Zimmern et al v. Hidalgo et al

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
KENNETH ZIMMERN, et al.
Plaintiffs,
v.
LINA HIDALGO, et al.,
Defendants.
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CIVIL ACTION NO. H-24-4439
MEMORANDUM AND OPINION
The plaintiffs, three registered voters in Harris County, Texas, allege that Harris County’s
voting system makes it possible for government officials or members of the public to determine
how an individual voted in certain circumstances. (Docket Entry No. 33). They allege that this
violates a constitutional right to a secret ballot. (Id.). They ask this court to order Harris County
to change the way the voters can vote, by, for example, assigning voters to particular voting centers
or “curtailing” the use of countywide vote centers, which they assert would eliminate the
possibility that how an individual voted could be discovered. (Docket Entry No. 49). They seek
this relief despite the fact that Harris County’s voting system is permitted under state law and that
state law also requires that Harris County collect and make public certain ballot information to
ensure election integrity. TEX. ELEC. CODE § 43.007(e); Id. § 1.012; Id. 1.0015.
Before reaching the merits of their claims, however, the court must determine that at least
one plaintiff has standing for the injunctive and declaratory relief sought. 	Because none of the
plaintiffs has standing, the court grants the motion to dismiss. 	(Docket Entry No. 41). 	The
plaintiffs’ motion for summary judgment, (Docket Entry No. 35), and the defendants’ motion to
strike, (Docket Entry No. 39), are denied as moot. The reasons for this ruling are explained below.
United States District Court
Southern District of Texas
ENTERED
March 13, 2026
Nathan Ochsner, Clerk
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I. 	Background
Kenneth Zimmern, William Sommer, and Caroline Kane are registered voters in Harris
County. (Docket Entry No. 33 ¶ 20–22). They allege that by cross-referencing various publicly
available records from electronic poll books, voter rosters, ballot images, and cast-vote records,
government officials and members of the public can figure out how a limited number of individual
voters cast their votes. 	(Id. ¶¶ 46, 59). 	Kane alleges generally in her complaint that her 2024
Republican primary ballot was “made public,” (Id. ¶ 22), although she clarifies in her responses to
the defendants’ interrogatories that the only person who has told her that her ballot was discovered
was Barry Wernick, who has provided an affidavit in this case purportedly explaining his method
of discovering votes. (Docket Entry No. 41-3 at 9; Docket Entry No. 33-1).1 She does not allege
that any of her other ballots were discovered. (Docket Entry No. 33 ¶ 22). Zimmern and Sommer
do not allege that any of their ballots have been discovered. (Id. ¶¶ 20–21). Sommer alleges that
he did not vote in the 2024 primary election out of fear his vote would be exposed, although he
apparently overcame his fear and voted in the 2024 general election. (Id. ¶ 21).
The plaintiffs sue under 42 U.S.C. § 1983, alleging that Harris County’s voting system
violates their First and Fourteenth Amendment rights. (Id. ¶ 79–92). The defendants are Judge
Lina Hidalgo, in her official capacity as County Judge for Harris County, and Teneshia Hudspeth,
in her official capacity as County Clerk for Harris County. (Id. ¶¶ 23, 24). The plaintiffs ask for
a variety of injunctive relief and declaratory relief. 	(Id. at 20–22). 	The defendants moved to
dismiss the original complaint, arguing as a threshold matter that none of the plaintiffs has standing
1 Although it is ultimately immaterial to the resolution of the motions before the court, the court also notes
that the amended complaint asserts that the disclosure of Kane’s “primary ballot was made an issue in her
campaign” for the House of Representatives that election cycle. 	(Docket Entry No. 33 ¶ 22). 	In her
responses to the interrogatories, however, she asserts that she “does not know” who else besides Wernick
may have viewed her ballot and that she only became aware that Wernick had allegedly viewed it on
November 11, 2024. (Docket Entry No. 41-3 at 9).
