Petition for Writ of Certiorari — Kari Lake, et al., Petitioners v. Adrian Fontes, Arizona Secretary of State, et al.

Supreme Court briefMar 14, 2024

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No. __-_____

In the Supreme Court of the United States

KARI LAKE AND MARK FINCHEM,

Petitioners,

ADRIAN FONTES,

ARIZONA SECRETARY OF STATE, ET AL.,

Respondents.

ON PETITION FOR WRIT OF CERTIORARI

TO THE U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

KURT B. OLSEN

LAWRENCE J. JOSEPH

Olsen Law PC

Counsel of Record

1250 Connecticut Ave. NW 1250 Connecticut Ave. NW

Suite 700

Washington, DC 20036

202-408-7025

202-355-9452

ko@olsenlawpc.com

ljoseph@larryjoseph.com

Counsel for Petitioners

QUESTIONS PRESENTED

As 2022 candidates for Governor and Secretary of

State, petitioners sued Arizona’s Secretary of State

and two counties to challenge whether electronic

voting machines assure a fair and accurate vote under

the Due Process Clause and their rights as candidates

and voters. Petitioners also sought a preliminary

injunction, and six cyber or national-security experts

testified on the voting machines’ unsuitability to

provide a secure and accurate vote. The testimony and

evidence showed actual electronic vote tampering in

prior elections, which the district court disregarded in

finding petitioners’ claims too speculative for Article

III standing, based in part on safeguards the counties

claimed to follow. The Ninth Circuit affirmed citing,

inter alia, Lance v. Coffman, 549 U.S. 437 (2007), for

the lack of particularized injury in voters’ challenges.

New evidence from other litigation and public-record

requests shows defendants made false statements to

the district court regarding the safeguards allegedly

followed to ensure the accuracy of the vote, on which

the district court relied. That enables petitioners to

seek to amend their allegations on standing under 28

U.S.C. §1653 to show a non-speculative likelihood

that the same harms will recur in future elections,

which harms did indeed occur in the 2022 election.

The questions presented are:

1. Whether an Article III case or controversy existed

at all relevant times and still exists.

2. Whether petitioners may amend their allegations

of jurisdiction under §1653 to allege recently

discovered pre-litigation injury.

3. Whether petitioners’ injuries—if moot—are nonetheless capable of repetition, yet evading review.

PARTIES TO THE PROCEEDING

Petitioners are Kari Lake and Mark Finchem,

who were plaintiffs in District Court and appellants

in the Court of Appeals.

Respondents are Adrian Fontes in his official

capacity as Arizona Secretary of State, the Maricopa

County Board of Supervisors, Bill Gates, Clint

Hickman, Jack Sellers, Thomas Galvin, and Steve

Gallardo in their official capacities as members of the

Maricopa County Board of Supervisors, and Rex Scott,

Matt Heinz, Sharon Bronson, Steve Christy, and

Adelita Grijalva in their official capacities as

members of the Pima County Board of Supervisors,

who were defendants in District Court and appellees

in the Court of Appeals. (Secretary Fontes substituted

for his predecessor pursuant to FED. R. APP. P.

43(c)(2).)

RULE 29.6 STATEMENT

Petitioners are natural persons with no parent

companies and no outstanding stock.

STATEMENT OF RELATED CASES

This case arises from and is related to the

following proceedings in the U.S. District Court for

the District of Arizona and the U.S. Court of Appeals

for the Ninth Circuit under S.Ct. Rule 14.1(b)(iii):

• Lake v. Hobbs, No. 2:22-cv-0677-JJT (D. Ariz.

decided Aug. 26, 2022).

• Lake v. Fontes, No. 22-16413 (9th Cir. decided Oct.

16, 2023).

• Lake v. Fontes, Nos. 23-16022, 23-16023 (9th Cir.

docketed Jul. 24, 2023).

Although other cases challenged respondents’ actions

in the 2022 election, no other case relates to this case

within the meaning of Rule 14.1(b)(iii).

iii

TABLE OF CONTENTS

Questions Presented ................................................... i

Parties to the Proceeding ........................................... ii

Rule 29.6 Statement ................................................... ii

Statement of Related Cases ....................................... ii

Appendix .................................................................... vi

Table of Authorities.................................................. vii

Petition for Writ of Certiorari .................................... 1

Opinions Below ........................................................... 1

Jurisdiction ................................................................. 1

Statutory Provisions Involved ................................... 1

Statement of the Case ................................................ 1

I. Legal Background ................................................ 4

A. Standing under Article III ............................ 4

B. Sovereign Immunity and Ex parte Young .... 5

C. Amended Jurisdictional Allegations

under 28 U.S.C. §1653................................... 5

II. Factual Background............................................. 6

A. The record before the district court. ............. 7

1. The complaint’s allegations. ................... 7

2. The preliminary injunction evidence. .... 9

B. Maricopa’s chaotic 2022 election................. 11

C. New evidence of misconduct in prior

elections. ...................................................... 11

III. Procedural Background ..................................... 13

Reasons to Grant the Writ ....................................... 14

I. The district court had and still has

jurisdiction to resolve this action. ..................... 14

A. Petitioners had and still have Article III

standing. ...................................................... 15

1. Petitioners suffer particularized and

concrete injury from Maricopa’s

unlawful election practices. .................. 16

a. This Court can consider new

allegations related to standing. ..... 17

b. Petitioners’ injuries are actual

and imminent, not speculative....... 19

c. Petitioners’ injuries are concrete

and particularized, not abstract

or generalized. ................................ 21

(1) Candidates and political

parties suffer injury. ................ 22

(2) Voters suffer injury. ................. 23

2. Petitioners’ procedural injuries lower

the Article III threshold for

immediacy and redressability. ............. 24

3. Past injuries are evidence of future

injury. .................................................... 24

4. Petitioners’ injuries are traceable to

Maricopa’s and the Secretary’s

actions and redressable in court........... 25

5. Petitioners’ standing covers any way

that Maricopa violated election law. .... 26

a. Article III has no nexus

requirement outside the

Establishment Clause. ................... 26

b. This Court should narrow Lance

to its holding for voter standing

under the Elections Clause. ........... 27

B. This action was and remains ripe. .............. 28

C. This action is not moot. ............................... 29

1. As voters and future candidates,

petitioners still suffer injury

redressable in future elections. ............ 29

2. Even a complaint directed against

only the 2022 election could avoid

mootness as capable of repetition yet

evading review. ..................................... 29

D. There is no “Purcell problem” for future

elections. ...................................................... 30

E. Sovereign immunity poses no barrier. ........ 31

1. The county respondents lack

sovereign immunity. ............................. 31

2. Sovereign immunity does not protect

ongoing violations of federal law. ......... 32

a. State election law is enforceable

under the Elections Clause. ........... 32

b. State election law is enforceable

under §1988(a). ............................... 33

c. State election law informs what

“process” is “due” regarding the

fundamental right to vote. ............. 33

II. This Court should summarily reverse, both

on the original record and a fortiori on the

new evidence under §1653. ................................ 34

A. It is urgent to resolve these issues before

the 2024 election. ......................................... 35

B. The district-court record supports

summary reversal. ....................................... 35

C. New allegations under §1653 a fortiori

support summary reversal. ......................... 36

III. The questions presented are crucial to

ensuring electoral integrity. .............................. 36

A. The fundamental right to vote is

“preservative of all rights,” and only this

Court can secure that right. ........................ 37

B. The Court should commit to taking up

cases alleging electoral improprieties......... 37

Conclusion ................................................................ 38

APPENDIX

Lake v. Fontes, No. 22-16413 (9th Cir. Oct. 16,

2023) ................................................................... 1a

Lake v. Hobbs, No. 2:22-cv-0677-JJT (D. Ariz.

