Arizona Alliance for Retired Americans v. Kristin K. Mayes

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ARIZONA ALLIANCE FOR No. 22-16490

RETIRED AMERICANS; VOTO

LATINO; PRIORITIES USA, D.C. No.

2:22-cv-01374-

Plaintiffs-Appellees, GMS

v.

OPINION

KRISTIN K. MAYES, in his official

capacity as Attorney General for the

State of Arizona,

Defendant-Appellant,

YUMA COUNTY REPUBLICAN

COMMITTEE,

Intervenor-Defendant-

Appellant,

and

KATIE HOBBS, in her official

capacity as Secretary of State for the

State of Arizona; LARRY NOBLE,

Nominal Defendant, in his official

capacity as Apache County Recorder;

DAVID STEVENS, Nominal

2 ARIZONA ALLIANCE FOR RETIRED AMERICANS V. MAYES

Defendant, in his official capacity as

Cochise County Recorder, previously

named as David Stephens; PATTY

HANSEN, Nominal Defendant, in her

official capacity as Coconino County

Recorder; SADIE JO BINGHAM,

Nominal Defendant, in her official

capacity as Gila County Recorder;

WENDY JOHN, Nominal Defendant,

in her official capacity as Graham

County Recorder; SHARIE

MILHEIRO, Nominal Defendant, in

her official capacity as Greenlee

County Recorder; RICHARD

GARCIA, Nominal Defendant, in his

official capacity as La Paz County

Recorder; STEPHEN RICHER,

Nominal Defendant, in his official

capacity as Maricopa County

Recorder; KRISTI BLAIR, Nominal

Defendant, in her official capacity as

Mohave County Recorder; MICHAEL

SAMPLE, Nominal Defendant, in his

official capacity as Navajo County

Recorder; GABRIELLA CAZARES-

KELLY, Nominal Defendant, in her

official capacity as Pima County

Recorder; DANA LEWIS, Nominal

Defendant, in her official capacity as

Pinal County Recorder; SUZANNE

SAINZ, Nominal Defendant, in her

official capacity as Santa Cruz County

Recorder; MICHELLE BURCHILL,

ARIZONA ALLIANCE FOR RETIRED AMERICANS V. MAYES 3

Nominal Defendant, in her official

capacity as Yavapai County Recorder;

RICHARD COLWELL, Nominal

Defendant, in his official capacity as

Yuma County Recorder,

Defendants.

Appeal from the United States District Court

for the District of Arizona

G. Murray Snow, Chief District Judge, Presiding

Argued and Submitted May 16, 2023

Phoenix, Arizona

Filed September 20, 2024

Before: Jacqueline H. Nguyen, Daniel P. Collins, and

Kenneth K. Lee, Circuit Judges.

Opinion by Judge Lee;

Concurrence by Judge Lee;

Partial Dissent by Judge Nguyen

4 ARIZONA ALLIANCE FOR RETIRED AMERICANS V. MAYES

SUMMARY*

Elections / Standing

The panel vacated the district court’s preliminary

injunction enjoining two Arizona election law amendments

aimed at curtailing the risk of unlawful voting: (1) a

provision that allows the cancellation of a voter’s

registration if a county receives confirmation from another

county that the voter has moved and is registered in that new

county (“Cancellation Provision”); and (2) a provision that

makes it a felony to knowingly provide a mechanism for

voting to another person registered in another state (“Felony

Provision”).

The panel held that the plaintiffs, three nonprofit groups

who asserted that these two laws would jeopardize

Arizonans’ right to vote if they went into effect, lack Article

III standing to challenge the Cancellation Provision because

they alleged only a frustrated mission and diverted

resources, and failed to show that Arizona’s actions directly

harmed pre-existing core activities. Under FDA v. Alliance

for Hippocratic Medicine, 602 U.S. 367 (2024), the plaintiffs

must allege more than that their mission or goal has been

frustrated—they must plead facts showing that their core

activities are directly affected by the defendant’s conduct.

This Court’s organizational standing precedents are

irreconcilable with Hippocratic Medicine and are therefore

overruled.

*

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

ARIZONA ALLIANCE FOR RETIRED AMERICANS V. MAYES 5

The panel rejected the plaintiffs’ constitutional challenge

to the Felony Provision. The plaintiffs have standing to

challenge the Felony Provision because they have shown

that they face a realistic possibility of prosecution. However,

they are unlikely to succeed on the merits because the phrase

“mechanism for voting” in the Felony Provision is not

unconstitutionally vague. Although the statute does not

define the phrase “mechanism for voting,” the definition of

the word “mechanism,” along with the structure of the

statute, strongly suggests that “mechanism for voting”

includes only unlawful acts of voting, not voter outreach or

registration.

Concurring, Judge Lee wrote separately to explain why,

even if the plaintiffs had Article III standing to challenge the

Cancellation Provision, they would not prevail on the merits

of their claim that the National Voter Registration Act

preempts the Cancellation Provision. He expressed his

disagreement with two Seventh Circuit decisions, which the

district court relied on in holding that the Cancellation

Provision conflicts with the National Voter Registration Act.

Dissenting in part, Judge Nguyen dissented from the

majority’s holding that plaintiffs lack organizational

standing to challenge the Cancellation Provision. In her

view, the majority erroneously overruled several cases as

irreconcilable with Hippocratic Medicine, which broke no

new ground on the standing doctrine. She would affirm the

district court’s preliminary injunction as to the Cancellation

Provision because the district court correctly determined, in

line with the Seventh Circuit’s analysis of a similar law, that

the Cancellation Provision likely violates the National Voter

Registration Act. As for the Felony Provision, Judge Nguyen

concurs in the result.

6 ARIZONA ALLIANCE FOR RETIRED AMERICANS V. MAYES

COUNSEL

Aria C. Branch (argued), Spencer W. Klein, Joel J. Ramirez,

Daniel J. Cohen, and Tina M. Morrison, Elias Law Group

LLP, Washington, D.C.; Jonathan P. Hawley, Elias Law

Group LLP, Seattle, Washington; Roy Herrera and Daniel

A. Arellano, Herrera Arellano LLP, Phoenix, Arizona; for

Plaintiffs-Appellees Arizona Alliance for Retired

Americans.

Tracy A. Olson (argued), Brett W. Johnson, Eric H. Spencer,

and Colin P. Ahler, Snell & Wilmer LLP, Phoenix, Arizona,

for Intervenor-Defendant-Appellant Yuma County

Republican Committee.

Joshua M. Whitaker (argued) and Jennifer J. Wright,

Assistant Attorneys General; Drew C. Ensign, Deputy

Solicitor General; Joseph A. Kanefield, Chief Deputy, Chief

of Staff; Mark Brnovich, Former Attorney General of

Arizona; Kristin K. Mayes, Attorney General of Arizona;

Office of the Arizona Attorney General, Phoenix, Arizona;

for Defendant-Appellant Kristin K. Mayes.

OPINION

LEE, Circuit Judge:

Arizona enacted two election law amendments aimed at

curtailing the risk of unlawful voting: (1) a provision that

allows the cancellation of a voter’s registration if a county

receives “confirmation from another county” that the voter

has moved and is registered in that new county

(“Cancellation Provision”); and (2) a provision that makes it

a felony to knowingly provide a “mechanism for voting” to

ARIZONA ALLIANCE FOR RETIRED AMERICANS V. MAYES 7

another person registered in another state (“Felony

Provision”).

Three nonprofit groups sued, asserting that these two

laws would jeopardize Arizonans’ right to vote if they went

into effect. The district court agreed and preliminarily

enjoined them. We vacate the preliminary injunction and

remand.

We first hold that the plaintiff organizations lack

standing to challenge the Cancellation Provision. The

plaintiffs rely on our circuit’s confusing line of

organizational standing cases that have broadly construed

Havens Realty v. Coleman, 455 U.S. 363 (1982), as allowing

an organization to assert standing if it diverts resources in

response to a governmental policy that frustrates its mission.

But the Supreme Court in FDA v. Alliance for Hippocratic

Medicine has now put a halt to those line of cases. 602 U.S.

367 (2024). The Court held that neither the frustration of a

mission nor the diversion of resources confers standing

under Article III, making our precedents clearly

irreconcilable with Hippocratic Medicine. Organizations

can no longer spend their way to standing based on vague

claims that a policy hampers their mission.

Now, organizations must fully satisfy the traditional

requirements of Article III standing. Hippocratic Medicine

clarified that the distinctive theory of organizational

standing reflected in Havens Realty extends only to cases in

which an organization can show that a challenged

governmental action directly injures the organization’s pre-

existing core activities and does so apart from the plaintiffs’

response to that governmental action. 602 U.S. at 395–36.

Emphasizing that Havens Realty “was an unusual case” that

the Court “has been careful not to extend . . . beyond its

8 ARIZONA ALLIANCE FOR RETIRED AMERICANS V. MAYES

context,” the Supreme Court in Hippocratic Medicine

squarely rejected the sort of “expansive theory” of Havens

Realty standing that has long been a hallmark of our

jurisprudence. Id. Applying the Supreme Court’s now-

clarified understanding of Havens Realty—which has

overruled our prior contrary caselaw—we conclude that the

plaintiffs have failed to plead Article III standing to

challenge the Cancellation Provision.

We also reject the plaintiffs’ constitutional challenge to

the Felony Provision. We disagree with the district court’s

conclusion that the phrase “mechanism for voting” in the

Felony Provision is so vague that it would likely sweep in

constitutionally protected activity such as voter outreach and

registration. Although the statute does not define the phrase

“mechanism for voting,” the definition of the word

“mechanism,” along with structure of the statute, strongly

suggests that “mechanism for voting” includes only

(unlawful) acts of voting, not voter outreach or registration.

And under the constitutional avoidance doctrine, we read the

Felony Provision narrowly to steer clear of potential

constitutional problems.

BACKGROUND

I. Arizona enacts Senate Bill 1260 to combat unlawful

voting.

In June 2022, Arizona enacted Senate Bill (SB) 1260 to

tackle (what the state perceived as) the problem of unlawful

voting. SB 1260 “[m]odifies the criteria for voter

registration cancellations, active early voting list regulations

and violations associated with illegal voting.” Ariz. H.B.

Summary, 2022 Reg. Sess. S.B. 1260. In particular, it adds

three provisions to Arizona’s Elections and Electors Code:

(1) the “Felony Provision,” A.R.S. § 16-1016(12), (2) the

ARIZONA ALLIANCE FOR RETIRED AMERICANS V. MAYES 9

“Cancellation Provision,” A.R.S. § 16-165(A)(10), (B), and

(3) the “Removal Provision,” A.R.S. § 16-544(Q)–(R). This

appeal concerns only the Felony Provision and the

Cancellation Provision.

The Cancellation Provision allows county recorders to

cancel a voter’s registration if the county recorder either

(1) “receives confirmation from another county recorder that

the person registered has registered to vote in that other

county,” A.R.S. § 16-165(A)(10), or (2) receives

“information that a person has registered to vote in a

different county,” at which point she “shall confirm the

person’s voter registration with that other county and, on

confirmation, shall cancel the person’s registration,” A.R.S.

§ 16-165(B).

The Felony Provision makes it a “class 5 felony” for

anyone to “[k]nowingly provide[] a mechanism for voting to

another person who is registered in another state.” A.R.S.

§ 16-1016(12). The statute, however, does not define

“mechanism for voting.”

II. Arizona laws must conform with the National Voter

Registration Act.

Arizona’s election laws must comply with federal voting

laws, including the NVRA. The NVRA, among other things,

imposes certain procedural requirements before a state (or,

by extension, a county) can remove a registered voter from

its voting rolls. See, e.g., 52 U.S.C. § 20507(a)(3)(A), (d)(1).

For example, the NVRA permits a state to remove a voter

from the voting rolls if she makes that request. 52 U.S.C.

§ 20507(a)(3)(A). Relevant here, the NVRA also allows a

state to remove a voter if she has moved to a different

jurisdiction. Id. § 20507(d)(1). And there are two ways to

confirm that the voter has moved. First, the voter can

10 ARIZONA ALLIANCE FOR RETIRED AMERICANS V. MAYES

“confirm[] in writing that [she] has changed residence to a

place outside the registrar’s jurisdiction.” Id.

§ 20507(d)(1)(A). Second, the state may remove a voter

who has not recently voted and does not respond after

receiving notice from the state. Id. § 20507(d)(1)(B).

III. The district court preliminarily enjoins enforcement

of the Felony Provision and Cancellation Provision.

After Arizona enacted SB 1260, three political nonprofit

organizations—the Arizona Alliance for Retired Americans,

Voto Latino, and Priorities USA—sued the Arizona

Attorney General, the Secretary of State, and fifteen county

recorders, challenging SB 1260 on constitutional grounds.

The Yuma County Republican Committee (YCRC)

intervened to defend the law.

The plaintiffs sought to preliminarily enjoin the Felony

Provision and the Cancellation Provision.1 The plaintiffs

claimed that the Cancellation Provision violates the NVRA

because it does not comply with the NVRA’s requirements

for canceling a voter’s registration. They also claimed that

the Felony Provision violates the First and Fourteenth

Amendments because it is vague and overbroad. According

to the plaintiffs, by failing to define “mechanism for voting,”

the law might criminalize various voter-outreach activities

protected by the First Amendment, including voter

registration.

1

The plaintiffs also sought to enjoin SB 1260’s Removal Provision,

arguing that it violates the Due Process Clause by placing an

unjustifiable burden on citizens’ exercise of their fundamental right to

vote. The district court, however, declined to enjoin the Removal

Provision and the plaintiffs do not appeal that decision.

ARIZONA ALLIANCE FOR RETIRED AMERICANS V. MAYES 11

On the first business day after SB 1260 went into effect,

the district court preliminarily enjoined the enforcement of

the Felony and Cancellation Provisions. On appeal, the

Attorney General and YCRC challenge the plaintiffs’

standing and the district court’s preliminary injunction.

