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Baten v. McMaster

United States District Court, D. South Carolina, Charleston Division

March 8, 2019

HENRY MCMASTER, i/o/c as Gov. of South Carolina; MARK HAMMOND, i/o/c as Secretary of State of South Carolina; SOUTH CAROLINA ELECTION COMMISSION; BILLY WAY, JR., MARK BENSON, MARYLIN BOWER, E. ALLEN DAWSON, NICOLE SPAIN WHITE, i/o/c as a Commission Members of the Election Commission, Defendants.



         This matter comes before the court on defendant Henry McMaster's (“the Governor”) motion to dismiss, ECF No. 14. For the reasons set forth below, the court GRANTS the motion.

         I. BACKGROUND

         Plaintiffs, all residents of voting age in South Carolina, bring this action alleging that South Carolina's system for distributing its nine votes for the electoral college for the election of the President of the United States is unconstitutional. Plaintiffs are all residents of various counties in South Carolina. They have all voted for the Democratic presidential candidate in past elections and intend to vote for the Democratic presidential candidate in future elections. Several of the plaintiffs are African-American.

         Plaintiffs filed suit on February 21, 2018. Similar claims were filed on the exact same date by a relatively similar group of lawyers in the Central District of California, the District of Massachusetts, and the Western District of Texas. See Rodriguez v. Brown, 2:18-cv-01422 (C.D. Cal. Sept. 21, 2018); Lyman v. Baker, 1:18-cv-10327 (D. Mass. Feb. 21, 2018); League of United Latin American Citizens v. Abbott, 5:18-cv-0175 (W.D. Tex. Apr. 9, 2018). Those courts all dismissed those actions based on similar grounds as the court relies upon here. The Governor filed a motion to dismiss this action on May 3, 2015, ECF No. 14, which defendant Mark Hammond joined, ECF No. 17. Plaintiffs filed a response on May 31, 2018. ECF No. 24. The court held a hearing on the matter on November 1, 2018. ECF No. 31.

         II. STANDARD

         A Rule 12(b)(6) motion for failure to state a claim upon which relief can be granted “challenges the legal sufficiency of a complaint.” Francis v. Giacomelli, 588 F.3d 186, 192 (4th Cir. 2009) (citations omitted); see also Republican Party of N.C. v. Martin, 980 F.2d 943, 952 (4th Cir. 1992) (“A motion to dismiss under Rule 12(b)(6) . . . does not resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses.”). To be legally sufficient, a pleading must contain a “short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). A Rule 12(b)(6) motion should not be granted unless it appears certain that the plaintiff can prove no set of facts that would support his claim and would entitle him to relief. Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir. 1993). When considering a Rule 12(b)(6) motion, the court should accept all well-pleaded allegations as true and should view the complaint in a light most favorable to the plaintiff. Ostrzenski v. Seigel, 177 F.3d 245, 251 (4th Cir.1999); Mylan Labs., Inc., 7 F.3d at 1134. “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id.


         Article II, Section 1 of the United States Constitution provides that the President shall be elected in the following manner: “each state shall appoint, in such manner as the Legislature thereof may direct, a number of electors, equal to the whole number of Senators and Representatives to which the State may be entitled in the Congress . . . .” U.S. Const. art. II, § 1. “The Electors shall meet in their respective states and vote by ballot for President and Vice-President . . . .” Id. Am. XII. The Constitution delegates to the states the power to determine how these Electors are chosen. McPherson v. Blacker, 146 U.S. 1, 35 (1892) (“[I]t is seen that from the formation of the government until now the practical construction of the clause has conceded plenary power to the state legislatures in the matter of the appointment of electors.”).

         South Carolina, along with forty-seven other states and the District of Columbia, uses the winner-takes-all (“WTA”) approach to determine how to allocate its nine electoral votes. According to South Carolina's WTA system, voters in South Carolina cast their ballot for either of “the candidates for President and Vice President of each political party recognized in” the state. S.C. Code § 7-19-70. South Carolina then calculates which of the two candidates receives the most votes and delegates each of its nine electoral votes to that candidate. Plaintiffs argue that this dilutes the value of the votes cast for the losing representative, because those votes are not ultimately represented by the electoral votes in the presidential election. For example, South Carolina has not given its nine electoral votes to a Democratic presidential candidate for forty years. In other words, those South Carolina residents who have voted for Democratic candidates for the last forty years have had no electoral votes cast by South Carolina that reflect the vote that they cast for their choice of President.

         Plaintiffs allege that the WTA system violates: (1) the Fourteenth Amendment, as it runs afoul of the one person one vote principle (“OPOV principle”); (2) the First and Fourteenth Amendments, as it burdens the freedom of the people to associate and engage in political activity; and (3) section 2 of the Voting Rights Act (“VRA”), as it prevents African-American South Carolinians from having their preferred candidate receive any representation among South Carolina's electoral votes. The court addresses each below in turn.

         A. One Person One Vote

         Plaintiffs allege that South Carolina's WTA system results in the votes of citizens who chose a losing candidate not being counted in the final election for president, and that it therefore violates the OPOV principle and the Fourteenth Amendment's guarantee of equal protection. Plaintiffs claim that the WTA system “counts votes for a losing presidential candidate in South Carolina only to discard them in determining the Electors who cast votes directly for the presidency.” Comp. ¶ 14. In the last five presidential elections, about 40% of South Carolina voters cast votes for a candidate who did not win the popular vote in South Carolina. Id. Plaintiffs claim that those voters “effectively had their votes cancelled.” Id. Plaintiffs emphasize that they are not contesting the constitutionality of the electoral college as a whole, but rather the method used by South Carolina for choosing how to distribute its electoral votes.

         The Supreme Court first foreshadowed the OPOV principle in Baker v. Carr, 369, U.S. 185 (1962), the seminal case establishing the parameters of constitutional standing and other justiciability issues.[1] The next year, the Court expounded upon the idea in Gray v. Sanders, 372 U.S. 368 (1963), when it declared unconstitutional Georgia's county unit system, which the state used to count votes in a Democratic primary for the nomination of a U.S. senator. The Court determined that the system diluted the voting power of those in more populated districts and reasoned that a state's policy to dilute someone's vote based on where they live is similar to a policy that would dilute someone's vote based on their gender or race, in clear violation of Nineteenth and Fourteenth Amendments, respectfully. Id. at 379. Unlike the case currently before this court, Gray did not relate to a state's system for distributing its electoral votes, but was rather concerned with the constitutionality of Georgia's system for electing its representative to the U.S. Senate. Indeed, the Court clearly distinguished Georgia's system from the electoral college in finding that ...

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