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Brian Selden SBN 261828
JONES DAY
1755 Embarcadero Road
Palo Alto, California 94303
Telephone:
+1.650.687.4142
Facsimile:
+1.650.739.3900
bgselden@jonesay.com
Chad Readler (pro hac vice)
JONES DAY
325 John H. McConnell Boulevard, Suite 600
Columbus, Ohio 43215
Telephone:
+1.614.469.3939
Facsimile:
+1.614.461.4198
careadler@jonesday.com
Attorneys for Intervenors
PRESIDENT-ELECT DONALD J. TRUMP AND
DONALD J. TRUMP FOR PRESIDENT, INC.
Charles H. Bell, Jr. SBN 060553
Brian T. Hildreth SBN 214131
Terry J. Martin SBN 307802
BELL, McANDREWS & HILTACHK, LLP
455 Capitol Mall, Suite 600
Sacramento, California 95814
Telephone:
+1.916.442.7757
Facsimile:
+1.916.442.7759
cbell@bmhlaw.com
Attorneys for Intervenor
CALIFORNIA REPUBLICAN PARTY
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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
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VINZENZ J. KOLLER,
Plaintiff,
v.
JERRY BROWN, in his official capacity as
Governor for the State of California, et al.,
Defendants.
Case No. 5:16-cv-7069
OPPOSITION OF INTERVENORS
PRESIDENT-ELECT DONALD J.
TRUMP; DONALD J. TRUMP FOR
PRESIDENT, INC.; AND CALIFORNIA
REPUBLICAN PARTY TO PLAINTIFF’S
MOTION FOR TEMPORARY
RESTRAINING ORDER AND
PRELIMINARY INJUNCTION
Case 5:16-cv-07069-EJD Document 27 Filed 12/14/16 Page 2 of 30
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TABLE OF CONTENTS
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Page
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TABLE OF AUTHORITIES .......................................................................................................... ii
I.
THE COURT SHOULD NOT ENTERTAIN PLAINTIFF’S CLAIMS ............................ 1
A.
Laches Bars Plaintiff’s Claims ................................................................................ 1
B.
Purcell v. Gonzalez Bars Plaintiff’s Request For An Election-Related
Injunction ................................................................................................................ 3
C.
Plaintiff Lacks Standing To Bring His Claims ....................................................... 5
D.
This Case Presents A Non-Justiciable Political Question ....................................... 6
II.
PLAINTIFF IS NOT ENTITLED TO PRELIMINARY RELIEF ..................................... 7
A.
Plaintiff’s Article II and Twelfth Amendment Claims Are Unlikely To
Succeed ................................................................................................................... 7
1.
Precedent establishes that States may bind electors.................................... 8
2.
The original understanding of the Twelfth Amendment confirms
that States may bind electors ..................................................................... 11
3.
Longstanding practice confirms that States may bind electors ................. 12
4.
Plaintiff’s contrary arguments are unconvincing ...................................... 13
B.
Plaintiff’s Fourteenth Amendment Claim Is Unlikely To Succeed ...................... 16
C.
Plaintiff’s First Amendment Claim Is Unlikely To Succeed ................................ 16
D.
Plaintiff’s Statutory Claim Is Unlikely To Succeed .............................................. 19
E.
Plaintiff Fails To Satisfy The Remaining Prerequisites For Preliminary
Relief ..................................................................................................................... 21
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TABLE OF AUTHORITIES
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Page(s)
CASES
Alliance for the Wild Rockies v. Cottrell,
632 F.3d 1127 (9th Cir. 2011).....................................................................................................7
Ariz. State Legislature v. Ariz. Indep. Redistricting Comm’n,
135 S. Ct. 2652 (2015) ........................................................................................................10, 16
Beers v. Arkansas,
20 How. 527 (1857) ....................................................................................................................9
Brady Campaign v. Brownback,
110 F. Supp. 3d 1086 (D. Kan. 2015) .........................................................................................5
Burdick v. Takushi,
504 U.S. 428 (1992) ..................................................................................................................18
Burroughs v. United States,
290 U.S. 534 (1934) ..................................................................................................................10
Bush v. Gore,
531 U.S. 98 (2000) ......................................................................................................4, 9, 19, 21
Chula Vista Citizens for Jobs & Fair Competition v. Norris,
782 F.3d 520 (9th Cir. 2015).....................................................................................................18
Cohen v. Cowles Media Co.,
501 U.S. 663 (1991) ..................................................................................................................18
Colo. Outfitters Ass’n v. Hickenlooper,
823 F.3d 537 (10th Cir. 2016).....................................................................................................5
Crowell v. Benson,
285 U.S. 22 (1932) ....................................................................................................................20
Danjaq LLC v. Sony Corp.,
263 F.3d 942 (9th Cir. 2001).......................................................................................................1
Duenas v. Guam Election Comm’n,
2008 Guam 1 (2008) ...................................................................................................................1
Eu v. San Francisco County Democratic Central Comm.,
489 U.S. 214 (1989) ............................................................................................................18, 19
Garcetti v. Ceballos,
547 U.S. 410 (2006) ..................................................................................................................17
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Gelineau v. Johnson,
904 F. Supp. 2d 742 (W.D. Mich. 2012) ....................................................................................8
Golan v. Holder,
132 S. Ct. 873 (2012) ................................................................................................................17
Graham v. Connor,
490 U.S. 386 (1989) ..................................................................................................................17
Gregory v. Ashcroft,
501 U.S. 452 (1991) ............................................................................................................10, 20
Hall v. Beals,
396 U.S. 45 (1969) ....................................................................................................................19
In re Cook,
882 P.2d 656 (Utah 1994) ...........................................................................................................2
In re Green,
134 U.S. 377 (1890) ............................................................................................................10, 16
Jones v. Schneiderman,
101 F. Supp. 3d 283, 295 (S.D.N.Y. 2015) .................................................................................5
Lair v. Bullock,
697 F.3d 1200 (9th Cir. 2012).....................................................................................................3
Lujan v. Defenders of Wildlife,
504 U.S. 555 (1992) ....................................................................................................................5
Martin v. Dicklich,
823 N.W. 2d 336 (Minn. 2012) ...................................................................................................2
McPherson v. Blacker,
146 U.S. 1 (1892) ..............................................................................................................1, 9, 20
Nev. Ethics Comm’n v. Carrigan,
564 U.S. 117 (2011) ..................................................................................................................17
NFIB v. Sebelius,
132 S. Ct. 2566 (2012) ................................................................................................................7
Nixon v. United States,
506 U.S. 224 (1993) ................................................................................................................6, 7
NLRB v. Noel Canning,
134 S. Ct. 2550 (2014) ..............................................................................................................12
Purcell v. Gonzalez,
549 U.S. 1 (2006) ....................................................................................................................3, 4
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Ray v. Blair,
343 U.S. 214 (1952) .......................................................................................................... passim
Rumsfeld v. Forum for Academic & Institutional Rights, Inc.,
547 U.S. 47 (2006) ....................................................................................................................17
San Diego Beverage & Kup v. United States,
997 F. Supp. 1343 (S.D. Cal. 1998) ..........................................................................................21
San Diego Gun Rights Committee v. Reno,
98 F.3d 1121 (9th Cir. 1996).......................................................................................................5
Schick v. Reed,
419 U.S. 256 (1974) ....................................................................................................................9
Shell Offshore, Inc. v. Greenpeace, Inc.,
709 F.3d 1281 (2013) ..................................................................................................................7
South Dakota v. Dole,
483 U.S. 203 (1987) ....................................................................................................................9
Spreckels v. Graham,
228 P. 1040 (Cal. 1924) ......................................................................................................10, 18
State ex rel. Manos v. Delaware County Bd. of Elections,
701 N.E. 2d (Ohio 1998) .............................................................................................................2
State v. Wait,
138 N.W. 159 (Neb. 1912) ........................................................................................................11
Thomas v. Cohen,
262 N.Y.S. 320 (1933) ...................................................................................................... passim
United States v. Daniels,
No. 13-523, 2015 WL 1743746 (N.D. Cal. Apr. 16, 2015) ......................................................16
Veasey v. Perry,
769 F.3d 890 (5th Cir. 2014).......................................................................................................3
Will v. Mich. Dept. of State Police,
491 U.S. 58 (1989) ....................................................................................................................20
Williams v. Rhodes,
393 U.S. 23 (1969) ......................................................................................................................3
Winter v. Natural Resources Defense Council,
555 U.S. 7 (2008) ........................................................................................................................7
Witt v. Dept. of Air Force,
527 F.3d 806 (9th Cir. 2008).......................................................................................................8
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Yates v. United States,
135 S. Ct. 1074 (2015) ..............................................................................................................20
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Yoder v. Univ. of Louisville,
526 F. App’x 537 (6th Cir. 2013) .............................................................................................18
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STATUTES & CONSTITUTIONAL PROVISIONS
