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Robert Asa Gordon,Et Al. v. Karen L. Haas

November 23, 2011


The opinion of the court was delivered by: Chief Judge Royce C. Lamberth.


Plaintiffs Robert Asa Gordon and Thelma Tharpe, proceeding pro se,*fn1 filed this action on January 3, 2011, seeking to enjoin the Clerk of the U.S. House of Representatives*fn2 ("the Clerk") from recognizing elected members from the states of Arkansas, Georgia, Louisiana, Tennessee, and Texas (collectively "the five states") during the January 5, 2011 commencement of the 112th Congress. Morgan Moss and Edward Scott, also proceeding pro se, subsequently intervened as co-plaintiffs, adopting the complaint in toto. Plaintiffs allege that the five states' allocation of electoral votes to the presidential candidate who receives the most votes (a.k.a. the "winner-take-all" system) violates their constitutional rights, including their right to vote, because no state or federal statute authorizes the winner-take-all system in those states.*fn3 To remedy this violation, plainitffs argue, the Clerk should reduce the number of elected representatives allocated to the five states, in accordance with Section 2 of the Fourteenth Amendment, which provides for such a reduction when states deny or abridge citizens' right to vote. See U.S. CONST. amend. XIV, § 2, amended by U.S. CONST. amend. XIX, XVI. In addition to an injunction, plaintiffs seek a declaratory judgment that the five states and all other states that do authorize the winner-take-all system by statute must allocate their electors proportionally, in accordance with the "popular vote split." Compl. at 4, ¶ 10. Plaintiffs are not suing any of the five states.*fn4

On the same day plaintiffs filed their complaint, they sought a temporary restraining order against the Clerk [Dkt. # 3], which was denied on January 4, 2011 [Dkt. # 11]. The 112th Congress commenced at noon on January 5, 2011, see Pub. L. No. 111-289 (Nov. 30, 2010) (appointing Jan. 5, 2011, as the day for the 112th Congress to convene). Currently before the Court is the Clerk's motion to dismiss the complaint [Dkt. # 9].*fn5 Upon consideration of the parties' motions, the oppositions thereto, and the record of this case, the Court finds that the Clerk's motion to dismiss should be granted.


Plaintiff Gordon identifies himself as the Founder and Director of the Douglass Institute of Government, a registered voter in the District of Columbia, a presidential elector, and the Chair of the D.C. Statehood Green Party Electoral College Task Force. Compl. at 2, ¶ 2.*fn6 Plaintiff Tharpe is a registered voter of the Democratic Party in Georgia. Id. at 2, ¶ 3. The complaint does not state that Gordon and Tharpe voted in the 2010 elections. Plaintiffs Moss and Scott, who identify as African American, Mot. to Intervene at 1, are registered to vote in Louisiana and voted in the 2010 elections. Id. at 3.

Plaintiffs contend that the Clerk is required to refrain from recognizing members of Congress from the five states. They base their claims on section 2 of the Fourteenth Amendment, which imposes a member-reduction penalty on states that deny U.S. citizens the right to vote in presidential elections. Section 2 provides that where "the right to vote at any election for the choice of electors for President and Vice President of the United States . . . is denied" to any male citizen over the age of 21, or "in any way abridged, except for participation in rebellion, or other crime," the basis of the offending state's representation "shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such state." U.S. CONST. amend. XIV, § 2, amended byU.S. CONST. amend. XIX, XVI; Compl. at 5, ¶ 12. Section 2's language is incorporated nearly verbatim into 2 U.S.C. § 6. See 2 U.S.C. § 6 (2006); see generally George David Zuckerman, A Consideration of the History and Present Status of Section 2 of the Fourteenth Amendment, 30 FORDHAM L. REV. 93 (1961) (discussing the history and application of section 2 and 2 U.S.C. § 6).

Plaintiffs maintain that the penalty provisions of section 2 and 2 U.S.C. § 6 must be triggered because the winner-take-all system for allocating electoral votes disenfranchises black voters, dilutes the votes of minorities, and denies plaintiffs an "equally effective national vote for the President of the United States of America." Compl. at 5, ¶ 15 (emphasis in original). They further aver that the winner-take-all system is "predicated on the majority choice of its white citizens," Compl. at 5, ¶ 13, and that "there is no legal or rational reason for the unbounded Southern states not to allocate a proportionate apportionment of the statess [sic] presidential electors based on the popular split, other than to preserve a preferential discriminate [sic] electoral choice representative of the states' majority white population." Compl. at 5, ¶ 14. These effects, plaintiffs argue, impair plaintiffs' right to vote for purposes of section 2 of the Fourteenth Amendment and 2 U.S.C § 6 and therefore require a reduction in the number of elected representatives allocated to each of the five states.*fn7

