Paul Rodriguez et al v. Jerry Brown et al

Filing 1

COMPLAINT Receipt No: 0973-21288828 - Fee: $400, filed by Plaintiffs Paul Rodriguez, California League of United Latin American Citizens, League of United Latin American Citizens, Rocky Chavez. (Attorney Robyn C Crowther added to party California League of United Latin American Citizens(pty:pla), Attorney Robyn C Crowther added to party Rocky Chavez(pty:pla), Attorney Robyn C Crowther added to party League of United Latin American Citizens(pty:pla), Attorney Robyn C Crowther added to party Paul Rodriguez(pty:pla))(Crowther, Robyn)

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1 ROBYN C. CROWTHER, State Bar No. 193840
[e-mail]
TREVOR P. STUTZ, State Bar No. 296882
2
[e-mail]
BOIES SCHILLER FLEXNER LLP
3
725 South Figueroa Street, 31st Floor
4 Los Angeles, California 90017-5524
Telephone: [phone]
5 Facsimile: [phone]
6 DAVID BOIES (Pro Hac Vice Pending)
[e-mail]
BOIES SCHILLER FLEXNER LLP
7
333 Main Street
8 Armonk, NY 10504
Telephone: [phone]
9 Facsimile: [phone]
10 LUIS ROBERTO VERA, JR. (Pro Hac Vice Pending)
[e-mail]
LULAC NATIONAL GENERAL COUNSEL
11
Attorney and Counselor at Law
12 1325 Riverview Towers, 111 Soledad
San Antonio, Texas 78205-2260
13 Telephone: [phone]
Facsimile: [phone]
14
Counsel for Plaintiffs
15
[Additional Counsel Listed on Signature Page]
16
17

UNITED STATES DISTRICT COURT

18

CENTRAL DISTRICT OF CALIFORNIA, WESTERN DIVISION

19 PAUL RODRIGUEZ; ROCKY
CHAVEZ; LEAGUE OF UNITED
20 LATIN AMERICAN CITIZENS; and
CALIFORNIA LEAGUE OF UNITED
21 LATIN AMERICAN CITIZENS,

COMPLAINT FOR
DECLARATORY AND
INJUNCTIVE RELIEF

Plaintiffs,

22
23

Case No.

v.

24 JERRY BROWN, in his official
capacity as Governor of the State of
25 California; and ALEX PADILLA, in his
official capacity as Secretary of State of
26 the State of California,
27

Defendants.

28
Case No.
COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

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1 I.

NATURE OF THE ACTION

2

1.

The predominant method in America for counting votes in presidential

3 elections violates the United States Constitution; it also distorts presidential
4 campaigns, facilitates outside interference in our elections, and ensures that a
5 substantial number of citizen voters are disenfranchised when their votes are tallied
6 in early November, only to be discarded when it really counts in mid-December.

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7

2.

The Constitution assigns to presidential “Electors” the vote to choose

8 the President and Vice President. U.S. Const. art. II, § 1. States determine how
9 those Electors are selected. California, like 47 other states and the District of
10 Columbia, has decided to select Electors on a winner-take-all (“WTA”) basis,
11 whereby the political party of the leading candidate among California’s voters
12 selects every Elector, with the vote of every other California citizen rendered
13 meaningless by receiving no Elector directly or through a political party. In 2016,
14 for example, Secretary Hillary Clinton received 61.73% of the votes in California,
15 yet she received every single electoral vote from California. Likewise, President
16 Donald Trump received 31.62% of the votes in California, but received none of the
17 electoral votes from California.
18

3.

This magnification of certain votes and cancellation of all others is

19 required by California law. Under California’s WTA method of selecting Electors,
20 the party of the presidential candidate who wins more votes in the state than any
21 other candidate is awarded all of California’s fifty-five Electors. See California
22 Elections Code §§ 6901, 6902, 6906, 15400, 15452, 15505; see also National
23 Archives and Records Administration, Frequently Asked Questions,
24 https://www.archives.gov/federal-register/electoral-college/faq.html#wtapv (last
25 visited Feb. 15, 2018) (“The District of Columbia and 48 states have a winner-takes26 all rule for the Electoral College. In these States, whichever candidate receives a
27 majority of the popular vote, or a plurality of the popular vote (less than 50 percent
28 but more than any other candidate), takes all of the state’s Electoral votes.”).
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1

4.

The WTA method gives only one candidate’s party all of the Electors,

2 regardless of whether the winning candidate has garnered only a few thousand more
3 votes than the next vote-getter in California, as Woodrow Wilson did in 1916, or as
4 much as 67% of the vote in California, as Franklin D. Roosevelt did in 1936. Either
5 way, the vote of each and every citizen voter is cancelled when the final direct
6 election for President takes place unless it is cast for the winning candidate. This

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7 includes as many as 4,483,810 California citizens who voted for Donald Trump in
8 2016.
9

5.

