No.

22-16413

IN THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

Kari Lake; Mark Finchem,

Plaintiffs-Appellants,

v.

Kathleen Hobbs, as Arizona Secretary of State; Bill Gates, Clint Hickman, Jack
Sellers, Thomas Galvin, and Steve Gallardo, in their capacity as members of the
Maricopa Board of Supervisors; Rex Scott, Matt Heinz, Sharon Bronson, Steve
Christy, Adelita Grijalva, as Members of the Pima County Board of Supervisors,

Defendants-Appellees.

On Appeal from the United States District Court

for the District of Arizona
No. 22-cv-00677-JJT
Hon. John J. Tuchi

APPELLANTS’ BRIEF

Andrew D. Parker Kurt Olsen*

(AZ Bar No. 028314) Olsen Law, P.C.
Parker Daniels Kibort LLC 1250 Connecticut Ave., NW, Suite 700
888 Colwell Building Washington, DC 20036
123 N. Third Street (202) 408-7025
Minneapolis, MN 55401 ko@olsenlawpc.com
(612) 355-4100 *-Application for admission forthcoming
parker@parkerdk.com
Attorneys for Appellants Attorneys for Appellants
Kari Lake and Mark Finchem Kari Lake and Mark Finchem

i
 TABLE OF CONTENTS

Table of Contents ................................................................................................. ii

Table of Authorities ............................................................................................ iv

I. Fed. R. App. P. 28(a)(4) Jurisdictional Statement ........................................1

II. Issues Presented for Review ..........................................................................2

III. Circuit Rule 28-2.2 Statement of Jurisdiction............................................5

IV. Statement of the Case .................................................................................5

V. Summary of the Argument ............................................................................9

VI. Argument ..................................................................................................13

A. The Eleventh Amendment Permits the Candidates’ Claims. ......................15

1. The Eleventh Amendment Does Not Shield Counties.............................16

2. The Eleventh Amendment Does Not Shield Hobbs Against a Claim for
Injunctive Relief to Vindicate Federal Rights. .................................................17

3. The District Court Erred in Its Analysis of the Eleventh Amendment by

Disregarding Constitutional Limitations on State Election Administration. ...20

B. The Candidates Have Standing. ..................................................................23

1. The Candidates Satisfy the Elements for Standing. .................................24

a. The Amended Complaint Alleges an Injury in Fact………………….25

b. The Amended Complaint Alleges a Legally Protected Interest That Is
Concrete and Particularized………………………………………….27
c. The Amended Complaint Alleges an Invasion of Interest That Is Actual

ii
 or Imminent, Not Conjectural or Hypothetical………………………..30
2. In its Ruling on Standing, the District Court Improperly Made Findings
Contrary to Allegations in the Amended Complaint in Order to Dismiss the
Candidates’ Claims on 12(b)(1) Grounds. .......................................................44

a. The District Court Improperly Relied on Factual Determinations

Contrary to the Allegations in the Amended Complaint……………….45
b. Neither Rule 12(b)(1) nor Rule 12(b)(6) Permits the District Court's
Decision to Reject the Facts Alleged in the Amended Complaint……..47
3. The District Court Relied Upon Inapposite Authority.............................53

C. Purcell Provides No Basis to Dismiss the Candidates’ Claims. .................55

VII. Conclusion ................................................................................................56

VIII. Statement of Related Cases ......................................................................56

iii
 TABLE OF AUTHORITIES

Autery v. United States,

424 F.3d 944 (9th Cir. 2005) ....................................................................... 50, 51
Baker v. Carr,
369 U.S. 186 (1962) ........................................................................ 10, 18, 26, 33
Bonas v. Town of N. Smithfield,
265 F.3d 69 (1st Cir. 2001) ................................................................... 27, 32, 34
Burdick v. Takushi,
504 U.S. 428 (1992) .............................................................................. 18, 25, 31

Brakebill v. Jaeger,
932 F.3d 671 (8th Cir. 2019) ............................................................................. 28
Cardenas v. Anzai,
311 F.3d 929 (9th Cir. 2002) ......................................................................... 2, 15
Carson v. Simon,
978 F.3d 1051 (8th Cir. 2020) .............................................. 1, 26, 27, 30, 35, 54

Clapper v. Amnesty Int'l USA,

568 U.S. 398 (2013)…………………………………………………………….36
Curling v. Kemp,
334 F. Supp. 3d 1303 (N.D. Ga. 2018) ....................................................... 36, 42
Curling v. Raffensperger,
493 F. Supp. 3d 1264 (N.D. Ga. 2020) ............................................................. 41
Donald J. Trump for President, Inc. v. Bullock,
491 F. Supp. 3d 814 (D. Mont. 2020) ................................................................ 29
Election Integrity Project Cal., Inc. v. Weber, No. 21-56061,
2022 U.S. App. LEXIS 30549 (9th Cir. Nov. 3, 2022) ............................. passim
Ex parte Young,
209 U.S. 123 (1908) .................................................................................... 10, 17

iv
FEC v. Akins,
524 U.S. 11 (1998) ...................................................................... 1, 17, 25, 28, 31
Gomillion v. Lightfoot,
364 U.S. 339 (1960) .......................................................................................... 21
Gray v. Sanders,
372 U.S. 368 (1963) .......................................................................... 1, 18, 25, 31
Griffin v. Burns,
570 F.2d 1065 (1st Cir. 1978) ............................................................... 27, 32, 34

Johnson v. Ryan, __ F.4th __,

No. 20-15293, 2022 U.S. App. LEXIS 34637 (9th Cir. Dec. 15, 2022) ........... 52
Jones v. Bates,
127 F.3d 839 (9th Cir. 1997) ............................................................................. 26
Kingman Reef Atoll Invs., L.L.C. v. United States,
541 F.3d 1189 (9th Cir. 2008) ........................................................................... 50

Krottner v. Starbucks Corp.,

628 F.3d 1139 (9th Cir. 2010) ..................................................................... 12, 36
Lake Country Estates, Inc. v. Tahoe Reg’l Planning Agency,
440 U.S. 391 (1979) .......................................................................................... 16
Landes v. Tartaglione,
No. 04-3163, 2004 U.S. Dist. LEXIS 22458 (E.D. Pa. Oct. 28, 2004) ............ 54

Lujan v. Defs. of Wildlife,

504 U.S. 555, 561 (1992)……………………………………………………47, 52
Marks v. Stinson,
19 F.3d 873 (3d Cir. 1994) .................................................................... 27, 32, 34
Mecinas v. Hobbs,
30 F.4th 890 (9th Cir. 2022) ...................................................................... passim

v
Meland v. Weber,
2 F.4th 838 (9th Cir. 2021) ............................................................ 3, 4, 15, 25, 51
Nader v. Brewer,
531 F.3d 1028 (9th Cir. 2008) ........................................................................... 21
Nat’l Audubon Soc’y v. Davis,
307 F.3d 835 (9th Cir. 2002) ............................................................................. 15
Pride v. Correa,
719 F.3d 1130 (9th Cir. 2013) ..................................................................... 14, 43
Purcell v. Gonzalez,
549 U.S. 1 (2006) ........................................................................ 4, 13, 14, 55, 56
Ray v. Cty. of L.A.,
935 F.3d 703 (9th Cir. 2019) ....................................................................... 10, 16
Renteria v. United States,
452 F. Supp. 2d 910 (D. Ariz. 2006) ........................................................... 50, 51
Reynolds v. Sims,
377 U.S. 533 (1964) .............................................................................. 18, 25, 32

Roberts v. Corrothers,
812 F.2d 1173 (9th Cir. 1987)………………………………………………….13
Safe Air for Everyone v. Meyer,
373 F.3d 1035 (9th Cir. 2004) ........................................................................... 48
Samuel v. V.I. Joint Bd. of Elections, No. 2012-0094,
2013 U.S. Dist. LEXIS 31538 (D.V.I. Mar. 7, 2013) ................................. 44, 53

Schulz v. Kellner, No. 1:07-CV-0943 (LEK/DRH),

2011 U.S. Dist. LEXIS 73088 (N.D.N.Y. July 7, 2011) ................................. 53
Shelby Cnty. Advocs. for Valid Elections v. Hargett, No. 2:18-cv-02706-TLP-dkv,
2019 U.S. Dist. LEXIS 156740 (W.D. Tenn. Sept. 13, 2019) .......................... 54
Sierra Club v. United States EPA,
774 F.3d 383 (7th Cir. 2014) ............................................................................. 36

vi
Spokeo, Inc. v. Robins,
578 U.S. 330 (2016) ........................................................................ 11, 24, 27, 36
Stein v. Cortés,
223 F. Supp. 3d 423 (E.D. Pa. 2016) .......................................................... 44, 53
Susan B. Anthony List v. Driehaus,
573 U.S. 149 (2014) .........................................................................11, 36, 41, 42
Tashjian v. Republican Party of Conn.,
479 U.S. 208 (1986) .......................................................................................... 21
Taylor v. Yee,
780 F.3d 928 (9th Cir. 2015) ..................................................................... 3, 4, 15
Thornhill Pub. Co. v. Gen. Tel. & Elecs. Corp.,
594 F.2d 730 (9th Cir. 1979) ................................................................. 48, 49, 50
Trump v. Wis. Elections Comm’n,
983 F.3d 919 (7th Cir. 2020) ....................................................... 1, 21, 26, 30, 54

Warth v. Seldin,
422 U.S. 490, 518 (1975) ................................................................................... 24

Wash. State Grange v. Wash. State Republican Party,

552 U.S. 442 (2008) .......................................................................................... 22
United States v. Classic,
313 U.S. 299 (1941) .......................................................................... 1, 18, 25, 31
United States v. LSL Biotechnologies,
379 F.3d 672 (9th Cir. 2004) ............................................................................. 13
United States v. Saylor,
322 U.S. 385 (1944) .......................................................................... 1, 18, 25, 32
United Transp. Union v. BNSF Ry. Co.,
710 F.3d 915 (9th Cir. 2013) ....................................................................... 43, 47
Ventura Packers, Inc. v. F/V Jeanine Kathleen,
305 F.3d 913 (9th Cir. 2002) ............................................................................. 52

vii
Weber v. Shelley,
347 F.3d 1101 (9th Cir. 2003) ........................................................................... 54
Young v. Crofts,
64 F. App’x 24 (9th Cir. 2003) .......................................................................... 52
Constitution and Statutes
28 U.S.C § 1927 ....................................................................................................... 9
28 U.S.C. § 1291 .................................................................................................. 1, 5
28 U.S.C. § 1331 ................................................................................................... 1, 5
28 U.S.C. § 1343 .................................................................................................. 1, 5
42 U.S.C. § 1983 ...................................................................................................... 1
A.R.S. § 16-142 ...................................................................................................... 20
A.R.S. § 16-441........................................................................................................ 20
U.S. Const. Art. I, § 4, cl. 1 .................................................................................... 21
Rules
Ninth Cir. L.R. 28 .................................................................................................... 5
Fed. R. App. P. 3 ...................................................................................................... 1
Fed. R. App. P. 4 .................................................................................................. 1, 5
Fed. R. App. P. 28 .................................................................................................... 1
Fed. R. Civ. P. 11 ..................................................................................................... 9
Fed. R. Civ. P. 12 ........................................................................................... passim
Other Authorities
Steven M. Bellovin et al., Seeking the Source: Criminal Defendants’ Constitutional
Right to Source Code, 17 Ohio St. Tech. L.J. 1 (Dec. 2020)………………….….38

viii
 I. FED. R. APP. P. 28(a)(4) JURISDICTIONAL STATEMENT

The District Court has jurisdiction over the claims in the Amended Complaint (“Am.

Compl.”) because the claims are brought under federal law, seeking to enforce

Appellants’ rights under the United States Constitution to vote and have their votes

counted accurately in conjunction only with other legally cast votes. 28 U.S.C.

§§ 1331, 1343; 42 U.S.C. § 1983; FEC v. Akins, 524 U.S. 11, 25 (1998); Gray v.

Sanders, 372 U.S. 368, 380 (1963); United States v. Saylor, 322 U.S. 385, 386

(1944); United States v. Classic, 313 U.S. 299, 315 (1941); Carson v. Simon, 978

F.3d 1051, 1058 (8th Cir. 2020); Trump v. Wis. Elections Comm’n, 983 F.3d 919,

924 (7th Cir. 2020). Appellants are residents of Arizona, registered voters, and were

candidates in the 2022 general election. ER-80-83.

(A) The Court of Appeals has jurisdiction over this appeal because Appellants timely

filed a Notice of Appeal from the final judgment entered by the United States

District Court for the District of Arizona. 28 U.S.C. § 1291; Fed. R. App. P.

3(a)(1); Fed. R. App. P. 4(a)(1)(A); Judgment of Dismissal in a Civil Case, ER-

152.

(B) The final judgment was entered by the Clerk of the District Court on August 26,

2022. ER-152. Appellants filed their Notice of Appeal in the District Court on

September 14, 2022. ER-3.

1
(C) The District Court’s August 26, 2022, judgment disposes of all parties’ claims.

The District Court entered an order on August 26, 2022, that the Amended

Complaint “is dismissed in its entirety” and directing the Clerk of Court “to enter

judgment accordingly and close this case.” ER-27 (“Order”).

II. ISSUES PRESENTED FOR REVIEW

1. Whether the District Court erred by holding that Eleventh Amendment

immunity bars Appellants’ claims against county and state officials for prospective

injunctive relief to vindicate constitutional rights.

 This issue was raised in the Arizona Secretary of State’s Motion to

Dismiss Amended Complaint, doc. 45 at 9-12,1 and Appellants’

Opposition to the Arizona Secretary of State’s Motion, doc. 58 at 9-11.

The District Court’s Order granted the Appellees’ Motions to Dismiss

based on this issue. ER-22-24.

 Review is de novo. See Cardenas v. Anzai, 311 F.3d 929, 934 (9th Cir.

2002).

2. Whether the District Court erred by making findings of fact contrary to the

1
References to “doc” are to the District Court docket entry number.

2
factual allegations in the Amended Complaint and relying on these findings of fact

as the basis to dismiss the Amended Complaint under Fed. R. Civ. P. 12.

 This issue was raised in Appellants’ Opposition to the Arizona

Secretary of State’s Motion to Dismiss Amended Complaint, doc. 58 at

2-3, and Appellants’ Opposition to Maricopa Defendants’ Motion, doc.

56 at 2. The District Court’s Order granting Appellees’ Motions to

Dismiss stated that the District Court could “consider the evidence

presented with respect to the jurisdictional issue and rule on that issue,

resolving factual disputes if necessary” and could “weigh the evidence

to determine whether it has jurisdiction,” and the District Court’s legal

analysis relied upon factual findings contrary to the allegations in the

Amended Complaint. ER-17, 20-21 & nn.13-14.

 Review is de novo. Meland v. Weber, 2 F.4th 838, 843 (9th Cir. 2021)

(dismissal for lack of standing under Fed. R. Civ. P. 12(b)(1)); Taylor

v. Yee, 780 F.3d 928, 935 (9th Cir. 2015) (dismissal under Fed. R. Civ.

P. 12(b)(6)).

3. Whether Appellants have standing as candidates for office to challenge

Appellees’ reliance on unreliable methods to count votes and determine election

3
outcomes.

 This issue was raised in the Arizona Secretary of State’s Motion to

Dismiss Amended Complaint, doc. 45 at 5-9, and Appellants’

Opposition to the Arizona Secretary of State’s Motion, doc. 58 at 3-9.

The District Court’s Order granted Appellees’ Motions to Dismiss

based on this issue. ER-19-22.

 Review is de novo. Meland v. Weber, 2 F.4th 838, 843 (9th Cir. 2021).

4. Whether the doctrine of Purcell v. Gonzalez, 549 U.S. 1 (2006), that courts

should not ordinarily alter election rules on the eve of an election provides a basis to

dismiss claims for injunctive relief that extend to more-distant elections.

 This issue was raised in the Maricopa County Defendants’ Motion to

Dismiss Plaintiffs Amended Complaint, doc. 27 at 8-9, and the

Appellants’ Opposition to Maricopa Defendants’ Motion, doc. 56 at 8-

10. The District Court’s Order granting Appellees’ Motions to Dismiss

appears to have relied upon Purcell as a basis for dismissal. ER-8, 17,

26.

 Review is de novo. Meland v. Weber, 2 F.4th 838, 843 (9th Cir. 2021)

(dismissal for lack of standing under Fed. R. Civ. P. 12(b)(1)); Taylor

4
 v. Yee, 780 F.3d 928, 935 (9th Cir. 2015) (dismissal under Fed. R. Civ.

P. 12(b)(6)).

III. CIRCUIT RULE 28-2.2 STATEMENT OF JURISDICTION

(A) The statutory basis of subject matter jurisdiction of the District Court is 28

U.S.C. §§ 1331 and 1343(a)(3).

(B) The order and judgment appealed from are final because the order grants

Appellees’ motions to dismiss and directs the Clerk of Court to enter judgment

and close the case, and the judgment dismisses the action “in its entirety.” ER-

26. The statutory basis for this Court’s jurisdiction to hear this appeal is 28

U.S.C. § 1291.

(C) The order and judgment appealed from were entered by the District Court on

August 26, 2022. ER-27, ER-152. The Notice of Appeal was filed September

14, 2022. ER-3. The Notice of Appeal is timely pursuant to Fed. R. App. P.

4(a)(1)(A).

IV. STATEMENT OF THE CASE

Appellants Kari Lake and Mark Finchem (hereafter, the “Candidates”) were

candidates for office in Arizona’s November 2022 general election. ER-53. The

Candidates filed a Complaint, ER-97, and shortly thereafter the Amended

5
Complaint, ER-46, alleging that Arizona will use electronic voting systems to

administer future elections, and that use of these systems violates the Candidates’

federal constitutional rights because the electronic voting systems are subject to

intrusion and can be manipulated without detection to cause false reports of vote

tallies—deficiencies which are enabled by a systemic lack of transparency and

accountability to voters. ER-48, 51-52, 56, 59, 61, 63, 68-69, 78, 89, 91-92, 94-95.2

The Amended Complaint contains voluminous, detailed allegations showing

that electronic voting systems are subject to intrusion and manipulation and cannot

be relied upon to provide secure, correct vote tallies in public elections. Public

officials across the political spectrum have publicized glaring failures by these

systems for two decades. ER-47, 51, 56, 59, 61, 69-71. Computer scientists at

prominent universities have warned of and even demonstrated techniques to

manipulate the results reported by electronic voting machines. ER-61-62, 80-81.

Experts across the spectrum, cited in support of the Plaintiff’s Motion for a

Preliminary Injunction, have asserted that malicious conduct can be introduced into

2
The Candidates also filed a Motion for Preliminary Injunction, asking the District
Court to enjoin use of electronic voting systems in Arizona. Doc. 33.

6
these computerized systems without detection and have provided numerous

examples of hardened systems being breached. Importantly, processes billed as

guarding against security breaches, such as certification inspections, testing, and risk

limiting audits, are inadequate and can be defeated. ER-47, 51-52, 61, 66, 74, 81-82.

This lawsuit is not about, nor does it seek to affect, any election held in the past.

Rather, it is brought to remedy the constitutionally infirm problem of using

electronic voting machines in elections going forward. ER-48.

Appellees are the Arizona Secretary of State (“Hobbs”), who serves as

Arizona’s chief election official, and the members of the county Boards of

Supervisors for two of the largest counties in Arizona (the “Maricopa Defendants”

and the “Pima Defendants”). ER-53-54. Appellees are responsible for approving and

selecting election equipment to be used in Arizona, with Hobbs having authority

over all equipment in the state and the Maricopa Defendants and Pima Defendants

having authority over the equipment used in their respective counties. Id. The

Maricopa Defendants filed a Motion to Dismiss the Amended Complaint under Fed.

R. Civ. P. 12(b)(6). Doc. 27. The Pima Defendants joined the motion filed by the

Maricopa Defendants. Doc. 31. Hobbs filed a Motion to Dismiss the Amended

Complaint under Fed. R. Civ. P. 12(b)(1) and 12(b)(6), and joined the Maricopa

Defendants’ Motion to Dismiss. Doc. 45.

7
 The District Court held argument on the Appellees’ Motions to Dismiss and

an evidentiary hearing on the Candidates’ Motion for Preliminary Injunction, on July

21, 2022.3 ER-28-45. On August 26, 2022, the District Court entered an Order

granting Appellees’ Motions to Dismiss and instructing the Clerk to enter judgment

dismissing all claims and closing the case. ER-7-27. Part I.A of the Order comprises

about four pages of text describing the allegations in the Amended Complaint. ER-

8-12. Part I.B of the District Court’s Order, titled “Elections in Arizona,” comprises

about four pages of text stating a “brief overview of Arizona’s current practices

surrounding elections.” ER-12-16. Part I.B states what appear to be factual findings,

citing among other sources documents filed by the Maricopa Defendants in

connection with a “Motion for Judicial Notice,” ER-13 at n.5, ER-15 at n.9 ER-16;

the testimony of Maricopa County employee Scott Jarrett, ER-13-14 at n.8; and a

document from the Maricopa County website titled “Maricopa County Election

3
The District Court limited the Candidates’ evidentiary presentation at the hearing
to a total of two hours. Doc. 68. While not at issue in this appeal, the Candidates
introduced an abundance of expert and fact witness testimony during the limited
time allowed by the Court to hear evidence on the Candidates Preliminary
Injunction Motion. This evidence supported the allegations in the Amended
Complaint. The standard for a motion to dismiss requires the allegations in the
Amended Complaint to be taken as true in any event.

8
Facts | Voting Equipment & Accuracy.” ER-13-14. In a footnote, the Order states

that it “only refers to these facts [from the Motion for Judicial Notice] for the purpose

of providing background for its later analysis, not to establish the truth of any

disputed fact.” ER-13 at n.5. Later, the Order cites the factual assertions stated in

Part I.B as a basis to reject factual allegations in the Amended Complaint. ER-20-21

at nn.13-14.

On September 14, 2022, the Candidates filed a Notice of Appeal of the

District Court’s Order and the Judgment. ER-3-6.4

V. SUMMARY OF THE ARGUMENT

The District Court’s Order dismissing the Candidates’ claims rests upon a

series of errors of law.

Regarding Eleventh Amendment state sovereign immunity:

 The District Court erroneously relied upon Eleventh Amendment

immunity as a basis to dismiss the Candidates’ claims against the

4
On December 1, 2022, the District Court entered an order stating its intent to issue
sanctions against the Candidates’ counsel under Fed. R. Civ. P. 11 and 28 U.S.C
§ 1927. Doc. 106. The District Court has not yet determined the sanctions amount.
Once the District Court enters a final order, the Candidates intend to appeal that
order to this Court.

9
 Maricopa Defendants and the Pima Defendants. ER-22-24. Eleventh

Amendment state sovereign immunity does not shield counties or

county officials. Ray v. Cty. of L.A., 935 F.3d 703, 708 (9th Cir. 2019).

 The District Court erroneously held that Eleventh Amendment

immunity bars the Candidates from bringing claims against Hobbs in

her official capacity as Arizona Secretary of State for prospective

injunctive relief to prevent violations of the federal constitutional right

to vote. ER-22-24.The Ex parte Young doctrine permits such claims.

Mecinas v. Hobbs, 30 F.4th 890, 903 (9th Cir. 2022); Ex parte Young,

209 U.S. 123, 157 (1908)).

 The District Court erroneously held that the federal Constitution

imposes no limits on a state’s administration of its elections, and

therefore concluded that Appellants failed to state any claim to

vindicate rights under federal law. ER-22-24. The federal Constitution

requires states, in the use of their authority to administer elections, to

refrain from violating constitutional rights of voters. Baker v. Carr, 369

U.S. 186, 208 (1962).

10
Regarding standing:

 The District Court erroneously held that Appellants failed to articulate

a concrete and particularized injury. ER-19-22. Appellants, as

candidates for public office, suffer concrete and particularized injury

when state officers permit inaccurate vote tallies to affect the outcome

of their elections. Spokeo, Inc. v. Robins, 578 U.S. 330, 340 (2016).

 The District Court erroneously held that Appellants failed to articulate

an actual or imminent injury. ER-19-22. Appellants showed certainty

of harm as well as a substantial risk of harm, either of which is sufficient

to demonstrate standing. The District Court also erred by relying upon

a misstatement of the applicable law of standing, ignoring that a

plaintiff may satisfy the actual or imminent injury element of standing

by showing a “substantial risk” of harm and instead requiring

Appellants to show injury is “certainly impending.” ER-19, 21; Susan

B. Anthony List v. Driehaus, 573 U.S. 149, 158 (2014). It is, however,

well-settled that Appellants need only allege a “credible threat” of

future harm to satisfy standing requirements at the motion to dismiss

stage. Election Integrity Project Cal., Inc. v. Weber, No. 21-56061,

11
 2022 U.S. App. LEXIS 30549, at *5 (9th Cir. Nov. 3, 2022) (citing

Krottner v. Starbucks Corp., 628 F.3d 1139, 1143 (9th Cir. 2010)).5

 The District Court ignored the fundamental legal standard applied on a

motion to dismiss, and instead relied upon factual findings contrary to

the allegations in the Amended Complaint as the basis to reject

Appellants’ standing to bring their claims. ER-12-16. Fed. R. Civ. P.

12(b)(1) and 12(b)(6) prohibit the District Court from dismissing a

complaint by contradicting its well-pleaded factual allegations and by

refusing to draw inferences in favor of the Plaintiffs. Mecinas, 30 F.4th

at 895-96 (“When ‘deciding standing at the pleading stage, and for

purposes of ruling on a motion to dismiss for want of standing, both the

trial and reviewing courts must accept as true all material allegations of

the complaint, and must construe the complaint in favor of the

complaining party.’” (quoting Desert Citizens Against Pollution v.

Bisson, 231 F.3d 1172, 1178 (9th Cir. 2000))).

5
All unpublished opinions not readily available through public means are included
in the Addendum.

12
 Regarding Purcell v. Gonzalez:

 The District Court erroneously relied upon Purcell v. Gonzalez, 549

U.S. 1 (2006), to dismiss the Candidates’ claims. ER-24-26. Purcell

does not authorize a court to dismiss claims that extend beyond an

impending election, as Appellants’ claims do.

VI. ARGUMENT

This is an appeal from a Rule 12(b)(1) dismissal of the Candidates’ claims.

ER-17.6 The District Court provided three justifications for its dismissal order:

Article III standing, Eleventh Amendment immunity, and timing of the requested

relief relative to the 2022 election, per Purcell v. Gonzalez, 549 U.S. 1, 4 (2006).

ER-17, 19-26. The District Court found that “each of these arguments is dispositive

on its own.” ER-17.

6
The Court also referenced in passing Rule 12(b)(6), dismissal for failure to state a
claim. ER-17. The Court did not, however, further analyze or discuss dismissal
related to Rule 12(b)(6). To the extent that Rule 12(b)(6) was a basis for dismissal,
it is as flawed as the Rule 12(b)(1) analysis due to the Court making separate
factual findings beyond the allegations in the Amended Complaint. United States
v. LSL Biotechnologies, 379 F.3d 672, 700 (9th Cir. 2004) (noting a district court
“may not make fact findings of a controverted matter when ruling on a Rule
12(b)(6) motion.” (citing Roberts v. Corrothers, 812 F.2d 1173, 1177 (9th Cir.
1987))).

13
 The District Court’s Order rests upon errors of law concerning each of these

three points. Eleventh Amendment jurisprudence does not bar the Candidates’

claims for prospective injunctive relief against the county defendants and Secretary

of State Hobbs. The Candidates have standing to pursue claims that Appellees permit

inaccurate vote tallies in their elections, and the District Court may not for purposes

of dismissal simply controvert the Candidates’ factual allegations that electronic

voting machines are unsecure and susceptible to improper vote manipulation.

Purcell is a doctrine concerning the availability of immediate injunctive relief, not a

basis to dismiss claims in the Amended Complaint.

On a Rule 12 motion to dismiss, a district court is required to accept the

substantive factual allegations stated in the Amended Complaint as true and draw all

reasonable inference from those allegations. Pride v. Correa, 719 F.3d 1130, 1133

(9th Cir. 2013) (“Whether we construe Defendants’ motion as one under Rule

12(b)(6) or as a facial attack on subject matter jurisdiction under Rule 12(b)(1), all

factual allegations in Pride’s complaint are taken as true and all

reasonable inferences are drawn in his favor.”); Mecinas v. Hobbs, 30 F.4th 890,

895-96 (9th Cir. 2022) (“When ‘deciding standing at the pleading stage, and for

purposes of ruling on a motion to dismiss for want of standing, both the trial and

reviewing courts must accept as true all material allegations of the complaint, and

14
must construe the complaint in favor of the complaining party.’” (quoting Desert

Citizens Against Pollution v. Bisson, 231 F.3d 1172, 1178 (9th Cir. 2000))). The

Candidates’ Complaint states claims for which a federal court can grant relief and

alleges facts to support those claims. Therefore, the Amended Complaint cannot be

dismissed under Fed. R. Civ. P. 12.

Standard of Review. “[A] district court’s determination that a suit against a

state official is barred by the state’s Eleventh Amendment immunity” is reviewed de

novo. Cardenas v. Anzai, 311 F.3d 929, 934 (9th Cir. 2002). See also Nat’l Audubon

Soc’y v. Davis, 307 F.3d 835, 846 (9th Cir. 2002). An order granting a motion to

dismiss for lack of standing under Fed. R. Civ. P. 12(b)(1) is reviewed de novo, and

this Court construes “‘all material allegations of fact in the complaint in favor of the

plaintiff.’” Meland v. Weber, 2 F.4th 838, 843 (9th Cir. 2021) (quoting Southcentral

Found. v. Alaska Native Tribal Health Consortium, 983 F.3d 411, 416-17 (9th Cir.

2020). Dismissal of a complaint under Fed. R. Civ. P. 12(b)(6) is also reviewed de

novo. Taylor v. Yee, 780 F.3d 928, 935 (9th Cir. 2015)).

A. The Eleventh Amendment Permits the Candidates’ Claims.

The District Court misapplied basic principles of Eleventh Amendment law

to hold that state sovereign immunity required dismissal of the Candidates’ claims

15
against the Maricopa and Pima Defendants, and against Arizona Secretary of State

Hobbs. See ER-22.

1. The Eleventh Amendment Does Not Shield Counties.

The District Court’s conclusion that Eleventh Amendment immunity

precludes the Candidates’ claims against the county official defendants was

erroneous because Eleventh Amendment immunity does not shield county officials.

“Federal courts have long declined to extend Eleventh Amendment immunity

to counties.” Ray v. Cty. Of L.A., 935 F.3d 703, 708 (9th Cir. 2019). Absent an

argument that the county acted as an “arm of the state” – a theory neither argued by

Maricopa County and Pima County nor analyzed by the District Court in its decision

– it was manifestly erroneous for the District Court to hold that Eleventh

Amendment immunity precludes Appellants from bringing their claims against the

Maricopa Defendants and Pima Defendants. See id. at 713; Lake Country Estates,

Inc. v. Tahoe Reg’l Planning Agency, 440 U.S. 391, 401 (1979). This aspect of

Eleventh Amendment law is so clearly established that the Maricopa Defendants did

not even attempt to assert Eleventh Amendment defenses in their motion to dismiss.

See doc. 27. The District Court’s sue sponte invocation of Eleventh Amendment

immunity to dismiss the Candidates’ claims against the Maricopa Defendants and

the Pima Defendants was error.

16
 2. The Eleventh Amendment Does Not Shield Hobbs Against a
Claim for Injunctive Relief to Vindicate Federal Rights.

The District Court’s conclusion that Eleventh Amendment immunity

precludes the Candidates’ claims against defendant Hobbs was erroneous because

the Eleventh Amendment does not bar an action against a state official in her official

capacity seeking injunctive relief to vindicate federal rights. Under Ex parte Young

the Eleventh Amendment does not prevent “‘actions for prospective declaratory or

injunctive relief against state officers in their official capacities for alleged violations

of federal law’” so long as the state officer has “‘some connection with enforcement

of the act.’” Mecinas, 30 F.4th at 903 (quoting Coal. To Defend Affirmative Action v.

Brown, 674 F.3d 1128, 1134 (9th Cir. 2012); Ex parte Young, 209 U.S. 123, 157

(1908)).

The Amended Complaint alleges that the Candidates’ federal constitutional

rights to vote are violated by Hobbs’s approval for Arizona to use voting equipment

that unauthorized persons can cause to change vote totals. ER-53-54, 89-92. Hobbs

did not argue, and the District Court did not find, that Hobbs lacked a connection

with enforcement of the acts complained of in the Amended Complaint. See Doc.

No. 45; ER-7.

“[V]oting” is “the most basic of political rights.” FEC v. Akins, 524 U.S. 11,

17
25 (1998). Citizens possess a fundamental right to vote. Burdick v. Takushi, 504 U.S.

428, 433 (1992). A state may not by arbitrary action or other unreasonable

impairment burden the right to vote. Baker v. Carr, 369 U.S. 186, 208 (1962). The

right to vote includes the right to have the vote counted, United States v. Classic,

313 U.S. 299, 315 (1941), “correctly counted and reported,” Gray v. Sanders, 372

U.S. 368, 380 (1963), and not debased or diluted by the introduction of fraudulent

votes, Reynolds v. Sims, 377 U.S. 533, 556 (1964). “[T]he free exercise and

enjoyment of the rights and privileges guaranteed to the citizens by the Constitution

and laws of the United States” entails “the right and privilege . . . to have their

expressions of choice given full value and effect by not having their votes impaired,

lessened, diminished, diluted and destroyed by fictitious ballots fraudulently cast

and counted, recorded, returned, and certified.” United States v. Saylor, 322 U.S.

