U.S. ELECTION ASSISTANCE COMMISSION

633 3rd St. NW, Suite 200

Washington, DC 20001 

EAC | Helping America Vote EAC.gov page 1

Order of Dismissal: Graeff v. United States Election Assistance Commission et al.

The EAC is making available for public inspection the following Order of Dismissal and 

Memorandum and Order. In June 2022, a pro se plaintiff filed an action in the United States 

District for the Eastern District of Missouri against the EAC, the EAC Commissioners, and the 

Missouri Secretary of State. The complaint alleged that the electronic voting systems in use in

Missouri for the 2020 election were invalid and therefore the results of the election must be 

declared invalid. On March 9, 2023, the court granted the EAC’s Motion to Dismiss. The court 

found that the Plaintiff did not demonstrate a particularized and concrete injury in fact.

The EAC has also made available a declaration and exhibits submitted in support of the EAC’s 

Motion to Dismiss, those documents are available here: 

https://www.eac.gov/sites/default/files/foia/Declaration_of_Mark_A_Robbins.pdf.
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UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MISSOURI

 EASTERN DIVISION 

ALISON GRAEFF, ) 

) 

Plaintiff, ) 

) 

v. ) 

) 

UNITED STATES ELECTION ) 

ASSISTANCE COMMISSION, ) 

THOMAS HICKS, CHRISTY, ) 

MCCORMICK, BENJAMIN W. ) 

HOVLAND, DONALD PALMER, and ) 

JOHN J. ASHCROFT, ) 

) 

Defendants. ) 

No. 4:22-CV-682 RLW 

ORDER OF DISMISSAL 

In accordance with the Memorandum and Order of today’s date, and incorporated herein, 

IT IS HEREBY ORDERED that all claims against Defendants United States Election 

Assistance Commission, Thomas Hicks, Christy McCormick, Benjamin W. Hovland, Donald L. 

Palmer and Defendant John J. Ashcroft are DISMISSED for lack of subject matter jurisdiction. 

_________________________________ 

RONNIE L. WHITE 

UNITED STATES DISTRICT JUDGE 

Dated this 9th day of March, 2023. 
 

 

 

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UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MISSOURI

 EASTERN DIVISION 

ALISON GRAEFF, ) 

) 

Plaintiff, ) 

) 

v. ) 

) 

UNITED STATES ELECTION ) 

ASSISTANCE COMMISSION, et al., ) 

) 

Defendants. ) 

No. 4:22-CV-682 RLW 

MEMORANDUM AND ORDER 

This matter is before the Court on a number of motions. Pending before the Court is 

Plaintiff Alison Graeff’s motion for a preliminary injunction. (ECF No. 8). All the defendants 

oppose Plaintiff’s motion. Also pending before the Court is a motion to dismiss for lack of subject 

matter jurisdiction pursuant to Fed. R. Civ. P. 12(b)(1), filed by Defendant United States Election 

Assistance Commission (“EAC”) and its Commissioners, Defendants Thomas Hicks, Christy 

McCormick, Benjamin W. Hovland, and Donald L. Palmer (collectively, “the Federal 

Defendants”).1

1

Plaintiff is suing the EAC Commissioners in their official and individual capacities. 

 (ECF No. 31). In addition, Defendant John J. Ashcroft, the Missouri Secretary 

of State, filed a motion to dismiss for failure to state a claim pursuant to Fed. R. Civ. P. 12(b)(6).2 

2

Plaintiff is suing Defendant John J. Ashcroft in his official and individual capacities. 

(ECF No. 32). Plaintiff opposes Defendants’ motions to dismiss, which are fully briefed and ripe 

for review.3 

3

Plaintiff recently filed a Motion for Partial Summary Judgment, which is not fully briefed. 

(ECF No. 53). 

For the reasons that follow, the Court grants the Federal Defendants’ motion to 

dismiss for lack of subject matter jurisdiction and denies without prejudice Plaintiff’s motions for 
 

 

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preliminary injunction and for partial summary judgment and Defendant Ashcroft’s motion to 

dismiss for failure to state a claim. 

I. Background 

A. Allegations in Amended Complaint 

Alison Graeff, who is proceeding in this matter without the assistance of counsel, is a 

Missouri voter and a former candidate for Missouri’s 106th House district. Plaintiff alleges in her 

Amended Complaint that in the November 2020 general election, Missouri used electronic voting 

systems that were not tested by properly accredited test laboratories, and that Missouri continues 

to use the same voting systems today in violation of federal and state election laws. More 

specifically, Plaintiff alleges that the State of Missouri used and continues to use electronic 

equipment tested by three laboratories – SLI Compliance, NTS Huntsville Laboratory (“NTS”), 

and Pro V&V. According to Plaintiff, these three laboratories were not properly accredited or 

certified by the EAC at the time they performed their testing. In her Amended Complaint, 

Plaintiff seeks to enjoin the defendants from continuing to use voting systems tested by these three 

test laboratories and to force the State of Missouri to use hand-counted, paper ballots for future 

elections. 

As background, in 2002, Congress passed the Help America Vote Act of 2002, 52 U.S.C. 

