Rel: April 7, 2023

Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern 

Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 

300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-0650), of any typographical or other 

errors, in order that corrections may be made before the opinion is printed in Southern Reporter.

SUPREME COURT OF ALABAMA

OCTOBER TERM, 2022-2023

_________________________

SC-2022-0869

_________________________

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

Appeal from Montgomery Circuit Court

(CV-22-900595)

SELLERS, Justice.
SC-2022-0869

2

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 

1Hanes was a candidate in the November 2022 general election who 

unsuccessfully sought reelection to the Alabama House of 

Representatives; he asserted standing to bring the complaint as a voter 

and qualified elector. Calderwood is a resident of Madison County who 

asserted standing to bring the complaint as a voter and qualified elector.

Focus on America is a tax-exempt, nonprofit, social-welfare organization 

under 26 U.S.C. § 501(c)(4), a part of the Internal Revenue Code, that, 

according to the complaint, operates in DeKalb County "to assist 

members of the public in becoming better informed members of their 

community" and that generally asserted standing to bring the complaint. 

2Merrill is no longer the Alabama Secretary of State, and it appears 

that the membership of the committee might have changed as well. Rule 

25(d), Ala. R. Civ. P., and Rule 43(b), Ala. R. App. P., provide that if a 

public officer is a party to an action or an appeal in an official capacity 

and the officer ceases to hold office during the pendency of the action or 

the appeal, the officer's successor is automatically substituted as a party.
SC-2022-0869

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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 electronicvoting 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 
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4

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).
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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))." '"
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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 
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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 

3We note that an amicus brief was filed in this case. That brief 

requested, in essence, that we overrule our precedent applying the Lujan

test for standing. This Court has stated that it "will not decide a question 

presented by amicus curiae which was not presented by the parties to the 

cause, and will leave the question for decision when properly raised and 

presented." State ex rel. Baxley v. Johnson, 293 Ala. 69, 74, 300 So. 2d 

106, 110 (1974) (citing Alabama-Tennessee Nat. Gas Co. v. City of 

Huntsville, 275 Ala. 184, 153 So. 2d 619 (1963)). Because the parties' 

arguments fall completely within the framework of Lujan and our 

precedent, we will not consider the amicus's arguments, which go far 

beyond the scope of the parties' briefs and the plaintiffs' request for relief.
SC-2022-0869

8

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 HealthSouth Corp., 974 So. 2d 288, 293 (Ala. 2007)). The 

plaintiffs discuss many things that could go wrong and ultimately lead to 
SC-2022-0869

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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 Standing

On appeal, the plaintiffs also argue that they possessed standing as 

taxpayers to challenge the past purchases of the electronic-voting 

machines and laptop computers ("the laptops") used to administer votecounting functions. The plaintiffs point to the principle that "taxpayers 

have an equitable ownership in the public funds and will be responsible 

for replenishing the public funds if those funds are misappropriated, and,

thus, a taxpayer suffers an injury when public funds are illegally spent." 

Ingle v. Adkins, 256 So. 3d 62, 71 (Ala. 2017) (plurality opinion). Indeed, 

we have "continually held that taxpayers have standing to seek an 

injunction against public officials to prevent illegal payments from public 

funds." Id. However, the laptops and electronic-voting machines have 

already been purchased. The principle espoused in Ingle serves only to 

"prevent illegal payments from public funds." Id. (emphasis added). The 
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plaintiffs cite no authority and make no argument regarding why that 

principle should apply to past purchases. Even the plaintiff in Ingle

"acknowledge[d] that she may not have [had] standing 'to recover monies 

which [had] already been illegally expended.'" Id. at 66. This Court has

explicitly held as much, stating that "[the plaintiffs'] status as taxpayers 

is not sufficient to confer upon them standing to sue a state official to 

recover public funds allegedly wrongfully expended because of the acts of 

that official." Beckerle v. Moore, 909 So. 2d 185, 188 (Ala. 2005). Although

we make no determination regarding the legality of the purchases in 

question, we reiterate that a state official's allegedly improper 

expenditure of funds in the distant past does not give taxpayers standing

to challenge that expenditure. It logically follows then that, when a past

expenditure of state funds -- whether legitimate, illegal, or improper --

has only a marginal relation to the matter complained of, taxpayer status 

not only does not confer standing to challenge the expenditure of the 

funds, but also does not confer standing to challenge the marginally 

related matter. In short, the defendants' past purchase of the electronicvoting machines and laptops does not provide a platform for the plaintiffs
SC-2022-0869

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to obtain standing to seek to enjoin the conduct of elections. As a result, 

the plaintiffs also lacked taxpayer standing to pursue their claims.4

IV. Conclusion

For the foregoing reasons, the plaintiffs lacked standing to pursue 

their claims, thus depriving the circuit court of jurisdiction over their

complaint. Accordingly, the judgment dismissing the complaint is due to 

be affirmed.

