Koller v. Brown

• Decision Date: 16 December 2016
• Docket Number: Case No. 5:16–cv–07069–EJD
• Parties: Vinzenz J. KOLLER, an individual and Presidential Elector, Plaintiff, v. Jerry BROWN, in his official capacity as Governor for the State of California, et al., Defendants.
• Court: U.S. District Court — Northern District of California

224 F.Supp.3d 871

Vinzenz J. KOLLER, an individual and Presidential Elector, Plaintiff,

v.Jerry BROWN, in his official capacity as Governor for the State of California, et al., Defendants.

Case No. 5:16–cv–07069–EJD

United States District Court, N.D. California, San Jose Division.

Signed December 16, 2016

Andrew John Dhuey, Attorney at Law, Berkeley, CA, Melody Ann Kramer, Kramer Law Office, Inc., San Diego, CA, for Plaintiff.

Kevin A. Calia, Department of Justice, Government Law Section, Sacramento, CA, for Defendants.

ORDER DENYING PLAINTIFF'S MOTION FOR TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION

EDWARD J. DAVILA, United States District Judge

On Tuesday, November 8, 2016, the citizens of the United States cast their votes for the offices of President and Vice President. The Democratic candidates for those offices, Hillary Rodham Clinton and Timothy Kaine, "won the nationwide popular vote by at least 2.7 million votes, and won the California popular vote by a large margin." Dkt. No. 1, at ¶ 13. Yet, the Constitution does not permit Presidents and Vice Presidents to be chosen based on the outcome of the popular vote. They are instead selected by a group of individuals designated in each state, known as "electors," who together make up an Electoral College. The Electoral College chooses who will be President and Vice President, and if each state's electors vote consistent with the popular vote of their respective states on December 19, 2016, Donald J. Trump and Michael Pence will succeed to those offices.

This case involves a California elector, Plaintiff Vincenz J. Koller ("Plaintiff"), who believes it is his duty "to vote in the best interests of the state and nation" by selecting the persons he feels are "properly fit and qualified to become President and/or Vice-President." Decl., Dkt. No. 4, at ¶ 10. Such persons for the office of President may be "Mitt Romney, John Kasich, or another qualified compromise candidate" other than Trump. Decl., Dkt. No. 30, at ¶ 3. California law, however, requires that Plaintiff cast his electoral vote for Clinton and specifies a punishment if he does not. Through this action, Plaintiff seeks to invalidate as unconstitutional the California statutes coercing his selection.

Presently before the court is Plaintiff's Motion for Temporary Restraining Order ("TRO") and Preliminary Injunction. Dkt. No. 4. Defendants Governor Jerry Brown, Attorney General Kamala Harris, and Secretary of State Alex Padilla (collectively, "Defendants") oppose the motion. Dkt. Nos. 28, 29. As do proposed intervenors California Republican Party, Donald J. Trump for President, Inc. and Trump himself. Dkt. No. 27. Having considered the relevant pleadings and arguments presented at the hearing on December 16, 2016, the court will deny Plaintiff's motion for the reasons explained below.

I. BACKGROUND

Plaintiff is a resident of Monterey County and an appointed elector of the California Democratic Party. Decl., Dkt. No. 4, at ¶ 2. He and all other members of the California Electoral College are due to "meet, deliberate and cast" votes in the election of the President and Vice President on December 19, 2016, at approximately 2:00 p.m. Decl., Dkt. No. 30, at ¶ 2. Plaintiff states that under current California law, specifically Elections Code §§ 6906¹ and 18002,² he is compelled to vote for the Democratic candidates for President and Vice President, Clinton and Kaine, or face punitive sanctions. Decl., Dkt. No. 4, at ¶¶ 6–8.

But at the same time, Plaintiff believes it is his duty under the United States Constitution to vote for the person who he believes will make the best President. Decl., Dkt. No. 30, at ¶ 3. He has decided that "Mitt Romney, John Kasich or another qualified compromise candidate" may be the "correct choice" for his vote. Id . However, Plaintiff is unwilling to vote for Romney, Kasich or anyone other than Clinton because doing so may subject him to the penalties described in Elections Code § 18002. Id . at ¶ 8.

Additionally, Plaintiff does not believe electors "should be required to ignore facts and evidence that come to their attention" from the date of the election to the date of their vote. Decl., Dkt. No. 4, at ¶ 4. In particular, Plaintiff states that he and other electors "have learned that the CIA has concluded with ‘high confidence’ that Russia sought to influence the U.S. election and that President Obama and lawmakers in Congress have decided to conduct a bipartisan investigation" into the matter. Id . Plaintiff believes that "ensuring that no one be put into the office of the President or Vice-President that might be subject to foreign influence is part of the Electoral College job." Id .

