Conant v. Brown et al
OPINION AND ORDER: Defendants' motion to dismiss 19 is granted. Plaintiff's claims are dismissed with prejudice. Signed on 3/29/2017 by Judge Marco A. Hernandez. (jp)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
ROY B. CONANT,
KATE BROWN, Governor, State of
Oregon; JEANNE P. ATKINS, Secretary of
State of the State of Oregon; and ELLEN F.
ROSENBLUM, Attorney General, State of
Roy B. Conant
1833 N.E. 52nd Avenue, No. 3
Portland, Oregon 97213
Plaintiff Pro se
1 - OPINION & ORDER
OPINION & ORDER
Ellen F. Rosenbaum
SENIOR ASSISTANT ATTORNEY GENERAL
Department of Justice
100 S.W. Market Street
Portland OR 97201
Attorneys for Defendants
HERNANDEZ, District Judge:
Plaintiff Roy B. Conant, appearing pro se, brings this voting rights action against Kate
Brown, Governor of the State of Oregon, and Ellen Rosenbaum, Oregon's Attorney General. In
an Amended Complaint filed December 27, 2016, ECF 14, Plaintiff dropped the State of Oregon
as a Defendant and added then-Secretary of State Jeanne Atkins as a Defendant. Because
Plaintiff asserts his claims against Defendants in their official capacities, Am. Compl. 2, ¶¶ 2a2c, and because Dennis Richardson is now Oregon's Secretary of State, I construe the claims as
being brought against Richardson instead of Atkins.
Generally, Plaintiff attacks as unconstitutional certain Oregon statutes governing the
processes for voting in presidential elections. He relies on Section 2 of the Fourteenth
Amendment as the constitutional provision at issue although he mentions other constitutional
provisions as well. He argues that the state law prohibiting the names of the presidential
electors1 themselves from appearing on the ballot violates Section 2 of the Fourteenth
Amendment. He also challenges Oregon's "winner take all" system of awarding presidential
electors based on a majority/plurality vote. Additionally, he argues that Oregon's "closed"
My reference to "presidential electors" includes electors for both president and vicepresident.
2 - OPINION & ORDER
primary system effectively deprives him of the right to vote.
Defendants move to dismiss for lack of subject matter jurisdiction and alternatively, for
failure to state a claim. I address both arguments. I agree with Defendants that Plaintiff's
Amended Complaint fails to contain allegations establishing constitutional standing and I also
conclude that some of Plaintiff's requested relief is moot. Ordinarily, I would allow Plaintiff
leave to amend to attempt to cure the standing defect. However, because I further agree with
Defendants that Plaintiff fails to state a legally cognizable claim, any such amendment would be
futile. As a result, I grant Defendants' motion and I dismiss the claims with prejudice.
I. Subject Matter Jurisdiction
A motion to dismiss brought pursuant to Federal Rule of Civil Procedure 12(b)(1)
addresses the court's subject matter jurisdiction. The party asserting jurisdiction bears the burden
of proving that the court has subject matter jurisdiction over his claims. Kokkonen v. Guardian
Life Ins. Co. of Am., 511 U.S. 375, 377 (1994).
A challenge to standing is appropriately raised pursuant to Federal Rule of Civil
Procedure 12(b)(1). Maya v. Centex Corp., 658 F.3d 1060, 1067 (9th Cir. 2011) ("lack of Article
III standing requires dismissal for lack of subject matter jurisdiction under Federal Rule of Civil
Procedure 12(b)(1)") (emphasis omitted); Chandler v. State Farm Mut. Auto. Ins. Co., 598 F.3d
1115, 1122 (9th Cir. 2010) ("Because standing and ripeness pertain to federal courts' subject
matter jurisdiction, they are properly raised in a Rule 12(b)(1) motion to dismiss.").
To satisfy Article III standing, a plaintiff must show that he or she has suffered an "injury
in fact" and a "causal connection between the injury and the challenged action of the defendant."
3 - OPINION & ORDER
Multistar Indus., Inc. v. U.S. Dep't. of Transp., 707 F.3d 1045, 1054 (9th Cir. 2013) (also noting
third requirement that it be likely, not speculative, that the injury will be "redressed by a
favorable decision") (internal quotation marks omitted). The party seeking to invoke the
subject-matter jurisdiction of the court has the burden of establishing that such jurisdiction exists.
Chandler, 598 F.3d at 1122.
II. Failure to State a Claim
A motion to dismiss for failure to state a claim may be granted only when there is no
cognizable legal theory to support the claim or when the complaint lacks sufficient factual
allegations to state a facially plausible claim for relief. Shroyer v. New Cingular Wireless Servs.,
Inc., 622 F.3d 1035, 1041 (9th Cir. 2010). In evaluating the sufficiency of a complaint's factual
allegations, the court must accept all material facts alleged in the complaint as true and construe
them in the light most favorable to the non-moving party. Wilson v. Hewlett–Packard Co., 668
F.3d 1136, 1140 (9th Cir. 2012). However, the court need not accept unsupported conclusory
allegations as truthful. Holden v. Hagopian, 978 F.2d 1115, 1121 (9th Cir. 1992); see also
Warren v. Fox Family Worldwide, Inc., 328 F.3d 1136, 1139 (9th Cir. 2003) ("we do not
necessarily assume the truth of legal conclusions merely because they are cast in the form of
factual allegations") (internal quotation marks and alterations omitted).
