DocketNumber: No. 5:18-CV-175-DAE
Citation Numbers: 369 F. Supp. 3d 768
Filed Date: 2/25/2019
Status: Precedential
Modified Date: 10/17/2022
LEAGUE OF UNITED LATIN AMERICAN CITIZENS, League of United Latin American Citizens of Texas, Joseph C. Parker, Jr., Hector Flores, Sanford Levinson, Yvonne M. Davis, Mary Ramos, Gloria Ray, Guadalupe Torres, Ray Valarde, and Doris Williams, Plaintiffs,
v.
Gregory Wayne ABBOTT, in His Official Capacity as Governor of the State of Texas, and Rolando Pablos, in His Official Capacity as Secretary of State of the State of Texas, Defendants.
ORDER GRANTING DEFENDANTS' MOTION TO DISMISS (DKT. # 21)
David Alan Ezra, Senior United States District Judge *774Before the Court is a Motion to Dismiss filed by Defendants Greg Abbott-Governor of Texas-and Rolando Pablos-Secretary of State of Texas-("Defendants"). (Dkt. # 21). On February 13, 2019, the Court held a hearing on the motion. At the hearing, David Boies, Esq. and Luis R. Vera, Jr., Esq. represented Plaintiffs and Matthew H. Frederick, Esq., Patrick K. Sweeten, Esq., and Todd L. Disher, Esq. represented Defendants. The motion is fully briefed and ripe for review. After careful consideration of the memoranda filed in support of and in opposition to the motion, as well as the arguments advanced at the hearing, the Court-for the reasons that follow-GRANTS Defendants' Motion to Dismiss.
BACKGROUND
In presidential elections, Article 2 of the United States Constitution prescribes that "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 ...." U.S. Const. art. II, § 1, cl. 2 (emphasis added). This action challenges Texas' "winner-take-all" ("WTA") method for selecting Presidential Electors. Texas, along with 47 other States and the District of Columbia, has adopted statutes under which its 38 Electoral College Electors for president are appointed on a WTA basis. See Tex. Elec. Code § 192.005 ("The set of elector candidates that is elected is the one that corresponds to the candidates for president and vice-president receiving the most votes.").
Under the WTA system, all of a state's Electors are chosen by the political party whose candidate received the most votes in the State's presidential election. For instance, in the 2016 election President Donald Trump received 52.2% of the Texas vote, and former Secretary of State Hillary Clinton received 43.2% of the vote. (Dkt. # 1 at 2.) Yet the Republican Party selected all 38 of Texas' Electors, and the Democratic Party selected none.
On February 21, 2018, Plaintiffs filed suit in this case, asserting three causes of action: (1) violation of the Fourteenth Amendment because by "discarding" the votes cast for the losing candidate, the WTA system "unconstitutionally magnifies the votes of a bare plurality of voters by translating those voters into an entire slate of presidential Electors" (Dkt. # 1 at 5); (2) violation of the First Amendment because *775the WTA system "burdens ... the right of association and ... the right to have a voice in presidential elections through casting a vote" (id. at 6); and (3) violation of Section 2 of the Voting Rights Act ("VRA") because the WTA system works in the same way as at-large voting districts in allowing "white voters to ... defeat all Electors slated for Hispanic and African-American preferred candidates" (id. ).
Defendants filed their motion to dismiss on April 9, 2018. (Dkt. # 21.) Plaintiffs filed a response in opposition on May 7, 2018. Defendants filed a reply in support of their motion on May 21, 2018. A hearing was held on Defendants' motion on February 13, 2019.
LEGAL STANDARD
Federal Rule of Civil Procedure 12(b)(6) authorizes dismissal of a complaint for "failure to state a claim upon which relief can be granted." Review is limited to the contents of the complaint and matters properly subject to judicial notice. See Tellabs, Inc. v. Makor Issues & Rights, Ltd.,
To survive a Rule 12(b)(6) motion to dismiss, the plaintiff must plead "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly,
DISCUSSION
Article II, Section 1, Clause 2 of the United States Constitution vests plenary power in the state legislatures to determine and implement the manner by which a state chooses its Electoral College Electors. McPherson v. Blacker,
Against this backdrop, Plaintiffs challenge the State of Texas' decision to have all of its State's Electors chosen by the political party whose candidate receives the greatest number of votes as being in violation of the First and Fourteenth Amendments, and Section 2 of the VRA. In response, Defendants argue their motion to dismiss should be granted on one or both of two bases: (1) Plaintiffs' claims are precluded by binding precedent; and even if not (2) they are entitled to dismissal on the merits of each of Plaintiffs' claims for failure to state a claim upon which relief can be granted.
