Vote.org is not a political party or political organization with members whose rights may be adversely affected by a state’s voting laws. Instead, Vote.org is a non-profit organization that helps people register to vote, among other things. When election laws change–and change how Vote.org does business–does it have the ability to sue?
Yes, says a federal judge in the Northern District of Georgia. No, says the Fifth Circuit. They get there by different routes. Their reasoning (opinions lightly revised):
From an order in Vote.org v. Georgia State Election Board (N.D. Ga. 2023):
As already stated, an organization may establish standing by showing that it has suffered its own injury in fact. An organization typically makes this showing by relying on a “diversion of resources theory.” “Under this theory, an organization has standing ‘if the defendant’s illegal acts impair [the organization’s] ability to engage in its projects by forcing the organization to divert resources to counteract those illegal acts.’” Importantly, “an organizational plaintiff must explain where it would have to ‘divert resources away from in order to spend additional resources on combatting’ the effects of the defendant’s alleged conduct.”
Plaintiffs allege in the Complaint that Vote.org “is the largest 501(c)(3) nonprofit, nonpartisan voter registration and get-out-the-vote technology platform in the country.” According to Plaintiffs, in preparation for the 2018 general and special elections, Vote.org “invested significant resources” and launched “an e-signature function on its web application that helped roughly 8,000 Georgians request an absentee ballot.” Plaintiffs contend that the pen-and-ink requirement prevents Vote.Org from resuming the use of the e-signature function on its absentee ballot web application. Because Vote.Org can no longer use the tool, Plaintiffs assert that Vote.org “has been, and will continue to be, forced to divert resources from its general, nationwide operations—as well as its specific programs in other states—to redesign its absentee ballot web application and employ more expensive . . . means of achieving its voter participation goals in Georgia.”
As demonstrated by the allegations referenced above, Plaintiffs have broadly alleged that Vote.Org has diverted its resources. Moreover, Plaintiffs have specifically alleged that Vote.org must divert resources from its general nationwide operations to redesigning its absentee ballot application. Given the procedural posture of this case in which the Court must accept the allegations as true, the Court is satisfied that Plaintiffs have sufficiently pled the injury-in-fact element of standing as to Vote.org. See Ga. Ass’n of Latino Elected Offs. (determining that the organizational plaintiff had standing where it both broadly and specifically alleged a diversion of resources); see also Browning, (holding that the NAACP and another organization had standing to challenge a voting requirement because the organizations would “divert personnel and time” from other activities “to educating volunteers and voters on compliance” with the requirement); Common Cause/Ga. v. Billups (finding that the NAACP had standing to challenge a law that required voters to present photo identification because the organization was “actively involved in voting activities and would divert resources from its regular activities to educate and assist voters in complying with” the law).
But the Fifth Circuit took a different approach, with a step the district court in the Northern District of Georgia did not take. From an opinion in Vote.Org v. Callanen (5th Cir. 2022):
Even assuming that Vote.org has shown organizational injury from the diversion of resources, the defendants argue that Vote.org lacks third-party standing. Vote.org’s lawsuit, the defendants assert, does not seek to vindicate its own rights, only the rights of Texans not before this court. The defendants are, without question, correct that Vote.org invokes the rights of Texas voters and not its own—an organization plainly lacks the right to vote. A party must ordinarily assert only “his own legal rights and interests, and cannot rest his claim to relief on the legal rights or interests of third parties.” Warth v. Seldin (1975). The Supreme Court crafted a prudential exception to the traditional rule against third-party standing where “the party asserting the right has a ‘close’ relationship with the person who possesses the right” and “there is a ‘hindrance’ to the possessor’s ability to protect his own interests.” Kowalski v. Tesmer (2004). Otherwise, the Supreme Court has “not looked favorably upon third-party standing.”
Vote.org asserts that it fits within the prudential exception to the rule against third-party standing. It posits that it has a close relationship with some unknown subset of Texas voters that may in the future submit their voter registration applications via fax using the Vote.org web application because their right to submit those applications free from the burden imposed by the wet signature requirement is inextricable from Vote.org’s platform. Furthermore, Vote.org hypothesizes that individual voters injured by the wet signature requirement are hindered by financial constraints and justiciability problems in protecting their own rights. We disagree. Vote.org’s relationship with prospective users is no closer than the hypothetical attorney-client relationship rejected as insufficiently close to support third-party standing in Kowalski. Indeed, Vote.org’s CEO explained that the organization does not “assist people in registering to vote,” instead it designed technology that allows users to “register themselves to vote.” Moreover, there is little doubt that voters injured by the wet signature requirement could protect their rights—voters and associations representing those voters bring such lawsuits all the time. See, e.g., Tex. Democratic Party v. Hughs (5th Cir. 2021) (lawsuit brought by same group of attorneys challenging wet signature requirement on behalf of associations with eligible voter members). If Vote.org cannot prove that it meets the requirements for third-party standing, as seems probable, then the defendants must prevail.