FISHER, Circuit Judge:
Since 1975, Nevada has given its voters the ability to register their disapproval of all the named candidates running for a particular office in statewide and presidential elections by voting for "None of these
In 1975, the Nevada legislature passed a law permitting voters to register their opposition to all candidates running in statewide or presidential races by casting a ballot for "None of these candidates" instead of one of the named candidates. See Nev.Rev.Stat. § 293.269. The statute has three subsections. Section 293.269(1) mandates the inclusion of a "None of these candidates" option on every ballot for any statewide office or for President and Vice President of the United States. Section 293.269(2) provides that only votes cast for named candidates shall be counted in determining the winner of those elections. Section 293.269(3) provides that voters shall be instructed that they may select "None of these candidates" only if they have not voted for any named candidate in a particular race.
As plaintiffs themselves argue, § 293.269 was enacted with the sole intent of providing voters the opportunity to express their lack of confidence in all of the candidates for elected office — to send a message to candidates that they need to "`clean up [their] act' if [they] get into office." Minutes, Assembly Election Committee, Nevada State Assembly (Mar. 18, 1975); see also None of the Above, Wall St. J., Dec. 22, 1975 ("A heavy vote in [the NOTC] space would, of course, be a strong expression of displeasure with available choices."); Tom Gardner, Candidate `None' didn't do as well in the general,
In presidential, senatorial and gubernatorial general elections, NOTC has typically garnered only a few percent of the vote. See Nate Silver, In Nevada, No One is Someone to Watch, FiveThirtyEight, N.Y. Times, Aug. 27, 2010, http://fivethirtyeight. blogs.nytimes.com/2010/08/27/in-nevada-no-one-is-someone-to-watch/. In primary elections, however, the ballots cast for NOTC have at times exceeded those cast for one or more named candidates. For example, in the 1980 presidential primaries, more voters cast ballots for NOTC than for Ted Kennedy, and primary winner Jimmy Carter only narrowly "beat" NOTC. See Chris Black, The Political Revolution: How to Throw the Bums Out, Boston Globe, Oct. 28, 1990, at A 29, 1990 WLNR 1100058; see also Christopher W. Carmichael, Proposals for Reforming the American Electoral System After the 2000 Presidential Election: Universal Voter Registration, Mandatory Voting, and Negative Balloting, 23 Hamline J. Pub.L. & Pol'y 255, 299-300 (2002) (identifying several occasions on which NOTC garnered more ballots than votes received by named candidates).
In June 2012, eleven plaintiffs filed suit against the Nevada Secretary of State, alleging that § 293.269(2) disenfranchises voters by disregarding ballots cast for NOTC in determining the winner of elections. Seven plaintiffs are Democratic, Republican or Independent registered voters who "intend to vote" but have not expressed an intent to cast a ballot for NOTC in any election. Two plaintiffs expressed an intent to cast a ballot for NOTC. The final two plaintiffs were Republican designees for presidential electors for the November 2012 general election. The Nevada Republican Party, which expressed its "strong interest in ensuring that `None of These Candidates' does not appear as a ballot option," joined this appeal in support of the plaintiffs.
Of critical importance, the operative complaint does not challenge subsection 1 of the NOTC statute — that is, plaintiffs do not assert that the requirement that NOTC appear on the ballot violates federal constitutional or statutory provisions. Plaintiffs challenge only subsection 2 of the NOTC statute. They argue that the state's refusal to give legal effect to ballots cast for NOTC disenfranchises voters who cast such ballots. Although plaintiffs challenge only subsection 2, the remedy they seek is not that the state be ordered to give legal effect to ballots cast for NOTC. Rather, they ask that the state be enjoined from allowing NOTC to appear on the ballot altogether.
Plaintiffs moved for a preliminary injunction prohibiting the state from allowing NOTC to appear on any ballot, including the ballot for the November 2012 election. The district court granted plaintiffs' motion and stated that it would bar the state from allowing NOTC to appear on the ballot.
The Nevada Secretary of State and intervenor Kingsley Edwards immediately appealed and filed emergency motions to stay the district court's order.
