Lyman v. Baker

954 F.3d 351

• Court: Court of Appeals for the First Circuit
• Decided: March 31, 2020
• Docket: 18-2235P
• Status: Published

Opinion

United States Court of Appeals For the First Circuit

No. 18-2235

RICHARD J. LYMAN, WILLIAM F. WELD, and ROBERT D. CAPODILUPO,

Plaintiffs, Appellants,

v.

CHARLES D. BAKER, in his official capacity as Governor of the Commonwealth of Massachusetts; and WILLIAM FRANCIS GALVIN, in his official capacity as Secretary of the Commonwealth of Massachusetts,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Patti B. Saris, U.S. District Judge]

Before

Torruella, Lipez, and Kayatta, Circuit Judges.

David Boies, with whom James P. Denvir III, Amy J. Mauser, Karen L. Dunn, Lisa Barclay, Amy L. Neuhardt, Hamish P.M. Hume, Melissa Shube, Trevor P. Stutz, Nafees Syed, Boies Schiller Flexner LLP, Jennifer D. Hackett, James R. Martin, Allison M. Vissichelli, Zelle LLP, Mark Guerrero, Mary Whittle, Guerrero & Whittle PLLC, Randall L. Allen, Alston & Bird LLP, David H. Fry, J. Max Rosen, Michael B. Desanctis, Munger, Tolles & Olson LLP, Scott A. Martin, Irving Scher, Jeanette Bayoumi, Michael D. Hausfeld, Swathi Bojedla, Hausfeld LLP, María Amelia Calaf, Jack A. Simms, Jr., Ryan A. Botkin, Katherine P. Chiarello, Karen S. Vladeck, W. Reid Wittliff, Wittliff Cutter Austin, PLLC, and Samuel Issacharoff, were on brief, for appellants. Amy Spector, Assistant Attorney General, with whom Maura Healey, Attorney General, and Robert E. Toone, Assistant Attorney General, were on brief, for appellees.

March 31, 2020

-2- TORRUELLA, Circuit Judge. The appellants in this case

are three Massachusetts voters who challenge the constitutionality

of the winner-take-all method for selecting presidential electors

that Massachusetts has adopted pursuant to its authority under

Article II of the United States Constitution. They allege that

the winner-take-all elector-selection method violates their right

to an equally weighted vote under the Equal Protection Clause of

the Fourteenth Amendment as well as their associational rights

under the First and Fourteenth Amendments. The district court

dismissed their complaint for lack of standing and failure to state

a claim. Even though we determine that the appellants do have

standing to bring their claims, we agree that they have failed to

state a claim upon which relief can be granted under either of

their constitutional theories. Therefore, we affirm.

I.

A. Factual Background

Because this is an appeal from the granting of a motion

to dismiss, "we rehearse the facts as they appear in the

plaintiffs' complaint[] (including documents incorporated by

reference therein)." Hochendoner v. Genzyme Corp., 823 F.3d 724,

728 (1st Cir. 2016).

The United States elects its president and vice

president through the Electoral College, which is a body of

-3- electors appointed by each state in proportion to its

representation in the Senate and the House of Representatives.

U.S. Const. art. II, § 1, cl. 2; id. amend. XII. The candidate

that receives a majority of those electors' votes wins the

presidency. See id. amend. XII.1

Pursuant to its constitutional authority, the

Commonwealth of Massachusetts ("Massachusetts") has enacted a

statutory scheme that provides for the appointment of electors for

president and vice president on a winner-take-all basis (the "WTA

system"). See id. art. II, § 1, cl. 2; see generally Mass. Gen.

Laws ch. 53-54. The core statutes providing the structure of the

WTA system are established in Massachusetts General Laws chapter

53, section 8, as well as chapter 54, sections 43, 118, and 148.

Chapter 53, section 8 states that "[t]he state committees of the

respective political parties . . . shall nominate the presidential

electors" for their parties, which "shall include a pledge by the

presidential elector to vote for the candidate named in the

filing." Chapter 54, section 43 provides:

The names of the candidates for presidential electors shall not be printed on the ballot, but in lieu thereof the surnames of the candidates of each party for president and vice president shall be printed thereon in one line under the designation "Electors

1 The Twelfth Amendment also provides a mechanism for resolving a situation in which no candidate receives a majority of the electoral votes.

-4- of president and vice president" and arranged in the alphabetical order of the surnames of the candidates for president, with the political designation of the party placed at the right of and in the same line with the surnames.

Section 118 of the same chapter proclaims:

The copies of the records of votes for presidential electors shall . . . be examined by the governor and council, who shall thereafter declare . . . the names of the persons who have received at least one-fifth of the entire number of votes cast for electors, and the number of votes received by each such person. The several persons, to the number of electors required to be chosen, who have received the highest number of votes so ascertained . . . shall . . . be deemed to be elected . . . .

Mass. Gen. Laws ch. 54, § 118 (emphasis added). Finally,

section 148 provides:

The persons chosen as presidential electors shall meet at the state house on the date fixed by federal law next following their election . . . and organize by the choice of a presiding officer and secretary. The state secretary shall call the meeting to order, call the roll of electors, and preside until a presiding officer shall be chosen. The secretary of the electors shall keep a journal of their proceedings and deposit the same in the office of the state secretary, where it shall be recorded and filed.

Id. § 148. As forty-seven other states plus the District of

Columbia employ a version of it, the WTA system for appointing

electors is the national norm.

What makes the combined effect of this statutory scheme

winner-take-all is that the political party of the candidate who

wins the popular vote in Massachusetts (by a majority or even a

-5- plurality) claims all eleven of Massachusetts's electors.

Specifically, since Massachusetts mandates that its eleven

electors vote for their party's candidate,2 see Mass. Gen. Laws

ch. 53, § 8, winning the popular vote (regardless of the margin of

victory) guarantees that all of Massachusetts's electoral votes go

to that party's candidate, see Mass. Gen. Laws ch. 54, § 118.

By way of example, the Democratic candidate in the 2016

presidential election, Hillary R. Clinton, received 60% of the

votes (1,995,196 votes) in Massachusetts's statewide election and

therefore took all eleven electors. Meanwhile, now-President

Donald J. Trump received 32.8% of the votes (1,090,893 votes) but

took no electors. The 7.2% of the votes cast for other candidates,

such as the Libertarian candidate, Gary Johnson, similarly yielded

no electoral votes.

Richard J. Lyman, William F. Weld, and Robert D.

Capodilupo (together "Appellants") reside and vote in

Massachusetts. Weld, a former Republican Governor of

Massachusetts, is currently a registered Libertarian. Lyman, a

2 The intention behind this provision is to neutralize the infamous "faithless elector" problem, whereby electors vote independently of their sponsoring party's preference. See Baca v. Colo. Dep't of State, 935 F.3d 887 (10th Cir. 2019), cert. granted, No. 19-518, 2020 WL 254162 (U.S. Jan. 17, 2020) (reviewing the constitutionality of Colorado's law requiring its presidential electors to adhere to the mandate expressed in the state-wide popular vote when casting their ballots in the Electoral College).

-6- former senior official under two Republican Governors of

Massachusetts (including Weld), and Capodilupo are both registered

Republicans. Appellants have consistently voted for non-Democratic

presidential candidates (i.e., Republican, Libertarian, or

otherwise), and they intend to continue casting their ballots along

such lines in future elections. Their grievance stems from the

observation that the Democratic candidate has won the popular vote

in Massachusetts (and thus all its electors) in each of the last

eight presidential elections. Notably, "the same phenomenon

occurs in reverse in heavily Republican states . . . ."

B. Procedural Background

On February 21, 2018, Appellants sued Charles D. Baker,

the current Republican Governor of Massachusetts, and William

Francis Galvin, the current Secretary of Massachusetts (together

"the Commonwealth"), in their official capacities to challenge the

constitutionality of the WTA system as applied in Massachusetts.3

Appellants are careful to stipulate that their quarrel is not with

3 On the same day, Appellants' counsel filed parallel lawsuits on behalf of voters in California, South Carolina, and Texas that challenge the constitutionality of the WTA systems as applied in those states. See League of United Latin Am. Citizens v. Abbott, 951 F.3d 311 (5th Cir. 2020); Baten v. McMaster, 374 F. Supp. 3d 563, 565-66 (D.S.C. 2019), appeal pending, No. 19-1297 (4th Cir.); Rodríguez v. Brown, No. 2:18-cv-001422, 2018 WL 6136140, at *2 (C.D. Cal. Sept. 21, 2018), appeal pending, No. 18-56281 (9th Cir.).

-7- the Electoral College itself, which they acknowledge is mandated

by the Constitution. In their complaint, Appellants allege two

causes of action. First, they asseverate that the WTA system

"violates the 'one person, one vote' principle" enshrined in the

Equal Protection Clause of the Fourteenth Amendment (Count 1).

Second, they assert that the WTA system "poses a severe burden" on

their First and Fourteenth Amendment rights to "associate and to

effectively express their political preference through voting that

is not outweighed by any legitimate state interest" (Count II).

Appellants premise their equal protection claim on the

notion that the "consequence" of the WTA system is that "votes for

a losing presidential candidate are counted . . . only to be

discarded when another candidate wins more votes . . . ." Thus,

they contend that "if an individual does not vote for the winning

candidate in Massachusetts, that person's vote translates into no

representation in the state's multi-member Electoral College

delegation." Appellants allege that this rises to the level of

arbitrary and disparate treatment that undermines the precept of

"one person, one vote."

