Shelby Advocates for Valid Elections; Michael Kernell; Joe Towns, Jr.; Ann Scott; Britney Thornton v. TRE HARGETT et al.

RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 20a0028p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

SHELBY ADVOCATES FOR VALID ELECTIONS; MICHAEL
KERNELL; JOE TOWNS, JR.; ANN SCOTT; BRITNEY
THORNTON,
Plaintiffs-Appellants,

v.

TRE HARGETT, in his official capacity as Tennessee
Secretary of State; MARK GOINS, in his official
capacity as the Coordinator of Elections for the State
of Tennessee; STATE OF TENNESSEE ELECTION
COMMISSION; KENT YOUNCE, JUDY BLACKBURN,
GREGORY DUCKETT, DONNA BARRETT, JAMES H.
WALLACE, JR., TOM WHEELER, and MIKE MCDONALD,
in their official capacities as members of the
Tennessee Election Commission; LINDA PHILLIPS, in
her official capacity as Administrator of the Shelby
County Election Commission; SHELBY COUNTY
ELECTION COMMISSION; ROBERT MEYERS, NORMA
LESTER, DEE NOLLNER, STEVE STAMSON, and
ANTHONY TATE, in their official capacities as Board
Commissioners of the Shelby County Election
Commission,
Defendants-Appellees.
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No. 19-6142

Appeal from the United States District Court
for the Western District of Tennessee at Memphis.
No. 2:18-cv-02706—Thomas L. Parker, District Judge.

Argued: December 3, 2019
Decided and Filed: January 24, 2020
Before: GIBBONS, SUTTON, and MURPHY, Circuit Judges.

>

No. 19-6142 Shelby Advocates for Valid Elections v. Hargett Page 2

_________________
COUNSEL
ARGUED: Carolyn J. Chumney, CAROL CHUMNEY LAW PLLC, Memphis, Tennessee, for
Appellants. Janet M. Kleinfelter, OFFICE OF THE TENNESSEE ATTORNEY GENERAL,
Nashville, Tennessee, for State of Tennessee Appellees. Pablo A. Varela, HARRIS SHELTON
HANOVER WALSH, PLLC, Memphis, Tennessee, for Shelby County Appellees. ON BRIEF:
Carolyn J. Chumney, CAROL CHUMNEY LAW PLLC, Memphis, Tennessee, for Appellants.
Janet M. Kleinfelter, Matt F. Jones, OFFICE OF THE TENNESSEE ATTORNEY GENERAL,
Nashville, Tennessee, for State of Tennessee Appellees. Pablo A. Varela, John L. Ryder,
HARRIS SHELTON HANOVER WALSH, PLLC, Memphis, Tennessee, for Shelby County
Appellees. Megan C. Keenan, COVINGTON & BURLING LLP, Washington, D.C., Andrew
Grosso, ANDREW GROSSO & ASSOCIATES, Washington, D.C., for Amici Curiae.
_________________
OPINION
_________________
PER CURIAM. Shelby Advocates for Valid Elections (SAVE) and four individual
plaintiffs sued an assortment of state and local election officials and entities: Tennessee’s
secretary of state, coordinator of elections, and election commission and its members, along with
the Shelby County Election Commission and its members. The claimants allege that, in future
elections, the defendants will burden their right to vote, dilute their votes, and disenfranchise
them in violation of the Fourteenth Amendment’s Equal Protection and Due Process clauses.
The district court granted the government’s motion to dismiss the case for lack of standing. We
affirm.
Based in Shelby County, Tennessee, SAVE focuses on “research, advocacy, and
education to ensure the fundamental right to vote in public elections.” R. 104 at 8. It pursues
these goals by submitting open records requests about elections, reporting on election security,
monitoring national developments in election law, organizing public events, and advocating for
election reform.
Plaintiffs Michael Kernell, Ann Scott, Britney Thornton, and Joe Towns, Jr. allege that
they plan to vote in future Shelby County elections. And they fear, the complaint says, that those
votes will be denied or substantially burdened. Towns alleges that he plans to run for office in