STANDARD OF REVIEW

“Standing is a legal issue subject to de novo review.”

Arakaki v. Lingle, 477 F.3d 1048, 1056 (9th Cir. 2007). To

establish Article III standing to sue, a plaintiff must show

that she “(1) suffered an injury in fact, (2) that is fairly

traceable to the challenged conduct of the defendant, and

(3) that is likely to be redressed by a favorable judicial

decision.” Spokeo, Inc. v. Robins, 578 U.S. 330, 338 (2016).

At the preliminary injunction stage, a plaintiff must make a

“clear showing” for each of these three requirements. See

Lopez v. Candaele, 630 F.3d 775, 785 (9th Cir. 2010).

This court “review[s] the grant or denial of a preliminary

injunction for abuse of discretion.” Am. Trucking Ass’ns,

Inc. v. City of Los Angeles, 559 F.3d 1046, 1052 (9th Cir.

2009). To obtain a preliminary injunction, a plaintiff “must

establish that he is likely to succeed on the merits, that he is

likely to suffer irreparable harm in the absence of

preliminary relief, that the balance of equities tips in his

favor, and that an injunction is in the public interest.” Winter

v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008).

“A district court necessarily abuses its discretion when it

bases its decision on an erroneous legal standard or on

clearly erroneous findings of fact.” Johnson v. Couturier,

572 F.3d 1067, 1078–79 (9th Cir. 2009) (cleaned up). This

court’s review typically “does not extend to the underlying

merits of the case,” meaning that “[a]s long as the district

court got the law right, it will not be reversed simply because

12 ARIZONA ALLIANCE FOR RETIRED AMERICANS V. MAYES

the appellate court would have arrived at a different result if

it had applied the law to the facts of the case.” Id. (citation

omitted). But where, as here, the district court’s analysis of

the likelihood of success on the merits “rests solely on

conclusions of law and the facts are either established or

undisputed, de novo review is appropriate” for that factor.

Warsoldier v. Woodford, 418 F.3d 989, 993 (9th Cir. 2005);

see also Credit Suisse First Boston Corp. v. Grunwald, 400

F.3d 1119, 1126 n.7 (9th Cir. 2005) (“[W]e review de novo

any underlying issues of law, including the district court’s

interpretation of [Arizona] state law.” (citation omitted)).

ANALYSIS

I. The plaintiffs lack standing to challenge the

Cancellation Provision.

An organization asserting that it has standing based on

its own alleged injuries must meet the traditional Article III

standing requirements—meaning, it must show (1) that it has

been injured or will imminently be injured, (2) that the injury

was caused or will be caused by the defendant’s conduct, and

(3) that the injury is redressable. See Hippocratic Medicine,

602 U.S. at 395-96; Havens Realty, 455 U.S. at 378–79. But

our circuit’s organizational standing case law has been

conflicting and confusing, and some of our cases construing

Havens Realty have lost sight of these requirements. Rather

than require organizations to show actual injury, we have

sometimes allowed organizations to sue when they have

alleged little more than that they have diverted resources in

response to the defendant’s actions to avoid frustrating the

organization’s loosely defined mission.

These organizational standing precedents are

irreconcilable with the Supreme Court’s recent decision in

Hippocratic Medicine. Under Hippocratic Medicine, the

ARIZONA ALLIANCE FOR RETIRED AMERICANS V. MAYES 13

plaintiffs must allege more than that their mission or goal has

been frustrated—they must plead facts showing that their

core activities are directly affected by the defendant’s

conduct. 602 U.S. at 370, 395. That is, the plaintiffs here

must do more than merely claim that Arizona’s law caused

them to spend money in response to it—they must show that

Arizona’s actions directly harmed already-existing

activities. The plaintiffs have not pleaded facts to establish

these requirements.

To understand why the plaintiffs lack standing under

Hippocratic Medicine’s proper reading of Article III, we

must walk through how our circuit mistakenly took a detour

in construing Havens Realty.

A. Article III standing bars parties from using the

courts merely to vindicate abstract political and

societal goals.

Article III of the Constitution only allows federal courts

to decide cases and controversies. So a federal court may

not decide an issue unless the plaintiff has, as Justice Scalia

memorably put it, answered a threshold question: “What’s it

to you?” A. Scalia, The Doctrine of Standing as an Essential

Element of the Separation of Powers, 17 Suffolk U. L. Rev.

881, 882 (1983). But not just any answer to that question

will do. Courts may not allow plaintiffs with only

ideological interests in the outcome of a case to pursue that

case in court. Lujan v. Defs. of Wildlife, 504 U.S. 555, 653

(1992). Nor may courts allow plaintiffs to seek out and

challenge laws that they disagree with based on

disagreement alone. Allen v. Wright, 468 U.S. 737, 760

(1984).

These limitations are critical to the separation of powers

and our adversarial system of justice. Courts do not resolve

14 ARIZONA ALLIANCE FOR RETIRED AMERICANS V. MAYES

disputes in some abstract, generalized sense—we resolve

justiciable disputes between the parties before us. By

confirming that the plaintiff who brings a lawsuit has a

genuine interest in the outcome, we reach better-reasoned

decisions than we would if we issued opinions every time a

plaintiff who “roam[ed] the country in search of

governmental wrongdoing” found what it was looking for.

Valley Forge Christian Coll. v. Ams. United for Separation

of Church & State, Inc., 454 U.S. 464, 487 (1982). And this

ensures that the scope of the judicial role remains—as the

Founders intended it to be—limited. Hippocratic Medicine,

602 U.S. at 379–80; see also Federalist No. 47 (James

Madison) (explaining that the judicial branch “can exercise

no executive prerogative” or perform “any legislative

function”).

To satisfy Article III’s standing requirement, plaintiffs

must make three showings. First, they must show injury.

The injury must be “concrete,” meaning “not abstract.” Id.

at 381. It must be particularized, meaning that it affects the

plaintiff individually, not in a generalized manner. Id. And

it must be either real or imminent, meaning that it has

occurred or will likely occur soon. Id.

Second, plaintiffs must show that their injury “likely was

caused or likely will be caused by the defendant’s conduct.”

Id. at 382. When a plaintiff challenges a government

regulation that directly applies to or regulates them, this is

easy to do. Id. But when a plaintiff challenges a government

action that does not directly apply to it, or that does not

necessarily affect its behavior, this requirement may be

harder to meet. Id. Plaintiffs may not “rely on speculation

about the unfettered choices made by independent actors not

before the courts,” Clapper v. Amnesty Int’l, 568 U.S. 398,

414 n.5 (2013) (quotation omitted), or assume that third

ARIZONA ALLIANCE FOR RETIRED AMERICANS V. MAYES 15

parties will act in unpredictable or irrational ways,

California v. Texas, 593 U.S. 659, 669, 675 (2021). Nor may

plaintiffs rely on “distant (even if predictable) ripple

effects.” Hippocratic Medicine, 602 U.S. at 383. Instead,

plaintiffs must show a sufficiently close and predictable link

between the challenged action and their injury-in-fact. Id. 2

Finally, plaintiffs must show that their injury is

redressable. Id. at 380. To do so, they must show that a

favorable ruling will cure their injury. California, 593 U.S.

at 671. When evaluating redressability, courts must

“consider the relationship between ‘the judicial relief

requested’ and the ‘injury’ suffered.” Id. (quoting Allen, 468

2

The dissent claims that we are conflating third-party standing principles

(Hunt representational standing) with first-party standing (Havens

Realty organizational standing). Dissent at 48–49. Not so. The

causation requirement under traditional Article III standing must always

be satisfied, either as to the organization itself (in a first-party standing

case) or as to one or more members of the organization (in a third-party

standing case). And it is incorrect to say that Hippocratic Medicine’s

emphasis on causation was referring to third-party standing only. The

Court held that when a “plaintiff challenges the government’s ‘unlawful

regulation (or lack of regulation) of someone else,’” then standing may

be “substantially more difficult to establish” because causation

“ordinarily hinge[s] on the response of the regulated (or regulable) third

party to the government action or inaction—and perhaps the response of

others as well.” 602 U.S. at 382 (citing Lujan, 504 U.S. at 562). That is

exactly the situation here: the plaintiff organizations are asserting their

own injuries—i.e., diversion of resources and frustration of mission—

based on the government’s regulation of third parties (their clients whom

they register to vote). This is still first-party standing—and Hippocratic

Medicine’s emphasis on causation applies here. Finally, the dissent

points out that the first-party standing analysis is the same for

organizations as it is for individuals. Dissent at 49. That is true. The

problem has been that we have not rigorously applied the traditional

Article III standing analysis to organizations as we typically have for

individuals.

16 ARIZONA ALLIANCE FOR RETIRED AMERICANS V. MAYES

U.S. at 753 n.19). If there is no injury or if the requested

remedy would not cure the plaintiff’s injury, then the injury

is not redressable. Id. at 672.

B. Havens Realty—and the Ninth Circuit’s

expansion of it.

In Havens Realty, the defendant company managed two

apartment complexes, one of which was occupied

predominantly by whites, and the other of which was

integrated. 455 U.S. at 368 & n.1. In leasing its apartments,

the defendant allegedly engaged in “racial steering” by

steering non-whites only to the integrated complex and away

from the largely white complex. Id. at 366–68 & nn. 1 & 4.

These steering activities included falsely informing Black

prospective renters, including a HOME employee, that there

were no apartments available in the largely white complex.

Id. at 368. The Supreme Court held that HOME had

standing to challenge the landlord’s racial steering practices

because the practices “frustrated” HOME’s “efforts to assist

equal access to housing through counseling and other

referral services” and required HOME to “devote significant

resources to identify and counteract” the practices. Id. at

379.

From Havens Realty, we have derived a two-part test that

conferred standing on organizations if they merely alleged

that a challenged policy (1) frustrated the organization’s

mission or goal, and (2) required the organization to spend

money or divert resources in response. See, e.g., Fellowship

of the Christian Athletes v. San Jose Unified School Dist., 82

F.4th 664, 682 (9th Cir. 2023) (en banc); Fair Hous. Council

of San Fernando Valley v. Roommate.com, LLC, 666 F.3d

1216, 1219 (9th Cir. 2012).

ARIZONA ALLIANCE FOR RETIRED AMERICANS V. MAYES 17

We have often said that Havens Realty does not allow

organizations to vindicate abstract interests or spend their

way into Article III standing, but our cases have been less

clear, and often conflicting, on what then a plaintiff must do

to show injury. See Nielsen v. Thornell, 101 F.4th 1164,

1181–82 (9th Cir. 2024) (Collins, J., dissenting) (arguing for

a narrow reading of our confusing precedents, many of

which “applied Havens Realty in summary fashion” and with

“no detailed analysis”). So in practice, we often paid lip

service to a more stringent standing requirement, but many

of our cases seemed effectively to allow plaintiffs to assert

standing merely by expending resources in furtherance of

“strong moral, ideological, or policy objection[s] to a

government action.” Hippocratic Medicine, 602 U.S. at 381.

But as the Supreme Court has now clarified, Havens

Realty never discussed frustrating an abstract organizational

mission—it discussed the direct impact of racial steering on

HOME’s “core business activities.” See Hippocratic

Medicine, 602 U.S. at 395. In loosely characterizing Havens

Realty as a case about missions and goals, our cases lost sight

of that crucial limitation. Organizations can—and do—

define their missions “with hydra-like or extremely broad

aspirational goals.” See Nielsen, 101 F.4th at 1170. Looking

at indirect impacts on those missions and goals—instead of

direct interference with the organization’s core activities—

could allow an organization to challenge virtually anything,

including policies that only affect the organization’s

intangible social interests. For example, an organization can

define its mission as, say, ensuring equal protection or

safeguarding property rights—and easily assert that a

governmental policy in the abstract frustrates that mission,

even if the challenged policy has no direct impact on the

organization’s carrying out of its existing core activities. In

18 ARIZONA ALLIANCE FOR RETIRED AMERICANS V. MAYES

doing so, our cases have effectively allowed organizations to

assert standing based on the sort of “general legal, moral,

ideological, and policy concerns” that the Supreme Court

has confirmed “do not suffice on their own to confer Article

III standing to sue in federal court.” Hippocratic Medicine,

602 U.S. at 386.

We equally erred to the extent that our cases have

suggested that the mere diversion of resources in response to

a policy can provide standing. In Havens Realty, HOME

spent resources offsetting policies that harmed its then-

existing activities—specifically, its ongoing activities in

counseling its constituents on available housing. 455 U.S. at

376; see also Hippocratic Medicine, 602 U.S. at 395. Some

of our cases appear to have loosened this requirement,

finding standing wherever an organization alleged that it

spent (or would spend) resources on new activities in

response to a challenged policy—even if those new activities

consist only of educational and advocacy efforts in

ideological opposition to the challenged policy. And, most

troublingly, we have sometimes accepted that such new

activities confer standing even if they are no more than a new

opportunity for the organization to advance its loosely

defined “mission.” Roommate.com, 666 F.3d at 1226 (Ikuta,

J., concurring in part) (noting that an organization’s mission

has not been frustrated if it spends money to further that

goal). Thus, we have at times gone so far as to endorse a

self-help theory of standing under which an organization’s

mission is supposedly hampered if, in response to a

defendant’s conduct, the organization decides to further its

mission in a different way, by shifting resources from one

“activity that advances [its] goals” to new activities that also

further its goals by opposing the new policy. See Nat’l

Council of La Raza v. Cegavske, 800 F.3d 1032, 1040–41

ARIZONA ALLIANCE FOR RETIRED AMERICANS V. MAYES 19

(9th Cir. 2015) (concluding that voter advocacy organization

suffered injury by engaging in additional voter advocacy).

In other words, our case law has suggested that an

organization suffers cognizable harm because it voluntarily

spends money to further its goals.

