ORDER DENYING PLAINTIFF'S MOTION FOR TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION

EDWARD J. DAVILA, United States District Judge.

On Tuesday, November 8, 2016, the citizens of the United States cast their votes for the offices of President and Vice President. The Democratic candidates for those offices, Hillary Rodham Clinton and Timothy Kaine, "won the nationwide popular vote by at least 2.7 million votes, and won the California popular vote by a large margin." Dkt. No. 1, at ¶ 13. Yet, the Constitution does not permit Presidents and Vice Presidents to be chosen based on the outcome of the popular vote. They are instead selected by a group of individuals designated in each state, known as "electors," who together make up an Electoral College. The Electoral College chooses who will be President and Vice President, and if each state's electors vote consistent with the popular vote of their respective states on December 19, 2016, Donald J. Trump and Michael Pence will succeed to those offices.

This case involves a California elector, Plaintiff Vincenz J. Koller ("Plaintiff"), who believes it is his duty "to vote in the best interests of the state and nation" by selecting the persons he feels are "properly fit and qualified to become President and/or Vice-President." Decl., Dkt. No. 4, at ¶ 10. Such persons for the office of President may be "Mitt Romney, John Kasich, or another qualified compromise candidate" other than Trump. Decl., Dkt. No. 30, at ¶ 3. California law, however, requires that Plaintiff cast his electoral vote for Clinton and specifies a punishment if he does not. Through this action, Plaintiff seeks to invalidate as unconstitutional the California statutes coercing his selection.

Presently before the court is Plaintiff's Motion for Temporary Restraining Order ("TRO") and Preliminary Injunction. Dkt. No. 4. Defendants Governor Jerry Brown, Attorney General Kamala Harris, and Secretary of State Alex Padilla (collectively, "Defendants") oppose the motion. Dkt. Nos. 28, 29. As do proposed intervenors California Republican Party, Donald J. Trump for President, Inc. and Trump himself. Dkt. No. 27. Having considered the relevant pleadings and arguments presented at the hearing on December 16, 2016, the court will deny Plaintiff's motion for the reasons explained below.

I. BACKGROUND

Plaintiff is a resident of Monterey County and an appointed elector of the California Democratic Party. Decl., Dkt. No. 4, at ¶ 2. He and all other members of the California Electoral College are due to "meet, deliberate and cast" votes in the election of the President and Vice President on December 19, 2016, at approximately 2:00 p.m. Decl., Dkt. No. 30, at ¶ 2. Plaintiff states that under current California law, specifically Elections Code §§ 69061 and 18002,2 he is compelled to vote for the Democratic candidates for President and Vice President, Clinton and Kaine, or face punitive sanctions. Decl., Dkt. No. 4, at ¶¶ 6-8.

But at the same time, Plaintiff believes it is his duty under the United States Constitution to vote for the person who he believes will make the best President. Decl., Dkt. No. 30, at ¶ 3. He has decided that "Mitt Romney, John Kasich or another qualified compromise candidate" may be the "correct choice" for his vote. Id. However, Plaintiff is unwilling to vote for Romney, Kasich or anyone other than Clinton because doing so may subject him to the penalties described in Elections Code § 18002. Id. at ¶ 8.

Additionally, Plaintiff does not believe electors "should be required to ignore facts and evidence that come to their attention" from the date of the election to the date of their vote. Decl., Dkt. No. 4, at ¶ 4. In particular, Plaintiff states that he and other electors "have learned that the CIA has concluded with `high confidence' that Russia sought to influence the U.S. election and that President Obama and lawmakers in Congress have decided to conduct a bipartisan investigation" into the matter. Id. Plaintiff believes that "ensuring that no one be put into the office of the President or Vice-President that might be subject to foreign influence is part of the Electoral College job." Id.

Plaintiff commenced this action December 9, 2016, and seeks a declaratory judgment that Elections Code §§ 6906 and 18002 are unconstitutional as well as an injunction prohibiting Defendants from enforcing the statutes against electors. The present TRO application followed on December 12, 2016.

II. LEGAL STANDARD

The standard for issuing a TRO is the same as that for the issuance of preliminary injunction. See New Motor Vehicle Bd. of Cal. v. Orrin W. Fox Co., 434 U.S. 1345, 1347 n.2, 98 S.Ct. 359, 54 L.Ed.2d 439 (1977). Thus, much like a preliminary injunction, a TRO is "an extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief." Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7, 22, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008).

