Colorado Montana Wyoming State Area Conference of the NAACP et al v. United States Election Integrity Plan et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Chief Judge Philip A. Brimmer
Civil Action No. 22-cv-00581-PAB
COLORADO MONTANA WYOMING STATE AREA CONFERENCE OF THE NAACP,
LEAGUE OF WOMEN VOTERS OF COLORADO, and
MI FAMILIA VOTA,
Plaintiffs,
v.
UNITED STATES ELECTION INTEGRITY PLAN,
SHAWN SMITH,
ASHLEY EPP, and
HOLLY KASUN,
Defendants.
ORDER
This matter is before the Court on defendants’ Motion to Dismiss [Docket No. 27].
Plaintiffs responded, Docket No. 33, and defendants replied. Docket No. 36.
I. BACKGROUND1
Plaintiffs Colorado Montana Wyoming State Area Conference of the NAACP
(“NAACP”), League of Women Voters of Colorado (“LWVCO”), and Mi Familia Vota
(“MFV”) are civil- and voting-rights organizations. Docket No. 1 at 4–5, ¶¶ 13–15.
1 As the Court explains below, defendants raise a facial attack on plaintiffs’
standing. Because defendants’ attack is facial rather than factual, the Court accepts the
allegations in the Complaint [Docket No. 1] as true. See United States v. Rodriguez-
Aguirre, 264 F.3d 1195, 1203 (10th Cir. 2001) (“Because we construe the United States’
Rule 12(b)(1) motion to dismiss for lack of standing to be a facial attack on the
complaint, rather than a factual one, we accept Appellants’ allegations of material facts
as true and construe the complaint in favor of Appellants.”).
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Defendants Shawn Smith, Ashley Epp, and Holly Kasun are members of defendant
United States Election Integrity Plan (“USEIP”). Id. at 6, ¶¶ 17–19.2 Mr. Smith “was, at
some points in time . . . [p]resident and [c]o-[f]ounder of USEIP.” Id., ¶ 17.
USEIP was formed after the 2020 presidential election and is focused primarily
on “advanc[ing] the false claim that former President Trump lost the 2020 election
because of ‘blatant election fraud.’” Id. at 7, ¶ 20. USEIP members travel door-to-door
and “interrogat[e] voters under the pretense of seeking to uncover ‘phantom ballots,’”
which they believe caused President Trump’s loss. Id., ¶¶ 22–23. USEIP members
target voters using voter rolls that Mr. Smith purchased and focus on “high-density
housing, communities experiencing growth among racial minority voters, and
communities in which a high percentage of voters supported Democratic candidates” in
2020. Id. at 8, ¶ 27. Members of USEIP, who are sometimes armed and wear badges
to “present an appearance of government officiality,” “interrogate” voters about their
addresses and their participation in the 2020 election, including how the voters cast
their ballots, and take photos of voters’ homes. Id. at 2, 8, ¶¶ 3, 27. Members have
“claimed to be from ‘the county’” and have “falsely accused [voters] of casting fraudulent
ballots.” Id. at 9, ¶ 27. The prospect of visits from USEIP members is particularly
intimidating for members of the Black and Latino communities, which plaintiffs serve,
because of the history of voter suppression in those communities. Id. at 10, ¶¶ 33–34.
Plaintiffs bring three claims for relief: (1) intimidating voters and potential voters
in violation of Section 11(b) of the Voting Rights Act of 1965; (2) attempting to intimidate
2 USEIP has no connection to the United States government and no federal or
state government agency. Id. at 7, ¶ 21.
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voters and potential voters in violation of Section 11(b) of the Voting Rights Act of 1965;
and (3) violating the Ku Klux Klan Act, 42 U.S.C. § 1985. Id. at 12–13, ¶¶ 39–51.
Defendants move to dismiss the complaint for lack of standing. Docket No. 27 at 1.
II. LEGAL STANDARD
An argument that a plaintiff lacks standing to assert a claim is properly
determined pursuant to Rule 12(b)(1) because such argument attacks the Court’s
subject matter jurisdiction. See Colo. Env’t. Coalition v. Wenker, 353 F.3d 1221, 1227
(10th Cir. 2004) (standing is jurisdictional). Rule 12(b)(1) challenges are generally
presented in one of two forms: “[t]he moving party may (1) facially attack the complaint’s
allegations as to the existence of subject matter jurisdiction, or (2) go beyond
allegations contained in the complaint by presenting evidence to challenge the factual
basis upon which subject matter jurisdiction rests.” Merrill Lynch Bus. Fin. Servs., Inc.
v. Nudell, 363 F.3d 1072, 1074 (10th Cir. 2004) (quoting Maestas v. Lujan, 351 F.3d
1001, 1013 (10th Cir. 2003)). Ultimately, plaintiffs have “[t]he burden of establishing
subject matter jurisdiction” because they are “the part[ies] asserting jurisdiction.” Port
City Props. v. Union Pac. R.R. Co., 518 F.3d 1186, 1189 (10th Cir. 2008).