Many judges on this circuit have highlighted how this

circuit’s expansion of Havens Realty went astray. See, e.g.,

Roommate.com, 666 F.3d at 1124 (Ikuta, J., concurring in

part) (“This case brings the strain between our case law and

Supreme Court precedent close to a rupture.”); Rodriguez v.

City of San Jose, 930 F. 3d 1123, 1135 n. 10 (9th Cir. 2019)

(Friedland, J.) (“We share many of these concerns” about the

circuit’s organizational standing precedents “but are bound

to apply” them); East Bay Sanctuary Covenant v. Biden, 993

F.3d 640, 693 (9th Cir. 2021) (Bumatay, J., dissenting from

the denial of rehearing en banc) (“We have moved well

beyond requiring particularized and concrete injury and have

embraced a ‘general grievance’ theory of jurisdiction by

construing organizational standing so broadly.”); Sabra v.

Maricopa Cnty. Comm. Coll., 44 F.4th 867, 896 (9th Cir.

2022) (VanDyke, J., concurring) (“[A]s in other areas of our

court’s jurisprudence, we have paid lip service to [Article

III’s] rules while faltering in our application.”); Nielsen, 101

F.4th at 1180 (Collins, J., dissenting) (If “mere advocacy” is

enough, then “any person who is opposed to any government

policy would have standing to challenge that policy.”). After

the Supreme Court’s decision in Hippocratic Medicine, we

can no longer follow our overbroad reading of Havens

Realty.

The dissent maintains that Hippocratic Medicine did not

alter our (mis)reading of Havens Realty. Dissent at 47–48.

But it did. The telltale sign is that the Supreme Court in

Hippocratic Medicine noted that it “has been careful not to

20 ARIZONA ALLIANCE FOR RETIRED AMERICANS V. MAYES

extend the Havens holding beyond its context.” 602 U.S.

at 396. But our court has been anything but careful in its

broad reading of Havens Realty, and we must comply with

the Supreme Court’s admonition that Havens Realty is an

“unusual case” that should not be expanded beyond its

unique context. Id. We thus now apply the traditional

Article III inquiry for organizational standing (as clarified by

Hippocratic Medicine) and cannot rely on our two-part test

of simply looking at diversion of resources and frustration of

mission.

The dissent tries to put a favorable gloss on our Havens

Realty case law, arguing that “[n]o Ninth Circuit precedent

describes Havens Realty as a two-part test.” Dissent at 47.

But we have done just that. For example, in Sabra, we held

that “we have ‘read Havens to hold that an organization has

direct standing to sue where it establishes that the

defendant’s behavior has frustrated its mission and caused it

to divert resources in response to that frustration of

purpose.’” 44 F. 4th at 876 (quoting E. Bay Sanctuary

Covenant v. Biden, 993 F.3d 640, 663 (9th Cir. 2020) (in turn

quoting Fair Hous. of Marin v. Combs, 285 F.3d 899, 905

(9th Cir. 2002))). Indeed, we did not even bother mentioning

the traditional three-part Article III standing inquiry (injury-

in-fact, causation/traceability, redressability) in Sabra

because we were relying solely on the two-part frustration of

mission and diversion of resources framework that our

circuit adopted for organizational standing. And even when

we give lip service to Article III standing requirements, we

often ultimately applied the more forgiving two-part test that

we mistakenly derived from Havens Realty. See, e.g., E. Bay

Sanctuary, 993 F. 3d at 691 (Bumatay, J., dissenting from

the denial of rehearing en banc) (noting that the panel

ARIZONA ALLIANCE FOR RETIRED AMERICANS V. MAYES 21

opinion’s “broad and malleable standard” of standing is “an

end-run around Article III”). We no longer can do so.

C. Our organizational standing precedent is clearly

irreconcilable with Hippocratic Medicine.

Supreme Court authorities—rather than Ninth Circuit

precedent—are binding on three-judge panels “where

intervening Supreme Court authority is clearly

irreconcilable with our prior circuit authority.” Miller v.

Gammie, 335 F.3d 889, 900 (9th Cir. 2003) (en banc). In

Hippocratic Medicine, the Supreme Court applied

traditional standing principles to an organizational plaintiff,

and in doing so, rejected both prongs of our organizational

standing test. 602 U.S. at 395–96. In particular, the

Supreme Court clarified that organizational standing may

not be premised on a broadly stated mission or goal. Id. at

394. Nor may it hinge on the claim that the organization has

diverted resources in response to government action that

does not directly affect that organization’s existing core

activities. Id.

To start, Hippocratic Medicine clarified that a policy

does not cause an injury in fact unless the policy “directly

affect[s] and interfere[s]” with the organization’s “core

business activities”—much like a manufacturer’s sale of a

defective good harms the consumer who buys it. Id. at 395.

So just as a consumer must suffer an actual and concrete

harm, the organization must suffer an actual and concrete

harm. Id. And that harm must directly and actually affect

the organization’s “core” activities, not merely its “abstract

social interests.” Id. (quoting Havens Realty, 455 U.S.

at 379). No matter how much a defendant’s conduct can be

said to frustrate an organization’s abstract mission, alleged

injuries to an organization’s “general legal, moral,

22 ARIZONA ALLIANCE FOR RETIRED AMERICANS V. MAYES

ideological, and policy concerns do not suffice on their own

to confer Article III standing to sue in federal court.”

Hippocratic Medicine, 602 U.S. at 386; see also id. at 394

(holding that the plaintiffs organizations’ argument that the

FDA’s challenged policy “has ‘impaired’ their ‘ability to

provide services and achieve their organizational missions’”

“does not work to demonstrate standing”).

In Havens Realty, it was “[c]ritical[]” that HOME was

“not only [an] issue-advocacy organization, but also

operated a housing counseling service.” Id. at 395. In other

words, HOME had standing because receiving false

information about available housing directly harmed

HOME’s core activity—counseling its clients on housing

availability. Id. HOME would not have had standing,

however, if the racial steering practice only affected its

“public advocacy” and “public education” functions—the

injury depended on HOME’s counseling services. Id. at 394;

cf. Sabra, 44 F.4th at 879 (permitting standing based on

mere harm to abstract advocacy interests and on a

government action’s effects in shifting public opinion on

matters of public interest).

Next, Hippocratic Medicine clarified that it is tougher

for a plaintiff to establish causation than some of our

precedents suggested. 602 U.S. at 382–83. This is obvious:

If the party before the court seeks to challenge a law that

does not directly affect it, the chain of causation will be

longer and inferences will be necessary. Id. So we must

scrutinize the harm an organization asserts to ensure that the

organization has not tried to “spend its way into standing

simply by expending money to gather information and

advocate against the defendant’s actions.” Id. at 394. If we

do not, we risk permitting “all the organizations in America”

to challenge everything they dislike, “provided they spend

ARIZONA ALLIANCE FOR RETIRED AMERICANS V. MAYES 23

even a single dollar opposing those policies.” Id. at 395. To

avoid that, we must not allow the diversion of resources in

response to a policy to confer standing—instead, the

organization must show that the new policy directly harms

its already-existing core activities. Id.

Even the narrowest reading of our organizational

standing precedents allowed plaintiffs to satisfy Article III

using the sort of frustration-of-mission and diversion-of-

resource theories the Supreme Court rejected in Hippocratic

Medicine. See Nielsen, 101 F.4th at 1180–81 (Collins, J.,

dissenting); see also Sabra, 44 F.4th at 879; Roommate.com,

666 F.3d at 1219; Nat’l Council of La Raza, 800 F.3d at

1040–41. These precedents are thus irreconcilable with

Hippocratic Medicine—and thus overruled. In sum, rather

than applying our two-pronged inquiry of whether a

challenged policy frustrates an organization’s mission and

requires it to spend money resources, we now must apply,

following the strictures of Hippocratic Medicine, the

traditional three-part Article III standing analysis: (1) injury-

in-fact, (2) causation, and (3) redressability.

D. The plaintiffs here lack standing to challenge the

Cancellation Provision because they have alleged

only a frustrated mission and diverted resources.

The plaintiffs have not shown they have standing to

challenge the Cancellation Provision. The plaintiffs

speculate that they might in the future need to divert

resources because the Cancellation Provision could cause

voters’ current registrations—rather than old, outdated

registrations—to be cancelled. And the plaintiffs allege that

this interferes with their mission to encourage minority voter

registration. This conjecture-laden theory is insufficient

under Article III.

24 ARIZONA ALLIANCE FOR RETIRED AMERICANS V. MAYES

First, the plaintiffs cannot show injury-in-fact because

the Cancellation Provision does not directly affect their pre-

existing core activities. With or without the Cancellation

Provision, the plaintiffs can still register and educate

voters—in other words, continue their core activities that

they have always engaged in. See Hippocratic Medicine,

602 U.S. at 396. Rather, the plaintiffs are complaining that

they must now take it upon themselves to develop training

materials or ask constituents additional questions in response

to the Cancellation Provision. The plaintiffs thus attempt to

spend their way into Article III standing by taking new

actions in response to what they view as a disfavored policy.

But as Hippocratic Medicine explains, spending money

voluntarily in response to a governmental policy cannot be

an injury in fact. See 602 U.S. at 394.

Second, the plaintiffs’ speculative harm is too attenuated

to satisfy Article III’s causation requirement. According to

the plaintiffs, if they fail to confirm whether voters have

existing registrations, the Cancellation Provision may cause

a county recorder to cancel the voter’s new registration

instead of the old one. It is unclear whether the plaintiffs

view this as a direct organizational harm based on the

resources they will divert to avoid cancelled voter

registrations, or if they instead intend to assert claims on

behalf of the members whose registrations may be cancelled.

See Hunt v. Washington State Apple Advertising

Commission, 432 U.S. 333, 343 (1977) (discussing

organization’s associational standing based on representing

its members). But regardless of whether they are alleging a

Havens Realty direct organizational standing or a Hunt

associational standing based on their members’ alleged

injuries, their theory rests on either an implausible reading

of the Cancellation Provision or pure speculation—neither

ARIZONA ALLIANCE FOR RETIRED AMERICANS V. MAYES 25

of which creates enough of a causal chain to satisfy Article

III.

Take the plaintiffs’ misreading of the Cancellation

Provision. The plaintiffs insist that the Cancellation

Provision could be read to allow county recorders to cancel

a new voter registration when that registration is submitted.

Arizona law, as well as basic common sense, makes clear

that the Cancellation Provision does no such thing. The

statute says that the “county recorder shall cancel a

registration . . . [w]hen the county recorder receives

confirmation from another county recorder that the person

registered has registered to vote in that other county.” See

A.R.S. § 16-165(A)(11). As the statutory text explains, the

county recorder will cancel the old registration in its county

if it confirms that the voter “has registered” in a new county.3

As the Arizona Secretary of State Katie Hobbs has

explained, the state maintains a statewide voter registration

system, Arizona Voter Information Database (AVID), that

all the counties rely on for maintaining and verifying voter

registration. That AVID database reveals which registration

is more recent for a particular voter. And in case there was

any doubt remaining about what the law requires, the

Arizona Attorney General confirmed in its supplemental

3

Other statutory provisions in Arizona law echo this same

point. See A.R.S. § 16-164(A) (“On receipt of a new registration form

that effects a change of . . . address . . . the county recorder shall indicate

electronically in the county voter registration that the registration has

been canceled . . . .”) (emphasis added); A.R.S. § 16-166(B) (“If the

elector provides the county recorder with a new registration form or

otherwise revises the elector’s information, the county recorder shall

change the register to reflect the changes indicated on the new

registration.”) (emphasis added).

26 ARIZONA ALLIANCE FOR RETIRED AMERICANS V. MAYES

brief that only the old registration would be cancelled under

the statute.4

At its core, the plaintiffs’ argument is that the county

recorder—whose main job is to maintain accurate voting

registration—will negligently remove the new voting

registration and decide to keep the old one. But as the

Arizona Secretary of State and the Arizona Attorney General

have explained, that is not what the law requires or what any

county recorder would reasonably be expected to do. The

plaintiffs’ causal chain of harm is as fanciful as a complaint

alleging that the U.S. Department of State will process a

passport renewal by destroying the new passport and sending

the expired one back. This theory of causation is “simply

too speculative” to satisfy Article III. Hippocratic Medicine,

602 U.S. at 393. And for similar reasons, the plaintiffs are

also wrong in contending that they have associational

standing based, not on their own injuries, but on the alleged

harms that the Cancellation Provision will inflict on their

members. See Hunt, 432 U.S. at 343. These associational-

standing arguments rest on the same unduly speculative

theory of causation—namely, that county recorders will

4

The dissent states that the Arizona Attorney General “agree[s] with

plaintiffs’ statutory interpretation.” Dissent at 53. But the Attorney

General was only referring to what constitutes “credible information”

under the statute, not whether the statute requires a new voting

registration to be cancelled in favor of the old one. Further, the dissent’s

suggestion that third parties may try to maliciously purge voting

registrations (Dissent at 52, n.2) is off-base. Under the statute, a county

recorder has to confirm voting registration records with the other county

recorder before removing the old registration.

ARIZONA ALLIANCE FOR RETIRED AMERICANS V. MAYES 27

supposedly cancel new voter registrations rather than old

ones.5

The plaintiffs attempt to cure these problems by claiming

that they have alleged more than “mere issue advocacy”—

and thus satisfied Hippocratic Medicine—because the

Cancellation Provision creates a direct organizational harm

by “impact[ing] their ability to engage in their core voter

registration activities.” But this is a diversion-of-resources

5

The dissent argues that we are addressing the merits of the claim in our

standing analysis. Dissent at 51. We are not. The plaintiffs’ claim is

based on the premise that the National Voter Registration Act preempts

Arizona law. We do not address the merits of that preemption argument.