"To obtain a preliminary injunction, the moving party `must establish that: (1) it is likely to succeed on the merits; (2) it is likely to suffer irreparable harm in the absence of preliminary relief; (3) the balance of equities tips in its favor; and (4) an injunction is in the public interest.'" Idaho v. Coeur D'Alene Tribe, 794 F.3d 1039, 1046 (9th Cir. 2015) (quoting Pom Wonderful LLC v. Hubbard, 775 F.3d 1118, 1124 (9th Cir. 2014)).

Alternatively, "`serious questions going to the merits' and a hardship balance that tips sharply towards the plaintiff can support issuance of a preliminary injunction, so long as the plaintiff also shows that there is a likelihood of irreparable injury and that the injunction is in the public interest." Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1135 (9th Cir. 2011). This articulation represents "one alternative on a continuum" under the "`sliding scale' approach to preliminary injunctions employed" by the Ninth Circuit. Id. at 1131-32. But "[t]he critical element in determining the test to be applied is the relative hardship to the parties." Benda v. Grand Lodge of the Int'l Ass'n of Machinists & Aerospace Workers, 584 F.2d 308, 315 (9th Cir. 1978). "If the balance of harm tips decidedly toward the plaintiff, then the plaintiff need not show as robust a likelihood of success on the merits as when the balance tips less decidedly." Id.

Whether to grant or deny a TRO or preliminary injunction is a matter within the court's discretion. See Miss Universe, Inc. v. Flesher, 605 F.2d 1130, 1132-33 (9th Cir. 1979).

III. DISCUSSION

A. Plaintiff Has Identified a Serious Question

To satisfy the first element of the standard for injunctive relief, it is not necessary for the moving party to "prove his case in full" (Univ. of Tex. v. Camenisch, 451 U.S. 390, 395, 101 S.Ct. 1830, 68 L.Ed.2d 175 (1981)), or show that he is "more likely than not" to prevail. (Leiva-Perez v. Holder, 640 F.3d 962, 966 (9th Cir. 2011)). Instead, he must demonstrate a "fair chance of success on the merits" or raise questions "serious enough to require litigation." Benda, 584 F.2d at 315.

Here, Plaintiff argues that Elections Code §§ 6906 and 18002 are unconstitutional because, by mandating that California electors cast their vote for their party's candidate or face penalties, they violate Article II, § 1 of the Constitution,3 as amended by the Twelfth Amendment.4 To understand why Plaintiff believes this is so, it is first necessary to examine documents that preceded the Constitution and promoted its adoption.

In Federalist No. 68, Alexander Hamilton described the manner of electing a President "by men chosen by the people for the special purpose" as, if not perfect, "at least excellent." He believed it desirable to establish an Electoral College so the choice of the President "would be made by men most capable of analyzing the qualities adapted to the station, and acting under circumstances favorable to deliberation, and to a judicious combination of all the reasons and inducements which were proper to govern their choice." Hamilton argued that a "small number of persons, selected by their fellow-citizens from the general mass" would be "most likely to possess the information and discernment requisite to such complicated investigations." He also felt the Electoral College would afford little opportunity to "tumult and disorder" and achieve opposition to "cabal, intrigue, and corruption," as those were the "most deadly adversaries of republican government."

Furthermore, Hamilton opined that the process of election through the Electoral College "affords to a moral certainty, that the office of President will never fall to the lot of any man who is not in an eminent degree endowed with the requisite qualifications." He continued:

Hamilton's statements in Federalist No. 68 are informative on the meaning intended by the framers of the Constitution in Article II, § 1. Indeed, his statements reflect the notion that "[t]he electoral college was designed by men who did not want the election of the President to be left to the people." Gray v. Sanders, 372 U.S. 368, 377 n.8, 83 S.Ct. 801, 9 L.Ed.2d 821 (1963); accord Ray v. Blair, 343 U.S. 214, 225 n. 16, 72 S.Ct. 654, 96 S.Ct. 894 (1952) ("`Doubtless it was supposed that the electors would exercise a reasonable independence and fair judgment in the selection of the Chief Executive....'" (quoting McPherson v. Blacker, 146 U.S. 1, 36, 13 S.Ct. 3, 36 S.Ct. 869 (1892))).5 Elections Code §§ 6906 and 18002, which together compel California electors to vote for predefined candidates on pain of criminal punishment, cannot be neatly reconciled with the duties Hamilton attributed to the Electoral College in Federalist No. 68, one of which was the privilege to analyze and deliberate on the choice of the office of the President. And in turn, the statutes appear not only contrary to Article II, § 1, but render the implications of that section superfluous as to the votes of California electors.

