Kareem v. Cuyahoga County Board of Elections

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

ALISON KAREEM, ) CASE NO. 1:20-cv-02457

)

Plaintiff, ) JUDGE DAVID A. RUIZ

)

v. )

)

CUYAHOGA COUNTY BOARD OF )

ELECTIONS, et al., ) MEMORANDUM OPINION AND ORDER

)

Defendants. )

This matter is before the Court upon the cross-Motions for Summary Judgment filed by

Plaintiff Alison Kareem (R. 27); Defendant Ohio Secretary of State (Secretary of State) (R. 24);

and Defendants Cuyahoga County Board of Elections (Board of Elections or Board) and

Cuyahoga County Prosecuting Attorney (Prosecuting Attorney) (R. 26). For the following

reasons, Plaintiff’s Motion is DENIED, and Defendants’ Motions are GRANTED.

I. Procedure

Plaintiff Alison Kareem’s Complaint alleges a civil rights action pursuant to 42 U.S.C.

§ 1983 against the Secretary of State, Board of Elections, and Prosecuting Attorney (collectively,

Defendants). (R. 1, PageID# 1 ¶ 1). Specifically, Plaintiff’s Complaint seeks, inter alia,

declaratory and injunctive relief enjoining the enforcement of Ohio Revised Code

§ 3501.35(A)(4) and § 3599.20 to the extent that they prohibit “the publication by an elector on

social media or otherwise of the elector’s completed ballot.” (Id., PageID# 1–2 ¶¶ 2–5 (referred

to by Plaintiff as “ballot selfie(s)”). According to Plaintiff, the prohibition of these “ballot

selfies” or pictures of completed ballots, is a violation of her First and Fourteenth Amendment

rights. (Id., PageID# 1 ¶ 1).

After completing discovery, the parties filed three separate Motions for Summary

Judgment: one from Plaintiff (R. 27); one from the Secretary of State (R. 24); and one jointly

from the Board of Elections and Prosecuting Attorney (R. 26). Briefing of these Motions is

complete. (R. 30; R. 32; R. 33; R. 34; R. 35; R. 36).1

II. Facts2

Plaintiff has been a resident of Ohio since 2009. (R. 24-2, Kareem Depo., PageID# 149).

In either 2015 or 2016, Plaintiff voted in a statewide ballot initiative regarding a medical

marijuana issue. (Id., PageID# 186–187). Before casting her vote, Plaintiff took a photograph of

her completed ballot, and later proceeded to post that picture on her Facebook account. (Id.,

PageID# 181, 193). After posting the picture of her ballot, Plaintiff read “somewhere” on social

media that disseminating “ballot selfies” on social media is a felony in Ohio. (Id., PageID# 184–

185). Plaintiff does not recall the author of this information, nor does she remember whether this

information was posted generally on social media or as a direct response to her ballot selfie post.

(Id., PageID# 185). After researching this issue on the internet and concluding that posting a

picture of her ballot to social media would constitute criminal conduct in Ohio, Plaintiff became

1 Defendant Secretary of State also filed a subsequent Notice of Supplemental Authority. (R.

37).

2 The following factual recitation is undisputed unless otherwise indicated.

ne rvous about her Facebook post and removed it. (Id., PageID# 182, 185). Plaintiff testifies that

she has never received any direct communications—electronic or otherwise—from the

government related to any ballot picture or publication. (Id., PageID# 189–191).

Approximately four years later during the 2020 general election, Plaintiff and her brother

went to the Board of Elections to vote early. (Id., PageID# 168–169, 204; R. 27, PageID# 524).

Before casting her vote, Plaintiff took a picture of herself with her ballot, and Plaintiff’s brother

took a separate picture of Plaintiff with her ballot. (R. 24-2, Kareem Depo., PageID# 174, 204–

205). In these photographs, Plaintiff’s completed ballot was visible. (Id., PageID# 204–205).

