Beltinck et al v. McInerney et al

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
STEPHANIE BELTINCK, et al.,
Plaintiffs, 	Hon. Jane M. Beckering
v. 	Case No. 1:25-cv-1374
JENNY MCINERNEY, et al.,
Defendants.
____________________________________/
REPORT AND RECOMMENDATION
Presently before me is Defendants McInerney and Brater’s Motion to Dismiss (ECF No.
56), in which Defendant Benson has joined. (ECF No. 60.) The motion is fully briefed and ready
for decision. (ECF Nos. 62 and 63.) Pursuant to 28 U.S.C. § 636(b)(1)(B), I recommend that the
motion be GRANTED and Plaintiffs’ first amended complaint be dismissed.
I. 	Background
A. 	Procedural History
Plaintiffs Stephanie Beltinck and Shelly Lake filed their pro se complaint pursuant to 42
U.S.C. § 1983 and an emergency motion for temporary restraining order and preliminary
injunction on November 5, 2025, against Defendants Jenny McInerney, an attorney with the
Michigan Bureau of Elections (Bureau), Jonathan Brater, the Bureau’s Director, and Michigan
Secretary of State Jocelyn Benson. Plaintiffs sought relief in connection with an administrative
hearing on their Help America Vote Act (HAVA) complaints that had been set for November 18,
2025. Plaintiffs’ sole count in their complaint alleged a procedural due process violation. (ECF
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No. 1 at PageID.19.) The Court denied the motion for temporary restraining order on November
6, 2025 (ECF No. 6) and referred the case pursuant to 28 U.S.C. § 636(b)(1)(A). (ECF No. 7.)
On November 17, 2025, I issued a Report and Recommendation (PI R&R) recommending
that the Court deny the motion for preliminary injunction, which remains pending. (ECF No. 16.)
The same day, Defendants McInerney and Brater filed a notice that the November 18, 2025
administrative hearing had been adjourned (ECF No. 15), and Plaintiffs filed their first amended
verified complaint. (ECF No. 18.) The first amended complaint alleges claims pursuant to Section
1983 for: (1) violations of HAVA Sections 402 (state administrative complaint procedure), 301
(audit capacity requirement), and 303 (voter registration database accuracy and verification)
(Counts I, III–V); (2) violation of 52 U.S.C. § 20701 (federal record retention) (Count II); (3)
violation of Plaintiffs’ Fourteenth Amendment rights to procedural due process and equal
protection (Counts VI and VII); (4) violation of Section 8 of the National Voter Registration Act
(NVRA) 	(voter 	registration 	record 	retention) 	(Count 	VIII); 	and 	(5) 	“structural 	bias” 	in
administrative complaint adjudication (Count IX).
B. 	Factual Background
Because the PI R&R fully sets forth the background of this dispute, I incorporate it here.
A. 	HAVA Background
Congress enacted HAVA, 52 U.S.C. § 20901, et seq., in the wake of voting
controversies that occurred in connection with the November 2000 presidential
election. See Bay Cnty. Democratic Party v. Land, 347 F. Supp. 2d 404, 412 (E.D.
Mich. 2004). The Act is aimed at promoting voting and election administration
systems that will “be the most convenient, accessible and easy to use for voters”
and “will be nondiscriminatory and afford each registered and eligible voter an
equal opportunity to vote and have that vote counted.” 52 U.S.C. § 20981(a)(1) and
(3). Among other things, HAVA establishes an Election Assistance Commission
that assists States with the administration of Federal elections, conducts studies and
issues reports, and assists with the administration of certain Federal election laws
and programs. Id., §§ 20921, 20981. HAVA also requires States to create reliable
registration rolls by implementing a uniform, regularly updated computerized
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statewide voter registration list. Id. § 21083. In addition, HAVA 	authorizes
funding to States to help them meet the requirements of the Act. Id. § 21001.
Congress provided two express avenues to enforce HAVA’s provisions.
First, the Attorney General may bring actions for injunctive and declaratory relief
“as may be necessary to carry out the uniform and nondiscriminatory election
technology and administration requirements” under various HAVA provisions. 52
U.S.C. § 21111. Second, “any person who believes that there is a violation of any
provision of subchapter III (including a violation which has occurred, is occurring,
or is about to occur) may file a complaint” under “State-based administrative
complaint procedures.” Id. § 21112(a)(1), (a)(2)(B). A State that receives funding
under 	a 	HAVA 	program 	is 	obligated 	to 	“establish 	and 	maintain” 	such
“administrative complaint procedures.” Id. § 21112(a)(1). HAVA specifies the
following requirements and procedures:
(A) The procedures shall be uniform and nondiscriminatory.
