Association of Community Organizations for Reform Now v. Fowler

REVISED, June 30, 1999
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 98-30145
_____________________
ASSOCIATION OF COMMUNITY ORGANIZATIONS FOR REFORM NOW,
Plaintiff-Appellant,
v.
JERRY M FOWLER, in his official capacity as Commissioner of
Elections and Registration, State of Louisiana; MIKE FOSTER,
GOVERNOR, STATE OF LOUISIANA, in his official capacity as
Governor of the State of Louisiana; RICHARD STALDER, in his
capacity as Secretary of Department of Public Safety and
Corrections; MADELINE BAGNERIS, in her official capacity as
Secretary of the Department of Social Services; BOBBY JINDAL, in
his official capacity as Secretary of the Department of Health
and Hospitals,
Defendants-Appellees.
_________________________________________________________________
Appeal from the United States District Court
for the Eastern District of Louisiana
_________________________________________________________________
June 10, 1999
Before KING, Chief Judge, and POLITZ and BENAVIDES, Circuit
Judges.
KING, Chief Judge:
Plaintiff-appellant Association of Community
Organizations for Reform Now brought this suit in federal
district court against state officials alleging that Louisiana’s
voter registration procedures violate the National Voter
Registration Act, 42 U.S.C. § 1973gg. The district court granted
summary judgment to the state officials on standing grounds. On
appeal, plaintiff-appellant argues that it has standing to bring
each of its three claims as an organization and as a
representative of its individual members. We conclude that
plaintiff-appellant has raised a genuine issue of material fact
as to whether it has standing to sue on its own behalf with
respect to one of its claims, its contention that defendants-
appellees have failed to make voter registration materials and
services available at voter registration agencies. We affirm the
district court’s grant of summary judgment to defendants-
appellees on all other grounds.
I. FACTUAL AND PROCEDURAL BACKGROUND
This suit arises out of efforts by the Association of
Community Organizations for Reform Now (ACORN) to force the State
of Louisiana to comply with certain provisions of the National
Voter Registration Act (the NVRA or Act), 42 U.S.C. § 1973gg.
ACORN is a national, nonprofit, membership corporation that seeks
to advance the interests of people with low and moderate incomes.
According to affidavits from ACORN members, ACORN views its
involvement in voter registration efforts as integral to the
furtherance of this mission. According to these members, ACORN
was involved in efforts to secure the passage of the NVRA, and
also devotes resources to promoting voter registration by
conducting voter registration drives, monitoring compliance with
the NVRA, and participating in litigation aimed at enforcing the
NVRA.
Congress enacted the NVRA in 1993
2
(1) to establish procedures that will increase the
number of eligible citizens who register to vote in
elections for Federal office;
(2) to make it possible for Federal, State, and local
governments to implement [national voter registration]
in a manner that enhances the participation of eligible
citizens as voters in elections for Federal office;
(3) to protect the integrity of the electoral process;
and
(4) to ensure that accurate and current voter
registration rolls are maintained.
42 U.S.C. § 1973gg(b). The NVRA requires all non-exempt states
to establish certain procedures to facilitate voter registration.
See id. § 1973gg-2. Specifically, states must (1) include a
voter registration application form for federal elections as part
of a state driver’s license application, (2) accept voter
registration application forms by mail, and (3) designate voter
registration agencies, at which voter registration applications,
and assistance and acceptance of applications, must be made
available. See id. § 1973gg-3 to 1973gg-5.
In addition, the NVRA sets forth requirements with respect
to the states’ administration of the voter registration process.
See id. § 1973gg-6. Under this provision, states must comply
with a number of procedures designed to ensure a fair
registration process. For example, in § 1973gg-6(d), the Act
provides that states may not remove a registrant’s name from
voting rolls unless the registrant confirms in writing that he or
she has moved outside the voting jurisdiction, or the registrant
has failed to respond to a notice sent by the state and the
registrant has not voted or appeared to vote within a specified
time.
3
The NVRA took effect in Louisiana on January 1, 1995.
Shortly after that date, ACORN sued certain Louisiana officials,
alleging that Louisiana had refused to implement the Act.1 In
the spring of 1995, the defendants in that suit settled with
ACORN.
According to ACORN, Louisiana has continued to violate the
NVRA despite the initial settlement. First, ACORN claims that a
Louisiana mail-in driver’s license renewal program, which it
alleges began in March 1995, violates the Act. Under the
program, certain residents with licenses nearing expiration
receive renewal applications that can be completed and returned
for a renewed license without an in-person application.
According to ACORN, Louisiana did not include voter registration
applications with these mailings. Second, ACORN asserts that
some of the state’s designated voter registration agencies are
not complying with the NVRA’s requirements. ACORN bases this
contention on statistics and surveys showing a low rate of
registration in Louisiana and disparities in registration within
Louisiana. Third, ACORN claims that some previously-registered
Louisiana voters believe that their names have been improperly
removed from the voter registration rolls.
1
ACORN also brought suit against at least two other states
on the same basis. See ACORN v. Miller, 129 F.3d 833 (6th Cir.
1997) (Michigan); ACORN v. Edgar, 56 F.3d 791 (7th Cir. 1995)
(Illinois).
4
On June 10, 1996, ACORN reported these complaints to
Louisiana in a notice-to-sue letter.2 Thereafter, ACORN provided
additional information to Louisiana regarding the alleged NVRA
violations, but, after failing to receive sufficient assurances
that Louisiana would correct the problems, ACORN filed the
instant suit under the NVRA, seeking declaratory and injunctive
relief, as well as attorneys’ fees and costs.3 ACORN’s complaint
alleged that the appellees violated the NVRA by (1) using a mail-
in form for renewal of driver’s licenses that does not allow for
simultaneous voter registration, (2) improperly purging
registered voters from voter records, and (3) failing to provide
the required voter registration opportunities at certain public
assistance offices, armed forces recruitment offices, and all
offices in Louisiana that provide state-funded programs primarily
engaged in providing services to persons with disabilities.