The essence of Appellants' associational rights claim is

that by discarding their votes for President and thus "limiting

[their] ability to express their political preferences," the WTA

system "deprives" them of their "associational rights" simply

-8- because of their "political association and expression of

political views at the ballot box." By ensuring that Appellants'

(and similarly situated voters') "voices are not heard," the WTA

system allegedly incentivizes presidential candidates to

disproportionately focus their campaigning activities in key

"'battleground' states" (e.g., Florida, North Carolina, Ohio, and

Pennsylvania), or swing states, with greater potential for

positive electoral returns. Relatedly, Appellants allege that

this feature contributes to the increasing vulnerability of the

American election system to outside influences, such as hacking

orchestrated by foreign governments.

In their prayer for relief, Appellants seek a

declaration of the WTA system's unconstitutionality as well as a

corresponding injunction that would bar Massachusetts from

implementing the WTA system for selecting electors, or any other

constitutionally defective system, including the "selection by

Congressional District vote," in which states conduct elections

for individual electors in each of their congressional districts.

Additionally, they ask the district court to "set reasonable

deadlines for [Massachusetts] authorities to propose and then

implement" a valid method of selecting electors. If Massachusetts

authorities fail to meet the deadlines, Appellants ask the district

court to "order a proportional method of distributing Electors,

-9- selecting a proportional number of Electors to each party, based

on the number of votes each party's candidate receives statewide."

On May 21, 2018, the Commonwealth moved to dismiss the

complaint under Fed. R. Civ. P. 12(b)(1) and 12(b)(6) for lack of

standing and for failure to state a claim upon which relief may be

granted, respectively. Following a hearing, on December 7, 2018,

the district court granted the Commonwealth's motion to dismiss

the complaint in its entirety. Lyman v. Baker, 352 F. Supp. 3d

81, 92 (D. Mass. 2018). On December 12, 2018, Appellants timely

appealed.

C. The District Court's Opinion

The district court allowed the Commonwealth's motion to

dismiss Appellants' complaint because it found the WTA system to

be a valid exercise of Massachusetts's authority free of

constitutional defect. Lyman, 352 F. Supp. 3d at 84. The court

predicated its dismissal on the interrelatedness of the Rule

12(b)(1) and Rule 12(b)(6) inquiries in the context of the alleged

constitutional violations. Because of its view (and the parties'

agreement) that the "injury-in-fact analysis overlaps with the

merits of plaintiffs' constitutional claims," the district court

proceeded directly to analyze the merits of the claims under the

"well-established standard for Fed. R. Civ. P. 12(b)(6)." Id. at

85.

-10- As an initial matter, the court held that the Supreme

Court's summary affirmance in Williams v. Va. State Bd. of

Elections, 288 F. Supp. 622 (E.D. Va. 1968), aff'd, 393 U.S. 320

(1969) (per curiam), which upheld Virginia's winner-take-all

voting system against an equal protection challenge, is binding

precedent that requires the dismissal of Appellants' claims

because it satisfied both prongs of the standard set forth in

Mandel v. Bradley, 432 U.S. 173, 176 (1977) (stating that summary

affirmances "prevent lower courts from coming to opposite

conclusions on the precise issues presented and necessarily

decided by those actions"). Lyman, 352 F. Supp. 3d at 85-86.

Appellants argued that Williams is not controlling because:

(a) there are factual distinctions between the voting laws of

Virginia and Massachusetts,4 and (b) "important doctrinal shifts"

in voter dilution law have since "diminish[ed] its precedential

value." Id. at 86-88. The court rejected these contentions.

Next, the district court held that even if Williams did

not control, Appellants' claims "would still fail for reasons that

4 Appellants specifically pointed to the fact that unlike Virginia in Williams, Massachusetts does not list the names of the individual electors on its ballots, see Mass. Gen. Laws ch. 54, § 43, and it binds electors to vote for the chosen candidate by statute, see Mass. Gen. Laws ch. 53, § 8 (requiring presidential electors to "pledge . . . to vote for the candidate named in the filing").

-11- substantially mirror those given by the three-judge panel in that

case," which is to say that the WTA system does not violate the

"one person, one vote" principle because it does not treat

Appellants' votes disparately or arbitrarily. Id. at 88-89.

No matter the valid policy reasons for and against the WTA system,

the district court concluded that the Constitution's concession of

"plenary power to the state legislatures in the matter of the

appointment of electors," id. at 88 (alteration in original)

(quoting McPherson v. Blacker, 146 U.S. 1, 35 (1892), as well as

its endorsement of the numerical unfairness implicit in the

Electoral College, posed too great of an obstacle to Appellants'

challenge to a voting scheme that does not "treat voters

differently" or "inherently favor or disfavor a particular group

of voters," id. at 89 (citing McPherson, 146 U.S. at 40). Tying

the analysis back to standing, the court concluded that Appellants

had therefore failed to allege a legally cognizable harm under the

Equal Protection Clause. Id. at 91.

Turning to the Appellants' First Amendment claim, the

district court rejected the argument that the WTA system

"discard[s]" or "dilut[es]" the votes of minority party members by

reason of those members' political views. Id. at 91 (citing Vieth

v. Jubelirer, 541 U.S. 267, 314 (2004) (Kennedy, J., concurring)).

Determining that "whatever disadvantage the losing party and its

-12- members suffer is a function solely of their lack of electoral

success," the court concluded that Appellants failed to "allege an

associational burden for purposes of a First Amendment claim." Id.

Again, the court reiterated that in the absence of a constitutional

violation, there could be no legally cognizable harm for purposes

of standing. Id.

Because Appellants had "failed to allege legally

cognizable injuries under the Equal Protection Clause or the First

Amendment," the district court concluded that they had "also failed

to allege an injury to a legally protected interest for the

purposes of standing." Id. at 91. After finding that Appellants

had not suffered an injury-in-fact, the district court briefly

turned its attention to the question of redressability. Even if

Appellants had suffered a cognizable injury, the court reasoned

that their claims were ultimately "unredressable" because federal

courts lack the constitutional power "to affirmatively dictate

what type of elector-allocation system [a state] must use." Id. at

92. In the court's view, ordering a state to implement a

particular elector allocation system was inconsistent with the

Constitution's delegation of such authority to the states and the

Supreme Court's interpretation of that power as plenary. Id.

(citing Bush v. Gore, 531 U.S. 98, 104 (2000)). Accordingly, the

district court stated that the relief Appellants sought could only

-13- come from a change to Massachusetts state law or an amendment to

the U.S. Constitution. Id. (citing Williams, 288 F. Supp. at 629,

for the proposition that "any other proposed limitation on the

selection by the State of its presidential electors would require

Constitutional amendment").

With this background in place, we begin our discussion

of the issues.

II.

We review de novo the granting of a motion to dismiss

for both lack of standing under Rule 12(b)(1) and failure to state

a claim under Rule 12(b)(6). See Blum v. Holder, 744 F.3d 790,

795 (1st Cir. 2014); Schatz v. Republican State Leadership Comm.,

669 F.3d 50, 55 (1st Cir. 2012). Although appellate review of a

dismissal under Rules 12(b)(1) and 12(b)(6) are "conceptually

distinct," we have stated that "the same basic principles apply in

both situations." Hochendoner, 823 F.3d at 730-31 (noting the

"parallelism" between the approach we take as to the standard of

review, burden of proof at the pleading stage, and posture towards

the facts alleged in the complaint). Thus, we need only articulate

these principles once, and we do so under the well-established

Rule 12(b)(6) standard.

For the purposes of our review, we "isolate and ignore

statements in the complaint that simply offer legal labels and

-14- conclusions or merely rehash cause-of-action elements." Schatz,

669 F.3d at 55 (citing Ocasio-Hernández v. Fortuño-Burset, 640

F.3d 1, 7, 12 (1st Cir. 2011) (discussing, among other cases,

Ashcroft v. Iqbal, 556 U.S. 662 (2009), and Bell Atl. Corp. v.

Twombly, 550 U.S. 544 (2007))); see also Hochendoner, 823 F.3d at

731. Second, we "take the complaint's well-pled (i.e.,

non-conclusory, non-speculative) facts as true, drawing all

reasonable inferences in the pleader's favor, and see if they

plausibly narrate a claim for relief." Schatz, 669 F.3d at 55

(citing Ocasio-Hernández, 640 F.3d at 12); see also Blum, 744 F.3d

at 795. "Plausible, of course, means something more than merely

possible, and gauging a pleaded situation's plausibility is a

'context-specific' job that compels us 'to draw on' our 'judicial

experience and common sense.'" Schatz, 669 F.3d at 55 (quoting

Iqbal, 556 U.S. at 679); see also Hochendoner, 823 F.3d at 730-31.

Finally, in the course of our review, "we can consider (a)

'implications from documents' attached to or fairly 'incorporated

into the complaint,' (b) 'facts' susceptible to 'judicial notice,'

and (c) 'concessions' in [the] plaintiff's 'response to the motion

to dismiss.'" Schatz, 669 F.3d at 55-56 (footnote omitted)

(quoting Arturet-Vélez v. R.J. Reynolds Tobacco Co., 429 F.3d 10,

13 n.2 (1st Cir. 2005)).

After careful consideration, we find that Appellants

-15- have, in fact, established standing to bring their equal protection

and associational rights claims sufficient to survive a

Rule 12(b)(1) motion to dismiss. However, we agree with the

district court that Appellants' claims cannot survive dismissal

under Rule 12(b)(6). Accordingly, we affirm the dismissal of

Appellants' complaint.