“Each plaintiff must have standing to seek each form of relief in each claim.”
Collins v. Daniels, 916 F.3d 1302, 1312 (10th Cir. 2019) (quoting Am. Humanist Ass’n,
Inc. v. Douglas Cty. Sch. Dist. RE-1, 859 F.3d 1243, 1250 (10th Cir. 2017)). “The
standing inquiry ensures that a plaintiff has a sufficient personal stake in a dispute to
ensure the existence of a live case or controversy which renders judicial resolution
appropriate.” Tandy v. City of Wichita, 380 F.3d 1277, 1283 (10th Cir. 2004). To
establish Article III standing, a plaintiff must meet three elements:
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First, the plaintiff must have suffered an “injury in fact” – an invasion of a
legally protected interest which is (a) concrete and particularized, and (b)
“actual or imminent, not ‘conjectural’ or ‘hypothetical.’” Second, there
must be a causal connection between the injury and the conduct
complained of – the injury has to be “fairly . . . trace[able] to the
challenged action of the defendant, and not . . . th[e] result [of] the
independent action of some third party not before the court.” Third, it must
be “likely,” as opposed to merely “speculative,” that the injury will be
“redressed by a favorable decision.”
Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61 (1992) (citations omitted). “Injury
in fact is a constitutional requirement, and ‘[i]t is settled that Congress cannot erase
Article III’s standing requirements by granting the right to sue to a plaintiff who would not
otherwise have standing.’” Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547–48 (2016)
(quoting Raines v. Byrd, 521 U.S. 811, 820 n.3 (1997)). An injury is particularized if it
affects “the plaintiff in a personal and individual way.” Id. at 1548. “A ‘concrete’ injury
must be ‘de facto’; that is, it must actually exist”; it must be “real,” not “abstract.” Id. “If
a party satisfies these minimum constitutional requirements, then a court may still deny
standing if the injury alleged constitutes a “generalized grievance” that more
appropriately should be addressed by the representative branches.” Colo. Taxpayers
Union, Inc. v. Romer, 963 F.2d 1394, 1396 (10th Cir. 1992) (citing Allen v. Wright, 468
U.S. 737, 751 (1984)).
III. ANALYSIS
As an initial matter, the Court must determine what information it may consider in
reviewing defendants’ motion. A party filing a Rule 12(b)(1) motion may challenge
subject matter jurisdiction through a facial or factual attack. See Laufer v. Looper, 22
F.4th 871, 875 (10th Cir. 2022) (citing Baker v. USD 229 Blue Valley, 979 F.3d 866, 872
(10th Cir. 2020)). “A facial attack assumes the allegations in the complaint are true and
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argues they fail to establish jurisdiction. A factual attack goes beyond the allegations in
the complaint and adduces evidence to contest jurisdiction.” Id. (quoting Baker, 979
F.3d at 872). Because defendants challenge the sufficiency of plaintiffs’ jurisdictional
allegations, but do not dispute the allegations, see Docket No. 27 at 1–2 (“Accepting the
facts in [p]laintiffs’ [c]omplaint as true for purposes of this [m]otion, this Court should
dismiss the [c]omplaint because it is plain that no [p]laintiff has alleged an injury that
could confer standing.”), and have not provided any evidence to rebut plaintiffs’
allegations, the Court considers defendants’ challenge to be facial. See Laufer, 22
F.4th at 875 (“Because the Loopers have not adduced any evidence outside the
pleadings to contest jurisdiction, we address this issue as a facial challenge.”); see also
Thrasher v. Rocky Mountain Auto Brokers, Inc., No. 18-cv-02342-PAB-KMT, 2019 WL
4695831, at *4 (D. Colo. Sept. 25, 2019) (finding a facial attack because motion
accepted plaintiff’s allegations as true); Sentry Ins. a Mut. Co. v. Pichardo, 2021 WL
4034092, at *2 n.4 (D.N.M. Sept. 3, 2021) (“Here, the . . . challenge is facial, since
[movants] adduced no evidence such as affidavits, documents, etc., to contest
jurisdiction.”).