In California, it is Republican voters who are effectively

10 disenfranchised by the WTA system of selecting Electors. In each of the last seven
11 presidential elections the candidate who won California and received all of
12 California’s Electors has been a Democrat. In those seven presidential elections,
13 31,871,758 votes were cast for the Republican candidate in California, but none of
14 the 382 California Electors were awarded to the Republican candidate.
15

6.

This problem is not unique to California; it is also not unique to

16 Republicans, as the same phenomenon occurs in reverse in heavily Republican
17 states where votes for the Democratic candidate for President are systemically
18 discarded before the final direct election for President.
19

7.

Thus, under the WTA system, many Californians have been and will

20 continue to be denied their constitutional right to an equal vote in the presidential
21 election.
22

8.

The WTA system also weakens the influence of California in

23 presidential campaigns generally. In particular, WTA leads presidential campaigns
24 to focus on “battleground” states that in 2016 together represented only 35% of
25 voters and did not include California. George Pilsbury & Julian Johannesen,
26 Nonprofit VOTE, America Goes to the Polls 2016: A Report on Voter Turnout in
27 the 2016 Election, at 12 (Mar. 16, 2017), available at
28 http://www.nonprofitvote.org/documents/2017/03/america-goes-to-the-pollsCase No.
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1 2016.pdf/. Accordingly, presidential campaigns largely do not focus on the citizens
2 of California, despite the fact that California has the highest number of Electors in
3 the United States. In fact, just four battleground states —Florida, North Carolina,
4 Ohio and Pennsylvania— saw 71% of campaign advertising spending and 57% of
5 candidate appearances; the top fourteen battleground states1 saw 99% of advertising
6 spending and 95% of candidate appearances. Id. at 7, 12. WTA therefore causes

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7 candidates for President and Vice President to give disproportionate attention to an
8 unrepresentative subset of the country, ultimately giving that unrepresentative subset
9 outsized political influence. Under such circumstances, the presidential election
10 does not reflect or include the voices of the entire nation, including individuals in
11 California.
12

9.

Finally, the WTA system distorts presidential campaigns and facilitates

13 outside interference in our elections. In close elections, WTA makes it much easier
14 and much more likely for a very small number of voters in a few predictable
15 battleground states to determine the final electoral result than would be the case with
16 a system of proportional selection of Electors. This increased vulnerability gives the
17 Court added reason to ensure that the current system satisfies the requirements of
18 the Constitution.
19

10.

This lawsuit is a challenge to the WTA method selected by California.

20 As established by longstanding Supreme Court precedent, that exercise of state
21 discretion remains subject to Constitutional norms, including the First and
22 Fourteenth Amendments.
23

11.

To be clear, this lawsuit is not a challenge to the Electoral College,

24 which is mandated by the Constitution. Instead, it is a challenge to the decision of
25 California to award and select Electors on a WTA basis. The Constitution does not
26

1

The fourteen battleground states in the 2016 presidential election were assumed to
27 be Arizona, Colorado, Florida, Georgia, Iowa, Maine, Michigan, Nevada, New
28 Hampshire, North Carolina, Ohio, Pennsylvania, Virginia, and Wisconsin.
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1 address how states should select Electors, and it certainly does not require WTA.
2 To the contrary, as shown below, WTA is inimical to the long-established principle
3 of “one person, one vote,” and thereby violates the fundamental constitutional right
4 to vote, as well as other constitutional rights.
5

12.

Plaintiffs seek (1) a declaratory judgment that the WTA provisions of

6 California’s election code, see California Elections Code §§ 6901, 6902, 6906,

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7 15400, 15452, and 15505, violate the First and Fourteenth Amendments to the
8 United States Constitution; and (2) an order permanently enjoining the use of the
9 WTA method (or other non-representational methods, such as selection by
10 Congressional District vote) of selecting Electors in presidential elections.
11

13.

WTA violates the Fourteenth Amendment because it counts votes for a

12 losing presidential candidate in California only to discard them in determining
13 Electors who cast votes directly for the presidency. Put differently, the WTA
14 system unconstitutionally magnifies the votes of a bare plurality of voters by
15 translating those votes into an entire slate of presidential Electors, all of whom
16 support the nominee of a single political party—while, at the same time, the votes
17 cast for all other candidates are given no effect. Accordingly, in the last five
18 presidential elections, at least 30% of California voters cast a vote for the candidate
19 that did not win the popular vote in California, and those voters thereby effectively
20 had their votes cancelled. Their votes were completely irrelevant to how the
21 Electors representing California voted in the Electoral College. WTA thus treats
22 California citizens who vote for a losing candidate in an arbitrary and disparate
23 manner in clear violation of the principle of “one person, one vote.”
24

14.

In addition, WTA violates the First Amendment because of the burdens

25 that it places on the right of association and on the right to have a voice in
26 presidential elections through casting a vote. There is no state interest that remotely
27 outweighs these burdens. Again, at least 30% of voters in the last five presidential
28 elections—nationwide and in California—have voted for a losing candidate, and
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1 none of their votes have counted in the final direct election. This trend will likely
2 continue.
3 II.

