Tommy Hanes David Calderwood, M.D. and Focus on America v. John Merrill, in his official capacity as Alabama Secretary of State, and Bill English, Wes Allen, Clay Crenshaw, Jeff Elrod, and Will Barfoot, in their official capacities as members of the Alabama Electronic Voting Committee ( 2023 )

Rel: April 7, 2023
Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern
Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts,
300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-0650), of any typographical or other
errors, in order that corrections may be made before the opinion is printed in Southern Reporter.
SUPREME COURT OF ALABAMA
OCTOBER TERM, 2022-2023
_________________________
SC-2022-0869
_________________________
Tommy Hanes, David Calderwood, and Focus on America
v.
John Merrill, in his official capacity as Alabama Secretary of
State, and Bill English, Wes Allen, Clay Crenshaw, Jeff Elrod,
and Will Barfoot, in their official capacities as members of the
Alabama Electronic Voting Committee
Appeal from Montgomery Circuit Court
(CV-22-900595)
SELLERS, Justice.
SC-2022-0869
Tommy Hanes, David Calderwood, and Focus on America ("the
plaintiffs")1 appeal from the judgment of the Montgomery Circuit Court
dismissing their claims against John Merrill, in his official capacity as
the Alabama Secretary of State, and Bill English, Wes Allen, Clay
Crenshaw, Jeff Elrod, and Will Barfoot, in their official capacities as
members of the Alabama Electronic Voting Committee ("the
committee").2
I. Facts
In May 2022, the plaintiffs commenced this action, seeking
declaratory and injunctive relief. The complaint related to the general
1Hanes was a candidate in the November 2022 general election who
unsuccessfully sought reelection to the Alabama House of
Representatives; he asserted standing to bring the complaint as a voter
and qualified elector. Calderwood is a resident of Madison County who
asserted standing to bring the complaint as a voter and qualified elector.
Focus on America is a tax-exempt, nonprofit, social-welfare organization
under 26 U.S.C. § 501(c)(4), a part of the Internal Revenue Code, that,
according to the complaint, operates in DeKalb County "to assist
members of the public in becoming better informed members of their
community" and that generally asserted standing to bring the complaint.
2Merrill is no longer the Alabama Secretary of State, and it appears
that the membership of the committee might have changed as well. Rule
25(d), Ala. R. Civ. P., and Rule 43(b), Ala. R. App. P., provide that if a
public officer is a party to an action or an appeal in an official capacity
and the officer ceases to hold office during the pendency of the action or
the appeal, the officer's successor is automatically substituted as a party.
2
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use of electronic-voting machines in the November 2022 general
statewide election and in all future elections. The plaintiffs primarily
sought to enjoin the usage of electronic-voting machines to count ballots.
They specifically sought an order requiring that the 2022 election be
conducted by paper ballot, with three individuals as independent
counters who would manually count each ballot in full view of multiple
cameras that could record and broadcast the counting proceedings,
among other measures. The plaintiffs claim that the use of electronic-
voting machines is so insecure, both inherently and because of the alleged
failures of the secretary of state and the committee members ("the
defendants") in certifying the machines, that it has infringed upon their
constitutional right to vote, or, in the case of Focus on America, the right
to vote of those persons it represents.
The defendants filed a motion to dismiss pursuant to Rule 12(b)(1)
and Rule 12(b)(6), Ala. R. Civ. P. They argued that the plaintiffs lacked
standing, that the claims were moot, that State or Sovereign immunity
under Art. I, § 14, of the Alabama Constitution barred the claims, that
the complaint failed to state a claim upon which relief could be granted,
and that the court lacked jurisdiction pursuant to § 17-16-44, Ala. Code
3
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1975, also known as the "jurisdiction-stripping statute." The plaintiffs
filed a motion for a preliminary injunction, seeking to suspend the use of
electronic-voting machines in the November 2022 general election and in
all future elections. The circuit court held a hearing on both motions.
Following the hearing, the circuit court entered a judgment dismissing
the complaint and denying the plaintiffs' motion for preliminary
injunctive relief. In that judgment, the circuit court found that the
jurisdiction-stripping statute barred the plaintiffs' action, that the
plaintiffs lacked standing, that the complaint failed to state a claim upon
which relief could be granted, and that sovereign immunity barred the
plaintiffs' claims. This appeal followed.
II. Standard of Review
In an appeal of a circuit court's judgment granting a motion to
dismiss, the applicable standard of review has been stated as follows:
"A ruling on a motion to dismiss is reviewed without a
presumption of correctness. Nance v. Matthews, 622 So. 2d
297, 299 (Ala.1993). This Court must accept the allegations of
the complaint as true. Creola Land Dev., Inc. v. Bentbrooke
Housing, L.L.C., 828 So. 2d 285, 288 (Ala. 2002).
Furthermore, in reviewing a ruling on a motion to dismiss we
will not consider whether the pleader will ultimately prevail
but whether the pleader may possibly prevail. Nance, 622 So.
2d at 299."
Newman v. Savas, 878 So. 2d 1147, 1148-1149 (Ala. 2003).
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In addition, this Court has stated:
" ' "[A] court ruling on a Rule 12(b)(1)[, Ala. R. Civ.
P.,] motion to dismiss 'may consider documents outside the
pleadings to assure itself that it has jurisdiction.' Al-Owhali
[v. Ashcroft], 279 F. Supp. 2d [13,] 21 [(D.D.C. 2003)]; see
also Haase v. Sessions, 835 F.2d 902, 906 (D.C. Cir. 1987) ('In
12(b)(1) proceedings, it has been long accepted that the
judiciary may make appropriate inquiry beyond the pleadings
to satisfy itself on [its] authority to entertain the case.'