Rather, we merely point out that the plaintiffs’ chimerical and

speculative theory of harm—that the law will compel the state to

bizarrely cancel a new voting registration form and keep the old one—is

belied by the statutory language, common sense, and statements from

bipartisan state elected officials in charge of administering and enforcing

Arizona’s election laws. We are not bound to accept an incorrect

premise in determining whether a party has standing. Indeed, in

determining whether a chain-of-causation is too speculative under our

Article III standing principles, we must look at whether a plaintiff is

relying on a far-fetched speculation in assessing how a statute may be

applied.

The dissent relies on our decision in Peace Ranch, LLC v. Bonta, 93

F.4th 488 (9th Cir. 2024), to argue that we are impermissibly

determining the merits of the case in our standing analysis. But that case

is plainly distinguishable. There, the state argued in its brief that its law

regulating mobile home parks did not apply to the plaintiff’s park and

thus the plaintiff did not have standing. But at oral argument the state

refused to say that it would not enforce that law against the plaintiff. The

state’s refusal to disclaim enforcement was especially notable because

the record showed that the state legislature had specifically targeted that

park (and that park only) in passing the law. Id. at 486. Given that

record, we refused to credit the state’s argument in its brief that the law

did not apply to the plaintiff. Here, in contrast, the law is clear that the

state will not cancel the new registration.

28 ARIZONA ALLIANCE FOR RETIRED AMERICANS V. MAYES

theory by another name. The only way in which the

Cancellation Provision arguably affects the plaintiffs’ “core

voter registration activities” is by causing the plaintiffs, in

response to the provision, to decide to shift some resources

from one set of pre-existing activities in support of their

overall mission to another, new set of such activities.

Indeed, the plaintiffs’ purported harm—e.g., they will have

to “expend . . . resources,” “create[e] a training program,”

“divert additional time and resources” (Dissent at 58–59)—

represent the same diversion-of-resources and frustration-of-

mission injury that Hippocratic Medicine rejected.

Unlike Havens Realty, as clarified by Hippocratic

Medicine, here there is no sense in which the Cancellation

Provision can be said to directly injure the organizations’

pre-existing core activities, apart from the plaintiffs’

response to that provision. The dissent suggests that the

plaintiff HOME in Havens Realty would not have standing

under our reading of Hippocratic Medicine. We disagree.

Havens Realty had “perceptibly impaired” HOME’s “core”

and ongoing ability to provide counseling and referral

services because it lied and “provided HOME’s black

employees false information about apartment availability.”

Hippocratic Medicine, 602 U.S. at 395. Put another way,

Havens Realty had “directly affected and interfered” with

HOME’s pre-existing goal of helping its Black clients obtain

housing because Havens Realty had wrongfully lied that

nothing was available in predominantly white apartments.

Id. As the Supreme Court explained, a plaintiff group has

organizational standing if it can show harm to its “core

business activities” much like a “retailer who sues a

manufacturer for selling defective goods to the retailer.” Id.

So Havens Realty was not a case in which HOME claimed

standing based on its voluntary decision to spend more

ARIZONA ALLIANCE FOR RETIRED AMERICANS V. MAYES 29

resources to educate its clients in response to Havens

Realty’s actions; rather, its core and ongoing business

activity was “perceptibly impaired” by Havens Realty’s

wrongful lies. Id.

The plaintiffs here, in contrast, can continue its core and

ongoing business of registering voters. The Cancellation

Provision does not “directly affect[] and interfere[]” with

that pre-existing activity. The only harm here is the potential

diversion of resource to remind people of the far-fetched

possibility that the registrar of voters may somehow

mistakenly or maliciously cancel their new voting

registration form if they had earlier registered elsewhere. In

other words, the plaintiffs are claiming that they are harmed

because they will spend resources on education in response

to the new law. This alleged harm simply is not akin to a

“retailer who sues a manufacturer for selling defective goods

to the retailer” or a group’s core business activity being

“perceptibly impaired.” Id. If we accepted the plaintiffs’

extravagant theory of standing, a law school professor who

teaches election law would have standing to challenge the

Cancellation Provision because she would have to expend

resources to change her curriculum and further educate her

students about the state of the law. Article III standing

cannot be based on such fanciful or speculative harm.

II. The plaintiffs have standing to challenge the Felony

Provision but their argument likely fails on the

merits.

To establish standing at the preliminary injunction stage,

plaintiffs must make a clear showing that they have suffered

an actual or imminent injury that a preliminary injunction

would remedy. See Lujan, 504 U.S. at 564; Spokeo, 578 U.S.

at 339 (“a plaintiff must show that he or she suffered” an

30 ARIZONA ALLIANCE FOR RETIRED AMERICANS V. MAYES

“actual or imminent” injury (citation omitted)); Lopez, 630

F.3d at 785. Only if plaintiffs make that clear showing can

we decide the merits of the claim.

A. The plaintiffs have standing because they have

shown that they face a realistic possibility of

prosecution.

To make a clear showing of standing, the plaintiffs must

show that they face a reasonable risk of prosecution under

the Felony Provision such that they are chilled from

engaging in their constitutionally protected voter outreach

and registration activities.6

This court has repeatedly held that when a “threatened

enforcement effort implicates First Amendment rights, the

inquiry tilts dramatically toward a finding of standing” to

guard against chilling protected speech. LSO, Ltd. v. Stroh,

205 F.3d 1146, 1155 (9th Cir. 2000). Of course, even under

this “lowered threshold,” the threat of injury to plaintiffs still

must be “credible, not imaginary or speculative.” Lopez, 630

F.3d at 781, 786 (cleaned up). Put another way, plaintiffs

satisfy the injury-in-fact requirement in a pre-enforcement

challenge if they allege “an intention to engage in a course

of conduct arguably affected with a constitutional interest,

but proscribed by a statute, and there exists a credible threat

6

Unlike the Cancellation Provision, Hippocratic Medicine does not

undermine the plaintiffs’ standing to challenge the Felony Provision

because the plaintiff organizations allege that they will themselves be

prosecuted for violating the Felony Provision, i.e., that they are parties

as to whom the Felony Provision “forbid[s] some action.” Hippocratic

Medicine, 602 U.S. at 382. Thus, in asserting standing to challenge the

Felony Provision, the plaintiffs do not rely on the frustration of their

mission or diversion of resources.

ARIZONA ALLIANCE FOR RETIRED AMERICANS V. MAYES 31

of prosecution.” Susan B. Anthony List v. Driehaus, 573 U.S.

149, 159 (2014).

Thus, a plaintiff bringing a pre-enforcement First

Amendment challenge typically must show that her

expressive activity is chilled because she faces a “realistic

danger” of prosecution under the statute she challenges.

Libertarian Party of L.A. Cnty. v. Bowen, 709 F.3d 867, 870

(9th Cir. 2013) (citation omitted). “In evaluating the

genuineness of a claimed threat of prosecution, courts

examine three factors: (1) whether plaintiffs have

articulated a ‘concrete plan’ to violate the law in question,

(2) whether the prosecuting authorities have communicated

a specific warning or threat to initiate proceedings, and

(3) the history of past prosecution or enforcement under the

challenged statute.” Id. (citation omitted). In assessing these

three factors, we believe that the plaintiffs face a “realistic

danger” of prosecution.

First, the plaintiffs have concrete plans to engage in

constitutionally protected voter outreach activities,

including voter registration, that they believe may violate the

Felony Provision. We have generally held that a plaintiff

satisfies this first factor if the “plaintiff’s intended speech

arguably falls within the statute’s reach.” Cal. Pro-Life

Council, Inc. v. Getman, 328 F.3d 1088, 1095 (9th Cir. 2003)

(emphasis added). The plaintiffs clear that low hurdle

because the undefined phrase “mechanism for voting”

arguably could be read to encompass First Amendment

activity such as voter registration.

Second, while no Arizona official has threatened to

prosecute the plaintiffs, that does not defeat their standing.

In First Amendment challenges, “the plaintiff need only

demonstrate that a threat of potential enforcement will cause

32 ARIZONA ALLIANCE FOR RETIRED AMERICANS V. MAYES

him to self-censor, and not follow through with his concrete

plan to engage in protected conduct.” Protectmarriage.com-

Yes on 8 v. Bowen, 752 F.3d 827, 839 (9th Cir. 2014); see

also Tingley v. Ferguson, 47 F.4th 1055, 1068 (9th Cir. 2022)

(suggesting that a plaintiff need not show a specific threat of

prosecution to establish standing if the general specter of

liability will cause her to self-censor).

In this litigation, the state’s Attorney General has

rejected any interpretation of SB 1260 that would

criminalize ordinary voter outreach. But this court has held

that officials cannot inoculate laws from review if the

disavowal is a “mere litigation position.” Lopez, 630 F.3d at

788. Outside of this case, the state has offered no official

guidance limiting the Felony Provision’s reach, even though

the state has been on notice that the provision is vague and

potentially chilling speech. The Attorney General’s office

also acknowledges that its interpretation will not bind its

successor. Thus, the plaintiffs have established that they will

self-censor because of SB 1260’s nascent threat, satisfying

the second factor too.

Finally, the plaintiffs’ inability to show a history of

prosecution under the Felony Provision does not undermine

their standing. See LSO, Ltd., 205 F.3d at 1155; see also

Libertarian Party, 709 F.3d at 872. In pre-enforcement

cases, “an actual arrest, prosecution, or other enforcement

action is not a prerequisite to challenging the law.”

Driehaus, 573 U.S. at 158. SB 1260 was enjoined the day

after it took effect, so Arizona never had a genuine

opportunity to enforce it. See id.

Considering these three factors together, we hold that the

plaintiffs have met their burden to make a clear showing of

a concrete injury and thus they have Article III standing.

ARIZONA ALLIANCE FOR RETIRED AMERICANS V. MAYES 33

B. The plaintiffs are unlikely to prevail on the merits

because the phrase “mechanism for voting” is not

unconstitutionally vague.

In a vagueness challenge, our first task is to determine

whether the challenged law curtails First Amendment

freedoms. Village of Hoffman Estates v. Flipside, Hoffman

Estates, Inc., 455 U.S. 489, 494 (1982). Laws that restrict

First Amendment rights are less likely to survive a vagueness

challenge. Compare Humanitarian L. Project v. U.S.

Treasury Dep’t, 578 F.3d 1133, 1146 (9th Cir. 2009) with

Hotel & Motel Ass’n of Oakland v. City of Oakland, 344 F.3d

959, 972 (9th Cir. 2003). That is because First Amendment

rights are “delicate and vulnerable, as well as supremely

precious in our society . . . [and] the threat of sanctions may

deter their exercise almost as potently as the actual

application of sanctions.” NAACP v. Button, 371 U.S. 415,

433 (1963).

A law is void for vagueness when it “fail[s] to provide

the kind of notice that will enable ordinary people to

understand what conduct it prohibits” or when it

“authorize[s] and even encourage[s] arbitrary and

discriminatory enforcement.” City of Chicago v. Morales,

527 U.S. 41, 56 (1999). This court applies this test more

strictly when the challenged law touches on forms of

political speech. Butcher v. Knudsen, 38 F.4th 1163, 1169

(9th Cir. 2022). At the same time, we know that “[f]acial

invalidation is, manifestly, strong medicine that has been

employed by the Court sparingly and only as a last resort.”

Cal. Tchrs. Ass’n v. State Bd. of Educ., 271 F.3d 1141, 1155

(9th Cir. 2001) (citation omitted).

When evaluating the vagueness of a statute, we

“interpret statutory language in view of the entire text,

34 ARIZONA ALLIANCE FOR RETIRED AMERICANS V. MAYES

considering the context.” Nicaise v. Sundaram, 432 P.3d

925, 927 (Ariz. 2019). We give words “their ordinary

meaning unless it appears from the context or otherwise that

a different meaning is intended.” Arizona ex rel. Brnovich v.

Maricopa Cnty. Cmty. Coll. Dist. Bd., 416 P.3d 803, 805

(Ariz. 2018) (citation omitted).

The Felony Provision prohibits “[k]nowingly

provid[ing] a mechanism for voting to another person who

is registered in another state, including by forwarding an

early ballot addressed to the other person.” A.R.S. § 16-

1016(12). Because the statute does not define “mechanism

for voting,” we must begin by “apply[ing] the ordinary

meaning of the term.” Arizona v. Dann, 207 P.3d 604, 621

(Ariz. 2009). As relevant here, a “mechanism” is “a process

or technique for achieving a particular result,” Mechanism,

Webster’s Third New International Dictionary (1981 ed.), or

an “instrument or process . . . by which something is done,”

Mechanism, American Heritage Dictionary (5th ed. 2018).

The object of “mechanism” in the statute’s prepositional

phrase is “voting,” which refers to the “act or process of

casting a vote,” Voting, Webster’s Third New International

Dictionary (1981 ed.). So construed under its ordinary

meaning, the phrase “mechanism for voting” likely refers to

a process, technique, or instrument for casting a vote. That

plain-meaning construction of the phrase does not include

activities such as voter registration because providing a

mechanism for registering to vote is different from providing

a “mechanism for voting.”

We also do not read words or phrases divorced from the

statutory scheme. “[I]t is a ‘fundamental principle of

statutory construction (and, indeed, of language itself) that

the meaning of a word cannot be determined in isolation, but

must be drawn from the context in which it is used.’” Adams

ARIZONA ALLIANCE FOR RETIRED AMERICANS V. MAYES 35

v. Comm’n on App. Ct. Appointments, 254 P.3d 367, 374

(Ariz. 2011) (quoting Deal v. United States, 508 U.S. 129,

132 (1993)). When we look at the entire statute, including

the surrounding provisions, that reinforces our conclusion

that “mechanism for voting” does not include voting

outreach or registration. See Nicaise, 432 P.3d at 927.

To begin, the title of the statutory section where the

Felony Provision is housed suggests that it only criminalizes

misconduct involving the actual act of casting a vote. See

Miller v. City of Tucson, 736 P.2d 1192, 1193 (Ariz. Ct. App.