JURISDICTION AND VENUE

4

15.

Subject matter jurisdiction for Plaintiffs’ claims under the First and

5 Fourteenth Amendments to the United States Constitution exists under 42 U.S.C. §
6 1983 and 28 U.S.C. § 1331.

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7

16.

Venue is proper in this Court under 28 U.S.C. § 1391(b).

8 III.

PARTIES

9

17.

Because of California’s WTA method of selecting Electors, each of the

10 individual Plaintiffs listed below (“Individual Plaintiffs”) has suffered, and will
11 again suffer, an injury that comes from lacking any meaningful representation in the
12 final vote count for the President (and Vice President) of the United States. In
13 particular, because the Individual Plaintiffs have voted for, and will vote for, the
14 Republican or third-party candidate for President in California, they have been, and
15 will be again, deprived of the right to have their votes counted equally and
16 meaningfully toward the election of the President.
17

18.

Plaintiff Paul Rodriguez is a resident of the State of California, where

18 he is registered to vote as a Republican and has been active within the Republican
19 Party. Mr. Rodriguez has repeatedly voted in Studio City, California, for a
20 Republican for President. Mr. Rodriguez plans to remain a permanent resident of
21 California and will continue to vote in future presidential elections for the
22 Republican candidate.
23

19.

Plaintiff Assemblyman Rocky Chavez is a resident of the State of

24 California, where he is a registered to vote as a Republican and serves as a
25 Republican state assemblyman representing the 76th District of California. Mr.
26 Chavez has consistently voted in California for the Republican candidate for
27 President. Mr. Chavez plans to remain a permanent resident of California and will
28 continue to vote in future presidential elections for the Republican candidate.
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1

20.

Plaintiff League of United Latin American Citizens (“LULAC”) is the

2 oldest and largest national Latino civil rights organization. LULAC is a nonprofit
3 organization, incorporated under the laws of the State of Texas, with presence in
4 most of the fifty states and Puerto Rico, including California. LULAC has chapters
5 throughout California and has individual members who reside and vote throughout
6 California, including members who have voted and will vote for the Republican, or

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7 third party, presidential candidate in California elections for the President. LULAC
8 has long been active in representing Latinos and other minority interests in all
9 regions of the State. LULAC conducts voter registration activities throughout
10 California, and exercises its rights under the Constitution to engage in full and
11 effective political participation for Latinos and minority voters.
12

21.

Plaintiff California League of United Latin American Citizens

13 (“California LULAC”) is a nonprofit organization with members located in many
14 cities and towns throughout the State of California. California LULAC has
15 individual members who reside and vote throughout California, including members
16 who have voted and will vote for the Republican, or third party, presidential
17 candidate in California elections for the President. Since its founding, California
18 LULAC has fought for full access to the political process, increased political power,
19 and improved political opportunities for Hispanic Americans in California.
20

22.

Defendant Jerry Brown is the Governor of California and is sued in his

21 official capacity for declaratory and prospective injunctive relief to prevent a
22 violation of federal constitutional rights. Governor Brown is the chief executive
23 officer of the State of California and has the duty to communicate to the “Archivist
24 of the United States a certificate of such ascertainment of the electors appointed,
25 setting forth the names of such electors and the canvass or other ascertainment under
26 the laws of such State of the number of votes given or cast for each person for
27 whose appointment any and all votes have been given or cast”. 3 U.S.C. § 6. In
28 these circumstances, Governor Brown has no immunity from suit.
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1

23.

Defendant Alex Padilla is the Secretary of State of California and is

2 sued in his official capacity for declaratory and prospective injunctive relief to
3 prevent a violation of federal constitutional rights. Mr. Padilla is the chief elections
4 officer of the state of California and must “analyze the votes given for presidential
5 electors, and certify to the Governor the names of the proper number of persons
6 having the highest number of votes.” See California Elections Code § 15505. He

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7 must also “issue and transmit to each presidential elector a certificate of election.”
8 Id. In these circumstances, Mr. Padilla has no immunity from suit.
9 IV.
10

WTA IS NOT MANDATED BY THE CONSTITUTION
24.

Under Article II, Section 1 of the U.S. Constitution, states are given

11 authority to determine the manner of selecting Electors. That provision of the
12 Constitution states: “Each State shall appoint, in such Manner as the Legislature
13 thereof may direct, a Number of Electors” to choose a President and Vice President.
14

25.

“When the state legislature vests the right to vote for President in its

15 people, the right to vote as the legislature has prescribed is fundamental; and one
16 source of its fundamental nature lies in the equal weight accorded to each vote and
17 the equal dignity owed to each voter.” Bush v. Gore, 531 U.S. 98, 104 (2000).
18

26.