(internal citations and quotation marks omitted)). The level of
scrutiny with which the Court examines the allegations in the
complaint that support a finding of jurisdiction, however,
depends upon whether the motion to dismiss asserts a facial
or factual challenge to the court's jurisdiction. See I.T.
Consultants v. Pakistan, 351 F.3d 1184, 1188 (D.C. Cir. 2003).
" ' "Facial challenges, such as motions to dismiss for lack
of standing at the pleading stage, 'attack[] the factual
allegations of the complaint that are contained on the face of
the complaint.' Al-Owhali, 279 F. Supp. 2d at 20 (internal
quotation marks and citation omitted). 'If a defendant mounts
a "facial" challenge to the legal sufficiency of the plaintiff's
jurisdictional allegations, the court must accept as true the
allegations in the complaint and consider the factual
allegations of the complaint in the light most favorable to the
non-moving party.' Erby [v. United States,] 424 F. Supp. 2d
[180,] 181 [(D.D.C. 2006)]; see also I.T. Consultants, 351 F.3d
at 1188. The court may look beyond the allegations contained
in the complaint to decide a facial challenge, 'as long as it still
accepts the factual allegations in the complaint as true.' Abu
Ali [v. Gonzales,] 387 F. Supp. 2d [16,] 18 [(D.D.C. 2005)]; see
also Jerome Stevens Pharm., Inc. v. Food & Drug Admin., 402
F.3d 1249, 1253-54 (D.C. Cir. 2005) ('At the pleading stage ....
[w]hile the district court may consider materials outside the
pleadings in deciding whether to grant a motion to dismiss for
lack of jurisdiction, the court must still accept all of the factual
allegations in the complaint as true.' (internal citations and
quotation marks omitted))." ' "
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Munza v. Ivey, 334 So. 3d 211, 216 (Ala. 2021) (quoting Ex parte Safeway
Ins. Co. of Alabama, 990 So. 2d 344, 349 (Ala. 2008), quoting in turn
Lindsey v. United States, 448 F. Supp. 2d 37, 43 (D.D.C. 2006).
III. Analysis
The plaintiffs present several arguments on appeal. For the reasons
stated below, we conclude that they lacked standing to pursue this action
and, therefore, we pretermit discussion of the plaintiffs' other arguments.
A. Standing in General
The plaintiffs lacked standing, both to challenge the use of
electronic-voting machines and to challenge the defendants' actions in
certifying them. In "public-law cases," such as this case, standing is an
absolute necessity for a court to obtain subject-matter jurisdiction. See
Ex parte BAC Home Loans Servicing, LP, 159 So. 3d 31, 44 (Ala. 2013);
State v. Property at 2018 Rainbow Dr., 740 So. 2d 1025, 1028 (Ala. 1999).
To determine whether a party has standing, we employ the test set forth
in Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992). Ex parte Aull, 149
So. 3d 582 (Ala. 2014). Principally, under that test, the plaintiffs must
demonstrate "an actual, concrete and particularized 'injury in fact' -- 'an
invasion of a legally protected interest.' " Alabama Alcoholic Beverage
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Control Bd. v. Henri-Duval Winery, L.L.C., 890 So. 2d 70, 74 (Ala. 2003)
(quoting Lujan, 504 U.S. at 560). An injury in fact must be " '(a) concrete
and particularized, and (b) "actual or imminent, not 'conjectural' or
'hypothetical.' " ' " Ex parte Alabama Educ. Television Comm'n, 151 So. 3d
283, 287 (Ala. 2013) (quoting Lujan, 504 U.S. at 560).
Applying the Lujan test, it is clear that the plaintiffs have alleged
only a conjectural, hypothetical, injury. 3 The plaintiffs argue that
because of the nature of electronic-voting machines and the defendants'
actions in certifying such machines, the vote tallies for elections cannot
be trusted, thus diminishing the value of Hanes's and Calderwood's votes
or the votes of persons Focus on America represents. Specifically, they
contend that somebody could "potentially" tamper with the machines,
connect them to the Internet, and use that connection to distort the vote
3We note that an amicus brief was filed in this case. That brief
requested, in essence, that we overrule our precedent applying the Lujan
test for standing. This Court has stated that it "will not decide a question
presented by amicus curiae which was not presented by the parties to the
cause, and will leave the question for decision when properly raised and
presented." State ex rel. Baxley v. Johnson, 293 Ala. 69, 74, 300 So. 2d
106, 110 (1974) (citing Alabama-Tennessee Nat. Gas Co. v. City of
Huntsville, 275 Ala. 184, 153 So. 2d 619 (1963)). Because the parties'
arguments fall completely within the framework of Lujan and our
precedent, we will not consider the amicus's arguments, which go far
beyond the scope of the parties' briefs and the plaintiffs' request for relief.
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totals so significantly as to undermine their constitutional right to vote.
However, the plaintiffs do not allege that any such behavior actually
occurred in Alabama. Rather, they merely argue that the possibility of
those things occurring infringes upon their right to vote.
