Eugene Baten v. Henry McMaster

• Court: Court of Appeals for the Fourth Circuit
• Decided: July 27, 2020
• Docket: 19-1297
• Status: Published

Opinion

PUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 19-1297

EUGENE BATEN; CHESTER WILLS; CHARLETTE PLUMMER-WOOLEY; BAKARI SELLERS; CORY C. ALPERT; BENJAMIN HORNE,

Plaintiffs - Appellants,

v.

HENRY MCMASTER, in his official capacity as Governor of the State of South Carolina; MARK HAMMOND, in his official capacity as Secretary of the State of South Carolina; SOUTH CAROLINA ELECTION COMMISSION; BILLY WAY, JR., in his official capacity as a Chair of the Election Commission; MARK BENSON, in his official capacity as a Commission Member of the Election Commission; MARILYN BOWER; E. ALLEN DAWSON, in his official capacity as a Commissioner Member of the Election Commission; NICOLE SPAIN WHITE, in her official capacity as a Commission Member of the Election Commission,

Defendants - Appellees.

--------------------------------------

EDWARD FOLEY,

Amicus Curiae.

Appeal from the United States District Court for the District of South Carolina, at Charleston. David C. Norton, District Judge. (2:18-cv-00510-DCN)

Argued: May 26, 2020 Decided: July 21, 2020 Amended: July 28, 2020

Before NIEMEYER, WYNN, and FLOYD, Circuit Judges. Affirmed by published opinion. Judge Niemeyer wrote the opinion, in which Judge Floyd joined. Judge Wynn wrote a dissenting opinion.

ARGUED: Jacob Max Rosen, MUNGER, TOLLES & OLSON, LLP, San Francisco, California, for Appellants. Thomas Ashley Limehouse, Jr., OFFICE OF THE GOVERNOR OF SOUTH CAROLINA, Columbia, South Carolina, for Appellees. ON BRIEF: David Boies, Armonk, New York, James P. Denvir, III, Amy J. Mauser, Karen L. Dunn, Lisa Barclay, Amy L. Neuhardt, Hamish P.M. Hume, Melissa Shube, BOIES, SCHILLER & FLEXNER LLP, Washington, D.C.; Randall L. Allen, B. Parker Miller, Max Marks, Cassandra K. Johnson, ALSTON & BIRD LLP, Atlanta, Georgia; Richard Harpootlian, Christopher P. Kenney, RICHARD A. HARPOOTLIAN, PA, Columbia, South Carolina, for Appellants. Vordman Carlisle Traywick, III, ROBINSON GRAY STEPP & LAFFITTE, LLC, Columbia, South Carolina, for Appellees. Jeffrey I. Pasek, Philadelphia, Pennsylvania, for Amicus Curiae.

2 NIEMEYER, Circuit Judge:

A group of South Carolina voters commenced this action to challenge the “winner-

take-all” aspect of South Carolina’s process for appointing its nine Electors to the Electoral

College.

Under South Carolina’s winner-take-all appointment process, every eligible voter

in South Carolina is given the right to cast a vote for candidates for President and Vice

President, and every such vote is given the same weight and dignity. The vote so cast is,

under South Carolina law, an indirect vote for a slate of nine Electors committed to a

presidential ticket, and the Electors then vote for those candidates in the Electoral College.

Thus, the candidates receiving the most votes secure the State’s appointment of Electors

committed to vote for them in the Electoral College. The losing candidates have no

Electors appointed to vote for them in the Electoral College, as the method for appointing

Electors is a unity method in which the entire slate of Electors is awarded to the winning

candidates.

In their complaint, the plaintiffs alleged that this winner-take-all process dilutes the

voting power of the State’s political minority and burdens their ability to advocate

effectively for their preferred political candidates, in violation of the First and Fourteenth

Amendments. They also alleged that the process prevents Black citizens from exercising

electoral power in presidential elections commensurate with the size of their population, in

violation of the Voting Rights Act (“VRA”).

3 The district court granted South Carolina’s motion to dismiss the complaint,

concluding that South Carolina’s winner-take-all process complies with the Constitution

and the requirements of the VRA. We agree and affirm.

I

The U.S. Constitution provides that the President and Vice President shall be elected

by a College * of “Electors” appointed by the States “in such Manner as the Legislature[s]

thereof may direct.” U.S. Const. art. II, § 1, cl. 2. The number of Electors allocated to

each State for appointment is equal to the “Number of Senators and Representatives to

which the State may be entitled in the Congress.” Id. Once appointed, the Electors are

directed to “meet in their respective states” on a day determined by Congress and vote “in

distinct ballots” for President and Vice President. Id. amend. XII. The votes are then

transmitted to Washington, D.C., where the President of the Senate counts them. See id.

“The person having the greatest number of votes for President, shall be the President, if

such number be a majority of the whole number of Electors appointed,” and the same is so

for the Vice President. Id.

In exercising their authority to appoint Electors, the States have, over the years,

adopted different methods. For example, in the first presidential election in 1788–89, the

legislatures in five States appointed the State’s Electors directly, and in other States, the

Electors were elected by the people in districts created by the State. Pennsylvania provided

* The body of Electors is traditionally referred to as a “College,” although the word does not appear in the Constitution. It does appear in the implementing statute. See 3 U.S.C. § 4. 4 for a statewide election of Electors — Electors “on a general ticket” pledged to a

presidential candidate. See McPherson v. Blacker, 146 U.S. 1, 29–30 (1892). In the

decades that followed, the States continued to exercise their appointment authority

variously, as their legislatures determined. Some legislatures continued to appoint Electors

directly; some authorized the voters to select a slate of Electors by a statewide election;

some authorized voters to select individual Electors by districts; and some created hybrid

systems. But eventually, as it became understood that a unified slate of Electors would

give the States the greatest influence in the Electoral College, States made the political

decision that the selection of a “general ticket” of Electors pledged to the winning candidate

— the winner-take-all approach — was advantageous. As of 1836, all States except South

Carolina appointed their Electors by statewide popular vote. See id. at 32. And following

the Civil War, South Carolina followed suit. At the present time, every State but Maine

and Nebraska awards all of its electoral votes to the presidential ticket that received a

plurality of the votes statewide. And in Maine and Nebraska, two Electors are selected by

statewide election and the remainder are selected by districts. See Chiafalo v. Washington,

140 S. Ct. 2316, 2321 n.1 (2020).

South Carolina’s current statutory scheme implements a rather typical winner-take-

all process. See Chiafalo, 140 S. Ct. at 2321–22 (describing in general terms the standard

process used by States to select Electors and to ensure their votes for pledged candidates).

Under its scheme, each political party recognized in South Carolina submits a list of Elector

candidates to the Secretary of State prior to Election Day. See S.C. Code Ann. § 7-19-70.

Those Elector candidates are required to “declare which candidate for president and vice-

5 president he will vote for if elected” and, if elected, are directed to vote in the Electoral

College “for the president and vice-president candidates for whom they declared.” Id. § 7-

19-80. The names of the Elector candidates submitted by the parties to the Secretary of

State, however, do not appear on the ballot. Instead, the voters are presented with “the

names of the candidates for President and Vice President” nominated by each party, and a

“vote for the candidates named on the ballot [constitutes] a vote for the electors of the party

by which those candidates were nominated.” Id. § 7-19-70. After the polls close, South

Carolina’s Secretary of State receives the vote tally and appoints the slate of Electors

submitted by the party whose presidential and vice-presidential candidates received the

most votes. Id. The appointed Electors are then required, on the day designated by

Congress, to cast their votes for those candidates. See id. § 7-19-80. This winner-take-all

process thus involves the statewide, indirect election of a slate of Electors pledged to the

candidates on the ballot who receive a plurality of the votes. The Electors so appointed

then vote for their candidates for President and Vice President at the Electoral College

election held at the time specified by Congress — currently, the first Monday after the

second Wednesday in the December following the election. See 3 U.S.C. § 7.

II

The six plaintiffs, three of whom are African-American, are voting-age residents of

various South Carolina counties who have voted for the Democratic presidential candidate

in past elections and plan to do so again in the future. They commenced this action to

challenge “the decision of South Carolina to award and select Electors on a [winner-take-

6 all] basis,” and they named as defendants South Carolina’s Governor, Secretary of State,

and Election Commission, including its members — all sued in their official capacity and

collectively referred to herein as “South Carolina.” The complaint explicitly stated that it

was not filed to challenge the Electoral College, “which is mandated by the Constitution,”

but rather to challenge the South Carolina statutory scheme adopted to select electors to

the College on a winner-take-all basis. The plaintiffs alleged that “the political party of the

leading candidate among South Carolina’s voters selects every Elector, with a vote of every

other South Carolina citizen rendered meaningless by receiving no Elector directly or

through a political party.” (Emphasis added). They explained that in the 2016 election,

Donald Trump received roughly 55% of the popular vote in South Carolina but yet received

all nine of the State’s electoral votes, whereas Hillary Clinton received roughly 41% of the

popular vote “but received none of the electoral votes from South Carolina.” The

complaint also asserted that under the scheme, African-American voters, who “represent

over a quarter of the voting age population of the [S]tate,” are effectively disenfranchised.

“In each of the last ten presidential elections the candidate who won South Carolina and

received all of South Carolina’s Electors has been a Republican and has not been the

preferred candidate for African-American voters.”

Thus, as framed in the complaint, with use of the winner-take-all process, the votes

of those who did not vote for the winning candidate were “cancelled when the final direct

election for President [took] place,” including “as many as 855,373 South Carolina citizens

who voted for Hillary Clinton in 2016.” For that reason, the plaintiffs claimed that the

7 process violates the Fourteenth Amendment, the First Amendment, and § 2 of the VRA.

With respect to the alleged Fourteenth Amendment violation, the complaint asserted:

[The winner-take-all] scheme violates the Fourteenth Amendment because it counts votes for a losing presidential candidate in South Carolina only to discard them in determining Electors who cast votes directly for the presidency. Put differently, the [winner-take-all] system unconstitutionally magnifies the votes of a bare plurality of voters by translating those votes into an entire slate of presidential Electors, all of whom support the nominee of a single political party — while, at the same time, the votes cast for all other candidates are given no effect.

This, according to the plaintiffs, violates the principle of “one person, one vote.” With

respect to the alleged First Amendment violation, the complaint asserted that the system

“burdens . . . the right of association and . . . the right to have a voice in presidential

elections through casting a vote.” And finally, with respect to the alleged VRA violation,

the complaint asserted that, “[d]espite the fact that South Carolina has nine Electors, and

African Americans represent over a quarter of the voting age population of the state, the

[winner-take-all] system allows white voters to usually — if not always — defeat all

Electors slated for African-American preferred candidates.”

For relief, the complaint sought a declaratory judgment that South Carolina’s

winner-take-all process violates the referenced provisions and an injunction prohibiting the

use of the process in the future.

The district court granted South Carolina’s motion to dismiss the complaint,

concluding that South Carolina’s winner-take-all system “complies with equal protection

because it does not inherently favor or disfavor a particular group of voters.” Baten v.

McMaster, 374 F. Supp. 3d 563, 569 (D.S.C. 2019) (quoting Lyman v. Baker, 352 F. Supp.

8 3d 81, 89 (D. Mass. 2018)). The court likewise rejected the plaintiffs’ First Amendment

claim, as the plaintiffs had not “sufficiently alleged that the rights of voters to associate in

any manner or to engage in any political activity or association ha[d] actually been

burdened.” Id. at 570. And finally, the court dismissed the plaintiffs’ VRA claim, noting

that the winner-take-all system “does not mean that the political process is not equally open

to participation by Democratic voters, whether they be African-American or of another

race.” Id. at 571 (cleaned up).

From the district court’s judgment dated March 11, 2019, the plaintiffs filed this

appeal. South Carolina filed a motion to dismiss the appeal for lack of subject matter

jurisdiction, arguing (1) that this case implicates non-justiciable political questions and (2)

that the plaintiffs lack Article III standing. We deferred ruling on that motion pending

briefing on the merits and oral argument.

III

At the threshold, we address South Carolina’s motion to dismiss this appeal for lack

of subject matter jurisdiction. It contends that the plaintiffs’ claims present non-justiciable

political questions, as “the state legislatures’ power to choose the manner of appointing

presidential electors is plenary,” and “partisan proportionality claims” are non-justiciable

under the Supreme Court’s recent decision in Rucho v. Common Cause, 139 S. Ct. 2484

(2019). It also contends that the plaintiffs’ claims are simply “generalized partisan

grievances” and, therefore, that the plaintiffs lack Article III standing.