(B) Under the procedures, any person who believes that there is a violation
of any provision of subchapter III (including a violation which has occurred,
is occurring, or is about to occur) may file a complaint.
(C) Any complaint filed under the procedures shall be in writing and
notarized, and signed and sworn by the person filing the complaint.
(D) The State may consolidate complaints filed under subparagraph (B).
(E) At the request of the complainant, there shall be a hearing on the record.
(F) If, under the procedures, the State determines that there is a violation of
any provision of subchapter III, the State shall provide the appropriate
remedy.
(G) If, under the procedures, the State determines that there is no violation,
the State shall dismiss the complaint and publish the results of the
procedures.
(H) The State shall make a final determination with respect to a complaint
prior to the expiration of the 90-day period which begins on the date the
complaint is filed, unless the complainant consents to a longer period for
making such a determination.
(I) If the State fails to meet the deadline applicable under subparagraph (H),
the complaint shall be resolved within 60 days under alternative dispute
resolution procedures established for purposes of this section. The record and
other materials from any proceedings conducted under the complaint
procedures established under this section shall be made available for use
under the alternative dispute resolution procedures.
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Id. § 21112(a)(2).
B. 	The Bureau’s Complaint Process
In accordance with Section 21112(a)(2), Michigan has adopted the required
administrative complaint procedures. (ECF No. 9-2.) The procedures provide that
a person who believes an election authority has violated Title III of HAVA may file
a complaint with the Bureau, which the Bureau will forward to the election
authority within five days for a response. The Bureau may consolidate two or more
complaints “if they contain substantially similar allegations against an election
authority” or are “filed by the same person.” (Id. at PageID.280.)
A complaint must: (1) identify the election authority that has violated
HAVA Title III; (2) cite the Title III provision allegedly violated; (3) explain how
the named election authority violated the provision; and (4) state that the
complainant “either witnessed or possesses first-hand knowledge of the conduct
alleged in [the complaint].” (Id. at PageID.281.) In addition, a complaint may
request that the Bureau conduct a hearing on the record and include “[n]otarized
affidavits from a maximum of three (3) persons who witnessed the alleged
violations.” (Id.) The election authority’s response to the complaint, if any, must be
made within 25 days after receipt of the complaint and, like the complaint, may
include up to three notarized affidavits of “persons who have information that may
assist the Bureau in determining whether the election authority violated Title III.”
(Id. at PageID.282.)
At a hearing, the complainant may call as witnesses only those persons who
provided affidavits with the complaint, and the election authority may call as
witnesses only those persons who provided affidavits in the response. The Bureau
shall designate one or more persons to direct the hearing. (Id. at PageID.283.) In
resolving the complaint, the Bureau must weigh both written testimony and oral
testimony presented at the hearing. If the Bureau finds no reason to believe that the
election authority violated Title III, it shall dismiss the complaint. On the other
hand, if the Bureau finds reason to believe that a violation has occurred, it must
provide an appropriate remedy and publish the results of its final determination on
its website. (Id. at PageID.282–83.)
C. 	Plaintiffs’ HAVA Complaints
On September 10, 2025, Beltinck filed the first of her three complaints,
which the Bureau designated HAVA 2025-01. This complaint alleged that the
platform supporting the statutorily-required electronic return of military ballots
violated HAVA’s audit requirements because it has no paper trail or audit capacity.
The Bureau notified the election authority of the complaint on September 15, 2025.
(ECF No. 9-3 at PageID.289.)
On September 11, 2025, Lake filed a HAVA complaint, which the Bureau
designated HAVA 2025-02. This complaint alleged that the deletion of information
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from electronic pollbooks following an election eliminates the ability to audit
results. The Bureau notified the election authority of the complaint on September
16, 2025. (Id.) The same day, Beltinck filed her second complaint, which the
Bureau designated HAVA 2025-03. This complaint alleged that the information
contained in Michigan’s voter registration list is not auditable because it lacks time
stamps and assigns multiple user ID numbers to a single voter. The Bureau notified
the election authority of this complaint on September 15, 2025. (Id.at PageID.289–
90.)
On September 17, 2025, the Department of State issued a notice of isolation
wall to all department staff listing the three complaints that had been received at
that time. The notice indicated that Defendants Brater and McInerny would serve
on 	the 	“Bureau 	Adjudication 	Team,” 	while 	Defendant 	Benson 	and 	the
Department’s Legal Services Administration staff would serve on the “Secretary of
State Team.” All Department staff were notified that the two teams were “isolated
from any discussions concerning this matter outside their respective teams.” (Id. at
PageID.291.)