Aug. 26, 2022) .................................................. 10a

U.S. CONST. art. I, § 4............................................. 40a

U.S. CONST. art. II, § 1, cl. 2 .................................. 40a

U.S. CONST. amend. XI ........................................... 40a

U.S. CONST. amend. XIV, §1 .................................. 40a

28 U.S.C. §1653 ...................................................... 40a

42 U.S.C. §1988(a) .................................................. 41a

A.R.S. §16-442 ........................................................ 41a

A.R.S. §16-449 ........................................................ 44a

A.R.S. §16-452 ........................................................ 45a

A.R.S. §16-1004 ...................................................... 46a

A.R.S. §16-1009 ...................................................... 47a

A.R.S. §16-1010 ...................................................... 47a

Amended Compl. (May 4, 2022) ............................. 48a

Declaration of Walter C. Daugherity (June 8,

2022) ............................................................... 113a

Declaration of Benjamin R. Cotton (June 8,

2022) ............................................................... 130a

Hearing Transcript (July 21, 2022) (excerpt)...... 144a

vii

TABLE OF AUTHORITIES

Cases

Alden v. Maine,

527 U.S. 706 (1999) ............................................. 31

Ariz. State Legis. v. Ariz. Indep. Redistricting

Comm'n, 576 U.S. 787 (2015) ............................. 35

Bell Atl. Corp. v. Twombly,

550 U.S. 544 (2007) ............................................. 25

Bennett v. Spear,

520 U.S. 154 (1997) ............................................... 5

Bognet v. Degraffenreid,

141 S.Ct. 2508 (2021) .......................................... 28

Bognet v. Sec’y Pa.,

980 F.3d 336 (3d Cir. 2020) ................................ 28

Bonas v. Town of N. Smithfield,

265 F.3d 69 (1st Cir. 2001) ................................. 23

Campbell-Ewald Co. v. Gomez,

577 U.S. 153 (2016) ............................................. 29

Carney v. Adams,

141 S.Ct. 493 (2020) .............................................. 4

Carson v. Simon,

978 F.3d 1051 (8th Cir. 2020) ....................... 22, 28

City of Waukesha v. EPA,

320 F.3d 228 (D.C. Cir. 2003) ............................. 35

Cleveland Bd. of Educ. v. Loudermill,

470 U.S. 532 (1985) ............................................. 33

Clinton v. City of New York,

524 U.S. 417 (1998) ............................................. 22

Crawford v. Marion County Election Bd.,

553 U.S. 181 (2008) ............................................. 22

viii

Curling v. Raffensperger,

__ F.Supp.3d __, 2023 U.S. Dist. LEXIS

202368 (N.D. Ga. Nov. 10, 2023) .................... 3, 20

Curling v. Raffensperger,

494 F.Supp3d 1264 (N.D. Ga. 2020) ..................... 3

DaimlerChrysler Corp. v. Cuno,

547 U.S. 332 (2006) ........................................ 26-27

Diffenderfer v. Cent. Baptist Church, Inc.,

404 U.S. 412 (1972) ............................................. 30

Dittman v. California,

191 F.3d 1020 (9th Cir. 1999) ............................. 15

Donald J. Trump for President, Inc. v. Sec’y Pa.,

830 F.App’x 377 (3d Cir. 2020) ........................... 28

Duke Power Co. v. Carolina Envtl. Study Grp.,

438 U.S. 59 (1978) .......................................... 26-27

Edelman v. Jordan,

415 U.S. 651 (1974) ............................................. 31

Ex parte Young,

209 U.S. 123 (1908) ........................................ 31-32

FEC v. Akins,

524 U.S. 11 (1998) .................................... 21-22, 24

FEC v. Wisconsin Right to Life, Inc.,

551 U.S. 449 (2007) ............................................. 30

Friends of the Earth, Inc. v. Laidlaw Envtl. Servs.

(TOC), Inc., 528 U.S. 167 (2000) ................... 29-30

Fulani v. League of Women Voters Educ. Fund,

882 F.2d 621 (2d Cir. 1989) ................................ 22

Garcia v. Sedillo,

70 Ariz. 192 (1950) .............................................. 18

Gill v. Whitford,

138 S.Ct. 1916 (2018) .......................................... 21

Golonka v. GMC,

204 Ariz. 575 (App. 2003) ................................... 19

Hunt v. Campbell,

19 Ariz. 254 (1917) .............................................. 18

In re Lake,

No. 23A622 (2024) ................................................. 1

Kingdomware Techs., Inc. v. United States,

579 U.S. 162 (2016) ............................................. 29

Krislov v. Rednour,

226 F.3d 851 (7th Cir. 2000) ......................... 16, 23

Lake v. Fontes,

83 F.4th 1199 (9th Cir. 2023) ............................... 1

Lake v. Hobbs,

623 F.Supp.3d 1015 (D. Ariz. 2022) ..................... 1

Lambrix v. Singletary,

520 U.S. 518 (1997) ............................................. 34

Lance v. Coffman,

549 U.S. 437 (2007) .......... 2-4, 14, 24, 26-28, 34-35

Lawrence v. Chater,

516 U.S. 163 (1996) ............................................. 34

Lewert v. P.F. Chang's China Bistro, Inc.,

819 F.3d 963 (7th Cir. 2016) ......................... 20, 25

Lewis v. Casey,

518 U.S. 343 (1996) ............................................. 27

Lujan v. Defenders of Wildlife,

504 U.S. 555 (1992) ................................. 4-5, 24-25

Lynch v. Household Fin. Corp.,

405 U.S. 538 (1972) ............................................. 33

Massachusetts v. EPA,

549 U.S. 497 (2007) ....................................... 26, 38

Mecinas v. Hobbs,

30 F.4th 890 (9th Cir. 2022) ......................... 16, 22

Moor v. County of Alameda,

411 U.S. 693 (1973) ............................................. 33

Moore v. Harper,

143 S.Ct. 2065 (2023) .......................... 4, 14, 32, 34

Nader v. Blackwell,

545 F.3d 459 (6th Cir. 2008) ............................... 23

Newman-Green, Inc. v. Alfonzo-Larrain,

490 U.S. 826 (1989) ............................................ 5-6

Northeastern Fla. Chapter of Associated Gen.

Contractors of Am. v. City of Jacksonville,

508 U.S. 656 (1993) ............................................. 19

Northern Ins. Co. v. Chatham Cty.,

547 U.S. 189 (2006) ........................................ 31-32

O’Shea v. Littleton,

414 U.S. 488 (1974) ............................................. 25

Ohio Forestry Ass'n v. Sierra Club,

523 U.S. 726 (1998) ............................................. 28

Oregon v. Mitchell,

400 U.S. 112 (1970) ............................................. 37

Pedersen v. Bennett,

230 Ariz. 556 (2012) ............................................ 11

Pennhurst State Sch. & Hosp. v. Halderman,

465 U.S. 89, 106 (1984) .................................. 32-33

Perez v. Ledesma,

401 U.S. 82 (1971) ............................................... 31

Purcell v. Gonzalez,

549 U.S. 1 (2006) ................. 1, 13, 15-16, 22, 30-31

Regents of the Univ. of California v. Bakke,

438 U.S. 265 (1978) ............................................. 19

Reynolds v. Sims,

377 U.S. 533 (1964) ....................................... 20, 23

Rose v. Mitchell,

443 U.S. 545 (1979) ............................................. 38

Ruhrgas Ag v. Marathon Oil Co.,

526 U.S. 574 (1999) ............................................. 15

Shaw v. Reno,

509 U.S. 630 (1993) ............................................. 23

Shays v. FEC,

414 F.3d 76 (D.C. Cir. 2005) .......................... 22-23

Silva v. Traver,

63 Ariz. 364 (1945) .............................................. 19

Singleton v. Wulff,

428 U.S. 106 (1976) ............................................. 15

Sochor v. Florida,

504 U.S. 527 (1992) ............................................... 6

Spokeo, Inc. v. Robins,

578 U.S. 330 (2016) ............................................. 21

Spomer v. Littleton,

414 U.S. 514 (1974) ............................................. 30

State v. Arevalo,

249 Ariz. 370 (2020) ............................................ 34

Stewart v. Blackwell,

444 F.3d 843 (6th Cir. 2006) ......................... 16, 23

Summers v. Earth Island Inst.,

555 U.S. 488 (2009) ................................... 4, 17, 24

Susan B. Anthony List v. Driehaus,

573 U.S. 149 (2014) ....................................... 20, 25

Texas v. United States,

523 U.S. 296 (1998) ............................................. 28

TransUnion LLC v. Ramirez,

141 S.Ct. 2190 (2021) .......................................... 19

Trump v. Wis. Elections Comm'n,

983 F.3d 919 (7th Cir. 2020) ............................... 16

xii

Tyler v. Cuomo,

236 F.3d 1124 (9th Cir. 2000) ............................. 36

United States v. Classic,

313 U.S. 299 (1941) ....................................... 15, 23

United States v. Fortner,

455 F.3d 752 (7th Cir. 2006) ............................... 34

United States v. Students Challenging Regulatory

Agency Procedures, 412 U.S. 669 (1973) .............. 5

Verizon Md., Inc. v. Pub. Serv. Comm’n of Md.,

535 U.S. 635 (2002) ......................................... 5, 32

Warth v. Seldin,

422 U.S. 490 (1975) ............................................. 35

Wearry v. Cain,

577 U.S. 385 (2016) ............................................. 35

West Virginia v. EPA,

142 S.Ct. 2587 (2022) .......................................... 30

Wood v. Raffensperger,

981 F.3d 1307 (11th Cir. 2020) ........................... 27

Yick Wo v. Hopkins,

118 U.S. 356 (1886) ............................................. 37

Statutes

U.S. CONST. art. I, § 4 ..................... 2, 14, 27-28, 32-35

U.S. CONST. art. II, § 1, cl. 2 ........... 2, 14, 27-28, 32-35

U.S. CONST. art. III........... 3-4, 13-19, 22-27, 34, 36-38

U.S. CONST. amend. V, cl. 4 ..................................... 27

U.S. CONST. amend. XI........................................ 31-32

U.S. CONST. amend. XIV, §1, cl. 3....................... 32-33

28 U.S.C. §1254(1) ...................................................... 1

28 U.S.C. §1291 .......................................................... 1

28 U.S.C. §1331 .................................................... 1, 31

28 U.S.C. §1343 .................................................... 1, 33

xiii

28 U.S.C. §1343(3) .................................................... 33

28 U.S.C. §1343(4) .................................................... 33

28 U.S.C. §1367 .................................................... 1, 33

28 U.S.C. §1653 ......................... 5-6, 12, 17, 20, 34, 36

42 U.S.C. §1983 .................................................. 31, 33

42 U.S.C. §1988(a) .................................................... 33

Civil Rights Act of 1871, 17 Stat. 13........................ 31

Judiciary Act of 1875, 18 Stat. 470 .......................... 31

A.R.S. §16-442(A)-(C) ............................................... 12

A.R.S. §16-442(B) ....................................................... 8

A.R.S. §16-449(A) ..................................................... 17

A.R.S. §16-452(C) ..................................................... 17

A.R.S. §16-1004(B) ................................................... 17

A.R.S. §16-1009 .................................................. 12, 17

A.R.S. §16-1010 .................................................. 12, 17

Rules, Regulations and Orders

S.Ct. R. 21 ................................................................. 12

S.Ct. R. 22 ................................................................. 12

FED. R. CIV. P. 11 ...................................................... 12

FED. R. EVID. 201(d) ........................................... 11, 17

Other Authorities

Richard C. Chen, Summary Dispositions as

Precedent, 61 WM. & MARY L. REV. 691 (2020) .. 34

Jennifer Ann Drobac, The Misappropriation,

Embezzlement, Theft, and Waste of Corporate

Human and Financial Assets: Sexual

Harassment Reconceived, 36 ABA JOURNAL

LAB. & EMP. LAW 425 (2022) ............................... 18

2 M. Farrand, RECORDS OF THE FEDERAL

CONVENTION OF 1787 (1911) ............................... 37

PETITION FOR WRIT OF CERTIORARI

Kari Lake and Mark Finchem respectfully

petition this Court for a writ of certiorari to the U.S.