9 On the issue of justiciability, it is true that Article II of the Constitution gives state

legislatures the power to appoint Electors in the manner they see fit. But it is also well

settled that Article II does not vest the States with unreviewable authority. See, e.g., Bush

v. Gore, 531 U.S. 98, 104 (2000) (per curiam) (recognizing that although “the state

legislature’s power to select the manner for appointing electors is plenary,” “[w]hen the

state legislature vests the right to vote for President in its people, the right to vote as the

legislature has prescribed is fundamental”); see also Chiafalo, 140 S. Ct. at 2324 & n.4

(explaining that “Article II, § 1’s appointments power gives the States far-reaching

authority over presidential electors, absent some other constitutional constraint,” such as

the Equal Protection Clause (emphasis added)). Moreover, the Supreme Court has

confirmed that whether a state legislature has exercised its delegated power to appoint

Electors in a way that violates another provision of the Constitution presents a justiciable

question. See, e.g., McPherson, 146 U.S. at 23–24 (“It is argued that the subject-matter of

the controversy is not of judicial cognizance, because it is said that all questions connected

with the election of a presidential elector are political in their nature. . . . But the judicial

power of the United States extends to all cases in law or equity arising under the

constitution and laws of the United States, and this is a case so arising, since the validity

of the state law was drawn in question as repugnant to such constitution and laws . . . .”);

Williams v. Rhodes, 393 U.S. 23, 28 (1968) (rejecting Ohio’s argument that “the political-

question doctrine precludes judicial consideration” of challenges to its laws regulating

access to the state ballot to choose electors, concluding unequivocally that these types of

cases “do raise a justiciable controversy under the Constitution and cannot be relegated to

10 the political arena”). We do not believe that the Court’s subsequent decision in Rucho

undermined these principles, as South Carolina argues.

In Rucho, the Supreme Court held that partisan gerrymandering claims present

nonjusticiable political questions. But it recognized that partisan gerrymandering claims

were distinct from other similar claims, noting that “[p]artisan gerrymandering claims have

proved far more difficult to adjudicate” than other challenges to the electoral system, such

as those alleging racial gerrymandering or violations of the one-person, one-vote principle.

Rucho, 139 S. Ct. at 2497. We thus agree with those courts that have considered the

question before us and determined that challenges to winner-take-all systems for

appointing presidential Electors are indeed justiciable. See Lyman v. Baker, 954 F.3d 351,

378 n.16 (1st Cir. 2020); Williams v. Va. State Bd. of Elections, 288 F. Supp. 622, 625

(E.D. Va. 1968) (holding that the court “ha[d] jurisdiction of the complaint,” which

challenged Virginia’s use of the winner-take-all system to appoint presidential Electors),

aff’d per curiam, 393 U.S. 320 (mem.), reh’g denied, 393 U.S. 1112 (1969).

With respect to Article III standing, we conclude that the plaintiffs adequately

alleged that they “had the requisite stake in the outcome [of the case] when the suit was

filed.” Davis v. FEC, 554 U.S. 724, 734 (2008). They were required to allege (1) that they

suffered a concrete and particularized “injury in fact” that was more than merely

hypothetical or conjectural; (2) that the injury is “fairly traceable to the challenged action

of the defendant”; and (3) that it is likely “that the injury will be redressed by a favorable

decision.” Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–61 (1992) (cleaned up).

11 In their complaint, the plaintiffs have fairly satisfied these elements. First, they

alleged that they are voters whose votes for Democratic presidential candidates were, in

effect, discarded under South Carolina’s winner-take-all process. They argued that,

because all of South Carolina’s electors were pledged to vote for the plurality winner, their

preferred candidates received zero votes in the Electoral College. Thus, the system

“disadvantage[d] [them] as individuals.” Gill v. Whitford, 138 S. Ct. 1916, 1920–21 (2018)

(quoting Baker v. Carr, 369 U.S. 186, 206 (1962)) (contrasting the individual harm felt by

a voter who casts his ballot in a gerrymandered district with the “generalized grievance” of

one who disapproves of gerrymandering in his state but does not live in a gerrymandered

district). This is the type of concrete, particularized injury that Article III contemplates.

See Gray v. Sanders, 372 U.S. 368, 375 (1963) (“[A]ny person whose right to vote is

impaired has standing to sue” (citations omitted)). Second, the plaintiffs alleged that the

injury is caused by the winner-take-all system, which, even though enacted by the State’s

legislature, was implemented and enforced by the state officials who are named as

defendants. And third, they claimed that it is within the judicial power to enjoin the use of

an unlawful system, even though a court could not order South Carolina specifically to

adopt the proportional system of appointing Electors, as the plaintiffs might prefer. In

short, the plaintiffs alleged that they suffered individualized injuries that are traceable to

South Carolina’s implementation of the challenged winner-take-all system and that the

injuries can be redressed by a court order enjoining use of the system.

We conclude therefore that we have subject matter jurisdiction to address the merits

of the plaintiffs’ claims on appeal.

12 IV

For their main argument on appeal, the plaintiffs contend that South Carolina’s

winner-take-all method of selecting presidential Electors violates the Equal Protection

Clause. They explain that at the first stage of the two-step presidential election process,

use of winner-take-all “dilutes votes” by not giving a voice to the political minority in

selecting Electors and, at the second stage, the process “discards” the minority votes

because only the Electors chosen by the plurality cast votes in the Electoral College. As

they summarize,

By awarding all of a State’s Electors to whoever wins a plurality of the vote at the first stage, South Carolina’s [winner-take-all] rules dilute and discard minority votes in two ways. It dilutes votes for the Electors themselves, using an at-large election for nine Electors to ensure minority voters never have any representation in that delegation. And it discards their votes for president at the second stage, ensuring that only Electors selected by the plurality can ever affect the presidential vote.

To support their argument that the first stage as implemented in South Carolina is

unconstitutional, the plaintiffs rely on the Supreme Court’s decision in White v. Regester,

412 U.S. 755 (1973), which, they argue, holds that “states may not use at-large, slate

elections for multi-member bodies to ensure minority voters receive no representatives in

those bodies.” And to support their argument that the second stage as implemented in

South Carolina also violates the Constitution, they rely on Gray v. Sanders, which, they

argue, supports their position, noting that South Carolina’s use of winner-take-all to award

all of its Electoral votes to the plurality winner, impermissibly “ensures that the plaintiffs’

13 ‘votes for a different candidate are worth nothing and counted only for the purpose of being

discarded.’” (cleaned up) (quoting Gray, 372 U.S. 381 n.12).

The untoward result, according to the plaintiffs, is that the system improperly

magnifies the influence of the political plurality, thereby undermining the principle of one-

person, one-vote, in violation of the Equal Protection Clause, which safeguards the “equal

weight accorded to each vote and the equal dignity owed to each voter.” Bush, 531 U.S.

at 104.

In response, South Carolina contends that the plaintiffs’ argument “ignores

longstanding electoral practice and is foreclosed by binding Supreme Court precedent” in

Williams v. Virginia State Board of Elections, 393 U.S. 320 (1969), which summarily

affirmed a district court’s rejection of a constitutional challenge to Virginia’s use of the

winner-take-all approach to select presidential Electors. It also argues that even if the case

is not controlled by Williams, the winner-take-all system “comports with the Equal

Protection Clause because it gives all who participate an equal vote and does not inherently

favor or disfavor any particular group of voters.”

The Electoral College system established in Article II and the Twelfth Amendment

of the Constitution for the election of the President and Vice President manifests a complex

and carefully balanced division of power and interests between the national government

and state governments; between the large States and the smaller States; and between

representational democracy and direct democracy. And it resulted from a lengthy debate

of various proposals at the Constitutional Convention. See, e.g., Chiafalo, 140 S. Ct. at

2320 (quoting a delegate to the Convention who remarked that the issue of determining the

14 method for presidential selection was “the most difficult of all [that] we have had to

decide”). Among the various methods considered by the delegates at that Convention were

a nationwide popular vote and an election by Congress. Ultimately, however, they settled

on a hybrid method involving nation-based and state-based aspects. Article II thus

provides that the President and Vice President are to be elected by Electors appointed by

the States; that the number of Electors to be appointed from each State is to equal the

number of Senators and House members representing the State in the Congress; and that

the States’ legislatures are to determine the manner of appointing the Electors.

The subtlety of this structure was eloquently described by James Madison in The

Federalist. He explained that the House of Representatives derives its power directly from

the people; that the Senate derives its powers from the States as “political and coequal

societies” and therefore indirectly from the people; and the presidency derives its power

from a “compound source,” through the Electoral College. See The Federalist No. 39, at

197 (George W. Carey & James McClellan eds. 1990) (emphases added). Madison

continued, “[the Electoral College] appears [in the Constitution] to be of a mixed character

presenting at least as many federal as national features.” Id. Thus, in creating an Electoral

College comprising Electors equal to the number of Senators and Representatives of each

State, the Constitution takes into account the States as political and coequal societies by

giving each two Electors simply by virtue of their statehood, and, at the same time, accounts

for population of each State by giving each a number of Electors directly related to the

State’s House members. And while the Constitution creates this body of Electors to serve

the national function of electing a President and Vice President, it directs that the States

15 appoint the Electors in the manner determined by their legislatures. At bottom, the system

reflects a considered balance between national and state power.

The plaintiffs’ arguments are narrowly focused on two distinct aspects of this

structure. They argue first that South Carolina, in selecting Electors, unconstitutionally

conducts a statewide winner-take-all election by selecting a “general ticket” of Electors,

all of whom are pledged to their party’s candidates. In this manner, they argue, South

Carolina fails to give effect to the votes of its citizens who did not cast votes with the

plurality. Second, they argue, when the Electors so selected uniformly vote for the

candidate of their party, the system in effect “discards” the votes cast by the minority.

As to the plaintiffs’ first argument, it cannot be disputed that each State has plenary

authority to determine through its legislature how to appoint Electors. And the power

includes the authority to require Electors to vote for the presidential ticket that received the

plurality of votes in the State. As the Supreme Court noted recently,

Article II, § 1’s appointments power gives the States far-reaching authority over presidential electors. . . . [A] State can insist (as Ray [v. Blair, 343 U.S. 214 (1952)] allowed) that the elector pledge to cast his Electoral College ballot for his party’s presidential nominee, thus tracking the State’s popular vote.

Chiafalo, 140 S. Ct. at 2324 (emphasis added). Thus, nearly every State, including South

Carolina, has validly exercised its authority in adopting a system for appointment of

Electors that involves a statewide election for a slate of electors pledged to vote for the

presidential ticket that wins the plurality vote — the very system that the plaintiffs contend

is constitutionally barred because it fails to give effect to votes cast for other candidates.

It is plaintiffs’ position, nonetheless, that a State may not adopt, as a political calculation,

16 a plan that maximizes the State’s influence at the Electoral College election, as the winner-

take-all plan does. And if the plaintiffs are correct, the only permissible methods of

appointment would necessarily incorporate proportional or district-level allocation,

methods that are not prescribed by the Constitution. The plaintiffs argue that only in this

way may the State “give effect” to votes cast for the losing candidates.

The plaintiffs’ argument, however, runs headlong into the fundamental democratic

principle that the one who receives the most votes wins, and the others lose, thus leaving

them with no voice. While this argument is obviously untenable, it does not, of course,

follow that an electoral mechanism can trample the fundamental electoral requirements

that everyone entitled to vote be given the vote and that each vote be given equal weight.

See Bush, 531 U.S. at 104–05. But the plaintiffs have not made the case that those

fundamental requirements are not met by South Carolina’s chosen system. Despite the

plaintiffs’ argument to the contrary, no vote in the South Carolina system is diluted. Every

qualified person gets one vote and each vote is counted equally in determining the final

tally. In the end, the presidential ticket that receives the most votes wins. That the system

results in both winners and losers is inherent in our electoral process and does not give rise

to a constitutional violation. This was precisely the position articulated by the three-judge

district court in Williams while rejecting a challenge to the winner-take-all system, which

we find persuasive:

[I]t is difficult to equate the deprivations imposed by the unit [winner-take- all] rule with the denial of privileges outlawed by the one-person, one-vote doctrine or banned by Constitutional mandates of protection. In the selection of electors the rule does not in any way denigrate the power of one citizen’s ballot and heighten the influence of another’s vote. Admittedly, once the

17 electoral slate is chosen, it speaks only for the element with the largest number of votes. This in a sense is discrimination against the minority voters, but in a democratic society the majority must rule, unless the discrimination is invidious. No such evil has been made manifest here. Every citizen is offered equal suffrage and no deprivation of the franchise is suffered by anyone.

