Paul Rodriguez v. Gavin Newsom ( 2020 )


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  •                     FOR PUBLICATION
    UNITED STATES COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    PAUL RODRIGUEZ; ROCKY CHAVEZ;                   No. 18-56281
    LEAGUE OF UNITED LATIN
    AMERICAN CITIZENS; CALIFORNIA                     D.C. No.
    LEAGUE OF UNITED LATIN                         2:18-cv-01422-
    AMERICAN CITIZENS,                                CBM-AS
    Plaintiffs-Appellants,
    v.                            OPINION
    GAVIN NEWSOM, * in his official
    capacity as Governor of the State of
    California; ALEX PADILLA, Secretary
    of State of California, in his official
    capacity as Secretary of State of the
    State of California
    Defendants-Appellees.
    Appeal from the United States District Court
    for the Central District of California
    Consuelo B. Marshall, District Judge, Presiding
    Argued and Submitted March 3, 2020
    Pasadena, California
    *
    Gavin Newsom is substituted for his predecessor, Edmund G.
    Brown, Jr., as Governor of the State of California. Fed. R. App. P.
    43(c)(2).
    2                    RODRIGUEZ V. NEWSOM
    Filed September 8, 2020
    Before: Consuelo M. Callahan and Jacqueline H. Nguyen,
    Circuit Judges, and Dana L. Christensen, ** District Judge.
    Opinion by Judge Nguyen
    SUMMARY ***
    Civil Rights
    The panel affirmed the district court’s dismissal of a
    complaint which alleged that California’s winner-take-all
    approach to selecting its presidential electors violates the
    equal protection and First Amendment rights of California
    residents who, like appellants, usually do not vote for the
    State’s popular vote winner and thus enjoy no representation
    among the State’s electors.
    The panel held that appellants’ equal protection
    challenge was foreclosed by Williams v. Virginia State
    Board of Elections, a decades-old opinion that was
    summarily affirmed by the U.S. Supreme Court. 
    288 F. Supp. 622
     (E.D. Va. 1968), aff’d, 
    393 U.S. 320
     (1969), reh’g
    denied, 
    393 U.S. 1112
     (1969). The panel joined the three
    sister circuits to have considered the issue in holding that,
    under Williams, a State’s use of the winner-take-all approach
    **
    The Honorable Dana L. Christensen, United States District Judge
    for the District of Montana, sitting by designation.
    ***
    This summary constitutes no part of the opinion of the court. It
    has been prepared by court staff for the convenience of the reader.
    RODRIGUEZ V. NEWSOM                       3
    (WTA) to select its presidential electors is consistent with
    the Constitution’s guarantee of equal protection. The panel
    rejected appellants’ arguments that post-Williams cases
    involving multimember districts raised doubts regarding
    Williams’s continued viability, or that Gray v. Sanders, 
    372 U.S. 368
    , 381 (1963), a Supreme Court case that predated
    Williams, controlled rather than Williams.
    The panel held that appellants failed to plausibly allege
    that California’s use of WTA to select presidential electors
    violates the First Amendment.            The panel rejected
    appellants’ contentions that the WTA system burdened their
    right to cast their votes effectively, to associate with like-
    minded voters across the State, and to petition their
    government and associate with the candidates of their
    choice. Moreover, the panel held that even assuming
    appellants had plausibly alleged the State’s use of WTA
    imposed some minimal burden, their claims would still fail.
    Any burden was—at most—minimal, and California had
    identified an important interest: maximizing the impact of
    the State’s electors within the Electoral College.
    COUNSEL
    David Boies (argued), Boies Schiller Flexner LLP, Armonk,
    New York; James P. Denvir III, Amy J. Mauser, Karen L.
    Dunn, Lisa Barclay, Amy L. Neuhardt, Hamish P.M. Hume,
    and Katherine M. Cheng, Boies Schiller Flexner LLP,
    Washington, D.C.; Trevor P. Stutz, Boies Schiller Flexner
    LLP, Los Angeles, California; Luis Roberto Vera Jr.,
    LULAC National General Counsel, Law Offices of Luis
    Vera Jr., San Antonio, Texas; Jennier D. Hackett, James R.
    Martin, and Allison M. Vissichelli, Zelle LLP, Washington,
    D.C.; David H. Fry and J. Max Rosen, Munger Tolles &
    4                 RODRIGUEZ V. NEWSOM
    Olson LLP, San Francisco, California; Michael B.
    Desanctis, Munger Tolles & Olson LLP, Washington, D.C.;
    Scott A. Martin, Irving Scher, and Jeanette Bayoumi,
    Hausfeld LLP, New York, New York; Michael D. Hausfeld
    and Swathi Bojedla, Hausfeld LLP, Washington, D.C.;
    Samuel Issacharoff, New York, New York; Mark Guerrero
    and Mary Whittle, Guerrero & Whittle PLLC, Austin,
    Texas; Randall L. Allen, Alston & Bird LLP, Atlanta,
    Georgia; Maria Amelia Calaf, Jack A. Simms Jr., Ryan A.