Plaintiffs' dissatisfaction with the winner-take-all system is not new to the courts.*fn8 Most recently, in 2008, Gordon, proceeding pro se and without co-plaintiffs, sought to enjoin Vice President Biden from presiding over the tabulation of the electoral votes of the same five states. Gordon claimed 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.'" See Biden, 606 F. Supp. 2d at13 (quoting Gordon's complaint at ¶ 15). Without addressing the merits of Gordon's claim, the court held that Gordon lacked standing to assert his claim in federal court because he failed to show a causal connection between the alleged injury (i.e. dilution of his vote)*fn9 and the Vice President's ministerial acts. See id. at 13--14 ("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."). The D.C. Circuit Court affirmed, basing its holding on Gordon's failure to allege a cognizable injury-in-fact for purposes of standing. Gordon v. Biden, No. 09-5142, 2010 WL 606684, at *1 (D.C. Cir. Feb. 1, 2010). The action currently before the Court differs in only two main respects from Gordon's failed lawsuit against the Vice President: (1) pro se plaintiffs Tharpe, Moss, and Scott are now before the Court and (2) plaintiffs have sued a new defendant. For the reasons discussed below, these modifications do not cure the complaint's fatal defects with respect to constitutional standing.*fn10


Under Article III of the U.S. Constitution, federal courts have jurisdiction only over "cases" and "controversies. " See Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992); Allen v. Wright, 468 U.S. 737, 750--52 (1984). The party invoking federal jurisdiction bears the burden of showing that it has standing to sue. Lujan, 504 U.S. at 561. Plaintiffs meet this burden only when they demonstrate that they have suffered "(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., 551 U.S. 587, 619 (2007) (quoting Lujan, 504 U.S. at 560--61 (1992)).*fn11 Because standing is essential to the Court's subject matter jurisdiction, the Court must determine whether plaintiffs have standing to sue before examining the merits of the claims they assert in the complaint. Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 98 (1998); Lujan, 504 U.S. at 560.

With respect to injury, plaintiffs contend that they have standing because Tharpe, Scott, and Moss are registered voters in two of the five states, because Gordon, as a District of Columbia voter, is suffers from an "inequality of the weight of the vote of citizen [sic] of the District of Columbia" compared to other U.S. voters. Pls.' Opp. to Def.'s Mot. to Dismiss at 26--27, and because, each of them, as members of a minority, are harmed by minority vote dilution "in or out of the offending states." Compl. at 6, ¶ 15 (emphasis in original). As to redressabilty, plaintiffs maintain that the Clerk could remedy these harms by declining to recognize representatives from the five states and by reducing the number of representatives apportioned to these states, as provided for in section 2 of the Fourteenth Amendment and 2 U.S.C. § 6. The Clerk counters that plaintiffs have failed to demonstrate injury, causation, and redressibility. The Court agrees and concludes that plaintiffs lack constitutional standing to assert their claims against the Clerk. The Court first addresses the standing of the plaintiffs who are voters in two of the five states before turning to Gordon's standing to sue, an issue which has already been adjudicated in similar actions.

A. Plaintiffs Tharpe, Moss, and Scott Have Not Established Causation

Assuming without deciding that the plaintiffs who vote in Georgia and Louisiana have established an injury-in-fact, they nonetheless lack standing to sue because they have not demonstrated that the Clerk caused the alleged injuries. The causation prong of the standing requirement is only met if plaintiffs "allege personal injury fairly traceable to the defendant's allegedly unlawful conduct." Allen, 468 U.S. at 57. An allegation that their injury "results from the independent action of some third party not before the court" does not suffice. Id. at 757 (quoting Simon v. E. Ky. Welfare Rights Org., 426 U.S. 25, 42 (1976)). As explained in a previous examination of Gordon's claims, "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.'" Biden, 606 F. Supp. 2d at 14 (citing Microwave Acquisition Corp. v. FCC, 145 F.3d 1410, 1412 (D.C. Cir. 1998) (internal citations and quotations omitted)). Here, the Court discerns no such casual link in the complaint. Plaintiffs plead no harmful acts on the part of the Clerk, an official whose acts are ministerial.*fn12 Instead, they allege that the five states, which are not party to this action, have disenfranchised them and diluted their votes. Without a showing that the harm they allege is fairly traceable to the Clerk, the plaintiffs lack standing to sue the Clerk in this Court. See Reaves v. U.S. Dept. of Justice,355 F. Supp. 2d 510, 515 (D.D.C. 2005) (holding that plaintiff voters lacked standing to sue the U.S. Department of Justice for not interposing an objection to South Carolina's change in the location of certain polling places because "it is not the allegedly unlawful conduct ...

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