Id. Recognizing that the winner-take-all method was merely an example of the “unit rule,”

the Williams district court stated that “nothing in the unit rule [is] offensive to the

Constitution.” Id. And the Supreme Court summarily affirmed the district court’s ruling

on appeal. Williams, 393 U.S. 320, reh’g denied, 393 U.S. 1112 (1969). To be sure, the

Supreme Court’s summary affirmance of the district court’s decision in Williams “affirm[s]

the judgment but not necessarily the reasoning by which it was reached,” Mandel v.

Bradley, 432 U.S. 173, 176 (1977) (per curiam) (quoting Fusari v. Steinberg, 419 U.S. 379,

391–92 (1975) (Burger, C.J., concurring )), but it does “prevent lower courts from coming

to opposite conclusions on the precise issues presented and necessarily decided by those

actions,” id.

The plaintiffs contend nonetheless that the Supreme Court’s subsequent decision in

White v. Regester precludes use of an at-large, statewide election that dilutes minority

votes. In White, the Court held that the reapportionment plan for the Texas House of

Representatives, which included both single-member districts and multi-member districts,

was, as a whole, not invidiously discriminatory. 412 U.S. at 764. But it did affirm the

district court’s finding that in two multi-member districts, racial minority groups were

effectively excluded from the political process to the extent that they were unable to elect

representatives. Id. at 765. It also affirmed the district court’s judgment to redraw those

18 multi-member districts as single-member districts. Id. The Court’s justification for

affirming these aspects was based on the extensive factual findings made by the district

court of invidious discrimination against the minorities in those multi-member districts.

Thus, the Supreme Court’s holding is limited to where “multimember districts are being

used invidiously to cancel out or minimize the voting strength of racial groups,” id.,

requiring a showing that members of minority groups have, as a result of a districting plan,

“less opportunity than [do] other residents in the district to participate in the political

processes and to elect legislators of their choice,” id. at 766 (emphasis added).

Thus understood, White’s holding does nothing to undermine the reasoning of the

district court in Williams, as White addresses the dilutive effects of creating multi-member

legislative districts and not of appointing Electors as a slate. Moreover, the plaintiffs in

this case have not purported to claim invidious discrimination on the part of South Carolina.

Indeed, they seem to agree that all persons entitled to vote have had the opportunity to vote

and that their votes have been counted with equal weight, regardless of political affiliation.

The essential problem that they identify is one that we cannot remedy — the fact that they

did not have enough votes to achieve the outcome they desired. As the Supreme Court has

observed, “we have not yet deemed it a denial of equal protection to deny legislative seats

to losing candidates, even in those so-called ‘safe’ districts where the same party wins year

after year.” Whitcomb v. Chavis, 403 U.S. 124, 153 (1971).

The plaintiffs also argue that their votes are impermissibly “discarded” prior to the

second stage of the electoral process, when the Electors cast the votes for the presidential

candidates chosen by the plurality, as no Electors vote in accordance with the political

19 minority. According to the plaintiffs, the Supreme Court’s decision in Gray v. Sanders

precludes such “discarding” of votes after the first stage of a two-stage election. In Gray,

a Georgia voter challenged the method by which Georgia’s Democratic party tabulated

votes to determine the primary winner in statewide elections. See 372 U.S. at 370. The

Georgia system allocated to each county a certain number of “units,” all of which were

awarded to the popular vote winner of that county. Because of the way county units were

allocated, small rural counties had disproportionate influence compared to larger or urban

counties; “counties having population of one-third of the total in the state [had] a clear

majority of county units.” Id. at 373. Following an election, both the popular vote and the

county unit vote were tabulated, and the candidate receiving a majority of both secured the

nomination without a runoff. See id. at 372. If the tabulation of the popular vote and the

county unit vote were split, the candidate with the greatest number of county unit votes in

a runoff election would prevail. See id. The Court held that Georgia’s system involved

impermissible differential weighing of votes based on voter location. Id. at 379–81. It also

suggested, in a footnote, that using a winner-take-all approach to allocate county units was

impermissible even if the units were allocated proportionately by population:

The county unit system . . . would allow the candidate winning the popular vote in the county to have the entire unit vote of that county. Hence the weighting of votes would continue, even if unit votes were allocated strictly in proportion to population. Thus if a candidate won 6,000 of 10,000 votes in a particular county, he would get the entire unit vote, the 4,000 other votes for a different candidate being worth nothing and being counted only for the purpose of being discarded.

Id. at 381 n.12.

20 The plaintiffs argue that the Gray Court’s language in footnote 12 reveals the

constitutional flaw in South Carolina’s winner-take-all system. The Georgia

circumstances, however, are materially distinguishable from those before us. First, in

Gray, using winner-take-all at the county level had the potential to change the outcome of

a statewide election by discarding minority votes in each county, possibly leading to the

nomination at the second stage of a political representative that failed to secure even

plurality support in the State in lieu of one who had such support. But in the presidential

context, there is no statewide elected seat up for grabs — the second stage of the election

occurs at the national level, and the two-step system is dictated by the Constitution. While

using winner-take-all at the State level leaves open the possibility that a President could,

on a nationwide basis, be elected despite losing the national popular vote, this very

possibility is baked into the Constitution. Indeed, the Gray Court was careful to recognize

this distinction:

We think the analogies to the electoral college, to districting and redistricting, and to other phases of the problems of representation in state or federal legislatures or conventions are inapposite. The inclusion of the electoral college in the Constitution, as the result of specific historical concerns, validated the collegiate principle despite its inherent numerical inequality, but implied nothing about the use of an analogous system by a State in a statewide election. No such specific accommodation of the latter was ever undertaken, and therefore no validation of its numerical inequality ensued.

372 U.S. at 378 (footnotes omitted). Thus, the Gray Court recognized that the type of

“numerical inequality” that may render a state electoral process unconstitutional is a feature

— not a flaw — of the Electoral College system.

21 Moreover, the central concern in Gray — the differential treatment of votes

depending on the county in which they were cast — is not at issue here. All votes cast in

presidential elections in South Carolina are treated the same, and the candidate with the

most support across the State gets the State’s allocation of electoral votes in the Electoral

College. Thus, there is no risk, as there was in Gray, that votes are treated differently based

on geography.

The plaintiffs’ criticism of the unitary system — where a slate of Electors from a

State votes for a single ticket — is moreover dubious in light of the fact that the

Constitution itself explicitly embraces such an approach, albeit at a different stage of the

electoral process. In addressing how a tie vote in the Electoral College is to be resolved,

the Constitution provides that the election of the President is then committed to the House

of Representatives, and in carrying out the election, “the votes [in the House] shall be taken

by states, the representation from each state having one vote.” U.S. Const. amend. XII

(emphasis added). Of course, the constitutionally prescribed method of tie-breaking

“dilutes” or “discards” the vote of the minority House members from each State, in effect

silencing the minority to allow each State to speak with one voice — the very process that

the plaintiffs decry on the state level.

At bottom, South Carolina’s winner-take-all system “does not treat any particular

group of [voters in the State] differently at all — it does not inherently favor or disfavor

voters from any particular group (political or otherwise).” Lyman, 954 F.3d at 371

(affirming dismissal of the complaint in a parallel case brought by Republican voters in

Massachusetts). To be sure, when the plurality wins, it has the effect of rejecting the

22 outcome sought by voters supporting minority parties. But that is the reality of any

democratic system. Absent some invidious discrimination that infects the process, it is

difficult to comprehend a challenge to the various roles exercised in the selection of a

President that does not also challenge the Constitution itself. We affirm the district court’s

conclusion that plaintiffs did not state a claim for relief under the Equal Protection Clause.

V

The plaintiffs next contend that the winner-take-all method employed by South

Carolina burdens their right to freedom of association, as protected by the First Amendment

and applicable to the States through the Fourteenth Amendment. In their view, the winner-

take-all system “burdens Plaintiffs’ ability to associate with like-minded voters — all of

whom know that any such association, fundraising, or activities would be functionally

useless.” (Citing Gill, 138 S. Ct. at 1938 (Kagan, J., concurring)).

South Carolina maintains, as the district court concluded, that this argument

“conflates a diminishing motivation to participate with a severe burden on the actual ability

of people to participate in the voting process.” (Quoting Baten, 374 F. Supp. 3d at 570).

According to South Carolina, the plaintiffs have not alleged any actual burden, and merely

“losing an election does not give rise to an unconstitutional infringement upon the

associational rights of the losing candidate’s supporters.”

The Supreme Court has indeed recognized that “[t]he freedom of association

protected by the First and Fourteenth Amendments includes partisan political

organization. . . . The right to associate with the political party of one’s choice is an integral

23 part of this basic constitutional freedom.” Tashjian v. Republican Party of Ct., 479 U.S.

208, 214 (1986) (cleaned up). Thus, States are prohibited from unduly interfering with a

political party’s ability to encourage participation, see id. at 217, or from placing

unnecessary and unequal burdens on a political party seeking a place on the ballot, see

Rhodes, 393 U.S. at 30–31.

The plaintiffs’ claim of interference, however, is far more tenuous than those

recognized as First Amendment violations. They do not claim that South Carolina

prevented their preferred candidates from appearing on the ballot or interfered with their

ability to convince potential voters of their candidates’ advantages. Rather, the plaintiffs

contend that their inability to secure the selection of any Democratic-affiliated Electors in

presidential elections dampens enthusiasm for Democratic politics in South Carolina and

thereby burdens their right to associate freely with the political party of their choice. But

this effect stems not from any action by South Carolina to inhibit Democratic participation

in presidential elections, but rather from the Democrats’ inability to muster a majority of

South Carolina’s votes. And though the First Amendment protects the right to associate

for the purposes of advocacy, it “provides no guarantee that a speech will persuade or that

advocacy will be effective.” Smith v. Ark. State Highway Emp., Local 1315, 441 U.S. 463,

465 (1979) (citation omitted). In other words, “[t]hat one’s candidate of choice does not

prevail at the ballot box simply does not translate into an associational rights violation.”

Lyman, 954 F.3d. at 377. The winner-take-all system may “raise[] the stakes of victory,”

but it does not interfere with the plaintiffs’ opportunity to associate for the purposes of

advocating for such victory. Id.

24 Similarly, the plaintiffs’ suggestion that the winner-take-all system serves as a

disincentive for political candidates to campaign in South Carolina, thereby impeding their

ability to participate effectively in the political process, is too tenuous to support their

freedom of association claim. The First Amendment guarantees the right to associate with

the political party of one’s choice to participate in the political process; it does not

guarantee to the residents of South Carolina attention from candidates for nationwide

office. Moreover, many considerations other than the likelihood that the candidate will

receive needed Electoral College votes from a given State influence a presidential

candidate’s campaign event route, and therefore it is simply impossible to predict whether

presidential candidates would be more likely to campaign in South Carolina if the winner-

take-all system were abandoned. Indeed, if, as the plaintiffs maintain, a reliable portion of

the eligible voting population in the State consistently votes for Democratic candidates and

would continue to do so if South Carolina adopted a proportional system, such candidates

might nonetheless make the strategic assessment that those votes were “safe” even without

campaign stops in the State. At bottom, this argument does not support a cognizable First

Amendment claim.

We thus affirm the district court’s order also dismissing the plaintiffs’ freedom of

association claim.

VI

Finally, the plaintiffs contend that the district court erred in dismissing their claim

under § 2 of the VRA, which prohibits standards, practices, or procedures imposed “in a

25 manner which results in a denial or abridgement of the right of any citizen of the United

States to vote on account of race or color.” 52 U.S.C. § 10301(a). A violation of § 2 is

established if, “based on the totality of circumstances, it is shown that the political

processes leading to nomination or election in the State or political subdivision are not

equally open to participation by members of a class of citizens protected by subsection (a)

in that its members have less opportunity than other members of the electorate to

participate in the political process and to elect representatives of their choice.” 52 U.S.C.

§ 10301(b) (emphasis added). The Act specifies that it does not “establish[] a right to have

members of a protected class elected in numbers equal to their proportion in the

population.” Id.

