League of United Latin American Citizens, et al. v. Gregory Wayne Abbott, et al.

Filing 43

ORDER GRANTING 21 Motion to Dismiss. Signed by Judge David A. Ezra. (aej)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION
LEAGUE OF UNITED LATIN
AMERICAN CITIZENS, LEAGUE
OF UNITED LATIN AMERICAN
CITIZENS OF TEXAS, JOSEPH C.
PARKER, Jr., HECTOR FLORES,
SANFORD LEVINSON, YVONNE
M. DAVIS, MARY RAMOS,
GLORIA RAY, GUADALUPE
TORRES, RAY VALARDE, and
DORIS WILLIAMS,
Plaintiffs,
vs.
GREGORY WAYNE ABBOTT, in
his official capacity as Governor of
the State of Texas, and ROLANDO
PABLOS, in his official capacity as
Secretary of State of the State of
Texas,
Defendants.

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No. 5:18-CV-175-DAE

ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS (DKT. # 21)
Before the Court is a Motion to Dismiss filed by Defendants Greg
Abbott—Governor of Texas—and Rolando Pablos—Secretary of State of Texas—
(“Defendants”). (Dkt. # 21). On February 13, 2019, the Court held a hearing on
the motion. At the hearing, David Boies, Esq. and Luis R. Vera, Jr., Esq.
represented Plaintiffs and Matthew H. Frederick, Esq., Patrick K. Sweeten, Esq.,
1

and Todd L. Disher, Esq. represented Defendants. The motion is fully briefed and
ripe for review. After careful consideration of the memoranda filed in support of
and in opposition to the motion, as well as the arguments advanced at the hearing,
the Court—for the reasons that follow—GRANTS Defendants’ Motion to
Dismiss.1 (Id.)
BACKGROUND
In presidential elections, Article 2 of the United States Constitution
prescribes that “Each State shall appoint, in such Manner as the Legislature thereof
may direct, a Number of Electors, equal to the whole Number of Senators and
Representatives to which the State may be entitled in the Congress . . . .” U.S.
Const. art. II, § 1, cl. 2 (emphasis added). This action challenges Texas’ “winnertake-all” (“WTA”) method for selecting Presidential Electors. Texas, along with
47 other States and the District of Columbia, has adopted statutes under which its
38 Electoral College Electors for president are appointed on a WTA basis. See
Tex. Elec. Code § 192.005 (“The set of elector candidates that is elected is the one

1

In so ruling, the Court reaches the same conclusion recently reached in sister
courts in the District of Massachusetts and the Central District of California as to
the one person, one vote and First Amendment challenges to the winner-take-all
system for selecting Presidential Electors that were presented in those cases. See
Lyman et al. v. Baker et al., No. 1:18-CV-10327-PBS (D. Mass. Dec. 7, 2018)
(Dkt. # 52); Rodriguez et al. v. Brown et al., No. 2:18-CV-1422 (C.D. Cal. Sept.
21, 2018) (Dkt. # 83).
2

that corresponds to the candidates for president and vice-president receiving the
most votes.”).
Under the WTA system, all of a state’s Electors are chosen by the
political party whose candidate received the most votes in the State’s presidential
election. For instance, in the 2016 election President Donald Trump received
52.2% of the Texas vote, and former Secretary of State Hillary Clinton received
43.2% of the vote. (Dkt. # 1 at 2.) Yet the Republican Party selected all 38 of
Texas’ Electors, and the Democratic Party selected none.
On February 21, 2018, Plaintiffs filed suit in this case, asserting three
causes of action: (1) violation of the Fourteenth Amendment because by
“discarding” the votes cast for the losing candidate, the WTA system
“unconstitutionally magnifies the votes of a bare plurality of voters by translating
those voters into an entire slate of presidential Electors” (Dkt. # 1 at 5); (2)
violation of the First Amendment because the WTA system “burdens . . . the right
of association and . . . the right to have a voice in presidential elections through
casting a vote” (id. at 6); and (3) violation of Section 2 of the Voting Rights Act
(“VRA”) because the WTA system works in the same way as at-large voting
districts in allowing “white voters to . . . defeat all Electors slated for Hispanic and
African-American preferred candidates” (id.).

3

Defendants filed their motion to dismiss on April 9, 2018. (Dkt.
# 21.) Plaintiffs filed a response in opposition on May 7, 2018. Defendants filed a
reply in support of their motion on May 21, 2018. A hearing was held on
Defendants’ motion on February 13, 2019.
LEGAL STANDARD
Federal Rule of Civil Procedure 12(b)(6) authorizes dismissal of a
complaint for “failure to state a claim upon which relief can be granted.” Review
is limited to the contents of the complaint and matters properly subject to judicial
notice. See Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007).
In analyzing a motion to dismiss for failure to state a claim, “[t]he court accept[s]
‘all well-pleaded facts as true, viewing them in the light most favorable to the
plaintiff.’” In re Katrina Canal Beaches Litig., 495 F.3d 191, 205 (5th Cir. 2007)
(quoting Martin K. Eby Constr. Co. v. Dallas Area Rapid Transit, 369 F.3d 464,
467 (5th Cir. 2004)).
To survive a Rule 12(b)(6) motion to dismiss, the plaintiff must plead
“enough facts to state a claim to relief that is plausible on its face.” Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A claim has facial plausibility when
the plaintiff pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009).
4

DISCUSSION
Article II, Section 1, Clause 2 of the United States Constitution vests
plenary power in the state legislatures to determine and implement the manner by
which a state chooses its Electoral College Electors. McPherson v. Blacker, 146
U.S. 1, 35 (1892). Thus, “[t]he individual citizen has no federal constitutional right
to vote” for Presidential Electors, and the State legislature “may, if it so chooses,
select the Electors itself.” Bush v. Gore, 531 U.S. 98, 104 (2000). However, in
spite of this plenary power in the State legislature, Article 2, Section 1 does not
“give[] the States power to impose burdens on the right to vote, where such
burdens are expressly prohibited in other constitutional provisions.”2 Williams v.
Rhodes, 393 U.S. 23, 29 (1968). Once “the state legislature vests the right to vote
for President in its people, the right to vote . . . is fundamental . . . .” Bush, 531
U.S. at 104.