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to seek injunctive and declaratory relief because (among other things) none of them has pleaded
facts showing that the secrecy of their ballots was at “imminent risk of impairment” and instead
have articulated only “generalized grievance[s].” (Docket Entry No. 8-1 at 12, 13). The plaintiffs
responded, arguing that they have standing because “they have suffered individualized concrete
injuries that are directly attributable to Defendants’ conduct.” (Docket Entry No. 11 at 12).
At a pre-motion conference on February 28, 2025, the court allowed the plaintiffs to amend
their complaint by April 15, 2025, because the arguments they raised in the conference differed
from the claims alleged in their original complaint. 	(Docket Entry No. 32). 	The court allowed
each party to serve 10 interrogatories on the other side. (Id.). On April 14, 2025, the plaintiffs
filed their amended complaint. (Docket Entry No. 33). On July 10, 2025, the plaintiffs moved for
summary judgment, alleging that it is “undisputed” that Harris County’s voting system violates
their constitutional rights. (Docket Entry No. 35 at 2). In their amended reply to the response to
the motion for summary judgment, the plaintiffs also attached new evidence, (Docket Entry Nos.
38, 38-2, 38-3, and 38-4), which the defendants moved to strike, (Docket Entry No. 39).
On October 31, 2025, the defendants moved to dismiss, for judgment on the pleadings, and
in the alternative for summary judgment, raising many of the same arguments—including the
standing arguments—raised in their prior motion to dismiss. 	(Docket Entry No. 41). 	They
attached the plaintiffs’ affidavits to their motion and cite to the evidence the plaintiffs submitted
in support of their motion for summary judgment. (Docket Entry No. 41-3; see, e.g., Docket Entry
No. 41-1 at 12). The plaintiffs responded. (Docket Entry No. 43). Both sides have incorporated
their prior briefing into the current motion to dismiss and response. (Docket Entry No. 41-1 at 10;
Docket Entry No. 43 at 3). In their response, the plaintiffs incorporated by reference the evidence
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and affidavits attached to their other pleadings and motions, including the motion for summary
judgment. (Docket Entry No. 43 at 2).
II. 	The Legal Standard
A. The Rule 12(b)(1) Standard
Rule 12(b)(1) governs challenges to a court’s subject-matter jurisdiction. 	“[A] claim is
‘properly dismissed for lack of subject-matter jurisdiction when the court lacks the statutory or
constitutional power to adjudicate’ the claim.” In re FEMA Trailer Formaldehyde Prods. Liab.
Litig. (Miss. Plaintiffs), 668 F.2d 281, 286 (5th Cir. 2012) (quoting Home Builders Ass’n, Inc. v.
City of Madison, 143 F.3d 1006, 1010 (5th Cir. 1998)). “Courts may dismiss for lack of subject
matter jurisdiction on any one of three bases: (1) the complaint alone; (2) the complaint
supplemented by undisputed facts in the record; or (3) the complaint supplemented by undisputed
facts plus the court’s resolution of disputed facts.” Clark v. Tarrant Cty., Tex., 798 F.2d 736, 741
(5th Cir. 1986) (citing Williamson v. Tucker, 645 F.2d 404, 413 (5th Cir. 1981)). “The court should
consider the Rule 12(b)(1) jurisdictional attack before addressing any attack on the merits.” In re
FEMA, 668 F.2d at 286.
The plaintiff bears the burden of demonstrating that subject-matter jurisdiction exists. See
Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001). When examining a factual challenge
to subject-matter jurisdiction under Rule 12(b)(1), which does not implicate the merits of a
plaintiff’s cause of action, the district court has substantial authority “to weigh the evidence and
satisfy itself as to the existence of its power to hear the case.” 	Garcia v. Copenhaver, Bell &
Assocs., M.D.’s P.A., 104 F.3d 1256, 1261 (11th Cir. 1997) (citation omitted); see also Clark v.