385, 386 (1944). “[S]ince the right to exercise the franchise in a free and unimpaired

manner is preservative of other basic civil and political rights, any alleged

infringement of the right of citizens to vote must be carefully and meticulously

scrutinized.” Reynolds, 377 U.S. at 562.

The Amended Complaint pleads that Arizona’s electronic election systems

are so unsecure that vote tallies they report cannot be relied upon as accurate tallies

unimpaired by fictitious, fraudulent, or manipulated votes. ER-48 (“Given the

18
limitations and flaws of existing technology, electronic voting machines cannot

legally be used to administer elections today and for the foreseeable future, unless

and until their current electronic voting system is objectively validated.”), ER-52

(“Expert testimony demonstrates that all safety measures intended to secure

electronic voting machines against manipulation of votes, such as risk limiting audits

and logic and accuracy tests, can be defeated.”), id. (“Arizona’s electronic election

infrastructure is potentially susceptible to malicious manipulation that can cause

incorrect counting of votes. Despite a nationwide bipartisan consensus on this risk,

election officials in Arizona continue to administer elections dependent upon

unreliable, insecure electronic voting systems. These officials, including Appellees

in Maricopa County, refuse to take necessary action to address known and currently

unknown election security vulnerabilities, and in some cases have obstructed court

authorized inspections of their electronic voting systems.”), ER-59 (“With each

passing election the unreliability of electronic voting machines has become more

apparent. In light of this experience, the vote tallies reported by electronic voting

machines cannot, without objective evaluation, be trusted to accurately show which

candidates actually received the most votes.”); ER-77 (“This lack of transparency

has created a ‘black box’ system of voting which lacks credibility and integrity.”).

See also ER-51, 63, 68-69, 78, 89-92. Accordingly, the Amended Complaint

19
adequately pled that Arizona’s use of electronic voting machines violates the

Candidates’ constitutional right to vote. ER-89-92. The Candidates seek prospective

declaratory and injunctive relief against Hobbs, a state officer in her official

capacity, for these violations of federal constitutional law caused by her actions. ER-

90-94. Hobbs, as Secretary of State, is Arizona’s “chief state election officer” and

responsible for approval of election equipment. A.R.S. §§ 16-142(A)(1), 16-441;

ER-85-86. The Amended Complaint’s claims against Hobbs cannot be summarily

dismissed on the basis of Eleventh Amendment state sovereign immunity.

3. The District Court Erred in Its Analysis of the Eleventh

Amendment by Disregarding Constitutional Limitations on
State Election Administration.

The District Court wrongly concluded that the Candidates failed to plausibly

allege a violation of federal law, stating, that “[b]ecause the Constitution charges

states with administering elections, Plaintiffs’ claims can only stem from an

argument that Defendants are violating state law by using what Plaintiffs allege are

insecure or inaccurate voting systems.” ER-23. The District Court’s conclusion

contradicts well-established law in which federal courts apply constitutional

limitations to state administration of elections. Federal courts have long recognized

that the Constitution both grants power to states to regulate elections and forbids

20
states from infringing their citizens’ federal rights when regulating elections. E.g.

Tashjian v. Republican Party of Conn., 479 U.S. 208, 217 (1986) (state’s “power to

regulate the time, place, and manner of elections does not justify, without more, the

abridgment of fundamental rights, such as the right to vote”); Gomillion v. Lightfoot,

364 U.S. 339, 347 (1960) (“When a State exercises power wholly within the domain

of state interest, it is insulated from federal judicial review. But such insulation is

not carried over when state power is used as an instrument for circumventing a

federally protected right.”). The District Court’s disregard of this fundamental

principle of election law was erroneous. The law is unmistakably clear that federal

constitutional limitations on state discretion apply in the realm of election

administration as in any other realm. E.g., Nader v. Brewer, 531 F.3d 1028, 1034

(9th Cir. 2008) (“The Supreme Court has held that when an election law is

challenged, its validity depends on the severity of the burden it imposes on the

exercise of constitutional rights and the strength of the state interests it serves.”);

Trump v. Wis. Elections Comm’n, 983 F.3d 919, 925 (7th Cir. 2020) (“[W]e can

decide whether their interpretation of state law violated a provision of the federal

Constitution”). “The States possess a broad power to prescribe the Times, Places and

Manner of holding Elections for Senators and Representatives, Art. I, § 4, cl. 1,

which power is matched by state control over the election process for state offices .

21
. . . This power is not absolute, but is subject to the limitation that [it] may not be

exercised in a way that violates . . . specific provisions of the Constitution.” Wash.

State Grange v. Wash. State Republican Party, 552 U.S. 442, 451 (2008) (quotations

and citations omitted)).

The District Court’s holding that the federal Constitution does not in any way

limit Arizona’s discretion to select a balloting system, ER-22-23, is plainly incorrect.

The principles of one-person, one-vote and the right to a correct count of the votes

discussed above impose clear constitutional limitations on Arizona’s discretion to

structure its voting system. Arizona could not constitutionally adopt a system that

allows voters to cast as many ballots as they chose, or that permits one voter to

remove another voter’s ballot from the ballot box. Similarly, Arizona cannot

constitutionally use electronic voting machines to count votes in elections if the

machines do not yield reliable vote tallies. To be constitutional, election regulations

must produce a count of the legal votes known to be reliable. The Amended

Complaint pleads that the system Arizona has adopted exceeds the discretion

permitted to Arizona by the Constitution. ER-89-92 (alleging violations of due

process and fundamental right to vote). This is a proper constitutional claim that has

22
been adequately pled.7

The District Court erred in concluding that the Eleventh Amendment bars

Plaintiffs’ claims against Maricopa County, Pima County, and against Hobbs.

B. The Candidates Have Standing.

The Candidates have standing to bring their constitutional claims because the

Appellees’ use of electronic voting systems to determine the persons elected as

public officials when the results reported by those electronic voting systems cannot

reasonably be relied upon as accurate. The Amended Complaint alleges this system

lacks integrity, lacks transparency, and undermines confidence in the selection of

the winning candidate. ER-46-48, 58, 77. This injures the Candidates by infringing

their constitutional right to have votes accurately and reliably counted.

7
The District Court’s conclusion that the Candidates’ claims depend upon showing
“Defendants are violating state law,” ER-23, mischaracterized the Amended
Complaint. Even if Appellees’ use of electronic election equipment complies with
Arizona state law, the Candidates allege that the equipment is unsecure and
therefore violates the Candidates’ federal constitutional rights. ER-47-48, 51-52,
59. Failure by Appellees to comply with state law might serve as evidence that
Arizona’s election systems are not secure against manipulation, but state law
violations are not necessary to the Candidates’ claims.

23
 1. The Candidates Satisfy the Elements for Standing.

To sue in federal court, a plaintiff must have standing. Standing requires that

a complaint plead three elements: “The plaintiff must have (1) suffered an injury in

fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3)

that is likely to be redressed by a favorable judicial decision.” Spokeo, Inc. v. Robins,

578 U.S. 330, 338 (2016) (citations omitted). When “a case is at the pleading stage”

the plaintiff must “‘clearly . . . allege facts demonstrating’ each element.” Id.

(quoting Warth v. Seldin, 422 U.S. 490, 518 (1975)).

The Amended Complaint alleges that Candidates sustained an (1)

infringement of their constitutional right to vote (2) by the conduct of the Appellees,

as public officials, in causing Arizona, Maricopa County, and Pima County to use

unreliable electronic voting equipment to determine winners of public elections,

which is (3) an injury that can be redressed by a judicial order enjoining Appellees

from continuing this unconstitutional behavior. ER-48, 51-52, 59, 63, 68-69, 78, 89-

92; ER-53-54, 86-87; ER-94. Accordingly, the Candidates have standing to bring

their claims. See, e.g., Election Integrity Project Cal., Inc. v. Weber, No. 21-56061,

2022 U.S. App. LEXIS 30549, at *6 (9th Cir. Nov. 3, 2022) (noting organizational

plaintiff’s “alleged injury stems from California's vote-by-mail and signature

verification policies, and from the procedures for sending out ballots to the current

24
voter rolls, it is traceable to the election officials implementing those policies. By

the same token, [the plaintiff] can obtain relief from those injuries if the court enjoins

those responsible for enforcing these policies.” (citations omitted)).

The only element of the Candidates’ standing that was contested before the

District Court is the first element, injury in fact. To establish injury in fact, a plaintiff

must allege the “invasion of a legally protected interest” that is “concrete and

particularized” and “actual or imminent, not conjectural or hypothetical.” Meland, 2

F.4th at 844.

a. The Amended Complaint Alleges an Injury in Fact.

As set forth in Section A.2 above, the federal Constitution guarantees citizens

the right to vote as “the most basic of political rights,” FEC, 524 U.S. at 25, and a

fundamental constitutional right, Burdick, 504 U.S. at 433. The right to vote includes

the right to have the vote counted, Classic, 313 U.S. at 315, “correctly counted and

reported,” Gray, 372 U.S. at 380, and not debased or diluted by the introduction of

fraudulent votes, Reynolds, 377 U.S. at 556. Federal constitutional rights ensure

voters “the right and privilege . . . to have their expressions of choice given full value

and effect by not having their votes impaired, lessened, diminished, diluted and

destroyed by fictitious ballots fraudulently cast and counted, recorded, returned, and

certified.” Saylor, 322 U.S. at 386. A state may not, by arbitrary action or other

25
unreasonable impairment, burden the right to vote. Baker, 369 U.S. at 208.

With respect to candidates for office, the right to vote includes “a cognizable

interest in ensuring that the final vote tally accurately reflects the legally valid votes

cast.” Carson v. Simon, 978 F.3d 1051, 1058 (8th Cir. 2020) (footnote omitted);

Trump v. Wis. Elections Comm’n, 983 F.3d 919, 924 (7th Cir. 2020). As this Court

recently noted in Mecinas, 30 F.4th 890 (9th Cir. 2022), a plaintiff alleging “the

burden of being forced to compete under the weight of a state-imposed

disadvantage” has sufficiently articulated an injury in fact for the purposes of a

motion to dismiss. 30 F.4th at 899; Jones v. Bates, 127 F.3d 839, 847 n.8 (9th Cir.

1997) (holding that potential future candidates for state legislature, challenging

legislation imposing term limits, had demonstrated an adequate likelihood of future

injury for justiciability purposes merely by alleging their desire to run in a future

election).

The Amended Complaint alleges that Appellees conduct causing the use of

electronic voting machines to administer public elections unconstitutionally invades

the Candidates’ legally protected right to vote because the machines permit and are

open to inaccurate counting of votes and the debasement and dilution of votes by the

introduction of fraudulent or fictitious votes which can go undetected. ER-48, 51-

52, 59, 63, 68-69, 78, 89-92. The Amended Complaint satisfies the first element of

26
injury in fact.

b. The Amended Complaint Alleges a Legally Protected

Interest That Is Concrete and Particularized.

The Candidates’ legally protected interest in voting is concrete and

particularized, for purposes of standing because it is a specific individual

constitutional right. Intangible injuries can be “concrete,” and infringement of a

constitutional right is an example of concrete intangible injury. Spokeo, 578 U.S. at

340.

An injury is “[p]articularized” if it affects a plaintiff “in a personal and

individual way.” Id. at 339. “An inaccurate vote tally is a concrete and particularized

injury to candidates” sufficient to meet the injury-in-fact requirement. Carson, 978

F.3d at 1058. Courts have long recognized that violation of the right to vote by

government action improperly affecting vote tallies confers standing to seek relief

in a federal court. Bonas v. Town of N. Smithfield, 265 F.3d 69, 75 1st Cir. 2001);

Marks v. Stinson, 19 F.3d 873, 887 (3d Cir. 1994); Griffin v. Burns, 570 F.2d 1065,

1078-79 (1st Cir. 1978). This Court recently observed that “[i]f an allegedly

unlawful election regulation makes the competitive landscape worse for a candidate

or that candidate's party than it would otherwise be if the regulation were declared

27
unlawful, those injured parties have the requisite concrete, non-generalized harm to

confer standing.” Mecinas, 30 F.4th at 898.

 By articulating facts showing that Appellees’ conduct permits the dilution and

debasement of the Candidates’ votes by fictitious or manipulated votes, the

Amended Complaint identifies a concrete, intangible federal right infringed by

Appellees’ conduct and identifies how Appellees’ infringement of that right

specifically harms the Candidates. The Amended Complaint alleges a concrete and

particularized injury. ER-48, 51-52, 59, 63, 68-69, 78, 89-92; Mecinas, 30 F.4th at

898.

The fact that Appellees’ wrongful conduct also inflicts the same concrete and

particularized injury on other voters does not prevent the Candidates from having

standing to pursue relief concerning their own injuries. “[W]here a harm is concrete,

though widely shared, the [Supreme] Court has found ‘injury in fact.’” FEC, 524

U.S. at 24. “This conclusion seems particularly obvious . . . where large numbers of

voters suffer interference with voting rights conferred by law.” Id. In FEC, the

Supreme Court held that a claim “directly related to voting, the most basic of

political rights,” was “sufficiently concrete” to establish standing. Id. at 24-25. In

Brakebill v. Jaeger, the Eighth Circuit held that the plaintiff had standing to

challenge a voter identification law notwithstanding that the burden of the law would

28
fall on any person who had a residential street address. 932 F.3d 671, 677 (8th Cir.

2019). In Common Cause/Georgia v. Billups the Eleventh Circuit held that the

plaintiffs had standing to challenge a voter identification statute and that the statute

could be challenged even by persons who possessed an acceptable form of

identification. 554 F.3d 1340, 1351-52 (11th Cir. 2009). That court noted that the

“inability of a voter to pay a poll tax” would not be required to challenge a statute

imposing a tax on voting. Id. at 1352. A claim challenging a poll tax would assert an

injury applicable to all voters, but the requirement of standing would nevertheless

be met. The same is true here. See also Donald J. Trump for President, Inc. v.

Bullock, 491 F. Supp. 3d 814, 828 (D. Mont. 2020) (“Because the alleged injuries to

the members’ voting rights at issue in this case could conceivably be asserted by any

Montanan does not eradicate the standing necessary to assert these claims. On the

contrary, the Supreme Court has repeatedly enumerated the principle that claims

alleging a violation of the right to vote can constitute an injury in fact despite the

widespread reach of the conduct at issue.”).

The District Court erroneously concluded that the Candidates’ status as

candidates did not make their injury sufficiently particularized. ER-21-22. To reach

this conclusion, the District Court held that a candidate must allege “the field is

‘tilted’” in order to have standing to pursue a claim concerning the accuracy of a

29
final vote tally. Id. No such requirement to allege “tilting” exists. Rather, “[a]n

inaccurate vote tally is a concrete and particularized injury to candidates,” without

more. See Carson, 978 F.3d at 1058 (candidates had standing to challenge state’s

intent to count absentee ballots received after election day); Trump, 983 F.3d at 924-

25 (candidate had standing to challenge slate of electors in a state in which he did

not reside).

The Amended Complaint pleads facts that, accepted as true, show Appellees’

use of electronic voting machines and the machines’ susceptibility to manipulation

and intrusion and lack of transparency violates the Candidates’ individual

constitutional rights. ER-89-92. The Amended Complaint pleads an injury concrete

and particularized. It therefore satisfies the second element of injury in fact.

c. The Amended Complaint Alleges an Invasion of Interest

That Is Actual or Imminent, Not Conjectural or
Hypothetical.

The Amended Complaint alleges, in two separate ways, harm that is “actual

or imminent” sufficient to satisfy the third element of “injury in fact.” First, the

Amended Complaint alleges certain harm, because Arizona’s use of electronic

voting machines to administer elections results in inherently uncertain vote tallies

that infringe upon the Candidates’ constitutional right to a reliable vote tally. Second,

the Amended Complaint alleges substantial risk of harm by claiming facts that show

30
the opportunity, means, motive, and actors all exist to cause manipulation of votes

on Arizona’s electronic voting machines. The certain harm and the substantial risk

of harm each, independently, satisfy the “actual or imminent” element of standing.

The Amended Complaint Pleads Certain Harm. The Amended Complaint

pleads certain harm because, if the facts alleged in the Amended Complaint are true,

vote tallies provided by electronic voting machines cannot be relied upon as

accurate, meaning Arizona’s method of administering elections appoints “winners”

without regard to whether those persons received the most votes. ER-48, 51-52, 59,

63, 68-69, 77-78, 89-92. Reliance on an unreliable system to count votes inflicts a

certain harm. Such a system necessarily violates the Candidates’ constitutional right

to vote.

Because voting is “the most basic of political rights,” FEC, 524 U.S. at 25,

and citizens possess a fundamental right to vote, Burdick, 504 U.S. at 433, states like

Arizona must administer elections in such a way as to preserve the meaning and

significance of each vote. Casting a ballot is a meaningless act unless the votes on

the ballot are counted through a reliable process that produces an accurate tally of

all legal, and only all legal, votes. A method of election administration violates the

right to vote unless the method counts the votes, Classic, 313 U.S. at 315, correctly

counts and reports the votes, Gray, 372 U.S. at 380, and excludes fraudulent and

31
fictitious votes, Reynolds, 377 U.S. at 556; Saylor, 322 U.S. at 386. Stated

differently, election administrators may not count votes by procedures that leave an

open door for manipulation without regard to whether actual manipulation is shown

in any particular election. A candidate’s right to vote encompasses the right to have

a reliable method of counting used to determine the outcome. See Marks, 19 F.3d at

887; Bonas, 265 F.3d at 74; Griffin, 570 F.2d at 1078-79.

These constitutional principles obligate counties and states to use methods of

counting votes that produce a reliable tally reasonably immune from manipulation.

A county could not constitutionally conduct an election by erecting a booth with a

chalkboard for passersby to mark their votes as chalk tallies next to the candidates’

names on Election Day. Such a method would not adequately ensure vote totals at

the end of the day reflected an accurate total of legal votes, for passersby might mark

more than one vote, erase votes, or vote though ineligible. A county could not

constitutionally conduct an election by permitting unsupervised lone volunteers to

transport satchels of ballots from polling sites to a central counting center, for such

a method would not adequately ensure that ballots received at the counting center

represented all legal, and only legal, ballots cast at the polling sites. Such systems

would violate the constitutional right to vote without regard to whether actual

manipulation of vote totals could be proved, because the systems would not provide

32
vote totals reasonably known to be reliable. Those would constitute systems of

election administration that by “arbitrary action or unreasonable impairment burden

the right to vote.” Baker, 369 U.S. at 208.

The allegations of the Amended Complaint, taken as true, plead a certain harm

to the Candidates’ constitutional right to vote: Appellees’ use of the black box of

electronic voting machines to count votes yields totals that are not reasonably

reliable because the tallies are susceptible to manipulation, oftentimes undetectable.

ER-48, 51-52, 59, 63, 68-69, 78, 89-92. The Amended Complaint alleges that the

electronic voting systems Arizona uses have security failures that allow

unauthorized persons to manipulate votes, and that similar manipulation has

repeatedly occurred in the past. ER-51-52, 56-67. The Amended Complaint contains

detailed allegations that existing procedures and certifications can be defeated, and

that manipulation of votes can be performed without leaving a record of the changes.

ER-52, 61, 70, 77-78, 80-81. The Amended Complaint further alleges that

certification and logic and accuracy testing is entirely ineffective and reliance on it

is meaningless. ER-52, 81.

Drawing reasonable inferences in Appellants’ favor, as this Court must, these

allegations plead that Appellants’ rights as candidates, as well as voters’ right to vote

and have an accurate count of the vote are nullified because Appellees’ conduct

33
elections in such a way that the reported vote tallies can be changed by undetected

manipulation ER-61, 74, meaning no one could ever know whether reported winners

actually won. Voting is meaningless unless the vote is fairly counted and the winner

of the election is determined by a method that reliably counts the votes. Griffin, 570

F.2d at 1078-79 (affirming injunction requiring new election where the “integrity”

of the initial election “was severely impugned” by voters using ballots quashed by

the state supreme court, in part because “due process involves the appearance of

fairness as well as actual fairness”). See Marks, 19 F.3d at 887 (affirming injunction

against candidate taking office after election in which fraud may have changed the

outcome when the “possibility is left open that some other candidate actually

received more votes than the declared winner, which would mean that each of the

votes cast for this other candidate was ignored”); Bonas, 265 F.3d at 74 (holding that

where “organic failures in a state or local election process threaten to work patent

and fundamental unfairness, a colorable claim lies for a violation of substantive due

process (and, hence, federal jurisdiction attaches)”).8

With respect to candidates for office, the right to vote includes “a cognizable

8
The Amended Complaint alleges that post-election audits do not and cannot
remediate the security problems inherent in electronic voting machines. ER-52, 81.

34
interest in ensuring that the final vote tally accurately reflects the legally valid votes

cast.” Carson, 978 F.3d at 1058 (footnote omitted). A system of election

administration that yields inherently uncertain vote tallies inflicts a certain, non-

speculative harm on the Candidates, giving them standing to bring the claims

asserted in the Amended Complaint.

The Amended Complaint Pleads Substantial Risk of Harm. Apart from the

certain harm inflicted upon the Candidates by use of a system of election

administration that yields inherently uncertain vote tallies, the Amended Complaint

alleges “actual or imminent” harm by pleading a substantial risk of vote

manipulation. The Amended Complaint pleads facts that, taken as true, show

Arizona’s electronic voting machines provide an opportunity for manipulation of

vote tallies, attempts to breach the security of electronic election systems have

occurred in the past, and persons with the desire and means to manipulate American

elections exist. ER-47, 51, 56, 59, 61-62, 69-71, 80-81. Because the Amended

Complaint pleads facts showing opportunity, means, and motivated actors seeking

to manipulate vote tallies, the Amended Complaint pleads a non-speculative

likelihood of harm that satisfies the constitutional requirements for standing.

“An allegation of future injury may suffice” to establish standing “if the

threatened injury is certainly impending, or there is a substantial risk that the harm

35
will occur.” Susan B. Anthony List v. Driehaus, 573 U.S. 149, 158 (2014) (quotation

omitted); Spokeo, 578 U.S. at 339 (observing that “standing requires that the plaintiff

‘personally has suffered some actual or threatened injury’” (emphasis added)

(quoting Valley Forge Christian College v. Am. United for Sep. of Church & State,

Inc., 454 U.S. 464, 472 (1982))). An “increased probability of injury” as a result of

the challenged act can provide standing. Sierra Club v. United States EPA, 774 F.3d

383, 392 (7th Cir. 2014). “This does not mean, however, that the risk of real harm

cannot satisfy the requirement of concreteness.” Spokeo, 578 U.S. at 341 (emphasis

added). This Court, as it observed mere weeks ago, has “long held that a threatened

injury may constitute an injury in fact where, as here, there is ‘a credible threat of

harm’ in the future, rather than a speculative fear ‘of hypothetical future harm.’”

Election Integrity Project Cal., 2022 U.S. App. LEXIS 30549, at *5 (citing Krottner

v. Starbucks Corp., 628 F.3d 1139, 1143 (9th Cir. 2010); Clapper v. Amnesty Int'l

USA, 568 U.S. 398, 416 (2013).

Accordingly, the United States District Court for the Northern District of

Georgia properly held that plaintiffs had standing to bring claims where they

“plausibly allege[d] a threat of a future hacking event that would jeopardize their

votes and the voting system at large.” Curling v. Kemp, 334 F. Supp. 3d 1303, 1316

(N.D. Ga. 2018). This Court recently reached a similar conclusion, finding that an

36
“allegedly unlawful election regulation” impacting the “completive landscape” is

sufficiently concrete to confer standing on a candidate. Mecinas, 30 F.4th at 898.

Here, the Amended Complaint’s allegations, accepted as true, allege a

“substantial risk” that manipulation of votes on Appellees’ electronic voting

machines will occur and recur. The Amended Complaint pleads an abundance of

facts to support the reasonable inference that Appellees’ electronic voting machines

have security failures that allow a malicious actor to manipulate vote totals. These

facts are pleaded in summary, ER-51-52, and in detail. ER-72-73, 80-81, 87. The

allegations include a detailed array of real-world events, over a period of two

decades, showing that electronic voting machines and election management systems

can be hacked to manipulate votes. ER-59-67.

 The Amended Complaint alleges that all electronic voting machines

and election management systems, including those used in Arizona, are

vulnerable to internal or external intrusion to alter votes. ER-51.

 The Amended Complaint alleges that malware can cause the changing

of votes on electronic election equipment and delete itself after the

election, “leaving no evidence that the voting machine was ever

hijacked or any votes stolen.” ER-61.

37
  The Amended Complaint alleges that experts for years have

demonstrated the ability to hack election machines certified for use in

elections. ER-61-62, 66-67.9 It alleges a computer programmer testified

that he had been hired to create a program to change the results of an

election without leaving any trace of the change and had done so. ER-

61. It alleges Princeton University computer scientists reported that a

commonly used electronic voting system was vulnerable to software

that stole votes with “little risk of detection.” Id. It alleges Dominion

and ES&S electronic voting machines “can be hacked or compromised

with malware, as has been demonstrated by recognized computer

science experts, including experts from the University of Michigan,

Princeton University, Georgetown University, and other institutions.”

ER-56-57.

9
Cf. Steven M. Bellovin et al., Seeking the Source: Criminal Defendants’
Constitutional Right to Source Code, 17 Ohio St. Tech. L.J. 1, 35 (Dec. 2020)
(Voting machines are the “best-documented example” of “adversarial testing”
finding “flaws in software that had been certified by outside parties,” and “outside
auditors . . . have always found flaws” in voting machine software, so that “There
is broad consensus among elections experts that modern software systems are, by
virtue of their design, too complex and unreliable to be relied upon for determining
the outcomes of civil elections.”).

38
 The Amended Complaint alleges that the “optical scanners and ballot

marking devices certified by Arizona, as well as the software on which

they rely . . . deprive voters of the right to have their votes counted and

reported in an accurate” way. ER-51. It alleges Dominion and ES&S

electronic election equipment is intended to be used in Arizona. ER-50,

56. It alleges “Electronic voting machines and software manufactured

by . . . Dominion and ES&S, are vulnerable to cyberattacks before,

during, and after an election in a manner that could alter election

outcomes.” ER-52. It alleges the equipment used in Maricopa County,

Arizona during the 2020 election exhibited data inconsistencies,

missing information, and basic cybersecurity deficiencies. ER-58-59,

78.

 The Amended Complaint alleges that Dominion tabulators approved by

the United States Election Assistance Commission were found to

contain “erroneous code” that caused the equipment to exclude ballots

from reported election results. ER-74. It alleges the federal government

agency responsible for election security, CISA, announced on June 3,

2022, that nine security failures can be used “to steal votes” in

39
 Dominion voting equipment. ER-47, 80-81.

These detailed allegations obligated the District Court, when considering a motion

to dismiss, to infer that Arizona’s election voting machines and election management

systems have security failures that permit malicious actors to manipulate vote totals.

The Amended Complaint also pleads that capable actors have sought to

manipulate U.S. election-related computer systems in the past:

 The Amended Complaint alleges foreign states have attempted to use

electronic intrusion to interfere in United States elections in the past,

and a former Obama administration official predicted that “the 2020

election will be hacked no matter what we do.” ER-63, 68. It alleges

that then-FBI Director James Comey testified to Congress after the

2016 election that he expected Russian attempts to hack United States

elections to continue in the future. ER-68.

 The Amended Complaint alleges the Biden administration in 2021

announced sanctions against Russia for election interference in the

2020 election. ER-78.

 The Amended Complaint alleges the Arizona state voter registration

database was breached in 2016. ER-63, 68.

40
  The Amended Complaint alleges that members of Congress have

publicly warned about the risks of electronic voting machines being

hacked since at least 2018. ER-69-71.

These detailed allegations obligated the District Court, when considering a motion

to dismiss, to infer there is a credible threat that attempts may be made to exploit

security vulnerabilities in United States electronic voting machines to manipulate

vote totals in future elections. See Curling v. Raffensperger, 493 F. Supp. 3d 1264,

1342 (N.D. Ga. 2020) (“The Plaintiffs’ national cybersecurity experts convincingly

present evidence that this is not a question of ‘might this actually ever happen?’ —

but ‘when it will happen.’”).

Taken together and accepted as true, the allegations in the Amended

Complaint show a real, likely risk that Arizona’s computerized election equipment

will be manipulated to misreport vote totals. In the face of an established and

“credible threat,” Election Integrity Project Cal., 2022 U.S. App. LEXIS 30549, at

*5, and a demonstrated means by which that threat can be carried out, the

requirements of standing to seek injunctive relief to prevent the harm from occurring

– a “substantial risk” that the harm will occur, Susan B. Anthony List, 573 U.S. at

158 – are met. If a lock on the bank vault can be opened with a skeleton key and the

door to the vault room is open, there is a substantial risk that harm will occur. The

41
owners of the money in the vault need not wait until their money is burgled to seek

injunctive relief to prevent a crime that is likely to occur.

The District Court’s Order doubly erred in addressing the element of “actual

or imminent” harm. First, the Order erred by misstating applicable law. The District

Court stated Appellants must show injury is “certainly impending.” ER-21. The

applicable standard allows allegations of a future injury to suffice “if the threatened

injury is certainly impending, or there is a substantial risk that the harm will

occur.” Susan B. Anthony List, 573 U.S. at 158 (emphasis added). Here, the

Amended Complaint clears the standard by pleading facts that there is a substantial

risk that the harm will occur. ER-47, 51, 56, 59, 61-62, 69-71, 80-81; See, e.g.,

Curling v. Kemp, 334 F. Supp. 3d at 1316 (N.D. Ga. 2018) (denying in part a motion

to dismiss where “Plaintiffs plausibly allege a threat of a future hacking event that

would jeopardize their votes and the voting system at large.”); Election Integrity

Project Cal., 2022 U.S. App. LEXIS 30549, at *5-*6 (overturning district court’s

dismissal where plaintiffs’ complaint alleged a “credible threat” of future harm

arising from verification of vote-by-mail ballots that gave rise to "massive

opportunities for both error and fraud.”).

Second, the District Court’s Order characterized the harm alleged by the

Amended Complaint as dependent on a “long chain of hypothetical contingencies.”

42
ER-20. This conclusion improperly failed to accept the allegations in the Amended

Complaint as true and accept reasonable inferences necessitated by these facts. As

set forth above, the Amended Complaint pleads that security deficiencies in

Arizona’s electronic election equipment are real and not hypothetical; that votes can

certainly, not hypothetically, be manipulated in electronic voting machines; and that

people who have the motive and means to manipulate United States elections

certainly, not hypothetically, exist. The only inference necessary to connect these

facts to an injury to a violation of the Candidates’ constitutional voting rights is an

inference that where opportunity, means, motive, and actors exist, the actors will

exploit the opportunity. That is a reasonable inference, and Rule 12 requires a court

to make that inference. United Transp. Union v. BNSF Ry. Co., 710 F.3d 915, 935

(9th Cir. 2013) (holding that the district court improperly “failed to

draw inferences in the light most favorable to” plaintiff’s claim). See also Pride, 719

F.3d at 1133 (holding whether the appellate court construes a “motion as one under

Rule 12(b)(6) or as a facial attack on subject matter jurisdiction under Rule 12(b)(1),

all factual allegations in [appellant’s] complaint are taken as true and all reasonable

inferences are drawn in his favor.”)

The Amended Complaint sufficiently pleads a likelihood of harm to satisfy

constitutional standing requirements.

43
 Federal courts are understandably reluctant to disturb the reported results of a

completed election. E.g., Stein v. Cortés, 223 F. Supp. 3d 423, 426 (E.D. Pa. 2016);

Samuel v. V.I. Joint Bd. of Elections, No. 2012-0094, 2013 U.S. Dist. LEXIS 31538,

at *1 (D.V.I. Mar. 7, 2013). For that very reason, the constitutional right to vote

requires that the methods used to count votes that determine the winners of elections

must not leave doubt whether reported tallies are accurate. Candidates and voters

face a nearly impossible task when asking a federal court to overrule the reported

results of the election after the fact. To adequately plead standing, a plaintiff need

not wait until after an election to judicially challenge the constitutionality of a state’s

vote counting system credibly and broadly known to be deficient.

The Amended Complaint alleges actual or imminent injury, and thus satisfies

the third element of standing.

2. In its Ruling on Standing, the District Court Improperly Made

Findings Contrary to Allegations in the Amended Complaint in
Order to Dismiss the Candidates’ Claims on 12(b)(1) Grounds.

The District Court’s standing analysis was grounded on findings of fact

contrary to the facts alleged in the Amended Complaint. These improper factual

findings denied the Candidates the opportunity to prove the factual bases of their

claims. Such a basic error of law, on the posture of resolving Rule 12 motions to

44
dismiss, requires reversal.10

a. The District Court Improperly Relied on Factual

Determinations Contrary to the Allegations in the
Amended Complaint.

The District Court erroneously interjected factual determinations into its

resolution of the Appellees’ motions to dismiss. Part I.B of the District Court’s Order

contains rulings on factual assertions about Arizona elections. ER-12-16. The

District Court relied on, among other things, the testimony of Maricopa employee

Scott Jarrett, ER-13-14, documents submitted by Appellees in connection with a

“Motion for Judicial Notice,” ER-13, and a document published on the Internet by

defendant Maricopa County titled Maricopa County Election Facts | Voting

Equipment & Accuracy. ER-13-14.