§§ 20901, et seq., (“HAVA”), which established the EAC. Under HAVA, the EAC is charged 

with providing for the “testing, certification, decertification, and recertification of voting system 

hardware and software by accredited laboratories.” 52 U.S.C. § 20971(a)(1). Under this 

authority, the EAC, in conjunction with the National Institute of Standards and Technology, set up 

a Testing and Certification Program, which is designed to ensure that competent laboratories are 

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testing voting systems and software, and that they are following accepted standards in their testing. 

As part of this program, the EAC promulgated the Voluntary Voting System Guidelines 

(“VVSG”). The VVSG are used to guide the EAC’s implementation of the Testing and 

Certification Program. Under the Testing and Certification Program, independent testing 

laboratories are certified and accredited as a Voting System Test Laboratory (“VSTL”) by the 

EAC. “[N]o laboratory may be accredited for purposes of this section unless its accreditation is 

approved by a vote of the [EAC].” 52 U.S.C. § 20971(b)(2)(A). 

Under HAVA, states may choose to participate in EAC’s Testing and Certification 

Program. “At the option of a State, the State may provide for the testing, certification, 

decertification, or recertification of its voting system hardware and software by the laboratories 

accredited by the [EAC] under this section.” 52 U.S.C. § 20971(a)(2). According to the Amended 

Complaint, Missouri “adopted” HAVA, yet the state “failed to be in compliance with the [HAVA] 

Subtitle B § 231(a)(1)(2)(b)(1) and the federal standards for laboratory testing accreditation set 

forth in the EAC Voting Systems Test Laboratory Program Manual, version 2.0, (OMB-3265-

0018), Sections 3.4, 3.6 and 3.8 during the November 3, 2020 General Election and subsequent 

elections thereafter.” (ECF No. 23 at 10-11). 

The Amended Complaint alleges Missouri is not in compliance with HAVA in that the 

State used and continues to use election equipment that was not tested by a properly accredited 

VSTL. Plaintiff contends that Missouri has used and continues to use voting systems and 

software that were tested by NTS, SLI Compliance, and Pro V&V. According to Plaintiff, these 

three testing laboratories were not properly accredited as VSTLs under the EAC’s Testing and 

Certification Program at the time they tested Missouri’s election equipment, and because they were 

3 
 

 

 

 

 

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without proper accreditation, “an issued certification of any voting system” from these three 

companies was “invalid.” (Id. at 31). 

With regard to NTS, the Amended Complaint alleges that the State of Missouri used NTS 

to test the Unisyn OpenElect software 1.3, which was used by 66 Missouri counties in the “2020 

election.” (Id. at 23). However, according to Plaintiff, NTS never received “legal accreditation” 

from the EAC to be a VSTL, “nor is there a Certificate of Accreditation available on the EAC 

website as dictated by HAVA” and, therefore, NTS had no authority “to test our voting machines” 

and use of the equipment NTS tested was in violation of EAC’s policies and HAVA. (Id. at 22). 

Plaintiff also alleges SLI Compliance was not a properly accredited VSTL. According to 

the Amended Complaint, SLI Compliance tested software and voting machines that were used in 

10 Missouri counties. SLI Compliance also did testing “for the electronic voting system Hart 

InterCivic Verity Voting.” (Id. at 26). Plaintiff acknowledges that at one time SLI Compliance 

was accredited as a VSTL, but according to Plaintiff, SLI Compliance’s accreditation has expired. 

Plaintiff alleges SLI Compliance’s “Certificate of Accreditation” was issued in 2007, but it was 

not properly renewed and, therefore, the laboratory was not in compliance with EAC policies or 

HAVA. Plaintiff further alleges that in 2018, SLI Compliance was given a three-year VSTL 

accreditation, “even though law states the effective date of certification shall not exceed a period 

of two years.” (Id. at 24). Moreover, SLI Compliance’s 2018 Certificate of Accreditation was 

signed by Brian Newby, EAC’s Executive Director, not by the EAC’s Chairman “as law 

requires.”4 

4 The Amended Complaint alleges that SLI Compliance’s current Certificate of 

Accreditation also was not signed by the EAC’s Chairman, but instead by the Director, Mona 

(Id. at 24). 

4 
 

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Plaintiff further alleges that Pro V&V was not properly accredited as a VSTL with the 

EAC. According to the Amended Complaint, Pro V&V received its original Certificate of 

Accreditation to be a VSTL in 2015, and the certification should have been renewed in 2017 and 

2019 but was not. Moreover, Pro V&V’s Certificate of Accreditation was signed by Alice Miller, 

EAC’s Executive Director, not by the EAC Chairman “as law requires.” (Id. at 26).5

5

Plaintiff contends Pro V&V’s current Certificate of Accreditation was also signed by 

Mona Harrington, the Director, not the Chairman of the EAC. 

 Plaintiff 

further alleges that the EAC has falsely stated that Pro V&V was and has been an accredited VSTL, 

when “current certification under Title 52 U.S.C. Chapter 209 [has] not been followed to render 

legal accreditation.” (Id. at 30). Plaintiff alleges Pro V&V “was not accredited during the time 

it falsely claims the machines were accredited and in use in the [S]tate of Missouri and 

nationwide.” (Id.). 