2

In this respect, Plaintiffs’ prudential arguments are entirely beside the point. That
WTA systems may lead Presidential campaigns to focus on “battleground states” or
facilitate outside interference in our elections (Dkt. # 1 at 3–4; Dkt # 27 at 8) are
irrelevant to this Court’s determination. Either a WTA system for choosing
Presidential electors is permissible under the First and Fourteenth Amendments
and the VRA, or it is not. If WTA systems are constitutional and not in violation of
statute, their wisdom and necessity are to be left to the reasoned judgment of the
legislatures of each of the Several States. And if WTA systems are unconstitutional
or in violation of statute, it is impermissible, no matter how wise or providential.
5

Against this backdrop, Plaintiffs challenge the State of Texas’ decision
to have all of its State’s Electors chosen by the political party whose candidate
receives the greatest number of votes as being in violation of the First and
Fourteenth Amendments, and Section 2 of the VRA. In response, Defendants
argue their motion to dismiss should be granted on one or both of two bases: (1)
Plaintiffs’ claims are precluded by binding precedent; and even if not (2) they are
entitled to dismissal on the merits of each of Plaintiffs’ claims for failure to state a
claim upon which relief can be granted.
I.

Settled Precedent and “One Person, One Vote” – Fourteenth Amendment
Equal Protection
Defendants begin by pointing to several prior decisions of the

Supreme Court and the Fifth Circuit that they argue preclude all of Plaintiffs’
claims as a matter of settled law. McPherson v. Blacker upheld a district-based
mechanism3 for electing presidential Electors as against challenges that it violated
Article 2, Section 1, Clause 2 of the United States Constitution as well as the Equal
Protection Clause of the Fourteenth Amendment. 146 U.S. at 3, 24, 42. However,
McPherson is not controlling. McPherson dealt with the question of the

3

Under the Michigan system at issue in McPherson, each congressional district
chose one elector, corresponding to the electors Michigan was entitled to through
its congressional representatives for those districts, and each half of the state
selected an “at large” elector, corresponding to the electors Michigan was entitled
to through its two senators. Id. at 24.
6

constitutionality of a district-based system; it did not address the question of WTA,
beyond pointing out as a matter of historical practice that many States up to that
point had implemented such a system. See id. at 29–33.
Defendants rely on language from McPherson that “if [Electors] are
elected in districts where each citizen has an equal right to vote, the same as any
other citizen has, no discrimination is made.” Id. at 40. However, this holding
predates by more than seventy years the revolution in the Supreme Court’s
thinking on the issue of voter equality that occurred in the 1960s and early 1970s
and the establishment of the “one person, one vote” principle. See, e.g., Gray v.
Sanders, 372 U.S. 368, 381 (1963) (“The conception of political equality from the
Declaration of Independence, to Lincoln’s Gettysburg Address, to the Fifteenth,
Seventeenth, and Nineteenth Amendments can mean only one thing—one person,
one vote.”); Baker v. Carr, 369 U.S. 186, 209–10 (1962) (finding
malapportionment claims under the Fourteenth Amendment justiciable).
The principle that where each citizen has an equal right to vote, no
discrimination is made has undoubtedly survived. But what is required before it
can be said that a citizen’s right to vote is in fact equal has undoubtedly evolved
from the time McPherson was handed down. See, e.g., Reynolds v. Sims, 377 U.S.
533, 562–64 (1964) (requiring state legislative districts be roughly proportional);
Wesberry v. Sanders, 376 U.S. 1, 7–9 (1964) (requiring the same of federal
7

Congressional districts). The entire question posed by this case is whether the
Texas WTA system renders the votes of some of its citizens unequal to the votes of
others of its citizens. Thus, that the Supreme Court found a different system,
against a different doctrinal backdrop, preserved and respected the equal right to
vote does not dictate that the presently challenged system also does so.
The other cases urged by Defendants—Hitson v. Baggett, 446 F. Supp.
674 (M.D. Ala. 1978), summarily aff’d, 580 F.2d 1051 (5th Cir. 1978) and
Williams v. Va. State Bd. of Elections, 288 F. Supp. 622, 626 (E.D. Va. 1968),
summarily aff’d, 393 U.S. 320 (1969)—however, do control the outcome of this
case, at least in part. Unlike McPherson, Hitson directly addressed a statewide
WTA system for selecting Presidential Electors, essentially analogous to the
present Texas system. Hitson, 446 F. Supp. at 675. In relevant part, the Plaintiffs
in Hitson contended that Alabama’s state-wide WTA electoral scheme
discriminated against minority voters because “if Alabama’s presidential Electors
were selected on a district basis, minority voters . . . could control the selection of
at least one or more of the state’s Electors.” Id. at 676. Yet as the Hitson Court
concluded, “that Alabama has not chosen to [structure its electoral scheme so that
minority voters had the power to control the selection of at least one presidential
elector] does not violate plaintiffs’ rights” because “[n]o minority group has a right
under the Constitution to insist that state electoral systems be designed, where
8

