Association of Community Organizations for Reform Now v. Fowler

REVISED, June 30, 1999

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 98-30145
_____________________

ASSOCIATION OF COMMUNITY ORGANIZATIONS FOR REFORM NOW,

Plaintiff-Appellant,

v.

JERRY M FOWLER, in his official capacity as Commissioner of
Elections and Registration, State of Louisiana; MIKE FOSTER,
GOVERNOR, STATE OF LOUISIANA, in his official capacity as
Governor of the State of Louisiana; RICHARD STALDER, in his
capacity as Secretary of Department of Public Safety and
Corrections; MADELINE BAGNERIS, in her official capacity as
Secretary of the Department of Social Services; BOBBY JINDAL, in
his official capacity as Secretary of the Department of Health
and Hospitals,

Defendants-Appellees.

_________________________________________________________________

Appeal from the United States District Court
for the Eastern District of Louisiana
_________________________________________________________________
June 10, 1999
Before KING, Chief Judge, and POLITZ and BENAVIDES, Circuit
Judges.

KING, Chief Judge:

Plaintiff-appellant Association of Community

Organizations for Reform Now brought this suit in federal

district court against state officials alleging that Louisiana’s

voter registration procedures violate the National Voter

Registration Act, 42 U.S.C. § 1973gg. The district court granted

summary judgment to the state officials on standing grounds. On
appeal, plaintiff-appellant argues that it has standing to bring

each of its three claims as an organization and as a

representative of its individual members. We conclude that

plaintiff-appellant has raised a genuine issue of material fact

as to whether it has standing to sue on its own behalf with

respect to one of its claims, its contention that defendants-

appellees have failed to make voter registration materials and

services available at voter registration agencies. We affirm the

district court’s grant of summary judgment to defendants-

appellees on all other grounds.

I. FACTUAL AND PROCEDURAL BACKGROUND

This suit arises out of efforts by the Association of

Community Organizations for Reform Now (ACORN) to force the State

of Louisiana to comply with certain provisions of the National

Voter Registration Act (the NVRA or Act), 42 U.S.C. § 1973gg.

ACORN is a national, nonprofit, membership corporation that seeks

to advance the interests of people with low and moderate incomes.

According to affidavits from ACORN members, ACORN views its

involvement in voter registration efforts as integral to the

furtherance of this mission. According to these members, ACORN

was involved in efforts to secure the passage of the NVRA, and

also devotes resources to promoting voter registration by

conducting voter registration drives, monitoring compliance with

the NVRA, and participating in litigation aimed at enforcing the

NVRA.

Congress enacted the NVRA in 1993

2
 (1) to establish procedures that will increase the
number of eligible citizens who register to vote in
elections for Federal office;
(2) to make it possible for Federal, State, and local
governments to implement [national voter registration]
in a manner that enhances the participation of eligible
citizens as voters in elections for Federal office;
(3) to protect the integrity of the electoral process;
and
(4) to ensure that accurate and current voter
registration rolls are maintained.

42 U.S.C. § 1973gg(b). The NVRA requires all non-exempt states

to establish certain procedures to facilitate voter registration.

See id. § 1973gg-2. Specifically, states must (1) include a

voter registration application form for federal elections as part

of a state driver’s license application, (2) accept voter

registration application forms by mail, and (3) designate voter

registration agencies, at which voter registration applications,

and assistance and acceptance of applications, must be made

available. See id. § 1973gg-3 to 1973gg-5.

In addition, the NVRA sets forth requirements with respect

to the states’ administration of the voter registration process.

See id. § 1973gg-6. Under this provision, states must comply

with a number of procedures designed to ensure a fair

registration process. For example, in § 1973gg-6(d), the Act

provides that states may not remove a registrant’s name from

voting rolls unless the registrant confirms in writing that he or

she has moved outside the voting jurisdiction, or the registrant

has failed to respond to a notice sent by the state and the

registrant has not voted or appeared to vote within a specified

time.

3
 The NVRA took effect in Louisiana on January 1, 1995.

Shortly after that date, ACORN sued certain Louisiana officials,

alleging that Louisiana had refused to implement the Act.1 In

the spring of 1995, the defendants in that suit settled with

ACORN.

According to ACORN, Louisiana has continued to violate the

NVRA despite the initial settlement. First, ACORN claims that a

Louisiana mail-in driver’s license renewal program, which it

alleges began in March 1995, violates the Act. Under the

program, certain residents with licenses nearing expiration

receive renewal applications that can be completed and returned

for a renewed license without an in-person application.

According to ACORN, Louisiana did not include voter registration

applications with these mailings. Second, ACORN asserts that

some of the state’s designated voter registration agencies are

not complying with the NVRA’s requirements. ACORN bases this

contention on statistics and surveys showing a low rate of

registration in Louisiana and disparities in registration within

Louisiana. Third, ACORN claims that some previously-registered

Louisiana voters believe that their names have been improperly

removed from the voter registration rolls.

1
ACORN also brought suit against at least two other states
on the same basis. See ACORN v. Miller, 129 F.3d 833 (6th Cir.
1997) (Michigan); ACORN v. Edgar, 56 F.3d 791 (7th Cir. 1995)
(Illinois).

4
 On June 10, 1996, ACORN reported these complaints to

Louisiana in a notice-to-sue letter.2 Thereafter, ACORN provided

additional information to Louisiana regarding the alleged NVRA

violations, but, after failing to receive sufficient assurances

that Louisiana would correct the problems, ACORN filed the

instant suit under the NVRA, seeking declaratory and injunctive

relief, as well as attorneys’ fees and costs.3 ACORN’s complaint

alleged that the appellees violated the NVRA by (1) using a mail-

in form for renewal of driver’s licenses that does not allow for

simultaneous voter registration, (2) improperly purging

registered voters from voter records, and (3) failing to provide

the required voter registration opportunities at certain public

assistance offices, armed forces recruitment offices, and all

offices in Louisiana that provide state-funded programs primarily

engaged in providing services to persons with disabilities.

