M]inor
deviations from mathematical equality do not, by themselves, make
out a prima facie case of invidious discrimination under the
-39-
Fourteenth Amendment . . . ." (citation and quotation marks
omitted)); Dusch v. Davis, 387 U.S. 112, 116 (1967) ("[T]he
constitutional test under the Equal Protection Clause is whether
there is an 'invidious' discrimination."). In our view, the
larger point is that "invidiousness" and "arbitrary and disparate
treatment" are simply not mutually exclusive means of establishing
the prima facie case for "one person, one vote" violations. The
Supreme Court itself (as the district court here rightly noted)
has recognized as much. See, e.g., Roman v. Sincock, 377 U.S.
695, 710 (1964) (explaining that the Equal Protection Clause
requires "faithful adherence to a plan of population-based
representation," and that "minor deviations" are only permissible
if "free from any taint of arbitrariness or discrimination"
(emphasis added)); cf. Clements v. Fashing, 457 U.S. 957, 967
(1982) ("Classification is the essence of all legislation, and
only those classifications which are invidious, arbitrary, or
irrational offend the Equal Protection Clause of the
Constitution." (emphasis added)). Therefore, we do not read Bush
as ushering in the sweeping change that Appellants assert would
require us to put Williams aside. Accordingly, we concur with the
district court that the Supreme Court's summary affirmance in
Williams controls the outcome of the case at hand and compels the
dismissal of Appellants' equal protection claim.
-40-
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 theory 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 . . . arbitrary and disparate treatment,
value[s] one person's vote over that of another," Bush, 531 U.S.
at 104-05, nor do Appellants plausibly allege that the WTA system
infringes upon the right of voters "to participate on an equal
footing in the election process," Hadley, 397 U.S. at 55. The WTA
system does not treat any particular group of Massachusetts voters
differently at all -- it does not inherently favor or disfavor
-41-
voters from any particular group (political or otherwise). In
Massachusetts, registered voters cast their ballot for president
and vice president vis-à-vis a slate of presidential electors on
Election Day. After the polls close, Massachusetts counts the
votes, according each vote equal weight, and then awards its
electors to the party whose candidate wins the highest number of
votes. That the candidate who loses the popular vote is entitled
to zero electors (irrespective of his or her political party) does
not in our view signify that the votes for that candidate have
been rendered meaningless. It merely indicates that the tally of
votes for that candidate was surpassed by the tally for the winning
candidate. See, e.g., City of Mobile v. Bolden, 446 U.S. 55, 77
n.24, 79 (1980) (holding that although the Equal Protection Clause
does confer a "right to participate in elections on an equal basis
with other qualified voters," it "does not entail a right to have
one's candidate prevail" or "guarantee[] proportional
representation").
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
-42-
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 evidence 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
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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 electoral votes per capita
than sparsely populated states). However, we note this
interconnectedness as a means of rejecting the contention that the
origins of the WTA system irrevocably plague it with invidiousness.
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
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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 Equal Protection Clause, the Court
held that the transgression was geographic discrimination:
residents of the smallest rural counties had a disproportionally
higher number of unit votes in comparison to their population.
See id. Thus, drawing upon the "conception of political equality
from the Declaration of Independence, to Lincoln's Gettysburg
Address, to the Fifteenth, Seventeenth, and Nineteenth
Amendments," the Court gave body to the principle of "one person,
one vote." Id. at 381.
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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 view give wings to Appellants' claim. We do not understand
footnote 12 to invalidate the use of the unit rule in the context
of selecting presidential electors. After all, the Court in Gray
was careful to offer something of a disclaimer that "analogies to
the electoral college . . . and to other phases of the problems of
representation in state or federal legislatures or conventions are
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inapposite." 372 U.S. at 378 (emphasis added) (footnote omitted).
Appellants implicitly hang their hats on the Court's subsequent
comment that the Constitution's "validat[ion]" of the "inherent
numerical inequality" in the Electoral College "implied nothing
about the use of an analogous system by a State in a statewide
election." Id. But that is precisely what separates Georgia's
use of a county unit system in a statewide primary election from
Massachusetts's use of the WTA system in the presidential election.