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3 U.S.C. § 5 .......................................................................................................................................4
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3 U.S.C. § 7 .......................................................................................................................................5
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3 U.S.C. § 15 .....................................................................................................................................6
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18 U.S.C. § 594 .........................................................................................................................19, 20
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26 U.S.C. § 9011 .............................................................................................................................19
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75 Stat. 819 ...............................................................................................................................13, 20
Cal. Elections Code § 6906 ...........................................................................................................1, 2
Cal. Elections Code § 7100 ...............................................................................................................2
Constitution of the Islamic Republic of Iran, art. 92–99.................................................................14
Electoral Count Act of 1887 .........................................................................................................4, 5
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Pub. Law 88-277, § 2 (The Presidential Transition Act of 1963) .....................................................3
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U.S. Const. amend. I .....................................................................................................16, 17, 18, 19
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U.S. Const. amend. X. .......................................................................................................................7
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U.S. Const. amend. XII ........................................................................................................... passim
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U.S. Const. amend. XIV .................................................................................................................16
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U.S. Const. amend. XXIII ...............................................................................................................13
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U.S. Const. art. I, § 5, cl. 3 ..............................................................................................................14
U.S. Const. art. II ..............................................................................................................1, 9, 14, 16
OTHER AUTHORITIES
3 Joseph L. Story, Commentaries on the Constitution of the United States (1833)................ passim
11 Annals of Congress (1802).........................................................................................................12
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18 Cong. Rec. 30 (Dec. 7, 1886) .......................................................................................................4
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115 Cong. Rec. 9–11, 145–71, 197–246 (1969) ...............................................................................6
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FairVote, Faithless Electors, www.fairvote.org/faithless_electors ................................................15
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Federalist No. 68 (Alexander Hamilton).........................................................................................22
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Henry J. Gomez, Ohio Gov. John Kasich Tells Rogue Electors He Doesn’t Want
Their Votes: ‘Donald Trump Won’,
http://www.cleveland.com/politics/index.ssf/2016/12/ohio_gov_john_kasich_t
ells_rog.html .............................................................................................................................16
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Roy Morris, Fraud of the Century (2003).........................................................................................4
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William H. Rehnquist, Centennial Crisis: The Disputed Election of 1876 (2004)...........................4
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Beverly J. Ross & William Josephson, The Electoral College and the Popular
Vote, 12 J.L. & Politics 665 (1996).......................................................................................9, 10
2
7
S. Doc. No. 111-15 (2010) ..............................................................................................................13
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Edward Stanwood, A History of the Presidency from 1788 to 1897 (1898) ...................................12
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John A. Zadrozny, The Myth of Discretion, 1 CommLaw Conspectus 165 (2003) ........................14
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Three months ago, Plaintiff accepted appointment as an elector knowing that California
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law requires him to “vote for . . . the candidates of the political party which [he] represent[s].”
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Cal. Elections Code § 6906. Yet just a week before Plaintiff was to honor that commitment, he
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seeks the Court’s permission to back out. He seeks to renege not just on his commitment to his
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Party, which has for months relied on Plaintiff to honor his promise, but also on his commitment
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to tens of millions of California voters, all of whom relied on that promise when they voted for
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President on November 8.
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Plaintiff’s request is at odds with the Constitution, precedent, and historical practice. Two
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centuries ago, Justice Story wrote that a presidential elector’s refusal to vote for the winner of his
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State’s election would constitute “a political usurpation” and “a fraud upon his constituents.” 3
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Joseph L. Story, Commentaries on the Constitution of the United States § 1457 (1833). With this
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understanding in mind, California, like most States, has exercised its “plenary” power
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(McPherson v. Blacker, 146 U.S. 1, 25 (1892)) to “direct” the “manner” of appointing electors
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(U.S. Const. art. II, § 1) to enact laws preventing such a “usurpation.” California did so in
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accordance with the Twelfth Amendment, which allows States to require electors to “assume
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obligations to vote for a certain candidate.” Ray v. Blair, 343 U.S. 214, 230 (1952).
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Federal district courts in Colorado and Washington have already rejected similar requests
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by would-be faithless electors to disrupt the electoral process. Baca v. Hickenlooper, No. 16-
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2986 (D. Colo. 2016), Dkt. 23 (Ex. A); http://www.bellinghamherald.com/news/state/
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washington/article120881093.html (describing ruling from the bench in Chiafalo v. Inslee, No.
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16-1886 (W.D. Wash. 2016)). Those courts understood that the electors’ claims contradict
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Supreme Court precedent; run roughshod over procedural requirements; and upset the orderly
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transition of power that our democracy embraces. This motion should meet the same fate.
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I.
THE COURT SHOULD NOT ENTERTAIN PLAINTIFF’S CLAIMS
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A.
Laches Bars Plaintiff’s Claims
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Laches bars a claim if (1) the plaintiff engages in “unreasonable delay” and (2)
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“prejudice” results. Danjaq LLC v. Sony Corp., 263 F.3d 942, 951 (9th Cir. 2001). Laches
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“deserves special consideration in election cases.” Duenas v. Guam Election Comm’n, 2008
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Guam 1, 4 (2008); see, e.g., State ex rel. Manos v. Delaware County Bd. of Elections, 701 N.E.
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2d, 563 (Ohio 1998) (“Extreme diligence and promptness are required in election-related
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matters”); In re Cook, 882 P.2d 656, 659 (Utah 1994) (“[O]ne who seeks to challenge the election
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process must do so at the earliest possible opportunity”). In this uniquely fast-paced context,
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even a delay of “days” may be too long. Martin v. Dicklich, 823 N.W. 2d 336, 341 (Minn. 2012).
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Today’s case is a textbook example of unreasonable delay in bringing an election-related
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challenge. Four months ago, in July, Donald J. Trump became the Republican nominee and
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Hillary Clinton became the Democratic nominee for President. Plaintiff knew then that one of
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those candidates would win California’s electoral votes, and that one would be elected President.
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Three months ago, Plaintiff became a candidate for elector.
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(requiring elector candidates to be named by “October 1”). Plaintiff knew then that California
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requires electors to vote for their party’s nominees. Cal. Elections Code § 6906. And a month
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ago, on November 8, Secretary Clinton won the California popular vote, while Mr. Trump won a
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majority of the country’s electoral votes. Plaintiff knew then that California law precluded him
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from conspiring with other electors to thwart the will of California voters (by refusing to vote for
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the state winner) and indeed the nation as a whole (by instigating a plot to elect neither Clinton
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nor Trump).
Cal. Elections Code § 7100
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Plaintiff missed opportunity after opportunity to file this lawsuit. Did he sue after learning
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who the presidential nominees were? No. Did he sue after joining their party’s electoral slates?
