# Kareem v. Cuyahoga County Board of Elections

> District Court, N.D. Ohio · March 31, 2023

URL: https://www.frixlaw.com/law-library/cases/10371964

## Case

- **Court:** District Court, N.D. Ohio
- **Decided:** March 31, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10371964

## How later opinions describe it (automated extraction)

- 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
- 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

## Opinion text

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10371964. Public record. Not legal advice.