2
In addition to allowing actions brought by the Attorney
General, the NVRA creates a private right of action. See 42
U.S.C. § 1973gg-9(b). “A person who is aggrieved by a violation”
of the Act may commence a civil action for declaratory or
injunctive relief if the violation is not corrected within 90
days after receipt of notice of the violation, or within 20 days
after receipt of notice if the violation occurred within 120 days
before the date of a federal election. Id. § 1973gg-9(b)(1)-(2).
3
ACORN named as defendants in this suit Jerry M. Fowler, in
his official capacity as Commissioner of Elections and
Registration for the State of Louisiana, Mike Foster, in his
official capacity as Governor, Richard Stalder, in his official
capacity as Secretary of the Department of Public Safety and
Corrections, Madeline Bagneris, in her official capacity as
Secretary of the Department of Social Services, and Bobby Jindal,
in his official capacity as Secretary of the Department of Health
and Hospitals (collectively, the appellees). This opinion refers
to the appellees and the State of Louisiana interchangeably.
5
The parties commenced discovery, and on November 25, 1997,
ACORN moved for partial summary judgment. The appellees opposed
the summary judgment motion and moved to compel answers to
interrogatories regarding details of ACORN’s members.
Subsequently, ACORN moved for a protective order. A magistrate
judge resolved the discovery impasse by directing ACORN to
provide identifying information about a limited number of its
members who fell into discrete categories of members relevant to
the suit. On January 7, 1998, the appellees moved for summary
judgment on standing grounds.
The district court granted the appellees’ motion for summary
judgment on February 3, 1998 and dismissed each of ACORN’s
claims. The district court analyzed each of the grounds on which
ACORN asserted it had standing to maintain suit. First, the
district court concluded that ACORN could not sue on its own
behalf. According to the district court, because ACORN does not
vote and cannot register to vote, it could not qualify as a
“person who is aggrieved” under the NVRA and thus lacked
organizational standing as a matter of law. Second, the district
court rejected ACORN’s contention that it had standing as a
representative of its individual members. The district court
found that ACORN made no specific allegation that any of its
members had been aggrieved by Louisiana’s alleged failure to
provide voting applications with mail-in driver’s license
renewals, or its failure to comply with the NVRA provision
regarding registration at public assistance agencies. In sum,
6
the district court ruled that “the identified ACORN members
simply have not suffered or continue to suffer sufficient
‘threatened harm’ for purposes of standing.” Lastly, the
district judge determined that ACORN, because it had no right as
an organization to vote or register to vote, could not maintain
standing to sue for the deprivation of a federal right under 42
U.S.C. § 1983. ACORN timely appealed.
II. DISCUSSION
We review the district court’s grant of summary judgment on
standing grounds de novo. See Palma v. Verex Assurance, Inc., 79
F.3d 1453, 1455-56 (5th Cir. 1996); Farm Credit Bank v. Farish,
32 F.3d 184, 189 (5th Cir. 1994). Summary judgment is proper “if
the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, show
that there is no genuine issue as to any material fact and that
the moving party is entitled to a judgment as a matter of law.”
FED. R. CIV. P. 56(c); see Celotex Corp. v. Catrett, 477 U.S. 317,
327 (1986). We must view all evidence in the light most
favorable to the party opposing the motion and draw all
reasonable inferences in that party’s favor. See Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
On appeal, ACORN asserts that the district court erred in
ruling that ACORN failed to present a factual question as to
whether it has standing to bring this suit as an organization and
as a representative of its individual members. We first consider
whether ACORN has standing to bring its claims on its own behalf.
7
A. Organizational Standing
The inquiry as to whether a particular plaintiff has
standing has two components, involving “both constitutional
limitations on federal-court jurisdiction and prudential
limitations on its exercise.” Warth v. Seldin, 422 U.S. 490, 498
(1975); see City of Farmers Branch v. Pointer (In re Pointer),
952 F.2d 82, 85 (5th Cir. 1992). First, a plaintiff must show
that he or she satisfies the constitutional standing
requirements, which stem from the case or controversy requirement
of Article III. See Friends of the Earth, Inc. v. Chevron Chem.
Co., 129 F.3d 826, 827 (5th Cir. 1997). We then consider whether
prudential standing concerns, which are a set of “judicially
self-imposed limits on the exercise of federal jurisdiction” and
can be modified or abrogated by Congress, apply. Bennett v.
Spear, 520 U.S. 154, 162 (1997) (internal quotation marks
omitted). We begin our analysis with the constitutional standing
inquiry.
1. Article III Standing
An organization has standing to sue on its own behalf if it
meets the same standing test that applies to individuals. See
Havens Realty Corp. v. Coleman, 455 U.S. 363, 378-79 (1982);
National Taxpayers Union, Inc. v. United States, 68 F.3d 1428,
1433 (D.C. Cir. 1995). That standard, at its “‘irreducible
constitutional minimum,’” requires that the plaintiff demonstrate
that he or she “has suffered ‘injury in fact,’ that the injury is
‘fairly traceable’ to the actions of the defendant, and that the
8
injury will likely be redressed by a favorable decision.”
Bennett, 520 U.S. at 162 (quoting Lujan v. Defenders of Wildlife,
504 U.S. 555, 560-61 (1992)).
The Supreme Court applied these criteria in an
organizational standing context in Havens Realty. See 455 U.S.
at 378-79. In that case, Housing Opportunities Made Equal
(HOME), an organization operating a housing counseling service,
sued Havens Realty Corporation for allegedly engaging in racial
steering practices in violation of § 804 of the Fair Housing Act
of 1968, 42 U.S.C. § 3604. See id. at 366-67. HOME’s complaint
alleged:
Plaintiff HOME has been frustrated by defendants’
racial steering practices in its efforts to assist
equal access to housing through counseling and other
referral services. Plaintiff HOME has had to devote
significant resources to identify and counteract the
defendant’s [sic] racially discriminatory steering
practices.
Id. at 379 (alteration in original). The district court granted
Havens Realty Corporation’s motion to dismiss on standing
grounds. See id. at 369. The Fourth Circuit reversed, holding
that HOME’s allegation of injury was sufficient, at the pleading
stage, to satisfy the standing requirements. See id. at 369-70.