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
13 Although not explicitly phrased in such terms, the underlying
concern before the Court in Gray was that the geographic
discrimination in Georgia was particularly invidious because the
favored rural counties had significantly lower populations of
racial minorities than urban counties.
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"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 Fourteenth Amendment because the "[v]otes for the
losing candidates," as Georgia weighed them, "were discarded
solely because of the county where [they] were cast." Id. at 5.
The same cannot be said of votes for losing candidates in
Massachusetts.
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,
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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 U.S. Const. amend. XII ("[I]n choosing the President,
the votes shall be taken by states, the representation from each
state having one vote . . . ."). Furthermore, the very use of
electoral votes itself rejects "one person, one vote" as a
requirement in the selection of electors unless one contends that
electoral votes need be subdivided into fractions. Thus, in
Vermont, for example, even under Appellants' proposed method of
voting, there will be "unequal" votes unless a candidate gets
exactly zero or one third of the votes with the remainder all to
the other.
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 Fourteenth Amendment rights
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"by canceling out their votes for Electors through an at-large
. . . election that systematically ensures zero representation in
Massachusetts' Electoral College delegation."
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 Equal Protection Clause if
(by design or impact) they dilute the voting strength of "political
elements of the voting population." Burns, 384 U.S. at 88; see
also Allen, 393 U.S. at 569.14 However, the use of a WTA system
14 Functionally, multimember districts are those in which the
people elect multiple candidates to represent a single
consolidated district based on a plurality voting system.
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does not necessarily render a multimember apportionment scheme
unconstitutional. In Whitcomb v. Chavis, for example, the Supreme
Court considered an equal protection challenge to Indiana's use of
multimember districts for its state general assembly elections
amidst criticism of, inter alia, "their winner-take-all aspects."
403 U.S. at 158-59. However, the Supreme Court ultimately
rejected the argument that use of such multimember districts, which
were decided by plurality vote, violated the Equal Protection
Clause "simply because the supporters of losing candidates have no
legislative seats assigned to them." Id. at 160; see also id. at
154-55 ("The mere fact that one interest group . . . has found
itself outvoted and without legislative seats . . . provides no
basis for invoking constitutional remedies where . . . there is no
indication that this segment of the population is being denied
access to the political system.").
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 are not certain that it can,
given the largely ministerial role of electors today -- voters for
minority candidates do not suffer a violation of their equal
protection rights simply because their preferred candidate did not
See Whitcomb, 403 U.S. at 134 n.11, 160.
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prevail after having an equal and fair opportunity to compete in
the statewide election. Thus, while Appellants are "[a]rguably
. . . without representation since the [candidates] they voted for
have been defeated," that is the nature of the "head-on races
between candidates of two or more parties" that defines "typical
American legislative elections." Id. at 153. In that sense, the
WTA system is no different from any other election system decided
by plurality voting. We do not say that votes cast for the losing
candidate in any other such election are discarded because the
winner belongs to a different political party or because those who
voted for the losing candidate disapprove of the winner's political
agenda. Thus, to the extent that Appellants challenge the
validity of plurality voting in general through their equal
protection claim, they do not prevail.
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.
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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 candidate 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.
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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 to state a "one person, one vote" equal
protection claim.
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 First and Fourteenth Amendments.
At the core, Appellants allege that the Massachusetts WTA system
severely (and unconstitutionally) burdens their associational
rights by "discarding" or "diluting" their votes as minority party
members in a manner that ensures that they get no voice in the
Electoral College. Because the right to freedom of association
does not entitle citizens to electoral success, we agree with the
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district court that Appellants' complaint does not allege an
associational burden.
Together, the First and Fourteenth Amendment operate to
protect "[t]he freedom of association." Tashjian v. Republican
Party of Conn., 479 U.S. 208, 214 (1986); NAACP v. Alabama ex rel.