Tarrant Cnty., Texas, 798 F.2d 736, 741 (5th Cir. 1986). The court may consider matters outside
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the pleadings, such as testimony and affidavits, to resolve a factual challenge to subject-matter
jurisdiction. Garcia, 104 F.3d at 1261.
B. The Summary Judgment Standard
“Summary judgment is appropriate where ‘the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.’”
Springboards to Educ., Inc. v. Pharr-San Juan-Alamo Indep. Sch. Dist., 33 F.4th 747, 749 (5th
Cir. 2022) (quoting FED. R. CIV. P. 56(a)). “A fact is material if it ‘might affect the outcome of
the suit.’” Thomas v. Tregre, 913 F.3d 458, 462 (5th Cir. 2019), as revised (Jan. 25, 2019) (quoting
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). “A factual dispute is genuine ‘if the
evidence is such that a reasonable jury could return a verdict for the nonmoving party.’” 	Id.
(quoting Anderson, 477 U.S. at 248). 	When considering a motion for summary judgment, the
court “must consider all facts and evidence in the light most favorable to the nonmoving party”
and “must draw all reasonable inferences in favor of the nonmoving party.” Ion v. Chevron USA,
Inc., 731 F.3d 379, 389 (5th Cir. 2013).
The moving party “always bears the initial responsibility of informing the district court of
the basis for its motion” and pointing to record evidence demonstrating that there is no genuine
dispute of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); see also FED. R. CIV.
P. 56(c). “When ‘the non-movant bears the burden of proof at trial,’ a party moving for summary
judgment ‘may merely point to the absence of evidence and thereby shift to the non-movant the
burden of demonstrating by competent summary judgment proof that there is a dispute of material
fact warranting trial.’” MDK Sociedad De Responsabilidad Limitada v. Proplant Inc., 25 F.4th
360, 368 (5th Cir. 2022) (alteration adopted) (quoting Nola Spice Designs, L.L.C. v. Haydel
Enterprises, Inc., 783 F.3d 527, 536 (5th Cir. 2015)).
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“Once the moving party has initially shown that there is an absence of evidence to support
the non-moving party’s cause, the non-movant must come forward with specific facts showing a
genuine factual issue for trial.” Houston v. Tex. Dep’t of Agric., 17 F.4th 576, 581 (5th Cir. 2021)
(quotation marks and quoting reference omitted). 	“[A] party cannot defeat summary judgment
with conclusory allegations, unsubstantiated assertions, or only a scintilla of evidence.” Jones v.
Gulf Coast Rest. Grp., Inc., 8 F.4th 363, 368 (5th Cir. 2021) (quotation marks and quoting
reference omitted). 	Rather, the nonmovant “must identify specific evidence in the record and
articulate the precise manner in which that evidence supports [its] claim.” 	Shah v. VHS San
Antonio Partners, L.L.C., 985 F.3d 450, 453 (5th Cir. 2021) (alteration adopted) (quotation marks
and quoting reference omitted).
The movant is entitled to judgment as a matter of law when “the nonmoving party has
failed to make a sufficient showing on an essential element of [its] case with respect to which [it]
has the burden of proof.” Celotex Corp., 477 U.S. at 323. But “[i]f ‘reasonable minds could differ’
on ‘the import of the evidence,’ a court must deny the motion.” Sanchez v. Young County, 956
F.3d 785, 791 (5th Cir. 2020) (quoting Anderson, 477 U.S. at 250).
III. 	Analysis
A. Standing
“Federal courts have jurisdiction only over ‘cases’ or ‘controversies.’” Williams v. Parker,
843 F.3d 617, 620 (5th Cir. 2016) (citing Raines v. Byrd, 521 U.S. 811, 818 (1997). 	If a party
lacks standing to sue, “[t]here is no case or controversy.” Id. Because standing is necessary for
subject-matter jurisdiction, it “is a threshold issue that [the court] consider[s] before examining the
merits.” Id. Three elements are required:
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
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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. Defs. of Wildlife, 504 U.S. 555, 560-61 (1992) (quotations and citations omitted).