AFFIRMED.

Mendheim and Stewart, JJ., concur.

Mitchell and Cook, JJ., concur specially, with opinions.

Parker, C.J., concurs in part and concurs in the result, with opinion.

Shaw and Bryan, JJ., concur in the result.

Wise, J., recuses herself.

4In their complaint, the plaintiffs also requested that the circuit

court order the release of all "records, communications, contracts, notes 

... stored by [the defendants] to the Public as required by Alabama law." 

The plaintiffs have at no point presented a basis for the release of any 

such records. Further, for the reasons stated above, the plaintiffs lacked 

standing to make such a request.
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MITCHELL, Justice (concurring specially). 

I concur in the decision to affirm the trial court's judgment based 

on our current precedent. I write separately to second Justice Cook's call 

to reconsider our Court's adoption of the federal standing test announced 

in Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992). I would like to see 

that reconsideration occur in a case in which a party has properly asked 

us to undertake that review and (perhaps along with amici) given us 

fulsome argument on this issue.
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COOK, Justice (concurring specially).

I concur fully in the main opinion. I write specially for three

reasons. 

First, I wish to emphasize that the separation of powers is one of 

the reasons for the doctrine of standing. As the main opinion notes, the 

plaintiffs' fears are, at this point, conjectural. If they believe policy needs 

to change, that is for the Legislature or the Executive Branch to 

undertake. The People of Alabama elect members of the Legislature and 

the Executive Branch to investigate policy, to balance competing policy 

objectives, to balance competing spending demands, and to make policy

choices. The People of Alabama hold (and should hold) the members of 

the Legislature and the Executive Branch accountable for their policy 

choices. It is almost never the role of this Court (or any court) to create 

procedures and regulations, and yet the plaintiffs in this action are 

asking this Court to do just that -- listing in their complaint two pages of 

detailed "procedures which should be implemented." If the plaintiffs 

truly want such procedures and regulations to be created, they should 

present their proposals to the members of the Legislature and the newlyelected Secretary of State.
SC-2022-0869

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Second, with regard to the amicus brief filed by the Alabama Center 

for Law and Liberty, which requested, in essence, that we overrule our 

precedent applying the Lujan test for standing, I note that I agree that 

this Court should consider, in the right case, the proper standard for 

standing under the Alabama Constitution. Although I have no fixed 

opinion on this issue, I believe that it deserves careful consideration and 

that we should not simply adopt the federal standard without considering 

any relevant differences between the Alabama Constitution and the 

Constitution of the United States. As for the present case, the main 

opinion correctly follows existing Alabama precedent, and neither the 

plaintiffs nor the defendants have requested that we overrule that 

precedent. However, should this issue be raised in a future, appropriate 

case, this Court could consider holding oral argument so that the parties 

-- and the members of the Bar -- can benefit from our full consideration 

of this issue. 

Finally, in a footnote, the main opinion indicates that the plaintiffs 

requested records from the Secretary of State but "have at no point 

presented a basis for the release of any such records." ___ So. 3d at ___ 

n.4. I note that Alabama law provides an avenue to request records of 
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government agencies and to seek review of failures to provide records; it 

also provides certain exceptions to disclosure of such records. However, 

this issue was not argued by the plaintiffs in their briefs and is, therefore, 

waived. See Douglas v. Roper, [Ms. 1200503, June 24, 2022] ____ So. 3d 

____, ____ (Ala. 2022) ("Arguments not raised in an appellant's initial 

brief are deemed waived."). 
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PARKER, Chief Justice (concurring in part and concurring in the result).

The plaintiffs have raised serious allegations about the integrity of 

our State's voting system. "Free, fair elections are the lifeblood of our 

democracy. Charges of unfairness are serious." Donald J. Trump for 

President, Inc. v. Secretary of Commonwealth, 830 F. App'x 377, 381 (3d 

Cir. 2020). This Court's affirmance of the dismissal of the plaintiffs'

complaint for lack of standing in no way diminishes the fact that, in an 

appropriate forum and through the appropriate means, the integrity and 

security of our elections must be carefully protected, including in our 

courts. The responsibility of all the officials of Alabama to secure our 

elections remains undiminished by the dismissal of the plaintiffs'

complaint. 