A. Standing

The parties first dispute whether the district court

properly dismissed Appellants' claims for lack of standing under

Rule 12(b)(1), centering their arguments on the injury-in-fact and

redressability prongs of the well-established inquiry. "Standing

doctrine assures respect for the Constitution's limitation of

'[t]he judicial Power' to 'Cases' and 'Controversies.'"

Hochendoner, 823 F.3d at 731 (alteration in original) (quoting

U.S. Const. art. III, § 2, cl. 1). The core focus of the inquiry

is "whether the party invoking jurisdiction had the requisite stake

in the outcome when the suit was filed." Mass. v. U.S. Dep't of

Health & Human Servs., 923 F.3d 209, 221 (1st Cir. 2019) (quoting

Davis v. Fed. Election Comm'n, 554 U.S. 724, 734 (2008)). "The

heartland of constitutional standing is composed of the familiar

amalgam of injury in fact, causation, and redressability."

Hochendoner, 823 F.3d at 731 (citing Lujan v. Defs. of Wildlife,

504 U.S. 555, 560-61 (1992)).

-16- An injury-in-fact is the invasion of a legally protected

interest that is both "concrete and particularized" and "actual or

imminent," as opposed to "conjectural or hypothetical." Lujan,

504 U.S. at 560 (internal quotation marks omitted). Concreteness

and particularity are two separate requirements. See Spokeo, Inc.

v. Robins, 136 S. Ct. 1540, 1545 (2016). To be concrete, an injury

must "actually exist"; it cannot be "abstract." Id. at 1548. For

an injury to be "particularized," it must go beyond a "generalized

grievance[]," DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 344,

348 (2006) (citation omitted), to manifestly "affect the plaintiff

in a personal and individual way," Lujan, 504 U.S. at 560 n.1.

Injuries that are too "widely shared" or are "comparable to the

common concern for obedience to law" may fall into the category of

generalized grievances about the conduct of government. Becker

v. Fed. Election Comm'n, 230 F.3d 381, 390 (1st Cir. 2000); see

Lance v. Coffman, 549 U.S. 437, 442 (2007).

Causation is established by demonstrating a causal

connection "between the injury and the conduct complained of,"

where the injury is "fairly . . . trace[able] to the challenged

action of the defendant and not . . . th[e] result [of] the

independent action of some third party not before the court."

Lujan, 504 U.S. at 560-61 (alterations in original) (quoting Simon

v. E. Ky. Welfare Rights Org., 426 U.S. 26, 41-42 (1976)).

-17- Finally, "it must be 'likely,' as opposed to merely 'speculative,'

that the injury will be 'redressed by a favorable decision.'" Id.

at 561 (quoting Simon, 426 U.S. at 38, 43).

Appellants contest the district court's finding that

they lack standing because they maintain that the WTA system

inflicts sufficiently concrete and particularized injuries by

unequally diluting the strength of their votes for non-Democratic

presidential candidates and depriving them of their right of

political association. They also dispute the district court's

findings about the "unredressability" of their claims because, in

their view, the court plainly has the authority to declare the WTA

system in Massachusetts unconstitutional and to enjoin its use

without requiring the adoption of a proportional allocation

system, and because, in the alternative, the court may nevertheless

opt to grant declaratory relief alone.

In full disagreement, the Commonwealth maintains that

Appellants cannot plausibly have suffered an injury to their

legally protected voting or associational interests on account of

the challenged WTA system because Massachusetts's power to

determine its method of appointing presidential electors is

plenary and the WTA system is devoid of constitutional infirmity.

Moreover, in the Commonwealth's view, Appellants simply have not

suffered a concrete and particularized injury because the winner-

-18- take-all method applies to every voter who casts a ballot in

presidential elections administered in Massachusetts and because

Appellants cannot show that they have been prevented from voting

for the presidential candidates of their choice. Finally,

inter alia, the Commonwealth contends that Appellants' claims are

not redressable because even a favorable result would not impact

the selection method in the forty-seven other states (plus the

District of Columbia) that use a WTA method.

We hold that Appellants have plausibly alleged an

invasion of their constitutionally protected voting rights

sufficient to survive a Rule 12(b)(1) motion to dismiss. While

folding the injury-in-fact inquiry into the 12(b)(6) analysis has

intuitive appeal where the alleged injury is a constitutional

violation, it cannot be that a party only establishes Article III

standing on a "one person, one vote" or associational rights claim

by virtue of having successfully stated a claim for relief.

"'[V]oters who allege facts showing disadvantage to themselves as

individuals have standing to sue' to remedy that disadvantage.

Gill v. Whitford, 138 S. Ct. 1916, 1929 (2018) (quoting Baker v.

Carr, 369 U.S. 186, 206 (1962)). In fact, in Baker, considering

Tennessee residents' claim that their state's redistricting plan

violated the Fourteenth Amendment, the Supreme Court determined

that "[i]t would not be necessary to decide whether appellants'

-19- allegations of impairment of their votes by the 1901 appointment,

will, ultimately, entitle them to any relief, in order to hold

that they have standing to seek it." 369 U.S. at 207-08. The

appellants in Baker had standing because they were "asserting a

plain, direct and adequate interest in maintaining the

effectiveness of their votes," and not merely a generalized

grievance. Id. at 208 (internal quotation marks omitted). By the

same token, Appellants here have at least plausibly alleged a

sufficiently concrete and particularized injury-in-fact to survive

a Rule 12(b)(1) motion to dismiss. As alleged in their complaint,

Appellants reside and vote in Massachusetts and their presidential

candidates of choice (at least in the past eight elections) have

not received a single electoral vote from Massachusetts because of

the manner in which the WTA system allegedly dilutes the strength

of their votes for non-Democratic candidates and deprives them of

their right of political association. The voter, after all, is

presumptively the best person to bring a challenge to an alleged

infringement of her constitutionally protected voting rights. See

Gray v. Sanders, 372 U.S. 368, 375 (1963) (stating that "any person

whose right to vote is impaired has standing to sue" (citation

omitted)). We are also satisfied that Appellants have satisfied

their burden of showing that the alleged injuries can be fairly

traced to Massachusetts's use of the WTA system.

-20- Finally, the alleged injury is indeed redressable.

Although we surely cannot order Massachusetts to adopt any one

particular elector-selection method over another, it is well

within the scope of our authority to rule on whether, in enacting

the WTA system, Massachusetts has exercised its plenary power "in

a way that violates other specific provisions of the Constitution."

Williams v. Rhodes, 393 U.S. 23, 29 (1968); see also McPherson,

146 U.S. at 24 (holding that challenge to state's electoral

allocation law did not present a political question). To that

end, if a federal court declared Massachusetts's WTA system to be

unconstitutional, it could enjoin its use without requiring

Massachusetts to adopt Appellants' preferred proportional

allocation system. See Larson v. Valente, 456 U.S. 228, 243 n.15

(1982) ("[A] plaintiff satisfies the redressability requirement

when he shows that a favorable decision will relieve a discrete

injury to himself. He need not show that a favorable decision

will relieve his every injury." (emphasis in original)).

Importantly, a finding of standing here is consistent

with the three-judge panel's decision in Williams, which resolved

that the Virginia plaintiffs in that case (qualified voters from

each congressional district) did "have the requisite standing" to

challenge Virginia's winner-take-all system on equal protection

grounds even though the panel ultimately rejected the claim on its

-21- merits. 288 F. Supp. at 625. We also note that none of the

mirror-image suits filed in the Fourth, Fifth, and Ninth Circuits

implicate the same standing issue, which seems to be because the

defendants in those cases did not move to dismiss under Rule

12(b)(1). See League of United Latin Am. Citizens, 951 F.3d at

314, 318 (affirming dismissal of claims on Rule 12(b)(6) grounds);

Baten, 374 F. Supp. 3d at 565-66 (dismissing claims on Rule

12(b)(6) grounds); Rodríguez, 2018 WL 6136140, at *4 (dismissing

claims on Rule 12(b)(6) grounds and declining to find that the

claims presented nonjusticiable political questions mandating Rule

12(b)(1) dismissal). Even if the respective motions to dismiss

in those cases did not raise the standing issue, the fact that

none of the aforementioned courts raised it sua sponte can be given

at least some weight. See In re Olympic Mills Corp., 477 F.3d 1,

6 (1st Cir. 2007) (noting the obligation "to inquire sua sponte

into our [subject matter] jurisdiction" (quoting Doyle v.

Huntress, Inc., 419 F.3d 3, 6 (1st Cir. 2005))).

Having established, contrary to the district court's

determination, that Appellants have indeed established the

requisite standing to survive the Rule 12(b)(1) motion to dismiss,

we proceed to assess their equal protection and associational

rights claims under Rule 12(b)(6).

-22- B. "One Person, One Vote" Claim

We begin by assessing whether Appellants' allegations

plausibly support a claim that the WTA system violates the "one

person, one vote" principle embedded in the Equal Protection Clause

of the Fourteenth Amendment. As an initial matter, Appellants

challenge the district court's determination that the Supreme

Court's summary affirmance in Williams is controlling. Next,

Appellants defend their equal protection claim by splitting it

into two theories. First, based on the contents of footnote 12

in Gray, 372 U.S. at 381 n.125 -- which Appellants term the case's

second, independent holding -- they argue that the WTA system

discards their votes for a non-majority candidate at the first

step of a two-step presidential election. Second, they posit that

the WTA system could alternatively be viewed as an at-large

election for a multimember district of electors, which

unconstitutionally dilutes the strength of their votes. As we

will explain, we reject these contentions.