possible, to give its members electoral control over the selection of persons for
particular political offices.” Id. (citing cases).
Plaintiffs argue Hitson is distinguishable because in Hitson there was
“no contention that Alabama’s electoral scheme for the selection of presidential
Electors” operates “to minimize or cancel out the voting strength of [minority
voters].” Id. (citing cases). Plaintiffs here assert that in contrast they have alleged
such facts. (See Dkt. # 27 at 26 n.9.) Plaintiffs are correct that they have alleged
facts indicating their votes are being minimized or cancelled out. (See, e.g., Dkt.
# 1 at 2–3, 13–14.) But the premise underlying that assertion is that their votes are
being minimized or cancelled, or otherwise not treated equally, because they “have
not had a single elector slated for their preferred candidate in the last four decades”
and are unable “to have Electors for their preferred candidate in each presidential
election.” (Dkt. # 1 at 6, 7.) These allegations fail to state an Equal Protection
claim because, as stated in Hitson and affirmed by the Fifth Circuit, “[n]o minority
group has a right under the Constitution to insist that state electoral systems be
designed, where possible, to give its members electoral control over the selection
of persons for particular political offices.”4 446 F. Supp. at 676. That Texas’

4

Plaintiffs’ proposed remedy of proportional selection of electors is also
problematic. City of Mobile v. Bolden, 446 U.S. 55, 79 (1980), superseded by
statute on other grounds as stated by Thornburg v. Gingles, 478 U.S. 30 (1986)
9

chosen structure for selecting Electors does not give minority voters the power to
control the selection of any presidential Electors does not violate Plaintiffs’ right to
Equal Protection. Id.
And even if Hitson were distinguishable for the reasons Plaintiffs
assert, the decision in Williams operates to the same effect. In Williams, a
three-judge district court panel rejected a challenge to Virginia’s WTA system for
choosing Electors.5 288 F. Supp. at 629. As relevant to this case, the plaintiffs in
Williams—like the Plaintiffs here—argued the WTA system violated the “one
person, one vote” principle of the Fourteenth Amendment’s Equal Protection
Clause. Id. at 624. As do the instant Plaintiffs, the Williams plaintiffs relied
principally on Gray v. Sanders, the case first announcing the principal. 288 F.
Supp. at 626. The Court in Williams rejected the plaintiffs’ contentions, finding
“in our judgement the [WTA method] does not come within the brand of these
decisions.” Id. (referring to Gray v. Sanders; Reynolds v. Sims; and Wesberry v.

(“[T]he [Supreme] Court has sternly set its face against the claim, however
phrased, that the Constitution somehow guarantees proportional representation.”).
5

The panel’s decision was summarily affirmed by the Supreme Court. 393 U.S.
320 (1969).

10

Sanders6). Further, there was “nothing in the [WTA] rule offensive to the
Constitution.” Id. at 627.
After discussing the policy arguments against a WTA system, the
Williams Court further explained:
Notwithstanding, it is difficult to equate the deprivations imposed by
the [WTA] rule with the denial of privileges outlawed by the oneperson, 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.
Although summary affirmances by the Supreme Court should not be
read too broadly and do not necessarily endorse the reasoning of the lower court,
“[t]hey do prevent lower courts from coming to opposite conclusions on the
precise issues presented and necessarily decided by those actions.” Mandel v.
Bradley, 432 U.S. 173, 176 (1977).

6

Wesberry also expressly stated that the one person, one vote rule is “followed
automatically, of course, when [Congressional] Representatives are chosen as a
group on a statewide basis.” 376 U.S. at 7–8.
11

Plaintiffs first argue that Williams is not controlling because in
Williams “voters cast their vote for Electors as candidates listed on the ballot[,]”
whereas under the Texas system voters cast their vote directly for the presidential
candidate. (See Dkt. # 27 at 27; see also Tex. Elec. Code § 192.034(b).) But as
Defendants point out, under the Virginia system at issue in Williams—and just like
the current Texas system—voters voted for one or the other political party, for that
party’s nominees for President and Vice-President, which constituted a block vote
for all the Electors slated by that party. (Dkt. # 29 at 3; see also Dkt. # 27-1, Ex.
A.) No vote could be cast for Electors individually, nor could any votes be cast
separately from the other Electors. (Id.) Voters in Virginia voted for a collective
full slate of Electors, just as they do now in Texas through voting expressly for a
Presidential candidate. (Id.) Thus the mere naming of the Electors does not
present a meaningful factual distinction between Williams and the instant case.
Plaintiffs also argue that Williams does not “address Plaintiffs’
primary constitutional claim: that a state may not discard votes for the president
through the WTA method of allocating Electors in the same manner that, in Gray,
votes were discarded at an intermediate step in a two-step election.” (Dkt. # 27 at
27.) But the court in Williams specifically confronted a Gray based argument and
concluded Virginia’s WTA system—functionally identical to Texas’—“does not
come within the brand of [that] decision[].” 288 F, Supp. at 626.
12