2
In addition to allowing actions brought by the Attorney
General, the NVRA creates a private right of action. See 42
U.S.C. § 1973gg-9(b). “A person who is aggrieved by a violation”
of the Act may commence a civil action for declaratory or
injunctive relief if the violation is not corrected within 90
days after receipt of notice of the violation, or within 20 days
after receipt of notice if the violation occurred within 120 days
before the date of a federal election. Id. § 1973gg-9(b)(1)-(2).
3
ACORN named as defendants in this suit Jerry M. Fowler, in
his official capacity as Commissioner of Elections and
Registration for the State of Louisiana, Mike Foster, in his
official capacity as Governor, Richard Stalder, in his official
capacity as Secretary of the Department of Public Safety and
Corrections, Madeline Bagneris, in her official capacity as
Secretary of the Department of Social Services, and Bobby Jindal,
in his official capacity as Secretary of the Department of Health
and Hospitals (collectively, the appellees). This opinion refers
to the appellees and the State of Louisiana interchangeably.

5
 The parties commenced discovery, and on November 25, 1997,

ACORN moved for partial summary judgment. The appellees opposed

the summary judgment motion and moved to compel answers to

interrogatories regarding details of ACORN’s members.

Subsequently, ACORN moved for a protective order. A magistrate

judge resolved the discovery impasse by directing ACORN to

provide identifying information about a limited number of its

members who fell into discrete categories of members relevant to

the suit. On January 7, 1998, the appellees moved for summary

judgment on standing grounds.

The district court granted the appellees’ motion for summary

judgment on February 3, 1998 and dismissed each of ACORN’s

claims. The district court analyzed each of the grounds on which

ACORN asserted it had standing to maintain suit. First, the

district court concluded that ACORN could not sue on its own

behalf. According to the district court, because ACORN does not

vote and cannot register to vote, it could not qualify as a

“person who is aggrieved” under the NVRA and thus lacked

organizational standing as a matter of law. Second, the district

court rejected ACORN’s contention that it had standing as a

representative of its individual members. The district court

found that ACORN made no specific allegation that any of its

members had been aggrieved by Louisiana’s alleged failure to

provide voting applications with mail-in driver’s license

renewals, or its failure to comply with the NVRA provision

regarding registration at public assistance agencies. In sum,

6
the district court ruled that “the identified ACORN members

simply have not suffered or continue to suffer sufficient

‘threatened harm’ for purposes of standing.” Lastly, the

district judge determined that ACORN, because it had no right as

an organization to vote or register to vote, could not maintain

standing to sue for the deprivation of a federal right under 42

U.S.C. § 1983. ACORN timely appealed.

II. DISCUSSION

We review the district court’s grant of summary judgment on

standing grounds de novo. See Palma v. Verex Assurance, Inc., 79

F.3d 1453, 1455-56 (5th Cir. 1996); Farm Credit Bank v. Farish,

32 F.3d 184, 189 (5th Cir. 1994). Summary judgment is proper “if

the pleadings, depositions, answers to interrogatories, and

admissions on file, together with the affidavits, if any, show

that there is no genuine issue as to any material fact and that

the moving party is entitled to a judgment as a matter of law.”

FED. R. CIV. P. 56(c); see Celotex Corp. v. Catrett, 477 U.S. 317,

327 (1986). We must view all evidence in the light most

favorable to the party opposing the motion and draw all

reasonable inferences in that party’s favor. See Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).

On appeal, ACORN asserts that the district court erred in

ruling that ACORN failed to present a factual question as to

whether it has standing to bring this suit as an organization and

as a representative of its individual members. We first consider

whether ACORN has standing to bring its claims on its own behalf.

7
A. Organizational Standing

The inquiry as to whether a particular plaintiff has

standing has two components, involving “both constitutional

limitations on federal-court jurisdiction and prudential

limitations on its exercise.” Warth v. Seldin, 422 U.S. 490, 498

(1975); see City of Farmers Branch v. Pointer (In re Pointer),

952 F.2d 82, 85 (5th Cir. 1992). First, a plaintiff must show

that he or she satisfies the constitutional standing

requirements, which stem from the case or controversy requirement

of Article III. See Friends of the Earth, Inc. v. Chevron Chem.

Co., 129 F.3d 826, 827 (5th Cir. 1997). We then consider whether

prudential standing concerns, which are a set of “judicially

self-imposed limits on the exercise of federal jurisdiction” and

can be modified or abrogated by Congress, apply. Bennett v.

Spear, 520 U.S. 154, 162 (1997) (internal quotation marks

omitted). We begin our analysis with the constitutional standing

inquiry.

1. Article III Standing

An organization has standing to sue on its own behalf if it

meets the same standing test that applies to individuals. See

Havens Realty Corp. v. Coleman, 455 U.S. 363, 378-79 (1982);

National Taxpayers Union, Inc. v. United States, 68 F.3d 1428,

1433 (D.C. Cir. 1995). That standard, at its “‘irreducible

constitutional minimum,’” requires that the plaintiff demonstrate

that he or she “has suffered ‘injury in fact,’ that the injury is

‘fairly traceable’ to the actions of the defendant, and that the

8
injury will likely be redressed by a favorable decision.”

Bennett, 520 U.S. at 162 (quoting Lujan v. Defenders of Wildlife,

504 U.S. 555, 560-61 (1992)).

The Supreme Court applied these criteria in an

organizational standing context in Havens Realty. See 455 U.S.

at 378-79. In that case, Housing Opportunities Made Equal

(HOME), an organization operating a housing counseling service,

sued Havens Realty Corporation for allegedly engaging in racial

steering practices in violation of § 804 of the Fair Housing Act

of 1968, 42 U.S.C. § 3604. See id. at 366-67. HOME’s complaint

alleged:

Plaintiff HOME has been frustrated by defendants’
racial steering practices in its efforts to assist
equal access to housing through counseling and other
referral services. Plaintiff HOME has had to devote
significant resources to identify and counteract the
defendant’s [sic] racially discriminatory steering
practices.

Id. at 379 (alteration in original). The district court granted

Havens Realty Corporation’s motion to dismiss on standing

grounds. See id. at 369. The Fourth Circuit reversed, holding

that HOME’s allegation of injury was sufficient, at the pleading

stage, to satisfy the standing requirements. See id. at 369-70.

