`
`UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF COLUMBIA
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`ROBERT ASA GORDON
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`Plaintiff,
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` v.
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`JOSEPH R. BIDEN, Vice President of
`the United States,
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`Defendant.
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`Civil Action 08-01294 (HHK)
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`MEMORANDUM OPINION
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`Proceeding pro se, Robert Gordon (“Gordon”) filed this action on July 28, 2008, against
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`Richard Cheney, then the Vice President of the United States (“Vice President”), in his official
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` Gordon purports to bring this action on “behalf of himself and his derivative
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`beneficiary class members as registered voters and Presidential Electors of states subject to the
`impact of the diminishment of their vote.” Compl. ¶¶ 15-16. However, he did not file a motion
`for class certification within 90 days of filing the complaint, as required by Local Civil Rule
`23.1(b). Thus, he is not able to proceed as a representative of a class. Had Gordon filed a
`motion for class certification it would have been denied as pro se litigants cannot serve as
`adequate representatives of a class. See 28 U.S.C. § 1654; e.g., Blue v. Defense Logistics
`Agency, 181 Fed. Appx. 272, 275 (3rd Cir. 2006) (holding that “a pro se plaintiff . . . cannot
`adequately represent the interests of other class members.”); Ziegler v. State of Michigan, 90 Fed.
`Appx. 808, 810 (6th Cir. 2004) (same); Fymbo v. State Farm Fire and Cas. Co., 213 F.3d 1320,
`1321 (10th Cir. 2000) (affirming district court’s decision that pro se plaintiff could not
`adequately represent a class; “A litigant may bring his own claims to federal court without
`counsel, but not the claims of others. . . . because the competence of a layman is “clearly too
`limited to allow him to risk the rights of others.”) (citing Oxendine v. Williams, 509 F.2d. 1405,
`1407 (4th Cir. 1975)); Martin v. Middendorf, 420 F. Supp. 779, 780 (D.D.C. 1976) (denying pro
`se plaintiff's motion for class certification due to, inter alia, a “built-in disadvantage” of a layman
`against experienced government counsel); see also, e.g., Simon v. Hartford Life, Inc., 546 F.3d
`661, 664-65 (9th Cir. 2008) (“[C]ourts have routinely adhered to the general rule prohibiting pro
`se plaintiffs from pursuing claims on behalf of others in a representative capacity.”) (citing
`cases); McPherson v. Sch. Dist. No. 186, 32 Fed. Appx. 769, 770 (7th Cir. 2002) (holding that “a
`nonlawyer may not proceed pro se on behalf of another.”).
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` Under Federal Rule of Procedure 25(3)(d), Vice President Joseph R. Biden is
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`substituted for former Vice President Richard Cheney.
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`
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`Case 1:08-cv-01294-HHK Document 21 Filed 03/26/09 Page 2 of 6
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`capacity. In anticipation of the then-upcoming presidential election and the role that the Vice-
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`President would play in the election by presiding over and certifying the official vote count of the
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`U. S. Electoral College, Gordon sought by this action to prevent the Vice-President “from
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`presiding over the tabulation of ‘unbound electoral states’ who by practice, unsupported by state
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`or federal statute, traditionally award Presidential Electors on a ‘winner-take-all basis.’” Compl.
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`¶ 7. 3
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`Before the court is the Vice President’s motion to dismiss [#9]. Upon consideration of
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`the motion, the opposition thereto, and the record of this case, the court concludes that the
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`motion should be granted.
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`I.
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`Gordon identifies himself as “Founder and Executive Director of the Douglass Institute of
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`Government, registered voter of the District of Columbia, Presidential Elector, and Chair, DC
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`Statehood Green Party Electoral College Task Force.” ¶ 2. He alleges that the state laws of
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`Arkansas, Georgia, Louisiana, Tennessee, and Texas allow their presidential electors to “award
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`all of their unbounded presidential electors by ‘winner take all’ provisions not based in any state
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`or federal law but predicated on the majority choice of its white citizens.” ¶ 10. As a result,
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`“these states have in effect disenfranchised the citizen’s [sic] of the state that voted for the
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`presidential electors pledged to the candidate with less then [sic] the popular majority vote,” ¶ 8,
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`who Gordon alleges are the states’ black citizens, ¶ 10.
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`3
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` Unless otherwise specified, “¶” refers to a paragraph of plaintiff’s complaint [#1].
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` For the purpose of this motion to dismiss, the court “ must accept as true all of the
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`factual allegations contained in the complaint.” Bell Atlantic Corp. v. Twombly, 127 S. Ct. 1955,
`1975 (2007) (quoting Swierkiewicz v. Sorema N.A., 534 U.S. 506, 508, n.1 (2002)).
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`2
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`Case 1:08-cv-01294-HHK Document 21 Filed 03/26/09 Page 3 of 6
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`Gordon contends that “in choosing from the unbounded electoral states to represent to
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`congress the ‘certificates of vote’ under ‘winner take all’ provisions, wherein there exist no
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`constitutional or state statutory authority allowing only the selective counting of majority polled
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`state electoral votes,” the Vice President “will deprive presidential electors of their
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`constitutionally protected rights under the First and Fourteenth Amendments to the U.S.
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`Constitution.” ¶ 12.