5 Specifically, Appellants point to the language in footnote 12, which states that in the context of Georgia's county-unit system (which we will later describe in detail), "the weighting of the votes would continue, even if unit votes were allocated strictly in proportion to population" because the votes for the candidate who loses the county popular vote would be "worth nothing and [would] be[] counted only for the purpose of being discarded." Gray, 372 U.S. at 381 n.12.

-23- 1.

According to the constitutional blueprint for

implementing the Electoral College, the States alone (through

their legislatures) possess the power to determine the manner of

appointing presidential electors. See U.S. Const. art. II, § 1,

cl. 2; id. amend. XII. The text of the Elector Clause reads:

"Each state shall appoint in such Manner as the Legislature thereof

may direct, a Number of Electors equal to the whole Number of

Senators and Representatives to which the State may be entitled in

the Congress . . . ." Id. art. II, § 1, cl. 2. In interpreting

the bounds of the Elector Clause, the Supreme Court has stated

that "[t]he state legislature's power to select the manner for

appointing electors is plenary." Bush, 531 U.S. at 104 (citing

McPherson, 146 U.S. at 35). It is precisely for this reason that

the Constitution does not prescribe or endorse any selection method

in particular. See McPherson, 146 U.S. at 28 ("The final result

[of the constitutional convention] . . . reconciled contrariety of

views by leaving it to the state legislatures to appoint directly

by joint ballot or concurrent separate action, or through popular

election by districts or by general ticket, or as otherwise might

be directed."); see also id. at 27 ("The constitution does not

provide that the appointment of electors shall be by popular vote,

nor that the electors shall be voted for upon a general ticket,

-24- nor that the majority of those who exercise the elective franchise

can alone choose the electors."). State legislatures have

utilized a variety of appointment mechanisms since the framing of

the Constitution, but in recent memory, "[h]istory has . . .

favored the voter." Bush, 531 U.S. at 104.6 Of course, the hand

that giveth, also taketh away (if it so desires). See id. (citing

McPherson, 146 U.S. at 35) ("The State . . . after granting the

franchise in the special context of Article II, can take back the

power to appoint electors.").7

Plenary as a state legislature's power to dictate the

manner of appointing presidential electors may be, it is not beyond

judicial review. On the contrary, it is "always subject to the

6 Only Nebraska and Maine have adopted an alternative to the WTA system. They employ a hybrid version of district voting. See Me. Rev. Stat. Ann. tit. 21-A, § 805.2 (2020); Neb. Rev. Stat. § 32-714 (2019). Under this modern iteration, the candidate who wins the statewide popular vote receives the two at-large electoral votes (i.e., the two votes each state is entitled to for its senatorial representation), and the candidate who wins a plurality of the votes in each congressional district receives one electoral vote for that district (i.e., two in Maine and three in Nebraska). 7 For example, in advance of the 1800 presidential election, the Massachusetts legislature took back the appointment power from its citizens and picked the electors itself. See Neal R. Peirce, The People's President: The Electoral College in American History and the Direct-Vote Alternative 67 (1968). Historically, the Massachusetts legislature experimented quite frequently before settling on the WTA system. Between 1804 and 1820 alone, Massachusetts rotated through the general ticket system (1804), a joint ballot of the legislature (1808, 1816), and the congressional district system (1812, 1820), only to return to the general ticket system in 1824. See McPherson, 146 U.S. at 32.

-25- limitation that [it] may not be exercised in a way that violates

other specific provisions of the Constitution." Rhodes, 393 U.S.

at 29; see also Williams, 288 F. Supp. at 626 (noting that in order

to pass muster, "the manner of appointment must itself be free of

Constitutional infirmity"). The Equal Protection Clause of the

Fourteenth Amendment is one such well-established limitation (the

First Amendment is another, as we will explain later). See Rhodes,

393 U.S. at 29 ("[N]o State can pass a law regulating elections

that violates the Fourteenth Amendment[] . . . ."); Wesberry v.

Sanders, 376 U.S. 1, 17-18 (1964) ("Our Constitution leaves no

room for classification of people in a way that unnecessarily

abridges [their] right [to vote].").

The Equal Protection Clause guarantees that the

government will not treat "those who are similarly situated"

differently. In re Subpoena to Witzel, 531 F.3d 113, 118 (1st Cir.

2008); see U.S. Const. amend. XIV, § 1 ("[N]or shall any State

. . . deny to any person within its jurisdiction the equal

protection of the laws."). In the context of voting rights,

"[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

(citing Harper v. Va. Bd. of Elections, 383 U.S. 663, 665 (1966)).8

8 Importantly for our analysis, citizens do not have a "federal

-26- In this manner, the Equal Protection Clause safeguards the "equal

weight accorded to each vote and the equal dignity owed to each

voter." Id. at 104. This is the meaning of "one person,

one vote," a steadfast democratic principle which the Supreme

Court articulated in Gray, 372 U.S. at 381. At its core, the

precept stands for the "idea that every voter is equal to every

other voter in his State." Id. at 380. In other words, once

states establish a geographical unit for electing a political

representative, "all who participate in the election are to have

an equal vote--whatever their race, whatever their sex, whatever

their occupation, whatever their income, and wherever their home

may be in that geographical unit." Id. at 379; see also Burns v.

Richardson, 384 U.S. 73, 88 (1966) (recognizing that electoral

systems cannot be used to "cancel out the voting strength of racial

or political elements of the population" (quoting Fortson v.

Dorsey, 379 U.S. 433, 439 (1965))).

One-person, one-vote jurisprudence thus requires states

to "[e]nsure that each person's vote counts as much, insofar as it

[i]s practicable, as any other person's." Hadley v. Junior Coll.

constitutional right to vote for electors for the President of the United States unless and until the state legislature chooses a statewide election as the means to implement its power to appoint members of the electoral college." Bush, 531 U.S. at 104 (citing U.S. Const. Art. II, § 1).

-27- Dist. of Metro. Kan. City, 397 U.S. 50, 54 (1970). "[T]he crucial

consideration is the right of each qualified voter to participate

on an equal footing in the election process." Id. at 55. As the

Supreme Court has recognized, "[t]he right to vote can be affected

by a dilution of voting power as well as by an absolute prohibition

on casting a ballot." Shaw v. Reno, 509 U.S. 630, 640-41 (1993)

(alteration in original) (emphasis omitted) (quoting Allen v.

State Bd. of Elections, 393 U.S. 544, 569 (1969)); see also

Reynolds v. Sims, 377 U.S. 533, 555 (1964) ("[T]he 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."). Along these lines, one's

right to vote is impaired to an unconstitutional degree when the

weight of one's vote is substantially diluted in comparison with

the votes of citizens living elsewhere in the state. See, e.g.,

Moore v. Ogilvie, 394 U.S. 814, 819 (1969) ("The idea that one

group can be granted greater voting strength than another is

hostile to the one [person], one vote basis of our representative

government."). Therefore, now that Massachusetts has decided to

let its citizens choose by ballot which presidential candidate

Massachusetts will support with its electoral votes, that

balloting is subject to the "one person, one vote" principle

-28- embedded in the Equal Protection Clause of the Fourteenth

Amendment.

2.

Appellants' challenge to Massachusetts's WTA system for

selecting presidential electors on equal protection grounds is not

the first of its kind. In Williams, Virginia voters challenged

the Commonwealth of Virginia's use of an analogous WTA system known

as the "unit rule." See 288 F. Supp. at 624, 626 (considering

"whether Article II, Section 1 considered alone or with

Constitutional safeguards, permits the selection of the electors

by a general election in which the entire electorate of the State

may collectively vote at one time upon all of the electors").9

After granting certiorari, the Supreme Court summarily affirmed

the decision of the three-judge panel of the district court in a

9 There is historical irony in the link between the challenges to Virginia's and Massachusetts's WTA systems. As is now legend, after John Adams (of Massachusetts) defeated Thomas Jefferson (of Virginia) in the 1796 presidential election by a three-vote margin, Virginia switched from the district system (which it had used in the first three presidential elections) to the general ticket system (whereby electors are selected on a winner-take-all basis by a statewide popular vote) to ensure that all of its twenty-one electoral votes would go to a single party's candidate. See Peirce, supra note 7, at 64-66; see also Letter from Thomas Jefferson to James Monroe (Jan. 12, 1800) in 9 The Works of Thomas Jefferson, 90 (Paul Leicester Ford, ed. 1904) ("[All agree that an election by districts would be best, if it could be general; but while [ten] states ch[oose] either by their legislatures or by a general ticket, it is folly [and] worse than folly for the other [six] not to do it.").

-29- per curiam opinion and then denied a motion for rehearing.

See Williams, 393 U.S. 320, reh'g denied, 393 U.S. 1112 (1969)

(per curiam). Given the clear overlap of issues, a citation to

Williams would, in our view, decide the present case but for the

fact that Williams remains good law as a one-line summary

affirmance by the Supreme Court instead of a merits opinion. We

thus echo the district court in the case at hand: the Supreme

Court's summary affirmance is not necessarily an endorsement of

the three-judge panel's reasoning. See Lyman, 352 F. Supp. 3d at

86 (citing Mandel, 432 U.S. at 176). To that end, summary actions

are meant to be understood as "applying principles established by

prior decisions to the particular facts involved" and not as

"breaking new ground." Mandel, 432 U.S. at 176. Nevertheless

"[t]hey do prevent lower courts from coming to opposite conclusions

on the precise issues presented and necessarily decided by those

actions." Id.; see also Anderson v. Celebrezze, 460 U.S. 780, 784

n.5 (1983). For substantially the same reasons articulated by the

district court below (with a few tweaks), we agree that Williams

requires the dismissal of Appellants' equal protection claim at

this stage.