According to the Amended Complaint, Missouri’s Secretary of State and the EAC 

“knowingly allowed Missourians to vote on networked machines that were not certified due to 

lack of accredited VSTL(s) since the November 3, 2020 elections.” (Id. at 41). “This onerous 

conduct renders the [election] results void.” (Id. at 41). “[A]ny votes cast through an uncertified 

electronic voting machine [are] null and void.” (Id. at 43). Moreover, “[t]he Defendants 

continued to certify election results knowing they violated Missourian’s [sic] civil liberties 

subsequently forcing Plaintiff into fraudulent contracts with illegally elected government officials: 

providing said officials with unlawful power to enforce actions under color of law coercing and 

subjecting Plaintiffs [sic] into servitude in which our liberty to determine our own course and way 

Harrington. 

5 
 

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of life has been strong armed from us.” (Id. at 42). The EAC has “failed to perform its duties to 

The People in safeguarding and securing our electronic voting systems, our critical infrastructure, 

and our voices.” (Id. at 43). “This violates my rights as a citizen, silences my voice as a voter, 

eliminating my right to express my political opinion on who governs my state and my fundamental 

right to vote.” (Id.) 

Based on these allegations, Plaintiff brings the following six counts against all the 

defendants in this case: “Violation of Procedural Due Process UNDER 42 U.S.C. § 1983 and 28 

U.S.C § 1331 (1st, 14th, and 15th Amendments)” (Count I); “Violation of Substantive Due Process 

UNDER 42 U.S.C. § 1983, 18 U.S.C. § 245 (Fourteenth Amendment, Equal Rights)” (Count II); 

“Deprivation of Civil Rights UNDER 42 U.S.C. § 1983, 42 U.S.C. § 1985(3) (MO Const. Art. I, 

§ 14 and Art. I, § 10)” (Count III); Deprivation of Constitutional Rights UNDER 28 U.S.C. § 1331 

(MO Const. Art. I, § 14; Art. I, § 10; Art. I, § 25; Art. XI, § 3)” (Count IV); “Voting Rights 

Violation UNDER 52 U.S.C. § 20511(2)(b) (U.S. Constitutional First and Fourteenth 

Amendments) Missouri Const. Article I, § 25” (Count V); and “DECLARATIVE JUDGMENT 

UNDER 28 U.S.C. § 2201” (Count VI). (Id. at 49-55). 

Plaintiff seeks the following for relief in this case: (1) “[t]he immediate and permanent 

removal of the State of Missouri from the Federal mandates under the HAVA,” (2) “[t]he 

immediate and permanent removal of all electronic voting machines, equipment, and poll pads in 

the State of Missouri”; (3) the “immediate[] return” of the State of Missouri “to hand-cast[] and 

hand-counted paper ballots”; (4) an order enjoining Defendants from “implementing or enforcing 

the use of electronic voting machines, equipment, and electronic poll pads and from taking any 

other action to implement the use of electronic voting equipment[] in all future Missouri elections”; 

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and (5) an order prohibiting the Missouri Secretary of State and all state election officials “from 

deletion, destruction, disposal, or altering of all election data pertaining to the November 3, 2020 

General election in the State of Missouri.” (Id. at 55-56). 

B. Motion for Preliminary Injunction 

When Plaintiff initiated this case of action, she filed a motion for a temporary restraining 

order, which the Court denied on June 30, 2022.6 

6

This case was initially assigned to the Honorable Sarah E. Pitlyk. On July 15, 2022, 

following Judge Pitlyk’s recusal, this case was transferred to the undersigned. (ECF Nos. 15 & 

16). 

Following the denial, Plaintiff moved for the 

entry of a preliminary injunction. Plaintiff asks that the Court enjoin the defendants from 

“implementing or enforcing the use of electronic voting machine, equipment, and electronic poll 

pads in the August 2, 2022 Missouri Primaries and the November 8, 2022 Missouri General 

Election and from taking any other action to implement the use of electronic voting equipment[] 

in all future Missouri elections.” (ECF No. 8 at 20). Plaintiff further asks that the Court 

“[p]rohibit the Missouri Secretary of State, and all election officials in the state of Missouri from 

deletion, destruction, disposal, or altering of all election data pertaining to the November 3, 2020 

General election in the State of Missouri.” (Id.). Plaintiff’s motion for preliminary injunction, 

which all the defendants oppose, remains pending before the Court. 

C. Motions to Dismiss 

Defendants did not answer Plaintiff’s Amended Complaint, instead they moved to dismiss 

the cause of action. The Federal Defendants filed a motion to dismiss for lack of subject matter 

jurisdiction pursuant to Fed. R. Civ. P. 12(b)(1). The Federal Defendants argue Plaintiff cannot 

7 
 

 

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establish Article III standing in that Plaintiff has not articulated a concrete and particularized 

injury-in-fact. These defendants also argue that any injury Plaintiff has alleged is incapable of 

being redressed by the Federal Defendants. The Federal Defendants further argue that Plaintiff’s 

claims with regard to the 2022 elections are moot, and that they are entitled to sovereign immunity. 

Defendant Ashcroft also moves to dismiss the claims against him. Defendant Ashcroft 

filed a motion to dismiss for failure to state a claim pursuant to Fed. R. Civ. P. 12(b)(6). 

Defendant Ashcroft argues that Plaintiff’s 57-page Amended Complaint is verbose, repetitive, and 

incoherent. He argues the Amended Complaint fails to meet the pleading requirements of Fed. 

R. Civ. P. 8(a), and Plaintiff fails to state a plausible claim for relief against him. Plaintiff opposes 

both motions to dismiss. 