I agree that the plaintiffs' complaint was insufficient to meet the 

requirements for standing. However, I base this conclusion on the 

redressability requirement, not the injury-in-fact requirement. 

Moreover, I believe that our analysis of standing should return, as an 

amicus curiae brief by the Alabama Center for Law and Liberty ("ACLL") 

has effectively highlighted, to the common law's understanding, which 
SC-2022-0869

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was based on the distinction between private and public rights.5 I concur

in part III.B of the main opinion and its discussion of taxpayer standing.

My disagreement is with regard to part III.A's discussion of the more 

general requirements for standing, and as to that part I concur in the 

5The main opinion states that, because the framework of standing 

stated in Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992), is not 

challenged by the parties, "we will not consider the amicus's arguments, 

which go far beyond the scope of the parties' briefs and the plaintiffs' 

request for relief." __ So. 3d at __ n.3. The main opinion emphasizes past 

precedent indicating that we do not decide questions that are raised by 

amici but are not presented by the parties. I certainly agree that, if an 

amicus presents an entirely new ground for reversal of the judgment, it 

is not appropriate to reverse on that ground. But I do not agree that 

parties must challenge the framework of past precedent for us to be 

willing to reconsider it. If a case was wrongly decided, we can and should

say so when necessary, without waiting for a party to argue that it was. 

Justice Mitchell and I have previously invited parties, amici, and 

scholars to address the Alabama Constitution's original meaning. See 

Barnett v. Jones, 338 So. 3d 757, 766-69 (Ala. 2021) (Mitchell, J., joined 

by Parker, C.J., concurring specially); Glass v. City of Montgomery, [Ms. 

1200240, Feb. 11, 2022] ___ So. 3d ___, ___ & n.3 (Ala. 2022) (Mitchell, J., 

concurring in part and concurring in the result); id. at ___ n.4 (Parker, 

C.J., dissenting); Young Americans for Liberty at Univ. of Alabama in 

Huntsville v. St. John, [Ms. 1210309, Nov. 18, 2022] ___ So. 3d ___, ___ 

(Ala. 2022) (Parker, C.J., concurring in part and concurring in the result); 

Gulf Shores City Bd. of Educ. v. Mackey, [Ms. 1210353, Dec. 22, 2022] 

___ So. 3d ___, ___ (Ala. 2022) (Parker, C.J., concurring in part and 

concurring in the result); id. at ___ (Mitchell, J., concurring in part and 

concurring in the result). I commend the ACLL's responsive attempt to 

do just that in this case, and I reiterate my invitation for amici to brief 

this Court on the Alabama Constitution's original meaning in future 

cases. 
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result. To understand standing, "we must 'refer directly to the 

traditional, fundamental limitations upon the powers of common-law 

courts.'" Spokeo, Inc. v. Robins, 578 U.S. 330, 334 (2016) (Thomas, J., 

concurring) (quoting Honig v. Doe, 484 U.S. 305, 340 (1988) (Scalia, J., 

dissenting)). 

The standing inquiry depends on the nature of the claimed right, 

public or private. TransUnion LLC v. Ramirez, 594 U.S. ___, ___, 141 S. 

Ct. 2190, 2217 (2021) (Thomas, J., dissenting); see Spokeo, 578 U.S. at

344-46 (Thomas, J., concurring); Thole v. U.S. Bank N.A., 590 U.S. ___, 

___, 140 S. Ct. 1615, 1618-19 (2020); Sierra v. City of Hallandale Beach, 

996 F.3d 1110, 1139 (11th Cir. 2021) (Newsom, J., concurring). I believe 

that Alabama law historically reflected this public/private distinction. 

Twenty years ago, however, our Court made the standing inquiry 

universal by applying United States Supreme Court precedent regarding 

public rights to a private breach-of-contract action. See Avis Rent A Car 

Sys., Inc. v. Heilman, 876 So. 2d 1111, 1119 (Ala. 2003). Applying publicright principles to private-right cases was flawed, but thankfully, our 

Court has begun returning to the historic public/private distinction. See 

Ex parte BAC Home Loans Servicing, LP, 159 So. 3d 31, 39-46 (Ala. 
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2013). I view this return as a positive development, because this 

distinction is rooted in the common law. 

