UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

RECORDS ADMINISTRATION,
DAVID S. FERRIERO, and OLIVER
POTTS,

FILED
JuNzo 2017

Clerk. U.S. Dlstrlct & Bankruptcy
Courts for the Dlstrlct of Columbla

ASA GORDON, )
)

Plaintiff, )

)

v. ) Civil Case No. 16-2458 (RJL)

)

)

NATIONAL ARCHIVES AND )
)

)

)

)

)

Defendants.

MEMORANDZ M OPINION

(June J_?, 2017) [# 7]

Pro se plaintiff, Asa Gordon (“Gordon” or “plaintiff’), filed this action against the
National Archives and Records Administration (“NARA” or “the `Agency”) and two of its
officials (collectively, “defendants”) seeking declaratory and injunctive relief from the
Way in Which the Agency runs the Electoral College system. Speciflcally, he contends
that there are eleven states Whose state laws do not require a Winner-take-all allocation of
electoral votes, and therefore the Fourteenth Arnendrnent requires these states to allocate
their electoral votes proportionally, according to the popular vote. This matter is now

before the Court on Defendants’ Motion to Dismiss [Dkt. # 7]. Upon consideration of the

parties’ submissions and the entire record herein, defendants’ motion is GRANTED and
plaintiff’ s case will be DISMISSED with prejudice.I
BACKGROUND

Plaintiff identifies himself as EXecutive Director of the Douglass Institute of
Government, an advocacy think tank. See Complaint at 1 7. He is a U.S. citizen, resident
of the District of Columbia, and voter in the 2016 presidential election. Ia’.; Proposed
Amended Complaint at il l4. Gordon alleges that the allocation of presidential electors
has been unconstitutional in some states since the ratification of the Fourteenth
Amendment. See Complaint at il l(). Speciflcally, he claims that there are eleven
unbounded states,2 and pursuant to 2 U.S.C. § 6, electors in those states must be
apportioned to the presidential candidates based on the percentage of the popular vote
they received. Id. Otherwise, Gordon alleges, these states violate Section 2 of the
Fourteenth Amendment, which penalizes states for abridging the right of citizens to vote
by reducing the number of their Representatives in Congress. Ia’. at il 18 ; U.S. CONST.
amend. XIV, § 2.

To remedy this alleged violation, plaintiff seeks an order requiring that NARA:

(l) inform state governors that the electors must abide by the Fourteenth Amendment

 

' On February lO, 20l7, plaintiff moved for leave to file an amended complaint [Dkt. # 12] in an attempt
to bolster the facts supporting his claim of Article l_ll standing There are no new factual allegations in his
proposed amended complaint, however, that would alter this Court’s ruling on Article Ill standing His
motion is therefore DENIED as moot Plaintifl" also filed a motion to present oral argument for summary
judgment [Dkt. # 2]. Because this l\/lemorandum Opinion dismisses plaintiff’s claim with prej udice, that
motion is also DENIED as moot.

2 Plaintiff identifies these eleven states as: Alabama, Arizona, Georgia, Indiana, lowa, l\/Iichigan, North
Carolina, Pennsylvania, South Carolina, Tennessee, and Wisconsin. See Complaint at il ll.

2

during their December l9 meetings and notify them that reference to Section 2 of the
Fourteenth Amendment should have been included in the information packet sent to
them; and (2) examine the Certificates of Vote to ensure that they comply with plaintiff’s
reading of Section 2 of the Fourteenth Amendment and reject those that do not. See
Complaint at 9.

On January 3, 2017, Gordon filed a motion for a temporary restraining order and
preliminary injunction, seeking to compel defendants to reject Certificates of Vote that
allocate electoral votes on a winner-take-all basis where state law does not so require.
Pl.’s l\/lot. for Temp. Restraining Order and Preliminary lnjunction at il 5. l heard
argument on the motion on January 9, 2017 and denied the motion for a temporary
restraining order as moot. See January 9, 2017 Minute Entry. Plaintiff’s motion for a
preliminary injunction is all that remains.

STANDARD OF REVIEW

Article Ill of the U.S. Constitution restricts federal court jurisdiction to cover only
“cases” and “controversies.” See Lujan v. Defena’ers Of Wildlz'fe, 504 U.S. 555, 559
(1992). The burden is on the party invoking federal jurisdiction to show that he has
standing to sue. ]d. at 56l. To satisfy Article lll’s jurisdictional requirement, a plaintiff
must establish three elements: (l) that he suffered an injury-in-fact that is “concrete and
particularized,” and “actual or imminent, not conjectural or hypothetical”; (2) that there is
a causal connection between the injury and the conduct complained of that is “fairly
traceable” to the action challenged; and (3) that it is likely_as opposed to “merely

speculative”-_that the injury will be redressed by a favorable decision. Id. at 560-61