I. Subject Matter Jurisdiction
Defendants correctly characterize the Amended Complaint as lacking in relevant factual
assertions. Other than alleging the office of each named Defendant and Plaintiff's place of birth,
citizenship, and residence, the remainder of the allegations are legal assertions and conclusions.
4 - OPINION & ORDER
There is no factual assertion that Plaintiff is registered to vote in Oregon which would be a
predicate for alleging harm caused by laws governing the post-registration voting process. Also,
Plaintiff baldly concludes that certain Oregon statutes violate the constitutional rights of
unaffiliated voters. However, he does not allege that he is an unaffiliated voter. There are no
factual assertions that he has been injured. The only allegations of harm are conclusory ones
averring that "[h]arm to Plaintiff occurred in concert with the Presidential Primary election of
May 17, 2016; the 2016 Presidential election held on November 8, 2016; and the convening of
electors on December 19, 2016." Am. Compl. 5. Because these allegations are insufficient,
Plaintiff fails to establish that he has constitutional standing to pursue these claims.2
Defendants also argue that to the extent Plaintiff's claims relate to the 2016 presidential
primary and general election and seek relief based on those claims, the claims are moot because
the electors have already fulfilled their duties relating to the November 2016 presidential
election. Because mootness is a jurisdictional issue, Defendants argue that the claims addressed
to the certification of the 2016 election results must be dismissed. E.g., Zixiang Li v. Kerry, 710
F.3d 995, 1001 (9th Cir. 2013) (when it is no longer possible to obtain relief for a claim, the
claim is moot and "must be dismissed for lack of jurisdiction") (internal quotation marks
omitted). I agree with Defendants that the challenges to the 2016 certified election results and
ascertainment of electors are moot because that process is complete, the electors have performed
their duties, and the President has been inaugurated.
However, a court may invoke jurisdiction over a claim for declaratory relief even if the
Plaintiff's list of facts contained in his Response Memorandum cannot substitute for the
deficient Amended Complaint. Moreover, even if I consider them, the claims still fail to state a
claim for the reasons discussed below.
5 - OPINION & ORDER
case is moot in regard to injunctive relief. Feldman v. Bomar, 518 F.3d 637, 642 (9th Cir. 2008)
(citing Super Tire Eng'g Co. v. McCorkle, 416 U.S. 115, 121–22 (1974)). Under Super Tire, a
claim remains live if a challenged policy is fixed and definite, not contingent upon executive
discretion, and by its continuing presence casts a substantial adverse effect on the interests of the
parties. 416 U.S. at 122–24. While Paragraphs 7 and 8 in Plaintiff's Prayer for Relief seek
injunctive relief, Paragraphs 1-6 seek declaratory relief requesting that the Court "find" certain
statutory provisions and the winner-take-all electoral vote allocation to be unconstitutional. Am.
Compl. 6-7. Super Tire indicates that jurisdiction over Plaintiff's claims is appropriate to the
extent they seek declaratory relief.
Additionally, an otherwise moot action may still be subject to review under the "capable
of repetition, yet evading review" exception, which applies when both the duration of the
challenged action is too short to allow full litigation before it ceases, and there is a reasonable
expectation that the plaintiffs will be subjected to the same action again. Spencer v. Kemna, 523
U.S. 1, 17 (1998). This principle applies in election cases. E.g., Norman v. Reed, 502 U.S. 279,
287 (1992) (challenge to law regarding the placement of new party on ballot not moot even
though election was over because issue was "worthy of resolution as capable of repetition, yet
evading review") (internal quotation marks omitted); Rosario v. Rockefeller, 410 U.S. 752, 756
n.5 (1973) (challenge to election law was not moot even though the primary election had been
completed because question raised was "capable of repetition, yet evading review.").
II. Failure to State a Claim
Plaintiff's claims as pleaded in the Amended Complaint are not entirely clear, and his
Response Memorandum filed in opposing Defendants' motion, ECF 23, provides only limited
6 - OPINION & ORDER
clarity as to his theories. Reading the Amended Complaint and Response Memorandum
together, I understand Plaintiff to be raising the following claims: (1) Oregon Revised Statute §
(O.R.S.) 254.365 which governs voting in a primary election and provides, among other things,
that the voter3 be registered with one of the major political parties or registered as a nonaffiliated
voter and who desires to vote in the primary of a major political party that admits nonaffiliated
voters, violates the Equal Protection Clause and the principle of one-person, one-vote4; Am.