Court of Appeals for the Ninth Circuit to review the

dismissal of their case. Respondents are Arizona’s

Secretary of State and the boards of supervisors of

Maricopa and Pima Counties in their respective

official capacities.

OPINIONS BELOW

The Ninth Circuit’s per curiam opinion is reported

at 83 F.4th 1199 and reprinted in the Appendix

(“App”) at App:1a. The district court’s order

dismissing the case is reported at 623 F.Supp.3d 1015

and reprinted at App:10a.

JURISDICTION

On October 16, 2023, the Ninth Circuit affirmed

the dismissal of the case. By order dated February 5,

2024, the Circuit Justice extended the time within

which to petition this Court to March 14, 2024. In re

Lake, No. 23A622 (2024). The district court had

jurisdiction under 28 U.S.C. §§1331, 1343, 1367, and

the Ninth Circuit had jurisdiction under 28 U.S.C.

§1291. This Court has jurisdiction under 28 U.S.C.

§1254(1).

STATUTORY PROVISIONS INVOLVED

The Appendix (“App.”) contains the relevant

statutory and regulatory provisions.

STATEMENT OF THE CASE

Public distrust in elections is at an all-time high

and growing. As 2022 candidates for Governor and

Secretary of State, petitioners filed this action in

advance of the election to challenge Arizona’s

electronic voting machines’ suitability to assure fair

and accurate votes consistent with the Constitution.

Although electronic voting machines were meant to

remedy snafus like the 2000 Florida recount, the flaws

that petitioners unearthed in electronic voting

machines make hanging chads—the very problem the

machines were meant to solve—seem like a blessing.

At least there, humans could see and touch ballots and

punch cards. By turning elections over to black boxes

running software outside the public domain, we

surrendered the ability to meaningfully verify the

election process.

Newly uncovered evidence also shows Arizona’s

Maricopa County flagrantly violated state law for

electronic voting systems—including using altered

software not certified for use in Arizona—and actively

misrepresented and concealed those violations.

Perhaps worse—although potentially unknown to

Maricopa—the Dominion Voting Systems, Inc.,

systems used in Maricopa and almost thirty states

have a built-in security breach enabling malicious

actors to take control of elections, likely without

detection.

Importantly, this Court has a hand both in the

problem and a solution. Institutional inertia from

having intervened in the 2000 election should not

sideline this Court’s review of new systemic flaws in

our elections. Indeed, the Court’s recent decisions

have created a “Goldilocks problem’” that only this

Court can resolve. On the too-cold side, Lance v.

Coffman, 549 U.S. 437 (2007), has come to stand for

the proposition voters cannot assert claims under the

Elections and Electors Clauses. On the too-hot side,

Purcell v. Gonzalez, 549 U.S. 1 (2006), posits that

election-law challenges brought by candidates—once

the candidates are known—come too close to elections.

Cases are never “just right” for voters or candidates to

challenge the wholesale bombardment of States’

election-integrity laws or practices that decide close

elections.

Georgia’s Curling litigation aptly illustrates this

conundrum. In Curling, the district court denied an

injunction against use of ballot marking devices

(“BMDs”) to vote in Georgia because the election was

just weeks away, but acknowledged that plaintiffs’

national security experts “convincingly” showed vote

manipulation with these machines “was not a

question of ‘might this actually ever happen?’— but

‘when it will happen.’” Curling v. Raffensperger, 494

F.Supp3d 1264, 1342 (N.D. Ga. 2020). Three years

later, the district court denied in part defendants’

motion for summary judgement. Curling v. Raffensperger, __ F.Supp.3d __, 2023 U.S. Dist. LEXIS

202368 (N.D. Ga. Nov. 10, 2023). After a trial earlier

this year, a decision on the constitutionality of using

BMDs is pending. Meanwhile, two elections took place

in 2020 and 2022 in Georgia with profound national

implications. The Georgia BMD software that could be

manipulated “to steal votes” according to the Curling

plaintiffs’ expert is essentially what Maricopa uses.

App:90a-94a (¶¶130-140).

The solution is simple: this Court must confine

Lance to its actual holding—namely, election-related

challenges that assert no voting right or other Article

III interest are generalized grievances outside federal

jurisdiction. But election-related challenges asserting

injuries to voting rights—even widely shared

injuries—can be justiciable.

To restore faith in elections, this Court must take

two simple actions.

•

First, the Court should summarily reverse here,

while limiting Lance to its actual holding.

• Second, as part of implementing Moore v. Harper,

143 S.Ct. 2065 (2023), the Court should commit to

taking on an error-correcting role for justiciability

in election challenges, at least until lower courts

understand what Article III covers and what it

does not cover.

As Moore has now held, the federal Constitution

allows federal-court oversight of efforts to neuter

State election laws for electoral advantage. Even

where dismissal under Article III is correct, the

dismissal decision needs to address plaintiffs’ position

rather than facilely citing Lance. App:7a. The public

requires more, and the courts should not withhold it.

LEGAL BACKGROUND

Three justiciability issues underlie this petition:

(1) the contours of Article III standing, (2) exceptions

to the States’ sovereign immunity, and (3) plaintiffs’

ability to make new allegations of jurisdiction on

appeal.

A. Standing under Article III

Standing’s tripartite test requires: (a) judicially

cognizable injury to plaintiffs, (b) causation by the

challenged conduct, and (c) redressability by courts.

Lujan v. Defenders of Wildlife, 504 U.S. 555, 561-62

(1992). Injury must be actual or imminent, not merely

speculative, conjectural, or hypothetical. Summers v.

Earth Island Institute, 555 U.S. 488, 493 (2009).

Further, injury must be “concrete and particularized”

to the plaintiff, not an “abstract generalized grievance

suffered by all citizens.” Carney v. Adams, 141 S.Ct.

493, 498-99 (2020). The requirement for injury “serves

to distinguish a person with a direct stake in the

outcome of a litigation—even though small—from a

person with a mere interest in the problem.” United

States v. Students Challenging Regulatory Agency

Procedures, 412 U.S. 669, 689 n.14 (1973) (“SCRAP”).

Causation and redressability pose “little question”

when the government directly regulates a plaintiff,

although standing requires a heightened showing

when the government regulates third parties, who

then cause injury. Lujan, 504 U.S. at 561-62.

Moreover, to establish subject-matter jurisdiction, a

complaint's “general allegations embrace those

specific facts that are necessary to support the claim.”

Bennett v. Spear, 520 U.S. 154, 168 (1997). The

following subsections demonstrate petitioners’

cognizable injuries, causation, and redressability.

B. Sovereign Immunity and Ex parte Young

Sovereign immunity bars suits against States in

federal court, but the Ex parte Young officer-suit

exception allows suits in which the plaintiff seeks only

prospective injunctive or declaratory relief regarding

ongoing violations of federal law. Courts conduct a

“straightforward inquiry into whether the complaint

alleges an ongoing violation of federal law and seeks

relief properly characterized as prospective.” Verizon

Md., Inc. v. Pub. Serv. Comm’n of Md., 535 U.S. 635,

645 (2002) (interior quotations omitted). Without an

ongoing violation of federal law, Young may not apply.

Id.; Green v. Mansour, 474 U.S. 64, 66-67 (1985).

C. Amended Jurisdictional Allegations

under 28 U.S.C. §1653.

Under 28 U.S.C. §1653, allegations of jurisdiction

can be amended, even on appeal, if the jurisdictional

facts existed when the operative complaint was filed.

Newman-Green, Inc. v. Alfonzo-Larrain, 490 U.S. 826,

830-32 (1989). Thus, where “jurisdiction ... actually

exists,” parties can cite that jurisdiction for the first

time on appeal. Id. at 831. Relatedly, failure to raise

jurisdictional arguments does not waive those

arguments. Sochor v. Florida, 504 U.S. 527, 534 n.*

(1992). Although the jurisdictional issues in NewmanGreen were different, the Court relied on the value of

avoiding the “needless waste of time” for litigants and

courts to start over in district court, which “runs

counter to effective judicial administration.”

Newman-Green, 490 U.S. at 833 (internal quotation

omitted). Even without res judicata or fraud on the

court concerns, requiring parties to start over in

district court for “hypertechnical jurisdictional purity”

would harm the legal system and deny important

rights. Id. at 837-38.