3

(internal quotation marks and alterations omitted). Because standing is essential to a
federal court’s subject matter jurisdiction, the Court must first determine whether plaintiff
has satisfied Article lll’s standing requirement before examining the merits ofhis
complaint Steel Co. v. Ciz‘izensfor cl Better Env’t, 523 U.S. 83, 98 (1998).
ANALYSIS

The problem for Gordon-among others_is that he has not established an injury
sufficient to satisfy Article lll’s injury-in-fact requirement Plaintiff s constitutional
theory is not a new one_; he has filed at least seven lawsuits substantially similar to this
one` and each has been dismissed, with three dismissed for lack of standing3 But no new
facts alleged in the present complaint alter the fatal shortcomings of his case. Gordon
residcs_and votes-only in Washington, D.C., which is not one of the unbounded states
whose electoral systems he challenges See Complaint at 1111 7, ll. He therefore has
suffered no direct infringement on his own right to vote. lndeed, as our Circuit noted in
one of plaintiffs more recent Electoral College challenges, Gordon “is not injured by the

operation of the [eleven] states’ winner-take-all systems because he does not vote in

 

3 Gordon’s previous related lawsuits include: (l) a suit against former Vice President Richard

Cheney. Go)'n’on v. Cheney, No. l: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 plaintiffs failure to respond to show cause order); (3) another
suit against the National Archives and Records Administration, Gordon v. Nat'l Archl'ves and Records
Aa'ministralion, No. l:02_cv~01551 ('l`PJ) (D.D.C. 2003) (dismissed with prejudice for lack of standing);
(4) a suit against former Vice Presidem Albert Gore, Gor'drm v. Gore, No. l:0Mv-03l 12 (RCl_.) (D.D.C.
2001) (voluntarily dismissed); (5) a suit against former Senate majority leader Trent Lott, Gordon v.

Lotl, l:00~cv-03 087 (RCL) (D.D.C. 2000) (voluntarily dismissed); (6) a suit against former Vice
President Joscpli Biden, Gordon v. B.=`den, 606 F. Supp. 2d ll, 13 (D.D.C. 2009) (dismissed for lack of
standing), ajj"a' 364 F. App’x 651 (D.C. Cir. 2010); and (7) a suit against the clerk ofthe United States
House of Representatives, Gora'on v. Haas, 828 F. Supp. 2d 13, 19 (D.D.C. 2011) (dismissed for lack of

standing).
4

those states.” Gordon v. Biden, 364 F. App’X 651, 652 (D.C. Cir. 2010) (affirming the
district court’s dismissal of Gordon’s complaint seeking to enjoin Vice President Joseph
Biden from presiding over tabulation of five unbounded electoral states that, by practice,
traditionally award presidential electors on a winner-take-all basis); See also Gora’on v.
Haas, 828 F. Supp. 2d 13, 19 (D.D.C. 2011) (dismissing Gordon’s complaint against the
clerk of the United States House of Representatives for lack of Article 111 standing). As
such, plaintiff has not suffered a concrete and particularized injury sufficient to establish
Article 111 standing

Even if plaintiff could show that he suffered a particularized injury-in-fact,
however, his theory of causation is fatally flawed because his alleged injury is caused
entirely by independent actions of third parties. The Supreme Court has made clear that
“the ‘case or controversy’ limitation of Art. 111 still requires that a federal court act only
to redress injury that fairly can be traced to the challenged action of the defendant, and
not injury that results from the independent action of some third party not before the
court.” Sl`mon v. E. Kentucky Welfare Rz`ghts Org., 426 U.S. 26, 41-42 (1976). Here,
third party states and state officials decide how to allocate electoral votes; defendants
have no role in these decisions. NARA provides information to state governors and
election officials regarding the law governing the Electoral College, accepts Certificates
of Vote, and reviews those Certificates for any technical deficiencies See Defs.’ l\/lot. to
Dismiss, at 6. Crucially, the Agency in no way decides how the electoral votes from the
eleven unbounded states are allocated, and it has no power to change the way states

allocate their electoral votes. Plaintiff therefore has failed to plead facts sufficient to

5

satisfy Article 111’s causation requirement And this result should come as no surprise to
plaintiff, as his 2008 complaint against the Vice President was dismissed for largely the
same reasons. Gordon v. Biden, 606 F. Supp. 2d 11, 14 (D.D.C. 2009), ajj"d 364 F.
App’x 651 (D.C. Cir. 2010) (“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, because Gordon has failed to establish an Article 111 injury, and
because his alleged injury is not fairly traceable to defendants’ actions, his claim fails for
lack of standing Accordingly, 1 need not_and will not_reach the merits of Gordon’s
claims. See Steel Co., 523 U.S. at 98 (“[There are] two centuries of jurisprudence
affirming the necessity of determining jurisdiction before proceeding to the merits.”).
For all of the foregoing reasons, plaintiffs complaint is DISMISSED with prejudice and
his motion for a preliminary injunction is DENIED. A separate order consistent with this

decision accompanies this Memorandum Opinion.

l
l/Zl W
RICHARD J. LEON
United States District Judge