We have jurisdiction over the district court's entry of a preliminary injunction under 28 U.S.C. § 1292(a)(1). We review de novo questions of Article III justiciability, including standing. See Porter v. Jones, 319 F.3d 483, 489 (9th Cir.2003).
To establish standing, a plaintiff must demonstrate (1) that he suffered an injury in fact, i.e., an invasion of a legally protected interest that is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical; (2) that there is a causal connection between the injury and the conduct complained of, such that the injury is fairly traceable to the challenged action of the defendant; and (3) that the injury will likely be redressed by a favorable decision. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). At the preliminary injunction stage, plaintiffs must make a clear showing of each element of standing. See id. at 561, 112 S.Ct. 2130 ("[E]ach element 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 the successive stages of the litigation."); Lopez v. Candaele, 630 F.3d 775, 785 (9th Cir.2010) (articulating "clear showing" as the burden of proving standing at the preliminary injunction stage).
Plaintiffs seek injunctive relief, not damages, and "[a]s a general rule, in an injunctive case this court need not address standing of each plaintiff if it concludes that one plaintiff has standing." Nat'l Ass'n of Optometrists & Opticians LensCrafters, Inc. v. Brown, 567 F.3d 521, 522 (9th Cir.2009).
According to the First Amended Complaint, seven plaintiffs expressed an intent to vote but did not assert an intent to cast a ballot for NOTC in the November 2012 election or any subsequent election. Plaintiffs argue that these individuals "are harmed by the prospect of their ballots not being counted or given legal effect, depending on whether they cast their ballots for `None of These Candidates.'"
The non-NOTC voter plaintiffs have not suffered an injury-in-fact that is "actual or imminent, not `conjectural' or `hypothetical.'" Lujan, 504 U.S. at 560, 112 S.Ct. 2130. The proposition that these plaintiffs have standing because they may, at some point, depending on which candidates decide to run in a future election, choose to cast a ballot for NOTC and therefore be denied a right that they assert exists epitomizes speculative injury. This category of plaintiffs therefore lacks standing.
Two plaintiffs, Jenny Riedl and Todd Dougan, have asserted a concrete intent to cast ballots for NOTC. Plaintiffs argue that Riedl and Dougan have standing because "[c]learly, a person who intends to
We agree with plaintiffs that the first two standing requirements are met. In light of their stated intent to cast ballots for NOTC, the injury Riedl and Dougan assert — the harm caused by the Secretary refusing to give legal effect to their ballots — is sufficiently concrete and imminent, not conjectural or hypothetical.
Riedl and Dougan fall short, however, in establishing that the relief they seek would redress the injury they argue is caused by § 293.269(2). Plaintiffs say they are harmed because the ballots cast for NOTC are not given legal effect, yet they do not actually ask that, as the remedy for this injury, the Secretary of State be ordered to give legal effect to such ballots. Rather, they demand that the option of casting a ballot for NOTC be entirely removed from the Nevada election system. As a result, if plaintiffs were to prevail in this lawsuit, voters' opposition to named candidates would not be given legal effect, but instead voters would no longer have the opportunity to affirmatively express their opposition at the ballot box at all. The relief plaintiffs seek will therefore decrease their (and other voters') expression of political speech rather than increase it, worsening plaintiffs' injury rather than redressing it.
The proposition that plaintiffs must seek relief that actually improves their position is a well-established principle. As then-Judge Kennedy noted more than three decades ago, "[t]he court's inability to redress the claimed injury may be manifest" where "the requested relief will actually worsen the plaintiff's position." Gonzales v. Gorsuch, 688 F.2d 1263, 1267 (9th Cir. 1982); see also id. ("[I]f the requested relief would worsen the plaintiff's position..., the plaintiff lacks standing."); Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 188 n. 4, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000) (characterizing Linda R.S. v. Richard D., 410 U.S. 614, 93 S.Ct. 1146, 35 L.Ed.2d 536 (1973), as a case in which redressability was lacking because "the relief sought in Linda R.S. — a prosecution which, if successful would automatically land the delinquent father in jail for a fixed term with predictably negative effects on his earning power — would scarcely remedy the plaintiff's lack of child support payments" (internal citation omitted)). This case presents precisely such a scenario.
