Toth Jr. v. Chapman

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

WILLIAM C. TOTH, JR., et al., : Civil No. 1:22-CV-00208

:

Plaintiffs, : Three Judge Panel Convened

: Pursuant to 28 U.S.C. § 2284(a)

v. :

:

LEIGH M. CHAPMAN, et al.,1 :

:

Defendants, :

:

v. :

:

CAROL ANN CARTER, et al., :

:

Intervenor-Defendants. :

MEMORANDUM OPINION

BEFORE: Kent A. Jordan, Circuit Judge, United States Court of Appeals for the

Third Circuit; Patty Shwartz, Circuit Judge, United States Court of Appeals for the

Third Circuit; Jennifer P. Wilson, District Judge, United States District Court for

the Middle District of Pennsylvania

Per Curiam March 16, 2022

INTRODUCTION

Plaintiffs William C. Toth, Jr., William J. Hall, Howard Gartland

(“Gartland”), James Bognet (“Bognet”), Aaron Bashir (“Bashir”), and Alan M.

Hall (“Hall”) (collectively, “Plaintiffs”) are all registered voters in Pennsylvania.

Bognet and Bashir are also candidates for Congress from Luzerne and Philadelphia

Counties, respectively. Hall is also a member of the Susquehanna County Board of

1 The Clerk is directed to correct the docket to change “Lehigh” to “Leigh.”

Elections. Plaintiffs have sued Leigh Chapman, Acting Secretary of the

Commonwealth of Pennsylvania; Jessica Mathis, Director for the Pennsylvania

Bureau of Election Services and Notaries; and Tom Wolf, Governor of

Pennsylvania, in their official capacities (collectively, “Commonwealth

Defendants”). In their second amended complaint, Plaintiffs contend that

Defendants’ implementation of the congressional district reapportionment plan

selected by the Pennsylvania Supreme Court (referred to as the “Carter Plan”)

violates the Elections Clause of the United States Constitution and 2 U.S.C. §

2a(c)(5) and that Defendants’ departure from the general primary calendar

established by the Pennsylvania legislature violates the Elections Clause (Claims

One and Two). In addition, Plaintiffs assert that the Carter Plan violates the United

States Constitution as interpreted in Wesberry v. Saunders, 376 U.S. 1 (1964)

(Claim Three). With one exception, the group of Pennsylvania voters who

proposed the Carter Plan in the earlier state court litigation sought and have been

permitted to intervene as defendants in this action (“Intervenor-Defendants” or

“Carter Group”). The Commonwealth Defendants and Intervenor-Defendants

(together, “Defendants”) now move to dismiss Claims One and Two, arguing that

Plaintiffs lack standing to pursue these claims. We agree.

BACKGROUND

A. Developments in the Political Branches

Pennsylvania lost one seat in the United States House of Representatives as

a result of the 2020 decennial census, reducing its number of seats from 18 to 17.

(Doc. 49, ¶¶ 13–14.) The Pennsylvania General Assembly then began the process

of selecting a new electoral map for the 2022 elections. (Id. ¶¶ 16-17.) The

General Assembly passed in HB 2146 a map that Plaintiffs allege provided for a 9-

8 Democratic tilt (“Assembly Map”). (Id. at 2; Doc. 49-9, p. 217.)2 On January

26, 2022, Governor Wolf vetoed the Assembly Map, remarking, among other

things, that it was insufficiently bipartisan. (Doc. 49, p. 2 & n.1, ¶¶ 17, 25.) At

that point, Pennsylvania did not have a new congressional map for the May 17,

2022 primary.

B. State Court Litigation

Prior to the Governor’s veto, two groups of litigants—one of which was the

Carter Group—each filed suit in the Commonwealth Court of Pennsylvania

seeking to have a proposed reapportionment plan implemented. (Id. ¶¶ 18, 20; see

also Doc. 49-1.) The cases were consolidated before Judge Patricia A.

McCullough, who instructed on December 20, 2021 that she would “select” a plan

for reapportionment “from those plans timely filed by the parties,” “[i]f the

2 For ease of reference, the Court uses the page numbers from the CM/ECF header.

General Assembly and the Governor fail[ed] to enact [such a] plan by January 30,

2022.” Carter v. Degraffenreid, No. 464 M.D. 2021, slip op. at 2 (Pa. Commw.

Ct. Dec. 20, 2021). The Carter Group’s plan was one of the “timely filed” plans

before Judge McCullough. (Doc. 49-1.)

On December 21, 2021, the Carter Group filed an application for

extraordinary relief in the Pennsylvania Supreme Court, which was denied without

prejudice. (Doc. 49, ¶¶ 21, 23; Docs. 49-2, 49-3.) On January 27 and 28, 2022,

Judge McCullough held an evidentiary hearing. (Doc. 49, ¶ 26.) On January 29,

2022, the Carter Group filed a renewed application in the Pennsylvania Supreme

Court after Governor Wolf vetoed the Assembly Map, again asking the Court to

exercise extraordinary jurisdiction. (Id. ¶ 27; Doc. 49-7.) On February 1, 2022,

Judge McCullough issued an order indicating that she would rule by February 4,

2022. (Doc. 49, ¶ 28.)

On February 2, 2022, the Pennsylvania Supreme Court granted the

application to exercise extraordinary jurisdiction, “given the impasse between the

legislative and executive branches concerning the adoption of congressional

districts, and in view of the impact that protracted appeals will have on the election

calendar, and time being of the essence.” Carter v. Chapman, No. 7 MM 2022,

2022 WL 304580, at *1 (Pa. Feb. 2, 2022); Doc. 49, ¶ 29; Doc. 49-8. The

Pennsylvania Supreme Court designated Judge McCullough as a Special Master

and instructed her to submit a report and proposed map by February 7, 2022.

Chapman, 2022 WL 304580, at *1; Doc. 49, ¶ 30; Doc. 49-8.

On February 7, Judge McCullough filed her report, which recommended the

Assembly Map from among the 13 maps submitted “by the parties and their

amici.” (Doc. 49, ¶¶ 32–33; see also Doc. 49-9, pp. 50–63.) She rejected the

Carter Plan, in part, because “it produces districts with a two-person deviation,

which” Plaintiffs allege “is unconstitutional when it remains possible to adopt

other maps that contain no more than a one-person deviation.”3 (Doc. 49, ¶ 34

(citing Doc. 49-9, pp. 198, 201, 210).)

On February 9, 2022, the Pennsylvania Supreme Court temporarily

suspended the general primary election calendar. (Id. ¶ 40; Doc. 49-10.) After

setting a deadline for objections and holding oral argument, the Pennsylvania

Supreme Court issued an order on February 23, 2022 rejecting Judge

McCullough’s recommendation and adopting the Carter Plan. Carter v. Chapman,

No. 7 MM 2022, 2022 WL 549106, at *1 (Pa. Feb. 23, 2022); Doc. 49, ¶ 41; Doc.