1987) (“This court has also ruled that it is proper to consider

the title of a statute in attempting to interpret the enacting

body’s intent.” (citing State v. Shepler, 684 P.2d 924, 925

(Ariz. Ct. App.1984))). The title lists “Illegal voting,”

“pollution of ballot box,” and “removal or destruction of

ballot box, poll lists or ballots.” A.R.S. § 16-1016. All these

activities in the title involve the act of voting, confirming

that “mechanism for voting” is confined to that as well.

And all the other specific criminal violations listed in this

section are indeed related to acts of voting. See id. That

underscores that this section regulates the act of voting itself,

not voter registration. See id. The section criminalizes

twelve specified acts related to voting:

1. Not being entitled to vote, knowingly

votes.

2. Knowingly votes more than once at any

election.

3. Knowingly votes in two or more

jurisdictions in this state for which residency

is required for lawful voting and the person is

not a resident of all jurisdictions in which the

36 ARIZONA ALLIANCE FOR RETIRED AMERICANS V. MAYES

person voted. For the purposes of this

paragraph, a person has only one residence

for the purpose of voting.

4. Knowingly votes in this state in an election

in which a federal office appears on the ballot

and votes in another state in an election in

which a federal office appears on the ballot

and the election day for both states is the

same date.

5. Knowingly gives to an election official two

or more ballots folded together.

6. Knowingly changes or destroys a ballot

after it has been deposited in the ballot box.

7. Knowingly adds a ballot to those legally

cast at any election, by fraudulently

introducing the ballot into the ballot box

either before or after the ballots in the ballot

box have been counted.

8. Knowingly adds to or mixes with ballots

lawfully cast, other ballots, while they are

being canvassed or counted, with intent to

affect the result of the election, or to exhibit

the ballots as evidence on the trial of an

election contest.

9. Knowingly and unlawfully carries away,

conceals or removes a poll list, ballot or

ballot box from the polling place, or from

possession of the person authorized by law to

have custody thereof.

ARIZONA ALLIANCE FOR RETIRED AMERICANS V. MAYES 37

10. Knowingly destroys a polling list, ballot

or ballot box with the intent to interrupt or

invalidate the election.

11. Knowingly detains, alters, mutilates or

destroys ballots or election returns.

12. Knowingly provides a mechanism for

voting to another person who is registered in

another state, including by forwarding an

early ballot addressed to the other person.

Id. The first eleven provisions all directly relate to

misconduct in the act of voting; none of them relates to pre-

voting activity, such as voting registration or outreach. The

provision about “mechanism for voting” appears as the last

and twelfth item on that list of misconduct. As a general

matter, “words grouped in a list should be given related

meanings.” See Scalia and Garner, Reading Law at 195.

Consistent with the other eleven neighboring provisions, the

twelfth provision about “mechanism for voting” likely

encompasses only misconduct related to the act of voting.

Another statutory clue that “mechanism for voting” does

not include voting outreach and registration is that a different

section penalizes voter registration-related misconduct. See

A.R.S. § 16-181–84. Section 16-182(A) provides criminal

penalties for any individual who “allows himself to be

registered . . . knowing that he is not entitled to such

registration, or a person who knowingly causes or procures

another person to be registered . . . knowing that such other

person is not entitled to such registration.” This express

provision for voting registration fraud implies that the

“mechanism for voting” provision in the section devoted to

illegal voting refers only to voting, not voting registration.

38 ARIZONA ALLIANCE FOR RETIRED AMERICANS V. MAYES

Otherwise, the separate registration section would be

superfluous. And a “cardinal principle of statutory

interpretation is to give meaning, if possible, to every word

and provision so that no word or provision is rendered

superfluous.” Nicaise, 432 P.3d at 927.

In sum, when we review “mechanism for voting” within

the broader context of the statutory framework, its meaning

is clear such that it “defin[es] a ‘core’ of proscribed conduct

that allows people to understand whether their actions will

result in adverse consequences.” Forbes v. Napolitano, 236

F.3d 1009, 1011 (9th Cir. 2001) (citation omitted). A

“mechanism for voting” thus concerns the process involved

in casting a vote, not registering to vote. See, e.g.,

Stambaugh v. Killian, 398 P.3d 574, 575 (Ariz. 2017)

(“Words in statutes should be read in context in determining

their meaning.”); Scalia and Garner, Reading Law at 167–68

(“Context is a primary determinant of meaning.”).

Finally, we have another reason for rejecting the

plaintiffs’ expansive reading of the Felony Provision. We try

to avoid constitutional problems if there is a reasonable way

to read a statute to avoid them. Cal. Tchrs. Ass’n, 271 F.3d

at 1147 (explaining that “before invalidating a state statute

on its face, a federal court must determine whether the

statute is ‘readily susceptible’ to a narrowing construction”

(quoting Virginia v. Am. Booksellers Ass’n, Inc., 484 U.S.

383, 397 (1988))); see Arizona v. Gomez, 127 P.3d 873, 878

(Ariz. 2006) (“We also construe statutes, when possible, to

avoid constitutional difficulties.”). And in the realm of

criminal law, the rule of lenity tilts the scale in favor of the

criminal defendant and we construe ambiguous criminal

statutes narrowly. See Arizona v. Brown, 177 P.3d 878, 882

(Ariz. Ct. App. 2008) (“[W]e construe criminal statutes that

are unclear or reasonably susceptible to different

ARIZONA ALLIANCE FOR RETIRED AMERICANS V. MAYES 39

interpretations in favor of lenity.”). Here, as explained

earlier, the Felony Provision is readily susceptible to a

narrowing construction and we will not construe its use of

“mechanism for voting” broadly to include voter

registration.

In sum, the district court abused its discretion in

concluding that the plaintiffs would likely prevail in their

challenge of the Felony Provision and granting their motion

for preliminary injunction. Because we hold that the Felony

Provision is not unconstitutionally vague, the plaintiffs have

not met their burden of showing a likelihood of success on

the merits.

CONCLUSION

We hold that the plaintiffs lack standing to challenge the

Cancellation Provision, and that the district court erred in

concluding that the plaintiffs showed a likelihood of success

in their challenge of the Felony Provision. We thus vacate

the district court’s grant of a preliminary injunction and

remand for further proceedings consistent with this opinion.

LEE, Circuit Judge, concurring.

As the majority opinion points out, the plaintiffs lack

Article III standing to challenge Arizona’s Cancellation

Provision. But even if they had standing, they likely would

not prevail on their claim that the National Voter Registration

Act (NVRA) preempts the Cancellation Provision. The

district court here relied on the reasoning in a pair of

decisions from the Seventh Circuit, the only circuit to have

addressed the reach of NVRA’s section 20507(d)(1).

Because I strongly but respectfully disagree with the Seventh

40 ARIZONA ALLIANCE FOR RETIRED AMERICANS V. MAYES

Circuit’s textual analysis and expect that this question will

arise in similar challenges, I write separately to offer a

countervailing reading of the statute.

* * * *

An Arizona voter can, of course, lawfully vote only once.

And that is where the Cancellation Provision comes in: It

tries to reduce the risk of someone voting twice in two

jurisdictions by allowing a county recorder to cancel a

voter’s prior registration if she learns that the voter has

moved to a new jurisdiction. The county recorder can do so

only if she either (1) “receives confirmation from another

county recorder that the person registered has registered to

vote in that other county,” A.R.S. § 16-165(A)(10), or (2)

receives “credible information that a person has registered to

vote in a different county,” at which point she “shall confirm

the person’s voter registration with that other county and, on

confirmation, shall cancel the person’s registration,” A.R.S.

§ 16-165(B).

But in enacting the NVRA, Congress set baseline

procedural requirements that all states must comply with in

removing a registered voter from their voting rolls. Among

other things, the NVRA allows a state to remove a voter if

she has moved to a different jurisdiction. 52 U.S.C.

§ 20507(d)(1). There are two ways a county can confirm

that the voter has moved under the NVRA: (1) the voter can

“confirm[] in writing that [she] has changed residence to a

place outside the registrar’s jurisdiction,” or (2) the county

may remove a voter who has not recently voted and does not

respond after receiving notice from the state. Id.

§ 20507(d)(1)(A), (B).

Relying heavily on two Seventh Circuit decisions

relating to Indiana state law—Common Cause Indiana v.

ARIZONA ALLIANCE FOR RETIRED AMERICANS V. MAYES 41

Lawson, 937 F.3d 944 (7th Cir. 2019) and League of Women

Voters of Indiana, Inc. v. Sullivan, 5 F.4th 714 (7th Cir.

2021)—the district court held that Arizona’s Cancellation

Provision conflicts with the NVRA. It held that the NVRA’s

requirement that a voter must “confirm[] in writing that [she]

has changed residence to a place outside the registrar’s

jurisdiction” creates a two-step process for confirming that

someone has moved: first, when a state receives the initial

information that a voter may have moved, it must reach out

to the voter; then second, the voter must confirm that she has

indeed moved. According to the district court, only then can

the county recorder remove that voter from the voting roll of

the prior county where she had lived.

The Seventh Circuit—and the district court here—

hinged their argument on the word “confirm” in the NVRA:

“A plain-meaning reading of the NVRA dictates that the

states need to ‘confirm’ something—in this instance the

initial information [about a change in residence] they

received. It stretches the meaning of ‘confirm’ past its limits

to ignore its key feature of corroborating or verifying a prior

piece [of] knowledge.” Common Cause, 937 F.3d at 962

(emphasis added). In other words, the Seventh Circuit

believed that the word “confirm” creates a two-step process

in which a state (or county) needs to confirm the “initial

information” it receives about a change in residence.

The district court’s (and the Seventh Circuit’s) reading of

the NVRA is highly questionable both textually and

structurally. The NVRA says nothing about a “state”

confirming any “initial information” it receives about a

change in residence. Rather, it just says that “the registrant

[i.e., the voter] confirms in writing that [she] has changed

residence to a place outside the registrar’s jurisdiction.” 52

U.S.C. § 20507(d)(1)(A) (emphasis added). So it is the

42 ARIZONA ALLIANCE FOR RETIRED AMERICANS V. MAYES

voter—not the state—that is confirming the fact that she has

moved. Compare id. (“the registrant confirms in writing”

(emphasis added)) with Common Cause, 937 F.3d at 962

(“the NVRA then requires that the state . . . ‘confirm’ with

the registrant before removing the person from the rolls”

(emphasis added)).

And how does a voter “confirm[] in writing that [she] has

changed residence to a place outside the registrar’s

jurisdiction”? One way is by registering to vote in a new

county and affirming under the penalty of perjury that she

now lives in that new jurisdiction. Put another way, the very

act of filling out a form to register in another county is by

itself a written confirmation of the fact that a voter has

changed residence—just as Arizona’s Cancellation

Provision provides. The dissent argues that this reading is

“unmoored from the statutory text.” Dissent at 68. But

filling out a new voting registration form in a new county

obviously can be a “confirm[ation] in writing that [the voter]

has changed residence.” 52 U.S.C. § 20507(d)(1)(A).

Indeed, the reason why a voter would fill out a new voting

registration form is to alert the county that she has moved

and now lives in a new residence—i.e., to “confirm in

writing that [she] has changed residence.” This type of

confirmation by citizens is common. For example, someone

who buys a car from a dealer must submit a new car

registration form to the DMV. And by filing out the DMV

registration form, the person has confirmed in writing that

she is the owner of a new car.

Nothing in the text of the NVRA requires the county to

send a separate notice to the voter—and then await a reply

from that voter—to ensure that the voter really meant to say

that she moved when she registered in a different county.

The Seventh Circuit divined this two-step notice process

ARIZONA ALLIANCE FOR RETIRED AMERICANS V. MAYES 43

solely from the word “confirm.” That single word cannot

bear the load of an intricate two-step statutory scheme that

the district court and the Seventh Circuit impose on it.1

The district court also reasoned that Arizona’s

Cancellation Provision conflicts with the NVRA because a

“county recorder’s confirmation with another county

recorder [that a voter has moved] is similarly insufficient to

constitute confirmation from the registrant under the

NVRA.” But the “confirmation from the registrant” about a

new residence has already occurred when the voter signed a

voting registration form in a new jurisdiction. The logistics

of one county recorder—whose job is to keep track of voting

registration—contacting another county recorder does not

change the fact that the voter already confirmed in writing

that she moved to a new county.

We also know that the NVRA does not establish a two-

step confirmation process under § 20507(d)(1)(A) because it

says nothing about it—but the statute does lay out a two-step

confirmation process for a different scenario under

§ 20507(d)(1)(B). As noted earlier, § 20507(d)(1)(B)

establishes an alternative way for a state to remove a voter

1

The Seventh Circuit later doubled down on its reading of the NVRA

in League of Women Voters, and went even further by saying that under

§ 20507(d)(1)(A) a “state may not remove a voter from its voter rolls

without . . . receiving a direct communication from the voter that she

wishes to be removed.” 5 F. 4th at 723. But there is nothing in

§ 20507(d)(1)(A) that requires a voter to say that she “wishes to be

removed.” It only says that a voter must “confirm[] in writing” that she

has “changed residence” to a new jurisdiction. There is a separate

provision in the NVRA in which a voter can request that she be removed

from the voting rolls. 52 U.S.C. § 20507(a)(3)(A). In contrast,

§ 20507(d)(1)(A) allows the removal of a person if she has moved and

registered in a new jurisdiction.

44 ARIZONA ALLIANCE FOR RETIRED AMERICANS V. MAYES

from the voting rolls: if a voter has not recently voted and

does not respond to a notice from the state, that person can

be removed. The statute outlines how the notice-and-

confirmation process works for removing a voter under this

method—the state must send a “postage prepaid and pre-

addressed return card” “by forwardable mail” under a set

timeline. § 20507(d)(2).