The Supreme Court affirmed the Fourth Circuit’s

determination that HOME had standing. See id. at 379. The Court

found HOME’s allegations of injury, causation, and redressability

sufficient to establish organizational standing, stating:

If, as broadly alleged, petitioners’ steering practices
have perceptibly impaired HOME’s ability to provide
counseling and referral services for low- and moderate-
income homeseekers, there can be no question that the

9
 organization has suffered injury in fact. Such
concrete and demonstrable injury to the organization’s
activities--with the consequent drain on the
organization’s resources--constitutes far more than
simply a setback to the organization’s abstract social
interests, see Sierra Club v. Morton, 405 U.S. [727,]
739 [(1972)]. We therefore conclude, as did the Court
of Appeals, that in view of HOME’s allegations of
injury it was improper for the District Court to
dismiss for lack of standing the claims of the
organization in its own right.

Id. at 379 (footnotes omitted). With the Havens Realty analysis

in mind, we turn our attention to whether ACORN has provided

sufficient summary judgment evidence that it has suffered injury

in fact, that its injury was caused by the alleged failure of

Louisiana to implement the terms of the NVRA, and that its injury

is likely to be redressed by a favorable verdict. See Bennett,

520 U.S. at 162.

Before we begin this analysis, however, we note the

difference in procedural posture between the case at bar and

Havens Realty; Havens Realty dealt with standing based on the

pleadings, while in this case, the district court considered the

appellees’ summary judgment motion. At the pleading stage,

“‘general factual allegations of injury resulting from the

defendant’s conduct may suffice, for on a motion to dismiss we

presum[e] that general allegations embrace those specific facts

that are necessary to support the claim.’” Meadowbriar Home for

Children, Inc. v. Gunn, 81 F.3d 521, 529 (5th Cir. 1996) (quoting

Lujan, 504 U.S. at 561) (alteration in original). “When the

defendant moves for summary judgment because of lack of standing,

however, the plaintiff must submit affidavits and comparable

10
evidence that indicate that a genuine issue of fact exists on the

standing issue.” Cramer v. Skinner, 931 F.2d 1020, 1025 (5th

Cir. 1991). Therefore, to demonstrate standing, ACORN must point

to specific summary judgment evidence showing that it was

“directly affected” by Louisiana’s alleged NVRA violations.

Lujan, 504 U.S. at 563 (internal quotation marks omitted);

see Fair Housing Council v. Montgomery Newspapers, 141 F.3d 71,

76 (3d Cir. 1998).

Supreme Court precedent teaches that the injury in fact

requirement under Article III is qualitative, not quantitative,

in nature. See Cramer, 931 F.2d at 1027; Saladin v. City of

Milledgeville, 812 F.2d 687, 690 (11th Cir. 1987). Thus, an

alleged injury must be “(a) concrete and particularized and (b)

actual or imminent, not conjectural or hypothetical” to pass

constitutional muster, Lujan, 504 U.S. at 560-61 (citations,

footnote, and internal quotation marks omitted), but it need not

measure more than an “identifiable trifle,” United States v.

Students Challenging Regulatory Agency Procedures (SCRAP), 412

U.S. 669, 689 n.14 (1973); see Save Our Community v. U.S.

Environmental Protection Agency, 971 F.2d 1155, 1161 (5th Cir.

1992). In SCRAP, the Supreme Court expressly rejected the

argument that the injury in fact requirement was limited to

“significant[]” injuries, noting that it has upheld the standing

of plaintiffs with “no more at stake in the outcome of an action

than a fraction of a vote, a $5 fine and costs, and a $1.50 poll

tax.” 412 U.S. at 689 n.14 (citations omitted).

11
 In the district court, ACORN supported its claim that it has

suffered an injury sufficient to meet the Article III standing

requirements by introducing two affidavits, one by Doug Hess4

(the Hess affidavit) and one by Marianna Butler5 (the Butler

affidavit), and its responses to the appellees’ interrogatories.

ACORN’s summary judgment evidence on this issue falls into three

general categories: first, that it has expended resources

litigating Louisiana’s and other states’ alleged failure to

implement the NVRA; second, that it is involved in monitoring

Louisiana’s implementation of the NVRA; and third, that it has

expended resources either registering voters or facilitating the

registration of voters.

a. Litigation Costs

While any injuries ACORN may have suffered as a result of

litigating Louisiana and other states’ failure to comply with the

NVRA might be concrete and particularized, they do not all

suffice to establish standing. An organization cannot obtain

standing to sue in its own right as a result of self-inflicted

injuries, i.e., those that are not “fairly traceable to the

actions of the defendant.” Bennett, 520 U.S. at 162 (internal

quotation marks omitted). Thus, it is immediately clear that

ACORN’s allegations of injury in fact due to resources it has

4
Doug Hess asserts in his affidavit that he was a political
organizer for ACORN from 1994 to 1996, and that he was Project
Director of ACORN’s NVRA Implementation Project.
5
Butler states in her affidavit that she serves as ACORN’s
Head Organizer in Louisiana, a position she has held for
approximately 17 years.

12
expended bringing this and other NVRA-enforcement litigation fail

to demonstrate ACORN’s standing. See Fair Housing Council, 141

F.3d at 80 (“We hold, therefore, that the pursuit of litigation

alone cannot constitute an injury sufficient to establish

standing under Article III.”); Association for Retarded Citizens

v. Dallas County Mental Health & Mental Retardation Ctr. Bd. of

Trustees, 19 F.3d 241, 244 (5th Cir. 1994) (“The mere fact that

an organization redirects some of its resources to litigation and

legal counseling in response to actions or inactions of another

party is insufficient to impart standing upon the

organization.”). Similarly, ACORN’s summary judgment evidence

that Hess, “in connection with this current lawsuit,” has

compiled statistical evidence regarding the implementation of the

NVRA in Louisiana is insufficient to impart standing on ACORN to

bring suit on its own behalf. See Association for Retarded

Citizens, 19 F.3d at 244. Expanding the definition of Article

III injury to include an organization’s litigation-related

expenses “implies that any sincere plaintiff could bootstrap

standing by expending its resources in response to actions of

another.” Id.; see also Spann v. Colonial Village, Inc., 899

F.2d 24, 27 (D.C. Cir. 1990) (“An organization cannot, of course,

manufacture the injury necessary to maintain a suit from its

expenditure of resources on that very suit. Were the rule

otherwise, any litigant could create injury in fact by bringing a

case, and Article III would present no real limitation.”).

