PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

RICHARD L. BISHOP; JACK L. 

MOORE; MICHAEL A. JOYCE;

CHRISTOPHER R. DONAHOE,

Plaintiffs-Appellants,

v.

GARY O. BARTLETT, Executive

Director of the North Carolina

State Board of Elections, in his

official capacity; LARRY LEAKE;

LORRAINE G. SHINN; CHARLES

WINFREE; GENEVIEVE C. SIMS;

ROBERT CORDLE, Members of the

State Board of Elections, in their

official capacities; MICHAEL F.  No. 07-1840 EASLEY, Governor of the State of

North Carolina, in his official

capacity; ROY COOPER, Attorney

General of the State of North

Carolina, in his official capacity;

BEVERLY PERDUE, Lieutenant

Governor of the State of North

Carolina, in her official capacity;

ELAINE F. MARSHALL, Secretary of

State of the State of North

Carolina, in her official capacity;

DENISE WEEKS, Principal Clerk of

the North Carolina House of

Representatives, in her official

capacity; 
JANET PRUITT, Principal Clerk of 

the North Carolina Senate, in her

official capacity; JOE HACKNEY,

Speaker of the North Carolina 

House of Representatives, in his

official capacity,

Defendants-Appellees. 

Appeal from the United States District Court

for the Eastern District of North Carolina, at Raleigh.

Louise W. Flanagan, Chief District Judge.

(5:06-cv-00462-FL)

Argued: May 13, 2009

Decided: July 29, 2009

Before TRAXLER, Chief Judge, GREGORY, Circuit Judge,

and Frederick P. STAMP, Jr., Senior United States District

Judge for the Northern District of West Virginia,

sitting by designation.

Affirmed by published opinion. Judge Gregory wrote the

opinion, in which Chief Judge Traxler and Senior Judge

Stamp joined.

COUNSEL

ARGUED: Jeanette K. Doran, NORTH CAROLINA INSTITUTE OF CONSTITUTIONAL LAW, Raleigh, North Carolina, for Appellants. Alexander McClure Peters, NORTH

2 BISHOP v. BARTLETT
CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North

Carolina, for Appellees. ON BRIEF: Robert Flynn Orr,

NORTH CAROLINA INSTITUTE OF CONSTITUTIONAL

LAW, Raleigh, North Carolina, for Appellants. Roy Cooper,

North Carolina Attorney General, Tiare B. Smiley, Special

Deputy Attorney General, NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for Appellees.

OPINION

GREGORY, Circuit Judge:

Four North Carolina citizens challenge the process by

which a proposed state constitutional amendment was placed

before voters. In particular, the plaintiffs contend that the language used on the ballot to describe the amendment was misleading. That constitutional amendment, known as

"Amendment One," authorized local government entities to

issue bonds for certain types of development projects without

first receiving voter approval. Because the plaintiffs were not

themselves misled by the amendment process and did not otherwise allege sufficient facts to support their standing to sue,

we affirm the district court’s dismissal of the case.

I.

North Carolina Session Law 2003-403, signed into law in

August 2003, provided for the submission of Amendment

One to a vote in the November 2004 statewide general election. If ratified by the voters, Amendment One would add a

new section to Article V of the North Carolina Constitution.

That new section would permit the North Carolina General

Assembly to develop a method for local government entities

to borrow money to finance public improvements associated

with private development projects through the creation of

development financing districts. Furthermore, so long as only

BISHOP v. BARTLETT 3
the additional tax revenues from the development districts

were used to secure the financing for the projects, local governments would be permitted to obtain the financing without

a referendum. Absent this constitutional amendment, Article

V, Section 4(2), of the North Carolina Constitution generally

requires a referendum before a government entity may incur

such a debt.