The Supreme Court affirmed the Fourth Circuit’s
determination that HOME had standing. See id. at 379. The Court
found HOME’s allegations of injury, causation, and redressability
sufficient to establish organizational standing, stating:
If, as broadly alleged, petitioners’ steering practices
have perceptibly impaired HOME’s ability to provide
counseling and referral services for low- and moderate-
income homeseekers, there can be no question that the
9
organization has suffered injury in fact. Such
concrete and demonstrable injury to the organization’s
activities--with the consequent drain on the
organization’s resources--constitutes far more than
simply a setback to the organization’s abstract social
interests, see Sierra Club v. Morton, 405 U.S. [727,]
739 [(1972)]. We therefore conclude, as did the Court
of Appeals, that in view of HOME’s allegations of
injury it was improper for the District Court to
dismiss for lack of standing the claims of the
organization in its own right.
Id. at 379 (footnotes omitted). With the Havens Realty analysis
in mind, we turn our attention to whether ACORN has provided
sufficient summary judgment evidence that it has suffered injury
in fact, that its injury was caused by the alleged failure of
Louisiana to implement the terms of the NVRA, and that its injury
is likely to be redressed by a favorable verdict. See Bennett,
520 U.S. at 162.
Before we begin this analysis, however, we note the
difference in procedural posture between the case at bar and
Havens Realty; Havens Realty dealt with standing based on the
pleadings, while in this case, the district court considered the
appellees’ summary judgment motion. At 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 necessary to support the claim.’” Meadowbriar Home for
Children, Inc. v. Gunn, 81 F.3d 521, 529 (5th Cir. 1996) (quoting
Lujan, 504 U.S. at 561) (alteration in original). “When the
defendant moves for summary judgment because of lack of standing,
however, the plaintiff must submit affidavits and comparable
10
evidence that indicate that a genuine issue of fact exists on the
standing issue.” Cramer v. Skinner, 931 F.2d 1020, 1025 (5th
Cir. 1991). Therefore, to demonstrate standing, ACORN must point
to specific summary judgment evidence showing that it was
“directly affected” by Louisiana’s alleged NVRA violations.
Lujan, 504 U.S. at 563 (internal quotation marks omitted);
see Fair Housing Council v. Montgomery Newspapers, 141 F.3d 71,
76 (3d Cir. 1998).
Supreme Court precedent teaches that the injury in fact
requirement under Article III is qualitative, not quantitative,
in nature. See Cramer, 931 F.2d at 1027; Saladin v. City of
Milledgeville, 812 F.2d 687, 690 (11th Cir. 1987). Thus, an
alleged injury must be “(a) concrete and particularized and (b)
actual or imminent, not conjectural or hypothetical” to pass
constitutional muster, Lujan, 504 U.S. at 560-61 (citations,
footnote, and internal quotation marks omitted), but it need not
measure more than an “identifiable trifle,” United States v.
Students Challenging Regulatory Agency Procedures (SCRAP), 412
U.S. 669, 689 n.14 (1973); see Save Our Community v. U.S.
Environmental Protection Agency, 971 F.2d 1155, 1161 (5th Cir.
1992). In SCRAP, the Supreme Court expressly rejected the
argument that the injury in fact requirement was limited to
“significant[]” injuries, noting that it has upheld the standing
of plaintiffs with “no more at stake in the outcome of an action
than a fraction of a vote, a $5 fine and costs, and a $1.50 poll
tax.” 412 U.S. at 689 n.14 (citations omitted).
11
In the district court, ACORN supported its claim that it has
suffered an injury sufficient to meet the Article III standing
requirements by introducing two affidavits, one by Doug Hess4
(the Hess affidavit) and one by Marianna Butler5 (the Butler
affidavit), and its responses to the appellees’ interrogatories.
ACORN’s summary judgment evidence on this issue falls into three
general categories: first, that it has expended resources
litigating Louisiana’s and other states’ alleged failure to
implement the NVRA; second, that it is involved in monitoring
Louisiana’s implementation of the NVRA; and third, that it has
expended resources either registering voters or facilitating the
registration of voters.
a. Litigation Costs
While any injuries ACORN may have suffered as a result of
litigating Louisiana and other states’ failure to comply with the
NVRA might be concrete and particularized, they do not all
suffice to establish standing. An organization cannot obtain
standing to sue in its own right as a result of self-inflicted
injuries, i.e., those that are not “fairly traceable to the
actions of the defendant.” Bennett, 520 U.S. at 162 (internal
quotation marks omitted). Thus, it is immediately clear that
ACORN’s allegations of injury in fact due to resources it has
4
Doug Hess asserts in his affidavit that he was a political
organizer for ACORN from 1994 to 1996, and that he was Project
Director of ACORN’s NVRA Implementation Project.
5
Butler states in her affidavit that she serves as ACORN’s
Head Organizer in Louisiana, a position she has held for
approximately 17 years.
12
expended bringing this and other NVRA-enforcement litigation fail
to demonstrate ACORN’s standing. See Fair Housing Council, 141
F.3d at 80 (“We hold, therefore, that the pursuit of litigation
alone cannot constitute an injury sufficient to establish
standing under Article III.”); Association for Retarded Citizens
v. Dallas County Mental Health & Mental Retardation Ctr. Bd. of
Trustees, 19 F.3d 241, 244 (5th Cir. 1994) (“The mere fact that
an organization redirects some of its resources to litigation and
legal counseling in response to actions or inactions of another
party is insufficient to impart standing upon the
organization.”). Similarly, ACORN’s summary judgment evidence
that Hess, “in connection with this current lawsuit,” has
compiled statistical evidence regarding the implementation of the
NVRA in Louisiana is insufficient to impart standing on ACORN to
bring suit on its own behalf. See Association for Retarded
Citizens, 19 F.3d at 244. Expanding the definition of Article
III injury to include an organization’s litigation-related
expenses “implies that any sincere plaintiff could bootstrap
standing by expending its resources in response to actions of
another.” Id.; see also Spann v. Colonial Village, Inc., 899
F.2d 24, 27 (D.C. Cir. 1990) (“An organization cannot, of course,
manufacture the injury necessary to maintain a suit from its
expenditure of resources on that very suit. Were the rule
otherwise, any litigant could create injury in fact by bringing a
case, and Article III would present no real limitation.”).
b. Monitoring Costs
13
In addition, ACORN’s summary judgment evidence that it has
expended resources monitoring Louisiana’s implementation of the
NVRA is insufficient to raise a genuine issue of material fact on
the standing issue. ACORN’s summary judgment evidence on this
issue consists of the following: (1) that it “has performed
studies of voter registration and implementation of the National
Voter Registration Act, on its own, and in conjunction with other
organizations. These studies include reviews of Louisiana,” (2)
that Hess, the Project Director of ACORN’s NVRA Implementation
Project, attended an “NVRA implementation conference” in late
1994, (3) that Hess conducted “research includ[ing] work aimed at
persuading states to pass legislation and implement procedures
which would most effectively carry out the mandates of the NVRA,”
and (4) that Hess recalls “filing at least one letter of
objection with the Department of Justice on proposed legislation
submitted pursuant to the Voting Rights Act which [he] believed
did not meet” NVRA requirements.
