In order to sue in federal court, a plaintiff must have “standing,” an actual or imminent concrete and particularized injury in fact caused by the defendant and redressable by a federal court. Many lawsuits are thrown out for lack of standing. In particular, and of particular relevance in election cases, many lawsuits are thrown out because the plaintiffs allege a “generalized grievance,” an injury shared in common with the public and not “particularized.” In federal court, an increasing number of plaintiffs have been non-profit organizations alleging a distinct harm to them, and they have survived the standing inquiry.

But the Supreme Court’s decision today in Food and Drug Administration v. Alliance for Hippocratic Medicine might have just disrupted this litigation path in election cases.

FDA v. AHM is not an election case, but a challenge to the FDA’s approval and subsequent relaxing of standards for mifepristone, medication that terminates pregnancy.

The Supreme Court, in a unanimous decision by Justice Kavanaugh, held that the Alliance for Hippocratic Medicine lacked standing. In particular, here’s what it had to stay about standing as an organization (lightly revised):

That leaves the medical associations’ argument that the associations themselves have organizational standing. Under this Court’s precedents, organizations may have standing “to sue on their own behalf for injuries they have sustained.” Havens Realty Corp. v. Coleman, 455 U. S. 363, 379, n. 19 (1982). In doing so, however, organizations must satisfy the usual standards for injury in fact, causation, and redressability that apply to individuals. Id., at 378–379.

According to the medical associations, FDA has “impaired” their “ability to provide services and achieve their organizational missions.” That argument does not work to demonstrate standing.

Like an individual, an organization may not establish standing simply based on the “intensity of the litigant’s interest” or because of strong opposition to the government’s conduct, Valley Forge, 454 U. S., at 486, “no matter how longstanding the interest and no matter how qualified the organization,” Sierra Club v. Morton, 405 U. S. 727, 739 (1972). A plaintiff must show “far more than simply a setback to the organization’s abstract social interests.” Havens, 455 U. S., at 379. The plaintiff associations therefore cannot assert standing simply because they object to FDA’s actions.

The medical associations say that they have demonstrated something more here. They claim to have standing not based on their mere disagreement with FDA’s policies, but based on their incurring costs to oppose FDA’s actions. They say that FDA has “caused” the associations to conduct their own studies on mifepristone so that the associations can better inform their members and the public about mifepristone’s risks. They contend that FDA has “forced” the associations to “expend considerable time, energy, and resources” drafting citizen petitions to FDA, as well as engaging in public advocacy and public education. And all of that has caused the associations to spend “considerable resources” to the detriment of other spending priorities.

But an organization that has not suffered a concrete injury caused by a defendant’s action cannot spend its way into standing simply by expending money to gather information and advocate against the defendant’s action. An organization cannot manufacture its own standing in that way.

The medical associations respond that under Havens Realty Corp. v. Coleman, standing exists when an organization diverts its resources in response to a defendant’s actions. 455 U. S. 363. That is incorrect. Indeed, that theory would mean that all the organizations in America would have standing to challenge almost every federal policy that they dislike, provided they spend a single dollar opposing those policies. Havens does not support such an expansive theory of standing.

The relevant question in Havens was whether a housing counseling organization, HOME, had standing to bring a claim under the Fair Housing Act against Havens Realty, which owned and operated apartment complexes. Havens had provided HOME’s black employees false information about apartment availability—a practice known as racial steering. Critically, HOME not only was an issue-advocacy organization, but also operated a housing counseling service. And when Havens gave HOME’s employees false information about apartment availability,HOME sued Havens because Havens “perceptibly impaired HOME’s ability to provide counseling and referral services for low- and moderate-income homeseekers.” In other words, Havens’s actions directly affected and interfered with HOME’s core business activities—not dissimilar to a retailer who sues a manufacturer for selling defective goods to the retailer.

That is not the kind of injury that the medical associations have alleged here. FDA’s actions relaxing regulation of mifepristone have not imposed any similar impediment to the medical associations’ advocacy businesses.

At most, the medical associations suggest that FDA is not properly collecting and disseminating information about mifepristone, which the associations say in turn makes it more difficult for them to inform the public about safety risks. But the associations have not claimed an informational injury, and in any event the associations have not suggested that federal law requires FDA to disseminate such information upon request by members of the public. Cf. Federal Election Comm’n v. Akins, 524 U. S. 11 (1998).

Havens was an unusual case, and this Court has been careful not to extend the Havens holding beyond its context. So too here.

I glanced at a few recent complaints in the election law space. From League of Women Voters v. Lee (N.D. Fla.):

Collectively, the Challenged Provisions will require the League to expend and divert additional funds, staff resources, and volunteer resources to its voter education and voter registration efforts, at the expense of its other initiatives and programs, including its work on important priorities such as ensuring fair redistricting in the State of Florida and providing its long-standing candidate forums assure individuals registering to vote that the organization will properly deliver the voter’s registration application to the appropriate election officials. The Voter Suppression Bill, however, now requires the League and its members to notify a voter registrant applicant at the time they register to vote that the League “might not deliver” that voter’s application to the appropriate authorities in a timely manner, and advise the voter of their other options for registering to vote in Florida that do not involve the assistance of a third-party organization such as the League. Such a “warning” will undermine the League’s important voter registration efforts by expressly (and falsely) conveying to voters that the League cannot be trusted to deliver their application. In reality, the League takes great care to ensure that voter registration applications are promptly delivered to election officials in compliance with Florida law, and it opposes the law’s mandate that the League and its members engage in deceptive speech to personally warn voters that their forms “might not” be delivered appropriately.