The distinction between private and public rights is thoroughly 

described in the work of William Blackstone, whose work, as I have 

highlighted elsewhere, was integral to the development of the American 

legal tradition. See, e.g., Young Americans for Liberty at Univ. of 

Alabama in Huntsville v. St. John, [Ms. 1210309, Nov. 18, 2022] ___ So. 

3d ___, ___ (Ala. 2022) (Parker, C.J., concurring in part and concurring 

in the result). Blackstone distinguished between private wrongs that are 

"an infringement or privation of the private or civil rights belonging to 

individuals, considered as individuals," and public wrongs that "are a 

breach and violation of public rights and duties, which affect the whole 

community, considered as a community." 3 William Blackstone,

Commentaries *2. Under Blackstone's conception, the executive, in his 

case the king, is "in all cases the proper prosecutor for every public 

offense." 4 Blackstone, Commentaries *2. 

Justice Clarence Thomas has thoroughly demonstrated how this 

distinction categorizes "standing" cases. See TransUnion, 594 U.S. at ___, 

141 S. Ct. at 2217 (Thomas, J., dissenting). On the one hand, if an 
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individual is suing for a violation of a private right, "standing" requires

a cause of action, not an independent injury proved apart from the cause 

of action itself. "[W]here the law gives an action for a particular act, the 

doing of that act imports of itself a damage to the party" because "[e]very 

violation of a right imports some damage." Whittemore v. Cutter, 29 F. 

Cas. 1120, 1121 (Story, Circuit Justice, C.C.D. Mass. 1813). These private 

rights may be recognized by common law or by statute. "In a suit for the 

violation of a private right, courts historically presumed that the plaintiff 

suffered a de facto injury [if] his personal, legal rights [were] invaded." 

Spokeo, 578 U.S. at 344 (Thomas, J., concurring). In contrast, when an 

individual sues on the basis of a duty owed to the community, standing 

requires "not only injuria [legal injury] but also damnum [damage]." Id.

at 346. "Public rights can most paradigmatically be vindicated by the 

government itself. But they can also be vindicated by private people if 

those people suffered 'special damage' that distinguishes them from other 

members of the public." William Baude, Standing in the Shadow of 

Congress, 2016 Sup. Ct. Rev. 197, 228 (2016) (footnotes omitted); see F. 

Andrew Hessick, Standing, Injury in Fact, and Private Rights, 93 Cornell 

L. Rev. 275 (2008); Ann Woolhandler & Caleb Nelson, Does History 
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Defeat Standing Doctrine?, 102 Mich. L. Rev. 689 (2004); Cass R. 

Sunstein, Injury in Fact, Transformed, 2021 Sup. Ct. Rev. 349 (2021); 

Jacob Phillips, Transunion, Article III, and Expanding the Judicial Role, 

23 Federalist Soc'y Rev. 186 (2022). What this means, practically, is that 

standing should not be an independent inquiry in private-right cases; 

instead, a court should ask solely whether the plaintiff has a cause of 

action. "By contrast, courts have required the government to bring 

actions -- most notably, criminal prosecutions -- that alleged injuries to 

generalized, shared interests and that sought remedies accruing to the 

public." Sierra, 996 F.3d at 1135-36 (Newsom, J., concurring). 

This view is not merely a view of federal judges. Alabama cases 

confirm this view and require injury in public-right cases. As the 

plaintiffs highlight in their brief, in Jones v. Black, 48 Ala. 540 (1872),

this Court explained the standing requirements in public-right cases. 

Electors sought to challenge a judicial election as illegitimate. The Court 

emphasized that it will not "listen to an objection made to the 

constitutionality of an act of the legislature by a party whose rights it 

does not specially affect." Id. at 543. 

"A party who seeks to have an act of the legislature 

declared unconstitutional, must not only show that he is, or 
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will be injured by it, but he must also show how and in what 

respect he is or will be injured and prejudiced by it. Injury will 

not be presumed; it must be shown." 

Id. Because the electors did "not state how or in what manner they are or 

will be injured or prejudiced at all, either in their persons, their property 

or their rights, by the election," their lawsuit was dismissed. Id. The 

plaintiffs do not challenge Jones, which has been regularly cited by our 

Court since it was decided, or contend that the decision was erroneous in 

some way. Jones requires that, when suing on the basis of the violation 

a public right, a plaintiff must establish injury in fact, unlike a plaintiff 

suing based on a private right. 