The problem with ACORN’s allegation that it has suffered a
sufficient injury in fact due to its allocation of resources to
these activities is that ACORN has made no showing that these
monitoring costs are fairly traceable to any of the conduct by
Louisiana that ACORN claims in its complaint is illegal. See
Fair Housing Council, 141 F.3d at 78 & n.5. In Fair Housing
Council, the Third Circuit considered a similar claim under the
Fair Housing Act in which an organization claimed to have
standing to sue on its own behalf because it had spent money
14
reviewing classified ads on an ongoing basis for evidence of
discrimination. See id. The court held that the organization’s
allocation of resources to reviewing ads was insufficient to
confer standing in light of the organization’s failure to show
that it would not have undertaken the same efforts in the absence
of the alleged illegal act by the defendants. See id. In this
case, ACORN has failed to show that any of its purported injuries
relating to monitoring costs were in any way caused by any action
by Louisiana that ACORN now claims is illegal, as opposed to part
of the normal, day-to-day operations of the group. These general
allegations of activities related to monitoring the
implementation of the NVRA fail to confer standing on ACORN to
bring this lawsuit on its own behalf.
c. Voter Registration Costs
According to ACORN’s third category of summary judgment
evidence, ACORN engages in significant voter registration
activities. In particular, the affidavits, interrogatory
responses, and studies concerning the implementation of the NVRA
presented by ACORN to the district court indicate that ACORN
engages in voter registration drives in Louisiana, that it
provides voter registration applications to unregistered
potential members, and that it makes voter registration
applications available at housing fairs that it attends
throughout the year. In addition, according to the Hess
affidavit, Hess hired staff to train ACORN members on how to
conduct voter registration drives and to research voter
15
registration rates, coordinated voter registration drives at
“various” ACORN offices, supervised ACORN field staff as they
recruited volunteers and ran a voter registration drive,
maintained reports received from “some of the larger” ACORN
offices regarding the number of people registered through its
voter registration drives, and “did presentations to the
organizations” on how to conduct effective voter registration
drives.
ACORN claims on appeal, as it did before the district court,
that its efforts registering voters in Louisiana counteract the
appellees’ failure to properly implement the NVRA. Under Havens
Realty, an organization has standing to sue on its own behalf
where it devotes resources to counteract a defendant’s allegedly
unlawful practices. See 455 U.S. at 379; Spann, 899 F.2d at 28;
Cleburne Living Ctr., Inc. v. City of Cleburne, 726 F.2d 191,
202-03 (5th Cir. 1984), affirmed in part and vacated in part on
other grounds, 473 U.S. 432 (1985). In Cleburne Living Center,
we considered whether an association that promoted the general
welfare of the mentally disabled had standing to challenge the
validity of a zoning ordinance that excluded certain forms of
group homes from an apartment house district. See 726 F.2d at
202-03. We determined that the association lacked standing
because it failed to prove a drain on its resources resulting
from the defendant’s action. See id. However, we noted that the
association would have had standing to sue if it had proved (1)
that it provided counseling services to the mentally disabled
16
affected by the defendant’s act, and (2) that it had to devote
resources to combating the defendant’s alleged discrimination.
See id. at 203. Thus, we concluded that the association would
have been entitled to sue on its own behalf had it proven a
“drain on its resources” resulting from counteracting the effects
of the purportedly illegal zoning ordinance. Id.Much of ACORN’s summary judgment evidence regarding its
laudable work registering voters, however, suffers from the same
malady as its evidence regarding monitoring costs. ACORN has not
made a sufficient showing that it engaged in any of the
activities mentioned in the Hess affidavit as a direct result of
Louisiana’s alleged failure to properly implement the NVRA.
Indeed, none of the evidence presented in the Hess affidavit is
even Louisiana-specific. We therefore conclude that the Hess
affidavit fails to raise a genuine issue of material fact that
ACORN has expended any resources registering voters that are
fairly traceable to any particular action by the appellees. See
Bennett, 520 U.S. at 162.
In addition, we have grave doubts that ACORN’s allegations
of injury due to including voter registration applications with
its membership applications or “set[ting] up” a voter
registration table at housing fairs that it already attends
suffice to confer standing on ACORN to sue on its own behalf. We
fail to see any concrete or identifiable resources that ACORN
could reallocate to other uses, if Louisiana were to properly
implement the NVRA, that it now spends engaging in these
17
activities. We conclude that ACORN’s evidence concerning these
activities raises no genuine issue of material fact that ACORN
has been “perceptibly impaired” by the appellees’ purported
failure to implement the NVRA. Havens Realty, 455 U.S. at 379(stating that organization alleged sufficient injury where
defendant’s actions had “perceptibly impaired” organization); see
SCRAP, 412 U.S. at 688-89 (stating that plaintiff must show that
he or she “has been or will in fact be perceptibly harmed” by
defendant’s action to confer standing); see also Cramer, 931 F.2d
at 1026-27 (stating that “speculative and hypothetical” injury is
insufficient to confer standing on plaintiff).
Nevertheless, we conclude that ACORN has standing at this
stage of the litigation to raise one of the claims it brought
before the district court. After carefully reviewing ACORN’s
summary judgment evidence, we are convinced that ACORN has raised
a genuine issue of material fact that it has expended definite
resources counteracting the effects of Louisiana’s alleged
failure to implement 42 U.S.C. § 1973gg-5(a)(4)(A), which
requires states to facilitate voter registration at voter
registration agencies, including public aid offices. According
to its summary judgment evidence, ACORN conducts at least one
voter registration drive a year in Louisiana, and its
registration drives focus on registering people at “welfare
waiting rooms, unemployment offices, and on Food Stamp lines.”
