Multiple federal courts toss election challenges for lack of standing, citing FDA v. AHM

Last month, I highlighted the Court’s decision in FDA v. AHM and suggested that the decision could disrupt some election litigation. That prediction is coming true.

Yesterday, in Citizens Project v. Colorado Springs, a federal court dismissed Voting Rights Act claim on the ground that the plaintiffs lacked standing. From the decision (lightly revised):

Organizations, like Plaintiffs, have two methods to achieve Article III standing. They can claim organizational standing because they suffered an injury of their own, or they can claim associational standing based on injuries suffered by their members. Id. But Plaintiffs do not claim associational standing. Thus, for Article III purposes, they must demonstrate they have organizational standing.

As noted above, each Plaintiff claims a diversion of its resources for purposes of the injury-in-fact component of Article III standing. According to Plaintiffs, these reroutes include things like diverting time, money, and resources from their other civic or voter engagement activities and their day-to-day operations; duplicating November “get out the vote” efforts; diverting limited employee and volunteer capacity; and deprioritizing other activities preceding April off-year elections.

But these are the same types of injuries the medical-association plaintiffs claimed in Alliance for Hippocratic Medicine, and which the Supreme Court rejected for purposes of organizational standing. There, four pro-life medical associations (along with physicians) sought judicial review under the Administrative Procedure Act in their challenge to the Food and Drug Administration’s (FDA) approval of standards surrounding the administration of mifepristone—a medical abortion-inducing drug. Relying on the Supreme Court’s decision in Havens Realty Corp. v. Coleman, 455 U.S. 363 (1982), the medical associations claimed they had suffered their own injuries for Article III standing purposes . . .

The Supreme Court deemed these injuries insufficient to confer organizational standing. Drawing a contrast, it explained that the injuries claimed by the organization in Havens directly affected and interfered with that organization’s “core business activities [of providing housing counseling services to low-income persons]—not dissimilar to a retailer who sues a manufacturer for selling defective goods to the retailer.” It found the FDA’s actions imposed no similar impediment on the medical associations’ advocacy business. Id. And it cautioned that “Havens was an unusual case, and this Court has been careful not to extend the Havens holding beyond its context.” Speaking of the diversion-of-resource injuries claimed by the medical associations, the Supreme Court explained that “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.” Yet this is what Plaintiffs appear to have done here—i.e., manufacture their
own standing.

In late June, the Sixth Circuit issued a decision in Tennessee Conference for the NAACP v. Lee, a challenge to Tennessee’s “documentation policy” for voter registration for individuals with felony convictions. The decision, among other things, noted this (lightly revised):

The NAACP must instead show that the Documentation Policy causes it to suffer a concrete injury that its requested remedy would redress.

To satisfy these elements, the NAACP invokes a “diversion-of-resources” theory of standing. . . .

. . . Just weeks ago, the Supreme Court clarified that Havens’s “unusual” facts did not support a categorical rule allowing standing whenever “an organization diverts its resources in response to a defendant’s actions.”

The NAACP’s diversion-of-resources theory likely falls short under this law. . . .

On the one hand, the NAACP may no longer be able to rely on Havens to support its standing given that case’s “unusual” facts. Havens had directly harmed HOME because it had given one of HOME’s own employees “false information” and so had violated HOME’s right to truthful information under the Fair Housing Act. Unlike HOME, the NAACP points to no evidence showing that the Documentation Policy “directly” injured it. As noted, the policy did not apply to the NAACP at all. To be sure, the NAACP alleged an indirect “pocketbook” harm from the policy. The policy has made the nonprofit’s voter-registration efforts more costly by requiring it to spend “extra time and money” on those efforts. But the medical associations in Alliance for Hippocratic Medicine identified a “pocketbook” harm too. They alleged that the FDA regulations had rendered their public-education efforts more costly by forcing them to devote extra time and expense to informing the public about the risks of the abortion drug. Yet the Supreme Court held that these pocketbook injuries did not establish their standing to sue the FDA. Id. If the associations’ expenditures did not suffice in that case, why should the NAACP’s expenditures suffice in this one?

On the other hand, perhaps the NAACP can rely on a Havens-like standing theory. Alliance for Hippocratic Medicine said that the medical associations did not have standing because a plaintiff “cannot spend its way into standing simply by expending money to gather information and advocate against the defendant’s action.” Yet HOME did more than engage in issue advocacy. It “also operated a housing counseling service.” And Havens’s actions “interfered with HOME’s core business activities.” In this case, too, the NAACP arguably alleges that it is in the business of registering voters—not merely gathering information and advocating against the law. As for the directness of the harm, Alliance for Hippocratic Medicine did not question—and, indeed, approvingly cited—many other cases in which the Court has allowed “unregulated” parties to sue a defendant even though the defendant’s conduct harmed those parties indirectly. A State’s tax on a manufacturer, for example, might give the manufacturer’s customers standing by raising their prices for some commodity. If a customer’s expenditure for the commodity sufficed to give it standing, why shouldn’t the NAACP’s expenditure for its
voter-registration efforts?

In short, Alliance for Hippocratic Medicine creates uncertainty over when a plaintiff’s own choice to spend money can give it standing to challenge a government action that allegedly caused the expenditure. . . .

. . . whether or not the NAACP’s standing theory remains tenable, its president’s declaration likely fails to “identify ‘specific facts, as opposed to general allegations,’” to prove the theory. . . .

. . . the district court likely erred when it found them sufficient to conclude “as a matter of law” that the NAACP had standing.

I assume election plaintiffs will change in their strategy in how they demonstrate standing in the years ahead, but these cases show that FDA v. AHM will sweep more broadly than one might have assumed.

Share this: