                         RECOMMENDED FOR FULL-TEXT PUBLICATION
                             Pursuant to Sixth Circuit I.O.P. 32.1(b)
                                    File Name: 14a0268p.06

                   UNITED STATES COURT OF APPEALS
                                 FOR THE SIXTH CIRCUIT
                                   _________________


 FAIR ELECTIONS OHIO; CURE-OHIO; THE AMOS ┐
 PROJECT,                                              │
                                 Plaintiffs-Appellees, │
                                                       │       No. 14-4007
                                                       │
        v.                                             >
                                                       │
                                                       │
 JON HUSTED, in his official capacity as Secretary of │
 State of Ohio; MIKE DEWINE, in his official │
 capacity as Attorney General of Ohio,                 │
                              Defendants-Appellants. │
                                                       ┘
                         Appeal from the United States District Court
                        for the Southern District of Ohio at Cincinnati.
                    No. 1:12-cv-00797—S. Arthur Spiegel, District Judge.

                            Decided and Filed: October 24, 2014

              Before: COLE, Chief Judge, ROGERS and COOK, Circuit Judges.

                                    _________________

                                        COUNSEL

ON BRIEF: Ryan L. Richardson, Zachery P. Keller, Sarah E. Pierce, OFFICE OF THE OHIO
ATTORNEY GENERAL, Columbus, Ohio, for Appellants. Patrick M. Quinn, BRUNNER
QUINN, Columbus, Ohio, David A. Singleton, Ngozi V. Ndulue, Pamela H. Thurston, OHIO
JUSTICE & POLICY CENTER, Cincinnati, Ohio, for Appellees.

       ROGERS, J., delivered the opinion of the court, in which COOK, J., joined. COLE, C.J.,
(pp. 8–11), delivered a separate dissenting opinion.




                                              1
No. 14-4007             Fair Elections Ohio, et al. v. Husted, et al.                      Page 2

                                        _________________

                                             OPINION
                                        _________________

       ROGERS, Circuit Judge. This case concerns whether an organization conducting voter
outreach has standing to challenge the deadline for requesting an absentee ballot, on the theory
that this deadline—6:00 P.M. on the Friday before Election Day—prevents people jailed after
the deadline and held through Election Day from exercising their right to vote. In order to sue in
federal court, an organizational plaintiff must show a concrete and particularized injury in fact to
itself or its members. Plaintiffs have not done so here. Further, limits on third-party standing
prevent the organizational plaintiffs in this case from asserting the rights of third-parties.

       Under Ohio law, jail confinement does not negate voter eligibility. Persons who are in jail
on pending charges have the right to register and vote. Ohio Rev. Code § 3509.08(A). Only
convicted felons in state custody lose the right to vote, and only during the pendency of their
incarceration. Ohio Rev. Code § 2961.01(A).

       Ohio law provides two basic methods by which a registered voter can cast a ballot: by
voting in person at an assigned location on Election Day, or by using one of the “absent voter’s
ballot procedures” found in Ohio Rev. Code § 3509.01 et seq. Ohio law and practice provide for
five methods of absentee voting. First, one can vote remotely by mail. Second, one can vote
early, in person, at the board of elections or other designated location. The final three ways
apply to those in special circumstances, that is, overseas uniformed military, those subject to
“disability or confinement,” or those in “unforeseen hospitalization.”

       For conventional absentee voting, a request must be received by hand delivery before
6:00 P.M. on the Friday before Election Day, or by mail before noon on the Saturday before
Election Day at the relevant board of elections. Ohio Rev. Code § 3509.03. Those in special
circumstances, including those confined under a sentence for a misdemeanor or awaiting trial on
a felony or misdemeanor, can submit ballot applications up to 90 days before an election. Ohio
Rev. Code § 3509.08(A). After receiving and verifying confined voter ballot applications,
boards of elections send two-person teams to obtain the ballots from those confined at nursing
No. 14-4007              Fair Elections Ohio, et al. v. Husted, et al.                   Page 3

homes, private homes, hospitals, and jails. While such teams visit nursing homes as long as a
month before the election, boards of elections can and do wait until Election Day to send a team
to the county’s jail or jails, to avoid obtaining absentee ballots from persons who would have
been released before Election Day.