In particular, ACORN alleges that it conducted one such voter
registration drive in late 1995 through early 1996 that
18
registered approximately 400 new voters in New Orleans,
Lafayette, and Lake Charles, Louisiana. Significantly, ACORN
presents evidence that it concentrated this voter registration
campaign in areas where the percentages of all food stamp
participant households registered to vote, a population directly
affected by one of the NVRA requirements that ACORN claims
Louisiana has failed to implement,6 are among the lowest in
Louisiana.
This summary judgment evidence is sufficient to raise a
genuine issue of material fact that ACORN has expended resources
counteracting one of the areas in which ACORN alleges that the
appellees fail to implement the NVRA. Simply put, ACORN has
presented evidence that it has expended resources registering
voters in low registration areas who would have already been
registered if the appellees had complied with the requirement
under the NVRA that Louisiana must make voter registration
material available at public aid offices. Thus, a portion of the
resources ACORN has spent and currently spends on voter
registration drives counteracts Louisiana’s alleged failure to
6
As discussed supra, the NVRA requires states to designate
as voter registration agencies “all offices in the State that
provide public assistance” and “all offices in the State that
provide State-funded programs primarily engaged in providing
services to persons with disabilities.” 42 U.S.C. § 1973gg-
5(a)(2). The Act mandates that states make the following
services available at all voter registration agencies: (1)
distribution of mail voter registration application forms, (2)
assistance in completing voter registration application forms,
and (3) acceptance of completed voter registration application
forms. See id. § 1973gg-5(a)(4)(A). ACORN’s third claim in its
complaint alleges that Louisiana has failed to implement this
provision.
19
implement the Act. It is these wasted resources, which ACORN
could have put to use registering voters that the NVRA, even
properly implemented, would not have reached (or which ACORN
could have put toward any other use it wished), that provide
ACORN with standing to pursue its third claim in its complaint,
that Louisiana has failed to comply with 42 U.S.C. § 1973gg-
5(a)(4)(A), on its own behalf.
We note that the D.C. Circuit, in National Treasury
Employees Union v. United States, 101 F.3d 1423, 1429-30 (D.C.
Cir. 1996), stated that, in addition to an allegation that “a
defendant’s conduct has made the organization’s activities more
difficult, the presence of a direct conflict between the
defendant’s conduct and the organization’s mission is necessary--
though not alone sufficient--to establish standing.” The court
noted in that case that unless it was clear that an
organization’s stated goals were “at loggerheads” with a
defendant’s conduct, “it is entirely speculative whether the
defendant’s conduct is impeding the organization’s activities.”
Id. (internal quotation marks omitted). ACORN has met this
burden. Its purpose, according to its summary judgment evidence,
is to increase the political power of low- and moderate-income
people in the political process. We have no trouble concluding
that ACORN has raised a genuine issue of material fact that this
purpose is in direct conflict with Louisiana’s alleged failure to
20
facilitate voter registration in voter registration agencies.7
Therefore, based on ACORN’s summary judgment evidence outlining
its expenditure of resources counteracting the effects of the
appellees’ alleged failure to implement § 1973gg-5(a)(4)(A), we
conclude that ACORN has met the constitutional standing
requirements for purposes of defeating the appellees’ summary
judgment motion with respect to its claim that Louisiana has
failed to provide voter registration materials in public aid
offices.
However, the summary judgment evidence that ACORN has
presented regarding its efforts registering voters does not raise
a genuine issue of material fact that it has standing to pursue
its other claims on its own behalf. In addition to its claim
that Louisiana has failed to make voter registration materials
available at public aid offices, ACORN also alleges that
Louisiana has failed to implement the NVRA by refusing to include
voter registration materials with its mail-in driver’s license
renewal applications, in violation of 42 U.S.C. § 1973gg-3, and
by improperly purging voters from its voter rolls, in violation
of 42 U.S.C. § 1973gg-6. While we can reasonably infer from
ACORN’s summary judgment evidence that it has spent resources
7
Of course, a showing that an organization’s mission is in
direct conflict with a defendant’s conduct is insufficient, in
and of itself, to confer standing on the organization to sue on
its own behalf. See Havens Realty, 455 U.S. at 379 (citing
Sierra Club, 405 U.S. at 739). As we have made clear, an
organization must also show that it has suffered a concrete and
demonstrable, and redressable, injury as a direct result of the
defendant’s allegedly illegal conduct.
21
registering voters that would have been registered had Louisiana
made registration material available at public aid offices, as we
discussed supra, ACORN has included no evidence in the record
allowing us to make such an inference with respect to these two
claims.
ACORN and its amici allege in their briefs that the mere
fact that ACORN has spent, and continues to spend, resources
registering voters in Louisiana is sufficient to create a genuine
issue of material fact that it has spent discrete resources
counteracting the effects of Louisiana’s alleged failure to
comply with § 1973gg-3 and § 1973gg-6. We disagree. There is
simply no suggestion in the record that anyone it has registered
through its voter registration drives would already have been
registered to vote if Louisiana implemented the NVRA requirements
that form the basis of its first two claims. While ACORN is
“entitled to have reasonable inferences drawn in [its] favor, the
inferences to be drawn must be rational and reasonable, not idle,
speculative, or conjectural.” Unida v. Levi Strauss & Co., 986
F.2d 970, 980 (5th Cir. 1993) (internal quotation marks omitted);
see Engstrom v. First Nat’l Bank, 47 F.3d 1459, 1462 (5th Cir.
1995). To infer that ACORN has spent resources combating
Louisiana’s alleged failure to provide voter registration forms
with mail-in driver’s license applications and to properly
maintain its voter rolls simply from evidence that ACORN conducts
at least one voter registration drive a year in Louisiana is, in
22
our view, speculative. Thus, we must conclude that ACORN, as an
organization, lacks standing to pursue these two claims.