49-11. This order also vacated the prior order that temporarily suspended the

general primary election calendar, extending a few internal deadlines (including

3 According to Judge McCullough’s findings of fact, the magnitude of the referenced “deviation”

in a map reflects the “difference in population from the largest to the[] smallest district[]” in the

map. (Doc. 49-4, p. 204.) For instance, the largest district in a map with a “one person

deviation” only contains one more person than the smallest district in that map. (Id.)

the first day to circulate and file nomination petitions), but leaving undisturbed

many dates including the May 17, 2022 primary election date. Carter v. Chapman,

2022 WL 549106, at *1; Doc. 49, ¶ 43; Doc. 49-11.

The Justices of the Pennsylvania Supreme Court later filed majority,

concurring, and dissenting opinions. Writing for the majority, Chief Justice Baer

explained that the Court accepted the “unwelcome obligation” of selecting a

congressional redistricting plan because the General Assembly and the Governor

had failed to agree upon a plan. Carter v. Chapman, No. 7 MM 2022, 2022 WL

702894, at *1 (Pa. Mar. 9, 2022) (quoting League of Women Voters of Pa. v.

Commonwealth, 178 A.3d 737, 823 (Pa. 2018) (“LWV II”)). Chief Justice Baer

then detailed the reasons why the Court selected the Carter Plan as being “superior

or comparable” to all of the plans submitted based on a review of the criteria

discussed in LWV II, Pennsylvania’s Free and Equal Elections Clause, the

Pennsylvania Constitution Article I, Section 5, and the Voting Rights Act, 52

U.S.C. § 10301. Id. at *2. Justices Donohue, Dougherty, and Wecht joined the

majority opinion and filed concurring opinions. Justices Todd, Mundy, and

Brobson filed dissenting opinions. Id. at *19–49.

C. Federal Court Litigation

1. Procedural History

This federal action was initiated via complaint on February 11, 2022. (Doc.

1.) Plaintiffs also filed a notice requesting that a three-judge district court be

convened. (Doc. 3.) On February 20, 2022, Plaintiffs filed a first amended

complaint. (Doc. 7.) The same day, Plaintiffs also filed an emergency motion for

temporary restraining order (“TRO”) and preliminary injunction. (Doc. 8.)

On February 21, 2022, the Court issued a scheduling order requiring

expedited briefing on Plaintiffs’ request for a three-judge district court and

scheduling an on-the-record telephone conference for February 25, 2022 to discuss

procedural and scheduling considerations regarding Plaintiffs’ motion for TRO.

(Doc. 9.)

On February 22, 2022, the Carter Group moved to intervene in this action.4

(Docs. 14, 15.) The Court subsequently ordered expedited briefing on the motion

to intervene and granted the motion on February 28, 2022. (Docs. 21, 38, 41, 51.)

A few days earlier, on February 23, 2022, Plaintiffs filed a renewed

emergency motion for TRO along with a brief in support. (Docs. 30, 31.) In it,

Plaintiffs stated that if the Court did not grant the requested relief by midnight the

4 The Intervenor-Defendants are Carol Ann Carter, Monica Parrilla, Rebecca Poyourow,

Williams Tung, Roseanne Milazzo, Burt Sigal, Susan Cassanelli, Lee Cassanelli, Lynn

Wachman, Michael Guttman, Maya Fonkeu, Brady Hill, Mary Ellen Balchunis, Tom Dewall,

and Stephanie McNulty.

same day, they would “seek emergency relief from [U.S. Supreme Court] Justice

[Samuel] Alito.” (Doc. 30, p. 2.) The Court did not rule on the renewed

emergency motion for TRO on the schedule requested by Plaintiffs. The Court

proceeded with the on-the-record telephone conference on February 25, 2022, as

scheduled by the Court’s earlier order. During the call, Plaintiffs requested that the

Court deny the motion for TRO so they could file an application for emergency

relief with Justice Alito. By order entered following the call, the Court denied the

TRO motion, set a briefing schedule on jurisdictional motions to dismiss and the

remaining preliminary injunction motion, and scheduled a hearing on the motion

for preliminary injunction on March 11, 2022, at 1:00 p.m., “subject to change

depending on whether a three-judge district court is convened and the availability

of the two other presiding judges.” (Doc. 43.)

On February 28, 2022, Plaintiffs filed an emergency application for writ of

injunction with Justice Alito, and also filed a notice of interlocutory appeal in this

Court. (Doc. 50.) By order entered on March 7, 2022, the Supreme Court denied

the application for writ of injunction, stating that the parties may exercise their

right to appeal from an order resolving a request for interlocutory injunctive relief

since this case had been referred to a three-judge district court. (Doc. 73.)

Prior to the Court’s deadline for filing jurisdictional motions to dismiss,

Plaintiffs moved to file a second amended complaint on February 27, 2022. (Doc.

48.) Shortly thereafter, the Court granted Plaintiffs’ motion for leave to file a

second amended complaint and ordered that the briefing schedule would remain

unchanged. (Doc. 55.)

Defendants and Intervenor-Defendants filed motions to dismiss and briefs in

support on March 1, 2022. (Docs. 58–61.) Following review of these filings and

noting that Defendants were not challenging one of the claims (Claim Three, i.e.,

the Wesberry claim) on jurisdictional grounds, the Court promptly requested that

Chief Judge Michael Chagares of the United States Court of Appeals for the Third

Circuit convene a three-judge district court under 28 U.S.C. § 2284. (Doc. 62.) A

three-judge district court was convened on March 3, 2022.5 (Doc. 63.) Thereafter,

Plaintiffs timely opposed the motions to dismiss, and Defendants filed reply briefs.

(Docs. 67, 69, 70.) On March 7, 2022, the Court adjourned the March 11 hearing

on the motion for preliminary injunction pending review of the briefs by the three-

judge district court. (Doc. 72.)

On March 10, 2022, Plaintiffs filed a notice withdrawing their emergency

motion for injunctive relief. (Docs. 10, 30, 82.) Plaintiffs explained that they

decided to withdraw the request for emergency injunctive relief prior to the 2022

primary election because the Supreme Court denied emergency relief with respect

5 Prior to the March 3, 2022 order, this action was before a single judge, Judge Jennifer P.

Wilson.

to the May 17, 2022 primary election in North Carolina in Moore v. Harper, No.

21A455 (Mar. 7, 2022), which is the same date as Pennsylvania’s primary election.

(Id. at 1-2.) Plaintiffs observed that, given the outcome in Moore, the Purcell

doctrine would likely preclude injunctive relief with respect to the 2022

Pennsylvania primary election. (Id.) However, Plaintiffs indicated that they intend

to file a new motion for preliminary injunction that will seek to enjoin Defendants

from “using or implementing the Carter Plan after the 2022 elections have

occurred.” (Id. at 2.)