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the future, and Thornton alleges that she intended to be a city council candidate in 2019. Due to
election administration problems in Shelby County, they claim that they will have to spend extra
money campaigning and monitoring the election.
The plaintiffs also allege a variety of election administration problems. They say election
workers are poorly trained, sometimes distributing the wrong ballots (say by giving a voter who
lives in District 1 the ballot for District 2), sometimes recording the wrong address when
registering a voter, and once distributing a poll book without redacting voters’ personal
information. Election workers, the plaintiffs allege, also have failed to recertify the voting
machines as Tennessee requires. The plaintiffs also claim election personnel have not followed
fair protocols for uploading votes from each polling place and that they have adjusted vote totals
after uploads.
Plaintiffs also complain about Shelby County’s use of digital voting machines. Because
the machines connect to the Internet, the plaintiffs allege, that makes them vulnerable to hacking
and cyberattacks. The machines may also be hacked, plaintiffs allege, by insertion of a memory
card containing malware. And the machines do not produce a paper record of each voter’s
choices, which allegedly makes them difficult to audit for voter-protection purposes, whether to
confirm that the machines recorded the votes accurately at the outset or to confirm that hackers
did not modify the votes afterwards. The plaintiffs allege that the machines sometimes “flip”
votes, recording a vote cast for A as a vote cast for B due to programming or maintenance
problems.
Each of these problems, the plaintiffs say, is partly the responsibility of the State as well.
They claim that it has failed to enact standards that sufficiently protect elections from hacking
and voting-machine malfunctions because it does not require all counties to use paper ballots
with optical scanning, and it does not prohibit Internet-capable voting machines or prescribe
rules for handling voting-machine memory cards.
To remedy these problems, the plaintiffs request a variety of forms of relief. They ask for
an injunction requiring Shelby County to buy secure election equipment and allocate adequate
funding to protect its elections. They ask for a permanent injunction preventing the commission

No. 19-6142 Shelby Advocates for Valid Elections v. Hargett Page 4

from using the current machines in future elections. And they ask for a mandamus order
compelling decertification of the existing voting machines, implementation of uniform testing for
voting machines, and reexamination of the voting system, along with appointment of a
supervisor to review current voting procedures and oversee the requested changes.
To remedy the election administration problems, the plaintiffs seek an injunction
requiring, among other things, system password protection, public observation of vote
processing, pre-election voting machine testing, post-election audit procedures, voter data
protection, background checks for poll workers and equipment vendors, preservation of all
digital ballot images, and immediate disclosure of election irregularities before the close of polls
on each election day. They also seek a judgment declaring that Shelby County’s system violates
numerous provisions of the federal constitution.
The district court granted the defendants’ motion to dismiss the lawsuit because the
plaintiffs lack standing—in particular a concrete injury—to bring the lawsuit. This appeal
followed.
A plaintiff has Article III standing if he suffered an injury in fact that is concrete,
particularized, and actual or imminent; fairly traceable to the defendant’s challenged conduct;
and likely to be redressed by a favorable judgment. Spokeo, Inc. v. Robins, 136 S. Ct. 1540,
1547–48 (2016). To obtain declaratory or injunctive relief, a claimant must show a present
ongoing harm or imminent future harm. Grendell v. Ohio Supreme Court, 252 F.3d 828, 832
(6th Cir. 2001). At the pleading stage, plaintiffs bear the burden of alleging facts establishing
each element of standing. Spokeo, 136 S. Ct. at 1547.
The plaintiffs stake their standing to bring this lawsuit on three theories of injury. The
individual plaintiffs point to their alleged future risk of vote dilution or vote denial stemming
from maladministration and technology problems. SAVE says it has associational standing to
litigate on behalf of its members. See Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., Inc.,
528 U.S. 167, 181 (2000). And SAVE says it separately has organizational standing to litigate in
its own right because the election problems caused it to divert resources from its other activities.
See Havens Realty Corp. v. Coleman, 455 U.S. 363, 378–79 (1982).