Defendants begin by pointing to several prior decisions of the Supreme Court and the Fifth Circuit that they argue preclude all of Plaintiffs' claims as a matter of settled law. McPherson v. Blacker upheld a district-based mechanism
Defendants rely on language from McPherson that "if [Electors] are elected in districts where each citizen has an equal right to vote, the same as any other citizen has, no discrimination is made."
The principle that where each citizen has an equal right to vote, no discrimination is made has undoubtedly survived. But what is required before it can be said that a citizen's right to vote is in fact equal has undoubtedly evolved from the time McPherson was handed down. See, e.g., Reynolds v. Sims,
Plaintiffs argue Hitson is distinguishable because in Hitson there was "no contention that Alabama's electoral scheme for the selection of presidential Electors" operates "to minimize or cancel out the voting strength of [minority voters]."
And even if Hitson were distinguishable for the reasons Plaintiffs assert, the decision in Williams operates to the same effect. In Williams, a three-judge district court panel rejected a challenge to Virginia's WTA system for choosing Electors.
*778
After discussing the policy arguments against a WTA system, the Williams Court further explained:
Notwithstanding, it is difficult to equate the deprivations imposed by the [WTA] 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 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.
Although summary affirmances by the Supreme Court should not be read too broadly and do not necessarily endorse the reasoning of the lower court, "[t]hey do prevent lower courts from coming to opposite conclusions on the precise issues presented and necessarily decided by those actions." Mandel v. Bradley,
Plaintiffs first argue that Williams is not controlling because in Williams"voters cast their vote for Electors as candidates listed on the ballot[,]" whereas under the Texas system voters cast their vote directly for the presidential candidate. (See Dkt. # 27 at 27; see also Tex. Elec. Code § 192.034(b).) But as Defendants point out, under the Virginia system at issue in Williams-and just like the current Texas system-voters voted for one or the other political party, for that party's nominees for President and Vice-President, which constituted a block vote for all the Electors slated by that party. (Dkt. # 29 at 3; see also Dkt. # 27-1, Ex. A.) No vote could be cast for Electors individually, nor could any votes be cast separately from the other Electors. (Id. ) Voters in Virginia voted for a collective full slate of Electors, just as they do now in Texas through voting expressly for a Presidential candidate. (Id. ) Thus the mere naming of the Electors does not present a meaningful factual distinction between Williams and the instant case.
Plaintiffs also argue that Williams does not "address Plaintiffs' primary constitutional claim: that a state may not discard votes for the president through the WTA method of allocating Electors in the same manner that, in Gray, votes were discarded at an intermediate step in a two-step election." (Dkt. # 27 at 27.) But the court *779in Williams specifically confronted a Gray based argument and concluded Virginia's WTA system-functionally identical to Texas'-"does not come within the brand of [that] decision[ ]."
Next, Plaintiffs argue White v. Regester's striking down of a Texas county's use of multi-member at-large elections "fundamentally shifted the legal landscape." (Dkt. # 27 at 28 (citing
While the Court is cognizant of the troublesome history of electoral discrimination in the state of Texas, as described in White and elsewhere, Plaintiffs allege no facts suggesting the WTA system was specifically adopted to cancel out the voting strength of any particular group. Long before the specter of invidious electoral discrimination reared its head, WTA was the dominant form of choosing Electors for President. See McPherson,
Moreover, the WTA system has a readily discernable non-invidious purpose. WTA protects a state against the use of WTA by other States. When a State slates its Electors in a way that permits divided representation, if other States use a WTA method, their consolidated block of Electors carries more weight in the electoral college.
Finally, Plaintiffs argue Bush v. Gore,
However, Bush's precedential value is unclear. Its primary opinion is expressly "limited to the present circumstances."
Some pre- Bush cases do appear to indicate that an Equal Protection claim requires proving invidiousness. See, e.g., Dusch v. Davis,
Moreover, Plaintiffs' argument that Bush changed the legal landscape ignores that the Supreme Court had recognized prior to Williams that a "one person, one vote" claim could be based on either invidious discrimination or arbitrary and disparate treatment. See Roman v. Sincock,
The Supreme Court has also "admonished the lower federal courts to follow its directly applicable precedent, even if that precedent appears weakened by pronouncements in its subsequent decisions, and to leave to the Court 'the prerogative of overruling its own decisions.' " Randell v. Johnson,
For these reasons, the Court finds no material factual distinctions or intervening doctrinal shifts that militate the binding precedential nature of Hitson or Williams . These decisions therefore require that Plaintiff's Equal Protection claim be DISMISSED.