We now address the motions to dismiss Claims One and Two based on a

lack of standing.

2. Factual Allegations

Plaintiffs’ second amended complaint contains three claims, a variety of

requests for relief, and sets forth facts related to standing.6 (Doc. 49, ¶¶ 52–74.)

Claim One asserts that the Commonwealth Defendants’ implementation of the

Carter Plan violates the Elections Clause of the United States Constitution and 2

U.S.C. § 2a(c)(5). (Id. ¶¶ 59–63.) Claim Two alleges that the Commonwealth

Defendants’ departure from the general primary calendar violates the Elections

6 The facts pleaded that are related to standing will be set forth in detail in the relevant sections

infra.

Clause. (Id. ¶¶ 64–67.) Claim Three asserts that the Carter Plan violates the equal-

population rule of Wesberry v. Sanders, 376 U.S. 1 (1964). (Id. ¶¶ 68–74.)

In their demand for relief, Plaintiffs request, among other things, that the

Court: (1) declare that the selection of the Carter Plan violates the Elections

Clause, 2 U.S.C. § 2a(c)(5), and the equal-population rule of Wesberry v. Sanders;

(2) “declare that the Elections Clause compels the defendants to adhere to the

General Primary Calendar when conducting elections for the United States House

and Senate;” (3) “declare that the Elections Clause and 2 U.S.C. § 2a(c)(5) require

the defendants to hold at-large elections for the Pennsylvania congressional

delegation, unless and until the General Assembly enacts a new congressional

map;” and (4) enter a preliminary and permanent injunction to restrain the

implementation or enforcement of the Carter Plan, restrain departure from the

General Primary Calendar, and compel at-large elections for the Pennsylvania

congressional delegation, unless and until the General Assembly enacts a new

congressional map.7 (Id. ¶ 75.)

7 In their notice withdrawing their request for a preliminary injunction, Plaintiffs notified the

Court that they do not seek to enjoin the 2022 primary or general elections. (Doc. 82).

STANDARD OF REVIEW

Defendants seek dismissal of the complaint pursuant to Federal Rule of Civil

Procedure 12(b)(1) for lack of subject-matter jurisdiction.8 Rule 12(b)(1)

challenges may be “facial” or “factual.” See Mortensen v. First Fed. Sav. & Loan

Ass’n, 549 F.2d 884, 891 (3d Cir. 1977). A facial attack challenges whether

jurisdiction has been properly pleaded, and requires a court to “only consider the

allegations of the complaint and documents referenced therein and attached

thereto, in the light most favorable to the plaintiff.” Gould Elecs., Inc. v. United

States, 220 F.3d 169, 176 (3d Cir. 2000) (citing Mortensen, 549 F.2d at 891).

Conversely, when a defendant sets forth a factual attack on subject-matter

jurisdiction, “the [c]ourt is free to weigh the evidence and satisfy itself whether it

has power to hear the case. . . . ‘[N]o presumptive truthfulness attaches to

plaintiff’s allegations, and the existence of disputed material facts will not preclude

the trial court from evaluating for itself the merits of jurisdictional claims.’”

Carpet Grp. Int’l v. Oriental Rug Importers Ass’n, Inc., 227 F.3d 62, 69 (3d Cir.

2000) (quoting Mortensen, 549 F.2d at 891), overruled on other grounds, Animal

Sci. Prods., Inc. v. China Minmetals, 654 F.3d 462 (3d Cir. 2011).

8 The Intervenor-Defendants also move to dismiss on Rule 12(b)(6) grounds. However, for

purposes of this decision, we only address the jurisdictional challenge under Rule 12(b)(1).

In this case, Defendants assert that Plaintiffs have failed to sufficiently

allege Article III standing. We are thus presented with a facial attack on subject-

matter jurisdiction and will “only consider the allegations of the complaint and

documents referenced therein and attached thereto, in the light most favorable to

the plaintiff.” Gould Elecs., Inc., 220 F.3d at 176 (citing Mortensen, 549 F.2d at

891).

DISCUSSION

Defendants argue that Plaintiffs lack Article III standing to assert Claims

One and Two. In Claim One, Plaintiffs ask us to declare as unconstitutional the

Carter Plan and to enjoin the Commonwealth Defendants from enforcing it, and

order Defendants to “hold at-large elections for the Pennsylvania congressional

delegation, unless and until the General Assembly enacts a new congressional

map.” (Doc. 49, ¶ 62.) In Claim Two, Plaintiffs ask us to declare that the

Commonwealth Defendants “must adhere to the General Primary Calendar” when

conducting the congressional elections, and to enjoin them “from departing from

that legislatively enacted primary calendar unless and until that calendar is

modified or altered by the Pennsylvania legislature.” (Id. ¶ 66.) Plaintiffs contend

that the Commonwealth Defendants’ implementation of the Carter Plan and the

refusal to hold at-large elections for Pennsylvania’s congressional delegation

injures them as Pennsylvania registered voters, congressional candidates (Bognet

and Bashir), and a member of a county board of elections (Hall). (Id. ¶¶ 52–53,

55–58.)

For the reasons discussed below, Plaintiffs have failed to establish that they

have standing to pursue these claims because they have not shown that they have

suffered an injury-in-fact as a result of the Commonwealth Defendants’ actions.

Because we conclude that Plaintiffs lack standing to pursue Claims One and Two,

we in turn lack subject-matter jurisdiction, which renders us unable to pass on the

merits of these claims. We therefore have no occasion at this juncture to consider

the Pennsylvania Supreme Court’s decision adopting the Carter Map. Our decision

with respect to Plaintiffs’ lack of standing to bring Claims One and Two should not

be read as expressing any view with respect to the Pennsylvania Supreme Court’s

decision in the underlying state court proceedings.

A. Article III Standing

Under Article III of the United States Constitution, federal courts are

constrained to resolve only “Cases” and “Controversies.” U.S. Const. art. III, § 2,

cl. 1. “No principle is more fundamental to the judiciary’s proper role in our

system of government than the constitutional limitation of federal-court

jurisdiction to actual cases or controversies.” Raines v. Byrd, 521 U.S. 811, 818

(1997) (quoting Simon v. E. Ky. Welfare Rts. Org., 426 U.S. 26, 37 (1976)).

Ensuring a plaintiff has Article III standing “‘serves to prevent the judicial process

from being used to usurp the powers of the political branches,’ and confines the

federal courts to a properly judicial role.” Spokeo, Inc. v. Robins, 578 U.S. 330,

338 (2016) (citations omitted).

Article III standing requires that the plaintiff, who bears the burden of

establishing these elements, prove: (1) an injury-in-fact; (2) that is fairly traceable

to the defendant’s conduct; and (3) that is likely to be redressed by a favorable

decision. Id. (citing Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–61 (1992)).