    Botkin, Katherine P. Chiarello, Karen S. Vladeck, and W.
    Reid Wittliff, Wittliff Cutter Austin PLLC, Austin, Texas;
    for Plaintiffs-Appellants.
    P. Patty Li (argued), Deputy Attorney General; Paul Stein,
    Supervising Deputy Attorney General; Thomas S. Patterson,
    Senior Assistant Attorney General; Xavier Becerra,
    Attorney General; Office of the Attorney General, San
    Francisco, California; for Defendants-Appellees.
    OPINION
    NGUYEN, Circuit Judge:
    The State of California, like forty-seven other States and
    the District of Columbia, employs a winner-take-all
    (“WTA”) approach to selecting its presidential electors.
    Under this system, the State awards all of its electors to the
    political party of the popular vote winner in the State,
    regardless of relative vote share. Appellants, a coalition of
    voters in California, appeal the district court’s dismissal of
    their lawsuit. They allege that WTA violates the equal
    protection and First Amendment rights of California
    residents who, like them, usually do not vote for the State’s
    RODRIGUEZ V. NEWSOM                            5
    popular vote winner and thus enjoy no representation among
    the State’s electors.
    Appellants’ equal protection challenge is foreclosed by
    Williams v. Virginia State Board of Elections, a decades-old
    opinion that was summarily affirmed by the U.S. Supreme
    Court. 
    288 F. Supp. 622
     (E.D. Va. 1968), aff’d, 
    393 U.S. 320
     (1969), reh’g denied, 
    393 U.S. 1112
     (1969)
    (“Williams”). We join our three sister circuits to have
    considered the issue 1 in holding that, under Williams, a
    State’s use of WTA to select its presidential electors is
    consistent with the Constitution’s guarantee of equal
    protection. We also conclude that Appellants have failed to
    plausibly allege that California’s use of WTA to select
    presidential electors violates the First Amendment. We
    therefore affirm.
    I.
    A.
    Article II of the U.S. Constitution provides that “[e]ach
    State shall appoint, in such Manner as the Legislature thereof
    may direct, a Number of Electors, equal to the whole
    Number of Senators and Representatives to which the State
    may be entitled in the Congress . . . .” U.S. Const. art. II,
    § 1, cl. 2. “Article II, § 1’s appointments power gives the
    States far-reaching authority over presidential electors,
    absent some other constitutional constraint.” Chiafalo v.
    Washington, 
    140 S. Ct. 2316
    , 2324 (2020). The Twelfth
    Amendment adds that the electors “shall meet in their
    1
    Baten v. McMaster, 
    967 F.3d 345
     (4th Cir. 2020); Lyman v. Baker,
    
    954 F.3d 351
     (1st Cir. 2020); League of United Latin Am. Citizens v.
    Abbott, 
    951 F.3d 311
     (5th Cir. 2020).
    6                     RODRIGUEZ V. NEWSOM
    respective states and vote by ballot for President and Vice-
    President . . . .” U.S. Const. amend. XII.
    California, like all but two states, 2 awards all of its
    electors to the party of the candidate who wins the popular
    vote in the State. See California Elections Code §§ 6901,
    6902, 6906, 15400, 15452, 15505. We are asked to decide
    whether this method for selecting electors—WTA—is
    constitutional.
    B.
    Appellants are self-identified Republican and third-party
    voters in California. They sued then-Governor of California
    Jerry Brown and California Secretary of State Alex Padilla
    (collectively “California” or “the State”), contending that the
    State’s use of WTA infringes their “constitutional right to an
    equal vote in the presidential election.” Their core theory is
    that WTA “counts votes for a losing presidential candidate
    . . . only to discard them in determining [e]lectors who cast
    votes directly for the presidency.” They allege that in so
    doing, WTA “unconstitutionally magnifies the votes of a
    bare plurality of voters by translating those votes into an
    entire slate of” electors “while, at the same time, the votes
    cast for all other candidates are given no effect.” This,
    according to Appellants, violates the principle of “one
    person, one vote.” Appellants further contend that WTA
    burdens various First Amendment rights.
    The district court dismissed Appellants’ complaint with
    prejudice, holding that their equal protection challenge was
    2
    In Maine and Nebraska, “two electors go to the winner of the
    statewide vote and one goes to the winner of each congressional district.”
    Chiafalo, 140 S. Ct. at 2321 n.1.
    RODRIGUEZ V. NEWSOM                         7
    “foreclosed by” McPherson v. Blacker, 
    146 U.S. 1
     (1892),
    and Williams. Williams, it noted, held that “a state’s
    selection of presidential electors on a ‘winner take all basis’
    does not violate the ‘one person, one vote’ principle of the
    Fourteenth Amendment because ‘[i]n the selection of
    electors, the [winner take all] rule does not in any way
    denigrate the power of one citizen’s ballot and heighten the
    influence of another’s vote.’” The district court further
    determined that Williams also foreclosed Appellants’ First
    Amendment claims.
    II.
    We review de novo the district court’s dismissal of a
    complaint alleging a violation of constitutional rights. See
    United States v. Adams, 
    388 F.3d 708
    , 710 (9th Cir. 2004).