More recently, our Court has begun returning to the distinction 

between public rights and private rights as central to a proper analysis 

of whether a standing inquiry is required. 

"The problem identified by Judge Pittman and others is 

a function of the fact that the concept of standing was 

developed by the United States Supreme Court for 'public law'

cases, see, e.g., Lujan v. Defenders of Wildlife, 504 U.S. 555, 

112 S.Ct. 2130, 119 L.Ed.2d 351 (1992), not 'private law' cases. 

In the absence of defined elements as exist in established 

private causes of action, the concept of standing is used to 

differentiate between those complaints regarding 

governmental action that are shared generally by the 

citizenry and that therefore must be addressed politically and 

those complaints that reflect a sufficient specific injury and 
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consequent adverseness to make for a 'case' that is within the 

purview of the judicial branch. Accordingly, the concept 

appears to have no necessary role to play in respect to privatelaw actions, which, unlike public-law cases (for example, a 

suit against the Secretary of Interior to construe and enforce 

an environmental regulation designed to protect wildlife), 

come with established elements that define an adversarial 

relationship and 'controversy' sufficient to justify judicial 

intervention. In private-law actions (e.g., a claim of negligence 

or, as here, a statutory claim for ejectment), if the elements 

are met, the plaintiff is entitled to judicial intervention; if they 

are not met, then the plaintiff is not entitled to judicial 

intervention. Everything necessary to justify judicial 

intervention, by definition, inheres in those elements that we 

say constitute a 'cause of action' in and by our courts. What 

need is there to distill from those elements and label some 

additional gate-keeping notion? At a very fundamental level, 

the concept of standing is already embodied in the various 

elements prescribed, including the common requirement of 

proof of a sufficient existing or threatened injury.

"Professors Wright and Miller are just two of the 

commentators who have recognized that the concept of 

standing was formulated by the United States Supreme Court 

in the field of 'public law' -- constitutional or other challenges 

to the actions of officials or administrative agencies -- and is 

out of place in private-law cases."

BAC, 159 So. 3d at 44. 

The distinction this Court drew between public-law and private-law 

cases did not originate with us, but with Blackstone, and it is 

fundamental to the role of common-law courts. Therefore, when this 
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Court addresses standing, our inquiry should always begin with whether 

a plaintiff is suing based on a private right or a public right. If a plaintiff 

is suing based on a private right, such as in tort, in contract, based on 

property rights, or the like, no independent "standing" inquiry is 

necessary. Defendants are of course free to allege that the plaintiff failed 

to state a claim under Rule 12(b)(6), Ala. R. Civ. P., but there is no 

separate standing requirement. In contrast, standing, including injury in

fact, is a requirement with robust history and tradition in its support in

cases involving public rights. 

As the defendants' brief highlights in response to the ACLL's 

amicus brief, the plaintiffs' claims about purported risks of fraud in the 

State's electoral system are not private-right claims but claims based on 

threats to the public as a whole. To assert a claim based on a public right, 

a party must assert an injury in fact. "The [Supreme] Court has said time 

and again that, when a plaintiff seeks to vindicate a public right, the 

plaintiff must allege that he has suffered a 'concrete' injury particular to 

himself." Spokeo, 578 U.S. at 346 (Thomas, J., concurring). The plaintiffs

here are not suing based on some specific act done to themselves, such as 

in a tort or contract claim. They certainly are not suing based on a 
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statutorily authorized private cause of action. Instead, they are suing 

based on an alleged violation of officials' duty to the public with regard to 

the management of elections. Thus, the line of cases requiring injury in 

fact in actions regarding public rights applies. Judge Kevin Newsom 

thoroughly explained this distinction:

"The way I now see things, therefore, Congress can 

create causes of action, for instance, authorizing a private 

plaintiff to vindicate his personal rights .... What Congress 

can't do is create a cause of action authorizing an individual 

plaintiff to sue for harm done to society generally. So, to use 

the facts of this case, Congress can authorize Eddie Sierra to 

sue the City of Hallandale Beach for failing to 

accommodate him, as the [Americans with Disabilities Act]

requires. ... But it couldn't authorize him to sue the City for 

failing to accommodate those with disabilities more generally. 

Nor can Congress create a private cause of action authorizing 

an individual to pursue remedies that accrue to the public

generally rather than to him personally."