*781Nevertheless, Hitson and Williams only addressed challenges to WTA systems for choosing presidential Electors under the Fourteenth Amendment's Equal Protection guarantee and the "one person, one vote" principle. See Williams,
II. Freedom of Association - First and Fourteenth Amendments
"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 [the First Amendment]." NAACP v. Alabama,
must first consider the character and magnitude of the asserted injury to the rights protected by the First and Fourteenth Amendments that the plaintiff seeks to vindicate. It then must identify and evaluate the precise interests put forward by the State as justifications for the burden imposed by its rule. In passing judgment, the Court must not only determine the legitimacy and strength of each of those interests; it also must consider the extent to which those interests make it necessary to burden the plaintiff's rights. Only after weighing all these factors is the reviewing court in a position to decide whether the challenged provision is unconstitutional. The results of this evaluation will not be automatic; as [the Supreme Court has] recognized, there is no "substitute for the hard judgments that must be made."
Plaintiffs argue their association rights are burdened because Texas' WTA scheme: (1) discards or dilutes the votes of minority party members and magnifies the impact of majority party votes; (2) disincentivizes voters from joining or participating in minority parties and discourages voting by minority party members; and (3) eliminates all practical opportunities for non-dominant party voters in Texas to effectively voice their preference for President. (Dkt. # 1 at 3-4, 7, 13-14, 18; Dkt. # 27 at 31.)
However, the Court concludes that these assertions do not state a cognizable burden on the Plaintiffs' First and Fourteenth Amendment associational rights. "[T]he function of the election process is 'to winnow out and finally reject all *782but the chosen candidates.' "
The instant case, and the alleged associational harms, are distinguishable from those cases relied on by Plaintiffs. This case does not concern an issue of ballot access. See, e.g., Anderson,
This case also does not restrict a political party's "associational opportunities" in their party primary, the "crucial juncture at which the appeal to common principles may be translated into concerted action, and hence to political power in the community" discussed in Tashjian v. Republican Party of Connecticut.
In short, Plaintiffs have provided no support in prevailing case law or doctrine that the First Amendment's associational guarantees cognize the harms they allege.
Instead, Plaintiffs' theories of associational harms most directly echo those expressed in Justice Kagan's concurrence in Gill v. Whitford, --- U.S. ----,
But these harms arise by virtue of "subjecting a group of voters or their party to disfavored treatment by reason of their view," infringing " 'the ability of citizens to band together in promoting among the electorate candidates who espouse their political views.' " Vieth v. Jubelirer,
As Plaintiffs repeatedly state, "the basic reality of Texas' elections today" is that voters "cast a ballot for the president." (See, e.g., Dkt. # 27 at 1, 14.) It is beyond dispute that in determining who received more votes for President in Texas, Plaintiffs' individual votes were counted just the same as any other voter, and that they were permitted the opportunity to express their Presidential preference by means of that vote. Whatever disincentive to vote or participate in minority parties arises from their preferred candidate having failed to receive more votes than her opponent. But that one candidate will lose by virtue of receiving fewer votes, and that her supporters will be thereby dispirited and disincentivized, is an inescapable reality of democracy. It does not state a cognizable First Amendment burden on free association. Further, that Plaintiffs' votes failed to win them any Electors for their preferred candidate does not mean their opportunity to express their Presidential preference was ineffective because "no ... group has a right under the Constitution to insist that state electoral systems be designed, where possible, to give its members electoral control over the selection of persons for particular political offices[,]" including presidential Electors. Hitson,
Finally, even were this Court to conclude Plaintiffs had adequately alleged First and Fourteenth Amendment associational harms, those harms are justified by Texas' interest in maximizing its electoral power by having its Presidential Electors vote in a unified bloc. As previously stated, no less than Thomas Jefferson recognized the merit and necessity of this "protect[ion] ... against the use of [WTA] by the other States" in recommending Virginia adopt WTA, despite his own personal preference for district-based selection of Electors. Williams,
For these reasons, Plaintiffs' First and Fourteenth Amendment Freedom of Association cause of action must be DISMISSED.
Section 2 of the VRA prohibits any "standard, practice, or procedure ... which results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color,"
is established if, based on the totality of circumstances, it is shown that the political processes leading to nomination or election in the State or political subdivision are not equally open to participation by members of a class of citizens ... in that its members have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice.
