CINCINNATI (CN) – A unanimous Sixth Circuit panel on Friday upheld a ruling that found a voters’ rights group lacks standing to challenge the security of voting machines used in Tennessee.
Shelby Advocates for Valid Elections, or SAVE, filed suit in 2018 against the Tennessee Election Commission and Secretary of State Tre Hargett, among others, claiming outdated software and antiquated machines left elections in Shelby County – home of Memphis – vulnerable to hackers and manipulation.
U.S. District Judge Thomas Parker dismissed the complaint for lack of standing, and ruled the voters failed to prove either a concrete injury or an imminent threat of injury.
The case was argued before the Sixth Circuit last month, and Friday’s ruling upheld Parker’s decision.
In an eight-page, unsigned opinion, the court noted that all of SAVE’s claims focused on human error, and not the machines used by the state and Shelby County.
“Fear that individual mistakes will recur, generally speaking, does not create a cognizable imminent risk of harm,” the ruling states.
The panel cited the 1983 U.S. Supreme Court ruling in City of Los Angeles v. Lyons, which dealt with police officers’ use of chokeholds during arrests.
“The court,” the panel wrote,” 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.’”
“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,” Friday’s ruling states.
SAVE also argued its case could proceed under organizational standing, which is granted in cases where a group can sue based on its members’ standing to bring suit, but the appeals court also rejected this argument.
The court said because SAVE sought to recoup money spent on litigation, and not any imminent, future injury which would be required to establish standing for its members, its organizational standing argument failed.
Additionally, the Sixth Circuit panel ruled that expending resources on litigation is part of SAVE’s mission to ensure free and fair elections, and could not be cited as an injury to confer standing.
Several candidates for political office similarly had their claims for standing rejected by the court, despite arguments that cybersecurity experts and poll watchers might be required to ensure fair elections.
“Plaintiffs may not bootstrap their way into standing by ‘inflicting harm on themselves based on their fears of a hypothetical future harm,’” the ruling states. “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 panel consisted of U.S. Circuit Judges Julia Gibbons and Jeffrey Sutton, both George W. Bush appointees, and U.S. Circuit Judge Eric Murphy, an appointee of President Donald Trump.
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