    To survive a Federal Rule of Civil Procedure 12(b)(6)
    motion to dismiss, the complaint must “contain sufficient
    factual matter, accepted as true, to state a claim to relief that
    is plausible on its face.” Sheppard v. David Evans & Assoc.,
    
    694 F.3d 1045
    , 1048 (9th Cir. 2012) (citation omitted).
    III.
    A.
    The Constitution does not prescribe how States select
    electors. To the contrary, it “conceded plenary power to the
    state legislatures in the matter . . . .” McPherson, 
    146 U.S. at 35
    ; see also 
    id. at 27
     (explaining the Constitution
    “recognizes that the people act through their representatives
    in the legislature, and leaves it to the legislature exclusively
    to define the method of effecting the object”). But a State’s
    method for selecting electors must comport with equal
    protection principles. Chiafalo, 140 S. Ct. at 2324 n.4; cf.
    McPherson, 
    146 U.S. at 40
     (concluding that “no
    8                     RODRIGUEZ V. NEWSOM
    discrimination is made” in a system for selecting electors
    where “each citizen has an equal right to vote”); see also
    Williams v. Rhodes, 
    393 U.S. 23
    , 29 (1968) (“Rhodes”).
    Equal protection requires, “as nearly as is practicable,”
    that one person’s vote “be worth as much as another’s.”
    Wesberry v. Sanders, 376 U.S 1, 7–8 (1964); see also Gray
    v. Sanders, 
    372 U.S. 368
    , 381 (1963) (describing the
    principle of “one person, one vote”). However, “[i]t hardly
    follows . . . that a person is entitled to have his political party
    achieve representation in some way commensurate to its
    share of statewide support.” Rucho v. Common Cause,
    
    139 S. Ct. 2484
    , 2501 (2019). 3 “[E]ach vote must carry
    equal weight”—but “[t]hat requirement does not extend to
    political parties.” 
    Id.
     That is, it is not required “that each
    party . . . be influential in proportion to its number of
    supporters.” 
    Id.
    B.
    Over a century ago, the Supreme Court considered an
    equal protection challenge to a Michigan law providing for
    the selection of electors by district. McPherson, 
    146 U.S. at 24
    . The Court rejected the challenge, 
    id.
     at 27–36, but it
    did not opine on any other system for selecting electors, see
    Williams, 
    288 F. Supp. at 626
     (explaining McPherson “did
    no[] more than hold permissible and valid Michigan’s
    determination to select electors by districts”). McPherson
    thus does not weigh heavily in our analysis.
    3
    Rucho involved the application of the “one-person, one-vote”
    principle to partisan gerrymandering claims. Although factually
    inapposite, the case offers an instructive explication of the “one-person,
    one-vote” principle.
    RODRIGUEZ V. NEWSOM                        9
    But Williams does. The plaintiffs in Williams challenged
    a Virginia law providing that “all of the State’s electors
    [were to be] collectively chosen . . . by the greatest number
    of votes cast throughout the entire State . . . .” 
    Id. at 623
    .
    The ballot included “the name of each political party and the
    nominees thereof for President and Vice President,” as well
    as “the names of [each] party’s elector candidates . . . .” It
    “permit[ted] a voter to vote only for one or another political
    party, and thus for the party’s nominees for President and
    Vice President.” And a “vote cast [for a given party] . . .
    constitute[d] . . . one vote for each of the 12 electors listed
    thereon under the name of th[at] party and its nominees.”
    Thus, all of the State’s electors were selected—as a group—
    according to the popular vote in the State, and all of the
    electors represented one political party.
    The plaintiffs argued that the law was unconstitutional
    “because it g[ave] the choice of all of the electors to the
    statewide plurality of those voting in the election—‘winner
    take all’—and accord[ed] no representation among the
    electors to the minority of the voters.” 
    Id.
     This “general
    ticket” method, according to the plaintiffs, “violate[d] the
    ‘one-person, one-vote’ principle of the Equal Protection
    Clause . . . .” 
    Id. at 624
    .
    The three-judge panel disagreed. Virginia’s use of WTA
    did not “come within the brand of” the Supreme Court’s
    “one-person, one-vote” decisions because the “system [wa]s
    but another form of the unit rule,” which is not “offensive to
    the Constitution.” 
    Id.
     at 626–27 (noting the election of the
    president by the House when no majority is obtained in the
    electoral college is by unit); see also 
    id. at 628
     (quoting
    Wesberry, 376 U.S at 7) (explaining it had previously held
    constitutional the practice of electing members of the House
    10                RODRIGUEZ V. NEWSOM
    as a unit, whereby “two or more or all are running at large,
    that is statewide”).
    The court acknowledged “possible objectionable results”
    from the use of WTA, including that “as much as 49 percent
    of a State’s voters may see the portion of its electoral votes
    attributable to them cast for a candidate whom they oppose,”
    thus “wast[ing]” their votes. 