          The practical outcome of the current procedure is that persons jailed after 6:00 P.M. on
the Friday before Election Day who are not released in time to vote in person on Election Day
and who have not already voted using one of the other absent voter ballot procedures are unable
to vote.

          Separate from the ordinary absentee ballot procedures, those who cannot visit the polls in
person because the voter or the voter’s minor child is “confined in a hospital as a result of an
accident or unforeseeable medical emergency” can qualify for a special voting procedure if an
absentee ballot application is delivered to the relevant board of elections by 3:00 P.M. on
Election Day. Ohio Rev. Code § 3509.08(B)(1). A late hospital voter can request that the
absentee ballot be entrusted to a family member for delivery. Otherwise, the board must send a
two-person team of board employees representing the two major political parties. Ohio Rev.
Code § 3509.08(B). No corresponding provision exists for persons confined in jail on Election
Day because of an arrest or misdemeanor conviction occurring after 6:00 P.M. the preceding
Friday.

          Plaintiffs initiated this suit on October 15, 2012 by filing a complaint and a motion for a
temporary restraining order. Plaintiffs alleged that treating late-jailed electors differently from
late-hospitalized electors violates the Equal Protection Clause and Due Process Clause of the
Fourteenth Amendment, § 2 of the Voting Rights Act, and the Seventeenth Amendment. They
requested declaratory and injunctive relief. After an oral hearing on the motion, the district court
determined that at least one of the plaintiffs—The AMOS Project—had standing to sue because
it would be “required to divert its resources to retraining its volunteers and informing its
members and constituents of the risks attendant with getting arrested during the weekend prior to
the election.” The district court then found that the plaintiffs were not likely to succeed on any
of their claims and that equitable factors weighed against issuing a temporary restraining order.
The plaintiffs did not appeal, and the parties proceeded with discovery.
No. 14-4007             Fair Elections Ohio, et al. v. Husted, et al.                   Page 4

        The parties then filed cross-motions for summary judgment. In a ruling on September 16,
2014, the district court again found that AMOS had standing to sue. The court noted that
standing had already been found when the plaintiffs filed for a temporary restraining order. The
court found that the evidence produced on summary judgment showed that “AMOS learned of
the disenfranchisement of late-jailed voters late in the game, and therefore weren’t able to
modify voting rights placards or print new supplemental materials,” and that “AMOS used its
small staff in voter engagement training to teach election volunteers that a pre-election arrest
could result in the loss of the chance to vote.” According to the district court, these showings of
injury were enough for AMOS to have standing. The court then granted summary judgment for
the plaintiffs on all of their claims.

        Although the district court’s constitutional analysis does not appear sufficient to warrant
the injunction, we need not address the merits. AMOS lacks standing because it has not shown
that it has suffered an injury in fact. To establish standing, AMOS must show an injury in fact,
fairly traceable to the defendant’s conduct, that is likely to be redressed by a favorable decision
from the court. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61 (1992). Each element of
standing “must be supported in the same way as any other matter on which the plaintiff bears the
burden of proof, i.e., with the manner and degree of evidence required at successive stages of the
litigation.” Id. at 561. AMOS made two evidentiary showings on summary judgment, neither of
which establishes an injury in fact. That AMOS’s placards and supplemental materials failed to
contain a full and accurate description of the years-old late-jailed electors issue is not an Article
III injury, and even if it were, it is not fairly traceable to the State, only to AMOS’s ignorance of
the law.    Further, it is not an injury to instruct election volunteers about absentee voting
procedures when the volunteers are being trained in voting procedures already, as AMOS
Executive Director Paul Graham conceded that the training was part of a single regularly
scheduled meeting. And even if this instruction were an injury, any likely redress by this court
would simply substitute a different procedure, which AMOS must teach its volunteers instead.

        The only other basis for standing offered by the plaintiffs is that the law compelled
AMOS to divert limited resources to address the issue of late-jailed electors, but the plaintiffs
No. 14-4007                Fair Elections Ohio, et al. v. Husted, et al.                                Page 5

have not supported this argument with specific facts apart from the two evidentiary showings.1
Lujan teaches that “mere allegations” are insufficient to establish jurisdiction; at summary
judgment, plaintiffs must set forth “specific facts.” 504 U.S. at 561. If such specific facts are in
the record, the plaintiffs have not pointed them out on appeal. Instead, plaintiffs rest on the
conclusions reached by the district court, content to quote broadly from the district court’s denial
of a temporary restraining order and grant of summary judgment. These conclusions, taken
separately or together, do not amount to a diversion of resources and do not constitute Article III
injuries.