Williams decides the core equal protection issue

presented by this appeal: whether Massachusetts's WTA system

-30- undermines the "one person, one vote" principle.10 The Williams

plaintiffs were ten Virginia voters who shared the conviction that

Virginia's unit rule undermined the original intent of the Elector

Clause that electors ought to be chosen on a district-by-district

basis like congressional representatives -- a sentiment which

Appellants in this case share. See Williams, 288 F. Supp. at 625;

Opening Brief of Plaintiffs-Appellants at 8, Lyman v. Baker,

No. 18-2235 (1st Cir. Apr. 17, 2019) ("WTA, which in modern times

makes the role of Electors purely ministerial, is inconsistent

10 In the aforementioned parallel case, the Fifth Circuit held that the Supreme Court's summary affirmance in Williams required the dismissal of the appellants' equal protection challenge to Texas's WTA system, rejecting along the way all of the same arguments that Appellants make here as to why Williams does not control. See League of Latin Am. Citizens, 951 F.3d at 314-317. Additionally, we note -- as the district court did -- that the Fourth and Ninth Circuits have also considered and rejected equal protection challenges to WTA systems. See Williams v. North Carolina, No. 3:17-cv-00265, 2017 WL 4935858, at *1 (W.D.N.C. Oct. 31, 2017) (rejecting challenge to North Carolina's WTA system as "decisively foreclosed by binding precedent"), aff'd sub nom. Williams v. N.C. State Bd. of Elections, 719 F. App'x 256 (mem) (4th Cir. 2018); Conant v. Brown, 248 F. Supp. 3d 1014, 1025 (D. Or. 2017) (holding challenge to Oregon's WTA system to be defeated because "Williams is still good law"), aff'd, 726 F. App'x 611 (9th Cir. 2018). Other lower courts have reached similar results too. See, e.g., Schweikert v. Herring, No. 16-cv-00072, 2016 WL 7046845, at *1 (W.D. Va. Dec. 2, 2016) (dismissing challenge to Virginia's WTA system because "[t]he precise issue contained in [the] complaint was . . . dismissed, and affirmed summarily" in Williams); Hitson v. Baggett, 446 F. Supp. 674, 676 (M.D. Ala.) (dismissing challenge to the "statewide and at-large features" of Alabama's WTA system), aff'd without opinion, 580 F.2d 1051 (5th Cir. 1978), cert. denied, 439 U.S. 1129 (1979).

-31- with [the original] design."). Seeking declaratory and injunctive

relief -- just as Appellants did below -- they challenged

Virginia's WTA system vis-à-vis three causes of action, the second

of which presented the precise issue raised by Appellants.

Williams, 288 F. Supp. at 623-24. Specifically, the Williams

plaintiffs alleged that "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." Id.

at 624 (citing Gray, 372 U.S. at 381). The district court noted

that plaintiffs imputed unfairness to the plan "because it g[ave]

the choice of all of the electors to the statewide plurality of

those voting in the elections -- 'winner take all' -- and

accord[ed] no representation among the electors to the minority of

the voters." Id. at 623.

Deferential to the Elector Clause's broad grant of

authority to the States, the three-judge panel in Williams rejected

the equal protection claim because it saw "nothing in [Virginia's]

unit rule offensive to the Constitution." Id. at 627. In fact,

to reach its decision on the exact issue presented here, the

district court considered some of the same "possible objectionable

results" of the WTA system that Appellants allege in their

complaint. Id. Namely, this list included the risk of "minority

-32- presidents" (i.e., when a candidate wins a majority of the

electoral votes despite losing the popular vote), and most

importantly, the "disenfranchisement defect" (i.e., that the unit

system "extinguishes the voice" of up to "49 percent of a State's

voters" by allowing "State majorities to speak for them"). Id.

Ultimately, the Williams court concluded:

[I]t is difficult to equate the deprivations imposed by the unit 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 electoral slate is chosen, it speaks only for the element with the largest number of votes. This is in a sense 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.

Appellants first argue that the district court

erroneously relied on Williams in dismissing their equal

protection claim because Williams never addressed their exact

"contention that WTA discards votes at the first step of a two-step

election as condemned in Gray footnote 12." Appellants emphasize

the narrowness of the deference we ought to afford summary orders

and propose that we only adhere to them when "the factual and legal

issues presented" are "identical." At the same time, Appellants

-33- also maintain that the district court misunderstood their argument

as "being rooted in . . . factual distinctions" between Virginia's

and Massachusetts's WTA systems. Although they maintain that the

factual differences they alleged are not "meaningless," Appellants

note that their more "basic point" is that their claim evades

Williams's limited wingspan because it turns on "Gray's second

holding in footnote 12," which neither the Williams court nor its

plaintiffs endeavored to cite or distinguish.

However, Williams did not, as Appellants assert, only

consider the WTA system as "a one-step election for a state-level

body." In fact, the two-step election critique (i.e., that the

WTA system causes individual votes to "lose their effect on the

outcome at a preliminary stage in the counting," in the sense that

those votes are not tallied when determining the winner on the

national stage) made more than a mere cameo. See Williams, 288

F. Supp. at 627. The court expressly weighed the issue, but it

ultimately rejected the two-step critique because it was more

persuaded by the notion that "[b]y voting, the minority party

voters . . . set a figure which must be matched and exceeded by

opposing voters before the State's electoral vote bloc is awarded

to the opponent." Id. at 627 (quoting Staff of S. Subcomm. on

Const. Amends., 87th Cong., Memorandum on the Electoral College 23

(Oct. 10, 1961)). Along these lines, the applicability of the

-34- decision in Gray, as well as other relevant "one person, one vote"

cases, was directly at issue in Williams. In fact, the core equal

protection holding that "the general ticket does not come within

the brand of [the one person, one vote] decisions" is a direct

application of Gray's principles regarding the constitutionality

of the unit rule. Id. at 626. Therefore, the absence in Williams

of a citation to Gray's footnote 12, in our view, does not place

Appellants' case outside the "precise issues presented and

necessarily decided" by the summary action. Mandel, 432 U.S. at

176.

Next, Appellants allege that Williams does not control

the outcome of this case under their multimember district vote

dilution theory either (i.e., that by turning the selection of

Massachusetts's electors into an election for a eleven-member

district, the WTA system dilutes the strength of Appellants' votes

for non-majority party candidates). In support, they assert that

White v. Regester, 412 U.S. 755 (1973), and Bush v. Gore, represent

key doctrinal shifts in vote dilution law, which undermine the

precedential force of Williams's summary order as applied to their

"one person, one vote" claim. For the following reasons, this too

does not persuade.

First, the comparison with White is inapposite.

Appellants read White as giving "teeth to the principle that

-35- at-large elections can violate the Fourteenth Amendment if they

operate to dilute the influence of political minorities." Thus,

without the benefit of cases like White, they argue, the Williams

court could not have properly considered the potential for a voting

system to dilute votes in an election for a multimember body.

However, to characterize White as applying to the dilution of the

voting strength of "political minorities" through the use of

multimember districts is to misread its second holding, which

stemmed from the Court's concern that "multimember districts

[were] being used invidiously to cancel out or minimize the voting

strength of racial groups." White, 412 U.S. at 765 (emphasis

added) (citing Whitcomb v. Chavis, 403 U.S. 124 (1971)).

Specifically, the court in White confronted the reapportionment

plan for the Texas House of Representatives in Dallas and Bexar

Counties, where African-American and Mexican-American communities

had been "effectively excluded" or removed from "participation in

the [political] process" in any "reliable and meaningful manner"

for many years on end. Id. at 767, 769. In order "to bring

[those] communit[ies] into the full stream of political life of

the county and State," drawing single-member districts was

"required to remedy 'the effects of past and present [racial]

discrimination.'" Id. at 769. Appellants are not wrong that

White, as well as the line of subsequent precedent to which they

-36- cite,11 developed voting rights case law with respect to the use

of multimember districts; however, they stretch reason too far in

characterizing those cases as forming a doctrine regarding

diluting the voting strength of political minorities in general

terms, when the clear focus of those cases was discrimination

against racial minorities. Thus, White does not undermine the

precedential force of Williams.12

11 See, e.g., Thornburg v. Gingles, 478 U.S. 30, 47 (1986); United States v. Blaine Cty., 363 F.3d 897, 916 (9th Cir. 2004); NAACP v. Gadsden Cty. Sch. Bd., 691 F.2d 978, 983 (11th Cir. 1982); Montes v. City of Yakima, 40 F. Supp. 3d 1377, 1414 (E.D. Wash. 2014); Citizens for a Better Gretna v. City of Gretna, 636 F. Supp. 1113, 1135 (E.D. La. 1986), aff'd, 834 F.2d 496 (5th Cir. 1987), cert. denied, 492 U.S. 905 (1989). 12 Appellants also take a related historical tack. At the time of its decision, the Williams court noted that Congress had "expressly countenanced" state-wide at-large elections of congressional representatives. 288 F. Supp. at 628. However, Appellants submit that, motivated by the fear that Southern states would utilize multimember districts to dilute the voting strength of racial minorities (as exemplified by the Texas counties in White), Congress changed the law to require that states with two or more representatives use single-member districts. See 2 U.S.C. § 2c. That change went into effect beginning with the ninety- first congress, which convened the year after Williams was decided. In our view, this does not alter the doctrinal landscape, for as the district court in the present case noted, "multimember districts are not per se unconstitutional." White, 412 U.S. at 765. In any event, the court in Williams seemed to be acutely aware of this because, in the same breath that it acknowledged congressional approval of multimember districts at the time, it cited the aforementioned amendment as to future elections. See 288 F. Supp. at 624. Moreover, what is true for the election of U.S. Representatives (a process over which Congress retains oversight per Article I, section 4), is not necessarily true for the appointment of presidential electors (a process over which, as previously discussed, Congress does not retain any oversight).