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No. Did he sue immediately after the presidential election? No. Plaintiff waited until the last
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possible moment to run to court. He has no excuse for this delay.
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Plaintiff’s delay has gravely prejudiced millions of Californians. In the months leading up
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to November 8, California voters endured a lengthy, expensive, hard-fought Presidential election.
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The voters reflected and debated about the candidates’ qualifications, records, and plans. And on
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November 8, they cast their ballots—on the understanding that state law required the electors to
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respect their will. They surely expected their collective choice would be honored when the
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Electoral College meets this December. Yet days before that meeting, Plaintiff sued to upend the
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very laws on which the voters relied.
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The prejudice does not stop at the California state line.
Rather, by disrupting the
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presidential transition, Plaintiff’s delay threatens our nation as a whole.
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Transition Act of 1963 declares that “[t]he national interest requires” orderly presidential
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transitions and that “[a]ny disruption” in a transition “could produce results detrimental to the
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safety and well-being of the United States and its people.” Pub. Law 88-277, § 2. The Act thus
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provides for the transition to begin immediately after the general election in November. Id.
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§ 3(c). For weeks, therefore, the President-Elect and his Transition have been reviewing potential
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appointees, preparing draft legislation, and coordinating efforts with President Obama, Congress,
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and dozens of federal agencies—all in reliance on state laws guaranteeing that electors will vote
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on December 19 in accordance with their States’ popular votes. Plaintiff seeks to upset the deep
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reliance interests of the people who “have proceeded with their affairs—business, political, and
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social—upon the assumption that the election is over.” Thomas v. Cohen, 262 N.Y.S. 320, 325
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(1933). Laches bars Plaintiff from doing so.
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B.
The Presidential
Purcell v. Gonzalez Bars Plaintiff’s Request For An Election-Related
Injunction.
In Purcell v. Gonzalez, 549 U.S. 1, 4 (2006), the Supreme Court held that courts should
generally refrain from issuing election-related injunctions “just weeks before an election.”
Election-eve orders risk “serious disruption of [the] election process” (Williams v. Rhodes, 393
U.S. 23, 35 (1969)), and “conflicting orders” can cause “confusion” (Purcell, 549 U.S. at 4–5).
In addition, the “imminence of the election” creates an unacceptable risk of inaccurate
decisionmaking, since the court may have “inadequate time” to resolve disputes. Id. at 5. Courts
must thus “carefully guard against judicial alteration of the status quo” shortly before an election,
and in recent election cycles “the Supreme Court has stepped in to prevent such alterations
several times.” Veasey v. Perry, 769 F.3d 890, 894 (5th Cir. 2014); see also Lair v. Bullock, 697
F.3d 1200, 1214 (9th Cir. 2012) (“[G]iven the imminent nature of the election, we find it
important not to disturb long-established expectations”).
These principles apply to the impending meeting of the Electoral College. Last-minute
orders, followed by last-minute appeals, would throw the Electoral College into chaos. It would
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leave electors uncertain about their obligations under state law.
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governors and secretaries of state in doubt about how to administer the electoral process. And
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with other electors having brought parallel lawsuits in Colorado and Washington—Baca v.
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Hickenlooper, No. 16-2986 (D. Colo. 2016), and Chiafalo v. Inslee, No. 16-1886 (W.D. Wash.
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2016)—there is a risk that courts may reach conflicting conclusions about the constitutionality of
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faithless-elector laws. That would only compound the confusion. To top it all off, this Court
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would have (at most) only a few days to study the relevant text, precedents, and history. It would
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be irresponsible for any court to resolve this momentous question of constitutional law, which
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threatens the very essence of the Electoral College—and, potentially, to strike down an Act of
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Congress and the statutes of a majority of the States—after such fly-by-night proceedings. The
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principles outlined in Purcell prohibit judicial tinkering with the mechanics of the Electoral
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College at this late stage.
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It would also leave state
The Electoral Count Act of 1887 reinforces these conclusions.
The Act calls for
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controversies relating to the Electoral College to be decided “at least six days prior to [the] time
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of meeting of the electors.” 3 U.S.C. § 5; see also Bush v. Gore, 531 U.S. 98, 110 (2000) (per
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curiam) (“[The Electoral Count Act] requires that any controversy or contest [relating to the]
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selection of electors be completed by [six days before the Electoral College meets]”). Congress
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enacted this statute in the aftermath of the disputed presidential election of 1876 between
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Republican Rutherford B. Hayes and Democrat Samuel Tilden. See William H. Rehnquist,
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Centennial Crisis: The Disputed Election of 1876 (2004). That year, disputes concerning electors
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from multiple states dragged out for months after Election Day.
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uncertainty provoked a constitutional crisis, with many Democrats crying “Tilden or Blood!” and
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Kentucky preparing 100,000 men to march on Washington. Roy Morris, Fraud of the Century
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214 (2003). The uncertainty also sapped the legitimacy of the ultimate victor, President Hayes,
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whom Democrats thereafter called “Rutherfraud” and “His Fraudulency.” Id. at 2. Congress
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enacted the strict timeline of the Electoral Count Act to prevent a repetition of “the year of
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disgrace, 1876,” in which a “cabal . . . had determined . . . to debauc[h] the Electoral College.”
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18 Cong. Rec. 30 (Dec. 7, 1886) (remarks of Rep. Caldwell).
The resulting political
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This year, the Electoral College will meet on December 19. 3 U.S.C. § 7. The deadline
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for resolving disputes relating to the selection of electors thus expired six days before the
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meeting, on December 13. Today is December 14. It is thus impossible for this Court to resolve
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Plaintiff’s Motion before the statutory deadline. The issuance of an injunction at this time would
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create precisely the sort of last-minute confusion that Congress sought to avoid in the Electoral
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Count Act. The Court can thus reach but one conclusion: the timing of this lawsuit—which, once
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more, results entirely from Plaintiff’s own irresponsible delay—precludes judicial intervention.
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C.
Plaintiff Lacks Standing To Bring His Claims.
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Article III allows a federal court to hear a case only if the plaintiff establishes standing.
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Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). Plaintiff cannot do so here, because he
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does not even allege (let alone prove) that he intends to violate the statute they challenge.
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One essential element of standing is injury-in-fact—a “concrete and particularized” and
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“actual or imminent” harm. Id. To establish injury-in-fact “in the context of a pre-enforcement
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challenge” to a statute, a plaintiff must establish (among other things) “an intention to engage in a
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course of conduct . . . proscribed by the [challenged] statute.”
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Hickenlooper, 823 F.3d 537, 545 (10th Cir. 2016) (quoting SBA List v. Driehaus, 134 S. Ct. 2334,
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2342 (2014)). Indeed, the plaintiff must have “concrete plans” to engage in the proscribed
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conduct. Lujan, 504 U.S. at 564. This principle reflects the commonsense notion that a statute
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cannot concretely and imminently injure someone who does not plan to violate it.
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Courts routinely enforce these principles.
Colo. Outfitters Ass’n v.
For example, in San Diego Gun Rights
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Committee v. Reno, 98 F.3d 1121, 1127 (9th Cir. 1996), a plaintiff’s allegation that it “wish[ed]
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and intend[ed] to engage in [prohibited] activities” did not suffice, since the plaintiffs had failed
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to “articulate[e] concrete plans.” Similarly, in Brady Campaign v. Brownback, 110 F. Supp. 3d
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1086, 1097–98 (D. Kan. 2015), the court denied standing because the plaintiff lacked “concrete
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plans to engage in conduct proscribed by the Act.” The plaintiff asserted only the “possibility” of
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engaging in the conduct, a “conjectural” suggestion that “f[ell] well short” of satisfying Article
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III. Id. at 1098. So too in Jones v. Schneiderman, 101 F. Supp. 3d 283, 295 (S.D.N.Y. 2015),
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where a plaintiff who “potentially” sought to violate a statute also lacked standing, as that
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“indeterminate commitment” “d[id] not rise to the level of a concrete plan.”