         At bottom the Article III standing limitation prevents a plaintiff from bringing a federal
suit to resolve an issue of public policy if success does not give the plaintiff (or one of an
associational plaintiff’s members) some relief other than the satisfaction of making the
government comply with the law. The relief need not be monetary, of course. It may for
instance be aesthetic, or informational. If a voter can get to the polls more easily by winning the
lawsuit, or a political party can marshal its forces more effectively by winning its lawsuit, that
ought to be enough for Article III. But if the armchair observer decides that the government is
violating the law, and decides to stop it by suing, that is not enough. This limit would be
eviscerated if an advisor or organization can be deemed to have Article III standing merely by
virtue of its efforts and expense to advise others how to comport with the law, or by virtue of its
efforts and expense to change the law. Plaintiffs in this case have demonstrated no more than
this.

         The cases cited by the Plaintiffs in support of their diversion of resources theory of
standing are accordingly distinguishable. In Crawford v. Marion County Election Board, the

         1
           The dissent’s reliance on Havens Realty Corporation v. Coleman is misplaced. 455 U.S. 363 (1982).
First, in Havens, the plaintiff organization sought damages, not an injunction, id. at 378; damages are a classic basis
for standing. And as the Supreme Court later held in City of Los Angeles v. Lyons, plaintiffs who have standing to
bring a damages claim do not necessarily have standing to bring a claim for injunctive relief. 461 U.S. 95 (1983).
Second, the injury to the plaintiff organization in Havens was a distinct and palpable injury to a broad legal right
intrinsic to the organization’s activities. In Havens, the right under the Fair Housing Act was “an enforceable right
[of any person] to truthful information concerning the availability of housing,” 455 U.S. at 373—a right that cuts to
the core of an organization that “provide[d] counseling and referral services for low-and moderate-income
homeseekers,” id. at 379. The misinformation provided by the Havens defendants, i.e. a lie told to black renters,
including a member of the organization, that no rental units were available, directly interfered with the
organization’s ability to provide truthful counseling and referral services. The present case does not involve false
information. For similar reasons, the dissent’s reliance on Miami Fair Housing Center, Inc. v. Connor Group,
725 F.3d 571 (6th Cir. 2013), also an FHA suit for damages, id. at 576, is misplaced.
No. 14-4007                Fair Elections Ohio, et al. v. Husted, et al.                                Page 6

Seventh Circuit concluded that the Democratic Party had standing to challenge an Indiana voter
ID law. 472 F.3d 949 (7th Cir. 2007). The law injured the Democratic Party by preventing and
discouraging Democratic Party members and supporters from voting. Id. at 951. In Florida
State Conference of the NAACP v. Browning, the Eleventh Circuit found that the NAACP and
other organizations had standing to challenge a Florida law that required voter registration
information to match information in state databases. 522 F.3d 1153 (11th Cir. 2008). The
Eleventh Circuit concluded that the organizations had standing on behalf of their members. Id.
at 1163–64. Under the law, if the information did not match, the voter-members would have to
take additional steps to correct the error, such as providing documentary proof that the state
databases were incorrect or filing an amended voter registration form. Id. at 1157. In Browning,
the NAACP and other organizations had standing because at least some of their approximately
20,000 members would have had their voter registration applications rejected due to a mismatch.
Id. at 1163. Unlike in Crawford and Browning, there is simply no indication that any of
AMOS’s members will be a voter affected by the challenged law. Instead, the law purportedly
injures AMOS by hampering AMOS’s abstract social interest in maximizing voter turnout.
Harm to abstract social interests cannot confer Article III standing. Greater Cincinnati Coal. for
the Homeless v. City of Cincinnati, 56 F.3d 710, 716–17 (6th Cir. 1995).