The Constitution grants “extensive power to the States to pass laws

19 regulating the selection of electors. But the Constitution is filled with provisions
20 that grant Congress or the States specific power to legislate in certain areas; these
21 granted powers are always subject to the limitation that they may not be exercised in
22 a way that violates other specific provisions of the Constitution.” Williams v.
23 Rhodes, 393 U.S. 23, 29 (1968).
24

27.

California has chosen the WTA system of selecting Electors for

25 presidential races. Neither Article II, Section 1 of the U.S. Constitution, nor any
26 other constitutional provision, compels California to make that choice.
27
28
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1 V.

CALIFORNIA’S METHOD OF SELECTING ELECTORS

2

IS UNCONSTITUTIONAL

3

28.

California’s WTA method of selecting Electors violates the Fourteenth

4 Amendment’s command that no State may “deny to any person within its
5 jurisdiction the equal protection of the laws.” U.S. Const. amend. XIV, § 1. It also
6 violates the First Amendment by unduly burdening the rights of the citizens of

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7 California to associate and to effectively express their political preferences through
8 voting. See U.S. Const. amend. I, § 1.
9

29.

Under Article II, Section 1 of the United States Constitution, each state

10 is required to appoint the same number of Electors as it has Senators and
11 Representatives. U.S. Const. art. II, § 1. These Electors are tasked with electing the
12 President and Vice President of the United States. Id.
13

30.

While Article II, Section 1 grants the states “extensive power” to “pass

14 laws regulating the selection of electors,” it cannot be “thought that the power to
15 select electors could be exercised in such a way as to violate express constitutional
16 commands that specifically bar States from passing certain kinds of laws.” Rhodes,
17 393 U.S. at 29. The Supreme Court has made clear “that no State can pass a law
18 regulating elections that violates the Fourteenth Amendment’s command that No
19 State shall deny to any person the equal protection of the laws.” Id. (internal
20 quotation marks and ellipses omitted). “No right is more precious in a free country
21 than that of having a voice in the election of those who make the laws under which,
22 as good citizens, we must live. Other rights, even the most basic, are illusory if the
23 right to vote is undermined. Our Constitution leaves no room for classification of
24 people in a way that unnecessarily abridges this right.” Wesberry v. Sanders, 376
25 U.S. 1, 17–18 (1964).
26

31.

In California, as in the rest of the country, citizens do not vote directly

27 for President. Instead, they vote for Electors, who then cast their votes in a direct
28 election for President. California has chosen to adopt a WTA system for
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1 determining Electors. Under this system, all of California’s fifty-five Electors are
2 members of the political party that nominated the candidate that wins the popular
3 vote in the state. The consequence of this system is to give no effect to the votes of
4 citizens who voted for a losing candidate in California in the tabulation of the final
5 vote for President. California’s WTA system violates the “one person, one vote”
6 principle, long enshrined in Fourteenth Amendment Supreme Court jurisprudence,

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7 because votes for a losing presidential candidate are counted in California only to be
8 discarded when another candidate wins more votes in California. In other words, if
9 an individual does not vote for the winning candidate in California, that person’s
10 vote translates into no representation in the state’s multi-member Electoral College
11 delegation.
12

A.

13
14

The WTA Method of Determining Electors Violates the “One Person,
One Vote” Principle and the Fourteenth Amendment

32.

In 2016, 31.6% of voters in California voted for the Republican

15 candidate for President. Despite this significant bloc of support, every single
16 Republican vote was systemically discarded under the WTA method of selecting
17 Electors.
18

33.

Such systemic discarding of votes occurs in election after election in

19 California. In the last five presidential elections, the Republican candidate for
20 President received at least 30% of the vote—31.6% in 2016 (4,483,810 votes),
21 37.1% in 2012 (4,839,958 votes), 36.9% in 2008 (5,011,781 votes), 44.3% in 2004
22 (5,509,826 votes), and 41.6% in 2000 (4,567,429 votes). In each of these elections,
23 the entirety of California’s Electors went to Democratic candidates, cancelling the
24 votes of Republican voters. Combined, California has discarded almost 25 million
25 presidential votes since the year 2000. During the same period, Democratic
26 candidates received over 37 million popular votes, but those votes were unduly
27 magnified in each election and translated into the election of 274 total Electors, and
28
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1 274 total electoral votes cast for Democratic presidential nominees. During the
2 same period, California selected zero Republican Electors.
3

34.

The inequitable nature of the current system of determining Electors

4 has been recognized by both major parties. As Saul Anuzis, the former Chairman of
5 the Michigan Republican Party, stated, “This is, to me, a nonpartisan issue. It’s a
6 question of what is the right way to elect a president. In every other office in the

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7 land, we elect the person who gets the most votes, from dog catcher to governor.”
8 Eliza Newlin Carney, GOP Nonprofit Backs Electoral College, Roll Call (Dec. 7,
9 2011, 12:57 PM), http://www.rollcall.com/news/GOP-Nonprofit-Backs-Electoral10 College-210872-1.html.
11

35.