Amendment One was ultimately ratified by the voters of

North Carolina, with 1,504,383 (51.2%) voting in favor of the

Amendment, and 1,429,185 (48.8%) voting against the

Amendment. However, the plaintiffs allege that Amendment

One should be invalidated because the amendment process

violated the Due Process Clause of the Fourteenth Amendment. In particular, the plaintiffs claim that the actual language of Amendment One did not appear on the ballot, but

rather only "an abbreviated summary with potentially misleading language." (J.A. 26.) According to the plaintiffs, the

language on the ballot "was misleading and insufficient to

adequately apprise voters that, if passed, the amendment

would deprive them of their constitutionally given right to

approve or disapprove the issuance of the bonds." (Id.)

In the plaintiffs’ complaint, they did not allege that they

had actually been misled by the ballot language. In fact, the

plaintiffs later acknowledged that even though each of them

had voted in the November 2004 election, none were misled

by the ballot language. Nevertheless, the plaintiffs maintain

that the constitutionally infirm amendment process caused the

deprivation of their right to vote on future bond referenda. At

the time of the filing of this suit, the city of Roanoke Rapids,

North Carolina, had received approval to issue bonds on a

project, but the bonds had not yet been issued. One of the

plaintiffs, Jack L. Moore, is a registered voter in Roanoke

Rapids, and he claims that he has been deprived of his right

to vote on the issuance of bonds to finance the project. Similar

projects were also under consideration in Raleigh, Charlotte,

Chapel Hill, and Kannapolis.

4 BISHOP v. BARTLETT
After the plaintiffs filed this lawsuit, which included both

federal and state constitutional due process claims, the defendants filed a motion to dismiss the suit. Although neither

party raised the issue of standing, the district court, on that

ground, granted the defendants’ motion to dismiss the claims

arising under federal law. The district court then declined to

exercise supplemental jurisdiction over the remaining state

law claims. The plaintiffs appeal the district court’s determination as to the federal law claims.

II.

A.

We review a district court’s dismissal for lack of standing

de novo. White Tail Park, Inc. v. Stroube, 413 F.3d 451, 459

(4th Cir. 2005); Piney Run Pres. Ass’n v. County Comm’rs of

Carroll County, 268 F.3d 255, 262 (4th Cir. 2001). Whether

the issue of standing is first raised by the parties or by a court

is irrelevant to our review, as standing implicates our jurisdiction to hear a case. See Mt. Healthy City Sch. Dist. Bd. of

Educ. v. Doyle, 429 U.S. 274, 278 (1977); Dan River, Inc. v.

Unitex Ltd., 624 F.2d 1216, 1223 (4th Cir. 1980).

B.

The power of federal courts to entertain suits is circumscribed by Article III of the United States Constitution, which

limits judicial authority to "Cases" and "Controversies." Lujan

v. Defenders of Wildlife, 504 U.S. 555, 559-60 (1992); Warth

v. Seldin, 422 U.S. 490, 498 (1975). Accordingly, "the doctrine of standing serves to identify those disputes which are

appropriately resolved through the judicial process," and thus

meet the requirements of Article III. Whitmore v. Arkansas,

495 U.S. 149, 154-55 (1990).

The standing doctrine has both constitutional and prudential components. Allen v. Wright, 468 U.S. 737, 751 (1984).

BISHOP v. BARTLETT 5
In order to satisfy the constitutional component of standing,

a party must meet three requirements:

(1) [the party] has suffered an "injury in fact" that is

(a) concrete and particularized and (b) actual or

imminent, not conjectural or hypothetical; (2) the

injury is fairly traceable to the challenged action of

the defendant; and (3) it is likely, as opposed to

merely speculative, that the injury will be redressed

by a favorable decision.

Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC),

Inc., 528 U.S. 167, 180-81 (2000) (citing Lujan, 504 U.S. at

560-61); accord Long Term Care Partners, LLC v. United

States, 516 F.3d 225, 231 (4th Cir. 2008).