         Even if AMOS were to demonstrate it has Article III standing, it would confront the
additional barrier of the long-recognized limit on plaintiffs asserting the rights of third-parties.2
The plaintiffs are organizations and cannot vote; instead they assert the right to vote of
individuals not even presently identifiable. A party “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.”
Kowalski v. Tesmer, 543 U.S. 125, 129 (2004). There are exceptions to this limit—such as
where a “close relationship” exists between the party asserting the right and the party possessing
it or where a “hindrance” exists to the possessor’s ability to protect the right, id. at 129–30—but
none applies here. The relationship between AMOS and the persons whom it seeks to help—



         2
          Husted does not specifically raise the limit on third-party standing, but this court has previously held that
such limits on standing may be raised by the court. Cmty. First Bank v. Nat’l Credit Union Admin., 41 F.3d 1050,
1053 (6th Cir. 1994), amended (May 8, 1995).
No. 14-4007            Fair Elections Ohio, et al. v. Husted, et al.               Page 7

unidentified, future late-jailed voters—does not resemble the close relationship of the lawyer-
client or doctor-patient relationships recognized by the Supreme Court. Id.

       In their brief, the Plaintiffs do not identify any other basis for standing. Plaintiffs
accordingly lack standing to sue.

       For these reasons we vacate the judgment of the district court, and remand with
instructions to dismiss.
No. 14-4007            Fair Elections Ohio, et al. v. Husted, et al.                      Page 8

                                        _________________

                                             DISSENT
                                        _________________

       COLE, Chief Judge, dissenting. Ohio law effectively denies the vote to eligible voters
who are arrested the weekend before Election Day—after the deadline for confined individuals
to submit absentee ballots—and are not released in time to go to the polls to vote (“late-jailed
voters”). In response to the laws at issue, plaintiff The AMOS Project (“AMOS”), a federation
of 22 churches in the Cincinnati area that works to promote voter engagement, diverted its
limited resources from its canvassing efforts towards providing additional training to its
volunteers and to inform its members about the risks of being arrested during that period.
Because the laws being challenged here forced AMOS to redirect those resources, AMOS
suffered a cognizable injury sufficient to confer Article III standing upon it to bring this action.

       Under the “case or controversy” requirement of Article III of the United States
Constitution, “a plaintiff in federal court must allege 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.” Greater Cincinnati Coal. for the Homeless v. City of
Cincinnati, 56 F.3d 710, 715 (6th Cir. 1995) (citation and quotation marks omitted). A plaintiff
must therefore show “an actual or threatened injury, a causal connection between that injury and
the defendant’s conduct, and a likelihood that a court decision in the plaintiff’s favor will redress
the injury alleged.” Id. A plaintiff “only need[s] to establish standing at the time that its
complaint was filed.” Cleveland Branch, NAACP v. City of Parma, Ohio, 263 F.3d 513, 525
(6th Cir. 2001).

       “An association or organization may assert standing in one of two ways: (1) on its own
behalf because it has suffered a palpable injury as a result of the defendants’ actions; or (2) as the
representative of its members.” MX Grp., Inc. v. City of Covington, 293 F.3d 326, 332–33 (6th
Cir. 2002). An organization may have standing to sue if its interests are directly impaired, but a
“mere interest in a problem” that is nothing more than “simply a setback to the organization’s
abstract social interests” will not suffice. Greater Cincinnati Coal. for the Homeless, 56 F.3d at
at 716 (citations omitted). Here, AMOS asserts standing on its own behalf.
No. 14-4007            Fair Elections Ohio, et al. v. Husted, et al.                   Page 9

       “The Supreme Court and this Circuit have found that a drain on an organization’s
resources . . . constitutes a concrete and demonstrable injury for standing purposes.” Miami
Valley Fair Hous. Ctr., Inc. v. Connor Grp., 725 F.3d 571, 576 (6th Cir. 2013). As the Supreme
Court explained, the expenditure or diversion of resources to counteract policies in conflict with
an organization’s goals “constitutes far more than simply a setback to the organization’s abstract
social interests.” Havens Realty Corp. v. Coleman, 455 U.S. 363, 379 (1982). Thus, we have
found a cognizable injury for standing purposes when an organization claimed that it “had to
divert its resources, [and] its staff time and energy” in response to a defendant’s unlawful
actions.   Connor Grp., 725 F.3d at 576.         Our sister circuits have similarly held that an
organization suffers a concrete injury when, in response to a challenged election statute, it must
spend more time or resources educating or redirecting personnel or voters in order to encourage
voting. See, e.g., Fla State Conference of NAACP v. Browning, 522 F.3d 1153, 1165–66 (11th
Cir. 2008); Crawford v. Marion Cnty. Election Bd., 472 F.3d 949, 951 (7th Cir. 2007) (Posner,
J.), aff’d, 553 U.S. 181 (2008).