II. FACTUAL BACKGROUND

The bases for petitioners’ standing is stated in

their complaint, district court declarations and

hearing testimony, and amended allegations of

jurisdiction made here pursuant to 28 U.S.C. § 1653

based on discovery in other matters and public-record

requests that were not known until after the Ninth

Circuit order affirming dismissal of the amended

complaint.

Petitioners brought this action alleging concrete

facts showing that the existing state of Arizona’s

electronic voting machines posed a definable and

substantial risk of election manipulation and an

inability to deliver accurate and trustworthy results.

Vast majorities of both voters and election workers do

not understand how these machines work or whether

the reported results are truly accurate. Instead, the

accuracy of elections results depends on blindly

trusting private companies who sell and service these

machines, while refusing to make their software

available to neutral expert evaluation. App:49a, 51a,

62a-64a (¶¶2, 8, 63-64, 69-70). The machines are

easily compromised, and their security safeguards are

easily bypassed or defeated, and shown to deliver

inaccurate results. App:55a-56a, 65a-82a, 88a-91a

(¶¶27, 30-31, 72-107, 125-134). They contain critical

parts made in countries like China that are known

adversaries that routinely use components, such as

motherboards and microchips, to surreptitiously

access computer systems. App:75a-76a (¶¶91-92). The

question is not how many times inaccurate results

were discovered, but rather how many times have

they not.

A. The record before the district court.

In addition to their complaint’s allegations,

petitioners also moved for a preliminary injunction,

with six qualified cyber experts testifying concerning

the voting machines’ unsuitability to provide a secure

and accurate vote. App: 144a, 151a-154a. The expert

testimony and evidence showed actual vote

manipulation in prior Maricopa and Pima elections,

as well as in other jurisdictions.

Petitioners’ complaint overlaps with the claims

brought in Curling, supra, to prohibit the use of

electronic BMDs in Georgia, which went to trial in

January, and a decision is pending. App:49a-50a, 93a95a. (¶¶4, 139-140, 146).

1. The complaint’s allegations.

The complaint pled detailed particularized facts

casting substantial doubt on whether the existing

state of Arizona’s electronic voting machines likely

could produce accurate election results. The complaint

included well-pled allegations that:

• All Arizona-certified optical scanners and ballot

marking devices, as well as the software on which

they rely, have been wrongly certified for use in

Arizona because they do not comply with the

statutory requirements set forth at A.R.S. §16442(B), making these systems easily vulnerable to

manipulation. App:54a, 91a-94a (¶¶23, 135-143).

• An independent post-2020 election audit of

Maricopa’s electronic voting machines found an

11,592-ballot discrepancy between the official

result totals and the equivalent Final Voted File’s

totals, demonstrating an inability to reconcile

votes. App:64a (¶70).

• Congressional and other government officials’

warnings that Arizona’s registration system was

actually hacked in 2016 and the vulnerabilities

remained unremedied. App:69a-70a, 76a-77a

(¶¶79, 94).

• Maricopa election officials did not have the

credentials necessary to validate tabulator

configurations and independently validate the

voting system prior to an election. The vendor,

Dominion, had those credentials, and refused the

Arizona Senate’s subpoena to produce those

passwords in connection with the Senate’s

investigation of these voting machines. App:62a,

95a (¶¶63, 148-49).

• Despite certifications by the Election Assistance

Commission (“EAC”), voting machines like those

used in Arizona have been hacked, manipulated,

or failed to record votes accurately on multiple

occasions. App:65a-82a, 65a-82a, 88a-91a (¶¶30,

72-107, 125-134).

• Recognized experts have shown that all safety

measures intended to secure electronic voting

machines against manipulation of votes, such as

risk limiting audits and logic and accuracy tests,

can be defeated. App:56a. 94a-95a (¶¶31, 144146).

As voters and political candidates, petitioners thus

adequately pled the likelihood of a cognizable future

injury from not counting votes accurately.

2. The preliminary injunction

evidence.

In connection with their motion for a preliminary

injunction against using Arizona’s electronic voting

machines, petitioners introduced declarations and

testimony from six credentialed cyber and national

security experts. They all testified that electronic

voting systems could be easily breached and

manipulated.

Notably, petitioners introduced the sworn

declaration of Dr. Walter Daugherity, a longstanding

professor—now emeritus—in the Department of

Computer Science and Engineering at Texas A&M

University. He examined of the Cast Vote Records for

seventeen races in Pima County and ten races

Maricopa County for the 2020 election. App:114a115a (¶¶6-9). His analysis showed that “in the

November 2020 election for which the CVR data was

made available, ballots in Maricopa County and Pima

County were artificially processed through the

tabulators tracking a Proportional-Integral-Derivative (PID) type control function in a closed-loop

feedback system.” App:114a (¶7). Dr. Daugherity

testified “that after about 12% of the early votes are

recorded, the next block of ballots is 75% for the

Democrat candidate, the next block after that is 74%,

the next block 73%, and so on, systematically

declining all the way to Election Day” App:121a (¶30).

He concluded that “[s]uch predictability and

dependence would not occur without artificial

manipulation.” App:56a (¶31). Respondents did not

rebut this analysis. Afterwards, Maricopa produced

CVR data in randomized form, preventing similar

analyses of subsequent elections.

At the preliminary-injunction hearing, cyber

expert Clay Parikh testified that he had performed “a

hundred or more security tests” on electronic voting

machines, like those used in Arizona, while

performing EAC certification tests. App:155a. Parikh

testified it took him “[o]n average, five to ten minutes”

to hack these voting machines, including the voting

machines like those used in Arizona. Id.

Another cyber expert, Ben Cotton, previously

retained by the Arizona Senate to examine Maricopa’s

electronic voting machines, testified about Maricopa’s

reliance on an “air gapped” system to prevent remote

hacking. He testified that “[i]n the case of Maricopa …

that air-gap system, given the configuration of those

other components of the enterprise, could be bypassed

in about 30 seconds.” App:147a. He also found “actual

evidence of remote log-ins into [Maricopa’s] EMS

server.” App:148a; see also App:150a (NSA’s “air

gapped” system was breached).

This expert testimony—unrefuted by respondents

and ignored by the Ninth Circuit, App:3a—showed

additional concrete evidence of actual past ballot

manipulation in Maricopa and Pima Counties

through the electronic voting machines and

uncorrected systemic vulnerabilities going into the

November 2022 election.

B. Maricopa’s chaotic 2022 election.

The district court dismissed Petitioner’s

complaint on August 26, 2022, ruling that Petitioner’s

claims were “too speculative” to support standing.

App:29a. On Election Day, November 8, 2022,

Maricopa experienced a massive disruption with its

electronic voting machines Evidence from Maricopa’s

tabulator system log files presented to the Arizona

Senate Committee on Elections showed that on

Election Day, Maricopa’s vote center tabulators

rejected over 7,000 ballots every thirty minutes

beginning almost immediately after the vote centers

opened at 6:00 am and continuing past 8:00 pm—

totaling over 217,000 rejected ballot insertions on a

day when approximately 248,000 votes were cast.1

C. New evidence of misconduct in prior

elections.

Petitioners recently obtained system log (“SLOG”)

files from Maricopa’s 2020 election that are at odds

with Maricopa’s statements to the district court with

respect to material facts on which the district court

relied in dismissing petitioners’ claims for lack of

standing. Based on that new information, petitioners

https://www.azleg.gov/videoplayer/?eventID=2023011091

at 2:00:30, 2:13:20-2:14:37 (last visited Mar. 14, 2024). Publicly

available records on the Legislature’s website are judicially

noticeable. Pedersen v. Bennett, 230 Ariz. 556, 559, ¶15 (2012);

FED. R. EVID. 201(d).

seek to amend their allegations of jurisdiction under

28 U.S.C 1653. Specifically, the SLOG files show:2

• In place of the Arizona-certified election software

that Maricopa claimed to use, Maricopa’s election

software has been surreptitiously altered with

respect to components controlling how ballots are

read and tabulated. The election results put

through this uncertified software are unreliable.

Contrary to Maricopa’s representations to the

district court, the election software Maricopa used

in the 2020 election is not approved by the EAC or

for use in Arizona in violation of Arizona law.3 The

SLOG files show that Maricopa used the same

uncertified software in the 2022 election.

• Contrary to Maricopa’s representations to the

district court, Maricopa did not conduct

statutorily mandated pre-election logic and

accuracy (“L&A”) testing prior to the November

2020 election on all its vote center tabulators.

Instead, Maricopa L&A tested only five spare

tabulators. Maricopa did the same thing in

connection with the November 2022 election.

The district court relied on these false representations

in dismissing petitioners’ complaint, App:18a-19a,

and in finding that sanctions should be awarded

against plaintiffs under Rule 11.

Further, in Dominion’s contract with Maricopa—

and its contracts with other counties nationwide—

In a separate filing, petitioners will submit the new evidence

in support of seeking further relief from the Court—or Circuit

Justice—pursuant to Rules 21 or 22.

A.R.S. §16-442(A)-(C). Indeed, the unapproved alteration of

election software is criminal. A.R.S. §§16-1009, 16-1004(B), 161010.

Dominion commits to protecting election data with

high-level Federal Information Processing Standard

(“FIPS”) level encryption. New evidence shows that,

since at least 2020, Dominion configured its machines

with the decryption keys in an election database table

in plain text—protected by nothing other than

Windows log-in credentials that are easily bypassed—

enabling any malicious actor total control over its

electronic voting systems. This security breach

violates common sense, to say nothing of FIPS-level

encryption. While this breach has the game-changing

magnitude of the Allies’ deciphering Germany’s

ENIGMA machine in World War II, it is far worse.

