CASE STUDIES IN EMERGENCY ELECTION LITIGATION

Federal Judicial Center 11/3/2023 1

Does the Electoral College Dilute Votes? 

Park v. Parnell (Timothy M. Burgess, D. Alaska 

3:16-cv-281), James v. Cascos (Robert Pitman and Jeffrey 

C. Manske, W.D. Tex. 6:16-cv-457), Conant v. Oregon 

(Marco A. Hernandez, D. Or. 3:16-cv-2290), and Barnes 

v. Wisconsin (William C. Griesbach, E.D. Wis. 1:16-cv-1692) 

A pro se complaint sought to enjoin on a vote-dilution theory a 

state’s Electoral College votes’ going to the prevailing presidential 

candidate in the state, because although that candidate earned a majority of electoral votes, an opposing candidate earned more votes 

nationwide. Four days later, the district judge ruled against the plaintiff. Although the judge granted the plaintiff in forma pauperis status 

during the emergency phase of the litigation, the judge denied in 

forma pauperis status on appeal because the plaintiff did not present 

supplementary financial information as ordered. Pro se actions in 

Virginia, Oregon, Texas, and Wisconsin challenging winner-take-all 

allocations of Electoral College votes also were unsuccessful. 

Subject: Voting irregularities. Topics: Electoral College; pro se 

party. 

A 2016 lawsuit in Alaska unsuccessfully challenged the state’s contribution to 

an Electoral College victory for the presidential candidate who placed second 

in national popular votes. Suits challenging the winner-take-all rule in Virginia, Oregon, Texas, and Wisconsin also were unsuccessful. 

Alaska 

A voter filed a pro se federal complaint in the District of Alaska on December 

12, 2016, against Alaska’s three delegates to the Electoral College, seeking to 

enjoin the delegates from voting for Donald Trump as President because Hillary Clinton’s receiving nearly three million more votes than Trump nationwide meant that an Electoral College victory for Trump would “effectively 

cause a single vote for Clinton to be valued less than a single vote for Trump.”1

The voter filed a motion for expedited consideration with her complaint.2

Two days later, Judge Timothy M. Burgess set the case for hearing on December 15.3

 Although the voter did not “explain efforts to communicate with 

or the positions taken by opposing parties,” Judge Burgess observed that the 

matter needed to be resolved by the December 19 meeting of the Electoral 

College.4

1. Complaint at 3, Park v. Parnell, No. 3:16-cv-281 (D. Alaska Dec. 12, 2016), D.E. 1; see

Alaska’s Presidential Electors Set to Vote Trump Despite Intense Lobbying, Alaska Dispatch 

News, Dec. 16, 2016. 

2. Motion, Park, No. 3:16-cv-281 (D. Alaska Dec. 12, 2016), D.E. 4. 

3. Order, id. (Dec. 14, 2016), D.E. 5. 

4. Id. 
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At the hearing, the voter said that she had not received a copy of the delegates’ motion to dismiss the complaint, which was filed that day, so Judge Burgess agreed to accept a written response from the voter on the following day.5

Following oral arguments on December 15 and the voter’s December 16 written response6

 to the motion to dismiss the complaint, Judge Burgess dismissed 

the complaint as barred by the United States Constitution’s establishment of 

the Electoral College as the body responsible for selecting the President of the 

United States.7

On the day that he announced his decision, Judge Burgess granted the 

voter in forma pauperis status.8

Based on the Court’s review of [the in forma pauperis application], it appears 

that Park’s ability to pay filing fees and costs is a close call. Under more normal circumstances, the Court would make further inquiry into Park’s eligibility to proceed in forma pauperis. However, in light of the expedited schedule by which this case is proceeding, the Court believes that its time and resources are better spent considering the merits of this case rather than Park’s 

finances.9

In response to the voter’s motion to proceed on appeal in forma pauperis,10

Judge Burgess concluded, “As the Court is no longer faced with the same time 

constraints, the Court determines that additional inquiry into whether Park 

qualifies for in forma pauperis status for purposes of her appeal is warranted.”11 Because the voter did not file supplementary information by February 6, 2017, as ordered,12 Judge Burgess denied the voter in forma pauperis 

status on appeal on February 14.13

Texas and Virginia 

On Wednesday, December 14, 2016, a Texas voter filed a pro se complaint in 

the Western District of Texas complaining, “my vote, and the vote cast by 

every other Texas voter for a Clinton elector, will be changed, against our democratically expressed wishes, to a vote for a Trump elector under Texas’ winner-take-all presidential elector election scheme.”14 With his complaint, the 

voter filed a motion for a temporary restraining order and a preliminary injunction.15

5. Minutes, id. (Dec. 15, 2016), D.E. 13; see Motion to Dismiss, id. (Dec. 15, 2016), D.E. 9. 

6. Response, id. (Dec. 16, 2016), D.E. 16. 

7. Opinion, id. (Dec. 16, 2016), D.E. 18. 

8. Order, id. (Dec. 16, 2016), D.E. 15. 

9. Id. 

10. See Docket Sheet, Park v. Parnell, No. 17-35061 (9th Cir. Jan. 23, 2017).

11. Order, Park, No. 3:16-cv-281 (D. Alaska Jan. 27, 2017), D.E. 25. 

12. See id. 

13. Order, id. (Feb. 14, 2017), D.E. 26; see Order, id. (Mar. 24, 2017), D.E. 30 (denying 

reconsideration). 