    Id. at 627
    . But any
    “deprivations imposed by the unit rule” did not “equate . . .
    with the denial of privileges outlawed by the one-person,
    one-vote doctrine or banned by Constitutional mandates of
    protection”:
    In the selection of electors the rule does not
    in any way denigrate the power of one
    citizen’s ballot and heighten the influence of
    another’s vote.        Admittedly, once the
    electoral slate is chosen, it speaks only for the
    element with the largest number of votes.
    This in a sense is discrimination against the
    minority voters, but in a democratic society
    the majority must rule, unless the
    discrimination is invidious. No such evil has
    been made manifest here. Every citizen is
    offered equal suffrage and no deprivation of
    the franchise is suffered by anyone.
    
    Id.
    The court also explained that Virginia’s use of WTA was
    “grounded on what ha[d] historically been deemed to her
    best interests in the workings of the electoral college.” 
    Id. at 628
    . Faced with a choice of “appointing electors in a
    manner [that would] fairly reflect the popular vote” or
    “allow[ing] the majority to rule and thereby maximize the
    impact of Virginia’s 12 electoral votes,” Virginia chose the
    RODRIGUEZ V. NEWSOM                      11
    latter. 
    Id.
     And in the court’s view, the decision was “[]not
    . . . unwise[].” 
    Id.
     In sum, the Virginia law “d[id] not
    disserve the Constitution . . . .” 
    Id. at 629
    .
    Williams’s applicability is obvious: like Virginia did,
    California awards all of its electors to the party of the
    candidate who wins the popular vote in the State. Appellants
    raise an equal protection challenge, contending WTA
    “discard[s]” the “votes for a losing presidential candidate”
    in the selection of electors. Cf. 
    id. at 627
     (considering the
    argument that WTA in Virginia “wasted” the votes “cast for
    a loser”). Appellants concede that Williams “addressed an
    argument similar to [Appellants’] vote dilution argument
    here.”
    That Williams was affirmed by the Supreme Court in
    summary fashion does not obviate its binding effect here, as
    summary affirmances “prevent lower courts from coming to
    opposite conclusions on the precise issues presented and
    necessarily decided.” Mandel v. Bradley, 
    432 U.S. 173
    , 176
    (1977); United States v. Blaine County, Montana, 
    363 F.3d 897
    , 904 (9th Cir. 2004) (explaining the “Supreme Court’s
    summary affirmances bind lower courts”). Indeed, after the
    Court summarily affirms a lower court decision declaring a
    law unconstitutional, “other courts [are] not free to conclude
    that the [law] invalidated [is] nevertheless constitutional.”
    Mandel, 
    432 U.S. at 176
    . The same is surely true, too, for
    laws declared to be constitutional.
    The Supreme Court’s summary affirmance of Williams
    thus controls—unless “subsequent developments suggest
    otherwise” or this case does not involve the “precise issues
    presented and necessarily decided” in Williams. Id.; Blaine
    County, 
    363 F.3d at 904
    . Appellants argue that both
    exceptions apply. We disagree.
    12                   RODRIGUEZ V. NEWSOM
    C.
    1.
    Appellants argue that post-Williams cases involving
    multimember districts raise doubts regarding Williams’s
    continued viability. 4    They suggest that California’s
    presidential election can be viewed as an election for fifty-
    five electors who constitute a multimember (state-level)
    body. And under this view, according to Appellants, WTA
    violates Appellants’ equal protection rights by diluting their
    votes.
    Appellants rely on White v. Regester, a case in which the
    Supreme Court affirmed a judgment invalidating certain
    multimember districts, for the proposition that a state cannot
    “cancel out or minimize the voting strength” of minority
    voters. 
    412 U.S. 755
    , 765 (1973); see also Burns v.
    Richardson, 
    384 U.S. 73
    , 88 (1966).
    But Appellants oversimplify the standard. In White, the
    Court explained that “multimember districts are not per se
    unconstitutional . . . .” 
    412 U.S. at 765
    . Rather, they are
    unconstitutional only when “used invidiously to cancel out
    or minimize the voting strength” of a minority group. 
    Id.
    (emphasis added). Further, “it is not enough that the
    [minority] group . . . has not had legislative seats in
    proportion to its voting potential.” 
    Id.
     at 765–66. The group
    must “produce evidence . . . that the political processes
    leading to nomination and election were not equally open to
    participation by the group”—“that its members had less
    opportunity than did other residents in the district to
    4
    A multimember district is a district in which multiple candidates
    are elected to represent the district, usually based on plurality voting.
    RODRIGUEZ V. NEWSOM                               13
    participate in the political processes and to elect legislators
    of their choice.” 5 
    Id. at 766
     (emphases added).
    This case does not directly fall within the ambit of White
    because Appellants have not alleged invidious
    discrimination. What they have alleged is that their votes are
    impermissibly diluted because they do not enjoy
    proportional representation among the State’s electors—but
    that is “not enough.” 
    Id.
     at 765–66; see also Whitcomb v.
    Chavis, 
    403 U.S. 124
    , 160 (1971) (“[W]e are unprepared to
    hold that district-based elections decided by plurality vote
    are unconstitutional in . . . multi-member districts simply
    because the supporters of losing candidates have no
    legislative seats assigned to them.”).