3
Here, Plaintiff lacks even a bare intention (never mind a concrete plan) to violate
4
California’s presidential elector statute. California requires Plaintiff to vote for Hillary Clinton
5
and Tim Kaine—the winners of California’s popular vote and the nominees of Plaintiff’s party.
6
Notably, however, Plaintiff never says that he will not vote as required. He alleges that he will
7
“not necessarily” vote for Clinton and Kaine. Compl. ¶ 25 (emphasis added). And he admits that
8
they “may vote for” Clinton and Kaine after all. Mem. 7. Plaintiff has thus alleged (at most) an
9
“indeterminate” and “conjectural” “possibility” that he might violate the challenged statute; he
10
has not proved that he has concrete plans to do so. He therefore lacks standing.
11
D.
This Case Presents A Non-Justiciable Political Question
12
Plaintiff’s complaint fails for yet one more threshold reason: it presents the Court with a
13
non-justiciable political question. A case presents a political question if there is “a textually
14
demonstrable constitutional commitment of the issue to a coordinate political department.” Nixon
15
v. United States, 506 U.S. 224, 228 (1993).
16
As the Constitution commits resolution of disputes about electors’ votes to Congress, not
17
the courts, Plaintiff’s complaint rests on a political question. The Twelfth Amendment provides
18
that electoral votes “shall . . . be counted” before “the Senate and House of Representatives.”
19
This text commits to Congress the responsibility to count electoral votes—and, thus, to resolve
20
disputes about which votes to count. Congress has accordingly enacted a statute addressing the
21
resolution of electoral-vote disputes. 3 U.S.C. § 15. And it has acted under that statute to resolve
22
disputes relating to faithless electors.
23
(deciding whether to count vote cast by faithless elector from North Carolina, which did not bind
24
its electors at the time). It is thus up to Congress, not courts, to decide whether to count any votes
25
that Plaintiff might cast in violation of California’s laws governing presidential electors.
See 115 Cong. Rec. 9–11, 145–71, 197–246 (1969)
26
The Supreme Court’s holding in Nixon confirms these conclusions. Nixon held that
27
disputes concerning impeachments present political questions. 506 U.S. at 226. The Court
28
reasoned that judicial review of impeachments, especially presidential impeachments, would
6
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“expose the political life of the country to months, or perhaps years, of chaos,” severely impairing
2
the “legitimacy” and “effectiveness” “of any successor” “while the judicial process was running
3
its course.” 506 U.S. at 236. That rationale applies not only to the removal of a President, but
4
also to the selection of one. If courts seek to decide (potentially in conflicting opinions) which
5
electoral votes count and which do not, they would undoubtedly throw the country’s political life
6
into chaos and would impair the legitimacy and effectiveness of any new President. These
7
realities counsel in favor of invoking the political-question doctrine here.
8
II.
PLAINTIFF IS NOT ENTITLED TO PRELIMINARY RELIEF
9
A temporary restraining order or preliminary injunction is an “extraordinary remedy that
10
may only be awarded upon a clear showing that the plaintiff is entitled to such relief.” Winter v.
11
Natural Resources Defense Council, 555 U.S. 7, 22 (2008). To obtain such relief, a plaintiff must
12
show (1) that he is likely to prevail on the merits, (2) that he faces irreparable harm, (3) that the
13
balance of hardships tips in his favor, and (4) that an injunction is in the public interest. Shell
14
Offshore, Inc. v. Greenpeace, Inc., 709 F.3d 1281, 1289 (2013). The plaintiff must “make a
15
showing on all four prongs.” Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1135 (9th
16
Cir. 2011). Plaintiff cannot make a showing on any of them here.
17
18
19
20
21
22
23
24
25
26
27
28
A.
Plaintiff’s Article II and Twelfth Amendment Claims Are Unlikely To
Succeed
Unlike the federal government, a State does not need to point to an affirmative
“constitutional authorization” to act. NFIB v. Sebelius, 132 S. Ct. 2566, 2578 (2012) (opinion of
Roberts, C.J.). To the contrary, the State presumptively enjoys the power to act; only where some
constitutional provision “prohibit[s] [the power] to the States” is that presumption overcome.
U.S. Const., amend. X. Plaintiff, therefore, has the burden of pointing to some constitutional
provision that prohibits States from enacting laws binding their electors.
Plaintiff’s principal claim is that Article II and the Twelfth Amendment prohibit
California from binding its electors. This claim—which contravenes Supreme Court precedent,
calls into question an Act of Congress and statutes in a majority of States, and contradicts
centuries of tradition—is doomed to fail on the merits.
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1.
1
2
3
Precedent establishes that States may bind electors
Multiple precedents, from both the Supreme Court and lower courts, establish that States
have the power to enact laws binding their electors.
a.
4
Ray v. Blair, 343 U.S. 214 (1952)—in which the Supreme Court upheld a rule
5
requiring electors to pledge to vote for their party’s nominees—controls this case. Blair, to be
6
sure, involved the making rather than the enforcement of a pledge. A federal court, however, is
7
“bound by the theory or reasoning underlying a Supreme Court case, not just by its holding.”
8
Witt v. Dept. of Air Force, 527 F.3d 806, 818 (9th Cir. 2008). The reasoning of Blair confirms
9
that States may require electors not only to make pledges but also to honor them:
10
•
Blair rejected “the argument that the Twelfth Amendment demands absolute freedom for
11
the elector to vote his own choice.” 343 U.S. at 228. This Court should reject the same
12
argument here.
13
•
Blair reasoned that nothing in “the language” of the Twelfth Amendment prohibits
14
requiring electors to make pledges. Id. at 225. By the same token, nothing in the
15
Amendment’s language prohibits requiring electors to fulfill those pledges.
16
•
Blair reasoned that “[s]urely one may voluntarily assume obligations to vote for a certain
17
candidate.” Id. at 230. Plaintiff here “voluntarily assumed” his obligation to vote for his
18
party’s nominees when he willingly accepted appointment as an elector.
19
•
Blair emphasized the “longstanding practice” of appointing electors “simply to register
20
the will of the [people] in respect of a particular candidate.” Id. at 228–29 & n.16. The
21
Court added that States generally “do not [even] print the names of the candidates for
22
electors on the general election ballot,” but instead “allow a vote for the presidential
23
candidate . . . to be counted as a vote for his party’s nominees in the electoral college.” Id.
24
at 228. If “longstanding practice” showed that the Constitution does not grant electors a
25
federal right to vote as they please in Blair, it shows the same thing here.
26
All in all, the Supreme Court’s reasons for upholding laws requiring electors to make pledges
27
apply equally to laws requiring electors to fulfill those pledges. Judges and scholars alike
28
recognize as much. See, e.g., Gelineau v. Johnson, 904 F. Supp. 2d 742, 745 (W.D. Mich. 2012)
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(“Though the [Blair] Court was not in a position to decide whether the pledge was ultimately
2
enforceable, the opinion’s reasoning strongly suggested that it would”); Beverly J. Ross &
3
William Josephson, The Electoral College and the Popular Vote, 12 J.L. & Politics 665, 696
4
(1996) (“[T]he Court’s language and reasoning in Ray v. Blair strongly imply that state laws
5
directly binding electors to a specific candidate are constitutional”). Blair is thus decisive here.
6
b. Quite apart from Ray v. Blair, the Constitution provides that “[e]ach State shall
7
appoint, in such manner as the Legislature thereof may direct, a number of Electors.” U.S.