Democrats also share this view. For example, Representative James

12 Clyburn, when writing on the WTA system of selecting Electors, stated, “My
13 position has always been that winner-take-all elections trample on the variety of
14 voices in our diverse country. Winner-take-all elections by their very nature mean
15 that the highest vote getter wins, even if the margin of victory is only one vote.”
16 James Clyburn, Representative James Clyburn: Mend It, The American Prospect
17 (Dec. 19, 2001), http://prospect.org/article/flunking-electoral-college. Similarly,
18 retired Senate Minority Leader Harry Reid called the Electoral College “very
19 undemocratic.” Chris Sanchez, ‘UNDEMOCRATIC’: Harry Reid goes in on the
20 Electoral College, Business Insider (Dec. 13, 2016, 10:54 PM),
21 http://www.businessinsider.com/electoral-college-undemocratic-harry-reid-trump22 hillary-clinton-2016-12.
23

36.

The “one person, one vote” principle means that California may not

24 “value one person’s vote over that of another.” Bush, 531 U.S. at 104–05. The
25 Supreme Court laid the groundwork for the “one person, one vote” principle over
26 fifty years ago in Baker v. Carr, 369 U.S. 186 (1962), in which it recognized a right
27 to vote “free of arbitrary impairment by state action” whether “such impairment
28 resulted from dilution by a false tally, or by a refusal to count votes from arbitrarily
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1 selected precincts, or by a stuffing of the ballot box.” Id. at 208 (internal citations
2 omitted).
3

37.

“One person, one vote” was first articulated the following year in Gray

4 v. Sanders, 372 U.S. 368 (1963), which involved a challenge to Georgia’s system
5 for allocating votes in the primary for statewide office. The Court invalidated
6 Georgia’s system because the candidate winning the popular vote in the county

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7 under that system would receive “the entire unit vote of that county,” with “other
8 votes for a different candidate being worth nothing and being counted only for the
9 purpose of being discarded.” Gray, 372 U.S. at 381 n.12 (emphasis added). In so
10 holding, the Court stressed: “The conception of political equality from the
11 Declaration of Independence, to Lincoln’s Gettysburg Address, to the Fifteenth,
12 Seventeenth, and Nineteenth Amendments can mean only one thing—one person,
13 one vote.” Id. at 381.
14

38.

“Over the ensuing decades, the Court has several times elaborated on

15 the scope of the one-person, one-vote rule.” Evenwel v. Abbott, 136 S. Ct. 1120,
16 1124 (2016). The Supreme Court applied “one person, one vote” to invalidate a
17 scheme for the apportionment of seats in the Alabama legislature, see Reynolds v.
18 Sims, 377 U.S. 533, 563 (1964) (applying “one person, one vote” to strike down
19 method for counting votes and highlighting that weighting “the votes of citizens
20 differently, by any method or means, merely because of where they happen to
21 reside, hardly seems justifiable”), and to a system placing Electors for a new party
22 on the ballot, see Moore v. Ogilvie, 394 U.S. 814, 819 (1969) (concluding “The idea
23 that one group can be granted greater voting strength than another is hostile to the
24 one man, one vote basis of our representative government”).
25

39.

Only one case involving the constitutionality of a WTA system in the

26 context of presidential elections has reached the Supreme Court and, in that case, the
27 Court summarily affirmed the lower court’s decision without an opinion. Williams
28 v. Va. State Bd. of Elections, 288 F. Supp. 622 (E.D. Va. 1968), summarily aff’d
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1 without opinion, 393 U.S. 320 (1969). In Williams, the plaintiffs brought an Equal
2 Protection Clause challenge to Virginia’s WTA system for selecting Electors before
3 a three-judge panel. The panel acknowledged “discrimination against the minority
4 voters” because “once the electoral slate is chosen, it speaks only for the element
5 with the largest number of votes.” Id. at 627. It nonetheless dismissed the
6 complaint, ruling that “in a democratic society the majority must rule, unless the

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7 discrimination is invidious.” Id. (emphasis added). The panel found that “No such
8 evil has been made manifest” and dismissed the complaint. Id.
9

40.

To the extent that there was once an invidiousness requirement to a

10 Fourteenth Amendment claim involving violation of the “one person, one vote”
11 principle, the Court’s decision in Bush v. Gore, 531 U.S. 98 (2000) removed it.
12 There, the Supreme Court invalidated Florida’s process for recounting votes in the
13 2000 presidential election for violating the “one person, one vote” principle.
14 Notably, there was no suggestion that any unequal treatment of votes under
15 Florida’s process was invidious. See id. at 105; see also id. at 104 (“When the state
16 legislature vests the right to vote for President in its people, the right to vote as the
17 legislature has prescribed is fundamental; and one source of its fundamental nature
18 lies in the equal weight accorded to each vote and the equal dignity owed to each
19 voter.”); id. at 107 (holding that “‘the idea that one group can be granted greater
20 voting strength than another is hostile to the one man, one vote basis of our
21 representative government’”) (quoting Moore, 394 U.S. at 819 (alteration omitted)).
22

B.