“Plaintiffs always have the burden to establish standing.” Barber v. Bryant, 860 F.3d 345, 352
(5th Cir. 2017) (citing Lujan, 504 U.S. at 561). They must meet this burden “with the manner and
degree of evidence required at the successive stages of the litigation.” Cornerstone Christian Schs.
v. Univ. Interscholastic League, 563 F.3d 127, 133–34 (5th Cir. 2009).
When a complaint seeks multiple kinds of relief, the plaintiff must show standing “for each
type of relief sought.” Summers v. Earth Island Inst., 555 U.S. 488, 493 (2009) (citing City of L.A.
v. Lyons, 461 U.S. 95, 105 (1983)). “Requests for injunctive and declaratory relief implicate the
intersection of redressability and injury-in-fact requirements.” Stringer v. Whitley, 942 F.3d 715,
720 (5th Cir. 2019). “The redressability requirement limits the relief that a plaintiff may seek to
that which is likely to remedy the plaintiff’s alleged injuries.” 	Id. 	“Because injunctive and
declaratory relief ‘cannot conceivably remedy any past wrong,’ plaintiffs seeking injunctive and
declaratory relief can satisfy the redressability requirement only by demonstrating a continuing
injury or threatened injury.” Id. (quoting Lyons, 461 U.S. at 105).
“That continuing or threatened future injury, like all injuries supporting Article III
standing, must be an injury in fact.” Id. The threatened future injury must be “potentially suffered
by the plaintiff, not someone else.” 	Id. (citing Sierra Club v. Morton, 405 U.S. 727, 734–35
(1972)). 	“The purpose of the requirement that the injury be ‘imminent’ is ‘to ensure that the
alleged injury is not too speculative for Article III purposes.’” Id. at 721 (quoting Clapper v.
Amnesty Int’l USA, 568 U.S. 398, 409 (2013)). 	“For a threatened future injury to satisfy the
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imminence requirement, there must be at least a ‘substantial risk’ that the injury will occur.” Id.
(quoting Susan B. Anthony List v. Driehaus, 573 U.S. 149, 158 (2014)).
Standing “does not follow from the conclusion that the injunctive relief sought by a
plaintiff would prevent suffering the same injury in the future, which is always true when a plaintiff
seeks an injunction prohibiting a defendant from repeating an action that injured the plaintiff in
the past.” Id. Rather, plaintiffs “must also show that there is a substantial risk that they will suffer
the potential future injury absent their requested relief.” Id. “Past wrongs are relevant to ‘whether
there is a real and immediate threat of repeated injury,’ but alone they may be insufficient to
establish standing for prospective relief.” Attala County, Mississippi Branch of NAACP v. Evans,
37 F.4th 1038, 1042 (5th Cir. 2022) (quoting O’Shea v. Littleton, 414 U.S. 488, 4996 (1974)).
C. The Motion to Dismiss, For Judgment on the Pleadings, Or in the Alternative, For
Summary Judgment
The plaintiffs seek declaratory and injunctive relief.2 They ask this court to order Harris
County to change the way it handles voting and to stop collecting and publishing certain voter
information, despite state laws allowing Harris County to conduct its elections in this manner and
requiring the collection of information to ensure the audibility of elections. 	Following the
plaintiffs’ motion for summary judgment, the defendants have moved to dismiss, arguing—among
2 The first amended complaint is entitled “Plaintiffs’ First Amended Complaint and Request for Declaratory
Judgment and Injunctive Relief.” (Docket Entry No. 33). The plaintiffs repeatedly assert that they are
seeking only declaratory and injunctive relief. (See, e.g., Docket Entry No. 35 at 12 (framing the issue as
“[w]hether Plaintiffs are entitled to declaratory and injunctive relief under 42 U.S.C. § 1983 to remedy and
prevent the ongoing constitutional violations caused by the challenged voting system”); Docket Entry No.