b. Monitoring Costs

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 In addition, ACORN’s summary judgment evidence that it has

expended resources monitoring Louisiana’s implementation of the

NVRA is insufficient to raise a genuine issue of material fact on

the standing issue. ACORN’s summary judgment evidence on this

issue consists of the following: (1) that it “has performed

studies of voter registration and implementation of the National

Voter Registration Act, on its own, and in conjunction with other

organizations. These studies include reviews of Louisiana,” (2)

that Hess, the Project Director of ACORN’s NVRA Implementation

Project, attended an “NVRA implementation conference” in late

1994, (3) that Hess conducted “research includ[ing] work aimed at

persuading states to pass legislation and implement procedures

which would most effectively carry out the mandates of the NVRA,”

and (4) that Hess recalls “filing at least one letter of

objection with the Department of Justice on proposed legislation

submitted pursuant to the Voting Rights Act which [he] believed

did not meet” NVRA requirements.

The problem with ACORN’s allegation that it has suffered a

sufficient injury in fact due to its allocation of resources to

these activities is that ACORN has made no showing that these

monitoring costs are fairly traceable to any of the conduct by

Louisiana that ACORN claims in its complaint is illegal. See

Fair Housing Council, 141 F.3d at 78 & n.5. In Fair Housing

Council, the Third Circuit considered a similar claim under the

Fair Housing Act in which an organization claimed to have

standing to sue on its own behalf because it had spent money

14
reviewing classified ads on an ongoing basis for evidence of

discrimination. See id. The court held that the organization’s

allocation of resources to reviewing ads was insufficient to

confer standing in light of the organization’s failure to show

that it would not have undertaken the same efforts in the absence

of the alleged illegal act by the defendants. See id. In this

case, ACORN has failed to show that any of its purported injuries

relating to monitoring costs were in any way caused by any action

by Louisiana that ACORN now claims is illegal, as opposed to part

of the normal, day-to-day operations of the group. These general

allegations of activities related to monitoring the

implementation of the NVRA fail to confer standing on ACORN to

bring this lawsuit on its own behalf.

c. Voter Registration Costs

According to ACORN’s third category of summary judgment

evidence, ACORN engages in significant voter registration

activities. In particular, the affidavits, interrogatory

responses, and studies concerning the implementation of the NVRA

presented by ACORN to the district court indicate that ACORN

engages in voter registration drives in Louisiana, that it

provides voter registration applications to unregistered

potential members, and that it makes voter registration

applications available at housing fairs that it attends

throughout the year. In addition, according to the Hess

affidavit, Hess hired staff to train ACORN members on how to

conduct voter registration drives and to research voter

15
registration rates, coordinated voter registration drives at

“various” ACORN offices, supervised ACORN field staff as they

recruited volunteers and ran a voter registration drive,

maintained reports received from “some of the larger” ACORN

offices regarding the number of people registered through its

voter registration drives, and “did presentations to the

organizations” on how to conduct effective voter registration

drives.

ACORN claims on appeal, as it did before the district court,

that its efforts registering voters in Louisiana counteract the

appellees’ failure to properly implement the NVRA. Under Havens

Realty, an organization has standing to sue on its own behalf

where it devotes resources to counteract a defendant’s allegedly

unlawful practices. See 455 U.S. at 379; Spann, 899 F.2d at 28;

Cleburne Living Ctr., Inc. v. City of Cleburne, 726 F.2d 191,

202-03 (5th Cir. 1984), affirmed in part and vacated in part on

other grounds, 473 U.S. 432 (1985). In Cleburne Living Center,

we considered whether an association that promoted the general

welfare of the mentally disabled had standing to challenge the

validity of a zoning ordinance that excluded certain forms of

group homes from an apartment house district. See 726 F.2d at

202-03. We determined that the association lacked standing

because it failed to prove a drain on its resources resulting

from the defendant’s action. See id. However, we noted that the

association would have had standing to sue if it had proved (1)

that it provided counseling services to the mentally disabled

16
affected by the defendant’s act, and (2) that it had to devote

resources to combating the defendant’s alleged discrimination.

See id. at 203. Thus, we concluded that the association would

have been entitled to sue on its own behalf had it proven a

“drain on its resources” resulting from counteracting the effects

of the purportedly illegal zoning ordinance. Id.

Much of ACORN’s summary judgment evidence regarding its

laudable work registering voters, however, suffers from the same

malady as its evidence regarding monitoring costs. ACORN has not

made a sufficient showing that it engaged in any of the

activities mentioned in the Hess affidavit as a direct result of

Louisiana’s alleged failure to properly implement the NVRA.

Indeed, none of the evidence presented in the Hess affidavit is

even Louisiana-specific. We therefore conclude that the Hess

affidavit fails to raise a genuine issue of material fact that

ACORN has expended any resources registering voters that are

fairly traceable to any particular action by the appellees. See

Bennett, 520 U.S. at 162.

In addition, we have grave doubts that ACORN’s allegations

of injury due to including voter registration applications with

its membership applications or “set[ting] up” a voter

registration table at housing fairs that it already attends

suffice to confer standing on ACORN to sue on its own behalf. We

fail to see any concrete or identifiable resources that ACORN

could reallocate to other uses, if Louisiana were to properly

implement the NVRA, that it now spends engaging in these

17
activities. We conclude that ACORN’s evidence concerning these

activities raises no genuine issue of material fact that ACORN

has been “perceptibly impaired” by the appellees’ purported

failure to implement the NVRA. Havens Realty, 455 U.S. at 379

(stating that organization alleged sufficient injury where

defendant’s actions had “perceptibly impaired” organization); see

SCRAP, 412 U.S. at 688-89 (stating that plaintiff must show that

he or she “has been or will in fact be perceptibly harmed” by

defendant’s action to confer standing); see also Cramer, 931 F.2d

at 1026-27 (stating that “speculative and hypothetical” injury is

insufficient to confer standing on plaintiff).