However, Plaintiff testifies that she did not ultimately post these pictures on social media

because it would have been “illegal” to do so. (Id., PageID# 174). To reiterate, Plaintiff testifies

that she has never received any communications—electronic or otherwise—from any

governmental entity related to the pictures she took in 2020 or any other ballot pictures. (Id.,

PageID# 189–191).

Plaintiff testifies that she does not have any “concrete specific plans” to post a ballot

picture in the future, and said that such plans may hinge on the outcome of the instant litigation.

(Id., PageID# 200). Plaintiff, in response to the summary judgment motions, filed an affidavit

attesting that if state law had not prohibited the dissemination of ballot pictures, she would have

posted the pictures of her ballots on the internet in 2020 and would continue to do so in future

elections. (R. 28, PageID# 570 ¶ 7).

III. Legal Standard

Summary judgment is appropriate when “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.” Fed. R.

Civ. P. 56(a); Quinn v. Eshem, 2016 WL 9709498, at *2 (6th Cir. Dec. 20, 2016) (“Summary

ju dgment is proper when, viewing the evidence in the light most favorable to the nonmoving

party, there is no genuine dispute as to any material fact and the movant is entitled to judgment

as a matter of law.” (internal quotation marks omitted)). There is a genuine dispute as to a

material fact when the “evidence is such that a reasonable jury could return a verdict for the

nonmoving party.” Peffer v. Stephens, 880 F.3d 256, 262 (6th Cir. 2018) (quoting Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).

Non-moving parties may not rest upon the mere allegations in their pleadings nor upon

general allegations that issues of fact may exist. See Bryant v. Commonwealth of Kentucky, 490

F.2d 1273, 1275 (6th Cir. 1974). Moreover, a party asserting an affirmative defense bears the

burden of proof at trial as to the affirmative defense, and thus bears that burden at the summary

judgment stage as well. See, e.g., Wells Fargo Bank, N.A. v. Favino, 2011 WL 1256847, at *4

(N.D. Ohio Mar. 31, 2011) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323–24 (1986)). In

ruling on a motion for summary judgment, the Court must construe the evidence, as well as any

inferences to be drawn from it, in the light most favorable to the party opposing the motion.

Kraus v. Sobel Corrugated Containers, Inc., 915 F.2d 227, 229 (6th Cir. 1990).

The standards upon which the Court evaluates motions for summary judgment do not

change when, as here, “both parties seek to resolve [the] case through the vehicle of cross-

motions for summary judgment.” Craig v. Bridges Bros. Trucking LLC, 823 F.3d 382, 387 (6th

Cir. 2016) (alteration in original) (quoting Taft Broadcasting Co. v. United States, 929 F.2d 240,

248 (6th Cir. 1991)). The Court must “evaluate each party’s motion on its own merits, taking care

in each instance to draw all reasonable inferences against the party whose motion is under

consideration.” Id. (quoting Taft, 929 F.3d at 248).

IV. Analysis

At the heart of Plaintiff’s lawsuit is the contention that two Ohio statutes violate her First

and Fourteenth Amendment rights because they criminalize the dissemination or publication of

pictures of completed ballots. (R. 27, PageID# 521). The first statute provides, “During an

election and the counting of ballots, no person shall . . . [e]xhibit any ticket or ballot which the

elector intends to cast.” Ohio Rev. Code § 3501.35(A)(4). A violation of this statute constitutes a

first-degree misdemeanor. Ohio Rev. Code § 3599.40. The second statute states that it is a fifth-

degree felony for any person “being an elector, allow[ing] the elector’s ballot to be seen by

another . . ., with the apparent intention of letting it be known how the elector is about to vote.”

Ohio Rev. Code § 3599.20. Plaintiff would have the Court enjoin the enforcement of these

statutes to the extent that they prohibit the publishing or dissemination of pictures of a completed

ballot on social media or elsewhere, as well as award Plaintiff with nominal damages for the

infringement of her constitutional rights. (R. 1, PageID# 2 ¶ 5).