-37- Second, turning to Bush, Appellants train their eyes on

the Williams court's "reliance on the invidiousness as a

prerequisite for an equal protection violation," which they argue

has been "overcome by doctrinal developments." They ascribe

particular meaning to the fact that in Bush, the Supreme Court

found that Florida's recount procedures violated the "one person,

one vote" principle because they resulted in "arbitrary and

disparate treatment" of Florida citizens' votes without adding to

that finding any discussion whatsoever of whether such

discrimination was invidious. Thus, in Appellants' view,

"[b]ecause invidiousness is not a requirement of the present

challenge it follows that Williams cannot have resolved [their]

challenge based on a legal standard that no longer controls." In

our estimation, this misses the mark for two reasons.

First and foremost, we decline to read Bush, which

expressly states that it is "limited to the present circumstances"

(and fairly unique circumstances at that), 531 U.S. at 109, beyond

its facts as overturning Williams, especially because it does not

expressly discuss the selection of presidential electors.

See Shalala v. Ill. Council on Long Term Care, Inc., 529 U.S. 1,

18 (2000)("[The Supreme Court] does not normally overturn, or so

dramatically limit, earlier authority sub silentio . . . .").

Next, we do not understand Bush to definitively alter

-38- the doctrinal requirements of "one person, one vote" claims in

every instance. In Bush, Florida's court-ordered recount of

ballots cast in the 2000 presidential election violated the Equal

Protection Clause because "the standards for accepting or

rejecting contested ballots might vary not only from county to

county but indeed within a single county from one recount team to

another." 531 U.S. at 106. This lack of uniform "statewide

standards for determining what is a legal vote" violated Florida's

"obligation to avoid arbitrary and disparate treatment of the

members of its electorate." Id. at 105, 110. In Bush, the absence

of uniform standards indicated to the Court that there was no rhyme

or reason for the arbitrary and disparate treatment of ballots,

and therefore, an inquiry into invidiousness would have been out

of place.

In any event, while proving the invidiousness of an

election system may not always be required to establish a valid

equal protection claim, the Supreme Court has factored a showing

of invidiousness into the prima facie case for violations of the

Equal Protection Clause in the voting rights context both before

Williams and after Bush. See, e.g., Harris v. Ariz. Indep.

Redistricting Comm'n, 136 S. Ct. 1301, 1307 (2016) ("[M]inor

deviations from mathematical equality do not, by themselves, make

out a prima facie case of invidious discrimination under the

-39- Fourteenth Amendment . . . ." (citation and quotation marks

omitted)); Dusch v. Davis, 387 U.S. 112, 116 (1967) ("[T]he

constitutional test under the Equal Protection Clause is whether

there is an 'invidious' discrimination."). In our view, the

larger point is that "invidiousness" and "arbitrary and disparate

treatment" are simply not mutually exclusive means of establishing

the prima facie case for "one person, one vote" violations. The

Supreme Court itself (as the district court here rightly noted)

has recognized as much. See, e.g., Roman v. Sincock, 377 U.S.

695, 710 (1964) (explaining that the Equal Protection Clause

requires "faithful adherence to a plan of population-based

representation," and that "minor deviations" are only permissible

if "free from any taint of arbitrariness or discrimination"

(emphasis added)); cf. Clements v. Fashing, 457 U.S. 957, 967

(1982) ("Classification is the essence of all legislation, and

only those classifications which are invidious, arbitrary, or

irrational offend the Equal Protection Clause of the

Constitution." (emphasis added)). Therefore, we do not read Bush

as ushering in the sweeping change that Appellants assert would

require us to put Williams aside. Accordingly, we concur with the

district court that the Supreme Court's summary affirmance in

Williams controls the outcome of the case at hand and compels the

dismissal of Appellants' equal protection claim.

-40- 3.

Even if Williams were not binding, we would agree that

Appellants still fail to state a "one person, one vote" claim as

a matter of law. Appellants' equal protection claim does not

withstand scrutiny because the WTA system does not deny Appellants

equal participation in the political process by, for example,

unevenly counting their votes or favoring or disfavoring any

particular set of voters. Drawing from Gray, Appellants' first

equal protection theory is that the WTA system severely burdens

their right to an equally weighted vote by discarding their votes

for president at the first step of a two-step presidential

election. Appellants' second theory is that the WTA system

unconstitutionally dilutes their votes even if viewed as an

election for a multimember, state-level body of electors instead

of the first step in a two-step presidential election.

The allegations in the complaint do not demonstrate that

the WTA system "by . . . arbitrary and disparate treatment,

value[s] one person's vote over that of another," Bush, 531 U.S.

at 104-05, nor do Appellants plausibly allege that the WTA system

infringes upon the right of voters "to participate on an equal

footing in the election process," Hadley, 397 U.S. at 55. The WTA

system does not treat any particular group of Massachusetts voters

differently at all -- it does not inherently favor or disfavor

-41- voters from any particular group (political or otherwise). In

Massachusetts, registered voters cast their ballot for president

and vice president vis-à-vis a slate of presidential electors on

Election Day. After the polls close, Massachusetts counts the

votes, according each vote equal weight, and then awards its

electors to the party whose candidate wins the highest number of

votes. That the candidate who loses the popular vote is entitled

to zero electors (irrespective of his or her political party) does

not in our view signify that the votes for that candidate have

been rendered meaningless. It merely indicates that the tally of

votes for that candidate was surpassed by the tally for the winning

candidate. See, e.g., City of Mobile v. Bolden, 446 U.S. 55, 77

n.24, 79 (1980) (holding that although the Equal Protection Clause

does confer a "right to participate in elections on an equal basis

with other qualified voters," it "does not entail a right to have

one's candidate prevail" or "guarantee[] proportional

representation").

Moreover, that one political party has prevailed in the

past eight election cycles (or thirty-two years) does not

necessarily signify the unequal treatment of political parties

either. A fuller picture of Massachusetts electoral history

suggests that the Republican Party, for example, has enjoyed

periods of sustained success at the ballot box in both presidential

-42- and gubernatorial elections (the latter overlapping with the eight

election cycles decried by Appellants).

Thus, we find no difficulty completing the logical

progression articulated by the Supreme Court in McPherson, where

it upheld Michigan's use of the congressional district system for

appointing electors against a constitutional challenge (the first

of its kind). "If presidential electors are appointed by the

legislatures, no discrimination is made; if they are elected in

districts where each citizen has an equal right to vote, the same

as any other citizen has, no discrimination is made." McPherson,

146 U.S. at 40. Likewise, if presidential electors are appointed

on a WTA basis, and every citizen has an equal right to vote, no

discrimination is made. Because that is plainly the case in

Massachusetts, we do not disturb the ruling below on this point.

Appellants do not allege any invidiousness about the WTA

system in Massachusetts either. While Appellants maintain that

they need not allege invidiousness to state an equal protection

claim, they nevertheless cite to historical evidence to illustrate

that the origins of the WTA can be traced to the realpolitik

between Republicans and Federalists in the early days of the

republic. That the initial design of the WTA system may have

contemplated the consolidation of electoral power in the majority

party at any given time does not necessarily make it invidiously

-43- discriminatory. The United States' system of representative

democracy was built on compromises that sought to promote

geographic equality by way of numerical balancing acts like the

Electoral College and equal representation in the Senate. We

recognize that Appellants do not challenge the "numerical

inequality" that inheres in the Elector Clause vis-à-vis its

interrelatedness with the Electoral College (which effectively

gives highly populated states fewer electoral votes per capita

than sparsely populated states). However, we note this

interconnectedness as a means of rejecting the contention that the

origins of the WTA system irrevocably plague it with invidiousness.

To begin, Appellants build their case on the assertion

that the district court erroneously ignored Gray's second,

independent holding in rejecting their analogy to the two-step

system that the Supreme Court declared unconstitutional in that

case. Gray involved a challenge to the Georgia Democratic Party's

use of a county-unit system to conduct primaries for U.S. Senator

and statewide offices, including for governor. See Gray, 372 U.S.

at 370. Under Georgia's variation -- which the state legislature

had actually amended during the course of the litigation -- the

primary was divided into two steps with two metrics: units and

votes. See id. at 372. Counties were allotted two units for the

first 15,000 residents. See id. Counties then gained an additional

-44- unit for each of the next intervals of 5,000, 10,000, and 15,000

residents, and thereafter, an additional two units for each

additional interval of 30,000 residents. See id. To win the

nomination in the first leg, a candidate needed to receive a

majority of both the county units and the popular vote (with a

majority of the popular vote breaking a tie in unit votes).

See id. However, the state held a second "run-off" primary if no

candidate won both the majority of the units and popular votes.

See id. To win in the second leg, a candidate simply needed to

amass the highest number of units. See id.

Because the county-unit system "weight[ed] the rural

vote more heavily than the urban vote and weight[ed] some small

rural counties heavier than other larger rural counties," the

Supreme Court struck it down on equal protection grounds.

