United States Court of Appeals
For the First Circuit
No. 23-1902
JOHN ANTHONY CASTRO,
Plaintiff, Appellant,
v.
DAVID SCANLAN, New Hampshire Secretary of State;
DONALD J. TRUMP,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Joseph N. Laplante, U.S. District Judge]
Before
Barron, Chief Judge,
Gelpí and Montecalvo, Circuit Judges.
John Anthony Castro, pro se.
Samuel R.V. Garland, Senior Assistant Attorney General, New
Hampshire Department of Justice, with whom John M. Formella, New
Hampshire Attorney General, and Anthony J. Galdieri, New Hampshire
Solicitor General, were on brief, for appellee David Scanlan.
Gary M. Lawkowski, with whom Ronald D. Colman, Dhillon Law
Group, Inc., Richard J. Lehhmann, and Lehmann Major List, PLLC,
were on the brief, for appellee Donald J. Trump.
November 21, 2023
BARRON, Chief Judge. Does Section 3 of the Fourteenth
Amendment to the U.S. Constitution ("Section 3") bar the former
President, Donald J. Trump, from "holding" the Office of President
of the United States again on the ground that he "engaged in
insurrection or rebellion against [the U.S. Constitution], or
[gave] aid or comfort to the enemies thereof"?1 John Anthony
Castro filed suit in the federal District Court in New Hampshire
alleging that Section 3 does impose that bar, and, on that basis,
he sought to enjoin the New Hampshire Secretary of State (the
"Secretary") from "accepting or processing" the former President's
"ballot access documentation" for the 2024 Republican presidential
primary in that state. The District Court then dismissed the suit
on jurisdictional grounds, ruling that Castro lacked standing
under Article III of the U.S. Constitution, see U.S. Const. art.
III, § 2 (limiting "the judicial power" to "Cases" or
"Controversies"), and that his Section 3 claim presented a
nonjusticiable "political question," see Baker v. Carr, 369 U.S.
Section 3 provides: "No person shall be a Senator or
1
Representative in Congress, or elector of President and VicePresident, or hold any office, civil or military, under the United
States, or under any State, who, having previously taken an oath,
as a member of Congress, or as an officer of the United States, or
as a member of any State legislature, or as an executive or
judicial officer of any State, to support the Constitution of the
United States, shall have engaged in insurrection or rebellion
against the same, or given aid or comfort to the enemies thereof.
But Congress may by a vote of two-thirds of each House, remove
such disability." U.S. Const. amend. XIV, § 3.
- 2 -
186 (1962); Rucho v. Common Cause, 139 S. Ct. 2484 (2019). Castro
now challenges the rulings in this appeal.
Castro's underlying suit raises a host of questions
about the meaning of Section 3 and the role, if any, that federal
courts may play in enforcing it. The questions range from whether
Section 3 applies to a political party's primary election to
whether the provision's prohibition is self-executing to what kind
of conduct constitutes "engag[ing] in insurrection or rebellion
against the [U.S. Constitution], or giv[ing] aid or comfort to the
enemies thereof." We may address such questions, however, only if
Castro's suit is a "Case[]" or "Controversy[]" within the meaning
of Article III of the U.S. Constitution. And, as we will explain,
we conclude that Castro's suit is not because, although he is a
registered political candidate for president, he has failed to
show that he can satisfy what is known as the "injury-in-fact"
component of Article III standing. Accordingly, we affirm the
District Court's judgment.
I.
Appearing pro se, Castro filed his complaint in the
District of New Hampshire on September 5, 2023. The complaint
named as defendants both the Secretary, David Scanlan, and the
former President, Donald J. Trump.2 The New Hampshire Republican
2 In their briefings on appeal, the parties dispute former
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State Committee later intervened as a party of interest pursuant
to Federal Rule of Civil Procedure 24.
Castro alleged in his complaint that he is a U.S.