8
Const. art. II, § 1, cl. 2 (emphasis added).
9
constitutional power is “plenary” (McPherson, 146 U.S. at 25), “comprehensive” (id. at 27), and
10
“exclusive” (id. at 36). It has stated that the Constitution grants the States “the broadest power of
11
determination.” Id. at 27. And it has reaffirmed that “[t]here is no doubt” about the “plenary”
12
“right of the legislature” to “select the manner for appointing electors.” Bush, 531 U.S. at 104.
The Supreme Court has emphasized that this
13
Faithless-elector laws fall squarely within the scope of the State’s plenary, comprehensive,
14
and exclusive power to decide the manner of appointing electors. For one thing, the power to
15
appoint includes the power to appoint subject to particular conditions. Cf. South Dakota v. Dole,
16
483 U.S. 203, 206 (1987) (Congress’s power to spend money includes power to spend money
17
subject to conditions); Schick v. Reed, 419 U.S. 256, 261 (1974) (President’s power to pardon
18
includes power to pardon subject to conditions); Beers v. Arkansas, 20 How. 527, 529 (1857)
19
(State’s power to waive sovereign immunity includes power to waive immunity subject to
20
conditions). Here, California has simply made it a condition of becoming an elector that the
21
elector vote for his party’s nominee.
22
For another thing, California’s faithless-elector law is one element of a scheme for
23
appointing presidential electors under which voters cast ballots linked to particular presidential
24
candidates, not merely to particular electors. To be sure, a state legislature may establish a
25
system under which electors run under their own names, conduct their own campaigns, and
26
ultimately vote their own consciences. But a state legislature may also establish a system under
27
which electors run under the names of the presidential candidates, piggyback on the campaigns of
28
those candidates, and ultimately vote for the candidates under whose banner they ran. The latter
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system is just as much a “manner” of appointing electors as the former. See Ross & Josephson,
2
12 J.L. & Politics at 678 (“The states’ constitutional power to appoint electors would appear to
3
include the power to bind them”).
4
c. More broadly, the Supreme Court has held that electors are state officials who act by
5
state authority. Electors “are no more officers or agents of the United States than are the
6
members of the state legislatures” (In re Green, 134 U.S. 377, 379 (1890)), “are not officers or
7
agents of the federal government” (Burroughs v. United States, 290 U.S. 534, 545 (1934)), and
8
“are not federal officers or agents” (Blair, 343 U.S. at 224). Electors “act by authority of the state
9
that it in turn receives its authority from the federal constitution.” Id.
10
This characteristic of electors confirms that States may require them to vote in accordance
11
with state law.
12
governmental processes.” Ariz. State Legislature v. Ariz. Indep. Redistricting Comm’n, 135 S. Ct.
13
2652, 2673 (2015). Indeed, the power to control “those who exercise [state] authority” is a
14
“fundamental” attribute of state sovereignty. Gregory v. Ashcroft, 501 U.S. 452, 460 (1991)).
15
These principles establish that a state legislature may enact state laws regulating how electors—
16
state officials—exercise state authority when casting the State’s electoral votes.
In “our federal system,” States “retain autonomy” to control “their own
17
d. Precedent from state courts confirms that States may bind electors. For example, in
18
Spreckels v. Graham, 228 P. 1040, 1045 (Cal. 1924), the Supreme Court of California held that
19
the “sole function” of electors is “to cast, certify, and transmit a vote already predetermined.”
20
Electors do not “exercise . . . judgment or discretion in the slightest degree”; they “are in effect no
21
more than messengers whose sole duty it is to certify and transmit the election returns.” Id. The
22
court added that the elector’s duty to “represent the preferences” of the people was (even by
23
1924) “so long established” that it constitutes “part of [California’s] unwritten law.” Id.
24
Similarly, in Thomas v. Cohen, 262 N.Y.S. 320, 326 (1933), a New York court held that
25
the State’s electors had a common-law “duty” “to choose the nominee of the party they represent,
26
and no one else.” The court added that “[t]he elector who attempted to disregard that duty could
27
. . . be required by mandamus to carry out the mandate of the voters of his state,” since an
28
elector’s functions “are purely ministerial.” Id. The court rejected the notion that “electors have a
10
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[constitutional] right to defy the will of the people,” reasoning that any such claim contradicted
2
“the established practice in the states.” Id. at 331.
3
Finally, in State v. Wait, 138 N.W. 159 (Neb. 1912), the Supreme Court of Nebraska held,
4
as a matter of state common law, that elector candidates automatically lose their places on their
5
party’s slate if they announce that they will not vote for the party’s presidential nominee. The
6
court reasoned that “persons who have been nominated as presidential electors, hav[e], if elected,
7
but a single duty to perform, viz., to vote for the candidates nominated by the party.” Id. at 163.
8
If the elector candidates “openly declare that they will not perform that duty,” they “vacat[e] their
9
places as . . . presidential electors” and “ipso facto creat[e] vacancies on the [party’s] ticket for
10
electors.” Id. The court’s holding that electors have a legal “duty” to vote in accordance with
11
their pledges further underscores the constitutionality of the law challenged here.
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
2.
The original understanding of the Twelfth Amendment confirms that
States may bind electors
The Electoral College today is governed by the Twelfth Amendment, which “materially
chang[ed] the mode of election of president” established by Article II. 3 Story, Commentaries
§ 1460. Whatever may have been the original understanding of Article II in 1789, the original
understanding of the Twelfth Amendment in 1804 defeats any claim that electors enjoy a
constitutional right to vote for whomever they please.
Congress proposed and the States ratified the Twelfth Amendment with the understanding
that electors are ministerial agents who represent their parties’ nominees, rather than platonic
guardians who exercise independent judgment.
“In the [very] first election held under the
constitution,” the people “looked beyond [the electors], fixed upon their own candidates for
President and Vice President, and took pledges from the electoral candidates to obey their will.”
Blair, 343 U.S. at 228 n.15 (quoting S. Rep. No. 22, 19th Cong., 1st Sess., at 4 (1826)). From
1796 on, presidential aspirants ran as “regular party candidates,” and the party’s electors were
“expected to support” them. Id. at 228 n.16. When Federalist elector Samuel Miles violated his
pledge in to vote for John Adams in 1796, an indignant voter published in a newspaper: “What!
Do I chuse Samuel Miles to determine for me whether John Adams or Thomas Jefferson shall be
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President? No! I chuse him to act, not to think.” Edward Stanwood, A History of the Presidency
2
from 1788 to 1897, at 51 (1898). By 1802, everyone understood that “the people do not elect a
3
person for an elector who, they know, does not intend to vote for a particular person as
4
President.” 11 Annals of Congress 1289–90 (1802). The reality that Congress proposed and the
5
States ratified the Twelfth Amendment against this historical backdrop defeats any claim that the
6
People understood the Amendment to protect an elector’s right to vote as he pleases.
7
In fact, the whole purpose of the Twelfth Amendment was to accommodate these political
8
realities of presidential elections. Under the original Constitution, “the electors . . . did not vote
9
separately for President and Vice-President; each elector voted for two persons, without
10
designating which office he wanted each person to fill.” Blair, 343 U.S. at 224 n.11. That system
11
may have worked in a world where electors exercised independent judgment, but it broke down
12
once electors came merely to represent their parties’ presidential and vice presidential nominees.
13
For example, the election of 1800 ended in a tie because Democratic-Republican electors had no
14
way to distinguish between presidential nominee Thomas Jefferson and vice-presidential nominee
15
Aaron Burr when they each cast two votes for President. These problems prompted the Twelfth
16
Amendment, which provided that electors must cast “distinct ballots” for President and Vice
17
President. The whole point of this new procedure (as the Supreme Court has recognized) was to
18
ensure that “[e]lectors could be chosen to vote for the party candidates for both offices, and
19
electors could carry out the desires of the people, without confronting the obstacles which
20
confounded the [election of 1800].”