No. 19-6142 Shelby Advocates for Valid Elections v. Hargett Page 5

All three theories share, at a minimum, an imminence problem. The complaint’s
allegations with respect to injury all boil down to prior system vulnerabilities, previous
equipment malfunctions, and past election mistakes. Past may be precedent. But the Supreme
Court has not been sympathetic to claims that past occurrences of unlawful conduct create
standing to obtain an injunction against the risk of future unlawful conduct. See O’Shea v.
Littleton, 414 U.S. 488, 495–98 (1974) (allegation, based on past examples, of discriminatory
prosecution); City of Los Angeles v. Lyons, 461 U.S. 95, 105–06 (1983) (allegation, based on
plaintiff’s past experience, that policy of using constitutionally excessive chokeholds increased
risk of experiencing another).
The crux of the problem is that nearly all of the plaintiffs’ allegations of past harm stem
from human error rather than errors caused by the voting machines or hacking. Fear that
individual mistakes will recur, generally speaking, does not create a cognizable imminent risk of
harm. Think about how the Court addressed this point in Lyons, a case in which the plaintiffs
sought to enjoin members of a police department, who had violated the constitutional rights of
arrestees in the past, from engaging in similar misconduct in the future. The Court concluded
that the plaintiff could establish standing only if he pleaded “(1) that all police officers in Los
Angeles always” take the challenged action, using unnecessary chokeholds, when interacting
with “any citizen with whom they happen to have an encounter,” or (2) “that the City ordered or
authorized police officers to act in such manner.” Lyons, 461 U.S. at 105–06. Today’s plaintiffs
face a similar plight. They do not allege—they cannot plausibly allege—that Shelby County
election officials always make these mistakes, and they do not allege that the government entities
ordered the election workers to make any such mistakes.
The plaintiffs have tied only one of their allegations of past harm, the “flipped” votes
they allege happened in 2016 and in 2018, to machine malfunctions rather than human error. But
they do not allege that this vote-flipping ever happened to any of them or in any election in
which they were candidates, and the evidence they produced indicates that “all errors” were
“corrected prior to casting [the] ballot[s].” R. 104-23; R. 104-24. Even if this were not the case,
even in other words if the plaintiffs had adequately alleged past harm, they have not plausibly
alleged, much less shown, that future vote-flipping is “certainly impending.” Clapper v.

No. 19-6142 Shelby Advocates for Valid Elections v. Hargett Page 6

Amnesty Int’l, 568 U.S. 398, 402 (2013). Nor, to the extent the Supreme Court has suggested the
possibility that a “substantial risk” plus mitigation costs can satisfy the imminence requirement,
would that make a difference. The plaintiffs have not plausibly shown that there is a substantial
risk of vote flipping. See id. at 414 n.5; Susan B. Anthony List v. Driehaus, 573 U.S. 149, 158
(2014). In the absence of imminent harm, the individual plaintiffs have no standing to sue and
thus no basis for moving forward with their claims.
That same problem dooms SAVE’s claim of associational standing. One precondition of
this type of standing is that the association’s “members would otherwise have standing to sue in
their own right.” Hunt v. Wash. State Apple Advert. Comm’n, 432 U.S. 333, 343 (1977). In the
absence of cognizable Article III injuries affecting its members, SAVE has no basis for asserting
such claims for them.
SAVE’s organizational standing claim faces two distinct problems. One is that it pleads
only backward-looking costs, not the imminent future injury needed to establish standing for
declaratory and injunctive relief claims like this one. Grendell, 252 F.3d at 832. The other is
that an organization can no more spend its way into standing based on speculative fears of future
harm than an individual can. Clapper, 568 U.S. at 416. Plus, SAVE did not divert resources
from its mission to prepare for litigation in this case. The alleged diversionary actions—
spending money to “bring, fund, and participate in this litigation,” R.104 at 70, and spending its
resources “to address the voting inequities and irregularities” throughout the county, id. at 9—do
not divert resources from its mission. That is its mission.
In reaching this conclusion, we need not resolve how the pleading standards implicated
by motions to dismiss under Civil Rule 12(b)(6) relate to the pleading standards implicated by
motions to dismiss for lack of standing in Civil Rule 12(b)(1) motions like this one. Bell Atl.
Corp. v. Twombly, 550 U.S. 544 (2007); Ashcroft v. Iqbal, 556 U.S. 662 (2009). True, standing-
related cases before Twombly and Iqbal “presum[ed] that general allegations embrace those
specific facts that are necessary to support the claim.” Lujan v. Defs. of Wildlife, 504 U.S. 555,
561 (1992); see Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 889 (1990) (citing Conley v.
Gibson, 355 U.S. 41, 45–46 (1957)). But Twombly and Iqbal replaced Conley’s permissive
pleading standard, calling into question the use of the Conley rule in the Rule 12(b)(1) context.