Sierra, 996 F.3d at 1136 (Newsom, J., concurring). The issue of legislative 

authorization and creation of a private cause of action aside, to sue for a 

wrong to the public, there must be a particular injury experienced by the 

plaintiff. Because the plaintiffs here do not claim that a private wrong 

was committed against them, but that the defendants violated their 

duties to the public more generally with regard to elections, standing, 

including injury in fact, was a requirement for the plaintiffs to be able to 
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bring their suit. 

Thus, I agree that the injury-in-fact requirement applies. But I 

disagree with the main opinion's analysis under that requirement. 

Throughout, the main opinion highlights the prospective nature of the 

plaintiffs' claims: "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." __ So. 3d at __. This discussion would

give the impression that, at least in the public-right context, a challenge 

to government activity before it occurs is impossible. That of course is not 

the case. Allegations of future injury are sufficient for public-right 

standing if there is a "'substantial risk' that the harm will occur." Clapper 

v. Amnesty Int'l USA, 568 U.S. 398, 414 n.5 (2013); see Sierra Club v. 

EPA, 774 F.3d 383, 392 (7th Cir. 2014) (finding injury in fact based on 

increased probability of injury). "One does not have to await the 

consummation of threatened injury to obtain preventive relief. If the 

injury is certainly impending, that is enough." Pennsylvania v. West 

Virginia, 262 U.S. 553, 593 (1923). The danger must be "realistic." 

Babbitt v. United Farm Workers Nat'l Union, 442 U.S. 289, 298 (1979). 

The Supreme Court has considered even "the threat of vote dilution 
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through the use of sampling" to be sufficient to establish standing. 

Department of Com. v. United States House of Representatives, 525 U.S. 

316, 332 (1999); see Florida State Conf. of NAACP v. Browning, 522 F.3d 

1153, 1162 (11th Cir. 2008) ("[W]e have repeatedly upheld plaintiffs' 

standing when the alleged injury was prospective and probabilistic in 

nature.").

One salient opinion, authored by Justice Antonin Scalia, is 

particularly illustrative of the nature of the injury-in-fact inquiry at the 

pleading stage. See Bennett v. Spear, 520 U.S. 154 (1997). In Bennett, 

ranch operators sued the government under the citizen-suit provision of 

the Endangered Species Act. The government appellee argued that the 

ranch operators failed to establish injury in fact because the ranch 

operators alleged that there would be a diminution in the aggregate 

amount of available irrigation water as a result of the government's 

actions but failed to establish that they themselves would receive less 

water. Id. at 167. The Court rejected this argument, explaining that, 

"'[a]t the pleading stage, general factual allegations of injury resulting 

from the defendant's conduct may suffice, for on a motion to dismiss we 

"presum[e] that general allegations embrace those specific facts that are 
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necessary to support the claim." '" Id. at 168 (quoting Lujan, 504 U.S. at 

561). Thus, an allegation of an adverse effect from the reduction of 

available water allowed the Court "to presume specific facts under which 

[the ranch operators would] be injured." Id. Just as in Bennett, the 

plaintiffs in this case have made general allegations at the pleading 

stage. But, although the alleged injuries are general, the plaintiffs do 

allege that, due to the defendants' actions, there is a substantial threat 

of election interference. Those "general allegations" are a sufficient basis

for presuming, at this early stage of litigation, the facts necessary for 

injury in fact.

The main opinion, in rejecting the plaintiffs' standing argument 

because "the plaintiffs do not allege that any [of the alleged election 

fraud] actually occurred," __ So. 3d at __, fails to apply the foregoing long 

line of precedent regarding threatened injury as the basis for standing. 

The main opinion contends that the plaintiffs needed to claim that 

election fraud had already occurred in order to prevent it from occurring 

in the future. Similarly, the defendants argue that the plaintiffs needed

to allege "that their ballots will likely be miscounted." Defendants' brief 

at 33. Neither view of the matter is accurate. All the plaintiffs were 
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required to show, to establish injury in fact, was a "'substantial risk' that 

the harm will occur." Clapper, 568 U.S. at 414 n.5. And at the pleading 

stage, the showing of substantial risk merely needed to be "general 

factual allegations of injury resulting from the defendant's conduct." 

Lujan, 504 U.S. at 561. 

