Favorito v. Wan, A22A0939

CourtUnited States Court of Appeals (Georgia)
Writing for the CourtMcFadden, Presiding Judge
PartiesFAVORITO et al. v. WAN et al. JEFFORDS et al. v. FULTON COUNTY et al.
Docket NumberA22A0939,A22A1097
Decision Date01 July 2022

WAN et al.


Nos. A22A0939, A22A1097

Court of Appeals of Georgia, Fifth Division

July 1, 2022


McFadden, Presiding Judge

Garland Favorito, Caroline Jeffords, and seven other Georgia residents petitioned for declaratory judgment and injunctive relief against five members of the Fulton County Board of Registration and Elections in their individual capacities, claiming that votes cast by the petitioners during the 2020 general election were diluted by the inclusion of allegedly unlawful ballots in Fulton County. Jeffords and one other petitioner also claimed that Fulton County had violated the Georgia Open Records Act.[1] Three of the respondent board members filed a motion to dismiss the


petitions based on the petitioners' lack of standing. The trial court granted the three board members' motion and dismissed the claims against them, finding that the petitioners lacked standing due to their failure to allege a particularized injury. The court further ordered that the claims against the other two board members also be dismissed due to the same lack of standing of the petitioners. The court also dismissed Fulton County from the case, finding that the Open Records Act claims against it had already been fully adjudged in a prior order.

The petitioners appeal from the dismissal order, with Favorito and six others appealing in Case No. A22A0939, and Jeffords and another petitioner appealing in Case No. A22A1097. We consider the appeals together since they arise from the same order and both challenge the trial court's lack of standing ruling.

Because the petitioners' claims of vote dilution did not allege particularized injuries, the trial court correctly dismissed their claims against the five board members due to lack of standing. And an additional argument regarding standing to bring the Open Records Act claims against Fulton County presents nothing for review since the trial court did not dismiss Fulton County from the case based on the petitioners' lack of standing. So we affirm the order of the trial court in both appeals.


1. Standing.

"Standing is . . . a jurisdictional issue that must be considered before reaching the merits of any case, and is a doctrine rooted in the traditional understanding of a case or controversy." Sons of Confederate Veterans v. Newton County Bd. of Commrs., 360 Ga.App. 798, 803 (2) (861 S.E.2d 653) (2021) (citations and punctuation omitted). "[L]itigants must establish their standing to raise issues before they are entitled to have a court adjudicate those issues[.]" Sherman v. City of Atlanta, 293 Ga. 169, 172 (2) (744 S.E.2d 689) (2013). To establish standing, under both Georgia and federal law,[2] a litigant must demonstrate,

(1) an injury in fact; (2) a causal connection between the injury and the causal conduct; and (3) the likelihood that the injury will be redressed with a favorable decision. An injury in fact is one that is both concrete and particularized. . . . The Supreme Court of the United States has explained that, for an injury to be particularized, it must affect the plaintiff in a personal and individual way.

Sons of Confederate Veterans, supra at 803-804 (2) (citations and punctuation omitted).

In another case which, like the instant cases, also involved a lawsuit claiming vote dilution based on allegedly unlawful ballots in Georgia during the 2020 general election, a federal appellate court applied the same three-part standing test recited above and found that the plaintiff lacked standing because he had failed to allege a particularized injury. See Wood v. Raffensperger, 981 F.3d 1307 (11th Cir. 2020). "Although the federal court decision is not binding on this court, we find the analysis in that decision to be persuasive." Bing v. Zurich Svcs. Corp., 332 Ga.App. 171, 172 (1) (770 S.E.2d 14) (2015). In finding that the vote dilution claim based on allegedly unlawful ballots was not a particularized injury, the federal court in Wood explained:

To be sure, vote dilution can be a basis for

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