When standing is challenged at the pleading stage, “the plaintiff must ‘clearly

. . . allege facts demonstrating’ each element.” Id. (quoting Warth v. Seldin, 422

U.S. 490, 518 (1975)).

As to the first element, an injury-in-fact must be “‘an invasion of a legally

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

not conjectural or hypothetical.’” Id. (quoting Lujan, 504 U.S. at 560). A

particularized injury must “affect the plaintiff in a personal and individual way.”

Lujan, 504 U.S. at 560 n.1. Further, any threatened injury must be “certainly

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

1. Plaintiffs Lack Standing as Registered Voters

Plaintiffs assert that they have standing to bring Claims One and Two under

the Elections Clause and 2 U.S.C. § 2a(c)(5) as registered voters in Pennsylvania.9

(See Doc. 49, ¶ 52.) All Plaintiffs allege that they, as registered voters, are

“suffering injury in fact from the defendants’ implementation of the [purportedly]

unconstitutional Carter Plan and their refusal to hold at-large elections for the

state’s congressional delegation, as required by the Elections Clause and 2 U.S.C.

§ 2a(c)(5).” (Id.) To that end, Plaintiffs allege that they are “entitled” under 2

U.S.C. § 2a(c)(5) to cast ballots in all 17 representative races if the General

Assembly fails to enact a new congressional map, and that they are thus being

deprived of this entitlement by the Commonwealth Defendants’ failure to hold at-

large elections in contravention of the Elections Clause and 2 U.S.C. § 2a(c)(5).

(Id. ¶ 53.)

In their motions to dismiss, the Commonwealth Defendants and Intervenor-

Defendants argue that Lance v. Coffman, 549 U.S. 437 (2007), precludes Plaintiffs’

ability to establish standing based on their status as registered voters in

9 Gartland additionally alleges that he is injured because the Carter Plan violates the “equal-

population rule”; because he resides in the Carter Plan’s 5th Congressional District, he claims his

vote will “carry less weight because the population of his district has been overweighted.” (Doc.

49, ¶ 54.). Gartland’s standing allegations relate only to Plaintiffs’ third claim, which is not at

issue here. See, e.g., TransUnion LLC v. Ramirez, 141 S. Ct. 2190, 2210 (2021) (“[A] plaintiff

must demonstrate standing separately for each form of relief sought.” (quotation marks

omitted)); Lewis v. Carey, 518 U.S. 343, 358 n.6 (1996) (“[S]tanding is not dispensed in gross.”).

Pennsylvania. (Doc. 59, pp. 15–17; Doc. 61, pp. 15–18.) The Commonwealth

Defendants further argue that Plaintiffs cannot side-step Lance by citing 2 U.S.C.

§ 2a(c)(5) for three reasons: (1) Plaintiffs’ alleged injury is only traceable to the

Elections Clause; (2) Section 2a(c)(5) only offers “a last-resort remedy” when time

expires for developing a single-member district plan, rather than vesting any rights;

and (3) even if an injury could be traced to Section 2a(c)(5), it, too, would be a

generalized grievance affecting every Pennsylvania voter. (Doc. 61, pp. 17–18.)

Plaintiffs, in response, argue that Lance is distinguishable because the

plaintiffs in that case failed to allege any injury under the Elections Clause

whereas, here, Plaintiffs allege that the Elections Clause violation is “depriving

them of their right to vote in 16 of 17 state congressional races.” (Doc. 67, pp. 7–

8.) They further submit that the denial of Plaintiffs’ ability to vote in all 17

congressional races is not a generalized grievance simply because it impacts every

voter in the Commonwealth of Pennsylvania. (Id. at 8.) Rather, they say, because

Plaintiffs’ injury is not abstract, it does not fall into the category of a generalized

grievance. (Id. at 8–9.)

A generalized grievance, in contrast to a particularized injury, is “shared in

substantially equal measure by all or a large class of citizens.” Warth, 422 U.S. at

499. The United States Supreme Court held in Lance that Colorado voters lacked

Article III standing to bring an Elections Clause claim. 549 U.S. at 442. There,

following the Colorado legislature’s failure to draw a congressional district map to

implement the 2000 census results, the state court adopted a map for the upcoming

election. Id. at 437–38. In 2003, the legislature agreed on a new map, but the

Colorado Supreme Court enjoined implementation of the new map because the

Colorado Constitution limited redistricting to once per census. Id. at 438. The

plaintiffs filed a federal action arguing that the Colorado Supreme Court’s

interpretation of the Colorado Constitution violated their rights under the Elections

Clause. Id. The Supreme Court reiterated its many decisions denying standing to

hear generalized grievances, and held:

The only injury plaintiffs allege is that the law—specifically the

Elections Clause—has not been followed. This injury is precisely the

kind of undifferentiated, generalized grievance about the conduct of

government that we have refused to countenance in the past. It is quite

different from the sorts of injuries alleged by plaintiffs in voting rights

cases where we have found standing. Because plaintiffs assert no

particularized stake in the litigation, we hold that they lack standing to

bring their Elections Clause claim.

Id. at 439–442 (citations omitted).

Lance is directly on point. Lance and this case involve private citizens

seeking to compel state officials to follow what those citizens perceive to be the

demands of the Elections Clause. Here, as in Lance, Plaintiffs have failed to

establish Article III standing because they have identified only an

“undifferentiated, generalized grievance” rather than a particularized and personal

injury-in-fact.

Bognet v. Secretary Commonwealth of Pennsylvania leads to the same

conclusion. 980 F.3d 336 (3d Cir. 2020), cert. granted, judgment vacated sub

nom. Bognet v. Degraffenreid, 141 S. Ct. 2508 (2021). There, the Court of

Appeals for the Third Circuit explained that “[f]ederal courts are not venues for

plaintiffs to assert a bare right ‘to have the Government act in accordance with

law.’” Id. at 348–49 (quoting Allen v. Wright, 468 U.S. 737, 754 (1984)). “When

the alleged injury is undifferentiated and common to all members of the public,

courts routinely dismiss such cases as ‘generalized grievances’ that cannot support

standing.” Id. at 349 (quoting United States v. Richardson, 418 U.S. 166, 173–75

(1974)). “Such is the case here insofar as Plaintiffs . . . theorize their harm as the

right to have government administered in compliance with the Elections Clause”

and 2 U.S.C. § 2a(c)(5). Id.

In an effort to avoid the impact of Lance, Plaintiffs point to several other

Supreme Court decisions for the general proposition that “[t]he right to vote freely

for the candidate of one’s choice is of the essence of a democratic society, and any

restrictions on that right strike at the heart of representative government.” (Doc.

67, pp. 7–9 (quoting Reynolds v. Sims, 377 U.S. 533, 555 (1964).) While Plaintiffs

accurately quote precedent broadly addressing the right to vote, the mere fact that

an individual has a right to vote does not confer standing to challenge any and all

voting laws and regulations. See Bognet, 980 F.3d at 358.

