Case 1:16-cv-02458-RJL Document 22 Filed 06/20/17 Page 1 of 6
`Case 1:16-cv-02458-RJL Document 22 Filed 06/20/17 Page 1 of 6
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`UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF COLUMBIA
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`ASA GORDON,
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`Plaintiff,
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`v.
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`) Civil Case No. 16-2458 (RJL)
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`F I |_ E D
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`JUN 2 0 2017
`Clark. u.s. Dlstrlct a. Bankruptcy
`Courts for the Dlstrlct of Columbla
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`NATIONAL ARCHIVES AND
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`RECORDS ADMINISTRATION,
`DAVID s. FERRIERO, and OLIVER
`POTTS,
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`Defendants°
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`MbDZMOPINION
`(June 71?, 2017) [# 7]
`Pro se plaintiff, Asa Gordon (“Gordon” or “plaintiff’), filed this action against the
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`National Archives and Records Administration (“NARA” or “the Agency”) and two of its
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`officials (collectively, “defendants”) seeking declaratory and injunctive relief from the
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`way in which the Agency runs the Electoral College system. Specifically, he contends
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`that there are eleven states whose state laws do not require a winner-take-all allocation of
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`electoral votes, and therefore the Fourteenth Amendment requires these states to allocate
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`their electoral votes proportionally, according to the popular vote. This matter is now
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`before the Court on Defendants’ Motion to Dismiss [Dkt. # 7]. Upon consideration of the
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`Case 1:16-cv-02458-RJL Document 22 Filed 06/20/17 Page 2 of 6
`Case 1:16-cv-02458-RJL Document 22 Filed 06/20/17 Page 2 of 6
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`parties’ submissions and the entire record herein, defendants’ motion is GRANTED and
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`plaintiff’ 3 case will be DISMISSED with prejudice.I
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`BACKGROUND
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`Plaintiff identifies himself as Executive Director of the Douglass Institute of
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`Government, an advocacy think tank. See Complaint at 11 7. He is a US. citizen, resident
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`of the District of Columbia, and voter in the 2016 presidential election. Id; Proposed
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`Amended Complaint at 11 14. Gordon alleges that the allocation of presidential electors
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`has been unconstitutional in some states since the ratification of the Fourteenth
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`Amendment. See Complaint at 11 10. Specifically, he claims that there are eleven
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`unbounded states,2 and pursuant to 2 U.S.C. § 6, electors in those states must be
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`apportioned to the presidential candidates based on the percentage of the popular vote
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`they received. Id. Otherwise, Gordon alleges, these states violate Section 2 of the
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`Fourteenth Amendment, which penalizes states for abridging the right of citizens to vote
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`by reducing the number of their Representatives in Congress. Id. at 11 18; US. CONST.
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`amend. XIV, § 2.
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`To remedy this alleged violation, plaintiff seeks an order requiring that NARA:
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`(1) inform state governors that the electors must abide by the Fourteenth Amendment
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`' On February 10, 2017, plaintiff moved for leave to file an amended complaint [Dkt. # 12] in an attempt
`to bolster the facts supporting his claim of Article II! standing. There are no new factual allegations in his
`proposed amended complaint, however, that would alter this Court’s ruling on Article III standing. His
`motion is therefore DENlED as moot. Plaintiff also filed a motion to present oral argument for summary
`judgment [Dkt. # 2]. Because this Memorandum Opinion dismisses plaintiff’s claim with prejudice, that
`motion is also DENIED as moot.
`2 Plaintiff identifies these eleven states as: Alabama, Arizona, Georgia, Indiana, lowa, Michigan, North
`Carolina, Pennsylvania, South Carolina, Tennessee, and Wisconsin. See Complaint at 1] ll.
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`2
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`during their December 19 meetings and notify them that reference to Section 2 of the
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`Fourteenth Amendment should have been included in the information packet sent to
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`them; and (2) examine the Certificates of Vote to ensure that they comply with plaintiff’s
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`reading of Section 2 of the Fourteenth Amendment and reject those that do not. See
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`Complaint at 9.
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`On January 3, 2017, Gordon filed a motion for a temporary restraining order and
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`preliminary injunction, seeking to compel defendants to reject Certificates of Vote that
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`allocate electoral votes on a winner-take-all basis where state law does not so require.
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`Pl.’s Mot. for Temp. Restraining Order and Preliminary Injunction at 1] 5.
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`I heard
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`argument on the motion on January 9, 2017 and denied the motion for a temporary
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`restraining order as moot. See January 9, 2017 Minute Entry. Plaintiff’s motion for a
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`preliminary injunction is all that remains.
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`STANDARD OF REVIEW
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`Article III of the US Constitution restricts federal court jurisdiction to cover only
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`“cases” and “controversies.” See Lujan v. Defenders of Wildlife, 504 US. 555, 559
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`(1992). The burden is on the party invoking federal jurisdiction to show that he has
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`standing to sue. Id. at 561. To satisfy Article 111’s jurisdictional requirement, a plaintiff
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`must establish three elements:
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`(1) that he suffered an injury-in-fact that is “concrete and
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`particularized,” and “actual or imminent, not conjectural or hypothetical”; (2) that there is
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`a causal connection between the injury and the conduct complained of that is “fairly
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`traceable” to the action challenged; and (3) that it is likely—as opposed to “merely
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`speculative”—that the injury will be redressed by a favorable decision. Id. at 560-61
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`3
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`(internal quotation marks and alterations omitted). Because standing is essential to a
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`federal court’s subject matter jurisdiction, the Court must first determine whether plaintiff
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`has satisfied Article III’s standing requirement before examining the merits ofhis
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`complaint. Steel Co. v. Citizensfor a Better Env’t, 523 US. 83, 98 (1998).