Next, Plaintiffs argue White v. Regester’s striking down of a Texas
county’s use of multi-member at-large elections “fundamentally shifted the legal
landscape.” (Dkt. # 27 at 28 (citing 412 U.S 755, 768 (1973).) In White, the
Supreme Court found two specific multimember districts were unconstitutional as
an intentional attempt to “invidiously . . . cancel out or minimize the voting
strength of racial groups” in light of Texas’ history of discrimination against
African–American and Mexican–American citizens. 412 U.S. at 765–70.
Importantly, the White court carefully limited its holding, emphasizing that
“multimember districts are not per se unconstitutional.” Id. at 765. Even if the
Court were to agree with Plaintiffs’ analogy of WTA as creating one large,
state-wide multimember district, White does not mandate the invalidation of all
multimember districts. Instead, White recognizes “claims that multimember
districts are being used invidiously to cancel out or minimize the voting strength of
racial groups.” Id. White’s holding is thus consistent with Williams’ conclusion
that WTA elector selection is permissible because “in a democratic society the
majority must rule, unless the discrimination is invidious.” 288 F. Supp. at 627.
While the Court is cognizant of the troublesome history of electoral
discrimination in the state of Texas, as described in White and elsewhere, Plaintiffs
allege no facts suggesting the WTA system was specifically adopted to cancel out
the voting strength of any particular group. Long before the specter of invidious
13

electoral discrimination reared its head, WTA was the dominant form of choosing
Electors for President. See McPherson, 146 U.S. at 32 (“After 1832 Electors were
chosen by [WTA] in all the states except South Carolina . . . .”). Texas itself has
used WTA since 1848, its first presidential election after joining the Union. See
Act approved March 15, 2848, 2d Leg., ch. 94, § 2, reprinted in 3 H.P.N. Gammel,
The Laws of the Texas, 1822 –1897, at 104–06; see also McPherson, 146 U.S. at
32. And WTA remains the dominant form of choosing Electors, utilized in 48
States and the District of Columbia, including many States that lack the history of
discrimination that plagues Texas.
Moreover, the WTA system has a readily discernable non-invidious
purpose. WTA protects a state against the use of WTA by other States. When a
State slates its Electors in a way that permits divided representation, if other States
use a WTA method, their consolidated block of Electors carries more weight in the
electoral college.7 See Williams, 288 F. Supp. at 626 (pointing out that this
justification was relied on by Thomas Jefferson in advising Virginia to implement a
WTA system, despite his own preference for a district-based system).
Finally, Plaintiffs argue Bush v. Gore, 531 U.S. 98 (2000), dispensed
with the need for a showing of invidiousness that was applied by the Williams

7

In this way, Texas’ WTA system is also not in violation of the Fourteenth
Amendment under Bush as arbitrary. See 531 U.S. at 104–05.
14

court. (Dkt. # 27 at 29). The Supreme Court in Bush held that “[h]aving 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. Plaintiffs thus suggest that before Bush, a “one person, one vote” claim
required proof of invidiousness, but that after Bush, a showing of arbitrary and
disparate treatment is sufficient. (Dkt. # 27 at 29–30.)
However, Bush’s precedential value is unclear. Its primary opinion is
expressly “limited to the present circumstances.” 531 U.S. at 109. It is therefore
unlikely the Supreme Court intended to overturn or undermine Williams,
particularly so where Bush does not discuss Williams or address in any way the
issues it decided. The Supreme Court “does not normally overturn, or . . .
dramatically limit, earlier authority sub silentio.” Shalala v. Ill. Council on Long
Term Care, Inc., 529 U.S. 1, 18 (2000).
Some pre-Bush cases do appear to indicate that an Equal Protection
claim requires proving 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 some post-Bush decisions do as well.
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,

15

make out a prima facia case of invidious discrimination under the Fourteenth
Amendment . . . .”) (citations and quotation marks omitted).
Moreover, Plaintiffs’ argument that Bush changed the legal landscape
ignores that the Supreme Court had recognized prior to Williams that a “one
person, one vote” claim could be based on either invidious discrimination or
arbitrary and disparate treatment. See Roman v. Sincock, 377 U.S. 695, 710
(1964) (holding that “faithful adherence to a plan of population-based
representation . . . free from any taint of arbitrariness or discrimination” satisfies
the Equal Protection Clause) (emphasis added). The disjunctive language in
Roman stipulating that a “one person, one vote” violation can be shown in the
absence of invidious discrimination is consistent with the Supreme Court’s holding
in Bush and finds support elsewhere in Equal Protection jurisprudence. See, e.g.,
Hunter v. Hamilton Cty. Bd. of Elections, 635 F.3d 219, 234 & n.13 (6th Cir. 2011)
(applying an “arbitrary and disparate” standard and noting that “a showing of
intentional discrimination has not been required” in previous Supreme Court
decisions); 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.”).
The Supreme Court has also “admonished the lower federal courts to
follow its directly applicable precedent, even if that precedent appears weakened
16

by pronouncements in its subsequent decisions, and to leave to the Court ‘the
prerogative of overruling its own decisions.’” Randell v. Johnson, 227 F.3d 300,
301 (5th Cir. 2000) (per curiam) (quoting Agostini v. Felton, 521 U.S. 203, 237
(1997)).
For these reasons, the Court finds no material factual distinctions or
intervening doctrinal shifts that militate the binding precedential nature of Hitson
or Williams. These decisions therefore require that Plaintiff’s Equal Protection
claim be DISMISSED.8
Nevertheless, Hitson and Williams only addressed challenges to WTA
systems for choosing presidential Electors under the Fourteenth Amendment’s
Equal Protection guarantee and the “one person, one vote” principle. See
Williams, 288 F. Supp. at 626; Hitson, 446 F. Supp at 676. Summary affirmances
only “prevent lower courts from coming to opposite conclusions on the precise
issues presented and necessarily decided by those actions.” Mandel, 432 U.S. at
176 (1977). As Hitson and Williams did not address challenges brought under the
First Amendment’s guarantee of freedom of association or Section 2 of the VRA,

8

Even if this Court were not bound by the decisions in Hitson and Williams,
Plaintiffs’ Equal Protection claim would still fail for reasons substantially identical
to those expressed in those cases.
17

those cases do not dictate this Court’s conclusion on those issues. Thus, the Court
must now turn to the substance of those claims.
II.

