For the non-lawyers reading this page: standing is a legal doctrine governing who can bring a lawsuit. For instance, if you witness two of your neighbors getting into a fistfight, do you have the right to sue the one who started it? No, because your rights were not violated. The lawsuit would be between the party who allegedly had his rights violated and the one who allegedly violated them.

In 1992, the U.S. Supreme Court held in Lujan v. Defenders of Wildlife that in order to have standing, one must show that (1) he has an injury in fact, which is a concrete and actual invasion of a legally protected interest, (2) there is a causal connection between the injury and conduct complained of, and (3) it must be likely that a favorable court decision can redress the decision. The Alabama Supreme Court later on adopted this test for state courts as well. While on its face this test may seem reasonable, it has been used to throw out many meritorious lawsuits by being hypertechnical about the injury requirement. For instance, when COVID hit, the Alabama Supreme Court threw out a lawsuit on standing grounds when a group of citizens challenged Governor Ivey’s mask mandate. Despite the fact that the mask mandate came with criminal sanctions, the court reasoned that because nobody had been threatened with arrest or prosecution, the plaintiffs did not have standing. The result is that the law-abiding citizens of Alabama had to follow unlawful orders or put up with the chief executive of the state threatening to prosecute them with no way to bring a challenge to the mandate’s constitutionality.

Over the last two years, prominent conservative jurists, such as U.S. Supreme Court Justice Clarence Thomas and U.S. Court of Appeals for the Eleventh Circuit Judge Kevin Newsom, have argued that Lujan does not fit with the Constitution’s original meaning. In thorough historical analysis, Thomas and Newsom have argued that injury-at-law, not injury-in-fact, was the constitutional standing requirement. ACLL filed a brief showing the Alabama Supreme Court these arguments and also argued that the original understanding of the Alabama Constitution aligns more with Thomas and Newsom’s views than Lujan did. Under that framework, the plaintiffs would certainly have standing. Alabama’s voting laws are designed to protect them, and therefore if the voting machines are not properly certified, the citizens’ votes may not count.