Lyman v. Baker

Decision Date31 March 2020
Docket NumberNo. 18-2235,18-2235
Citation954 F.3d 351
Parties Richard J. LYMAN, William F. Weld, and Robert D. Capodilupo, Plaintiffs, Appellants, v. Charles D. BAKER, in his official capacity as Governor of the Commonwealth of Massachusetts ; and William Francis Galvin, in his official capacity as Secretary of the Commonwealth of Massachusetts, Defendants, Appellees.
CourtU.S. Court of Appeals — First Circuit

David Boies, Armonk, NY, with whom James P. Denvir III, Amy J. Mauser, Karen L. Dunn, Lisa Barclay, Amy L. Neuhardt, Hamish P.M. Hume, Washington, DC, Melissa Shube, Trevor P. Stutz, Nafees Syed, New York, NY, Boies Schiller Flexner LLP, Jennifer D. Hackett, Washington, DC, James R. Martin, Allison M. Vissichelli, Washington, DC, Zelle LLP, Mark Guerrero, Mary Whittle, Austin, TX, Guerrero & Whittle PLLC, Randall L. Allen, Atlanta, GA, Alston & Bird LLP, David H. Fry, J. Max Rosen, San Francisco, CA, Michael B. Desanctis, Washington, DC, Munger, Tolles & Olson LLP, Scott A. Martin, Irving Scher, Jeanette Bayoumi, New York, NY, Michael D. Hausfeld, Swathi Bojedla, Washington, DC, Hausfeld LLP, María Amelia Calaf, Jack A. Simms, Jr., Ryan A. Botkin, Katherine P. Chiarello, Austin, TX, Karen S. Vladeck, W. Reid Wittliff, Wittliff Cutter Austin, PLLC, and Samuel Issacharoff, New York, NY, were on brief, for appellants.

Amy Spector, Assistant Attorney General, with whom Maura Healey, Attorney General, and Robert E. Toone, Assistant Attorney General, were on brief, for appellees.

Before Torruella, Lipez, and Kayatta, Circuit Judges.

TORRUELLA, Circuit Judge.

The appellants in this case are three Massachusetts voters who challenge the constitutionality of the winner-take-all method for selecting presidential electors that Massachusetts has adopted pursuant to its authority under Article II of the United States Constitution. They allege that the winner-take-all elector-selection method violates their right to an equally weighted vote under the Equal Protection Clause of the Fourteenth Amendment as well as their associational rights under the First and Fourteenth Amendments. The district court dismissed their complaint for lack of standing and failure to state a claim. Even though we determine that the appellants do have standing to bring their claims, we agree that they have failed to state a claim upon which relief can be granted under either of their constitutional theories. Therefore, we affirm.

I.
A. Factual Background

Because this is an appeal from the granting of a motion to dismiss, "we rehearse the facts as they appear in the plaintiffs' complaint[ ] (including documents incorporated by reference therein)." Hochendoner v. Genzyme Corp., 823 F.3d 724, 728 (1st Cir. 2016).

The United States elects its president and vice president through the Electoral College, which is a body of electors appointed by each state in proportion to its representation in the Senate and the House of Representatives. U.S. Const. art. II, § 1, cl. 2 ; id. amend. XII. The candidate that receives a majority of those electors' votes wins the presidency. See id. amend. XII.1

Pursuant to its constitutional authority, the Commonwealth of Massachusetts ("Massachusetts") has enacted a statutory scheme that provides for the appointment of electors for president and vice president on a winner-take-all basis (the "WTA system"). See id. art. II, § 1, cl. 2 ; see generally Mass. Gen. Laws ch. 53-54. The core statutes providing the structure of the WTA system are established in Massachusetts General Laws chapter 53, section 8, as well as chapter 54, sections 43, 118, and 148. Chapter 53, section 8 states that "[t]he state committees of the respective political parties ... shall nominate the presidential electors" for their parties, which "shall include a pledge by the presidential elector to vote for the candidate named in the filing." Chapter 54, section 43 provides:

The names of the candidates for presidential electors shall not be printed on the ballot, but in lieu thereof the surnames of the candidates of each party for president and vice president shall be printed thereon in one line under the designation "Electors of president and vice president" and arranged in the alphabetical order of the surnames of the candidates for president, with the political designation of the party placed at the right of and in the same line with the surnames.