Plaintiffs argue Texas' WTA method for choosing Presidential Electors violates this statutory guarantee. Plaintiffs rely on the analytical framework established by the Supreme Court in Thornburg v. Gingles in scrutinizing North Carolina's "legislative decision to employ multimember, rather than single-member, districts in the contested jurisdictions ...." 478 U.S. at 47,
As a threshold matter, the Court firmly agrees with Plaintiffs that Section 2 the VRA applies to Presidential Elections. The language of Section 2 is intentionally broad and applies to "[e]very election in which registered Electors are permitted to vote ...." Chisom v. Roemer,
"Multimember districts and at-large election schemes ... are not per se violative of minority voters' rights." Gingles, 478 U.S. at 48,
According to Plaintiffs, in 2008 and 2016, 27% and 31% respectively of white voters in Texas voted for the Democratic candidate for President, undercutting the premise that whites vote in a uniform bloc. (Dkt. # 1 at 26.) And 37% and 39% respectively of Hispanic voters voted for the Republican candidate. (Id. at 25.) Thus not only did a sizable number of white voters vote for the candidate preferred by the asserted minority groups, but a sizable number of non-white voters did not.
Taking the relevant numbers advanced by Plaintiffs in their complaint, in 2008 and 2016, Hispanic voters who voted for the Republican candidate constituted roughly 16% of the voting electorate, nearly twice the margin by which the Democratic Candidate lost the 2016 presidential election in Texas. (See Dkt. # 1 at 2, 26.) If nearly 40% of Hispanic voters had not voted for the Republican candidate,
The facts alleged by Plaintiffs, therefore, strongly implicate the conclusion that the relevant bloc frustrating Plaintiffs' election success is not whites but Republicans. As the Fifth Circuit has recognized, "[t]here is ... a powerful argument supporting a rule that plaintiffs, to establish legally significant racial bloc voting, must prove that their failure to elect representatives of their choice cannot be characterized as a mere euphemism for political defeat at the polls, or the result of partisan politics." Clements,
Absent evidence that minorities have been excluded from the political process, a lack of success at the polls is not sufficient to trigger judicial intervention. Courts must undertake the additional inquiry into the reasons for, or causes of, these electoral losses in order to determine whether they were the product of partisan politics or racial vote dilution, political defeat or built-in bias. It is only upon concluding that a minority group's failure to prevail at the polls, that is, their failure to attract the support of white voters, was the result or function of racial vote dilution or built-in bias, that a court may find that minority plaintiffs have suffered a denial or abridgement of the right ... to vote on account of race or color....
[F]ailures of a minority group to elect representatives of its choice that are attributable to partisan politics provide *786no grounds for relief. Section 2 is a balm for racial minorities, not political ones-even though the two often coincide. The Voting Rights Act does not guarantee that nominees of the Democratic Party will be elected, even if [minority] voters are likely to favor that party's candidates. Rather, § 2 is implicated only where Democrats lose because they are black, not where blacks lose because they are Democrats.
That a similar pattern also emerges under WTA systems in states where Democrats hold political majorities underscores that the animating issue here is partisan, not racial. If "the Democrats won" the election-as they did under an identical mechanism in majority democratic states-Plaintiffs "would have had no justifiable complaints about representation." Whitcomb,
Moreover, satisfaction of Gingles' three " 'preconditions,' is necessary, but not sufficient to establish liability under § 2." Clements,
any more underrepresented than ... whites who also voted Democratic and lost, or any more discriminated against than other interest groups or voters ... with allegiance to the Democratic Party, or, conversely, and less represented than Republican[s in areas] of Republican defeat[.] ... The mere fact that one interest group or another concerned with the outcome of [the] election[ ] has found itself outvoted and without [Electors] of its own provides no basis for invoking constitutional remedies where, as here, there is no indication that this segment of the population is being denied access to the political system.
Whitcomb,
Thus the inescapable conclusion is that Plaintiffs were unable to elect Electors for their candidate of their choice because there are fewer Democrats who voted in Texas, not because the system operates to cancel out the ability of racial minorities to elect their preferred candidate-roughly 40% of Hispanics were able to do so, and roughly 30% of whites were not. (See Dkt. # 1 at 25, 26.)
Finally, "[b]ecause the very concept of vote dilution implies-and, indeed, necessitates-the existence of an 'undiluted' practice against which the fact of dilution may be measured, a § 2 plaintiff must also postulate a reasonable alternative voting practice to serve as the benchmark 'undiluted' voting practice."
As stated by Plaintiffs, their "primary remedy is to allow the state to devise its own constitutional scheme for the selection of Electors." (Dkt. # 27 at 36; see also Dkt. # 1 at 32.) This vague, unspecified remedy fails to adequately define an undiluted voting practice for this Court to use as a benchmark to compare with the current practice of the State of Texas. And Plaintiffs specifically disclaim the readily apparent alternative of Congressional district-based selection as equally unrepresentative. (Dkt. # 1 at 5, 32.) Plaintiffs cannot shift the burden of presenting an undiluted benchmark onto Defendants in this way.