43 at 16 (“Plaintiffs seek declaratory and injunctive relief under 42 U.S.C. § 1983 to address these ongoing
constitutional violations”)). The identified “ongoing” violation is Harris County’s plan to use countywide
polling locations through at least 2026. (Docket Entry No. 43 at 28). At the motion hearing on January 15,
2026, the court asked the plaintiffs to clarify the specific relief they were seeking, and the plaintiffs
identified only declaratory and injunctive relief, including its preferred solution, which would be to “assign
voters . . . to a vote center or to, in some fashion, limit or curtain the use of countywide vote centers.”
(Docket Entry No. 49). To the extent that the amended complaint appears to inadvertently still include a
request for actual damages, (Docket Entry No. 33 at 21), the plaintiffs have abandoned that relief.
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other things—that none of the plaintiffs have standing because they have not sufficiently alleged
or shown that they face a “substantial risk” of having their votes ascertained in the future, as is
required for the declaratory and injunctive relief they seek. (Docket Entry No. 41-1 at 5, 16 (citing
Clapper, 568 U.S. at 409). 3
The court agrees that none of the plaintiffs has standing for the injunctive and declaratory
relief they seek because they have not shown a “credible threat” or “substantial risk” either that
Harris County will collect individually identifiable information about how they voted in a
particular election in the future or that a third party will use that information to ascertain their vote.
The plaintiffs appear to argue that both the collection of information that could be used to learn
how they voted and the possibility that someone will use that collected information to learn how
they voted violate their constitutional right to a secret ballot. (See, e.g., Docket Entry No. 43 at 18
(“In addition to the County’s collection and maintenance of identifiable voter information,
Zimmern’s injury arises from the credible threat that his voting choices could be publicly disclosed
due to Defendants’ inadequate safeguards for ballot secrecy.”)).
At the pre-motion conference in February 2025, the court allowed each side to serve
interrogatories to clarify the bases for the alleged violations and obtain accurate information on
the defendants’ collection of voting data. (Docket Entry No. 32). The defendants’ interrogatories
3 There is unclear historical support for the constitutional right to a secret ballot. See, e.g., John Doe No. 1
v. Reed, 561 U.S. 186, 224 (2010) (Scalia, J., concurring) (explaining that voting was public in the United
States until 1888); McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 343 (1995) (discussing the secret
ballot and the “hard-won right” to vote without fear of retaliation). But it makes no difference to the court’s
standing analysis whether the federal Constitutional actually affords a right to a secret ballot. See, e.g.,
Whitmore v. Arkansas, 495 U.S. 149, 155 (1990) (“Our threshold inquiry into standing in no way depends
on the merits of the [plaintiff’s] contention that particular conduct is illegal.” (quotation marks and quoting
reference omitted)). This court will assume, for purposes of this standing analysis, that it does. See Texas
v. EEOC, 933 F.3d 433, 447 (5th Cir. 2019) (assuming, for the purposes of determining Article III standing,
that Texas was correct on the merits of its claim under the Administrative Procedure Act).
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asked each plaintiff to “[s]tate every material fact supporting each Plaintiff’s Article III standing
to bring his/her claims against each Defendant.” (Docket Entry No. 41-3 at 3, 5, 7). The plaintiffs
responded that they “rely on all the facts pleaded in the Amended Complaint and all the facts in
the affidavits by Barry Wernick, Rick Weible, and each Plaintiff,” noting their concern about the
potential lack of ballot secrecy and pointing out that Wernick had told Kane that he had discovered
her completed ballot for the 2024 Republican primary. (See generally Docket Entry No. 41-3).
The defendants attach these interrogatory responses to their motion to dismiss and argue that the
plaintiffs have failed to support the general allegations of future harm contained in the amended
complaint with evidence showing that they are at risk of having their own vote ascertained.
(Docket Entry No. 41-1 at 11–12; Docket Entry No. 41-3).