The injury alleged in the plaintiffs' complaint is, by definition,
conjectural. See Storino v. Borough of Point Pleasant Beach, 322 F.3d
293, 297-98 (3d Cir. 2003) (observing that "one cannot describe how the
[plaintiffs] will be injured without beginning the explanation with the
word 'if' "). The plaintiffs' injury argument relies entirely upon
hypotheticals and unspecified potentialities. Their complaint does little
more than suggest the possibility that the use of electronic-voting
machines " 'could' impact the fairness and accuracy of elections." Ex parte
Merrill, 264 So. 3d 855, 864 (Ala. 2018). It does not assert that any
Alabama votes have actually been miscounted or that vote totals have
been altered to achieve an inaccurate election result. In other words, the
plaintiffs do not "demonstrate how the 'challenged practices harm' "
them; rather, they "allege only that they 'could' be harmed." Id. (quoting
Ex parte HealthSouth Corp., 974 So. 2d 288, 293 (Ala. 2007)). The
plaintiffs discuss many things that could go wrong and ultimately lead to
8
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the dilution of their votes. But they fail to allege anything that has gone
wrong. As a result, the plaintiffs have failed to allege an injury in fact.
They thus lacked standing to pursue the claims contained in their
complaint because they alleged a hypothetical injury, i.e., one that is
conjectural rather than actual.
B. Taxpayer Standing
On appeal, the plaintiffs also argue that they possessed standing as
taxpayers to challenge the past purchases of the electronic-voting
machines and laptop computers ("the laptops") used to administer vote-
counting functions. The plaintiffs point to the principle that "taxpayers
have an equitable ownership in the public funds and will be responsible
for replenishing the public funds if those funds are misappropriated, and,
thus, a taxpayer suffers an injury when public funds are illegally spent."
Ingle v. Adkins, 256 So. 3d 62, 71 (Ala. 2017) (plurality opinion). Indeed,
we have "continually held that taxpayers have standing to seek an
injunction against public officials to prevent illegal payments from public
funds." Id. However, the laptops and electronic-voting machines have
already been purchased. The principle espoused in Ingle serves only to
"prevent illegal payments from public funds." Id. (emphasis added). The
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plaintiffs cite no authority and make no argument regarding why that
principle should apply to past purchases. Even the plaintiff in Ingle
"acknowledge[d] that she may not have [had] standing 'to recover monies
which [had] already been illegally expended.' " Id. at 66. This Court has
explicitly held as much, stating that "[the plaintiffs'] status as taxpayers
is not sufficient to confer upon them standing to sue a state official to
recover public funds allegedly wrongfully expended because of the acts of
that official." Beckerle v. Moore, 909 So. 2d 185, 188 (Ala. 2005). Although
we make no determination regarding the legality of the purchases in
question, we reiterate that a state official's allegedly improper
expenditure of funds in the distant past does not give taxpayers standing
to challenge that expenditure. It logically follows then that, when a past
expenditure of state funds -- whether legitimate, illegal, or improper --
has only a marginal relation to the matter complained of, taxpayer status
not only does not confer standing to challenge the expenditure of the
funds, but also does not confer standing to challenge the marginally
related matter. In short, the defendants' past purchase of the electronic-
voting machines and laptops does not provide a platform for the plaintiffs
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to obtain standing to seek to enjoin the conduct of elections. As a result,
the plaintiffs also lacked taxpayer standing to pursue their claims.4
IV. Conclusion
For the foregoing reasons, the plaintiffs lacked standing to pursue
their claims, thus depriving the circuit court of jurisdiction over their
complaint. Accordingly, the judgment dismissing the complaint is due to
be affirmed.
AFFIRMED.
Mendheim and Stewart, JJ., concur.
Mitchell and Cook, JJ., concur specially, with opinions.
Parker, C.J., concurs in part and concurs in the result, with opinion.
Shaw and Bryan, JJ., concur in the result.
Wise, J., recuses herself.
4In their complaint, the plaintiffs also requested that the circuit
court order the release of all "records, communications, contracts, notes
… stored by [the defendants] to the Public as required by Alabama law."
The plaintiffs have at no point presented a basis for the release of any
such records. Further, for the reasons stated above, the plaintiffs lacked
standing to make such a request.
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MITCHELL, Justice (concurring specially).
I concur in the decision to affirm the trial court's judgment based
on our current precedent. I write separately to second Justice Cook's call
to reconsider our Court's adoption of the federal standing test announced
in Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992). I would like to see
that reconsideration occur in a case in which a party has properly asked
us to undertake that review and (perhaps along with amici) given us
fulsome argument on this issue.
12
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COOK, Justice (concurring specially).
I concur fully in the main opinion. I write specially for three
reasons.
First, I wish to emphasize that the separation of powers is one of
the reasons for the doctrine of standing. As the main opinion notes, the
plaintiffs' fears are, at this point, conjectural. If they believe policy needs
to change, that is for the Legislature or the Executive Branch to
undertake. The People of Alabama elect members of the Legislature and
the Executive Branch to investigate policy, to balance competing policy
objectives, to balance competing spending demands, and to make policy
choices. The People of Alabama hold (and should hold) the members of
the Legislature and the Executive Branch accountable for their policy
choices. It is almost never the role of this Court (or any court) to create
procedures and regulations, and yet the plaintiffs in this action are
asking this Court to do just that -- listing in their complaint two pages of
detailed "procedures which should be implemented." If the plaintiffs
truly want such procedures and regulations to be created, they should
present their proposals to the members of the Legislature and the newly-
elected Secretary of State.
