                           NOT FOR PUBLICATION                            FILED
                    UNITED STATES COURT OF APPEALS                        MAY 15 2020
                                                                      MOLLY C. DWYER, CLERK
                                                                        U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

CITIZENS FOR FAIR                               No.    18-17458
REPRESENTATION; et al.,
                                                D.C. No.
                Plaintiffs-Appellants,          2:17-cv-00973-KJM-DMC

 v.
                                                MEMORANDUM*
ALEX PADILLA, Secretary of State of
California,

                Defendant-Appellee.

                  Appeal from the United States District Court
                      for the Eastern District of California
               Kimberly J. Mueller, Chief District Judge, Presiding


                            Submitted March 6, 2020**
                             San Francisco, California

Before: WARDLAW, M. SMITH, and BUMATAY, Circuit Judges.

      Plaintiff-Appellants (“Plaintiffs”) appeal the district court’s order denying

their request for a three-judge court and dismissing their Second Amended



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Complaint (SAC) for lack of standing and justiciability. We have jurisdiction

under 28 U.S.C. § 1291. We review de novo a district court’s legal conclusions,

including its decision to dismiss for lack of jurisdiction. See United States ex rel.

Hartpence v. Kinetic Concepts, Inc., 792 F.3d 1121, 1126 (9th Cir. 2015) (en

banc). We affirm.

      The California Constitution limits the number of senators to 40 and the

number of assembly members to 80. Cal. Const. art. IV, § 2. Plaintiffs allege that

this constitutional cap violates the Equal Protection Clause, the Due Process

Clause, and the First Amendment of the United States Constitution.1

      To demonstrate standing, a plaintiff must plausibly plead facts to
      establish the following “three elements”: (1) that he ‘suffered an injury
      in fact,’ (2) that there is “a causal connection between the injury and
      the conduct complained of,” and (3) that it is “likely, as opposed to
      merely speculative, that the injury will be redressed by a favorable
      decision.”

Dutta v. State Farm Mut. Auto. Ins. Co., 895 F.3d 1166, 1173 (9th Cir. 2018)

(quoting Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–61 (1992) (citations

omitted)).

   1. In the SAC, Plaintiffs allege that the large and growing size of California’s

electoral districts are “dilut[ing],” “devalu[ing],” or otherwise rendering ineffective



      1
        Plaintiffs concede that their claim under the Constitution’s Guarantee
Clause, U.S. Const. art. IV § 4, is nonjusticiable. See Murtishaw v. Woodford, 255
F.3d 926, 961 (9th Cir. 2001). Thus, we do not address that claim further.

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the votes of a “significant percentage of California voters,” as well as the votes of

non-white Californians in particular, all in violation of the Equal Protection Clause.

However, the growing size of California’s electoral districts values—or in

Plaintiffs’ view, devalues—every vote equally. It is also equally true that no vote

has greater or lesser weight on the basis of race. Cf. Cal. Const. art. XXI, § 2(d)(2)

(requiring California to design its electoral districts in compliance with the federal

Voting Rights Act). Because the Supreme Court has “consistently held that a

plaintiff raising only a generally available grievance . . . does not state an Article

III case or controversy,” Lance v. Coffman, 549 U.S. 437, 439 (2007) (quoting

Lujan, 504 U.S. at 573–74), Plaintiffs lack standing to pursue this claim.

   The Supreme Court’s decision in Federal Election Commission v. Akins, 524

U.S. 11 (1998), is not to the contrary. In Akins, the Court explained that a plaintiff

may establish Article III standing to bring a suit regarding a harm that is “widely

shared” so long as that harm is “concrete and specific.” Id. at 24–25. The Court

noted that this might be feasible “where large numbers of voters suffer interference

with voting rights conferred by law.” Id. at 24 (emphasis added). That language

referred to Shaw v. Hunt, 517 U.S. 899, 905 (1996), which found a cognizable

injury where voters were personally assigned to voting districts on the basis of

race—a violation of the guarantee of equal protection. Id. Because neither state

nor federal law guarantees to each voter a certain minimum influence on the


                                           3
outcome of the election, Plaintiffs cannot plausibly allege that California’s large

electoral districts interfere with any legally-conferred voting rights. Thus, unlike

Akins, Plaintiffs are unable to allege a concrete and specific injury that would

allow them to challenge the size of California’s electoral districts on the grounds

alleged.

   2. Relatedly, Plaintiffs claim that California’s constitutional cap was enacted

for the purpose of discriminating on the basis of race in violation of the Equal

Protection Clause. As support, they cite Shaw v. Reno, 509 U.S. 630 (1993), and

other racial gerrymandering cases to suggest they can establish standing for this

claim on the theory that Plaintiffs have been denied their right to a vote of weight

equal to that of other citizens on the basis of race. Even if they have pled facts

tending to show that some provisions of the California Constitution were enacted

with racially discriminatory purpose, they have not plausibly alleged that Article

IV, Section 2 was drafted with this intent. Furthermore, as noted above, they have

not adequately alleged that some votes are weighted less than others based on race.

Therefore, Plaintiffs lack standing to pursue this claim as well.

   We conclude further that Plaintiffs lack standing for their related claim that the

legislative caps in the California Constitution are maintained with discriminatory

purpose in violation of the Equal Protection Clause. Plaintiffs offer nothing more

than speculative and conclusory allegations about how some unknown legislators


                                          4
might react to a future proposal to amend the cap at some unknown point in time,

and the alleged resulting racially discriminatory impact of a refusal to amend the

cap.

   3. Next, Plaintiffs allege that the large size of California’s electoral districts

harms them by diminishing their ability to influence their representatives in the

legislature in violation of the Equal Protection Clause, the Due Process Clause, and

the First Amendment. This injury is too “abstract and indefinite” to establish

standing. See Akins, 524 U.S. at 23 (citation omitted) (suggesting that a concern

like a “common concern for obedience to law” was too abstract to establish

standing). Even if this were not the case, Plaintiffs have failed to “plausibly plead

facts” to establish a “causal connection” between the size of California’s electoral

districts and the undue influence of a small political elite. Dutta, 895 F.3d at 1173

(citation omitted). As the SAC suggests, a political elite was firmly entrenched in

power in 1879 when Article IV, Section 2 was first adopted—and electoral districts

had far fewer people then. The SAC does not plausibly explain how increasing the

number of people in electoral districts has further entrenched this political elite

more than 140 years later.2




       2
        Plaintiff Baird also lacks standing to pursue his First Amendment claim
because he fails to show any causal connection between his termination from his
job and the constitutional cap on the number of electoral districts in California.

                                           5
   4. Finally, Plaintiffs try to salvage the SAC by suggesting that because they

sought to proceed under 28 U.S.C. § 2284, they have a lower bar to establish

standing. However, “[a] three-judge court is not required where the district court

itself lacks jurisdiction of the complaint.” Shapiro v. McManus, 136 S. Ct. 450,

455 (2015) (quoting Gonzales v. Automatic Emp. Credit Union, 419 U.S. 90, 100

(1974)). Because the district court lacked jurisdiction to hear Plaintiffs’ claims

under Article III, it properly denied their request for a three-judge court and

dismissed their claims.

   5. In light of the foregoing, we need not address whether Plaintiff’s claims

present a political question beyond our jurisdiction.

   AFFIRMED.




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