The plaintiffs maintain that “the vote dilution caused by South Carolina’s [winner-

take-all] rules is a mathematical certainty,” arguing that the process prevents Black voters

from choosing their preferred electors. Given the demographic breakdown of South

Carolina’s electorate and the partisan preferences of Black voters, the plaintiffs maintain

that “South Carolina’s [B]lack voters would be able to appoint two electors with no help

from [W]hite voters if they had ‘the opportunity to exercise an electoral power that is

commensurate with [their] population in the relevant jurisdiction.’” (Quoting Hall v.

Virginia, 385 F.3d 421, 429 (4th Cir. 2004)).

South Carolina contends simply that “the ultimate right of § 2 [of the VRA] is

equality of opportunity, not a guarantee of electoral success for minority preferred

candidates of whatever race,” (emphasis added) (quoting Johnson v. DeGrandy, 512 U.S.

997, 1014 n.11 (1994)), and that Black voters in South Carolina have been unsuccessful in

26 having their preferred electors appointed simply because they vote for the less popular

political party, not because minorities are excluded from the political process.

As the district court correctly stated, plaintiffs seeking to bring a claim under § 2 of

the VRA to challenge the dilutive effects of a multi-member district must be able to show

that (1) “the minority group . . . is sufficiently large and geographically compact to

constitute a majority in a single-member district;” (2) “the minority group . . . is politically

cohesive;” and (3) “the [W]hite majority votes sufficiently as a bloc to enable it . . . usually

to defeat the minority’s preferred candidate.” Thornburg v. Gingles, 478 U.S. 30, 50–51

(1986). But these requirements do not map onto the type of challenge that the plaintiffs

have mounted here. Gingles involved a challenge to the use of multimember districts in

North Carolina’s legislative apportionment, which the plaintiffs argued diluted minority

voting blocs that would form “effective voting majorities in single-member districts.” Id.

at 38. Whereas, here, by contrast, there is no alternative of a “single-member district”

because the selection of electors in South Carolina does not involve districts at all. While

the plaintiffs indeed allege that Black voters in South Carolina are a minority group

“sufficiently large and geographically compact to constitute a majority in a single-member

district,” they fail to address what this means in the context of a statewide election. The

relevant geographic area for the selection of presidential Electors is the entire State, and

Black voters do not constitute a majority statewide. Moreover, even though the plaintiffs

assert that the White majority votes sufficiently as a bloc to enable it to defeat the minority-

preferred candidate, they elide the distinction between the candidates the minorities prefer

— i.e. the Democratic presidential and vice-presidential candidates — and the “candidates”

27 that, in their view, they have sufficient political power to elect — i.e., two out of nine of

the presidential Electors. Section 2 refers to the election of “representatives,” not the

appointment of Electors. And while it is true that White voters may have, in recent decades,

preferred Republican candidates and voted accordingly, Black voters are not sufficiently

numerous to change the outcome. This does not mean, however, that Black voters, who

tend to prefer Democratic candidates, “have less opportunity than other members of the

electorate to participate in the political process and to elect representatives of their choice.”

52 U.S.C. § 10301(b) (emphasis added), as required to establish a violation of the VRA.

We therefore affirm the district court’s order dismissing the plaintiffs’ VRA claim.

* * *

In sum, we deny South Carolina’s motion to dismiss the appeal, and we affirm the

judgment of the district court.

AFFIRMED

28 WYNN, Circuit Judge, dissenting 1:

This matter arises from one simple yet remarkable fact: In every presidential

election since 1980, the votes by South Carolinians for Democratic presidential candidates

have been counted only for the purpose of being discarded because, despite representing a

significant share of the state’s total votes, South Carolinians’ votes for Democratic

candidates have translated into no votes in the Electoral College. Incredibly, South

Carolina’s state-wide, winner-take-all method of selecting presidential electors has

rendered more than 4 million votes for Democratic candidates over the last five presidential

elections worthless.

So, six Democratic voters from South Carolina brought this case alleging that this

system unconstitutionally dilutes and discards their votes. The majority opinion affirms the

district court in dismissing the case, putting Plaintiffs’ claims to bed at an early stage.

But Plaintiffs deserve more than this short shrift dismissal of their claims. Viewing

Plaintiffs’ allegations with an open mind and accepting them as true, as we are required to

do, Plaintiffs have stated plausible violations of the First and Fourteenth Amendments and

the Voting Rights Act. In essence, they deserve, at least, an opportunity to be heard. With

great respect for the differing view of my colleagues, I must dissent.

Having said that, the majority opinion must not be read as deterring future plaintiffs

from questioning longstanding election practices that run counter to this country’s

1 I concur in the majority’s denial of South Carolina’s motion to dismiss the appeal for lack of subject matter jurisdiction. foundational principles of democracy. At best, the majority opinion reflects a limited view

of the judiciary’s role in addressing fairness in elections. Yet, the Electoral College itself

is an undemocratic process. And states like South Carolina exacerbate its undemocratic

aspects by allocating all of their presidential electors to the state-wide popular vote winner.

This is not a question of partisanship—South Carolina discards votes for

Democratic presidential candidates, but other states discard votes for Republican

presidential candidates. 2 This is a question of the openness and fairness of the winner-take-

all method of selecting presidential electors for the Electoral College.

I.

On appeal, South Carolina argues that the Supreme Court’s summary affirmance in

Williams v. Virginia State Board of Elections, 288 F. Supp. 622 (E.D. Va. 1968), aff’d, 393

U.S. 320 (1969), forecloses Plaintiffs’ claims. That argument largely carried the day in the

district court and in the other courts that have recently considered parallel litigation. 3 The

2 For example, in Massachusetts, more than one million votes were cast for the Republican presidential candidate in 2016. Despite constituting almost 33% of the total votes cast in the state, the Republican candidate received none of Massachusetts’s eleven electoral votes. Lyman v. Baker, 954 F.3d 351, 356 (1st Cir. 2020). A similar result occurred in Massachusetts in the seven previous presidential elections. And the same pattern holds in other states like California and New York. 3 At the time Plaintiffs brought this suit, their counsel filed parallel litigation on behalf of voters in Texas, Massachusetts, and California. See Lyman v. Baker, 954 F.3d 351 (1st Cir. 2020); League of United Latin Am. Citizens v. Abbott, 951 F.3d 311 (5th Cir. 2020); Rodriguez v. Brown, No. 2:18-cv-001422, 2018 WL 6136140 (C.D. Cal. Sept. 21, 2018), appeal filed, No. 18-56281 (9th Cir. 2018). The First and Fifth Circuits have affirmed the dismissal of the Massachusetts and Texas suits, respectively, although neither court considered a Voting Rights Act claim. The California case is still pending before the Ninth Circuit. 30 majority here describes Williams as “persuasive” but, apparently, does not give it the

controlling weight afforded by other courts. Majority Op. at 17. Nonetheless, before

addressing the approach taken by the majority in this matter, it is appropriate to address

South Carolina’s arguments and the district court’s conclusion regarding Williams.

The district court’s conclusion rested on the simple fact that Williams, like this case,

involved a challenge to a state’s winner-take-all method of selecting presidential electors.

But Williams was a summary affirmance by the Supreme Court without an opinion

explaining its reasoning. Thus, we must consider the reach and controlling effect of that

summary affirmance. Mandel v. Bradley, 432 U.S. 173, 176 (1977); Hicks v. Miranda, 422

U.S. 332, 345 n.14 (1975) (“Ascertaining the reach and content of summary actions may

itself present issues of real substance.”).

A summary affirmance resolves the issues for the parties, and lower courts may not

come “to opposite conclusions on the precise issues presented and necessarily decided.”

Mandel, 432 U.S. at 176. But at the same time, “a summary affirmance is an affirmance of

the judgment only,” not the rationale of the lower court, and “should not be understood as

breaking new ground.” Id. And a summary affirmance “is not to be read as a renunciation

. . . of doctrines previously announced in [the Court’s] opinions after full argument.” Id.

(quotation marks omitted).

Indeed, “summary affirmances have considerably less precedential value than an

opinion on the merits.” Ill. State Bd. of Elections v. Socialist Workers Party, 440 U.S. 173,

180–81 (1979). And “doctrinal developments” may, in some circumstances, undermine the

31 controlling effect of a summary disposition. Hicks, 422 U.S. at 344 (quoting Port Auth.

Bondholders Protective Comm. v. Port of N.Y. Auth., 387 F.2d 259, 263 n.3 (2d Cir. 1967)).

So, to assess the controlling effect of Williams, we must first identify the “precise

issues presented and necessarily decided” in that case. Mandel, 432 U.S. at 176. And then,

even if the precise issues presented and decided in Williams are again presented in this

case, we must consider whether doctrinal developments since the Williams decision

indicate that its controlling influence has waned.

In Williams, the district court addressed three claims made by the plaintiffs:

(1) the intendment of Article II, Section 1, providing for the appointment of electors is that they be chosen in the same manner as Senators and Representatives, that is two at large and the remainder by Congressional or other equal districts; (2) the general ticket method violates the ‘one-person, one-vote’ principle of the Equal Protection Clause of the Fourteenth Amendment, i.e., the weight of each citizen’s vote must be substantially equal to that of every other citizen; and (3) the general ticket system gives a citizen in a State having a larger number of electors than Virginia the opportunity to effectuate by his vote the selection of more electors than can the Virginian.

Williams, 288 F. Supp. at 624 (citations omitted) (citing Wesberry v. Sanders, 376 U.S. 1,

18 (1964); Gray v. Sanders, 372 U.S. 368, 381 (1963)).

Here, Plaintiffs do not argue that South Carolina must allocate electors in the same

manner as senators or representatives, nor do they argue that South Carolina’s current

system somehow affects the weight of Plaintiffs’ votes relative to that of voters in other

states. And so, we are left to consider what precise issues were necessarily decided in

resolving the Williams plaintiffs’ one person, one vote claim.

32 A.

To begin, Williams did not address or resolve any issues related to a claim of vote

dilution. In claims of racial vote dilution, “[t]he basic concept, broadly stated, is that racial

minorities may not have their group voting power impermissibly ‘diluted’ by multimember

districting or at-large electoral processes which ‘submerge’ the minority voting group in a

voting constituency in which the voting power of a racially ‘bloc-voting’ white majority

always insures defeat for the candidates of the minority group’s choice.” McGhee v.

Granville County, 860 F.2d 110, 116 (4th Cir. 1988). The one person, one vote principle

at issue in Williams, in contrast, implicates the “requirement that all citizens’ votes be

weighted equally,” and usually arises in challenges to disparities in population among

districts. Raleigh Wake Citizens Ass’n v. Wake Cty. Bd. of Elections, 827 F.3d 333, 340

(4th Cir. 2016).

In Republican Party of North Carolina v. Martin, this Court concluded that Wells

v. Edwards, 347 F. Supp. 453 (M.D. La. 1972), aff’d mem., 409 U.S. 1095 (1973)—a

summary affirmance of a one person, one vote claim—did not control in a case involving

a claim of vote dilution. 980 F.2d 943, 954 (4th Cir. 1992). The same is true here. The

Williams court’s analysis of the one person, one vote argument does not foreclose the vote

dilution claim in this case. And moreover, Williams could not have “necessarily decided”

the “precise issue[ ]” of a vote dilution claim because the doctrine supporting such a claim

did not develop in any significant sense until the 1970s, that is, after the Williams summary

affirmance in January 1969. Mandel, 432 U.S. at 176.

33 Although “[t]he question of the constitutional validity of multi-member districts

ha[d] been pressed in [the] Court since the first of the modern reapportionment cases,” the

Supreme Court’s first substantial vote dilution case was its 1971 decision in Whitcomb v.

Chavis. 403 U.S. 124, 142 (1971); see id. at 142 n.22 (discussing previous cases in which

multi-member districts were involved but where vote dilution claims were not squarely

presented). There, the Supreme Court considered a challenge to Indiana’s multi-member

state legislative districts, holding that multi-member districts are not categorically

unconstitutional but that a challenger could show unconstitutional vote dilution by proving

“that multi-member districts unconstitutionally operate to dilute or cancel the voting

strength of racial or political elements.” Id. at 144.

Then, two years later, the Court for the first time struck down a multi-member

district scheme as an unconstitutional vote dilution. White v. Regester, 412 U.S. 755 (1973).