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Second, with regard to the amicus brief filed by the Alabama Center
for Law and Liberty, which requested, in essence, that we overrule our
precedent applying the Lujan test for standing, I note that I agree that
this Court should consider, in the right case, the proper standard for
standing under the Alabama Constitution. Although I have no fixed
opinion on this issue, I believe that it deserves careful consideration and
that we should not simply adopt the federal standard without considering
any relevant differences between the Alabama Constitution and the
Constitution of the United States. As for the present case, the main
opinion correctly follows existing Alabama precedent, and neither the
plaintiffs nor the defendants have requested that we overrule that
precedent. However, should this issue be raised in a future, appropriate
case, this Court could consider holding oral argument so that the parties
-- and the members of the Bar -- can benefit from our full consideration
of this issue.
Finally, in a footnote, the main opinion indicates that the plaintiffs
requested records from the Secretary of State but "have at no point
presented a basis for the release of any such records." ___ So. 3d at ___
n.4. I note that Alabama law provides an avenue to request records of
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government agencies and to seek review of failures to provide records; it
also provides certain exceptions to disclosure of such records. However,
this issue was not argued by the plaintiffs in their briefs and is, therefore,
waived. See Douglas v. Roper, [Ms. 1200503, June 24, 2022] ____ So. 3d
____, ____ (Ala. 2022) ("Arguments not raised in an appellant's initial
brief are deemed waived.").
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PARKER, Chief Justice (concurring in part and concurring in the result).
The plaintiffs have raised serious allegations about the integrity of
our State's voting system. "Free, fair elections are the lifeblood of our
democracy. Charges of unfairness are serious." Donald J. Trump for
President, Inc. v. Secretary of Commonwealth, 830 F. App'x 377, 381 (3d
Cir. 2020). This Court's affirmance of the dismissal of the plaintiffs'
complaint for lack of standing in no way diminishes the fact that, in an
appropriate forum and through the appropriate means, the integrity and
security of our elections must be carefully protected, including in our
courts. The responsibility of all the officials of Alabama to secure our
elections remains undiminished by the dismissal of the plaintiffs'
complaint.
I agree that the plaintiffs' complaint was insufficient to meet the
requirements for standing. However, I base this conclusion on the
redressability requirement, not the injury-in-fact requirement.
Moreover, I believe that our analysis of standing should return, as an
amicus curiae brief by the Alabama Center for Law and Liberty ("ACLL")
has effectively highlighted, to the common law's understanding, which
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was based on the distinction between private and public rights. 5 I concur
in part III.B of the main opinion and its discussion of taxpayer standing.
My disagreement is with regard to part III.A's discussion of the more
general requirements for standing, and as to that part I concur in the
5The main opinion states that, because the framework of standing
stated in Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992), is not
challenged by the parties, "we will not consider the amicus's arguments,
which go far beyond the scope of the parties' briefs and the plaintiffs'
request for relief." __ So. 3d at __ n.3. The main opinion emphasizes past
precedent indicating that we do not decide questions that are raised by
amici but are not presented by the parties. I certainly agree that, if an
amicus presents an entirely new ground for reversal of the judgment, it
is not appropriate to reverse on that ground. But I do not agree that
parties must challenge the framework of past precedent for us to be
willing to reconsider it. If a case was wrongly decided, we can and should
say so when necessary, without waiting for a party to argue that it was.
Justice Mitchell and I have previously invited parties, amici, and
scholars to address the Alabama Constitution's original meaning. See
Barnett v. Jones, 338 So. 3d 757, 766-69 (Ala. 2021) (Mitchell, J., joined
by Parker, C.J., concurring specially); Glass v. City of Montgomery, [Ms.
1200240, Feb. 11, 2022] ___ So. 3d ___, ___ & n.3 (Ala. 2022) (Mitchell, J.,
concurring in part and concurring in the result); id. at ___ n.4 (Parker,
C.J., dissenting); Young Americans for Liberty at Univ. of Alabama in
Huntsville v. St. John, [Ms. 1210309, Nov. 18, 2022] ___ So. 3d ___, ___
(Ala. 2022) (Parker, C.J., concurring in part and concurring in the result);
Gulf Shores City Bd. of Educ. v. Mackey, [Ms. 1210353, Dec. 22, 2022]
___ So. 3d ___, ___ (Ala. 2022) (Parker, C.J., concurring in part and
concurring in the result); id. at ___ (Mitchell, J., concurring in part and
concurring in the result). I commend the ACLL's responsive attempt to
do just that in this case, and I reiterate my invitation for amici to brief
this Court on the Alabama Constitution's original meaning in future
cases.
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result. To understand standing, "we must 'refer directly to the
traditional, fundamental limitations upon the powers of common-law
courts.' " Spokeo, Inc. v. Robins, 578 U.S. 330, 334 (2016) (Thomas, J.,
concurring) (quoting Honig v. Doe, 484 U.S. 305, 340 (1988) (Scalia, J.,
dissenting)).
The standing inquiry depends on the nature of the claimed right,
public or private. TransUnion LLC v. Ramirez, 594 U.S. ___, ___, 141 S.
Ct. 2190, 2217 (2021) (Thomas, J., dissenting); see Spokeo, 578 U.S. at
344-46 (Thomas, J., concurring); Thole v. U.S. Bank N.A., 590 U.S. ___,
___, 140 S. Ct. 1615, 1618-19 (2020); Sierra v. City of Hallandale Beach,
996 F.3d 1110, 1139 (11th Cir. 2021) (Newsom, J., concurring). I believe
that Alabama law historically reflected this public/private distinction.