    Further, any discrimination inherent in WTA is not
    invidious because “[e]very citizen is offered equal suffrage
    and no deprivation of the franchise is suffered by anyone.”
    Williams, 
    288 F. Supp. at 627
    . Thus, even if the selection of
    California’s electors could be framed as the election of a
    multimember district and post-Williams multimember
    district cases constituted a “subsequent development,” 6 the
    cases would not undermine Williams.
    5
    The Court relied on a plethora of findings regarding “the history of
    official racial discrimination in Texas.” 
    Id.
     at 766–69 (noting that
    “Mexican-Americans in Texas . . . had long ‘suffered from, and
    continue[d] to suffer from, the results and effects of invidious
    discrimination and treatment in the fields of education, employment,
    economics, health, politics and others’” (citation omitted)).
    6
    We do not generally “conclude [the Supreme Court’s] more recent
    cases have, by implication, overruled an earlier precedent.” Agostini v.
    Felton, 
    521 U.S. 203
    , 237 (1997). If Court precedent “has direct
    application in a case, yet appears to rest on reasons rejected in some other
    line of decisions, [we] should follow the case which directly controls,
    14                  RODRIGUEZ V. NEWSOM
    Another purported “subsequent development” is that
    federal law has changed since Williams regarding “unit”
    voting for members of the House. As discussed above, see
    supra Part III.B., in Wesberry the Supreme Court affirmed
    the constitutionality of voting for representatives by unit.
    Williams, 
    288 F. Supp. at 628
    . The Williams court found it
    “notable that Congress . . . ha[d] [also] . . . countenanced”
    the practice. 
    Id.
     Appellants point out that Congress has
    since changed the law to require that states use single-
    member districts for congressional elections. See 2 U.S.C.
    § 2c. This is correct but the change in law is immaterial to
    the constitutionality of unit voting.
    The last “subsequent development” is a purported
    doctrinal shift toward eliminating the requirement of
    invidiousness. Appellants argue the Supreme Court has
    “clarified that, although invidiousness may be relevant to
    certain challenges, . . . there are electoral systems that are
    sufficiently arbitrary in their treatment of voters that no
    showing of invidiousness is required.” See Bush v. Gore,
    
    531 U.S. 98
    , 104–05 (2000)). The Bush Court found an
    equal protection violation due to “arbitrary and disparate
    treatment”; it did not discuss whether the discrimination was
    “invidious.” 
    Id.
    We are not persuaded. First, the precedential value of
    Bush is limited. See 
    id. at 109
     (“Our consideration is limited
    to the present circumstances . . . .”). Second, it is unlikely
    the Court would have silently changed a fundamental feature
    of its voting rights equal protection jurisprudence. See
    Shalala v. Ill. Council on Long Term Care, Inc., 
    529 U.S. 1
    ,
    leaving to [the Supreme] Court the prerogative of overruling its own
    decisions.” 
    Id.
     (quoting Rodriguez de Quijas v. Shearson/Am. Express,
    Inc., 
    490 U.S. 477
    , 484 (1989)).
    RODRIGUEZ V. NEWSOM                        15
    18 (2000). Indeed, even before Williams the Court noted that
    equal protection requires “faithful adherence to a plan of
    population-based representation, with such minor deviations
    only as may occur in recognizing certain factors that are free
    from any taint of arbitrariness or discrimination.” Roman v.
    Sincock, 
    377 U.S. 695
    , 710 (1964) (emphasis added). Third,
    Williams’s approval of WTA was based on a finding of non-
    invidiousness and a finding of non-arbitrariness. See
    Williams, 
    288 F. Supp. at 628
     (characterizing Virginia’s use
    of WTA as “historically . . . deemed to [be in the State’s]
    best interests” and “[]not . . . unwise[]”).
    Appellants also identify factual differences between
    Williams and this case, but the differences are immaterial. In
    Virginia, Appellants emphasize, electors’ names were on the
    ballot; by contrast, the California ballot today lists only the
    candidates and their parties. But in Virginia the electors’
    names were associated with candidates and political parties,
    and the inclusion of such names on the ballot does not appear
    to have affected the court’s analysis. Further, Appellants
    note that, unlike in California today, the electors in Virginia
    had no legal obligation to support their parties’ nominees.
    But the distinction is irrelevant: how electors vote is different
    from how they are selected, cf. Chiafalo, 140 S. Ct. at 2321–
    22, and, in any event, Virginia’s electors voted—as would
    be expected—for their parties’ nominees, Williams, 
    288 F. Supp. at 626
     (noting that in the 1960 election, Virginia voters
    split 52.4% to 47% but the Republican nominee “was
    credited with 100% [o]f Virginia’s electoral votes”).
    California’s current system for selecting electors is thus
    substantively identical to Virginia’s at the time of Williams.
