Maryland Election Integrity, LLC v. Maryland State Board of Elections

127 F.4th 534

• Court: Court of Appeals for the Fourth Circuit
• Decided: February 4, 2025
• Docket: 24-1449
• Status: Published

Opinion

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PUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 24-1449

MARYLAND ELECTION INTEGRITY, LLC; UNITED SOVEREIGN AMERICANS, INC.,

Plaintiffs – Appellants,

v.

MARYLAND STATE BOARD OF ELECTIONS,

Defendant – Appellee,

and

BRENNAN CENTER FOR JUSTICE AT NYU SCHOOL OF LAW,

Amicus Curiae.

Appeal from the United States District Court for the District of Maryland, at Baltimore. Stephanie A. Gallagher, District Judge. (1:24-cv-00672-SAG)

Argued: December 12, 2024 Decided: February 4, 2025

Before WILKINSON, NIEMEYER, and WYNN, Circuit Judges.

Affirmed by published opinion. Judge Wynn wrote the opinion, in which Judge Wilkinson and Judge Niemeyer joined. USCA4 Appeal: 24-1449 Doc: 34 Filed: 02/04/2025 Pg: 2 of 13

ARGUED: Bruce Lee Castor, Jr., VAN DER VEEN, O’NEILL, HARTSHORN & LEVIN, Philadelphia, Pennsylvania, for Appellants. Daniel Michael Kobrin, OFFICE OF THE ATTORNEY GENERAL OF MARYLAND, Baltimore, Maryland, for Appellee. ON BRIEF: C. Edward Hartman, III, HARTMAN, ATTORNEYS AT LAW, Annapolis, Maryland, for Appellants. Anthony G. Brown, Attorney General, OFFICE OF THE ATTORNEY GENERAL OF MARYLAND, Baltimore, Maryland, for Appellee.

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WYNN, Circuit Judge:

Plaintiffs-Appellants, a Maryland LLC and a Missouri nonprofit corporation, allege

that Defendant-Appellee, the Maryland State Board of Elections, mismanaged state

electoral operations in violation of state and federal laws. The district court dismissed the

complaint without prejudice for lack of subject-matter jurisdiction, concluding that

Plaintiffs had not alleged injuries sufficiently concrete and particularized to support Article

III standing. We affirm.

I.

Maryland Election Integrity, LLC is a Maryland limited liability company; United

Sovereign Americans is a Missouri nonprofit corporation. In April 2024 these two entities

filed the operative amended complaint in the District of Maryland, alleging that the

Maryland State Board of Elections violated state and federal election laws through its

administration of the 2020 and 2022 general elections.

The complaint alleges that “Kate Sullivan, a member of Maryland Election Integrity

LLC, and a Baltimore County resident[,] canvassed Baltimore County and found inaccurate

voter registration records.” J.A. 34 ¶ 10. 1 According to Plaintiffs, Maryland’s “voter rolls

are highly inaccurate, error rates on the voting systems exceed the maximum allowable

error rates, voting systems were not certified correctly, machines have been used that have

VOID [Election Assistance Commission] certifications, large numbers of blank ballots

1 Citations to the “J.A.” refer to the Joint Appendix filed by the parties in this appeal.

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were cast, and the [State Board] is unlawfully withholding evidence of such.” J.A. 62 ¶ 199

(capitalization in original).

Plaintiffs allege that the State Board violated two federal statutes—the National

Voter Registration Act of 1993 (“NVRA”), 52 U.S.C. §§ 20501, 20507, and the Help

America Vote Act (“HAVA”), 52 U.S.C. § 21081 2—as well as various provisions of the

Maryland election code, Md. Code Ann., Elec. Law §§ 3-101 to -02, 3-502 to -04, 9-102

to -03. As summarized by the district court, Plaintiffs allege:

(1) inaccurate voter registration records in violation of NVRA and Maryland code,

(2) erroneous votes cast in the 2020 and 2022 general elections that exceed the permissible error rates set out in HAVA and Maryland code,

(3) the failure to review source code underlying voter machines in violation of HAVA’s certification requirements and Maryland regulations,

(4) the use of modems that compromise the security of voting machines in violation of HAVA and Maryland code, and

(5) the failure to provide voters an opportunity to correct blank ballots, undervotes, and overvotes in violation of HAVA.

