Lyman et al v. Baker et al

Filing 52

Chief Judge Patti B. Saris: MEMORANDUM AND ORDER entered. The defendants' motion to dismiss (Dkt. No. 21 ) is ALLOWED. (Geraldino-Karasek, Clarilde)

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UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
___________________________________
)
RICHARD J. LYMAN, WILLIAM F. WELD, )
and ROBERT D. CAPODILUPO,
)
)
Plaintiffs,
)
)
Civil Action
v.
)
No. 18-10327-PBS
)
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.
)
______________________________
)
MEMORANDUM AND ORDER
December 7, 2018
Saris, C.J.
INTRODUCTION
The plaintiffs, two Republicans and one Libertarian,
challenge the constitutionality of Massachusetts’s system for
allocating electors in presidential elections. The plaintiffs
have voted and plan to continue voting in Massachusetts for
presidential candidates who are not members of the Democratic
Party. They allege that their votes for these candidates are
effectively discarded because Massachusetts has adopted a
“winner-take-all” (“WTA”) system for selecting electors. In this
system, the candidate receiving the most votes in Massachusetts

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is awarded all of the Commonwealth’s electors, with the other
candidates receiving no electors. The plaintiffs seek a
declaration that this system violates the United States
Constitution -- both the “one person, one vote” principle rooted
in the Equal Protection Clause of the Fourteenth Amendment
(Count I) and the voters’ freedom of association protected by
the First and Fourteenth Amendments (Count II). In their view,
the Constitution requires a “more equitable” method for
distributing electors, one that allocates electors
proportionately to parties.
The Complaint seeks a declaration that the WTA system is
unconstitutional and a corresponding injunction. It also asks
the Court to impose a deadline by which state authorities must
implement a valid method of selecting electors.
The defendants have moved to dismiss based on Rule 12(b)(1)
and Rule 12(b)(6) of the Federal Rules of Civil Procedure. After
hearing, the Court concludes that the Massachusetts winner-takeall system of selecting electors in presidential elections is
constitutional. The motion to dismiss (Dkt. No. 21) is ALLOWED.
FACTUAL BACKGROUND
The following facts are drawn from the Complaint.
I.

The Parties
Plaintiff William F. Weld is a registered Libertarian and

the former Republican Governor of Massachusetts. Plaintiffs
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Richard J. Lyman and Robert D. Capodilupo are registered
Republicans. All three plaintiffs are Massachusetts residents.
They have consistently voted for non-Democratic candidates for
president, and they intend to continue to do so in future
presidential elections.
Defendant Charles D. Baker is the Governor of
Massachusetts. Defendant William Francis Galvin is the Secretary
of the Commonwealth, and his office administers elections. Both
are sued in their official capacities.
II.

Winner-Take-All Selection of Electors
Massachusetts, along with 47 other states and the District

of Columbia, has adopted statutes under which its electors for
president and vice president are appointed on a winner-take-all
(“WTA”) basis. See Mass. Gen. Laws ch. 54, § 118 (stating that
electors “who have received the highest number of votes . . .
shall . . . be deemed to be elected”). Under this system, the
political party of the candidate who receives the most votes in
Massachusetts appoints all of the Commonwealth’s electors. See
id. For example, in 2016, Secretary Hillary Clinton received 60
percent of the votes in Massachusetts and all of its electors.
President Donald Trump received 32.8 percent of the
Massachusetts vote, but none of its electors.
The end result of the WTA system is that the top votegetter receives all of the Commonwealth’s electors, and the
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other candidates receive no electors. This is true regardless of
whether the winning candidate earns a majority or a mere
plurality of the popular vote. See Mass. Gen. Laws ch. 54, § 118
(requiring governor and secretary of state to collect names of
presidential electors who receive more than one-fifth of entire
number of votes cast for electors and deeming the highest votegetter the winner). And it applies regardless of whether the
candidate wins by a large margin or a slim one. See id.
The plaintiffs allege that the WTA system weakens the
influence of Massachusetts voters in presidential elections.
They claim that the WTA system leads candidates to focus
disproportionate attention on “battleground” states that
represent only 35 percent of eligible voters nationwide. In
addition, they allege that the WTA system facilitates outside
interference in presidential elections because a small number of
voters in predictable battleground states exert undue influence
over the presidential election results.
DISCUSSION
I.

