UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
March 26, 2009
ROBERT ASA GORDON PLAINTIFF,
JOSEPH R. BIDEN, VICE PRESIDENT OF THE UNITED STATES, DEFENDANT.
The opinion of the court was delivered by: Henry H. Kennedy, Jr. United States District Judge
Proceeding pro se, Robert Gordon ("Gordon") filed this action on July 28, 2008,*fn1 against Richard Cheney,*fn2 then the Vice President of the United States ("Vice President"), in his official capacity. In anticipation of the then-upcoming presidential election and the role that the Vice-President would play in the election by presiding over and certifying the official vote count of the U. S. Electoral College, Gordon sought by this action to prevent the Vice-President "from presiding over the tabulation of 'unbound electoral states' who by practice, unsupported by state or federal statute, traditionally award Presidential Electors on a 'winner-take-all basis.'" Compl. ¶ 7.*fn3
Before the court is the Vice President's motion to dismiss [#9]. Upon consideration of the motion, the opposition thereto, and the record of this case, the court concludes that the motion should be granted.
Gordon identifies himself as "Founder and Executive Director of the Douglass Institute of Government, registered voter of the District of Columbia, Presidential Elector, and Chair, DC Statehood Green Party Electoral College Task Force." ¶ 2. He alleges that the state laws of Arkansas, Georgia, Louisiana, Tennessee, and Texas allow their presidential electors to "award all of their unbounded presidential electors by 'winner take all' provisions not based in any state or federal law but predicated on the majority choice of its white citizens." ¶ 10.*fn4 As a result, "these states have in effect disenfranchised the citizen's [sic] of the state that voted for the presidential electors pledged to the candidate with less then [sic] the popular majority vote," ¶ 8, who Gordon alleges are the states' black citizens, ¶ 10.
Gordon contends that "in choosing from the unbounded electoral states to represent to congress the 'certificates of vote' under 'winner take all' provisions, wherein there exist no constitutional or state statutory authority allowing only the selective counting of majority polled state electoral votes," the Vice President "will deprive presidential electors of their constitutionally protected rights under the First and Fourteenth Amendments to the U.S. Constitution." ¶ 12.
Gordon seeks declaratory and injunctive relief enjoining the Vice President from "effecting the counting of the full slate of presidential electors," Compl. Prayer for Relief ¶ 1, and performing "any presumptive tabulation of 'winner take all' electors from states that have no 'winner take all' state in the electoral count," id. ¶ 3, as well as requiring the Vice President to reduce "the number of State electors and representatives in congress in proportion to the disenfranchised class of U.S. Citizens whose voting rights were denied and/or abridged or in the alternative effect proportional apportionment of the counting of the electoral votes in congress" id. ¶ 2.
A party who brings an action in federal court bears the burden of demonstrating that he has standing to do so. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992). In order to have standing, a plaintiff must show that he suffers "(1) a 'concrete and particularized' 'injury in fact' that is (2) fairly traceable to the defendant's alleged unlawful conduct and that is (3) likely to be redressed by a favorable decision." Hein v. Freedom From Religion Found., Inc., 127 S.Ct. 2553, 2574 (2007) (quoting Lujan, 504 U.S. at 560-61 (1992)). The Vice President moves to dismiss Gordon's complaint pursuant to Rule 12(b)(1) and Rule 12(b)(6) on the grounds that Gordon does not and cannot bear his burden with respect to any of the elements required for a showing of standing. The Vice President's motion is granted because, assuming that Gordon has sufficiently plead an injury in fact, the alleged injury is not fairly traceable to the Vice President's allegedly unlawful conduct.*fn5
Gordon asserts a constitutional interest by virtue of section 2 of the Fourteenth Amendment to protect an interest of his own and of persons similarly situated. His alleged injury-in-fact is the diminishment of the votes of electors and registered voters "by including the full slate of Presidential Electors in the electoral count of January 6th, 2009 from states subject to 2USC§6 [sic]," ¶ 15, and "by the denial and/or abridgement of Presidential Electors that represent their candidate in unbound states wherein there is no state election law that explicitly allocates that states['] electors on a 'winner take all' basis." ¶ 16. The court understands this allegation to mean that his vote as an elector and registered voter, as well as that of all other electors and registered voters, would be diluted by electoral votes from states in which electors vote for whichever candidate wins the popular vote (under so-called "winner take all" laws) rather than voting for candidates in the proportion of votes they win.
The problem for Gordon, among others, is that his claims are predicated on allegations of wrongdoing by third parties. In determining whether a plaintiff has shown the "causation" or "traceability" element of the showing required to demonstrate standing, the court "examines whether it is substantially probable that the challenged acts of the defendant, not of some absent third party, will cause the particularized injury of the plaintiff." Microwave Acquisition Corp. v. FCC, 145 F.3d 1410, 1412 (D.C. Cir. 1998) (quoting Florida Audubon Soc'y v. Bentsen, 94 F.3d 658, 663 (D.C. Cir. 1996) (en banc)). Here, Gordon alleges that "State Officials" "de facto deny and/or abridge 'citizens of the United States' in the exercise of their 'right to vote . . . for the choice of electors for President and Vice-President of the United States' on the basis of race and/or party affiliation in violation of the 'equal protection' clause of the first section of the Fourteenth Amendment." ¶ 9. Gordon also contends that by "award[ing] all of their unbounded presidential electors by 'winner take all' provisions not based in any state or federal law but predicated on the majority choice of its white citizens," the five states thereby "de-facto disenfranchise those electors of the state based on the votes of the states['] black citizens." ¶ 10. Because Gordon's alleged injury is not "fairly traceable" to the Vice President's actions, which in fact are purely ministerial, but rather is attributable to the actions of third-party states and state officials, he fails to satisfy the causation element of standing. Therefore, he is unable to prosecute this action.
For the foregoing reasons, the court finds that defendant's motion to dismiss [#9] should be GRANTED, and [#3] Plaintiff's Motion for Temporary Restraining Order and Preliminary Injunction, [#13] Plaintiff's Motion to Present Oral Argument for Summary Judgment, and [#19] Plaintiff's Augmented Motion for Summary Judgment should be DENIED as moot. An appropriate order accompanies this memorandum opinion.