Comp. 3, ¶ 1; (2) O.R.S. 248.355 which requires candidates for the position of presidential
elector to sign a pledge that if elected, the presidential elector will vote in the electoral college for
the candidates of the party of president and vice-president, violates the Equal Protection Clause
and the principle of one-person, one-vote; id., ¶ 1; (3) Oregon's "winner take all" system for
allocating presidential electors violates the Equal Protection Clause and the principle of oneperson, one-vote; Am. Compl. 4, ¶ 3; and (4) O.R.S. 248.360(2) which prohibits the names of
presidential electors from being printed on the ballot, violates Section 2 of the Fourteenth
The statute uses the term "elector" instead of voter. O.R.S. 254.365. "Elector" is
defined as "an individual qualified to vote under section 2, Article II, Oregon Constitution."
O.R.S. 254.005(4). Because this Opinion also addresses Plaintiff's claims directed toward
presidential "electors" as part of the electoral college, I use the term "voter" when referring to the
Oregon statutes to avoid confusion.
"One-person, one-vote" is an equal protection guarantee although that specific language
does not appear in the Fourteenth Amendment. It is a "catch-phrase" recognizing "that the
collective dilution of many individuals' votes can result in a form of unconstitutional
disenfranchisement, even when no one individual is turned away at the ballot box." Kirk v.
Carpeneti, 623 F.3d 889, 897 (9th Cir. 2010) (discussing Reynolds v. Sims, 377 U.S. 533
(1964)); see also Dudum v. Arntz, 640 F.3d 1098, 1112 n.23 (9th Cir. 2011) ("'one person, one
vote' cases involve instances in which citizens from heavily-populated districts select the same
number of legislative representatives as voters from sparsely populated districts, with the result
that their votes have less potential impact on the legislative process").
7 - OPINION & ORDER
Amendment. Id., ¶ 4.5
A. O.R.S. 254.365
This statute, entitled "Voting at primary election by major party members and
nonaffiliated electors" prohibits a voter from voting at a primary election for any candidate of a
major political party unless one of two conditions is met: (1) the voter is registered as being
affiliated with one of the major political parties; or (2) the voter is registered as not being
affiliated with any political party and wishes to vote in the primary of a major political party that
has provided, under subsection (3) of the statute, for a primary election that admits electors not
affiliated with any political party. O.R.S. 254.365(1)(a), (b). Under subsection (2), except as
provided in O.R.S. 254.370(3), a primary election voter registered as being affiliated with a
major political party is given a ballot of that major political party and may not be given a ballot
of any other political party at that primary election. O.R.S. 254.365(2). A nonaffiliated voter
shall be given the ballot of the major political party in whose primary election that voter wishes
to vote if that major political party has provided, under subsection (3) of the statute, for a primary
that admits electors not affiliated with any political party. Id. Under subsection (3), a major
political party may allow a voter who is not affiliated with any political party to vote in the major
political party's primary election. O.R.S. 274.365(3).
Plaintiff alleges that O.R.S.254.365 deprives the unaffiliated voter of the right to
In a separate paragraph of the Amended Complaint, Plaintiff alleges that Section 2 of
the Fourteenth Amendment "supersedes the plenary authority of the State Legislature to 'appoint'
electors for President and Vice President." Am. Compl. 5, ¶ 5. As Defendants note, it is unclear
if this is a separately stated claim. I understand this to be an additional argument in support of
Plaintiff's position that Oregon's prohibition on placing the names of presidential electors on the
ballot is unconstitutional. I do not construe it as a completely separate claim. Even if it is a
separate claim however, it has no merit for the reasons discussed below.
8 - OPINION & ORDER
effectively "voice a vote in the selection of electors for the quadrennial Presidential ballot." Am.
Compl. 3, ¶ 1. He further contends that the statute violates the principle of one-person, one-vote
and the Equal Protection Clause. Id. He contends that the principle of one-person, one-vote" is
violated because unaffiliated voters in states with primary voting systems such as Oregon's have
less power than those in the nineteen states which have open primaries. Id.
In his Response Memorandum, Plaintiff argues that the Oregon statute violates his right
of voluntary association under the First Amendment as well as his rights articulated in Section 2,
Clause 2 of the Fourteenth Amendment. Pl. Resp. Mem. 18-23. He asserts that just over twentynine percent of Oregon's registered voters in the 2016 general election were either "nonaffiliated
or other" and thus, were "forbidden" the franchise in the May 2016 primary election. Id. at 19.
He contends that he is constructively coerced into joining a political party for his voice to be
heard. Id. Further, he argues that because he is constructively prevented from voting in Oregon's
presidential primary election without first joining a major political party which may not speak to
his individual "concerns, aspirations, and tenets," his vote is diminished and infringed. Id. at 21.
Primary elections generally fall into three categories: closed, semi-closed, and open.
