Standing – Public Law Cases

Hanes, et al. v. Merrill, etc., et al., [Ms. SC-2022-0869, Apr. 7, 2023] __ So. 3d __ (Ala. 2023). In a plurality opinion, the Court (Sellers, J.; Mendheim and Stewart, JJ., concur; Mitchell and Cook, JJ., concur specially; Parker, C.J., concurs in part and concurs in the result; Shaw and Bryan, JJ., concur in the result; Wise, J., recuses) affirms the Montgomery Circuit Court’s dismissal of plaintiffs’ claims seeking to enjoin the use of electronic-voting machines to count ballots. The plaintiffs argued “the use of electronic-voting machines is so insecure, both inherently and because of the alleged failures of the secretary of state and the committee members (“the defendants”) in certifying the machines, that it has infringed upon their constitutional right to vote, or, in the case of Focus on America, the right to vote of those persons it represents.” Ms. *3.

The main opinion reiterates that to establish standing in public law cases “the plaintiffs must demonstrate ‘an actual, concrete and particularized ‘injury in fact’ – an – ‘an invasion of a legally protected interest.’ Alabama Alcoholic Beverage Control Bd. v. Henri-Duval Winery, L.L.C., 890 So. 2d 70, 74 (Ala. 2003) (quoting Lujan [v. Defenders of Wildlife, 504 U.S. 555, 560 (1992)].” Ms. **6-7.

The plaintiffs lacked standing because “they fail to allege anything that has gone wrong. As a result, the plaintiffs have failed to allege an injury in fact. They thus lacked standing to pursue the claims contained in their complaint because they alleged a hypothetical injury, i.e., one that is conjectural rather than actual.” Ms. *9.

Special writings by Justices Cook and Mitchell argue the Court should revisit the adoption of the Lujan federal standing test in a case with full briefing and a more complete record.

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