Standing
Moving to dismiss pursuant to Fed. R. Civ. P. 12(b)(1), the

defendants’ attack the plaintiffs’ standing to bring this case.
To satisfy standing, “[t]he party invoking federal jurisdiction
bears the burden of establishing [three] elements.” Lujan v.
Defs. of Wildlife, 504 U.S. 555, 561 (1992). First, the
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plaintiff must have suffered an “injury in fact” -- that is, an
invasion of a legally protected interest which is both “concrete
and particularized,” and “actual or imminent,” as opposed to
“conjectural or hypothetical.” Id. at 560. “Second, there must
be a causal connection between the injury and the conduct
complained of.” Id. “Third, it must be ‘likely,’ as opposed to
merely ‘speculative,’ that the injury will be ‘redressed by a
favorable decision.’” Id. at 561 (quoting Simon v. Eastern Ky.
Welfare Rights Org., 426 U.S. 26, 38, 43 (1976)).
In their brief, the defendants attacked two of these
requirements: injury-in-fact and redressability. At oral
argument, the parties agreed that the injury-in-fact analysis
overlaps with the merits of the plaintiffs’ constitutional
claims. In other words, if WTA is unconstitutional, then the
plaintiffs have suffered an injury-in-fact; otherwise, they have
not. See Erwin Chemerinsky, Federal Jurisdiction § 2.3.2 (4th
ed. 2003) (describing how, in some cases, “deciding whether
there is an injury to a legally protected constitutional
interest . . . requires inquiry into the merits of the case”).
Accordingly, the Court will proceed directly to analyzing
the plaintiffs’ constitutional claims under the well-established
standard for Fed. R. Civ. P. 12(b)(6). On a motion to dismiss
under Rule 12(b)(6), the Court must analyze whether the
complaint contains sufficient factual matter to state a claim to
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relief that is plausible on its face. Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007); Ashcroft v. Iqbal, 556 U.S.
662, 678–79 (2009).
II.

“One Person, One Vote” Claim
The plaintiffs assert that Massachusetts’s WTA system for

allocating electors violates the “one person, one vote”
principle. The defendants argue that this claim is foreclosed by
binding Supreme Court precedent. They also argue that even
without this precedent, the WTA system does not violate “one
person, one vote” because it does not weigh votes in a disparate
or arbitrary fashion. The Court agrees with the defendants on
both points.
A.

Constitutional Backdrop

The United States Constitution provides for election of the
president and vice president by electors. U.S. Const. art. II, §
1. It provides that “[e]ach State shall appoint, in such Manner
as the Legislature thereof may direct, a Number of Electors.”
Id. The number of electors for each state is equal to the sum of
its United States Senators and Representatives. See id.
The method by which the electors select the president and
vice president is set forth in the Twelfth Amendment. See U.S.
Const. amend. XII. The Twelfth Amendment also provides for the
election of the president by the House of Representatives and
the vice president by the Senate when no majority is obtained in
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the electoral college. Id. It has long been observed that the
“electoral college was designed by men who did not want the
election of the President to be left to the people.” Gray v.
Sanders, 372 U.S. 368, 376 n.8 (1963); The Federalist No. 68
(Alexander Hamilton) (describing philosophy behind electoral
college).
B.

The Williams Decision

In Williams v. Va. State Bd. of Elections, 288 F. Supp. 622
(E.D. Va. 1968), aff’d, 393 U.S. 320 (1969), a three-judge panel
of the district court rejected a constitutional challenge to
Virginia’s WTA system for selecting electors in a statewide
general election. 622 F. Supp. at 629. The plaintiffs argued
that the WTA system was unfair because it accorded no
representation among the electors to the minority of voters. Id.
at 623. The plaintiffs in that case specifically pressed the
argument, among others, that the WTA system “violates the ‘oneperson, 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. The Supreme Court had recognized the “one
person, one vote” principle as required by the Equal Protection
Claim several years earlier. See Gray, 372 U.S. at 381 (equating
“political equality” with “one person, one vote”); Reynolds v.
Sims, 377 U.S. 533, 568 (1964) (“[A]n individual’s right to vote
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. . . is unconstitutionally impaired when its weight is in a
substantial fashion diluted when compared with votes of [other]
citizens.”).
After a discussion of the policy arguments against a WTA
system, including the disenfranchisement of voters and the
possibility of “minority candidates” the Court in Williams
stated:
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.
288 F. Supp. at 627. The Supreme Court summarily affirmed
without opinion. Williams v. Va. State Bd. of Elections, 393
U.S. 320 (1969) (per curiam).
C.