Parson v. Alcorn, 157 F. Supp. 3d 479, 485 (E.D. Va. 2016) ("Three principal types of primaries
exist: closed, semiclosed, and open.") (footnotes omitted). An "open" primary allows a person
to vote without being "required to declare publicly a party preference or to have that preference
publicly recorded." Democratic Party of the U.S. v. Wis. ex rel. La Follette, 450 U.S. 107, 111 n.
4 (1981) (internal quotation marks omitted). "The major characteristic of open primaries is that
any registered voter can vote in the primary of any party." Id. (internal quotation marks
9 - OPINION & ORDER
omitted).6 In a "closed" primary, "only persons who are members of the political party . . . can
vote on its nominee." Cal. Democratic Party, 530 U.S. at 570. And in a "semi-closed" primary,
a party may invite independent voters as well as its own registered members to vote in its
primary. Clingman v. Beaver, 544 U.S. 581, 584 (2005).
Although Plaintiff refers to Oregon's primary election system as "closed," it is more
accurately described as semi-closed because Oregon grants major political parties the option of
allowing nonaffiliated voters to vote in the party's primary election. O.R.S. 254.365(3)(a); see
Clingman, 544 U.S. at 584 (Oklahoma election laws providing that only registered members of a
political party may vote in the party's primary unless the party opens its primary to registered
voters who were independents, described by the Court as a "semi-closed" primary system).
Accordingly, nonaffiliated voters are not deprived of the right to vote in the primary by Oregon
statute. Instead, it is left to each major political party to determine whether to allow nonaffiliated
voters to vote in that party's primary.
However, even if Oregon had a true closed primary system, the Ninth Circuit has already
rejected the constitutional arguments Plaintiff raises here. In Ziskis v. Symington, the Ninth
Circuit concluded that Arizona's closed primary system, in which voters not affiliated with a
political party cannot vote in the primary election, did not violate the plaintiff's free association,
equal protection, or voting rights. 47 F.3d 1004, 1005-06 (9th Cir. 1995). The facts and the law
A fourth category referred to as a "blanket" primary, is a variant of an open primary. In
an open primary, the voter "is limited to that party's nominees for all offices. [A voter] may not,
for example, support a Republican nominee for Governor and a Democratic nominee for attorney
general." Cal. Democratic Party v. Jones, 530 U.S. 567, 576 n.6 (2000). In contrast, in a
"blanket" primary, "all candidates are combined on a single ballot and may be voted upon by
voters affiliated with any party." Alaskan Indep. Party v. Alaska, 545 F.3d 1173, 1178 (9th Cir.
10 - OPINION & ORDER
are indistinguishable from the present case. Like Plaintiff here, the plaintiff in Ziskis challenged
the closed party primary election law "as it applies to non-party, independent voters like himself."
Id. at 1005.
The Ziskis court looked to a similar Connecticut case which was summarily affirmed by
the Supreme Court. Nader v. Schaffer, 417 F. Supp. 837 (D. Conn), summarily aff'd, 429 U.S.
989 (1976). Nader involved a challenge by a non-party member to a state's closed party primary
election law which was virtually identical to the Arizona law at issue in Ziskis. The plaintiff in
Ziskis, like the plaintiff in Nader, and like Plaintiff here, asserted violations of the right to free
association, the right to vote, and the right to equal protection. Ziskis, 47 F.3d at 1006.
Following the reasoning in Nader, the Ziskis court agreed that strict judicial review was
unwarranted absent "'more than a minimal infringement'" on the constitutional rights asserted and
that "registering as a member of a political party 'is not particularly burdensome[.]'" Id. (quoting
Nader, 417 F. Supp. at 847). Furthermore, registering is a "'minimal demonstration by the voter
that he has some commitment to the party in whose primary he wishes to participate.'" Id.
(quoting Nader, 417 F. Supp. at 847). The Ziskis court recognized that "[i]f the independent
voter 'chooses not to associate, by not enrolling in a party, his right to vote in the general election
is unaffected.'" Id. (quoting Nader, 417 F. Supp. at 847) (brackets omitted). In the end, the Ziskis
court concluded, as did the Nader court, that "given the state's interest in protecting the
associational rights of party members and in preserving the integrity of the electoral process, the
state may legitimately allow political parties to close their primaries to nonmembers." Id.;
Nader, 417 F. Supp. at 845 (recognizing the right of the state in "protecting party members'
associational rights, by legislating to protect the party from intrusion by those with adverse
11 - OPINION & ORDER
political principles.") (internal quotation marks omitted); see also Cal. Democratic Party, 530
U.S. at 583 ("nonparty members' keen desire to participate in selection of the party's nominee . . .
is overborne by the countervailing and legitimate right of the party to determine its own
Ziskis and Nader remain good law. A recent Third Circuit decision relied on Nader to
reject a similar challenge to New Jersey's closed primary. Balsam v. Sec'y of State of N.J., No.