The Court concluded that in bringing these types of claims, “it is not enough that the racial

group allegedly discriminated against has not had legislative seats in proportion to its

voting potential.” Id. at 765–66. Instead, a challenger’s “burden is to produce evidence to

support findings that the political processes leading to nomination and election were not

equally open to participation by the group in question—that its members had less

opportunity than did other residents in the district to participate in the political processes

and to elect legislators of their choice.” Id. at 766. Subsequent cases reaffirmed and refined

the doctrine. See City of Mobile v. Bolden, 446 U.S. 55 (1980); Rogers v. Lodge, 458 U.S.

613 (1982).

34 And so, the issue of vote dilution was not “presented and necessarily decided” in

Williams because the Williams court had neither the arguments nor the relevant precedent

before it. Mandel, 432 U.S. at 176. Because Williams does not speak to the issue of vote

dilution, it does not foreclose Plaintiffs’ arguments on that issue.

B.

But even as to Plaintiffs’ one person, one vote claim—a claim that alleges that South

Carolina unconstitutionally “discards” Plaintiffs’ votes after the first stage of the two-stage

presidential election—we must take seriously our obligation to ascertain the reach of

Williams. See Mandel, 432 U.S. at 176. Inasmuch as vote dilution claims post-date

Williams, similarly, the one person, one vote principle has developed significantly since

the Williams summary affirmance.

This Court has recognized that doctrinal developments—especially decades’

worth—can call into question the continued force of summary dispositions. For example,

in Bostic v. Schaefer, we considered whether the Supreme Court’s summary dismissal in

Baker v. Nelson, 409 U.S. 810 (1972), settled a challenge to Virginia’s prohibition on same-

sex marriage. 760 F.3d 352, 373 (4th Cir. 2014). We noted that an intervening Supreme

Court case—United States v. Windsor, 570 U.S. 744 (2013)—had considered a related

issue and did not mention Baker. Id. at 373–74. We said that such an omission “speaks

volumes.” Id. at 374. We then went on to say that “[t]he Court’s development of its due

process and equal protection jurisprudence in the four decades following Baker is even

more instructive.” Id.

35 Accordingly, an understanding of the historical development of the Court’s one

person, one vote jurisprudence is essential to determining the controlling effect of

Williams.

In 1946 in Colegrove v. Green, the Supreme Court rejected a challenge to Illinois’s

unequally populated congressional districts. 328 U.S. 549 (1946). Justice Frankfurter’s

plurality opinion concluded that such a challenge was beyond the competence of the federal

judiciary because of its “peculiarly political nature.” Id. at 552. Although the Constitution

“gives ample power to provide against [the] evils” of malapportionment, Justice

Frankfurter concluded “[a]uthority for dealing with such problems resides elsewhere”—

not with the judiciary. Id. at 554. He warned, “Courts ought not to enter this political

thicket.” Id. at 556.

Not even twenty years later, in Baker v. Carr, the Supreme Court rejected Justice

Frankfurter’s conclusion that claims of malapportioned districts that diluted voting strength

were beyond the competence of federal courts. 369 U.S. 186 (1962). Baker considered a

challenge to the malapportionment of the state legislature of Tennessee. Tennessee’s

legislative districts, like the districts of many other states at the time, did not share equal

populations. Id. at 319–21 (Frankfurter, J., dissenting). Diverging from Colegrove, the

Court in Baker held that the judiciary was equipped to resolve such a challenge: “Judicial

standards under the Equal Protection Clause are well developed and familiar, and it has

been open to courts since the enactment of the Fourteenth Amendment to determine, if on

the particular facts they must, that a discrimination reflects no policy, but simply arbitrary

and capricious action.” Id. at 226 (majority opinion). And so even where, much like the

36 case before us now, previous decisions had been read to condone the state’s practice, and

even where many states used a system suffering from the same alleged defect, the Court in

Baker remanded the case for consideration on the merits. Id. at 237.

Then, in Gray v. Sanders, the Court further developed this jurisprudence, using the

phrase “one person, one vote.” 372 U.S. 368, 381 (1963). Gray involved a challenge to

Georgia’s “county unit system” of allocating and counting votes in a state-wide primary.

Id. at 370. Each county received a number of votes based on its number of representatives

in the lower house of the state’s general assembly. Id. at 371. Because the general assembly

was malapportioned, there were significant disparities in the voting power of citizens of

different counties. Id. at 370–71 & n.1. The Supreme Court rejected Georgia’s justification

of the system based on analogy to the United States Senate or Electoral College. Id. at 377–

380. In so doing, the Court characterized the philosophy underlying the Electoral College

as “belong[ing] to a bygone day.” Id. at 376 n.8. Instead, the Court concluded “once the

class of voters is chosen and their qualifications specified, we see no constitutional way by

which equality of voting power may be evaded.” Id. at 381. “The conception of political

equality from the Declaration of Independence, to Lincoln’s Gettysburg Address, to the

Fifteenth, Seventeenth, and Nineteenth Amendments can mean only one thing—one

person, one vote.” Id.

The Court continued to refine the one person, one vote doctrine in subsequent cases.

In Wesberry v. Sanders, it held that the one person, one vote, equal population principle

applied to congressional districts. 376 U.S. 1, 18 (1964). In doing so, the Court’s majority

rejected the arguments raised in Justice Harlan’s dissent, including that the Elections

37 Clause in Article I, Section 4 gives states the power to prescribe the “Manner” of

conducting congressional elections. See id. at 23–24 (Harlan, J., dissenting). 4

And in Reynolds v. Sims, the Court held that “as a basic constitutional standard, the

Equal Protection Clause requires that the seats in both houses of a bicameral state

legislature must be apportioned on a population basis.” 377 U.S. 533, 568 (1964).

“Legislators represent people, not trees or acres.” Id. at 562. And “each citizen [should]

have an equally effective voice in the election of members of his state legislature.” Id. at

565. Reynolds therefore marked the expansion of the one person, one vote doctrine from a

rule requiring equally populated districts (as in Baker and Gray), to a theory of equally

effective voting power. And Reynolds rejected the view that the courts could turn a blind

eye to constitutional violations because “a denial of constitutionally protected rights

demands judicial protection; our oath and our office require no less.” Id. at 566.

“Over the ensuing decades, the Court has several times elaborated on the scope of

the one-person, one-vote rule.” Evenwel v. Abbott, 136 S. Ct. 1120, 1124 (2016). For

example, after Reynolds and after the summary affirmance in Williams, the Court clarified

that states may deviate from equal population among districts to a greater degree in drawing

state and local legislative districts than in drawing congressional districts. See Brown v.

Thomson, 462 U.S. 835, 842–43 (1983); see also id. at 850 n.2 (O’Connor, J., concurring).

4 Justice Harlan’s comments in dissent illustrate the significant changes the Court’s one person, one vote jurisprudence brought: “I had not expected to witness the day when the Supreme Court of the United States would render a decision which casts grave doubt on the constitutionality of the composition of the House of Representatives. It is not an exaggeration to say that such is the effect of today’s decision.” Wesberry, 376 U.S. at 20 (Harlan, J., dissenting). 38 And the Court addressed which types of governmental bodies are subject to the doctrine.

See, e.g., Salyer Land Co. v. Tulare Lake Basin Water Storage Dist., 410 U.S. 719, 733–

34 (1973) (permitting water storage district board votes to be apportioned based on land

value rather than population); Hadley v. Junior Coll. Dist. of Metro. Kan. City, 397 U.S.

50, 52 (1970) (applying one person, one vote to elections for trustees of junior college).

And the Court has held the doctrine applies to other democratic processes, like the

nominations and selection of presidential electors. See, e.g., Bush v. Gore, 531 U.S. 98,

104–05 (2000) (applying one person, one vote to recounting of votes in an election of

presidential electors); Moore v. Ogilvie, 394 U.S. 814, 819 (1969) (striking down an Illinois

law requiring signatures from at least 50 of the state’s 102 counties to qualify independent

candidates for president).

Thus, in the more than fifty years since the Court’s summary affirmance in Williams,

the Supreme Court has clarified and elaborated on the early one person, one vote cases,

particularly in cases moving beyond strict numerical equality of district population and into

theories of equally effective voting power. In the same way that this Court in Bostic

concluded that Baker was no longer controlling, the intervening decades of precedent on

the one person, one vote principle undermine Williams’s controlling effect on that issue.

Therefore, we must fully consider each of Plaintiffs’ arguments.

Plaintiffs’ First Amendment and Voting Rights Act arguments were clearly not

raised in Williams. And this Court has previously held that a summary decision in a one

person, one vote case does not control in a subsequent vote dilution case. Martin, 980 F.2d

at 954. And because voting rights jurisprudence developed so substantially over the fifty

39 years between the Williams court’s consideration of a one person, one vote argument and

the Plaintiffs’ challenge here, we are not bound by Williams with respect to that claim,

either.

When courts—like the district court and like our sister circuits who have heard and

rejected related cases—fail to seriously consider claims like those raised by Plaintiffs, they

risk returning to Justice Frankfurter’s approach in Colegrove—turning a blind eye to

constitutional wrongs out of fear of a political thicket. By stepping away from our

responsibility to resolve the questions presented to us, we ignore that Baker v. Carr rejected

that very approach and ushered in an era of more democratic governance. “When faced

with such constitutional wrongs, courts must intervene: ‘It is emphatically the province and

duty of the judicial department to say what the law is.’” Rucho v. Common Cause, 139 S.

Ct. 2484, 2525 (2019) (Kagan, J., dissenting) (quoting Marbury v. Madison, 5 U.S. (1

Cranch) 137, 177 (1803)).

Judicial abdication in a case such as the one before us causes particularly insidious

harm to our democracy. Courts play an essential role in protecting constitutional rights in

cases that question allocations of political power. “[T]he courts were designed to be an

intermediate body between the people and the legislature, in order, among other things, to

keep the latter within the limits assigned to their authority.” The Federalist No. 78

(Alexander Hamilton).

When those who wield political power use mechanisms of government to entrench

and enlarge their power, “politicians’ incentives conflict with voters’ interests, leaving

citizens without any political remedy for their constitutional harms.” Gill v. Whitford, 138

40 S. Ct. 1916, 1941 (2018) (Kagan, J., concurring). Members of a legislature may derive

personal political benefit from a particular choice of electoral system—for example,

members of one party of a state legislature may prefer a system that will favor their party

on a national level, thus increasing that party’s power and, in turn, increasing their own

power. Courts will be, in some instances, the only real avenue for redress.

Accordingly, it undermines our government of and for the people when courts

choose to leave unconstitutional electoral mechanisms uncorrected. “The courts cannot

reject as ‘no law suit’ a bona fide controversy as to whether some action denominated

‘political’ exceeds constitutional authority.” Baker, 369 U.S. at 217.

II.

The majority apparently agrees with me that our review is not controlled by

Williams. Thus, this matter involves considering Plaintiffs’ Fourteenth Amendment

challenges to South Carolina’s state-wide, winner-take-all system of allocating presidential

electors.

The parties—and the majority—agree that although the Constitution gives state

legislatures power to choose the method of selecting presidential electors, that power is not

without limits. It is “always subject to the limitation that [it] may not be exercised in a way

that violates other specific provisions of the Constitution.” Williams v. Rhodes, 393 U.S.

23, 29 (1968). In the election context, the Equal Protection Clause requires that “[h]aving

once granted the right to vote on equal terms, the State may not, by later arbitrary and

disparate treatment, value one person’s vote over that of another.” Bush, 531 U.S. at 104–

05. And so, states must “[e]nsure that each person’s vote counts as much, insofar as it is

41 practicable, as any other person’s” and protect each person’s vote “against dilution or

debasement.” Hadley, 397 U.S. at 54.

Plaintiffs argue their Fourteenth Amendment claim through the lens of vote dilution

and through the lens of one person, one vote, as articulated in Gray v. Sanders, which

Plaintiffs label as a claim of vote “discarding.” At this early stage, Plaintiffs’ burden is, of

course, relatively low. And where Plaintiffs offer “a novel legal theory that can best be

assessed after factual development,” dismissals at such an early stage are disfavored.

Wright v. North Carolina, 787 F.3d 256, 263 (4th Cir. 2015) (internal quotation marks

omitted). The complaint must allege facts sufficient to support a plausible claim that South

Carolina’s state-wide, winner-take-all system violates the Fourteenth Amendment. See

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). For the reasons below, I believe it does.

A.

Claims of vote dilution allege that members of a minority have had “their group

voting power impermissibly ‘diluted’ by multimember districting or at-large electoral

processes which ‘submerge’ the minority voting group” within a larger majority group.