In sum, we hold that ACORN’s summary judgment evidence is
sufficient to raise a factual question as to whether it has
suffered a concrete and demonstrable injury with respect to its
claim that Louisiana refuses to make voter registration materials
available in public aid offices. However, the record is devoid
of any evidence from which we can reasonably infer that ACORN has
suffered an actual injury directly resulting from its claims that
Louisiana has violated § 1973gg-3 or § 1973gg-6. Thus, we
conclude that ACORN has made a sufficient showing of Article III
standing to defeat the appellees’ summary judgment motion with
respect to its third claim in its complaint, but not with respect
to its other two claims.
We therefore proceed to consider first whether ACORN can
hurdle any prudential standing requirements imposed by the NVRA
with respect to its third claim, and, thereafter, we will
consider whether ACORN has standing to bring its first two claims
as a representative of its individual members.
2. Prudential Standing
“In addition to the immutable requirements of Article III,
the federal judiciary has also adhered to a set of prudential
principles that bear on the question of standing.” Bennett, 520
U.S. at 162 (internal quotation marks omitted); see Cramer, 931
F.2d at 1024. These judicially created limits concern whether a
plaintiff’s grievance arguably falls within the zone of interests
23
protected by the statutory provision invoked in the suit, whether
the complaint raises abstract questions or a generalized
grievance more properly addressed by the legislative branch, and
whether the plaintiff is asserting his or her own legal rights
and interests rather than the legal rights and interests of third
parties. See Cramer, 931 F.2d at 1024-25.
Unlike the constitutional standing requirements, which we
discussed above, Congress can modify or even abrogate prudential
standing requirements, thus extending standing to the full extent
permitted by Article III. See Bennett, 520 U.S. at 162; In re
Pointer, 952 F.2d at 85. We therefore look to the Act to
determine whether Congress intended the prudential standing
doctrine to apply to suits brought under the NVRA. See Bennett,
520 U.S. at 163 (“Congress legislates against the background of
our prudential standing doctrine, which applies unless it is
expressly negated.”); Friends of the Boundary Waters Wilderness
v. Dombeck, 164 F.3d 1115, 1125 (8th Cir. 1999) (“The breadth of
this zone-of-interests test varies depending upon the language of
the statutory provision at issue.”).
Under the NVRA, “[a] person who is aggrieved by a violation”
of the Act “may provide written notice of the violation to the
chief election official of the State involved.” 42 U.S.C.
§ 1973gg-9(b)(1). If the violation is not corrected within a
specific time period, “the aggrieved person may bring a civil
action in an appropriate district court for declaratory or
injunctive relief with respect to the violation.” Id. § 1973gg-
24
9(b)(2). The court may also award “reasonable attorney fees,
including litigation expenses, and costs” to a prevailing party
other than the United States. Id. § 1973gg-9(c).
ACORN argues that Congress’s use of the term “aggrieved
person” in NVRA’s private right of action evidences an intent by
Congress to expand standing under the Act to Article III limits.
The district court disagreed, noting that the Act defines neither
person nor aggrieved, and concluding that because ACORN does not
vote and cannot register to vote, it cannot, as a matter of law,
be an aggrieved person under the NVRA.
We conclude that although Congress did not explicitly define
what it meant by an aggrieved person under the NVRA, it intended
to extend standing under the Act to the maximum allowable under
the Constitution. We concede that Congress’s use of the term
aggrieved person to eliminate prudential standing requirements
under the NVRA is not as clear as under Section 810(a) of the
Civil Rights Act of 1982 (Title VIII), in which it explicitly
defined an “aggrieved person” as “any person who [] claims to
have been injured . . . or who believes that such person will be
injured.” 42 U.S.C. § 3602(i). In Trafficante v. Metropolitian
Life Insurance Co., 409 U.S. 205 (1972), the Supreme Court
interpreted Congress’s use of person aggrieved in that statute to
have evidenced “a congressional intention to define standing as
broadly as permitted by Article III of the Constitution.” Id. at
209 (internal quotation marks omitted).
25
However, as the Supreme Court recently observed in Federal
Election Commission v. Akins, 118 S. Ct. 1777, 1783 (1998), in
which the Court specifically discussed Congress’s use of the
undefined term “party aggrieved” in the Federal Election Campaign
Act, “[h]istory associates the word aggrieved with a
congressional intent to cast the standing net broadly--beyond the
common-law interests and substantive statutory rights upon which
prudential standing traditionally rested.”8 Id. (internal
quotation marks omitted). Furthermore, several circuit courts
have interpreted the term “person aggrieved,” an almost identical
term to that used in the NVRA, to have eliminated prudential
standing requirements in the context of other federal laws, thus
allowing any plaintiff meeting Article III standing requirements
to sue under the law. See Bloom v. NLRB, 153 F.3d 844, 849 (8th
Cir. 1998) (concluding that “Congress intended to cast the
standing net broadly . . . by authorizing ‘[a]ny person
aggrieved’ to seek review of an order by the Board under section
10(f) of the [National Labor Relations] Act”), cert. granted and
vacated on other grounds, 119 S. Ct. 1023 (1999); Ozonoff v.
Berzak, 744 F.2d 224, 228 (1st Cir. 1984) (Breyer, J.)
(“[P]rudential requirements are typically excused only in unusual
circumstances, such as where Congress has enacted a special
‘person aggrieved’ statute, allowing a plaintiff to act as a
‘private attorney general.’”).
8
We note that the district court did not have the benefit
of Akins when it ruled on the appellees’ summary judgment motion.
26
In addition, we are unconvinced by the appellees’ argument
that the word “person” before “aggrieved” in the NVRA evidences
an intent by Congress to limit standing to individuals, as
opposed to corporations. First, although “person” is not defined
in the NVRA, 1 U.S.C. § 1 provides that “[i]n determining the
meaning of any Act of Congress, unless the context indicates
otherwise . . . the words ‘person’ and ‘whoever’ include
corporations, companies, associations, firms, partnerships,
societies, and joint stock companies, as well as individuals.”
Second, an examination of the legislative history of the
NVRA makes clear that Congress intended that organizations be
able to sue under the Act. An earlier version of the Act allowed
a private cause of action for an aggrieved “individual,” but the
later version that was passed into law used the term “person.”