Plaintiffs also cite Gill v. Whitford, 138 S. Ct. 1916 (2018), to support their

contention that a deprivation of the right to vote is a concrete and particularized

injury. (Doc. 67, p. 7.) However, Plaintiffs’ reliance on Gill overlooks that the

Supreme Court concluded that the voters in Gill lacked standing to challenge a

Wisconsin districting plan as an unconstitutional partisan gerrymander. 138 S. Ct.

at 1923, 1931. Further, the Supreme Court stated that “voters who allege facts

showing disadvantage to themselves as individuals have standing to sue.” Id. at

1929 (quoting Baker v. Carr, 369 U.S. 186, 206 (1962)). Here, however, Plaintiffs

have not alleged any such disadvantage. Nothing is preventing them from voting,

and their votes are not otherwise disadvantaged relative to those of the entire

population of Pennsylvania.

Plaintiffs’ reliance on Iowa Voter Alliance v. Black Hawk County, 515 F.

Supp. 3d 980 (N.D. Iowa 2021), and Carney v. Adams, 141 S. Ct. 493 (2020), is

also misplaced because the plaintiffs in those cases did not establish an injury-in-

fact to confer Article III standing. See Iowa Voter Alliance, 515 F. Supp. 3d at 992

(holding that plaintiffs lacked standing because they failed to show “a concrete and

particularized injury beyond the generalized grievance arising from a violation of

law”); Carney, 141 S. Ct. at 499–503 (concluding that plaintiff could not establish

an injury-in-fact).

Next, Plaintiffs attempt to distinguish Lance by saying that the

Commonwealth Defendants are failing to comply not only with the Elections

Clause but also with 2 U.S.C. § 2a(c)(5). (Doc. 67, p. 8.) Other than making this

observation, Plaintiffs have not explained why they have standing merely by virtue

of seeking to have Pennsylvania act in conformity with both a statute and the

Constitution as opposed to just the Constitution. Their grievance remains

generalized. See Lance, 549 U.S. at 439 (“[A] plaintiff raising only a generally

available grievance about government—claiming only harm to his and every

citizen’s interest in proper application of the Constitution and laws, and seeking

relief that no more directly and tangibly benefits him than it does the public at

large—does not state an Article III case or controversy.”).

Second, Plaintiffs contend that they, unlike the plaintiffs in Lance, have

explained how they will be injured—that is, by being deprived of the “right” to

vote in all 17 Pennsylvania races.10 (Doc. 67, p. 8.) Once again, aside from

alleging “how” they are being injured by the government’s purported failure to act

in conformity with a statute and the Constitution, Plaintiffs have not explained why

that transforms their generalized grievance into a concrete and particularized one.

In any event, such a theory is inconsistent with Supreme Court precedent. In

10 Whether 2 U.S.C. § 2a(c)(5) creates such a right is not something we need to decide here. See

Grammar v. John J. Kane Reg’l Cntrs.-Glen Hazel, 570 F.3d 520, 526 (3d Cir. 2009).

DaimlerChrysler Corp v. Cuno, for example, the plaintiffs alleged that “the

franchise tax credit ‘deplete[d] the funds of the State of Ohio to which the

Plaintiffs contribute[d] through their tax payments’ and thus ‘diminish[ed] the total

funds available for lawful uses and impos[ed] disproportionate burdens on’ them.”

547 U.S. 332, 342–43 (2006) (alteration in original). In other words, the plaintiffs

explained “how” they were “injured” (or the mechanism that could cause injury),

but the Supreme Court nonetheless concluded they lacked standing because they

were not injured in a way different from all other taxpayers, and thus they had a

generalized injury. Id. at 344, 346.

Plaintiffs’ alleged injury—the right to vote in an at-large election versus a

specific-district election, if such a right exists—belongs to every voter in

Pennsylvania. This is not an injury that affects Plaintiffs “in a concrete and

personalized way.” See Lujan, 504 U.S. at 560 n.1. Their purported injuries are

shared by all Pennsylvania voters; such an “undifferentiated” injury does not

support standing as it is equally shared by “every citizen” and relief “would . . . no

more directly benefit[] [Plaintiffs] than the public at large.” Bognet, 980 F.3d at

349 (citing Lance, 549 U.S. at 442); see also Richardson, 418 U.S. at 176–77

(“This is surely . . . a generalized grievance . . . since the impact on [plaintiff] is

plainly undifferentiated and ‘common to all members of the public.’” (citations

omitted)).

Try as they might, the registered voter Plaintiffs cannot avoid the fact that

their Elections Clause claims amount to a “generalized grievance.” We will not

disregard the precedent established by Lance, and Plaintiffs have not persuaded us

that Lance does not apply to their Elections Clause and 2 U.S.C. § 2a(c)(5) claims.

Accordingly, Plaintiffs, as registered voters in Pennsylvania, fail to establish an

injury-in-fact and thus lack Article III standing to bring Claims One and Two.

2. Bognet and Bashir Lack Standing as Congressional

Candidates

Bognet and Bashir also assert that they have standing as congressional

candidates because they are injured in several ways. (Doc. 49, ¶¶ 55–56.) First,

Bashir avers that he is injured because he is now forced “to run in a congressional

district with a massive Democratic voter-registration advantage, rather than in a

statewide at-large election where the number of Democratic and Republican voters

are more evenly split.” (Id. ¶ 55.) Together, Bognet and Bashir submit that they

are injured by the uncertainty about how they should campaign because “the

defendants’ implementation of a patently unconstitutional congressional map

creates a substantial risk that a federal court or the Supreme Court of the United

States will declare the map unlawful after they have spent time and resources

campaigning in the court-drawn congressional districts.” (Id. ¶ 56.) Finally,

Bognet and Bashir both contend that they are injured by the “cloud of legal

uncertainty over the court-drawn map . . . making it difficult . . . to raise money

from donors to finance their campaigns.”11 (Id.)

In their motions to dismiss, Defendants argue that Bognet and Bashir have

not alleged a sufficiently specific injury; rather, the injury is “based on their own

subjective anxiety that a federal court might someday invalidate the map adopted

by the Supreme Court of Pennsylvania”—which is a self-generated anxiety caused

by filing the instant lawsuit. (Doc. 61, p. 18; Doc. 59, pp. 17–18; Doc. 69, pp. 14–

18; Doc. 70, pp. 13–15.) Second, Bognet’s and Bashir’s challenges in fundraising

depend on potential decisions made by third parties, but federal courts cannot base

decisions on the independent actions of third parties. (Doc. 59, pp. 18–19; Doc.

61, pp. 19–20; Doc. 69, pp. 16–17; Doc. 70, p. 14.) Lastly, Defendants assert that

Bashir’s alleged injury of running in a largely Democratic district is unfounded

since he, as a candidate, has no legal interest in the composition of his district.

