Hanes v. Merrill

• Decision Date: 07 April 2023
• Docket Number: SC-2022-0869
• Parties: Tommy Hanes, David Calderwood, and Focus on America v. John Merrill, in his official capacity as Alabama Secretary of State, and Bill English, Wes Allen, Clay Crenshaw, Jeff Elrod, and Will Barfoot, in their official capacities as members of the Alabama Electronic Voting Committee
• Court: Supreme Court of Alabama

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Tommy Hanes, David Calderwood, and Focus on America v. John Merrill, in his official capacity as Alabama Secretary of State, and Bill English, Wes Allen, Clay Crenshaw, Jeff Elrod, and Will Barfoot, in their official capacities as members of the Alabama Electronic Voting Committee

No. SC-2022-0869

Supreme Court of Alabama

April 7, 2023

Appeal from Montgomery Circuit Court (CV-22-900595)

SELLERS, Justice.

Tommy Hanes, David Calderwood, and Focus on America ("the plaintiffs")^[1] appeal from the judgment of the Montgomery Circuit Court dismissing their claims against John Merrill in his official capacity as the Alabama Secretary of State and Bill English, Wes Allen, Clay Crenshaw, Jeff Elrod, and Will Barfoot, in their official capacities as members of the Alabama Electronic Voting Committee ("the committee").^[2]

I. Facts

In May 2022, the plaintiffs commenced this action, seeking declaratory and injunctive relief. The complaint related to the general use of electronic-voting machines in the November 2022 general statewide election and in all future elections. The plaintiffs primarily sought to enjoin the usage of electronic-voting machines to count ballots. They specifically sought an order requiring that the 2022 election be conducted by paper ballot, with three individuals as independent counters who would manually count each ballot in full view of multiple cameras that could record and broadcast the counting proceedings, among other measures. The plaintiffs claim that 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.

The defendants filed a motion to dismiss pursuant to Rule 12(b)(1) and Rule 12(b)(6), Ala. R. Civ. P. They argued that the plaintiffs lacked standing, that the claims were moot, that State or Sovereign immunity under Art. I, § 14, of the Alabama Constitution barred the claims, that the complaint failed to state a claim upon which relief could be granted, and that the court lacked jurisdiction pursuant to § 17-16-44, Ala. Code 1975, also known as the "jurisdiction-stripping statute." The plaintiffs filed a motion for a preliminary injunction, seeking to suspend the use of electronic-voting machines in the November 2022 general election and in all future elections. The circuit court held a hearing on both motions. Following the hearing, the circuit court entered a judgment dismissing the complaint and denying the plaintiffs' motion for preliminary injunctive relief. In that judgment, the circuit court found that the jurisdiction-stripping statute barred the plaintiffs' action, that the plaintiffs lacked standing, that the complaint failed to state a claim upon which relief could be granted, and that sovereign immunity barred the plaintiffs' claims. This appeal followed.

II. Standard of Review

In an appeal of a circuit court's judgment granting a motion to dismiss, the applicable standard of review has been stated as follows:

"A ruling on a motion to dismiss is reviewed without a presumption of correctness. Nance v. Matthews, 622 So.2d 297, 299 (Ala.1993). This Court must accept the allegations of the complaint as true. Creola Land Dev., Inc. v. Bentbrooke Housing, L.L.C., 828 So.2d 285, 288 (Ala. 2002). Furthermore, in reviewing a ruling on a motion to dismiss we will not consider whether the pleader will ultimately prevail but whether the pleader may possibly prevail. Nance, 622 So.2d at 299."

Newman v. Savas, 878 So.2d 1147, 1148-1149 (Ala. 2003).

In addition, this Court has stated:

"'"[A] court ruling on a Rule 12(b)(1)[, Ala. R. Civ. P.,] motion to dismiss 'may consider documents outside the pleadings to assure itself that it has jurisdiction.' Al-Owhali [v. Ashcroft], 279 F.Supp.2d [13,] 21 [(D.D.C. 2003)]; see also Haase v. Sessions, 835 F.2d 902, 906 (D.C. Cir. 1987) ('In 12(b)(1) proceedings, it has been long accepted that the judiciary may make appropriate inquiry beyond the pleadings to satisfy itself on [its] authority to entertain the case.' (internal citations and quotation marks omitted)). The level of scrutiny with which the Court examines the allegations in the complaint that support a finding of jurisdiction, however, depends upon whether the motion to dismiss asserts a facial or factual challenge to the court's jurisdiction. See I.T. Consultants v. Pakistan, 351 F.3d 1184, 1188 (D.C. Cir. 2003).