14-3882, 607 F. App'x 177, 183 (3d Cir. Apr. 8, 2015) (rejecting the plaintiff's argument that the
closed primary system violated his rights under the First and Fourteenth Amendments; explaining
that the "reasoning of Nader is directly applicable here" because "Nader consider[ed] the
countervailing rights of individuals who were not members of a political party, and it found that
the associational rights of party members and the regulatory interests of the state outweighed
those rights"). Citing to both Ziskis and Nader, the New Mexico Supreme Court recently
rejected a state constitutional challenge to New Mexico's closed primary system, concluding that
allowing only voters registered with a political party to vote in a primary election was a
reasonably modest burden that furthered the state's interest in security and the purity of elections
and effectively administering them. Crum v. Duran,
, No. S-1-SC 360030, 2017
WL 474461, at *4, *5 (N.M. Feb. 6, 2017).
And, just last fall an en banc Ninth Circuit cited Ziskis for the proposition that voting
restrictions in primary elections are treated differently than those in general elections. Public
Integrity All., Inc. v. City of Tucson, 836 F.3d 1019, 1026-27 (9th Cir. 2016) (en banc) (stating
that the Ziskis court held that "a law requiring participants in primaries be registered with a
political party did not violate the challenger's Fourteenth Amendment right to vote"), petition for
12 - OPINION & ORDER
(U.S. Dec. 5, 2016) (No. 16-730). In Public Integrity, the court
considered primary election restrictions adopted by the City of Tucson for city council positions.
The court, while noting that primary elections are "state action subject to the same constitutional
constraints as general elections[,]" and that primary and general elections "have an obvious and
strong interconnection[,]" recognized nonetheless that primary and general elections do not need
to be "identically structured and administered." Id. at 1027. The court explained that there were
"decades of jurisprudence permitting voting restrictions in primary elections that would be
unconstitutional in the general election." Id. at 1026 (citing Ziskis, Clingman (permitting a semiclosed primary), and Am. Party of Tex. v. White, 415 U.S. 767 (1974) (allowing states to establish
waiting periods before voters may be allowed to change their registration and vote in another
party's primary)). The Public Integrity court summarized that these voting restrictions were
allowable in primaries because primary elections "serve a different function than general
elections[.]" Id. at 1027. While the primary is a critical stage, the "legitimate state interests are
not identical with those pertinent to the general election[.]" Id.
Plaintiff's constitutional challenges to Oregon's semi-closed primary system have no
merit. Even if Oregon had a truly closed primary system, controlling caselaw holds that such a
system does not violate Plaintiff's First or Fourteenth Amendment rights, or the principle of oneperson, one-vote.
B. O.R.S. 248.355
Under Oregon law, each political party which nominates candidates for president and
vice-president must select a number of candidates for presidential electors equal to the total
number of senators and representatives to which the state is entitled in Congress. O.R.S.
13 - OPINION & ORDER
248.355(1). These presidential elector candidates must sign a pledge that, if elected, the
presidential elector will vote in the electoral college for the candidates of the party for president
and vice-president. O.R.S. 248.355(2).
Plaintiff challenges subsection 2 as violating the Equal Protection Clause and the
principle of one-person, one-vote. Am. Compl. 3-4, § 2. He alleges that the effect of the law is
to coerce him into joining a political party in order to exercise his right to vote at election for
presidential electors. Id. Additionally, he contends that the law denies the "unaffiliated citizen's
right to become" a presidential elector. Id.
In his Response Memorandum, he contends that the "reality of Major Party domination of
the process" means that a nonaffiliated voter is coerced to associate with a political party to
exercise the right to vote. Pl. Resp. Mem. 23. He seeks a declaration that the statute violates his
First Amendment rights not to be coerced to associate with a political party to exercise his right
to vote for electors for president and vice-president. Id.
By its terms, O.R.S. 248.355 requires political parties to choose presidential electors and
requires those presidential electors to vote in the electoral college for the presidential and vicepresidential candidates of that party. It does not directly regulate who may vote in an election. It
does not directly regulate which political parties may choose electors. Instead, subsection (1)
establishes only the number of electors that "each political party nominating candidates" for
president and vice-president must select. And subsection (2) directs how those presidential
electors are to vote.
As Defendants note, Oregon statutes provide for the nomination of candidates to partisan
office by other than the major political parties. O.R.S. 249.705 - 249.840. Generally, a minor
14 - OPINION & ORDER
political party, an assembly of voters, or individual voters, may nominate a candidate for each
partisan public office by preparing and filing a certificate of nomination as provided in O.R.S.
249.712 to 249.850. O.R.S. 249.705. For example, nonaffiliated voters may nominate a
candidate for president and vice-president, as well as the required seven presidential electors, by
convening an assembly of electors. O.R.S. 249.735; see also Or. Sec'y of State's State
Candidate's Manual, available at http://sos.oregon.gov/elections/Documents/statecandidates.pdf.
