Mussi v. Fontes

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 17, 2026
• Docket: 25-1427
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 17 2026 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

SCOT MUSSI; STEVEN GAYNOR, No. 25-1427 D.C. No. Plaintiffs - Appellants, 2:24-cv-01310-DWL v. MEMORANDUM* ADRIAN FONTES, in his official capacity as Arizona Secretary of State,

Defendant - Appellee.

Appeal from the United States District Court for the District of Arizona Dominic Lanza, District Judge, Presiding

Argued and Submitted March 2, 2026 Phoenix, Arizona

Before: CLIFTON, BYBEE, and MILLER, Circuit Judges.

Plaintiffs Scot Mussi and Steven Gaynor are registered voters in the State of

Arizona. Plaintiffs bring claims against the Arizona Secretary of State under the

National Voter Registration Act, 52 U.S.C. § 20510(b). They allege that the

Secretary of State has failed to conduct the voter roll maintenance required by that

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. statute, id. § 20507, and they seek injunctive relief compelling him to “develop and

implement additional . . . registration list-maintenance programs” to “ensure that

ineligible registrants are not on the voter rolls.” The district court dismissed the

complaint for lack of Article III standing. We have jurisdiction under 28 U.S.C.

§ 1291. We affirm.

We review de novo the district court’s order dismissing the complaint.

Tohono O’odham Nation v. Department of the Interior, 138 F.4th 1189, 1199 (9th

Cir. 2025). “All well-pleaded allegations of material fact in the complaint are

accepted as true and are construed in the light most favorable to the non-moving

party.” Id. (citation omitted).

1. Plaintiffs do not adequately allege Article III standing based on a risk of

vote dilution. At the pleading stage, a plaintiff must allege facts demonstrating “an

invasion of a legally protected interest which is (a) concrete and particularized, and

(b) actual or imminent, not conjectural or hypothetical.” Lujan v. Defenders of

Wildlife, 504 U.S. 555, 560 (1992) (citations and internal quotation marks

omitted). A threatened injury “must be certainly impending to constitute injury in

fact.” Clapper v. Amnesty Int’l USA, 568 U.S. 398, 409 (2013) (emphasis omitted)

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

Plaintiffs allege that inadequate voter roll maintenance offers ineligible

voters “an opportunity to vote in Arizona elections, risking the dilution of

2 25-1427 Plaintiffs’ legitimate votes.” As the district court observed, however, plaintiffs’

feared injury would occur only after (1) “an ineligible voter requests an early ballot

or presents at a polling place,” (2) that person “casts a ballot,” and (3) “that

ineligible ballot is tabulated.” If voting in person, the voter would also have to

present proof of identity that “reasonably appear[s] to be the same as the name and

address in the precinct register.” Ariz. Rev. Stat. Ann. § 16-579(A)(1) (2026).

Although plaintiffs allege that “known cases of voter fraud” have occurred

in Arizona, they do not allege that any of those cases were the result of inadequate

list maintenance or that they affected the plaintiffs. Instead, they argue that they

have alleged a “substantial risk” of harm because ineligible voters listed on the

rolls might vote in the future. See Department of Commerce v. New York, 588 U.S.

752, 767 (2019) (quoting Susan B. Anthony List v. Driehaus, 573 U.S. 149, 158

(2014)). But plaintiffs cannot establish a “substantial risk” based on an “attenuated

chain of inferences.” Clapper, 568 U.S. at 414 n.5. Their injury is entirely

hypothetical: Plaintiffs claim that including ineligible voters on the rolls “heightens

the risk” of ineligible ballots being cast and counted by offering ineligible voters

“an opportunity” to vote, “risking the dilution” of plaintiffs’ ballots. Such

“conjectural allegations of potential injuries” and “chain[s] of hypothetical

contingencies” are insufficient to plead an actual or imminent injury. Lake v.

3 25-1427 Fontes, 83 F.4th 1199, 1204 (9th Cir. 2023) (per curiam) (quoting Lake v. Hobbs,

623 F. Supp. 3d 1015, 1028, 1032 (D. Ariz. 2022)).

2. Plaintiffs do not adequately allege an injury based on their loss of

confidence in the integrity of Arizona elections. Plaintiffs may not “manufacture

standing merely . . . based on their fears of hypothetical future harm that is not

certainly impending.” Clapper, 568 U.S. at 416. As explained above, the harm

plaintiffs fear is speculative and therefore insufficient to establish an injury in fact.

See Lake, 83 F.4th at 1201.

3. Plaintiffs do not adequately allege an injury based on a diversion of

resources. A plaintiff who “has not suffered a concrete injury caused by a

defendant’s action cannot spend [his] way into standing simply by expending

money to gather information and advocate against the defendant’s action.” FDA v.

Alliance for Hippocratic Med., 602 U.S. 367, 394 (2024); see also Clapper, 568

U.S. at 416 (rejecting standing where plaintiffs “inflict[ed] harm on themselves” by

“incurr[ing] certain costs” in response to defendant’s actions). Plaintiffs allege that

the Secretary’s inadequate list maintenance has caused them to spend “more time

and resources monitoring Arizona’s elections for fraud and abuse,” which “would

otherwise be spent on other projects and activities that would advance their goals.”

But they do not explain what those other projects and activities might be or how

their resources have been diverted. Absent such allegations, plaintiffs allege only a

4 25-1427 setback to their “abstract social interests,” which is insufficient to confer standing.

Havens Realty Corp. v. Coleman, 455 U.S. 363, 379 (1982).

AFFIRMED.

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