The parties’ summary judgment briefing touches on myriad issues, among them: the

historical context of voter intimidation and election corruption leading to Ohio’s passage of laws

as means to protect election integrity, Eleventh Amendment immunity, the establishment of

Monell liability pursuant to 42 U.S.C. § 1983, and whether the Ohio statutes constitute content-

based restrictions on speech and ultimately survive strict or intermediate scrutiny. But before

reaching these issues, the Court must consider a more fundamental question—whether Plaintiff

has standing to bring this action. The Court, as explained herein, must refrain from reaching

these issues because this matter must be dismissed for Plaintiff’s lack of standing.

Defendants’ Motions for Summary Judgment assert that Plaintiff has failed to establish

Article III standing. (R. 24, PageID# 105–111; R. 26, PageID# 327–328). A challenge to a

pa rty’s standing is a jurisdictional challenge. Lujan v. Defenders of Wildlife, 504 U.S. 555, 559–

61 (1992); Imhoff Inv., L.L.C. v. Alfoccino, Inc., 792 F.3d 627, 631 (6th Cir. 2015) (“Where a

plaintiff has no Article III standing to bring a case, jurisdiction is lacking and the court must

dismiss it.”); Caudill v. Wells Fargo Home Mortg., Inc., 2016 WL 3820195, at *1 (E.D. Ky. July

11, 2016). The jurisdiction of the federal courts is limited by Article III of the Constitution to

adjudicating actual “Cases” and “Controversies.” Lujan, 504 U.S. at 559. Standing is essential to

the exercise of jurisdiction, and is a “threshold question . . . [that] determine[es] the power of the

court to entertain the suit.” Crawford v. Roane, 53 F.3d 750, 753 (6th Cir. 1995) (alterations in

original) (quoting Warth v. Seldin, 422 U.S. 490, 498 (1975)), cert. denied, 517 U.S. 1121

(1996).

The Supreme Court has established that the “irreducible constitutional minimum of

standing contains three elements.” Lujan, 504 U.S. at 560–61; see also Imhoff Inv., L.L.C., 792

F.3d at 631; Mey v. Venture Data, LLC, 245 F. Supp. 3d 771, 775 (N.D. W. Va. 2017) (citing

Spokeo, Inc. v. Robins, 578 U.S. 330, 338 (2016), as revised (May 24, 2016)); Caudill, 2016 WL

3820195, at *1 (citing Lujan, 504 U.S. at 560–61). First, the plaintiff must have suffered an

“injury in fact,” a concrete injury to a legally protected interest. Lujan, 504 U.S. at 560–61. In

other words, “[a]n injury sufficient to satisfy Article III must be ‘concrete and particularized’ and

‘actual or imminent, not conjectural or hypothetical.’” Susan B. Anthony List v. Driehaus, 573

U.S. 149, 158 (2014) (quoting Lujan, 504 U.S. at 560). Second, there must be a causal

connection between the injury and the challenged conduct, “fairly traceable” to the defendant. Id.

Finally, it must be “likely” that the injury will be redressed by a favorable decision. Id. Standing

is relaxed in the First Amendment context “because of a judicial prediction or assumption that

the policy’s very existence may cause others not before the court to refrain from constitutionally

pr otected speech or expression.” Faith Baptist Church v. Waterford Twp., 522 F. App’x 322, 330

(6th Cir. 2013) (quoting Berner v. Delahanty, 129 F.3d 20, 24 (1st Cir. 1997)).

“The party invoking federal jurisdiction bears the burden of establishing these elements.”

Lujan, 504 U.S. at 561. Moreover, “each element must be supported in the same way as any

other matter on which the plaintiff bears the burden of proof, i.e., with the manner and degree of

evidence required at the successive stages of the litigation.” Id. This means that, “[i]n response to

a summary judgment motion,” a plaintiff cannot rely on “mere allegations” with respect to each

standing element, “but must set forth by affidavit or other evidence specific facts, which for

purposes of the summary judgment motion will be taken to be true.” Id. (citation omitted).