Md. Election Integrity, LLC v. Md. State Bd. of Elections, No. CV SAG-24-00672, 2024

WL 2053773, at *1 (D. Md. May 8, 2024) (citations omitted). Plaintiffs also allege that the

2 Although HAVA contains no private right of action, Plaintiffs seek to enforce its standards under 42 U.S.C. § 1983. Because we dismiss for lack of subject-matter jurisdiction, we do not address whether HAVA may be enforced through an action brought under § 1983.

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State Board failed to provide audit logs and configuration reports in response to requests

for such records in violation of Maryland’s Public Information Act, Md. Code Ann., Gen.

Provis. § 4-103, -362.

Plaintiffs claim that Sullivan was “personally injured” by these violations because

the State Board “allowed otherwise ineligible voters to vote, thus diluting [Sullivan’s]

vote.” J.A. 39 ¶ 46; see also J.A. 63 ¶ 199 (alleging that the State Board’s actions have

“resulted in dilution of Plaintiff[s’] votes”). Plaintiffs also allege that Sullivan “has

standing to raise this issue because a high number of blank ballots were cast in Baltimore

County, creating the fear and threatened injury that her ballot was cast blank without notice

to her.” J.A. 57 ¶ 170. Finally, Plaintiffs allege that due to the State Board’s failure to

respond to public records requests, Plaintiffs are not “able to access information [to] which

they are entitled.” J.A. 63 ¶ 199.

The complaint seeks declaratory relief and an injunction that would, inter alia:

mandate that the State Board “address the discrepancies” alleged; enjoin the State Board

“from administering or certifying any election” suffering from such discrepancies; and

appoint a Special Master to supervise the State Board’s changes “prior to the November

2024 election.” J.A. 66–68. The complaint also seeks a writ of mandamus “compelling [the

State Board] to comply with” various “dut[ies]” under NVRA and HAVA. J.A. 69–70. 3

3 United Sovereign Americans does not “seek[] a distinct form of relief” from that sought by Maryland Election Integrity. J.A. 34 ¶ 14.

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On April 15, 2024, Plaintiffs moved for a preliminary injunction to halt Maryland’s

presidential primary election, which was held on May 14, 2024. The State Board opposed

the injunction and moved to dismiss the complaint under Rules 12(b)(1) and (6). In its

motion to dismiss, the State Board argued that Plaintiffs failed to state a claim, failed to

establish standing, and pleaded no cognizable federal question.

On May 8, 2024, the district court dismissed the complaint without prejudice for

lack of subject-matter jurisdiction and denied the motion for a preliminary injunction as

moot. The court held that neither Plaintiff satisfied the requirements of organizational

standing. That is, Plaintiffs could not seek relief for injuries to themselves as organizations

because they did not allege any injury to their organizational activities. 4 And Plaintiffs

could not sue on behalf of their members because generalized, statewide vote dilution

resulting from the alleged casting of unauthorized votes is not a “concrete or particularized

injury,” and the hypothetical possibility that members’ ballots were cast blank in some

prior election was not a “certainly impending injury.” Md. Election Integrity, 2024 WL

2053773, at *4. The court also concluded that Plaintiffs’ alleged violations of the Maryland

Public Information Act did not constitute “a redressable injury in fact” because Plaintiffs

did not allege that “any member of Maryland Election Integrity made the requests.” Id.

Plaintiffs timely appealed.

4 The pleadings contain no information about any organizational activities apart from this lawsuit.

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II.

Plaintiffs appeal the district court’s holding that they lack representational standing

to assert claims on behalf of individual members. Because plaintiffs do not allege concrete,

particularized, or certainly impending injuries, we affirm.

