Rodriguez v. Newsom

David Boies (argued), Boies Schiller Flexner LLP, Armonk, New York; James P. Denvir III, Amy J. Mauser, Karen L. Dunn, Lisa Barclay, Amy L. Neuhardt, Hamish P.M. Hume, and Katherine M. Cheng, Boies Schiller Flexner LLP, Washington, D.C.; Trevor P. Stutz, Boies Schiller Flexner LLP, Los Angeles, California; Luis Roberto Vera Jr., LULAC National General Counsel, Law Offices of Luis Vera Jr., San Antonio, Texas; Jennier D. Hackett, James R. Martin, and Allison M. Vissichelli, Zelle LLP, Washington, D.C.; David H. Fry and J. Max Rosen, Munger Tolles & Olson LLP, San Francisco, California; Michael B. Desanctis, Munger Tolles & Olson LLP, Washington, D.C.; Scott A. Martin, Irving Scher, and Jeanette Bayoumi, Hausfeld LLP, New York, New York; Michael D. Hausfeld and Swathi Bojedla, Hausfeld LLP, Washington, D.C.; Samuel Issacharoff, New York, New York; Mark Guerrero and Mary Whittle, Guerrero & Whittle PLLC, Austin, Texas; Randall L. Allen, Alston & Bird LLP, Atlanta, Georgia; Maria Amelia Calaf, Jack A. Simms Jr., Ryan A. Botkin, Katherine P. Chiarello, Karen S. Vladeck, and W. Reid Wittliff, Wittliff Cutter Austin PLLC, Austin, Texas; for Plaintiffs-Appellants.

P. Patty Li (argued), Deputy Attorney General; Paul Stein, Supervising Deputy Attorney General; Thomas S. Patterson, Senior Assistant Attorney General; Xavier Becerra, Attorney General; Office of the Attorney General, San Francisco, California; for Defendants-Appellees.

Before: Consuelo M. Callahan and Jacqueline H. Nguyen, Circuit Judges, and Dana L. Christensen,^** District Judge.

NGUYEN, Circuit Judge:

The State of California, like forty-seven other States and the District of Columbia, employs a winner-take-all ("WTA") approach to selecting its presidential

electors. Under this system, the State awards all of its electors to the political party of the popular vote winner in the State, regardless of relative vote share. Appellants, a coalition of voters in California, appeal the district court's dismissal of their lawsuit. They allege that WTA violates the equal protection and First Amendment rights of California residents who, like them, usually do not vote for the State's popular vote winner and thus enjoy no representation among the State's electors.

Appellants’ equal protection challenge is foreclosed by Williams v. Virginia State Board of Elections , a decades-old opinion that was summarily affirmed by the U.S. Supreme Court. 288 F. Supp. 622 (E.D. Va. 1968), aff'd , 393 U.S. 320, 89 S.Ct. 555, 21 L.Ed.2d 517 (1969), reh'g denied , 393 U.S. 1112, 89 S.Ct. 857, 21 L.Ed.2d 813 (1969) (" Williams "). We join our three sister circuits to have considered the issue¹ in holding that, under Williams , a State's use of WTA to select its presidential electors is consistent with the Constitution's guarantee of equal protection. We also conclude that Appellants have failed to plausibly allege that California's use of WTA to select presidential electors violates the First Amendment. We therefore affirm.

I.

A.

Article II of the U.S. Constitution provides that "[e]ach State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress ...." U.S. Const. art. II, § 1, cl. 2. "Article II, § 1's appointments power gives the States far-reaching authority over presidential electors, absent some other constitutional constraint." Chiafalo v. Washington , ––– U.S. ––––, 140 S. Ct. 2316, 2324, 207 L.Ed.2d 761 (2020). The Twelfth Amendment adds that the electors "shall meet in their respective states and vote by ballot for President and Vice-President ...." U.S. Const. amend. XII.

California, like all but two states,² awards all of its electors to the party of the candidate who wins the popular vote in the State. See California Elections Code §§ 6901, 6902, 6906, 15400, 15452, 15505. We are asked to decide whether this method for selecting electors—WTA—is constitutional.

B.

Appellants are self-identified Republican and third-party voters in California. They sued then-Governor of California Jerry Brown and California Secretary of State Alex Padilla (collectively "California" or "the State"), contending that the State's use of WTA infringes their "constitutional right to an equal vote in the presidential election." Their core theory is that WTA "counts votes for a losing presidential candidate ... only to discard them in determining [e]lectors who cast votes directly for the presidency." They allege that in so doing, WTA "unconstitutionally magnifies the votes of a bare plurality of voters by translating those votes into an entire slate of" electors "while, at the same time, the votes cast for all other candidates are given no effect." This, according to Appellants, violates the principle of "one person, one vote." Appellants further contend that

WTA burdens various First Amendment rights.