All Defendants dispute that Plaintiff has suffered an injury in fact, while the Secretary of

State also challenges the “causal connection” between Plaintiff’s alleged injury and the Secretary

of State’s challenged conduct. (R. 24, PageID# 106–111; R. 26, PageID# 327–328).

An actual arrest or prosecution is not a prerequisite to challenging these statutes when the

individual is subject to “threatened enforcement of the law” by the government. Susan B.

Anthony List, 573 U.S. at 158–59. Where, as here, Plaintiff has not been arrested, charged, or

subject to other enforcement action by the government under either statute, whether Plaintiff has

standing to sue “turns upon whether [she] can demonstrate an ‘injury in fact’ before the state has

actually commenced an enforcement proceeding against [her].” Kiser v. Reitz, 765 F.3d 601, 607

(6th Cir. 2014); (R. 24-2, Kareem Depo., PageID# 189–190; R. 33, PageID# 610). In a pre-

enforcement challenge, the Supreme Court has recognized that an “allegation of future injury

may” satisfy the injury-in-fact requirement if the alleged “threatened injury is certainly

impending, or there is a substantial risk that the harm will occur.” McKay v. Federspiel, 823 F.3d

862, 867 (6th Cir. 2016) (quoting Susan B. Anthony List, 573 U.S. at 158), cert. denied, 137 S. Ct.

12 29 (2017). Specifically, “a plaintiff satisfies the injury-in-fact requirement in the pre-

enforcement context where [i. she] alleges an intention to engage in a course of conduct arguably

affected with a constitutional interest, but proscribed by statute, and [ii] there exists a credible

threat of prosecution thereunder.” Id. (quoting Susan B. Anthony List, 573 U.S. at 159); see also

Plunderbund Media, L.L.C. v. DeWine, 753 F. App’x 362, 366 (6th Cir. 2018).

Assuming without deciding that Plaintiff has adequately established an intention to

engage in conduct arguably affected with a constitutional interest but proscribed by statute, the

Court examines whether Plaintiff has established that she faced a credible threat of prosecution

under the two Ohio statutes at issue. In the free speech context, the “mere allegations of a

subjective chill on protected speech are insufficient” to establish a credible threat of prosecution.

Plunderbund, 753 F. App’x at 366 (quoting McKay, 823 F.3d at 868–69). Put another way,

Plaintiff cannot satisfy the injury-in-fact requirement by claiming that she fears prosecution due

to the mere existence of the statutes at issue. Id. at 367; see also Morrison v. Bd. of Educ. of

Boyd Cty., 521 F.3d 602, 608 (6th Cir. 2008) (“With respect to the standing of First Amendment

litigants, the Supreme Court is emphatic: Allegations of a subjective chill are not an adequate

substitute for a claim of specific present objective harm or a threat of specific future harm.”

(internal quotation marks omitted) (quoting Laird v. Tatum, 408 U.S. 1, 13–14 (1972))), cert.

denied, 555 U.S. 1171 (2009). The Sixth Circuit has found “a credible threat of prosecution”

where:

plaintiffs allege a subjective chill and point to some combination of the following

factors: (1) a history of past enforcement against the plaintiffs or others; (2)

enforcement warning letters sent to the plaintiffs regarding their specific conduct;

and/or (3) an attribute of the challenged statute that makes enforcement easier or

more likely, such as a provision allowing any member of the public to initiate an

enforcement action . . . .

M cKay, 823 F.3d at 869 (emphasis in original) (citations omitted); see also Plunderbund, 753 F.