The Wernick affidavit attached to the amended complaint and the motion for summary
judgment, and cited by the plaintiffs in their affidavits, is irrelevant in part and insufficiently
specific in other parts. Wernick states in his affidavit that information collected in counties that
have chosen to adopt the Countywide Polling Place Program (the same program that Harris County
has opted into) “allows for a state or county employee or any private person to match ballots and
ballot selections to voters in polling locations where a voter is the only voter from a precinct to
cast a ballot at a particular polling location during a particular voting period—either during Early
Voting or on election day.” (Docket Entry No. 33-1 ¶ 9). Although Wernick alleges that he was
able to match 28,608 Harris County March 2024 primary voters to their ballots, he does not explain
his methodology. (Id. ¶ 28). Nor does he explain how he was able to identify which was Kane’s
ballot so he could tell how she voted. 4 (Id. ¶ 40). And most of his affidavit concerns his personal
4 In their amended reply to the motion for summary judgment, the plaintiffs attached a new Wernick
affidavit purportedly explaining his methodology, which the defendants have moved to strike. (Docket
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experiences with a recount in Dallas County, which does not directly shed light on whether it is
likely that the three Harris County plaintiffs are substantially at risk of having their specific ballots
identified to reveal who they voted for in a future election. (See, e.g., id. ¶¶ 2–10).
Weible’s affidavit—which was also attached to the amended complaint and the plaintiffs’
motion for summary judgment—is speculative. He asserts that it is possible to determine a Harris
County voter’s vote both because (1) it is possible to determine a person’s vote when that person
is a “unique vote[r] in a vote center” (seemingly meaning a voter from another precinct) which
would allow someone to match that voter’s registration and the precinct results, and (2) “if he
[someone trying to match a voter to a cast ballot to learn what choices that voter made on the
ballot] c[ould] discover the algorithm used for the county, [he could] determine more of the voters’
ballots” by writing an algorithm. (Docket Entry No. 33-2 ¶¶ 9, 13, 20, 21). He admits, however,
that although he has “decoded the algorithm used for randomization in other states,” he has “not
reviewed the Harris County records.” (Id. ¶ 21, 22). Weible’s statement that he might be able to
write an algorithm that might discover how some or all voters in Harris County vote in a future
election is far too speculative to support a conclusion that Harris County’s voting system places
the plaintiffs at a “substantial risk” of having their identifiable voter information collected or
ascertained in a future election. See Sierra Club v. U.S. Army Corps of Eng’s, 482 F. Supp. 3d
543, 559 (W.D. Tex. 2020) (“[S[peculation built upon further speculation does not amount to a
Entry Nos. 38-2, 39). Even if considered, this affidavit does not support a conclusion that Kane suffers an
imminent risk of future harm. First, the affidavit against does not mention Kane; it describes how Wernick
allegedly found the ballot of a non-plaintiff. Second, Wernick’s methodology appears to require searching
for a specific voter by name, an aspect of his methodology mentioned nowhere in his prior affidavits or in
the plaintiffs’ pleadings. (Docket Entry No. 38-2 ¶ 13 (describing how his search requires filtering by first
name and last name)). In any event, this affidavit also contains no information supporting a conclusion that
there is a substantial risk that that Wernick (or anyone else) could identify Kane’s specific ballot in a future
election via this methodology, which still requires a voter to vote in highly specific circumstances. (Id. ¶
7).
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‘reasonably certain threat of imminent harm’ and does not warrant injunctive relief.” (quoting
Friends of Lydia Ann Chennel v. U.S. Army Corps of Eng’s, 701 F. App’x 352, 357 (5th Cir.
2017))); Clapper, 568 U.S. at 414 (“We decline to abandon our usual reluctance to endorse
standing theories that rest on speculation about the decisions of independent actors.”).
