Baten v. McMaster, 072120 FED4, 19-1297

Docket Nº:19-1297
Opinion Judge:NIEMEYER, CIRCUIT JUDGE
Party Name:EUGENE BATEN; CHESTER WILLS; CHARLETTE PLUMMER-WOOLEY; BAKARI SELLERS; CORY C. ALPERT; BENJAMIN HORNE, Plaintiffs-Appellants, v. HENRY MCMASTER, in his official capacity as Governor of the State of South Carolina; MARK HAMMOND, in his official capacity as Secretary of the State of South Carolina; SOUTH CAROLINA ELECTION COMMISSION; BILLY WAY, J...
Attorney:Jacob Max Rosen, MUNGER, TOLLES & OLSON, LLP, San Francisco, California, for Appellants. Thomas Ashley Limehouse, Jr., OFFICE OF THE GOVERNOR OF SOUTH CAROLINA, Columbia, South Carolina, for Appellees. David Boies, Armonk, New York, James P. Denvir, III, Amy J. Mauser, Karen L. Dunn, Lisa Barclay...
Judge Panel:Before NIEMEYER, WYNN, and FLOYD, Circuit Judges. WYNN, Circuit Judge, dissenting
Case Date:July 21, 2020
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit
 
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EUGENE BATEN; CHESTER WILLS; CHARLETTE PLUMMER-WOOLEY; BAKARI SELLERS; CORY C. ALPERT; BENJAMIN HORNE, Plaintiffs-Appellants,

v.

HENRY MCMASTER, in his official capacity as Governor of the State of South Carolina; MARK HAMMOND, in his official capacity as Secretary of the State of South Carolina; SOUTH CAROLINA ELECTION COMMISSION; BILLY WAY, JR., in his official capacity as a Chair of the Election Commission; MARK BENSON, in his official capacity as a Commission Member of the Election Commission; MARILYN BOWER; E. ALLEN DAWSON, in his official capacity as a Commissioner Member of the Election Commission; NICOLE SPAIN WHITE, in her official capacity as a Commission Member of the Election Commission, Defendants-Appellees.

EDWARD FOLEY, Amicus Curiae.

No. 19-1297

United States Court of Appeals, Fourth Circuit

July 21, 2020

Argued: May 26, 2020

Appeal from the United States District Court for the District of South Carolina, at Charleston. David C. Norton, District Judge. (2:18-cv-00510-DCN)

ARGUED:

Jacob Max Rosen, MUNGER, TOLLES & OLSON, LLP, San Francisco, California, for Appellants.

Thomas Ashley Limehouse, Jr., OFFICE OF THE GOVERNOR OF SOUTH CAROLINA, Columbia, South Carolina, for Appellees.

ON BRIEF:

David Boies, Armonk, New York, James P. Denvir, III, Amy J. Mauser, Karen L. Dunn, Lisa Barclay, Amy L. Neuhardt, Hamish P.M. Hume, Melissa Shube, BOIES, SCHILLER & FLEXNER LLP, Washington, D.C.; Randall L. Allen, B. Parker Miller, Max Marks, Cassandra K. Johnson, ALSTON & BIRD LLP, Atlanta, Georgia; Richard Harpootlian, Christopher P. Kenney, RICHARD A. HARPOOTLIAN, PA, Columbia, South Carolina, for Appellants.

Vordman Carlisle Traywick, III, ROBINSON GRAY STEPP & LAFFITTE, LLC, Columbia, South Carolina, for Appellees.

Jeffrey I. Pasek, Philadelphia, Pennsylvania, for Amicus Curiae.

Before NIEMEYER, WYNN, and FLOYD, Circuit Judges.

NIEMEYER, CIRCUIT JUDGE

A group of South Carolina voters commenced this action to challenge the "winner-take-all" aspect of South Carolina's process for appointing its nine Electors to the Electoral College.

Under South Carolina's winner-take-all appointment process, every eligible voter in South Carolina is given the right to cast a vote for candidates for President and Vice President, and every such vote is given the same weight and dignity. The vote so cast is, under South Carolina law, an indirect vote for a slate of nine Electors committed to a presidential ticket, and the Electors then vote for those candidates in the Electoral College. Thus, the candidates receiving the most votes secure the State's appointment of Electors committed to vote for them in the Electoral College. The losing candidates have no Electors appointed to vote for them in the Electoral College, as the method for appointing Electors is a unity method in which the entire slate of Electors is awarded to the winning candidates.

In their complaint, the plaintiffs alleged that this winner-take-all process dilutes the voting power of the State's political minority and burdens their ability to advocate effectively for their preferred political candidates, in violation of the First and Fourteenth Amendments. They also alleged that the process prevents Black citizens from exercising electoral power in presidential elections commensurate with the size of their population, in violation of the Voting Rights Act ("VRA").

