United States District Court, W.D. Virginia, Charlottesville Division
K. MOON, UNITED STATES DISTRICT JUDGE
matter, in which Robert Schweikert (“Plaintiff”)
challenges the constitutionality of Virginia's selection
of presidential electors, is now before the Court upon
Defendants' Motion to Dismiss, (dkt. 18), filed on
October 26, 2016. A Roseboro Notice was sent to Plaintiff on
that same day, informing Plaintiff that if he did not respond
to the motion within twenty-one days, “the Court may
dismiss the case for failure to prosecute.” (Dkt. 20).
Plaintiff did not directly respond to Defendants' motion,
but he did file an Emergency Motion for Rehearing, (dkt. 22),
as well as a Motion for Recusal, (dkt. 24), the contents of
which responded to some of Defendants' arguments.
Plaintiff is proceeding pro se, the Court will
construe Plaintiff's subsequent motions as responsive to
Defendants' Motion to Dismiss. Accordingly,
Plaintiff's case will not be dismissed for failure to
prosecute. Nevertheless, Defendants' motion will be
granted, and Plaintiff's case will be dismissed because
it fails to state a claim upon which relief can be granted by
this Court. The precise issue contained in Plaintiff's
complaint was previously litigated, dismissed, and affirmed
summarily by the Supreme Court. Williams v. Virginia
State Bd. of Elections, 288 F.Supp. 622 (E.D. Va. 1968)
(3 judge court), aff'd per curiam, 393 U.S. 320
(1969), reh'g denied, 393 U.S. 1112 (1969). This
Court lacks the authority to reach a conclusion that directly
contradicts the Supreme Court's own jurisprudence-which
is precisely what Plaintiff's complaint would ask this
Court to do. Accordingly the case must be dismissed.
motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6) tests the
legal sufficiency of a complaint to determine whether the
plaintiff has properly stated a claim; “it does not
resolve contests surrounding the facts, the merits of a
claim, or the applicability of defenses.”
Republican Party of North Carolina v. Martin, 980
F.2d 943, 952 (4th Cir. 1992). Although a complaint
“does not need detailed factual allegations, a
plaintiff's obligation to provide the ‘grounds'
of his entitle[ment] to relief requires more than labels and
conclusions, and a formulaic recitation of the elements of a
cause of action will not do.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007) (internal citations
need not “accept the legal conclusions drawn from the
facts” or “accept as true unwarranted inferences,
unreasonable conclusions, or arguments.” Eastern
Shore Markets, Inc. v. J.D. Assocs. Ltd. P'ship, 213
F.3d 175, 180 (4th Cir. 2000). “Factual allegations
must be enough to raise a right to relief above the
speculative level, ” Twombly, 550 U.S. at 555,
127 S.Ct. 1955, with all allegations in the complaint taken
as true and all reasonable inferences drawn in the
plaintiff's favor. Chao v. Rivendell Woods,
Inc., 415 F.3d 342, 346 (4th Cir. 2005). Rule 12(b)(6)
does “not require heightened fact pleading of
specifics, but only enough facts to state a claim to relief
that is plausible on its face.” Twombly, 550
U.S. at 570. Consequently, “only a complaint that
states a plausible claim for relief survives a motion to
dismiss.” Ashcroft v. Iqbal, 556 U.S. 662, 679
II of the United States Constitution establishes the basic
parameters by which the President of the United States is
elected by the Electoral College, but it grants considerable
discretion to the states to determine how to select electors.
It states, “Each State shall appoint, in such a Manner
as the Legislature thereof may direct, a Number of Electors .