In explaining the change, Senator Ford, a sponsor of the bill,
noted that “the modification will permit organizations as well as
individuals, and the Attorney General to bring suits under the
act.” 138 Cong. Rec. S6329 (daily ed. May 7, 1992) (statement of
Sen. Ford).9
9
With respect to this aspect of the NVRA’s legislative
history, the appellees argue that the only right that the Act
conveys to a corporation is the right to receive registration
forms and that it is this right that the modification of the Act
allowed corporations to vindicate. The appellees, however, do
not offer any support for their assertion that the change to
allow organizations to sue under the NVRA was intended to allow
them to enforce only § 1973gg-4(b), which directs the provision
of forms to private entities, and no other sections of the Act.
Had Congress intended such a limited right of action for an
organization, we are convinced that it would have drafted the
NVRA’s private right of action to make clear its narrow scope
when applied to organizations, given its use of terms that more
27
Lastly, our conclusion that Congress intended to eliminate
prudential standing requirements for plaintiffs suing under the
NVRA is supported by the Act’s inclusion of 42 U.S.C. § 1973gg-
9(c), a provision that allows the court to award attorneys’ fees,
litigation expenses, and costs to the prevailing party (other
than the United States). The Court in Bennett viewed such a
provision as designed to “encourage enforcement by so-called
‘private attorneys general,’” which it emphasized in determining
that Congress intended standing under the Endangered Species Act,
which provided that “any person may commence a civil suit,” to
expand to constitutional limits. 520 U.S. at 164 n.2, 165-66;
see Trafficante, 409 U.S. at 211 (emphasizing role of private
attorneys general in concluding that Congress intended to
eliminate prudential standing requirements for plaintiffs suing
under Title VIII provision); Conte Bros. Automotive, Inc. v.
Quaker State-Slick 50, Inc., 165 F.3d 221, 227 (3d Cir. 1998).
In sum, the NVRA’s legislative history, judicial
interpretations of the specific language Congress used in the
NVRA’s private right of action, and the inclusion of a provision
for attorneys’ fees, which indicates support of enforcement
actions by private attorneys general, all suggest that Congress
intended the NVRA’s private-right-of-action provision to
eliminate prudential limitations on standing. ACORN therefore
strongly connote a restriction to an individual elsewhere in the
Act, see, e.g., 42 U.S.C. § 1973gg(b)(1) (“eligible citizens”);
id. § 1973gg-3(a) (“applicant”); id. § 1973gg-3(d)
(“registrant”).
28
need only satisfy the standing requirements arising under Article
III--that it has suffered a redressable injury in fact that is
fairly traceable to the appellees’ alleged failure to implement
the NVRA. See Bennett, 520 U.S. at 162; Hanson v. Veterans
Admin., 800 F.2d 1381, 1384-85 (5th Cir. 1986) (stating that
plaintiff need only satisfy Article III standing requisites when
Congress intended to eliminate prudential standing requirements).
As we discussed supra, ACORN has presented a genuine issue of
material fact that it has suffered such an injury with respect to
its claim that Louisiana has failed to properly implement
§ 1973gg-5(a)(4)(A); the district court’s entry of summary
judgment in favor of the appellees on standing grounds with
respect to this claim was therefore inappropriate.
B. Representational Standing
We next analyze whether, even though ACORN lacks standing as
an organization to bring its first two claims against the
appellees, ACORN has standing to proceed on these claims as a
representative of its individual members. Under the test
outlined by the Supreme Court in Hunt v. Washington State Apple
Advertising Commission, 432 U.S. 333, 343 (1977),
an association has standing to bring suit on behalf of
its members when: (a) its members would otherwise have
standing to sue in their own right; (b) the interests
it seeks to protect are germane to the organization’s
purpose; and (c) neither the claim asserted nor the
relief requested requires the participation of
individual members in the lawsuit.
The appellees focus only on the first prong of the Hunt test;
they claim that ACORN has failed to establish a factual issue as
29
to whether any of its members has suffered an injury as a direct
result of its alleged failure to implement the NVRA.
ACORN counters with two related arguments. First, ACORN
insists that it has identified particular members who are
unregistered Louisiana residents, and have therefore been
aggrieved by Louisiana’s conduct, and second, that each of
ACORN’s members has been injured as a result of Louisiana’s
alleged failure to implement the NVRA because of its membership’s
political interest in voter registration and economic interest in
paying minimum membership dues to ACORN. We explain our
conclusion that ACORN has failed to raise a factual question as
to whether any of its members have suffered an Article III injury
below.
1. ACORN’s eligible, unregistered voters
ACORN’s first argument in support of its contention that it
has standing to challenge Louisiana’s implementation of the NVRA
as a representative of its individual members centers on several
ACORN members who ACORN claims are eligible to vote, but are not
registered to vote in Louisiana. Specifically, in its response
to the appellees’ interrogatories, ACORN identifies several of
its members who it claims “are eligible to register, but who are
not registered or [who are] not registered at their current
addresses.”
The district court properly determined that ACORN failed to
raise a factual question as to whether any of its unregistered
members had been injured as a direct result of Louisiana’s
30
alleged failure to implement the NVRA. ACORN has provided no
evidence that any of its unregistered members had ever received a
driver’s license renewal form or that any of its unregistered
members were previously registered but had been purged from the
voter rolls by Louisiana. We therefore fail to see how any
unregistered ACORN member has suffered a distinct and palpable
injury as a result of the appellees’ conduct.
ACORN claims that in Condon v. Reno, 913 F. Supp. 946 (D.