II. Discussion 

Federal Courts are courts of limited jurisdiction. “The requirement that jurisdiction be 

established as a threshold matter springs from the nature and limits of the judicial power of the 

United States and is inflexible and without exception.” Kessler v. Nat'l Enterprises, Inc., 347 F.3d 

1076, 1081 (8th Cir. 2003) (quotation marks and quoted case omitted). If the Court does not have 

jurisdiction, it does not have the power to rule on the merits and must dismiss the action. Arbaugh 

v. Y&H Corp., 546 U.S. 500, 514 (2006). Accordingly, Court has an obligation to determine 

whether subject-matter jurisdiction exists before turning the merits of a case, including Plaintiff’s 

motion for the entry of a preliminary injunction. Hertz Corp. v. Friend, 559 U.S. 77, 94 (2010) 

(“Courts have an independent obligation to determine whether subject-matter jurisdiction 

exists[.]”). The Court, therefore, will first take up the Federal Defendants’ motion to dismiss for 

lack of subject matter jurisdiction. 

8 
 

 

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A. Article III Standing 

In their motion to dismiss, the Federal Defendants raise the issue of standing. They argue 

that the allegations in Plaintiff’s Amended Complaint fail to establish the required elements of 

Article III standing, and her suit should be dismissed for lack of subject matter jurisdiction. 

Article III of the U.S. Constitution “limits the category of litigants empowered to maintain 

a lawsuit in federal court” to those with “actual cases or controversies.” Spokeo, Inc. v. Robins, 

578 U.S. 330, 338 (2016), as revised (May 24, 2016). Federal courts are only authorized to hear 

cases or controversies that present actual imminent injury, which is caused by the named 

defendants, and can be redressed by a favorable decision. Id. These requirements have been 

established as the constitutional minimum to ensure that federal courts adjudicate real disputes and 

not hypothetical or abstract claims. Standing is jurisdictional and a threshold issue in every 

federal case. Warth v. Seldin, 422 U.S. 490, 498 (1975); Disability Support All. v. Heartwood 

Enterprises, LLC, 885 F.3d 543, 547 (8th Cir. 2018). 

Plaintiff, as the party invoking federal jurisdiction, bears the burden of demonstrating the 

following: (1) that she suffered an injury in fact, (2) that is fairly traceable to the challenged 

conduct of the defendants, and (3) that is likely to be redressed by a favorable judicial decision. 

Lujan v. Defs. of Wildlife, 504 U.S. 555, 560-61 (1992); United States v. Metro. St. Louis Sewer 

Dist., 569 F.3d 829, 833–34 (8th Cir. 2009). Foremost among the three requirements is injury in 

fact. To establish injury in fact, Plaintiff must show that she “suffered ‘an invasion of a legally 

protected interest’ that is ‘concrete and particularized’ and ‘actual or imminent, not conjectural or 

hypothetical.’” Spokeo, Inc., 578 U.S. at 339 (quoting Lujan, 504 U.S. at 560). When a case is at 

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the pleading stage, the plaintiff must “clearly allege facts demonstrating” each element of standing. 

Spokeo, Inc., 578 U.S. at 338 (citing Warth, 422 U.S. at 518) (cleaned up). 

Here, Plaintiff alleges the defendants allowed voting systems and software used in 

Missouri’s elections to be tested by laboratories that were not properly accredited or certified under 

the EAC’s testing program. Plaintiff devotes pages of her Amended Complaint to detailing the 

EAC’s Testing and Certification Program, and how NTS, SLI Compliance, and Pro V&V were 

not properly certified or accredited as VSTLs. As for injuries, Plaintiff alleges she and other 

Missourians “have constitutionally protected interests in the benefits that come from the right to 

vote and not be subject to the illegal voting systems/equipment, software, and modifications, 

including the ability to pursue our First Amendment right to legal elections without being subject 

to casting an illegal vote that violates federal and state laws.” (ECF No. 23 at 50, ¶¶ 1038-41; 52, 

¶¶ 1094-97). Further, that “Plaintiffs [sic] were harmed and continue to be irreparably harmed by 

these unlawful acts, including by suffering formed contracts with representatives through 

deceptive practices and fraudulent certifications.” (Id. at 51, ¶¶ 1054-56; 51, ¶¶ 1073-75; 52, 

1109-1111; 53 1134-36; 54, ¶¶ 1157-59). Notably, while Plaintiff alleges that the three 

laboratories were not properly certified or accredited, she does not allege that they failed to test 

the voting systems or software used in Missouri, or that they did not follow accepted standards in 

their testing. The Amended Complaint also does not allege that Missouri’s uncertified voting 

systems and software failed to properly tabulate votes or that the results of any elections, including 

the one in which Plaintiff was a candidate, were inaccurate. Plaintiff’s claimed injuries rest solely 

on the defendants’ alleged statutory and regulatory violations, which she asserts nullify her and 

other Missourians’ votes. 

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1. Plaintiff’s alleged harm is not particularized 

For an injury to be “particularized,” it “must affect the plaintiff in a personal and individual 

way.” Spokeo, Inc., 578 U.S. at 339 (quoting Lujan, 504 U.S. at 560 n.1). When the alleged 

injury is undifferentiated and common to all members of the public, courts routinely dismiss such 

cases as “generalized grievances” that cannot support Article III standing. United States v. 