Effect of Williams in This Case

The parties disagree over whether Williams controls the
outcome of this case. As a general matter, summary affirmances
from the Supreme Court cannot be read too broadly, and they do
not necessarily endorse the lower court’s reasoning. See Mandel
v. Bradley, 432 U.S. 173, 176 (1977). However, “[t]hey do
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prevent lower courts from coming to opposite conclusions on the
precise issues presented and necessarily decided by those
actions.” Id. For the reasons explained below, the Court
concludes that both prongs are satisfied here, and Williams is
binding.
The plaintiffs begin by arguing that Williams is not
controlling because of two factual distinctions. First, they
point out that Williams involved ballots that listed the names
of the electors, whereas now, in Massachusetts, only the
candidates’ names appear. See Mass. Gen. Laws ch. 54, § 43
(requiring that electors’ names not be printed on ballot). 1
Second, the plaintiffs point out that Virginia’s electors in the
1960s were not bound to vote for their party’s chosen candidate,
whereas Massachusetts’s electors, by statute, are. See Mass.
Gen. Laws ch. 53, § 8 (requiring presidential electors to
“pledge . . . to vote for the candidate named in the filing”).
But the Court in Williams did not rely on these factors, and the
plaintiffs shed no light on why these distinctions make any
meaningful difference in this case. The Court concludes that
they have no bearing on the close similarity between the issues
decided in Williams and presented in this case.
1

It is worth mentioning that Massachusetts’s ballots list the
candidates’ names immediately below the disclaimer, “Electors of
president and vice president.” Mass. Gen. Laws ch. 54, § 43. In this
way, voters are made aware that they are voting for a slate of
electors, not the candidates directly.

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The plaintiffs next argue that “important doctrinal shifts”
since Williams diminish its precedential value. First, they
point out that White v. Regester, 412 U.S. 755 (1973), struck
down the use of a multi-member at-large voting district. The
plaintiffs overstate the importance of this holding vis-à-vis
Williams. White concerned the 1970 reapportionment plan for the
Texas House of Representatives. Id. at 756. The Court first
rejected the lower court’s holding that a 9.9 percent population
differential between districts, standing alone, made out a prima
facie equal protection violation. Id. at 763. After pointing out
that it has “entertained claims that multimember districts are
being used invidiously to cancel out or minimize the voting
strength of racial groups,” the Supreme Court then affirmed the
lower court’s determination that two specific multimember
districts were unconstitutional in light of the state’s history
of discrimination against African-American and Mexican-American
citizens. Id. at 765-70. The White Court carefully limited its
holding, emphasizing that “multimember districts are not per se
unconstitutional.” Id. at 765.
The plaintiffs do not explain how this holding undercuts
the strength of Williams -- and indeed, it does not. The
plaintiffs argue that Massachusetts’ WTA system is
indistinguishable from the ones that White found to “invidiously
. . . cancel out or minimize the voting strength” of particular
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groups. Id. at 765. But White is readily distinguishable. Unlike
White, the plaintiffs here have alleged no facts to suggest that
Massachusetts’s WTA system was adopted to cancel out the voting
strength of any particular group. Rather, as discussed in more
detail below, the voting process that underlies the WTA system
in Massachusetts is “equally open to participation” by all
voters. Id. at 766.
Second, the plaintiffs argue that Bush v. Gore, 531 U.S. 98
(2000), eliminated the invidiousness requirement from “one
person, one vote” claims. In Bush, the Supreme Court held:
“Having 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.” 531 U.S. at 104-05. Framed
this way, the plaintiffs seem to be suggesting that, prior to
Bush, a “one person, one vote” claim required proof of conduct
that was invidious, but after Bush, arbitrary and disparate
treatment of voters is sufficient.
For starters, the precedential value of Bush is unclear, as
the main opinion expressly states that it is “limited to the
present circumstances.” 531 U.S. at 109. In light of this
cautious language, it is unlikely the Supreme Court intended to
overturn Williams. Moreover, Bush does not discuss Williams or
the precise issue decided in it. The Supreme Court “does not
normally overturn, or . . . dramatically limit, earlier
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authority sub silentio.” Shalala v. Ill. Council on Long Term
Care, Inc., 529 U.S. 1, 18 (2000).
The plaintiffs are correct that some pre-Bush Supreme Court
opinions indicate a violation of the Equal Protection Clause
requires proof of invidiousness. See, e.g., 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.”). But then again, so do some post-Bush
opinions. See, e.g., Harris v. Ariz. Indep. Redistricting
Comm’n, 136 S.Ct. 1301, 1307 (2017) (“[M]inor deviations from
mathematical equality do not, by themselves, make out a prima
facie case of invidious discrimination under the Fourteenth
Amendment . . . .”) (citation and quotation marks omitted).
In short, the plaintiffs’ argument fails to appreciate
that, over time, the Supreme Court has recognized at least two
types of “one person, one vote” violations -- those based on
invidious discrimination, and those based on arbitrary and
disparate treatment of voters. In Roman v. Sincock, the Court
explained that the Equal Protection Clause requires “faithful
adherence to a plan of population-based representation,” with
minor deviations permissible only when “free from any taint of
arbitrariness or discrimination.” 377 U.S. 695, 710 (1964)
(emphasis added). The disjunctive language is consistent with
Bush in that it indicates that arbitrariness may suffice to
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prove a “one person, one vote” violation, even in the absence of
invidious discrimination. See also Hunter v. Hamilton Cty. Bd.
of Elections, 635 F.3d 219, 234 & n.13 (6th Cir. 2011) (using
“arbitrary and disparate” standard for Equal Protection
challenge, and noting that “a showing of intentional
discrimination has not been required” in prior Supreme Court
cases). 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)). Accordingly, Bush did not
alter the doctrinal requirements of “one person, one vote”
claims.2
In short, in light of the absence of any material factual
difference or doctrinal shifts, the Court concludes that the
Supreme Court’s summary affirmance in Williams is binding
precedent that requires dismissal of the plaintiffs’ claims.
D.