(outlining procedures for filing and running for federal or state office, including a section on
nominating candidates for president by major political party, minor political party, and
Given the statutory process for nonaffiliated voters to nominate a candidate and
presidential electors, Oregon law does not force nonaffiliated voters to join a political party to
vote for a presidential elector or to become a presidential elector. Plaintiff's challenges to O.R.S.
248.355 have no merit.
C. Winner Take All
According to the National Archives, "[t]he District of Columbia and 48 states have a
winner-takes-all rule for the Electoral College."
https://www.archives.gov/federal-register/electoral-college/faq.html#wtapv; see also Schweikert
v. Herring, No. 3:16-cv-00072, 2016 WL 7046845, at *2 (W.D. Va. Dec. 2, 2016) (noting that
forty-eight states use the "winner-take-all approach" for selecting presidential electors). "In these
States, whichever candidate receives a majority of the popular vote, or a plurality of the popular
vote (less than 50 percent but more than any other candidate), takes all of the state’s Electoral
votes." Id. Nebraska and Maine are the exceptions and do not follow the winner-take-all rule.
15 - OPINION & ORDER
Id.; Schweikert, 2016 WL 7046845, at *2 n.1 (explaining that Maine and Nebraska select electors
by congressional district with the remaining two electors awarded to the candidate who earns a
plurality of the statewide vote).
Plaintiff argues that the winner-take-all rule effectively dismisses the votes of the fortynine percent of Oregon voters not in the majority or plurality, "negating their vote and
representative voice in the gathering of electors[.]" Am. Compl. 4, ¶ 3. He suggests that the
gathering of electors is a statewide legislative body and that the winner-take-all rule effectively
denies and dilutes the validity of the vote of a large minority of voters in the state. Id. He
contends that the rule violates the Equal Protection Clause and the principle of one-person, onevote. Id.
Plaintiff's arguments are foreclosed by Supreme Court precedent. In a 1969 case, the
Supreme Court summarily affirmed, per curiam, the district court's rejection of constitutional
challenges to Virginia's method of providing electors to the electoral college based on a plurality
vote in a statewide election. Williams v. Va. St. Bd. of Elections, 393 U.S. 320 (1969) (per
curiam). The three-judge district court considered the plaintiffs' arguments challenging the
winner-take-all system used in Virginia and concluded that the system did not violate the
Fourteenth Amendment and the one-person-one-vote principle. 288 F. Supp. 622, 625-28 (E.D.
Va. 1968), summarily aff'd, 393 U.S. 320 (1969).
The court cited to Article II, Section 1 of the Constitution which gives each state authority
to "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. The Twelfth Amendment further directs how presidential
16 - OPINION & ORDER
electors cast their votes. U.S. Const. amend. XII. The Williams court noted that Article II,
Section I "literally leaves to the State legislature the appointment of electors 'in such manner' as it
may direct." 288 F. Supp. at 626. While the state's authority under the Constitution is not
beyond judicial review, id., the Supreme Court has continued to recognize the authority granted
the states by Article II, Section 1. E.g., Bush v. Gore, 531 U.S. 98, 104 (2000) (per curiam)
("[T]he state legislature's power to select the manner for appointing electors is plenary.") (citing
U.S. Const. art. II, § 1).
The Williams court recognized that application of the winner-take-all rule results in the
electoral slate "speak[ing] only for the element with the largest number of votes [which] in a
sense is discrimination against the minority voters." 288 F. Supp. at 627. But, the court
explained, in its 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." Id. The court continued by noting
that in a "democratic society the majority must rule, unless the discrimination is invidious." Id.
No "such evil" was "manifest" before the Williams court. Id. Instead, it found, "[e]very citizen is
offered equal suffrage and no deprivation of the franchise is suffered by anyone." Id.
Accordingly, the winner-take-all approach did not violate the plaintiff's Fourteenth Amendment
Williams is still good law and Plaintiff offers no basis for distinguishing it. It continues
to be cited by courts rejecting similar challenges to state presidential elector selection laws. E.g.,
Schweikert, 2016 WL 7046845, at *2 (relying on Williams to reject the plaintiff's challenges to
Virginia's winner-take-all system of selecting presidential electors; describing the plaintiff's
request as asking the Court to "upend over two centuries of electoral practice and declare that
17 - OPINION & ORDER
Virginia's winner-take-all method . . . violates the First Amendment, Fourteenth Amendment,
Twelfth Amendment, Seventeenth Amendment," and the Voting Rights Act); New v. Pelosi, No.
08 Civ. 9055 (AKH), 2008 WL 4755414, at *2 (S.D.N.Y. 2008) (in a case alleging that the
electoral college violated the principle of one-person, one-vote, court cited Williams and other
cases for the proposition that "courts have routinely rejected challenges to the electoral college
under the Equal Protection Clause of the Fourteenth Amendment"), aff'd, 374 F. App'x 158 (2d
Cir. 2010); Hitson v. Baggett, 446 F. Supp. 674, 676 (M.D. Ala.) (in case brought by minority
voters alleging that state's manner of selecting presidential electors violated their constitutional
rights, court relied on Williams to reject the argument), aff'd, 580 F.2d 1051 (5th Cir. 1978).