In reviewing a facial attack on plaintiffs’ standing, the Court considers only the
sufficiency of the complaint, as it would with a Federal Rule 12(b)(6) motion. See
Muscogee (Creek) Nation v. Okla. Tax Comm’n, 611 F.3d 1222, 1227 n.1 (10th Cir.
2010) (“A facial attack looks only to the factual allegations of the complaint in
challenging the court’s jurisdiction. A factual attack goes beyond the factual allegations
of the complaint and presents evidence in the form of affidavits or otherwise to
challenge the court’s jurisdiction. . . . [In a facial attack,] we apply the same standards
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under Rule 12(b)(1) that are applicable to a Rule 12(b)(6) motion to dismiss for failure to
state a cause of action.”); Cunningham v. Univ. of N.M. Bd. of Regents, 531 F. App’x
909, 913–14 (10th Cir. 2013) (unpublished) (“While the district court did not identify its
analysis as such, we construe its decision as being based on a facial attack because it
only addressed facts found within the four corners of Mr. Cunningham’s complaint.”
(citing Muscogee, 611 F.3d at 1227 n.1)); Williams v. City of Arvada, No. 21-cv-02236-
NYW, 2022 WL 1102532, at *11 (D. Colo. Apr. 13, 2022) (“in a facial challenge, the
focus is on the sufficiency of the allegations in the complaint”); Sanchez v. Ward, 2013
WL 12328914, at *2 (D.N.M. Oct. 29, 2013) (“In determining facial attacks on
jurisdiction, the Court limits its review to the sufficiency of the complaint, and it takes the
allegations in the complaint as true.”); Onyx Prop. LLC v. Bd. of Cnty. Comm’rs of Elbert
Cnty., No. 10-cv-01482-LTB-KLM, 2011 WL 588097, at *2 (D. Colo. Feb. 9, 2011)
(treating motion to dismiss for lack of standing as facial attack on the complaint); cf.
Rodriguez-Aguirre, 264 F.3d at 1203 (contrasting facial attack, where “the district court
must accept the allegations in the complaint as true,” with a factual attack, where the
court does not “presume the truthfulness of the complaint’s factual allegations,” but “has
wide discretion to allow affidavits, other documents, and a limited evidentiary hearing to
resolve disputed jurisdictional facts under Rule 12(b)(1)”); Baker, 979 F.3d at 872
(“When a defendant brings a factual attack, a district court has ‘wide discretion to allow
affidavits, other documents, and a limited evidentiary hearing to resolve disputed
jurisdictional facts.’” (quoting Stuart v. Colo. Interstate Gas Co., 271 F.3d 1221, 1225
(10th Cir. 2001)).
Plaintiffs are three organizations. See Docket No. 1 at 4–5, ¶¶ 13–15. An
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organization may have standing to sue either in its own right or on behalf of its
members. See Utah Physicians for a Healthy Env’t v. Diesel Power Gear, LLC, 21
F.4th 1229, 1241 (10th Cir. 2021); Warth v. Seldin, 422 U.S. 490, 511 (1975) (“[A]n
association may have standing in its own right to seek judicial relief from injury to itself
and to vindicate whatever rights and immunities the association itself may enjoy . . . [or,]
in the absence of injury to itself, an association may have standing solely as the
representative of its members.”).
First, an organization may have standing to sue on its own to challenge action
that causes it injury “if it meets the standing requirements that apply to individuals.”
Colo. Taxpayers Union, 963 F.2d at 1396 (citing Havens Realty Corp. v. Coleman, 455
U.S. 363, 378–79 (1982)). Plaintiffs allege that responding to defendants’ conduct has
caused them to divert resources that could otherwise be used for their usual
programmatic priorities. See generally Docket No. 1.
The diversion of resources is a cognizable injury. “[F]or several decades it has
been established that diversion of resources is a cognizable harm in the context
of Article III standing analysis.” Colorado v. EPA, 445 F. Supp. 3d 1295, 1307 (D. Colo.
2020) (citing Havens Realty, 455 U.S. at 379), rev’d on other grounds, 989 F.3d 874
(10th Cir. 2021). “[C]ases upholding diversion of resources as a cognizable harm are
almost always about nonprofit organizations seeking to advance a social goal (mostly
fair housing, voting rights, and immigrant rights).” Id.
In Havens [Realty], the Supreme Court found that an organization was
entitled to standing on its own behalf because the organization alleged
that an apartment owner’s racial steering practices had perceptively
impaired the organization’s ability to provide counseling and referral
services for low and moderate income home seekers. The Court stated
that “[s]uch [a] concrete and demonstrable injury to
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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.”
