On July 28, 2008, plaintiff Asa Gordon of the DC Statehood Green Party filed his ‘Democratization of the Electoral College’ civil action against the manipulation of presidential elections inherent in the malapportionment of Electoral College votes. Background and more information about the lawsuits and Gordon’s strategy can be found at: www.electors.us
On March 26, 2009, the US District Court for the District Columbia issued a ruling that, while dismissing the plaintiff for lack of standing, did not reject the validity of his arguments challenging the Electoral College based on the Mal-Apportionment Penalty clause of the 14th Amendment.
“This, for all intent and purposes, is a profound legal victory for reform of the electoral college to reflect the popular majority will of the American electorate in future presidential elections,” said Mr. Gordon.
The court issued its order (Case 1:08-cv-01 294-HHK) and memorandum opinion on March 26. The ruling dismissed Mr. Gordon as the title plaintiff in the civil action for lack of standing.
But the ruling on Gordon v. Cheney, now Gordon v. Biden, provides a blueprint for future progressive civil actions to reform the Electoral College to reflect the popular vote in presidential elections.
“I am very pleased with the ruling, but unsatisfied to the extent that I plan to appeal what I deem to be the court’s error to deny me personal standing,” said Asa Gordon. “The civil action was not only motivated by my personal standing as an injured voter, but the main objective was to determine the legal viability of the 14th Amendment’s Mal-Apportionment Penalty clause pleaded before the court that would democratize the Electoral College. The court granted the dismissal order predicated on a memorandum opinion that did not reject the constitutional arguments I pleaded before the court.”
The District Court, citing case law precedents, ruled that “a pro se plaintiff… cannot adequately represent the interests of other class members.” The court granted the dismissal motion, stating: “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.”
The court’s memorandum opinion observes that Mr. Gordon “filed this action on July 28, 2008, against Richard Cheney, then the Vice President of the United States (‘Vice President’), in his official 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 US 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’.” Mr. Gordon argued that the Vice President is the only government official who can consummate the miscounting of presidential electors.
Mr. Gordon defended his strategy and standing by noting that he represents a class of voters, having served as a presidential elector for the DC Statehood Green Party in recent elections. Furthermore, he uniquely represents a related class of voters — those from the District of Columbia — who have no Representative or Senator in Congress who can raise an objection when the US Senate confirms a presidential election. Thus his only recourse was to petition the federal court for a remedy.
“Civil actions like Asa Gordon’s represent the best hope for a legal remedy to engineered elections and the breakdown of our democracy. Few people have shown the dedication and perseverence that Asa has. I hope that his Electoral College challenge won’t end with the District Court’s recent decision,” said Cynthia McKinney, the Green Party’s 2008 candidate for President of the United States.
Asa Gordon noted that Rep. John Conyers (D-Mich.), commenting on issues raised in the civil suit on December 8, 2004, said, “This is the most amazing proposition that has ever been brought forward… and if it is accurate it could change the whole outcome of the voting process in the United States, and we will take that under consideration… We, we eagerly embrace your suggestion.”
“The only question that remains is whether the NAACP, ACLU, American Constitution Society, and American Bar Association will now follow the Green Party’s lead on civil actions that will enforce the constitutional provision compelling the Electoral College to reflect the popular vote,” added Mr. Gordon.
Green activists such as Asa Gordon have consistently challenged the Electoral College’s validity as a reflection of the popular will in national elections. The Green Party’s national platform endorses a constitutional amendment abolishing the Electoral College and providing for the direct election of the president by instant runoff voting.