Twenty years ago, however, our Court made the standing inquiry
universal by applying United States Supreme Court precedent regarding
public rights to a private breach-of-contract action. See Avis Rent A Car
Sys., Inc. v. Heilman, 876 So. 2d 1111, 1119 (Ala. 2003). Applying public-
right principles to private-right cases was flawed, but thankfully, our
Court has begun returning to the historic public/private distinction. See
Ex parte BAC Home Loans Servicing, LP, 159 So. 3d 31, 39-46 (Ala.
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2013). I view this return as a positive development, because this
distinction is rooted in the common law.
The distinction between private and public rights is thoroughly
described in the work of William Blackstone, whose work, as I have
highlighted elsewhere, was integral to the development of the American
legal tradition. See, e.g., Young Americans for Liberty at Univ. of
Alabama in Huntsville v. St. John, [Ms. 1210309, Nov. 18, 2022] ___ So.
3d ___, ___ (Ala. 2022) (Parker, C.J., concurring in part and concurring
in the result). Blackstone distinguished between private wrongs that are
"an infringement or privation of the private or civil rights belonging to
individuals, considered as individuals," and public wrongs that "are a
breach and violation of public rights and duties, which affect the whole
community, considered as a community." 3 William Blackstone,
Commentaries *2. Under Blackstone's conception, the executive, in his
case the king, is "in all cases the proper prosecutor for every public
offense." 4 Blackstone, Commentaries *2.
Justice Clarence Thomas has thoroughly demonstrated how this
distinction categorizes "standing" cases. See TransUnion, 594 U.S. at ___,
141 S. Ct. at 2217 (Thomas, J., dissenting). On the one hand, if an
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individual is suing for a violation of a private right, "standing" requires
a cause of action, not an independent injury proved apart from the cause
of action itself. "[W]here the law gives an action for a particular act, the
doing of that act imports of itself a damage to the party" because "[e]very
violation of a right imports some damage." Whittemore v. Cutter, 29 F.
Cas. 1120, 1121 (Story, Circuit Justice, C.C.D. Mass. 1813). These private
rights may be recognized by common law or by statute. "In a suit for the
violation of a private right, courts historically presumed that the plaintiff
suffered a de facto injury [if] his personal, legal rights [were] invaded."
Spokeo, 578 U.S. at 344 (Thomas, J., concurring). In contrast, when an
individual sues on the basis of a duty owed to the community, standing
requires "not only injuria [legal injury] but also damnum [damage]." Id.
at 346. "Public rights can most paradigmatically be vindicated by the
government itself. But they can also be vindicated by private people if
those people suffered 'special damage' that distinguishes them from other
members of the public." William Baude, Standing in the Shadow of
Congress, 2016 Sup. Ct. Rev. 197, 228 (2016) (footnotes omitted); see F.
Andrew Hessick, Standing, Injury in Fact, and Private Rights, 93 Cornell
L. Rev. 275 (2008); Ann Woolhandler & Caleb Nelson, Does History
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Defeat Standing Doctrine?, 102 Mich. L. Rev. 689 (2004); Cass R.
Sunstein, Injury in Fact, Transformed, 2021 Sup. Ct. Rev. 349 (2021);
Jacob Phillips, Transunion, Article III, and Expanding the Judicial Role,
23 Federalist Soc'y Rev. 186 (2022). What this means, practically, is that
standing should not be an independent inquiry in private-right cases;
instead, a court should ask solely whether the plaintiff has a cause of
action. "By contrast, courts have required the government to bring
actions -- most notably, criminal prosecutions -- that alleged injuries to
generalized, shared interests and that sought remedies accruing to the
public." Sierra, 996 F.3d at 1135-36 (Newsom, J., concurring).
This view is not merely a view of federal judges. Alabama cases
confirm this view and require injury in public-right cases. As the
plaintiffs highlight in their brief, in Jones v. Black, 48 Ala. 540 (1872),
this Court explained the standing requirements in public-right cases.
Electors sought to challenge a judicial election as illegitimate. The Court
emphasized that it will not "listen to an objection made to the
constitutionality of an act of the legislature by a party whose rights it
does not specially affect." Id. at 543.
"A party who seeks to have an act of the legislature
declared unconstitutional, must not only show that he is, or
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will be injured by it, but he must also show how and in what
respect he is or will be injured and prejudiced by it. Injury will
not be presumed; it must be shown."
Id. Because the electors did "not state how or in what manner they are or
will be injured or prejudiced at all, either in their persons, their property
or their rights, by the election," their lawsuit was dismissed. Id. The
plaintiffs do not challenge Jones, which has been regularly cited by our
Court since it was decided, or contend that the decision was erroneous in
some way. Jones requires that, when suing on the basis of the violation
a public right, a plaintiff must establish injury in fact, unlike a plaintiff
suing based on a private right.
More recently, our Court has begun returning to the distinction
between public rights and private rights as central to a proper analysis
of whether a standing inquiry is required.