App’x at 366–67. The district court may also “take into consideration a defendant’s refusal to

disavow enforcement of the challenged statute against a particular plaintiff.” Plunderbund, 753

F. App’x at 366–67 (quoting McKay, 823 F.3d at 869).

It is apparent that the second and third McKay factors do not support Plaintiff’s pre-

enforcement standing. Plaintiff admits in her deposition that she has never received any

communication from any governmental entity related to her ballot pictures, let alone any

enforcement warning letters. (R. 24-2, Kareem Depo., PageID# 189–191). And Plaintiff does not

contend that either of the Ohio statutes at issue contains a mechanism to make enforcement

easier or more likely, such as a private cause of action. Indeed, they do not. Therefore, turning to

the first factor, the Court considers whether there is a history of past enforcement of the statutes

against Plaintiff or others who have disseminated their ballot pictures, thereby establishing a

credible threat of prosecution to support Plaintiff’s standing to bring this action.

Plaintiff’s testimony demonstrates that no governmental entity has ever threatened her

with prosecution for any conduct related to taking, publishing, or disseminating pictures of her

ballot, simply stating that “[t]he only threat [she has] had is through the Ohio Revised Code.” (R.

24, PageID# 108; R. 24-2, Kareem Depo., PageID# 198–199). That being the case, Plaintiff

attempts to establish a history of enforcement of the statutes against other Ohioans, even though

she is apparently unaware of anybody in the state being prosecuted for publishing or

disseminating a ballot picture. (R. 24-2, Kareem Depo., PageID# 197). The most that Plaintiff

references is a single instance several years ago in which the Board of Elections, under the

leadership of its former Director, requested that an individual remove an image of his or her

marked ballot from social media. (R. 26-1, Perlatti Depo., PageID# 383, 392–393; R. 33,

Pa geID# 614). In that case, the Board of Elections did not refer the individual for prosecution or

issue any warning letters, though the person did ultimately remove the image from social media.

(R. 26-1, Perlatti Depo., PageID# 406).

On its own, Plaintiff’s lone example of past enforcement does not establish a credible

threat of prosecution under the statutes at issue. Moreover, the Director of the Board of

Elections, Anthony Perlatti, testifies that since he became Director in 2019, the Board of

Elections has not monitored or responded to the dissemination of ballot pictures. (Id., PageID#

383). Perlatti also states that during his Directorship, the Board of Elections has not referred any

cases involving pictures of ballots for prosecution, or issued any take-down or warning letters.

(Id., PageID# 407). Considering Plaintiff’s single example with this context in mind, Plaintiff

can only point to one instance that occurred several years ago, under a previous Board of

Elections Director, that was never referred for prosecution or subject to any threat of

enforcement proceedings. This one instance alone cannot have led somebody to believe that he

or she faced a credible threat of prosecution under the Ohio statutes at issue.3

To bolster her argument, Plaintiff points to various public-facing statements made by

Ohio governmental entities or officials that purportedly demonstrate a threat of prosecution

under the statutes. First, the Board of Elections issued a Tweet on March 15, 2016, that said,

“We love seeing all the voter pride, but know it is illegal in OH to post a picture of your voted

3 The record also contains a media article regarding a city council candidate who had posted

photographs of his absentee ballot on Facebook. (R. 26-2, Ex. 8, PageID# 518–520). According

to the article, after the candidate had been told that the posts violated Ohio law, he removed the

pictures from Facebook. (Id.). However, there is no indication in the article or elsewhere in the

record of who told the person that his actions could violate Ohio law. (Id.; R. 26-1, Perlatti

Depo., PageID# 380–382). Therefore, there is insufficient evidence to find that this is an

example of any Ohio governmental entity enforcing the statutes at issue.

ba llot! Show your sticker instead!” (R. 33, PageID# 613). Second, there is a directive in Ohio’s

Election Official Manual, published by the Secretary of State, which states, “Ohio law contains

many prohibitions concerning the handling of ballots, including showing a voted ballot to

another person . . . . Generally, such prohibited actions are punishable as a misdemeanor or

felony.” (Id., PageID# 614). Finally, the Board of Elections has distributed pre-election briefing

materials to the news media—and some of the Board’s personnel have engaged in publicized

media interviews—explaining that it is the Board’s position that posting pictures of a completed

ballot is unlawful. (Id., PageID# 613; R. 26-2, West Depo., Exs. 2–7, PageID# 503–516).