10
The Maricopa Defendants moved to dismiss the claims against them pursuant to
Rule 12(b)(6). Maricopa Mot. at 1-2, doc. 27. Hobbs joined the Maricopa
Defendants’ motion and moved to dismiss the claims against her pursuant to Rule
12(b)(1) and Rule 12(b)(6). Hobbs Mot. at 1, doc. 45. The District Court’s order
acknowledges the Rule 12(b)(6) motions, ER-17, but does not otherwise mention
Rule 12(b)(6). See ER-17-19. The Order does not state the standard for a Rule
12(b)(6) motion, and does not state that the District Court accepts the allegations
pleaded in the Amended Complaint as true for purposes of the motions to dismiss.
See id. Instead, as shown below, the District Court improperly relied on sources
outside the Amended Complaint, submitted by the Appellees, to controvert and
reject the allegations in the Amended Complaint.

45
 While the District Court initially stated that its factual findings based on

evidence and sources outside the Amended Complaint were provided “for the

purpose of providing background for its later analysis, not to establish the truth of

any disputed fact,” ER-13 at n.6, this is simply incorrect. When addressing the

allegations in the Amended Complaint, the District Court did not accept the

allegations as true but instead ignored them and instead relied upon its prior, contrary

factual descriptions as determinative of the Candidates’ claims. See ER-12-13

(relying on Appellees’ proffered evidence of “thorough testing by independent,

neutral experts” and “logical and accuracy” testing before and after elections); ER-

50-51 (alleging certification of Dominion Democracy Suite 5.5b and ES&S

ElectionWare 6.0.40 voting systems was improper); ER-74 (alleging that “erroneous

code” can be – and in fact has – gone undetected through the certification process

and safety testing procedures); ER-52, 81-82 (alleging risk limiting audits and logic

and accuracy tests can be defeated). Rather than accept that the Amended Complaint

alleged in detail that Appellees’ electronic voting machines have security failures,

the District Court’s Order based its legal conclusions on a factual finding that

“Defendants have taken numerous steps to ensure such security failures do not exist

or occur in Arizona or Maricopa County.” ER-21 at n.13. Rather than accept that the

Amended Complaint pleaded that electronic voting machines can be hacked without

46
detection and post-election audit procedures can be defeated, the District Court

based its legal conclusions on a factual finding that “Defendants have extensive post-

election audit procedures in place to detect and reconcile any problems with

tabulation machine counts if an intrusion did occur.” ER-21 at n.14.

The District Court’s rejection of the Candidates’ claims based on factual

findings contrary to actual allegations in the Amended Complaint was an error of

law. A federal court may not simply reject the factual allegations in a complaint or

aggregate contradictory evidence as the basis to dismiss a complaint prior to

discovery. E.g. United Transp. Union v. BNSF Ry. Co., 710 F.3d 915, 934 (9th Cir.

2013) (defendant’s contradiction of facts alleged in complaint cannot serve as basis

for dismissal); Election Integrity Project Cal., 2022 U.S. App. LEXIS 30549, at *5-

6 (“Because ‘[a]t the pleading stage, general factual allegations of injury resulting

from the defendant's conduct may suffice’ to show standing, EIPCa's allegations of

injury suffice for a motion to dismiss.” (quoting Lujan v. Defs. of Wildlife, 504 U.S.

555, 561 (1992))).

b. Neither Rule 12(b)(1) nor Rule 12(b)(6) Permits the

District Court’s Decision to Reject the Facts Alleged in the
Amended Complaint.

While the Order is not entirely clear on this point, the District Court’s analysis

finding facts contrary to the allegations in the Amended Complaint may have

47
resulted from a sua sponte decision to misapply law concerning Fed. R. Civ. P.

12(b)(1). If so, the District Court’s analysis would still be erroneous because Rule

12(b)(1) does not allow a court to dismiss a complaint by finding facts contrary to

the substantive allegations in the Amended Complaint.11

The Order quotes a decision from this Court concerning Rule 12(b)(1)

providing that “[w]here the jurisdictional issue is separable from the merits of the

case, the [court] may consider the evidence presented with respect to the

jurisdictional issue and rule on that issue, resolving factual disputes if necessary.”

Order at 11 (quoting Thornhill Publ’g Co. v. Gen. Tel. & Elecs. Corp., 594 F.2d 730,

733 (9th Cir. 1979)). However, this rule—by the very language quoted by the

District Court—does not apply where the “merits” of the plaintiff’s claim overlap

the jurisdictional issue. A “jurisdictional finding of genuinely disputed facts is

inappropriate when the jurisdictional issue and substantive issues are so intertwined

that the question of jurisdiction is dependent on the resolution of factual issues going

to the merits of an action.” Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th

11
The District Court’s analysis of the standing issue appears to be substantively
equivalent to a Rule 12(b)(6) ruling that the Amended Complaint fails to state a
claim upon which relief can be granted.

48
Cir. 2004) (quotations omitted).

Rule 12(b)(1) does not permit the District Court to make contested factual

determinations regarding the substantive merits of the Candidates’ claims.

The District Court’s adoption of an approach permitting the resolution of

factual disputes on a Rule 12(b)(1) motion was sua sponte, for both sets of Appellees

in their motion papers cited only the familiar Rule 12(b)(6) standard that accepts the

facts alleged in the Amended Complaint as true for purposes of the motion to

dismiss. Doc. 27 at 1; doc. 45 at 13. The Candidates’ Oppositions to Appellees’

Motions to Dismiss accepted the Rule 12(b)(6) statement of the governing standard.

Doc. 58 at 1; doc. 56 at 5, 13-14, 15.

The District Court’s reliance on Rule 12(b)(1) authority for the proposition

that disputed facts can be resolved when deciding a motion to dismiss was a

misapplication of the law, for the cases it cited presented nothing like the procedural

posture that confronted the District Court here. The primary case cited by the District

Court, Thornhill, was an antitrust action decided on a summary judgment motion

after discovery. Thornhill Pub. Co. v. Gen. Tel. & Elecs. Corp., 594 F.2d 730, 738

n.15 (9th Cir. 1979). Thornhill held that the acts complained of by the plaintiff were

outside the jurisdictional reach of the Sherman Act because they did not substantially

affect interstate commerce. Id. at 732. While the Ninth Circuit in that case did hold

49
that a trial court could resolve factual disputes related to the interstate commerce

issue in ruling on a Rule 12(b)(1) “speaking motion to dismiss for lack of subject

matter jurisdiction,” the Ninth Circuit further specified that this holding only applies

when “the jurisdictional issue and the substantive issues [are] separable.” Id. at 735;

See also id. at 733 (holding that a district court confronted with a Rule 12(b)(1)

motion may not resolve factual disputes to decide the motion unless “the

jurisdictional issue is separable from the merits of the case”). The paradigm for this

principle is a situation where federal jurisdiction rests upon a factual showing

separate from the substance of a plaintiff’s claims, such as a showing that the

defendant’s commercial activities substantially affected interstate commerce,

Thornhill, 594 F.2d at 733-34 (9th Cir. 1979), or that the defendant had notice of the

existence of a federal claim, for purposes of a statute of limitations, e.g., Kingman

Reef Atoll Invs., L.L.C. v. United States, 541 F.3d 1189, 1196-97 (9th Cir. 2008).

Here, the facts used by the District Court for its “jurisdictional” analysis were facts

central to the substantive claims advanced by the Amended Complaint—whether

Appellees’ electronic voting machines have security failures that allow for the

manipulation of vote tallies in an election.

The other cases cited by the District Court are Renteria v. United States, 452

F. Supp. 2d 910 (D. Ariz. 2006) and Autery v. United States, 424 F.3d 944, 956 (9th

50
Cir. 2005). Neither is apposite. Renteria concerned claims for negligent processing

of a loan application, most of which the magistrate judge recommended dismissing

because it held that the defendant owed the plaintiffs no duties. 452 F. Supp. 2d at

921-23. In Autery, the plaintiffs brought tort claims against the United States for

alleged negligence in not maintaining firebreaks before a wildfire broke out. Autery,

424 F.3d at 948 (9th Cir. 2005). The court applied the standard applicable to a motion

for summary judgment, not a motion to dismiss. Id., at 956. None of the cases relied

upon by the District Court stand for the proposition that a trial court addressing a

pre-discovery motion to dismiss may make factual determinations contrary to the

substantive allegations in the pleadings and dismiss the action based on those

findings.

Moreover, law not cited by the District Court shows that its fact-finding

approach was plainly wrong. In Meland, this Court stated that an order “granting a

motion to dismiss for lack of standing under Federal Rule of Civil

Procedure 12(b)(1)” is reviewed “de novo” with the appellate court “constru[ing] all

material allegations of fact in the Amended Complaint in favor of the plaintiff.” 2

F.4th 838, 843 (9th Cir. 2021). In Southcentral Foundation, this Court said the same.

983 F.3d at 416-17. In Unified Data Services, LLC v. FTC, this Court explained that

on a Rule 12(b)(1) motion to dismiss for lack of standing, “general factual

51
allegations of injury . . . may suffice, for on a motion to dismiss we presume that

general allegations embrace those specific facts that are necessary to support the

claim,” and “[a]ll of the facts alleged in the Amended Complaint are presumed true,

and the pleadings are construed in the light most favorable to the nonmoving party.”

39 F.4th 1200, 1209 (9th Cir. 2022) (quotation omitted). Where jurisdictional issues

and substantive claims are intertwined, any factual issues must be considered

“according to the standards applicable on summary judgment.” Ventura Packers,

Inc. v. F/V Jeanine Kathleen, 305 F.3d 913, 922 (9th Cir. 2002). This would require

not resolving disputes of fact. See Johnson v. Ryan, __ F.4th __, No. 20-15293, 2022

U.S. App. LEXIS 34637, at *20, 79 (9th Cir. Dec. 15, 2022). Further, “the Supreme

Court has held that where a 12(b) motion to dismiss is based on lack of standing, the

reviewing court must defer to the plaintiff's factual allegations, and must ‘presume

that general allegations embrace those specific facts that are necessary to support the

claim.’” Young v. Crofts, 64 F. App’x 24, 25 (9th Cir. 2003) (quoting Lujan, 504

U.S. at 561).

The jurisdictional issues argued by Defendant Hobbs in this action – an

Eleventh Amendment argument and a standing argument – are closely intertwined

with the merits of Appellants’ claims in the Amended Complaint. The District Court

erred by resolving factual disputes as the basis for its decision to dismiss the

52
Amended Complaint.

3. The District Court Relied Upon Inapposite Authority.

The District Court lastly supported its standing analysis by citing to a handful

of other decisions, which it characterized as standing for the proposition that

“speculative allegations that voting machines may be hackable are insufficient to

establish an injury in fact under Article III.” ER-22. These cases did not present

comparable circumstances and do not support such a legal proposition here. In two

of the cases, the plaintiffs sought to overturn the results of completed elections. Stein,

223 F. Supp. 3d at 426, 433 (candidate who received less than 1% of votes demanded

recount of votes “during last month’s election”); Samuel, No. 2012-0094, 2013 U.S.

Dist. LEXIS 31538, at *1, *16 (plaintiffs sought “to decertify the November 6, 2012

general election in the Virgin Islands” but “do not claim that they have been deprived

of something to which they personally are entitled – such as election to the various

positions they sought.” (internal quotation marks and citation omitted)). The

Candidates do not rely on speculation about a completed election to reverse the

outcome or attempt to change the results of an election at all. Rather, the Candidates

seek to eliminate a continuing violation of their constitutional rights through the use

of deficient and unsecure electronic voting machines in future elections.

In other cases cited by the District Court, Schulz v. Kellner, No. 1:07-CV-

53
0943 (LEK/DRH), 2011 U.S. Dist. LEXIS 73088 (N.D.N.Y. July 7, 2011), Landes

v. Tartaglione, No. 04-3163, 2004 U.S. Dist. LEXIS 22458 (E.D. Pa. Oct. 28, 2004),

and Shelby Cnty. Advocs. for Valid Elections v. Hargett, No. 2:18-cv-02706-TLP-

dkv, 2019 U.S. Dist. LEXIS 156740 (W.D. Tenn. Sept. 13, 2019), aff’d sub nom.

Shelby Advocs. for Valid Elections v. Hargett, 947 F.3d 977 (6th Cir. 2020), none of

the plaintiffs were candidates for office, unlike the Candidates here. These

unpublished district court decisions are inconsistent with Carson, 978 F.3d at 1058,

and Trump, 983 F.3d at 924, which properly held that candidates have standing to

challenge improper election administration methods.

In Weber v. Shelley, 347 F.3d 1101 (9th Cir. 2003), also cited by the District

Court, the plaintiff challenged California’s use of an electronic voting system and

was permitted discovery to gather facts related to her claims concerning the use of

the voting system. Though the Weber plaintiff ultimately failed—after discovery and

in a motion for summary judgment—to generate a genuine issue of material fact, id.

at 1107, she was not improperly barred from discovery by the standing doctrine.

Much has happened since 2003, and the Candidates fully expect the allegations of

the Amended Complaint sufficiently claim Arizona’s electronic voting systems are

unconstitutionally unsecure. The law of standing permits them the opportunity to

prove their claims. See id. at 1106-07.

54
 The Candidates have standing to pursue their claims, and the District Court

erred by concluding otherwise.

C. Purcell Provides No Basis to Dismiss the Candidates’ Claims.

The District Court’s Order finds that the principles set forth in Purcell v.

Gonzalez, 549 U.S. 1 (2006), prohibit the Candidates’ claim for injunctive relief.

ER-24-26. It is not clear from the Order whether this discussion served as a basis for

the District Court to dismiss the Candidates’ claims or whether it provided an

explanation for the District Court’s decision to deny the Candidates’ motion for a

preliminary injunction that was mooted by the dismissal of the Amended Complaint.

The Order stated that it addressed “only the Defendants’ arguments concerning

standing, the Eleventh Amendment, and portions of Defendants’ arguments that

pertain to the timing of Plaintiffs’ suit, because it finds that each of these arguments

is dispositive on its own.” ER-17 (emphasis added). The Order also concluded with

the statement, “For the foregoing reasons, Plaintiffs’ First Amended Complaint is

dismissed in its entirety. . . . Plaintiffs lack standing because they have articulated

only conjectural allegations of potential injuries that are in any event barred by the

Eleventh Amendment, and seek relief that the Court cannot grant under the Purcell

principle.” ER-26.

Purcell does not provide a basis to dismiss the Amended Complaint because

55
Purcell merely guides courts deciding whether to grant injunctive relief affecting the

conduct of an election, not whether any election-related claims should be dismissed.

The Supreme Court wrote in Purcell: “We underscore that we express no opinion

here on . . . the ultimate resolution of these cases. As we have noted, the facts in

these cases are hotly contested, and [n]o bright line separates permissible election-

related regulation from unconstitutional infringements. . . . Given the imminence of

the election and the inadequate time to resolve the factual disputes, our action today

shall of necessity allow the election to proceed without an injunction suspending the

voter identification rules.” 549 U.S. at 5-6 (quotation and citation omitted). To the

extent the District Court relied upon Purcell as a basis for dismissing the Candidates’

claims, the District Court erred.

VII. CONCLUSION

The District Court’s decision should be reversed and remanded. The

Candidates have a right to challenge the Arizona vote counting system and assert

and be given the opportunity to prove their factual allegations.

VIII. STATEMENT OF RELATED CASES

The Candidates are not aware of any related cases.

56
 Respectfully submitted,

DATED: December 28, 2022 PARKER DANIELS KIBORT LLC

By /s/ Andrew D. Parker

Andrew D. Parker (AZ Bar No. 028314)
888 Colwell Building
123 N. Third Street
Minneapolis, MN 55401
Telephone: (612) 355-4100
Facsimile: (612) 355-4101
parker@parkerdk.com

OLSEN LAW, P.C.

By /s/ Kurt Olsen
Kurt Olsen (D.C. Bar No. 445279)*
1250 Connecticut Ave., NW, Suite 700
Washington, DC 20036
Telephone: (202) 408-7025
ko@olsenlawpc.com
*-Application for admission forthcoming

57
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58
 (2 of 45)
Case: 22-16413, 12/28/2022, ID: 12619575, DktEntry: 17-2, Page 1 of 44

No. 22-16413

IN THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

Kari Lake; Mark Finchem,

Plaintiffs-Appellants,

v.

Kathleen Hobbs, as Arizona Secretary of State; Bill Gates, Clint Hickman, Jack
Sellers, Thomas Galvin, and Steve Gallardo, in their capacity as members of the
Maricopa Board of Supervisors; Rex Scott, Matt Heinz, Sharon Bronson, Steve
Christy, Adelita Grijalva, as Members of the Pima County Board of Supervisors,

Defendants-Appellees.

On Appeal from the United States District Court

for the District of Arizona
No. 22-cv-00677-JJT
Hon. John J. Tuchi

APPELLANTS’ ADDENDUM

Andrew D. Parker Kurt Olsen*

(AZ Bar No. 028314) Olsen Law, P.C.
Parker Daniels Kibort LLC 1250 Connecticut Ave., NW, Suite 700
888 Colwell Building Washington, DC 20036
123 N. Third Street (202) 408-7025
Minneapolis, MN 55401 ko@olsenlawpc.com
(612) 355-4100 *-Application for admission
parker@parkerdk.com forthcoming

Attorneys for Appellants Attorneys for Appellants

Kari Lake and Mark Finchem Kari Lake and Mark Finchem
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CASE NO. 22-16413

APPELLANT’S ADDENDUM
TABLE OF CONTENTS

Description Page No.

Election Integrity Project Cal., Inc. v. Weber, No. 21 56061,

2022 U.S. App. LEXIS 30549 (9th Cir. Nov. 3, 2022) ………………………...A-1

Shelby Cnty. Advocates for Valid Elections v. Hargett, No. 2:18-cv-02706,

2019 U.S. Dist. LEXIS 156740 (W.D. Tenn. Sep. 13, 2019)…………………..A-6

Samuel v. V.I. Joint Bd. of Elections, No. 2012-0094,

2013 U.S. Dist. LEXIS 31538 (D.V.I. Mar. 7, 2013)…………………………A-16

Landes v. Tartaglione, No. 04-3163,

2004 U.S. Dist. LEXIS 22458 (E.D. Pa. Oct. 28, 2004)………………………A-24

Schulz v. Kellner, No. 1:07-CV-0943 (LEK/DRH),

2011 U.S. Dist. LEXIS 73088 (N.D.N.Y. July 7, 2011)……………………….A-29

ER-25
 (4 of 45)
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Neutral
As of: December 28, 2022 7:42 PM Z

Election Integrity Project Cal., Inc. v. Weber

United States Court of Appeals for the Ninth Circuit
September 23, 2022, Argued and Submitted, Pasadena, California; November 3, 2022, Filed
No. 21-56061

Reporter
2022 U.S. App. LEXIS 30549 *; 2022 WL 16647768

ELECTION INTEGRITY PROJECT CALIFORNIA, INC.;

JAMES P. BRADLEY; AJA SMITH; ERIC EARLY;
ALISON HAYDEN; JEFFREY GORMAN; MARK REED;
BUZZ PATTERSON; MIKE CARGILE; KEVIN
COOKINGHAM; GREG RATHS; CHRIS BISH; RONDA
KENNEDY; JOHNNY NALBANDIAN, Plaintiffs-
Appellants, v. SHIRLEY WEBER, California Secretary of
State; ROB BONTA, California Attorney General;
GAVIN NEWSOM, Governor of the State of California;
REBECCA SPENCER, Riverside County Registrar of
Voters; DEAN LOGAN, Los Angeles County Registrar of
Voters; MARK A. LUNN, Ventura County Registrar of
Voters; BOB PAGE, San Bernardino County Registrar
of Voters; CLAUDIO VALENZUELA, Monterey County
Registrar of Voters; COURTNEY BAILEY-KANELO,
Sacramento County Registrar of Voters; TIM DUPUIS,
Alameda County Registrar of Voters; DEBORAH R.
COOPER, Contra Costa County Registrar of Voters;
SHANNON BUSHEY, Santa Clara County Registrar of
Voters; JOE PAUL GONZALEZ, San Benito County
Registrar of Voters; GAIL L. PELLERIN, Santa Cruz
County Registrar of Voters; NEAL KELLEY, Orange
County Registrar of Voters; JAMES A. KUS, Fresno
County Registrar of Voters, Defendants-Appellees.
Notice: PLEASE REFER TO FEDERAL RULES OF
APPELLATE PROCEDURE RULE 32.1 GOVERNING
THE CITATION TO UNPUBLISHED OPINIONS.
Prior History: [*1] Appeal from the United States
District Court for the Central District of California. D.C.
No. 2:21-cv-00032-AB-MAA. Andre Birotte, Jr., District
Judge, Presiding.
Core Terms
allegations, resources, election, ballots, voters,
frustrated, practices, mission
Case Summary
Overview
HOLDINGS: [1]-The district court properly dismissed the
plaintiffs' Guarantee Clause claims because they
presented nonjusticiable political questions. Even if
there were an exception to non-justiciability of a
Guarantee Clause claim in extreme circumstances, no
such circumstances were present in the case; [2]-The
plaintiff's complaint also adequately alleged traceability
and redressability because the plaintiff's alleged injury
stemmed from California's vote-by-mail and signature
verification policies, and from the procedures for
sending out ballots to the current voter rolls, it was
traceable to the election officials implementing the
policies. By the same token, plaintiff could obtain relief
from the injuries if the court enjoined those responsible
for enforcing the policies.
Outcome
Judgment affirmed in part; vacated in part; remanded in
part.
LexisNexis® Headnotes

Election Integrity Project Cal., Inc. v. Weber, 2021 U.S.

Dist. LEXIS 165934, 2021 WL 4501998 (C.D. Cal., June Civil
14, 2021) Procedure > ... > Justiciability > Standing > Injury in
Fact
Disposition: AFFIRMED IN PART; VACATED IN
PART; REMANDED IN PART. Constitutional Law > ... > Case or

A-1

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2022 U.S. App. LEXIS 30549, *1
Controversy > Standing > Elements
HN1[ ] Standing, Injury in Fact
A threatened injury may constitute an injury in fact
where there is a credible threat of harm in the future,
rather than a speculative fear of hypothetical future
harm. At the pleading stage, general factual allegations
of injury resulting from the defendant's conduct may
suffice to show standing.
Civil
Procedure > ... > Justiciability > Standing > Burdens
of Proof
HN2[ ] Standing, Burdens of Proof
In cases seeking injunctive or declaratory relief, only
one plaintiff need demonstrate standing to satisfy Article
III.
Counsel: For ELECTION INTEGRITY PROJECT
CALIFORNIA, INC., JAMES P. BRADLEY, AJA SMITH,
ERIC EARLY, ALISON HAYDEN, JEFFREY GORMAN,
MARK REED, BUZZ PATTERSON, MIKE CARGILE,
KEVIN COOKINGHAM, GREG RATHS, CHRIS BISH,
RONDA KENNEDY, JOHNNY NALBANDIAN, Plaintiffs
- Appellants: Mariah Gondeiro, Esquire, Advocates For
Faith and Freedom, Murrieta, CA.
For SHIRLEY WEBER, California Secretary of State,
ROB BONTA, California Attorney General, GAVIN
NEWSOM, Governor of the State of California,
Defendants - Appellees: John Darrow Echeverria,
Attorney, California Department of Justice, San
Francisco, CA; Ryan Andrew Hanley, Attorney, AGCA-
Office of the California Attorney General, Sacramento,
CA.
For REBECCA SPENCER, Riverside County Registrar
of Voters, Defendant - Appellee: Ronak N. Patel, Deputy
County Counsel, Riverside County District Attorney's
Office, Riverside, CA.
For DEAN LOGAN, Los Angeles County Registrar of
Voters, Defendant - Appellee: Eva Wong Chu, Deputy
County Counsel, Office of Los [*2] Angeles County
Counsel, Los Angeles, CA.
For MARK A. LUNN, Ventura County Registrar of
Voters, Defendant - Appellee: Matthew Smith, Assistant
County Counsel, Office of the County Counsel, Ventura,
CA.
A-2
(5 of 45)
Page 2 of 5
For BOB PAGE, San Bernardino County Registrar of
Voters, Defendant - Appellee: Laura L. Crane, Esquire,
San Bernardino County Counsel, San Bernardino, CA.
For CLAUDIO VALENZUELA, Monterey County
Registrar of Voters, Defendant - Appellee: William M.
Litt, OFFICE OF THE COUNTY COUNSEL, Salinas,
CA.
For COURTNEY BAILEY-KANELO, Sacramento County
Registrar of Voters, Defendant - Appellee: Robert P.
Parrish, Deputy County Counsel, OFFICE OF THE
COUNTY COUNSEL, Sacramento, CA.
For DEBORAH R. COOPER, Contra Costa County
Registrar of Voters, Defendant - Appellee: Rebecca
Hooley, Assistant County Counsel, Office of County
Counsel, Martinez, CA.
For SHANNON BUSHEY, Santa Clara County Registrar
of Voters, Defendant - Appellee: Jamila Goldkamp
Benkato, Mary Hanna-Weir, County of Santa Clara,
Office of the County Counsel, San Jose, CA; Kim Hara,
Esquire, Attorney, Office of the County Counsel, San
Jose, CA.
For JOE PAUL GONZALEZ, San Benito County
Registrar of Voters, Defendant - Appellee: Joseph Wells
Ellinwood, [*3] Assistant Counsel, San Benito County
Counsel, Hollister, CA.
For GAIL L. PELLERIN, Santa Cruz County Registrar of
Voters, Defendant - Appellee: Melissa C. Shaw,
Assistant County Counsel, COUNTY COUNSEL OF
SANTA CRUZ, Santa Cruz, CA.
For NEAL KELLEY, Orange County Registrar of Voters,
Defendant - Appellee: Rebecca S. Leeds, Suzanne
Esther Shoai, Orange County Counsel's Office, Santa
Ana, CA.
For JAMES A. KUS, Fresno County Registrar of Voters,
Defendant - Appellee: Daniel Cederborg, Esquire,
County Counsel, County of Fresno, Fresno, CA; Kyle
Richard Roberson, Attorney, COUNTY OF FRESNO,
Fresno, CA.
Judges: Before: IKUTA, FORREST, and H.A.
THOMAS, Circuit Judges. Partial Concurrence and
Partial Dissent by Judge H.A. THOMAS.
Opinion

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2022 U.S. App. LEXIS 30549, *3
MEMORANDUM*
The Election Integrity Project California (EIPCa) and
several recent and future congressional candidates
appeal the district court's order dismissing their Due
Process Clause, Equal Protection Clause, Guarantee
Clause, and Elections Clause claims against various
state and local officials for lack of Article III standing.
Our jurisdiction is governed by 28 U.S.C. § 1291.
EIPCa has organizational standing because its
complaint adequately alleges "that the defendant's
behavior has frustrated its mission and caused it to
divert resources in response to that [*4] frustration of
purpose." E. Bay Sanctuary Covenant v. Biden, 993
F.3d 640, 663 (9th Cir. 2021). The complaint explains
EIPCa's mission is to "focus[] on the voting process, so
that every lawfully cast vote is accurately counted" and
to use the observations of its volunteers to "advocate for
greater election integrity," and that California's
regulations have frustrated its mission by "lead[ing] to
pervasive irregularities in the election process that
threaten to disenfranchise California voters."1
Further, the complaint alleges that EIPCa was forced "to
expend significant additional resources to facilitate
observation of voting practices and document
obstruction and irregularities." An organization's
devotion of "significant resources to counteract the
defendants' practices," Sabra v. Maricopa Cnty. Cmty.
Coll. Dist., 44 F.4th 867, 879 (9th Cir. 2022) (citation
and internal quotation marks omitted), including
"[d]iverted staff time," see Fellowship of Christian
Athletes v. San Jose Unified Sch. Dist. Bd. of Educ., 46
F.4th 1075, 1089 (9th Cir. 2022), constitutes "a concrete
and demonstrable injury," Sabra, 44 F.4th at 879
(citation and internal quotation marks omitted).
Because EIPCa adequately alleged both a frustration of
its mission and a diversion of its resources, we reject
the defendants' argument that EIPCa manufactured its
injury by "choosing to spend money fixing a problem
that otherwise would not affect the organization at all."
E. Bay Sanctuary Covenant, 993 F.3d at 663 (citation
omitted). [*5] And contrary to the dissent, the complaint
plausibly alleges that it will need to continue to divert
such resources in the future. According to the complaint,
California has enacted legislation requiring every active
* This
disposition is not appropriate for publication and is not
precedent except as provided by Ninth Circuit Rule 36-3.
1 EIPCa's motion for judicial notice (Dkt. 18) is GRANTED.
A-3
(6 of 45)
Page 3 of 5
registered voter in California to receive a vote-by-mail
ballot, and the state has not developed procedures to
ensure that only eligible voters will receive such ballots
in the future. The complaint further alleges that
California's Secretary of State promulgated regulations
that prevent meaningful standards from being applied to
verify signatures on vote-by-mail ballots. According to
the complaint, these inadequate processes give rise to
"massive opportunities for both error and fraud," and
"[b]ecause the same or substantially similar laws,
regulations, orders and practices are governing and will
govern upcoming elections, the same situation will
repeat" in future elections. HN1[ ] We have long held
that a threatened injury may constitute an injury in fact
where, as here, there is "a credible threat of harm" in
the future, Krottner v. Starbucks Corp., 628 F.3d 1139,
1143 (9th Cir. 2010), rather than a speculative fear "of
hypothetical future harm," Clapper v. Amnesty Int'l USA,
568 U.S. 398, 416, 133 S. Ct. 1138, 185 L. Ed. 2d 264
(2013). Because "[a]t the pleading stage, general factual
allegations of injury resulting from the [*6] defendant's
conduct may suffice" to show standing, Lujan v. Defs. of
Wildlife, 504 U.S. 555, 561, 112 S. Ct. 2130, 119 L. Ed.
2d 351 (1992), EIPCa's allegations of injury suffice for a
motion to dismiss.
EIPCa's complaint also adequately alleged traceability
and redressability. Because EIPCa's alleged injury
stems from California's vote-by-mail and signature
verification policies, and from the procedures for
sending out ballots to the current voter rolls, it is
traceable to the election officials implementing those
policies. See Meese v. Keene, 481 U.S. 465, 476, 107
S. Ct. 1862, 95 L. Ed. 2d 415 (1987). By the same
token, EIPCa can obtain relief from those injuries if the
court enjoins those responsible for enforcing these
policies. See Mecinas v. Hobbs, 30 F.4th 890, 900 (9th
Cir. 2022). Given that EIPCa alleges a credible fear of
future harm based on the implementation and
enforcement of statutory and regulatory provisions by
state officials, we disagree with the dissent that EIPCa's
standing relies on "speculative allegations about illegal
future action by third parties." Dissent at 3.
HN2[ ] "[I]n cases seeking injunctive or declaratory
relief, only one plaintiff need demonstrate standing to
satisfy Article III." Olean Wholesale Grocery Coop., Inc.
v. Bumble Bee Foods LLC, 31 F.4th 651, 682 n.32 (9th
Cir. 2022). Because EIPCa has standing, we do not
need to reach the question whether any other plaintiff
has standing to reverse the district court's judgment.
See Mecinas, 30 F.4th at 897.