McGhee, 860 F.2d at 116. For example, “[a] distinct minority, whether it be a racial, ethnic,

economic, or political group, may be unable to elect any representatives in an at-large

election, yet may be able to elect several representatives if the political unit is divided into

single-member districts.” Rogers, 458 U.S. at 616; see also Whitcomb, 403 U.S. at 143

(noting that the Court has “recogniz[ed] . . . that [multi-member districts] may be subject

to challenge where the circumstances of a particular case may ‘operate to minimize or

42 cancel out the voting strength of racial or political elements of the voting population’”

(quoting Fortson v. Dorsey, 379 U.S. 433, 439 (1965))).

Multi-member districts and at-large systems are not inherently unconstitutional, but

they violate the Constitution when they dilute minority votes. See White, 412 U.S. at 765;

Whitcomb, 403 U.S. at 142–43. Generally, if plaintiffs can demonstrate “members [of a

group] had less opportunity than did other residents in the district to participate in the

political processes and to elect legislators of their choice,” then plaintiffs have shown “the

political processes leading to nomination and election were not equally open to

participation” in violation of the Equal Protection Clause. White, 412 U.S. at 766.

Specifically, in the context of state legislatures, the Supreme Court has identified

several considerations relevant to the question of whether a minority’s votes are

impermissibly diluted. The risk of vote dilution “is enhanced when the district is large and

elects a substantial proportion of the seats in either house of a bicameral legislature, if it is

multi-member for both houses of the legislature or if it lacks provision for at-large

candidates running from particular geographical subdistricts.” Whitcomb, 403 U.S. at 143–

44. And in White v. Regester, where the Supreme Court affirmed the district court’s

invalidation of dilutive districts, the Court approvingly discussed the district court’s

consideration of historical and ongoing racial discrimination and the minority’s inability to

elect representatives of its choice in the districts at issue. 412 U.S. at 765–70.

Here, South Carolina’s system of selecting presidential electors has many of the

features that risk creating the vote dilution identified in Whitcomb: the “district” from

which presidential electors are elected is large (indeed, it is the entire state); every one of

43 South Carolina’s electors is selected through this method; and no electors run from

particular geographical subdistricts. Whitcomb, 403 U.S. at 143–44.

The “past and present reality, political and otherwise” similarly shows vote dilution.

White, 412 U.S. at 770. For example, in the 2016 presidential election, 40.67% of South

Carolina voters cast their ballots for the Democratic candidate. But despite this support,

South Carolina selected no Democratic electors.

A similar pattern has occurred in previous elections. In every presidential election

since 2000, the Democratic candidate for president received at least 40% of the vote in

South Carolina, but South Carolina has selected no Democratic electors. Although the

Democratic candidate earns a significant number of votes, none of South Carolina’s

electors are the electors supporting that candidate.

Plaintiffs allege that here, by submerging their votes in the state-wide total and then

allocating electors only on the basis of the state-wide plurality winner, South Carolina has

subjected them to arbitrary and disparate treatment and created a system that is not equally

open to participation by South Carolina’s Democratic voters. This is a viable claim of vote

dilution in violation of the Fourteenth Amendment. 5

5 The parties disagree whether an allegation of invidious intent is required to make out a claim of vote dilution. In Bolden, a plurality of the Supreme Court concluded that constitutional claims of vote dilution require proof of invidious intent, not just harmful effects. 446 U.S. at 66 (plurality opinion). But in Bush v. Gore, the Court held that equal protection prohibits a state from, through “arbitrary and disparate treatment, valu[ing] one person’s vote over that of another.” 531 U.S. at 104–05. Plaintiffs argue the Bush Court’s prohibition on “arbitrary and disparate treatment” removed any requirement of invidious intent. And although South Carolina argues that Bush did not abrogate any existing requirement of invidiousness, it takes the position that either invidious discrimination or

44 As discussed above, the one person, one vote principle can apply to governmental

bodies other than Congress and state legislatures. See, e.g., Hadley, 397 U.S. at 52

(applying one person, one vote to elections for trustees of a junior college); Avery v.

Midland County, 390 U.S. 474, 482 (1968) (applying equal population principle to five-

member county commissioners court where the court had administrative, executive, and

judicial functions); Martin, 980 F.2d at 953 (concluding that the plaintiffs could bring a

vote dilution claim challenging the method of electing judges).

In Avery, the Court observed that the commissioners court had the “power to make

a large number of decisions having a broad range of impacts on all the citizens of the

county.” 390 U.S. at 483. The function of South Carolina’s electors is limited, particularly

because South Carolina requires its electors to vote for their declared candidates. See S.C.

Code Ann. § 7-19-80. But South Carolina’s electors nonetheless exercise significant

power. The electors express South Carolina’s preferences in national presidential elections

and they, in fact, cast South Carolina’s only constitutionally effective votes for president.

And South Carolina’s practices in selecting and allocating its presidential electors

affect the nation as a whole. “[I]n the context of a Presidential election, state-imposed

restrictions implicate a uniquely important national interest. For the President and the Vice

arbitrary and disparate treatment of voters can support a one person, one vote challenge. Plaintiffs allege that South Carolina’s system arbitrarily treats their votes differently— diminishing as much as 48% support for Democratic candidates into zero presidential electors and magnifying as little as 38% support for Republican candidates into 100% of the state’s electors.

45 President of the United States are the only elected officials who represent all the voters in

the Nation.” Anderson v. Celebrezze, 460 U.S. 780, 794–95 (1983) (footnote omitted).

To be clear, there is little case law applying the one person, one vote principle to the

selection of presidential electors. 6 And to some degree, the Electoral College is already

“districted” by state by the Constitution. See U.S. Const. art. II, § 1, cl. 2. But the Supreme

Court has long held that although the Constitution gives states the power to set the method

for selecting their electors, states may not select a method that violates other constitutional

provisions. See Chiafalo v. Washington, No. 19-465, 2020 WL 3633779, at *6 n.4 (U.S.

July 6, 2020) (“A State, for example, cannot select its electors in a way that violates the

Equal Protection Clause.”); Rhodes, 393 U.S. at 29 (“Nor can it be thought that the power

to select electors could be exercised in such a way as to violate express constitutional

commands that specifically bar States from passing certain kinds of laws.”).

And although the Constitution allocates electors on a state-by-state basis—and

permits each state one presidential vote in the House of Representatives in the case of an

Electoral College tie—those allocations predate and are not governed by the Fourteenth

Amendment. See U.S. Const. amend. XII. The Fourteenth Amendment requires that states,

like South Carolina, afford every “person within [their] jurisdiction the equal protection of

the laws.” U.S. Const. amend. XIV. And so the Constitution’s allocation of electors to the

6 The majority cites Chiafalo v. Washington, No. 19-465, 2020 WL 3633779, at *6 (U.S. July 6, 2020) for the proposition that states’ authority to determine how to appoint electors includes the authority to require electors to vote for the plurality vote winner in a state. Majority Op. at 16. Chiafalo did not consider whether a state-wide winner-take-all system like South Carolina’s violates the Equal Protection Clause. 46 states does not mean the states, limited as they are by the Fourteenth Amendment, are free

to replicate that allocation on a smaller scale if that system would violate the Equal

Protection Clause.

For example, if South Carolina were to allocate its nine electors by district and draw

those districts with population disparities that violated the one person, one vote principle,

I suspect, and hope, courts would take a constitutional challenge to that system seriously.

We should take Plaintiffs’ arguments just as seriously, and not excuse unconstitutional vote

dilution simply on the basis that the Constitution—prior to the adoption of the Fourteenth

Amendment—allocated electors on a state-by-state basis or gave each state one vote in the

House following an Electoral College tie.

Because Plaintiffs’ allegations make out a plausible claim of vote dilution in

violation of the Fourteenth Amendment, I would allow Plaintiffs to proceed in this

litigation with this claim.

Plaintiffs also allege South Carolina’s state-wide, winner-take-all system violates

the Fourteenth Amendment by discarding their votes before the operative stage of the two-

stage presidential election. 7 In support of this position, Plaintiffs rely on the one person,

one vote principle, particularly as discussed in Gray, Reynolds, and Bush.

7 South Carolina describes Plaintiffs as “seek[ing] to complicate this case” by describing presidential elections as having two stages. Response Br. at 39. But there is no legitimate disagreement about how presidential elections occur or that there are multiple stages. First, states select presidential electors. U.S. Const. art. II, § 1, cl. 2. Today, every state uses a system in which citizens vote for electors. Bush, 531 U.S. at 104. In South Carolina, the

47 As previously addressed, the principle of one person, one vote does not simply

require mathematical equality of population among districts. It “requires . . . that each

citizen have an equally effective voice in the election” of government. Reynolds, 377 U.S.

at 565. And “the right of suffrage can be denied by a debasement or dilution of the weight

of a citizen’s vote just as effectively as by wholly prohibiting the free exercise of the

franchise.” Id. at 555. So South Carolina does not insulate itself from an equal protection

claim by merely allowing Plaintiffs to vote in the election for presidential electors. “Equal

protection applies as well to the manner of [the franchise’s] exercise. Having once granted

the right to vote on equal terms, the State may not, by later arbitrary and disparate

treatment, value one person’s vote over that of another.” Bush, 531 U.S. at 104–05.

Here, Plaintiffs allege that “[t]he consequence of [South Carolina’s] system is to

give no effect to the votes of citizens who voted for a losing candidate in South Carolina

in the tabulation of the final vote for President.” J.A. 23–24. 8 “[V]otes for a losing

presidential candidate are counted in South Carolina only to be discarded when another

candidate wins more votes in South Carolina.” J.A. 24.

names of electors do not appear on the ballot. S.C. Code Ann. § 7-19-70. Instead, the names of presidential and vice-presidential candidates appear, and “[a] vote for the candidates named on the ballot shall be a vote for the electors of the party by which those candidates were nominated.” Id. The electors of each state cast their ballots for president and vice president, and if a presidential candidate receives a majority of the electoral votes, he or she is elected president. U.S. Const. amend. XII. Plaintiffs refer to the vote by citizens for electors as the first stage, and the vote by electors for president as the second. 8 Citations to ‘J.A. __’ refer to the Joint Appendix filed by the parties in this appeal. 48 The Gray Court identified the problem with South Carolina’s state-wide, winner-

take-all elections in describing a problem with Georgia’s county unit system: “if a

candidate won 6,000 of 10,000 votes in a particular county, he would get the entire unit

vote, the 4,000 other votes for a different candidate being worth nothing and being counted

only for the purpose of being discarded.” 372 U.S. at 381 n.12; see also Gordon v. Lance,

403 U.S. 1, 4 (1971) (describing Gray as holding “that the county-unit system would have

been defective even if unit votes were allocated strictly in proportion to population”). In

every presidential election since 1980, South Carolinians’ votes for Democratic candidates

for president have been “counted only for the purpose of being discarded” because, despite

representing a significant share of the votes, these votes have translated into no votes in the

Electoral College.

South Carolina argues that states have used the winner-take-all system since the first

presidential election and that today, 47 other states and the District of Columbia use a

similar system. But the first presidential elections in this country were not governed by the

Fourteenth Amendment and its Equal Protection Clause, which was not ratified until 1868.

And as was demonstrated in Baker v. Carr, longstanding or widespread use of a particular

election practice does not mean the practice complies with constitutional demands. See

also McGirt v. Oklahoma, No. 18-9526, 2020 WL 3848063, at *20 (U.S. July 9, 2020)

(rejecting an argument that an adverse ruling would be transformative because “the

magnitude of a legal wrong is no reason to perpetuate it.”).

Hundreds of thousands of South Carolinians vote in each presidential election, only

to have their votes disregarded weeks later when South Carolina’s electors cast their votes

49 for president—the only votes that matter for constitutional purposes. Through this system,

these South Carolina voters are denied an “equally effective voice in the election” and their

votes are not accorded equal value. Reynolds, 377 U.S. at 565.

Although this practice has infected generations of presidential elections, I

nonetheless believe Plaintiffs have plausibly alleged this system unconstitutionally

discards their votes and I would allow Plaintiffs to pursue this claim.

III.

In addition to their Fourteenth Amendment claims, Plaintiffs also claim South

Carolina’s state-wide, winner-take-all system unconstitutionally burdens their First

Amendment rights. Again, Williams v. Virginia Board of Elections did not involve a First

Amendment claim, and so we must consider this claim on its own terms, without regard to

anything we believe the Williams court may have thought but left unsaid. Plaintiffs allege

South Carolina’s system burdens their right to express their political preference, their right

to associate, and their right to petition major party candidates. This is sufficient to state a

plausible claim of a First Amendment violation, and I do not believe Plaintiffs’ claim

should be dismissed at this early stage.