(Doc. 59, pp. 19–20; Doc. 61, pp. 20–22; Doc. 69, pp. 17–18; Doc. 70, p. 15.)

Bognet and Bashir, however, submit that they have a “certainly impending”

injury under Clapper v. Amnesty International USA, 568 U.S. 398. (Doc. 67, p.

11 Plaintiffs’ second and third alleged injuries arise from their allegation that there is uncertainty

about how the 2022 primary election will be conducted due to this federal litigation. However,

Plaintiffs have withdrawn their emergency motion for injunctive relief with respect to the 2022

elections in favor of pursuing relief for subsequent elections. (Doc. 82, p. 2.) As a practical

matter, then, it appears that the alleged uncertainty regarding the 2022 election has been

eliminated. Nonetheless, the Court will address whether these alleged injuries are sufficient to

confer standing.

9.) While Bognet and Bashir acknowledge that the outcome of this litigation may

not qualify as “certainly impending,” they assert that the “present-day uncertainty”

regarding where they should campaign is an immediate injury that they are

presently suffering. (Id. at 9–10.) Next, to support their claim of a fundraising

injury, Bognet and Bashir argue that the “predicable effect” of Defendants’ actions

is a factual question for later decision, not an issue to resolve at the motion to

dismiss stage. (Id. at 10.) And, Bashir asserts that his injury of running in an

overwhelmingly Democratic district, rather than in a statewide election, has long

been recognized by courts for standing purposes. (Id. at 11–12.)

Once again, Bognet’s and Bashir’s allegations fail to establish an injury-in-

fact sufficient for purposes of Article III standing. As the Supreme Court

explained, a “core principle of republican government” is “that the voters should

choose their representatives, not the other way around.” Ariz. State Legis. v. Ariz.

Indep. Redistricting Comm’n, 576 U.S. 787, 824 (2015) (citation omitted).

Consequently, Bashir’s assertion that he is harmed by running in his Democratic-

leaning district rather than in an at-large election is not an injury-in-fact. A

legislator, or potential legislator, has “no legally cognizable interest in the

composition of the district he or she represents.” Corman v. Torres, 287 F. Supp.

3d 558, 569 (M.D. Pa. 2018). Further, an elected official “suffers no cognizable

injury, in a due process sense or otherwise, when the boundaries of his district are

adjusted by reapportionment. . . . While the voters in a representative’s district

have an interest in being represented, a representative has no like interest in

representing any particular constituency.” City of Phila. v. Klutznick, 503 F. Supp.

663, 672 (E.D. Pa. 1980).

Notwithstanding this precedent, Bashir asserts that “courts have long

permitted candidates for office to sue over redistricting decisions that adversely

affect their election prospects.” (Doc. 67, p. 11.) Plaintiffs cite only one case that

purportedly recognizes that sort of harm as sufficient to confer standing, League of

United Latin American Citizens v. Perry, 548 U.S. 399, 475 (2006) (Stevens, J.,

concurring). (Id.) Justice Stevens’s concurring opinion is not binding, however,

and the Supreme Court has not said that unfavorable changes in the voter

composition of a candidate’s electorate resulting from redistricting create an

injury-in-fact for standing purposes. See, e.g., Wittman v. Personhuballah, 578

U.S. 539, 545 (2016) (assuming but not deciding—because it made no difference

to the outcome—that Representatives had standing to challenge a redistricting plan

where they argued that “a portion of the[ir] ‘base electorate’ will necessarily be

replaced with ‘unfavorable Democratic voters,’ thereby reducing the likelihood of

the Representatives’ reelection”).

Courts in this Circuit have suggested, rather, that competitive harm is not

cognizable under Article III. Indeed, the Corman court explained that “[c]ase law

strongly suggests that a legislator has no legally cognizable interest in the

composition of the district he or she represents.” 287 F. Supp. 3d at 569; see

Klutznick, 503 F. Supp. at 672; see also Donald J. Trump for President, Inc. v.

Boockvar, 502 F. Supp. 3d 899, 915 (M.D. Pa.) (rejecting campaign’s “theory . . .

that it ha[d] ‘competitive standing’ based upon disparate state action leading to the

‘potential loss of an election’”), aff’d sub nom. Donald J. Trump for President, Inc.

v. Sec’y of Pa., 830 F. App’x 377 (3d Cir. 2020).

Plaintiffs argue that in Corman, the question of whether an interest is legally

cognizable wrongly conflated a merits question with a jurisdictional question.

(Doc. 67, p. 11 (citing Cottrell v. Alcon Lab’y, 874 F.3d 154, 164 (3d Cir. 2017);

In re Special Grand Jury 89-2, 450 F.3d 1159, 1172 (10th Cir. 2006).) As noted in

the cases Plaintiffs cite on this point, the Supreme Court uses the phrase “legally

protected interest” when discussing standing. See Cottrell, 874 F.3d at 163 (noting

that the Supreme Court used the term in Lujan and Spokeo, though infrequently in

cases in between); In re Special Grand Jury 89-2, 450 F.3d at 1172 (noting that the

Supreme Court used the term in Lujan). Thus, neither of the two cases Plaintiffs

cite, Cottrell v. Alcon Laboratories and In re Special Grand Jury 89-2, concluded

that whether a plaintiff has a “legally protected interest” is exclusively a merits

question. Furthermore, those two cases explained that the “legally protected

interest” aspect of standing should not be conflated with the merits of the lawsuit.

Cottrell, 874 F.3d at 164 (“[W]hether a plaintiff has alleged an invasion of a

‘legally protected interest’ does not hinge on whether the conduct alleged to violate

a statute does, as a matter of law, violate the statute.”); In re Special Grand Jury

89-2, 450 F.3d at 1172 (“The term legally protected interest has generated some

confusion because the Court has made clear that a plaintiff can have standing

despite losing on the merits—that is, even though the interest would not be

protected by the law in that case.” (emphasis in original)).

Corman certainly did not conflate the merits and jurisdictional analyses.

First, the language at issue is found in the portion of the decision discussing injury-

in-fact. Corman, 287 F. Supp. 3d at 568–70. Second, Corman cited another case

from within this Circuit, City of Philadelphia v. Klutznick, 503 F. Supp. at 672, in

support of its conclusion regarding “legally cognizable interest[s]” with respect to

the injury-in-fact prong of standing. In Klutznick, the court held that “[a]

legislative representative suffers no cognizable injury . . . when the boundaries of

his district are adjusted by reapportionment,” and “[t]o demonstrate that a person

has suffered an injury, a person must show that some interest has been infringed.”

503 F. Supp. at 672. Together, then, the location of the language within Corman’s

discussion of injury-in-fact for purposes of standing and its citation to Klutznick

make clear that when Corman said “legally cognizable interest,” it meant the

standing variant noted in Lujan and Spokeo. Plaintiffs’ citations, therefore, present

no obstacle to following Corman and Klutznick.