The complaint's allegations in this case sufficiently showed a 

substantial risk of future injury. The plaintiffs alleged that Alabama's 

voting machines "are susceptible to manipulation through internal or 

external intrusion." Likewise, the plaintiffs alleged that the machines

"are potentially unsecure, lack adequate audit capacity, fail to meet 

minimum statutory requirements, and deprive voters of the right to have 

their votes counted and reported in an accurate, auditable, legal, 

transparent process." Their ultimate claim was that these machines "are 

vulnerable to cyber-attacks before, during, and after an election." The 

main opinion rightly highlights that these sorts of allegations are not 

allegations of particular harm to the plaintiffs, the sort of harm that 

needs to be ultimately proved for standing. But at the pleading stage, 

that particular, individual harm did not need to be proved. As Lujan, 

which the main opinion takes pains to defend, made very clear, at the 
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pleading stage, "general factual allegations of injury" suffice to establish 

standing. 504 U.S. at 561. 

The standing inquiry has two other elements, both of which are 

raised here. The defendants challenge traceability, arguing that the 

plaintiffs cannot demonstrate "a 'causal connection' between [their] 

injury and the challenged action of the defendant." Lewis v. Governor of 

Alabama, 944 F.3d 1287, 1296 (11th Cir. 2019). Specifically, the Alabama 

Electronic Voting Committee ("the committee") argues that it does not 

decide whether any particular electronic vote-counting systems will be 

used in any particular election and that, under Alabama law, that 

decision is made exclusively by the counties. See § 17-7-21(a), Ala. Code 

1975 ("The governing body of any county ... may authorize, adopt, and 

direct the use of electronic vote counting systems ...."). It is certainly true 

that counties bear the authority to determine which voting system will 

be used. But, as the statute goes on to specify, the committee has the duty 

to examine and certify the electronic-voting equipment. § 17-7-23. It also 

has the authority to "suspend all sales of the equipment or system in the 

state until such equipment or system complies with [statutory]

requirements." § 17-7-23(5). Any voting system not certified by the 
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committee "shall not be adopted or used at any election." § 17-7-23(4). 

Thus, the committee's arguments that the alleged injury is not traceable 

to it is misguided; it certified the system at issue for use in Alabama, and 

there is thus a "causal connection" between its actions and the alleged 

harm. 

In addition to injury in fact and traceability, a plaintiff must show 

a likelihood "'that the [alleged] injury will be "redressed by a favorable 

decision." '" Ex parte Alabama Educ. Television Comm'n, 151 So. 3d 283, 

287 (Ala. 2013) (quoting Lujan, 504 U.S. at 561). One situation where 

redressability is found to be lacking is where "the relief require[s] action 

by a party not before the Court." Steel Co. v. Citizens for a Better Env't, 

523 U.S. 83, 106 n.7 (1998). In their reply brief, the plaintiffs assert that 

they did seek relief that the defendants could provide: compliance with 

the statutory certification requirements of § 17-7-21. This assertion is 

belied by their complaint. Although the plaintiffs did allege that the 

defendants violated their statutory duties, the relief they sought for the 

alleged violation was not decertification of particular systems; it was to 

"enjoin Defendants' use of electronic voting systems," order the 

"Defendants to halt the use of electronic voting systems in the 2022 
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Election," order the "Defendants to prevent electronic voting systems 

from being used in the 2022 Election," and enter an order requiring "the 

Defendants to conduct the 2022 election by hand count."

This relief is essentially of two kinds: First, the plaintiffs sought an 

order requiring the defendants to conduct the election via hand count. In 

order to achieve that relief, they sought an order that would require the 

committee to "prevent electronic voting systems from being used." 

The ultimate relief the plaintiffs want -- statewide hand counts -- is 

not available from the committee. The committee has no control over the 

local officials who could provide the plaintiffs with that relief. No statute 

or other law vests the committee with authority to order hand counting 

in each county; it is simply not the right defendant for this kind of relief. 

It is the county commissioners of the 67 counties across Alabama who 

make decisions about how voting will be conducted in their counties 

under § 17-7-21(a) and who would be able to order hand counting; it is 

they who would have been the proper defendants for a suit seeking such 

relief. 