Freedom of Association – First and Fourteenth Amendments
“It is beyond debate that freedom to engage in association for the

advancement of beliefs and ideas is an inseparable aspect of the ‘liberty’ assured
by the Due Process Clause of the Fourteenth Amendment, which embraces [the
First Amendment].” NAACP v. Alabama, 357 U.S. 449, 460 (1958). But although
the “rights of voters are fundamental, not all restrictions imposed by the States . . .
impose constitutionally-suspect burdens on voter’s rights to associate or to choose
among candidates.” Anderson v. Celebrezze, 460 U.S. 780, 788 (1983). To
resolve challenges to specific provisions of a State’s election laws, a court:
must first consider the character and magnitude of the asserted injury
to the rights protected by the First and Fourteenth Amendments that the
plaintiff seeks to vindicate. It then must identify and evaluate the
precise interests put forward by the State as justifications for the burden
imposed by its rule. In passing judgment, the Court must not only
determine the legitimacy and strength of each of those interests; it also
must consider the extent to which those interests make it necessary to
burden the plaintiff’s rights. Only after weighing all these factors is the
reviewing court in a position to decide whether the challenged
provision is unconstitutional. The results of this evaluation will not be
automatic; as [the Supreme Court has] recognized, there is no
“substitute for the hard judgments that must be made.”
Id. at 789 (quoting Storer v. Brown, 415 U.S. 724, 730 (1974)) (internal citations
omitted).

18

Plaintiffs argue their association rights are burdened because Texas’
WTA scheme: (1) discards or dilutes the votes of minority party members and
magnifies the impact of majority party votes; (2) disincentivizes voters from
joining or participating in minority parties and discourages voting by minority
party members; and (3) eliminates all practical opportunities for non-dominant
party voters in Texas to effectively voice their preference for President. (Dkt. # 1
at 3–4, 7, 13–14, 18; Dkt. # 27 at 31.)
However, the Court concludes that these assertions do not state a
cognizable burden on the Plaintiffs’ First and Fourteenth Amendment associational
rights. “[T]he function of the election process is ‘to winnow out and finally reject
all but the chosen candidates.’”9 Burdick v. Takushi, 504 U.S. 428, 438 (1992)
(quoting Storer, 415 U.S. at 735). “Attributing to elections a more generalized
expressive function would undermine the ability of States to operate elections
fairly and efficiently.” Id.
The instant case, and the alleged associational harms, are
distinguishable from those cases relied on by Plaintiffs. This case does not concern

9

Although under the Electoral College system the vote can be conceptualized as
one for individual electors, as even Plaintiffs recognize (see, e.g., Dkt. # 27 at 1,
14), the “preferred candidate” for whom citizens vote is not the electors, but the
presidential nominee his or herself. The candidate “chosen” by the State of Texas
is thus the Presidential candidate receiving the largest share of its citizens’ votes.
19

an issue of ballot access. See, e.g., Anderson, 460 U.S. at 782; Rhodes, 393 U.S. at
24–26. The candidate Plaintiffs preferred to vote for—the Democratic candidate—
was indisputably included on the ballot. Nor does it concern a deprivation of the
ability to cast a vote for the candidate of their choice, the “prime objective of most
voters in associating themselves with a particular party” discussed in Kusper v.
Pontike. 414 U.S. 51, 58 (1973). Each individual plaintiff indicated he or she was
able to and did vote for the Democratic candidate in every presidential election in
which he or she voted. (Dkt. # 1 at 8–10.)
This case also does not restrict a political party’s “associational
opportunities” in their party primary, the “crucial juncture at which the appeal to
common principles may be translated into concerted action, and hence to political
power in the community” discussed in Tashjian v. Republican Party of
Connecticut. 479 U.S. 208, 883 (1986). The “crucial juncture” described in
Tashjian is the ballot box, and Plaintiffs translated their common principles into
concerted action at this crucial juncture by all voting for former Secretary of State
Hillary Clinton and other Democratic Presidential candidates. Nor does it involve
the Petition Clause that was at issue in Borough of Duryea v. Guarnieri, as “the
Petition Clause protects the right of individuals to appeal to courts and other
forums established by the government for resolution of legal disputes.” 564 U.S.
379, 387 (2011). The vindication of Plaintiffs’ Petition Clause rights is
20

demonstrated by the existence and consideration of this very lawsuit. And
Reynolds v. Sims was decided under the Equal Protection Clause, not the First
Amendment’s guarantee of freedom of association. 377 U.S. at 566.
In short, Plaintiffs have provided no support in prevailing case law or
doctrine that the First Amendment’s associational guarantees cognize the harms
they allege.
Instead, Plaintiffs’ theories of associational harms most directly echo
those expressed in Justice Kagan’s concurrence in Gill v. Whitford, 138 S. Ct. 1916
(2018). Although the case was decided on standing grounds related to a “one
person, one vote” challenge to partisan gerrymandering, Justice Kagan wrote
separately to discuss the “significant First Amendment concerns . . . when a State
purposely subjects a group of voters or their party to disfavored treatment.” Id. at
1938. These “associational harm[s] can “ravage[] the party [a voter] works to
support” by “depriv[ing party members] of their natural political strength[,]”
causing them to “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.
And “placing a state party at an enduring electoral disadvantage . . . weakens its
capacity to perform all its functions.” Id.