The WTA Method of Determining Electors Violates the Right to

23

Associate Protected by the First and Fourteenth Amendments to the

24

United States Constitution

25

41.

The right to associate is protected under the First and Fourteenth

26 Amendments. “It is beyond debate that freedom to engage in association for the
27 advancement of beliefs and ideas is an inseparable aspect of the ‘liberty’ assured by
28
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1 the Due Process Clause of the Fourteenth Amendment, which embraces freedom of
2 speech.” NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 460 (1958).
3

42.

The Supreme Court has long held that “political belief and association

4 constitute the core of those activities protected by the First Amendment.” Elrod v.
5 Burns, 427 U.S. 347, 356 (1976). The “right of individuals to associate for the
6 advancement of political beliefs” and “the right of qualified voters, regardless of

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7 their political persuasion, to cast their votes effectively” are “overlapping” rights
8 that “rank among our most precious freedoms.” Rhodes, 393 U.S. at 30.
9

43.

California’s WTA selection of Electors deprives Plaintiffs of their First

10 and Fourteenth Amendment associational rights based solely on Plaintiffs’ political
11 association and expression of political views at the ballot box.
12

44.

California’s WTA selection of Electors discards Plaintiffs’ votes for

13 President, limiting Plaintiffs’ ability to express their political preference. When
14 Plaintiffs express their political preference through a vote for the Republican or
15 third-party candidate, California’s WTA selection of Electors ensures that Plaintiffs’
16 voices are not heard and Plaintiffs’ votes do not count toward the selection of
17 Electors. Plaintiffs each become an “unequal participant in the decisions of the
18 body politic.” Whitford v. Gill, 218 F. Supp. 3d 837, 883 (W.D. Wis. 2016).
19

45.

In 1986, the Supreme Court held that a state law restricting access to

20 primary voting to those who were registered members of the party was
21 unconstitutional because it limited “the Party’s associational opportunities at the
22 crucial juncture at which the appeal to common principles may be translated into
23 concerted action, and hence to political power in the community.” Tashjian v.
24 Republican Party of Conn., 479 U.S. 208, 216 (1986). The associational rights of
25 Plaintiffs and other Republicans and third-party voters in California are similarly
26 restricted due to California’s WTA selection of Electors. Plaintiffs’ votes are
27 discarded “at the crucial juncture at which the appeal to common principles may be
28 translated into concerted action, and hence to political power in the community.” Id.
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-13COMPLAINT FOR DECLATORY AND INJUNCTIVE RELIEF

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1

46.

The WTA system also limits Plaintiffs’ associational rights because it

2 dilutes the power of the Republican and third-party voters in California. As a result,
3 candidates from major political parties rarely hold campaign events in California
4 once they are selected by their parties in the primary. This results in a reduced
5 opportunity for all Californians to interface with and petition the candidates for
6 major political parties in person, and “to express their ideas, hopes, and concerns to

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7 their government and their elected representatives” as is also protected by the
8 Petition Clause of the First Amendment. Borough of Duryea, Pa. v. Guarnieri, 564
9 U.S. 379, 388 (2011).
10

47.

The impact of California’s WTA system is felt nationally as well as

11 locally. Indeed, “in the context of a Presidential election, state-imposed restrictions
12 implicate a uniquely important national interest.” Anderson v. Celebrezze, 460 U.S.
13 780, 794–95 (1983) (footnote call omitted). “Moreover, the impact of the votes cast
14 in each State is affected by the votes cast for the various candidates in other States”
15 and burdens on associational rights may place “a significant state-imposed
16 restriction on a nationwide electoral process.” Id. at 795.
17

48.

California has “a less important interest in regulating Presidential

18 elections than statewide or local elections, because the outcome of the former will
19 be largely determined by voters beyond the State’s boundaries.” Id. And any
20 regulation of such elections may not contravene constitutional rights. See id. at 788
21 (citing Storer v. Brown, 415 U.S. 724, 730 (1974)).
22

49.

“When deciding whether a state election law violates First and

23 Fourteenth Amendment associational rights,” courts must “weigh the ‘character and
24 magnitude’ of the burden the State’s rule imposes on those rights against the
25 interests the State contends justify that burden, and consider the extent to which the
26 State’s concerns make the burden necessary.” Timmons v. Twin Cities Area New
27 Party, 520 U.S. 351, 358 (1997) (quoting Burdick v. Takushi, 504 U.S. 428, 434
28 (1992)).
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50.

California’s WTA selection of Electors poses a severe burden on

2 Plaintiffs’ associational rights that is not outweighed by any legitimate state interest.
3

C.

4
5

The WTA System Makes United States Elections More Vulnerable to
Outside Influences

51.