"The problem identified by Judge Pittman and others is
a function of the fact that the concept of standing was
developed by the United States Supreme Court for 'public law'
cases, see, e.g., Lujan v. Defenders of Wildlife, 504 U.S. 555,
112 S.Ct. 2130, 119 L.Ed.2d 351 (1992), not 'private law' cases.
In the absence of defined elements as exist in established
private causes of action, the concept of standing is used to
differentiate between those complaints regarding
governmental action that are shared generally by the
citizenry and that therefore must be addressed politically and
those complaints that reflect a sufficient specific injury and
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consequent adverseness to make for a 'case' that is within the
purview of the judicial branch. Accordingly, the concept
appears to have no necessary role to play in respect to private-
law actions, which, unlike public-law cases (for example, a
suit against the Secretary of Interior to construe and enforce
an environmental regulation designed to protect wildlife),
come with established elements that define an adversarial
relationship and 'controversy' sufficient to justify judicial
intervention. In private-law actions (e.g., a claim of negligence
or, as here, a statutory claim for ejectment), if the elements
are met, the plaintiff is entitled to judicial intervention; if they
are not met, then the plaintiff is not entitled to judicial
intervention. Everything necessary to justify judicial
intervention, by definition, inheres in those elements that we
say constitute a 'cause of action' in and by our courts. What
need is there to distill from those elements and label some
additional gate-keeping notion? At a very fundamental level,
the concept of standing is already embodied in the various
elements prescribed, including the common requirement of
proof of a sufficient existing or threatened injury.
"Professors Wright and Miller are just two of the
commentators who have recognized that the concept of
standing was formulated by the United States Supreme Court
in the field of 'public law' -- constitutional or other challenges
to the actions of officials or administrative agencies -- and is
out of place in private-law cases."
BAC, 159 So. 3d at 44.
The distinction this Court drew between public-law and private-law
cases did not originate with us, but with Blackstone, and it is
fundamental to the role of common-law courts. Therefore, when this
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Court addresses standing, our inquiry should always begin with whether
a plaintiff is suing based on a private right or a public right. If a plaintiff
is suing based on a private right, such as in tort, in contract, based on
property rights, or the like, no independent "standing" inquiry is
necessary. Defendants are of course free to allege that the plaintiff failed
to state a claim under Rule 12(b)(6), Ala. R. Civ. P., but there is no
separate standing requirement. In contrast, standing, including injury in
fact, is a requirement with robust history and tradition in its support in
cases involving public rights.
As the defendants' brief highlights in response to the ACLL's
amicus brief, the plaintiffs' claims about purported risks of fraud in the
State's electoral system are not private-right claims but claims based on
threats to the public as a whole. To assert a claim based on a public right,
a party must assert an injury in fact. "The [Supreme] Court has said time
and again that, when a plaintiff seeks to vindicate a public right, the
plaintiff must allege that he has suffered a 'concrete' injury particular to
himself." Spokeo, 578 U.S. at 346 (Thomas, J., concurring). The plaintiffs
here are not suing based on some specific act done to themselves, such as
in a tort or contract claim. They certainly are not suing based on a
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statutorily authorized private cause of action. Instead, they are suing
based on an alleged violation of officials' duty to the public with regard to
the management of elections. Thus, the line of cases requiring injury in
fact in actions regarding public rights applies. Judge Kevin Newsom
thoroughly explained this distinction:
"The way I now see things, therefore, Congress can
create causes of action, for instance, authorizing a private
plaintiff to vindicate his personal rights …. What Congress
can't do is create a cause of action authorizing an individual
plaintiff to sue for harm done to society generally. So, to use
the facts of this case, Congress can authorize Eddie Sierra to
sue the City of Hallandale Beach for failing to
accommodate him, as the [Americans with Disabilities Act]
requires. ... But it couldn't authorize him to sue the City for
failing to accommodate those with disabilities more generally.
Nor can Congress create a private cause of action authorizing
an individual to pursue remedies that accrue to the public
generally rather than to him personally."
Sierra, 996 F.3d at 1136 (Newsom, J., concurring). The issue of legislative
authorization and creation of a private cause of action aside, to sue for a
wrong to the public, there must be a particular injury experienced by the
plaintiff. Because the plaintiffs here do not claim that a private wrong
was committed against them, but that the defendants violated their
duties to the public more generally with regard to elections, standing,
including injury in fact, was a requirement for the plaintiffs to be able to
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bring their suit.
Thus, I agree that the injury-in-fact requirement applies. But I
disagree with the main opinion's analysis under that requirement.
Throughout, the main opinion highlights the prospective nature of the
plaintiffs' claims: "The plaintiffs discuss many things that could go wrong
and ultimately lead to the dilution of their votes. But they fail to allege
anything that has gone wrong." __ So. 3d at __. This discussion would
give the impression that, at least in the public-right context, a challenge
to government activity before it occurs is impossible. That of course is not
the case. Allegations of future injury are sufficient for public-right
standing if there is a " 'substantial risk' that the harm will occur." Clapper
v. Amnesty Int'l USA, 568 U.S. 398, 414 n.5 (2013); see Sierra Club v.
EPA, 774 F.3d 383, 392 (7th Cir. 2014) (finding injury in fact based on
increased probability of injury). "One does not have to await the
consummation of threatened injury to obtain preventive relief. If the
injury is certainly impending, that is enough." Pennsylvania v. West
Virginia, 262 U.S. 553, 593 (1923). The danger must be "realistic."
Babbitt v. United Farm Workers Nat'l Union, 442 U.S. 289, 298 (1979).
The Supreme Court has considered even "the threat of vote dilution
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through the use of sampling" to be sufficient to establish standing.
Department of Com. v. United States House of Representatives, 525 U.S.
316, 332 (1999); see Florida State Conf. of NAACP v. Browning, 522 F.3d
1153, 1162 (11th Cir. 2008) ("[W]e have repeatedly upheld plaintiffs'
standing when the alleged injury was prospective and probabilistic in
nature.").