21

But these harms arise by virtue of “subjecting a group of voters or
their party to disfavored treatment by reason of their view,” infringing “‘the ability
of citizens to band together in promoting among the electorate candidates who
espouse their political views.’” Vieth v. Jubelirer, 541 U.S. 267, 314 (2004)
(quoting Cal. Democratic Party v. Jones, 530 U.S. 567, 574 (2000). By contrast,
the harms alleged by Plaintiffs do not occur “by reason of their views.” Whatever
disadvantage Plaintiffs suffer is a consequence only of there being more
Republican voters than Democratic voters in Texas and Plaintiffs’ resulting lack of
electoral success. “The First Amendment right to associate and to advocate
provides no guarantee that a speech will persuade or that advocacy will be
effective.” Smith v. Ark. State Highway Emps., Local 1315, 441 U.S. 463, 464–65
(1979). Instead, “the function of the election process” is not to vindicate every
view expressed at the ballot box, but to “to winnow out and finally reject all but the
chosen candidates.” Burdick, 504 U.S. at 438 (quoting Storer, 415 U.S. at 735).
As Plaintiffs repeatedly state, “the basic reality of Texas’ elections
today” is that voters “cast a ballot for the president.” (See, e.g., Dkt. # 27 at 1, 14.)
It is beyond dispute that in determining who received more votes for President in
Texas, Plaintiffs’ individual votes were counted just the same as any other voter,
and that they were permitted the opportunity to express their Presidential
preference by means of that vote. Whatever disincentive to vote or participate in
22

minority parties arises from their preferred candidate having failed to receive more
votes than her opponent. But that one candidate will lose by virtue of receiving
fewer votes, and that her supporters will be thereby dispirited and disincentivized,
is an inescapable reality of democracy. It does not state a cognizable First
Amendment burden on free association. Further, that Plaintiffs’ votes failed to win
them any Electors for their preferred candidate does not mean their opportunity to
express their Presidential preference was ineffective because “no . . . group has a
right under the Constitution to insist that state electoral systems be designed, where
possible, to give its members electoral control over the selection of persons for
particular political offices[,]” including presidential Electors. Hitson, 446 F. Supp.
at 676.
Finally, even were this Court to conclude Plaintiffs had adequately
alleged First and Fourteenth Amendment associational harms, those harms are
justified by Texas’ interest in maximizing its electoral power by having its
Presidential Electors vote in a unified bloc. As previously stated, no less than
Thomas Jefferson recognized the merit and necessity of this “protect[ion] . . .
against the use of [WTA] by the other States” in recommending Virginia adopt
WTA, despite his own personal preference for district-based selection of Electors.
Williams, 288 F. Supp. at 626. As 47 other states and the District of Columbia also
utilize WTA systems, the impetus—as recognized by Jefferson—for Texas’ policy
23

under this interest is well established. As such, a divided slate of Electors would
greatly diminish Texas’ influence in the Electoral College and its ability to elect the
Presidential candidate chosen by the majority of its citizens. Moreover, that nearly
all States have implemented this policy, and have done so since 1832, see
McPherson, 146 U.S. at 32, only further underscores the non-pretextual nature of
the asserted interest.10
For these reasons, Plaintiffs’ First and Fourteenth Amendment
Freedom of Association cause of action must be DISMISSED.
III.

Section 2 of the VRA
Section 2 of the VRA prohibits any “standard, practice, or procedure

. . . which results in a denial or abridgement of the right of any citizen of the
United States to vote on account of race or color,” 52 U.S.C. § 10301(a), or by
virtue of membership in “a language minority group[,]” 52 U.S.C. § 10303(f)(2).
A violation of Section 2:
is established if, based on the totality of circumstances, it is shown that
the political processes leading to nomination or election in the State or
political subdivision are not equally open to participation by members
of a class of citizens . . . in that its members have less opportunity than

10

The Court recognizes that if WTA systems were struck down nationwide, the
validity of this interest would seem to vanish. However, this Court is not in the
position to award such a remedy. This suit, as brought by Plaintiffs, only
challenges the WTA system in Texas and does not request any nationwide
injunction or any other remedy that would reach beyond the borders of Texas.
24

other members of the electorate to participate in the political process
and to elect representatives of their choice.
52 U.S.C. § 10301(b); see also Gingles, 478 U.S. at 48 (“Minority voters who
contend [a violation of] § 2, must prove that the use of a multimember electoral
structure operates to minimize or cancel out their ability to elect their preferred
candidates.”).
Plaintiffs argue Texas’ WTA method for choosing Presidential
Electors violates this statutory guarantee. Plaintiffs rely on the analytical
framework established by the Supreme Court in Thornburg v. Gingles in
scrutinizing North Carolina’s “legislative decision to employ multimember, rather
than single-member, districts in the contested jurisdictions . . . .” 478 U.S. at 47.
Plaintiffs invoke Gingles by analogizing a WTA system of selecting Electors to
that of an at-large, i.e. multimember, voting district, congruent to the whole of the
State of Texas. (Dkt. # 1 at 6, 22.)
As a threshold matter, the Court firmly agrees with Plaintiffs that
Section 2 the VRA applies to Presidential Elections. The language of Section 2 is
intentionally broad and applies to “[e]very election in which registered Electors are
permitted to vote . . . .” Chisholm v. Romer, 501 U.S. 380, 392 (1991). Section 2
is “largely . . . a restatement of the Fifteenth Amendment.” Id. And the Fifteenth
Amendment was “intended to [apply] in presidential elections.” Rhodes, 393 U.S.