S.C. 1995), a federal district court determined that eligible but
unregistered voters have standing to bring NVRA implementation
suits. ACORN mischaracterizes the district court’s holding in
Condon, however. In that case, a district court considered
whether an individual plaintiff who had moved to South Carolina
had suffered an injury sufficient to allow her to bring suit
against the state for alleged violations of the NVRA. See id. at
960. The district court determined that the individual plaintiff
had suffered an injury based exclusively on the fact that she
alleged that South Carolina had failed to make voter registration
materials available at the Department of Motor Vehicles office at
which she received her driver’s license, in direct violation of
the NVRA. See id. Thus, Condon stands for the unspectacular
proposition that an individual plaintiff who has been directly
injured by the actions of a defendant has standing to sue that
defendant. See also Krislov v. Rednour, 946 F. Supp. 563, 566
(N.D. Ill. 1996) (“Standing under the NVRA is limited to the
United States Attorney General and the ‘aggrieved persons’ whose
31
voting rights have been denied or impaired.”). Unlike in Condon,
ACORN has made no such showing of an injury to any of its
unregistered members as a direct result of Louisiana’s alleged
failure to carry out its mail-in driver’s license renewal program
or to maintain its voter rolls in compliance with the NVRA; it
therefore cannot bring suit on behalf of its unregistered voters
on these claims.10
2. ACORN’s entire membership
ACORN fares no better on its second argument, which is based
on its contention that each of its members has an interest in
this litigation sufficient to allow him or her to maintain suit
against Louisiana. ACORN alleges that each of its members has
suffered three different types of injuries as a result of
Louisiana’s alleged failure to implement the NVRA. First, ACORN
argues that because its members pledge to vote in elections, they
have an interest in keeping their voter registration current, and
therefore that Louisiana “threatens imminent harm to those
10
ACORN also contends that Condon stands for the
proposition that unregistered voters have standing to bring NVRA
suits because the district court in that case certified a class,
with the individual plaintiff discussed supra as the class
representative, of “all eligible but unregistered voters in the
State of South Carolina.” 913 F. Supp. at 948. However, “the
propriety of classwide relief . . . does not require a
demonstration that some or all of the unnamed class could
themselves satisfy the standing requirements for named
plaintiffs.” Lewis v. Casey, 518 U.S. 343, 395 (1996) (Souter,
J., concurring in part and dissenting in part) (citing 1 H.
NEWBERG & A. CONTE, Newberg on Class Actions, § 2.07, at 2-40 to 2-
41 (3d ed. 1992) (“Whether or not the named plaintiff who meets
individual standing requirements may assert the rights of absent
class members is neither a standing issue nor an Article III case
or controversy issue but depends on meeting the prerequisites of
Rule 23 governing class actions.”)).
32
members who are not currently registered, to those who may be
moving, and to those who will be reaching voting age.” Second,
ACORN argues that because its members pay dues and volunteer
their time to ACORN to further the organization’s goals, each
member has standing to bring suit against the appellees. Third,
ACORN argues that it has presented summary judgment evidence that
its members who receive services from public aid offices have not
been provided voter registration materials, as allegedly required
by the NVRA.
We need not consider ACORN’s third argument, as we have
already determined that ACORN has standing as an organization to
challenge the appellees’ conduct with respect to the NVRA
requirement that Louisiana make voter registration material and
assistance available at voter registration agencies, including
public aid offices. Like the voter registration activities that
conferred standing on ACORN to bring this claim on its own
behalf, the fact that some of ACORN’s members may have suffered
an injury as a result of Louisiana’s alleged failure to comply
with § 1973gg-5(a)(4)(A) does not provide them with standing to
bring related claims for which they have suffered no Article III
injury.
In addition, ACORN’s claim that its members have suffered
injuries because they are “in imminent danger” of losing their
current voter registration status is much too speculative and
hypothetical to constitute a sufficient Article III injury. In
order for a member of ACORN to have standing on this ground,
33
ACORN “must show an individual who has sustained or is
immediately in danger of sustaining some direct injury as the
result of the challenged official conduct, and the injury or
threat of injury must be both real and immediate, not conjectural
or hypothetical.” National Treasury Employees Union v. United
States Dep’t of Treasury, 25 F.3d 237, 242 (5th Cir. 1994)
(internal quotation marks and alterations omitted). ACORN points
to no individual member who has ever received a mail-in driver’s
license application without an accompanying voter registration
form or to any member who believes that he or she is in immediate
danger of being improperly removed from Louisiana’s voter rolls.
Its argument on this point is entirely conjectural and therefore
fails to present a factual question as to whether any ACORN
members has suffered or is in immediate danger of suffering an
injury sufficient to confer standing.
Lastly, ACORN’s contention that its members have standing
because they pay dues and volunteer their time to ACORN to
further the organization’s goals lacks merit. Analytically, this
argument is the same as ACORN’s argument that it has standing to
sue on its own behalf as a result of resources it has spent
combating the appellees’ allegedly illegal conduct. The only
difference between the two arguments is where ACORN wants this
court to focus; supra, we analyzed whether ACORN, as an
organization, spent any particularized resources as a direct
result of counteracting the appellees’ conduct; ACORN now asks us
to concentrate our attention on those same resources as they
34
leave ACORN’s members hands and are given to ACORN as membership
dues. Our conclusion, however, remains the same. ACORN has
failed to include any evidence in the record that reasonably
supports the inference that any of its members has spent any
discrete, particularized, or concrete amount of money or time
counteracting Louisiana’s alleged failure to include voter
registration forms with mail-in driver’s license applications or
to properly maintain its voter rolls. The district court
therefore correctly granted summary judgment to the appellees on
the issue of representational standing.11
III. CONCLUSION
For the foregoing reasons, we REVERSE insofar as the
district court dismissed ACORN’s claim that the appellees
violated § 1973gg-5 of the NVRA, and we REMAND with instructions
to reinstate that claim. We AFFIRM the district court’s judgment
in all other respects. Costs shall be borne by ACORN.
AFFIRMED in part and REVERSED in part and REMANDED.
11
ACORN also asserts that it has standing to pursue its
claims under 42 U.S.C. § 1983. ACORN’s cursory analysis on this
issue, in which it fails to provide any legal analysis, operates
as a waiver of this issue on appeal. See Kmart Corp. v. Aronds,
123 F.3d 297, 299 n.4 (5th Cir. 1997). Moreover, we note that
even if ACORN had preserved this issue, that “[s]ection 1983
. . . is not an available remedy for deprivation of a statutory
right when the statute, itself, provides an exclusive remedy for
violations of its own terms.” Johnston v. Harris County Flood
Control Dist., 869 F.2d 1565, 1574 (5th Cir. 1989); see Middlesex
County Sewerage Auth. v. National Sea Clammers Ass’n, 453 U.S. 1,
19-20 (1981).
35