Unanimous 9th Circuit en banc finds no standing to challenge Arizona voter registration law, no likelihood of success on another part

Back in June 2024, I wrote a post entitled, “Could the Court’s unanimous decision in FDA v. AHM upend some federal election litigation?” There’s perhaps no better sign of that decision coming true than the Ninth Circuit’s en banc decision last Friday in Arizona Alliance for Retired Americans v. Mayes.

The decision was effectively unanimous, although some of the more conservative judges on the panel concurred in part and concurred in the judgment. Judge Anthony Johnstone–a former election law professor–wrote the en banc opinion.

Arizona amended its election laws in 2022 with additional regulations of voter registration. Two provisions are at issue. The first requires a county recorder to cancel a voter’s registration in that county if the voter moves and registers to vote in a new county (“Cancellation Provision”). The second criminalizes knowingly providing a “mechanism for voting” to someone registered to vote in another state (“Felony Provision”). Three organizations—the Arizona Alliance for Retired Americans (“AARA”), Voto Latino, and Priorities USA (“Organizations”)—sued, claiming that the Cancellation and Felony Provisions would interfere with their voter-registration and voter-education efforts. The district court agreed and granted a preliminary injunction. We vacate the preliminary injunction and remand.

First, we hold that the Organizations lack standing to challenge the Cancellation Provision. Under FDA v. Alliance for Hippocratic Medicine, 602 U.S. 367 (2024), an organizational plaintiff must show that the challenged provision “directly affect[s] and interfere[s] with [its] core business activities” to establish an injury-in-fact. Id. at 395. The Organizations assert that the Cancellation Provision will interfere with their voter-registration and voter-education efforts, and that, in response, they will need to divert resources to educate and assist voters whose registrations may be subject to cancellation. But because the Organizations have not clearly shown that the Cancellation Provision affects or interferes with their voter-registration and voter-education efforts, they have not established an injury-in-fact. Thus, we vacate the district court’s preliminary injunction of the Cancellation Provision.

Second, we hold that the Organizations have standing to challenge the Felony Provision but are unlikely to succeed on the merits of their claim. The Organizations argue that they may be prosecuted under the Felony Provision because providing someone a “mechanism for voting” may include voter registration and education. We agree that the Felony Provision arguably proscribes these activities, which are arguably affected with a constitutional interest, and that the Organizations face a credible threat of prosecution. So the Organizations cross our low threshold for standing in pre-enforcement challenges. But the district court erred in holding that the Organizations were likely to succeed on the merits of their claim. Although the stand-alone phrase “mechanism for voting” arguably encompasses voter registration and education, the full text and statutory context of the Felony Provision show that it likely does not criminalize those activities. Thus, we also vacate the district court’s preliminary injunction of the Felony Provision.

When I first blogged about this case in September 2024, I noted Judge Nguyen’s strong dissent, which lamented, “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.” She seems to have changed her tune–admittedly, an en banc panel might do things that panels could not do, but she suggested there that the case broke “no new ground”–and joined Judge Johnston’s opinion, which does major cleanup work in the 9th circuit:

The organizational standing analyses in these cases are therefore overruled. See Nielsen v. Thornell, 101 F.4th 1164, 1170–71 (9th Cir. 2024); Fellowship of Christian Athletes v. San Jose Unified Sch. Dist. Bd. of Educ., 82 F.4th 664, 682–83 (9th Cir. 2023) (en banc); Sabra v. Maricopa Cnty. Cmty. Coll. Dist., 44 F.4th 867, 879–80 (9th Cir. 2022); E. Bay Sanctuary Covenant, 993 F.3d at 662–65; Nat’l Council of La Raza v. Cegavske, 800 F.3d 1032, 1040 (9th Cir. 2015); Fair Hous. Council of San Fernando Valley v. Roommate.com, LLC, 666 F.3d 1216, 1219 (9th Cir. 2012); El Rescate Legal Servs., Inc. v. Exec. Off. of Immigr. Rev., 959 F.2d 742, 748 (9th Cir. 1991).

Finally, I was badly wrong on another prediction back in March 2025, but directionally right in another. On the prediction:

Let me go one step further. This case already starts to resemble Brnovich v. DNC (although, of course, there are material differences!). There, a Ninth Circuit decision found against the plaintiffs in an election law case. There, the case when en banc, and the panel decision was reversed–reversed in such a fashion to capture the Supreme Court’s attention. The Supreme Court, in turn, swept aside the lower court decision in a fairly significant way, significant enough to truncate similar claims in the future. That’s how this case is starting to feel in the aftermath of FDA v. AHM.

Of course, there are other plaintiffs who could establish standing in cases like these–but the decision of the Ninth Circuit threatens a kind of plaintiff who might bring such cases, and there is an interest in that kind of plaintiff trying to preserve the opportunity to sue. That has resulted in an en banc petition strategy that focuses on standing for groups like the plaintiffs here to bring the challenge.

But in doing so–if the Ninth Circuit is interested (perhaps it is not!) in bucking the Supreme Court’s very clear messaging in FDA v. AHM about the standing that organizational plaintiffs have in cases like these–the plaintiffs risk attracting, once again, the Supreme Court’s attention.

I was badly wrong that the 9th Circuit here would seek to buck a lower court decision in a way that attracted Supreme Court attention–so wrong, because it actually largely (see the concurring opinions) affirmed the panel decision and cleaned up some other doctrine in the 9th Circuit. But directionally right because, like Brnovich, the aggressive case here might ultimately set up precedent that undermines what election litigation plaintiffs may want going forward.

Judge Bress’s concurring opinion laments, “While purporting to follow Hippocratic Medicine, the majority opinion in fact undermines it.” There’s a lot to chew on in the subtlety between the majority and concurring opinions on this front (and much of that speaks much more about Federal Courts than Election Law!), and I think it’ll take some time to see how this plays out in the Ninth Circuit to see whether this prediction is right.