At the same time, there is an equally viable counter-argument under which Elections Code §§ 6906 and 18002 pass constitutional scrutiny. As the Attorney General and Secretary of State point out, Article II, § 1 explicitly designates the appointment of electors to the states. The Supreme Court has described this appointment power as exclusive and plenary, "from the formation of the government until now." McPherson, 146 U.S. at 35, 13 S.Ct. 3. Thus, it is equally plausible to assert that California's regulation of its electors, which scheme would include Elections Code §§ 6906 and 18002 as well as those describing how electors are nominated and chosen, is a valid expression of the exclusive and plenary privilege provided to it by Article II, § 1.6

Moreover, the United States Supreme Court's opinion in Ray v. Blair provides some indication that the Court may not find the California statutes constitutionally troubling. In Ray, the State Democratic Executive Committee of Alabama adopted a resolution requiring primary elector candidates to pledge their support to the nominees of the National Convention of the Democratic Party for President and Vice President. 343 U.S. at 222, 72 S.Ct. 654. Blair refused to pledge and was excluded from candidacy, though he was otherwise qualified. Id. at 215, 72 S.Ct. 654. The Alabama Supreme Court upheld a peremptory writ of mandate requiring Ray, the chair of the Committee, to certify Blair as a candidate. Id.

The Supreme Court reversed. First, the Court held that presidential electors "act by authority of the state that in turn receives its authority from the Federal Constitution," and that neither the language of Article II, § 1 nor the Twelfth Amendment forbid a political party from requiring a pledge. Id. at 224-25, 72 S.Ct. 654. Second, the Court held the pledge requirement was "an exercise of the state's right to appoint electors in such manner" under Article II, § 1. Id. at 228, 72 S.Ct. 654. Third, the Court addressed and rejected the argument that electors must have absolute freedom to vote their choice, reasoning:

Though the constitutionality of general election pledges for electors was left undecided in Ray, it is possible if not likely the Court would apply the same realistic approach when examining state-imposed restrictions on presidential electors. The Ray Court's reasoning was based partly on the practical recognition that electors are actually chosen "simply to register the will of the appointing power in respect of a particular candidate." Id. at 230, 72 S.Ct. 654 n.16 (quoting McPherson, 146 U.S. at 36, 13 S.Ct. 3). If that sort of reduction in an elector's independence is determined constitutional, as it was for a primary elector in Ray, Plaintiff's argument based on Article II, § 1 collapses.

In any event, this discussion shows there are equally plausible opposing views concerning the constitutionality of Elections Code §§ 6906 and 18002. Though Plaintiff has not demonstrated he is likely to succeed on the merits of his arguments7 any more than Defendants have demonstrated they are likely to succeed on their own, he has certainly raised a question "serious enough to require litigation." Benda, 584 F.2d at 315. Accordingly, the court finds Plaintiff has satisfied this element in a manner sufficient to proceed further.

B. Plaintiff's Articulation of Irreparable Harm is Insufficient

An adequate showing of irreparable harm is the "single most important prerequisite for the issuance of a [TRO]." Freedom Holdings, Inc. v. Spitzer, 408 F.3d 112, 114 (2d Cir. 2005). To successfully make that showing, the moving plaintiff must "demonstrate that irreparable injury is likely in the absence of an injunction." Winter, 555 U.S. at 22, 129 S.Ct. 365 (emphasis preserved). A TRO ordered on anything less is "inconsistent" with the "characterization of injunctive relief as an extraordinary remedy...." Id.