With regard to the prudential component of standing, courts

generally recognize three self-imposed constraints. See Valley

Forge Christian Coll. v. Ams. United for Separation of

Church & State, Inc., 454 U.S. 464, 474-75 (1982); Allen, 468

U.S. at 751. First, "when the asserted harm is a ‘generalized

grievance’ shared in substantially equal measure by all or a

large class of citizens, that harm alone normally does not warrant exercise of jurisdiction." Warth, 422 U.S. at 499; see,

e.g., United States v. Richardson, 418 U.S. 166 (1974). Second, "the plaintiff generally must assert his own legal rights

and interests, and cannot rest his claim to relief on the legal

rights or interests of third parties." Warth, 422 U.S. at 499;

accord Valley Forge, 454 U.S. at 474. Third, "a plaintiff’s

grievance must arguably fall within the zone of interests protected or regulated by the statutory provision or constitutional

guarantee invoked in the suit." Bennett v. Spear, 520 U.S.

154, 162 (1997); see, e.g., Ass’n of Data Processing Serv.

Orgs., Inc. v. Camp, 397 U.S. 150, 153 (1970).

In determining whether a party has standing to bring suit,

the party invoking the jurisdiction of the court bears the burden of establishing standing. FW/PBS, Inc. v. City of Dallas,

6 BISHOP v. BARTLETT
493 U.S. 215, 231 (1990); Miller v. Brown, 462 F.3d 312, 316

(4th Cir. 2006). "At the pleading stage, general factual allegations of injury resulting from the defendant’s conduct may

suffice, for on a motion to dismiss we presume that general

allegations embrace those specific facts that are necessary to

support the claim." Lujan, 504 U.S. at 561 (internal quotations

omitted). Nevertheless, the party invoking the jurisdiction of

the court must include the necessary factual allegations in the

pleading, or else the case must be dismissed for lack of standing. McNutt v. Gen. Motors Acceptance Corp., 298 U.S. 178,

189 (1936).

After examining the allegations in the plaintiffs’ complaint,

we conclude that they are insufficient to support standing. The

plaintiffs’ federal due process claim relates solely to the manner in which Amendment One was presented and made available to the voters during the November 2004 election. Yet the

plaintiffs do not contend that they—or any other voter, for

that matter—were actually misled by the ballot language or

that they unsuccessfully attempted to obtain the full text of

Amendment One. Rather, the plaintiffs contend only that the

ballot language contained "potentially misleading language."

(J.A. 26.) If there is an "interest in maintaining the effectiveness of . . . votes," Coleman v. Miller, 307 U.S. 433, 438

(1939), it is held by those voters who were misled by the

amendment process. The plaintiffs’ interest, by contrast, is

"merely a claim of ‘the right, possessed by every citizen, to

require that the Government be administered according to law

. . . .’" Baker v. Carr, 369 U.S. 186, 208 (1962) (quoting Fairchild v. Hughes, 258 U.S. 126, 129 (1922)). This type of

abstract, generalized interest clearly fails to meet the requirement that an injury be concrete and particularized.

The plaintiffs, perhaps recognizing that they did not suffer

a cognizable injury at the time of the November 2004 election, claim that they are now injured by the amendment process insofar as they are denied the right to vote on future bond

referenda. Their complaint specifically identified one plainBISHOP v. BARTLETT 7
tiff, Moore, who resides in a city in which tax increment

financing bonds were preliminarily approved without a referendum.* According to the plaintiffs, even if the allegations

that they have lost the right to vote on future bond referenda

are too generalized to support standing, the deprivation of

Moore’s right to vote on the bonds for the Roanoke Rapids

project satisfies the injury-in-fact requirement.

It is without dispute that the right to vote is "the most basic

of political rights," FEC v. Akins, 524 U.S. 11, 25 (1998),

such that the government’s interference with that right may

satisfy the injury-in-fact requirement. See id. Furthermore, the

fact that the deprivation of Moore’s right to vote on the Roanoke Rapids project was shared by all residents of the city

does not necessarily mean that his injury is merely a "generalized grievance." In Akins, the Supreme Court clarified this

distinction: "Often the fact that an interest is abstract and the

fact that it is widely shared go hand in hand. But their association is not invariable, and where a harm is concrete, though

widely shared, the Court has found ‘injury in fact.’" Id. at 24.