Colo. Taxpayers Union, 963 F.2d at 1397 (quoting Havens Realty, 455 U.S. at 379
(citation omitted)). In other words, an “organization has standing to sue on its own
behalf if the ‘defendant’s illegal acts impair its ability to engage in its projects by forcing
the organization to divert resources to counteract those illegal acts,’” Common Cause of
Colo. v. Buescher, 750 F. Supp. 2d 1259, 1269 (D. Colo. 2010) (quoting Fla. State
Conference of NAACP v. Browning, 522 F.3d 1153, 1165 (11th Cir. 2008)), or “when a
defendant’s conduct makes it difficult or impossible for the organization to fulfill one of
its essential purposes or goals.” Id. (citing Charles H. Wesley Educ. Found., Inc. v.
Cox, 408 F.3d 1349, 1353–54 (11th Cir. 2005)).
Second, an organization may also have standing to sue on behalf of its members
“(1) when its members would otherwise have standing to sue in their own right, (2) the
interests at stake are germane to the organization’s purpose, and (3) neither the claim
asserted nor the relief requested requires the participation of individual members in the
lawsuit.” Utah Physicians, 21 F.4th at 1241 (quoting Friends of the Earth, Inc. v.
Laidlaw Env’t Servs. (TOC), Inc., 528 U.S. 167, 181 (2000)); see also Hunt v. Wash.
State Apple Advertising Comm’n, 432 U.S. 333, 343 (1977).
Because “[e]ach plaintiff must have standing to seek each form of relief in each
claim,” see Collins, 916 F.3d at 1312; Am. Humanist Ass’n, Inc. v. Douglas Cnty. Sch.
Dist. RE-1, 859 F.3d 1243, 1254 (10th Cir. 2017) (citing Town of Chester v. Laroe Ests.,
Inc., 137 S. Ct. 1645, 1650 (2017)), the Court considers plaintiffs’ allegations relating to
each plaintiff individually.
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A court must satisfy itself of its subject matter jurisdiction at every stage of the
proceeding. See, e.g., Citizens Concerned for Separation of Church & State v. City &
Cnty. of Denver, 628 F.2d 1289, 1297 (10th Cir. 1980). At the pleading stage, a
plaintiff’s burden is a “low bar,” see, e.g., Attias v. Carefirst, Inc., 865 F.3d 620, 622
(D.C. Cir. 2017); Kan. Nat. Res. Coal. v. Dep’t of Interior, 971 F.3d 1222, 1231 (10th
Cir. 2020) (“At the pleading stage, general factual allegations of injury resulting from the
defendant’s conduct may suffice.” (quoting Lujan, 504 U.S. at 561)); United States v.
Sup. Ct. of N.M., 839 F.3d 888, 899 (10th Cir. 2016) (“the burden of establishing
standing at this stage of the litigation is lightened considerably”) (internal quotations and
citations omitted), while at summary judgment or trial, the plaintiff must show specific
facts. See, e.g., Comm. to Save the Rio Hondo v. Lucero, 102 F.3d 445, 450 (10th Cir.
1996).
A. Organizational Standing
The Court first considers plaintiffs’ organizational standing allegations and
determines whether plaintiffs have sufficiently alleged that defendants’ conduct has
caused plaintiffs a redressable injury. See Colo. Taxpayers Union, 963 F.2d at 1396.
1. NAACP
NAACP’s mission is to “ensure political, educational, social, and economic
equality of rights of all persons and to eliminate race-based discrimination.” Docket No.
1 at 4, ¶ 13. NAACP does this by coordinating the “civil rights activities of freedom
fighters and game-changing activists in Colorado” and ensuring that every American
has “free, open, equal, and protected access to the vote.” Id. Plaintiffs allege that
NAACP “has diverted time and other resources . . . in order to address [d]efendants’
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voter intimidation campaign” and, absent an injunction, it will be required to “further
divert time and resources.” Id. NAACP has “already exhausted resources actively
monitoring this voter intimidation and related safety concerns and strategizing about
how to combat [d]efendants’ actions” and “anticipates having to shift both personnel and
financial resources” to counteract USEIP’s actions, which is a “distraction from key
programs.” Id. at 10–11, ¶ 36.
Defendants argue that NAACP’s alleged injury is speculative, “not concrete,”
“volitional, manufactured, and a product of fear rather than actual injury traceable to
[d]efendants’ actions.” Docket No. 27 at 6. Defendants are correct that a voluntary
budgetary decision is not sufficient for an Article III injury. If it were, any organization
could “manufacture standing merely by inflicting harm” on itself. See Sup. Ct. of N.M.,
839 F.3d at 901 (citing Clapper v. Amnesty Int’l USA, 568 U.S. 398, 415–16 (2013)). In
other words, an organization cannot simply pick a fight and claim to have standing.
