FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

KARI LAKE; MARK FINCHEM, 

Plaintiffs-Appellants, 

 v. 

ADRIAN FONTES, Arizona Secretary 

of State; BILL GATES, as a member 

of the Maricopa County Board of 

Supervisors; CLINT HICKMAN, as a 

member of the Maricopa County 

Board of Supervisors; JACK 

SELLERS, as a member of the 

Maricopa County Board of 

Supervisors; THOMAS GALVIN, as a 

member of the Maricopa County 

Board of Supervisors; STEVE 

GALLARDO, as a member of the 

Maricopa County Board of 

Supervisors; MARICOPA COUNTY 

BOARD OF SUPERVISORS; REX 

SCOTT, as a member of the Pima 

County Board of Supervisors; MATT 

HEINZ, as a member of the Pima 

County Board of Supervisors; 

SHARON BRONSON, as a member 

of the Pima County Board of 

No. 22-16413 

D.C. No. 2:22-cv00677-JJT 

OPINION
2 LAKE V. FONTES

Supervisors; STEVE CHRISTY, as a 

member of the Pima County Board of 

Supervisors; ADELITA GRIJALVA, 

as a member of the Pima County 

Board of Supervisors, 

Defendants-Appellees.

Appeal from the United States District Court

for the District of Arizona

John Joseph Tuchi, District Judge, Presiding

Argued and Submitted September 12, 2023

Phoenix, Arizona

Filed October 16, 2023

Before: Ronald M. Gould, Andrew D. Hurwitz, and 

Patrick J. Bumatay, Circuit Judges.

Per Curiam Opinion
LAKE V. FONTES 3

SUMMARY*

Civil Rights/Elections

The panel affirmed the district court’s dismissal for lack 

of standing of an action, brought before the 2022 general 

election by former Republican nominees for Governor and 

Secretary of State of Arizona, alleging that Arizona’s use of 

electronic tabulation systems violated the federal 

Constitution. 

The gravamen of Plaintiffs’ operative complaint is that 

notwithstanding safeguards, electronic tabulation systems 

are particularly susceptible to hacking by non-governmental 

actors who intend to influence election results. On appeal, 

Plaintiffs conceded that their arguments were limited to 

potential future hacking, and not based on any past harm. 

The panel held that because Plaintiffs are no longer 

nominated candidates for state office and no longer seek 

relief related to the 2022 election, they likely now lacked 

standing on that ground. But even assuming Plaintiffs could 

continue to claim standing as prospective voters in future 

elections, they had not alleged a particularized injury and 

therefore failed to establish the kind of injury Article III 

requires. None of Plaintiffs’ allegations supported a 

plausible inference that their individual votes in future 

elections will be adversely affected by the use of electronic 

tabulation, particularly given the robust safeguards in 

Arizona law, the use of paper ballots, and the post-tabulation 

retention of those ballots. The panel concluded that 

* This summary constitutes no part of the opinion of the court. It has 

been prepared by court staff for the convenience of the reader.
4 LAKE V. FONTES

speculative allegations that voting machines may be 

hackable were insufficient to establish an injury in fact under 

Article III.

COUNSEL

Andrew D. Parker (argued), Parker Daniels Kibort LLC, 

Minneapolis, Minnesota; Kurt Olsen, Olsen Law PC, 

Washington, D.C.; for Plaintiffs-Appellants.

Kara M. Karlson (argued), Deputy Attorney General, 

Arizona Attorney General’s Office, Phoenix, Arizona; Craig 

A. Morgan, Shayna G. Stuart, and Jake T. Rapp, Sherman & 

Howard LLC, Phoenix, Arizona; for Defendant/Appellee 

Arizona Secretary of State Adrian Fontes

Emily M. Craiger (argued), Burgess Law LLC, Phoenix, 

Arizona; Rachel H. Mitchell, Maricopa County Attorney; 

Thomas P. Liddy, Joseph J. Branco, Joseph E. La Rue, and 

Karen J. Hartman-Tellez, Deputy County Attorneys; 

Maricopa County Attorney’s Office, Civil Services 

Division, Phoenix, Arizona; for Maricopa County 

Defendants-Appellees Bill Gates, Clint Hickman, Jack 

Sellers, Thomas Galvin, and Steve Gallardo.