The dissent relies on this different statutory provision

(for removing voters who have not voted recently) to argue

that the state must also comply with this two-step notice

process for the provision at issue involving voters who have

moved and registered to vote in a new county. Dissent at

65–66. But the statutory provision for removing voters who

have registered to vote elsewhere says nothing about a two-

step process. If Congress wanted a two-step confirmation

process for removing voters under § 20507(d)(1)(A) (for

voters who have registered to vote in a new county), it could

have laid out a process to do so, much like it did in

§ 20507(d)(1)(B) (for voters who have not voted recently).

That § 20507(d)(1)(A) says nothing about a two-step

process is telling, and we should not concoct a confirmation

process when Congress has not uttered a word about it. See

Lamie v. United States Trustee, 540 U.S. 526, 537 (2004)

(explaining that it is not the role of the courts to “rewrit[e]

rules that Congress has affirmatively and specifically

enacted”) (citation omitted).2

2

YCRC points out that the Federal Election Commission’s guidance

states that registration in another state can serve as confirmation of a

change of address. See Implementing the National Voter Registration

Act of 1993: Requirements, Issues, Approaches, and Examples at 5-7 to

5-8 (Jan. 1, 1994). But there is no need to look at FEC guidance because

the statutory text forecloses the plaintiffs’ position.

ARIZONA ALLIANCE FOR RETIRED AMERICANS V. MAYES 45

Indeed, it makes sense why Congress would want

additional protections—through a two-step notice process—

for voters who have not voted recently. Merely not voting

recently does not signify that the voter will not vote in that

county in the future. Perhaps that voter was too busy to vote

or did not support any of the candidates in the last election

but she may want to vote in the next election. In contrast, if

a voter moves and registers to vote in a new county, that is

confirmation that the voter will not—and cannot—vote in

the old county where she no longer lives.

Another provision of the NVRA also weighs against

reading into that statute a two-step confirmation process for

removing a voter who has confirmed a change of residence

through a new voting registration. That is because a separate

provision of the NVRA mandates that, unless an individual

explicitly states otherwise, “[a]ny change of address form

submitted in accordance with State law for purposes of a

State motor vehicle driver’s license shall serve as

notification of a change of address for voter registration.”

52 U.S.C. § 20504(d). The NVRA then directs state officials

to treat a driver’s license application as “updating any

previous voter registration by the applicant.” § 20504(a)(2).

So if a change of address form submitted for purposes of a

driver’s license can serve as notification of a change of

address for voting purposes, then a new voting registration

also can.

To be clear, § 20507(d)(1)(A) does not set up a toothless

regime in which states or counties can remove willy-nilly

any voter it suspects of having moved. A state cannot, for

example, rely on a third-party database to remove a voter,

like what Indiana did in Common Cause by using a “third-

party database known as Crosscheck, which aggregates voter

data from multiple states to identify potential duplicate voter

46 ARIZONA ALLIANCE FOR RETIRED AMERICANS V. MAYES

registrations.” Common Cause, 937 F.3d at 948. In such a

case, there has been no written confirmation by the voter that

she has moved. But Arizona’s law meets the NVRA’s

written confirmation requirement because the county

recorder—whose job is to maintain voting registration

records—will have received the new voting registration

form by the voter confirming in writing that she has moved

to the new jurisdiction. A.R.S. § 16-165(A), (B). So,

contrary to the reasoning of the Seventh Circuit’s NVRA

decisions and the district court’s reliance on them, there is

no conflict between the NVRA and Arizona’s Cancellation

Provision. And the plaintiffs’ challenge to the Cancellation

Provision would fail even on the merits.

NGUYEN, Circuit Judge, dissenting in part:

I strongly dissent from the majority’s holding that

plaintiffs lack standing to challenge the Cancellation

Provision.1 The majority’s deeply flawed analysis

improperly conflates standing with the merits; usurps the

district court’s role as factfinder by raising and resolving a

standing issue for the first time on appeal; ignores plaintiffs’

actual evidence; and confuses a third-party standing injury

with the direct organizational injury here. Worse still, the

majority erroneously overrules several cases as

irreconcilable with FDA v. Alliance for Hippocratic

Medicine, 602 U.S. 367, 395–96 (2024), which breaks no

new ground on the standing doctrine.

The district court correctly determined, in line with the

Seventh Circuit’s analysis of a similar law, that the

1

As for the Felony Provision, I concur in the result.

ARIZONA ALLIANCE FOR RETIRED AMERICANS V. MAYES 47

Cancellation Provision likely violates the National Voter

Registration Act (“NVRA”). I would therefore affirm the

district court’s injunction as to the Cancellation Provision.

I.

A.

According to the majority, the standing analysis turns on

Hippocratic Medicine overruling several of our cases

applying Havens Realty Corp. v. Coleman, 455 U.S. 363

(1982). But Hippocratic Medicine, which devoted little

more than a page to discussing Havens Realty, merely

“applied traditional standing principles to an organizational

plaintiff,” Maj. Op. at 21, as did Havens Realty itself, see

455 U.S. at 378 (conducting “the same [standing] inquiry as

in the case of an individual”). And it was Havens Realty—

not Hippocratic Medicine—which established that a mere

“setback to the organization’s abstract social interests” is

insufficient to confer standing. Id. at 379. Hippocratic

Medicine is hardly a sea change in the law of organizational

standing.

The majority mischaracterizes our precedent interpreting

Havens Realty as creating “a two-part test” that “merely”

requires a showing that “a challenged policy (1) frustrated

the organization’s mission or goal, and (2) required the

organization to spend money or divert resources in

response.” Maj. Op. at 16. No Ninth Circuit precedent

describes Havens Realty as a two-part test. While we have

acknowledged that standing can be based on an

organization’s expenditure of resources to address conduct

that frustrates its purpose—as did Havens Realty itself, see

455 U.S. at 379 (finding plaintiff sufficiently established

standing by alleging that it “devote[d] significant resources

to identify and counteract . . . racially discriminatory

48 ARIZONA ALLIANCE FOR RETIRED AMERICANS V. MAYES

steering practices” that “frustrated . . . its efforts to assist

equal access to housing through counseling and other

referral services”)—we have been careful to explain that

these circumstances alone are not sufficient and that caveats

apply.

As the majority acknowledges, “[w]e have often said that

Havens Realty does not allow organizations to vindicate

abstract interests or spend their way into Article III

standing.” Maj. Op. at 17. So then how is our case law

incorrect? The majority doesn’t say. Although an

organization’s “mission” may be nothing more than “broad

aspirational goals,” id. at 17 (quoting Nielsen v. Thornell,

101 F.4th 1164, 1170 (9th Cir. 2024) (opinion of Lee, J.)),

there is usually substantial overlap between an

organization’s goals and its “core business activities,”

Hippocratic Med., 602 U.S. at 395. See, e.g., Fair Hous. of

Marin v. Combs, 285 F.3d 899, 902–05 (9th Cir. 2002)

(finding “frustration of mission” from injury to the plaintiff

organization’s ability to provide “activities” combatting

housing discrimination).

Even if the majority is right that some of our decisions

were “less clear” and provided “no detailed analysis” about

the factual basis for standing, Maj. Op. at 17 (quoting

Nielsen, 101 F.4th at 1181 (Collins, J., dissenting)), that does

not make those decisions “clearly irreconcilable with

Hippocratic Medicine,” id. at 7.

B.

By misreading our case law, the majority erects new

barriers to the courthouse for organizations that are directly

injured by legislation. These restrictions find no support in

Hippocratic Medicine or any other case. Instead, the

ARIZONA ALLIANCE FOR RETIRED AMERICANS V. MAYES 49

majority grafts third-party standing principles onto a case of

first-party standing.

According to the majority, the causation element of

standing “may be harder to meet” for organizational

plaintiffs. Id. at 14. That is true only when organizations

seek to vindicate the rights of others. “Claims premised on

the government’s treatment of a third-party must satisfy . . .

stringent constitutional standing requirements.” Kyung Park

v. Holder, 572 F.3d 619, 625 (9th Cir. 2009) (quoting Shanks

v. Dressel, 540 F.3d 1082, 1090 n.9 (9th Cir. 2008)). In such

cases, “much more is needed” to show causation and

redressability because these elements’ existence “depends

on the unfettered choices made by independent actors not

before the courts.” Lujan v. Defs. of Wildlife, 504 U.S. 555,

562 (1992) (quoting ASARCO Inc. v. Kadish, 490 U.S. 605,

615 (1989) (opinion of Kennedy, J.)).

But this case involves first-party standing. See

Hippocratic Med., 602 U.S. at 393 (“Under this Court’s

precedents, organizations may have standing ‘to sue on their

own behalf for injuries they have sustained.’” (quoting

Havens Realty, 455 U.S. at 379 n.19)). The majority is

correct that causation normally is “easy” to show when an

individual plaintiff is directly injured by the challenged law,

because the plaintiff need not speculate about what actions

it will take absent relief. Maj. Op. at 14. The analysis is the

same for an organizational plaintiff. See, e.g., Havens

Realty, 455 U.S. at 379 (finding “no question that the

organization has suffered injury in fact” because the

defendant’s policy brought “concrete and demonstrable

injury to the organization’s activities”); see also 13A Charles

Alan Wright et al., Federal Practice and Procedure

§ 3531.9.5, Westlaw (database updated June 2024) (“Injury

to an organization itself may involve matters no different

50 ARIZONA ALLIANCE FOR RETIRED AMERICANS V. MAYES

than injury to any person, real or abstract. Standing to

protect against such injury is easily recognized.”).

Similarly, the majority wrongly asserts that an

organization’s standing requires more scrutiny than that of

individual plaintiffs. See Maj. Op. at 22 (holding that “we

must scrutinize the harm an organization asserts” because

“Hippocratic Medicine clarified that it is tougher for a

plaintiff to establish causation than some of our precedents

suggested”). Tellingly, the majority relies on the portion of

Hippocratic Medicine discussing third-party standing

principles rather than the portion discussing Havens Realty.

See id. (citing 602 U.S. at 382–83). The Supreme Court has

repeatedly explained, however, that the first-party standing

analysis is the same for organizations as it is for individuals.

See Havens Realty, 455 U.S. at 378; Hippocratic Med., 602

U.S. at 394 (“Like an individual, an organization may not

establish standing simply based on the ‘intensity of the

litigant’s interest’ or because of strong opposition to the

government’s conduct . . . .” (quoting Valley Forge

Christian Coll. v. Ams. United for Separation of Church &

State, Inc., 454 U.S. 464, 486 (1982))).

Ultimately, the majority’s focus on overruling our

standing precedent is a distraction. There is no reason to

consider the issue because plaintiffs’ standing is consistent

with Hippocratic Medicine. Plaintiffs do not seek to

vindicate abstract social interests; the Cancellation Provision

“directly affect[s] and interfere[s] with” their “core business

activities.” Hippocratic Med., 602 U.S. at 395.

ARIZONA ALLIANCE FOR RETIRED AMERICANS V. MAYES 51

II.

A.

The majority’s standing conclusion rests on its

disagreement with plaintiffs’ statutory interpretation. See

Maj. Op. at 24–25 (rejecting plaintiffs’ “implausible reading

of the Cancellation Provision”). Even if plaintiffs misread

the Cancellation Provision—and they do not—that is a

merits question. “[T]he Supreme Court has cautioned that

standing ‘in no way depends on the merits.’” Arizona v.

Yellen, 34 F.4th 841, 849 (9th Cir. 2022) (quoting Warth v.

Seldin, 422 U.S. 490, 500 (1975)); see Fed. Election

Comm’n v. Cruz, 596 U.S. 289, 298 (2022) (“For standing

purposes, we accept as valid the merits of [the plaintiffs’]

legal claims . . . .”); E. Bay Sanctuary Covenant v. Biden

(“E. Bay Sanctuary Covenant II”), 993 F.3d 640, 665 (9th

Cir. 2021) (“[A] plaintiff can have standing despite losing on

the merits.”).

“It is firmly established” that plaintiffs’ statutory

interpretation need only be “arguable” to serve as a basis for

their standing. Steel Co. v. Citizens for a Better Env’t, 523

U.S. 83, 89 (1998). Federal courts “[have] jurisdiction if ‘the

right of the [plaintiffs] to recover under their complaint will

be sustained if the Constitution and laws . . . are given one

construction and will be defeated if they are given another.’”

Id. (quoting Bell v. Hood, 327 U.S. 678, 685 (1946)). Only

where a claim “clearly appears to be immaterial and made

solely for the purpose of obtaining jurisdiction or . . . is

wholly insubstantial and frivolous” may we dismiss the suit

on standing grounds. Id. (quoting Bell, 327 U.S. at 682–83).

In Peace Ranch, LLC v. Bonta, for example, we

discussed the “‘Alice in Wonderland air’ about the parties’

arguments” where, as here, the plaintiffs and government

52 ARIZONA ALLIANCE FOR RETIRED AMERICANS V. MAYES

defendant disputed a statute’s applicability in the context of

a standing challenge—the plaintiffs arguing it did apply and

the government arguing it did not—despite these positions

being antithetical to the parties’ interests if the court upheld

the statute. 93 F.4th 482, 489 (9th Cir. 2024) (quoting Cruz,

596 U.S. at 299). There was “no need to go ‘further down

[the] rabbit hole’” of whether the statute applied, we

explained, because the inquiry would “unavoidably tangle

standing with the merits.” Id. (quoting Cruz, 596 U.S. at

301); see also E. Bay Sanctuary Covenant II, 993 F.3d at 665

(distinguishing the actual or imminent “legally protected

interest” from “an interest protected by statute,” thereby

“prevent[ing] Article III standing requirements from

collapsing into the merits of a plaintiff’s claim”).