“[P]olitical belief and association constitute the core of those activities protected by

the First Amendment.” Elrod v. Burns, 427 U.S. 347, 356 (1976). And the First

Amendment “has its fullest and most urgent application to speech uttered during a

campaign for political office.” Citizens United v. Fed. Election Comm’n, 558 U.S. 310, 339

(2010) (internal quotation marks omitted). And of course, the First Amendment protects

“the right of individuals to associate for the advancement of political beliefs, and the right

50 of qualified voters, regardless of their political persuasion, to cast their votes effectively.”

Rhodes, 393 U.S. at 30.

Therefore, “[t]he First Amendment demands judicial scrutiny of state election

regulations because regulations that ‘govern[ ] the registration and qualifications of voters,

the selection and eligibility of candidates, or the voting process itself, inevitably affect[ ]—

at least to some degree—the individual’s right to vote and his right to associate with others

for political ends.’” Common Cause v. Rucho, 318 F. Supp. 3d 777, 926 (M.D.N.C. 2018)

(second and third alterations in original) (quoting Anderson, 460 U.S. at 788), vacated and

remanded with instructions, 139 S. Ct. 2484; see also Benisek v. Lamone, 348 F. Supp. 3d

493, 523 (D. Md. 2018) (majority opinion by Niemeyer, J.) (concluding the plaintiffs had

established associational harms with evidence of “a lack of enthusiasm, indifference to

voting, a sense of disenfranchisement, a sense of disconnection, and confusion”), vacated

and remanded with instructions sub nom. Rucho v. Common Cause, 139 S. Ct. 2484.

States may regulate elections, and important regulatory interests generally justify

“reasonable, nondiscriminatory restrictions.” Anderson, 460 U.S. at 788. But because

election regulations affect important First Amendment interests, courts apply a sliding

scale of scrutiny to state election regulations. See Burdick v. Takushi, 504 U.S. 428, 433–

34 (1992). Severe burdens are subject to strict scrutiny and must be narrowly tailored to

serve a compelling state interest; “reasonable, nondiscriminatory restrictions” are subject

to less searching review. Anderson, 460 U.S. at 788; see also Burdick, 504 U.S. at 433–34.

The Supreme Court has struck down even facially neutral electoral regulations that had the

effect of burdening particular political parties, candidates, or groups of voters. See,

51 e.g., Tashjian v. Republican Party of Conn., 479 U.S. 208, 225 (1986) (concluding that a

state’s enforcement of a statute requiring closed primaries, against the will of the

Republican Party, violated the First Amendment); Anderson, 460 U.S. at 806 (striking

down a state candidate filing deadline because it imposed an unjustified burden on third-

party candidates and their supporters, with the “interests of the voters who chose to

associate together” for political ends constituting the Court’s “primary concern”).

In their complaint, Plaintiffs allege South Carolina’s state-wide, winner-take-all

system burdens their First Amendment rights because their “voices are not heard” in the

presidential election. J.A. 28. Generally, “the function of the election process is to winnow

out and finally reject all but the chosen candidates.” Burdick, 504 U.S. at 438 (internal

quotation marks omitted). And “[a]ttributing to elections a more generalized expressive

function would undermine the ability of States to operate elections fairly and efficiently.”

Id. So the Court has “repeatedly upheld reasonable, politically neutral regulations that have

the effect of channeling expressive activity at the polls.” Id. But Plaintiffs do not complain

that their political expression is channeled; they complain that it is silenced because

Plaintiffs’ votes are discarded before the critical stage of the election.

Plaintiffs also allege their associational rights are burdened because they cannot

translate shared principles into “concerted action” and “political power in the community.”

J.A. 29. As a result of the system, “candidates from major political parties rarely hold

campaign events in South Carolina once they are selected by their parties in the primary.

This results in a reduced opportunity for all South Carolinians to interface with and petition

the candidates for major political parties in person[.]” J.A. 29.

52 This is a cognizable First Amendment burden. “[D]ifficulties fundraising,

registering voters, attracting volunteers, generating support from independents, and

recruiting candidates to run for office (not to mention eventually accomplishing their policy

objectives)” all implicate the First Amendment. Gill, 138 S. Ct. at 1938 (Kagan, J.,

concurring); see Anderson, 460 U.S. at 791 n.12 (concluding that similar harms imposed

by a state election law amounted to a “burden imposed on . . . associational rights”);

Borough of Duryea v. Guarnieri, 564 U.S. 379, 388 (2011) (describing the right to petition

as “allow[ing] citizens to express their ideas, hopes, and concerns to their government and

their elected representatives”).

The district court concluded that “[P]laintiffs merely allege that the inability of

Democratic voters in South Carolina to succeed in having any electoral votes distributed

to a Democratic presidential candidate for the past forty years has dampened the likelihood

that they will engage in political activity, as it appears useless.” Baten v. McMaster, 374 F.

Supp. 3d 563, 570 (D.S.C. 2019). The district court believed (and the majority appears to

agree) that Plaintiffs “conflate[ ] a diminishing motivation to participate with a severe

burden on the actual ability of people to participate in the voting process.” Id. (emphasis

omitted). And because “[t]he parties [did] not provide[ ] any cases in which a court has

questioned the [winner-take-all] system under a freedom of association theory,” the district

court dismissed this claim. Id. at 571. In my view, that was error.

First, of course, just because a court has not previously addressed the First

Amendment implications of a state-wide, winner-take-all system of allocating presidential

electors does not mean that such a system cannot create First Amendment burdens. But

53 second, and more importantly, the district court misunderstood Plaintiffs’ allegations.

Plaintiffs’ allegation that the system burdens their right to petition is that “candidates from

major political parties rarely hold campaign events in South Carolina once they are selected

by their parties in the primary.” J.A. 29. This is not an allegation that Democrats do not

come to South Carolina because Democrats are likely to lose. It is an allegation that all

major party candidates do not come to South Carolina because of the state’s winner-take-

all system.

And finally, these alleged burdens are not just a result of Plaintiffs’ “inability to

muster a majority of South Carolina’s votes.” Majority Op. at 24. Republican candidates

have earned all nine of South Carolina’s electoral votes with only a plurality of South

Carolinians’ votes. Democrats in South Carolina may turn out ever increasing numbers of

voters for presidential elections, but because of the system South Carolina has chosen, such

an increase is unlikely to make any difference in the selection of South Carolina’s nine

At a later point in this litigation, a court might measure Plaintiffs’ burdens and

consider South Carolina’s interest in its state-wide, winner-take-all system in light of those

burdens. Anderson, 460 U.S. at 788. And indeed, at that later point, a court may conclude

Plaintiffs have been unable to prove the burdens they allege. E.g., Gill, 138 S. Ct. at 1939

(Kagan, J., concurring) (concluding that during the course of the litigation, the “plaintiffs

did not sufficiently advance a First Amendment associational theory” to establish standing

based on a burden to their associational interests). But they should have an opportunity to

develop those claims. Indeed, Plaintiffs’ alleged harms have been recognized as First

54 Amendment burdens before. Yet today the Court affirms the district court’s conclusion that

Plaintiffs cannot even pursue their claims. I believe that to be a grave error.

Moreover, because Plaintiffs’ claims, if allowed to proceed, would eventually be

weighed against South Carolina’s interest in its state-wide, winner-take-all system, it is

worth considering for a moment whether such an interest even exists. South Carolina

argues that, even if Plaintiffs have alleged cognizable First Amendment burdens, its interest

in exerting the greatest possible influence in the Electoral College justifies those burdens.

South Carolina has offered little explanation for how this is a legitimate state interest.

Burdening some South Carolinians’ First Amendment rights so that other South

Carolinians—those who voted for the presidential candidate garnering a plurality of

votes—may speak with more force on a national stage is not, on its face, a legitimate state

interest. Accordingly, if Plaintiffs were allowed to pursue their claims, there would be little

to weigh their burden against.

Tellingly, South Carolina attaches much authority to the fact that Thomas Jefferson

advocated for Virginia to adopt a winner-take-all system for selecting its electors. South

Carolina argues Jefferson’s “advice sprang from a desire to protect his State against the use

of [the] general ticket by other States.” Response Br. at 46 (quoting Williams, 288 F. Supp.

at 626). Jefferson’s “advice” to Virginia also gave him a better chance to win the next

presidential election, by directing all of Virginia’s Electoral College votes to the state’s

winner—likely to be Jefferson himself. Jefferson even recognized that he had a personal

stake in the question, noting that “[p]erhaps it will be thought I ought in delicacy to be

55 silent on this subject.” Letter from Thomas Jefferson to James Monroe (Jan. 12, 1800),

available at https://www.loc.gov/item/mtjbib009254.

Thus, some people—people other than the state of South Carolina—do have an

interest in South Carolina’s state-wide, winner-take-all system. As illustrated by the

historical example that South Carolina offers—Jefferson’s preference for winner-take-all

systems to shore up his Electoral College support—candidates who believe they can win a

plurality of votes in South Carolina (and the voters and elected officials who support them)

have a strong interest in maintaining this system. But preservation of political power for

the people who currently hold power is not a legitimate state interest. And, of course,

Jefferson’s advocacy for a particular practice does not mean the practice does not offend

the Constitution. See, e.g., Extracts from Letter from Thomas Jefferson to Jean Nicolas

Démeunier (Apr. 29, 1795), available at http://tjrs.monticello.org/letter/2352#X3184736

(discussing Jefferson’s enslavement of “a dozen little boys from 10[ ] to 16[ ] years of age”

as nail-makers). Our nation’s shared ideas of democracy and equality have evolved from

Jefferson’s day.

IV.

Finally, I turn with special concern to Plaintiffs’ claim under the Voting Rights Act.

Section 2 of the Voting Rights Act prohibits a state from imposing any voting practice that

“results in a denial or abridgement of the right of any citizen of the United States to vote

on account of race or color . . . .” 52 U.S.C. § 10301(a). A § 2 violation does not require

discriminatory intent. The statute prohibits “voting practices that ‘operate, designedly or

otherwise,’ to deny ‘equal access to any phase of the electoral process for minority group

56 members.’” United States v. Charleston County, 365 F.3d 341, 345 (4th Cir. 2004) (quoting

S. Rep. No. 97-417, at 28, 30 (1982)).

As the majority recognizes, courts evaluate § 2 vote dilution claims through the

familiar framework of Thornburg v. Gingles, 478 U.S. 30 (1986). To make out a successful

claim, a plaintiff must establish three prerequisites: the minority group must be sufficiently

large and geographically compact to constitute a majority in a single member district; the

minority group must be politically cohesive; and the white majority must vote sufficiently

as a bloc so as usually to defeat the minority’s preferred candidate. Gingles, 478 U.S. at

50–51; see also Charleston Cty., 365 F. 3d at 345. After a plaintiff establishes the three

prerequisites, “the trier of fact must determine whether, based on the totality of the

circumstances, there has been a violation of Section 2.” Charleston Cty., 365 F.3d at 345. 9

9 The majority asserts that the Gingles prerequisites “do not map onto the type of challenge that the plaintiffs have mounted here.” Majority Op. at 27. I disagree and discuss each prerequisite in turn. However, even if Plaintiffs’ challenge were not a perfect fit with the Gingles prerequisites, that would not mean Plaintiffs cannot make out a § 2 claim. Other frameworks for understanding § 2 exist, most notably the vote-denial framework discussed in League of Women Voters of N.C. v. North Carolina, 769 F.3d 224, 239–40 (4th Cir. 2014). A § 2 vote-denial claim requires two elements: first, the challenged practice must impose a discriminatory burden on members of a protected class such that members of the protected class have less opportunity than other members of the electorate to participate in the political process; and second, the burden must in part be caused by or linked to social and historical conditions that have or currently produce discrimination against members of that protected class. Id. at 240. Moreover, the text of § 2 of the Voting Rights Act is broad and not limited to only those violations that perfectly fit the framework described in Gingles. See id. at 238 (“Section 2 ‘prohibits all forms of voting discrimination’ that lessen opportunity for minority voters.” (quoting Gingles, 478 U.S. at 45 n.10)). 57 A.