Richardson, 418 U.S. 166, 173–75 (1974). Courts across the country have dismissed dozens, if 

not hundreds, of suits challenging election laws on the ground that the plaintiffs failed to allege 

particularized injuries in fact. See, e.g., Wood v. Raffensperger, 981 F.3d 1307, 1313 (11th Cir. 

2020) (plaintiff’s interest in “ensur[ing that] ... only lawful ballots are counted” did not amount to 

particularized injury to confer standing); Nolles v. State Comm. for Reorganization of Sch. 

Districts, 524 F.3d 892, 900 (8th Cir. 2008) (plaintiffs failed “to allege a specific individualized 

injury . . . resulting from the allegedly unfair election, that is, an injury not shared by all the voters 

who voted as they did in the referendum election.”); Crist v. Comm’n on Presidential Debates, 262 

F.3d 193, 195 (2d Cir. 2001) (“a voter fails to present an injury-in-fact when the alleged harm is 

abstract and widely shared ...”); Becker v. Fed. Election Comm’n, 230 F.3d 381, 389 (1st Cir. 

2000) (“the harm done to the general public by [alleged] corruption of the political process is not 

a sufficiently concrete, personalized injury to establish standing”); King v. Whitmer, 505 F. Supp. 

3d 720, 739 n.11 (E.D. Mich. 2020) (voters failed to allege redressable, particularized injury); 

Moore v. Circosta, 494 F. Supp. 3d 289, 312 (M.D.N.C. 2020) (“[T]he notion that a single person's 

vote will be less valuable as a result of unlawful or invalid ballots being cast is not a concrete and 

particularized injury in fact necessary for Article III standing); Donald J. Trump for President, Inc. 

v. Cegavske, 488 F. Supp. 3d 993, 999–1000 (D. Nev. 2020) (“As with other generally available 

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grievances about the government, plaintiffs seek relief on behalf of their member voters that no 

more directly and tangibly benefits them than it does the public at large.”) (internal quotations and 

modifications omitted); Martel v. Condos, 487 F. Supp. 3d 247, 252 (D. Vt. 2020) (“If every voter 

suffers the same incremental dilution of the franchise caused by some third-party’s fraudulent vote, 

then these voters have experienced a generalized injury.”); Paher v. Cegavske, 457 F. Supp. 3d 

919, 926–27 (D. Nev. 2020) (“Plaintiffs’ purported injury of having their votes diluted due to 

ostensible election fraud may be conceivably raised by any Nevada voter.”). “[V]oters can 

challenge a state election procedure in federal court only in limited circumstances, such as when 

the complained of conduct discriminates against a discrete group of voters.” Nolles, 524 F.3d at 

898. In general, plaintiffs alleging election law violations lack standing to sue unless they can 

show they suffered or will suffer an injury that impacts them more than the general public. In 

short, a claim involving a voting injury “requires a point of comparison.” Wood, 981 F.3d at 

1314. 

An alleged violation of an election law alone is not enough. In Lance v. Coffman, 549 

U.S. 437 (2007), for example, a group of voters alleged that a provision in the Colorado 

Constitution allowing congressional redistricting only once per census violated their right under 

the Elections Clause of the U.S. Constitution to have their elected representatives establish their 

congressional districts. Id. at 438. The Supreme Court held that the voters lacked Article III 

standing because “[t]he only injury” the plaintiffs had asserted was “that the laws—specifically 

the Elections Clause—[had] not been followed.” Id. at 442. Noting the plaintiffs asserted no 

particularized stake in the litigation, the Supreme Court ruled the case was “precisely the kind of 

undifferentiated, generalized grievance about the conduct of government that we have refused to 

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countenance[.]” Id. In other words, the relief the plaintiffs sought would have no more directly 

benefitted them than the public at large. See also Richardson, 418 U.S. 166 (dismissing citizen 

suit challenging Justice Black’s appointment to the Supreme Court because plaintiff had no interest 

in the suit “other than that of a citizen and a member of the bar of this Court.”); Fairchild v. Hughes, 

258 U.S. 126 (1922) (finding citizens who challenged the procedures by which the Nineteenth 

Amendment was ratified lacked standing to sue because they sought to assert the right possessed 

by every citizen – “to require that the Government be administered according to law and that the 

public moneys not be wasted.”). But see United States v. Hays, 515 U.S. 737, 742 (1995) (voter 

plaintiffs residing in racially gerrymandered districts could challenge redistricting as racially 

discriminatory); Baker v. Carr, 369 U.S. 186, 207–08 (1962) (finding plaintiffs had Article III 

standing where voters had alleged a state statute “disfavors the voters in the counties in which they 

reside, placing them in a position of constitutionally unjustifiable inequality vis-a-vis voters in 

irrationally favored counties.”). 

Plaintiff makes generalized grievances against the defendants in this case. Throughout 

the Amended Complaint, she appears to be challenging as a citizen and voter in Missouri the 

defendants’ alleged failure to uphold federal and state election laws. Plaintiff alleges the 

defendants failed to properly certify three laboratories that tested voting systems and software used 

in Missouri’s elections, and this failure in turn violated her civil rights and the civil rights of “The 

People.” (ECF No. 23 at 43). In failing to safeguard and secure the state’s electronic voting 

systems, Plaintiff asserts the defendants have “violate[d] my rights as a citizen, silence[d] my voice 

as a voter, eliminating my right to express my political opinion on who governs my state and my 

fundamental right to vote.” (Id. at 43). Plaintiff does not differentiate her interests from the 

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interests of the voting public at large. In fact, she expressly asserts that with this suit, she seeks 

to protect the rights of all Missouri voters. These allegations fall short of a particularized injury 

in fact. 

