                              UNITED STATES DISTRICT COURT
                              FOR THE DISTRICT OF COLUMBIA


   ROBERT ASA GORDON

                             Plaintiff,

                        v.                             Civil Action 08-01294 (HHK)

   JOSEPH R. BIDEN, Vice President of
   the United States,

                             Defendant.


                                    MEMORANDUM OPINION

       Proceeding pro se, Robert Gordon (“Gordon”) filed this action on July 28, 2008,1 against

Richard Cheney,2 then the Vice President of the United States (“Vice President”), in his official


       1
          Gordon purports to bring this action on “behalf of himself and his derivative
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.”).
       2
          Under Federal Rule of Procedure 25(3)(d), Vice President Joseph R. Biden is
substituted for former Vice President Richard Cheney.
capacity. In anticipation of the then-upcoming presidential election and the role that the Vice-

President would play in the election by presiding over and certifying the official vote count of the

U. S. Electoral College, Gordon sought by this action to prevent the Vice-President “from

presiding over the tabulation of ‘unbound electoral states’ who by practice, unsupported by state

or federal statute, traditionally award Presidential Electors on a ‘winner-take-all basis.’” Compl.

¶ 7.3

        Before the court is the Vice President’s motion to dismiss [#9]. Upon consideration of

the motion, the opposition thereto, and the record of this case, the court concludes that the

motion should be granted.

                                                   I.

        Gordon identifies himself as “Founder and Executive Director of the Douglass Institute of

Government, registered voter of the District of Columbia, Presidential Elector, and Chair, DC

Statehood Green Party Electoral College Task Force.” ¶ 2. He alleges that the state laws of

Arkansas, Georgia, Louisiana, Tennessee, and Texas allow their presidential electors to “award

all of their unbounded presidential electors by ‘winner take all’ provisions not based in any state

or federal law but predicated on the majority choice of its white citizens.” ¶ 10.4 As a result,

“these states have in effect disenfranchised the citizen’s [sic] of the state that voted for the

presidential electors pledged to the candidate with less then [sic] the popular majority vote,” ¶ 8,

who Gordon alleges are the states’ black citizens, ¶ 10.

        3
            Unless otherwise specified, “¶” refers to a paragraph of plaintiff’s complaint [#1].
        4
          For the purpose of this motion to dismiss, the court “ must accept as true all of the
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)).

                                                   2
           Gordon contends that “in choosing from the unbounded electoral states to represent to

congress the ‘certificates of vote’ under ‘winner take all’ provisions, wherein there exist no

constitutional or state statutory authority allowing only the selective counting of majority polled

state electoral votes,” the Vice President “will deprive presidential electors of their

constitutionally protected rights under the First and Fourteenth Amendments to the U.S.

Constitution.” ¶ 12.

           Gordon seeks declaratory and injunctive relief enjoining the Vice President from

“effecting the counting of the full slate of presidential electors,” Compl. Prayer for Relief ¶ 1,

and performing “any presumptive tabulation of ‘winner take all’ electors from states that have no

‘winner take all’ state in the electoral count,” id. ¶ 3, as well as requiring the Vice President to

reduce “the number of State electors and representatives in congress in proportion to the

disenfranchised class of U.S. Citizens whose voting rights were denied and/or abridged or in the

alternative effect proportional apportionment of the counting of the electoral votes in congress”

id. ¶ 2.

                                                  II.

           A party who brings an action in federal court bears the burden of demonstrating that he

has standing to do so. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992). In order to

have standing, a plaintiff must show that he suffers “(1) a ‘concrete and particularized’ ‘injury in

fact’ that is (2) fairly traceable to the defendant's alleged unlawful conduct and that is (3) likely to

be redressed by a favorable decision.” Hein v. Freedom From Religion Found., Inc., 127 S. Ct.

2553, 2574 (2007) (quoting Lujan, 504 U.S. at 560-61 (1992)). The Vice President moves to

dismiss Gordon’s complaint pursuant to Rule 12(b)(1) and Rule 12(b)(6) on the grounds that

                                                   3
Gordon does not and cannot bear his burden with respect to any of the elements required for a

showing of standing. The Vice President’s motion is granted because, assuming that Gordon has

sufficiently plead an injury in fact, the alleged injury is not fairly traceable to the Vice President’s

allegedly unlawful conduct.5

        Gordon asserts a constitutional interest by virtue of section 2 of the Fourteenth

Amendment to protect an interest of his own and of persons similarly situated. His alleged

injury-in-fact is the diminishment of the votes of electors and registered voters “by including the

full slate of Presidential Electors in the electoral count of January 6th, 2009 from states subject to

2USC§6 [sic],” ¶ 15, and “by the denial and/or abridgement of Presidential Electors that

represent their candidate in unbound states wherein there is no state election law that explicitly

allocates that states[’] electors on a ‘winner take all’ basis.” ¶ 16. The court understands this

allegation to mean that his vote as an elector and registered voter, as well as that of all other

electors and registered voters, would be diluted by electoral votes from states in which electors

vote for whichever candidate wins the popular vote (under so-called “winner take all” laws)

rather than voting for candidates in the proportion of votes they win.

        The problem for Gordon, among others, is that his claims are predicated on allegations of

wrongdoing by third parties. In determining whether a plaintiff has shown the “causation” or


        5
           Since standing is an indispensable part of the plaintiff's case, it must be supported in the
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.

                                                   4
“traceability” element of the showing required to demonstrate standing, the court “examines

whether it is substantially probable that the challenged acts of the defendant, not of some absent

third party, will cause the particularized injury of the plaintiff.” Microwave Acquisition Corp. v.

FCC, 145 F.3d 1410, 1412 (D.C. Cir. 1998) (quoting Florida Audubon Soc'y v. Bentsen, 94 F.3d

658, 663 (D.C. Cir. 1996) (en banc)). Here, Gordon alleges that “State Officials” “de facto deny

and/or abridge ‘citizens of the United States’ in the exercise of their ‘right to vote . . . for the

choice of electors for President and Vice-President of the United States’ on the basis of race

and/or party affiliation in violation of the ‘equal protection’ clause of the first section of the

Fourteenth Amendment.” ¶ 9. Gordon also contends that by “award[ing] all of their unbounded

presidential electors by ‘winner take all’ provisions not based in any state or federal law but

predicated on the majority choice of its white citizens,” the five states thereby “de-facto

disenfranchise those electors of the state based on the votes of the states[’] black citizens.” ¶ 10.

Because Gordon’s alleged injury is not “fairly traceable” to the Vice President’s actions, which in

fact are purely ministerial, but rather is attributable to the actions of third-party states and state

officials, he fails to satisfy the causation element of standing. Therefore, he is unable to

prosecute this action.




                                                    5
                                              III.

       For the foregoing reasons, the court finds that defendant’s motion to dismiss [#9] should

be GRANTED, and [#3] Plaintiff’s Motion for Temporary Restraining Order and Preliminary

Injunction, [#13] Plaintiff’s Motion to Present Oral Argument for Summary Judgment, and [#19]

Plaintiff’s Augmented Motion for Summary Judgment should be DENIED as moot. An

appropriate order accompanies this memorandum opinion.



                                                     Henry H. Kennedy, Jr.
                                                     United States District Judge




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