Beltinck filed her last complaint, alleging that the deletion of information
from electronic pollbooks removes manual audit ability, on October 8, 2025. The
Bureau designated this complaint HAVA 2025-05 and provided notice to the
election authority on October 10, 2025. (Id. at PageID.290.) Also on October 10,
2025, the Bureau notified Plaintiffs that their HAVA complaints had been
consolidated pursuant to the HAVA complaint process. (ECF No. 1 at PageID.9;
ECF No. 9-3 at PageID.291.)
With 	each 	complaint, 	Plaintiffs 	submitted 	a 	USB 	drive 	containing
documents. After the drives were scanned for security threats, the Bureau
transmitted them to the election authority for consideration. Upon review of the
documents for HAVA 2025-05, the Bureau discovered that only one item included
on the USB drive was listed on the exhibit list for the complaint and another item
was only partially included on the exhibit list. The USB drive included four
additional documents that were not included on the exhibit list. (Id. at PageID.293.)
On October 23, 2025, the Bureau sent Beltinck an email notifying her of the
situation and asking for clarification. (ECF No. 1-5; ECF No. 9-3 at PageID.293.)
Beltinck responded the same day, stating that she would be including the additional
documents in HAVA 2025-05 in addition to the exhibits already received. The
Bureau responded on October 29, 2025, notifying Beltinck that the HAVA
complaint process does not permit a complainant to supplement an existing
complaint with new materials. (ECF No. 1-6; ECF No. 9-3 at PageID.293.)
Lake’s complaint and at least one of Beltinck’s complaints named both
Defendants Brater and Benson as respondents. By letters dated September 16, 2022,
and October 10, 2025, Defendant Brater notified Plaintiffs that because Defendant
Benson, as the “chief election officer of the state” pursuant to Mich. Comp. Laws
§ 168.21, is the “election authority” subject to the administrative complaint process,
the complaints were dismissed insofar as they named Brater as a respondent, but
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would proceed with Defendant Benson as the respondent. (ECF No. 1-1; ECF No.
1-13; ECF No. 1-13.) In addition, in at least two of her complaints, Beltinck alleged
violations of the National Voter Registration Act, the Voting Rights Act, the Civil
Rights Act, and the U.S. Constitution. (ECF No. 1-1 at PageID.28–29; ECF No. 1-
2 at PageID.31–32.) By letters dated October 1, 2025, and October 10, 2025,
Defendant Brater notified Beltinck that these portions of the complaints were
dismissed as they fall outside of Michigan’s HAVA complaint process, but that the
matters would proceed as to the alleged HAVA violations. (ECF No. 1-1 at
PageID.28–29; ECF No. 1-2 at PageID.31–32.)
Defendant Benson filed her response to the first three complaints on
October 10, 2025. (ECF No. 1-14.) The response, titled “motion to dismiss,”
included a portion arguing that Plaintiffs’ HAVA complaints should be dismissed
because they fail specifically to allege how the Department’s actions violated the
cited HAVA provisions. In support of this argument, the response offers the
pleading standards set forth in the United States Supreme Court case of Bell Atlantic
Corp. v. Twombly, 550 U.S. 544 (2007), and the Michigan Court of Appeals case
of Cape v. Howell Board of Education, 145 Mich. App. 459 (1985), to assess the
viability of the complaints. (ECF No. 1-14 at PageID.68–69.) Defendant Benson
filed her response to HAVA 2025-05 on November 4, 2025. (ECF No. 9-3 at
PageID.294–95.)
On October 17, 2025, Defendant McInerney notified Plaintiffs by email that
the Bureau had scheduled a hearing for each of the complaints via Microsoft Teams
for November 18, 2025, at 10:00 a.m. The email indicated that Beltinck and Lake
would each be allowed 30 minutes of argument for their complaints, and Defendant
Benson would be allowed 30 minutes of argument to respond. (ECF No. 1-4 at
PageID.36.) Because the HAVA Complaint process does not specify time limits for
hearings, the Bureau adopted the Michigan Court of Appeals limit for argument of
calendar cases of 30 minutes per side. (ECF No. 9-3 at PageID.292–93.)
(ECF No. 16 at PageID.314–20 (footnote omitted).)
II. 	Motion Standards
Defendants move for dismissal pursuant to Federal Rule of Civil Procedure 12(b)(1) for
lack of jurisdiction and Rule 12(b)(6) for failure to state a claim.