Plaintiff, however, was at one time a candidate for state office. The Eighth Circuit has 

recognized that candidates may have an interest that is separate and apart from voters. Candidates 

for office “have a cognizable interest in ensuring that the final vote tally accurately reflects the 

legally valid votes cast. An inaccurate vote tally is a concrete and particularized injury to 

candidates ....” Carson v. Simon, 978 F.3d 1051, 1058 (8th Cir. 2020) (footnote omitted). See 

also Whitfield v. Thurston, 3 F.4th 1045, 1047 (8th Cir. 2021) (recognizing that the plaintiff’s 

“interest in this case was predicated on his status as an Independent candidate”). Although 

Plaintiff describes herself “[a]s a candidate, a citizen, and a voter,” she does not assert 

particularized injury to herself as a candidate. In her Amended Complaint, she focuses almost 

exclusively on her purported injuries as a citizen and a voter. See, e.g., ECF No. 23 at 37 (alleging 

that the current system “nullifies any vote cast through electronic voting systems” and that “[t]his 

violates [Plaintiff’s] rights as a citizen” and “silences [her] voice as a voter, eliminating [her] right 

to express [her] political opinion on who governs [her] state and [her] fundamental right to vote”). 

And as discussed above, Plaintiff’s emphasis is on the election law violations themselves, which 

she asserts void and nullify Missouri’s elections. Importantly, Plaintiff does not allege that due 

to the defendants’ alleged misconduct, the results of the elections are inaccurate, that the outcomes 

should have been different, or that she received more votes than what the uncertified machines 

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tabulated. Moreover, Plaintiff is no longer a candidate for office – she lost by a wide margin.7 

7

See Official Election Returns, State of Missouri – August 2, 2022 Primary Election, 

https://www.sos.mo.gov/CMSImages/ElectionResultsStatistics/PrimaryElectionAugust2 2022.p 

df at 36 (last visited March 6, 2023). 

Despite being a former candidate for public office, Plaintiff has not alleged or shown facts that she 

suffered or will suffer an injury that impacts her more than the general public. See Stein v. Cortés, 

223 F. Supp. 3d 423, 432-33 (E.D. Pa. 2016) (finding no standing where the plaintiff, an 

unsuccessful candidate, alleged that Pennsylvania’s electronic voting machines may be susceptible 

to hacking). The Court finds Plaintiff has not alleged or established a particularized harm that 

meets the standing requirements under Article III. 

2. Plaintiff’s injury is not sufficiently concrete. 

In addition to being particularized, Plaintiff’s alleged injury must be concrete. In her 

Amended Complaint, Plaintiff alleges the Federal Defendants ignored and violated provisions of 

HAVA, in that they failed to properly certify VSTLs. According to the Amended Complaint, 

some of the provisions of HAVA have been adopted and incorporated into Missouri State law, and 

Defendant Ashcroft violated provisions of HAVA adopted by the State allowing uncertified voting 

systems to be used in Missouri elections. 

Setting aside the question of whether there is an enforcement mechanism for a private right 

of action under HAVA, a violation of a statute alone is not enough to confer standing.8 

8

HAVA, which regulates the conduct of officials involved in the voting process, does not 

appear to create a private right of action. The Court has found no case interpreting HAVA as 

conferring a private right of action under its own statutory provisions, 42 U.S.C. § 1983, or 

otherwise. HAVA does have an enforcement mechanism that specifies the U.S. Attorney General 

may bring suit to enforce certain of its statutory provisions. See 52 U.S.C. § 21111. 

The 

Supreme Court in Spokeo instructed that an alleged violation of a statute does not confer standing 

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in and of itself, but rather federal courts are to examine whether the plaintiff seeking relief under 

a statute has suffered concrete injury. 

Congress’ role in identifying and elevating intangible harms does not mean that a 

plaintiff automatically satisfies the injury-in-fact requirement whenever a statute 

grants a person a statutory right and purports to authorize that person to sue to 

vindicate that right. Article III standing requires a concrete injury even in the 

context of a statutory violation. For that reason, [plaintiff] could not, for example, 

allege a bare procedural violation, divorced from any concrete harm, and satisfy the 

injury-in-fact requirement of Article III. 

Spokeo, Inc., 578 U.S. at 341. 

The Supreme Court in Spokeo differentiated concrete from particularized injuries. It 

explained that a “concrete” injury must be “de facto,” that it is, “it must actually exist.” Id. at 

340. Certain tangible harms readily qualify as concrete injuries, such as physical injury and 

monetary damages. An injury need not be “tangible” to be concrete, however, certain “intangible 

injuries can nevertheless be concrete,” particularly if the intangible injury has been recognized 

historically as providing the basis for recovery, even if the harm may be difficult to prove or 

measure. Id. As an example, damage to reputation as a result of slander is a concrete, intangible 

injury. Id. The Supreme Court in Spokeo, however, did not decide whether the plaintiff in that 

case had alleged concrete harm under the Fair Credit Reporting Act (“FCRA”). Instead, it 

remanded the case back to the Ninth Circuit, instructing the lower court to make a standing 

determination. 