As government reports have concluded, “Russian intelligence accessed

6 elements of multiple state or local electoral boards. Since early 2014, Russian

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7 intelligence has researched US electoral processes and related technology and
8 equipment.” U.S. Office of the Dir. of Nat’l Intelligence, Background to “Assessing
9 Russian Activities and Intentions in Recent US Elections”: The Analytic Process
10 and Cyber Incident Attribution, at 3 (2017),
11 https://www.dni.gov/files/documents/ICA_2017_01.pdf. “Russia’s effort to
12 influence the 2016 US presidential election represented a significant escalation in
13 directness, level of activity, and scope of effort compared to previous operations
14 aimed at US elections.” Id. at 5. Efforts from the outside to influence the outcome
15 of United States elections strike at the core of our democracy.
16

52.

The current WTA system makes our election system more vulnerable

17 to outside attacks, as prevailing under that system usually depends on gaining a
18 majority in a handful of battleground states. As one commentator explained: “It is
19 true that our decentralized, precinct-by-precinct system would make a coordinated
20 national vote hack a massive undertaking. But given that our elections usually come
21 down to a few predictable states, swaying even a national election is not as hard a
22 task as it once seemed. Sowing chaos at the district or precinct level appears to be
23 within hackers’ current capabilities.” Suzanne Mello-Stark, It’s now clear US
24 voting is hackable. Here are 6 things we must do to prevent chaos, Vox (June 16,
25 2017, 10:50 AM), https://www.vox.com/the-big-idea/2017/6/16/15816510/voting26 security-hacks-russia-georgia-election.
27

53.

Under a more equitable and constitutional method of selecting Electors,

28 the risk of an outside influence changing the outcome of a presidential election is
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1 greatly reduced. The votes of citizens in each state become meaningful and the
2 outcomes of elections do not boil down to the winner of a few easily predictable
3 states.

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Count I – Fourteenth Amendment to the United States Constitution

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54.

Plaintiffs reallege and incorporate all prior paragraphs of this

7 Complaint.
8

55.

California’s WTA system for selecting Electors results in the votes of

9 citizens who voted for a losing candidate in the state not being counted in the final
10 direct election for President. Accordingly, California’s WTA method of
11 determining Electors violates the “one person, one vote” principle and the
12 Fourteenth Amendment to the United States Constitution.
13

56.

Unless enjoined by order of this Court, Defendants will continue to

14 violate the Fourteenth Amendment to the United States Constitution by
15 implementing the WTA method of selecting Electors.
16

Count II – First and Fourteenth Amendments to the

17

United States Constitution

18

57.

Plaintiffs reallege and incorporate all prior paragraphs of this

19 Complaint.
20

58.

California’s WTA system poses a severe burden on Plaintiffs’ rights to

21 associate and to effectively express their political preference through voting that is
22 not outweighed by any legitimate state interest. Accordingly, California’s WTA
23 method of determining Electors violates the First and Fourteenth Amendments to
24 the United States Constitution.
25

59.

Unless enjoined by order of this Court, Defendants will continue to

26 violate the First and Fourteenth Amendments to the United States Constitution by
27 implementing the WTA method of selecting Electors.
28
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-16COMPLAINT FOR DECLATORY AND INJUNCTIVE RELIEF

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1
2

ATTORNEYS’ FEES
60.

In accordance with 52 U.S.C. § 20510 and 42 U.S.C. § 1988, Plaintiffs

3 are entitled to recover reasonable attorney’s fees, expenses, and costs.
4
5
6

PRAYER FOR RELIEF
1.

WHEREFORE, Plaintiffs respectfully request that this Court:
a.

declare that California’s current method of selecting Electors

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7

under California Elections Code Sections 6901, 6902, 6906,

8

15400, 15452, and 15505, and any other related section, is

9

unlawful because it (1) treats California citizens who vote for a

10

losing candidate in an arbitrary and disparate manner in violation

11

of the Fourteenth Amendment of the United States Constitution;

12

and (2) burdens these citizens’ rights to associate and to express

13

their political preference effectively through voting in violation

14

of the First and Fourteenth Amendments to the United States

15

Constitution;

16

b.

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18

declare that Plaintiffs’ rights will be irreparably harmed without
injunctive or declaratory relief from this Court;

c.

enjoin Defendants from selecting Electors under the challenged

19

WTA system, or any other system that fails to treat each

20

California citizen’s vote for the President in an equal manner,

21

including selection by Congressional District vote;

22

d.

set reasonable deadlines for state authorities to propose and then

23

implement a method of selecting Electors that treats each

24

California citizen’s vote for the President in an equal manner,

25

making clear that such a system cannot include selection by

26

Congressional District vote;

27
28

e.

if state authorities fail to propose or implement a valid method of
selecting Electors by the Court’s deadlines, order a proportional
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-17COMPLAINT FOR DECLATORY AND INJUNCTIVE RELIEF

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1

method of distributing Electors, selecting a proportional number

2

of Electors to each party, based on the number of votes each

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party’s candidate receives statewide;

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f.

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attorneys’ fees and costs;
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adjudge all costs against Defendants, including reasonable
retain jurisdiction to render any and all further orders that this
Court may deem necessary in order to ensure compliance; and

h.

grant any and all further relief to which Plaintiffs may show
themselves to be entitled.