    We thus hold, as three of our sister circuits recently
    likewise have held, that Williams controls and forecloses
    Appellants’ equal protection claim. Baten, 967 F.3d at 355–
    16                     RODRIGUEZ V. NEWSOM
    56 (following the reasoning of Williams in rejecting an
    identical equal protection claim because a summary
    affirmance “prevent[s] lower courts from coming to opposite
    conclusions on the precise issues presented and necessarily
    decided by” the case summarily affirmed (citation omitted));
    Lyman, 954 F.3d at 366 (concluding that Williams
    “require[d] the dismissal” of an identical equal protection
    claim because it “decide[d] the core equal protection issue
    presented”); League of United Latin Am. Citizens, 951 F.3d
    at 315–17 (characterizing Williams as a “giant barrier
    stand[ing] in the[] way” of an identical equal protection
    claim).
    2.
    Appellants also argue that Gray, a Supreme Court case
    that predated Williams, controls rather than Williams. In
    Gray, the Supreme Court struck down the Georgia
    Democratic Party’s (“GDP”) primary election system. The
    system was based on “county unit[s]”: the GDP assigned
    each county a certain number of units, and the candidate who
    received the most votes in a given county was awarded all of
    the county’s units. 
    7 Gray, 372
     U.S. at 370–71. The effect
    of the system was to weight counties disproportionately. 
    Id.
    7
    In other contexts, “general ticket” or “unit” voting refers to a single
    bloc (such as the group of electors in Williams). In Gray, each county
    was assigned multiple “units,” each of which functioned like an elector.
    Originally, each county received two units for each of its
    representatives in Georgia’s House of the General Assembly. Gray,
    
    372 U.S. at 371
    . Later, the law was amended to resemble a “bracket
    system,” whereby counties were allotted units in rough proportion with
    their populations. For example, counties with 0 to 15,000 residents were
    allotted two units, with an additional unit allotted for the next 5,000
    people. 
    Id. at 372
    . The Court rejected both forms. 
    Id.
     at 381 & n.12.
    RODRIGUEZ V. NEWSOM                     17
    at 373 (explaining that counties constituting one-third of the
    State’s population enjoyed a “clear majority of county
    units”); see also 
    id. at 379
     (explaining that the system
    “weight[ed] the rural vote more heavily than the urban vote
    and weight[ed] some small rural counties heavier than other
    larger rural counties”). The Court held the system
    unconstitutional, 
    id. at 381
    , and then further specified in a
    footnote that the district court had properly enjoined the use
    of the system, even in its amended form:
    The county unit system, even in its amended
    form[,] . . . would allow the candidate
    winning the popular vote in the county to
    have the entire unit vote of that county.
    Hence the weighting of votes would
    continue, even if unit votes were allocated
    strictly in proportion to population. Thus if a
    candidate won 6,000 of 10,000 votes in a
    particular county, he would get the entire unit
    vote, the 4,000 other votes for a different
    candidate being worth nothing and being
    counted only for the purpose of being
    discarded.
    
    Id.
     at 381 n.12.
    Appellants read Gray as having two distinct holdings:
    first, the disproportionate allocation of units was
    unconstitutional; and second, the system would be
    unconstitutional even if units were allocated proportionately
    because the winner of a county would be awarded all of the
    county’s units.
    Appellants focus on the second holding, arguing the
    system Gray described is similar to California’s. Appellants
    contend that in California, just as in Gray, the presidential
    18                   RODRIGUEZ V. NEWSOM
    election is “conducted in two steps: at the first step, each
    state receives a set number of electoral votes and conducts
    an election to allocate those votes; and at the second step,
    those votes are tallied to determine the President.” And just
    as in Gray, a losing candidate’s votes are “discarded” in
    California before they can affect the election. Appellants
    further argue that this “two-step” structure is distinguishable
    from the structure in Williams, which comprised a single
    step: a “vote for [e]lectors.”
    We reject Appellants’ attempt to distinguish Williams by
    way of analogy to Gray. WTA in California is, for the
    reasons discussed above, materially identical to the system
    in Williams—and Williams was decided after Gray. 8 There
    is little to support Appellants’ argument that California’s
    system is similar to Gray’s (a purported “two-step” system)
    but different from Williams’s (a purported “one-step”
    system). Nothing in Gray supports such a reading and, more
    importantly, the system in Williams was essentially the same
    as those in California and Gray—whether characterized as
    one-step or two-step. 9 Just as in Gray and in California
    today, the system in Williams involved Virginia’s
    “receiv[ing] a set number of electoral votes and conduct[ing]
    8
    Williams also specifically rejected a “one-person, one-vote”
    argument based on Gray. Williams, 
    288 F. Supp. at 626
    . Although
    Williams did not discuss Gray’s footnote 12, the holding in that footnote
    would have been the one (of the purported two holdings in Gray) more
    relevant to Williams.
    9
    Appellants’ purported distinction between Williams’s WTA
    system, on the one hand, and Gray’s and California’s, on the other, is
    that Williams “rest[ed] on the premise that voters vote for [e]lectors”
    because the electors’ names were on the ballot and the electors were not
    required to vote for a particular candidate. Those distinctions were not
    material to the court’s reasoning in Williams, nor do they meaningfully
    distinguish Williams’s system from California’s.