Nevertheless, we conclude that ACORN has standing at this

stage of the litigation to raise one of the claims it brought

before the district court. After carefully reviewing ACORN’s

summary judgment evidence, we are convinced that ACORN has raised

a genuine issue of material fact that it has expended definite

resources counteracting the effects of Louisiana’s alleged

failure to implement 42 U.S.C. § 1973gg-5(a)(4)(A), which

requires states to facilitate voter registration at voter

registration agencies, including public aid offices. According

to its summary judgment evidence, ACORN conducts at least one

voter registration drive a year in Louisiana, and its

registration drives focus on registering people at “welfare

waiting rooms, unemployment offices, and on Food Stamp lines.”

In particular, ACORN alleges that it conducted one such voter

registration drive in late 1995 through early 1996 that

18
registered approximately 400 new voters in New Orleans,

Lafayette, and Lake Charles, Louisiana. Significantly, ACORN

presents evidence that it concentrated this voter registration

campaign in areas where the percentages of all food stamp

participant households registered to vote, a population directly

affected by one of the NVRA requirements that ACORN claims

Louisiana has failed to implement,6 are among the lowest in

Louisiana.

This summary judgment evidence is sufficient to raise a

genuine issue of material fact that ACORN has expended resources

counteracting one of the areas in which ACORN alleges that the

appellees fail to implement the NVRA. Simply put, ACORN has

presented evidence that it has expended resources registering

voters in low registration areas who would have already been

registered if the appellees had complied with the requirement

under the NVRA that Louisiana must make voter registration

material available at public aid offices. Thus, a portion of the

resources ACORN has spent and currently spends on voter

registration drives counteracts Louisiana’s alleged failure to

6
As discussed supra, the NVRA requires states to designate
as voter registration agencies “all offices in the State that
provide public assistance” and “all offices in the State that
provide State-funded programs primarily engaged in providing
services to persons with disabilities.” 42 U.S.C. § 1973gg-
5(a)(2). The Act mandates that states make the following
services available at all voter registration agencies: (1)
distribution of mail voter registration application forms, (2)
assistance in completing voter registration application forms,
and (3) acceptance of completed voter registration application
forms. See id. § 1973gg-5(a)(4)(A). ACORN’s third claim in its
complaint alleges that Louisiana has failed to implement this
provision.

19
implement the Act. It is these wasted resources, which ACORN

could have put to use registering voters that the NVRA, even

properly implemented, would not have reached (or which ACORN

could have put toward any other use it wished), that provide

ACORN with standing to pursue its third claim in its complaint,

that Louisiana has failed to comply with 42 U.S.C. § 1973gg-

5(a)(4)(A), on its own behalf.

We note that the D.C. Circuit, in National Treasury

Employees Union v. United States, 101 F.3d 1423, 1429-30 (D.C.

Cir. 1996), stated that, in addition to an allegation that “a

defendant’s conduct has made the organization’s activities more

difficult, the presence of a direct conflict between the

defendant’s conduct and the organization’s mission is necessary--

though not alone sufficient--to establish standing.” The court

noted in that case that unless it was clear that an

organization’s stated goals were “at loggerheads” with a

defendant’s conduct, “it is entirely speculative whether the

defendant’s conduct is impeding the organization’s activities.”

Id. (internal quotation marks omitted). ACORN has met this

burden. Its purpose, according to its summary judgment evidence,

is to increase the political power of low- and moderate-income

people in the political process. We have no trouble concluding

that ACORN has raised a genuine issue of material fact that this

purpose is in direct conflict with Louisiana’s alleged failure to

20
facilitate voter registration in voter registration agencies.7

Therefore, based on ACORN’s summary judgment evidence outlining

its expenditure of resources counteracting the effects of the

appellees’ alleged failure to implement § 1973gg-5(a)(4)(A), we

conclude that ACORN has met the constitutional standing

requirements for purposes of defeating the appellees’ summary

judgment motion with respect to its claim that Louisiana has

failed to provide voter registration materials in public aid

offices.

However, the summary judgment evidence that ACORN has

presented regarding its efforts registering voters does not raise

a genuine issue of material fact that it has standing to pursue

its other claims on its own behalf. In addition to its claim

that Louisiana has failed to make voter registration materials

available at public aid offices, ACORN also alleges that

Louisiana has failed to implement the NVRA by refusing to include

voter registration materials with its mail-in driver’s license

renewal applications, in violation of 42 U.S.C. § 1973gg-3, and

by improperly purging voters from its voter rolls, in violation

of 42 U.S.C. § 1973gg-6. While we can reasonably infer from

ACORN’s summary judgment evidence that it has spent resources

7
Of course, a showing that an organization’s mission is in
direct conflict with a defendant’s conduct is insufficient, in
and of itself, to confer standing on the organization to sue on
its own behalf. See Havens Realty, 455 U.S. at 379 (citing
Sierra Club, 405 U.S. at 739). As we have made clear, an
organization must also show that it has suffered a concrete and
demonstrable, and redressable, injury as a direct result of the
defendant’s allegedly illegal conduct.

21
registering voters that would have been registered had Louisiana

made registration material available at public aid offices, as we

discussed supra, ACORN has included no evidence in the record

allowing us to make such an inference with respect to these two

claims.

ACORN and its amici allege in their briefs that the mere

fact that ACORN has spent, and continues to spend, resources

registering voters in Louisiana is sufficient to create a genuine

issue of material fact that it has spent discrete resources

counteracting the effects of Louisiana’s alleged failure to

comply with § 1973gg-3 and § 1973gg-6. We disagree. There is

simply no suggestion in the record that anyone it has registered

through its voter registration drives would already have been

registered to vote if Louisiana implemented the NVRA requirements

that form the basis of its first two claims. While ACORN is

“entitled to have reasonable inferences drawn in [its] favor, the

inferences to be drawn must be rational and reasonable, not idle,

speculative, or conjectural.” Unida v. Levi Strauss & Co., 986

F.2d 970, 980 (5th Cir. 1993) (internal quotation marks omitted);

see Engstrom v. First Nat’l Bank, 47 F.3d 1459, 1462 (5th Cir.

1995). To infer that ACORN has spent resources combating

Louisiana’s alleged failure to provide voter registration forms

with mail-in driver’s license applications and to properly

maintain its voter rolls simply from evidence that ACORN conducts

at least one voter registration drive a year in Louisiana is, in

22
our view, speculative. Thus, we must conclude that ACORN, as an

organization, lacks standing to pursue these two claims.