WTA and the Equal Protection Clause

Even if the Court were not bound by Williams, the
plaintiffs’ claims would still fail for reasons that
substantially mirror those given by the three-judge panel in

2

Even if it had, this would have no bearing on the outcome of this
motion. For the reasons explained below, Massachusetts’s WTA system
does not invidiously discriminate or treat voters in an arbitrary and
disparate fashion.

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that case. The WTA system for selecting electors simply does not
violate the “one person, one vote” principle the way it has been
described so far by the Supreme Court.
The plaintiffs’ first obstacle is the text of the
Constitution. Article II of the Constitution authorizes each
state to appoint electors “in such Manner as the [state]
Legislature . . . may direct.” U.S. Const. art. II, § 1. The
Supreme Court long ago observed that “from the formation of the
government until now the practical construction of [this] clause
has conceded plenary power to the state legislatures in the
matter of the appointment of electors.” McPherson v. Blacker,
146 U.S. 1, 35 (1892) (emphasis added). For example, a state
legislature could mandate appointment by the people (either at
large or in districts), by the legislature itself, by the
governor, or by the state supreme court. See id.
Of course, this does not permit states to choose a method
that violates some other provision of the Constitution. And the
plaintiffs here argue that the WTA system chosen by the
Massachusetts legislature violates the “one person, one vote”
rule. The essence of the rule is that, once a geographical unit
for a representative is established, “all who participate in
[an] election are to have an equal vote -- whatever their race,
whatever their sex, whatever their occupation, whatever their