However, defendants’ reliance on Clapper is misplaced. In Clapper, the plaintiffs
claimed that they were “suffering present injuries” because they had chosen “to take
costly and burdensome measures to protect the confidentiality of their international
communications” from the potential of surveillance under the Foreign Intelligence
Surveillance Act, which was a “hypothetical future harm that is not certainly impending.”
Clapper, 568 U.S. at 402. The Supreme Court held that “precautions taken by the
plaintiffs to avoid the interception of their communications . . . were self-inflicted, and did
not establish standing, because the statute did ‘not regulate, constrain, or compel any
action on [the plaintiffs’] part.’” Sup. Ct. of N.M., 839 F.3d at 901 (quoting Clapper, 568
U.S. at 418). Here, however, plaintiffs allege that NAACP, which is dedicated to, among
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other things, ensuring that every American has “free, open, equal, and protected access
to the vote,” see Docket No. 1 at 4, ¶ 13, has already expended time and money to
counteract defendants’ conduct. Thus, unlike the “hypothetical enforcement” in
Clapper, plaintiffs allege that NAACP has already suffered a drain on resources that
could have been used elsewhere. See, e.g., Fish v. Schwab, 957 F.3d 1105, 1120
(10th Cir. 2020) (“But unlike the hypothetical enforcement in Clapper, the DPOC
requirement here actually was enforced against Mr. Bednasek. And it was that
enforcement that caused Mr. Bednasek’s injury-in-fact, not any decision he made to
spend money to avoid a hypothetical injury.”).
Moreover, courts have found standing in similar circumstances and based on
allegations similar to those plaintiffs make about NAACP and its being compelled to
divert resources, and a plaintiff need not show more at this stage of the proceeding.
See Comm. to Save the Rio Hondo, 102 F.3d at 449 (“In cases reviewing questions of
standing under a motion to dismiss, the court presumes general allegations embrace
those specific facts necessary to support the claim.”). For instance, in Common Cause
of Colorado, the court found sufficient the plaintiffs’ allegations that they “diverted
substantial resources in 2008, and will likely do so again in this election, dealing with
phone calls related to pre-election voter list ‘purges’/ cancellations.” 750 F. Supp. 2d at
1269–70 (“All three [p]laintiffs, moreover, claim injury-in-fact under Havens [Realty] . . .
as a result of having had to divert substantial resources from their normal election
activities in 2008 to counteract the actual and threatened effects of the 20-day Rule.”).
The court also noted that an “independent basis for organizational standing exists when
a defendant’s conduct makes it difficult or impossible for the organization to fulfill one of
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its essential purposes or goals.” Id. at 1269. Plaintiffs have alleged that NAACP’s
programmatic missions are impaired by their having to expend resources to counter
defendants’ conduct. Docket No. 1 at 4, 11, ¶¶ 13, 37. Other courts have found similar
allegations sufficient. See, e.g., Informed Consent Action Network v. Becerra, 2022 WL
992814, at *6 (S.D.N.Y. Mar. 31, 2022) (“Plaintiffs have properly pleaded perceptible
impairment of their mission. Taking the allegations in the [c]omplaint as true, [p]laintiffs
state that they have, and continue to, divert significant time and resources from other
organizational efforts to investigate, identify, and expose” defendants’ claims.); Nat’l
Coal. on Black Civic Participation v. Wohl, 498 F. Supp. 3d 457, 471 (S.D.N.Y. 2020)
(finding sufficient allegations that one of the plaintiff’s goals is “to promote and support
civic participation,” including by “helping and encouraging members of the Black
community in Detroit to participate in the Census” and, once the organization learned of
the defendant’s conduct, the plaintiff “had to stop her Census work in order to respond
to [it] . . . leaving less time to work on its Census-related outreach,” which “constitute[d]
a perceptible impairment of the organization’s activities”); Common Cause/N.Y. v.
Brehm, 344 F. Supp. 3d 542, 548–49 (S.D.N.Y. 2018) (finding sufficient allegations that
plaintiff has “devoted significant resources to addressing the concerns about New York's
list maintenance procedures” and has had to divert resources from “its efforts to register
and mobilize voters,” which is essential to its mission, “in order to assist voters who
have been improperly placed on ‘inactive’ status and/or removed from the voter rolls”);
League of Women Voters of Ariz. v. Reagan, 2018 WL 4467891, at *4 (D. Ariz. Sept.