Laura Conover, Pima County Attorney; Daniel Jurkowitz, 

Deputy County Attorney; Pima County Attorney’s Office, 

Civil Division, Tucson, Arizona; for Pima County 

Defendants-Appellees Rex Scott, Matt Heinz, Sharon 

Bronson, Steve Christy, and Adelita Grijalva. 
LAKE V. FONTES 5

OPINION

PER CURIAM:

Kari Lake and Mark Finchem (“Plaintiffs”), the 

Republican nominees for Governor and Secretary of State of 

Arizona, filed this action before the 2022 general election, 

contending that Arizona’s use of electronic tabulation 

systems violated the federal Constitution.1 The district court 

dismissed their operative first amended complaint for lack of 

Article III standing. Lake v. Hobbs, 623 F. Supp. 3d 1015, 

1027–29 (D. Ariz. 2022).

Plaintiffs’ candidacies failed at the polls, and their 

various attempts to overturn the election outcome in state 

court have to date been unavailing.2 On appeal, they no 

longer seek any relief concerning the 2022 election, but 

instead seek to bar use of electronic tabulation systems in 

future Arizona elections. We agree with the district court 

that Plaintiffs’ “speculative allegations that voting machines 

may be hackable are insufficient to establish an injury in fact 

under Article III,” Lake, 623 F. Supp. 3d at 1029, and affirm. 

I.

Arizona authorized electronic tabulation of election 

ballots in 1966. See H.B. 204, 27th Leg., 2d. Reg. Sess. 

1 Plaintiffs raised no federal statutory claims and have withdrawn the 

state law claims raised in their operative complaint on appeal.

2 See, e.g., Lake v. Hobbs, 525 P.3d 664 (Ariz. Ct. App. 2023); Order, 

Finchem v. Fontes, No. CV 23-0064 (Ariz. Ct. App. Aug. 1, 2023).
6 LAKE V. FONTES

(Ariz. 1966).3 Under the Arizona election system, voters 

mark their choices on paper ballots, which are then fed into 

electronic machines for tabulation. Ariz. Rev. Stat. §§ 16-

462, 16-468(2), 16-502(A).4 Before being certified for use

in elections, the tabulation machines are tested by an 

accredited laboratory and the Secretary of State’s 

Certification Committee. Ariz. Rev. Stat. § 16-442; see 

also§16-552 (identical testing requirement for tabulation of 

early ballots). The certified machines are then subjected to 

pre-election logic and accuracy tests by the Secretary of 

State and the election officials of each county. Ariz. Rev. 

Stat. § 16-449; Ariz. Sec’y of State, 2019 Election 

Procedures Manual (“2019 EPM”) at 86.5 

After tabulation by machines, the paper ballots cast by 

each voter are retained for post-election audits and possible 

recounts. After an election, political party representatives 

3 Like the district court, we take judicial notice of relevant Arizona 

statutes and the Secretary of State’s 2019 Election Procedures Manual. 

See Fed. R. Evid. 201(b); Lake, 623 F. Supp. 3d at 1023 n.5. We find it 

unnecessary to rely on any testimony from the preliminary injunction 

hearing. See id. at 1023 (citing testimony from preliminary injunction 

hearing).

4 Despite the state-law requirement that voters mark paper ballots, the 

operative complaint requested that the district court mandate use of 

“paper ballots” in the 2022 general election. Plaintiffs’ attorneys were 

sanctioned in part for “misrepresentations about Arizona’s use of paper 

ballots.” Lake v. Hobbs, 643 F. Supp. 3d 989, 1001 (D. Ariz. 2022). 

Appeals of that sanctions order are pending separately. See Lake v. 

Gates, et. al., No. 23-16022 (9th Cir. appeal docketed Jul. 24, 2023); 

Lake v. Gates, et. al., No. 23-16023 (9th Cir. appeal docketed Jul. 24, 

2023).

5 The current manual does not differ from the 2019 Manual in any respect 

relevant to this opinion. See Ariz. Sec’y of State, 2023 Election 

Procedures Manual.
LAKE V. FONTES 7

conduct a sample hand count of the paper ballots under the 

oversight of county elections departments. Ariz. Rev. Stat. 