Even assuming that Wernick is correct that someone might learn how a Harris County voter
votes in a particular election if that “voter is the only voter from a precinct to cast a ballot at a
particular polling location during a particular voting period—either during Early voting or on
election day” (Docket Entry No. 35-1 ¶ 9), the plaintiffs have not shown that this constellation of
circumstances is likely to occur to them personally in the future. 	Assuming that Wernick’s
methodology is sound (which the defendants dispute, and the record does not establish), none of
the plaintiffs have attempted to allege or assert that they are likely to, much less will, vote in such
unique circumstances in the future. (Docket Entry No. 33 ¶ 20–22 (amended complaint); Docket
Entry No. 35-1 at 40–52 (affidavits of Zimmern, Sommer, and Kane); Docket Entry No. 41-3
(interrogatory responses of Zimmern, Sommer, and Kane)). 	At most, Zimmern and Sommer
express a possible preference for early voting, (Docket Entry No. 33 ¶¶ 20, 21), but they do not
state that they intend to vote in remote polling places where they may be the only person from their
precinct casting a vote at a particular date and time, or that they will engage in any other behavior
that might put their identifiable voter information at a substantial risk of being collected or exposed
under their own theory. See Stringer, 942 F.3d at 722 (concluding that the plaintiffs had not shown
a substantial risk of future injury in part because they had not expressed an intention to move in
the future).
Relatedly, that Kane has allegedly voted in a sufficiently unique circumstance that led
Wernick—a uniquely determined vote excavator—to discover how she had voted, (Docket Entry
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No. 35-1 at 51), is insufficient on its own for this court to conclude that there is a “substantial risk”
that these circumstances could happen again. It is well established that past harm, without more,
is an insufficient basis for declaratory and injunctive relief. See Lyons, 461 U.S. at 105; O’Shea,
414 U.S. at 495–96; cf. Crawford v. Hinds Cnty. Bd. of Supervisors, 1 F.4th 371, 376 (5th Cir.
2021) (finding imminence likely when the plaintiff had been called twice for jury duty in the past,
the potential jury pool was small, and the architectural barriers preventing the plaintiff from
serving on a jury were insurmountable). 	Kane’s past alleged injury cannot form a basis for
injunctive relief in the absence of any other evidence—or even allegations—that her identifiable
voter information is likely to be collected or exposed in such a manner again.
In short, there is no evidence (or even allegations) at this stage—where cross-motions for
summary judgment have been filed—showing that there is a “substantial risk” or “credible threat”
that Harris County is going to collect “identifiable” voter information about how any of the three
plaintiffs votes in future elections. See Driehaus, 573 U.S. at 161, 158. It is even more speculative
that a third party will use that information to ascertain how the plaintiffs cast their votes. Although
Harris County is required by state law to collect voter information to promote the integrity of the
voting process, the plaintiffs would still need to allegedly vote in the unlikely combination of
circumstances they posit—being the only voter from their precinct to vote in a particular polling
location at a particular time—for Harris County to collect “identifiable” information about their
votes.5 	The plaintiffs provide no evidence to support, and barely even speculate, that such a
5 The plaintiffs do not allege that it is the general collection of voter information that is the harm, but the
collection of “individual voters’ identifiable information.” (Docket Entry No. 43 at 17) (emphasis added).
Their response brief makes clear that, under their theory, Harris County only collects “identifiable”
information when a plaintiff votes in sufficiently unique circumstances; the allegation is not that Harris
County itself can determine the vote of every voter regardless of when and how that voter votes. (See id.
at 25 (“The combination of check-in time (recorded), polling location (in CVRs and rosters), and ballot
style (tied to geography) means that in small windows (e.g., early morning at a single location) individual
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situation could occur to them personally in the future. (See generally Docket Entry No. 43). That
is not enough for standing. See Clapper, 568 U.S. at 415 (determining that there was no standing
at the end of a chain of contingencies because “even if the Government were to conduct
surveillance of respondents’ foreign contacts, respondents can only speculate as to whether their
own communications with their foreign contacts would be incidentally acquired”). 	Although
Sommers alleges that he did not vote out of fear his ballot would be discovered—a fear he seems
to overcome—the plaintiffs also cannot “manufacture standing” by inflicting harm on themselves
where they have not demonstrated that such harm is “certainly impending.” Id. at 416.