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income, and wherever their home may be in that geographical
unit.” Gray, 372 U.S. at 379.
On its face, the WTA system in Massachusetts makes none of
these forbidden distinctions. Nor does it necessarily cause
“arbitrary and disparate treatment of the members of [the]
electorate.” Bush, 531 U.S. at 105. The WTA system, standing
alone, does not treat voters differently at all. Massachusetts
counts all presidential and vice-presidential votes equally, and
then awards its electors to whichever party’s candidate obtains
the most votes. In short, this system complies with equal
protection because it does not inherently favor or disfavor a
particular group of voters. See McPherson, 146 U.S. at 40 (“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.”).
The heart of the plaintiffs’ assertion of unfairness
revolves around their understanding that Massachusetts’s WTA
system functions as a two-step election. First, voters cast
ballots for presidential candidates. Second, the votes are
tallied, and the WTA system awards all of the Commonwealth’s
electors to the winner and zero electors to the candidates of
the non-dominant parties. The plaintiffs argue that, in this
way, the WTA system discards the votes for the non-dominant
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candidates because of where those voters live and the political
party with which they associate.
According to the plaintiffs, such a two-step system closely
resembles one the Supreme Court declared unconstitutional in
Gray. There, the Georgia legislature implemented a “county unit”
system for electing statewide representatives. Gray, 372 U.S. at
371. The county unit system allowed the candidate who won the
popular vote in a county to obtain the entire unit vote of that
county. Id. at 381 n.12. “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. The end result of this 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.”
Id. at 379. This, the Court held, violated the “one person, one
vote” principle. Id. at 381.
The plaintiffs’ analogy to Gray falls short. Indeed, Gray
itself expressly distinguished any resemblance between the
county unit system and the electoral college as “inapposite.”
Id. at 378. The Court also noted that, unlike the county unit
system, “[t]he inclusion of the electoral college in the
Constitution, as the result of specific historical concerns,
validated the collegiate principle despite its inherent
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numerical inequality . . . .” Id. (footnote omitted) (emphasis
added). In other words, even accepting the plaintiffs’
contention that the electoral college is numerically unfair,
Gray teaches that this is an inequality with which we must live
because it is embedded in the Constitution.
Moreover, the core constitutional problem from Gray is
absent from the WTA system in Massachusetts. Granted, there are
some superficial similarities between Gray’s county unit system
and the electoral college. But what the Supreme Court deemed
unconstitutional in Gray was not the use of any unit system, but
rather the effect that this particular unit system had in
disparately weighing votes. Under Gray’s unit system, one unit
vote in a rural county represented over 900 residents, whereas
the same vote in a rural county represented over 92,000
residents. Id. at 371. This disparity rendered the system
unconstitutional. See id. at 379. But the plaintiffs have not
explained how Massachusetts’s WTA system inflicts a similar
harm.
To the extent that the plaintiffs desire nevertheless to
invalidate this system and establish a proportionate one, that
is not something this Court is empowered to do. See Williams,
288 F. Supp. at 629 (opining that any “proposed limitation on
the selection by the State of its presidential electors would
require a Constitutional amendment”); see also City of Mobile,
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Ala. v. Bolden, 446 U.S. 55, 77–79 (1980) (upholding at-large
city commissioner elections and noting that Supreme Court “has
sternly set its face against the claim, however phrased, that
the Constitution somehow guarantees proportional
representation”); Whitcomb v. Chavis, 403 U.S. 124, 158-60
(1971) (holding that multimember districts for state general
assembly -- despite “their winner-take-all aspects” -- did not
violate Equal Protection Clause “simply because the supporters
of losing candidates have no legislative seats assigned to
them”).
The Court also observes that other lower courts have
rejected similar equal protection challenges to WTA systems. See
Williams v. North Carolina, Civ. No. 17-00265, 2017 WL 4935858,
at *1 (W.D.N.C. Oct. 31, 2017), aff’d sub nom. Williams v. N.C.
State Bd. of Elections, 719 F. App’x 256 (4th Cir. 2018)
(rejecting plaintiff’s challenge to North Carolina’s WTA system
as “decisively foreclosed by binding precedent”); Conant v.
Brown, 248 F. Supp. 3d 1014, 1025 (D. Or. 2017) (noting that
“Williams is still good law” which defeated plaintiff’s
challenge to Oregon’s WTA system), aff’d, 726 F. App’x 611 (9th
Cir. 2018).
There may be valid policy arguments for and against a WTA
system for appointing electors -- and, indeed, for and against
the electoral college itself. Under the Constitution and Supreme
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Court precedent, though, Massachusetts’s WTA system does not
violate the “one person, one vote” rule.
III. Freedom of Association Claim
The plaintiffs’ other constitutional claim is based on the
First Amendment’s protection of the freedom to associate. The
theory behind this claim was most recently articulated in
Justice Kagan’s concurrence in Gill v. Whitford, 138 S. Ct. 1916
(2018). In Gill, the Supreme Court unanimously agreed that a
group of plaintiffs challenging Wisconsin’s legislative
districts as unconstitutionally gerrymandered in violation of
the Equal Protection Clause’s “one person, one vote” principle
had failed to prove that they suffered concrete, individualized
harm for purposes of standing. See 138 S. Ct. at 1923, 1931-32.
Justice Kagan wrote separately to discuss the First
Amendment theory of constitutional harm. Joined by three
justices, she explained that partisan gerrymandering may
“infringe the First Amendment rights of association held by
parties, other political organizations, and their members.” Id.
at 1938 (Kagan, J., concurring). That is, there are “significant
First Amendment concerns . . . when a State purposely subjects a
group of voters or their party to disfavored treatment.” Id.
(citations and quotation marks omitted). This “associational
harm” arises from the reality that a partisan gerrymander may
“ravage[] the party [a citizen] works to support.” Id. Members
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of such a “disfavored party” are “deprived of their natural
political strength” and “may face difficulties fundraising,
registering voters, attracting volunteers, generating support
from independents, and recruiting candidates to run for office
(not to mention eventually accomplishing their policy
objectives).” Id.
Justice Kagan’s opinion drew extensively from the
concurring opinion of Justice Kennedy in Vieth v. Jubelirer, 541
U.S. 267 (2004), another partisan gerrymandering case that
focused on the Equal Protection Clause but included an
alternative theory under the First Amendment. See 541 U.S. at
314 (Kennedy, J., concurring in the judgment). There, Justice
Kennedy opined that “[t]he First Amendment may be the more
relevant constitutional provision in future [partisan
gerrymandering] cases” because the First Amendment prohibits
“burdening or penalizing citizens because of their participation
in the electoral process, their voting history, their
association with a political party, or their expression of
political views.” Id. By “subjecting a group of voters or their
party to disfavored treatment by reason of their views,” the
state improperly infringes on “the ability of citizens to band
together in promoting among the electorate candidates who
espouse their political views.” Id. (quoting California