In sum, we hold that ACORN’s summary judgment evidence is

sufficient to raise a factual question as to whether it has

suffered a concrete and demonstrable injury with respect to its

claim that Louisiana refuses to make voter registration materials

available in public aid offices. However, the record is devoid

of any evidence from which we can reasonably infer that ACORN has

suffered an actual injury directly resulting from its claims that

Louisiana has violated § 1973gg-3 or § 1973gg-6. Thus, we

conclude that ACORN has made a sufficient showing of Article III

standing to defeat the appellees’ summary judgment motion with

respect to its third claim in its complaint, but not with respect

to its other two claims.

We therefore proceed to consider first whether ACORN can

hurdle any prudential standing requirements imposed by the NVRA

with respect to its third claim, and, thereafter, we will

consider whether ACORN has standing to bring its first two claims

as a representative of its individual members.

2. Prudential Standing

“In addition to the immutable requirements of Article III,

the federal judiciary has also adhered to a set of prudential

principles that bear on the question of standing.” Bennett, 520

U.S. at 162 (internal quotation marks omitted); see Cramer, 931

F.2d at 1024. These judicially created limits concern whether a

plaintiff’s grievance arguably falls within the zone of interests

23
protected by the statutory provision invoked in the suit, whether

the complaint raises abstract questions or a generalized

grievance more properly addressed by the legislative branch, and

whether the plaintiff is asserting his or her own legal rights

and interests rather than the legal rights and interests of third

parties. See Cramer, 931 F.2d at 1024-25.

Unlike the constitutional standing requirements, which we

discussed above, Congress can modify or even abrogate prudential

standing requirements, thus extending standing to the full extent

permitted by Article III. See Bennett, 520 U.S. at 162; In re

Pointer, 952 F.2d at 85. We therefore look to the Act to

determine whether Congress intended the prudential standing

doctrine to apply to suits brought under the NVRA. See Bennett,

520 U.S. at 163 (“Congress legislates against the background of

our prudential standing doctrine, which applies unless it is

expressly negated.”); Friends of the Boundary Waters Wilderness

v. Dombeck, 164 F.3d 1115, 1125 (8th Cir. 1999) (“The breadth of

this zone-of-interests test varies depending upon the language of

the statutory provision at issue.”).

Under the NVRA, “[a] person who is aggrieved by a violation”

of the Act “may provide written notice of the violation to the

chief election official of the State involved.” 42 U.S.C.

§ 1973gg-9(b)(1). If the violation is not corrected within a

specific time period, “the aggrieved person may bring a civil

action in an appropriate district court for declaratory or

injunctive relief with respect to the violation.” Id. § 1973gg-

24
9(b)(2). The court may also award “reasonable attorney fees,

including litigation expenses, and costs” to a prevailing party

other than the United States. Id. § 1973gg-9(c).

ACORN argues that Congress’s use of the term “aggrieved

person” in NVRA’s private right of action evidences an intent by

Congress to expand standing under the Act to Article III limits.

The district court disagreed, noting that the Act defines neither

person nor aggrieved, and concluding that because ACORN does not

vote and cannot register to vote, it cannot, as a matter of law,

be an aggrieved person under the NVRA.

We conclude that although Congress did not explicitly define

what it meant by an aggrieved person under the NVRA, it intended

to extend standing under the Act to the maximum allowable under

the Constitution. We concede that Congress’s use of the term

aggrieved person to eliminate prudential standing requirements

under the NVRA is not as clear as under Section 810(a) of the

Civil Rights Act of 1982 (Title VIII), in which it explicitly

defined an “aggrieved person” as “any person who [] claims to

have been injured . . . or who believes that such person will be

injured.” 42 U.S.C. § 3602(i). In Trafficante v. Metropolitian

Life Insurance Co., 409 U.S. 205 (1972), the Supreme Court

interpreted Congress’s use of person aggrieved in that statute to

have evidenced “a congressional intention to define standing as

broadly as permitted by Article III of the Constitution.” Id. at

209 (internal quotation marks omitted).

25
 However, as the Supreme Court recently observed in Federal

Election Commission v. Akins, 118 S. Ct. 1777, 1783 (1998), in

which the Court specifically discussed Congress’s use of the

undefined term “party aggrieved” in the Federal Election Campaign

Act, “[h]istory associates the word aggrieved with a

congressional intent to cast the standing net broadly--beyond the

common-law interests and substantive statutory rights upon which

prudential standing traditionally rested.”8 Id. (internal

quotation marks omitted). Furthermore, several circuit courts

have interpreted the term “person aggrieved,” an almost identical

term to that used in the NVRA, to have eliminated prudential

standing requirements in the context of other federal laws, thus

allowing any plaintiff meeting Article III standing requirements

to sue under the law. See Bloom v. NLRB, 153 F.3d 844, 849 (8th

Cir. 1998) (concluding that “Congress intended to cast the

standing net broadly . . . by authorizing ‘[a]ny person

aggrieved’ to seek review of an order by the Board under section

10(f) of the [National Labor Relations] Act”), cert. granted and

vacated on other grounds, 119 S. Ct. 1023 (1999); Ozonoff v.

Berzak, 744 F.2d 224, 228 (1st Cir. 1984) (Breyer, J.)

(“[P]rudential requirements are typically excused only in unusual

circumstances, such as where Congress has enacted a special

‘person aggrieved’ statute, allowing a plaintiff to act as a

‘private attorney general.’”).

8
We note that the district court did not have the benefit
of Akins when it ruled on the appellees’ summary judgment motion.

26
 In addition, we are unconvinced by the appellees’ argument

that the word “person” before “aggrieved” in the NVRA evidences

an intent by Congress to limit standing to individuals, as

opposed to corporations. First, although “person” is not defined

in the NVRA, 1 U.S.C. § 1 provides that “[i]n determining the

meaning of any Act of Congress, unless the context indicates

otherwise . . . the words ‘person’ and ‘whoever’ include

corporations, companies, associations, firms, partnerships,

societies, and joint stock companies, as well as individuals.”

Second, an examination of the legislative history of the

NVRA makes clear that Congress intended that organizations be

able to sue under the Act. An earlier version of the Act allowed

a private cause of action for an aggrieved “individual,” but the

later version that was passed into law used the term “person.”