To the extent Plaintiffs specify any adequate alternate scheme, they propose that "if state authorities fail to propose or implement a valid method of selecting Electors ...," the Court should "order a proportional method of distributing Electors, selecting a proportional number of Electors to each party, based on the number of votes each party's candidate receives statewide." (Dkt. # 1 at 32.) But Section 2 of the VRA specifically disavows "a right to have members of a protected class elected in numbers equal to their proportion in the population."
The "on account of race or color" requirement of Section 2 of the VRA was intended to "effectuate the Fifteenth Amendment's guarantee that no citizen's right to vote shall be denied or abridged ... on account of race, color, or previous condition of servitude.' " Voinovich v. Quilter,
Accordingly, Plaintiffs claim under Section 2 of the VRA must be DISMISSED.
CONCLUSION
For the reasons stated, the Court GRANTS Defendants' Motion to Dismiss. (Dkt. # 21.) Because the Court finds Plaintiffs' Fourteenth Amendment "one person, one vote" claim is precluded by binding precedent, that claim is DISMISSED WITH PREJUDICE . Further, because the Court believes any amendment to Plaintiffs' First Amendment freedom of association and VRA Section 2 claims would be futile-for the reasons discussed in this order-those claims are also DISMISSED WITH PREJUDICE .
IT IS SO ORDERED.
In so ruling, the Court reaches the same conclusion recently reached in sister courts in the District of Massachusetts and the Central District of California as to the one person, one vote and First Amendment challenges to the winner-take-all system for selecting Presidential Electors that were presented in those cases. See Lyman et al. v. Baker et al., No. 1:18-CV-10327-PBS (D. Mass. Dec. 7, 2018) (Dkt. # 52); Rodriguez et al. v. Brown et al., No. 2:18-CV-1422 (C.D. Cal. Sept. 21, 2018) (Dkt. # 83).
In this respect, Plaintiffs' prudential arguments are entirely beside the point. That WTA systems may lead Presidential campaigns to focus on "battleground states" or facilitate outside interference in our elections (Dkt. # 1 at 3-4; Dkt # 27 at 8) are irrelevant to this Court's determination. Either a WTA system for choosing Presidential electors is permissible under the First and Fourteenth Amendments and the VRA, or it is not. If WTA systems are constitutional and not in violation of statute, their wisdom and necessity are to be left to the reasoned judgment of the legislatures of each of the Several States. And if WTA systems are unconstitutional or in violation of statute, it is impermissible, no matter how wise or providential.
Under the Michigan system at issue in McPherson, each congressional district chose one elector, corresponding to the electors Michigan was entitled to through its congressional representatives for those districts, and each half of the state selected an "at large" elector, corresponding to the electors Michigan was entitled to through its two senators. Id. at 24,
Plaintiffs' proposed remedy of proportional selection of electors is also problematic. City of Mobile v. Bolden,
The panel's decision was summarily affirmed by the Supreme Court.
Wesberry also expressly stated that the one person, one vote rule is "followed automatically, of course, when [Congressional] Representatives are chosen as a group on a statewide basis."
In this way, Texas' WTA system is also not in violation of the Fourteenth Amendment under Bush as arbitrary. See
Even if this Court were not bound by the decisions in Hitson and Williams, Plaintiffs' Equal Protection claim would still fail for reasons substantially identical to those expressed in those cases.
Although under the Electoral College system the vote can be conceptualized as one for individual electors, as even Plaintiffs recognize (see, e.g., Dkt. # 27 at 1, 14), the "preferred candidate" for whom citizens vote is not the electors, but the presidential nominee his or herself. The candidate "chosen" by the State of Texas is thus the Presidential candidate receiving the largest share of its citizens' votes.
The Court recognizes that if WTA systems were struck down nationwide, the validity of this interest would seem to vanish. However, this Court is not in the position to award such a remedy. This suit, as brought by Plaintiffs, only challenges the WTA system in Texas and does not request any nationwide injunction or any other remedy that would reach beyond the borders of Texas.
The Court also questions whether the Plaintiffs have satisfied the second prong, at least as it relates to Hispanics in Texas. According to Plaintiffs, 37% and 39% of Hispanics did not vote for the Democratic Presidential candidate in 2008 and 2016 respectively. (Dkt. # 1 at 25.) In 2012, 27% did not. (Id. )
A roughly 16% swing in Hispanic voters from Republican to Democrat would have been enough to swing the 2016 Presidential election in Texas to the Democratic candidate.