In a more recent decision, TransUnion LLC v. Ramirez, 141 S. Ct. 2190 (2021), the 

Supreme Court expounded on what constitutes a concrete injury for purposes of Article III 

standing. In Ramirez, the plaintiffs also brought claims for violations of the FCRA. In 

addressing whether the plaintiffs had established Article III standing, the Supreme Court reiterated 

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its holding in Spokeo – that Congress cannot confer standing by creating an injury where one did 

not exist before. Id. at 2205. The Supreme Court further explained: 

[A]n important difference exists between (i) a plaintiff ’s statutory cause of action 

to sue a defendant over the defendant’s violation of federal law, and (ii) a plaintiff’s 

suffering concrete harm because of the defendant’s violation of federal law. 

Congress may enact legal prohibitions and obligations. And Congress may create 

causes of action for plaintiffs to sue defendants who violate those legal prohibitions 

or obligations. But under Article III, an injury in law is not an injury in fact. 

Id. at 2205. Applying these principles, the Supreme Court found that the plaintiffs who had 

inaccurate and misleading credit reports disseminated by the defendant to third parties had suffered 

a concrete injury, because they had “suffered a harm with a ‘close relationship’ to the harm 

associated with the tort of defamation.” Id. at 2209. But as to the plaintiffs whose reports were 

not shared with third parties, the Supreme Court held these plaintiffs had not alleged a concrete 

injury, even though the plaintiffs’ internal credit files contained misleading and potentially 

damaging information if the information were to be disclosed. Id. at 2212. There was no 

concrete injury because these plaintiffs had not shown that the defendant had provided, or that 

there was a sufficient likelihood the defendant would provide, the inaccurate and misleading credit 

reports to third parties. Id. 

As discussed in more detail above, Plaintiff claims the defendants violated election laws – 

more specifically, the procedures for accrediting VSTLs and allowing uncertified voting systems 

to be used in Missouri’s elections – but Plaintiff has not adequately alleged a concrete harm 

flowing from these alleged HAVA violations. Again, Plaintiff does not allege that the three 

allegedly unaccredited VSTLs, which tested the voting systems and software used in Missouri, did 

not perform the tests or that their testing methods did not meet testing standards. She does not 

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allege that Missouri’s improperly certified voting systems and software inaccurately tabulated 

votes, or that as a candidate she received votes that were not counted. In short, there are no 

allegations in the Amended Complaint of a concrete injury that was the result of the defendants’ 

alleged failure to properly follow election laws. 

In her Response to the Federal Defendants’ Motion to Dismiss, Plaintiff argues that she 

has adequately alleged a real injury in fact, because Missouri’s electronic voting systems are highly 

vulnerable to interference and attacks and, by not properly accrediting VSTLs and allowing 

uncertified voting systems to be used, the defendants failed in their roles to safeguard Missouri’s 

elections. In support of her argument, Plaintiff attached to her memorandum the declaration of 

Shawn A. Smith, a retired military officer, who specializes in technology, computers, and cyber 

threats to security systems.9

 In his declaration, Mr. Smith asserts that American’s voting systems 

are neither “secure” nor “securable,” as they are vulnerable to exploitation by foreign adversaries. 

9

The Eighth Circuit has instructed that “[a] court deciding a motion under Rule 12(b)(1) 

must distinguish between a ‘facial attack’ and a ‘factual attack’ on jurisdiction.” Osborn v. United 

States, 918 F.2d 724, 729 n.6 (8th Cir. 1990). “A district court has the authority to dismiss an 

action for lack of subject matter jurisdiction on any one of three separate bases: ‘(1) the complaint 

alone; (2) the complaint supplemented by undisputed facts evidenced in the record; or (3) the 

complaint supplemented by undisputed facts plus the court’s resolution of disputed facts.’” 

Johnson v. United States, 534 F.3d 958, 962 (8th Cir. 2008) (quoting Williamson v. Tucker, 645 

F.2d 404, 413 (5th Cir. 1981)). The Federal Defendants base their jurisdictional challenge on the 

face of the Complaint. The Federal Defendants did attach to their Memorandum in Support of 

their Motion to Dismiss the declaration of Mark A. Robbins, the Interim Executive Director of the 

EAC. In his declaration, Mr. Robbins explained the role of the EAC and attached EAC’s testing 

policies, which are public records and were referenced in Plaintiff’s Amended Complaint. 

Plaintiff responded to the Federal Defendants’ Motion to Dismiss by referring to facts outside her 

Amended Complaint. She attached to her memorandum in opposition a declaration from Shawn 

A. Smith, a self-described expert in election security. For purposes of this motion, the Court will 

consider this affidavit as undisputed. The Court finds, however, that Mr. Smith’s declaration is 

irrelevant to the standing issue before the Court. 

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(ECF No. 46, Ex. 1 at 3, 43). Mr. Smith details a number of security threats facing voting systems 

and elections in the United States and highlights supply chain attacks. The fact that there are 

serious security threats to America’s electronic voting systems is neither disputed nor dispositive 

of whether Plaintiff alleges or has shown that she suffered or will suffer a concrete injury. HAVA 

was enacted and the EAC established to address, among other things, security threats to America’s 

voting systems and software. The issue the Court must decide is whether Plaintiff has alleged or 

shown a concrete harm to her as a result of the defendants’ alleged failure to properly certify the 

three testing laboratories that tested voting systems used in Missouri elections. The Court finds 

the Amended Complaint does not allege a concrete harm to Plaintiff, and Mr. Smith’s declaration 

does not establish one either. 