Before considering these examples, it is instructive to consider the underlying facts in the

Sixth Circuit’s opinion in McKay v. Federspiel, 823 F.3d 862 (6th Cir. 2016). In McKay, the

plaintiff-appellant challenged a joint administrative order “prohibiting unauthorized possession

or use of certain electronic devices in court related facilities” in a government building in

Michigan. Id. at 864. The plaintiff-appellant had not requested or been denied permission to use

a prohibited electronic device in the government building, and he never attempted to enter the

building with such a device; therefore, he brought a pre-enforcement challenge to the order. Id. at

865. To establish a credible threat of prosecution, the plaintiff-appellant referenced signs that

were posted in and around the government building, many of which stated that there were to be

“NO Electronic Devices” on certain floors and in certain specified areas of the building without

judicial permission and that a violation may result in contempt sanctions. Id. at 869–70.

According to the plaintiff-appellant, these signs supported his argument that he faced a credible

threat of prosecution. Id. The Sixth Circuit disagreed, explaining that these signs were

distinguishable from warning letters that established a credible threat of prosecution in other

cases because the signs “address[ed] the general public, not [the plaintiff-appellant] specifically

or any of his past conduct.” Id.

Here, the public-facing statements cited by Plaintiff fail to establish a credible threat of

prosecution for the same reasons as the signs at issue in McKay. For example, the March 2016

Tweet, the directive in the Election Manual, and the pre-election briefing materials and

interviews that government personnel had with the media were not directed at any specific

individual. These government statements are or were intended for the general public, and nobody

reading them would believe that they were being personally threatened with prosecution.

Although Plaintiff has not satisfied the first three McKay factors, Plaintiff devotes much

attention to her argument that she has established an injury-in-fact because Defendants have

failed to disavow enforcement of the challenged statutes. (R. 33, PageID# 614–616). Plaintiff

cites several cases that purportedly support the proposition that the government’s failure to

disavow enforcement, on its own, is sufficient to establish an injury-in-fact for pre-enforcement

standing purposes. (Id.). Plaintiff’s position overstates the law. All of these cases satisfied the

injury-in-fact requirement because they established at least one factor, in addition to the

government’s failure to disavow enforcement. See Susan B. Anthony List, 573 U.S. at 164–65

(finding a credible threat of prosecution where there was a history of past enforcement of the

challenged provision against petitioner, any person could initiate enforcement of the provision,

the Ohio Elections Commission fielded dozens of complaints under the provision each year, and

the state refused to disavow enforcement); Platt v. Bd. of Comm’rs on Grievances & Discipline

of Ohio Supreme Court, 769 F.3d 447, 452 (6th Cir. 2014) (finding a credible threat of

prosecution where any person could initiate enforcement of the challenged provision and the

state refused to disavow enforcement of the provision as applied to plaintiff-appellant); Holder v.

Humanitarian Law Project, 561 U.S. 1, 15–16 (2010) (finding a credible threat of prosecution

w here the government had previously charged “about 150 persons” with violating the provision

at issue and the government had not disavowed prosecution of the plaintiffs); Babbitt v. United

Farm Workers Nat’l Union, 442 U.S. 289, 301–02 (1979) (finding a credible threat of

prosecution where the challenged statute had no intent requirement and prohibited activity that

was “inevitable in free debate,” making prosecution more likely, and the state had not disavowed

prosecution).4 Even assuming that Plaintiff has presented sufficient evidence showing that the

4 In addition, Plaintiff’s reliance on Green Party of Tennessee v. Hargett, 791 F.3d 684 (6th Cir.

2015) is also unavailing for a more fundamental reason. (R. 33, PageID# 611–612). In Hargett,

the challenged statute required political parties to submit a loyalty oath affidavit. Consequently,

the case is distinguishable because it involved a matter of compelled speech. Hargett, 791 F.3d at

695–96.