Here, plaintiffs’ statutory interpretation is neither

insubstantial nor frivolous. Under the Cancellation

Provision, “[i]f the county recorder receives credible

information that a person has registered to vote in a different

county, the county recorder shall confirm the person’s voter

registration with that other county and, on confirmation,

shall cancel the person’s registration.” Ariz. Rev. Stat. Ann.

§ 16-165(B). Plaintiffs’ NVRA claim turns on the

permissible sources of “credible information.” Plaintiffs’

concern is that, contrary to the NVRA, the Cancellation

Provision enables nongovernmental actors to improperly

disenfranchise voters by notifying the county recorder in a

voter’s new residence that the voter has moved to a former

residence.2 On its face, the Cancellation Provision requires

2

While third parties may attempt to purge registrations maliciously with

the intent of disenfranchising certain types of voters, that need not be the

case. Indeed, the nongovernmental actors may not even be human. See

ARIZONA ALLIANCE FOR RETIRED AMERICANS V. MAYES 53

only that the county recorder confirm that the voter is

registered in another county before canceling the voter’s

registration; there is no requirement to determine which

registration was first in time or to contact the voter in

question. Thus, if a voter forgets to affirmatively cancel

registration at a former residence, the county recorder will

confirm the outdated registration and duly cancel the voter’s

most recent and legitimate registration—not by mistake, as

the majority suggests, see Maj. Op. at 25–26—but through

the normal operation of state law.3

Arizona’s attorney general—the only defendant

opposing the district court’s injunction—and intervenor

Yuma County Republican Committee (“YCRC”) both agree

with plaintiffs’ statutory interpretation.4 They assert that

“[i]f the county recorders were to ignore credible

information . . . from any source other than another county

recorder (or other election official), they would be

knowingly and willfully disregarding th[eir] duty to certify

Common Cause Ind. v. Lawson, 937 F.3d 944, 948 (7th Cir. 2019)

(describing Indiana’s use of “a third-party database” that “aggregates

voter data from multiple states to identify potential duplicate voter

registrations”).

3

Even if the Cancellation Provision did not permit registrars to cancel

the newer of two registrations, as the majority finds, plaintiffs maintain

that it “would still violate the NVRA” because it permits cancellation

without notice to the voter.

4

Plaintiffs sued Arizona’s attorney general, secretary of state, and

county recorders. The parties stipulated that the county recorders were

nominal parties who would “take no position on the merits” or “oppose

[the] motion for preliminary injunction.” The secretary of state also

requested status as a nominal party, and the district court treated her as

such, leaving the attorney general as the only defendant opposing

injunctive relief. In addition, YCRC intervened to defend the state laws.

54 ARIZONA ALLIANCE FOR RETIRED AMERICANS V. MAYES

that the voter lists are accurate.” Even Arizona’s secretary

of state, despite disagreeing with plaintiffs’ statutory

interpretation,5 acknowledges that the Cancellation

Provision “could be interpreted differently.”

The majority purports to interpret a statute, but then fails

to engage with the statutory text. The majority insists that

the statute requires cancellation of “the old registration” if

“the voter ‘has registered’ in a new county,” Maj. Op. at 25

(quoting Ariz. Rev. Stat. Ann. § 16-165(B)), but the majority

does not divine this temporal relationship from the text,

which says nothing about an “old” and “new” registration.

Rather, the majority relies on other statutes that address

different situations and contain materially different

language. See id. at 25 n.3 (discussing Arizona statutes that

expressly apply to “new” registrations).

Ultimately, it doesn’t matter that the majority’s

conclusory dismissal of the merits is wrong. It is enough,

for standing purposes, that plaintiffs’ statutory interpretation

is at least arguable. The majority errs by requiring more.

B.

The majority also wrongly dismisses plaintiffs’

imminent injury as “speculative,” Maj. Op. at 24, and

“fanciful,” id. at 26. In doing so, the majority improperly

assumes the role of factfinder and focuses on the wrong

injury.

5

The Secretary of State interprets the Cancellation Provision to “codify[]

existing voter registration procedures” such that county recorders “would

not initiate voter registration cancellations based solely on information

from non-governmental third parties, because such third-party

information . . . does not constitute ‘credible information.’”

ARIZONA ALLIANCE FOR RETIRED AMERICANS V. MAYES 55

1.

In the district court, no party challenged plaintiffs’

standing to claim that the Cancellation Provision violates the

NVRA for the reasons relied upon by the majority.6

Although we must raise doubts about our subject matter

jurisdiction even when the parties do not, see LA All. for

Human Rts. v. County of Los Angeles, 14 F.4th 947, 956 (9th

Cir. 2021), we should not resolve such jurisdictional

concerns ourselves when they turn on factual findings

appropriately made by the district court. See Lewis v. Cont’l

Bank Corp., 494 U.S. 472, 481 (1990) (“[T]he evaluation

of . . . factual contentions bearing upon Article III

jurisdiction should not be made by this Court in the first

instance.”); see also California v. Texas, 593 U.S. 659, 683

(2021) (Thomas, J., concurring) (explaining that “a court of

review, not of first view,” should refrain from addressing a

6

The Attorney General argued that plaintiffs lacked standing because the

Cancellation Provision merely codified existing practices that plaintiffs

did not challenge. The district court rejected the Attorney General’s

premise, finding that the statute “is not at all identical to the [Elections

Procedure Manual].”

YCRC argued that plaintiffs lacked standing to assert their due

process challenge to the Cancellation Provision, an argument the district

court did not address because it granted relief on plaintiffs’ NVRA claim.

Standing is assessed on a claim-by-claim basis, see TransUnion LLC v.

Ramirez, 594 U.S. 413, 431 (2021), and the two claims involve different

injuries. The alleged due process injury is to voters; YCRC argued that

it was speculative “that the Cancellation Provision might result in a

person’s current voter registration being cancelled.” The alleged NVRA

violation injures plaintiffs directly by forcing them to change their

existing voter outreach programs to address the Cancellation Provision,

as I detail below. In the district court, YCRC did not dispute plaintiffs’

assertion that they would expend resources for that purpose, so it is

unsurprising that YCRC didn’t challenge plaintiffs’ standing to assert an

NVRA claim until we invited them to do so.

56 ARIZONA ALLIANCE FOR RETIRED AMERICANS V. MAYES

novel standing argument that “the lower courts did not

address . . . in any detail” (quoting Brownback v. King, 592

U.S. 209, 215 n.4 (2021))); Cottonwood Env’t L. Ctr. v.

Edwards, 86 F.4th 1255, 1265 (9th Cir. 2023) (citing our

“standard practice” of “remand[ing] to the district court for

a decision in the first instance without requiring any special

justification for so doing” (quoting Detrich v. Ryan, 740 F.3d

1237, 1248 (9th Cir. 2013) (en banc) (lead opinion))).

We routinely remand for development of jurisdictional

facts when jurisdiction is unclear. See, e.g., Hajro v. USCIS,

811 F.3d 1086, 1102 (9th Cir. 2016) (holding that where “the

factual record [was] not sufficiently developed” for the

district court “to determine whether [a litigant] has standing

to bring a . . . claim,” the remedy is to “remand for further

fact finding”); Rivas v. Napolitano, 714 F.3d 1108, 1112–13

(9th Cir. 2013) (remanding “for the district court to

determine in the first instance whether the court has

jurisdiction” because “[t]he record on appeal [was]

insufficient for us to determine whether jurisdiction exists”);

Aloe Vera of Am., Inc. v. United States, 580 F.3d 867, 873

(9th Cir. 2009) (ordering “remand . . . to the district court so

that it can determine in the first instance whether there is

sufficient evidence to establish subject matter jurisdiction”

where “[t]he pleadings alone [were] inadequate to make this

determination”).

In Washington Local Lodge No. 104, two district courts

granted preliminary injunctions, and on appeal we had the

parties brief a jurisdictional issue that we raised sua sponte.

See Wash. Loc. Lodge No. 104 of Int’l Bhd. of Boilermakers

v. Int’l Bhd. of Boilermakers, 621 F.2d 1032, 1033–34 (9th

Cir. 1980). Because the district courts had not considered

“[t]he crucial jurisdictional question,” the plaintiffs’

justiciability argument lacked “factual substantiation.” Id. at

ARIZONA ALLIANCE FOR RETIRED AMERICANS V. MAYES 57

1034. The defendant argued that the plaintiffs’ jurisdictional

allegations were “speculative,” but we had “no way to

evaluate the substance of [the plaintiffs’ jurisdictional]

assertion.” Id. Therefore, we held that “we must remand to

the district courts” to “make findings of fact” and

“determin[e] whether federal jurisdiction exists.” Id. at

1033–34; see also LA All. for Human Rts., 14 F.4th at 952

(vacating injunction and remanding for further proceedings

where the plaintiffs “failed to put forth evidence to establish

standing” and we first raised the jurisdictional issue on

appeal).

The majority takes the opposite course. Rather than

deferring to any factual findings that the district court might

make, see, e.g., Partington v. Gedan, 961 F.2d 852, 864 (9th

Cir. 1992) (“We accept the district court’s factual findings

supporting the exercise of jurisdiction unless the findings are

clearly erroneous.”), the majority makes its own factual

findings. To state the obvious, that is not an appellate court’s

role.

The unfairness of this approach is particularly acute here,

where plaintiffs had neither reason nor opportunity to

present evidence on the standing issue raised by the majority.

Plaintiffs had no opportunity to make a record regarding, for

example, their core activities, whether the Arizona Voter

Information Database (“AVID”) adequately prevents older

Arizona registrations from cancelling newer ones, and

whether there is any mechanism to prevent older, out-of-

state registrations from cancelling newer, in-state ones. The

58 ARIZONA ALLIANCE FOR RETIRED AMERICANS V. MAYES

majority makes improper factual findings on the first two

issues and ignores the third altogether.7

2.

The majority finds that plaintiffs “can . . . continue their

core activities” unimpeded with the Cancellation Provision

in effect. Maj. Op. at 24. That is directly contrary to

plaintiffs’ sworn declarations.

Arizona Alliance for Retired Americans (“AARA”) will

need to spend more time advising Arizonans about the

process of casting their ballots because it “will not only need

to ask citizens if they are registered to vote, but also whether

they have any previous addresses, and whether they might

still be registered to vote there.” AARA “does not currently

expend any resources toward identifying voters who have

multiple registrations or helping voters cancel their other

voter registrations.” The Cancellation Provision will require

it to divert scarce resources to these activities, such as by

“creating a training program on how to cancel an out-of-state

or out-of-county voter registration.” These expenditures

“would otherwise be directed toward traditional voter

mobilization efforts” like helping voters register and vote.

“Voto Latino will need to divert additional time and

resources to monitor for attempted voter purges in Arizona”

because of the Cancellation Provision, which will “make [it]

easier for third parties to engage in coordinated efforts to

target Voto Latino’s core constituency . . . for specious

reasons.” “[T]his tactic has taken place in other states,” and

7

AVID does not track out-of-state registrations. It focuses on voters

“moving to a different county” within Arizona and attempts to ensure

that they “only have one active voter registration record in Arizona at

any given time.”

ARIZONA ALLIANCE FOR RETIRED AMERICANS V. MAYES 59

Voto Latino “is currently engaged in efforts to prevent it.”

Voto Latino also “will be required to launch an educational

campaign informing its constituents about [the Cancellation

Provision] and emphasizing the need for them to check

whether they have multiple voter registrations or active early

voting list memberships.” And like AARA, Voto Latino

“will . . . need to divert its resources, including staff and

volunteer time, to check whether its constituents have voter

registrations in multiple states or Arizona counties and help

them to cancel their non-active registrations.”

The Cancellation Provision “will require Priorities

[USA] to provide more grant funds to in-state partner

organizations so that [it] can provide education and training”

about the potential for voters to be purged from voter

registration rolls without notice. In addition, Priorities USA

“will spend time and funds on making voters aware that they

need to determine whether they have multiple voter

registrations and that they should cancel any prior

registrations.” Priorities USA would spend these resources

“on true voter mobilization activities” but for the

Cancellation Provision.

The majority finds that plaintiffs’ core activities are

“register[ing] and educat[ing] voters,” Maj. Op. at 24, and

then dismisses these activities as “mere issue advocacy,” id.

at 27. How is registering voters and educating them about

the voting process “issue advocacy”? For what issue are

plaintiffs advocating? Would the majority describe a high

school civics class as “political indoctrination”? The

majority blatantly mischaracterizes the nature of plaintiffs’

activities.

Even more disturbing, however, is the majority’s

extraordinarily narrow view of what it means for a law to

60 ARIZONA ALLIANCE FOR RETIRED AMERICANS V. MAYES

“directly affect[] and interfere[] with” plaintiffs’ core

activities. Hippocratic Med., 602 U.S. at 395. The majority

holds that plaintiffs lack standing because the Cancellation

Provision does not prevent them from doing the exact same

things in the exact same ways that they have always done.

Virtually no organization could meet that test.

While plaintiffs could continue to register and educate

voters without changing their practices in response to the

Cancellation Provision, the registrations would be

inadequate, and the education incomplete, under plaintiffs’

view of the law. Registering to vote in Arizona does a person

little good if the registration is subject to cancellation

without notice because the person never knew to cancel a

prior registration. When legislation renders an

organization’s core business activities inadequate or

incomplete, and the organization must expend resources

modifying the activities to remedy the deficiency, then the

legislation plainly affects and interferes with the activities.

Under the majority’s reasoning, Havens Realty would

have come out the other way. HOME, a housing counseling

organization, sued Havens Realty, which owned and

operated apartment complexes, over Havens’ racial steering

practices. See id. The Supreme Court held that HOME had

standing to sue Havens under the Fair Housing Act because

“Havens had provided HOME’s black employees false

information about apartment availability,” which

“perceptibly impaired HOME’s ability to provide

counseling and referral services for low- and moderate-

income homeseekers.” Id. (quoting Havens Realty, 455 U.S.

at 379).