One salient opinion, authored by Justice Antonin Scalia, is
particularly illustrative of the nature of the injury-in-fact inquiry at the
pleading stage. See Bennett v. Spear, 520 U.S. 154 (1997). In Bennett,
ranch operators sued the government under the citizen-suit provision of
the Endangered Species Act. The government appellee argued that the
ranch operators failed to establish injury in fact because the ranch
operators alleged that there would be a diminution in the aggregate
amount of available irrigation water as a result of the government's
actions but failed to establish that they themselves would receive less
water. Id. at 167. The Court rejected this argument, explaining that,
" '[a]t the pleading stage, general factual allegations of injury resulting
from the defendant's conduct may suffice, for on a motion to dismiss we
"presum[e] that general allegations embrace those specific facts that are
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necessary to support the claim." ' " Id. at 168 (quoting Lujan, 504 U.S. at
561). Thus, an allegation of an adverse effect from the reduction of
available water allowed the Court "to presume specific facts under which
[the ranch operators would] be injured." Id. Just as in Bennett, the
plaintiffs in this case have made general allegations at the pleading
stage. But, although the alleged injuries are general, the plaintiffs do
allege that, due to the defendants' actions, there is a substantial threat
of election interference. Those "general allegations" are a sufficient basis
for presuming, at this early stage of litigation, the facts necessary for
injury in fact.
The main opinion, in rejecting the plaintiffs' standing argument
because "the plaintiffs do not allege that any [of the alleged election
fraud] actually occurred," __ So. 3d at __, fails to apply the foregoing long
line of precedent regarding threatened injury as the basis for standing.
The main opinion contends that the plaintiffs needed to claim that
election fraud had already occurred in order to prevent it from occurring
in the future. Similarly, the defendants argue that the plaintiffs needed
to allege "that their ballots will likely be miscounted." Defendants' brief
at 33. Neither view of the matter is accurate. All the plaintiffs were
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required to show, to establish injury in fact, was a " 'substantial risk' that
the harm will occur." Clapper, 568 U.S. at 414 n.5. And at the pleading
stage, the showing of substantial risk merely needed to be "general
factual allegations of injury resulting from the defendant's conduct."
Lujan, 504 U.S. at 561.
The complaint's allegations in this case sufficiently showed a
substantial risk of future injury. The plaintiffs alleged that Alabama's
voting machines "are susceptible to manipulation through internal or
external intrusion." Likewise, the plaintiffs alleged that the machines
"are potentially unsecure, lack adequate audit capacity, fail to meet
minimum statutory requirements, and deprive voters of the right to have
their votes counted and reported in an accurate, auditable, legal,
transparent process." Their ultimate claim was that these machines "are
vulnerable to cyber-attacks before, during, and after an election." The
main opinion rightly highlights that these sorts of allegations are not
allegations of particular harm to the plaintiffs, the sort of harm that
needs to be ultimately proved for standing. But at the pleading stage,
that particular, individual harm did not need to be proved. As Lujan,
which the main opinion takes pains to defend, made very clear, at the
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pleading stage, "general factual allegations of injury" suffice to establish
standing. 504 U.S. at 561.
The standing inquiry has two other elements, both of which are
raised here. The defendants challenge traceability, arguing that the
plaintiffs cannot demonstrate "a 'causal connection' between [their]
injury and the challenged action of the defendant." Lewis v. Governor of
Alabama, 944 F.3d 1287, 1296 (11th Cir. 2019). Specifically, the Alabama
Electronic Voting Committee ("the committee") argues that it does not
decide whether any particular electronic vote-counting systems will be
used in any particular election and that, under Alabama law, that
decision is made exclusively by the counties. See § 17-7-21(a), Ala. Code
1975 ("The governing body of any county … may authorize, adopt, and
direct the use of electronic vote counting systems …."). It is certainly true
that counties bear the authority to determine which voting system will
be used. But, as the statute goes on to specify, the committee has the duty
to examine and certify the electronic-voting equipment. § 17-7-23. It also
has the authority to "suspend all sales of the equipment or system in the
state until such equipment or system complies with [statutory]
requirements." § 17-7-23(5). Any voting system not certified by the
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committee "shall not be adopted or used at any election." § 17-7-23(4).
Thus, the committee's arguments that the alleged injury is not traceable
to it is misguided; it certified the system at issue for use in Alabama, and
there is thus a "causal connection" between its actions and the alleged
harm.
In addition to injury in fact and traceability, a plaintiff must show
a likelihood " 'that the [alleged] injury will be "redressed by a favorable
decision." ' " Ex parte Alabama Educ. Television Comm'n, 151 So. 3d 283,
287 (Ala. 2013) (quoting Lujan, 504 U.S. at 561). One situation where
redressability is found to be lacking is where "the relief require[s] action
by a party not before the Court." Steel Co. v. Citizens for a Better Env't,
523 U.S. 83, 106 n.7 (1998). In their reply brief, the plaintiffs assert that
they did seek relief that the defendants could provide: compliance with
the statutory certification requirements of § 17-7-21. This assertion is
belied by their complaint. Although the plaintiffs did allege that the
defendants violated their statutory duties, the relief they sought for the
alleged violation was not decertification of particular systems; it was to
"enjoin Defendants' use of electronic voting systems," order the
"Defendants to halt the use of electronic voting systems in the 2022
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Election," order the "Defendants to prevent electronic voting systems
from being used in the 2022 Election," and enter an order requiring "the
Defendants to conduct the 2022 election by hand count."