Plaintiff's winner-take-all claim has no merit.
D. O.R.S. 248.360(2)
This statute provides that the names of presidential electors shall not be printed on the
general election ballot. O.R.S. 248.360(2). A vote for the presidential and vice-presidential
candidates "shall be a vote for the electors supporting those candidates and selected as provided
by law." Id. The statute directs that the general election ballot state that presidential electors are
being elected and that a vote for the candidates for president and vice-president shall be a vote
for the presidential electors. Id.
Plaintiff asserts that the prohibition against placing the presidential electors' names on the
ballot violates the "clear language" of Section 2, Clause 2 of the Fourteenth Amendment. Am.
Compl. 4-5, ¶ 4. Additionally, he contends that this particular constitutional provision prohibits
a state legislature from "appointing" presidential electors because the provision "conveys" the
right to vote for the choice of electors to the voter. Id. at ¶ 5 (alleging that the right to vote for
18 - OPINION & ORDER
electors is conveyed in the Fourteenth Amendment, Section 2 and thus, "supersedes the plenary
authority of the State Legislature to 'appoint' electors"). In his Response Memorandum, he
further argues that requiring a voter to vote for the candidate and not the presidential elector
violates the Guarantee Clause in Article IV, Section 4 of the Constitution which guarantees a
republican form of government to the states. U.S. Const. art. IV,§ 4. Pl. Resp. Mem. 26. The
last argument appears to hinge on his description of the Electoral College as a national legislative
Section 2 of the Fourteenth Amendment begins by stating that "[r]epresentatives shall be
apportioned among the several states according to their respective numbers, counting the whole
number of persons in each State." U.S. Const. amend. XIV, § 2. The beginning of the next
sentence is the source of Plaintiff's position here:
But when the right to vote at any election for the choice of electors for President
and Vice-President of the United States, Representatives in Congress, the
Executive and Judicial officers of a state, or the members of the Legislature
thereof, is denied to any of the male inhabitants of such State, being twenty-one
years of age, and citizens of the United States, or in any way abridged, except for
participation in rebellion, or other crime, the basis of representation therein shall
be reduced in the proportion which the number of such male citizens shall bear to
the whole number of male citizens twenty-one years of age in such State.
Id. (emphasis added).
Plaintiff contends that the emphasized language of this provision requires that the names
of the presidential electors themselves be on the ballot. Pl. Resp. Mem. 26 ("Clause 2
expressly grants Plaintiff the Right-To-Vote for his 'choice of elector'"). He cites no law to
support this contention. Defendants argue that Oregon law is not inconsistent with Section 2 and
further, that the Supreme Court has acknowledged the practice of naming the presidential and
19 - OPINION & ORDER
vice-presidential candidates on the ballot and not naming the presidential electors. I agree with
Defendants that the law does not support Plaintiff's arguments.
The Fourteenth Amendment is one of the post-Civil War Reconstruction Amendments
ratified in 1868. Danforth v. Minnesota, 552 U.S. 264, 269 (2008). The primary purpose behind
the Reconstruction Amendments was to eliminate the vestiges of slavery. E.g., Slaughter–House
Cases, 16 Wall. 36, 71 (1872) ("[N]o one can fail to be impressed with the one pervading
purpose found in [all the Reconstruction amendments] . . . we mean the freedom of the slave
race, the security and firm establishment of that freedom, and the protection of the newly-made
freeman and citizen from the oppressions of those who had formerly exercised unlimited
dominion over him."). While Section 1 of the Fourteenth Amendment prohibits the states from
denying any person the deprivation of life, liberty, or property without the due process of law,
from denying any person the equal protection of the laws, and from enforcing any laws abridging
the privileges and immunities of citizens, Section 2 addresses voting. In particular, Section 2
"provides an electoral penalty against States that withhold the franchise from otherwise eligible
voters." Harvey v. Brewer, 605 F.3d 1067, 1072 (9th Cir. 2010). "If a State disenfranchises
some number of otherwise eligible voters, those disenfranchised persons will count against the
State's total population for purposes of determining its representation in Congress." Id.
Given the purposes behind the Fourteenth Amendment generally and the particular
purpose of Section 2, it is clear that the language Plaintiff relies on is not intended to address the
placement of the names of presidential electors on a ballot. Rather, the language is a recognition
of the preceding constitutional provisions of Article II, Section 1 and the Twelfth Amendment.
As previously noted, Article II, Section 1 requires states to appoint electors who then, under the
20 - OPINION & ORDER
provisions further detailed in Section 1 which was later amended by the Twelfth Amendment,
vote for president and vice-president. U.S. Const. art. II, § 1; U.S. Const. amend. XII. If the
Fourteenth Amendment had been written as the "right to vote at any election for President and
Vice-President," it would have been inconsistent with these other constitutional provisions which
mandate that voters actually vote for electors who then vote for the president and vice-president.