Where jurisdiction is challenged under Rule 12(b)(1), the plaintiff bears the burden of
proving jurisdiction. Rogers v. Stratton Indus., Inc., 798 F.2d 913, 915 (6th Cir. 1986). A motion
to dismiss under Rule 12(b)(1) for lack of jurisdiction may come in the form of either a “facial
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attack” or a “factual attack.” O’Bryan v. Holy See, 556 F.3d 361, 375 (6th Cir. 2009). A facial
attack “questions merely the sufficiency of the pleading.” Id. at 376.
“[W]hen reviewing a facial attack, a district court takes the allegations in the
complaint as true. . . . If those allegations establish federal claims, jurisdiction
exists.” However, “conclusory allegations or legal conclusions masquerading as
factual conclusions will not suffice to prevent a motion to dismiss.”
Id. (internal citations omitted). “A factual attack, on the other hand, is not a challenge to the
sufficiency of the pleading’s allegations, but a challenge to the factual existence of subject matter
jurisdiction.” United States v. Ritchie, 15 F.3d 592, 598 (6th Cir. 1994). Here, Defendants’
challenge to standing presents a facial attack. In a facial attack, the court accepts as true all the
allegations in the complaint, similar to the standard for a Rule 12(b)(6) motion. Ohio Nat’l Life
Ins. Co. v. United States, 922 F.2d 320, 325 (6th Cir. 1990).
Pursuant to Federal Rule of Civil Procedure 12(b)(6), a claim must be dismissed for failure
to state a claim on which relief may be granted unless the “[f]actual allegations [are] enough to
raise a right to relief above the speculative level on the assumption that all of the complaint’s
allegations are true.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 545 (2007) (internal citations
and footnote omitted). As the Supreme Court has held, to satisfy this rule, a complaint must contain
“sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). This plausibility
standard “is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility
that a defendant has acted unlawfully.” Id. If the complaint simply “pleads facts that are merely
consistent with a defendant’s liability, it stops short of the line between possibility and plausibility
of entitlement to relief.” Id. (internal quotation marks omitted). As the Court further observed:
Two working principles underlie our decision in Twombly. First, the tenet that a
court must accept as true all of the allegations contained in a complaint is
inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not suffice. Rule 8 marks a
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notable and generous departure from the hyper-technical, code-pleading regime of
a prior era, but it does not unlock the doors of discovery for a plaintiff armed with
nothing more than conclusions. Second, only a complaint that states a plausible
claim for relief survives a motion to dismiss. Determining whether a complaint
states a plausible claim for relief will, as the Court of Appeals observed, be a
context-specific task that requires the reviewing court to draw on its judicial
experience and common sense. But where the well-pleaded facts do not permit the
court to infer more than the mere possibility of misconduct, the complaint has
alleged—but it has not “show[n]”—“that the pleader is entitled to relief.”
Id. at 678–79 (internal citations omitted).
When evaluating a complaint under Rule 12(b)(6), a court may consider the complaint and
any exhibits attached thereto, public records, and items appearing in the record of the case. See
Bassett v. NCAA, 528 F.3d 426, 430 (6th Cir. 2008); see also, Continental Identification Prods.,
Inc. v. EnterMarket, Corp., No. 1:07-CV-402, 2008 WL 51610 at *1, n.1 (W.D. Mich. Jan. 2,
2008) (stating that “an exhibit to a pleading is considered a part of the pleading,” and “the Court
may properly consider the exhibits . . . in determining whether the complaint fail[s] to state a claim
upon which relief may be granted without converting the motion to a Rule 56 motion”). “Court
filings and docket entries are considered matters of public record which may be consulted in
deciding a Rule 12(b)(6) motion.” Grise v. Stewart Cnty. Sch. Sys., No. 3:21-CV-00058, 2021 WL
4864490, at *8 (M.D. Tenn. Oct. 19, 2021) (quoting In re Gainey Corp., Nos.11-8038, 08-09092,
10-80483, 2012 WL 3938521, at *13 (B.A.P. 6th Cir. Sept. 11, 2012)).
III. 	Discussion
Defendants move for dismissal of Plaintiffs’ first amended complaint on a number of
grounds. I conclude that motion should be granted upon the ground that Plaintiffs lack Article III
standing to assert their claims.1
1 Plaintiffs devote a substantial portion of their response to arguing that Defendants improperly
relied on the Brater affidavit to support their motion and that the motion relies on disputed facts.