Dominion leaves the decryption keys bare, in plain

text.

Embedded Dominion employees or any malicious

actor who knows where to look can gain total access

and control over an election. It is like a bank telling

the public they have the most secure vault in the

world, and then taping the combination on the wall

next to the vault door. Even worse, key logging

features that would record system activity showing

such control can also be manipulated or disabled,

thereby rendering any penetration of this system

nearly undetectable.

III. PROCEDURAL BACKGROUND

The Ninth Circuit affirmed the district court’s

dismissal of this action for lack of Article III standing

on the theory that the claim of injury is speculative.

App:3a. The district court based its dismissal on two

additional grounds (sovereign immunity and temporal

issues for the 2022 election under Purcell). App:32a37a. Petitioners requested that—if their complaint

was inadequate—they be allowed to amend to include

the preliminary-injunction evidence, Pls.’ Opp’n 17

(ECF #58), but the Ninth Circuit did not consider that

evidence in determining whether injury was nonspeculative. App:3a.

REASONS TO GRANT THE WRIT

The petition raises critical issues on Article III

standing in the election context, as well as issues of

Due Process, voting rights, and ballot integrity. This

Court should grant the writ of certiorari for several

independent reasons.

1. The lower courts’ disregard of petitioners’ claims

conflicts with other circuits—and even the Ninth

Circuit—on standing for election challenges. See

Section I.A.1.c(1), infra.

2. The lower courts have taken Lance beyond its

limited holding to deny voter standing for

Elections and Electors Clause claims. See Section

I.A.5.b, infra.

3. The Circuits are split on the justiciability of

claims under the Elections and Electors Clauses,

which Moore and the upcoming 2024 election

make urgent. See Section I.A.5.b, infra.

4. This litigation offers the opportunity to address

critical faults in election infrastructure before the

2024 election. See Section III, infra.

Petitioners respectfully submit that each of these

issues warrants not only granting a writ of certiorari

but also resolving this matter on an expedited basis or

summarily.

THE DISTRICT COURT HAD AND STILL

HAS JURISDICTION TO RESOLVE THIS

ACTION.

In addition to reviewing the Ninth Circuit’s

Article III basis for affirming the district court’s

dismissal, this Court can review any basis for

dismissal that is supported in the record, Dittman v.

California, 191 F.3d 1020, 1027 n.3 (9th Cir. 1999),

because “there is no unyielding jurisdictional

hierarchy” to threshold bases for dismissal. Ruhrgas

Ag v. Marathon Oil Co., 526 U.S. 574, 578 (1999).

Appellate courts’ sound discretion guides the

decision on whether to reach issues not decided below.

Singleton v. Wulff, 428 U.S. 106, 121 (1976). This

Court should reach—and can easily decide—the

sovereign immunity and Purcell issues raised in the

district court. Without resolving those issues, reversal

on Article III and remand to the district court might

be a pyrrhic—and short lived—victory, requiring yet

another appeal.

A. Petitioners had and still have Article III

standing.

For the paramount public function of running

elections, Maricopa uses uncertified voting systems

controlled by private actors and susceptible to

hacking, evades required testing, and makes

misrepresentations when called to task. It is no

surprise that public confidence in election integrity is

at all-time lows. All these factors bolster petitioners’

standing to sue.

As both voters and candidates, petitioners have

standing to challenge Maricopa’s election procedures

to redress several cognizable injuries:

• For voters, Maricopa’s elections are so unreliable

and open to abuse as to nullify the fundamental,

due process right to vote and to have votes accurately counted. United States v. Classic, 313 U.S.

299, 315 (1941) (“included within the right to

choose, secured by the Constitution, is the right of

qualified voters within a state to cast their ballots

and have them counted”); Stewart v. Blackwell,

444 F.3d 843, 868-69 (6th Cir. 2006) (collecting

cases); see Section I.A.1.c(1), infra.

• For candidates, Maricopa’s elections inflict not

only unequal-footing injuries that deny the right

to run for public office under lawful and reliable

competitive elections, Mecinas v. Hobbs, 30 F.4th

890, 897-900 (9th Cir. 2022); Trump v. Wis.

Elections Comm'n, 983 F.3d 919, 924 (7th Cir.

2020), but also—by increasing public distrust in

elections, Purcell, 549 U.S. at 4 (“[v]oter fraud

drives honest citizens out of the democratic

process and breeds distrust of our government”)—

make it more difficult and more expensive for

candidates to get voters to vote, forcing candidates

to spend more time fundraising and less time

campaigning, thereby inflicting First Amendment

associational injuries, Krislov v. Rednour, 226

F.3d 851, 857 (7th Cir. 2000) (being “required to

allocate additional campaign resources ... in itself

can be an injury to First Amendment rights”),

beyond the financial and unequal-footing injuries.

See Section I.A.1.c(2), infra.

As explained in this subsection, these injuries easily

meet the criteria of Article III.

1. Petitioners suffer particularized and

concrete injury from Maricopa’s

unlawful election practices.

Petitioners have suffered and still suffer

particularized, concrete injuries from Maricopa’s

unlawful election policies and execution. Moreover,

because petitioners suffer these concrete injuries,

they also have standing to challenge procedural

injuries from procedural violations of election law. See

Summers, 555 U.S. at 496; Section I.A.2, infra. Significantly, these injuries persist as to future elections,

even if this case became moot as to the 2022 election.

a. This Court can consider new

allegations related to standing.

As indicated in the Legal Background, §1653

allows parties to seek to amend allegations of

jurisdiction, even on appeal. See page 5, supra; 28

U.S.C. §1653; cf. FED. R. EVID. 201(d) (judicially

noticeable government documents admissible on

appeal). Based on new evidence Maricopa’s preexisting election practices, petitioners seek to make

the following additional allegations regarding

standing:

• First, Maricopa did not conduct the required L&A

testing, on which the district court relied to find

the risk of election interference speculative.

• Second, Maricopa did not use certified software,

on which the district court relied to find the risk

of election interference speculative.

• Third, Maricopa used software that made all passwords needed to control Maricopa elections

available to anyone with physical or remote

access, which supports petitioners’ allegations

and evidence that past elections were

manipulated.

• Fourth, altering election software without the

Arizona Secretary of State’s approval is criminal

act under Arizona law, A.R.S. §§16-449(A), 16452(C), 16-1009, 16-1004(B), 16-1010, thereby

evaporating presumptions in their favor under

Arizona law. See note 5, infra (Arizona’s “bursting

bubble” theory of nonstatutory presumptions).

•

Fifth, Maricopa’s officials misrepresented their

compliance with Arizona election law (e.g., L&A

testing, certified software), which negates any

presumptions in their favor under Arizona law.

See note 5, infra (Arizona’s “bursting bubble”

theory of nonstatutory presumptions).

• Sixth, Maricopa officials abdicated control over

the complex election systems to embedded private

Dominion employees who lack any presumption of

regularity under Arizona law. See note 4, infra.

These allegations of jurisdiction all pre-date this

lawsuit and thus support a finding of jurisdiction

here.

The new allegations meet the tripartite test of

“motive, means and opportunity” that “can result in

[a] perfect storm of conditions leading to

embezzlement” or fraud. Jennifer Ann Drobac, The

Misappropriation, Embezzlement, Theft, and Waste of

Corporate Human and Financial Assets: Sexual

Harassment Reconceived, 36 ABA JOURNAL LAB. &

EMP. LAW 425, 463 (2022) (internal quotation

omitted). Together, these three “warning signs … can

go a long way toward identifying and thwarting an

ongoing fraud.” Id. (internal quotation omitted).

Moreover, neither private actors like embedded

Dominion employees4 nor Arizona election officials

Arizona election officials benefit from nonstatutory

presumptions of regularity, Hunt v. Campbell, 19 Ariz. 254, 268

(1917), but those presumptions do not apply to private actors

engaged in an election. Garcia v. Sedillo, 70 Ariz. 192, 200 (1950)

(“the officials in this election were not public officials where we

can say that there is a presumption that they acted in good

faith”).

who commit misconduct5 enjoy a presumption of

regularity. These factors coupled with the evidence

and allegations supporting Article III injury easily

establish enough likelihood of future injury to survive

dismissal for lack of an Article III controversy.

b. Petitioners’ injuries are actual

and imminent, not speculative.

The Article III imminence requirement does not

require that petitioners wait to be injured.

TransUnion LLC v. Ramirez, 141 S.Ct. 2190, 2210

(2021). Indeed, in the election context, such a

standard is unworkable. Instead, imminence for “risk

of future harm” requires only a “risk of harm [that] is

sufficiently imminent and substantial.” Id. That

standard is met here for several reasons.

• First, procedural injury lowers the Article III

threshold for immediacy, see Section I.A.2, infra,

which applies whenever government violates

election procedures.

• Second, and relatedly, unequal-footing injuries

occur upon denying lawful competition, not in

denying the ultimate benefit. See Northeastern

Fla. Chapter of Associated Gen. Contractors of Am.

v. City of Jacksonville, 508 U.S. 656, 666 (1993);

Section I.A.1.c, infra. For unequal-footing

injuries, the ultimate benefit “is merely one of

relief,” not one of injury. Regents of the Univ. of

California v. Bakke, 438 U.S. 265, 280 n.14 (1978).