As a preliminary matter, the district court seemed to cast doubt on whether the

Voting Rights Act applies to the election of presidential electors: “Regardless of whether

plaintiffs can meet these three provisions [of Gingles], the fact remains that this claim

operates on the same premise as their [one person, one vote] claim—that courts should be

able to consider the constitutionality of a state’s [winner-take-all] electoral college system

using the same legal tools and concepts of constitutional fairness that the courts have relied

on in assessing state-level voting procedures.” Baten, 374 F. Supp. 3d at 571. Of course,

the Voting Rights Act claim does not challenge the constitutionality of South Carolina’s

state-wide, winner-take-all system. It brings a statutory claim under the Voting Rights Act.

But more importantly, this statement by the district court may be read to suggest the Act

does not apply to states’ systems of allocating presidential electors. The majority corrects

that error, if only implicitly.

And to its credit, South Carolina did not take the position that the Voting Rights Act

does not apply to presidential elections in its briefing. However, at oral argument, South

Carolina was asked if it took the position that the Voting Rights Act does not apply to

presidential elections. South Carolina responded that it “ha[d] not taken that position

affirmatively” but described the issue as “certainly an open question.” Oral Arg. at 22:16–

22:50.

There can be no serious debate over whether the Voting Rights Act applies to

presidential elections, and this is not an “open question.” For example, the original Voting

Rights Act of 1965 provided penalties for anyone who knowingly gave false information

58 in order to establish his or her eligibility to vote and specified that “this provision shall be

applicable only to general, special, or primary elections held solely or in part for the

purpose of selecting or electing any candidate for the office of President, Vice President,

presidential elector” or other specified federal office. Pub. L. No. 89-110, § 11(a), 79 Stat.

437, 443 (emphasis added). And the Voting Rights Act Amendments of 1970 included

provisions that specifically addressed residency requirements in elections for presidential

electors. Pub. L. No. 91-285, § 202(d), 84 Stat. 314, 316–17. Although several states

challenged those amendments, the Supreme Court upheld the provisions, recognizing

Congress’s “prerogative . . . to oversee the conduct of presidential and vice-presidential

elections.” Oregon v. Mitchell, 400 U.S. 112, 124 (1970).

And nothing about § 2 of the Voting Rights Act indicates that it was meant to have

a narrower reach than the rest of the Act. Section 2 prohibits any “voting qualification or

prerequisite to voting or standard, practice, or procedure” to be “imposed or applied by any

State or political subdivision in a matter which results in a denial or abridgement of the

right” to vote on account of race. 52 U.S.C. § 10301(a). In striking down or enjoining

various election procedures under § 2, courts of appeals (including this one) have not

differentiated presidential elections or prohibited the challenged practices in all elections

other than presidential elections. See, e.g., Democratic Nat’l Comm. v. Hobbs, 948 F.3d

989, 1016 (9th Cir. 2020); Veasey v. Abbott, 830 F.3d 216, 268–72 (5th Cir. 2016); League

of Women Voters of N.C. v. North Carolina, 769 F.3d 224, 248–49 (4th Cir. 2014); see also

Hous. Lawyers’ Ass’n v. Attorney Gen. of Tex., 501 U.S. 419, 425 (1991) (“The term

‘representatives’ [in § 2] is not a word of limitation.”). And the only other district court

59 that considered a Voting Rights Act claim in parallel litigation unambiguously applied the

Voting Rights Act to presidential elections. See League of United Latin Am. Citizens v.

Abbott, 369 F. Supp. 3d 768, 784 (W.D. Tex. 2019) (“As a threshold matter, the Court

firmly agrees with Plaintiffs that Section 2 [of] the VRA applies to Presidential

Elections.”), aff’d, 951 F.3d 311 (5th Cir. 2020).

South Carolina’s position that it is “certainly an open question” whether the Voting

Rights Act applies to presidential elections is concerning. South Carolina must comply

with the Voting Rights Act in presidential elections. And if a South Carolina voter brings

a claim alleging South Carolina has violated the Voting Rights Act in how it selects

presidential electors, the Court has an obligation to hear that claim.

Turning to Plaintiffs’ specific allegations and the question of whether Plaintiffs’

Voting Rights Act claim can survive a motion to dismiss, I believe the district court erred.

The district court’s basis for dismissing this claim was unclear, but it seemed to find that

Plaintiffs failed to establish the third Gingles prerequisite: that the white majority votes

sufficiently as a bloc to usually defeat the minority-preferred candidate. Baten, 374 F.

Supp. 3d at 571. The district court did not explain this conclusion, and under controlling

Fourth Circuit authority, Plaintiffs sufficiently established all three Gingles prerequisites.

Plaintiffs have therefore stated a plausible claim of a violation of § 2 of the Voting Rights

Act and this claim should not have been dismissed.

The first Gingles prerequisite requires that Plaintiffs establish that South Carolina’s

African American population is “sufficiently large and geographically compact to

60 constitute a majority in a single-member district.” Gingles, 478 U.S. at 50. In United States

v. Charleston County, this Court upheld the district court’s conclusion that the plaintiffs

had satisfied this prerequisite where African Americans were 34.3% of the population of a

900-square-mile county and where non-white voters represented 30.9% of registered voters

in the county. 365 F.3d at 343–44. Based on data from the South Carolina Election

Commission, Plaintiffs allege that African American voters made up 27.6% of the

registered voters in South Carolina in 2016. African Americans are a majority of the

population in the state’s Sixth Congressional District, as well as in eight South Carolina

counties. And in ten South Carolina counties, African Americans are a majority of

registered voters. There are several ways South Carolina’s nine presidential electors could

be allocated such that African Americans could be the majority in a subdivision of the state.

Plaintiffs’ allegations are sufficient to establish the first Gingles prerequisite. 10

The second prerequisite requires that Plaintiffs establish that African American

voters are “politically cohesive.” Gingles, 478 U.S. at 51. This Court has previously noted

that African American voters in one of South Carolina’s most populous counties are

politically cohesive. Charleston Cty., 365 F.3d at 347. And in their complaint, Plaintiffs

allege that in 2008 and 2016, African American South Carolinians voted for the

Democratic presidential candidate at rates of 96% and 94%, respectively. This is sufficient

10 The majority concludes “there is no alternative of a ‘single-member district’ because the selection of electors in South Carolina does not involve districts at all.” Majority Op. at 27. But at-large systems that do not use districts are commonly challenged under the Voting Rights Act. And indeed, the lack of any subdivision of South Carolina’s nine electoral votes is the very practice Plaintiffs challenge. 61 to satisfy the second Gingles prerequisite. Cf. League of United Latin Am. Citizens v. Perry,

548 U.S. 399, 427 (2006) (second prerequisite established where 92% of Latinx voters

voted against a candidate).

Finally, the third Gingles prerequisite requires that Plaintiffs establish that white

voters in South Carolina vote sufficiently as a bloc to usually defeat the minority-preferred

candidate. Gingles, 478 U.S. at 51. 11 Although the district court concluded that Plaintiffs

failed to establish this factor, it offered no analysis as to why the complaint’s allegations

failed. Baten, 374 F. Supp. 3d at 571. This Court has previously noted, in considering this

prerequisite, that “[t]he terms used by the Gingles Court are ‘usually,’ ‘normally,’ and

‘generally.’” Lewis v. Alamance County, 99 F.3d 600, 606 n.4 (4th Cir. 1996). And

although we did not specifically define those terms, we observed, “suffice it to say that

they mean something more than just 51%.” Id.

Plaintiffs allege that, according to census estimates, in 2016 white people accounted

for 69.7% of the voting age population in South Carolina. And in exit polls from the 2008

and 2016 presidential elections, “white voters in South Carolina supported the Republican

candidate at rates of 73% and 70%, respectively.” J.A. 38. In the last ten presidential

11 The majority finds that Plaintiffs’ “elide the distinction between the candidates the minorities prefer . . . and the ‘candidates’ that, in their view, they have sufficient political power to elect.” Majority Op. at 27–28. But when South Carolina voters go the polls to vote for president, they are, in fact, selecting South Carolina’s nine presidential electors. And so, as a general matter, when African American South Carolina voters prefer the Democratic nominees for president and vice president, they prefer the electors who will cast their votes in the Electoral College for those nominees. The “candidates” they support are, therefore, the ones they allege they have political power to elect. 62 elections, not one of South Carolina’s presidential electors has been aligned with the

minority-preferred candidate.

South Carolina seems to argue that Plaintiffs must allege that the minority-preferred

candidate is defeated because of race and not partisan preference, relying on League of

United Latin American Citizens, Council No. 4434 v. Clements, 999 F.2d 831, 853–54 (5th

Cir. 1993) (en banc). But in the Fourth Circuit, “[l]egally significant white bloc voting . . .

refers to the frequency with which, and not the reason why, whites vote cohesively for

candidates who are not backed by minority voters.” Charleston Cty., 365 F.3d at 348–49

(quotation marks omitted). Because Plaintiffs sufficiently allege that white bloc voting

usually defeats the minority-preferred candidate in statewide elections in South Carolina,

Plaintiffs have established the third Gingles prerequisite.

Although this Court has not explicitly held that allegations establishing the Gingles

prerequisites are sufficient to survive a motion to dismiss, it is difficult to see how a court

could reach a different conclusion. Once the three Gingles prerequisites are established,

courts evaluate the totality of the circumstances, with special attention to the non-

exhaustive list of factors identified in Gingles, including: the extent to which members of

a protected class are elected; any history of official discrimination in voting practices;

discriminatory housing, education, and employment practices; and the existence of racial

appeals in campaigning. Gingles, 478 U.S. at 38–40; see id. at 36–37 (citing S. Rep. No.

97-417, at 28–29 (1982)).

This is, of course, a fact-intensive inquiry. And several of our sister circuits have

acknowledged that where a plaintiff establishes the Gingles prerequisites, that plaintiff is

63 likely to succeed under the totality of the circumstances. See Mo. State Conference of the

NAACP v. Ferguson-Florissant Sch. Dist., 894 F.3d 924, 930 (8th Cir. 2018); Sanchez v.

Colorado, 97 F.3d 1303, 1322 (10th Cir. 1996); Clark v. Calhoun County, 88 F.3d 1393,

1396 (5th Cir. 1996); Uno v. City of Holyoke, 72 F.3d 973, 983 (1st Cir. 1995); Nipper v.

Smith, 39 F.3d 1494, 1524 (11th Cir. 1994); Jenkins v. Red Clay Consol. Sch. Dist. Bd. of

Educ., 4 F.3d 1103, 1116 n.6 (3d Cir. 1993) (“[I]t would be a highly unusual case in which

a plaintiff successfully proved the existence of the three Gingles factors and still failed to

establish a violation.”).

Here, Plaintiffs sufficiently allege the three Gingles prerequisites. And even if we

were to consider allegations about the totality of the circumstances at this early stage,

Plaintiffs sufficiently make the necessary, plausible allegations. Plaintiffs allege that South

Carolina has a history of judicially recognized discriminatory voting practices; there are

significant racial disparities in education, employment, health, housing, income,

transportation, and incarceration in the state; the racial disparities in these categories

indicate a lack of responsiveness to the needs of minority African Americans; there

continue to be racially charged campaign and election practices; and voters have elected

only one African American to a state-wide office. Given these allegations, it is plausible

that South Carolina’s state-wide, winner-take-all system violates § 2 of the Voting Rights

Act based on the totality of the circumstances.

On appeal, South Carolina argues that Plaintiffs must establish an “undiluted”

baseline to state a claim, relying on Reno v. Bossier Parish School Board, 520 U.S. 471

(1997). Response Br. at 48, 51. But Reno is inapposite. That case involved preclearance

64 under the Voting Rights Act; it is simply not relevant to Plaintiffs’ burdens at the pleading

stage, and cannot be read to impose a requirement on Plaintiffs to offer an undiluted

baseline this early in the litigation. Reno, 520 U.S. at 477.

Plaintiffs’ factual allegations are sufficient to establish the Gingles prerequisites.

And even assuming their allegations must show a plausible violation under the totality of

the circumstances at this early stage, Plaintiffs have met that burden. The district court

erred in dismissing this claim.

In this case, Plaintiffs challenge a longstanding and widespread method of selecting

presidential electors. But the method’s ubiquity does not mean it is the best method, or the

most democratic method, or even a constitutional method. I would allow Plaintiffs to

pursue their claims so that the courts can consider their arguments on a developed record

and in light of modern voting rights jurisprudence. That is the legally correct and fair way

to address this matter.