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2022 U.S. App. LEXIS 30549, *6
We affirm the district court's dismissal [*7] of the
plaintiffs' Guarantee Clause claims because they
present nonjusticiable political questions. See Rucho v.
Common Cause, 139 S. Ct. 2484, 2506-07, 204 L. Ed.
2d 931 (2019); Murtishaw v. Woodford, 255 F.3d 926,
961 (9th Cir. 2001). Even if there were an exception to
non-justiciability of a Guarantee Clause claim in extreme
circumstances, see New York v. United States, 505 U.S.
144, 185, 112 S. Ct. 2408, 120 L. Ed. 2d 120 (1992), no
such circumstances are present here.
We vacate the district court's holding that it lacked
jurisdiction and remand to the district court for further
proceedings consistent with this opinion.
AFFIRMED IN PART; VACATED IN
REMANDED IN PART.2
Concur by: H.A. THOMAS (In Part)
Dissent by: H.A. THOMAS (In Part)
Dissent
H.A. THOMAS, Circuit Judge, concurring in part and
dissenting in part:
I agree with the majority that Supreme Court precedent
renders Plaintiffs' claim under the Guarantee Clause
nonjusticiable, and concur in the portion of the majority's
decision affirming dismissal of that claim. I disagree,
however, with the majority's conclusion that Plaintiffs
have adequately alleged organizational standing for
Election Integrity Project of California, Inc. (EIPCa). I
therefore respectfully dissent from the majority's
decision to reverse the district court's dismissal of
Plaintiffs' Equal Protection, Due Process, and Elections
Clause claims.
The crux of EIPCa's theory of organizational standing is
that because "California dramatically changed their
election procedures, [*8] EIPCa has had to expend
additional resources to educate voters and observers,"
with a view towards "facilitat[ing] observation of voting
practices and document[ing] obstruction and
irregularities." Assuming Plaintiffs have adequately
alleged that EIPCa diverted resources in order to avoid
a constitutionally cognizable injury, see Sabra v.
Maricopa Cnty. Cmty. Coll. Dist., 44 F.4th 867, 879 (9th
2 Each party will bear its own costs on appeal.
(7 of 45)
Page 4 of 5
Cir. 2022), their theory of standing fails for lack of
causation.1
Plaintiffs' causation theory regarding EIPCa's
organizational standing relies on the following
allegations: (1) the state's election laws make "potential
. . . fraud" and disparate treatment of ballots between
counties more likely, so (2) EIPCa must spend money
and resources to "facilitate observation of voting
practices and document obstruction [of observers] and
irregularities." It is certainly true that an organization can
establish standing by alleging that "the defendant's
behavior has frustrated its mission and caused it to
divert resources in response to that frustration of
purpose." Sabra, 44 F.4th at 879 (quoting E. Bay
PART;
Sanctuary Covenant v. Biden, 993 F.3d 640, 663 (9th
Cir. 2021)). But as the Supreme Court made clear in
Clapper v. Amnesty International USA, a reliance on
speculative allegations about illegal future action by
third parties [*9] forecloses Plaintiffs from establishing
Article III causation. 568 U.S. 398, 414, 133 S. Ct. 1138,
185 L. Ed. 2d 264 (2013); see also id. at 415-16
(rejecting the notion that "an enterprising plaintiff" can
1 As a threshold matter, it is also unclear how EIPCa "would
have suffered some other injury if it had not diverted resources
to counteracting the problem[s]" alleged in the amended
complaint. La Asociacion de Trabajadores de Lake Forest v.
City of Lake Forest, 624 F.3d 1083, 1088 (9th Cir. 2010).
As to their equal protection and due process theories, Plaintiffs
allege EIPCa diverted resources to avoid either (1) the dilution
of lawfully cast ballots by fraudulent ones, or (2) the disparate
evaluation of ballots between counties. No cognizable injury is
adequately alleged under either theory. See Bognet v. Sec'y
Commonwealth of Pennsylvania, 980 F.3d 336, 354 (3d Cir.
2020), cert. granted, judgment vacated sub nom. Bognet v.
Degraffenreid, 141 S. Ct. 2508, 209 L. Ed. 2d 544 (2021);
Wood v. Raffensperger, 981 F.3d 1307, 1314-15 (11th Cir.
2020) ("Vote dilution in this context is a paradigmatic
generalized grievance that cannot support standing." (quoting
Bognet, 980 F.3d at 356)); Bush v. Gore, 531 U.S. 98, 104-05,
109, 121 S. Ct. 525, 148 L. Ed. 2d 388 (2000) (recognizing
that "local entities, in the exercise of their expertise, may
develop different systems for implementing elections").
And Plaintiffs' only alleged injury under the Elections Clause—
that the Clause has not been followed—is "precisely the kind
of undifferentiated, generalized grievance about the conduct of
government that [courts] have refused to countenance in the
past." Lance v. Coffman, 549 U.S. 437, 442, 127 S. Ct. 1194,
167 L. Ed. 2d 29 (2007) (rejecting standing where "the only
injury plaintiffs allege is that the law—specifically the Elections
Clause—has not been followed").
A-4
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Page 5 of 5
2022 U.S. App. LEXIS 30549, *9

"manufacture standing merely by inflicting harm on

themselves based on their fears of hypothetical future
harm that is not certainly impending"); accord
Whitewater Draw Nat. Res. Conservation Dist. v.
Mayorkas, 5 F.4th 997, 1014-15 (9th Cir. 2021)
(rejecting as too attenuated a theory of standing hinging
on the "unreasonable response of third parties" to the
challenged policy).

EIPCa's theory of standing boils down to the notion that

California's allegedly lax voting procedures will prompt
third parties to commit voter fraud, or that they will lead
election officials to misapply statewide balloting
standards across different counties. The illegal casting
of fraudulent ballots by would-be voters, or the
misapplication of state law by those charged with
implementing it, represent unreasonable third-party
responses insufficient to establish standing. Such
outcomes are also wholly speculative, even taking all
the allegations in the amended complaint as true.
Because EIPCa has thus not alleged an adequate link
between Defendants' challenged conduct and its
diversion of resources, I would affirm the district court's
dismissal of this case for lack of standing. [*10] 2

End of Document

2 Because "only one plaintiff need demonstrate standing to

satisfy Article III" when the plaintiffs seek injunctive or
declaratory relief, the majority does not address whether the
individual Plaintiffs have established standing here. See Olean
Wholesale Grocery Coop., Inc. v. Bumble Bee Foods LLC, 31
F.4th 651, 682 n.32 (9th Cir. 2022). Because, in my view,
EIPCa has not established standing, I would reach the
question of whether the individual Plaintiffs have done so and
would conclude that they have not, for many of the same
reasons given by the district court.

A-5
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Positive
As of: December 28, 2022 8:07 PM Z

Shelby Cty. Advocates for Valid Elections v. Hargett

United States District Court for the Western District of Tennessee, Western Division
September 13, 2019, Decided; September 13, 2019, Filed
No. 2:18-cv-02706-TLP-dkv

Reporter
2019 U.S. Dist. LEXIS 156740 *; 2019 WL 4394754
HARRIS SHELTON HANOVER WALSH PLLC -
SHELBY COUNTY ADVOCATES FOR VALID
Memphis, Memphis, TN; Pablo Adrian Varela, HARRIS
ELECTIONS, MICHAEL KERNELL, JOE TOWNS, JR.,
SHELTON HANOVER WALSH PLLC - Memphis,
ANN SCOTT, and BRITNEY THORNTON, Plaintiffs, v.
Memphis, TN.
TRE HARGETT, in his official capacity as TENNESSEE
SECRETARY OF STATE, et al., Defendants.
Judges: THOMAS L. PARKER, UNITED STATES
DISTRICT JUDGE.
Subsequent History: Affirmed by Shelby Advocates for
Valid Elections v. Hargett, 947 F.3d 977, 2020 U.S. App.
Opinion by: THOMAS L. PARKER
LEXIS 2327 (6th Cir. Tenn., Jan. 24, 2020)

Prior History: Shelby Cty. Advocates for Valid Opinion

Elections v. Hargett, 348 F. Supp. 3d 764, 2018 U.S.
Dist. LEXIS 182172 (W.D. Tenn., Oct. 24, 2018)

ORDER GRANTING MOTIONS TO DISMISS

Core Terms
voting, election, voters, machines, allegations, injury in
fact, ballots, injunctive relief, concrete, lack standing,
grievances, resources, declaratory relief, particularized,
Plaintiffs', cards, election process, declaratory,
miscount, memory, fundamental rights, election official,
motion to dismiss, standing to bring, organizational,
diversion, harmed, establish standing, future election,
social interest
Counsel: [*1] For Shelby Advocates for Valid
Elections, Michael Kernell, Joe Towns, Jr., Ann Scott,
Minister Suhkara A. Yahweh, Plaintiffs: Carol J.
Chumney, LAW OFFICE OF CAROL CHUMNEY,
Memphis, TN.
For Tre Hargett, Mark Goins, Tennessee Election
Commission, Judy Blackburn, Gregory Duckett, Donna
Barrett, James Wallace, Jr., Tom Wheeler, Mike
McDonald, Kent D. Younce, Defendants: Janet M.
Kleinfelter, OFFICE OF ATTORNEY GENERAL,
Nashville, TN; Matthew F. Jones, TENNESSEE
ATTORNEY GENERAL'S OFFICE, Nashville, TN.
For Linda Phillips, Shelby County Election Commission,
Robert Meyers, Norma Lester, Dee Nollner, Steve
Stamson, Anthony Tate, Defendants: John L. Ryder,
WITHOUT PREJUDICE
Plaintiffs seek an order requiring Defendants to
implement procedures Plaintiffs believe will make
elections more secure and trustworthy. (ECF No. 104.)
Now Defendants move to dismiss the complaint. (ECF
Nos. 115 & 116.) The Court held a hearing on the
Motions and heard arguments from the parties. [*2]
(See Minute Entry, ECF No. 137.) The Motions are now
ripe. For the reasons below, the Motions to Dismiss are
GRANTED.
BACKGROUND
I. Prior Proceedings
Plaintiffs sued here on Friday, October 12, 2018, five
days before early voting began in Shelby County,
Tennessee for the November 2018 elections. (ECF No.
1.) The Complaint brings "a civil rights action for
declaratory and injunctive relief" against the State of
Tennessee, Shelby County, and various individuals
responsible for conducting elections. (ECF No. 104.)
Shortly after suing, Plaintiffs moved for a temporary
restraining order ("TRO") and mandamus order

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2019 U.S. Dist. LEXIS 156740, *2
requesting an order requiring the election officials take
various affirmative measures related to the voting
system before early voting began. (ECF No. 23.) The
Court held a hearing on that request and heard from
representatives for all parties. The Court determined
that Plaintiffs failed to meet their burden of proof and
issued both an oral order denying the request for a TRO
and entered a written oral elaborating on its reasons for
denying the Motion. (ECF No. 43.)
The case then continued. Plaintiffs filed two amended
complaints. (ECF Nos. 63 & 104.) The Second
Amended Complaint [*3] is now the operative filing.
The Court will refer to the Second Amended Complaint
simply as the Complaint.
II. General Allegations
The Complaint names various state and county officials
charged with implementing election processes, as well
as the Tennessee Election Commission ("Tennessee")
and the Shelby County Election Commission ("Shelby
County").1 (See ECF No. 104.) Plaintiffs allege that both
the State and County Defendants have created and
maintained a non-functioning voting system that
deprives Individual Plaintiffs and members of Shelby
Advocates for Valid Elections ("SAVE") the fundamental
right to vote and the equal protection of that right. (ECF
No. 104 at PageID 1197.) Plaintiffs allege many
deficiencies within the Shelby County election process
that interfere with their right to vote. But their main issue
is that Shelby County's use of AccuVote-TSx R7 direct-
recording electronic voting machines ("AccuVote DRE")
and Diebold GEMS version 1.18.24.101 voting software
allegedly does not meet Tennessee statutory
requirements and thus creates an inherently insecure
and inaccurate voting system. (See id. at PageID 1198.)
In effect, Plaintiffs allege that Shelby County's voting
system [*4] is not secure because it does not create a
voter verified paper audit trail ("VVPAT"). (ECF No. 104
at PageID 1198.) The AccuVote DRE does not record
1 The
Court refers to Defendants at times as the State
Defendants and the County Defendants. The State
Defendants include Tre Hargett, Mark Goins, Kent D. Younce,
Judy Blackburn, Greg Duckett, Donna Barrett, James H.
Wallace, Jr., Tom Wheeler, Mike McDonald, and the
Tennessee Election Commission. And the County Defendants
include Linda Phillips, Robert Meyers, Norma Lester, Dee
Nollner, Steve Stamson, Anthony Tate, and the Shelby County
Election Commission.
A-7
(10 of 45)
Page 2 of 10
each voter's selection on a paper ballot. Instead, each
voter verifies their choices on the screen (much like
using a banking ATM machine) before submitting their
ballot electronically. And the machine stores their votes
on removable memory cards and on the voting
machine's internal flash memory. (Id. at PageID 1223-
25.)
After the polls close on election day, poll workers insert
the memory cards from each DRE machine into one
machine to tabulate the votes from that precinct. (ECF
No. 104 at PageID 1223.) Shelby County's practice is to
bring these memory cards to centralized Zone Turn-in
Sites or directly to the election headquarters for
tabulation. (Id. at PageID 1224 & 1226.) Election
workers then upload these results to the Diebold GEMS
server where the software combines election-day data
with mail-in absentee ballots to tabulate the election
results. (Id. at PageID 1226.) Another concern Plaintiffs
have about the AccuVote DRE is that it can connect to
the internet and Shelby County election officials
sometimes use this capability to [*5] transfer election
results from satellite turn-in locations to the election
headquarters. (Id. at PageID 1260-61.)
Plaintiffs claim these alleged deficiencies in the voting
process purportedly uniquely affect Shelby County
voters because of the County's size and racial makeup.
(ECF No. 104 at PageID 1198-99.) Plaintiffs allege that
out of the 95 counties in Tennessee, Shelby County has
the largest African American population. (Id. at PageID
1255.) And no other county in Tennessee uses the
same DRE voting machine that Shelby County uses. (Id.
at PageID 1256.) That said, Plaintiffs acknowledge that
only 14 of the 95 counties in Tennessee use a VVPAT
capable voting system. (Id. at PageID 1258.)
Chattanooga is the only major city in Tennessee that is
in a county that uses a VVPAT system. (Id. at PageID
1258-59.)
But counties using VVPAT voting systems must perform
audits of the ballots cast in presidential and
gubernatorial elections. (Id. at PageID 1260); see also
Tenn. Code Ann. § 2-20-103. Plaintiffs argue that
Shelby County's voting system is not subject to a
meaningful recount or audit because the only record of
the votes kept is on the AccuVote DRE's internal
memory cards. These cards, they assert, can be
hacked [*6] or manipulated. (Id. at PageID 1231.)
Plaintiffs point to systems elsewhere that include a
VVPAT so the election officials verify the results. These
supposed weaknesses undergird Plaintiffs' theory that
Shelby County's election procedures were "designed

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and implemented with the intent of disenfranchising
Shelby County voters, the majority of whom are African
American, including Plaintiffs Joe Town, Jr. and Britney
Thornton." (Id. at PageID 1232.)
Adding to their claims, Plaintiffs allege that Defendants
do not properly train many of the election officials and
poll workers to use the voting machines and software.
This, they claim, raises the likelihood of misconduct.
(ECF No. 104 at PageID 1227.) The lack of training and
oversight has reportedly led to the cavalier handling of
memory cards from the AccuVote DRE machines. (Id. at
PageID 1238 & 1240.) And the GEMS software has at
times exhibited defective connections with the DRE
memory cards. (Id. at PageID 1245.) Still another
problem with the equipment is that sometimes a voter's
selection of one candidate registers on the screen as a
vote for that candidate's opponent. (Id. at PageID 1247-
48.) Plaintiffs thus allege that Shelby County's [*7]
antiquated voting equipment paired with the ill-prepared
election workers leaves Shelby County's election
system vulnerable to undetectable hacking and
malicious manipulation. (Id. at PageID 1228.)
All in all, Plaintiff's claim that Shelby County's current
voting system creates a fundamentally unfair voting
system in violation of the Due Process Clause of the
Fourteenth Amendment, and that it has impaired Shelby
County voters' ability to participate in state elections on
an equal basis with other qualified voters in Tennessee.
(ECF No. 104 at PageID 1264-65.) This has caused
vote dilution which violates the Equal Protection Clause
of the Fourteenth Amendment. (Id.)
III. Specific Allegations
A. Due process claim
Plaintiffs' due process claim hinges on their argument
that the right to participate in a "trustworthy and
verifiable election process that safely, accurately, and
reliably records and counts all votes cast" is part in
parcel with the fundamental right to vote. (ECF No. 104
at PageID 1275.) The voting systems used by Shelby
County allegedly suffers from non-uniform standards
and improperly trained personnel causing an unfair
system and the denial of the right to vote. (Id.) Plaintiffs
argue that such an unsecure voting system creates an
unreasonable risk of votes being miscounted [*8] or
that registered voters will be erroneously denied the
right to vote. (Id. at PageID 1277.) Besides these risks,
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and to shoehorn its claim into a category recognized by
Courts as a valid one, SAVE asserts that it must divert
its resources, time, and personnel from other projects to
monitor Shelby County's continued use of the AccuVote
DRE voting machines. (Id.) Above all, SAVE argues it
must keep taking legal action until the County uses
hand-marked paper ballots. (Id.)
Plaintiff Kernell also claims that when he ran for State
Representative for District 93 in Shelby County in
August 2012, election workers distributed around 720
incorrect ballots to voters. (ECF No. 104 at PageID
1268.) Poll workers gave ballots to some voters residing
outside District 93 which allowed them to vote for or
against Kernell. (Id.) He claims that he had to waste
time and money campaigning for a race when
Defendants did not adhere to district lines. (Id. at
PageID 1268-69.) Kernell argues that he will have to
expend additional sums of money and spend extra time
reaching voters outside his district if he runs for office
again. (Id. at PageID 1270.) And Plaintiff Kernell
predicts that such issues with Shelby [*9] County's
voting system will lead potential candidates to decline
running for office. (Id.) Plaintiffs Towns, Jr. and Thornton
also believe that they will have to spend additional sums
of money and time to reach voters outside of their
districts to prevent the same issues from arising that
burdened Kernell's candidacy seven years ago. (Id.)
B. Equal protection claim
Plaintiffs also allege that the continued use of the DRE
voting machines creates an unequal voting system
within Tennessee in violation of the Equal Protection
Clause of the Fourteenth Amendment. (ECF No. 104 at
PageID 1281.) This voting system allegedly dilutes the
voting power within Shelby County and violates the right
to have one's vote counted equally. (Id.) And Plaintiffs
claim this treatment has a disproportionate impact on
Tennessee's African American population because
Shelby County has the largest population of African
American voters in the State. (Id. at PageID 1282.) As a
result, the voting system implemented by Defendants
brings about different treatment for Shelby County
citizens because of where they reside.
IV. Requested Relief
To remedy these issues, Plaintiffs seek an order
declaring that Shelby County's voting system violates
Plaintiffs' right to equal protection [*10] under the

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2019 U.S. Dist. LEXIS 156740, *10
Fourteenth Amendment and their fundamental right to
vote under the Due Process Clause of the Fourteenth
Amendment. (ECF No. 104 at PageID 1287.) Plaintiffs
demand that this Court order Defendants to replace the
Shelby County voting systems with paper ballots and an
optical scan system. (Id. at PageID 1251.) They also
request that the Court order an examination and an
internal audit of current software, vote tabulator, and
voting machines. (Id.) They also seek an order enjoining
Defendants from holding future elections without
adopting and enforcing rules and regulations that
ensure the safety and accuracy of the voting process.
(Id. at PageID 1288.) That said, both the State
Defendants and the County Defendants moved to
dismiss the complaint arguing, among other things, that
Plaintiffs lack standing to bring this complaint. (ECF
Nos. 115 & 116.) The County Defendants have joined in
the State Defendants' Motion and have also made
arguments of their own. (See ECF NO. 116.) The Court
addresses these Motions together where the arguments
are the same.
LEGAL STANDARD
A defendant may move to dismiss a complaint under
Federal Rule of Civil Procedure 12(b)(6) for failure to
state a claim. To analyze a motion to dismiss under this
Rule, the Court begins with the pleading requirements
in [*11] Rule 8 of the Federal Rules of Civil Procedure.
Under Rule 8, a complaint must contain "a short and
plain statement showing that the pleader is entitled to
relief." Fed. R. Civ. P. 8(a)(2). In practice, Rule 8
requires that a "complaint must contain sufficient factual
matter, accepted as true, to 'state a claim to relief that is
plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662,
678, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.
Ct. 1955, 167 L. Ed. 2d 929 (2007)); see Engler v.
Arnold, 862 F.3d 571, 575 (6th Cir. 2017).
Though a court will grant a motion to dismiss if a plaintiff
has no plausible claim for relief, a court must "construe
the complaint in the light most favorable to the plaintiff,
accept its allegations as true, and draw all reasonable
inferences in favor of the plaintiff." DirecTV v. Treesh,
487 F.3d 471, 476 (6th Cir. 2007). "A complaint should
only be dismissed if it is clear to the court that 'no relief
could be granted under any set of facts that could be
proved consistent with the allegations.'" Herhold v.
Green Tree Serv., LLC, 608 F. App'x 328, 331 (6th Cir.
2015) (quoting Trzebuckowski v. City of Cleveland, 319
F.3d 853, 855 (6th Cir. 2003)). "Dismissal of the action
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is proper if there is an absence of law to support the
type of claim made, if the facts alleged are insufficient to
state a valid claim, or if, on the face of the complaint,
there is an insurmountable bar to relief." Doe v. Ohio,
No. 2:91-CV-464, 2012 U.S. Dist. LEXIS 200107, 2012
WL 12985973, at *5 (S.D. Ohio Feb. 16, 2012) (citations
omitted).
Additionally, a party may move to dismiss the claims for
lack of subject-matter jurisdiction under Federal Rule of
Civil Procedure 12(b)(1). A motion made under this Rule
involves a different [*12] analysis. This is so because a
Rule 12(b)(1) motion challenges a federal courts
authority to decide a case, while a Rule 12(b)(6) motion
tests whether the plaintiff has pleaded a cognizable
claim. Primax Recoveries, Inc. v. Gunter, 433 F.3d 515,
517 (6th Cir. 2006) (quoting 5B CHARLES ALAN WRIGHT &
ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE §
1350 (3d ed. 2004)). One instance in which subject-
matter jurisdiction is absent is when a plaintiff cannot
meet the standing requirements of Article III of the
United States Constitution. See Spokeo, Inc. v. Robins,
136 S. Ct. 1540, 194 L. Ed. 2d 635 (2016). The case or
controversy mandate of Article III endows the standing
doctrine. See U.S. Const. art. III, § 2.
The standing doctrine includes three elements and the
plaintiff bears the burden of establishing each element.
Spokeo, 136 S. Ct. at 1547. The plaintiff must show: (1)
that she suffered an injury in fact; (2) that the injury is
fairly traceable to the conduct of the defendant; and (3)
that the injury is likely to be redressed by a favorable
decision by the court. Id. (citing Lujan v. Defenders of
Wildlife, 504 U.S. 555, 560-61, 112 S. Ct. 2130, 119 L.
Ed. 2d 351 (1992)). Put another way, an injury in fact is
one that is both "concrete and particularized." Spokeo,
136 S. Ct. at 1548-49. A concrete injury must truly exist.
(Id.) And a particularized injury "must affect the plaintiff
in a personal way." (Id.) "Where, as here, a case is at
the pleading stage, the plaintiff must 'clearly . . . allege
facts demonstrating" each element.'" Id. (quoting Warth
v. Seldin, 422 U.S. 490, 518, 95 S. Ct. 2197, 45 L. Ed.
2d 343 (1975)). Each claim [*13] is subject to dismissal
if a plaintiff lacks standing to assert it.
ANALYSIS
Defendants' main argument for dismissal is that
Plaintiffs lack standing to sue here. (ECF No. 115-1 at
PageID 1551.) To that end, Defendants argue that
Plaintiffs have failed to plead an injury in fact. (Id. at
PageID 1553.)

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"Article III standing is 'the threshold question in every
federal case[.]" Davis v. Detroit Public Sch. Cmty. Dist.,
899 F.3d 437, 443 (6th Cir. 2018) (quoting Warth v.
Seldin, 422 U.S. 490, 498, 95 S. Ct. 2197, 45 L. Ed. 2d
343 (1975)) (alteration in original).
Because Plaintiffs ground their claims for injunctive
relief on the same arguments they have for declaratory
relief——that the current voting system is unlawfully
deficient——the Court may dismiss claims of any
Plaintiff who lacks standing for declaratory relief here.
See Am. Civil Liberties Union v. Nat'l Sec. Agency, 493
F.3d 644, 652 (6th Cir. 2007). For a court to grant
declaratory relief, the plaintiff must allege or
"demonstrate actual present harm or a significant
possibility of future harm." Fieger v. Ferry, 471 F.3d 637,
643 (6th Cir. 2006). In Clapper v. Amnesty Int'l USA, the
Supreme Court noted its longstanding requirement "that
threatened injury must be clearly impending to
constitute injury in fact, and that allegations of possible
future injury are not sufficient." 568 U.S. 398, 133 S. Ct.
1138, 1147, 185 L. Ed. 2d 264.
Taking each Plaintiff one at a time, the Court will
determine whether they have standing to bring the claim
for declaratory relief. [*14]
I. Plaintiff SAVE
SAVE is a nonprofit corporation based in Memphis and
whose membership includes individuals residing in
Tennessee. (ECF No. 104 at PageID 1203.) SAVE's
purpose is to monitor public elections and report those
findings to the public. (Id.) And SAVE advocates for
more secure and reliable election processes by
submitting their reports to governmental bodies. (Id.)
An organization such as SAVE can establish standing
two ways. First, the organization may assert standing
"on its own behalf because it has suffered a palpable
injury as a result of the defendants' actions" through so-
called organizational standing. MX Group, Inc. v. City of
Covington, 293 F.3d 326, 332-33 (6th Cir. 2002) (citing
Warth, 422 U.S. at 511). Second, an organization may
claim standing as a representative of its members who
would have standing to sue individually through
associational standing. Id.
A. Organizational Standing
To establish organizational standing, a plaintiff
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organization must establish the three traditional
elements of standing. See Fair Elections Ohio v.
Husted, 770 F.3d 456, 459 (6th Cir. 2014). That is, the
organization must establish that it suffered an injury in
fact, that the injury is fairly traceable to the conduct of
the defendant and that the injury can be remedied by a
favorable decision. Id. But plaintiffs seeking injunctive or
declaratory [*15] relief face a higher burden. Id. at 460
("[Plaintiffs who have standing to bring a damages claim
do not necessarily have standing to bring a claim for"
injunctive or declaratory relief.) On top of the Lujan
elements, "plaintiffs seeking injunctive or declaratory
relief must show 'actual present harm or a significant
possibility of future harm.'" Vaduva v. City of Xenia, 780
Fed. Appx. 331, 2019 U.S. App. LEXIS 23567, 2019 WL
3714790, at *6 (6th Cir. Aug. 7, 2019) (quoting Grendell
v. Ohio Supreme Ct., 252 F.3d 828, 833 (6th Cir.
2001)).
SAVE argues that it has organizational standing
because its mission has been frustrated by the lack of
secure voting systems and it will continue to be,
"harmed by the diversion of resources from its purposes
of research and education in order to bring, fund, and
participate in this litigation." (ECF No. 104 at PageID
1265.) Defendants argue that Plaintiff's diversion of
resources theory of harm is not enough to establish an
injury in fact here. (ECF No. 115-1 at PageID 1553.)
Going on, Defendants point out that an organization
lacks standing if it "'manufacture(s) the injury by
incurring litigation costs or simply choos[es] to spend
money fixing a problem that would otherwise not affect
the organization at all. It must instead show that it would
have suffered some other injury if it had not diverted
resources to counteracting the problem.'" [*16] Citing
Valle del Sol, Inc. v. Whiting, 732 F.3d 1006, 1018 (9th
Cir. 2013.) So the diversion of resources theory is at
issue.
Addressing this theory in Sierra Club v. Morton, the
Supreme Court noted that an organization's abstract
interest in a problem cannot establish standing, "no
matter how longstanding the interest and no matter how
qualified the organization is in evaluating the problem."
405 U.S. 727, 739, 92 S. Ct. 1361, 31 L. Ed. 2d 636
(1972). Looking at standing, "an organization's abstract
concern with a subject that could be affected by an
adjudication does not substitute for the concrete injury
required by Art. III." Simon v. E. Ky. Welfare Rights
Org., 426 U.S. 26, 40, 96 S. Ct. 1917, 48 L. Ed. 2d 450
(1976). By extension, if an organization "seek(s) to do
no more than vindicate their own value preferences
through the judicial process" that organization generally

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cannot establish standing. Sierra Club, 405 U.S. at 740,
92 S. Ct. 1361; see also Havens Realty Corp. v.
Coleman, 455 U.S. 363, 379, 102 S. Ct. 1114, 71 L. Ed.
2d 214(1982).
The Sixth Circuit has addressed the diversion of
resources theory of injury in fact several times. In Fair
Elections Ohio v. Husted, the court held that an
organization conducting voter outreach programs lacked
standing to sue to overturn an Ohio incarceration
practice that prevented individuals jailed at certain times
from voting, because the organization had only "abstract
social interest in maximizing voter turnout" instead of a
concrete stake in voter registration. [*17] 770 F.3d at
461. The Sixth Circuit found that the organization had
not suffered an injury in fact just because it expended
resources advising others how to comply with a law or
attempting to change the law. Id. at 460. The court
summed up its opinion by stating "the law purportedly
injures [the organization] by hampering [its] abstract
social interest in maximizing voter turnout. Harm to
abstract social interests cannot confer Article III
standing." Id. at 460.
On the other hand, in Northeast Ohio Coalition for the
Homeless v. Husted, the Sixth Circuit held that the
plaintiff organization established standing. 837 F.3d
612, 624 (6th Cir. 2016). The plaintiff had standing there
because it had immediate plans to revise its voter
education program to change from assisting the
homeless with mail-in voting to focus on helping the
homeless participate in early, in-person voting in
response to changed election laws. Id. The court found
that this change in the organization's conduct was a
complete "overhaul" of the organization's strategy—
more than just effort and expense associated with
advising voters how to follow the law as in Fair Elections
Ohio v. Husted. Id. The Sixth Circuit held that the
organization's "allegations indicate that the burden
would cause [*18] them to change significantly their
expenditures and operation and a favorable decision
would redress that injury . . . ." Id.
SAVE relies on Galaria v. Nationwide Mutual Insurance
Company, 663 F. App'x 384 (6th Cir. 2016), to support
its argument that costs incurred to mitigate the
perceived threats posed by the AccuVote DREs
satisfies the standing requirements. (See ECF No. 128
at PageID 1647-48.) In that case, the plaintiffs brought a
class action against the defendant after computer
hackers breached the defendant's network and stole the
plaintiffs' personal information. Galaria, 663 F. App'x at
385. The Sixth Circuit held that the plaintiffs established
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a cognizable Article III injury because they had alleged a
substantial risk of harm and had shown that they
reasonably incurred mitigation costs. Id. at 388. In fact,
the plaintiffs alleged that an unknown party had stolen
their private information and that they had a continuing,
increasing risk of fraud and identity theft. Id.
Here, SAVE has established no significant risk of harm
like the plaintiffs in Galaria. SAVE, and the other
Plaintiffs, allege that the AccuVote DRE machines are
subject to hacking or manipulation, but they have no
citations in the record showing that anyone has hacked
or manipulated Shelby County's voting machines2. This
is [*19] different than Galaria where the plaintiffs
established that someone had stolen their information
and that the risk of future harm had substantially
increased, causing them to incur mitigation expenses.
Plaintiffs' allegations here are based only on
speculation, conjecture and their seemingly sincere
desire for their "own value preferences" in having voting
machines with a paper trail. As a result, Plaintiffs fail to
establish substantial risk of harm.
This also differs from the increased risk of harm in
Stewart v. Blackwell, 444 F.3d 843, 849 (6th Cir. 2006),
vacated as moot, 473 F.3d 692 (6th Cir. 2007), where
statistical evidence showed that the error rate was 50
percent higher in voting machines using punch cards
versus other voting technologies. In that case, the Sixth
Circuit held that the plaintiffs had established, beyond
speculation, the increased probability that the punch-
card system was more likely to count votes improperly.
Id. at 855. In contrast, as noted above, SAVE's alleged
risk of harm is based on fear and speculation that
AccuVote DRE is likely to count votes improperly in
upcoming elections. Although Plaintiffs raise several
possible flaws with AccuVote DRE, they have provided
no evidence that there is a realistic possibility that
upcoming elections will [*20] be compromised. And
merely alleging that issues arising during the 2012
election will recur with no real proof of that likelihood is
the sort of hypothetical harm on which this Court cannot
grant relief. Plaintiffs allege no facts showing that
AccuVote DRE systems miscount votes or are more
likely to miscount votes when compared to other voting
systems. SAVE therefore has not established a
substantial risk of harm to its members.
And SAVE has not established that its diversion of
2 To be sure, in this digital age, hacking is a possibility. But
courts require more than a possibility to maintain an action for
injunctive relief.

