The full (en banc) Ninth Circuit ruled on Friday that voter-rights organizations lacked standing to challenge one Arizona election law, and that they were not likely to win in their challenge against another.
The standing ruling is significant, because it walks-back the Ninth Circuit’s more permissive approach to organizational standing in light of FDA v. Alliance of Hippocratic Medicine. (The Supreme Court held in that case that pro-life medical associations lacked standing to challenge the FDA’s approval of mifepristone–a drug designed to end a pregnancy. The Court rejected the organizational plaintiffs’ theory that they were harmed because the FDA action caused them to conduct their own studies and to expend resources to draft citizen petitions to FDA and to engage in public advocacy.) Moreover, the case illustrates the standing hurdles to pre-enforcement challenges of states’ elections laws, again in light of Alliance for Hippocratic Medicine.
The case, Arizona Alliance for Retired Americans v. Mayes, challenged two provisions in Arizona’s election law: (1) a requirement that a county recorder cancel a voter’s registration in that county if the voter moves to and registers to vote in a new county; and (2) a provision that criminalizes knowingly providing a “mechanism for voting” to someone registered to vote in another state.
The court ruled that the plaintiff voting-rights organizations lacked standing to challenge the first provision, the “cancellation provision.” The plaintiffs alleged that the provision would interfere with their voter-registration activities, and that they’d have to spend time and resources to assist voters with cancelling old registrations when they register in a new county, and that they’d have to divert resources to educate voters about the provision’s effects.
The court said that these harms didn’t cut it under Alliance for Hippocratic Medicine. The court wrote that the alleged harms lacked record support and were highly speculative, and that “the Organizations’ expenditures to better inform their members and the public about [the Cancellation Provision’s] risks” and “to engag[e] in public advocacy and public education” do not confer standing.
As to the criminal provision, the court held that the plaintiff organizations had standing for pre-enforcement review. But it went on to say that they weren’t likely to succeed on the merits, because “mechanism for voting” didn’t encompass their “voter registration and mobilization” activities.
Judge Bress, joined by four other judges, concurred and argued that the court didn’t “engage fully with the core reasoning of Alliance for Hippocratic Medicine, including by not acknowledging key parts of that decision.”
Judge VanDyke separately concurred, joining Judge Bress’s decision and adding that the court should modify its approach to organizational standing.
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