18, 2018) (finding sufficient allegations that plaintiffs “changed their behavior because of
the alleged violations and expended additional resources that they would not otherwise
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have expended, and in ways that they would not have expended them” and that “the
injury is on-going because [p]laintiffs will continue to expend resources . . . to provide
voter registration services to individuals affected by [d]efendant’s alleged NVRA
violation” (citations and quotations omitted)); League of Women Voters of Cal. v. Kelly,
2017 WL 3670786, at *6 (N.D. Cal. Aug. 25, 2017) (same). Any of the plaintiff
organizations in these cases theoretically could have chosen not to devote resources to
countering the defendants’ conduct and, in that sense, their drained resources were
volitional. But courts have considered organizations in similar positions to have been
“forced” to act. See, e.g., Common Cause of Colo., 750 F. Supp. 2d at 1259; Browning,
522 F.3d at 1156. Moreover, defendants identify no authority for the proposition that,
where a defendant’s conduct has “perceptibly impaired” the plaintiff’s ability to engage
in its mission, see Colo. Taxpayers Union, 963 F.2d at 1397, by “forcing the [plaintiff] to
divert resources to counteract” the defendant’s conduct, the plaintiff lacks standing.
See Common Cause of Colo., 750 F. Supp. 2d at 1269; see also Jud. Watch, Inc. v.
Griswold, 554 F. Supp. 3d 1091, 1104 (D. Colo. 2021).3
In Havens Realty, the Supreme Court held that a fair housing organization had
organizational standing to challenge alleged violations of the Fair Housing Act. 455
U.S. at 379. The Court found sufficient the allegation that “[p]laintiff . . . has been
frustrated by defendants’ racial steering practices in its efforts to assist equal access to
3 The Court also notes that the perceptible impairment of an organization’s
mission or the diversion of resources need not be great. “For standing purposes, a loss
of even a small amount of money is ordinarily an ‘injury,’” Czyzewski v. Jevic Holding
Corp., 137 S. Ct. 973, 983 (2017), and “[t]he fact that the added cost has not been
estimated and may be slight does not affect standing, which requires only a minimal
showing of injury.” Crawford v. Marion Cnty. Election Bd., 472 F.3d 949, 951 (7th Cir.
2007), aff’d, 553 U.S. 181 (2008).
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housing through counseling and other referral services. Plaintiff . . . has had to devote
significant resources to identify and counteract the defendant’s [sic] racially
discriminatory steering practices.” Id. (bracket in original). The Court held that if, “as
broadly alleged, [the defendants’] steering practices have perceptibly impaired [the
plaintiffs’] ability to provide counseling and referral services for low- and moderate-
income homeseekers, there can be no question that the organization has suffered injury
in fact” because 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.” Id. The plaintiffs in
Havens Realty could have chosen not to test the defendants’ racial steering practices,
but the Court did not find that their doing so made their alleged injury “manufactured” or
“volitional.” See Schlesinger v. Reservists Comm. to Stop the War, 418 U.S. 208, 225–
26 (1974) (“[T]he essence of standing[] ‘is not a question of motivation but of
possession of the requisite . . . interest that is, or is threatened to be, injured by the
unconstitutional conduct.’”). Havens Realty is binding on this Court, and the Supreme
Court recently cited the case with approval. See Bank of Am. Corp. v. City of
Miami, 137 S. Ct. 1296, 1303 (2017).
NAACP anticipates having to expend additional resources to counteract
defendants. Docket No. 1 at 10–11, ¶ 36. Although future expenses may be more
hypothetical than past expenses, the Court accepts this allegation as true. See
Rodriguez-Aguirre, 264 F.3d at 1203; Muscogee, 611 F.3d at 1227 n.1. Moreover,
given that NAACP has allegedly already expended resources to counter defendants’
conduct, it is reasonable to infer that it will continue to expend resources to counter the
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same conduct if the conduct continues. See id. NAACP’s alleged injury of continued
and future expenses is not an injury based on “speculation about the decisions of
independent actors,” which the Court found insufficient in Clapper. 568 U.S. at 414.
Rather, as alleged, it is an “actual or imminent” injury. See TransUnion LLC v. Ramirez,
141 S. Ct. 2190, 2203 (2021); see also Browning, 522 F.3d at 1165–66 (“Plaintiffs have
made a sufficient showing that they will suffer a concrete injury” because they
“reasonably anticipate that they will have to divert personnel and time to educating
volunteers and voters,” which “would otherwise be spent on registration drives and
election-day education and monitoring.”).