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resources to fund this litigation establishes a cognizable
Article III injury. SAVE's purpose is to monitor elections,
report its findings, and advocate for more secure
election processes. (ECF No. 104 at PageID 1203.)
"Harm to abstract social interests cannot confer Article
III standing." Fair Elections Ohio, 770 F.3d at 460. That
SAVE is having to spend more to advocate their position
does not satisfy the injury in fact standard. SAVE's
"diversion of resources" is unlike those in Northeast
Ohio Coalition for the Homeless v. Husted. The plaintiff
in that case had to change their organizational tactics to
keep helping the homeless community vote. By contrast
SAVE has decided to institute this lawsuit to advocate
proactively for a change in Shelby [*21] County's voting
process to what it perceives to be safer elections.
It is true that funding this lawsuit may divert funds from
SAVE's other goals. But that is a cost that SAVE has
chosen to incur to further its abstract social interest of
having more secure elections. SAVE has therefore not
established that it suffered an injury in fact and lacks
organizational standing to sue here. The Court will now
determine whether SAVE has associational standing.
B. Associational Standing
SAVE's remaining option to establish standing is to sue
as a representative of its members who would have
standing to sue individually through associational
standing. MX Group, Inc., 293 F.3d at 332-33. "An
association has standing to bring suit on behalf of its
members when [1] its members would otherwise have
standing to sue in their own right, [2] the interests at
stake are germane to the organization's purpose, and
[3] neither the claim requested nor the relief requested
requires the participation of individual members in the
lawsuit." Waskul v. Washtenaw Cty. Cmty. Mental
Health, 900 F.3d 250, 254-55 (6th Cir. 2018) (quoting
Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., Inc.,
528 U.S. 167, 181, 120 S. Ct. 693, 145 L. Ed. 2d 610
(2000)).
Defendants argue that SAVE cannot meet the third
element for associational standing——that the
participation of the individual members in the lawsuit is
not required. (ECF No. 115-1 at PageID 1556.) [*22]
Defendants argue that the individual members'
participation is required because SAVE does not have
the right to vote and it must therefore establish that one
of its members is a registered voter and has suffered an
injury in fact as a result of the current voting system
used in Shelby County. (Id.) To be sure, SAVE must
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Page 7 of 10
show that one of its members has the right to vote and
would be harmed by using the current voting system,
this does not necessarily require a member's
participation. Defendant's argument does not hold water
because "[t]he individual participation of an
organization's members is 'not normally necessary
when an association seeks prospective or injunctive
relief for its members.'" Sandusky Cty. Democratic Party
v. Blackwell, 387 F.3d 565, 574 (6th Cir. 2004) (quoting
United Food & Commercial Workers Union Local 751 v.
Brown Group, Inc., 517 U.S. 544, 546, 116 S. Ct. 1529,
134 L. Ed. 2d 758 (1996)).
That said, SAVE still must establish that "at least one of
[its] members would have standing to sue on his own."
Waskul, 900 F.3d at 255 (citation omitted) (alteration in
original). This means that the organization "must show
that one of its named members '(1) suffered an injury in
fact, (2) that is fairly traceable to the challenged conduct
of the defendant, and (3) that is likely to be redressed by
a favorable judicial decision.'" Id. (quoting Spokeo, Inc.
v. Robins, 136 S. Ct. 1540, 1547, 194 L. Ed. 2d 635
(2016)). This requires a specific allegation of the name
of the member [*23] harmed unless all members of the
organization have been harmed by the defendant's
conduct. Tennessee Republican Party v. Sec. and Exch.
Comm'n, 863 F.3d 507, 520 (6th Cir. 2017) (quoting
Summers v. Earth Island Inst., 555 U.S. 488, 498, 129
S. Ct. 1142, 173 L. Ed. 2d 1 (2009)). The Court focuses
on whether any of SAVE's members have suffered an
injury in fact.
An injury in fact is a "concrete and particularized" and
"actual or imminent, not conjectural or hypothetical"
harm caused by the invasion of a legally protected
interest. Tennessee Republican Party, 863 F.3d at 517
(quoting Spokeo, Inc., 136 S. Ct. at 1548). A harm is a
particularized one if it affects a plaintiff in a "personal
and individual way . . . ." Davis, 899 F.3d at 444. And it
is concrete if it "actually exist[s]." Duncan v. Muzyn, 885
F.3d 422, 427 (6th Cir. 2018) (quoting Spokeo, Inc., 136
S. Ct. at 1548).
i. SAVE alleges that at least one of its members has
suffered an Article III injury.
The Complaint identifies only Carol Chumney, Michael
Kernell, and Dr. Joseph Weinberg as members of
SAVE. (ECF No. 104 at PageID 1203.) Of that group,
Michael Kernell is the lone member to allege that he
suffered a constitutional injury. (Id. at PageID 1205.)
Kernell alleges harm when he ran in the 2012 August

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2019 U.S. Dist. LEXIS 156740, *23
county and state primaries. During that 2012 primary
election, Shelby County election officials allegedly
issued the wrong ballot to thousands of voters which
caused about 720 voters to cast ballots in the wrong
precinct. (Id. at PageID 1205-06.)
Kernell also alleges that, [*24] in August 2018, he ran
as a candidate for the Shelby County School Board of
Commissioners and that "before certification, he
repeatedly called the Defendant Shelby County Election
Commission to obtain certified copies of the poll tapes
for his district as allowed by state law, and was never
timely afforded an opportunity to do so." (Id. at PageID
1206.) And Kernell states that he observed Shelby
County election workers in November 2018 failing to
adhere to state election rules regulating uploading votes
after polls are closed on election day. (Id.) Kernell
claims that these "improprieties" provide "a reasonable
basis that, absent injunctive relief, he will be
disenfranchised or severely burdened in exercising his
fundamental right to vote in future elections . . . ." (Id. at
PageID 1206-07.)
SAVE also claims that all its members are "threatened
with imminent injury-in-fact . . . ." (ECF No. 104 at
PageID 1204.) SAVE alleges that Defendants' actions
"have infringed on their fundamental right to vote and to
equal protection" due to the unsecure voting system
used by Shelby County. (Id. at PageID 1204, 1266.)
Thus SAVE argues that at least one of its members has
suffered an Article III [*25] injury.
ii. SAVE's allegations are only generalized
grievances.
SAVE's allegations amount to a general dissatisfaction
with the voting system and processes used in Shelby
County. SAVE wants a more secure voting system with
a paper trail and it is suing to get it. While SAVE's
aspiration makes sense, its absence—that is, the
current voting system—has not caused "concrete and
particularized harm." Wanting a better, more secure
voting system, will likely always be SAVE's desire. That
is, until someone devises the illusive perfect voting
system. SAVE is out to vindicate its own value
preferences and it boils down to general dissatisfaction.
"[A] plaintiff raising only a generally available grievance
about government—claiming only harm to his and every
citizen's interest in proper application of the Constitution
and laws, and seeking relief that no more directly and
tangibly benefits him than it does the public at large—
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does not state an Article III case or controversy." Davis,
899 F.3d at 444 (quoting Lujan, 504 U.S. at 573-74.)
So-called general grievances do not meet the Article III
standing requirements because such "harms" fail to
affect the plaintiff in a "personal and individual way." Id.
(quoting Spokeo, Inc., 136 S. Ct. at 1548.)
Alleging that the AccuVote DRE [*26] used by all voters
in Shelby County violates legally protectable interests,
SAVE has identified an issue that affects all voters in
Shelby County equally. This type of generalized
grievance is simply not enough to meet the Article III
standing requirements. See, e.g., Davis, 899 F.3d at
444 (holding that Plaintiffs did not state any more than a
generalized grievance where they could not prove they
were affected in a "personal and individual way" and
where the challenged ballot question "affect[ed] all
Detroit voters equally"); Lujan, 504 U.S. at 555 ("[A]
plaintiff raising only a generally available grievance
about government—claiming only harm to his and every
citizen's interest in proper application of the Constitution
and laws, and seeking relief that no more directly and
tangibly benefits him than it does the public at large—
does not state an Article III case or controversy").
SAVE, then, has failed to provide the Court with any
evidence that any of its members would suffer from a
special harm that makes the injury particularized to
SAVE members. And suing the Shelby County Election
Commission to force it to abide by the rules and
regulations that govern the election process in
Tennessee and Shelby County suffers from the [*27]
same defect.
The closest SAVE comes to a specific allegation of
harm against one its members is the allegation that
Defendants gave voters the wrong ballot when Michael
Kernell was running for office in 2012. But this too fails
to meet the Article III injury standard. "Past injury is also
inadequate to constitute an injury in fact when the
plaintiff seeks injunctive relief but [does not] suffer 'any
continuing present adverse effects.'" Crawford v. United
States Dep't. of Treasury, 868 F.3d 438, 455 (6th Cir.
2017) (quoting City of Los Angeles v. Lyons, 461 U.S.
95, 102, 103 S. Ct. 1660, 75 L. Ed. 2d 675 (1983)). So
while Kernell may have been harmed in 2012 when the
election officials distributed the wrong ballots to voters,
there is no proof that this will happen again. SAVE and
Kernel only hypothesize that it will. Because SAVE
seeks declaratory and injunctive relief, it would have to
show that there is a realistic likelihood of the conduct
reoccurring. See Lyons, 461 U.S. at 105-06 (holding
that the plaintiff failed to allege that a realistic possibility
existed that he would face an illegal chokehold again in

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2019 U.S. Dist. LEXIS 156740, *27
the future). Kernell thus does not allege a cognizable
injury because he has not shown that there is a real and
immediate threat that Defendants will distribute wrong
ballots in the future.
And so SAVE has failed to allege that at least one of its
members has suffered [*28] an injury in fact. SAVE
thus lacks associational standing to bring a claim for
declaratory relief here. In the end, SAVE's claims for
injunctive relief depend on its claims for declaratory
relief. These claims are consequently dismissed
because of SAVE's lack of standing. See American Civil
Liberties Union, 493 F.3d at 652 ("The injunction in this
case is predicated on the declaratory judgment . . . so it
follows that if the plaintiffs lack standing to litigate their
declaratory judgment claim, they must also lack
standing to pursue an injunction.")
The Court now determines whether any of the remaining
named Plaintiffs have standing to pursue these claims.
II. Joe Towns, Jr. and Britney Thornton
Neither Joe Towns, Jr. nor Britney Thornton allege that
they have suffered an injury or are subject to an
imminent injury. Instead, both Plaintiffs allege that they
have a "reasonable basis to believe that, absent
injunctive relief, [they] will be disenfranchised or
severely burdened in exercising [their] fundamental right
to vote" because of the "overwhelming probability" that
Defendants will miscount votes in the future. (ECF No.
104 at PageID 1207-08.) Both Plaintiffs state their
intention to run as candidates in future elections.
(Id. [*29] ) These beliefs stem from Defendants' use of
the allegedly antiquated AccuVote DRE voting
machines and allegedly ill-trained poll workers.
Despite Plaintiffs' fears, these allegations fall far short of
being concrete injuries. As noted above, a concrete
injury is one that is real and actually exists. Spokeo,
Inc., 136 S. Ct. at 1548. Future harm must be imminent,
meaning "certainly impending," rather than a simple
"allegation[] of possible future injury." Parsons v. U.S.
Dep't of Justice, 801 F.3d 701, 710 (6th Cir. 2015). The
harm alleged here by Towns and Thornton is merely
hypothetical.
Even construing the allegations in the light most
favorable to them, Plaintiffs offer no proof showing that
Shelby County's voting system is any more likely to
miscount votes than any other system used in
Tennessee. At the same time, they have no proof that
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the AccuVote DRE voting machines are more likely to
be hacked or manipulated than other Tennessee voting
machines. In sum, these allegations fall far short of the
evidence provided in Stewart where statistical evidence
showed that voting systems using punch-card ballot had
a 50 percent higher likelihood of being miscounted than
other voting technologies. See 444 F.3d at 849. Such a
conjectural and hypothetical injury cannot survive as the
foundation for Plaintiffs' [*30] claims. Tennessee
Republican Party, 863 F.3d at 517 (citing Spokeo, Inc.,
136 S. Ct. at 1548).
And so Towns and Thornton have failed to allege a
concrete injury necessary to support standing on their
declaratory judgment claim. The Court finds that Towns
and Thornton lack standing to bring these declaratory
judgment claims and so the claims are dismissed.
These Plaintiffs' injunctive relief claims are also
dismissed for the reasons stated above.
III. Ann Scott
The Complaint fails to allege that Ann Scott suffered a
particularized harm. Her claims arise solely out of her
membership in SAVE. In fact, beyond the general
allegation that the AccuVote DRE machines may
miscount her vote in future elections, the Complaint
wholly fails to make any specific claims of harm as to
Scott. (See ECF No. 104 at PageID 1207-08.) Scott's
claims therefore amount to only generalized grievances
that affect her no more than any other registered voter
in the community at large. Generalized grievances do
not support Article III standing. See Davis, 899 F.3d at
444. Scott's claims are therefore dismissed for lack of
standing.
IV. Michael Kernell
Michael Kernell's allegations of harm were discussed
before. See supra Section I.B.i. And as stated above,
Kernell's allegation that Defendants may distribute the
wrong [*31] ballots in future elections fails to state a
realistic likelihood that this harm is likely to repeat itself.
See supra Section I.B.ii. This is necessary for cases
seeking injunctive relief. See Lyons, 461 U.S. at 105-06.
And the remaining claims are no more than generalized
grievances that do not state a particularized harm. So
Kernell's claims are also dismissed.
CONCLUSION
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Page 10 of 10
2019 U.S. Dist. LEXIS 156740, *31

In the end, "[t]he law of Article III standing . . . serves to

prevent the judicial process from being used to usurp
the powers of the political branches . . . ." Spokeo, Inc.,
136 S. Ct. at 1547 (quoting Clapper v. Amnesty Int'l
USA, 568 U.S. 398, 408, 133 S. Ct. 1138, 185 L. Ed. 2d
264 (2013)). Although initiatives designed to make
election processes more secure are beneficial to the
democratic process, this Court must limit its adjudicative
power to "cases" and "controversies" as outlined in
Article III. No Plaintiff here has standing to bring the
claims alleged, and so the Court is without the authority
to hear this case.3 The Court, therefore, GRANTS the
Motions to Dismiss without prejudice.

SO ORDERED, this 13th day of September, 2019.

/s/ Thomas L. Parker

THOMAS L. PARKER

UNITED STATES DISTRICT JUDGE

End of Document

3 Defendants made several other arguments attacking the

Second Amended Complaint here beyond their contention that
Plaintiffs lack standing. Yet given the Court's holding that
Plaintiffs lack standing to bring the claims alleged, it is
unnecessary to address the other arguments raised by
Defendants.

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Positive
As of: December 28, 2022 8:29 PM Z

Samuel v. V.I. Joint Bd. of Elections

United States District Court for the District of the Virgin Islands, St. Croix Division
March 7, 2013, Decided; March 7, 2013, Filed
Civil No. 2012-0094

Reporter
2013 U.S. Dist. LEXIS 31538 *; 2013 WL 842946

NORMA PICKARD SAMUEL, Individually and as a St.

Thomas Candidate for Delegate to Congress, WILMA
MARSH-MONSANTO, individually and as a St. Thomas
candidate for Senate-at-Large, LAWRENCE OLIVE,
individually and as a St. Thomas Candidate for the 30th
Legislature, DIANE MAGRAS, Individually and as a St.
Thomas candidate for Board of Elections, and HARRIET
MERCER, individually and as a St. Thomas Candidate
for Board of Elections, Plaintiffs, vs. VIRGIN ISLANDS
JOINT BOARD OF ELECTIONS, ST. CROIX BOARD
OF ELECTIONS, ST. THOMAS-ST. JOHN BOARD OF
ELECTIONS, JOHN ABRAMSON, Jr., as supervisor of
Elections, RUPERT ROSS, JR., as chairman of the St.
Croix Board of Elections, Alecia Wells, as chairwoman
of the St. Thomas-St. John Board of Elections,
Defendants.
Prior History: Samuel v. V.I. Joint Bd. of Elections,
2013 U.S. Dist. LEXIS 2094 (D.V.I., Jan. 7, 2013)
Core Terms
election, voting, voters, machines, allegations,
candidates, rights, general election, cause of action,
local election, irregularities, preliminary injunction,
certification, Defendants', motion to dismiss, district
court, irreparable, provisions, concrete, injunctive relief,
tabulation, injuries, cases
Counsel: [*1] NORMA PICKARD SAMUEL, Pro se, St.
Thomas, USVI.
WILMA MARSH-MONSANTO, Pro Se, St. Thomas, USVI.
LAWRENCE OLIVE, Pro Se, St. Thomas, USVI.
DIANE MAGRAS, Pro Se, St. Thomas, USVI.
HARRIET MERCER, Pro Se, St. Thomas, USVI.
Tamika M. Archer, Esq., Ariel Smith-Francois, Esq., St.
Thomas, USVI, For the Defendants.
Judges: FINCH, Senior United States District Judge.
Opinion by: RAYMOND L. FINCH
Opinion
MEMORANDUM OPINION
(March 7, 2013)
THIS MATTER comes before the Court on Defendants'
Motion to Dismiss, filed on January 18, 2013. (Dkt. No.
84). In their motion, Defendants argue that this case
should be dismissed on numerous grounds, including
lack of standing, failure to state a claim, and laches.
Plaintiffs, proceeding pro se, have opposed the motion.
(Dkt. No. 86). For the reasons that follow, the Court
grants Defendants' motion and dismisses the Amended
Complaint.
BACKGROUND
On December 11, 2012, Plaintiffs Norma Pickard-
Samuel, Wilma Marsh-Monsanto, Lawrence Olive,
Diane Magras, and Harriet Mercer filed a Complaint
pursuant to 42 U.S.C. § 1983 and other statutes in
which they sought, inter alia, to decertify the November
6, 2012 general election in the Virgin Islands. (Dkt. No.
1). They filed [*2] an Amended Complaint on December
21, 2012, which also contained an “Application for a
Temporary Restraining Order, Injunctive Relief,
Mandamus Relief, Declaratory Judgment and Costs.”
(Dkt. No. 33).

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2013 U.S. Dist. LEXIS 31538, *2
As set forth in the Amended Complaint, Plaintiff Norma
Pickard-Samuel was a federal candidate for the
territory-wide position of Delegate to Congress in the
November 2012 elections; Plaintiff Wilma Marsh-
Monsanto was a candidate for the territory-wide position
of Senator-at-Large; Plaintiff Lawrence Olive was a
candidate for the St. Thomas District position as
Senator for the 30th Legislature; and Plaintiffs Diane
Magras and Harriet Mercer were candidates for the St.
Thomas/St. John District Board of Elections. (Dkt. No.
33, ¶¶ 7-11). Plaintiffs were not elected in the November
2012 election. Plaintiffs claimed that Defendants — the
Virgin Islands Joint Board of Elections; the St. Croix
Board of Elections; the St. Thomas-St. John Board of
Elections; John Abramson, Jr., Supervisor of Elections;
Rupert Ross, Jr., Chairman of the St. Croix Board of
Elections; and Alecia Wells, Chairwoman of the St.
Thomas-St. John Board of Elections — have not
addressed their election-related concerns and
complaints, [*3] and had violated various federal and
local laws which cast the results of the election in doubt.
Plaintiffs also sought a temporary restraining order and
a preliminary injunction to enjoin the January 2013
swearing in of the Virgin Islands' officials elected in
November 2012.
The procedural background in this case was set forth in
the Court's January 6, 2013 Memorandum Opinion
denying a preliminary injunction:
Plaintiffs' twenty-one page Amended Complaint
contains a number of general factual allegations
that can be roughly divided into eight categories: (1)
Defendants have ignored admonishments by the
District Court and the Superior Court of the Virgin
Islands contained in Bryan v. Todman, 1993 U.S
Dist. LEXIS 21461 (D.V.I. Oct. 29, 1993) and St.
Thomas-St. John Bd. of Elections v. Daniel, 49 V.I.
322 (V.I. Sept. 17, 2007), [Dkt. No. 33] ¶ 25; (2)
Defendants have failed to enforce the Uniformed
and Overseas Citizens Absentee Voting Act,
amended by the Military & Overseas Voter
Empowerment Act, id. ¶ 26; (3) On occasions in
2001, 2003, and 2006, Defendant Abramson acted
in a manner that has exposed or could expose the
election system to compromise, id. ¶ 27; (4)
Defendants have misrepresented [*4] the “true
status of electronic voting machine certification”
between 2010 and 2012 when, inter alia, Defendant
Abramson stated that the Virgin Island voting
machines were federally certified by the Election
Assistance Commission (“EAC”) when they were
not, id. ¶ 28; (5) various individuals, including
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Plaintiff Marsh-Monsanto, made written requests for
“election intervention and audit pertaining to the
integrity and security of the Election System and
Boards of Elections” from 2009 to 2012, id. ¶ 30; (6)
Plaintiffs submitted correspondence to the Virgin
Islands Attorney General and United States
Attorney challenging the 2012 primary election
process, which were neither officially
acknowledged, acted upon “fully and impartially,
nor resolved to the satisfaction of the plaintiffs,” id.
¶¶ 31, 32; (7) between August and November 2012,
“a number of candidates” and others submitted
correspondence and inquiries to the Boards of
Elections expressing serious concerns about the
primary election; a person filed a complaint for a
recount, which was granted but did not strictly
conform to the statute; an unnamed person
challenged the certification of the primary election;
Plaintiff Pickard-Samuel [*5] submitted a letter to
the Attorney General and U.S. Attorney concerning
the use of non-EAC certified voting machines in the
general election, in contravention of the Help
America Vote Act of 2002 (“HAVA”), 116 Stat.
1666, 42 U.S.C. § 15301 et seq., which she felt
would negatively impact her election bid; a person
challenged the Attorney General's announcement
that his office would conduct an investigation into
the 2012 general election, documenting a conflict of
interest. According to Plaintiffs, all of this
correspondence was ignored. Id. ¶¶ 33-44; and (8)
Plaintiffs hand-delivered petitions for recount
concerning the general election to the St.
Thomas/St. John Elections Office “alleging a wide
variety of substantiated election-related
complaints,” including fraud, resulting in “the
public's diminished trust and confidence in the
Election System,” and they believe they are entitled
to a new election because Defendants failed to
establish a quorum at the meeting where they
decided the recount issue, as required by 18 V.I.C.
§§ 629(b) and (c). Id. ¶¶ 45, 46.
Based on these allegations, Plaintiffs contend that
Defendants have infringed on “voters' fundamental
right to vote, fair and transparent [*6] elections and
to equal protection”; they will be “severely burdened
in exercising their due process right” to have their
election challenges decided; and the legitimacy of
the general election results, in terms of vote
tabulation and certification are in doubt, as the
tabulation is “independently unverifiable and
indeterminable.” Id. ¶¶ 48-50. They do not
specifically explain how their constitutional rights

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2013 U.S. Dist. LEXIS 31538, *6
have been violated.
Plaintiffs assert that Defendants, acting under color
of law, have administered the election in a manner
inconsistent with federal and local election law,
violating 42 U.S.C. § 1983, and seek decertification
of the general election and a new election. Id. ¶¶
52-53. They request that Defendants be enjoined
from conducting the January 8, 2013 swearing-in
ceremony of all candidates. They also request that
the Court declare that: (1) Defendants' denial of
petitions for recount by lack of quorum violates their
due process rights; (2) Defendants have violated 18
V.I.C. §§ 629(b) and (c); (3) the 2012 general
election is null and void, order the Boards of
Elections to decertify the election, and issue an
order to conduct the new election on a one-page
paper ballot. Id. pp. 19-20.
Samuel v. Virgin Islands Joint Bd. of Elections, 2013
U.S. Dist. LEXIS 3689, *3-7, [WL], at *2 (Jan. 6, 2013)
[*7] (footnote omitted).
The Court issued an Amended Order denying Plaintiffs'
petition for a temporary restraining order on January 2,
2013 (Dkt. No. 69), and later denied Plaintiff's motion for
reconsideration of that Order. (Dkt. No. 83). On January
4, 2013, the Court held a hearing on Plaintiffs' motion for
a preliminary injunction, and denied the motion in a
Memorandum Opinion issued on January 6, 2013. (Dkt.
No. 76). Plaintiffs filed a “Motion to Reconsider and Alter
Judgment” on January 11, 2013, in which they asked
the Court to reconsider its denial of their request for a
preliminary injunction. (Dkt. No. 81). The Court denied
that motion on February 1, 2013. (Dkt. No. 87). On
February 4, 2013, the Court denied Plaintiffs' motion to
stay proceedings in this case while the motion to
reconsider the denial of the preliminary injunction was
pending. (Dkt. No. 88).
On January 18, 2013, Defendants filed the instant
Motion to Dismiss. (Dkt. No. 84, 85). Plaintiffs opposed
the motion (Dkt. No. 86), and Defendants filed a reply
brief. (Dkt. No. 89). The matter is now ripe for
disposition.
DISCUSSION
A. Standard of Review
In deciding a motion to dismiss pursuant to Fed. R. Civ.
P. 12(b)(6), courts [*8] “accept all factual allegations as
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true, construe the complaint in the light most favorable
to the plaintiff, and determine whether, under any
reasonable reading of the complaint, the plaintiff may be
entitled to relief.” Phillips v. County of Allegheny, 515
F.3d 224, 231 (3d Cir.2008) (quoting Pinker v. Roche
Holdings Ltd., 292 F.3d 361, 374 n.7 (3d Cir. 2002)). To
withstand a Rule 12(b)(6) motion, “a complaint must
contain sufficient factual matter, accepted as true, to
‘state a claim to relief that is plausible on its face.’”
Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 1949,
173 L. Ed. 2d 868 (2009) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955, 167 L.
Ed. 2d 929 (2007)). “After Iqbal, it is clear that
conclusory or ‘bare-bones’ allegations will no longer
survive a motion to dismiss: ‘threadbare recitals of the
elements of a cause of action, supported by mere
conclusory statements, do not suffice.’” Fowler v. UPMC
Shadyside, 578 F.3d 203, 210 (3d Cir. 2009) (quoting
Iqbal, 129 S. Ct. at 1949)). Therefore,
after Iqbal, when presented with a motion to
dismiss for failure to state a claim, district courts
should conduct a two-part analysis. First, the
factual and legal elements of a claim should be
separated. The District [*9] Court must accept all
of the complaint's well-pleaded facts as true, but
may disregard any legal conclusions. [Iqbal, 129 S.
Ct. at 1949]. Second, a District Court must then
determine whether the facts alleged in the
complaint are sufficient to show that the plaintiff has
a “plausible claim for relief.” Id. at 1950. In other
words, a complaint must do more than allege the
plaintiff's entitlement to relief. A complaint has to
“show” such an entitlement with its facts. See
Phillips [v. Cnty. of Allegheny], 515 F.3d 224, 234-
35 [3d Cir. 2008].
Id. at 210-211. In adjudicating a motion to dismiss, the
Court may consider certain narrowly-defined types of
materials without converting the motion to a summary
judgment motion, including items that are integral to or
explicitly relied on in the complaint.“ Rockefeller Ctr.
Properties, Inc. Sec. Litig., 184 F.3d 280, 287 (3d Cir.
1999).
B. Standing: The § 1983 Causes of Action
Defendants contend that Plaintiffs lack standing to bring
this case because Plaintiffs have not alleged any facts
that would tend to establish that they suffered a
concrete or actual injury caused by Defendants' actions
that can be redressed in this action. According to

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2013 U.S. Dist. LEXIS 31538, *9
Defendants, [*10] because Plaintiffs' injuries are at best
conjectural, and they claim no particularized harm to
themselves, they do not have standing that would allow
this Court to exercise jurisdiction over Plaintiffs' claims.
(Dkt. No. 85 at 7-8). Plaintiffs have not addressed the
standing issue regarding their § 1983 cause of action in
their opposition to the motion to dismiss. Because
standing implicates the Court's subject matter
jurisdiction over a case, the Court will address this issue
first. See Adams v. Ford Motor Co., 653 F.3d 299, 304,
55 V.I. 1310 (3d Cir. 2011) (“As in all cases, we must
first address the issue of standing because ‘[i]f plaintiffs
do not possess Article III standing, … the District Court
… lack[s] subject matter jurisdiction to address the
merits of plaintiff's case.’”) (quoting ACLU-NJ v. Twp. of
Wall, 246 F.3d 258, 261 (3d Cir. 2001)). 1
Article III of the Constitution limits federal courts'
jurisdiction to “Cases” and “Controversies.” As the
Supreme Court has explained, “[n]o [*11] principle is
more fundamental to the judiciary's proper role in our
system of government than the constitutional limitation
of federal-court jurisdiction to actual cases or
controversies.” DaimlerChrysler Corp. v. Cuno, 547 U.S.
332, 341, 126 S. Ct. 1854, 164 L. Ed. 2d 589 (2006)
(internal quotation marks omitted). “One element of the
case-or-controversy requirement” is that plaintiffs “must
establish that they have standing to sue.” Raines v.
Byrd, 521 U.S. 811, 818, 117 S. Ct. 2312, 138 L. Ed. 2d
849 (1997). “The ‘irreducible constitutional minimum’ of
Article III standing consists of three elements.” Toll
Bros., Inc. v. Twp. of Readington, 555 F.3d 131, 137 (3d
Cir. 2009) (quoting Lujan v. Defenders of Wildlife, 504
U.S. 555, 560, 112 S. Ct. 2130, 119 L. Ed. 2d 351
(1992)). “First, the plaintiff must have suffered a
‘concrete,’ ‘particularized’ injury-in-fact, which must be
‘actual or imminent, not conjectural or hypothetical.’
Second, that injury must be ‘fairly traceable to the
challenged action of the defendant.’ Third, the plaintiff
must establish that a favorable decision likely would
redress the injury.” Id. at 137-38 (citations omitted).
While “all three of these elements are constitutionally
mandated, the injury-in-fact element is often
determinative. Under it, the plaintiff must [*12] suffer a
palpable and distinct harm. That harm must affect the
plaintiff in a personal and individual way.” Id. at 138
(citations and internal quotation marks omitted). In
1 “A motion to dismiss for want of standing is … properly
brought pursuant to Rule 12(b)(1), because standing is a
jurisdictional matter.” Ballentine v. United States, 486 F.3d
806, 810, 48 V.I. 1059 (3d Cir. 2007).
A-19
(22 of 45)
Page 4 of 8
addition, even though the “injury can be widely shared,”
it must “nonetheless be concrete enough to distinguish
the interest of the plaintiff from the generalized and
undifferentiated interest every citizen has in good
government.” Id.
The Court has parsed Plaintiffs' Amended Complaint for
allegations of injury they alleged they have suffered. In
addition to allegations that Defendants have
“consistently misrepresented and misle[]d the true
status of electronic voting machine certification” (Dkt.
No. 33, ¶ 28), and that Defendants did not respond to,
or did not fully act upon, Plaintiffs' concerns about the
validity of vote tabulation and election certification (id.,
¶¶ 31-40), the focus of Plaintiffs' allegations of injury
(stated in the context of irreparable harm) is that
Plaintiffs believe defendants have infringed on
voters' fundamental right to vote, fair and
transparent elections and to equal protection. It is
anticipated that voters or other candidates will be
similarly aggrieved by defendants' actions in the
[*13] future absent injunctive relief. The aggrieved
plaintiffs have standing in their individual capacity,
but neither the claims asserted nor the relief
requested herein requires the participation of the
Plaintiffs to vindicate their individual rights. The
actual and threatened injuries suffered by the
plaintiffs have been and will continue to be suffered
by thousands of Virgin Island citizens absent
injunctive relief.
Plaintiffs believe[] that, absent injunctive relief, they
and other candidates and voters will continue to be
disenfranchised or severely burdened in exercising
their due process right to have their election
concerns, complaints and challenges lawfully
acknowledged, vetted, and fully and impartially
decided due to the collusionary practices, derelict
and negligent misconduct of oath-sworn
government and elected officials.
The outcome of the vote tabulation is independently
unverifiable and indeterminable as an accurate
metric that reflects the will of the voter. The overall
process suggests the Plaintiffs were denied, and
continue to be denied, due process, and the
election process may have been deliberately left
open to compromise and vulnerabilities exploited,
thus yielding [*14] disbelievable vote outcomes
and irreparably harming plaintiffs, voters and future
candidates of the U.S. Virgin Islands through
coercion and disenfranchisement.