A.

“We review de novo a district court’s dismissal of a complaint for want of Article

III standing to sue—and thus for lack of subject matter jurisdiction—under Federal Rule

of Civil Procedure 12(b)(1).” Ali v. Hogan, 26 F.4th 587, 595 (4th Cir. 2022). “As the party

invoking federal jurisdiction,” Maryland Election Integrity “has the burden of

demonstrating standing for each of its” claims. Episcopal Church in S.C. v. Church Ins.

Co. of Vt., 997 F.3d 149, 154 (4th Cir. 2021). The State Board’s jurisdictional challenge is

facial; that is, the Board contends that the complaint fails to allege facts upon which

standing (and therefore subject-matter jurisdiction) can be based. See Kerns v. United

States, 585 F.3d 187, 192 (4th Cir. 2009). Accordingly, “the facts alleged in the complaint

are taken as true, and the motion must be denied if the complaint alleges sufficient facts to

invoke subject matter jurisdiction.” Id.

B.

As “organization[s],” Plaintiffs can demonstrate Article III standing “either in

[their] own right or as a representative of [their] members.” S. Walk at Broadlands

Homeowner’s Ass’n, Inc. v. OpenBand at Broadlands, LLC, 713 F.3d 175, 182 (4th Cir.

2013). Plaintiffs appeal only their right to assert standing as representatives of their

individual members. Plaintiffs do not appeal the district court’s conclusion that “United

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Sovereign Americans does not purport to represent any individual members.” Md. Election

Integrity, 2024 WL 2053773, at *3. Plaintiffs therefore seek to establish standing only as

representatives of Maryland Election Integrity’s individual members. 5

To establish representational standing, Plaintiffs “must demonstrate that ‘(a) [their]

members would otherwise have standing to sue in their own right; (b) the interests [they]

seek[] to protect are germane to [each] organization’s purpose; and (c) neither the claim

asserted nor the relief requested requires the participation of individual members in the

lawsuit.’” Students for Fair Admissions, Inc. v. President & Fellows of Harvard Coll., 143

S. Ct. 2141, 2157 (2023) (quoting Hunt v. Wash. State Apple Advert. Comm’n, 432 U.S.

333, 343 (1977)). At issue here is the first element: whether Plaintiffs have demonstrated

that any of their individual members would have standing to sue in their own right.

At an “irreducible constitutional minimum,” Article III requires that a plaintiff “(1)

suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the

defendant, and (3) that is likely to be redressed by a favorable judicial decision.” Spokeo,

5 The complaint asserts that Maryland Election Integrity has multiple “members who are registered voters in the state of Maryland,” but the only member identified in the pleadings is Sullivan, a “Baltimore County resident.” J.A. 34 ¶¶ 9–10. In their briefing, Plaintiffs assert that data scientist David Morsberger is also a member; but Morsberger’s name does not appear in the complaint, and his affidavit, filed a week after the complaint, does not state that he is a member. We only consider members who were pleaded in the complaint. See Casella v. Borders, 404 F. App’x 800, 803 n.2 (4th Cir. 2010) (per curiam) (“The Court will not consider facts not pled, nor will it entertain facts that cannot be inferred from the bare allegations of the . . . [c]omplaint.”).

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Inc. v. Robins, 578 U.S. 330, 338 (2016) (quoting Lujan v. Defs. of Wildlife, 504 U.S. 555,

560–61 (1992)). The parties’ dispute centers on the first requirement: injury in fact.

“To establish injury in fact, a plaintiff must show that he or she suffered ‘an invasion

of a legally protected interest’ that is ‘concrete and particularized’ and ‘actual or imminent,

not conjectural or hypothetical.’” Id. at 339 (quoting Lujan, 504 U.S. at 560). “For an injury

to be ‘particularized,’ it ‘must affect the plaintiff in a personal and individual way.’” Id.