For election officials, nonstatutory presumptions evaporate

in the face of rebuttal evidence: “Whenever evidence

contradicting a legal presumption is introduced the presumption

vanishes.” Silva v. Traver, 63 Ariz. 364, 368 (1945); Golonka v.

GMC, 204 Ariz. 575, 589-90 ¶48 (App. 2003) (discussing

Arizona’s “bursting bubble” treatment of presumptions).

•

Third, under petitioners’ complaint and evidence,

and their new allegations of jurisdiction, 28 U.S.C.

§1653, the injury in past elections provides

evidence of injury in future elections that the

lower courts failed to consider. See Section I.A.3,

infra.

Fourth, when multiple actors can cause injury, the

threat of injury is increased. Compare Susan B.

Anthony List v. Driehaus, 573 U.S. 149, 164 (2014)

with Curling, __ F.Supp.3d at __, 2023 U.S. Dist.

LEXIS 202368, at *120 (“Mueller Report’s

findings leave no doubt that Russia and other

adversaries will strike again”) (alterations and

internal quotation omitted) (No. 1:17-cv-2989AT).

Fifth for cybersecurity injuries outside of elections

(e.g., regarding fiduciary obligations to protect

money or personal information), courts easily find

imminence vis-à-vis improper actions that injure

plaintiffs. See, e.g., Lewert v. P.F. Chang's China

Bistro, Inc., 819 F.3d 963, 967-68 (7th Cir. 2016)

(victims need not wait for identity theft to

happen). As is the case with the hacking of

personal information, bad actors in this case have

committed crimes by positioning Maricopa

elections in their current non-compliant state. A

court should not assume that the bad actors did so

benevolently. See notes 4-5, supra (presumptions

of regularity do not apply). All civil and criminal

rights depend upon honest elections, Reynolds v.

Sims, 377 U.S. 533, 562 (1964), and, therefore,

courts should treat voting rights at least as well

as personal privacy.

All these reasons—ignored by the lower courts—

establish non-speculative risk of future injury.6

Indeed, Maricopa’s 2022 election was a disaster, based

on flaws in the voting machines.

c. Petitioners’ injuries are concrete

and particularized, not abstract

or generalized.

The widely shared nature of the injury does not

foreclose finding an injury particularized to a given

plaintiff:

Often the fact that an interest is abstract and

the fact that it is widely shared go hand in

hand. But their association is not invariable,

and where a harm is concrete, though widely

shared, the Court has found “injury in fact.”

FEC v. Akins, 524 U.S. 11, 24 (1998); Gill v. Whitford,

138 S.Ct. 1916, 1929 (2018) (right to vote is personal

and individual). Moreover, “intangible injuries can

nevertheless be concrete,” Spokeo, Inc. v. Robins, 578

U.S. 330, 340 (2016), if they affect a plaintiff “in a

personal and individual way.” Id. at 339. Here, the

injury to voting rights is both concrete and

particularized.

In Akins, an “informational injury … related to

voting, the most basic of political rights, [was]

sufficiently concrete and specific,” Akins, 524 U.S. at

24-25; accord Robins, 578 U.S. at 339 n.7, notwithstanding that it was also widely shared. Indeed, Akins

used the example “where large numbers of voters

suffer interference with voting rights conferred by

The purported “air-gapped” Maricopa system provides no

significant protection from outside intrusion, App: 153a, and

even less from inhouse actors who lack a presumption of

regularity. See notes 4-5, supra.

law.” Akins, 524 U.S. at 24. As Akin hypothesized, the

injury here falls on voting itself. As such, Maricopa’s

actions nullify each voter’s fundamental right to vote.

(1) Candidates and political

parties suffer injury.

As with voters’ due process right to have their

votes counted accurately, “inaccurate vote tally is a

concrete and particularized injury to candidates.”

Carson v. Simon, 978 F.3d 1051, 1058 (8th Cir. 2020).

But candidates and political parties may have greater

interests in election-law compliance than individual

voters based on running in a competitive environment

and seeking to ensure an equal-footing vis-à-vis other

candidates and political parties. See, e.g., Mecinas, 30

F.4th at 897-900 (finding that political parties have

competitor standing to challenge allegedly unlawful

election regulations); accord Fulani v. League of

Women Voters Educ. Fund, 882 F.2d 621, 626 (2d Cir.

1989); cf. Clinton v. City of New York, 524 U.S. 417,

433 n.22 (1998) (unequal-footing injuries apply

outside equal-protection context). While candidates

are themselves voters and political parties are

membership organizations whose members are

voters, parties and candidates have interests in a fair

competition that voters may lack.

Further, like states, candidates and parties have

cognizable interests in avoiding fraud to ensure voter

confidence in election integrity, Crawford v. Marion

County Election Bd., 553 U.S. 181, 189 (2008), as a

means of keeping “honest citizens [in] the democratic

process.” Purcell, 549 U.S. at 4. Reaching disengaged

constituents requires more effort and expense, which

is its own Article III injury. Shays v. FEC, 414 F.3d

76, 90-91 (D.C. Cir. 2005) (relying on “basic economic

logic” to find standing) (interior quotation omitted).

Finally, increasing candidates’ effort and expense

to get out the vote forces them to spend more time

fundraising and less time campaigning, inflicting

First Amendment associational injuries, Krislov, 226

F.3d at 857; accord Nader v. Blackwell, 545 F.3d 459,

472 (6th Cir. 2008). Although they were 2022

candidates when the complaint was filed, petitioners

are 2024 candidates now.

(2) Voters suffer injury.

Voters suffer injury when election-law violations

deny them of an accurate vote count or allow unlawful

votes to dilute their lawful votes: “[O]ne thing is clear:

total and complete disenfranchisement of the

electorate as a whole is patently and fundamentally

unfair (and, hence, amenable to rectification in a

federal court).” Bonas v. Town of N. Smithfield, 265

F.3d 69, 75 (1st Cir. 2001); see also Classic, 313 U.S.

at 315; Stewart, 444 F.3d at 868-69 (collecting cases);

Shaw v. Reno, 509 U.S. 630, 640-41 (1993) (“the right

to vote can be affected by a dilution of voting power as

well as by an absolute prohibition on casting a ballot”)

(internal quotations and alteration omitted);

Reynolds, 377 U.S. at 555. In any event, voters have

standing to protect their voting rights:

We have allowed important interests to be

vindicated by plaintiffs with no more at stake

in the outcome of an action than a fraction of

a vote, a $ 5 fine and costs, and a $1.50 poll

tax.

SCRAP, 412 U.S. at 689 n.14 (citations omitted,

emphasis added). As explained in Section I.A.5.b,

infra, Lance, on which the lower courts relied, is not

to the contrary.

2. Petitioners’ procedural injuries

lower the Article III threshold for

immediacy and redressability.

Because Maricopa does not count votes via the

required procedures that are in place to protect the

accuracy of the vote, see Section I.A.1.a, supra, this

action is based partly on procedural injury.

Significantly, petitioners suffer concrete injuries to

their fundamental right to vote and to fair elections,

see Section I.A.1, supra, so this type of procedural

injury lowers the Article III threshold for immediacy

and redressability. Lujan, 504 U.S. at 571-72 & n.7 (a

proper procedural-injury plaintiff “can assert that

right without meeting all the normal standards for

redressability and immediacy”); cf. Summers, 555

U.S. at 496 (plaintiffs must have concrete injury to

assert procedural injury). Procedural-rights plaintiffs

have standing for a “do-over” under the proper

procedures and standards, even if the election might

produce the same winners. See Akins, 524 U.S. at 25.

Although the 2022 election had not yet occurred when

petitioners filed the operative complaint or when the

district court ruled, a court could order “do-over” relief

(e.g., counting the paper ballots) in the 2022 election,

as well as similar relief in future elections. Neither

immediacy nor redressability pose an Article III

barrier here.

3. Past injuries are evidence of future

injury.

The district court improperly rejected or ignored

petitioners’ allegations of security breaches in past

elections, App:55a-56a, 65a-82a, 88a-91a (¶¶27, 30-

31, 72-107, 125-134), which is itself reversible error.

See O’Shea v. Littleton, 414 U.S. 488, 496 (1974) (“past

wrongs are evidence bearing on whether there is a

real and immediate threat of repeated injury”); cf.

Driehaus, 573 U.S.at 164 (“history of past enforcement” is obvious evidence of “substantial” threat of

future enforcement). With petitioners’ new evidence of

pre-litigation security breaches in prior elections, the

risk of similar harm in future elections is undeniable.

See Section I.A.1.a, supra. While the lower courts may

not have found that petitioners’ claims “[]cross the

line from conceivable to plausible,” Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 570 (2007), the new

allegations—including that Maricopa misled the

lower courts—clearly crosses the line, requiring

courts to accept them as true against a motion to

dismiss. Lewert, 819 F.3d at 967-68. Maricopa’s

elections are simply not secure.

4. Petitioners’ injuries are traceable to

Maricopa’s and the Secretary’s

actions and redressable in court.

When petitioners filed this action, there was

“little question” of causation or redressability because

respondents directly injured petitioners, and a court

could have stopped those injuries with injunctive

relief. See Lujan, 504 U.S. at 561-62. The only

question about causation and redressability now is

whether petitioners’ injuries have now become

impossible to redress. Even after elections have been

held, however, their injuries would remain partially

redressable by an injunction for future elections. See

Section I.C, infra.7 Accordingly, for Article III

purposes, causation and redressability continue to

pose “little question” here.

5. Petitioners’ standing covers any way

that Maricopa violated election law.