§ 16-602. The counties then perform additional logic and 

accuracy testing. 2019 EPM at 235. Arizona law mandates 

a recount whenever the margin between the top two 

candidates “is less than or equal to one-half of one percent 

of the number of votes cast for both such candidates or on 

such measures or proposals.” Ariz. Rev. Stat. § 16-661.

When not in use, the hardware components of electronic 

tabulation systems are inventoried, stored in secure 

locations, and sealed with tamper-resistant seals. 2019 EPM 

at 95–96. An electronic tabulation system may not be 

connected to the internet, wireless communications devices, 

or external networks and may “not contain remote access 

software or any capability to remotely-access the system.” 

2019 EPM at 96. 

II.

The gravamen of Plaintiffs’ operative complaint is that 

notwithstanding safeguards, electronic tabulation systems 

are particularly susceptible to hacking by non-governmental 

actors who intend to influence election results. Although the 

operative complaint cites opinions by purported experts on 

manipulation risk and alleges that difficulties have occurred 

in other states using electronic tabulation systems, it does not 

contend that any electronic tabulation machine in Arizona 

has ever been hacked. And, on appeal, counsel for Plaintiffs 

conceded that their arguments were limited to potential 

future hacking, and not based on any past harm. 

A.

The district court held that, even accepting the factual 

allegations of the operative complaint as true, Plaintiffs had 
8 LAKE V. FONTES

not established Article III standing to sue. Lake, 623 F.

Supp. 3d at 1029. Article III requires, at an “irreducible 

constitutional minimum,” that a plaintiff have “(1) suffered 

an injury in fact, (2) that is fairly traceable to the challenged 

conduct of the defendant, and (3) that is likely to be 

redressed by a favorable judicial decision.” Spokeo, Inc. v. 

Robins, 578 U.S. 330, 338 (2016) (citing Lujan v. Defs. of 

Wildlife, 504 U.S. 555, 560–61 (1992)). The plaintiff must 

demonstrate a “concrete and particularized” and “actual or 

imminent” “invasion of a legally protected interest.” Lujan,

504 U.S. at 560. A “concrete” injury must be “real,” Spokeo, 

578 U.S. at 340, and an “imminent” one must be “certainly 

impending,” Clapper v. Amnesty Int’l USA, 568 U.S. 398, 

409 (2013). “[A]n abstract, theoretical concern will not do.” 

Pierce v. Ducey, 965 F.3d 1085, 1089 (9th Cir. 2020). 

An injury is “particularized” when it impacts a plaintiff 

in a “personal and individual way.” Spokeo, 578 U.S. at 339

(quoting Lujan, 504 U.S. at 560 n.1). “An interest shared 

generally with the public at large in the proper application of 

the Constitution and laws will not do.” Arizonans for Off. 

Eng. v. Arizona, 520 U.S. 43, 64 (1997); see also Pierce, 965 

F.3d at 1089.

1.

Plaintiffs assert standing as the nominated candidates of 

their party and as voters. Because Lake and Finchem are no 

longer nominated candidates for state office and no longer 

seek relief related to the 2022 election, they likely now lack 

standing on that ground. See TransUnion LLC v. Ramirez, 

141 S. Ct. 2190, 2208 (2021) (“Plaintiffs must maintain their 

personal interest in the dispute at all stages of litigation.”). 

But even assuming Plaintiffs can continue to claim standing 
LAKE V. FONTES 9

as prospective voters in future elections, they have not 

established the kind of injury Article III requires.

We note as an initial matter that the precise nature of 

Plaintiffs’ claimed injury is not clear. Although Plaintiffs 

contend that the use of electronic tabulation systems denies 

them a “fundamental right” to vote, they do not allege that 

the State has in any way burdened their individual exercise 

of the franchise. See, e.g., Harper v. Virginia State Bd. of 

Elections, 383 U.S. 663, 665–66 (1966) (finding a fee an 

unconstitutional burden on the right to vote). Nor do they 

claim that the Arizona system discriminates against them 

because of race, sex, inability to pay a poll tax, or age. See

U.S. Const. amends. XV, XIX, XXIV, or XXVI. 