To the extent that the plaintiffs’ response brief focuses on how Harris County collects
information, intended to promote election integrity, that could allegedly allow it to identify the
votes of other voters who vote in the unlikely circumstances the plaintiffs posit, that is “irrelevant”
to the standing question before the court. 	See Stringer, 942 F.3d at 721 (“Whether compliance
with the [National Voter Registration Act] would prevent future injury to others is irrelevant;
plaintiffs 	seeking injunctive relief must 	show 	a 	continuing 	or 	threatened 	future 	injury 	to
themselves”); Attala County, 37 F.4th at 1043 (listing the contingencies that would need to occur
for the alleged harm to happen and noting that “[y]es, those events have happened to others, but
we find that the Plaintiffs have not demonstrated a ‘real and immediate’ threat or a ‘substantial
risk’ that all those events will occur to one of them”); Harrower as next friends of J.H.1 v. Eastland
Indep. Sch. Dist., 786 F. Supp. 3d 998, 1015 (N.D. Tex. 2025) (concluding that there was no
standing in part because the plaintiffs—parents of two minors—had not alleged a future injury that
one of the minors would personally suffer rather than an injury potentially suffered by someone
votes can often be matched to specific voters” (citing Docket Entry No. 35-1 ¶¶ 7–9)). The court also notes
that the section of Wernick’s affidavit that the plaintiffs cite to for this proposition does not actually contain
the specific details asserted in the response brief.
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else); see also Lutostanski v. Brown, 88 F.4th 582, 586 (5th Cir. 2023) (concluding that the
plaintiffs’ argument that Travis County acted unlawfully by counting votes cast through an
uncertified system was the kind of “generalized grievance” that did not meet the requirements for
an injury-in-fact (quoting Lance v. Coffman, 549 U.S. 437, 442 (2007))).
Without “[p]laintiff-specific evidence” showing that the harm to any of these three
plaintiffs is “certainly impending,” the plaintiffs do not have standing. See Stringer, 942 F.3d at
715 (“Plaintiff-specific evidence is needed before Plaintiffs’ claims can properly be characterized
as an attempt to remedy an imminent injury to Plaintiffs instead of a generalized grievance
available to all Texas.”). Because none of the plaintiffs have shown that harm to them is “certainly
impending,” the court dismisses for lack of standing and does not reach the merits. 	See Vapor
Tech. Ass’n v. Graham, --- F.4th ----, No. 25-60694, 2026 WL 390894, at *2 n.12 (5th Cir. 2026)
(“Without standing, a plaintiff cannot obtain injunctive relief because the court cannot reach the
merits—and necessarily, the plaintiff cannot show likely success on the merits.”).
IV. 	Conclusion
The plaintiffs appear intent on making Harris County change the way voters are allowed
to vote. Harris County has shown that its method of running elections is allowed by state law and
that its collection of information to ensure election audibility is required by state law. 	The
plaintiffs have presented nothing more than speculation that Harris County’s voting system
collects information that might enable someone to identify, in an unlikely combination of
circumstances, how some individuals vote in future elections. 	That speculation, which is not
directly connected to assertions or evidence about these three specific plaintiffs, is far from enough
for standing for the relief the plaintiffs seek. The court grants the defendants’ motion to dismiss
for lack of standing and does not reach the alternative request for summary judgment on the merits.
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(Docket Entry No. 41). The court denies the plaintiffs’ motion for summary judgment as moot.
(Docket Entry No. 35). The court denies the motion to strike as moot. (Docket Entry No. 39).
The court will enter a separate order dismissing the case, without prejudice.
SIGNED on March 13, 2026, at Houston, Texas.
________________________________
Lee H. Rosenthal
Senior United States District Judge
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