Patterson, 357 U.S. 449, 460 (1958) ("It is beyond debate that
freedom to engage in association for the advancement of beliefs
and ideas is an inseparable aspect of the 'liberty' assured by the
Due Process Clause of the Fourteenth Amendment, which embraces
freedom of speech."). This protection includes the rights of
citizens to "form political parties for the advancement of common
political goals and ideas" as well as the rights of parties to
self-determine their organizational structure and to select
candidates. Timmons v. Twin Cities Area New Party, 520 U.S. 351,
357, 363 (1997); see also Cal. Democratic Party v. Jones, 530 U.S.
567, 574-75 (2000) ("Representative democracy in any populous unit
of governance is unimaginable without the ability of citizens to
band together in promoting among the electorate candidates who
espouse their political views."); Tashjian, 479 U.S. at 214-15.
To that end, because voters express their preferences at the ballot
box, see Anderson, 460 U.S. at 787-88, associational freedom
necessarily includes "the right to cast an effective vote."
Republican Party of N.C. v. Martin, 980 F.2d 943, 960 (4th Cir.
-55-
1992); cf. Rhodes, 393 U.S. at 30 (noting the overlap between "the
right of individuals to associate for the advancement of political
beliefs, and the right of qualified voters . . . to cast their
votes effectively" in the context of an equal protection
challenge).
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
15 Because (as we will explain) we have determined that there is
no burden at all to Appellants' associational rights, we need not
decide between the various tiers of scrutiny.
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We proceed to Appellants' claim that the WTA system
burdens their associational rights because it "ensur[es] that
[their] votes, and any associational efforts, can have no effect
on the national election." First and foremost, we echo the
district court's determination that the WTA system simply does not
burden Appellants' associational rights because it merely "sets
the stakes" but "does not help or hurt one group's chances of
winning the Commonwealth's electors." Lyman, 352 F. Supp. 3d at
91. That one's candidate of choice does not prevail at the ballot
box simply does not translate into an associational rights
violation. See Smith v. Ark. State Highway Emps., Local 1315, 441
U.S. 463, 464-65 (1979) ("The First Amendment right to associate
and to advocate 'provides no guarantee that a speech will persuade
or that advocacy will be effective.'" (quoting Hanover Twp. Fed'n
of Teachers v. Hanover Cmty. Sch. Corp., 457 F.2d 456, 461
(1972))); Martin, 980 F.2d at 960 ("The First Amendment guarantees
the right to participate in the political process. It does not
guarantee political success."). The fact that the loser of the
popular vote is not entitled to electors does not make that
candidate's voters "unequal participant[s] in the decisions of the
body politic." Complaint at 14, Lyman v. Baker, 352 F. Supp. 3d
81 (D. Mass. 2018) (No. 1:18-cv-10327) (quoting Whitford v. Gill,
218 F. Supp. 3d 837, 883 (W.D. Wis. 2016)). It is thus no burden
-57-
to Appellants' right of "partisan political organization" that
their candidates of choice are not entitled to any of
Massachusetts's electors even if they only lose the general ticket
by a margin of a single vote. Tashjian, 479 U.S. at 214.
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 party 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'
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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 deem it the culprit for the
outsized influence that a handful of swing states exert on the
presidential election (whether because of the date of their primary
elections or the opportunity they offer to capture electoral
votes). We cannot opine here on the policy arguments for and
against this intersection between the WTA system and the Electoral
College. Moreover, Appellants do not allege that the WTA system
burdens the associational rights of the political parties to which
they belong to determine their organizational structure, engage in
political activities, or select their leaders (in Massachusetts).
See Timmons, 520 U.S. at 357-58.
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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
16 We also note the potential limitations of this comparison after
Rucho v. Common Cause, in which the Supreme Court held partisan
gerrymandering to be a non-justiciable political question
(at least in the context of plaintiffs' equal protection and First
Amendment claims). 139 S. Ct. 2484, 2498-2502, 2504-05 (2019).
By contrast, Elector Clause claims are justiciable. See McPherson,
146 U.S. at 23-25.
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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 Rule 12(b)(6) purposes
under either of their constitutional theories. Accordingly, we
affirm the district court's dismissal of both claims.
Affirmed.
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