Background
Three organizations—the Arizona Alliance for Retired Americans, Voto Latino, and Priorities USA—challenged two provisions of Arizona Senate Bill 1260. The Cancellation Provision requires a county recorder to cancel a voter’s registration in that county after confirming that the voter registered in another county. The Felony Provision criminalizes knowingly providing a “mechanism for voting” to someone registered in another state.
The organizations alleged that the Cancellation Provision violated federal voter-registration law and that the Felony Provision was unconstitutionally vague and overbroad. The district court preliminarily enjoined both provisions. After a three-judge Ninth Circuit panel vacated the injunction, the court reheard the appeal en banc.
The Court’s Holding
The en banc Ninth Circuit vacated the preliminary injunction and remanded. It held that the organizations lacked Article III standing to challenge the Cancellation Provision because they had not clearly shown that it directly affected or interfered with their core voter-registration or voter-education activities. Their concern that officials might cancel voters’ new registrations was speculative in light of longstanding procedures directing officials to cancel old registrations, and spending resources to respond to the law did not independently create standing.
The court held that the organizations did have pre-enforcement standing to challenge the Felony Provision because the undefined phrase “mechanism for voting” arguably covered their voter-registration and education work, creating a credible threat of prosecution involving arguably constitutionally protected activity. On the merits, however, the organizations were unlikely to succeed: although the phrase could appear broad in isolation, the provision’s full text and statutory context indicated that it likely did not criminalize voter registration or voter education.
Key Takeaways
- An organization cannot establish injury-in-fact merely by spending money to oppose or educate the public about a challenged policy; the policy must directly affect and interfere with its core activities.
- The court overruled prior Ninth Circuit organizational-standing analyses that treated frustration of mission and diversion of resources as sufficient without the direct-interference inquiry required by FDA v. Alliance for Hippocratic Medicine.
- The low standing threshold for a pre-enforcement constitutional challenge does not establish a likelihood of success on the merits.
Why It Matters
The decision narrows organizational standing throughout the Ninth Circuit by rejecting resource diversion alone as an Article III injury. Advocacy organizations challenging government policies must identify a concrete, particularized interference with their own activities rather than expenditures they voluntarily make in response.
The ruling also permits Arizona to enforce both provisions while the litigation continues, subject to further proceedings on remand. At the preliminary-injunction stage, the court found no standing to litigate the Cancellation Provision and no likely merits success against the Felony Provision.