As to the desired outcome of banning all ballot-counting machines,

the committee does have the authority to certify or decertify particular 
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systems. But it lacks any ability to engage in the wide and sweeping relief 

the plaintiffs seek, banning all ballot-counting machines. Here, the 

plaintiffs disagree with the judgment of our State's legislators, expressed 

in statutes like § 17-7-21, that electronic ballot-counting is a secure 

method of counting votes. But the committee has no authority to 

countervene that legislative judgment; no statute would give it any 

authority to "halt the use of electronic voting systems." As Justice Cook 

highlights in his special concurrence, the primary forum for such 

statutory reform is not this Court, but the Legislature. The committee 

lacks the ability, in other words, to provide even this desired relief; no 

statute gives it the authority to overrule the Legislature's judgment and 

ban all ballot-counting machines. For this relief, the plaintiffs would have 

needed to challenge the electronic-ballot-counting-machine statute as 

unconstitutional. Although the Alabama Secretary of State is a 

defendant in this action, the complaint never alleges that that statute is 

unconstitutional. Although the plaintiffs would have had a heavy burden 

in such a challenge, the standing analysis in such a case would have 
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looked very different.6

I note a matter of concern in this case. The plaintiffs have presented 

serious assertions regarding the voting process, including an assertion

that the Secretary of State purchased election-management-system 

laptop computers for each of Alabama's probate offices and that the 

purchase order required that these computers have Internet and wireless 

Bluetooth connection capabilities. According to the plaintiffs, these 

laptops were part of the voting system yet were never presented to the 

committee for inspection and certification. These assertions, if true, 

6I recognize that this analysis of redressability may appear similar 

to an analysis of whether the plaintiffs have successfully stated a claim. 

Some have argued that there is no fundamental distinction between 

redressability as a cause-of-action issue and redressability as a standing 

issue. See Steel, 523 U.S. at 119 n.9 (Stevens, J., concurring in judgment). 

Justice Scalia argued for a different view, explaining that there is a 

"fundamental distinction" between the cause-of-action question, which is 

"whether a cause of action existed," and the redressability question. Id.

at 96 (opinion of Court). Justice Murdock likewise highlighted the critical 

distinction between standing and other inquiries, such as who is the "real 

party in interest." Ex parte McKinney, 87 So. 3d 502, 512 (Ala. 2011) 

(Murdock, J., dissenting). At least in this particular case, the 

redressability issue is part of the question of standing. A real-party-ininterest issue examines whether a plaintiff is the right party to bring the 

suit, and a cause-of-action issue examines whether a plaintiff alleges a 

cognizable cause of action. But here, the plaintiffs are proper parties, and 

their cause of action is potentially cognizable; the problem is not that the 

wrong plaintiffs sued, but that they sued the wrong defendants, 

defendants who could not provide the relief sought. That goes to standing. 
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would present serious concerns regarding the defendants' duties to 

properly certify voting machines under § 17-7-23. However, the purchase 

of the laptops was raised for the first time at the preliminary-injunction 

hearing below. The issue is not raised anywhere in the complaint. (Nor 

did the plaintiffs move to amend their complaint to include these

allegations.) Thus, even if this Court were to determine that the plaintiffs

had standing, the laptops issue would not have been preserved in order 

for our Court to be able to address it. See Wiggins v. City of Evergreen, 

295 So. 3d 43, 48-49 (Ala. 2019). The plaintiffs cannot argue that their 

complaint should not have been dismissed because of claims that were 

not in that complaint. Although this laptops issue is not truly before us, 

the plaintiffs' assertions are significant and would merit serious 

attention in the proper forum. 

This Court's affirmance of the dismissal of the plaintiffs' complaint 

should by no means be read as an indication that challenges to election 

practices, including the use of ballot-counting machines, are 

nonjusticiable. The ground for the dismissal lies not in the political 

nature of elections, but in the more straightforward conclusion that this 

particular complaint failed to satisfy the requirements for standing. 
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Moreover, even while this Court affirms the circuit court's dismissal of 

the plaintiffs' claims, I encourage the executive branch to continue to take 

seriously its responsibility to faithfully enforce and apply the laws. In 

particular, the committee and the Secretary of State have a serious 

responsibility to maintain the fidelity of elections. The fact that a 

particular plaintiff may not satisfy the requirements of standing when it 

sues a government actor does not render the people without a remedy. 

The primary responsibility for investigating any allegation of 

governmental wrongdoing lies first not in private citizens, but in the 

executive branch, charged with the proper enforcement of the law. And 

ultimately, it is the people who hold all government actors accountable 

for their conduct, both through properly framed litigation and through 

the political process. An "election case concerns a principle at the very 

heart of the democratic process -- the integrity of elections." Taylor v. Cox, 

710 So. 2d 406, 408 (Ala. 1998) (See, J., concurring specially). "Confidence 

in the integrity of our electoral process is essential to the functioning of 

our participatory democracy." Purcell v. Gonzalez, 549 U.S. 1, 4 (2006). 

This principle merits the most careful protection, in as many forums as 

are necessary.