(ECF No. 62 at PageID.666–72.) Neither assertion is persuasive. While Plaintiffs are correct that
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A. 	Counts II, VIII, and IX
Defendants raised specific reasons for dismissal of the claims in Counts II and VIII, to
which Plaintiffs did not respond. It is well established that in these circumstances, a court may
treat the undefended claims for relief as abandoned. Washington v. Roosen, Varchetti & Oliver,
PPLC, 894 F. Supp. 2d 1015, 1027 (W.D. Mich. 2012) (“Failing to respond to arguments properly
raised in a motion to dismiss constitutes abandonment of that position.”); Bazinski v. JPMorgan
Chase Bank, N.A., No. 13-14337, 2014 WL 1405253, at *2 (E.D. Mich. 2014) (“Claims left to
stand undefended against a motion to dismiss are deemed abandoned”). Therefore, the Court
should dismiss these claims as abandoned.
As for Count IX, Defendants argued that the claim for “structural bias” is not a recognized,
distinct cause of action. (ECF No. 57 at PageID.624.) Plaintiffs do not dispute this point but argue
that “it is a Section 1983 claim for violation of the Fourteenth Amendment’s Due Process Clause
based on structural bias in adjudication.” (ECF No. 62 at PageID.684.) Because Plaintiffs concede
that Count IX is not a distinct cause of action, Count IX should be dismissed and considered as
part of Plaintiffs’ separate due process claim.
B. 	Standing
Article III of the Constitution limits the “judicial Power” of federal courts to “Cases” and
“Controversies.” U.S. Const. art. III, § 2, cl. 1. Standing is one component of Article III
jurisdiction. It is a threshold inquiry because the elements of standing are “an indispensable part
a court is generally limited to reviewing the sufficiency of the allegations in the complaint in
deciding a motion to dismiss, Defendants’ legal arguments do not rely or depend on the factual
assertions in the Brater affidavit. The affidavit simply provides context for the dispute and does
not figure into the standing analysis herein. Regardless, as noted above, a court may consider
matters of public record, including court filings and docket entries. Finally, none of Defendants’
arguments require the Court to resolve disputed issues of material fact.
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of the plaintiff’s case.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992). If a plaintiff
lacks Article III standing, the court has no subject matter jurisdiction to hear the claim. Imhoff Inv.,
LLC v. Alfoccino, Inc., 792 F.3d 627, 631 (6th Cir. 2015); Central States Se. & Sw. Areas Health
& Welfare Fund v. Merck-Medco Managed Care, LLC, 433 F.3d 181, 198 (2d Cir. 2005) (citing
Lujan, 504 U.S. at 560). This Court has no authority to render advisory opinions, issue opinions
on abstract principles, or hear generalized grievances. See Allen v. Wright, 468 U.S. 737, 751
(1984); Preiser v. Newkirk, 422 U.S. 395, 401 (1975); North Carolina v. Rice, 404 U.S. 244, 246
(1971). Thus, a plaintiff seeking relief must show that she has standing to assert a claim.
To prove standing, a plaintiff must show that she suffered some actual or threatened injury
due to the alleged illegal conduct of the defendant; the injury must be “fairly traceable” to the
challenged action; and there must be a substantial likelihood that the relief requested will redress
or prevent the plaintiff's injury. Valley Forge Christian Coll. v. Americans United for Separation
of Church & State, Inc., 454 U.S. 464, 472 (1982). An injury in fact requires “‘an invasion of a
legally protected interest’ that is ‘concrete and particularized’ and ‘actual or imminent, not
conjectural or hypothetical.’” Spokeo, Inc. v. Robins, 578 U.S. 330, 339 (2016) (quoting Lujan,
504 U.S. at 560). “[T]he standing requirement limits federal court jurisdiction to actual
controversies so that the judicial process is not transformed into a vehicle for the vindication of
the value interests of concerned bystanders.” Coyne v. American Tobacco Co., 183 F.3d 488, 494
(6th Cir. 1999) (internal quotation marks and citations omitted).
The present inquiry concerns the existence of an injury, which must satisfy two distinct
components: particularization and concreteness. Spokeo, 578 U.S. at 339. To be “particularized,”
the asserted injury “must affect the plaintiff in a personal and individual way.” Id. An injury that
is undifferentiated and common to all members of the public amounts to a “generalized grievance”
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that fails the particularization requirement. United States v. Richardson, 418 U.S. 166, 173–75
(1974). 	“[N]o 	matter 	how 	sincere,” 	a 	generalized 	grievance 	cannot 	support 	standing.
Hollingsworth v. Perry, 570 U.S. 693, 706 (2013).