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`ANALYSIS
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`The problem for Gordon—among others—is that he has not established an injury
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`sufficient to satisfy Article III’s inj ury-in-fact requirement. Plaintist constitutional
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`theory is not a new one; he has filed at least seven lawsuits substantially similar to this
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`one. and each has been dismissed, with three dismissed for lack of standing.3 But no new
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`facts alleged in the present complaint alter the fatal shortcomings of his case. Gordon
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`resides—and votes—only in Washington, DC, which is not one of the unbounded states
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`whose electoral systems he challenges. See Complaint at W 7, 11. He therefore has
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`suffered no direct infringement on his own right to vote. Indeed, as our Circuit noted in
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`one of plaintiff’s more recent Electoral College challenges, Gordon “is not injured by the
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`operation of the [eleven] states’ winner-take—all systems because he does not vote in
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`3 Gordon’s previous related lawsuits include: (1) a suit against former Vice President Richard
`Cheney. Gordon v. Cheney, No. 1:05—cv—00006 (HHK) (D.D.C. 2005] (voluntarily dismissed on grounds
`of mootness); (2) a suit against the mayor of the District of Columbia, Gordon v. Williams, No. 1:04—cv—
`01904 (HHK) (D.D.C. 2005) (dismissed for plaintiff’s failure to respond to show cause order); (3) another
`suit against the National Archives and Records Administration, Gordon v. Nat ‘1 Archives and Records
`Administration, No. 1:02—ev—01 551 (TH) (D.D.C.. 2003) (dismissed with prejudice for lack of standing);
`(4) a suit against former Vice President Albert Gore, Gordan v. Gore, No. 1:00—cv—031 12 (RCL) (D.D.C.
`2001) (voluntarily dismissed); (5) a suit against former Senate majority leader Trent Lott, Gordon v.
`Lott, 1:U()~cv—03 087 (RCL) (D.D.C. 2000) (voluntarily dismissed); (6) a suit against former Vice
`President Joseph Biden, Gordon v. Biden, 606 F. Supp. 2d 11, 13 (D.D.C. 2009) (dismissed for lack of
`standing), afl'd 364 F. App’x 651 (DC. Cir. 2010); and (7) a suit against the clerk ofthe United States
`House of Representatives, Gordon v. Haas, 828 F. Supp. 2d 13, 19 (D.D.C. 2011) (dismissed for lack of
`standing).
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`4
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`those states.” Gordon v. Biden, 364 F. App’x 651, 652 (DC. Cir. 2010) (affirming the
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`district court’s dismissal of Gordon’s complaint seeking to enjoin Vice President Joseph
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`Biden from presiding over tabulation of five unbounded electoral states that, by practice,
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`traditionally award presidential electors on a winner-take-all basis); see also Gordon v.
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`Haas, 828 F. Supp. 2d 13, 19 (D.D.C. 2011) (dismissing Gordon’s complaint against the
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`clerk of the United States House of Representatives for lack of Article III standing). As
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`such, plaintiff has not suffered a concrete and particularized injury sufficient to establish
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`Article III standing.
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`Even if plaintiff could show that he suffered a particularized injury-in-fact,
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`however, his theory of causation is fatally flawed because his alleged injury is caused
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`entirely by independent actions of third parties. The Supreme Court has made clear that
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`“the ‘case or controversy’ limitation of Art. 111 still requires that a federal court act only
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`to redress injury that fairly can be traced to the challenged action of the defendant, and
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`not injury that results from the independent action of some third party not before the
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`court.” Simon v. E. Kentucky Welfare Rights Org, 426 US. 26, 41-42 (1976). Here,
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`third party states and state officials decide how to allocate electoral votes; defendants
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`have no role in these decisions. NARA provides information to state governors and
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`election officials regarding the law governing the Electoral College, accepts Certificates
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`of Vote, and reviews those Certificates for any technical deficiencies. See Defs.’ Mot. to
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`Dismiss, at 6. Crucially, the Agency in no way decides how the electoral votes from the
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`eleven unbounded states are allocated, and it has no power to change the way states
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`allocate their electoral votes. Plaintiff therefore has failed to plead facts sufficient to
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`5
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`satisfy Article III’s causation requirement. And this result should come as no surprise to
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`plaintiff, as his 2008 complaint against the Vice President was dismissed for largely the
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`same reasons. Gordon v. Biden, 606 F. Supp. 2d 11, 14 (D.D.C. 2009), afl'd 364 F.
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`App’x 651 (DC. Cir. 2010) (“Because Gordon’s alleged injury is not ‘fairly traceable’ to
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`the Vice President’s actions, which in fact are purely ministerial, but rather is attributable
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`to the actions of third-party states and state officials, he fails to satisfy the causation
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`element of standing”).
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`Therefore, because Gordon has failed to establish an Article III injury, and
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`because his alleged injury is not fairly traceable to defendants’ actions, his claim fails for
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`lack of standing. Accordingly, I need not—and will not—reach the merits of Gordon’s
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`claims. See Steel C0,, 523 US. at 98 (“[There are] two centuries ofjurisprudence
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`affirming the necessity of determining jurisdiction before proceeding to the merits”).
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`For all of the foregoing reasons, plaintiff’s complaint is DISMISSED with prejudice and
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`his motion for a preliminary injunction is DENIED. A separate order consistent with this
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`decision accompanies this Memorandum Opinion.
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`RICHARD J. LEON
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`United States District Judge
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