The inclusion of the words "right to vote at any election for the choice of electors for President
and Vice-President" recognized these other constitutional provisions in the context of penalizing
states which continued to eviscerate the voting rights of recently-freed slaves. Such recognition
does not, however, dictate the placement of electors' names on a ballot.
Understood in this context, I agree with Defendants that O.R.S. 248.360 is not
inconsistent with Section 2. Because the statute directs that a vote for the presidential and vicepresidential candidates is a vote for the electors, the statute effectuates the right to vote for those
electors and does not contradict it. Rather, it supports the relevant constitutional provisions
regarding presidential electors. Moreover, as Defendants note, the Supreme Court has
recognized that the practice in many states of "allow[ing] a vote for the presidential candidate . . .
to be counted as a vote for his party's nominees for the electoral college[,]" is a "long-continued
practical interpretation of the constitutional propriety of an implied or oral pledge of his ballot by
a candidate for elector as to his vote in the electoral college[.]" Ray v. Blair, 343 U.S. 214, 229
(1952) (noting in the context of upholding political party's requirement that primary elector
candidates pledge their support to the nominees of the party's national convention for president
and vice-president, that "more than twenty states do not print the names for the candidates for
electors on the general election ballot."). And, at least one circuit court has rejected the argument
21 - OPINION & ORDER
Plaintiff makes here. Fischer v. Rollins, 995 F.2d 1061 (1st Cir. 1993) (unpublished) (rejecting
Plaintiff's constitutional challenge to state statutes omitting the names of presidential electors
from the ballot as "legally meritless" and citing Article II, section 1 of the Constitution in
Given that Plaintiff fails to establish that O.R.S. 248.260(2) violates Section 2 of the
Fourteenth Amendment, his premise for arguing that Section 2 "supersedes the plenary authority"
of the state to appoint presidential electors has no validity. As noted above, Supreme Court
decisions over the years have expressly recognized the state's authority to appoint presidential
electors as explicitly granted in Article II, Section 1. E.g., Bush, 531 U.S. at 104 ("[T]he state
legislature's power to select the manner for appointing electors is plenary.") (citing U.S. Const.
art. II, § 1); McPherson v. Blacker, 146 U.S. 1, 35 (1892) (discussing Article II, Section 1 and
stating that "from the formation of the government until now the practical construction of the
clause has conceded plenary power to the state legislatures in the matter of the appointment of
electors" and further recognizing that "the appointment and mode of appointment of electors
belong exclusively to the states under the constitution of the United States"). Nothing in Section
2 of the Fourteenth Amendment is inconsistent with the state's authority and Plaintiff's position
on this issue is baseless.
Finally, Plaintiff offers no legal support for his position that the Electoral College is a
legislative body and that therefore, O.R.S. 248.360(2)'s proscription on placing elector names on
the ballot violates the Guarantee Clause. I do not entertain this argument further.
E. Fourteenth Amendment, Section 5
The Amended Complaint makes no reference to Section 5 of the Fourteenth Amendment.
22 - OPINION & ORDER
But Plaintiff mentions it in his Response Memorandum to bolster his arguments that Oregon
laws regarding presidential electors violate Section 2 of the Fourteenth Amendment.7 At one
point he argues that his right to vote for electors is guaranteed by Section 2 and that under
Section 5, Congress is the only legislative body with authority to "legislate, implement, and act
upon" his right to vote for electors. Pl. Resp. Mem. 21. Plaintiff's contention that Section 5 of
the Fourteenth Amendment provides exclusive authority to Congress to regulate the selection of
presidential electors or the placement of their names on the ballot is inconsistent with Article II,
Section 1 which, as previously explained expressly grants power to the states for appointing
electors. His reading of Section 5 would deprive the states of the authority granted to them in
Article II, section 1. Morever, because there is no constitutional requirement that names of
electors appear on the ballot and I have rejected Plaintiff's Section 2 argument on this issue,
Section 5 is inapplicable here.
Plaintiff refers to Section 5 of the Fifteenth Amendment at times. Pl. Resp. Mem. 13,
21. But because there is no such section in that particular amendment, and because he otherwise
refers to and quotes section 5 of the Fourteenth Amendment, I understand the reference to be to
the Fourteenth Amendment's Section 5. Id. at 13, 21 (citing to Section 5 of the Fifteenth
Amendment but quoting Section 5 of the Fourteenth Amendment); id. at 16 (referring to and
quoting Section 5 of the Fourteenth Amendment); id. at 17 (referring to Section 5 of the
23 - OPINION & ORDER
Defendants' motion to dismiss  is granted. Plaintiff's claims are dismissed with
IT IS SO ORDERED.
Marco A. Hernandez
United States District Judge
24 - OPINION & ORDER
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?