Id. at 379. In terms of the Equal Protection Clause, the Court

held that the transgression was geographic discrimination:

residents of the smallest rural counties had a disproportionally

higher number of unit votes in comparison to their population.

See id. Thus, drawing upon the "conception of political equality

from the Declaration of Independence, to Lincoln's Gettysburg

Address, to the Fifteenth, Seventeenth, and Nineteenth

Amendments," the Court gave body to the principle of "one person,

one vote." Id. at 381.

-45- Appellants contend that the district court

understandably latched onto this aspect of the holding in Gray at

the expense of its second holding, which in Appellants' view, is

of greater relevance to the outcome of their case. Footnote 12

of Gray states:

The county unit system, even in its amended form . . . would allow the candidate winning the popular vote in the county to have the entire unit vote of that county. Hence the weighting of the 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. To confirm the weight of the footnote, Appellants

cite to the Supreme Court's statement in Gordon v. Lance, that "in

Gray . . . we h[e]ld that the county-unit system would have been

defective even if unit votes were allocated strictly in proportion

to population." 403 U.S. 1, 4 (1971).

Although the analogy between Georgia's county-unit

system and the WTA system has intuitive appeal, Gray does not in

our view give wings to Appellants' claim. We do not understand

footnote 12 to invalidate the use of the unit rule in the context

of selecting presidential electors. After all, the Court in Gray

was careful to offer something of a disclaimer that "analogies to

the electoral college . . . and to other phases of the problems of

representation in state or federal legislatures or conventions are

-46- inapposite." 372 U.S. at 378 (emphasis added) (footnote omitted).

Appellants implicitly hang their hats on the Court's subsequent

comment that the Constitution's "validat[ion]" of the "inherent

numerical inequality" in the Electoral College "implied nothing

about the use of an analogous system by a State in a statewide

election." Id. But that is precisely what separates Georgia's

use of a county unit system in a statewide primary election from

Massachusetts's use of the WTA system in the presidential election.

Whatever the added effect of footnote 12, the core

concern in Gray was that the county-unit system perpetuated a form

of geographic discrimination within the state of Georgia that

magnified the voice of rural voters.13 In other words, the equal

protection violation stemmed from the observation that every voter

in the Democratic primary was not "equal to every other voter in

his State." Id. at 380. Moreover, even in recognizing the point

raised in footnote 12 that Georgia's county unit system "would

have been defective even if unit votes were allocated strictly in

proportion to population," Gordon -- the case to which Appellants

cite -- noted that the "defect" to which footnote 12 referred

13 Although not explicitly phrased in such terms, the underlying concern before the Court in Gray was that the geographic discrimination in Georgia was particularly invidious because the favored rural counties had significantly lower populations of racial minorities than urban counties.

-47- "continued to be geographic discrimination." 403 U.S. at 4-5.

This confirms that the discarding of the votes was never the core

focus of the holding. Rather, it was the disparate treatment that

ran afoul of the Fourteenth Amendment because the "[v]otes for the

losing candidates," as Georgia weighed them, "were discarded

solely because of the county where [they] were cast." Id. at 5.

The same cannot be said of votes for losing candidates in

Massachusetts.

Massachusetts's WTA system is not materially analogous

because the role of counties in Georgia and the role of states

under the federal Constitution materially differ. Counties qua

counties in Georgia did not have the power to select Georgia's

governor. Rather, the voters chose the governor by ballot; hence

any attempt to use "two steps" to weight those votes differently

raised equal protection issues. States, by contrast, have the

power to select the electors who vote for president. And under

the Constitution, a state can decide for itself, without any

plebiscite, whether to cast its full support behind a single

candidate. Massachusetts decided to do so. That left only a

single decision for voters: which candidate? On that decision,

Massachusetts chose to turn to its voters, conducting a single,

one-step electoral process just as it does to select a governor.

In short, on the question assigned to voters in Massachusetts,

-48- there is only a one-step vote, with no dilution.

Moreover, the Constitution directly addresses this issue

in a manner that shows no inkling of requiring a plebiscite. For

instance, in the event that the electoral vote is not decisive,

the vote goes to the House of Representatives to break the tie in

the Electoral College, with each state having one, winner-take-all

vote. See U.S. Const. amend. XII ("[I]n choosing the President,

the votes shall be taken by states, the representation from each

state having one vote . . . ."). Furthermore, the very use of

electoral votes itself rejects "one person, one vote" as a

requirement in the selection of electors unless one contends that

electoral votes need be subdivided into fractions. Thus, in

Vermont, for example, even under Appellants' proposed method of

voting, there will be "unequal" votes unless a candidate gets

exactly zero or one third of the votes with the remainder all to

the other.

Accordingly, Appellants' two-step theory does not hold

weight even factoring in the contents of footnote 12 in Gray.

Moving to Appellants' second equal protection theory

asserting vote dilution in a multimember district of electors, we

find that it too fails to carry the day. Appellants contend that

even if viewed as a single-step election for a slate of electors,

the WTA system severely burdens their Fourteenth Amendment rights

-49- "by canceling out their votes for Electors through an at-large

. . . election that systematically ensures zero representation in

Massachusetts' Electoral College delegation."

Their argument is premised on the original intent that

the Electoral College would function as a deliberative body.

See McPherson, 146 U.S. at 36 ("[I]t was supposed that the electors

would exercise a reasonable independence and fair judgment in the

selection of the chief executive, but . . . . the original

expectation may be said to have been frustrated."). By this logic,

Massachusetts denies equal representation to the citizens who vote

for minority party candidates because the WTA system ensures that

they will not be represented by any electors in the Electoral

College. Appellants thus argue, relying on Burns, 384 U.S. at 88,

that the WTA system "'cancel[s] out the voting strength' of

minority voters in order to consolidate power in the hands of the

plurality."

There is no question that multimember apportionment

schemes can violate the dictates of the Equal Protection Clause if

(by design or impact) they dilute the voting strength of "political

elements of the voting population." Burns, 384 U.S. at 88; see

also Allen, 393 U.S. at 569.14 However, the use of a WTA system

14 Functionally, multimember districts are those in which the people elect multiple candidates to represent a single consolidated district based on a plurality voting system.

-50- does not necessarily render a multimember apportionment scheme

unconstitutional. In Whitcomb v. Chavis, for example, the Supreme

Court considered an equal protection challenge to Indiana's use of

multimember districts for its state general assembly elections

amidst criticism of, inter alia, "their winner-take-all aspects."

403 U.S. at 158-59. However, the Supreme Court ultimately

rejected the argument that use of such multimember districts, which

were decided by plurality vote, violated the Equal Protection

Clause "simply because the supporters of losing candidates have no

legislative seats assigned to them." Id. at 160; see also id. at

154-55 ("The mere fact that one interest group . . . has found

itself outvoted and without legislative seats . . . provides no

basis for invoking constitutional remedies where . . . there is no

indication that this segment of the population is being denied

access to the political system.").

We see a useful parallel to the impact of the WTA system

in Massachusetts. If the WTA system could indeed be characterized

as a multimember district -- which we are not certain that it can,

given the largely ministerial role of electors today -- voters for

minority candidates do not suffer a violation of their equal

protection rights simply because their preferred candidate did not

See Whitcomb, 403 U.S. at 134 n.11, 160.

-51- prevail after having an equal and fair opportunity to compete in

the statewide election. Thus, while Appellants are "[a]rguably

. . . without representation since the [candidates] they voted for

have been defeated," that is the nature of the "head-on races

between candidates of two or more parties" that defines "typical

American legislative elections." Id. at 153. In that sense, the

WTA system is no different from any other election system decided

by plurality voting. We do not say that votes cast for the losing

candidate in any other such election are discarded because the

winner belongs to a different political party or because those who

voted for the losing candidate disapprove of the winner's political

agenda. Thus, to the extent that Appellants challenge the

validity of plurality voting in general through their equal

protection claim, they do not prevail.

Whitcomb, of course, recognizes that multimember

districts "may be subject to challenge" under certain

circumstances of vote dilution. Id. at 143 (citing Fortson, 379

U.S. at 439). The Court added to its holding that the "tendency"

of a multimember district to have such an effect "is enhanced when

the district is large and elects a substantial proportion of the

seats in either house of a bicameral legislature . . . or if it

lacks provision for at-large candidates running from particular

geographical subdistricts." Id. at 143-44 (citing Burns, 384 U.S.

-52- at 88). Appellants submit that the use of the WTA system in

Massachusetts aptly illustrates the "dilutive characteristics"

that were absent in Whitcomb. Under their analogy, Massachusetts's

unicameral body of eleven electors is the "district," and since

one hundred percent ("a substantial proportion") of "the seats,"

or electors, are awarded to the party whose candidate wins the

popular vote, the dilutive effect is at its peak. However, this

parallel is based on a strained reading of the holding in Whitcomb,

which stands for the proposition that multimember districts only

prompt equal protection claims when "conceived or operated as

purposeful devices to further racial . . . discrimination."

Whitcomb, 403 U.S. at 160 (emphasis added). And as we have

explained, Appellants do not allege such invidiousness behind the

WTA system in Massachusetts.

Additionally, Appellants hypothesize that since it would

be unconstitutional for Massachusetts to provide for the election

of its state senators using a single-slate, at-large WTA election

(because it would result in single-party rule), it is therefore

unconstitutional to adopt the WTA system to appoint

Massachusetts's slate of electors. This analogy does not quite

pan out, as presidential electors are not a comparable body of

representatives, especially now that the Electoral College has

effectively lost its deliberative character.