Section 118 of the same chapter proclaims:

The copies of the records of votes for presidential electors shall ... be examined by the governor and council, who shall thereafter declare ... the names of the persons who have received at least one-fifth of the entire number of votes cast for electors, and the number of votes received by each such person. The several persons, to the number of electors required to be chosen, who have received the highest number of votes so ascertained... shall ... be deemed to be elected....

Mass. Gen. Laws ch. 54, § 118 (emphasis added). Finally, section 148 provides:

The persons chosen as presidential electors shall meet at the state house on the date fixed by federal law next following their election ... and organize by the choice of a presiding officer and secretary. The state secretary shall call the meeting to order, call the roll of electors, and preside until a presiding officer shall be chosen. The secretary of the electors shall keep a journal of their proceedings and deposit the same in the office of the state secretary, where it shall be recorded and filed.

Id. § 148. As forty-seven other states plus the District of Columbia employ a version of it, the WTA system for appointing electors is the national norm.

What makes the combined effect of this statutory scheme winner-take-all is that the political party of the candidate who wins the popular vote in Massachusetts (by a majority or even a plurality) claims all eleven of Massachusetts's electors. Specifically, since Massachusetts mandates that its eleven electors vote for their party's candidate,2 see Mass. Gen. Laws ch. 53, § 8, winning the popular vote (regardless of the margin of victory) guarantees that all of Massachusetts's electoral votes go to that party's candidate, see Mass. Gen. Laws ch. 54, § 118.

By way of example, the Democratic candidate in the 2016 presidential election, Hillary R. Clinton, received 60% of the votes (1,995,196 votes) in Massachusetts's statewide election and therefore took all eleven electors. Meanwhile, now-President Donald J. Trump received 32.8% of the votes (1,090,893 votes) but took no electors. The 7.2% of the votes cast for other candidates, such as the Libertarian candidate, Gary Johnson, similarly yielded no electoral votes.

Richard J. Lyman, William F. Weld, and Robert D. Capodilupo (together "Appellants") reside and vote in Massachusetts. Weld, a former Republican Governor of Massachusetts, is currently a registered Libertarian. Lyman, a former senior official under two Republican Governors of Massachusetts (including Weld), and Capodilupo are both registered Republicans. Appellants have consistently voted for non-Democratic presidential candidates (i.e., Republican, Libertarian, or otherwise), and they intend to continue casting their ballots along such lines in future elections. Their grievance stems from the observation that the Democratic candidate has won the popular vote in Massachusetts (and thus all its electors) in each of the last eight presidential elections. Notably, "the same phenomenon occurs in reverse in heavily Republican states ...."

B. Procedural Background

On February 21, 2018, Appellants sued Charles D. Baker, the current Republican Governor of Massachusetts, and William Francis Galvin, the current Secretary of Massachusetts (together "the Commonwealth"), in their official capacities to challenge the constitutionality of the WTA system as applied in Massachusetts.3 Appellants are careful to stipulate that their quarrel is not with the Electoral College itself, which they acknowledge is mandated by the Constitution. In their complaint, Appellants allege two causes of action. First, they asseverate that the WTA system "violates the ‘one person, one vote’ principle" enshrined in the Equal Protection Clause of the Fourteenth Amendment (Count 1). Second, they assert that the WTA system "poses a severe burden" on their First and Fourteenth Amendment rights to "associate and to effectively express their political preference through voting that is not outweighed by any legitimate state interest" (Count II).

Appellants premise their equal protection claim on the notion that the "consequence" of the WTA system is that "votes for a losing presidential candidate are counted ... only to be discarded when another candidate wins more votes ...." Thus, they contend that "if an individual does not vote for the winning candidate in Massachusetts, that person's vote translates into no representation in the state's multi-member Electoral College delegation." Appellants allege that this rises to the level of arbitrary and disparate treatment that undermines the precept of "one person, one vote."

The essence of Appellants' associational rights claim is that by discarding their votes for President and thus "limiting [their] ability to express their political preferences," the WTA system "deprives" them of their "associational rights" simply because of their "political association and expression of political views at the ballot box." By ensuring that Appellants' (and similarly situated voters') "voices are not heard," the WTA system allegedly incentivizes presidential candidates to disproportionately focus their campaigning activities in key " ‘battleground’ states" (e.g., Florida, North Carolina, Ohio, and Pennsylvania), or swing states, with greater potential for positive electoral returns. Relatedly, Appellants allege that this feature contributes to the increasing vulnerability of the American election system to outside influences, such as hacking orchestrated by foreign governments.

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