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Our sister circuits have split on the issue. Compare Muscogee (Creek) Nation v. Okla. Tax
Comm’n, 611 F.3d 1222, 1227 & n.1 (10th Cir. 2010), with James v. J2 Cloud Servs. LLC., 887
F.3d 1368, 1372 (Fed. Cir. 2018). Because today’s plaintiffs would fail under either standard,
we see no need to resolve the question today.
Sandusky Cty. Democratic Party v. Blackwell, 387 F.3d 565 (6th Cir. 2004) (per curiam),
does not lead to a different conclusion. It concluded that plaintiffs’ feared injury was sufficiently
imminent because some voters would likely be denied the chance to vote based on the
challenged voting policy. Id. at 574. While the plaintiff organizations could not “identif[y]
specific voters” who would mistakenly be denied the chance to vote and thus could not allege
with certainty that their members would be harmed, we concluded that they nevertheless
possessed standing because “[i]t is inevitable . . . that there will be such mistakes.” Id. That
reasoning does not apply here. In Sandusky, the challenged policy—which violated a federal
statute—made it “inevitable” that the defendants would deny individuals their voting rights.
Here, by contrast, plaintiffs allege only policies that add risk to the ever present possibility that
an election worker will make a mistake. No injury may occur at all. Any analogy to Sandusky
falls short.
Also falling short are the claims of the individual plaintiffs who plan to run for office in
the future. Thornton and Towns say the challenged actions mean they will have to spend more
money campaigning outside their districts and hiring poll watchers and a cybersecurity expert.
R. 104 at 73–75. But plaintiffs may not bootstrap their way into standing by “inflicting harm on
themselves based on their fears of a hypothetical future harm.” Clapper, 568 U.S. at 416. Any
such approach would eviscerate the Article III standing imperative, as it would permit the
plaintiff who is willing to pay for unreasonable mitigation measures to prevent an unlikely future
harm to manufacture standing.
The plaintiffs claim that the reasoning of our decision in Stewart v. Blackwell establishes
standing in this case. 444 F.3d 843 (6th Cir. 2006). True or not, the case makes no difference
here. The dispositive point is that the en banc court vacated the decision. Stewart v. Blackwell,
No. 05-3044, 2006 U.S. App. LEXIS 32545 (6th Cir. July 21, 2006) (en banc).

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The plaintiffs rely on a Georgia district court case that required a county to replace its
identical voting machines after they were hacked twice. Curling v. Raffensperger, 403 F. Supp.
3d 1311 (N.D. Ga. 2019). But even if we agreed with the court that examples of hackers
disrupting those particular voting machines showed an imminent harm somewhere in Georgia—
or for that matter anywhere in the United States—that does not translate into an imminent risk
that individuals will hack the voting machines in Shelby County, Tennessee. The long and short
of it is that the plaintiffs failed to demonstrate the imminence of any injury in fact, depriving
them of Article III standing to bring this claim.
We affirm.