       In the case before us, two district judges found that AMOS was forced to turn its
resources from its general canvassing efforts towards retraining its volunteers and members
about the consequences of being arrested the weekend before Election Day due to the laws at
issue. Consistent with our precedent and that of the Supreme Court, those judges concluded that
AMOS suffered a “concrete and demonstrable injury” sufficient to establish standing. But
although the majority has not determined that those judges clearly erred in their factual findings,
see Howard v. City of Beavercreek, 276 F.3d 802, 805 (6th Cir. 2002), it departs from the
Supreme Court’s instruction that a “drain on [an] organization’s resources [] constitutes far more
than simply a setback to the organization’s abstract social interests.” Havens Realty Corp.,
455 U.S. at 379. It also departs from our observation that “the standing requirement of an injury-
in-fact is fairly lenient.” Nat’l Rifle Ass’n of Am. v. Magaw, 132 F.3d 272, 293 (6th Cir. 1997).
We have found that organizations suffer concrete injuries sufficient to confer standing when the
defendants’ alleged violations of the law “prevent these organizations from performing their
daily operations.” Am. Canoe Ass’n, Inc. v. City of Louisa Water & Sewer Comm’n, 389 F.3d
536, 546 (6th Cir. 2004). That is precisely what happened here, yet the majority denies AMOS
recourse from the laws that hinder its goal of promoting the right to vote.
No. 14-4007            Fair Elections Ohio, et al. v. Husted, et al.                  Page 10

        The majority contends that AMOS is, in reality, impermissibly litigating the rights of
third parties, i.e, potential late-jailed voters, but that is not so. As discussed, AMOS has shown a
real injury to itself, and standing doctrine affords it the opportunity to seek redress from the
courts. It does not matter that resolving its grievance would have the dual effect of affording the
vote to late-jailed voters because, as the Supreme Court observed, “[t]he Art. III judicial power
exists only to redress or otherwise to protect against injury to the complaining party, even though
the court’s judgment may benefit others collaterally.” Warth v. Seldin, 422 U.S. 490, 499
(1975). So long as AMOS has a legitimate interest and ability to advance this litigation,
whatever advantage the relief sought will confer on third parties is of no moment.

        Nonetheless, AMOS may very well have standing to bring suit on behalf of its members,
though it has not made this argument on appeal. In Sandusky County Democratic Party v.
Blackwell, 387 F.3d 565 (6th Cir. 2004), we concluded that the plaintiff political parties and
labor organizations had standing to assert the rights of their members in challenging state
election regulations that they alleged could mistakenly cause their ballots not to be counted or
prevent the members from voting at all. Although the election had not yet occurred and the
organizations “ha[d] not identified specific voters” who might suffer such harm, we observed
that “this is understandable” because such issues “cannot be specifically identified in advance,”
but “[i]t is inevitable, however, that there will be such mistakes.” Id. at 574. We thus found that
the organizations had standing to assert the rights of their members who would vote. Similarly,
it is likely that some eligible voters who are part of 10,000–15,000 person membership of AMOS
will be late-jailed and, because of Ohio’s current laws, be prevented from exercising their right
to vote even though AMOS cannot know beforehand if any of its members might be arrested
during the weekend before Election Day. Just as the plaintiff organizations in Blackwell were
found to have representational standing, so AMOS may succeed on this alternative ground as
well.

        The majority states, in dicta, that even if AMOS had Article III standing, it would not
overcome the prudential limitation on standing to raise the rights of others. Citing Kowalski v.
Tesmer, 543 U.S. 125, 129–30 (2004), my colleagues note that AMOS does not have a “close
relationship” with late-jailed voters such that an exception to the limitation applies.         But
No. 14-4007            Fair Elections Ohio, et al. v. Husted, et al.                  Page 11

Kowalski does not apply here because, as discussed above, AMOS has not argued that it “rest[s]
[its] claim to relief on the legal rights or interests of third parties.” Id. at 129 (quoting Warth,
422 U.S. at 499). Whether AMOS has prudential standing is not a question before us.

       Because AMOS has suffered a cognizable injury sufficient to confer standing upon it to
bring this action, and because I agree with the district court’s conclusion with regard to the
merits, I would affirm its judgment. I respectfully dissent.