The final two requirements for Article III injury are causation and traceability. See
Lujan, 504 U.S. at 560–61. Plaintiffs allege that defendants’ conduct has caused
NAACP its injury and that an injunction would redress the injury, which satisfies the final
causation and traceability. Docket No. 1 at 10–11, ¶ 36 (alleging that NAACP has
exhausted resources “to combat [d]efendants’ actions” and “towards combatting
USEIP’s voter intimidation campaign”). If defendants had not begun the alleged
“intimidation campaign,” NAACP would have continued to use its resources for its
programmatic priorities. See id. (“[t]his shift in resources is a distraction from key
programs that NAACP would otherwise support”). Relief from the Court, in the form of
an injunction and compensatory damages, as plaintiffs request, see id. at 15, would
allow NAACP to direct its resources back to its other civil rights and civic engagement
priorities and would remedy past expenditures. See id. at 10–11, ¶ 36. Although these
allegations are general, they are sufficient at the pleading stage. See Lujan, 504 U.S. at
561 (“At the pleading stage, general factual allegations of injury resulting from
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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.’”
(quoting Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 889 (1990)); Comm. to Save the Rio
Hondo, 102 F.3d at 449 (“In cases reviewing questions of standing under a motion to
dismiss, the court presumes general allegations embrace those specific facts necessary
to support the claim.”); see also Sierra Club v. Young Life Campaign, Inc., 176 F. Supp.
2d 1070, 1084 (D. Colo. 2001) (finding sufficient for injury, causation, traceability
allegation that “[d]efendant’s failure to comply with the Act, the regulations, and its
Permit has injured the past, present, and future interests of plaintiff, and plaintiff’s
members, by adversely affecting aesthetic, environmental, recreational, public health,
wildlife, due process, and procedural interests,” and that “[t]hese injuries are fairly
traceable to the actions of defendant complained of herein”).4
The Court therefore finds that plaintiffs have sufficiently pled that NAACP has
suffered a diversion-of-resources injury under Havens Realty and therefore has Article
III standing to proceed. The Court will therefore deny the motion as to NAACP.
2. LWVCO
LWVCO is a “non-profit civic engagement organization with the mission to
encourage informed and active participation in government, increase understanding of
major public policy issues, and influence public policy through education and advocacy.”
4 Even if plaintiffs’ requested relief would not necessarily remedy NAACP’s
alleged injuries, redressability only requires a showing that it is “likely, as opposed to
merely speculative, that the injury will be redressed by a favorable decision.” See
Lujan, 504 U.S. at 561, (internal quotation marks and citation omitted). Plaintiffs need
not show that a favorable decision will relieve every injury. See Larson v. Valente, 456
U.S. 228, 243 n.15 (1982).
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Docket No. 1 at 5, ¶ 14. LWVCO does this by “conduct[ing] state and local advocacy,
voter registration and engagement, civic education, and member enrichment programs.”
Id. Defendants’ actions, plaintiffs allege, are “a direct assault on LWVCO’s foundational
mission to help new, young, and/or newly naturalized voters exercise their rights to
participate in democracy.” Id. at 11, ¶ 37. Plaintiffs allege that LWVCO has “diverted
time and other resources from its civic engagement and election support programs in
order to address” defendants’ actions. Id. at 5, ¶ 14. LWVCO worries that “new voters
(such as young people, new citizens, and others who have just become eligible to vote)
are especially vulnerable to this intimidation” and may not vote as a result of
defendants’ conduct. Id. at 11, ¶ 37.
Defendants argue that plaintiffs have not alleged that LWVCO has sufficient
injury for Article III standing. Docket No. 27 at 5–6. Defendants’ arguments regarding
LWVCO are similar to their arguments regarding NAACP and fail for the same reasons.
Defendants assert that “[t]here has been no actual injury, and the injuries [plaintiffs
allege regarding LWVCO] are only hypothetical in nature.” Id. at 6. Although they
purport to accept plaintiffs’ allegations as true, see id. at 1, defendants appear to have
overlooked the allegation that LWVCO has “diverted time and other resources from its
civic engagement and election support programs in order to address” defendants’
actions. See Docket No. 1 at 5, ¶ 14. Just as plaintiffs have met their burden with
respect to NAACP, plaintiffs have also adequately alleged LWVCO’s injury, causation,
and redressability. Plaintiffs have alleged that defendants’ conduct has impacted
LWVCO’s mission and, because LWVCO would not have expended these resources to
counteract defendants if defendants had not engaged in the alleged conduct, plaintiffs
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have shown that defendants caused LWVCO’s injury. Moreover, a favorable resolution
of an injunction and compensatory damages would likely redress that injury, as LWVCO
would not have to expend more resources to counteract defendants’ conduct and would
be compensated for what it did spend. See Sierra Club, 176 F. Supp. 2d at 1084. The
Court’s analysis regarding NAACP standing applies equally with LWVCO and,
accordingly, the Court will deny defendants’ motion to dismiss LWVCO.