25

at 23. However, the Court concludes that Plaintiffs have failed to state a claim
under Section 2 of the VRA.
“Multimember districts and at-large election schemes . . . are not per
se violative of minority voters’ rights.” Gingles, 478 U.S. at 48. Gingles requires
that Plaintiffs challenging an at-large system must show: “(1) the group is
sufficiently large and geographically compact to constitute a majority in a singlemember district; (2) it is politically cohesive; and (3) the white majority votes
sufficiently as a bloc to enable it usually to defeat the minority’s preferred
candidate.” League of United Latin American Citizens, Council No. 4434 v.
Clements, 999 F.2d 831, 849 (5th Cir. 1993) (citing Growe v. Emison, 507 U.S. 25,
39 (1993)). Plaintiffs’ allegations fail, at the very least, to satisfy the third prong of
the Gingles test.11
According to Plaintiffs, in 2008 and 2016, 27% and 31% respectively
of white voters in Texas voted for the Democratic candidate for President,
undercutting the premise that whites vote in a uniform bloc. (Dkt. # 1 at 26.) And
37% and 39% respectively of Hispanic voters voted for the Republican candidate.
(Id. at 25.) Thus not only did a sizable number of white voters vote for the

11

The Court also questions whether the Plaintiffs have satisfied the second prong,
at least as it relates to Hispanics in Texas. According to Plaintiffs, 37% and 39% of
Hispanics did not vote for the Democratic Presidential candidate in 2008 and 2016
respectively. (Dkt. # 1 at 25.) In 2012, 27% did not. (Id.)
26

candidate preferred by the asserted minority groups, but a sizable number of nonwhite voters did not.
Taking the relevant numbers advanced by Plaintiffs in their complaint,
in 2008 and 2016, Hispanic voters who voted for the Republican candidate
constituted roughly 16% of the voting electorate, nearly twice the margin by which
the Democratic Candidate lost the 2016 presidential election in Texas. (See Dkt.
# 1 at 2, 26.) If nearly 40% of Hispanic voters had not voted for the Republican
candidate,12 the combined strength of minority voters and the large number of
white “crossover” voters would have been able to carry the Presidential election in
Texas, challenging the assertion that whites vote as a legally significant bloc. See
Gingles, 478 U.S. at 31 (“In general, a white bloc vote that normally will defeat the
combined strength of minority support plus white “crossover” votes rises to the
level of legally significant white bloc voting.”)
The facts alleged by Plaintiffs, therefore, strongly implicate the
conclusion that the relevant bloc frustrating Plaintiffs’ election success is not
whites but Republicans. As the Fifth Circuit has recognized, “[t]here is . . . a
powerful argument supporting a rule that plaintiffs, to establish legally significant

12

A roughly 16% swing in Hispanic voters from Republican to Democrat would
have been enough to swing the 2016 Presidential election in Texas to the
Democratic candidate.
27

racial bloc voting, must prove that their failure to elect representatives of their
choice cannot be characterized as a mere euphemism for political defeat at the
polls, or the result of partisan politics.” Clements, 999 F.2d at 859 (citing
Whitcomb v. Chavis, 403 U.S. 124, 153 (1993)). As the Fifth Circuit elaborated,
based on the Supreme Court’s decision in Whitcomb:
Absent evidence that minorities have been excluded from the political
process, a lack of success at the polls is not sufficient to trigger judicial
intervention. Courts must undertake the additional inquiry into the
reasons for, or causes of, these electoral losses in order to determine
whether they were the product of partisan politics or racial vote
dilution, political defeat or built-in bias. It is only upon concluding that
a minority group’s failure to prevail at the polls, that is, their failure to
attract the support of white voters, was the result or function of racial
vote dilution or built-in bias, that a court may find that minority
plaintiffs have suffered a denial or abridgement of the right . . . to vote
on account of race or color. . . .
[F]ailures of a minority group to elect representatives of its choice that
are attributable to partisan politics provide no grounds for relief.
Section 2 is a balm for racial minorities, not political ones—even
though the two often coincide. The Voting Rights Act does not
guarantee that nominees of the Democratic Party will be elected, even
if [minority] voters are likely to favor that party’s candidates. Rather,
§ 2 is implicated only where Democrats lose because they are black,
not where blacks lose because they are Democrats.
Clements, 999 F.2d at 853–54 (quotations marks and internal citations omitted);
see also Johnson v. De Grandy, 512 U.S. 997, 1014 n.11 (1994) (“[T]he ultimate
right of § 2 is equality of opportunity, not a guarantee of electoral success for
minority-preferred candidates of whatever race.”)