In fact, Mr. Smith’s declaration cuts in the other direction and supports a finding that there 

was no concrete harm to Plaintiff as a result of the Federal Defendants’ alleged failure to properly 

accredit testing laboratories and the State’s use of the voting systems the unaccredited laboratories 

tested in Missouri’s elections. In his declaration, Mr. Smith critiques the EAC’s guidelines and 

the Commission’s response to the threat of supply chain attacks facing voting and election systems. 

Mr. Smith asserts that “the voting systems in U.S. elections have no and have had no supply chain 

security, nor any testing or verification of that security.” (Id. at 21). And, according to Mr. 

Smith, “the EAC has effectively provided no standards, procedures, or safeguards to implement 

[against supply chain attacks] for election systems and elections.” (Id. at 20). In other words, 

EAC’s standards and procedures are inadequate and ineffective at combatting threats, particularly 

supply chain attacks, to America’s voting systems. Based on the reasoning in Mr. Smith’s 

declaration, even if the defendants had followed the EAC’s procedures in certifying or accrediting 

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the three VSTLs, the threat to Missouri’s voting systems and software, especially from supply 

chain security breaches, would remain. 

The Court has carefully considered the allegations in the Amended Complaint and the 

arguments Plaintiff makes in opposition to the Federal Defendants’ Motion to Dismiss, including 

Shawn A. Smith’s declaration, and finds Plaintiff has failed to allege or demonstrate a concrete, 

particularized harm she suffered or will suffer as a result of the defendants’ alleged misconduct. 

As a result, Plaintiff does not have Article III standing, and the Court grants the Federal 

Defendants’ Motion to Dismiss for lack of subject matter jurisdiction. 

B. Remaining Motions 

As previously stated, standing is jurisdictional, and the Court is obligated to determine 

whether it has subject matter jurisdiction as to all the claims before it. Hertz Corp., 559 U.S. at 

94. Although Defendant Ashcroft did not move to dismiss Plaintiff’s claims against him for want 

of Article III standing, the Court’s findings regarding Plaintiff’s failure to allege or demonstrate a 

particularized and concrete harm apply equally to the claims against Defendant Ashcroft. 

Therefore, in the absence of a Rule 12(b)(1) motion filed by Defendant Ashcroft, the Court 

dismisses the claims against this defendant on its own motion for lack of subject matter 

jurisdiction. Sanders v. Clemco Indus., 823 F.2d 214, 216 (8th Cir. 1987) (district courts are to 

“be attentive to a satisfaction of jurisdictional requirements” as to all claims). 

Finally, a district court “must be satisfied that it has jurisdiction before it turns to the merits 

of other legal arguments.” Carlson v. Arrowhead Concrete Works, Inc., 445 F.3d 1046, 1050 (8th 

Cir. 2006). Because Plaintiff does not have Article III standing, which is a threshold requirement 

for subject matter jurisdiction, the Court does not have the authority to rule on Plaintiff’s Motion 

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for Preliminary Injunction or Defendant Ashcroft’s Rule 12(b)(6) Motion to Dismiss. Arbaugh, 

546 U.S. at 514. Therefore, the Court denies the remaining motions without prejudice for lack of 

subject matter jurisdiction. 

III. Conclusion 

Plaintiff has failed to allege or demonstrate the required elements of Article III standing, 

as she has not shown that she suffered or will suffer a particularized and concrete injury in fact. 

Because Plaintiff does not have standing to assert claims against the Federal Defendants, the Court 

grants the Federal Defendants’ Motion to Dismiss for lack of subject matter jurisdiction. Plaintiff 

also does not have standing to assert claims against Defendant Ashcroft, and the Court dismisses 

sua sponte the claims against Defendant Ashcroft for lack of subject matter jurisdiction. As the 

Court lacks the authority to proceed on the merits of this case for lack of subject matter jurisdiction, 

the Court denies without prejudice Defendant Ashcroft’s Motion to Dismiss and Plaintiff’s Motion 

for Preliminary Injunction and for Partial Summary Judgment. 

Accordingly, 

IT IS HEREBY ORDERED that Defendants United States Election Assistance 

Commission, Thomas Hicks, Christy McCormick, Benjamin W. Hovland, and Donald L. 

Palmer’s Motion to Dismiss for Lack of Subject Matter Jurisdiction is GRANTED. [ECF 

No. 31]. 

IT IS FURHER ORDERED that because Plaintiff Alison Graeff fails to allege or 

demonstrate that she has Article III standing to bring her claims against any of the defendants, the 

Court DISMISSES Plaintiffs’ claims against Defendant John J. Ashcroft for lack of subject 

matter jurisdiction. 

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IT IS FURTHER ORDERED that Plaintiff Alison Graeff’s Motions for a Preliminary 

Injunction and for Partial Summary Judgment and Defendant John J. Ashcroft’s Motion to Dismiss 

for Failure to State a Claim are DENIED without prejudice for lack of subject matter jurisdiction. 

[ECF Nos. 8, 32 & 53]. 

The Court will issue a separate Order of Dismissal. 

RONNIE L. WHITE 

UNITED STATES DISTRICT JUDGE 

_________________________________ 

Dated this 9th day of March, 2023. 

22