In assessing Plaintiff's motion, the court is mindful that the presentation of irreparable harm must be "clear." Garcia v. Google, 786 F.3d 733, 746 (9th Cir. 2015). "Speculative injury does not constitute irreparable injury sufficient to warrant granting a preliminary injunction." Caribbean Marine Servs. Co. v. Baldrige, 844 F.2d 668, 674 (9th Cir. 1988). To that end, "[a] plaintiff must do more than merely allege imminent harm sufficient to establish standing; a plaintiff must demonstrate immediate threatened injury as a prerequisite to preliminary injunctive relief." Id. "Subjective apprehensions and unsupported predictions ... are not sufficient to satisfy a plaintiff's burden of demonstrating an immediate threat of irreparable harm." Id. at 675-76.

Plaintiff argues that if forced to vote for President and Vice President under the coercion of Elections Code §§ 6906 and 18002, he will "suffer irreparable injury in not being able to perform the job for which he has been chosen by the citizens of California without subjecting himself to possible criminal prosecution if he does not vote as California law currently coerces him to do." He states that if convicted, he could be subjected to a "fine of $1000, and/or imprisonment for 16 months, or two to three years." Dkt. No. 30, at ¶ 8. Plaintiff also states that a felony conviction would disqualify him from voting, prohibit him from sitting on a jury, ban him from conducting business with the government, preclude him from possessing a firearm, prevent him from holding federal office, and "result in many other negative consequences personally, financially, socially, and professionally," including mental anguish or distress. Id. at ¶ 9.

Plaintiff's own framing of this element demonstrates why it is unsatisfied. As to the likelihood that any of the identified harms will actually occur, Plaintiff relies on the mere potential for a criminal prosecution under Elections Code § 18002. He has not provided anything to demonstrate that a prosecution is likely should he vote for individuals other than Clinton and Kaine. To emphasize that shortcoming, the Attorney General and Secretary of State highlight the absence of evidence in Plaintiff's application showing that any California elector has ever been prosecuted or threatened with prosecution under § 18002.8 This articulation of harm based only on possibility or risk does not constitute a "clear showing" that a non-speculative, imminent injury is likely to occur in the absence of a TRO. See Winter, 555 U.S. at 22, 129 S.Ct. 365 (rejecting a "possibility" standard in the context of injunctive relief as "too lenient").

Furthermore, Plaintiff's statements leave it entirely speculative whether the possibility of a § 18002 prosecution will arise at all because he has not revealed commitment to a particular vote. In his Verified Complaint, Plaintiff indicates a "stated intention to not necessarily place his vote for Hillary Clinton and Tim Kaine...." Dkt. No. 1, at ¶ 24. And the statements made in his supplemental declaration are equally equivocal; though Plaintiff is compelled "to decide that Mitt Romney, John Kasich, or another qualified compromise candidate, would be the correct choice" for his vote, he apparently has not yet settled on one those individuals over Clinton, and in fact states he will vote for Clinton "as the California law stands now." Dkt. No. 30, at ¶¶ 3, 10.

Moreover, the court is not persuaded that Plaintiff has identified a harm that is actually irreparable, even assuming a criminal prosecution is likely. This is so because Plaintiff would still have mechanisms to divert or defend against a prosecution if one were initiated, and to challenge a conviction if one was obtained. Because the criminal penalty referenced in § 18002 stems from California Penal Code § 1170(h), a judge handling the matter could defer entry of judgment or engage pretrial diversion, both of which would result in no conviction. If the prosecution progressed to trial, Plaintiff could mount a defense and could ultimately prevail. If he was convicted, a judge could reduce the felony conviction to a misdemeanor under California Penal Code § 17, he could request expungement and record clearance under California Penal Code § 1203.4, or he could pursue habeas relief.

In sum, the court finds that Plaintiff's description of potential ensuing harm is not the type of "immediate threatened injury" required for a TRO. As such, the court need not address the other factors necessary for injunctive relief because Plaintiff is not entitled to the extraordinary remedy he seeks. See Leiva-Perez v. Holder, 640 F.3d 962, 965 (9th Cir. 2011) (holding that injunctive relief may not issue absent a "threshold showing regarding irreparable harm ... regardless of the petitioner's proof regarding the other [] factors"); see also Blackburn v. State Dep't of Soc. & Health Servs., 472 Fed. Appx. 569, 570-71 (9th Cir. 2012).

IV. ORDER

Based on the foregoing, the Motion for Temporary Restraining Order and Preliminary Injunction (Dkt. No. 4) is DENIED.

IT IS SO ORDERED.