3. MFV
MFV is a “civic engagement organization that unites Latino, immigrant, and allied
communities to promote social and economic justice through citizenship workshops,
voter registration, and voter participation.” Docket No. 1 at 5, ¶ 15. MFV’s mission is to
“build Latino political power by expanding the electorate, strengthening local
infrastructures, and conducting year-round voter engagement.” Id. Plaintiffs allege that
MFV has “diverted time and other resources from its civic engagement and election
support programs” to respond to defendants’ conduct. Id. MFV “plans to invest
additional resources into counties targeted by USEIP so that voters there recognize
MFV canvassers as distinct from USEIP [members].” Id. at 11, ¶ 38. These resources
that MFV “has and will continue to spend responding to USEIP’s actions” would
“otherwise . . . have been spent on activities central to [MFV’s] core mission.” Id.
Defendants’ argument regarding MFV is contained in a single sentence: “[t]he
language regarding MFV’s alleged injury is entirely speculative, hypothetical, and
conjectural and cannot establish standing.” Docket No. 27 at 5 (citing Nat’l Treasury
Emps. Union v. United States, 101 F.3d 1423, 1427 (D.C. Cir. 1996)). MFV, however,
like NAACP and LWVCO, has expended resources to counter defendants’ alleged
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conduct. See Docket No. 1 at 5, ¶ 15. MFV’s resources could have been used for
other programs and activities. Id. at 11, ¶ 38. Plaintiffs therefore have sufficiently
alleged that MFV’s mission has been impaired by defendants’ conduct, and a favorable
resolution from this Court would redress MFV’s injury. Just as these allegations were
sufficient for NAACP pand LWVCO, they are sufficient for MFV. Accordingly, the Court
will deny defendants’ motion as to MFV.
B. Associational Standing
Defendants argue that they do not need to address plaintiffs’ possible
associational standing because plaintiffs “have not pled any facts to establish
associational standing, and therefore, plaintiffs may only establish direct organizational
standing.” Docket No. 27 at 3. Plaintiffs disagree. Docket No. 33 at 9. The Court need
not consider associational standing because the Court has determined that each
plaintiff has organizational standing. See Sierra Club, 176 F. Supp. 2d at 1084
(“Whether the Sierra Club has standing to sue on its own behalf as opposed to standing
to sue on behalf of its members is of no consequence so long as the Sierra Club has
standing on one of these bases.” (citing Comm. to Save the Rio Hondo, 102 F.3d at 447
n.3 (“An association has standing to sue even if it has not been injured itself so long as
the association’s members satisfy the constitutional minimum of Article III.”)).
C. Prudential Standing
The prudential standing doctrine encompasses various limitations, including “the
general prohibition on a litigant’s raising another person’s legal rights.” Allen v. Wright,
468 U.S. 737, 751 (1984). “[T]he plaintiff generally must assert his own legal rights and
interests, and cannot rest his claim to relief on the legal rights or interests of third
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parties.” Warth, 422 U.S. at 499. “Without such limitations – closely related to [Article]
III concerns but essentially matters of judicial self-governance – the courts would be
called upon to decide abstract questions of wide public significance even though other
governmental institutions may be more competent to address the questions and even
though judicial intervention may be unnecessary to protect individual rights.” Id. at 500;
see also The Wilderness Soc. v. Kane Cnty., 632 F.3d 1162, 1168–69 (10th Cir. 2011).
Prudential standing, however, “is not a jurisdictional limitation and may be
waived.” The Wilderness Soc., 632 F.3d at 1168 n.1. Neither party has raised the
issue of prudential standing. See Docket Nos. 27, 33. Although, the Court has
discretion to address prudential standing sua sponte, see Adams ex rel. D.J.W. v.
Astrue, 659 F.3d 1297, 1299–1301 (10th Cir. 2011), the Court declines to exercise its
discretion to consider the issue.
IV. CONCLUSION
For the foregoing reasons, it is
ORDERED that defendants’ Motion to Dismiss [Docket No. 27] is DENIED.
DATED April 28, 2022.
BY THE COURT:
___________________________
PHILIP A. BRIMMER
Chief United States District Judge
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