Maricopa violated Arizona—and thus federal—

election law in several ways. See Section I.A.1.a,

supra. Once a plaintiff has standing to challenge

unlawful government action, that same Article III

controversy extends to any way in which the

defendant violated the law.

a. Article III has no nexus

requirement outside the

Establishment Clause.

Because an Article III case or controversy exists

here, see Section I.A.1.b, supra, petitioners can rely on

the violation of any applicable constitutional or

statutory provision: “once a litigant has standing to

request invalidation of a particular [government]

action, [the litigant] may do so by identifying all

grounds on which the [government] may have failed

comply

with

its

statutory

mandate.”

DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 353 &

n.5 (2006). Outside of taxpayer standing, there is no

“nexus” requirement in the Court's Article III

decisions. Duke Power Co. v. Carolina Envtl. Study

Grp., 438 U.S. 59, 78-79 (1978). As such, petitioners

can base their challenge on Arizona state election law

unless barred by sovereign immunity and can base

For each form of requested relief, only one petitioner needs

standing. Massachusetts v. EPA, 549 U.S. 497, 518 (2007) (“[o]nly

one of the petitioners needs to have standing to permit us to

consider the petition for review”).

their challenge on any federal law, even federal law

that might not itself present a case or controversy.

Although standing to challenge one government

action does not automatically provide standing to

challenge other, discrete government actions, Lewis v.

Casey, 518 U.S. 343, 358 n.6 (1996), standing doctrine

has no general nexus requirement. Duke Power, 438

U.S. at 78-81. Thus, “once a litigant has standing to

request invalidation of a particular agency action, it

may do so by identifying all grounds on which the

agency may have failed to comply with its statutory

mandate.” Cuno, 547 U.S. at 353 & n.5 (interior

quotations omitted). For example, in Duke Power,

plaintiffs could use aesthetic injury from a new

nuclear power plant (e.g., algae blooms from releasing

hot water into cooling ponds) to support a takings

challenge to damage caps on hypothetical future

catastrophic nuclear accidents. Article III is satisfied

once a case or controversy exists on any basis related

to the allegedly unlawful government action. Here,

Maricopa not only altered election equipment and

used uncertified software but also misrepresented the

facts regarding those deviations from Arizona law.

Just as the Duke Power plaintiffs could bring a

Takings Clause claim by asserting aesthetic injuries,

petitioners can bring an Elections Clause claim by

asserting due-process injuries.

b. This Court should narrow Lance

to its holding for voter standing

under the Elections Clause.

Lance has wrongly come to stand for the

proposition that voters cannot enforce the Elections

and Electors Clauses. See, e.g., Wood v. Raffensperger,

981 F.3d 1307, 1314 (11th Cir. 2020) (affirming that if

the appellant had been a candidate for office “he could

assert a personal, distinct injury” required for

standing); Bognet v. Sec’y Pa., 980 F.3d 336, 348-52

(3d Cir. 2020) (congressional candidate lacks standing

under Elections Clause), vacated sub nom. Bognet v.

Degraffenreid, 141 S.Ct. 2508 (2021); Donald J.

Trump for President, Inc. v. Sec’y Pa., 830 F.App’x

377, 387 (3d Cir. 2020); Carson, 978 F.3d at 1058. To

the contrary, Lance merely held that generalized

grievances cannot support standing for plaintiffs who

lacked “the sorts of injuries alleged … in voting rights

cases.” Lance, 549 U.S. at 442. Voting-rights plaintiffs

with standing on due-process or equal-protection

grounds may identify all grounds on which an election

failed to comply with applicable laws. See Section

I.A.5.a, supra (standing has no general “nexus”

requirement). Unlike the Lance plaintiffs, petitioners

raised voting-rights injury, so Lance is inapposite.

B. This action was and remains ripe.

In addition to having standing, petitioners must

also have a ripe claim. “A claim is not ripe for

adjudication if it rests upon contingent future events

that may not occur as anticipated, or indeed may not

occur at all.” Texas v. United States, 523 U.S. 296, 300

(1998) (internal quotations and citations omitted).

Because petitioners are already suffering concrete

injury, see Section I.A.1.b, supra, their claims are also

constitutionally ripe. Indeed, their procedural

“claim[s] can never get riper.” Ohio Forestry Ass'n v.

Sierra Club, 523 U.S. 726, 737 (1998) (procedural

claims are fully formed at the procedural violation and

“can never get riper”); see Section I.A.2, supra.

C. This action is not moot.

“A case becomes moot … only when it is impossible

for a court to grant any effectual relief whatever.”

Campbell-Ewald Co. v. Gomez, 577 U.S. 153, 161

(2016) (internal quotations omitted). Significantly,

although plaintiffs bear the burden of proving

standing, defendants bear the burden of proving

mootness. Friends of the Earth, Inc. v. Laidlaw Envtl.

Servs. (TOC), Inc., 528 U.S. 167, 190 (2000). Under

that burden, “the prospect that a defendant will

engage in (or resume) harmful conduct may be too

speculative to support standing, but not too

speculative to overcome mootness.” Id. at 190. This

Section demonstrates that petitioners’ action is not

moot for two reasons.

1. As voters and future candidates,

petitioners still suffer injury

redressable in future elections.

Nothing in petitioners’ complaint limited relief to

the 2022 election. Under Campbell-Ewald, it remains

possible to issue relief for the 2024 and subsequent

elections, which petitioners continue to seek. This

case is not moot.

2. Even a complaint directed against

only the 2022 election could avoid

mootness as capable of repetition yet

evading review.

Although the complaint was not directed solely

against the 2022 election, App:110a (¶1), even a

complaint so confined would not be moot under the

“capable-of-repetition”

exception

mootness.

Kingdomware Techs., Inc. v. United States, 579 U.S.

162, 170 (2016) (interior quotation marks, citations,

and alterations omitted). This exception obviously

applies “in the context of election cases … when there

are ‘as applied’ challenges as well as in the more

typical case involving only facial attacks.” FEC v.

Wisconsin Right to Life, Inc., 551 U.S. 449, 463 (2007)

(internal quotations omitted). Petitioners obviously

will be voters in future elections and—indeed—are

each candidates in the 2024 election.

Nor would any corrective action by either Arizona

or Maricopa moot this action. Defendants who claim

“mootness” must meet the “formidable burden of

showing that it is absolutely clear the allegedly

wrongful behavior could not reasonably be expected to

recur.” Friends of the Earth, 528 U.S. at 190; accord

West Virginia v. EPA, 142 S.Ct. 2587, 2607 (2022)

(voluntary cessation does not moot a case without

absolute clarity that the defendant could not resume

the wrongful conduct). While Maricopa cannot meet

that test, even curative Arizona legislation would not

moot this action. Diffenderfer v. Cent. Baptist Church,

Inc., 404 U.S. 412, 415 (1972) (citations omitted,

emphasis added); accord Spomer v. Littleton, 414 U.S.

514, 522-23 (1974). This action is not moot, and it will

not become moot.

D. There is no “Purcell problem” for future

elections.

Although the Ninth Circuit did not reach the

issue, App:_9a, the district court dismissed on the

alternate basis that petitioners brought this action too

close in time to the 2022 election. Compare App:35a37a with Purcell, 549 U.S. at 4-5 (out of concern for

“voter confusion and consequent incentive to remain

away from the polls,” federal courts avoid enjoining

state election laws close to elections). While Purcell

and its progeny may have counseled against providing

relief vis-à-vis the 2022 election, the complaint

applied to future elections, so Purcell provides no

basis for outright dismissal,

E. Sovereign immunity poses no barrier.

Similarly, although the Ninth Circuit did not

reach the issue, App:9a, the district court dismissed

on the alternate basis of sovereign immunity. Here,

too, the Court should resolve this issue rather than

allow respondents to reassert immunity on remand to

the district court.8

By way of background, “two [post-Civil War]

statutes, together, after 1908, with the decision in Ex

parte Young, established the modern framework for

federal protection of constitutional rights from state

interference.” Perez v. Ledesma, 401 U.S. 82, 106-07

(1971). First, the Civil Rights Act of 1871, 17 Stat. 13,

provided what now are 42 U.S.C. §1983 and 28 U.S.C.

§1343(3). Id. Second, the Judiciary Act of 1875, 18

Stat. 470, provided what now is 28 U.S.C. §1331. Id.

Consequently, even without federal rights enforceable

under §1983, petitioners can nonetheless challenge

state or local action for ongoing violations of federal

law under federal-question jurisdiction and Young.

1. The county respondents lack

sovereign immunity.

Counties lack sovereign immunity but can—in

some instances—be immune under the arm-of-thestate doctrine. Compare Alden v. Maine, 527 U.S. 706,

756-57 (1999) with Northern Ins. Co. v. Chatham Cty.,

Indeed, even if the Secretary had not raised immunity in the

district court, he could raise it for the first time here: ““Eleventh

Amendment defense sufficiently partakes of the nature of a

jurisdictional bar so that it need not be raised in the trial court.”

Edelman v. Jordan, 415 U.S. 651, 678 (1974).

547 U.S. 189, 193-95 (2006). The counties are not

arms of the state here, but even if they were, county

officers would remain subject to suit because

immunity does not protect ongoing violations of

federal law. See Section I.E.2, infra. In either event,

Maricopa officials lack immunity.

2. Sovereign immunity does not protect

ongoing violations of federal law.