The majority here, however, would have barred HOME

from the courthouse. After all, Havens’ Fair Housing Act

ARIZONA ALLIANCE FOR RETIRED AMERICANS V. MAYES 61

violations did not prevent HOMES from continuing its core

activities of counseling and referring homeseekers to

available housing. To be sure, the housing information was

incomplete because Havens lied about vacancies at its

properties, but HOME could simply have made do with

Havens’ racism and provided its clients with whatever

listings it had. By trying to provide its clients complete and

accurate information, HOME was merely engaging in what

the majority would characterize as “issue advocacy.”

Fortunately, that was not the law in 1982. Unfortunately, it

is now the law of the Ninth Circuit.

3.

We found organizational standing under materially

identical circumstances in East Bay Sanctuary Covenant v.

Trump (“East Bay Sanctuary Covenant I”), 932 F.3d 742

(9th Cir. 2018), a case cited by plaintiffs that the majority

ignores. There, four legal services organizations

representing asylum-seekers sued to prevent enforcement of

a rule that categorically barred asylum for migrants who

crossed the southern border between ports of entry. See id.

at 761–62. The plaintiffs argued, among other things, that

the rule conflicted with the Immigration and Naturalization

Act. See id. The district court enjoined the government from

enforcing the rule. See id.

We held that the plaintiffs had organizational standing

because the challenged rule would require “a diversion of

resources, independent of expenses for [the] litigation, from

their other initiatives.” Id. at 766. Through declarations, the

plaintiffs established that if the rule took effect, they “would

be forced at the client intake stage to ‘conduct detailed

screenings for alternative forms of relief to facilitate referrals

or other forms of assistance’” and, because alternative forms

62 ARIZONA ALLIANCE FOR RETIRED AMERICANS V. MAYES

of relief “do not allow a principal applicant to file a

derivative application for family members,” the plaintiffs

would “have to submit a greater number of applications for

family-unit clients.” Id. The plaintiffs also planned “to

undertake[] education and outreach initiatives regarding the

new rule.” Id. We found that the diversion of plaintiffs’

resources to conduct these activities, made necessary by the

rule, was sufficient to establish organizational standing. See

id.

Thus, we held that organizational plaintiffs can show a

diversion of resources—and thereby establish standing—

when, in response to a challenged rule or law, they will spend

more time assessing the needs of each person they serve and

expend additional resources educating the population they

serve. Just as the East Bay plaintiffs needed to spend more

time screening clients for potential alternatives to asylum

relief and filing a greater number of applications for such

relief, plaintiffs here will need to spend more time verifying

whether voters have cancelled registrations at their prior

residences. And just as the East Bay plaintiffs needed to

spend additional resources educating noncitizens about the

new asylum rule, plaintiffs here must do the same to educate

voters about the need to cancel prior registrations. By

ignoring East Bay Sanctuary Covenant I, the majority

creates an intra-circuit split. And it creates an inter-circuit

split as well. See Common Cause Ind., 937 F.3d at 954–55

(holding, under similar circumstances, that organizations

had standing to challenge Indiana voting law as inconsistent

with the NVRA based on a diversion-of-resources theory).

4.

The majority minimizes the likelihood of harm to

plaintiffs by focusing on the wrong injury. Plaintiffs assert,

ARIZONA ALLIANCE FOR RETIRED AMERICANS V. MAYES 63

definitively, that they will divert resources, and they explain

how and why they will do so. The only assumption that

plaintiffs make—an entirely reasonable one—is that voters

do not always affirmatively cancel their former registrations.

Once again, the majority muddles the distinction

between first- and third-party standing, identifying the injury

as: “the Cancellation Provision may cause a county recorder

to cancel the voter’s new registration instead of the old one.”

Maj. Op. at 24. The majority fails to mention the lack of

notice. But these are injuries to the voter. They are relevant

only to plaintiffs’ third-party standing. See Common Cause

Ind., 937 F.3d at 963 (Brennan, J., concurring) (“People

vote, not organizations, so none of the [organizational]

plaintiffs before us may cast a vote in any election.”). The

injury at issue—plaintiffs’ diversion of resources to ensure

that voters cancel prior registrations—is certain to occur if

the Cancellation Provision takes effect.

Because the Cancellation Provision can be interpreted as

plaintiffs fear, it makes no difference whether the current

Arizona election officials adopt that interpretation. Unless a

court prohibits it, nothing stops them from doing so. Voters

may leave their registration status in place through multiple

political administrations, so plaintiffs cannot blithely assume

that no future administration would cancel valid registrations

without notice to the voter based on information from third

parties that the administration deems “credible.” Ariz. Rev.

Stat. Ann. § 16-165(B). Plaintiffs would be remiss not to

divert resources now to minimize the substantial impact that

a less favorable interpretation of the Cancellation Provision

could have and elsewhere has had.

64 ARIZONA ALLIANCE FOR RETIRED AMERICANS V. MAYES

* * *

Plaintiffs have established their organizational standing

to challenge the Cancellation Provision, and the majority is

clearly wrong in holding otherwise.

III.

The district court did not abuse its discretion in

preliminarily enjoining the Cancellation Provision. Because

the majority does not reach this issue,8 I will only briefly

summarize why I would affirm that aspect of the injunction.

To establish their entitlement to injunctive relief,

plaintiffs must show that they are likely to succeed on the

merits and to suffer irreparable harm in the absence of

preliminary relief, and that the balance of equities tips in

their favor. See Winter v. Nat. Res. Def. Council, Inc., 555

U.S. 7, 20 (2008); Porretti v. Dzurenda, 11 F.4th 1037, 1050

(9th Cir. 2021) (“The third and fourth factors of the

preliminary-injunction test—balance of equities and public

interest—merge into one inquiry when the government

opposes a preliminary injunction.”).

A.

Turning to the merits, the NVRA provides that, in

general, “the name of a registrant [i.e., registered voter] may

not be removed from the official list of eligible voters

except . . . at the request of the registrant.” 52 U.S.C.

§ 20507(a)(3)(A). If the voter does not make such a request,

8

Judge Lee’s concurrence explains why he would reverse the district

court if, hypothetically, the majority had jurisdiction to consider the

merits. But see Steel Co., 523 U.S. at 101 (rejecting “a doctrine of

‘hypothetical jurisdiction’ that enables a court to resolve contested

questions of law when its jurisdiction is in doubt”).

ARIZONA ALLIANCE FOR RETIRED AMERICANS V. MAYES 65

election officials may remove her name only due to death,

criminal conviction, mental incapacity, or, as relevant here,

“a change in [her] residence.” Id. § 20507(a)(4)(B); see id.

§ 20507(a)(3)–(4). “A State shall not remove the name of a

registrant . . . on the ground that the registrant has changed

residence unless the registrant” either “confirms in writing”

that she has moved outside the registrar’s jurisdiction or “has

failed to respond” to a notice.9 Id. § 20507(d)(1)(A), (B)(i).

The Cancellation Provision plainly conflicts with the

NVRA because it allows state election officials to cancel a

voter’s registration without input from or notice to the voter.

The NVRA allows states to cancel a voter’s registration due

to a change in residence only pursuant to a state program that

is uniform and nondiscriminatory. Id. § 20507(a)(4)(1),

(b)(1). The Cancellation Provision allows an Arizona

registrar to cancel a voter’s registration pursuant to

information provided by a third party, not pursuant to a state

program, and there is no guarantee that the third party

gathered the information in a uniform and nondiscriminatory

way.

YCRC argues that a voter’s conduct—in particular, a

voter’s registration in another Arizona county—amounts to

a “request of the registrant” to be removed from the list of

eligible voters in her original county. Id. § 20507(a)(3)(A).

Alternatively, YCRC contends that registering in another

county amounts to “confirm[ing] in writing” that the

9

The notice must inform the registrant that her name will be removed

from the list of eligible voters if she does not respond. 52 U.S.C.

§ 20507(d)(2)(A). In lieu of returning the notice card, she can vote in at

least one of the next two federal elections to avoid having her name

purged. See id. § 20507(d)(1)(B)(ii).

66 ARIZONA ALLIANCE FOR RETIRED AMERICANS V. MAYES

registrant has moved outside her original jurisdiction. Id.

§ 20507(d)(1)(A).

But conduct is not a request or a confirmation;

registering in another jurisdiction “is only an action that

allows an inference that the voter is relinquishing her” right

to vote in the original jurisdiction, and “the NVRA requires

more than such an inference.” Common Cause Ind., 937

F.3d at 960. A voter may register to vote in another

jurisdiction where she temporarily resides without intending

to cancel her registration in the original jurisdiction,

particularly if that jurisdiction is her domicile, to which she

intends to return. “While double voting is surely illegal,

having two open voter registrations is a different issue

entirely. In the overwhelming majority of states, it is not

illegal to be registered to vote in two places.” Id. (cleaned

up).

YCRC insists that the Cancellation Provision applies

only to persons with registrations in two Arizona counties

and that Arizona’s voting system ensures that a new Arizona

registration automatically cancels the old. But the

Cancellation Provision is not limited to the intrastate

context. It applies whenever an Arizona county recorder

learns of a voter’s registration “in a different county,” Ariz.

Rev. Stat. Ann. § 16-165(B), which could be a different

county in another state. And even if YCRC were correct

about the Cancellation Provision’s geographic scope, there

would be no need for it if Arizona’s system worked as

perfectly as YCRC supposes. To the extent the law was

designed to correct errors, it violates the NVRA by allowing

for such error correction without the voter’s participation.

Judge Lee argues that “[t]he NVRA says nothing about

a ‘state’ confirming any ‘initial information’ it receives

ARIZONA ALLIANCE FOR RETIRED AMERICANS V. MAYES 67

about a change in residence.” Lee Concurrence at 41

(emphasis omitted). I agree. The “confirmation” at issue in

the NVRA has nothing to do with states receiving

information from third parties about a voter’s registration in

another jurisdiction; rather, it has to do with states inferring

a voter’s intent to be removed from the voter list due to the

state’s suspicion that the voter has moved and the voter’s

repeated failure to vote.

The NVRA provides that “the name of a registrant may

not be removed from the official list of eligible voters” due

to “a change in the residence of the registrant” unless the

state “conduct[s] a general program” that is “in accordance

with subsections (b), (c), and (d)” of § 20507. 52 U.S.C.

§ 20507(a)(3), (4), (4)(B). Under § 20507(b), entitled

“[c]onfirmation of voter registration,” the NVRA provides

that the registrar may only remove the voter’s name after

“[two] or more consecutive general elections” have passed

and, during that time, the voter has neither “notified the

applicable registrar . . . [n]or responded . . . to the notice sent

by the applicable registrar” nor “appeared to vote.” Id.

§ 20507(b)(2)(A)–(B).

Subsection (c) allows states to update a voter’s

registration records without confirmation if the voter moves

within the registrar’s jurisdiction and submits a change-of-

address form to the Postal Service. If the voter moves out of

the registrar’s jurisdiction and submits a change-of-address

form, the registrar must “use[] the notice procedure

described in subsection (d)(2) to confirm the change of

address.” 52 U.S.C. § 20507(c)(1)(B)(ii).

Judge Lee’s interpretation, that “the very act of filling

out a form to register in another county is by itself a written

confirmation of the fact that a voter has changed residence,”

68 ARIZONA ALLIANCE FOR RETIRED AMERICANS V. MAYES

Lee Concurrence at 42, is unmoored from the statutory text.

The NVRA is extremely clear that a voter “confirms” a

changed residence by contacting the registrar at the old

residence or returning the notice. See 52 U.S.C.

§ 20507(b)(2)(A). Contacting the registrar at the new

residence accomplishes neither.

Judge Lee’s interpretation also ignores the legislative

history. The purpose of requiring voter confirmation of a

change of address is “to prohibit selective or discriminatory

purge programs,” including “lists provided by other parties.”

H.R. Rep. No. 103-9, at 15 (1993). Congress described

§ 20507(d)(1)(A) specifically as providing that “[n]o State

may remove the name of a voter from the rolls due to

possible change of address unless the registrant confirms in

writing to have moved out of voting jurisdiction.” H.R. Rep.

No. 103-66, at 21 (1993) (Conf. Rep.) (emphasis added).

Thus, Congress recognized that a registrar may suspect a

voter has moved, perhaps because the voter registered to

vote in another jurisdiction, and Congress prohibited a purge

based solely on that suspicion. The NVRA prohibits the

registrar from acting until the voter confirms the move in

writing or fails to respond to a notice.

In my view, the district court correctly found that

plaintiffs are likely to succeed on the merits of their

challenge to the Cancellation Provision.

B.

The district court did not abuse its discretion in finding

that plaintiffs are likely to suffer irreparable harm absent an

injunction against the Cancellation Provision. As the district

court observed, plaintiffs “must divert resources to combat

the negative effects of the law,” and plaintiffs cannot recover

the lost use of limited resources.

ARIZONA ALLIANCE FOR RETIRED AMERICANS V. MAYES 69

Nor did the district court err in finding that the balance

of equities favors plaintiffs. The district court properly

“weigh[ed], in addition to the harms attendant upon issuance

or nonissuance of an injunction, considerations specific to

election cases and its own institutional procedures.” Purcell

v. Gonzalez, 549 U.S. 1, 4 (2006) (per curiam). “[T]he

Supreme Court in Purcell did not set forth a per se

prohibition against enjoining voting laws on the eve of an

election.” Feldman v. Ariz. Sec’y of State’s Off., 843 F.3d

366, 368 (9th Cir. 2016) (en banc) (emphasis omitted). Here,

most importantly, the district court’s injunction does not

“disrupt long standing state procedures” because it merely

“preserves the status quo prior to the recent legislative

action.” Id. at 368–69 (emphasis omitted).

* * *

Respectfully, I strongly dissent from the majority’s

conclusion that plaintiffs lack standing to challenge the

Cancellation Provision, and I would affirm the district

court’s order enjoining it.