Next, the supposed uncertainty surrounding where Bognet and Bashir should

campaign because a federal court may declare the map chosen by the Pennsylvania

Supreme Court unconstitutional is not an injury-in-fact that confers standing. An

injury-in-fact must be “actual or imminent.” To qualify as “imminent,” a

“threatened injury must be certainly impending,” whereas “[a]llegations of

possible future injury” are insufficient. Clapper, 568 U.S. at 409 (quoting

Whitmore v. Arkansas, 495 U.S. 149, 158 (1990)). Litigants “cannot manufacture

standing merely by inflicting harm on themselves based on their fears of

hypothetical future harm that is not certainly impending.” Id. at 416 (citing

Pennsylvania v. New Jersey, 426 U.S. 660 (1976); Nat’l Fam. Plan. & Reprod.

Health Ass’n, Inc., 468 F.3d 826 (D.C. Cir. 2006)). Furthermore, the Supreme

Court has explained that “[i]t is just not possible for a litigant to prove in advance

that the judicial system will lead to any particular result in his case.” Id. at 413–14

(quoting Whitmore, 495 U.S. at 159–60). In fact, Bognet and Bashir effectively

concede that the outcome of this litigation does not qualify as “certainly

impending” under Clapper, since they cannot prove that this case will lead to a

particular result. See id. (quoting Whitmore, 495 U.S. at 159–60).

Plaintiffs’ alleged “present-day uncertainty” about whether they should

campaign in one district or another is of their own making by filing this lawsuit.

There currently exists a congressional district map that establishes the districts in

which Bognet and Bashir may choose to run for office. To find that Bashir and

Bognet have established an injury based on filing this lawsuit would be stretching

standing “beyond the breaking point” because “the acts necessary to make the

injury happen are at least partly within [Plaintiffs’] own control.” Lujan, 504 U.S.

at 564 n.2; see also Clapper, 568 U.S. at 416.

Bognet and Bashir argue that their injury is not self-inflicted because the

other Plaintiffs would have brought this suit and created the same uncertainty.

(Doc. 667, pp. 10–11.) There are several problems with accepting this argument.

First, Plaintiffs cite no authority to support this asserted basis for standing, which is

based on a hypothetical situation. Second, Plaintiffs’ argument appears to concede

that their alleged injuries are caused by the pendency of this lawsuit rather than the

actions of Defendants. Third, the Intervenor-Defendants make the appropriate

point that “[b]y that logic, a group of plaintiffs could file a lawsuit to generate

Article III standing simply by pointing to one another to pretend such a lawsuit

was inevitable.” (Doc. 69, p. 15.) Courts cannot allow plaintiffs to “manufacture

standing,” which is the inevitable result of this argument. See Clapper, 568 U.S. at

422. Fourth, we have already determined that Plaintiffs, as registered

Pennsylvania voters, lack Article III standing. As a result, any separate lawsuit by

voters would not survive dismissal. Bognet’s and Bashir’s choice to bring this

litigation therefore cannot support a finding of an injury-in-fact.

As for the challenge Bognet and Bashir allegedly face in raising campaign

funds, that too is not an injury-in-fact. As an initial matter, it is unclear from the

second amended complaint and accompanying affidavits whether Plaintiffs are

alleging that they expect to struggle to find campaign donors or whether they are

currently struggling to raise funds. However, Plaintiffs assert in their brief in

opposition to the motions to dismiss “that the defendants’ actions will hinder their

fundraising efforts.” (Doc. 67, p. 10 (emphasis added).) Regardless of whether

this purported injury is alleged to be expected or current, it suffers from many of

the same defects as their purported campaigning uncertainty injury. For example,

Plaintiffs caused the donors’ uncertainty by filing this lawsuit and seeking to have

this Court mandate at-large voting. Cf. Vita Nuova, Inc. v. Azar, 458 F. Supp. 3d

546, 556–57 (N.D. Tex. 2020) (holding that the plaintiff “may not manufacture

standing through the affidavits of potential donors withholding funds when it

cannot show a certainly impending future injury”). And, Plaintiffs cite no case in

which the uncertainty of third parties—an uncertainty produced by Plaintiffs’ own

actions—was sufficient for Article III standing purposes.

Plaintiffs nevertheless assert that we must accept as true their allegations that

the present legal uncertainty “will hinder their fundraising efforts,” and that

standing can be established in any event by the “predictable effect of Government

action on the decision of third parties.” (Doc. 67, p. 10 (quoting Dep’t of

Commerce v. New York, 139 S. Ct. 2551, 2566 (2019).) The case they cite, though,

Department of Commence v. New York, was decided after a trial and it did not

discuss what needed to be pled to overcome the ordinary rule that courts should be

“reluctant to endorse standing theories that require guesswork as to how

independent decisionmakers will exercise their judgment.” Clapper, 568 U.S. at

413. Indeed, there must be some factual basis alleged for a prediction of

independent decisionmaker harm under Rule 12(b), and Plaintiffs have not

sufficiently alleged that fundraising difficulties are a “predictable” result of

Defendants’ actions. The conclusory allegation that the present legal uncertainty

causes injury by “making it difficult . . . to raise money” (Doc. 49, ¶ 56; see also

Doc. 49–12, ¶ 6) is not sufficient. If it were, then the “independent decisionmaker”

limitation would be essentially nonexistent. See Clapper, 568 U.S. at 413.

Plaintiffs’ assertion that “[m]any donors want to know the particulars of a race

before committing financial resources to it,” is also insufficient. (Doc. 49-12, ¶ 7.)

That general statement sheds little to no light on what donors’ responses would be

to the situation at hand. And, again, the limits on Article III standing would be

undermined were such an allegation found to be sufficient.

Ultimately, Bognet and Bashir fail to identify any cognizable injury-in-fact

they have suffered under any of their theories, and so they have not established that

they have standing in their capacities as congressional candidates.

3. Hall Lacks Standing as a Member of the Susquehanna County

Board of Elections

Separately, Hall asserts that he has suffered three injuries in his capacity as a

member of the Susquehanna County Board of Elections. (Doc. 49, ¶¶ 57–58.)

Specifically, he asserts that he is injured first because he will be forced to “conduct

an election under an unconstitutional map,” second because he will have to depart

from the General Primary Calendar, “in contravention of [his] oath of office” (Id. ¶

57), and third because implementation of the “revised” General Primary Calendar

shortens by several days his timeframe for preparing and mailing overseas military

absentee ballots. (Id. ¶ 58.)