In explaining the change, Senator Ford, a sponsor of the bill,

noted that “the modification will permit organizations as well as

individuals, and the Attorney General to bring suits under the

act.” 138 Cong. Rec. S6329 (daily ed. May 7, 1992) (statement of

Sen. Ford).9

9
With respect to this aspect of the NVRA’s legislative
history, the appellees argue that the only right that the Act
conveys to a corporation is the right to receive registration
forms and that it is this right that the modification of the Act
allowed corporations to vindicate. The appellees, however, do
not offer any support for their assertion that the change to
allow organizations to sue under the NVRA was intended to allow
them to enforce only § 1973gg-4(b), which directs the provision
of forms to private entities, and no other sections of the Act.
Had Congress intended such a limited right of action for an
organization, we are convinced that it would have drafted the
NVRA’s private right of action to make clear its narrow scope
when applied to organizations, given its use of terms that more

27
 Lastly, our conclusion that Congress intended to eliminate

prudential standing requirements for plaintiffs suing under the

NVRA is supported by the Act’s inclusion of 42 U.S.C. § 1973gg-

9(c), a provision that allows the court to award attorneys’ fees,

litigation expenses, and costs to the prevailing party (other

than the United States). The Court in Bennett viewed such a

provision as designed to “encourage enforcement by so-called

‘private attorneys general,’” which it emphasized in determining

that Congress intended standing under the Endangered Species Act,

which provided that “any person may commence a civil suit,” to

expand to constitutional limits. 520 U.S. at 164 n.2, 165-66;

see Trafficante, 409 U.S. at 211 (emphasizing role of private

attorneys general in concluding that Congress intended to

eliminate prudential standing requirements for plaintiffs suing

under Title VIII provision); Conte Bros. Automotive, Inc. v.

Quaker State-Slick 50, Inc., 165 F.3d 221, 227 (3d Cir. 1998).

In sum, the NVRA’s legislative history, judicial

interpretations of the specific language Congress used in the

NVRA’s private right of action, and the inclusion of a provision

for attorneys’ fees, which indicates support of enforcement

actions by private attorneys general, all suggest that Congress

intended the NVRA’s private-right-of-action provision to

eliminate prudential limitations on standing. ACORN therefore

strongly connote a restriction to an individual elsewhere in the
Act, see, e.g., 42 U.S.C. § 1973gg(b)(1) (“eligible citizens”);
id. § 1973gg-3(a) (“applicant”); id. § 1973gg-3(d)
(“registrant”).

28
need only satisfy the standing requirements arising under Article

III--that it has suffered a redressable injury in fact that is

fairly traceable to the appellees’ alleged failure to implement

the NVRA. See Bennett, 520 U.S. at 162; Hanson v. Veterans

Admin., 800 F.2d 1381, 1384-85 (5th Cir. 1986) (stating that

plaintiff need only satisfy Article III standing requisites when

Congress intended to eliminate prudential standing requirements).

As we discussed supra, ACORN has presented a genuine issue of

material fact that it has suffered such an injury with respect to

its claim that Louisiana has failed to properly implement

§ 1973gg-5(a)(4)(A); the district court’s entry of summary

judgment in favor of the appellees on standing grounds with

respect to this claim was therefore inappropriate.

B. Representational Standing

We next analyze whether, even though ACORN lacks standing as

an organization to bring its first two claims against the

appellees, ACORN has standing to proceed on these claims as a

representative of its individual members. Under the test

outlined by the Supreme Court in Hunt v. Washington State Apple

Advertising Commission, 432 U.S. 333, 343 (1977),

an association has standing to bring suit on behalf of
its members when: (a) its members would otherwise have
standing to sue in their own right; (b) the interests
it seeks to protect are germane to the organization’s
purpose; and (c) neither the claim asserted nor the
relief requested requires the participation of
individual members in the lawsuit.

The appellees focus only on the first prong of the Hunt test;

they claim that ACORN has failed to establish a factual issue as

29
to whether any of its members has suffered an injury as a direct

result of its alleged failure to implement the NVRA.

ACORN counters with two related arguments. First, ACORN

insists that it has identified particular members who are

unregistered Louisiana residents, and have therefore been

aggrieved by Louisiana’s conduct, and second, that each of

ACORN’s members has been injured as a result of Louisiana’s

alleged failure to implement the NVRA because of its membership’s

political interest in voter registration and economic interest in

paying minimum membership dues to ACORN. We explain our

conclusion that ACORN has failed to raise a factual question as

to whether any of its members have suffered an Article III injury

below.

1. ACORN’s eligible, unregistered voters

ACORN’s first argument in support of its contention that it

has standing to challenge Louisiana’s implementation of the NVRA

as a representative of its individual members centers on several

ACORN members who ACORN claims are eligible to vote, but are not

registered to vote in Louisiana. Specifically, in its response

to the appellees’ interrogatories, ACORN identifies several of

its members who it claims “are eligible to register, but who are

not registered or [who are] not registered at their current

addresses.”

The district court properly determined that ACORN failed to

raise a factual question as to whether any of its unregistered

members had been injured as a direct result of Louisiana’s

30
alleged failure to implement the NVRA. ACORN has provided no

evidence that any of its unregistered members had ever received a

driver’s license renewal form or that any of its unregistered

members were previously registered but had been purged from the

voter rolls by Louisiana. We therefore fail to see how any

unregistered ACORN member has suffered a distinct and palpable

injury as a result of the appellees’ conduct.

ACORN claims that in Condon v. Reno, 913 F. Supp. 946 (D.