28

That a similar pattern also emerges under WTA systems in states
where Democrats hold political majorities underscores that the animating issue
here is partisan, not racial. If “the Democrats won” the election—as they did under
an identical mechanism in majority democratic states—Plaintiffs “would have had
no justifiable complaints about representation.” Whitcomb, 403 U.S. at 152. Thus,
while “[t]he voting power of [Plaintiffs] may have been ‘cancelled out’ . . . this
seems a [mere] euphemism for political defeat at the polls.” Id. at 153.
Moreover, satisfaction of Gingles’ three “‘preconditions,’ is necessary,
but not sufficient to establish liability under § 2.” Clements, 999 F.2d at 849.
(internal citations omitted). “Plaintiffs must also show that, under the ‘totality of
circumstances,’ they do not possess the same opportunities to participate in the
political process and elect representatives of their choice enjoyed by other voters.”
Id. The same “cancelling out” of political strength Plaintiffs complain of was also
inflicted on a sizable minority of white Texans and many mostly-white Republican
minorities in majority Democratic states, by virtue of political affiliation, not race.
The simple fact is that Plaintiffs in this case were not:
any more underrepresented than . . . whites who also voted Democratic
and lost, or any more discriminated against than other interest groups
or voters . . . with allegiance to the Democratic Party, or, conversely,
and less represented than Republican[s in areas] of Republican defeat[.]
. . . The mere fact that one interest group or another concerned with the
outcome of [the] election[] has found itself outvoted and without
[Electors] of its own provides no basis for invoking constitutional
29

remedies where, as here, there is no indication that this segment of the
population is being denied access to the political system.
Whitcomb, 403 U.S. at 154–55. Plaintiffs’ defeats were shared equally among all
members of their political party and members of the opposing political party in
other states.
Thus the inescapable conclusion is that Plaintiffs were unable to elect
Electors for their candidate of their choice because there are fewer Democrats who
voted in Texas, not because the system operates to cancel out the ability of racial
minorities to elect their preferred candidate—roughly 40% of Hispanics were able
to do so, and roughly 30% of whites were not. (See Dkt. # 1 at 25, 26.)
Finally, “[b]ecause the very concept of vote dilution implies—and,
indeed, necessitates—the existence of an ‘undiluted’ practice against which the fact
of dilution may be measured, a § 2 plaintiff must also postulate a reasonable
alternative voting practice to serve as the benchmark ‘undiluted’ voting practice.”
Reno v. Bossier Parish Sch. Bd., 520 U.S. 471, 480 (1997) (citing Holder v. Hall,
512 U.S. 874, 880 (1994)). Plaintiffs fail to present one.
As stated by Plaintiffs, their “primary remedy is to allow the state to
devise its own constitutional scheme for the selection of Electors.” (Dkt. # 27 at
36; see also Dkt. # 1 at 32.) This vague, unspecified remedy fails to adequately
define an undiluted voting practice for this Court to use as a benchmark to compare
with the current practice of the State of Texas. And Plaintiffs specifically disclaim
30

the readily apparent alternative of Congressional district-based selection as equally
unrepresentative. (Dkt. # 1 at 5, 32.) Plaintiffs cannot shift the burden of
presenting an undiluted benchmark onto Defendants in this way.
To the extent Plaintiffs specify any adequate alternate scheme, they
propose that “if state authorities fail to propose or implement a valid method of
selecting Electors . . . ,” the Court should “order a proportional method of
distributing Electors, selecting a proportional number of Electors to each party,
based on the number of votes each party’s candidate receives statewide.” (Dkt. # 1
at 32.) But Section 2 of the VRA specifically disavows “a right to have members
of a protected class elected in numbers equal to their proportion in the population.”
52 U.S.C. § 10301(b). If Section 2 does not entail a right of racial minorities to
proportional representation, it certainly cannot entail such right of political
minorities.
The “on account of race or color” requirement of Section 2 of the
VRA was intended to “effectuate the Fifteenth Amendment’s guarantee that no
citizen’s right to vote shall be denied or abridged . . . on account of race, color, or
previous condition of servitude.’” Voinovich v. Quilter, 507 U.S. 146, 152 (1993)
(quoting U.S. Const. amend. XV). If Section 2 permitted or required a remedy of
proportional representation in the Electoral College for political parties it would
not be “congruent or proportional” to the violation of the asserted constitutional
31

right, which is required of remedial legislation under the Reconstruction
Amendments. See City of Boerne v. Flores, 521 U.S. 507, 520 (1997); see also
City of Mobile, 446 U.S. at 79, superseded by statute on other grounds as stated by
Gingles, 478 U.S. at 71 (“[T]he [Supreme] Court has sternly set its face against the
claim, however phrased, that the Constitution somehow guarantees proportional
representation.”).
Accordingly, Plaintiffs claim under Section 2 of the VRA must be
DISMISSED.
CONCLUSION
For the reasons stated, the Court GRANTS Defendants’ Motion to
Dismiss. (Dkt. # 21.) Because the Court finds Plaintiffs’ Fourteenth Amendment
“one person, one vote” claim is precluded by binding precedent, that claim is
DISMISSED WITH PREJUDICE. Further, because the Court believes any
amendment to Plaintiffs’ First Amendment freedom of association and VRA
Section 2 claims would be futile—for the reasons discussed in this order—those
claims are also DISMISSED WITH PREJUDICE.
IT IS SO ORDERED.
DATED: San Antonio, Texas, February 25, 2019.

_____________________________________

32

David Alan Ezra
Senior United States Distict Judge