Citizen, a resident of Mansfield, Texas, and a "Republican primary
presidential candidate . . . for the 2024 [p]residential
election." He further alleged that he was registered as a
candidate in that election with the U.S. Federal Election
Commission (the "FEC") and that he was "currently competing against
Donald J. Trump for the Republican nomination for the Presidency
of the United States."
Castro attached a "Verification" to his complaint in
which he "declare[d]" that he "intend[ed] to either appear on the
2024 Republican primary ballot in [New Hampshire] or to file
documentation to be a formally recognized write-in candidate in
both the primary and general elections."3 The complaint also
alleged that "[b]ecause [New Hampshire] permits write-in
candidates and their votes to be counted, ballot placement is not
President Trump's status as a merely "nominal defendant" against
whom Castro seeks no redress. Because we do not reach the issue
of redressability, however, we need not resolve this dispute.
3 "A copy of a written instrument that is an exhibit to a
pleading is a part of the pleading for all purposes." Fed. R.
Civ. P. 10(c); see also Newman v. Lehman Bros. Holdings Inc., 901
F.3d 19, 26 (1st Cir. 2018).
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legally determinative of the legal inquiry as to whether an
individual is a 'candidate' under [New Hampshire] law."
The complaint asserted that Section 3 "creates an
implied cause of action for a fellow candidate to obtain relief
for a political competitive injury by challenging another
candidate's constitutional eligibility on the grounds that they
engaged in or provided 'aid or comfort' to an insurrection." The
complaint also asserted that Section 3's bar applies to the Office
of the President of the United States and that the bar applies to
the former President because his conduct in relation to the last
presidential election amounted to providing "'aid or comfort' to
an insurrection." The complaint then described various specific
actions that the former President assertedly took before and after
the 2020 presidential election that, according to the complaint,
constitute the kind of conduct that triggers Section 3's bar.
Castro moved on September 17 for a temporary restraining
order to prevent the Secretary from accepting the former
President's declaration of candidacy and requested an expedited
preliminary injunction hearing consolidated with a bench trial on
the merits. Castro noted in the motion that the Secretary had
announced, on September 13, that the filing period for declarations
of candidacy, which candidates must submit along with a $1,000
filing fee in order to appear on the primary ballot in New
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Hampshire,4 would open on October 11 and close on October 27, and
Castro asserted that he intended to file his declaration of
candidacy and pay his filing fee on October 11.
The Secretary opposed the motion on the ground that
Castro lacked standing under Article III of the Constitution, which
limits the judicial power to the resolution of "Cases" and
"Controversies." U.S. Const. art. III, § 2, cl. 1; see Webb v.
Injured Workers Pharmacy, LLC, 72 F.4th 365, 371 (1st Cir. 2023).
To establish standing, a plaintiff must allege the "'familiar
amalgam of injury in fact, causation, and redressability,' which
injury must be 'both concrete and particularized and actual or
imminent, not conjectural or hypothetical.'" Efreom v. McKee,
46
F.4th 9, 21 (1st Cir. 2022) (internal quotation marks omitted)
(quoting Hochendoner v. Genzyme Corp.,
823 F.3d 724, 731 (1st Cir.
2016)).
Castro alleged in his complaint that he had standing
under the doctrine of "political competitor standing," as he
alleged that he would "suffer a concrete competitive injury" in
4 See N.H. Rev. Stat. Ann. §§655:47 ("The names of any persons
to be voted upon as candidates for president at the presidential
primary shall be printed on the ballots upon the filing of
declarations of candidacy with the secretary of state"), 655:48
("No candidate for the office of president shall have his or her
name placed on the ballot for the presidential primary unless the
candidate shall pay to the secretary of state at the time of filing
the declaration of candidacy a fee of $1,000.").
