United States District Court, E.D. PennsylvaniaOct 28, 2004
Civil Action No. 04-3163. (E.D. Pa. Oct. 28, 2004)

Civil Action No. 04-3163.

October 28, 2004


THOMAS O'NEILL, Senior District Judge


Plaintiff Lynn E. Landes filed suit seeking a declaratory judgment that the local, state and federal laws and regulations that permit the use of voting machines are unconstitutional. She also seeks to enjoin the use of voting machines in elections for public office. Plaintiff claims the use of voting machines prevents election officials, the press and the public from effectively observing whether persons entitled to vote are being permitted to vote and whether their votes are being properly tabulated. Defendants are Margaret Tartaglione, Chair of the City Commissioners of the City and County of Philadelphia, Pedro A. Cortés, Secretary of the Commonwealth of Pennsylvania and John Ashcroft, Attorney General of the United States. Now before me are motions to dismiss filed by all defendants. For the reasons stated below, I will grant defendants' motions.


The use of electronic voting systems and voting machines in Pennsylvania is permitted by 25 Pa. Stat. Ann. §§ 3002 and 3031.2. Plaintiff alleges that the computerized voting machines used in Philadelphia do not allow voters to cast their ballots directly and that they conceal the voting process. She further asserts that voting machines may or may not be accurate and they are vulnerable to technical failure or vote manipulation. Plaintiff alleges that it is not possible to observe whether voting machines manipulate or switch votes.

Plaintiff alleges that she is a registered voter in the City and County of Philadelphia and a freelance journalist who specializes in voting systems and democracy issues. She does not specifically allege that she intends to vote in future elections in Philadelphia or that she has voted in previous elections in the city.


A Rule 12(b)(6) motion to dismiss examines the sufficiency of the complaint. Conley v. Gibson, 355 U.S. 41, 45 (1957). In determining the sufficiency of the complaint I must accept all of the plaintiff's well-pleaded factual allegations as true and draw all reasonable inferences therefrom. Graves v. Lowery, 117 F.3d 723, 726 (3d Cir. 1997).

The Federal Rules of Civil Procedure do not require a claimant to set out in detail the facts upon which he bases his claim. To the contrary, all the Rules require is "a short and plain statement of the claim" that will give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests.
Id., quoting Conley, 355 U.S. at 47. I should not inquire as to whether the plaintiff will ultimately prevail, but only whether he is entitled to offer evidence to support his claims. See Oatway v. Am. Int'l Group, Inc., 325 F.3d 184, 187 (3d Cir. 2003). "Thus, [I will] not grant a motion to dismiss `unless it appears beyond a doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.'" Graves, 117 F.3d at 726, quoting, Conley, 355 U.S. at 45-46.


Plaintiff lacks standing to challenge the use of voting machines. In order to have standing to raise a claim before this court, plaintiff must establish that she meets both the three constitutional requirements for standing and the prudential considerations that courts have applied in determining standing. Storino v. Borough of Point Pleasant Beach, 322 F.3d 292, 296 (3d Cir. 2003). To meet the constitutional requirements for standing, first plaintiff must have suffered an injury in fact — an invasion of a legally protected interest that is concrete and particularized, affecting the plaintiff in a personal and individual way, and actual or imminent, not conjectural or hypothetical. Second, there must be a causal connection between the injury and the conduct complained of. The injury must be traceable to the challenged action of the defendant and not the result of the independent action of a third party. Third, it must be likely and not speculative that the injury will be remedied by a favorable decision. Id. See also Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992). The prudential principles applied in determining whether there is standing are:

(1) 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; (2) even when the Plaintiff has alleged redressable injury sufficient to meet the requirements of Article III, the federal courts will not adjudicate abstract questions of wide public significance which amount to generalized grievances shared and most appropriately addressed in the representative branches; and (3) the Plaintiff's complaint must fall within the zone of interests to be protected or regulated by the statute or constitutional guarantee in question.
Miller v. Nissan Motor Acceptance Corp., 362 F.3d 209, 221 (3d Cir. 2004) (citations omitted). Plaintiff fails to satisfy both the constitutional and prudential standing requirements.