This relief is essentially of two kinds: First, the plaintiffs sought an
order requiring the defendants to conduct the election via hand count. In
order to achieve that relief, they sought an order that would require the
committee to "prevent electronic voting systems from being used."
The ultimate relief the plaintiffs want -- statewide hand counts -- is
not available from the committee. The committee has no control over the
local officials who could provide the plaintiffs with that relief. No statute
or other law vests the committee with authority to order hand counting
in each county; it is simply not the right defendant for this kind of relief.
It is the county commissioners of the 67 counties across Alabama who
make decisions about how voting will be conducted in their counties
under § 17-7-21(a) and who would be able to order hand counting; it is
they who would have been the proper defendants for a suit seeking such
relief.
As to the desired outcome of banning all ballot-counting machines,
the committee does have the authority to certify or decertify particular
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systems. But it lacks any ability to engage in the wide and sweeping relief
the plaintiffs seek, banning all ballot-counting machines. Here, the
plaintiffs disagree with the judgment of our State's legislators, expressed
in statutes like § 17-7-21, that electronic ballot-counting is a secure
method of counting votes. But the committee has no authority to
countervene that legislative judgment; no statute would give it any
authority to "halt the use of electronic voting systems." As Justice Cook
highlights in his special concurrence, the primary forum for such
statutory reform is not this Court, but the Legislature. The committee
lacks the ability, in other words, to provide even this desired relief; no
statute gives it the authority to overrule the Legislature's judgment and
ban all ballot-counting machines. For this relief, the plaintiffs would have
needed to challenge the electronic-ballot-counting-machine statute as
unconstitutional. Although the Alabama Secretary of State is a
defendant in this action, the complaint never alleges that that statute is
unconstitutional. Although the plaintiffs would have had a heavy burden
in such a challenge, the standing analysis in such a case would have
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looked very different. 6
I note a matter of concern in this case. The plaintiffs have presented
serious assertions regarding the voting process, including an assertion
that the Secretary of State purchased election-management-system
laptop computers for each of Alabama's probate offices and that the
purchase order required that these computers have Internet and wireless
Bluetooth connection capabilities. According to the plaintiffs, these
laptops were part of the voting system yet were never presented to the
committee for inspection and certification. These assertions, if true,
6Irecognize that this analysis of redressability may appear similar
to an analysis of whether the plaintiffs have successfully stated a claim.
Some have argued that there is no fundamental distinction between
redressability as a cause-of-action issue and redressability as a standing
issue. See Steel, 523 U.S. at 119 n.9 (Stevens, J., concurring in judgment).
Justice Scalia argued for a different view, explaining that there is a
"fundamental distinction" between the cause-of-action question, which is
"whether a cause of action existed," and the redressability question. Id.
at 96 (opinion of Court). Justice Murdock likewise highlighted the critical
distinction between standing and other inquiries, such as who is the "real
party in interest." Ex parte McKinney, 87 So. 3d 502, 512 (Ala. 2011)
(Murdock, J., dissenting). At least in this particular case, the
redressability issue is part of the question of standing. A real-party-in-
interest issue examines whether a plaintiff is the right party to bring the
suit, and a cause-of-action issue examines whether a plaintiff alleges a
cognizable cause of action. But here, the plaintiffs are proper parties, and
their cause of action is potentially cognizable; the problem is not that the
wrong plaintiffs sued, but that they sued the wrong defendants,
defendants who could not provide the relief sought. That goes to standing.
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would present serious concerns regarding the defendants' duties to
properly certify voting machines under § 17-7-23. However, the purchase
of the laptops was raised for the first time at the preliminary-injunction
hearing below. The issue is not raised anywhere in the complaint. (Nor
did the plaintiffs move to amend their complaint to include these
allegations.) Thus, even if this Court were to determine that the plaintiffs
had standing, the laptops issue would not have been preserved in order
for our Court to be able to address it. See Wiggins v. City of Evergreen,
295 So. 3d 43, 48-49 (Ala. 2019). The plaintiffs cannot argue that their
complaint should not have been dismissed because of claims that were
not in that complaint. Although this laptops issue is not truly before us,
the plaintiffs' assertions are significant and would merit serious
attention in the proper forum.
This Court's affirmance of the dismissal of the plaintiffs' complaint
should by no means be read as an indication that challenges to election
practices, including the use of ballot-counting machines, are
nonjusticiable. The ground for the dismissal lies not in the political
nature of elections, but in the more straightforward conclusion that this
particular complaint failed to satisfy the requirements for standing.
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Moreover, even while this Court affirms the circuit court's dismissal of
the plaintiffs' claims, I encourage the executive branch to continue to take
seriously its responsibility to faithfully enforce and apply the laws. In
particular, the committee and the Secretary of State have a serious
responsibility to maintain the fidelity of elections. The fact that a
particular plaintiff may not satisfy the requirements of standing when it
sues a government actor does not render the people without a remedy.
The primary responsibility for investigating any allegation of
governmental wrongdoing lies first not in private citizens, but in the
executive branch, charged with the proper enforcement of the law. And
ultimately, it is the people who hold all government actors accountable
for their conduct, both through properly framed litigation and through
the political process. An "election case concerns a principle at the very
heart of the democratic process -- the integrity of elections." Taylor v. Cox,
710 So. 2d 406, 408 (Ala. 1998) (See, J., concurring specially). "Confidence
in the integrity of our electoral process is essential to the functioning of
our participatory democracy." Purcell v. Gonzalez, 549 U.S. 1, 4 (2006).
This principle merits the most careful protection, in as many forums as
are necessary.
36