(quoting Lujan, 504 U.S. at 560 n.1). A threatened future injury “must be certainly

impending to constitute injury in fact”; “allegations of possible future injury” are not

sufficient. Clapper v. Amnesty Int’l USA, 568 U.S. 398, 409 (2013) (brackets omitted)

(quoting Whitmore v. Arkansas, 495 U.S. 149, 158 (1990)).

Plaintiffs allege three types of injury in fact: dilution of their members’ votes arising

from the counting of invalid ballots, the possibility that their members’ ballots were

mistakenly cast blank, and violation of their members’ right to access public records under

the Maryland Public Information Act. We address each theory in turn.

1.

“[A] person’s right to vote is ‘individual and personal in nature.’” Gill v. Whitford,

585 U.S. 48, 65 (2018) (quoting Reynolds v. Sims, 377 U.S. 533, 561 (1964)). “Thus,

‘voters who allege facts showing disadvantage to themselves as individuals have standing

to sue’ to remedy that disadvantage.” Id. at 65–66 (quoting Baker v. Carr, 369 U.S. 186,

206 (1962)). In this case, Plaintiffs allege that their members were injured by having their

votes diluted. Specifically, they claim that Sullivan, a Maryland Election Integrity member,

was “personally injured” by the State Board because Maryland “allowed otherwise

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ineligible voters to vote, thus diluting her vote.” J.A. 39 ¶ 46; see also J.A. 63 ¶ 199

(alleging that the State Board’s actions “resulted in dilution of Plaintiff[s’] votes”). We

disagree.

To be sure, “the right to vote ‘can be denied by a debasement or dilution of the

weight of a citizen’s vote just as effectively as by wholly prohibiting the free exercise.’”

Raleigh Wake Citizens Ass’n v. Wake Cnty. Bd. of Elections, 827 F.3d 333, 337 (4th Cir.

2016) (quoting Bush v. Gore, 531 U.S. 98, 105 (2000) (per curiam)). But a claim of vote

dilution needs a point of reference—diluted compared to whom? For this reason, viable

“vote dilution” claims involve the uneven redistribution of voting power within a State.

For example, the “one-person, one-vote” cases involve the dilution of votes cast in

certain parts of a State relative to those cast in other parts of the State: “Overweighting and

overvaluation of the votes of those living here has the certain effect of dilution and

undervaluation of the votes of those living there.” Reynolds, 377 U.S. at 563 (emphases

added). In the racial gerrymandering context, “intentional ‘vote dilution’ [involves]

‘invidiously . . . minimizing or canceling out the voting potential of racial or ethnic

minorities.’” Abbott v. Perez, 585 U.S. 579, 586 (2018) (brackets omitted) (quoting City of

Mobile v. Bolden, 446 U.S. 55, 66–67 (1980) (plurality opinion)). Plaintiffs who bring these

kinds of claims have alleged “disadvantage to themselves as individuals,” relative to

individual voters outside the targeted geographic, racial, or ethnic group, as the result of

the manipulation of their own legislative districts. Gill, 585 U.S. at 66 (quoting Baker, 369

U.S. at 206).

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By contrast, “lower courts which have addressed standing in vote dilution cases

arising out of the possibility of unlawful or invalid ballots being counted, as Plaintiffs have

argued here, have said that this harm is unduly speculative and impermissibly generalized

because all voters in a state are affected, rather than a small group of voters.” Moore v.

Circosta, 494 F. Supp. 3d 289, 312 (M.D.N.C. 2020) (collecting cases). For example, in

2020, a district court in Nevada concluded that the Republican National Committee and

Nevada Republican Party lacked standing to bring vote-dilution claims arising from the

alleged counting of “fraudulently cast votes” because that injury was “impermissibly

generalized.” Donald J. Trump for President, Inc. v. Cegavske, 488 F. Supp. 3d 993, 999–

1000 (D. Nev. 2020). The plaintiffs sought “relief on behalf of their member voters that

‘no more directly and tangibly benefits [them] than it does the public at large,’” and was

therefore “‘precisely the kind of undifferentiated, generalized grievance about the conduct

of government’ that fail[s] to confer Article III standing.” Id. (first alteration in original)

(first quoting Lujan, 504 U.S. at 573–74; and then quoting Lance v. Coffman, 549 U.S. 437,

442 (2007) (per curiam)). That same year, a district court in Vermont explained that “[i]f

every voter suffers the same incremental dilution of the franchise caused by some third-

party’s fraudulent vote, then these voters have experienced a generalized injury.” Martel

v. Condos, 487 F. Supp. 3d 247, 253 (D. Vt. 2020).