Plaintiff also cites to two other cases in which district courts have found that plaintiffs

had pre-enforcement standing to challenge “ballot selfie” statutes, but each is distinguishable as

explained below. (R. 33, PageID# 609).

The first, Crooskston v. Johnson, 370 F. Supp. 3d 804 (W.D. Mich. 2018), involved

distinguishable procedural posture. There, the court denied a motion to dismiss, finding in part

the plaintiff pleaded sufficient general allegations to withstand dismissal at the pleading stage.

The case concerned a Michigan statute prohibiting an elector from “show[ing] his or her ballot . .

. after the ballot has been marked.” Crookston, 370 F. Supp. 3d at 808 (quoting Mich. Comp.

Laws § 168.579). Importantly, conduct violating this provision constituted a misdemeanor and

resulted in the forfeiture of the elector’s ballot. Id. The crux of the plaintiff’s challenge was that

Michigan’s laws violated the due process clause of the Fourteenth Amendment because they

“provide[d] no opportunity to be heard before depriving Michigan voters . . . of the right to

vote.” Id. (internal quotation marks omitted). When considering whether the plaintiff had pre-

enforcement standing despite the lack of history of the law’s enforcement, the court explained

that standing was proper because the “operations of the [challenged] laws” were “unclear,” with

no opportunity to be heard before a person’s right to vote was forfeited—the heart of the

plaintiff’s case. Id. at 809, 812. Contrasting that with the case before this Court, Plaintiff is not

challenging a statute that if enforced would deny her right to vote without meaningful due

process; and despite full discovery, Plaintiff’s alleged injury is not actual or imminent, but

hypothetical.

The second case, Hill v. Williams, 2016 WL 8667798 (D. Colo. Nov. 4, 2016), regarded a

challenge by multiple plaintiffs to a Colorado statute that prohibited the “photographing of one’s

own ballot and display of such photographs outside of polling places.” Hill, 2016 WL 8667798,

at *1. The court in Hill ultimately determined that the plaintiffs had pre-enforcement standing

(id. at *4–6), but that case too is distinguishable on its facts rendering the Hill plaintiffs’ standing

argument stronger than Plaintiff’s here. For example, the Colorado Secretary of State admitted to

referring “a number” of complaints to the Denver District Attorney’s office for prosecution, and

go vernment has refused to disavow enforcement of the two statutes—which is itself in doubt

considering the current Director of the Board of Elections has testified that the Board does not

monitor or respond to “ballot selfie” posts—that on its own is insufficient to satisfy the injury-in-

fact requirement of pre-enforcement standing. Davis v. Colerain Twp., 51 F.4th 164, 174 (6th Cir.

2022) (holding that a defendant’s refusal to disavow enforcement of the provision at issue “is

just one data point among many on the question whether a credible threat of enforcement

exists”); (R. 26-1, Perlatti Depo., PageID# 383).

While Plaintiff correctly points out that there is no requirement of “direct contact”

between a government official and a plaintiff to establish standing (R. 33, PageID# 611),

Plaintiff still carries the burden of satisfying the pre-enforcement standing factors laid out by the

Supreme Court and Sixth Circuit, which Plaintiff has not done. Plaintiff has failed to establish an

injury-in-fact, so the Court need not reach the remaining standing elements and holds that

Plaintiff lacks Article III standing. As a result, the Court lacks jurisdiction over the instant action.

V. Conclusion

Plaintiff’s Motion for Summary Judgment (R. 27) is DENIED, and Defendants’ Motions

for Summary Judgment (R. 24; R. 26) are GRANTED. As a result, this action is DISMISSED

with prejudice. IT IS SO ORDERED.

s/ David A. Ruiz

David A. Ruiz

United States District Judge

Date: March 31, 2023

one of the plaintiffs testified that she received a warning from the Attorney General’s office that

she violated the challenged statute. Id. at *5. No similar facts are present in this case.