"Relief that does not remedy the injury suffered cannot bootstrap a plaintiff into federal court; that is the very essence of the redressability requirement." Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 107, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998). Because the relief plaintiffs seek would worsen the position of voters who intend to cast ballots for NOTC, rather than redress the injury they assert, this category of plaintiffs lacks standing.
The remaining plaintiffs — two Republican presidential elector designees and the Nevada Republican Party — rely on the doctrine of competitive standing. Competitive standing is the notion that "a candidate or his political party has standing to challenge the inclusion of an allegedly ineligible rival on the ballot, on the theory that doing so hurts the candidate's or party's own chances of prevailing in the election." Drake v. Obama, 664 F.3d 774, 782 (9th Cir.2011) (quoting Hollander v. McCain, 566 F.Supp.2d 63, 68 (D.N.H. 2008)). Plaintiffs argue that they have competitive standing because NOTC constitutes "an unconstitutional and illegal ballot alternative that would potentially siphon votes from the Party's nominees running on its `Republican' ballot line."
Assuming without deciding that the potential loss of an election due to the appearance of NOTC on the ballot could fulfill standing's injury-in-fact requirement, plaintiffs nonetheless have not established that the other standing requirements are met as to the competitive standing plaintiffs. Specifically, they do not at all address the second and third prongs of standing, apparently believing that a plaintiff who experiences competitive injury has competitive standing. As we made clear in Drake, however, the potential loss of an election can be sufficient injury-in-fact to support standing, but the causation/traceability and redressability
Here, plaintiffs' failure to meet the causation and traceability requirement is their ultimate undoing. This case is distinguishable from the competitive standing cases plaintiffs cite, each of which asserted a constitutional or statutory challenge to the inclusion of a candidate on the ballot. See Fulani v. Hogsett, 917 F.2d 1028, 1029 (7th Cir.1990) (challenging Indiana electoral officials' decision to allow presidential candidates on the ballot even though those candidates were not certified by the Indiana Secretary of State by the statutory deadline); Schulz v. Williams, 44 F.3d 48, 52-53 (2d Cir.1994) (concluding that an intervenor had standing to appeal an injunction by the district court that required the inclusion of Libertarian candidates on the ballot even though the state Board of Elections had concluded that the petition to include those candidates was invalid); Texas Democratic Party v. Benkiser, 459 F.3d 582, 586 (5th Cir.2006) (challenging an official's decision to declare one candidate ineligible and replace him with a viable candidate). In each of these cases, the competitive injury was clearly traceable to the allegedly illegal action the lawsuit challenged.
In contrast, plaintiffs have not connected the competitive standing plaintiffs' injury to the conduct the complaint says violated their rights. See Lujan, 504 U.S. at 560, 112 S.Ct. 2130. Plaintiffs' complaint does not challenge the inclusion of NOTC as a voting option on the ballot. Rather it challenges only the subsection prohibiting ballots cast for NOTC from being given legal effect. Plaintiffs having conceded the legality of the NOTC option being on the ballot — the voter option that would have a siphoning effect — the state's failure to give legal effect to the ballots cast for NOTC is immaterial to plaintiffs' alleged competitive injury. Therefore, plaintiffs have failed to establish that the injury alleged by the competitive injury plaintiffs is fairly traceable to the conduct being challenged, so they too lack standing.
In sum, plaintiffs do not articulate a way in which any category of plaintiffs fulfills all three standing requirements. Instead, plaintiffs attempt to cobble together the three standing prongs from different groups — injury from the NOTC voter plaintiffs and competitive standing plaintiffs, traceability from the NOTC voter plaintiffs and redressability from the competitive standing plaintiffs.
"However desirable prompt resolution of the merits ... may be, it is not as important as observing the constitutional limits set upon courts in our system of separated powers." Steel Co., 523 U.S. at 110, 118 S.Ct. 1003. Because plaintiffs lack standing, we vacate the preliminary injunction and remand with instructions that the district