    RODRIGUEZ V. NEWSOM                                19
    an election to allocate those votes,” and then “tall[ying]” the
    votes “to determine the President.”
    Further, the analogy to Gray falls short. 10 Gray’s central
    concern was the presence of geographic discrimination in the
    GDP’s primary election system. Gray, 
    372 U.S. at 379
    .
    That concern extended to Gray’s footnote 12:
    [I]n [Gray], . . . we h[e]ld that the county-unit
    system would have been defective even if
    unit votes were allocated strictly in
    proportion to population. We noted that if a
    candidate received 60% of the votes cast in a
    particular county he would receive that
    county’s entire unit vote, the 40% cast for the
    other candidates being discarded. The defect,
    however, continued to be geographic
    discrimination.        Votes for the losing
    candidates were discarded solely because of
    the county where the votes were cast. Indeed,
    votes for the winning candidate in a county
    were likewise devalued, because all marginal
    votes for him would be discarded and would
    have no impact on the statewide total.
    Gordon v. Lance, 
    403 U.S. 1
    , 4–5 (1971) (citing Gray,
    
    372 U.S. at
    381 n.12) (emphasis added). We have similarly
    interpreted Gray. See Angle v. Miller, 
    673 F.3d 1122
    , 1129–
    30 (9th Cir. 2012) (citing Gray, 
    372 U.S. at
    381 n.12) (“Gray
    and Gordon suggest that, with respect to a statewide
    10
    We recently rejected an attempt to “take a single sentence in
    [Gray] . . . and transform it into a new voting rights principle . . . .” Pub.
    Integrity All., Inc. v. City of Tucson, 
    836 F.3d 1019
    , 1026 (9th Cir. 2016)
    (en banc).
    20                RODRIGUEZ V. NEWSOM
    election, a state must count votes on a statewide, rather than
    a district-by-district, basis. Doing otherwise devalues votes
    based on where voters happen to live.”).
    No comparable concern about geographic discrimination
    exists here. Appellants claim their votes are “discarded
    because they live in California, and it is the California
    Democratic Party that benefits and takes advantage of a two-
    step election involving defined geographical units to
    consolidate votes.” But the Court’s concern in Gray was that
    votes in Georgia were treated differently based on the voters’
    location within the state; in California, all votes are treated
    equally regardless of where they are cast.
    IV.
    Appellants allege that a WTA system burdens their First
    Amendment rights to cast their votes effectively, to associate
    with like-minded voters across the State, and to petition their
    government and associate with the candidates of their
    choice.
    No First Amendment challenge was brought in Williams.
    Because Appellants’ First Amendment claims do not
    implicate the “precise issues presented and necessarily
    decided” in Williams, Mandel, 
    432 U.S. at 176
    , Williams
    does not control them. But we may affirm on any ground
    supported by the record, ASARCO, LLC v. Union Pacific
    Railroad Co., 
    765 F.3d 999
    , 1004 (9th Cir. 2014), and,
    because Appellants do not state a claim, we affirm.
    A.
    “[E]ach and every citizen has an inalienable right to full
    and effective participation in the political process[] . . . .”
    Reynolds v. Sims, 
    377 U.S. 533
    , 565 (1964). That includes
    RODRIGUEZ V. NEWSOM                             21
    the right to “cast [one’s] votes effectively,” which requires
    that no voter be “denied an opportunity to cast a ballot at the
    same time and with the same degree of choice among
    candidates available to other voters.” Dudum v. Arntz,
    
    640 F.3d 1098
    , 1106, 1109 (9th Cir. 2011) (citation omitted).
    Appellants go further, asserting that their right to full and
    effective participation precludes the “diluting and
    discarding” associated with WTA. But Appellants offer no
    support for stretching this right beyond its plain meaning and
    established precedents. 11         Because Appellants can
    participate fully in California’s presidential election,
    including voting for their preferred candidates, their right to
    cast an effective vote is not burdened.
    B.
    “The freedom of association protected by the First and
    Fourteenth Amendments includes partisan political
    organization. The right to associate with the political party
    of one’s choice is an integral part of this basic constitutional
    freedom.” Tashjian v. Republican Party of Connecticut,
    
    479 U.S. 208
    , 214 (1986) (citations omitted).
    11
    Citing Rhodes, Appellants argue that California’s use of WTA
    “removes their ‘basic incentive’ for participating in the presidential
    election at all.” But in Rhodes, Justice Harlan decried a statutory scheme
    that denied voters “any opportunity to participate in the procedure by
    which the President is selected.” Rhodes, 
    393 U.S. at 41
     (Harlan, J.,
    concurring). Here, by contrast, Appellants have every opportunity to
    participate in the State’s presidential election.
    Another case cited by Appellants, Tashjian v. Republican Party of
    Connecticut, 
    479 U.S. 208
    , 216 (1986), held that a statute restricting a
    political party’s ability to open its primary to non-members “limit[ed]
    the [p]arty’s associational opportunities.”