The deprivation of the right to vote is just such a concrete

harm, see Schlesinger v. Reservists Comm. To Stop the War,

418 U.S. 208, 223 n.13 (1974), and thus its widely shared

nature does not preclude a finding that Moore has suffered an

injury in fact.

Although the deprivation of Moore’s right to vote on the

Roanoke Rapids project satisfies the injury-in-fact requirement, that harm was not directly caused by any governmental

action towards him, but rather by the amendment process during the November 2004 election. In these types of cases, it

may be particularly difficult for an indirectly affected party to

*While there is some question regarding whether, at the time of filing,

the Roanoke Rapids project had reached the critical point in which

Moore’s right to vote was implicated, we will assume for purposes of this

opinion that the project had reached a point in which the issuance of bonds

was imminent. 

8 BISHOP v. BARTLETT
satisfy the causation and redressability requirements. See, e.g.,

Warth, 422 U.S. at 504-05; Simon v. E. Ky. Welfare Rights

Org. (EKWRO), 426 U.S. 26, 44-46 (1976). In this case, the

indirect nature of the harm to Moore renders it impossible for

the plaintiffs to satisfy the causation requirement.

In order to prove causation, a plaintiff must demonstrate

that the injury "fairly can be traced to the challenged action

of the defendant, and not . . . result[ing] from the independent

action of some third party not before the court." EKWRO, 426

U.S. at 41-42. Here, the deprivation of Moore’s right to vote

on the Roanoke Rapids project was caused by the ratification

of Amendment One by a majority of voters in the November

2004 election. While it is true that the plaintiffs further allege

that the ballot language was "misleading and insufficient to

adequately apprise voters" of the effect of ratification of

Amendment One (J.A. 26), they did not allege in their complaint that any voters were actually misled by the language or

that the result of the election would have been different had

the ballot contained the complete text of Amendment One.

These types of allegations, at a minimum, are necessary to

make a causal connection between the deprivation of Moore’s

right to vote on the Roanoke Rapids project and the amendment process.

Moreover, even if the plaintiffs had alleged that other voters had been misled by the ballot language, the "line of causation" between the ballot language and the passage of

Amendment One is "attenuated at best." See Allen, 468 U.S.

at 757 (concluding that IRS’ granting of tax exemptions to

racially discriminatory schools was not sufficiently causally

connected to desegregation to confer standing). Indeed, it is

"entirely speculative" that the outcome of the November 2004

election would have been any different had the full text of

Amendment One been included on the ballot. See id. at 758.

The plaintiffs have thus failed to demonstrate, even at the

pleading stage, an adequate causal connection between the

harm and the challenged conduct.

BISHOP v. BARTLETT 9
Nevertheless, the plaintiffs contend that the decision by the

Eleventh Circuit in Burton v. Georgia, 953 F.2d 1266 (11th

Cir. 1992), implicitly recognized the ability of voters to challenge the constitutionality of ballot language in federal courts.

The plaintiffs’ reliance on Burton is misplaced. Burton was

not a case about standing, and the opinion did not discuss the

nature of the injuries suffered by the plaintiffs. More importantly, we do not hold in this case that voters can never bring

these types of suits. We hold only that these particular plaintiffs have not alleged sufficient facts to support standing. This

is an important distinction, because our standing requirements

ensure that a party has "‘alleged such a personal stake in the

outcome of the controversy’ as to warrant his invocation of

federal-court jurisdiction and to justify exercise of the court’s

remedial powers on his behalf." EKWRO, 426 U.S. at 38

(quoting Warth, 422 U.S. at 498-99).

III.

Because the plaintiffs failed to make sufficient factual allegations to support their standing to sue, we affirm the judgment of the district court.

AFFIRMED

10 BISHOP v. BARTLETT