Moreover, Plaintiffs do not appear to allege a 

particularized injury. They do not allege that the tabulation 

of their votes will be manipulated. Rather, as the district 

court noted, they at most assert a “generalized interest in 

seeing that the law is obeyed,” an interest that “is neither 

concrete nor particularized.” Lake, 623 F. Supp. 3d at 1028 

(cleaned up); see also Lance v. Coffman, 549 U.S. 437, 441–

42 (2007) (finding no particularized injury in voters’ 

challenge to districting plan where “only injury” alleged was 

that law “has not been followed.”). 

And, to the extent that Plaintiffs assert a constitutional 

right to a certain level of accuracy in the Arizona tabulation 

system, their claim plainly fails. 6 “[I]t is the job of 

6 Plaintiffs cite the “Cyber Ninjas” hand-count audit of Maricopa County 

votes in 2020 authorized by the Arizona Senate. But, they overlook the 

audit report’s conclusion that “there were no substantial differences 

between the hand count of the ballots provided and the official election 

canvass results for Maricopa County.” Maricopa County Forensic 
10 LAKE V. FONTES

democratically elected representatives to weigh the pros and 

cons of various balloting systems,” recognizing that “[n]o 

balloting system is perfect.” Weber v. Shelley, 347 F.3d 

1101, 1106–07 (9th Cir. 2003). Indeed, “the possibility of 

electoral fraud can never be completely eliminated.” Id. at 

1106.

2.

In any event, the district court correctly held that 

Plaintiffs, who claim no past injury, failed to establish that a

future injury was either imminent or substantially likely to 

occur. “Where there is no actual harm . . . its imminence 

(though not its precise extent) must be established.” Lujan, 

504 U.S. at 564 n.2. Article III requires a “certainly 

impending” injury or, at the very least, a “substantial risk 

that the harm will occur,” Susan B. Anthony List v. Driehaus, 

573 U.S. 149, 158 (2014) (cleaned up). 

Plaintiffs simply have not plausibly alleged a “real and 

immediate threat of” future injury. City of Los Angeles v. 

Lyons, 461 U.S. 95, 103 (1983). Rather, as the district court 

noted, they posit only “conjectural allegations of potential 

injuries.” Lake, 623 F. Supp. 3d at 1032. Their operative 

complaint relies on a “long chain of hypothetical 

contingencies” that have never occurred in Arizona and 

“must take place for any harm to occur—(1) the specific 

voting equipment used in Arizona must have ‘security 

failures’ that allow a malicious actor to manipulate vote 

totals; (2) such an actor must actually manipulate an 

election; (3) Arizona’s specific procedural safeguards must 

fail to detect the manipulation; and (4) the manipulation 

Election Audit, Volume I, at 1 (Sept. 24, 2021), https://perma.cc/B4EAU683.
LAKE V. FONTES 11

must change the outcome of the election.” Id. at 1028. This 

is the kind of speculation that stretches the concept of 

imminence “beyond its purpose.” Lujan, 504 U.S. at 564 

n.2. Plaintiffs’ “conjectural allegations of potential 

injuries,” Lake, 623 F. Supp. 3d at 1032, are insufficient to 

plead a plausible “real and immediate threat of” election 

manipulation, Lyons, 461 U.S. at 103. 

In the end, none of Plaintiffs’ allegations supports a 

plausible inference that their individual votes in future 

elections will be adversely affected by the use of electronic 

tabulation, particularly given the robust safeguards in 

Arizona law, the use of paper ballots, and the post-tabulation 

retention of those ballots.

7 The district court correctly 

dismissed the operative complaint for lack of Article III 

standing.8

III.

The judgment of the district court is AFFIRMED.

7 Curling v. Kemp, a decision cited by Plaintiffs finding plausible an 

allegation of a “future hacking event,” 334 F. Supp. 3d 1303, 1316, 1320 

(N.D. Ga. 2018), is not to the contrary. The plaintiffs in that case alleged 

that the electronic system at issue “was actually accessed or hacked 

multiple times.” Id. at 1314. And, the electronic machines used in 

Georgia did “not create a paper trail.” Id. at 1308. In Arizona, “every 

vote cast can be tied to a paper ballot.” Lake, 623 F. Supp. 3d at 1028 

n.13.

8 We therefore find it unnecessary to address the district court’s holding 

that the complaint must also be dismissed under the Eleventh 

Amendment for failure to plausibly allege a constitutional violation. See

Lake, 623 F. Supp. 3d at 1032.