To meet Article III’s “concrete injury” requirement, the “injury must be ‘de facto’; that is,
it must actually exist.” Spokeo, 578 U.S. at 340. Both tangible and intangible harms can satisfy
this requirement. TransUnion LLC v. Ramirez, 594 U.S. 413, 425 (2021). “[T]raditional tangible
harms, such as physical harms and monetary harms,” “readily qualify as concrete injuries under
Article III.” Id. Intangible harm requires more analysis. In Spokeo, the Court addressed whether
the plaintiff had suffered an injury in fact to support his claims under the Fair Credit Reporting
Act (FCRA) based on the defendant’s noncompliance with FCRA requirements, for which
Congress had authorized a cause of action for actual or statutory damages. Id. at 335–36. To
identify intangible harm for Article III purposes, the Court found it useful to consider whether the
asserted harm “has a close relationship to a harm that has traditionally been regarded as providing
a basis for a lawsuit in English or American courts.” 578 U.S. at 340–41. Examples include
“reputational harms, disclosure of private information, and intrusion upon seclusion.” TransUnion,
594 U.S. at 425. Some constitutional harms, such as free speech or free exercise violations, may
also qualify. Id. (citing Spokeo, 578 U.S. at 340 (citing Pleasant Grove City v. Summum, 555 U.S.
460 (2009), and Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520 (1993))). Apart from
history, the Court found “the judgment of Congress” informative. Spokeo, 578 U.S. at 340–41. It
cautioned, however:
Congress’ role in identifying and elevating intangible harms does not mean that a
plaintiff automatically satisfies the injury-in-fact requirement whenever a statute
grants a person a statutory right and purports to authorize that person to sue to
vindicate that right. Article III standing requires a concrete injury even in the
context of a statutory violation. For that reason, [the plaintiff] could not, for
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example, allege a bare procedural violation, divorced from any concrete harm, and
satisfy the injury-in-fact requirement of Article III.
Id. at 341; see also Department of Educ. v. Brown, 600 U.S. 551, 562 (2023) (stating that “we have
never held a litigant who asserts [violation of a procedural] right is excused from demonstrating
that it has a ‘concrete interest that is affected by the deprivation’ of the claimed right”) (quoting
Summers v. Earth Island Inst., 555 U.S. 488, 496–97 (2009)).
For purposes of standing, Plaintiffs allege two sources of injury: (1) substantive injuries
from deletion of electronic pollbook (EPB) records; and (2) procedural injuries from a defective
HAVA administrative process. (ECF No. 18 at PageID.345, 347.) The alleged substantive injuries
pertain to Counts III and IV asserting violations of HAVA Sections 301 and 303, 52 U.S.C. §§
21081(a)(2) and 21083(a), while the procedural violations pertain to Counts I and V asserting
violations of HAVA Section 402, 52 U.S.C. § 21112(a)(2).
1. 	Plaintiffs’ substantive injuries are “generalized grievances”
Regarding their claimed substantive injuries, Plaintiffs allege that Defendants’ directive
requiring deletion of EPB information within seven days of an election results in a concrete injury
to them because it prevents them from verifying that: (a) the number of ballots cast at their
respective precincts matches the number of voters who checked in via EPB; (b) their check-ins
were properly recorded and timestamped; (c) only one ballot was issued in each of their names;
(d) the EPB reconciled with the number of cast ballots; (e) any discrepancy between EPB check-
ins and cast ballots was identified or investigated; and (f) the audit trail required by HAVA Section
301 exists for the election in which they participated. (Id. at PageID.346.) Plaintiffs contend these
are not generalized injuries because deletion of EPD information from the records of their
respective precincts precludes them from confirming their participation in the election at their
precincts. (Id.)
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Plaintiff’s argument lacks merit because the harm they allege is widely shared by all
Michigan voters. In other words, Plaintiffs’ complaints about HAVA violations amount to the sort
of “generalized grievance” that is “plainly undifferentiated and common to all members of the
public.” Lance v. Coffman, 549 U.S. 437, 440–41 (2007) (internal quotation marks omitted)
(quoting Richardson, 418 U.S. at 176–77); see also Schlesinger v. Reservists Committee to Stop
the War, 418 U.S. 208, 220 (1974) (holding that the plaintiffs lacked standing to bring a challenge
under the Constitution’s Incompatibility Clause to Congressmembers’ military service while
holding office because “standing to sue may not be predicated upon an interest of the kind alleged
here which is held in common by all members of the public, because of the necessarily abstract
nature of the injury all citizens share”). The asserted harm is not individualized because all voters
in Plaintiffs’ precincts suffer the same injury. In turn, voters in every other precinct throughout
Michigan can assert the same injury. This broad-based injury arises from the Bureau’s alleged
failure to comply with HAVA’s recordkeeping and other requirements—a concern to all citizens.