The district court granted South Carolina's motion to dismiss the complaint, concluding that South Carolina's winner-take-all process complies with the Constitution and the requirements of the VRA. We agree and affirm.

I

The U.S. Constitution provides that the President and Vice President shall be elected by a College[*] of "Electors" appointed by the States "in such Manner as the Legislature[s] thereof may direct." U.S. Const. art. II, § 1, cl. 2. The number of Electors allocated to each State for appointment is equal to the "Number of Senators and Representatives to which the State may be entitled in the Congress." Id. Once appointed, the Electors are directed to "meet in their respective states" on a day determined by Congress and vote "in distinct ballots" for President and Vice President. Id. amend. XII. The votes are then transmitted to Washington, D.C., where the President of the Senate counts them. See id. "The person having the greatest number of votes for President, shall be the President, if such number be a majority of the whole number of Electors appointed," and the same is so for the Vice President. Id.

In exercising their authority to appoint Electors, the States have, over the years, adopted different methods. For example, in the first presidential election in 1788-89, the legislatures in five States appointed the State's Electors directly, and in other States, the Electors were elected by the people in districts created by the State. Pennsylvania provided for a statewide election of Electors - Electors "on a general ticket" pledged to a presidential candidate. See McPherson v. Blacker, 146 U.S. 1, 29-30 (1892). In the decades that followed, the States continued to exercise their appointment authority variously, as their legislatures determined. Some legislatures continued to appoint Electors directly; some authorized the voters to select a slate of Electors by a statewide election; some authorized voters to select individual Electors by districts; and some created hybrid systems. But eventually, as it became understood that a unified slate of Electors would give the States the greatest influence in the Electoral College, States made the political decision that the selection of a "general ticket" of Electors pledged to the winning candidate - the winner-take-all approach - was advantageous. As of 1836, all States except South Carolina appointed their Electors by statewide popular vote. See id. at 32. And following the Civil War, South Carolina followed suit. At the present time, every State but Maine and Nebraska awards all of its electoral votes to the presidential ticket that received a plurality of the votes statewide. And in Maine and Nebraska, two Electors are selected by statewide election and the remainder are selected by districts. See Chiafalo v. Washington, ___ S.Ct. ___, ___ (2020) [slip op., at 4 n.1].

South Carolina's current statutory scheme implements a rather typical winner-take-all process. See Chiafalo, ___ S.Ct. at ___ [slip. op., at 4-6] (describing in general terms the standard process used by States to select Electors and to ensure their votes for pledged candidates). Under its scheme, each political party recognized in South Carolina submits a list of Elector candidates to the Secretary of State prior to Election Day. See S.C. Code Ann. § 7-19-70. Those Elector candidates are required to "declare which candidate for president and vice-president he will vote for if elected" and, if elected, are directed to vote in the Electoral College "for the president and vice-president candidates for whom they declared." Id. § 7-19-80. The names of the Elector candidates submitted by the parties to the Secretary of State, however, do not appear on the ballot. Instead, the voters are presented with "the names of the candidates for President and Vice President" nominated by each party, and a "vote for the candidates named on the ballot [constitutes] a vote for the electors of the party by which those candidates were nominated." Id. § 7-19-70. After the polls close, South Carolina's Secretary of State receives the vote tally and appoints the slate of Electors submitted by the party whose presidential and vice-presidential candidates received the most votes. Id. The appointed Electors are then required, on the day designated by Congress, to cast their votes for those candidates. See id. § 7-19-80. This winner-take-all process thus involves the statewide, indirect election of a slate of Electors pledged to the candidates on the ballot who receive a plurality of the votes. The Electors so appointed then vote for their candidates for President and Vice President at the Electoral College election held at the time specified by Congress - currently, the first Monday after the second Wednesday in the December following the election. See 3 U.S.C. § 7.

II

The six plaintiffs, three of whom are African-American, are voting-age residents of various South Carolina counties who have voted for the Democratic presidential candidate in past elections and plan to do so again in the future. They commenced this action to challenge "the decision of South Carolina to award and select Electors on a [winner-take- all] basis," and they named as defendants South Carolina's Governor, Secretary of State, and Election Commission, including its members - all sued in their official capacity and collectively referred to herein as "South Carolina." The complaint explicitly stated that it was not filed to challenge the Electoral College, "which is mandated by the Constitution," but rather to challenge the South Carolina statutory scheme adopted to select electors to the College on a winner-take-all basis. The plaintiffs alleged that "the political party of the leading candidate among South Carolina's voters selects every Elector, with a vote of every other South Carolina citizen rendered meaningless by receiving no Elector directly or through a political party." (Emphasis added). They explained that in the 2016 election, Donald Trump received roughly 55% of the popular vote in South Carolina but yet received all nine of the State's electoral votes, whereas Hillary Clinton received roughly 41% of the popular vote "but received none of the electoral votes from South Carolina." The complaint also asserted that under the scheme, African-American voters, who "represent over a quarter of...

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