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Democratic Party v. Jones, 530 U.S. 567, 574 (2000)) (emphasis
added).
The plaintiffs allege that Massachusetts’s WTA system works
a similar harm by “discarding” or “diluting” the votes of
minority party members who, by virtue of WTA, get no voice in
the electoral college. They argue that this amounts to an
improper burden under the First Amendment. But unlike a partisan
gerrymander, Massachusetts’s WTA system does not purposely
burden any particular individual, group, or party “by reason of
[its] views.” Id. Rather, whatever disadvantage the losing party
and its members suffer is a function solely of their lack of
electoral success. The WTA system in Massachusetts sets the
stakes, but it does not help or hurt one group’s chances of
winning the Commonwealth’s electors. As a result, the
plaintiffs’ complaint does not allege an associational burden
for purposes of a First Amendment claim.
IV.

Redressability
The plaintiffs have failed to allege legally cognizable

injuries under the Equal Protection Clause or the First
Amendment. Therefore, they have also failed to allege an injury
to a legally protected interest for purposes of standing. Given
this conclusion, the Court need not reach the issue of
redressability, another prong of the standing inquiry.
Accordingly, I address it only briefly.
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The plaintiffs argue that the Court could redress their
claimed injury simply by preventing the defendants from using
the WTA system “or any other system that fails to treat each
Massachusetts citizen’s vote for the [p]resident in an equal
manner including selection by Congressional District vote.” At
oral argument, the plaintiffs elaborated, asking the Court to
require a system that awards electors in proportion to each
party’s share of the vote for all parties whose share exceeds a
certain (as yet unspecified) threshold.
Ordering a state to implement a particular type of electorallocation system would raise serious constitutional and
federalism concerns. As already discussed, the text of the
Constitution expressly provides that “[e]ach State shall appoint
[its electors] in such Manner as the Legislature thereof may
direct.” U.S. Const. art. II, § 1. The Supreme Court has
interpreted this language to mean that “the state legislature’s
power to select the manner for appointing electors is plenary.”
Bush, 531 U.S. at 104 (2000) (discussing McPherson, 146 U.S. at
35).
Again, it does not follow that a state may exercise this
power “in such a way as to violate express constitutional
commands.” Williams v. Rhodes, 393 U.S. 23, 29 (1968). But here,
the plaintiffs ask the Court to affirmatively dictate what type
of elector-allocation system Massachusetts must use (i.e., one
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that allocates electors in proportion to the votes obtained by
each party). The Court doubts that it has the constitutional
power to order a state to do this. Instead, the plaintiffs’
proposed limitations on a state’s allocation of electors would
require a constitutional amendment. See Williams, 288 F. Supp.
at 629 (“[A]ny other proposed limitation on the selection by the
State of its presidential electors would require a
Constitutional amendment.”). Therefore, the plaintiffs’ claim is
unredressable in federal court.
ORDER
The defendants’ motion to dismiss (Dkt. No. 21) is ALLOWED.

/s/ PATTI B. SARIS
Patti B. Saris
Chief United States District Judge

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