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`Gordon seeks declaratory and injunctive relief enjoining the Vice President from
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`“effecting the counting of the full slate of presidential electors,” Compl. Prayer for Relief ¶ 1,
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`and performing “any presumptive tabulation of ‘winner take all’ electors from states that have no
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`‘winner take all’ state in the electoral count,” id. ¶ 3, as well as requiring the Vice President to
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`reduce “the number of State electors and representatives in congress in proportion to the
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`disenfranchised class of U.S. Citizens whose voting rights were denied and/or abridged or in the
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`alternative effect proportional apportionment of the counting of the electoral votes in congress”
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`id. ¶ 2.
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`II.
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`A party who brings an action in federal court bears the burden of demonstrating that he
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`has standing to do so. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992). In order to
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`have standing, a plaintiff must show that he suffers “(1) a ‘concrete and particularized’ ‘injury in
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`fact’ that is (2) fairly traceable to the defendant's alleged unlawful conduct and that is (3) likely to
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`be redressed by a favorable decision.” Hein v. Freedom From Religion Found., Inc., 127 S. Ct.
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`2553, 2574 (2007) (quoting Lujan, 504 U.S. at 560-61 (1992)). The Vice President moves to
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`dismiss Gordon’s complaint pursuant to Rule 12(b)(1) and Rule 12(b)(6) on the grounds that
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`3
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`Case 1:08-cv-01294-HHK Document 21 Filed 03/26/09 Page 4 of 6
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`Gordon does not and cannot bear his burden with respect to any of the elements required for a
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`showing of standing. The Vice President’s motion is granted because, assuming that Gordon has
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`sufficiently plead an injury in fact, the alleged injury is not fairly traceable to the Vice President’s
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`allegedly unlawful conduct. 5
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`Gordon asserts a constitutional interest by virtue of section 2 of the Fourteenth
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`Amendment to protect an interest of his own and of persons similarly situated. His alleged
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`injury-in-fact is the diminishment of the votes of electors and registered voters “by including the
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`full slate of Presidential Electors in the electoral count of January 6th, 2009 from states subject to
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`2USC§6 [sic],” ¶ 15, and “by the denial and/or abridgement of Presidential Electors that
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`represent their candidate in unbound states wherein there is no state election law that explicitly
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`allocates that states[’] electors on a ‘winner take all’ basis.” ¶ 16. The court understands this
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`allegation to mean that his vote as an elector and registered voter, as well as that of all other
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`electors and registered voters, would be diluted by electoral votes from states in which electors
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`vote for whichever candidate wins the popular vote (under so-called “winner take all” laws)
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`rather than voting for candidates in the proportion of votes they win.
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`The problem for Gordon, among others, is that his claims are predicated on allegations of
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`wrongdoing by third parties. In determining whether a plaintiff has shown the “causation” or
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` Since standing is an indispensable part of the plaintiff's case, it must be supported in the
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`same way as any other matter upon which the plaintiff has the burden of proof, i.e., in the manner
`and with the degree of evidence required at the successive stages of the litigation. Thus, “[a]t the
`pleading stage, general factual allegations of injury resulting from the defendant's conduct may
`suffice, for on a motion to dismiss we ‘presum[e] that general allegations embrace those specific
`facts that are necessary to support the claim.’” Lujan, 504 U.S. at 561. Here, however, Gordon
`has plead himself out of court by pleading facts affirmatively showing that he does not have
`standing.
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`Case 1:08-cv-01294-HHK Document 21 Filed 03/26/09 Page 5 of 6
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`“traceability” element of the showing required to demonstrate standing, the court “examines
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`whether it is substantially probable that the challenged acts of the defendant, not of some absent
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`third party, will cause the particularized injury of the plaintiff.” Microwave Acquisition Corp. v.
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`FCC, 145 F.3d 1410, 1412 (D.C. Cir. 1998) (quoting Florida Audubon Soc'y v. Bentsen, 94 F.3d
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`658, 663 (D.C. Cir. 1996) (en banc)). Here, Gordon alleges that “State Officials” “de facto deny
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`and/or abridge ‘citizens of the United States’ in the exercise of their ‘right to vote . . . for the
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`choice of electors for President and Vice-President of the United States’ on the basis of race
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`and/or party affiliation in violation of the ‘equal protection’ clause of the first section of the
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`Fourteenth Amendment.” ¶ 9. Gordon also contends that by “award[ing] all of their unbounded
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`presidential electors by ‘winner take all’ provisions not based in any state or federal law but
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`predicated on the majority choice of its white citizens,” the five states thereby “de-facto
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`disenfranchise those electors of the state based on the votes of the states[’] black citizens.” ¶ 10.
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`Because Gordon’s alleged injury is not “fairly traceable” to the Vice President’s actions, which in
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`fact are purely ministerial, but rather is attributable to the actions of third-party states and state
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`officials, he fails to satisfy the causation element of standing. Therefore, he is unable to
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`prosecute this action.
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`Case 1:08-cv-01294-HHK Document 21 Filed 03/26/09 Page 6 of 6
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`III.
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`For the foregoing reasons, the court finds that defendant’s motion to dismiss [#9] should
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`be GRANTED, and [#3] Plaintiff’s Motion for Temporary Restraining Order and Preliminary
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`Injunction, [#13] Plaintiff’s Motion to Present Oral Argument for Summary Judgment, and [#19]
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`Plaintiff’s Augmented Motion for Summary Judgment should be DENIED as moot. An
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`appropriate order accompanies this memorandum opinion.
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`Henry H. Kennedy, Jr.
`United States District Judge
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`6