But “[t]o have standing, . . . a plaintiff must have more than ‘a general interest common to all
members of the public.’” Lance, 549 U.S. at 440 (quoting Ex parte Levitt, 302 U.S. 633, 634
(1937)). A claim that “the law has not been followed,” which is what Plaintiffs allege here, “is
precisely the kind of undifferentiated, generalized grievance about the conduct of government that
[the Supreme Court] ha[s] refused to countenance in the past.” Id. at 442. In fact, Plaintiffs’
allegations of HAVA violations here are indistinguishable from numerous other cases in which
courts have dismissed election law challenges because they failed to allege particularized injuries
in fact.2 See, e.g., Hotze v. Hudspeth, 16 F.4th 1121, 1124 (5th Cir. 2021) (plaintiffs who alleged
2 In their response, Plaintiffs argue that “Lake’s injuries are particularly concrete because she is a
Deputy Election Clerk for Barry County, Michigan . . . [, and] [t]he deletion of EPB records affects
not only her rights as a voter but also her ability to perform her duties as an election official[.]”
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that drive-thru voting “hurt the ‘integrity’ of the election process” lacked standing because their
claim was “far too generalized to warrant standing”); Wood v. Raffensperger, 981 F.3d 1307, 1314
(11th Cir. 2020) (holding that the plaintiff’s “interest in ensuring that only lawful ballots are
counted” was simply a “generalized grievance” because his “interest in compliance with state
election laws [was no] different from that of any other person” (first quotation cleaned up)); Crist
v. Commission on Presidential Debates, 262 F.3d 193, 195 (2d Cir. 2001) (stating that “a voter
fails to present an injury-in-fact when the alleged harm is abstract and widely shared”); King v.
Whitmer, 505 F. Supp. 3d 720, 739 n.11 (E.D. Mich. 2020) (voters failed to allege redressable,
particularized injury in connection with an equal protection claim); Paher v. Cegavske, 457 F.
Supp. 3d 919, 926–27 (D. Nev. 2020) (“Plaintiffs’ purported injury of having their votes diluted
due to ostensible election fraud may be conceivably raised by any Nevada voter.”).
Plaintiffs distinguish their circumstances from those of the plaintiffs in the foregoing cases,
including Lance and Hotze, because Plaintiffs claim they are “not generic voters raising abstract
concerns about election integrity . . . [but] are identified complainants in pending HAVA
administrative proceedings . . . who have personally experienced specific procedural deprivations
in those proceedings.” (ECF No. 62 at PageID.672.) This argument is meritless, as Plaintiffs cite
no case for the proposition that a plaintiff may create standing by marrying a procedural violation
with a generalized grievance. Indeed, Spokeo and TransUnion preclude such a result because an
(ECF No. 62 at PageID.676.) Apart from the fact that this allegation does not appear in the first
amended complaint, changing hats does not transform Lake’s generalized grievance into a
particularized injury, as her purported injury as a deputy clerk is the same injury shared by every
other clerk and deputy clerk throughout Michigan. Moreover, an inability to do one’s job as fully
as one would like is not the sort of intangible injury that can support Article III standing because
it lacks “a close historical or common-law analogue.” TransUnion, 594 U.S. at 424.
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injury must be both concrete and particularized.3 In short, Plaintiffs’ alleged substantive harm
consists of nothing more than injury that is undifferentiated and common to all members of the
public.
2. 	HAVA procedural violations are not an “intangible injury”
Plaintiffs also suggest that denial of procedural rights in connection with their HAVA
administrative complaints amounts to a “concrete injury” for purposes of Article III. Not so.
“[D]eprivation of a procedural right without some concrete interest that is affected by the
deprivation—a procedural right in vacuo—is insufficient to create Article III standing.” Summers,
555 U.S. at 496. As set forth above, to establish an injury that is concrete, Plaintiffs must allege
that they suffered a tangible or intangible injury. Plaintiffs allege no financial loss or bodily injury,
so they must allege intangible injury that passes muster under Spokeo and TransUnion. They fail
to do so.