The same reasoning applies to Plaintiffs’ claims here. The vote dilution caused by

the counting of an unknown number of invalid third-party votes affects all voters in a State

in the same way. That generalized injury cannot support Article III standing.

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2.

Plaintiffs also allege that Sullivan has standing “because a high number of blank

ballots were cast in Baltimore County, creating the fear and threatened injury that her ballot

was cast blank without notice to her.” J.A. 57 ¶ 170. As an initial matter, the complaint

does not allege that Sullivan or any other members of Maryland Election Integrity actually

voted in the 2020 or 2022 elections. Even if it did, Sullivan’s fear that her past votes were

submitted blank is neither concrete (Plaintiffs themselves describe this as “a real injury that

may have happened to her,” Opening Br. at 29) nor particularized (just like Plaintiffs’ vote-

dilution theory, the possibility that one voter’s ballot was one of thousands mistakenly

nullified statewide affects all Maryland voters in the same way). Plaintiffs allege no facts

establishing that its members’ ballots were more likely to have been cast blank than any

other Maryland voter’s ballot.

Plaintiffs argue that the threat that their members’ future ballots could be cast blank

is a distinct injury. “[W]hile it is true ‘that threatened rather than actual injury can satisfy

Article III standing requirements,’” a “threatened injury must be certainly impending to

constitute injury in fact.” Beck v. McDonald, 848 F.3d 262, 271–72 (4th Cir. 2017) (first

quoting Friends of the Earth, Inc. v. Gaston Copper Recycling Corp., 204 F.3d 149, 160

(4th Cir. 2000) (en banc); and then quoting Clapper, 568 U.S. at 410). The possibility that

Plaintiffs’ members’ ballots might be cast blank due to the statewide mismanagement of

future elections is “conjectural [and] hypothetical,” not “actual or imminent.” Beck, 848

F.3d at 270 (quoting Spokeo, 578 U.S. at 339). Plaintiffs’ blank-ballots theory therefore

fails.

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3.

Finally, Plaintiffs allege that their members were injured when the State Board

failed to “provide audit logs and configuration reports in violation of Maryland’s Public

Information Act.” J.A. 315; see Md. Code Ann., Gen. Provis. § 4-103; J.A. 51–55 ¶¶ 131–

57. The Maryland Public Information Act provides a cause of action to any “person” who

“is denied inspection of a public record or is not provided with a copy, printout, or

photograph of a public record as requested.” Md. Code Ann., Gen. Provis. § 4-362(a)(1).

Plaintiffs’ complaint alleges, vaguely and in passive voice, that audit logs and

configuration reports “were requested from [the State Board] and the Local Boards of

Election” but were “not produced.” J.A. 49 ¶ 119; see 52 ¶ 142; 53 ¶ 145; 54 ¶ 149; 58

¶ 180; 59 ¶ 185. The complaint does not allege that Sullivan or any other member of

Maryland Election Integrity made these requests. Plaintiffs have not carried their burden

of demonstrating that any of their members would have standing to sue in their own right

for injury arising from the denial of public records requests.

III.

Plaintiffs have failed to demonstrate that any of their members would have standing

to sue in their own right, and therefore cannot establish standing to sue on behalf of those

members. For all of these reasons, the district court properly dismissed the complaint for

lack of subject-matter jurisdiction and denied Plaintiffs’ motion for injunctive relief as

moot.

AFFIRMED