The district court dismissed Appellants’ complaint with prejudice, holding that their equal protection challenge was "foreclosed by" McPherson v. Blacker , 146 U.S. 1, 13 S.Ct. 3, 36 L.Ed. 869 (1892), and Williams . Williams , it noted, held that "a state's selection of presidential electors on a ‘winner take all basis’ does not violate the ‘one person, one vote’ principle of the Fourteenth Amendment because ‘[i]n the selection of electors, the [winner take all] rule does not in any way denigrate the power of one citizen's ballot and heighten the influence of another's vote.’ " The district court further determined that Williams also foreclosed Appellants’ First Amendment claims.

II.

We review de novo the district court's dismissal of a complaint alleging a violation of constitutional rights. See United States v. Adams , 388 F.3d 708, 710 (9th Cir. 2004). To survive a Federal Rule of Civil Procedure 12(b)(6) motion to dismiss, the complaint must "contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Sheppard v. David Evans & Assoc. , 694 F.3d 1045, 1048 (9th Cir. 2012) (citation omitted).

III.

A.

The Constitution does not prescribe how States select electors. To the contrary, it "conceded plenary power to the state legislatures in the matter ...." McPherson , 146 U.S. at 35, 13 S.Ct. 3 ; see also id. at 27, 13 S.Ct. 3 (explaining the Constitution "recognizes that the people act through their representatives in the legislature, and leaves it to the legislature exclusively to define the method of effecting the object"). But a State's method for selecting electors must comport with equal protection principles. Chiafalo , 140 S. Ct. at 2324 n.4 ; cf. McPherson , 146 U.S. at 40, 13 S.Ct. 3 (concluding that "no discrimination is made" in a system for selecting electors where "each citizen has an equal right to vote"); see also Williams v. Rhodes , 393 U.S. 23, 29, 89 S.Ct. 5, 21 L.Ed.2d 24 (1968) (" Rhodes ").

Equal protection requires, "as nearly as is practicable," that one person's vote "be worth as much as another's." Wesberry v. Sanders , 376 U.S. 1, 7–8, 84 S.Ct. 526, 11 L.Ed.2d 481 (1964) ; see also Gray v. Sanders , 372 U.S. 368, 381, 83 S.Ct. 801, 9 L.Ed.2d 821 (1963) (describing the principle of "one person, one vote"). However, "[i]t hardly follows ... that a person is entitled to have his political party achieve representation in some way commensurate to its share of statewide support." Rucho v. Common Cause , ––– U.S. ––––, 139 S. Ct. 2484, 2501, 204 L.Ed.2d 931 (2019).³ "[E]ach vote must carry equal weight"—but "[t]hat requirement does not extend to political parties." Id. That is, it is not required "that each party ... be influential in proportion to its number of supporters." Id.

B.

Over a century ago, the Supreme Court considered an equal protection challenge to a Michigan law providing for the selection of electors by district. McPherson , 146 U.S. at 24, 13 S.Ct. 3. The Court rejected the challenge, id. at 27–36, 13 S.Ct. 3, but it did not opine on any other system for selecting electors, see

Williams , 288 F. Supp. at 626 (explaining McPherson "did no[ ] more than hold permissible and valid Michigan's determination to select electors by districts"). McPherson thus does not weigh heavily in our analysis.

But Williams does. The plaintiffs in Williams challenged a Virginia law providing that "all of the State's electors [were to be] collectively chosen ... by the greatest number of votes cast throughout the entire State ...." Id. at 623. The ballot included "the name of each political party and the nominees thereof for President and Vice President," as well as "the names of [each] party's elector candidates ...." It "permit[ted] a voter to vote only for one or another political party, and thus for the party's nominees for President and Vice President." And a "vote cast [for a given party] ... constitute[d] ... one vote for each of the 12 electors listed thereon under the name of th[at] party and its nominees." Thus, all of the State's electors were selected—as a group—according to the popular vote in the State, and all of the electors represented one political party.

The plaintiffs argued that the law was unconstitutional "because it g[ave] the choice of all of the electors to the statewide plurality of those voting in the election—‘winner take all’—and accord[ed] no representation among the electors to the minority of the voters." Id...