Recently, the Seventh Circuit considered a similar challenge alleging violation of HAVA’s
administrative procedure provisions set forth in 52 U.S.C. § 21112(a) and held that the plaintiffs’
lack of a concrete injury precluded standing. Wisconsin Voter Alliance v. Millis, 166 F.4th 627
(7th Cir. 2026). The plaintiffs in Millis had filed HAVA administrative complaints with the
Wisconsin Elections Commission, but the commissioners declined to respond due to an “ethical
recusal.” Id. at 631. In lieu of a response, the commissioners offered the plaintiffs three state-law
alternatives. Instead, the plaintiffs filed suit in federal court pursuant to Section 1983. Because the
3 Citing Logan v. Zimmerman Brush Co., 455 U.S. 422 (1982), Plaintiffs claim that they have
standing because they have a “property interest in the adjudicatory process itself.” (ECF No. 62 at
PageID.673.) But Logan dealt with a substantive issue—whether the plaintiff had a property
interest (he had a cause of action under the Illinois state statute) and whether application of the
state procedure deprived him of that interest. Standing was not at issue. In fact, the plaintiff clearly
suffered tangible harm giving rise to a “concrete injury”; he was discharged from his job and
suffered a pecuniary loss.
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plaintiffs had not suffered tangible injury, they had to assert intangible harm to establish standing.
The court summarized its analysis as follows: “If an asserted injury has no common-law analog,
raises no constitutional concerns, and cannot be enforced through an express right of action, a
plaintiff does not have standing.” Id. at 633. First, the court found that the plaintiffs failed to show
that violations of HAVA’s procedural provisions constituted “injuries per se.” Id. It noted the lack
of “any historic form of action, in tort or otherwise, permitting citizens to sue the government for
failing to follow statutory procedures without some additional concrete injury.” Id. It further
observed that, unlike the private injuries identified in Spokeo and TransUnion, the plaintiffs
asserted “public-oriented grievances about government policies.” Id. Turning to the second Spokeo
consideration, the court found Congress’ judgment irrelevant because it had not “created a private
right of action for individuals to enforce HAVA in federal court.” Id. at 634. Further, the court
pointed to several other indicia supporting the conclusion that HAVA procedural violations do not
amount to intangible injury: (1) the statutes at issue in almost every Supreme Court case addressing
intangible injuries under federal law provided an express private right of action; (2) HAVA Section
402(a) does not contain the clear and unambiguous “rights-creating language” that Medina v.
Planned Parenthood South Atlantic, 606 U.S. 357 (2025), demands of Spending Clause legislation
to create enforceable rights; (3) HAVA provides a “comprehensive two-pronged remedial scheme
directing individuals to air their grievances with state agencies, not federal courts”; and (4)
Brunner v. Ohio Republican Party, 555 U.S. 5 (2008) (observing that the petitioners were unlikely
to succeed on the merits of their implied rights claim under 52 U.S.C. § 21083(a)(1)(A)) indicates
that the Supreme Court disfavored Section 1983 claims to enforce HAVA even before it restricted
the implied rights doctrine in Medina. Id. at 634–35. Last, while the Millis court acknowledged
Sandusky County Democratic Party v. Blackwell, 387 F.3d 565 (6th Cir. 2004)—the cornerstone
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of Plaintiffs’ action—as one of a few pre-Medina cases finding private rights of action for certain
HAVA provisions, it observed that no court has ever done so for Section 21112. Id. at 635.
Millis speaks directly to Plaintiffs’ lack of standing in this case and I find its analysis
persuasive. Accordingly, because Plaintiffs have not demonstrated an injury that is both concrete
and particularized to support standing, the action should be dismissed in its entirety for lack of
Article III standing.4
IV. 	Conclusion
For the foregoing reasons, I recommend that the Court grant Defendants’ motion to
dismiss (ECF No. 56) on the ground that Plaintiffs lack Article III standing.
Dated: March 16, 2026 	/s/ Sally J. Berens
SALLY J. BERENS
U.S. Magistrate Judge
NOTICE
OBJECTIONS to this Report and Recommendation must be filed with the Clerk of
Court within 14 days of the date of service of this notice. 28 U.S.C. § 636(b)(1)(C). Failure to
file objections within the specified time waives the right to appeal the District Court’s order.
See Thomas v. Arn, 474 U.S. 140 (1985); United States v. Walters, 638 F.2d 947 (6th Cir.
1981).
4 I have considered Plaintiff Lake’s submission of the March 5, 2026 order in Kramer v. Hoskins,
No. 2:25-cv-4257 (W.D. Mo.), granting the plaintiff’s motion for a preliminary injunction and
directing the defendant to provide her a hearing on her HAVA complaint. (ECF No. 69-1.) The
Kramer order is immaterial to the recommended basis for dismissal herein because it does not
address Article III standing.
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