21
(explaining that “the very thing . . . intended by this amendment” was to facilitate the practice of
22
voting for electors pledged “to vote for a particular person as President”) (cited in Blair, 343 U.S.
23
at 224 n.11). This history defeats Plaintiff’s Article II and Twelfth Amendment claims here.
24
3.
Id.; see also 11 Annals of Congress 1289–90 (1802)
Longstanding practice confirms that States may bind electors
25
“[L]ong settled and established practice” deserve “great weight” in constitutional
26
interpretation. NLRB v. Noel Canning, 134 S. Ct. 2550, 2559 (2014); see, e.g., Blair, 343 U.S. at
27
228 (emphasizing “longstanding practice”). Practice validates the law challenged here.
28
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The States. By one count, at least 29 state legislatures have enacted faithless-elector laws.
2
See S. Doc. No. 111-15, at 346–434 (2010). Moreover, some state courts have concluded as a
3
matter of state common law that electors have a duty to fulfill their pledges. Supra 11–12.
4
Plaintiff’s theory would require this Court to invalidate all of these statutes and state-court
5
decisions.
6
Congress. Months after ratification of the Twenty-third Amendment—which authorizes
7
the District of Columbia to vote in presidential elections—Congress enacted a statute requiring
8
the District of Columbia’s electors to vote as pledged. The statute provides: “Each person elected
9
as elector [for the District of Columbia] shall . . . take an oath or solemnly affirm that he will vote
10
for the candidates of the party he has been nominated to represent, and it shall be his duty to vote
11
in such manner in the electoral college.” 75 Stat. 819 (emphasis added). Plaintiff’s theory would
12
require holding this Act of Congress unconstitutional.
13
The People. From the beginning of the Republic, electors have been chosen on the
14
understanding that they will vote for a particular presidential candidate. Justice Story thus
15
explained (3 Commentaries § 1457):
16
17
18
19
20
21
22
23
24
25
26
27
28
[E]lectors are now chosen wholly with reference to particular candidates . . . The
candidates for the presidency are selected and announced in each state long before
the election; and an ardent canvass is maintained in the newspapers, in party
meetings, and in the state legislatures, to secure votes for the favourite candidate,
and to defeat his opponents. . . . [N]othing is left to the electors after their choice,
but to register votes, which are already pledged; and an exercise of an independent
judgment would be treated, as a political usurpation, dishonourable to the
individual, and a fraud upon his constituents.
Presidential elections work much the same way today. Plaintiff’s theory would require this Court
to replace a two-century-old system under which the vote of the People is decisive, and the vote
of the electors a formality, with a system under which the vote of the electors is decisive, and the
vote of the People a formality.
4.
Plaintiff’s contrary arguments are unconvincing
Plaintiff asserts that state faithless-elector laws render the Electoral College “superfluous.”
Mem. 8. Not true. First, States today retain the power to appoint legally unbound electors, and
some States indeed do just that. The reality that California and many of its sister States have
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chosen not to exercise the option of appointing unbound electors does not make the relevant
2
constitutional provisions “superfluous.” Second, even if all States chose to bind their electors, the
3
Electoral College provisions still would not be superfluous. The provisions would continue to
4
serve important functions: ensuring that small States retain a meaningful role in presidential
5
elections, promoting national unity by making it more difficult for candidates to win by running
6
up the vote in small regions, hedging against fraudulent voting practices that may become more
7
prevalent under a popular-vote system, and combating voter apathy by allowing voters to
8
participate in smaller voting pools within a given state.
9
Discretion, 1 CommLaw Conspectus 165, 179–83 (2003). Finally, a constitutional provision
10
does not become “superfluous” merely because it requires an action that might be considered a
11
formality. Many constitutional provisions require actions that might be considered formalities—
12
see, e.g., U.S. Const. art. I, § 5, cl. 3 (each House must keep a journal); id. art. II § 3 (President
13
must commission officers); id. (President must receive ambassadors)—but that does not make
14
them “superfluous.” The Electoral College provisions may likewise require California’s electors
15
to engage in a formality, but that does not make the provisions superfluous.
John A. Zadrozny, The Myth of
16
Citing Alexander Hamilton, Plaintiff next asserts that the Framers of Article II originally
17
expected electors to exercise independent judgment. Mem. 9. True or not, that argument is
18
beside the point. The Electoral College operates today under the Twelfth Amendment, not under
19
Article II. See 3 Story, Commentaries § 1447 (explaining that the “mode of election” established
20
by Article II “has been repealed” by the Twelfth Amendment). As just shown, the Framers of the
21
Twelfth Amendment most certainly did not expect electors to exercise independent judgment. In
22
any event, the Supreme Court held in Blair that “longstanding practice” outweighs the Framers’
23
original expectations about the operation of the Electoral College. 343 U.S. at 228–29 & n.16.
24
Blair requires this Court to do likewise here.
25
Plaintiff claims last of all that his interpretation has the supposed virtue of allowing
26
electors to set aside the democratic judgment of the people when the electors conclude that the
27
people’s choice is not “fit” or “qualified.” Mem. 6; cf. Constitution of the Islamic Republic of
28
Iran, art. 92–99 (establishing a “Guardian Council,” a body of clerics empowered to reject
14
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candidates for public office regardless of their degree of democratic support if the clerics deem
2
the candidates unfit). As an initial matter, nullifying the votes of the American people can hardly
3
be described as a virtue of Plaintiff’s reading of the Constitution. There is, moreover, no reason
4
to expect that the party loyalists who serve in the Electoral College are better positioned than the
5
voters to judge the qualifications of presidential candidates. Quite the opposite, history shows
6
that faithless electors tend to make worse judgments than the electorate as a whole. In 1836, 23
7
Virginia electors refused to vote for vice-presidential nominee Richard Mentor Johnson because
8
they learned of his cohabitation with a black woman. See www.fairvote.org/faithless_electors. In
9
1960, an Oklahoma elector tried to persuade fellow electors to elect Harry Byrd, a segregationist
10
who authored the “Southern Manifesto” and called for “massive resistance” to Brown v. Board of
11
Education. Id.
12
politician who promised “segregation now, segregation tomorrow, segregation forever.” Id. And
13
in 2004, a Minnesota elector voted for John Edwards for President rather than Vice President by
14
mistake. Id. This historical pattern inspires little confidence that electors will, now and in the
15
future, use the enormous and unchecked power Plaintiff seeks to put in their hands for noble,
16
appropriate purposes.
In 1968, a North Carolina elector voted faithlessly for George Wallace, a
17
Plaintiff’s odd electoral odyssey proves the point. He purports to want the “free will to
18
vote for whomever he believes to be the most qualified and fit for the offices of President and
19
Vice President,” no matter the party “those candidates” represent. Compl. ¶ 22. He likewise says
20
that neither the Trump-Pence nor Clinton-Kaine tickets satisfy Plaintiff’s electoral standards. So
21
what ticket, in Plaintiff’s virtuous eyes, reflects the “most fit and qualified candidates”? None of
22
the remaining general election candidates earned even a single electoral vote at the ballot box.
23
Hardly a nation-saving choice, then.
24
The most frequently mentioned choice of the handful of “rogue” electors in California and
25
elsewhere is Ohio Governor John Kasich. But he was no more a candidate during the general
26
election than was Kanye West, meaning these electors now seek the right to vote for anyone they
27
see fit, not just candidates on the November ballot. And in any event, Kasich does not even want
28
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their votes: “I am not a candidate for president,” says Kasich, and he asks “that electors not vote
2
for me when they gather later this month.” 1
3
B.