Plaintiff commenced this action December 9, 2016, and seeks a declaratory judgment that Elections Code §§ 6906 and 18002 are unconstitutional as well as an injunction prohibiting Defendants from enforcing the statutes against electors. The present TRO application followed on December 12, 2016.

II. LEGAL STANDARD

The standard for issuing a TRO is the same as that for the issuance of preliminary injunction. See New Motor Vehicle Bd. of Cal. v. Orrin W. Fox Co. , 434 U.S. 1345, 1347 n.2, 98 S.Ct. 359, 54 L.Ed.2d 439 (1977). Thus, much like a preliminary injunction, a TRO is "an extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief." Winter v. Natural Resources Defense Council, Inc. , 555 U.S. 7, 22, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008).

"To obtain a preliminary injunction, the moving party ‘must establish that: (1) it is likely to succeed on the merits; (2) it is likely to suffer irreparable harm in the absence of preliminary relief; (3) the balance of equities tips in its favor; and (4) an injunction is in the public interest.’ " Idaho v. Coeur D'Alene Tribe , 794 F.3d 1039, 1046 (9th Cir. 2015) (quoting Pom Wonderful LLC v. Hubbard , 775 F.3d 1118, 1124 (9th Cir. 2014) ).

Alternatively, " ‘serious questions going to the merits' and a hardship balance that tips sharply towards the plaintiff can support issuance of a preliminary injunction, so long as the plaintiff also shows that there is a likelihood of irreparable injury and that the injunction is in the public interest." Alliance for the Wild Rockies v. Cottrell , 632 F.3d 1127, 1135 (9th Cir. 2011). This articulation represents "one alternative on a continuum" under the " ‘sliding scale’ approach to preliminary injunctions employed" by the Ninth Circuit. Id . at 1131–32. But "[t]he critical element in determining the test to be applied is the relative hardship to the parties." Benda v. Grand Lodge of the Int'l Ass'n of Machinists & Aerospace Workers , 584 F.2d 308, 315 (9th Cir. 1978). "If the balance of harm tips decidedly toward the plaintiff, then the plaintiff need not show as robust a likelihood of success on the merits as when the balance tips less decidedly." Id .

Whether to grant or deny a TRO or preliminary injunction is a matter within the court's discretion. See Miss Universe, Inc. v. Flesher , 605 F.2d 1130, 1132–33 (9th Cir. 1979).

III. DISCUSSION

A. Plaintiff Has Identified a Serious Question

To satisfy the first element of the standard for injunctive relief, it is not necessary for the moving party to "prove his case in full" (Univ. of Tex. v. Camenisch , 451 U.S. 390, 395, 101 S.Ct. 1830, 68 L.Ed.2d 175 (1981) ), or show that he is "more likely than not" to prevail. (Leiva–Perez v. Holder , 640 F.3d 962, 966 (9th Cir. 2011) ). Instead, he must demonstrate a "fair chance of success on the merits" or raise questions "serious enough to require litigation." Benda , 584 F.2d at 315.

Here, Plaintiff argues that Elections Code §§ 6906 and 18002 are unconstitutional because, by mandating that California electors cast their vote for their party's candidate or face penalties, they violate Article II, § 1 of the Constitution,³ as amended by the Twelfth Amendment.⁴ To understand why Plaintiff believes this is so, it is first necessary to examine documents that preceded the Constitution and promoted its adoption.

In Federalist No. 68, Alexander Hamilton described the manner of electing a President "by men chosen by the people for the special purpose" as, if not perfect, "at least excellent." He believed it desirable to establish an Electoral College so the choice of the President "would be made by men most capable of analyzing the qualities adapted to the station, and acting under circumstances favorable to deliberation, and to a judicious combination of all the reasons and inducements which were proper to govern their choice." Hamilton argued that a "small number of persons, selected by their fellow-citizens from the general mass" would be "most likely to possess the information and discernment requisite to such complicated investigations." He also felt the Electoral College would afford little opportunity to "tumult and disorder" and achieve opposition to "cabal, intrigue, and corruption," as those were the "most deadly adversaries of republican government."

Furthermore, Hamilton opined that the process of election through the Electoral College "affords to a moral certainty, that the office of President will never fall to the lot of any man who is not in an eminent degree endowed with the requisite qualifications." He continued:

Talents for low intrigue, and the little arts of popularity, may alone suffice to elevate a man to the first honors in a single State; but it will require other talents, and a different kind of merit, to establish him in the esteem and confidence of the whole Union, or of so considerable a portion of it as would be necessary to make him a successful candidate for the distinguished office of President of the United States. It will not be too strong to say, that there will be a constant probability of seeing the station filled by characters pre-eminent for ability and virtue.

Hamilton's statements in Federalist No. 68 are informative on the meaning intended by the...