Back in September, I noted the sharply divided panel decision in Arizona Alliance for Retired Americans v. Mayes on whether the plaintiffs had standing to challenge parts of an Arizona voter registration law. The majority concluded that the plaintiff organization could not allege a “diversion of resources” theory after the Supreme Court’s June decision in FDA v. AHM as a basis for claiming an injury that would allow the plaintiff to sue and challenge the law. In doing so, the majority brushed aside a stretch of Ninth Circuit precedent it deemed inconsistent with the Supreme Court’s recent decision.
Back then, I wrote, “It would not surprise me, given Judge Nguyen’s dissent, to see this case go en banc or some effort to get the Supreme Court’s attention.” My prediction was right, as the Ninth Circuit just announced it would go en banc to reconsider the case.
Let me go one step further. This case already starts to resemble Brnovich v. DNC (although, of course, there are material differences!). There, a Ninth Circuit decision found against the plaintiffs in an election law case. There, the case when en banc, and the panel decision was reversed–reversed in such a fashion to capture the Supreme Court’s attention. The Supreme Court, in turn, swept aside the lower court decision in a fairly significant way, significant enough to truncate similar claims in the future. That’s how this case is starting to feel in the aftermath of FDA v. AHM.
Of course, there are other plaintiffs who could establish standing in cases like these–but the decision of the Ninth Circuit threatens a kind of plaintiff who might bring such cases, and there is an interest in that kind of plaintiff trying to preserve the opportunity to sue. That has resulted in an en banc petition strategy that focuses on standing for groups like the plaintiffs here to bring the challenge.
But in doing so–if the Ninth Circuit is interested (perhaps it is not!) in bucking the Supreme Court’s very clear messaging in FDA v. AHM about the standing that organizational plaintiffs have in cases like these–the plaintiffs risk attracting, once again, the Supreme Court’s attention.
Perhaps I’m wrong, and perhaps after more fulsome briefing the case is entirely distinguishable from what was pushed aside in FDA v. AHM. Or perhaps the 9th Circuit decision does not attract Supreme Court review. We shall see how this case plays out in the months ahead. But let me say, my June prediction of fallout of FDA v. AHM in election law cases was right, as was my prediction in September about this case attracting en banc attention, so we’ll see how long my streak holds….