Plaintiff’s Fourteenth Amendment Claim Is Unlikely To Succeed
4
Plaintiff also claims that California’s faithless-elector statute violates the Equal Protection
5
Clause. Plaintiff argues that, because “29 states, accounting for . . . 299 electoral votes, . . . force
6
electors to vote in a certain way,” but “21 states who account for 239 electors . . . do not,” the
7
statutes of the 29 States must violate the Constitution. Mem. 11.
8
Plaintiff’s argument is frivolous. A State does not violate the Equal Protection Clause of
9
the Fourteenth Amendment merely because it has different laws than its sister States. Cf. United
10
States v. Daniels, No. 13-523, 2015 WL 1743746, at *9 (N.D. Cal. Apr. 16, 2015) (holding that a
11
federal law does not deny equal protection merely because its operation depends on state law,
12
which varies from State to State). Indeed, the whole point of having separate States is to allow
13
different parts of the country to operate under different laws. See, e.g., Ariz. State Legislature,
14
135 S. Ct. at 2673 (“This Court has long recognized the role of the States as laboratories for
15
devising solutions to difficult legal problems”). These principles only grow in force in the
16
context of presidential elections. The Constitution, which vests the power to appoint electors in
17
state legislatures (U.S. Const. art. II, § 2, cl. 1) and treats electors as state officials (Green, 134
18
U.S. at 379), plainly contemplates that different States may enact different laws concerning the
19
Electoral College.
20
C.
21
Plaintiff claims that the First Amendment protects electors’ right to vote as they please.
22
Plaintiff’s First Amendment Claim Is Unlikely To Succeed
Mem. 12–14. This claim, too, is unlikely to succeed on the merits.
23
First, the specific governs the general in constitutional interpretation. If a particular
24
Amendment addresses “a particular sort of government behavior,” “that Amendment,” not a
25
“more generalized notion” found elsewhere in the Constitution, “must . . . guide” the court’s
26
27
28
1
http://www.cleveland.com/politics/index.ssf/2016/12/ohio_gov_john_kasich_tells_rog.html (Kasich
explaining that faithless electors “only serve to further divide our nation, when unity is what we need. The election is
over. Now is the time for all of us to come together as Americans. . . . Our country had an election and Donald
Trump won.”).
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analysis of the claims. Graham v. Connor, 490 U.S. 386, 395 (1989). For example, a court
2
should analyze claims concerning the constitutional propriety of copyrights under the Copyright
3
Clause, and should reject “attempt[s] to win under the banner of the First Amendment what they
4
could not win under the Copyright Clause.” Golan v. Holder, 132 S. Ct. 873, 891 (2012). Here,
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Article II and the Twelfth Amendment include specific provisions concerning the selection of
6
electors and the operation of the Electoral College. Those specific provisions, not the more
7
general terms of the First Amendment, should guide the Court’s analysis here. And as just
8
shown, those specific provisions allow States to bind electors’ votes.
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Second, the Supreme Court has “rejected the notion that the First Amendment confers a
10
right to use governmental mechanics to convey a message.” Nev. Ethics Comm’n v. Carrigan,
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564 U.S. 117, 127 (2011); see also Garcetti v. Ceballos, 547 U.S. 410, 421–22 (2006)
12
(“Restricting speech that owes its existence to a public employee’s professional responsibilities
13
does not infringe any [First Amendment] liberties”). For example, “a legislator’s vote” is “not
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. . . protected speech,” since “a legislator has no right to use official powers for expressive
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purposes.” Carrigan, 564 U.S. at 125–27. “In this respect, voting by a legislator is different from
16
voting by a citizen.” Id. at 126. Similarly, a prosecutor’s memo does not amount to protected
17
speech, since the prosecutor makes the statements in the memo “pursuant to [his] official duties.”
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Garcetti, 547 U.S. at 421. The same principles that govern a legislator’s vote or a prosecutor’s
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memo also govern an elector’s vote. Like a legislator, an elector is a government official; like the
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legislature, the Electoral College forms a part of the mechanics of government; and like a
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legislator’s vote, an elector’s vote constitutes an exercise of official power.
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legislator, an elector has no personal constitutional right to use the electoral vote entrusted to him
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to convey a message.
Thus, like a
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Third, conduct qualifies as speech protected by the First Amendment only if it is
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“inherently expressive.” Rumsfeld v. Forum for Academic & Institutional Rights, Inc., 547 U.S.
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47, 66 (2006). An elector’s vote is not inherently expressive. To the contrary, it is “purely
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ministerial.” Thomas, 262 N.Y.S. at 326. Indeed, California’s electors in particular “are in effect
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no more than messengers whose sole duty it is to certify and transmit election returns,” and “they
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have no duties to perform which involve the exercise of judgment or discretion in the slightest
2
degree.” Spreckels, 228 P. at 1045. An elector’s exercise of this mundane and ministerial
3
function does not constitute inherently expressive conduct entitled to First Amendment
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protection.
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Fourth, the Supreme Court has held that States may “requir[e] those making promises [to
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speak or refrain from speaking] to keep them.” Cohen v. Cowles Media Co., 501 U.S. 663, 672
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(1991). This holding rests on the premise that “a party’s voluntary promise [to speak or not to
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speak] constitute[s] a valid waiver of First Amendment rights.” Yoder v. Univ. of Louisville, 526
9
F. App’x 537, 547 (6th Cir. 2013). Here, Plaintiff waived any First Amendment rights he may
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have had in his electoral vote when he voluntarily accepted the obligations associated with
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becoming an elector.
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promise.
The First Amendment allows California to require him to keep this
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Fifth, California’s statute satisfies the applicable constitutional standard of review. Courts
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review restrictions upon the electoral process by weighing “the character and magnitude of the
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asserted injury” against the “interests put forward by the State.” Burdick v. Takushi, 504 U.S.
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428, 434 (1992). The “asserted injury” here is insignificant (if not nonexistent), both because
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Plaintiff voluntarily assumed the obligations associated with becoming an elector and because an
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elector performs a purely ministerial function when casting an electoral vote. The State, in
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contrast, has weighty interests in ensuring that electors reflect the will of the people as expressed
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in a democratic election.
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Sixth, even if this Court were to apply strict scrutiny rather than the balancing test
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established by Burdick, California’s statute would still survive. “A State indisputably has a
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compelling interest in preserving the integrity of its election process.” Eu v. San Francisco
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County Democratic Central Comm., 489 U.S. 214, 231 (1989). A State also has “an important
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interest—indeed, a compelling one—in securing the people's right to self-government.” Chula
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Vista Citizens for Jobs & Fair Competition v. Norris, 782 F.3d 520, 531 (9th Cir. 2015).
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California’s law promotes this interest by preventing electors from perpetrating “political
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usurpations” and “fraud[s] upon [their] constituents.” 3 Story, Commentaries § 1457.
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Finally, accepting Plaintiff’s claim would trample rather than vindicate constitutional
2
rights. For starters, such a ruling would violate the core associational rights of the political
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parties that the electors represent. The First Amendment accords special protection to a political
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party’s right to “selec[t] a standard bearer who best represents the party’s ideologies and
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preferences.” Eu, 489 U.S. at 224. Inducing a political party to choose electors by promising
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them that electors will play only a ministerial role, but pulling the rug out from under the party
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after the fact, makes a parody of that special protection. A ruling in Plaintiff’s favor would also
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violate the rights of California’s voters. Once a State allows voters to participate in presidential
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elections, the State may not “debas[e] or dilut[e]” the voters’ right to vote. Bush, 531 U.S. at
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104–05. A ruling in Plaintiff’s favor would debase the votes of tens of millions of Californians,
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all of whom cast their ballots for presidential electors on the understanding that presidential
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electors would vote for their party’s nominees.
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D.