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2013 U.S. Dist. LEXIS 31538, *14
(Id., ¶¶ 48-50).
In its Memorandum Opinion denying Plaintiffs' request
for a preliminary injunction, the Court considered
whether Plaintiffs suffered irreparable harm (i.e., injury).
The Court wrote that Plaintiffs'
allegation of irreparable harm is based on systemic
allegations of a compromised voting system, but
Plaintiffs do not elucidate how they were irreparably
harmed, or how such harm is imminent. See
Chester ex rel. NLRB v. Grane Healthcare Co., 666
F.3d 87, 89 (3d Cir. 2011) (observing that the threat
of irreparable harm must be “imminent.”). They do
not allege, for example, that but for the operation of
the voting machines or some miscounting of the
votes, or but for the various responses or non-
responses of Defendants to their concerns, they
would have been elected, or they were otherwise
injured, and why whatever their injury is would be
addressed by decertifying the election results. See
Golden, 2005 U.S. Dist. LEXIS 45967, *10, [WL], at
*3.
Samuel, 2013 U.S. Dist. LEXIS 3689, at *18, [WL], at *8.
This reasoning applies to the issue of standing as well,
as Plaintiffs [*15] must show that they have suffered
injury-in-fact. They have not done so with regard to their
42 U.S.C. § 1983 due process and equal protection
claims.
As indicated above, an injury for standing purposes may
be widely shared; however, it must “nonetheless be
concrete enough to distinguish the interest of the
plaintiff from the generalized and undifferentiated
interest every citizen has in good government.” Toll
Bros., Inc., 555 F.3d at 138. Plaintiffs' allegations do not
distinguish their concerns — about the use of certain
voting machines in the election or the election results in
general — from concerns of other voters or even other
candidates. In fact, they make a point that their injuries
are completely aligned with local voters when they
allege that “[t]he actual and threatened injuries suffered
by the plaintiffs have been and will continue to be
suffered by thousands of Virgin Island citizens absent
injunctive relief.” (Dkt. No. 33 at ¶ 50); see also id. (the
election results will “harm[] plaintiffs, voters and future
candidates of the U.S. Virgin Islands through coercion
and disenfranchisement.”); (id., ¶ 48) (“[N]either the
claims asserted nor the relief requested herein requires
[*16] the participation of the Plaintiffs to vindicate their
individual rights.”). At best, Plaintiffs allege “a type of
institutional injury” — use of improper voting machines
A-20
(23 of 45)
Page 5 of 8
— “which necessarily damages” all Virgin Islands voters
“equally.” Raines, 521 U.S. at 821; see also Lujan, 504
U.S. at 573-74 (explaining that the Supreme Court has
“consistently held that a plaintiff … seeking relief that no
more directly and tangibly benefits him than it does the
public at large — does not state an Article III case or
controversy.”).
Moreover, Plaintiffs “do not claim that they have been
deprived of something to which they personally are
entitled” — such as election to the various positions they
sought. They do not claim a loss of “any private right,
which would make the injury more concrete.” Id. The
injuries about which Plaintiffs complain are phrased
conjecturally: Plaintiffs “believe” they and Virgin Islands
voters have suffered injury or that the election process
“may have been” left open to compromise (Dkt. No. 33,
¶¶ 48-50); they are phrased generally, as amorphous
due process claims, without requisite concreteness; and
they are phrased as ongoing claims that will harm voters
in the future, without [*17] the requisite imminence.
Although Plaintiffs “believe” Defendants have infringed
on “voters' fundamental right to vote, fair and
transparent elections and to equal protection,” (Dkt. No.
33 at 17), these are conclusory allegations without
factual support. For example, Plaintiffs do not explain
what actually occurred during the November 2012
election that would show that the results did not reflect
the will of the voters, how those vague injuries took
place, or how a failure to use EAC-certified machines
may have caused such injuries.
In short, Plaintiffs have not alleged how their due
process or equal protection rights were violated by
Defendants' actions. As a result, they have “not alleged
a sufficiently personal injury to establish standing[.]”
Lavergne v. Bryson, 2012 U.S. App. LEXIS 19754, *6,
[WL], at *2 (3d Cir. Sept. 20, 2012) (citing Schaffer v.
Clinton, 240 F.3d 878, 885 (10th Cir. 2001)).
Accordingly, Plaintiffs' 42 U.S.C. § 1983 claims must be
dismissed on standing grounds for failure to allege an
injury-in-fact. 2
2 Even if Plaintiffs had established standing under § 1983 for
their equal protection and due process claims, the Court would
dismiss that cause of action for failure to state a claim.
[*18] In order to state an equal protection claim, Plaintiffs
must establish that they are similarly situated to other persons,
and that there was no rational reason for the differential
treatment of similarly situated persons. Congregation Kol Ami
v. Abington Twp., 309 F.3d 120, 136-37 (3d Cir. 2002). The
Amended Complaint is bereft of any reference that Plaintiffs
may have been treated differently than people who were

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2013 U.S. Dist. LEXIS 31538, *18
C. Whether Plaintiffs Have Stated a Claim Under the
Help America Vote Act (HAVA)
Plaintiffs' claims fail on other grounds as well. It is well-
similarly-situated. For example, Plaintiffs did not articulate how
their right to vote was interfered with or impinged to such an
extent that it amounted to a constitutional violation by not
participating on an equal basis with other — unnamed —
citizens, or how election officials treated them differently from
other people.
In terms of Plaintiffs' due process allegations, “[i]t is well
established that the Due Process Clause contains both a
procedural and substantive component.” Am. Express Travel
Related Servs., Inc. v. Sidamon-Eristoff, 669 F.3d 359, 366
(3d Cir. 2012). To establish a procedural due process claim, “a
plaintiff must demonstrate that ‘(1) he was deprived of an
individual interest that is encompassed within the Fourteenth
Amendment's protection of life, liberty, [*19] or property, and
(2) the procedures available to him did not provide due
process of law.’ ” Iles v. de Jongh, 638 F.3d 169, 173, 55 V.I.
1251 (3d Cir. 2011) (quoting Biliski v. Red Clay Consol. Sch.
Dist. Bd. of Educ., 574 F.3d 214, 219 (3d Cir. 2009)). To
establish a substantive due process claim, a plaintiff must
establish that an election was “conducted in a manner that is
fundamentally unfair.” Montgomery Cnty. v. Microvote Corp.,
2000 U.S. Dist. LEXIS 983, *15, [WL], at *4 n.3 (E.D. Pa. Feb.
3, 2000). Plaintiffs allege, in general, that the November 2012
election suffered from certain irregularities — in particular, the
fact that the voting machines were not EAC-certified, that the
election was subverted by “fraud, corruption, and mistake,”
and that the public has “diminished trust and confidence in the
Election System, its processes, instruments, officials, and vote
outcomes.” (Dkt. No. 33 at 16). None of these allegations rise
to the level of widespread fraud — fundamental unfairness —
establishing a substantive due process claim and requiring the
invalidation of the election. Plaintiffs have not alleged, for
example, that the voting machine irregularities were so
pervasive that they affected the outcome of the election.
[*20] As far as procedural due process, while “[t]he right to
vote — to the extent it exists and an individual has been
deprived of it — is certainly a protected liberty interest,”
Plaintiffs have not alleged that they were personally deprived
of that right, or make any other representation that they
suffered a constitutional deprivation of life, liberty or property.
Barefoot v. City of Wilmington, N.C., 306 F.3d 113, 37 F. App'x
626, 635 n.5 (4th Cir. 2002). The only deprivation they assert
is a general lack of confidence in the election system, which
simply does not rise to the level of a life, liberty, or property
interest protected by the Fourteenth Amendment. They also
have no constitutional right to have their election concerns and
complaints, conveyed in various writings over the years, fully
and impartially decided. In sum, Plaintiffs have not stated a
claim under § 1983.
A-21
(24 of 45)
Page 6 of 8
established that ‘“a plaintiff must demonstrate standing
for each claim he seeks to press' and ‘for each form of
relief that is sought.’” Davis v. Fed. Election Comm'n,
554 U.S. 724, 734, 128 S. Ct. 2759, 171 L. Ed. 2d 737
(2008) [*21] (quoting DaimlerChrysler Corp., 547 U.S.
at 352)). Defendants contest whether Plaintiffs have
stated a cognizable claim under the Help America Vote
Act of 2002 (“HAVA”), Pub. L. 107-252, 116 Stat. 1666,
42 U.S.C. §§ 15301-15545, because HAVA does not
permit Plaintiffs to file a private cause of action. A failure
to allege statutory standing is analyzed in the context of
failure to state a claim rather than lack of subject matter
jurisdiction. See In re Century Aluminum Co. Sec. Litig.,
704 F.3d 1119, 2013 U.S. App. LEXIS 24, *12, [WL], at
*4 (9th Cir. Jan. 2, 2013) (“Failure to allege statutory
standing results in failure to state a claim on which relief
can be granted, not the absence of subject matter
jurisdiction.”) (citing cases).
Plaintiffs' HAVA-related allegations are found in
paragraphs 18, 20, 21, and 41 of the Amended
Complaint. Plaintiffs allege that Defendants are required
to act in accordance with HAVA concerning the conduct
of “elections containing a federal candidate on the
ballot”; that HAVA requires jurisdictions that use paper
ballot voting systems, punch card voting systems, or a
central count voting system to provide, inter alia, voter
education on how to use the systems and a record
[*22] that can be audited; Virgin Islands law mandates
only EAC-certified voting machines, as required by
HAVA, to be used in general and special elections; and
Plaintiff Samuel expressed her concerns in a November
2011 letter to the Virgin Islands Attorney General and
United States Attorney that non-EAC voting machines
would be used in the 2012 general election, in
contravention of HAVA. (Dkt. No. 33, ¶¶ 18, 20, 21, 41).
Defendants are correct that Plaintiffs, to the extent that
they are seeking to state a claim against Defendants
under HAVA, either directly or under § 1983, may not do
so because the HAVA provisions that they cite do not
permit individual plaintiffs to enforce those provisions by
bringing a private cause of action. Plaintiffs refer to two
different sections of HAVA. Section 301, 42 U.S.C. §
15481, provides for, inter alia, voter education and
ability to audit the voting system in use. (Amended
Complaint ¶ 20). The HAVA provision that refers to
certification of voting machines, 42 U.S.C. §
15371(a)(2), provides that, “[a]t the option of a State, the
State may provide for the testing, certification,
decertification, or recertification of its voting system
hardware and software [*23] by the laboratories
accredited by the Commission under this section.”

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2013 U.S. Dist. LEXIS 31538, *23
(emphasis added).
In Gonzaga Univ. v. Doe, 536 U.S. 273, 122 S. Ct.
2268, 153 L. Ed. 2d 309 (2002), the Supreme Court
held that there is no private right to enforce a statute
unless Congress, in a clear voice, unambiguously
confers that right. Id. at 280. Nowhere in Section 15371
or Section 15481 has Congress indicated an intention
that these provisions may be enforced by private
individuals. This result is consistent with other circuit
and district courts that have found no private right of
action under particular sections of HAVA. See Sandusky
Cnty. Democratic Party v. Blackwell, 387 F.3d 565, 572
(6th Cir. 2004) (“HAVA does not itself create a private
right of action.”); Crowley v. Nev. ex rel. Nev. Sec'y of
State, 678 F.3d 730, 731 (9th Cir. 2012) (“Because
HAVA § 301 was not intended to benefit voters and
candidates in local elections … such individuals do not
have a private right of action under § 1983.”); Taylor v.
Onorato, 428 F. Supp. 2d 384, 387 (W.D. Pa. 2006)
(finding that HAVA did not provide a private right of
action to enforce § 301, nor did it create a federal right
enforceable against state officials under 42 U.S.C. §
1983). 3
Even if Plaintiffs could bring an action under HAVA
directly or pursuant to § 1983, HAVA's provision
concerning EAC-certified voting machines, 42 U.S.C. §
15371(a)(2) is permissive, not mandatory. Section
15371 imposes no requirement on Defendants to use
3 In [*24] Plaintiffs' Brief in Opposition to the Motion to
Dismiss, they refer to United States v. New York State Bd. of
Elections, a case filed in the Northern District of New York in
2006 which set forth “a variety of allegations identical in many
respects to Plaintiffs' present cause of action, thereby invoking
subject matter jurisdiction of the Court, and ultimately
obtaining an Order from the Court compelling the Defendants
to ‘take all necessary actions to come into compliance with the
requirements of Section 301 and 303(a) of HAVA as soon as
practicable[.]’” (Dkt. No. 86 at 5). Plaintiffs apparently argue
that the New York case demonstrates that a court has subject
matter jurisdiction over a HAVA cause of action and, by
implication, that this Court has jurisdiction over their HAVA
cause of action. However, there is a dispositive distinction
between the two cases. The New York case was brought by
the United States Attorney General, pursuant to 42 U.S.C. §
15511, which permits the Attorney General — not private
citizens — to bring a civil action against any state to carry out
the requirements of HAVA §§ 301, 302, and 303. Here,
Plaintiffs, as private citizens, have attempted to enforce certain
[*25] provisions of HAVA, including § 303. The statute does
not permit that. Accordingly, the New York case does not
support Plaintiffs' effort to state a claim under HAVA.
A-22
(25 of 45)
Page 7 of 8
EAC-certified machines. Although Plaintiffs assert that
Defendants administered the election in a manner
inconsistent with HAVA, id. ¶ 53, this allegation has no
traction because HAVA does not require Defendants to
use EAC-certified voting machines and thus there would
be nothing to enforce. As a consequence, Defendants
cannot be found to have administered the election in
violation of HAVA.
Accordingly, to the extent Plaintiffs have alleged a
cause of action under HAVA, either directly or under §
1983, they have failed to state a claim and such a cause
of action must be dismissed.
D. Constitutional Claims Under Local Election Laws
Plaintiffs' fundamental concern in their Amended
Complaint and in their Opposition to the Motion to
Dismiss is that Defendants violated local election
[*26] laws — particularly Act 7334. Act 7334 (Bill No.
29-0047) was enacted by the Twenty-Ninth Legislature
of the Virgin Islands during its 2011 Regular Session on
December 28, 2011. Section 3 of Act 7334 provides that
“only voting machines and equipment that are EAC-
certified pursuant to The Help America Vote Act of 2002
… shall be utilized as the official voting systems or
equipment” in the Virgin Islands (amending Act No.
5281, Bill No. 17-0100). In their Amended Complaint,
Plaintiffs contend that the use of non-EAC certified
voting machines in the primary and general elections,
and other irregularities, violated the provisions of
numerous local statutes. (Dkt. No. 33, ¶¶ 24, 32, 39,
46).
In order to bring a claim in federal court for violation of a
local election statute, Plaintiffs must allege a
constitutional violation that interferes with their right to
vote. Violations of local election laws are properly
litigated in state court unless a constitutional violation
has been alleged. See Shannon v. Jacobowitz, 394
F.3d 90, 94, (2d Cir. 2005) (“Because the states
traditionally have authority over their own elections and
because the Constitution contemplates that authority,
courts ‘have [*27] long recognized that not every state
election dispute implicates federal constitutional
rights.’”) (quoting Burton v. Georgia, 953 F.2d 1266,
1268 (11th Cir. 1992)); Griffin v. Burns, 570 F.2d 1065,
1076 (1st Cir. 1987) (opining that while the Constitution
affords federal courts the power to intervene and
invalidate local elections, only exceptional
circumstances warrant the exercise of that power).
Cases draw “[a] distinction … between ‘garden variety’

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2013 U.S. Dist. LEXIS 31538, *27
election irregularities and pervasive errors that
undermine the integrity of the vote.” Bennett v. Yoshina,
140 F.3d 1218, 1226 (9th Cir. 1998). “Garden variety
election irregularities do not generally violate the Due
Process Clause, even if they control the outcome of the
vote or election.” Id. Only when election irregularities
transcend garden variety problems is the election
invalid. Id. See also Hennings v. Grafton, 523 F.2d 861,
864 (7th Cir. 1975) (finding “no constitutional violation
where irregularities were caused by mechanical or
human error and were not due to invidious or fraudulent
intent,” and ruling “[i]t is not every election irregularity,
however, which will give rise to a constitutional claim
and an action under [*28] section 1983. Mere violation
of a state statute by an election official, for example, will
not. See Snowden v. Hughes, 321 U.S. 1, 11, 64 S. Ct.
397, 88 L. Ed. 497 (1944)).”).
Plaintiffs' allegation that the electronic voting machines
were not EAC-certified, violating the provisions of Act
7334, which may have affected the entire election
process, including the validity of vote tabulation, does
not rise to the level of widespread fraud — fundamental
unfairness — to state a claim for a constitutional
violation, requiring decertification of the election. See
Bryan v. Todman, 28 V.I. 42, 45, 1992 V.I. Lexis 19
(Terr. Ct. Dec. 17, 1992), aff'd 1993 U.S. Dist. Lexis
21461 (D.V.I. Oct. 29, 1993) (opining that an election
should be invalidated where “there is a finding of fraud
or deprivation of rights which would implicate the
Constitution of the United States… Where irregularities
are alleged, the burden of proof is on the plaintiff to
show that the irregularities affect or change the result of
the election by the questioned votes.”). Plaintiffs have
not alleged facts demonstrating that the alleged
irregularities rose to a constitutional level that affected
the outcome of the election. Compare St. Thomas-St.
John Bd. of Elections v. Daniel, 49 V.I. 322, 356 (V.I.
2007) [*29] (Swan, J., dissenting) (opining that where
pervasive violations of Virgin Island election laws
deprived voters of their ability to choose candidates of
their choice, resulting in reasonable doubt that the
election reflected the will of the voters, invalidation of
the election would be a proper result); see also analysis
in January 6, 2013 Memorandum Opinion denying
Motion for Preliminary Injunction, Dkt. No. 76 at 16
(discussing how allegations that Defendants violated
other local laws did not reach constitutional
dimensions); supra, n.2.
Plaintiffs' Amended Complaint does not contain
sufficient factual matter, accepted as true, that states a
claim to relief under local election law that is plausible
A-23
(26 of 45)
Page 8 of 8
on its face. Iqbal, 129 S. Ct. at 1949. Accordingly,
Plaintiffs have failed to state a claim for a violation of a
constitutional right that would permit their allegations
that Defendants violated local election laws to be
decided in federal court.
E. The Voting Rights Act and the Military &
Overseas Voter Empowerment Act
In their Amended Complaint, Plaintiffs make a passing
reference to the Voting Rights Act of 1965, as amended,
42 U.S.C. § 1973j, which prohibits “any discrimination
based [*30] on a potential voter's race, or on ethnic
factors or minority language that diminishes an
individual's voting rights.” (Dkt. No. 33, ¶ 23). Plaintiffs
also refer to “Defendants' deliberate and chronic failure
to enforce the Uniformed and Overseas Citizens
Absentee Voting Act (UOCAVA), as amended by the
Military & Overseas Voter Empowerment (MOVE) Act,
in spite of multiple opportunities to comply since
November of 2009, resulted in an action by the United
States to force compliance. See United States of
America v. The Territory of the Virgin Islands, et al.
Case No. 3:12-cv-0069.” (Dkt. No. 33, ¶ 26). These
“conclusory or ‘bare-bones’ allegations,” which recite the
statutory provisions of the Voting Rights Act and the
UOCAVA, do not set forth any factual allegations to
support the causes of action. Fowler, 578 F.3d at 210
(quoting Iqbal, 129 S. Ct. at 1949). The Court therefore
dismisses these causes of action.
CONCLUSION
For the foregoing reasons, Defendant's Motion to
Dismiss (Dkt. No. 84) is granted. An appropriate Order
accompanies this Memorandum Opinion.
End of Document
 (27 of 45)
Case: 22-16413, 12/28/2022, ID: 12619575, DktEntry: 17-2, Page 26 of 44

Caution
As of: December 28, 2022 8:30 PM Z

Landes v. Tartaglione
United States District Court for the Eastern District of Pennsylvania
October 28, 2004, Decided ; October 28, 2004, Filed; October 28, 2004, Entered
CIVIL ACTION NO. 04-3163

Reporter
2004 U.S. Dist. LEXIS 22458 *; 2004 WL 2415074
LYNN E. LANDES v. MARGARET TARTAGLIONE, et
al. O'Neill, J.
Subsequent History: Affirmed by Landes v.
Tartaglione, 2005 U.S. App. LEXIS 23781 (3d Cir., Nov.
2, 2005)
Disposition: [*1] Defendants' motions to dismiss
granted. Plaintiff's complaint dismissed with prejudice.
Plaintiff's motion for temporary restraining order denied
as moot.
Core Terms
voting, machines, election, alleges, motion to dismiss,
injury in fact, conjectural, voters
any prior election either by voting machine or by other
means. Absent such allegations, the voter could not
establish an injury in fact. Even assuming the voter had
voted in the past and would vote in the upcoming
election, however, she alleged only a conjectural or
hypothetical injury. She argued that voting machines
were vulnerable to manipulation or technical failure, but
she did not assert that the voting machines in question
actually suffered from those issues in the past or that
they would definitively malfunction or be tampered with
during the upcoming election. Thus, the voter failed to
satisfy standing requirements.
Outcome
Defendants' motion to dismiss was granted and the
voter's motion for a temporary restraining order was
denied.

Case Summary LexisNexis® Headnotes

Procedural Posture
Plaintiff voter sought a declaratory judgment that the
local, state, and federal laws and regulations that
permitted the use of voting machines were
Governments > State & Territorial
unconstitutional and also sought to enjoin the use of
Governments > Elections
voting machines in elections for public office.
Defendants, a city commissioner, the secretary of the
HN1[ ] State & Territorial Governments, Elections
commonwealth, and the United States attorney general,
moved to dismiss. The use of electronic voting systems and voting
machines in Pennsylvania is permitted by Pa. Stat. Ann.
Overview
tit. 25, §§ 3002, 3031.2.
The voter claimed that the use of voting machines
prevented election officials, the press, and the public
from effectively observing whether persons entitled to
vote were being permitted to vote and whether their Civil Procedure > ... > Defenses, Demurrers &
votes were being properly tabulated. The voter did not Objections > Motions to Dismiss > Failure to State
establish she suffered or would suffer an injury in fact. In Claim
the voter's complaint, she alleged that she was a
registered voter of the city, but she failed to allege that HN2[ ] Motions to Dismiss, Failure to State Claim
she intended to vote by voting machine in the upcoming
election. She also failed to allege that she ever voted in A Fed. R. Civ. P. 12(b)(6) motion to dismiss examines

A-24

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2004 U.S. Dist. LEXIS 22458, *1
the sufficiency of the complaint.
Civil
Procedure > ... > Pleadings > Complaints > Require
ments for Complaint
Civil Procedure > Pleading &
Practice > Pleadings > Rule Application &
Interpretation
HN3[ ] Complaints, Requirements for Complaint
The Federal Rules of Civil Procedure do not require a
claimant to set out in detail the facts upon which he
bases his claim. To the contrary, all the Federal Rules
require is a short and plain statement of the claim that
will give the defendant fair notice of what the plaintiff's
claim is and the grounds upon which it rests.
Civil Procedure > ... > Defenses, Demurrers &
Objections > Motions to Dismiss > Failure to State
Claim
HN4[ ] Motions to Dismiss, Failure to State Claim
A court will not grant a motion to dismiss unless it
appears beyond a doubt that the plaintiff can prove no
set of facts in support of his claim which would entitle
him to relief.
Civil
Procedure > ... > Justiciability > Standing > General
Overview
Constitutional Law > ... > Case or
Controversy > Standing > General Overview
Civil Procedure > Preliminary
Considerations > Justiciability > General Overview
HN5[ ] Justiciability, Standing
In order to have standing to raise a claim before a court,
a plaintiff must establish that she meets both the three
constitutional requirements for standing and the
prudential considerations that courts have applied in
determining standing. To meet the constitutional
requirements for standing, first a plaintiff must have
suffered an injury in fact--an invasion of a legally
A-25
(28 of 45)
Page 2 of 5
protected interest that is concrete and particularized,
affecting the plaintiff in a personal and individual way,
and actual or imminent, not conjectural or hypothetical.
Second, there must be a causal connection between the
injury and the conduct complained of. The injury must
be traceable to the challenged action of the defendant
and not the result of the independent action of a third
party. Third, it must be likely and not speculative that the
injury will be remedied by a favorable decision.
Civil
Procedure > ... > Justiciability > Standing > General
Overview
Constitutional Law > The Judiciary > Case or
Controversy > Advisory Opinions
Environmental Law > Land Use &
Zoning > Constitutional Limits
Civil Procedure > Preliminary
Considerations > Justiciability > General Overview
Constitutional Law > ... > Case or
Controversy > Standing > General Overview
HN6[ ] Justiciability, Standing
The prudential principles applied in determining whether
there is standing are: (1) a plaintiff generally must assert
his own legal rights and interests, and cannot rest his
claim to relief on the legal rights or interests of third
parties; (2) even when the plaintiff has alleged
redressable injury sufficient to meet the requirements of
Article III of the United States Constitution, the federal
courts will not adjudicate abstract questions of wide
public significance which amount to generalized
grievances shared and most appropriately addressed in
the representative branches; and (3) a plaintiff's
complaint must fall within the zone of interests to be
protected or regulated by the statute or constitutional
guarantee in question.
Civil
Procedure > ... > Justiciability > Standing > Injury in
Fact
Constitutional Law > ... > Case or
Controversy > Standing > General Overview

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2004 U.S. Dist. LEXIS 22458, *1
Civil
Procedure > ... > Justiciability > Standing > General
Overview
HN7[ ] Standing, Injury in Fact
An injury in fact for standing purposes is an invasion of
a legally protected interest which is (a) concrete and
particularized and (b) actual or imminent, not conjectural
or hypothetical.
Civil
Procedure > ... > Justiciability > Standing > General
Overview
Constitutional Law > ... > Case or
Controversy > Standing > General Overview
HN8[ ] Justiciability, Standing
"A generalized grievance" is shared in substantially
equal measure by all or a large class of citizens and is
not sufficient to confer standing.
Counsel: LYNN E. LANDES, Plaintiff, Pro se,
PHILADELPHIA, PA.
For MARGARET TARTAGLIONE, IN HER OFFICIAL
CAPACITY AS CHAIR OF THE CITY
COMMISSIONERS OF PHILADELPHIA, Defendant:
MICHAEL L. DETWEILER, MICHELE L. DEAN, CITY
OF PHILA LAW DEPT, PHILA, PA.
For PEDRO A. CORTES, IN HIS OFFICIAL CAPACITY
AS SECRETARY OF THE COMMONWEALTH OF
PENNSYLVANIA, Defendant: SUSAN J. FORNEY,
OFFICE OF ATTORNEY GENERAL, HARRISBURG,
PA.
For JOHN ASHCROFT, IN HIS OFFICIAL CAPACITY
AS THE ATTORNEY GENERAL OF THE UNITED
STATES, Defendant: ANNETTA FOSTER GIVHAN,
U.S. ATTORNEY'S OFFICE, PHILADELPHIA, PA;
CRAIG M BLACKWELL, UNITED STATES
DEPARTMENT OF JUSTICE, WASHINGTON, DC.
Judges: THOMAS N. O'NEILL, JR., J.
Opinion by: THOMAS N. O'NEILL, JR.
Opinion
A-26
(29 of 45)
Page 3 of 5
MEMORANDUM
I. INTRODUCTION
Plaintiff Lynn E. Landes filed suit seeking a declaratory
judgment that the local, state and federal laws and
regulations that permit the use of voting machines are
unconstitutional. She also seeks to enjoin the use of
voting machines in elections for public office. Plaintiff
claims the use of voting machines prevents election
officials, the press and the public from effectively
observing [*2] whether persons entitled to vote are
being permitted to vote and whether their votes are
being properly tabulated. Defendants are Margaret
Tartaglione, Chair of the City Commissioners of the City
and County of Philadelphia, Pedro A. Cortes, Secretary
of the Commonwealth of Pennsylvania and John
Ashcroft, Attorney General of the United States. Now
before me are motions to dismiss filed by all defendants.
For the reasons stated below, I will grant defendants'
motions.
II. BACKGROUND
HN1[ ] The use of electronic voting systems and voting
machines in Pennsylvania is permitted by 25 Pa. Stat.
Ann. §§ 3002 and 3031.2. Plaintiff alleges that the
computerized voting machines used in Philadelphia do
not allow voters to cast their ballots directly and that
they conceal the voting process. She further asserts that
voting machines may or may not be accurate and they
are vulnerable to technical failure or vote manipulation.
Plaintiff alleges that it is not possible to observe whether
voting machines manipulate or switch votes.
Plaintiff alleges that she is a registered voter in the City
and County of Philadelphia and a freelance journalist
who specializes in voting systems and democracy
issues. She [*3] does not specifically allege that she
intends to vote in future elections in Philadelphia or that
she has voted in previous elections in the city.
III. STANDARD FOR RULE 12(b)(6)
HN2[ ] A Rule 12(b)(6) motion to dismiss examines the
sufficiency of the complaint. Conley v. Gibson, 355 U.S.
41, 45, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957). In
determining the sufficiency of the complaint I must
accept all of the plaintiff's well-pleaded factual
allegations as true and draw all reasonable inferences
therefrom. Graves v. Lowery, 117 F.3d 723, 726 (3d Cir.
1997).
HN3[ ] The Federal Rules of Civil Procedure do

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2004 U.S. Dist. LEXIS 22458, *3
not require a claimant to set out in detail the facts
upon which he bases his claim. To the contrary, all
the Rules require is "a short and plain statement of
the claim" that will give the defendant fair notice of
what the plaintiff's claim is and the grounds upon
which it rests.
Id., quoting Conley, 355 U.S. at 47. I should not inquire
as to whether the plaintiff will ultimately prevail, but only
whether he is entitled to offer evidence to support his
claims. See Oatway v. Am. Int'l Group, Inc., 325 F.3d
184, 187 (3d Cir. 2003). "Thus, HN4[ ] [I will] [*4] not
grant a motion to dismiss 'unless it appears beyond a
doubt that the plaintiff can prove no set of facts in
support of his claim which would entitle him to relief.'"
Graves, 117 F.3d at 726, quoting, Conley, 355 U.S. at
45-46.
IV. DISCUSSION
Plaintiff lacks standing to challenge the use of voting
machines. 1 HN5[ ] In order to have standing to raise a
claim before this court, plaintiff must establish that she
meets both the three constitutional requirements for
standing and the prudential considerations that courts
have applied in determining standing. Storino v.
Borough of Point Pleasant Beach, 322 F.3d 293, 296
(3d Cir. 2003). To meet the constitutional requirements
for standing, first plaintiff must have suffered an injury in
fact -- an invasion of a legally protected interest that is
concrete and particularized, affecting the plaintiff in a
personal and individual way, and actual or imminent, not
conjectural or hypothetical. Second, there must be a
causal connection between the injury and the conduct
complained of. The injury must be traceable to the
challenged action of the defendant and not the result of
the independent action [*5] of a third party. Third, it
must be likely and not speculative that the injury will be
remedied by a favorable decision. Id. See also Lujan v.
Defenders of Wildlife, 504 U.S. 555, 561, 119 L. Ed. 2d
351, 112 S. Ct. 2130 (1992). HN6[ ] The prudential
principles applied in determining whether there is
standing are:
(1) the Plaintiff generally must assert his own legal
rights and interests, and cannot rest his claim to
relief on the legal rights or interests of third parties;
1 Defendants Cortes and Ashcroft move to dismiss on the
grounds that plaintiff lacks standing to challenge the use of
voting machines. Defendant Tartaglione did not raise the issue
of standing in her motion to dismiss; however, because
plaintiff lacks standing to bring the entire action, I will dismiss
the complaint against Tartaglione as well.
A-27
(30 of 45)
Page 4 of 5
(2) even when the Plaintiff has alleged redressable
injury sufficient to meet the requirements of Article
III, the federal courts will not adjudicate abstract
questions of wide public significance which amount
to generalized grievances shared and most
appropriately addressed in the representative
branches; and (3) the Plaintiff's complaint must fall
within the zone of interests to be protected or
regulated by the statute or constitutional guarantee
in question.
Miller v. Nissan Motor Acceptance Corp., 362 F.3d 209,
221 (3d Cir. 2004) (citations omitted). Plaintiff fails to
satisfy both the constitutional and prudential standing
requirements.
[*6] Plaintiff has not established she has suffered or
will suffer an injury in fact. HN7[ ] An injury in fact is
"an invasion of a legally protected interest which is (a)
concrete and particularized and (b) actual or imminent,
not conjectural or hypothetical . . . ." Storino v. Borough
of Point Pleasant Beach, 322 F.3d 293, 296 (3d Cir.
2003). In plaintiff's complaint, she alleges that she is a
registered voter of the City and County of Philadelphia,
but she fails to allege that she intends to vote by voting
machine in the upcoming election. She also fails to
allege that she has ever voted in any prior election
either by voting machine or by other means. Absent
such allegations, plaintiff cannot establish an injury in
fact. Cf. American Ass'n of People with Disabilities v.
Hood, 278 F. Supp. 2d 1345, 1351-52 (M.D. Fla. 2003)
(holding plaintiffs had standing where they were
registered voters, consistently voted in the past and
intended to vote in future elections). 2
[*7] Even assuming plaintiff has voted in the past and
will vote in this election, however, she alleges only a
"conjectural or hypothetical" injury. She argues that
voting machines are vulnerable to manipulation or
technical failure, but she does not assert that the voting
machines in question have actually suffered from these
issues in the past or that they will definitively
malfunction or be tampered with during the upcoming
election. In Storino, 322 F.3d at 297-98, the Court held
that the only injury demonstrated by plaintiffs was
prospective and conjectural where plaintiffs alleged a
local zoning ordinance would cause them future
2 Because the pleadings of a pro se party must be construed
liberally, I do not dismiss plaintiff's motion on this basis alone
as in her responses to Cortes' and Ashcroft's motions to
dismiss she asserts that she has voted in the past and she
intends to vote in the upcoming election.
 (31 of 45)
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Page 5 of 5
2004 U.S. Dist. LEXIS 22458, *7

damages but the Court could identify various scenarios
where the possibility of injury would be eliminated. The
Court noted, "one cannot describe how the Storinos will
be injured without beginning the explanation with the
word 'if.' The prospective damages, described by the
Storinos as certain, are, in reality, conjectural." Id.
elements to demonstrate she has standing to challenge
the use of voting machines in Philadelphia, I will grant
defendants' motions to dismiss.
ORDER

Similarly, plaintiff's allegations here are not sufficient to AND NOW, this 28 day of October 2004, after
demonstrate injury in fact because they are conjectural. considering the motions to dismiss of defendants
If plaintiff's vote and the votes of all other voters in the Margaret Tartaglione, Pedro [*10] A. Cortes and John
upcoming election are correctly [*8] recorded, plaintiff Ashcroft and plaintiff's responses thereto and for the
will suffer no injury. Plaintiff's reliance on the terms "if" reasons set forth in the accompanying memorandum, it
and "may" to couch her allegations of harm is a clear is ORDERED that:
indication that the harm she alleges is merely 1. defendant Margaret Tartaglione's motion to
speculative. Cf. Lujan v. Defenders of Wildlife, 504 U.S. dismiss is GRANTED;
555, 564, 119 L. Ed. 2d 351, 112 S. Ct. 2130 (1992) 2. defendant Pedro A. Cortes' motion to dismiss is
(holding that plaintiffs' "'some day' intentions" to return GRANTED;
to locations where they might be deprived of the 3. defendant John Ashcroft's motion to dismiss is
opportunity to observe endangered animals did "not GRANTED;
support a finding of the 'actual or imminent' injury that 4. plaintiff's complaint is DISMISSED with prejudice;
our cases require"). and
5. plaintiff's motion for a temporary restraining order
Plaintiff argues, however, that the voting machines need is DENIED as moot.
not malfunction or be tampered with for an injury in fact
to exist. She alleges she has been injured in past THOMAS N. O'NEILL, JR., J.
elections and will be injured in this election because
voting machines prevent her from observing whether or
End of Document
not her vote has actually been cast. She asserts the use
of voting machines deprives her of her rights to vote, to
have votes counted properly, to observe the voting
process effectively and to have those rights fully
enforced under 42 U.S.C. Section 1983. Characterized
in this manner plaintiff's alleged injury amounts to HN8[
] a "'generalized grievance' shared in substantially
equal measure [*9] by all or a large class of citizens"
and is not sufficient to confer standing. Warth v. Seldin,
422 U.S. 490, 499, 45 L. Ed. 2d 343, 95 S. Ct. 2197
(1975). See also Lujan, 504 U.S. at 560 (injury must be
"concrete and particularized")(emphasis added);
Whitmore v. Arkansas 495 U.S. 149, 160, 109 L. Ed. 2d
135, 110 S. Ct. 1717 (1990) ("the 'generalized interest
of all citizens in constitutional governance' . . . is an
inadequate basis on which to grant" standing); Allen v.
Wright, 468 U.S. 737, 754, 82 L. Ed. 2d 556, 104 S. Ct.
3315 (1984) ("an asserted right to have the Government
act in accordance with law is not sufficient, standing
alone, to confer jurisdiction on a federal court"); Public
Interest Research Group v. Magnesium Elektron, 123
F.3d 111, 121 (3d Cir. 1997) ("The legal 'right' to have
corporations obey environmental laws cannot, by itself,
support standing.").