S.C. 1995), a federal district court determined that eligible but

unregistered voters have standing to bring NVRA implementation

suits. ACORN mischaracterizes the district court’s holding in

Condon, however. In that case, a district court considered

whether an individual plaintiff who had moved to South Carolina

had suffered an injury sufficient to allow her to bring suit

against the state for alleged violations of the NVRA. See id. at

960. The district court determined that the individual plaintiff

had suffered an injury based exclusively on the fact that she

alleged that South Carolina had failed to make voter registration

materials available at the Department of Motor Vehicles office at

which she received her driver’s license, in direct violation of

the NVRA. See id. Thus, Condon stands for the unspectacular

proposition that an individual plaintiff who has been directly

injured by the actions of a defendant has standing to sue that

defendant. See also Krislov v. Rednour, 946 F. Supp. 563, 566

(N.D. Ill. 1996) (“Standing under the NVRA is limited to the

United States Attorney General and the ‘aggrieved persons’ whose

31
voting rights have been denied or impaired.”). Unlike in Condon,

ACORN has made no such showing of an injury to any of its

unregistered members as a direct result of Louisiana’s alleged

failure to carry out its mail-in driver’s license renewal program

or to maintain its voter rolls in compliance with the NVRA; it

therefore cannot bring suit on behalf of its unregistered voters

on these claims.10

2. ACORN’s entire membership

ACORN fares no better on its second argument, which is based

on its contention that each of its members has an interest in

this litigation sufficient to allow him or her to maintain suit

against Louisiana. ACORN alleges that each of its members has

suffered three different types of injuries as a result of

Louisiana’s alleged failure to implement the NVRA. First, ACORN

argues that because its members pledge to vote in elections, they

have an interest in keeping their voter registration current, and

therefore that Louisiana “threatens imminent harm to those

10
ACORN also contends that Condon stands for the
proposition that unregistered voters have standing to bring NVRA
suits because the district court in that case certified a class,
with the individual plaintiff discussed supra as the class
representative, of “all eligible but unregistered voters in the
State of South Carolina.” 913 F. Supp. at 948. However, “the
propriety of classwide relief . . . does not require a
demonstration that some or all of the unnamed class could
themselves satisfy the standing requirements for named
plaintiffs.” Lewis v. Casey, 518 U.S. 343, 395 (1996) (Souter,
J., concurring in part and dissenting in part) (citing 1 H.
NEWBERG & A. CONTE, Newberg on Class Actions, § 2.07, at 2-40 to 2-
41 (3d ed. 1992) (“Whether or not the named plaintiff who meets
individual standing requirements may assert the rights of absent
class members is neither a standing issue nor an Article III case
or controversy issue but depends on meeting the prerequisites of
Rule 23 governing class actions.”)).

32
members who are not currently registered, to those who may be

moving, and to those who will be reaching voting age.” Second,

ACORN argues that because its members pay dues and volunteer

their time to ACORN to further the organization’s goals, each

member has standing to bring suit against the appellees. Third,

ACORN argues that it has presented summary judgment evidence that

its members who receive services from public aid offices have not

been provided voter registration materials, as allegedly required

by the NVRA.

We need not consider ACORN’s third argument, as we have

already determined that ACORN has standing as an organization to

challenge the appellees’ conduct with respect to the NVRA

requirement that Louisiana make voter registration material and

assistance available at voter registration agencies, including

public aid offices. Like the voter registration activities that

conferred standing on ACORN to bring this claim on its own

behalf, the fact that some of ACORN’s members may have suffered

an injury as a result of Louisiana’s alleged failure to comply

with § 1973gg-5(a)(4)(A) does not provide them with standing to

bring related claims for which they have suffered no Article III

injury.

In addition, ACORN’s claim that its members have suffered

injuries because they are “in imminent danger” of losing their

current voter registration status is much too speculative and

hypothetical to constitute a sufficient Article III injury. In

order for a member of ACORN to have standing on this ground,

33
ACORN “must show an individual who has sustained or is

immediately in danger of sustaining some direct injury as the

result of the challenged official conduct, and the injury or

threat of injury must be both real and immediate, not conjectural

or hypothetical.” National Treasury Employees Union v. United

States Dep’t of Treasury, 25 F.3d 237, 242 (5th Cir. 1994)

(internal quotation marks and alterations omitted). ACORN points

to no individual member who has ever received a mail-in driver’s

license application without an accompanying voter registration

form or to any member who believes that he or she is in immediate

danger of being improperly removed from Louisiana’s voter rolls.

Its argument on this point is entirely conjectural and therefore

fails to present a factual question as to whether any ACORN

members has suffered or is in immediate danger of suffering an

injury sufficient to confer standing.

Lastly, ACORN’s contention that its members have standing

because they pay dues and volunteer their time to ACORN to

further the organization’s goals lacks merit. Analytically, this

argument is the same as ACORN’s argument that it has standing to

sue on its own behalf as a result of resources it has spent

combating the appellees’ allegedly illegal conduct. The only

difference between the two arguments is where ACORN wants this

court to focus; supra, we analyzed whether ACORN, as an

organization, spent any particularized resources as a direct

result of counteracting the appellees’ conduct; ACORN now asks us

to concentrate our attention on those same resources as they

34
leave ACORN’s members hands and are given to ACORN as membership

dues. Our conclusion, however, remains the same. ACORN has

failed to include any evidence in the record that reasonably

supports the inference that any of its members has spent any

discrete, particularized, or concrete amount of money or time

counteracting Louisiana’s alleged failure to include voter

registration forms with mail-in driver’s license applications or

to properly maintain its voter rolls. The district court

therefore correctly granted summary judgment to the appellees on

the issue of representational standing.11

III. CONCLUSION

For the foregoing reasons, we REVERSE insofar as the

district court dismissed ACORN’s claim that the appellees

violated § 1973gg-5 of the NVRA, and we REMAND with instructions

to reinstate that claim. We AFFIRM the district court’s judgment

in all other respects. Costs shall be borne by ACORN.

AFFIRMED in part and REVERSED in part and REMANDED.

11
ACORN also asserts that it has standing to pursue its
claims under 42 U.S.C. § 1983. ACORN’s cursory analysis on this
issue, in which it fails to provide any legal analysis, operates
as a waiver of this issue on appeal. See Kmart Corp. v. Aronds,
123 F.3d 297, 299 n.4 (5th Cir. 1997). Moreover, we note that
even if ACORN had preserved this issue, that “[s]ection 1983
. . . is not an available remedy for deprivation of a statutory
right when the statute, itself, provides an exclusive remedy for
violations of its own terms.” Johnston v. Harris County Flood
Control Dist., 869 F.2d 1565, 1574 (5th Cir. 1989); see Middlesex
County Sewerage Auth. v. National Sea Clammers Ass’n, 453 U.S. 1,
19-20 (1981).

35