10 DATED: February 21, 2018

BOIES SCHILLER FLEXNER LLP

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By

/s/ Robyn C. Crowther
ROBYN C. CROWTHER

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ROBYN C. CROWTHER State Bar No. 193840
[e-mail]
TREVOR P. STUTZ, State Bar No. 296882
[e-mail]
BOIES SCHILLER FLEXNER LLP
725 South Figueroa Street, 31st Floor
Los Angeles, California 90017-5524
Telephone: [phone]
Facsimile: [phone]
DAVID BOIES (Pro Hac Vice Pending)
[e-mail]
BOIES SCHILLER FLEXNER LLP
333 Main Street
Armonk, NY 10504
Telephone: [phone]
Facsimile: [phone]

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JAMES P. DENVIR, III (Pro Hac Vice Pending)
[e-mail]
AMY J. MAUSER (Pro Hac Vice Pending)
[e-mail]
KAREN L. DUNN (Pro Hac Vice Pending)
[e-mail]
Case No.
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LISA BARCLAY (Pro Hac Vice Pending)
[e-mail]
AMY L. NEUHARDT (Pro Hac Vice Pending)
[e-mail]
HAMISH P.M. HUME (Pro Hac Vice Pending)
[e-mail]
BOIES SCHILLER FLEXNER LLP
1401 New York Avenue, N.W.
Washington, D.C. 20005
Telephone: [phone]
Facsimile: [phone]
LUIS ROBERTO VERA, JR. (Pro Hac Vice
Pending)
[e-mail]
LULAC NATIONAL GENERAL COUNSEL
Attorney and Counselor at Law
1325 Riverview Towers, 111 Soledad
San Antonio, Texas 78205-2260
Telephone: [phone]
Facsimile: [phone]
MICHAEL D. HAUSFELD (Pro Hac Vice
Pending)
[e-mail]
SWATHI BOJEDLA (Pro Hac Vice Pending)
[e-mail]
HAUSFELD LLP
1700 K Street, NW
Suite 650
Washington, DC 20006
Telephone: [phone]
Facsimile: [phone]
SCOTT A. MARTIN State Bar No. 173329
[e-mail]
IRVING SCHER (Pro Hac Vice Pending)
[e-mail]
JEANETTE BAYOUMI (Pro Hac Vice Pending)
[e-mail]
HAUSFELD LLP
33 Whitehall Street, 14th Floor
New York, NY 10004
Telephone: [phone]
Facsimile: [phone]
MATT HERRINGTON (Pro Hac Vice Pending)
[e-mail]
ROGER E. WARIN (Pro Hac Vice Pending)
[e-mail]
Case No.
-19COMPLAINT FOR DECLATORY AND INJUNCTIVE RELIEF

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JOE R. CALDWELL, JR. (Pro Hac Vice Pending)
[e-mail]
STEPTOE & JOHNSON LLP
1330 Connecticut Avenue, NW
Washington, DC 20036
Telephone: [phone]
Facsimile: [phone]
JENNIFER D. HACKETT (Pro Hac Vice Pending)
[e-mail]
JAMES R. MARTIN (Pro Hac Vice Pending)
[e-mail]
ALLISON M. VISSICHELLI (Pro Hac Vice
Pending)
[e-mail]
ZELLE LLP
1775 Pennsylvania Ave. NW, Ste. 375
Washington, D.C. 20008
Telephone: [phone]
Facsimile: [phone]
RANDALL L. ALLEN State Bar No. 264067
[e-mail]
ALSTON & BIRD LLP
1201 West Peachtree Street
Atlanta, GA 30309-3424
Telephone: [phone]
Facsimile: [phone]
SAMUEL ISSACHAROFF (Pro Hac Vice Pending)
[e-mail]
40 Washington Square South
New York, NY 10012
Telephone: [phone]
MARIA AMELIA CALAF (Pro Hac Vice Pending)
[e-mail]
JACK A. SIMMS JR. (Pro Hac Vice Pending)
[e-mail]
RYAN A. BOTKIN (Pro Hac Vice Pending)
[e-mail]
KATHERINE P. CHIARELLO (Pro Hac Vice
Pending)
[e-mail]
KAREN S. VLADECK (Pro Hac Vice Pending)
[e-mail]
WITTLIFF | CUTTER | AUSTIN, PLLC
1803 West Ave.
Austin, Texas 78701
Telephone: [phone]
Facsimile: [phone]
Case No.
-20COMPLAINT FOR DECLATORY AND INJUNCTIVE RELIEF

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MARK GUERRERO (Pro Hac Vice Pending)
[e-mail]
MARY WHITTLE (Pro Hac Vice Pending)
[e-mail]
GUERRERO & WHITTLE PLLC
114 West 7th Street, Suite 1100
Austin, TX 78701
Telephone: [phone]
Facsimile: [phone]

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Counsel for Plaintiffs

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Case No.
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