To achieve its mission of helping eligible Floridians cast their votes, the League also devotes substantial time, effort, and resources to helping Floridians return their vote-by-mail ballots on a volunteer basis. Because the Voter Suppression Bill prohibits even volunteers from helping Floridians return their ballots to their county, the League and its members will no longer be able to assist voters in these vital ballot collection efforts. But for the new law, the League would help collect and deliver vote-by-mail ballots on behalf of its members and members of its voting constituencies who asked for their assistance.

The League also devotes substantial time, effort, and resources to assist and encourage voters at their polling locations to achieve its mission of ensuring that lawful voters are able to successfully access the franchise and make their voices heard through the ballot box. In furtherance of this mission, the League has previously hosted “Party at the Polls” events across Florida at polling locations to hand out food and water to voters. These types of events increase voter participation, which is part of the League’s core mission. The Voter Suppression Bill, however, appears to effectively prohibit such civic engagement and assistance to voters—
assistance the League would otherwise provide.

Collectively, the Challenged Provisions will require the League to expend and divert additional funds, staff resources, and volunteer resources to its voter education and voter registration efforts, at the expense of its other initiatives and programs, including its work on important priorities such as ensuring fair redistricting in the State of Florida and providing its long-standing candidate forums

From Eakin v. Adams County Board of Elections (W.D. Pa.):

Plaintiff DSCC is the Democratic Party’s national senatorial committee, as defined by 52 U.S.C. § 30101(14). Its mission is to elect candidates of the Democratic Party across the country, including in Pennsylvania, to the U.S. Senate. DSCC works to accomplish its mission by, among other things, assisting state parties throughout the country, including in Pennsylvania, and mobilizing and supporting voters. In 2022, DSCC has and will continue to provide millions of dollars in contributions and expenditures to persuade and mobilize voters to support U.S. Senate candidates who affiliate with the Democratic Party. For the 2022 election for U.S. Senate in Pennsylvania, DSCC has worked (and will continue to work) to elect the Democratic candidate, Lt. Gov. John Fetterman, and has made (and will continue to make) substantial contributions and expenditures to support Lt. Gov. Fetterman in his candidacy.

Plaintiff DCCC is the Democratic Party’s national congressional committee as defined by 52 U.S.C. § 30101(14). Its mission is to elect candidates of the Democratic Party from across the country, including those running in Pennsylvania’s congressional districts, to the U.S. House of Representatives. DCCC works to accomplish its mission by, among other things, assisting state parties throughout the country, including in Pennsylvania, and assisting and mobilizing voters. In 2022, DCCC has and will continue to provide millions of dollars in contributions and expenditures to persuade and mobilize voters to support congressional candidates who affiliate with the Democratic Party.

One more, from Mi Familia Vota v. Hobbs (D. Ariz.):

MFV plans to organize the same activities for future elections. As a result of the Proof of Citizenship Restriction, however, MFV must divert money, personnel, time, and resources away from other programming in order to dedicate more resources toward efforts to ensure that voters can navigate the restrictions imposed by the Proof of Citizenship Restriction. Additionally, MFV plans to hire additional staff to help educate voters about the Proof of Citizenship Restriction and is considering developing public service announcements in Spanish-language media concerning the changes. MFV will also expend resources confirming that voters who previously registered to vote either (1) pre-2005 or (2) post-2005 using the Federal Form, are not prohibited from voting early by mail or in presidential elections due to the Proof of Citizenship Restriction

As all three excerpts demonstrate, plaintiffs often point to a diverting of resources as a basis for establishing organizational standing in federal court.

Now, I want to be clear–I am only pulling some excerpts out of the complaints here, ones that relate directly to the things in FDA v. AHM. In many cases (including some of these!), other plaintiffs are also a part of the litigation, including individual voters alleging a particularized interest. And sometimes the organizations allege other forms of injury, including “associational standing,” standing on behalf of their members, or different kinds of injury beside the spending of resources under organizational standing. And organizations might still try to fit the Havens Realty facts akin to a “housing counseling service,” and suggest that their “core bsuiness activities” are affected. So it’s possible that we don’t see much of a change, and other allegations in the complaints would be sufficient to establish standing.

But many times, federal courts, faced with a heap of parties with disputed standing, find at least someone has standing and proceed to the merits. And organizational standing on the diverting of resources has a been a fairly popular go-to for the federal courts (as these complaints show). Furthermore, this warning in the Court’s opinion may suggest to lower courts a change in mood: “Havens was an unusual case, and this Court has been careful not to extend the Havens holding beyond its context. So too here.

Again, it’s possible not much changes, or the litigation strategy simply shifts. But it’s worth pointing out that the Court’s unanimous decision today will definitely affect some election litigation strategy–and it might (might!) even foreclose it in some subset of cases, but that remains to be seen.