Because plaintiff has not established the required

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Case: 22-16413, 12/28/2022, ID: 12619575, DktEntry: 17-2, Page 31 of 44

Caution
As of: December 28, 2022 8:30 PM Z

Schulz v. Kellner
United States District Court for the Northern District of New York
July 7, 2011, Decided; July 7, 2011, Filed
1:07-CV-0943 (LEK/DRH)

Reporter
2011 U.S. Dist. LEXIS 73088 *; 2011 WL 2669456
se, Queensbury, NY.
ROBERT L. SCHULZ and JOHN LIGGETT, Plaintiffs, -
against- DOUGLAS KELLNER, Individually and as Doug Bersaw, New Hampshire, Plaintiff, Pro se,
Commissioner of the New York State Board of Richmond, NH.
Elections; EVELYN AQUILA, Individually and as
Amanda Moore, South Carolina, Plaintiff, Pro se,
Commissioner of the New York State Board of
Charleston, SC.
Elections; HELENA MOSES DONAHUE, Individually;
JAMES A. WALSH, as Commissioner of the New York Arthur Groveman, Florida, Plaintiff, Pro se, Sarasota,
State Board of Elections; and GREGORY P. FL.
PETERSON, as Commissioner of the New York State James Condit, Jr., Ohio, Plaintiff, Pro se, Cincinnati,
Board of Elections, 1 Defendants. OH.

Subsequent History: Reconsideration denied by
Schulz v. Kellner, 2011 U.S. Dist. LEXIS 118444
(N.D.N.Y, Oct. 13, 2011)
Prior History: Schulz v. Kelleher, 2009 U.S. Dist.
LEXIS 108526 (N.D.N.Y, Nov. 20, 2009)
Core Terms
votes, amended complaint, counted, election, machines,
moot, subject matter jurisdiction, motion to dismiss,
protected interest, allegations, manually, voters, voting
procedure, federal court, quotations, concrete, parties,
lack of subject matter jurisdiction, future election, law of
the case, standing to sue, injury in fact, lack standing,
particularized, ballots
Counsel: [*1] Robert L. Schulz, New York, Plaintiff, Pro
1 On June 4, 2008, the Court dismissed Plaintiffs' claims
against all Defendants except the then-State Commissioners
of Elections in New York in their official and individual
capacities. See Dkt. No. 303. On November 20, 2009, the
Court granted Plaintiffs' Motion to substitute Defendants
James A. Walsh and Gregory P. Peterson as party-defendants
for Defendants Douglas Neil Kelleher and Helena Moses
Donahue in their official capacities pursuant to FED. R. CIV. P.
25(d). Dkt. No. 344 at 2. The Court also ordered Plaintiffs'
action against Defendant Kelleher terminated entirely on
account of his death. Id.
Fred Smart, Illinois, Plaintiff, Pro se, Evanston, IL.
Pam Wagner, Iowa, Plaintiff, Pro se, Homestead, IA.
Troy D. Reha, Iowa, Plaintiff, Pro se, Des Moines, IA.
Gregory Gorey, Texas, Plaintiff, Pro se, Austin, TX.
Susan Marie Weber, California, Plaintiff, Pro se, Palm
Desert, CA.
Mary D. Farrell, Oregon, Plaintiff, Pro se, Portland, OR.
Brian L. Roberts, Alabama, Plaintiff, Pro se, Leesburg,
AL.
Jean C. Allen, Alabama, Plaintiff, Pro se, Tuscaloosa,
AL.
Charles D. Roberts, Alabama, Plaintiff, Pro se,
Leesburg, AL.
Brent Cole, Sr., Alaska, Plaintiff, Pro se, Craig, AK.
Duane F. Andress, Alaska, Plaintiff, Pro se, Anchorage,
AK.
Henry Ayre, Alaska, Plaintiff, Pro se, Soldotna, AK.
David Johnson, Arizona, Plaintiff, Pro se, Peoria, AZ.
Stuart Kevin Cole, Arizona, Plaintiff, Pro se, Flagstaff,
AZ.
Mark J. Yannone, Arizona, Plaintiff, Pro se, Phoenix,
AZ.
Tom Mayfield, Arkansas, Plaintiff, Pro se, Fayetteville,

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Page 2 of 14
2011 U.S. Dist. LEXIS 73088, *1

[*2] AR. Anthony Leonardo, Illinois, Plaintiff, Pro se, Berwyn, IL.
Lynne Baker, Arkansas, Plaintiff, Pro se, Heber Springs, Charles Nadolski, Illinois, Plaintiff, Pro se, Chicago, IL.
AR.
Gerald B. Hebert, Indiana, Plaintiff, Pro se, Valparaiso,
Glenda Middlebrook, Arkansas, Plaintiff, Pro se, IN.
Fayetteville, AR.
William Hathaway, Indiana, Plaintiff, Pro se, Monticello,
Matthew Pitagora, California, Plaintiff, Pro se, San Jose, IN.
CA.
Charlie Kochenash, Indiana, Plaintiff, Pro se,
Mychal R. Schillaci, California, Plaintiff, Pro se, Valparaiso, IN.
Burbank, CA.
Dave Ward, Iowa, Plaintiff, Pro se, Stratford, IA.
Lorraine Lunnon, Colorado, Plaintiff, Pro se, Lakewood,
James Gragg, Kansas, Plaintiff, Pro se, Wichata, KS.
CO.
Robin A. Bailey, Kansas, Plaintiff, Pro se, Stockton, KS.
Lotus, Colorado, Plaintiff, Pro se, Colorado Springs, CO.
Todd Metallo, Kentucky, Plaintiff, Pro se, La Grange,
Betty Wies, Colorado, Plaintiff, Pro se, Colorado
KY.
Springs, CO.
Robert Adams, Kentucky, Plaintiff, Pro se, Richmond,
Walter B. Reddy, III, Connecticut, Plaintiff, Pro se,
KY.
Weston, CT.
Patrick Conway, Kentucky, Plaintiff, Pro se,
Charles Price, Connecticut, Plaintiff, Pro se, Watertown,
Elizabethtown, KY.
CT.
Ashley Wade Gary, Louisiana, Plaintiff, Pro se,
Heather Wilson, Connecticut, Plaintiff, Pro se, Wilton,
Delcambre, LA.
CT.
Corey Michael Graham, Louisiana, Plaintiff, Pro se,
Steven Bachman, Delaware, Plaintiff, Pro se,
Francisville, LA.
Wilmington, DE.
Clarence Edward Ward, III, Louisiana, Plaintiff, Pro se,
Jean Mateson, Delaware, Plaintiff, Pro se, Wilmington,
New Orleans, LA.
DE.
Keith Castonguay, Maine, Plaintiff, Pro se, Lewiston,
Marcus Riego, Delaware, Plaintiff, Pro se, Wilmington,
ME.
DE.
Marie Castonguay, Maine, Plaintiff, Pro se, Lewiston,
Nova A. Montgomery, Florida, Plaintiff, Pro se, Tarpon
ME.
Springs, FL.
Beverly Durand, Maine, Plaintiff, [*4] Pro se, Bowdoin,
Janine L. Dean Winter, Florida, Plaintiff, Pro se,
ME.
Sarasota, FL.
Harold Poole, Maryland, Plaintiff, Pro se, Elkton, MD.
John J. Felso, Georgia, Plaintiff, Pro se, Alpharetta, GA.
Walter Augustine, Maryland, Plaintiff, Pro se, Rockville,
Clay Dalton, Georgia, Plaintiff, Pro se, Waleska, GA.
MD.
Roger Patrick, Georgia, Plaintiff, Pro se, Marietta, GA.
Cynthia L. Jones, Maryland, Plaintiff, Pro se, Valley Lee,
Ka'imi Pelekai, Hawaii, Plaintiff, Pro se, Honolulu, HI. MD.
Charles W. Abel, Hawaii, Plaintiff, Pro se, Keaau, HI. Donald Williamson, Massachusetts, Plaintiff, Pro se,
Marlborough, MA.
Michael [*3] Marsoun, Hawaii, Plaintiff, Pro se,
Kealakekua, HI. Paul Dionne Massachusetts, Plaintiff, Everett, MA.
Gary Conway, Idaho, Plaintiff, Pro se, Dalton Gardens, Daniel Skapinsky, Massachusetts, Plaintiff, Pro se,
ID. Holbrook, MA.
Susan K. Venable, Idaho, Plaintiff, Pro se, Parma, ID. Tony Demott, Michigan, Plaintiff, Pro se, Ypsilanti, MI.
Paul T. Venable, III, Idaho, Plaintiff, Pro se, Parma, ID. Pat Foster, Michigan, Plaintiff, Pro se, Fennville, MI.

A-30

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2011 U.S. Dist. LEXIS 73088, *4
John Marshall, Minnesota, Plaintiff, Pro se, Monticello,
MN.
Shawn Wayne Junior Davis, Minnesota, Plaintiff, Pro se,
Duluth, MN.
John Hansvick, Minnesota, Plaintiff, Pro se, Henderson,
MN.
Mark G. Bushman, Mississippi, Plaintiff, Pro se,
Jackson, MS.
Christopher J.M. Cummins, Mississippi, Plaintiff, Pro se,
Blue Mountain, MS.
Jonathan D. Meadows, Mississippi, Plaintiff, Pro se,
Ripley, MS.
Kevin Halpin, Missouri, Plaintiff, Pro se, Saint Louis,
MO.
Joseph Goodman, Missouri, Plaintiff, Pro se, Kansas
City, MO.
Brian Thompson, II, Missouri, Plaintiff, Pro se, Saint
Louis, MO.
Stanley Jones, Montana, Plaintiff, Pro se, Bozeman,
MT.
Elena Gagliano, Montana, Plaintiff, Pro se, Philipsburg,
MT.
Joseph Kasun, Nebraska, [*5] Plaintiff, Pro se, Omaha,
NE.
Eric Miller, Nebraska, Plaintiff, Pro se, Omaha, NE.
Jay Peterson, Nebraska, Plaintiff, Pro se, Fremont, NE.
Christopher H. Hansen, Nevada, Plaintiff, Pro se,
Henderson, NV.
Juanita Cox, Nevada, Plaintiff, Pro se, McCarran, NV.
Guy Page Felton, III, Nevada, Plaintiff, Pro se, Reno,
NV.
Dianne Gilbert, New Hampshire, Plaintiff, Pro se,
Epping, NH.
Robert Surprenant, New Hampshire, Plaintiff, Pro se,
Surrey, NH.
Edward Helmstetter, New Jersey, Plaintiff, Pro se,
Cranford, NJ.
Gary Berner, New Jersey, Plaintiff, Pro se, Lyndhurst,
NJ.
Pankaj Anand, New Jersey, Plaintiff, Pro se, Parlin, NJ.
Charles Ranalli, New Mexico, Plaintiff, Pro se,
Albuquerque, NM.
A-31
(34 of 45)
Page 3 of 14
James Genzling, New Mexico, Plaintiff, Pro se,
Lakewood, NM.
William Ritch, New Mexico, Plaintiff, Pro se, Cuchillo,
NM.
John Liggett, New York, Plaintiff, Pro se, New York, NY.
Steve Harris, North Carolina, Plaintiff, Pro se, Charlotte,
NC.
Bette German Smith, North Carolina, Plaintiff, Pro se,
Chapel Hill, NC.
Carl Jay Zietlow, North Carolina, Plaintiff, Pro se,
Burnsville, NC.
Charles Cartier, North Dakota, Plaintiff, Pro se,
Williston, ND.
Cathy Cartier, North Dakota, Plaintiff, Pro se, Williston,
ND.
Michael Disalvo, Ohio, [*6] Plaintiff, Pro se, West
Chester, OH.
Gregory Tekautz, Ohio, Plaintiff, Pro se, Rittman, OH.
Steven M. Beeson, Oklahoma, Plaintiff, Pro se, Broken
Arrow, OK.
Craig F. Holguin, Oklahoma, Plaintiff, Pro se, Oklahoma
City, OK.
Jennifer L. Waters, Oklahoma, Plaintiff, Pro se,
Bethany, OK.
Lee Hamel, Oregon, Plaintiff, Pro se, Hillsboro, OR.
Rubie O'Dell, Oregon, Plaintiff, Pro se Cave Junction,
OR.
Edgar Stephan, Pennsylvania, Plaintiff, Pro se, Ford
City, PA.
Samuel Anthony Ettaro, Pennsylvania, Plaintiff, Pro se,
Curwensville, PA.
Joseph Thompson, Pennsylvania, Plaintiff, Pro se,
Bethlehem, PA.
Christopher J. Maynard, Rhode Island, Plaintiff, Pro se,
Lincoln, RI.
Thomas Beretta, Rhode Island, Plaintiff, Pro se,
Warwick, RI.
Susan R. Berge, Rhode Island, Plaintiff, Pro se,
Harrisville, RI.
Joshua David Brannon, South Carolina, Plaintiff, Pro se,
Boiling Springs, SC.
Ilona Urban Blakeley, South Carolina, Plaintiff, Pro se,

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2011 U.S. Dist. LEXIS 73088, *6
Pauline, SC.
William Stegmeier, South Dakota, Plaintiff, Pro se, Tea,
SD.
Elvis Hanes, South Dakota, Plaintiff, Pro se, Tea, SD.
Eugene Paulson, South Dakota, Plaintiff, Pro se,
Rosholt, SD.
William Hardin, Tennessee, Plaintiff, Pro se,
Hendersonville, TN.
John Farrar, Tennessee, Plaintiff, [*7] Pro se,
Bethpage, TN.
William Keller, Tennessee, Plaintiff, Pro se, Deeherd,
TN.
Gary W. Giuffre, Texas, Plaintiff, Pro se, Bellville, TX.
Eddie Craig, Texas, Plaintiff, Pro se, Nacogdoches, TX.
Ronald J. Keller, Texas, Plaintiff, Pro se, Rosenbeg, TX.
Robert K. Dalton, Utah, Plaintiff, Pro se, Cedar City, UT.
Ted Arsenault, Utah, Plaintiff, Pro se, Cedar City, UT.
Shaun A. Knapp, Utah, Plaintiff, Pro se, Provo, UT.
David Cole, Vermont, Plaintiff, Pro se, Arlington, VT.
Gary L. Gale, Vermont, Plaintiff, Pro se, Brattleboro, VT.
Owen Mulligan, Vermont, Plaintiff, Pro se, Burlington,
VT.
William Clark Delashmutt, Virginia, Plaintiff, Pro se,
Prospect, VA.
Carolyn Williams, Virginia, Plaintiff, Pro se, Richmond,
VA.
Judith Sharpe, Virginia, Plaintiff, Pro se, Suffolk, VA.
Ron Moss, Washington, Plaintiff, Pro se, Spanaway,
WA.
Larry K. Burns, Washington, Plaintiff, Pro se,
Washougal, WA.
David Knight, Washington, Plaintiff, Pro se, Camas, WA.
William Sisemore, West Virginia, Plaintiff, Pro se,
Ranger, WV.
Dorris Ponstingl, West Virginia, Plaintiff, Pro se,
Huntington, WV.
Zabrina Sisemore, West Virginia, Plaintiff, Pro se,
Ranger, WV.
Francine Arnold, Wisconsin, Plaintiff, Pro se, Evansville,
WI.
Anita Zibton, [*8] Wisconsin, Plaintiff, Pro se, La Farge,
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(35 of 45)
Page 4 of 14
WI.
Lance Crain, Wyoming, Plaintiff, Pro se, Casper, WY.
Maurice W. Jones, Wyoming, Plaintiff, Pro se, Grover,
WY.
Joe R. Slack, Jr., Wyoming, Plaintiff, Pro se, Lander,
WY.
Kenneth Cooper, Michigan, Plaintiff, Pro se, Holland,
MI.
For State of New York, Defendant: Bruce J. Boivin,
LEAD ATTORNEY, Office of Attorney General - Albany,
Albany, NY.
For State of South Carolina, John Hudgens, III,
individually and in his official capacity, Cynthia Bensch
individually and in her official capacity, Tracey Green
individually and in his or her official capacity, Pamella
Pinson individually and in her official capacity, Edward
Pritchard, Jr. individually and in his official capacity,
South Carolina State Election Commission, Defendants:
James E. Smith, Jr., LEAD ATTORNEY, Office of
James E. Smith, Jr., P.A., Columbia, SC.
For State of Ohio, Defendant: Richard N. Coglianese,
LEAD ATTORNEY, Office of Attorney General - Ohio,
Columbus, OH.
For State of California, Debra Bowen California
Secretary of State and Chief Election Official,
individually and in her official capacity, Defendants:
Margaret Carew Toledo, LEAD ATTORNEY, Office of
Attorney General - California, [*9] Sacramento, CA.
For State of Oregon, Defendant: Michael A. Casper,
LEAD ATTORNEY, Office of Attorney General - Oregon,
Salem, OR.
For Neil Kelleher individually, Douglas Kellner
individually and as Commissioner of the New York State
Board of Elections, Evelyn Aquila individually and as
Commissioner of the New York State Board of
Elections, New York State Board Of Elections, Helena
Moses Donahue individually, Defendants: Kimberly A.
Galvin, Paul M. Collins, LEAD ATTORNEYS, New York
State Board of Elections, Albany, NY.
For State of Alabama, Beth Chapman Alabama
Secretary of State and Chief Election Official, in her
individual and official capacity, Defendants: William G.
Parker, Jr., LEAD ATTORNEY, Office of Attorney
General - Alabama, Montgomery, AL.
For State of Alaska, Sean Parnell Alaska Lt. Governor
and Chief Election Official, individually and in his or her
official capacity, Whitney Brewster, Defendants: Michael

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2011 U.S. Dist. LEXIS 73088, *9
A. Barnhill, LEAD ATTORNEY, Office of Attorney
General - Alaska, Juneau, AK.
For State of Arizona, Jan Brewer Arizona Secretary of
State and Chief Election Official, individually and in his
or her official capacity, Defendants: Bruce L. Skolnik,
Office of Attorney General [*10] - Arizona, Tucson, AZ.
For State of Arkansas, Charlie Daniels Arkansas
Secretary of State and Chief Election Official,
individually and in his or her official capacity,
Defendants: Dennis R. Hansen, LEAD ATTORNEY,
Office of Attorney General - Arkansas, Little Rock, AR.
For State of Colorado, Mike Coffman Colorado
Secretary of State and Chief Election Official,
individually and in his or her official capacity,
Defendants: Melody Mirbaba, LEAD ATTORNEY, Office
of Attorney General - Colorado, Denver, CO.
For State of Connecticut, Susan Bysiewicz Connecticut
Secretary of State and Chief Election Official,
individually and in her official capacity, Defendants:
Robert W. Clark, LEAD ATTORNEY, Office of Attorney
General - Connecticut, Hartford, CT.
For State of Delaware, Elaine Manlove Delaware
Commissioner of Elections, individually and in her
official capacity, Defendants: A. Ann Woolfolk, LEAD
ATTORNEY, Office of Attorney General - Delaware,
Wilmington, DE.
For Karen Handel Georgia Secretary of State and Chief
Election Official, individually and in her official capacity,
Defendant: Holly Loy Smith, Office of Attorney General -
Georgia, Atlanta, GA.
For State of Hawaii, Rex M. Quidilla Hawaii [*11] Chief
Election Officer, individually and in his official capacity,
Defendants: Russell A. Suzuki, LEAD ATTORNEY,
Office of Attorney General - Hawaii, Honolulu, HI.
For State of Idaho, Ben Ysursa Idaho Secretary of State
and Chief Election Official, individually and in his official
capacity, Defendants: Michael S. Gilmore, LEAD
ATTORNEY, Office of Attorney General - Idaho, Boise,
ID.
For Todd Rokita Indiana Secretary of State and Chief
Election Official, individually and in his official capacity,
Defendant: Kate S. Van Bokkelen, LEAD ATTORNEY,
Office of Attorney General - Indiana, Indianapolis, IN.
For State of Kansas, Ron Thornburgh Kansas Secretary
of State and Chief Election Official, individually and in
his official capacity, Defendants: William S. Hesse,
LEAD ATTORNEY, Office of Attorney General - Kansas,
Topeka, KS.
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Page 5 of 14
For Trey Grayson Kentucky Secretary of State and
Chief Election Official, individually and in is official
capacity, Defendant: David Brent Irvin, Office of
Attorney General - Kentucky, Frankfort, KY.
For State of Louisiana, Jay Dardenne Louisiana
Secretary of State and Chief Election Official,
individually and in his or her official capacity,
Defendants: William P. Bryan, [*12] III, LEAD
ATTORNEY, Office of Attorney General - Louisiana,
Baton Rouge, LA.
For State of Maine, Matthew Dunlap Maine Secretary of
State and Chief Election Official, individually and in his
official capacity, Defendants: Phyllis Gardiner, LEAD
ATTORNEY, Office of Attorney General - Maine,
Augusta, ME.
For State of Maryland, Robert Walker individually and in
his official capacity, Bobbie Mack individually and in his
or her official capacity, Andrew Jezic individually and in
his official capacity, David McManus individually and in
his official capacity, Charles Thomann individually and
in his official capacity, Maryland State Board of
Elections, Defendants: Charles J. Butler, LEAD
ATTORNEY, Office of Attorney General - Maryland,
Baltimore, MD.
For State of Massachusetts, William Francis Galvin
Massachusetts Secretary of the Commonwealth and
Chief Election Official, individually and in his official
capacity, Defendants: Peter W. Sacks, LEAD
ATTORNEY, Office of Attorney General -
Massachusetts, Boston, MA.
For State of Michigan, Terri Lynn Land Michigan
Secretary of State and Chief Election Official,
individually and in his or her official capacity,
Defendants: Ann M. Sherman, LEAD ATTORNEY,
[*13] Office of Attorney General - Michigan, Lansing,
MI.
For State of Minnesota, Mark Ritchie Minnesota
Secretary of State and Chief Election Official,
individually and in his official capacity, Defendants:
Kenneth E. Raschke, Jr., LEAD ATTORNEY, Office of
Attorney General - Minnesota, St. Paul, MN.
For State of Mississippi, Eric Clark Mississippi Secretary
of State and Chief Election Official, individually and in
his official capacity, Defendants: George W. Neville,
LEAD ATTORNEY, Office of Attorney General -
Mississippi, Jackson, MS.
For State of Missouri, Robin Carnahan Missouri
Secretary of State and Chief Election Official,
individually and in his or her official capacity,

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2011 U.S. Dist. LEXIS 73088, *13
Defendants: James B. Farnsworth, LEAD ATTORNEY,
Office of Attorney General - Missouri, Jefferson City,
MO.
For State of Montana, Brad Johnson Montana Secretary
of State and Chief Election Official, individually and in
his official capacity, Defendant: Anthony C. Johnstone,
LEAD ATTORNEY, Office of Attorney General -
Montana, Helena, MT.
For State of Nebraska, John Gale Nebraska Secretary
of State and Chief Election Official, individually and in
his official capacity, Defendant: Dale A. Comer, LEAD
ATTORNEY, Office of [*14] Attorney General -
Nebraska, Lincoln, NE.
For Ross Miller Nevada Secretary of State and Chief
Election Official, individually and his official capacity,
Defendant: Christine S. Munro, LEAD ATTORNEY,
Office of Attorney General - Nevada, Carson City, NV.
For William Gardner New Hampshire Secretary of State
and Chief Election Official, individually and in his official
capacity, Defendant: James W. Kennedy, III, LEAD
ATTORNEY, Office of Attorney General - New
Hampshire, Concord, NH.
For State of New Jersey, Anne Milgram New Jersey
Attorney General and Chief Election Official, individually
and in her official capacity, Defendants: Jason S.
Postelnik, LEAD ATTORNEY, Office of Attorney
General - New Jersey, Trenton, NJ.
For Mary Herrera New Mexico Secretary of State and
Chief Election Official, individually and in her official
capacity, Defendant: Francine A. Baca-Chavez, LEAD
ATTORNEY, Office of Attorney General - New Mexico,
Santa Fe, NM.
For State of North Carolina, Larry Leake individually and
in his official capacity, Lorraine Shinn individually and in
her official capacity, Charles Winfree individually and in
his official capacity, Genevieve Sims individually and in
her official capacity, [*15] Robert Cordle individually
and in his official capacity, North Carolina State Board
of Elections, Defendants: Susan K. Nichols, LEAD
ATTORNEY, Office of Attorney General - North
Carolina, Raleigh, NC.
For State of North Dakota, Alvin Jaeger North Dakota
Secretary of State and Chief Election Official,
individually and in his or her official capacity, Defendant:
Douglas A. Bahr, LEAD ATTORNEY, Office of Attorney
General - North Dakota, Bismarck, ND.
For Jennifer Brunner Ohio Secretary of State and Chief
Election Official, individually and in her official capacity,
A-34
(37 of 45)
Page 6 of 14
Defendant: Richard N. Coglianese, LEAD ATTORNEY,
Office of Attorney General - Ohio, Columbus, OH.
For Thomas Prince individually and in his official
capacity, Susan Turpen individually and in her official
capacity, Ramon Watkins individually and in his official
capacity, Oklahoma State Election Board, Defendants:
Tina L. Izadi, LEAD ATTORNEY, Office of Attorney
General - Oklahoma, Oklahoma City, OK.
For Bill Bradbury Oregon Secretary of State and Chief
Election Official, individually and in his official capacity,
Defendant: Michael A. Casper, LEAD ATTORNEY,
Office of Attorney General - Oregon, Salem, OR.
For State of Pennsylvania, [*16] Pedro Cortes
Pennsylvania Secretary of the Commonwealth and
Chief Election Official, individually and in his official
capacity, Defendant: Michael L. Harvey, LEAD
ATTORNEY, Office of Attorney General - Pennsylvania,
Harrisburg, PA.
For State of Rhode Island, A. Ralph Mollis Rhode Island
Secretary of State and Chief Election Official,
individually and in his or her official capacity,
Defendants: Richard B. Woolley, Thomas A. Palombo,
LEAD ATTORNEYS, Office of Attorney General - Rhode
Island, Providence, RI.
For State of South Dakota, Chris Nelson South Dakota
Secretary of State and Chief Election Official,
individually and in his or her official capacity,
Defendants: Sherri Sundem Wald, LEAD ATTORNEY,
Office of Attorney General - South Dakota, Pierre, SD.
For Riley Darnell Tennessee Secretary of State and
Chief Election Official, individually and in his or her
official capacity, Defendant: Janet M. Kleinfelter, LEAD
ATTORNEY, Office of Attorney General - Tennessee,
Nashville, TN.
For State of Utah, Gary Herbert Utah Lt. Governor and
Chief Election Official, individually and in his official
capacity, Defendants: Thom D. Roberts, LEAD
ATTORNEY, Office of Attorney General - Utah, Salt
Lake [*17] City, UT.
For State of Vermont, Deborah Markowitz Vermont
Secretary of State and Chief Election Official,
individually and in her official capacity, Defendants:
Mark J. DiStefano, LEAD ATTORNEY, Office of
Attorney General - Vermont, Montpelier, VT.
For Jean Cunningham indiviually and in his or her
official capacity, Harold Pyon individually and in his
official capacity, Nancy Rodriques individually and in her
official capacity, Virginia State Board of Elections,

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2011 U.S. Dist. LEXIS 73088, *17
Defendant: James V. Ingold, LEAD ATTORNEY, Office
of Attorney General - Virginia, Richmond, VA.
For State of Washington, Sam Reed Washington
Secretary of State and Chief Election Official,
individually and in his or her official capacity,
Defendants: Jeffrey T. Even, LEAD ATTORNEY, Office
of Attorney General - Washington, Olympia, WA.
For State of West Virginia, Betty Ireland West Virginia
Secretary of State and Chief Election Official,
individually and in her official capacity, Defendants:
Christie S. Utt, LEAD ATTORNEY, Office of Attorney
General - West Virginia, Charleston, WV.
For State of Wisconsin, John Schober individually and in
his official capacity, Shane Falk individually and in his or
her official capacity, David Anstaett [*18] individually
and in his official capacity, Kirby Brant individually and
in his or her official capacity, Donald Goldberg
individually and in his official capacity, Carl Holborn
individually and in his official capacity, Patrick Hodan
individually and in his official capacity, Robert Kasieta
individually and in his official capacity, Jon Savage
individually and in his or her official capacity, Wisconsin
State Elections Board, Defendants: Thomas J. Balistreri,
LEAD ATTORNEY, Office of Attorney General -
Wisconsin, Madison, WI.
For State of Wyoming, Max Maxfield Wyoming
Secretary of State and Chief Election Official,
individually and in his or her official capacity, Defendant:
Michael M. Robinson, LEAD ATTORNEY, Office of
Attorney General - Wyoming, Cheyenne, WY.
For Commonwealth of Massachusetts, William Francis
Galvin, Defendant: Peter W. Sacks, Office of Attorney
General - Massachusetts, Boston, MA.
For Gregory P. Peterson as Commissioner of the New
York State Board of Elections, James A. Walsh as
Commissioner of the New York State Board of
Elections, Helena Moses Donahue, Defendant: Paul M.
Collins, LEAD ATTORNEY, New York State Board of
Elections, Albany, NY.
Judges: Lawrence E. Kahn, U.S. District [*19] Judge.
Opinion by: Lawrence E. Kahn
Opinion
MEMORANDUM-DECISION and ORDER
A-35
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Page 7 of 14
I. INTRODUCTION
Presently before the Court is a Motion to dismiss
Plaintiffs' amended complaint (Dkt. No. 21), filed by
Defendants Douglas Kellner, Evelyn Aquila, Helena
Moses Donahue, James A. Walsh, and Gregory P.
Peterson ("Defendants"), all of whom are former or
current Commissioners of the New York State Board of
Elections ("the Board"). Dkt. No. 367 ("Motion").
Plaintiffs filed a Response in opposition to the motion
("Opposition") (Dkt. No. 374) on January 5, 2011, and
Defendants filed their Reply on January 18, 2011
("Defs.' Reply") (Dkt. No. 377). For the reasons that
follow, the Court grants Defendants' Motion.
II. BACKGROUND
This action originated as a multi-state suit that included
claims filed by over one hundred and fifty pro se
Plaintiffs from all fifty states against their respective
states, those states' boards of elections, and individuals
involved in their states' election process. Dkt. Nos. 22-
24, 36, 39, 70, 94, 95, 99, 108, 111, 128, 135, 136 140,
144, 147, 149, 152, 154, 162-64, 166-72, 175, 179, 180,
183-86, 188-90, 192, 194-200, 203-05. Plaintiffs filed
their Amended Complaint on November 1, 2007,
asserting that [*20] the vote counting process for the
2008 elections violated their voting rights, contract
rights, and constitutional rights. See Amended
Complaint ("Am. Compl.") (Dkt. No. 21) ¶¶ 228-62.
Specifically, Plaintiffs allege that (1) Defendants' voting
procedures constitute an impermissible burden upon
their rights under the First and Fourteenth Amendments;
(2) Defendants' failure to manually count all ballots in
public view at each polling station "impair[s] the
obligation of contracts" in violation of the Constitution,
based on the assertion that "[f]ormally registering with
the State to vote . . . is a contract"; and (3) Defendants
are required by the Constitution to follow a set of voting
procedures submitted by Plaintiffs and have failed to do
so. Id. ¶¶ 247, 252, 262.
The initial Defendants filed fifty-two Motions to dismiss
the amended complaint, and Plaintiffs filed a Cross-
Motion for summary judgment and in opposition to
Defendants' motions to dismiss. Dkt. No. 223 ("Plaintiffs'
Cross-Motion"). Instead of filing a duplicative motion, the
present Defendants joined in the other co-Defendants'
Motions, and specifically joined then-Defendant State of
Wisconsin's Motion to dismiss ("Wisconsin
[*21] Motion") (Dkt. No. 162) on the grounds that the