Plaintiff has not established she has suffered or will suffer an injury in fact. An injury in fact is "an invasion of a legally protected interest which is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical. . . ." Storino v. Borough of Point Pleasant Beach, 322 F.3d 293, 296 (3d Cir. 2003). In plaintiff's complaint, she alleges that she is a registered voter of the City and County of Philadelphia, but she fails to allege that she intends to vote by voting machine in the upcoming election. She also fails to allege that she has ever voted in any prior election either by voting machine or by other means. Absent such allegations, plaintiff cannot establish an injury in fact. Cf. American Ass'n of People with Disabilities v. Hood, 278 F. Supp. 2d 1345, 1351-52 (M.D. Fla. 2003) (holding plaintiffs had standing where they were registered voters, consistently voted in the past and intended to vote in future elections).

Because the pleadings of a pro se party must be construed liberally, I do not dismiss plaintiff's motion on this basis alone as in her responses to Cortes' and Ashcroft's motions to dismiss she asserts that she has voted in the past and she intends to vote in the upcoming election.

Even assuming plaintiff has voted in the past and will vote in this election, however, she alleges only a "conjectural or hypothetical" injury. She argues that voting machines are vulnerable to manipulation or technical failure, but she does not assert that the voting machines in question have actually suffered from these issues in the past or that they will definitively malfunction or be tampered with during the upcoming election. In Storino, 322 F.3d at 297-98, the Court held that the only injury demonstrated by plaintiffs was prospective and conjectural where plaintiffs alleged a local zoning ordinance would cause them future damages but the Court could identify various scenarios where the possibility of injury would be eliminated. The Court noted, "one cannot describe how the Storinos will be injured without beginning the explanation with the word `if.' The prospective damages, described by the Storinos as certain, are, in reality, conjectural." Id.

Similarly, plaintiff's allegations here are not sufficient to demonstrate injury in fact because they are conjectural. If plaintiff's vote and the votes of all other voters in the upcoming election are correctly recorded, plaintiff will suffer no injury. Plaintiff's reliance on the terms "if" and "may" to couch her allegations of harm is a clear indication that the harm she alleges is merely speculative. Cf. Lujan v. Defenders of Wildlife, 504 U.S. 555, 564 (1992) (holding that plaintiffs' "`some day' intentions" to return to locations where they might be deprived of the opportunity to observe endangered animals did "not support a finding of the `actual or imminent' injury that our cases require").

Plaintiff argues, however, that the voting machines need not malfunction or be tampered with for an injury in fact to exist. She alleges she has been injured in past elections and will be injured in this election because voting machines prevent her from observing whether or not her vote has actually been cast. She asserts the use of voting machines deprives her of her rights to vote, to have votes counted properly, to observe the voting process effectively and to have those rights fully enforced under 42 U.S.C. Section 1983. Characterized in this manner plaintiff's alleged injury amounts to a "`generalized grievance' shared in substantially equal measure by all or a large class of citizens" and is not sufficient to confer standing. Warth v. Seldin, 422 U.S. 490, 499 (1975). See also Lujan, 504 U.S. at 560 (injury must be "concrete and particularized") (emphasis added); Whitmore v. Arkansas 495 U.S. 149, 160 (1990) ("the `generalized interest of all citizens in constitutional governance' . . . is an inadequate basis on which to grant" standing); Allen v. Wright, 468 U.S. 737, 754 (1984) ("an asserted right to have the Government act in accordance with law is not sufficient, standing alone, to confer jurisdiction on a federal court"); Public Interest Research Group v. Magnesium Elektron, 123 F.3d 111, 121 (3d Cir. 1997) ("The legal `right' to have corporations obey environmental laws cannot, by itself, support standing.").

Because plaintiff has not established the required elements to demonstrate she has standing to challenge the use of voting machines in Philadelphia, I will grant defendants' motions to dismiss.


AND NOW, this day of October 2004, after considering the motions to dismiss of defendants Margaret Tartaglione, Pedro A. Cortés and John Ashcroft and plaintiff's responses thereto and for the reasons set forth in the accompanying memorandum, it is ORDERED that:

1. defendant Margaret Tartaglione's motion to dismiss is GRANTED;
2. defendant Pedro A. Cortés' motion to dismiss is GRANTED;
3. defendant John Ashcroft's motion to dismiss is GRANTED;
4. plaintiff's complaint is DISMISSED with prejudice; and
5. plaintiff's motion for a temporary restraining order is DENIED as moot.