"'"Facial challenges, such as motions to dismiss for lack of standing at the pleading stage, 'attack[] the factual allegations of the complaint that are contained on the face of the complaint.' Al-Owhali, 279 F.Supp.2d at 20 (internal quotation marks and citation omitted). 'If a defendant mounts a "facial" challenge to the legal sufficiency of the plaintiff's jurisdictional allegations, the court must accept as true the allegations in the complaint and consider the factual allegations of the complaint in the light most favorable to the non-moving party.' Erby [v. United States, ] 424 F.Supp.2d [180,] 181 [(D.D.C. 2006)]; see also I.T. Consultants, 351 F.3d at 1188. The court may look beyond the allegations contained in the complaint to decide a facial challenge, 'as long as it still accepts the factual allegations in the complaint as true.' Abu Ali [v. Gonzales,] 387 F.Supp.2d [16,] 18 [(D.D.C. 2005)]; see also Jerome Stevens Pharm., Inc. v. Food & Drug Admin., 402 F.3d 1249, 1253-54 (D.C. Cir. 2005) ('At the pleading stage .... [w]hile the district court may consider materials outside the pleadings in deciding whether to grant a motion to dismiss for lack of jurisdiction, the court must still accept all of the factual allegations in the complaint as true.' (internal citations and quotation marks omitted))."'"

Munza v. Ivey, 334 So.3d 211, 216 (Ala. 2021) (quoting Ex parte Safeway Ins. Co. of Alabama, 990 So.2d 344, 349 (Ala. 2008), quoting in turn Lindsey v. United States, 448 F.Supp.2d 37, 43 (D.D.C. 2006).

III. Analysis

The plaintiffs present several arguments on appeal. For the reasons stated below, we conclude that they lacked standing to pursue this action and, therefore, we pretermit discussion of the plaintiffs' other arguments.

A. Standing in General

The plaintiffs lacked standing, both to challenge the use of electronic-voting machines and to challenge the defendants' actions in certifying them. In "public-law cases," such as this case, standing is an absolute necessity for a court to obtain subject-matter jurisdiction. See Ex parte BAC Home Loans Servicing, LP, 159 So.3d 31, 44 (Ala. 2013); State v. Property at 2018 Rainbow Dr., 740 So.2d 1025, 1028 (Ala. 1999). To determine whether a party has standing, we employ the test set forth in Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992). Ex parte Aull, 149 So.3d 582 (Ala. 2014). Principally, under that test, the plaintiffs must demonstrate "an actual, concrete and particularized 'injury in fact' -- '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, 504 U.S. at 560). An injury in fact must be "'(a) concrete and particularized, and (b) "actual or imminent, not 'conjectural' or 'hypothetical.'"'" Ex parte Alabama Educ. Television Comm'n, 151 So.3d 283, 287 (Ala. 2013) (quoting Lujan, 504 U.S. at 560).

Applying the Lujan test, it is clear that the plaintiffs have alleged only a conjectural, hypothetical, injury.^[3] The plaintiffs argue that because of the nature of electronic-voting machines and the defendants' actions in certifying such machines, the vote tallies for elections cannot be trusted, thus diminishing the value of Hanes's and Calderwood's votes or the votes of persons Focus on America represents. Specifically, they contend that somebody could "potentially" tamper with the machines, connect them to the Internet, and use that connection to distort the vote totals so significantly as to undermine their constitutional right to vote. However, the plaintiffs do not allege that any such behavior actually occurred in Alabama. Rather, they merely argue that the possibility of those things occurring infringes upon their right to vote.

The injury alleged in the plaintiffs' complaint is, by definition, conjectural. See Storino v. Borough of Point Pleasant Beach, 322 F.3d 293, 297-98 (3d Cir. 2003) (observing that "one cannot describe how the [plaintiffs] will be injured without beginning the explanation with the word 'if'"). The plaintiffs' injury argument relies entirely upon hypotheticals and unspecified potentialities. Their complaint does little more than suggest the possibility that the use of electronic-voting machines "'could' impact the fairness and accuracy of elections." Ex parte Merrill, 264 So.3d 855, 864 (Ala. 2018). It does not assert that any Alabama votes have actually been miscounted or that vote totals have been altered to achieve an inaccurate election result. In other words, the plaintiffs do not "demonstrate how the 'challenged practices harm'" them; rather, they "allege only that they 'could' be harmed." Id. (quoting Ex parte Health South Corp., 974 So.2d 288, 293 (Ala. 2007)). The plaintiffs discuss many things that could go wrong and ultimately lead to the dilution of their votes. But 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.

B. Taxpayer...