In June, I noted that the Supreme Court’s decision in FDA v. AHM might result in an uptick in election law cases where plaintiffs would lose cases for lack of standing for plaintiffs who claimed a “diversion of resources” theory of injury, often citing a case called Havens Realty. In July, I noted this happened quickly in some courts. Last week, a Ninth Circuit panel in Arizona Alliance for Retired Americans v. Mayes tossed one claim under FDA v. AHM, with a divided panel questioning the future of FDA v. AHM for standing doctrine. (The panel also found against the plaintiffs on the merits of another claim unanimously.) The claim related to an Arizona law, which is, as the majority put it, “a provision that allows the cancellation of a voter’s registration if a county receives ‘confirmation from another county’ that the voter has moved and is registered in that new county (‘Cancellation Provision’).” If it stands, it could have significant consequences, in election law cases and beyond, in a large part of the federal judiciary.

Judge Lee, joined by Judge Collins, wrote (lightly edited):

We have often said that Havens Realty does not allow organizations to vindicate abstract interests or spend their way into Article III standing, but our cases have been less clear, and often conflicting, on what then a plaintiff must do to show injury. See Nielsen v. Thornell, 101 F.4th 1164, 1181–82 (9th Cir. 2024) (Collins, J., dissenting) (arguing for a narrow reading of our confusing precedents, many of which “applied Havens Realty in summary fashion” and with “no detailed analysis”). So in practice, we often paid lip service to a more stringent standing requirement, but many of our cases seemed effectively to allow plaintiffs to assert standing merely by expending resources in furtherance of “strong moral, ideological, or policy objection[s] to a government action.” Hippocratic Medicine, 602 U.S. at 381.

But as the Supreme Court has now clarified, Havens Realty never discussed frustrating an abstract organizational mission—it discussed the direct impact of racial steering on HOME’s “core business activities.” In loosely characterizing Havens Realty as a case about missions and goals, our cases lost sight of that crucial limitation. . . .

. . . In other words, our case law has suggested that an organization suffers cognizable harm because it voluntarily spends money to further its goals.

Many judges on this circuit have highlighted how this circuit’s expansion of Havens Realty went astray. . . . After the Supreme Court’s decision in Hippocratic Medicine, we can no longer follow our overbroad reading of Havens Realty. . . .

. . . These precedents are thus irreconcilable with Hippocratic Medicine—and thus overruled. . . .

The plaintiffs have not shown they have standing to challenge the Cancellation Provision. The plaintiffs speculate that they might in the future need to divert resources because the Cancellation Provision could cause voters’ current registrations—rather than old, outdated registrations—to be cancelled. And the plaintiffs allege that this interferes with their mission to encourage minority voter registration. This conjecture-laden theory is insufficient under Article III.

And from Judge Nguyen’s dissent:

I strongly dissent from the majority’s holding that plaintiffs lack standing to challenge the Cancellation Provision. The majority’s deeply flawed analysis improperly conflates standing with the merits; usurps the district court’s role as factfinder by raising and resolving a standing issue for the first time on appeal; ignores plaintiffs’ actual evidence; and confuses a third-party standing injury with the direct organizational injury here. Worse still, the majority erroneously overrules several cases as irreconcilable with FDA v. Alliance for Hippocratic Medicine, 602 U.S. 367, 395–96 (2024), which breaks no new ground on the standing doctrine.

Given how frequently the Ninth Circuit has been a target for plaintiffs–not only in state election cases in places like Arizona and Nevada, but also for, say, federal immigration policy and other kinds of federal executive action–the ripple effect of this case could be quite significant, in election law and beyond. 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. But, as I highlighted this summer, it certainly requires ongoing reconsideration among plaintiffs about how they structure their cases.