14. Complaint at 3, James v. Cascos, No. 6:16-cv-457 (W.D. Tex. Dec. 14, 2016), D.E. 1. 

15. Motion, id. (Dec. 14, 2016), D.E. 3. 
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On Monday, Judge Robert Pitman concluded, “The court finds that it need 

not address any philosophical or political arguments regarding the justification of the ‘winner-take-all’ approach because it is bound by Supreme Court 

precedent on this issue.”16 Judge Pitman also noted17 that relief was denied in 

a similar pro se action filed in the Western District of Virginia on October 4,18

and Judge Norman K. Moon in the Virginia case relied on a 1968 three-judge 

decision in the Eastern District of Virginia, summarily affirmed by the Supreme Court, upholding the constitutionality of winner-take-all allocations of 

a state’s Electoral College votes.19 The 1968 court observed that awarding all of 

a state’s Electoral College votes to a single candidate maximized the state’s influence on the Electoral College result.20

Also on Monday, December 19, 2016, Western District of Texas Magistrate Judge Jeffrey C. Manske recommended dismissal of the complaint for 

lack of standing: “A general interest in seeing that the government abides by 

the Constitution is not [sufficient].”21 Finding no clear error, and observing no 

objection from the plaintiff, Judge Pitman adopted Judge Manske’s recommendation on January 9, 2017.22

Oregon and Wisconsin 

Pro se plaintiffs challenged the winner-take-all rule in federal complaints filed 

in the District of Oregon on December 7, 2016,23 and in the Eastern District of 

Wisconsin on December 21.24

On December 23, Eastern District of Wisconsin Judge William C. 

Griesbach determined that the plaintiff was unable to establish a strong likelihood of success on the merits.25 Judge Griesbach ruled quickly: 

The Defendant State of Wisconsin has not yet been served with the complaint, and it seems unlikely that once it is served, it will have much time to 

respond to Barnes’ request for preliminary relief before the event Barnes 

16. Opinion at 4, id. (Dec. 19, 2016), D.E. 6. 

17. Id. at 5. 

18. Opinion, Schweikert v. Herring, No. 3:16-cv-72 (W.D. Va. Oct. 18, 2016), D.E. 17; see

Complaint, id. (Oct. 4, 2016), D.E. 1; see also Opinion, id. (Dec. 2, 2016), D.E. 29, 2016 WL 

7046845 (dismissing the action); Order, id. (Nov. 1, 2016), D.E. 23 (denying reconsideration 

of the preliminary-relief decision); Order, id. (Nov. 14, 2016), D.E. 25 (denying a motion to 

recuse the judge because he was nominated to the bench by the husband of one of the presidential candidates). 

19. Williams v. Va. State Bd. of Elections, 288 F. Supp. 622 (E.D. Va. 1968), summarily 

aff’d, 393 U.S. 320 (1969). 

20. Id. at 626–28. 

21. Report and Recommendation, James, No. 6:16-cv-457 (W.D. Tex. Dec. 19, 2016), 

D.E. 7. 

22. Order, id. (Jan. 9, 2017), D.E. 10. 

23. Complaint, Conant v. Oregon, No. 3:16-cv-2290 (D. Or. Dec. 7, 2016), D.E. 1 [hereinafter Conant Complaint]. 

24. Complaint, Barnes v. Wisconsin, No. 1:16-cv-1692 (E.D. Wis. Dec. 21, 2016), D.E. 1; 

see Amended Complaint, id. (Dec. 28, 2016), D.E. 3. 

25. Opinion at 2, id. (Dec. 23, 2016), D.E. 2 [hereinafter Barnes Opinion]; see Order, id.

(Dec. 30, 2016), D.E. 7 (denying reconsideration). 
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4 Federal Judicial Center 11/3/2023 

seeks to enjoin occurs. The Court will therefore proceed to address Barnes’ 

request for a preliminary injunction without waiting for the State’s response.26

The plaintiff voluntarily dismissed the action on January 13, 2017.27

With his complaint, which was filed “late in the day,”28 the Oregon plaintiff 

filed a motion for expedited emergency hearing “no later than Monday, December 12, 2016,”29 on his challenge to Oregon’s winner-take-all allocation of 

Electoral College votes.30 District Judge Marco A. Hernandez observed on December 9 that the plaintiff’s “urgency, which was created by his own late filing, 

is due to a December 13, 2016 deadline for state certification of Oregon electors.”31 Observing also that “challenges to the Electoral College have been routinely rejected,”32 Judge Hernandez construed the motion as a motion for a 

temporary restraining order, which he denied.33 On December 28, he again 

denied the plaintiff immediate relief34 following a December 22 motion for a 

temporary restraining order35 and a December 27 amended complaint.36

On March 29, 2017, Judge Hernandez dismissed the case.37 He also denied 

relief from the omission of Electoral College electors’ names from the presidential ballot and the exclusion of independent voters from party primary 

elections.38 The court of appeals affirmed the dismissal for lack of standing.39

26. Barnes Opinion, supra note 25, at 1. 

27. Notice, Barnes, No. 1:16-cv-1692 (E.D. Wis. Jan. 13, 2017), D.E. 14. 

28. Opinion at 1, Conant v. Oregon, No. 3:16-cv-2290 (D. Or. Dec. 9, 2016), D.E. 4 [hereinafter Conant Opinion]. 

29. Motion, id. (Dec. 7, 2016), D.E. 2. 

30. Conant Complaint, supra note 23. 

31. Conant Opinion, supra note 28, at 2. 

32. Id. at 4. 

33. Id. at 4–5. 

34. Docket Sheet, Conant, No. 3:16-cv-2290 (D. Or. Dec. 7, 2016) (D.E. 12). 

35. Temporary-Restraining-Order Motion, id. (Dec. 22, 2016), D.E. 11. 

36. Amended Complaint, id. (Dec. 27, 2016), D.E. 14. 

37. Conant v. Brown, 248 F. Supp. 3d 1014 (D. Or. 2017). 

38. Id.

39. Conant v. Brown, 726 F. App’x 611 (9th Cir. 2018).