. . .” U.S. Const. art. II, § 1, cl. 2. Throughout
our nation's history, states have experimented with
different procedures for selecting electors. Methods that
have been used include, but are not limited to: (1) creating
electoral districts, with one Elector chosen by the voters of
each district; (2) selecting electors by congressional
district, with the remaining two electors selected by the
statewide popular vote; (3) selecting electors by
congressional district, with the remaining two electors
chosen by the other electors; (4) tasking the state
legislature with selecting electors; and (5) selecting
electors by statewide popular vote. Today, forty-eight states
use a “winner-take-all” approach. Each state
conducts a statewide election, and the candidate who wins the
plurality of votes in that state sends their entire slate of
electors to the Electoral College.
asks the Court to upend over two centuries of electoral
practice and declare that Virginia's winner-take-all
method for selecting electors, see Va. Code
§§ 24.2-202, 24.2-203, violates the First
Amendment, Fourteenth Amendment, Twelfth Amendment,
Seventeenth Amendment, and the Section 2 of the Voting Rights
Act of 1965. (Dkt. 1 ¶¶ 66, 73, 94, 106). The
general thrust of Plaintiff's voluminous complaint is
that: (1) James Madison, the “father of the
Constitution” preferred a district system for selecting
electors, (id. ¶¶ 10-13); (2) the
Seventeenth Amendment dictates that electors be chosen by the
members of the district they represent, (id. ¶
13); (3) Virginia's winner-take-all system violates
protected First Amendment speech and association rights, as
incorporated through the Fourteenth Amendment, (id.
¶¶ 60- 73); (4) Virginia's winner-take-all
system violates its authority under Article II, (id.
¶¶ 74-78); and (5) Virginia's winner-take-all
system violates the constitutional right to vote, as
discussed in Reynolds v. Sims, 377 U.S. 533, 554-55,
(id. ¶¶ 79-81, 90-110).
existing case law, the Court need not delve too deeply into
the content of Plaintiff's complaint because it does not
create a “plausible claim for relief.”
Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). In
1968, a three-judge panel from the United States District
Court for the Eastern District of Virginia heard a nearly
identical case challenging the constitutionality of
Virginia's winner-take-all system for selecting electors.
Williams v. Virginia State Bd. of Elections, 288
F.Supp. 622 (E.D. Va. 1968) (3 judge court), aff'd
per curiam, 393 U.S. 320 (1969), reh'g
denied, 393 U.S. 1112 (1969). In Williams, the
panel unequivocally declared Virginia's system of
selecting electors constitutional. Williams, 288
F.Supp. at 629 (“Virginia's design for selecting
presidential electors does not disserve the Constitution . .
. .”). The Williams decision was affirmed
per curiam by the United States Supreme Court.
Williams v. Virginia State Bd. of Elections, 393
U.S. 320 (1969), reh'g denied, 393 U.S. 1112
affirmances “prevent lower courts from coming to
opposite conclusions on the precise issues presented and
necessarily decided by those actions.” Mandel v.
Bradley, 432 U.S. 173, 176 (1977). However,
“[s]ummary [decisions] lose their binding force when
‘doctrinal developments' illustrate that the
Supreme Court no longer views a question as unsubstantial,
regardless of whether the Court explicitly overrules the
case.” Bostic v. Schaefer, 760 F.3d 352, 373
(4th Cir. 2014) (quoting Hicks v. Miranda, 422 U.S.
322, 344 (1975)).
Court may not come to “opposite conclusions on the
precise issues presented and necessarily decided” in
Williams. Mandel, 432 U.S. at 176. Because
the Williams decision concerned the precise issues
presented in the instant case-i.e. the
constitutionality of Virginia's winner-take-all system
for selecting electors-any ruling in Plaintiff's favor
would run afoul of Supreme Court precedent. The Court is not
aware of any subsequent Supreme Court decisions that
undermine the validity of Williams. To the contrary,
the Supreme Court has reaffirmed the discretion of state
legislatures to select their own method for selecting
electors. Bush v. Gore, 531 U.S. 98, 104 (2000) (per
curiam) (“[T]he state legislature's power to select
the manner for appointing electors is plenary.” (citing
McPherson v. Blacker, 146 U.S. 1, 35 (1892))).
Accordingly, the Court is not permitted to reach a conclusion
opposite the precise issues presented in Williams,
and Plaintiff fails to state a claim upon which this Court
can grant relief. Defendants' motion to dismiss the case
pursuant to Rule 12(b)(6) must be granted.