The Intervenor-Defendants submit that Hall lacks “oath of office” standing

for many of the same reasons that he lacks voter standing and Bognet and Bashir

lack candidate standing: Hall alleges only generalized grievances, and there is only

uncertainty about how to proceed with the election now because of the lawsuit

which he and his fellow plaintiffs have initiated. (Doc. 59, p. 20.) The

Commonwealth Defendants set forth essentially the same arguments and add that

Hall’s “theory of standing would allow any official charged with implementing any

statute or rule to challenge it on any ground [which] has been rejected by many

courts.” (Doc. 61, pp. 22–23.) They further assert that the likelihood that “a single

member of a county board of elections could have standing” is slim since “any

potential burden would accrue to the board in an institutional capacity rather than

to its individual members.” (Id. at 23.)

Hall argues that the Supreme Court has endorsed his theory of standing in

Board of Education of Central School District No. 1 v. Allen, 392 U.S. 236 (1968).

(Doc. 67, pp. 12–13.) To that end, Hall submits that Defendants’ “actions are not

only forcing him to violate the law but also compressing his window of time for

preparing and mailing overseas military ballots.” (Id. at 13.)

In Allen, the Supreme Court considered whether a law requiring school

districts to loan textbooks to students in public, private, and parochial schools was

constitutional. 392 U.S. at 238. The Court stated:

Appellants have taken an oath to support the United States Constitution.

Believing § 701 to be unconstitutional, they are in the position of having

to choose between violating their oath and taking a step—refusal to

comply with § 701—that would be likely to bring their expulsion from

office and also a reduction in state funds for their school districts. There

can be no doubt that appellants thus have a ‘personal stake in the

outcome’ of this litigation.

Id. at 241 n.5; but see Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 544

n.7 (1986) (citing Allen but finding no standing). Although the Court found that

the choice confronting the plaintiffs in Allen between violating an oath of office

and refusing to violate the oath at the risk of expulsion from office and a harm to

the school district was sufficient to confer standing, Allen is not controlling here

for two reasons. First, Allen has limited precedential significance, and second,

Allen is distinguishable in any event.

On the first point, numerous circuit court decisions have distinguished Allen

and expressed the view that its holding with respect to standing is either very

limited or implicitly overruled. See, e.g., Baca v. Colo. Dep’t of State, 935 F.3d

887, 916 (10th Cir. 2019) (noting “subsequent decisions from the Supreme Court

have limited [Allen’s] reach,” citing to generalized grievance cases, and finding no

standing even assuming Allen is still good law), rev’d on other grounds, 140 S. Ct.

2316 (2020); Crane v. Johnson, 783 F.3d 244, 253 (5th Cir. 2015) (not expressly

citing Allen, but noting that a “violation of one’s oath alone is an insufficient injury

to support standing”); Drake v. Obama, 664 F.3d 774, 780 (9th Cir. 2011)

(explaining that Allen’s footnote is not binding, and that “oath taker’s claims are,

under contemporary jurisprudence, ‘abstract constitutional grievances’ insufficient

to meet the requirements of Article III”); City of Hugo v. Nichols, 656 F.3d 1251,

1260 (10th Cir. 2011) (distinguishing Allen on the ground that “standing was based

on the individual board members’ personal stake in losing their jobs”); Donelon v.

La. Div. of Admin. L. ex rel. Wise, 522 F.3d 564, 567 n.5 (5th Cir. 2008) (noting a

prior case had “explained that later standing decisions limited Allen,”

distinguishing Allen, and citing to Wright & Miller for the proposition that Allen’s

holding had been undermined); Bd. of Educ. of Mt. Sinai Union Free Sch. Dist. v.

New York State Tchrs. Ret. Sys., 60 F.3d 106, 112 (2d Cir. 1995) (distinguishing

Allen on the grounds that the purported harms to plaintiffs would result “from

compliance with [the relevant law], rather than from a refusal to comply,” and

because plaintiffs’ additional harms were too speculative). As is implicit in these

decisions, allowing standing on a violation-of-oath theory would greatly expand

standing. It would, as the Commonwealth Defendants point out, permit “any

official charged with implementing any statute or rule to challenge it on any

ground.” (Doc. 61, p. 22.) No standing case of recent vintage embraces such an

expansive view of standing.

In addition, this case is easily distinguishable from Allen. In this case,

unlike in Allen, Hall has not alleged that he will lose his position or that there

would be some adverse impact on Susquehanna County or its Board of Elections—

even assuming he could represent the County’s or Board’s interests.

Plaintiffs respond that Hall has alleged more than just a violation of his oath;

he has also alleged that he is forced to operate under a compressed timeline to

fulfill his duties. (Doc. 67, p. 13.) Hall makes this point but provides no authority

for the proposition that the need to work faster is a sufficient injury to confer

Article III standing. Supreme Court precedent suggests it is not. When

determining whether a harm is “concrete,” “courts should assess whether the

alleged injury to the plaintiff has a ‘close relationship’ to a harm ‘traditionally’

recognized as providing a basis for a lawsuit in American courts.” TransUnion

LLC, 141 S. Ct. at 2204. Hall does not identify a harm traditionally recognized as

providing a basis for a lawsuit that is like his “compressed timeline” harm. That is

likely because the compressed timeline harm does not fit into any of the

preexisting concrete injury categories the Supreme Court has identified. For

example, Hall does not allege he will suffer “physical,” “monetary,” or

“reputational” harm, or that his “private information” will be disclosed, or his

“seclusion” intruded upon. Id. (collecting cases). He also does not allege that his

compressed timeline harm violates the Constitution. Id. Conversely, Intervenor-

Defendants identify cases that suggest such an injury is not cognizable. See

Corman, 287 F. Supp. 3d at 562 (“[F]rustration, even frustration emanating from

arduous time constraints . . . does not accord the Plaintiffs a right to relief.”); see

also Crane, 783 F.3d at 253–54 (rejecting contention that the burden of complying

with DACA created standing and noting that it had “not found[] any case where a

plaintiff has had standing . . . because [a policy] required [] employees to change

their practices”). In addition, as a practical matter, if we granted the relief

requested and ordered an at-large election, Hall would have even less time to

prepare and mail overseas ballots.

In sum, the absence of caselaw or a “close historical or common-law

analogue” supporting the existence of Hall’s injury, along with caselaw suggesting

a contrary result, leads us to conclude that Hall’s alleged harm is not a cognizable

injury for purposes of standing. TransUnion LLC, 141 S. Ct. at 2204.

Accordingly, because an oath violation is insufficient without more, and because

Hall alleges no other cognizable injury, he lacks an injury sufficient for Article III

standing.

4. Causation and redressability

Because Plaintiffs have not alleged an injury-in-fact sufficient for Article III

standing, we need not address the final two elements of Article III standing:

causation and redressability.

CONCLUSION

For the reasons stated herein, we conclude that Plaintiffs lack standing to

bring Claims One and Two. As a result, we will grant the motions to dismiss,

Docs. 58 & 60, and we will dismiss Claims One and Two of the second amended

complaint. An order shall issue.