    22                    RODRIGUEZ V. NEWSOM
    According to Appellants, WTA burdens their right to
    “associate with like-minded voters” by “distort[ing] the
    electoral process”: “those who do not support the
    Democratic candidate in California have little reason to
    drum up support for a candidate who will receive zero
    electoral votes . . . .” In these types of cases, the Supreme
    Court has “focused on the [challenged] requirements
    themselves, and not on the manner in which political actors
    function under those requirements.” N.Y. State Bd. of
    Elections v. Lopez Torres, 
    552 U.S. 196
    , 205 (2008). And
    WTA does not limit Appellants’ ability to associate with
    like-minded voters. At base, Appellants contend they are not
    incentivized to associate, not that they cannot. 12
    C.
    The right to petition “protects the right of individuals to
    appeal to courts and other forums established by the
    government for resolution of legal disputes.” Borough of
    Duryea, Pa. v. Guarnieri, 
    564 U.S. 379
    , 387 (2011). More
    generally, it “allows citizens to express their ideas, hopes,
    and concerns to their government and their elected
    representatives.” 
    Id. at 388
    . But this right is uni-directional;
    it does not require government officials or politicians to
    12
    Gill v. Whitford, 
    138 S. Ct. 1916
     (2018), cited by Appellants, is
    inapposite. In Gill, Justice Kagan articulated a theory of associational
    harm in the context of partisan gerrymandering. She posited that a
    partisan gerrymander may infringe the associational rights of the
    members of a “disfavored party” by “depriv[ing] [them] of their natural
    political strength,” thus creating challenges with respect to “fundraising,
    registering voters, attracting volunteers, generating support from
    independents, and recruiting candidates.” 
    Id.
     at 1938–39 (Kagan, J.,
    concurring). But partisan gerrymandering is different than selecting
    electors with WTA; only the former is closely connected to the problems
    with party infrastructure that Justice Kagan identified.
    RODRIGUEZ V. NEWSOM                       23
    respond, or even listen, to citizens. Smith v. Ark. State
    Highway Emps., Local 1315, 
    441 U.S. 463
    , 465 (1979)
    (holding that “the First Amendment does not impose any
    affirmative obligation on the government to listen [or] to
    respond,” nor does it “guarantee that a speech will persuade
    or that advocacy will be effective” (quotation marks and
    citation omitted)).
    Appellants theorize that WTA causes presidential
    candidates to “ignore California’s minority voters in each
    election cycle,” which “undermines the core relationship . . .
    between constituents and their representatives.” But
    Appellants again mistakenly focus on the incentives that
    flow from WTA. The issue is whether WTA burdens
    Appellants by limiting their ability to petition, not whether
    WTA changes politicians’ behaviors. See Lopez Torres,
    
    552 U.S. at 205
    . Appellants do not allege any restrictions on
    their ability to petition.
    D.
    Even assuming Appellants had plausibly alleged the
    State’s use of WTA imposed some minimal burden, their
    claims would still fail. Under Burdick v. Takushi, 
    504 U.S. 428
     (1992), a “flexible standard” applies to laws regulating
    the right to vote: we “must weigh ‘the character and
    magnitude of the asserted injury’ . . . against ‘the precise
    interests put forward by the State as justifications for the
    burden imposed by its rule,’ taking into consideration ‘the
    extent to which those interests make it necessary to burden
    the plaintiff’s rights.’” 
    Id. at 434
     (citations omitted).
    “[W]hen a state election law provision imposes only
    ‘reasonable, nondiscriminatory restrictions[,]’ . . . ‘the
    State’s important regulatory interests are generally sufficient
    to justify’ the restrictions.” 
    Id.
     (citations omitted).
    24                RODRIGUEZ V. NEWSOM
    Any burden is—at most—minimal, and California has
    identified an important interest: “maximiz[ing] the impact of
    the State’s electors within the Electoral College.” WTA
    increases the voting power of the State within the electoral
    college, as all of its votes are cast in support of one
    candidate. And it also protects California against the use of
    WTA by the forty-seven other States that have adopted it.
    Cf. Williams, 
    288 F. Supp. at 626
     (explaining that Thomas
    Jefferson recognized the merit of “protect[ing] his State
    against the use of [WTA] by other States” and relied on this
    justification in advising Virginia to adopt WTA, despite his
    preference for district-based selection of electors).
    Appellants characterize California’s interest as
    “illegitimate and incorrect.” It is purportedly “illegitimate”
    because “WTA does not maximize the power of the State as
    a whole; instead, it maximizes the voting strength of a
    plurality of California voters.” But Appellants conflate the
    intrastate and interstate effects of WTA; WTA maximizes
    the State’s interstate power, and is thus not a “restatement of
    the very burden [Appellants] have identified.” The interest
    is allegedly “incorrect” because WTA results in
    “presidential candidates generally ignor[ing] California
    voters,” which “subverts the power of the State.” Appellants
    again misconstrue the interest; it is to maximize the State’s
    power in the electoral college, not to attract campaigns.
    *   *    *
    Because Appellants fail to state a claim under either of
    their constitutional theories, we affirm the district court’s
    dismissal of the complaint with prejudice.
    AFFIRMED.