Plaintiff’s Statutory Claim Is Unlikely To Succeed
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Plaintiff asserts, last of all, that California’s presidential elector statute violates 18 U.S.C.
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§ 594, which prohibits intimidating “any other person for the purpose of interfering with the right
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of such other person to vote . . . for the office of President, Vice President, Presidential elector,
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Member of the Senate, [or] Member of the House of Representatives.” This claim, too, lacks
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merit.
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In the first place, Plaintiff fails to establish that this statute protects presidential electors
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(as opposed to ordinary voters). The statute protects only individuals who hold a “right . . . to
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vote.” The phrase “right . . . to vote . . . [for] President” is naturally read to include the right of an
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ordinary voter to cast a ballot for President on election day. See, e.g., Bush, 531 U.S. at 103 (“an
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estimated 2% of ballots cast do not register a vote for President”); id. at 104 (“When the state
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legislature vests the right to vote for President in its people . . .”); Hall v. Beals, 396 U.S. 45, 52
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(1969) (“Colorado’s requirement that in order to vote for President and Vice President, one must
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. . . be a resident of that State . . .”); see also 26 U.S.C. § 9011 (authorizing “individuals eligible
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to vote for President” to bring lawsuits under federal campaign-finance laws). In contrast, the
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phrase “right . . . to vote . . . [for] President” does not comfortably cover an elector’s exercise of
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the ministerial function of casting a ballot.
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constitutional “right” to vote for President.
As just shown, an elector does not have a
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In addition, even assuming that § 594 protects presidential electors, Plaintiff fails to
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establish that it covers action by state governments (as opposed to action by private citizens). The
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statute applies only to a “person” who “coerces” a protected individual, but the Supreme Court
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has held that “neither a State nor its officials acting in their official capacities are ‘persons.’” Will
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v. Mich. Dept. of State Police, 491 U.S. 58, 71 (1989). Furthermore, courts read a federal statute
8
to interfere with a state’s regulation of “those who exercise [state] authority” only if Congress’s
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intention to do so is “unmistakably clear in the language of the statute.” Gregory v. Ashcroft, 501
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U.S. 452, 460 (1991). Section 594 does not include “unmistakably clear” language expressing
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Congress’s intention to restrict a State’s regulation of its own electors.
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Moreover, § 594’s verbs—“intimidates, threatens, coerces”—do not cover the operation
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of a state statute. Courts must interpret statutes in light of “the principle of noscitur a sociis—a
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word is known by the company it keeps—to ‘avoid ascribing to one word a meaning so broad that
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it is inconsistent with its accompanying words, thus giving unintended breadth to the Acts of
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Congress.’” Yates v. United States, 135 S. Ct. 1074, 1085 (2015) (plurality opinion). Read in
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tandem, “intimidate,” “threaten,” and “coerce” all connote extralegal and even violent action;
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they are not sensibly read to encompass the ordinary operation of the legal process. The Act of
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Congress that binds the District of Columbia’s electors (75 Stat. 819) underscores the illogic of
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Plaintiff’s reading. It makes little sense to think that Congress “intimidated” District of Columbia
21
voters, in violation of its own voter-intimidation statute, when it enacted this law.
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In all events, courts must read federal statutes to avoid raising constitutional doubts.
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Crowell v. Benson, 285 U.S. 22, 62 (1932). The Constitution vests power over the appointment
24
of electors “exclusively” in state legislatures; “congressional and federal influence [are]
25
excluded.”
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constitutional doubts, since it would interfere with the state legislature’s exercise of this
27
“exclusive” power. That is reason enough to reject it.
McPherson, 146 U.S. at 35.
Plaintiff’s interpretation of § 594 raises serious
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E.
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Plaintiff cannot show irreparable injury for the same reason he cannot show even an
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Article III injury: He has no concrete plans to violate California’s faithless-elector law. Injury
4
can be irreparable only if it is “certain” rather than “theoretical.” San Diego Beverage & Kup v.
5
United States, 997 F. Supp. 1343, 1347 (S.D. Cal. 1998). Plaintiff’s asserted injury is purely
6
theoretical, since Plaintiff states at most that he “may” wish to violate the challenged statute.
Plaintiff Fails To Satisfy The Remaining Prerequisites For Preliminary Relief
7
The balance of hardships and public interest likewise disfavor an injunction.
Most
8
importantly, an injunction would violate the constitutional rights of voters. “Having once granted
9
the right to vote” in presidential elections, “the State may not . . . debas[e] or dilut[e]” that vote by
10
“later arbitrary [action].” Bush, 531 U.S. at 104–05. When California granted its citizens the
11
right to vote for presidential electors, it promised them that those electors would vote in the
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Electoral College for the presidential candidates they represent.
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assurance when they cast their ballots on November 8 for electors whose names they had never
14
heard of. Telling the voters now that their votes have no binding effect after all—especially on
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the heels of a long, expensive, and hard-fought presidential election—would debase and dilute
16
those votes, in violation of the Constitution.
Californians relied on that
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The harm to the public interest does not end there. At best, an injunction would create
18
uncertainty about the election. This uncertainty would disrupt the expectations of those who
19
“have proceeded with their affairs—business, political, and social—upon the assumption that the
20
election is over.” Thomas, 262 N.Y.S. at 325. It would also disrupt the Nation’s relations with
21
“foreign governments,” which “took cognizance in November of the final character of the vote of
22
the people.” Id. at 325–26. At worst, an injunction could spark a full-blown constitutional crisis.
23
See id. at 326 (an elector’s violation of his pledge would be “unexpected and destructive of order
24
in our land”). These grave harms outweigh any injury caused by holding Plaintiff to his promise.
25
*
*
*
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Plaintiff finds the words of Alexander Hamilton particularly inspiring. (TRO Mot., Dkt.
27
No. 4, at 9-10, 12). But Hamilton also warned that “[i]t was also peculiarly desirable to afford as
28
little opportunity as possible to tumult and disorder. This evil was not least to be dreaded in the
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election of a magistrate, who was to have so important an agency in the administration of the
2
government as the President of the United States.” Federalist No. 68. That evil is precisely
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Plaintiff’s aim: to sow tumult and disorder into the election of the President. This Court should
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not permit it.
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Dated: December 14, 2016
Respectfully submitted,
Brian Selden SBN 261828
JONES DAY
1755 Embarcadero Road
Palo Alto, California 94303
Telephone:
+1.650.687.4142
Facsimile:
+1.650.739.3900
bgselden@jonesay.com
Chad Readler (pro hac vice)
JONES DAY
325 John H. McConnell Boulevard, Suite
600
Columbus, Ohio 43215
Telephone:
+1.614.469.3939
Facsimile:
+1.614.461.4198
careadler@jonesday.com
Attorneys for Intervenors
PRESIDENT-ELECT DONALD J. TRUMP
AND DONALD J. TRUMP FOR
PRESIDENT, INC.
Charles H. Bell, Jr. SBN 060553
Brian T. Hildreth SBN 214131
Terry J. Martin SBN 307802
BELL, McANDREWS & HILTACHK, LLP
455 Capitol Mall, Suite 600
Sacramento, California 95814
Telephone:
+1.916.442.7757
Facsimile:
+1.916.442.7759
cbell@bmhlaw.com
Chad Readler
Attorneys for Intervenor
CALIFORNIA REPUBLICAN PARTY
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CERTIFICATE OF SERVICE
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I certify that on December 14, 2016, the foregoing was electronically filed with the United
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States District Court for the Northern District of California using the CM/ECF system. All
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parties have consented to receive electronic service and will be served by the ECF system.
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Dated: December 14, 2016
By: /s/_Brian Selden________
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Brian Selden
JONES DAY
1755 Embarcadero Road
Palo Alto, California 94303
Telephone: +1.650.687.4142
Facsimile: +1.650.739.3900
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