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2011 U.S. Dist. LEXIS 73088, *21
out-of-state Plaintiffs lacked standing. Todd Valentine
Declaration (Dkt. No. 199-2) ¶ 21. The affidavit filed by
Defendants' attorney further stated that "none of the
plaintiffs except Robert Schulz, Arthur Berg and John
Liggett has any standing to sue the New York
defendants . . . ." Id. ¶ 20.
On June 4, 2008, the Court issued an Order granting
fifty-one of Defendants' fifty-two Motions to dismiss
while staying Plaintiffs' Cross-Motion. Dkt. No. 303
("June 4, 2008 Order"). The Court agreed with those
Motions to dismiss that argued that Plaintiffs lacked
standing to sue Defendants that were located outside of
Plaintiffs' states. Id. at 3-4. The Court concluded that
"each of the Plaintiffs' standing is limited so as to only
have standing against the Individual Defendants in the
Plaintiff's own state." Id. at 4. The main focus of the
June 4, 2008 Order was on the issue of personal
jurisdiction, which the Court concluded it only had over
the New York Defendants. 2 Id. at 4-9. As a result, only
New York Plaintiffs 3 and Defendants who were then
State Commissioners of Elections in New York
("Election Commissioners") remain as parties to this
[*22] action, with the addition of two more Election
Commissioners pursuant to FED. R. CIV. P. 25(d). Id.;
Dkt. No. 344 at 2. The Court denied Plaintiffs' Cross-
Motion on September 22, 2008, and discovery in this
matter has since proceeded. 4 Dkt. No. 328.
On October 13, 2009, Defendants filed an Amended
Answer asserting as affirmative [*23] defenses (1) that
Plaintiffs fail to state a claim upon which relief can be
granted; (2) that their actions and conduct "at all
relevant times have been fully in compliance with all
applicable federal and state constitutional provisions,
2 The Court also concluded that the States and their respective
Election Boards could not be sued because of Eleventh
Amendment immunity. June 4, 2008 Order at 9-10.
3A third New York Plaintiff, Arthur Berg, was stipulated out of
the litigation on June 5, 2009. Dkt. No. 337.
4 According to Plaintiffs, they have provided Defendants with
106 documents in response to Defendants' demands, and
Plaintiffs have received documents totaling 44, 414 pages
from Defendants. Plaintiffs' Memorandum of law opposing
dismissal of amended complaint ("PML") at 4; Pl.'s Letter
Motion requesting extension of discovery deadline (Dkt. No.
365) at 2. Discovery was scheduled to end on June 1, 2011,
although Plaintiffs have filed a Motion requesting an extension,
which U.S. Magistrate Judge David R. Homer has ordered will
be addressed pending a decision on the Motion at hand. See
Dkt. No. 382.
A-36
(39 of 45)
Page 8 of 14
statutes and regulations"; and (3) that they are entitled
to qualified immunity from suit. Dkt. No. 343 ¶¶ 15-17.
Over a year later, on December 6, 2010, Defendants
filed this Motion to dismiss for lack of subject matter
jurisdiction pursuant to FED. R. CIV. P. 12(b)(1). Dkt.
No. 367.
III. STANDARD OF REVIEW
In considering a motion to dismiss pursuant to FED. R.
CIV. P. 12(b)(1), a court must "accept all factual
allegations in the complaint as true and draw inferences
from those allegations in the light most favorable to the
plaintiff." Jaghory v. N.Y. State Dep't of Educ., 131 F.3d
326, 329 (2d Cir. 1997). "Dismissal is inappropriate
unless it appears beyond doubt that the plaintiff can
prove no set of facts which would entitle him or her to
relief." Raila v. United States, 355 F.3d 118, 119 (2d Cir.
2004). However, it is the plaintiff who bears the burden
of establishing subject matter jurisdiction by a
preponderance of the evidence. Aurecchione v.
Schoolman Transp. Sys., Inc., 426 F.3d 635, 638 (2d
Cir. 2005). [*24] Furthermore, subject matter
jurisdiction may not be established by drawing
inferences from the pleadings favorable to the plaintiff.
Shipping Fin. Servs. Corp. v. Drakos, 140 F.3d 129, 131
(2d Cir. 1998); see also London v. Polishook, 189 F.3d
196, 199 (2d Cir. 1999) (the party invoking subject
matter jurisdiction must "proffer the necessary factual
predicate - not just an allegation in a complaint - to
support jurisdiction."). Thus, the district court may refer
to evidence outside the pleadings, including affidavits or
other evidence submitted by the parties, in determining
whether subject matter jurisdiction exists. Luckett v.
Bure, 290 F.3d 493, 496-97 (2d Cir. 2002); Arndt v. UBS
AG, 342 F. Supp. 2d 132, 137 (E.D.N.Y. 2004). Finally,
"[i]f the court determines at any time that it lacks subject
matter jurisdiction, the court must dismiss the action."
FED. R. CIV. P. 12(h)(3).
IV. DISCUSSION
Defendants assert that (1) Plaintiffs lack standing to
bring this lawsuit; (2) Plaintiffs' constitutional claims are
moot; and (3) in the absence of any viable federal
claims, the Court lacks jurisdiction over Plaintiffs' breach
of contract claim. 5 Defs.' Memorandum of law in
5 TheCourt noted in its June 4, 2008 Order that it was "unclear
whether Plaintiffs are raising a constitutional claim under the

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2011 U.S. Dist. LEXIS 73088, *24
support of dismissal [*25] of Pls.' amended complaint
("DML") at 4.
Article III of the Constitution grants federal courts limited
jurisdiction over only "[c]ases" and "[c]ontroversies."
U.S. CONST. art. III, § 2, cl. 1; Lujan v. Defenders of
Wildlife, 504 U.S. 555, 559, 112 S. Ct. 2130, 119 L. Ed.
2d 351 (1992). One element of this case-or-controversy
requirement requires a plaintiff to establish that he
[*26] has standing to sue. Raines v. Byrd, 521 U.S.
811, 818, 117 S. Ct. 2312, 138 L. Ed. 2d 849 (1997)
(citing Lujan, 504 U.S. at 561). Another element
requires that "an actual controversy . . . be extant at all
stages of review, not merely at the time the complaint is
filed." Arizonans for Official English v. Ariz., 520 U.S. 43,
67, 117 S. Ct. 1055, 137 L. Ed. 2d 170 (1997) (citing
Preiser v. Newkirk, 422 U.S. 395, 401, 95 S. Ct. 2330,
45 L. Ed. 2d 272 (1975)). If either of these elements is
lacking, the Court must dismiss the action for lack of
subject matter jurisdiction. FED. R. CIV. P. 12(h)(3); see
also Lujan, 504 U.S. at 560 ("[T]he core component of
standing is an essential and unchanging part of the
case-or-controversy requirement of Article III"); Preiser,
422 U.S. at 401, 404.
As a threshold matter, Plaintiffs claim that Defendants
may not move to dismiss the case for lack of subject
matter jurisdiction at this juncture because they did not
raise the issue in earlier pleadings. PML at 1-4.
However, courts "have an independent obligation to
consider the presence or absence of subject matter
jurisdiction sua sponte." Joseph v. Leavitt, 465 F.3d 87,
89 (2d Cir. 2006). Indeed, Rule 12(h)(3) of the Federal
Rules requires that "[i]f the court determines at any time
that it lacks subject-matter [*27] jurisdiction, the court
must dismiss the action." Fed. R. Civ. P. 12(h)(3)
(emphasis added). This Motion to dismiss for lack of
subject matter jurisdiction is therefore properly before
the Court, and the Court addresses each of Defendants'
arguments therein.
contract clause or a state-law claim for breach of contract."
June 4, 2008 Order at 13. The Court also held that Plaintiffs'
claim failed to the extent that it alleged a constitutional
violation, but that Plaintiffs' Complaint could be read to allege
a plausible state law claim. Id. at 15-16. Plaintiffs make it clear
in their Opposition, however, that their claims are not
grounded in breach of contract, but in Article I, section 10 of
the Constitution. Am. Compl. ¶ 255; PML at 19. The Court will
treat this claim as a constitutional one accordingly; as the
Court finds that the action warrants dismissal on the other
grounds cited by Defendants, though, the Court will address
Plaintiffs' Contract Clause claim only in brief.
A-37
(40 of 45)
Page 9 of 14
A. Standing
Defendants argue in their Motion that this case should
be dismissed because Plaintiffs meet none of the
requirements necessary to establish standing under
Article III. DML at 7-13. In their Opposition, Plaintiffs
contend that (1) the "law of the case" doctrine applies to
this question, and therefore the Court's finding in its
June 4, 2008 Order that Plaintiffs had standing to sue
Defendants forecloses a finding to the contrary; and (2)
in the alternative, Plaintiffs have satisfied all of the
constitutional requirements to establish standing under
Article III. PML at 1-9.
1. Law of the Case
The "law of the case" doctrine is premised on the
principle that "when a court decides upon a rule of law,
that decision should continue to govern the same issues
in subsequent stages in the same case." Ariz. v. Cal.,
460 U.S. 605, 618, 103 S. Ct. 1382, 75 L. Ed. 2d 318
(1983). At the same time, the law of the case doctrine
"is a discretionary rule of practice and generally
[*28] does not limit a court's power to resolve an issue."
Liona Corp. v. PCH Assoc., 949 F.2d 585, 592 (2d Cir.
1991); see also Tischmann v. ITT/Sheraton Corp., 145
F.3d 561, 564 (2d Cir. 1998); Doctor's Assocs., Inc., v.
Distajo, 107 F.3d 126, 131 (2d Cir. 1997).
Plaintiffs argue that the "law of the case" doctrine
applies here, because the June 4, 2008 Order
addressed the standing issue when it dismissed the
Amended Complaint with respect to the out-of-state
Plaintiffs for lack of standing. 6 PML at 3-4 (citing June
6 Plaintiffsalso point to a statement in the Valentine
Declaration that "[N]one of the plaintiffs except Robert Schulz,
Arthur Berg and John Liggett has any standing to sue the New
York defendants, and the claims of all the plaintiffs except
Robert Schulz, Arthur Berg and John Liggett should be
dismissed as to all the New York defendants." PML at 3 (citing
Valentine Decl. ¶ 20) (emphasis added by Plaintiffs). Even if
Defendants intended to admit as much, the statement in the
Valentine Declaration is irrelevant for purposes of establishing
subject matter jurisdiction. Parties may not "waive" defects in
subject matter jurisdiction. Ins. Corp. of Ireland v. Compagnie
Des Bauxites de Guinee, 456 U.S. 694, 702, 102 S. Ct. 2099,
72 L. Ed. 2d 492 (1982); United States v. 27.09 Acres of Land,
1 F.3d 107, 111 (2d Cir. 1993); Cable Television Ass'n of N.Y.
v. Finneran, 954 F.2d 91, 94 (2d Cir. 1992) [*30] ("[T]he
parties may not confer subject matter jurisdiction on the court

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2011 U.S. Dist. LEXIS 73088, *30
4, 2008 Order at 17). Defendants insist that Plaintiffs
misconstrue the June 4, 2008 Order, arguing that it
does not contain "any discussion of any motion
addressed to the in-state Plaintiffs and the issue of
subject matter jurisdiction over the claims of the
Plaintiffs." Defs.' Reply at 6. While it is true that both the
Wisconsin Motion and the June 4, 2008 Order primarily
addressed Plaintiffs' lack of standing with respect to the
out-of-state Defendants, the Court explicitly stated in the
June 4, 2008 Order that "each of the Plaintiffs' standing
is limited so as to only have standing against the
Individual Defendants in the Plaintiff's own state." June
4, 2008 Order at 4. [*29] Defendants joined in the
Wisconsin Motion and purported to adopt its argument
that Plaintiffs in the case "only" had standing to sue
Defendants in their own states. Valentine Decl. ¶¶ 20-
21. The Court plainly adopted this argument in its June
4, 2008 Order, albeit in passing, and Defendants cannot
contort the statement from that Order to signify
otherwise.
Nonetheless, Plaintiffs' argument that the law of the
case doctrine applies here - an argument which
Plaintiffs cite no cases to support - fails as well. Courts
in this Circuit have found that "questions of subject
matter jurisdiction are generally exempt from law of the
case principles," and that "a federal court cannot assert
jurisdiction over a claim that is outside the scope of the
court's jurisdiction merely by relying on the court's own
prior decision that jurisdiction over such a claim was
proper." Walsh v. McGee, 918 F. Supp. 107, 112
(E.D.N.Y. 1996) (citing 18 WRIGHT, MILLER & COOPER,
§ 4478, at 799, n.32); see also Canadian St. Regis
Band of Mohawk Indians v. N.Y., 388 F. Supp. 2d 25, 36
(N.D.N.Y. 2005) (holding that law of the case doctrine
did not preclude reconsideration of subject matter
jurisdiction question); Allah v. Juchnewioz, No.
93CIV8813, 2003 U.S. Dist. LEXIS 4265, 2003 WL
1535623, at *3 (S.D.N.Y. Mar. 24, 2003) (citing Marcella
v. Capital Dist. Physicians' Health Plan, Inc., 293 F.3d
42, 47 (2d Cir. 2002)). These findings are consistent
with the rule, both embodied in the Federal Rules and
articulated [*31] by the federal courts, that Article III
precludes a federal court from adjudicating a case over
which it lacks subject matter jurisdiction. FED. R. CIV.
P. 12(h)(3); FW/PBS, Inc., 515 U.S. 737, 742, 115 S. Ct.
2431, 132 L. Ed. 2d 635 (1995) ("The federal courts are
under an independent obligation to examine their own
jurisdiction, and standing is perhaps the most important
of [the jurisdictional] doctrines.") (citations and
quotations omitted); Ins. Corp. of Ireland, 456 U.S. at
by consent.").
A-38
(41 of 45)
Page 10 of 14
702 ("[N]o action of the parties can confer subject-
matter jurisdiction upon a federal court . . . and a party
does not waive the requirement by failing to challenge
jurisdiction early in the proceedings.") (internal citations
omitted); Cent. States Southeast & Southwest Areas
Health & Welfare Fund v. Merck-Medco Managed Care,
L.L.C., 433 F.3d 181, 197 (2d Cir. 2005). Indeed, the
Supreme Court held as early as 1799 that "[s]ilence,
inadvertence of consent cannot give jurisdiction, where
the law denies it." Turner v. Bank of N. Am., 4 U.S. 8, 8,
1 L. Ed. 718, 4 Dall. 8 (1799). The Court therefore
rejects Plaintiffs' argument that the law of the case
doctrine must govern, and finds that it is obligated to
consider Defendants' Motion. See also Doe v.
Immigration & Customs Enforcement, No. M-54, 2006
U.S. Dist. LEXIS 28300, 2006 WL 1294440, at *3
(S.D.N.Y. May 10, 2006) [*32] (addressing newly raised
standing argument on the grounds that "since the issue
of subject matter jurisdiction is never waived, the timing
of the Government's objection, while unfortunate, is
beside the point.").
2. Constitutional Standing Requirements
In order to meet the "irreducible constitutional minimum
of standing" under Article III, a plaintiff must satisfy three
elements: first, that he has suffered "an injury in fact";
second, that there is a "causal connection between the
injury and the conduct complained of"; and third, that it
is "likely, as opposed to merely speculative, that the
injury will be redressed by a favorable decision." Lujan,
504 U.S. at 560 (internal citations and quotations
omitted). In responding to a motion to dismiss, the
plaintiff's allegations of standing "need not be crafted
with precise detail," Baur v. Veneman, 352 F.3d 625,
631 (2d Cir. 2003), but the plaintiff bears the burden of
establishing each of these elements. Lujan, 504 U.S. at
560 (citing FW/PBS, Inc. v. Dallas, 493 U.S. 215, 231,
110 S. Ct. 596, 107 L. Ed. 2d 603 (1990); Warth v.
Seldin, 422 U.S. at 508 (1975)).
To establish an injury in fact, a plaintiff must show (1) an
invasion of a legally protected interest that is (2)
[*33] concrete and particularized and (3) actual and
imminent rather than conjectural or hypothetical. Lujan,
504 U.S. at 560; Whitmore v. Arkansas, 495 U.S. 149,
155, 110 S. Ct. 1717, 109 L. Ed. 2d 135 (1990). "[T]he
bare existence of an abstract injury is not enough to
confer standing." Matter of Appointment of Indep.
Counsel, 766 F.2d 70, 76 (2d Cir. 1985). Rather, the
party asserting the interest or injury must "have a direct
and personal stake in the controversy," lest the judicial

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2011 U.S. Dist. LEXIS 73088, *33
process "be converted into a vehicle for the vindication
of the value interests of concerned bystanders." Sullivan
v. Syracuse Hous. Auth., 962 F.2d 1101, 1107 (2d Cir.
1992) (citing Valley Forge Christian Coll. v. Americans
United for Separation of Church & State, Inc., 454 U.S.
464, 473, 477-78, 486, 102 S. Ct. 752, 70 L. Ed. 2d 700
& n.22 (1982)) (citations and quotations omitted).
Defendants assert that Plaintiffs' Amended Complaint is
insufficient to allege any of these elements necessary to
show an injury in fact. DML at 7-9. First, they argue that
Plaintiffs have no legally protected interest in having
their votes counted manually and in public at each and
every polling station. Id. They also argue that Plaintiffs'
Amended Complaint, which alleges that Defendants'
voting [*34] procedures will result in an inaccurate
counting of Plaintiffs' votes, sets forth no injury that is
anything more than conjectural or hypothetical. Id. at 9.
Plaintiffs respond that they have suffered an injury
because "[t]hey were unable to know that their votes
were accurately counted," and that this injury will persist
in future elections absent relief from the Court. PML at
4-5.
The Court agrees with both of Defendants' arguments.
Plaintiffs correctly point out that they have a legally
protected interest in having their votes counted
accurately. Am. Compl. ¶¶ 238, 241, 243-44 (citing
United States v. Saylor, 322 U.S. 385, 388, 64 S. Ct.
1101, 88 L. Ed. 1341 (1944); United States v. Classic,
313 U.S. 299, 315, 61 S. Ct. 1031, 85 L. Ed. 1368
(1941); United States v. Mosley, 238 U.S. 383, 35 S. Ct.
904, 59 L. Ed. 1355 (1915)). However, Plaintiffs'
Amended Complaint makes clear that they are not
alleging a legally protected interest only in having their
votes counted accurately. Rather, Plaintiffs are alleging
a legally protected interest in having their votes counted
in a very particular way - namely, in having their votes
counted manually and in full public viewing at every
polling station in the state of New York. The Amended
Complaint explicitly states: "Voting procedures
[*35] that are not . . . machine and computer free, with
paper ballots that are hand marked and hand counted,
abridge the right to cast an effective vote." Am. Compl. ¶
246 (citing Williams v. Rhodes, 393 U.S. 23, 30, 89 S.
Ct. 5, 21 L. Ed. 2d 24 (1968)). In order to find that
Plaintiffs have established a legally protected interest
here, then, the Court would be required to conclude that
they have a legally protected interest in having their
votes counted manually and in full public viewing. The
Court is unable to reach such a conclusion here.
First, the Court notes that Plaintiffs' reliance on Williams
A-39
(42 of 45)
Page 11 of 14
in support of the above assertion is misplaced. The
Supreme Court held in Williams only that voters have
the right "to cast their votes effectively"; it did not hold
that manual counting of votes is required to protect that
right. See Williams, 393 U.S. at 30. Second, at least one
other court in this Circuit has held that "[t]here is no
constitutional right to any particular method of
registering and counting votes." Green Party of State of
N.Y. v. Weiner, 216 F. Supp. 2d 176, 191 (S.D.N.Y.
2002). In doing so, the court noted that while the
plaintiffs in the case may be correct that it would be
"desirable for New York [*36] to purchase more or
newer voting machines, or to adopt some more modern
technology for conducting elections . . . that debate is
for the elected representatives of the people to decide . .
. ." Id. at 190-91. The Court also considers that the
Supreme Court has instructed the federal courts to be
mindful of adjudicating issues that are more
appropriately left to the executive or legislative branch:
Proper regard for the complex nature of our
constitutional structure requires neither that the
Judicial Branch shrink from a confrontation with the
other two coequal branches of the Federal
Government, nor that it hospitably accept for
adjudication claims of constitutional violation by
other branches of government where the claimant
has not suffered cognizable injury.
Valley Forge, 454 U.S. at 471 (1982). As the Court here
does not find that Plaintiffs have a legally protected
interest in having their votes counted manually and in
full public view, the Court cannot find such cognizable
injury here, and adjudication of Plaintiffs' constitutional
claims is thus unwarranted. 7
7 Plaintiffs
call to the Court's attention, and extensively discuss,
a recent decision from the German Constitutional Court
[*37] holding that electronic voting machines used in that
country's 2005 election violated the constitutional principle of
transparency of elections. Dkt. No. 374-4,
Bundesverfassungsgericht [BverfG] [Federal Constitutional
Court] Mar. 3, 2009, Entscheidungen des
Bundesverfassungsgerichts [BverfGE] (Ger.), available at
http://www.bundesverfassungsgericht.de/en/decisions/rs20090
303_2bvc000307en.html. The Court notes that the German
Constitutional Court did not find that voting machines in
general violated Germany's constitutional principles. See id.
¶¶ 123, 28. Nor did the court invalidate the election results in
question, because it concluded that the complainants failed to
allege with sufficient specificity that the voting machines
actually worked incorrectly or were manipulated in any way, or
that the election result would have been different but for the
use of the machines in question. Id. ¶¶ 160-64. Moreover, the

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2011 U.S. Dist. LEXIS 73088, *37
Furthermore, the Court finds that Plaintiffs have not
alleged a sufficiently concrete and particularized harm to
establish standing. The Second Circuit has joined other
circuits in holding that "a voter fails to present an injury-
in-fact when the alleged harm is abstract and widely
shared." Crist v. Comm'n on Presidential Debates, 262
F.3d 193, 195 (2d Cir. 2001). Not only is the alleged
injury of which Plaintiffs complain widely [*39] shared
by all voters in the state of New York, it is an abstract
one and as such cannot constitute an injury in fact.
Plaintiffs' argument that "[t]hey were unable to know that
their votes were accurately counted" is not the kind of
"informational injury" that has previously been found to
establish standing, for instance, when voters are unable
to obtain information that would help them evaluate
candidates for office. Cf. Fed. Election Comm'n v. Akins,
524 U.S. 11, 21, 118 S. Ct. 1777, 141 L. Ed. 2d 10
(1998). Plaintiffs' allegations in the Amended Complaint
that "the inevitability of machine error" and "human
fraud" will result in votes being cast for party favorites
and disfavor party insurgents also fail to establish
concrete or particularized harm. Am. Compl. ¶¶ 249-51.
These abstract insurgent candidates are not a party to
this lawsuit, and Plaintiffs do not have standing to sue
on their behalf. See Crist, 262 F.3d 193, 195 (2d Cir.
2001) (adopting the view of other circuits that "a voter
fails to present an injury-in-fact when the alleged harm .
. . is only derivative of a harm experienced by a
candidate").
Moreover, even construing their Amended Complaint to
mean that the machine error and human fraud resulting
[*40] from Defendants' voting procedures will also harm
Plaintiffs - whose votes will allegedly not be counted
accurately - the Court finds that these allegations are
court expressly declined to order the implementation of any
specific voting procedures on the grounds that "regulations
relating to the deployment of voting machines are reserved for
parliamentary decision," and "[t]he more detailed preconditions
for the approval of voting [*38] machines and the procedures
to be complied with here, the details of the use of the voting
machines in the elections and the guarantee of the principles
of electoral law in the concrete deployment of voting machines
. . . can be regulated by the institution adopting the ordinance."
Id. ¶ 137. In any event, the Court acknowledges the helpful
comparative perspective that decisions from other nations'
courts may offer and the extent to which they may suggest
approaches to various legal issues that United States courts
have failed to consider. Nonetheless, the German
Constitutional Court's decision is not binding on this Court,
given that the issues here involve questions of interpretation of
the United States Constitution and the law of the state of New
York.
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(43 of 45)
Page 12 of 14
merely conjectural and hypothetical and do not
demonstrate a concrete or particularized injury to
Plaintiffs. Plaintiffs have not presented any concrete or
specific factual allegations from which the Court could
infer, for instance, that their votes were diluted, that they
are being disfavored by a gerrymandering scheme, or
that they were unfairly denied access to a polling
station. See In re United States Catholic Conference,
885 F.2d 1020, 1028 (2d Cir. 1989) (finding a lack of
injury in lawsuit challenging Roman Catholic Church's
tax exempt status, where plaintiffs had not alleged vote
dilution, gerrymandering that disfavored them as voters,
that anyone "stuffed the ballot box" with votes for
Church-backed candidates, or that anyone had
prevented them from voting); Landes v. Tartaglione, No.
Civ.A. 04-3163, 2004 U.S. Dist. LEXIS 22458, 2004 WL
2415074, at *3 (E.D.Pa. Oct. 28, 2004) (dismissing
complaint of plaintiff alleging unconstitutionality of voting
machines because plaintiff offered only speculative
allegations that machines were vulnerable to
[*41] manipulation or failure). Plaintiffs' allegations
instead fall within the category of "generalized
grievances" - in this case, against the voting procedures
adopted by the state of New York and which Defendants
are charged with implementing. See Valley Forge, 454
U.S. at 475 ("[T]he Court has refrained from adjudicating
abstract questions of wide public significance which
amount to generalized grievances, pervasively shared
and most appropriately addressed in the representative
branches.") (citations and quotations omitted); U.S.
Catholic Conference, 885 F.2d at 1026; Forjone v.
California, No. 1:06-CV-1002, 2010 U.S. Dist. LEXIS
14593, 2010 WL 653651, at *4 (N.D.N.Y. Feb. 19, 2010)
(Kahn, J.) (dismissing voters' suit alleging
noncompliance with the Help America Vote Act
["HAVA"] on the grounds that "Plaintiffs allege non-
particularized injuries and generalized grievances.");
Landes, 2004 U.S. Dist. LEXIS 22458, 2004 WL
2415074, at *3 (finding plaintiff's allegation of injury
where machines prevented her from knowing whether
her vote was actually cast "amounts to a generalized
grievance shared in substantially equal measure by all
or a large class of citizens and is not sufficient to confer
standing.") (citing Warth, 422 U.S. at 499) (internal
[*42] quotations omitted).
Finally, Plaintiffs have highlighted in bold in their
Opposition that they have suffered an injury in fact
because "[t]heir votes were counted in secret." PML at 4
(emphasis in original). As the Court has discussed
above, Plaintiffs do not have a legally protected interest
in having their votes counted manually and in public
viewing. Defendants cite in their Motion, and the Court

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2011 U.S. Dist. LEXIS 73088, *42
considers persuasive, a case in which the Ninth Circuit
held that "it is the job of democratically-elected
representatives to weigh the pros and cons of various
balloting systems," and found that the legislature's
decision to use paperless, touchscreen voting systems
did not unduly restrict the right to vote. Weber v.
Shelley, 347 F.3d 1101, 1106-07 (9th Cir. 2003). Nor, in
the view of this Court, does a failure to manually and
publicly count all of the ballots in the state of New York
unduly restrict Plaintiffs' right to vote. Even if Plaintiffs'
allegation that their votes were counted in secret is true,
it does not give rise to a concrete and particularized
injury that is actual and imminent. Because Plaintiffs
have failed to establish a cognizable injury in this case,
the Court finds [*43] that they lack standing to bring this
case.
B. Mootness
Although this case must be dismissed for lack of
standing, the Court will also briefly address the issue of
mootness raised by Defendants in their Motion.
Arizonans for Official English, 520 U.S. at 66-67
(question of whether there is a "live" case or controversy
may be determined absent a determination of standing
because that issue relates to the Court's Article III
jurisdiction and not to the merits of the case).
Defendants contend that Plaintiffs' claims are moot, both
with respect to (1) the lever voting machines that were
in use at the time Plaintiffs filed their Amended
Complaint in 2007, because they are no longer in use
as a result of the Board's certification of new HAVA-
compliant voting machines; and (2) all other voting
systems that may be implemented by Defendants in
future elections, because Plaintiffs did not allege in their
Amended Complaint that they intended to vote in any
elections after the primary election in 2008. DML at 14-
17. Plaintiffs argue that their claims with respect to the
lever voting machines are not moot "[u]nless the
Commissioners are willing to stipulate that they will
never reintroduce the lever [*44] machines should the
Court ban the electronic computer-controlled vote
counting machines that are also under challenge in this
case." PML at 18. They also contend that the portion of
their Amended Complaint requesting relief for "the 2008
election cycle and beyond" was "another way of saying
they intended to vote in 2008 and beyond." Id.
Like standing, the doctrine of mootness is derived from
Article III, which gives federal courts subject matter
jurisdiction only over "live" cases and controversies.
"[A]n actual controversy must be extant at all stages of
A-41
(44 of 45)
Page 13 of 14
review, not merely at the time the complaint is filed."
Preiser, 422 U.S. at 401 (citations and quotations
omitted). A case is deemed moot when "interim relief or
events have eradicated the effects of the defendant's
act or omission, and there is no reasonable expectation
that the alleged violation will recur." Irish Lesbian & Gay
Org. v. Giuliani, 143 F.3d 638, 647 (2d Cir. 1998). The
mootness doctrine is subject to one exception, however,
whereby a case may be deemed "capable of repetition,
yet evading review." Fed. Election Comm'n v. Wisc.
Right to Life, Inc., 551 U.S. 449, 462, 127 S. Ct. 2652,
168 L. Ed. 2d 329 (2007). This exception applies if "(1)
the challenged [*45] action is in its duration too short to
be fully litigated prior to cessation or expiration, and (2)
there is a reasonable expectation that the same
complaining party will be subject to the same action
again." Spencer v. Kemna, 523 U.S. 1, 17, 118 S. Ct.
978, 140 L. Ed. 2d 43 (1998).
The Court finds Plaintiffs' claims relating to the lever
voting machines are not sufficiently capable of repetition
to constitute a live case or controversy at this point.
Plaintiffs cite to no cases, nor does the Court find any,
that would require Defendants to stipulate to an
agreement never to repeat conduct or events that have
occurred in the past but since ceased, and where
Plaintiffs can offer no reason to presume that said
conduct or events will recur, before Plaintiffs' claims
may be found moot. See Libertarian Party v. Dardenne,
595 F.3d 215, 217 (2d Cir. 2010) (dismissing as moot
and finding political parties failed to establish their case
was capable of repetition where they had demonstrated
merely a "physical or theoretical possibility" that the
Secretary of State of Louisiana would have future
opportunities to unilaterally change filing deadlines for
qualifying papers because of hurricane) (citing Murphy
v. Hunt, 455 U.S. 478, 482, 102 S. Ct. 1181, 71 L. Ed.
2d 353 (1982)).
Whether [*46] Plaintiffs' claims with respect to other
voting procedures are capable of repetition is a closer
call. Upon reviewing the Amended Complaint, the Court
agrees with Defendants that Plaintiffs failed to allege
that they intended to vote in future elections; indeed,
there is no mention of future elections beyond 2008 until
the final paragraph requesting injunctive relief relating to
the 2008 elections "and beyond." See Am. Compl. ¶
268. The Court does not consider this final paragraph
sufficient to establish a direct relationship between
Plaintiffs and all future elections that occurred and will
occur after 2008, and which are not referenced
anywhere but the final paragraph of the Amended
Complaint. See Van Walsh v. Allen, 370 Fed. Appx.
 (45 of 45)
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Page 14 of 14
2011 U.S. Dist. LEXIS 73088, *46

235, 238 (2d Cir. 2010) (finding plaintiff's claim moot public viewing, and therefore lack standing to sue; and
where "the election that he sought to affect has passed (2) their claims are moot under Article III.
and he has made no allegation that he intends to
campaign or attempt to reconstitute the country
committee in the future"), aff'g Van Allen v. Walsh, 1:08- V. CONCLUSION
CV-00876 (N.D.N.Y. Sept. 8, 2008) (Kahn, J.); Van Wie
v. Pataki, 267 F.3d 109, 115 (2d Cir. 2001) (dismissing Accordingly, it is hereby:
as moot claims brought by registered voters who were
ORDERED, that Defendants' Motion (Dkt. No. 367) is
disallowed from taking part [*47] in primary election, on
GRANTED; [*49] and it is further
grounds that voters had failed to "adequately
demonstrate[] that they will again try to enroll in a ORDERED, that Plaintiffs' Amended Complaint (Dkt.
political party for purposes of voting in a primary No. 21) is DISMISSED with prejudice for lack of subject
election."). Moreover, dismissing the Amended matter jurisdiction; and it is further
Complaint without prejudice with respect to this claim
and granting Plaintiffs leave to amend would be fruitless ORDERED, that the Clerk serve a copy of this Order on
in light of the above finding that Plaintiffs do not have all the parties.
standing to bring such claims. For these reasons, the
Court also finds that the Amended Complaint does not IT IS SO ORDERED.
present a live case or controversy over which the Court
DATED: July 07, 2011
may exercise jurisdiction.
Albany, New York

C. Contract Clause Claim /s/ Lawrence E. Kahn

Plaintiffs claim that Defendants' voting procedures Lawrence E. Kahn

violate Article I, Section 10 of the Constitution, which
provides that "[n]o State shall . . . pass any . . . Law U.S. District Judge
impairing the Obligation of Contracts." U.S. CONST. art.
I § 10. In light of the Court's findings above, the Court
End of Document
finds it unnecessary to address these claims, except to
note that in its June 4, 2008 Order, the Court held
explicitly that "[t]o the extent that [Plaintiffs'] claim is a
constitutional one under the contract clause, it fails."
June 4, 2008 Order at 13. Neither party has requested
the Court to reconsider that portion [*48] of its opinion,
and the Court finds no reason to do so here. Defendants
are not legislative bodies and therefore are not proper
parties in an action pursuant to the Contracts Clause.
See Kinney v. Conn. Judicial Dep't, 974 F.2d 313, 314
(2d Cir. 1992) (prohibition in the Contracts Clause "is
aimed at the legislative power of the State, and not at
the decisions of its courts, the acts of administrative or
executive boards or officers, or the doings of
corporations or individuals.") (citing New Orleans Water-
Works Co. v. La. Sugar Ref. Co., 125 U.S. 18, 30, 8 S.
Ct. 741, 31 L. Ed. 607 (1888)); Jamaica Ash & Rubbish
Removal Co., Inc., v. Ferguson, 85 F. Supp. 2d 174,
177 (E.D.N.Y. 2000) ("[T]he Contracts Clause applies
only to legislative bodies."). Finally, Plaintiffs' Contracts
Clause claim warrants dismissal in light of the Court's
findings above that (1) Plaintiffs have failed to establish
an injury because they do not have a legally protected
interest in having their votes counted manually and in

A-42