This week, the Ninth Circuit considers a plaintiff’s standing to challenge the use of voting machines and interprets a treaty granting an Indian Tribe the right to hunt.
The Court holds that plaintiffs’ allegations that voting machines might be hacked in future elections were insufficient to establish injury in fact.
The panel: Judges Gould, Hurwitz, and Bumatay, in a per curiam opinion.
Key highlight: “[N]one of Plaintiffs’ allegations supports a plausible inference that their individual votes in future elections will be adversely affected by the use of electronic tabulation, particularly given the robust safeguards in Arizona law, the use of paper ballots, and the post-tabulation retention of those ballots.”
Background: Since 1966, Arizona has authorized electronic tabulation of paper election ballots. The tabulation machines are repeatedly tested before use. When not in use, the machine’s components are securely stored and sealed with tamper-resistant seals. A tabulation system may not be connected to the internet, wireless communication devices, or external networks.
Plaintiffs Kari Lake and Mark Finchem—the Republican nominees for Governor and Secretary of State of Arizona, respectively—filed this action before the 2022 election. They alleged that notwithstanding these safeguards, electronic tabulation systems are susceptible to hacking by actors who intend to influence election results. Plaintiffs did not allege, however, that any machine in Arizona has ever been hacked. The district court dismissed for lack of standing.
Result: The Ninth Circuit affirmed. Article III standing requires, among other things, that a plaintiff demonstrate a “concrete and particularized” and “actual or imminent” “invasion of a legally protected interest.” Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992). The Court held that—even assuming plaintiffs had standing as prospective voters in future elections—they did not establish the requisite Article III injury. First, the Court concluded that plaintiffs’ asserted injury was not sufficiently concrete or particularized. Although plaintiffs argued that the use of voting machines denied them their fundamental right to vote, they did not allege any facts suggesting that Arizona burdened their individual exercise of that right. Moreover, plaintiffs did not allege tabulation of their votes would be manipulated; they asserted, at most, a generalized interest in seeing the law was obeyed. Second, and independently, the Court held that plaintiffs had not plausibly alleged a real and immediate threat of future injury. Plaintiffs’ theory of future harm relied on a long chain of hypothetical contingencies, none of which had previously occurred: that “(1) the specific voting equipment used in Arizona must have ‘security failures’ that allow a malicious actor to manipulate vote totals; (2) such an actor must actually manipulate an election; (3) Arizona’s specific procedural safeguards must fail to detect the manipulation; and (4) the manipulation must change the outcome of the election.” That kind of speculation, the Court concluded, “stretches the concept of imminence beyond its purpose.”
The Court holds that a Tribe’s treaty rights to hunt are not conditioned on the Tribe’s permanent residence on a reservation.
The panel: Judges M. Smith, Forrest, and Sung, with Judge Sung writing the opinion.
Key highlight: “The Treaty imposes only four conditions on the Tribes’ right to hunt. Two of the conditions describe the land where the Tribes may hunt: 1) the land must belong to ‘the United States,’ and 2) the land must be ‘unoccupied.’ The Treaty also conditions the Tribes’ right to hunt using expressly conditional language: the Tribes may hunt 3) ‘so long as game may be found’ on the unoccupied federal land, and 4) ‘so long as peace subsists among the whites and Indians on the borders of the hunting districts.’ The Treaty does not expressly identify permanent residence on a reservation as a fifth condition of the hunting right.”
Background: In 1868, the United States and several bands of the Shoshone and Bannock Tribes signed a treaty in which the Tribes ceded much of their territory. A key provision of the treaty provided: “The Indians herein named agree, when the agency house and other buildings shall be constructed on their reservations named, they will make said reservations their permanent home, and they will make no permanent settlement elsewhere; but they shall have the right to hunt on the unoccupied lands of the United States so long as game may be found thereon, and so long as peace subsists among the whites and Indians on the borders of the hunting districts, but reserved their right to hunt on unoccupied lands of the United States.”
One of these bands, the Northwestern Band of the Shoshone, did not establish permanent residence on a reservation. After Idaho issued multiple citations to members of this band for violations of state hunting laws, the Northwestern Band brought suit, seeking a declaration that it maintained the hunting rights reserved under the 1868 treaty. The district court granted the defendants’ motion to dismiss, holding that the treaty conditioned the exercise of the right to hunt on permanent residence in a reservation.
Result: The Ninth Circuit reversed. As the Court explained, treaties must be construed in favor of the Tribe and interpreted as the Tribe would have understood them at the time. The Court held that nothing in the language of the key treaty provisions would have led the Tribes to understand that their rights to hunt were conditioned on permanent residence in a reservation. The Court rejected the defendants’ argument that the word “but” separating the provision’s clauses (1) promising to live on a reservation and (2) retaining the right to hunt made the first clause a condition of the second. Rather, the Court determined, “the text and structure of [the provision] indicate that the Tribes agreed to cede their land and reside on a reservation on the condition that they would keep their right to hunt on the ceded territory.” And while the Northwest Band might not be fulfilling the promise to reside in a reservation, it was up to the United States—not Idaho—to determine what remedy, if any, was appropriate for that breach.