-53- Finally, as previously explained, any comparison to

White is inapposite. While "political elements" are certainly a

protected class in the voting rights context, White was concerned

with an altogether different form of deep-seeded exclusion of

racial minorities from equal participation in the political

process that extended temporally far beyond the eight election

cycles to which Appellants point in their complaint. Therefore,

Appellants do not adequately state a claim under a multimember

district theory either.

Accordingly, we affirm the district court's ruling that

Appellants have failed to state a "one person, one vote" equal

protection claim.

C. Associational Rights Claim

We turn our attention to whether Appellants' allegations

plausibly support a claim that the WTA system violates their

associational rights under the First and Fourteenth Amendments.

At the core, Appellants allege that the Massachusetts WTA system

severely (and unconstitutionally) burdens their associational

rights by "discarding" or "diluting" their votes as minority party

members in a manner that ensures that they get no voice in the

Electoral College. Because the right to freedom of association

does not entitle citizens to electoral success, we agree with the

-54- district court that Appellants' complaint does not allege an

associational burden.

Together, the First and Fourteenth Amendment operate to

protect "[t]he freedom of association." Tashjian v. Republican

Party of Conn., 479 U.S. 208, 214 (1986); NAACP v. Alabama ex rel.

Patterson, 357 U.S. 449, 460 (1958) ("It is beyond debate that

freedom to engage in association for the advancement of beliefs

and ideas is an inseparable aspect of the 'liberty' assured by the

Due Process Clause of the Fourteenth Amendment, which embraces

freedom of speech."). This protection includes the rights of

citizens to "form political parties for the advancement of common

political goals and ideas" as well as the rights of parties to

self-determine their organizational structure and to select

candidates. Timmons v. Twin Cities Area New Party, 520 U.S. 351,

357, 363 (1997); see also Cal. Democratic Party v. Jones, 530 U.S.

567, 574-75 (2000) ("Representative democracy in any populous unit

of governance is unimaginable without the ability of citizens to

band together in promoting among the electorate candidates who

espouse their political views."); Tashjian, 479 U.S. at 214-15.

To that end, because voters express their preferences at the ballot

box, see Anderson, 460 U.S. at 787-88, associational freedom

necessarily includes "the right to cast an effective vote."

Republican Party of N.C. v. Martin, 980 F.2d 943, 960 (4th Cir.

-55- 1992); cf. Rhodes, 393 U.S. at 30 (noting the overlap between "the

right of individuals to associate for the advancement of political

beliefs, and the right of qualified voters . . . to cast their

votes effectively" in the context of an equal protection

challenge).

No bright line rule exists to aid our inquiry. Instead,

to decide whether a state election law violates the aforementioned

associational rights, we employ a balancing test that weighs the

"'character and magnitude' of the burden the State's rule imposes

on those rights against the interests the State contends justify

that burden, and [then] consider the extent to which the State's

concerns make the burden necessary." Timmons, 520 U.S. at 358

(quoting Burdick v. Takushi, 504 U.S. 428, 434 (1992)). We apply

strict scrutiny to a state election law that severely burdens a

plaintiff's associational rights, meaning that it must be

"narrowly tailored and advance a compelling state interest." Id.

By contrast, "[l]esser burdens . . . trigger less exacting review."

Id.; see Anderson, 460 U.S. at 788 ("[T]he state's important

regulatory interests are generally sufficient to justify

reasonable, nondiscriminatory restrictions.").15

15 Because (as we will explain) we have determined that there is no burden at all to Appellants' associational rights, we need not decide between the various tiers of scrutiny.

-56- We proceed to Appellants' claim that the WTA system

burdens their associational rights because it "ensur[es] that

[their] votes, and any associational efforts, can have no effect

on the national election." First and foremost, we echo the

district court's determination that the WTA system simply does not

burden Appellants' associational rights because it merely "sets

the stakes" but "does not help or hurt one group's chances of

winning the Commonwealth's electors." Lyman, 352 F. Supp. 3d at

91. That one's candidate of choice does not prevail at the ballot

box simply does not translate into an associational rights

violation. See Smith v. Ark. State Highway Emps., Local 1315, 441

U.S. 463, 464-65 (1979) ("The First Amendment right to associate

and to advocate 'provides no guarantee that a speech will persuade

or that advocacy will be effective.'" (quoting Hanover Twp. Fed'n

of Teachers v. Hanover Cmty. Sch. Corp., 457 F.2d 456, 461

(1972))); Martin, 980 F.2d at 960 ("The First Amendment guarantees

the right to participate in the political process. It does not

guarantee political success."). The fact that the loser of the

popular vote is not entitled to electors does not make that

candidate's voters "unequal participant[s] in the decisions of the

body politic." Complaint at 14, Lyman v. Baker, 352 F. Supp. 3d

81 (D. Mass. 2018) (No. 1:18-cv-10327) (quoting Whitford v. Gill,

218 F. Supp. 3d 837, 883 (W.D. Wis. 2016)). It is thus no burden

-57- to Appellants' right of "partisan political organization" that

their candidates of choice are not entitled to any of

Massachusetts's electors even if they only lose the general ticket

by a margin of a single vote. Tashjian, 479 U.S. at 214.

Elections are hard-fought political battles won by the

power of persuasion. See Schatz, 669 F.3d at 52 (observing that

the electoral process "sometimes has the feel of a contact sport,

with candidates, political organizations, and others trading

rhetorical jabs and sound-bite attacks in hopes of landing a

knockout blow at the polls"). The WTA system raises the stakes

of victory, but it does not deprive any group of Massachusetts

voters of "an equal opportunity to win votes" during the statewide

election. Rhodes, 393 U.S. at 31. It would be troublesome indeed

if, like Ohio's ballot access measure in Rhodes, Massachusetts's

WTA system imposed signature requirements that made it "virtually

impossible" for a political party to slot their candidate onto the

statewide ballot. Id. at 24-25. That, however, is not the case

in Massachusetts, which offers the candidates whom Appellants

support the "equal opportunity to win votes." Rhodes, 393 U.S.

at 31. Indeed, Appellants cannot and have not alleged that the

WTA system restricts their ability to express their political

preferences in Massachusetts by keeping their preferred candidates

off the ballot. See Anderson, 460 U.S. at 786-88. Appellants'

-58- preferred candidates did appear on the ballot in the 2016

presidential election and Appellants allege that they exercised

their right to vote (the alleged harm being that their votes were

effectively "discarded" by virtue of the WTA system).

Instead, Appellants assert that the WTA system has the

effect of "distorting the political process" in such a manner that

severely burdens their associational rights because it

"incentivizes candidates to ignore Massachusetts . . . and its

[political] minority voters in each election cycle," which in turn

exposes the national election system to foreign interference as

well. Having contextualized Massachusetts's use of the WTA system

vis-à-vis the Electoral College as being in line with the national

norm, it would not be sensible now to deem it the culprit for the

outsized influence that a handful of swing states exert on the

presidential election (whether because of the date of their primary

elections or the opportunity they offer to capture electoral

votes). We cannot opine here on the policy arguments for and

against this intersection between the WTA system and the Electoral

College. Moreover, Appellants do not allege that the WTA system

burdens the associational rights of the political parties to which

they belong to determine their organizational structure, engage in

political activities, or select their leaders (in Massachusetts).

See Timmons, 520 U.S. at 357-58.

-59- Lastly, we note that in the course of its analysis, the

district court turned to the Supreme Court's gerrymandering

jurisprudence because it sheds some light on how to assess the

"character and magnitude" of the burden imposed by state election

law on associational freedoms. 16 For these purposes, it is

particularly troubling "when a State purposely 'subject[s] a group

of voters or their party to disfavored treatment.'" Gill, 138 S.

Ct. at 1938 (Kagan, J., concurring) (emphasis added) (alteration

in original) (quoting Vieth, 541 U.S. at 314 (Kennedy, J.,

concurring)).

Appellants contend that the district court incorrectly

dismissed their claim on the basis that the WTA system does not

purposely burden their associational rights by reason of their

views. The Commonwealth, for its part, suggests that the district

court drew the parallel to gerrymandering as a means of "observing

that the winner-take-all system is a neutral rule, the application

of which does not turn on the viewpoint of a particular individual,

group, or party." While intent (i.e., purpose) may not be a

16 We also note the potential limitations of this comparison after Rucho v. Common Cause, in which the Supreme Court held partisan gerrymandering to be a non-justiciable political question (at least in the context of plaintiffs' equal protection and First Amendment claims). 139 S. Ct. 2484, 2498-2502, 2504-05 (2019). By contrast, Elector Clause claims are justiciable. See McPherson, 146 U.S. at 23-25.

-60- required element of an associational rights claim, we tend to agree

with the Commonwealth that the larger point is that the WTA system

is a rule of neutral and even-handed application that does not

burden the associational rights of any voter or party by reason of

their views.

Therefore, Appellants have not sufficiently alleged that

the WTA system burdens their associational freedom. Even if we

were pressed to find that some burden resulted, it is surely not

severe, and its "character and magnitude" is too slight to exert

any significant force in the relevant balancing test that cannot

be overcome by any regulatory interest of Massachusetts.

III.

In conclusion, even though Appellants do have standing

to bring their claims, we agree with the district court that they

have failed to state a claim for relief for Rule 12(b)(6) purposes

under either of their constitutional theories. Accordingly, we

affirm the district court's dismissal of both claims.

Affirmed.

-61-