Petitioners allege that the respondents violated—

and continue to violate—the Due Process Clause,

which is an ongoing violation of federal law that the

Eleventh Amendment does not immunize under the

officer-suit exception to sovereign immunity. Ex parte

Young, 209 U.S. 123, 159-61 (1908). Significantly, “the

inquiry into whether suit lies under Ex parte Young

does not include an analysis of the merits of the

claim.” Verizon, 535 U.S. at 638. Consequently, there

is no further threshold inquiry into the merits of

petitioners’ claims at this stage for alleged violations

of federal law.

Where a complaint alleges violations of state law,

by contrast, the Ex parte Young doctrine does not

apply. Pennhurst State Sch. & Hosp. v. Halderman,

465 U.S. 89, 106 (1984). For violations of state election

law, however, Pennhurst’s exception to Ex parte

Young’s exception itself has several exceptions that

allow suit.

a. State election law is enforceable

under the Elections Clause.

Under Moore, “federal courts must not abandon

their own duty to exercise judicial review” when nonlegislative actors violate state election law. Moore, 143

S.Ct. at 2089-90. Compliance with state election law

has an enforceable federal component.

b. State election law is enforceable

under §1988(a).

In federal civil rights actions, federal law applies

“so far as such laws are suitable to carry the same into

effect,” but can be supplemented by “the common law,

as modified and changed by the constitution and

statutes of the State” if “not inconsistent with the

Constitution and laws of the United States.” 42 U.S.C.

§1988(a).9 Although 28 U.S.C. §1343(4) and 42 U.S.C.

§1988(a) do not elevate state law to an independent

federal cause of action, Moor v. County of Alameda,

411 U.S. 693, 700-04 (1973), they do allow federal

courts to look to state law as part of resolving federal

claims.

c. State election law informs what

“process” is “due” regarding the

fundamental right to vote.

Generally, the Due Process Clause—and not state

law—answers the constitutional question of what

process is due. Cleveland Bd. of Educ. v. Loudermill,

470 U.S. 532, 541 (1985). In the unique situation of

election law, state law can inform the answer to that

question not only under 42 U.S.C. §1988(a) but also

under the Elections and Electors Clauses, which put

the issue of election law for federal purposes in the

hands of state Legislatures. Moreover, while it need

not rise to a constitutional question, petitioners can

sue county officials under state law, without regard to

the Pennhurst problem that might apply to suing state

officials under state law. 28 U.S.C. §1367. For these

As used in §1988(a), “Title 24” includes 28 U.S.C. §1343 and

42 U.S.C. §1983. Lynch v. Household Fin. Corp., 405 U.S. 538,

544 n.7 (1972).

related reasons, Arizona election law can inform the

Court’s analysis of the issues presented here.10

II. THIS COURT SHOULD SUMMARILY

REVERSE, BOTH ON THE ORIGINAL

RECORD AND A FORTIORI ON THE NEW

EVIDENCE UNDER §1653.

Summary reversal would be appropriate here for

several reasons.

First, the lower courts’ rejection of petitioners’

pleadings and evidence was inappropriate for an

Article III dismissal.

Second, the basis for the lower courts’ decision—

Lance, App:7a—has become unmoored in the lower

courts from its actual holding in this Court, which

summary resolution could set right.

Third, with major new decisions like Moore, the

Court can grant, vacate, and remand (“GVR”) for the

lower courts to apply the new precedent. Lawrence v.

Chater, 516 U.S. 163, 166 (1996).

Fourth, and relatedly, the Court occasionally uses

follow-on summary decisions to flesh out issues in

recently decided cases. See, e.g., Lambrix v.

Singletary, 520 U.S. 518, 538-39 (1997); Richard C.

Chen, Summary Dispositions as Precedent, 61 WM. &

MARY L. REV. 691, 694 (2020).

Fifth, exigency may justify summary resolution.

United States v. Fortner, 455 F.3d 752, 754 (7th Cir.

2006). Although easier when an issue presented for

As candidates for state office in 2022, the Elections and

Electors Clauses did not apply directly to petitioners’ elections,

but Arizona state courts would apply the constitutional-doubt

canon to read statutes narrowly to avoid readings that cast doubt

on a statute's constitutionality. State v. Arevalo, 249 Ariz. 370,

373 P 9 (2020).

summary disposition is purely legal, “the Court has

not shied away from summarily deciding factintensive cases where, as here, lower courts have

egregiously misapplied settled law.” Wearry v. Cain,

577 U.S. 385, 394-95 (2016) (collecting cases).

A. It is urgent to resolve these issues

before the 2024 election.

Two urgent issues must be resolved before the

2024 election.

First, this Court should summarily confine Lance

to its holding (namely, plaintiffs with nothing at stake

except noncompliance with the law suffer only a

generalized grievance). That clarity is needed to

prevent Lance posing an obstacle to voters’ asserting

claims under the Elections and Electors Clauses. See

Section I.A.5.b, supra.

Second, the weakness in voting infrastructure

requires resolution before the 2024 election. See

Section III, supra. Without resolution, election results

in the numerous states with Dominion voting

machines—at the very least—cannot be trusted.

B. The district-court record supports

summary reversal.

Petitioners’ complaint sufficiently alleged both

past injury and risk of future injury, which the lower

courts should have accepted for purposes of standing.

Warth v. Seldin, 422 U.S. 490, 500 (1975); City of

Waukesha v. EPA, 320 F.3d 228, 235 (D.C. Cir. 2003)

(“court … must … assume that on the merits the

plaintiffs would be successful in their claims”) (citing

Warth); Ariz. State Legis. v. Ariz. Indep. Redistricting

Comm'n, 576 U.S. 787, 800 (2015) (distinguishing a

court’s perception of a weak merits case from a lack of

standing) (citing Warth). “Whether a plaintiff has a

legally protected interest (and thus standing) does not

depend on whether he can demonstrate that he will

succeed on the merits.” Tyler v. Cuomo, 236 F.3d 1124,

1133 (9th Cir. 2000). Otherwise, every losing plaintiff

would lose for lack of standing.

C. New allegations under §1653 a fortiori

support summary reversal.

Although the lower courts erred in failing to credit

petitioners’ pleadings and evidence at the motion-todismiss phase, petitioners’ new evidence, allowable on

appeal under 28 U.S.C. §1653—shows not only that

the same problems occurred in past elections, but also

that the respondents falsely claimed safeguards that

would minimize the risk of harm. Both allegations—

past harm and lack of safeguards—are allegations of

jurisdiction allowable under §1653, Section I.A.1.a,

supra, and they both alter the Article III analysis of

imminence. See also Section I.A.2, supra (procedural

injuries lower Article III’s threshold for imminence).

Assuming arguendo that the lower courts did not err

on the original record, they clearly erred when

measured under petitioners’ amened allegations of

standing on appeal.

III. THE QUESTIONS PRESENTED ARE

CRUCIAL TO ENSURING ELECTORAL

INTEGRITY.

In addition to the “cert-worthy” issues presented

here, the election context is urgently important for

this Court to resolve in advance of the 2024 election

and beyond. Without this Court’s concerted effort, the

technical capacity to thwart the will of the electorate

will escape detection and meaningful review due to

election litigation’s short timeframes and complex

civil litigation’s long duration. The fulsome record and

judicially noticeable other materials make this case

an ideal vehicle to consider these issues.

A. The fundamental right to vote is

“preservative of all rights,” and only

this Court can secure that right.

“[T]he political franchise of voting … is regarded

as a fundamental political right, because preservative

of all rights.” Yick Wo v. Hopkins, 118 U.S. 356, 370

(1886). As Madison explained, “‘[t]he qualifications of

electors and elected [are] fundamental articles in a

Republican [Government] and ought to be fixed by the

Constitution,’” and “‘[i]f the Legislature could regulate

those of either, it can by degrees subvert the

Constitution.’” Oregon v. Mitchell, 400 U.S. 112, 210

(1970) (quoting 2 M. Farrand, RECORDS OF THE

FEDERAL CONVENTION OF 1787, at 249-50 (1911))

(Harlan, J., concurring in part and dissenting in part).

While this case concerns only Arizona, petitioners’

new evidence extends to the approximately 30 States

that use Dominion systems. This judiciary is the only

branch of government that can resolve this matter. If

the results of elections in approximately 30 States are

unreliable, the political branches’ lawful composition

circa January 3, 2025, is unknowable.

B. The Court should commit to taking up

cases alleging electoral improprieties.

Given the preeminence of voting in our system,

this Court should ensure that election cases are not

improvidently dismissed under Article III. Often,

cases erroneously dismissed will become moot before

dismissal can be reversed. That prospect is especially

problematic with election litigation, which has a short

timeline and often cannot be undone, even when

erroneous. Options include affording “special

solicitude” to standing in voting-rights cases, cf.

Massachusetts, 549 U.S. at 520, and recognizing that

cases like this raise procedural or structural claims

lowering Article III’s thresholds for immediacy and

redressability. See Section I.A.2, supra. Alternatively,

as with racially tainted juries, the Court could commit

to hearing election cases beyond the Court’s normal

criteria. See Rose v. Mitchell, 443 U.S. 545, 556-57

(1979). Without the Court’s commitment to these

issues, the threat of electoral misconduct is simply too

great.

CONCLUSION

The petition for a writ of certiorari should be

granted.

March 14, 2024

Respectfully submitted,

KURT B. OLSEN

LAWRENCE J. JOSEPH

Olsen Law PC

Counsel of Record

1250 Connecticut Ave NW 1250 Connecticut Ave NW