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the form of "a diminution of votes and/or fundraising" in New
Hampshire if the former President were permitted to appear on New
Hampshire's 2024 Republican primary ballot despite Section 3. The
Secretary argued, however, that Castro could not establish
standing because he could not satisfy the causation and
redressability requirements. According to the Secretary, Castro's
alleged injury was traceable only to the former President's
candidacy itself and not to the Secretary's acceptance of the
former President's ballot-access documentation. In advancing that
contention, the Secretary pointed out that the former President
could run as a write-in candidate in the primary even if the
Secretary were enjoined from placing the former President's name
on the primary ballot. The Secretary took no position, however,
on whether Castro had alleged an injury in fact, though the
Secretary did urge the District Court to fulfill its "independent
obligation to assure that standing exists." Sec. State Obj. Pl.'s
Req. Injunctive Relief at ¶ 19, Castro v. Scanlan, Civ. No. 23-
0416-JL (D.N.H. Sept. 29, 2023), ECF No. 27 (quoting Hernández-
Gotay v. United States, 985 F.3d 71, 77 (1st Cir. 2021)).
On the same day that the Secretary filed his opposition
to Castro's motion, the former President moved to dismiss Castro's
complaint for lack of subject matter jurisdiction pursuant to
Federal Rule of Civil Procedure 12(b)(1). The former President's
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motion incorporated the Secretary's causation and redressability
arguments and asserted that Castro had not established standing
because he had failed to satisfy the injury-in-fact requirement.
The motion argued that Castro had "fail[ed] to plausibly allege
that [competing with the former President] injures him in any
particularized or concrete fashion," such as by "identif[ying] a
single voter who identifies Castro as his or her 'second choice'
after Donald Trump" or otherwise "support[ing] the inherently
improbable claim that there is a latent Castro movement that would
surface, if only Trump [were] not on the ballot." In addition,
the motion asserted that Castro's Section 3 claim presented a
nonjusticiable political question.
The District Court held an evidentiary hearing on
October 20 on the question of jurisdiction. Prior to the hearing,
Castro submitted an affidavit and receipt showing that on October
11, which was five weeks after he had filed his complaint, he had
filed his New Hampshire declaration of candidacy and paid the
requisite $1,000 filing fee to the Secretary. At the evidentiary
hearing, the District Court admitted into evidence both Castro's
affidavit and receipt as well as the parties' joint stipulation of
facts.
The District Court then heard the testimony of Michael
Dennehy, a witness put forward by the New Hampshire Republican
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State Committee and a political consultant and campaign
strategist. Dennehy testified to his opinion that Castro "[i]s
not a serious candidate" for president and that Trump's absence
from the New Hampshire primary ballot "would have no impact" on
Castro's primary chances "[b]ecause there is no activity to
[Castro's] campaign." Dennehy did acknowledge that he had located
and viewed a website advertising Castro's presidential campaign,
but he described the website as "amateur," "incomplete," and
"certainly not what you would consider a national campaign
website."
Finally, the District Court heard testimony from Castro,
who asserted that he planned to "ramp up [his campaign] activities"
leading up to the New Hampshire primary. But on cross-examination,
Castro admitted that his campaign, to date, had employed no staff
in New Hampshire or any other state, had run no advertisements in
New Hampshire or any other state, and had engaged in no campaign
activities in New Hampshire or any other state "apart from
lawsuits" similar to this one. Castro also confirmed that, in a
series of Twitter posts published on November 18, 2021, he had
"stated [his] belief that Section 3 of the Fourteenth Amendment
disqualified Donald Trump from holding public office," written
that "only a fellow Republican presidential primary candidate has
federal judicial standing to sue Trump to remove him from the
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ballot," and then announced that he "intend[ed] to pursue the
Republican nomination for the presidency of the United States in
2024 [and to] bring a federal lawsuit against Trump to disqualify
him from being on the ballot in every swing state." As to the
issue of his forward-looking "campaign strategy," Castro averred,
"Keep watching and learn."
A week after the hearing, on October 27, the District
Court issued a memorandum and order that denied Castro's request
for injunctive relief and granted the former President's motion to
dismiss Castro's complaint for lack of subject matter
jurisdiction. The District Court reasoned that Castro had failed
to establish that he had standing and that his Section 3 claim
presented a political question.
With respect to standing, the District Court first
determined that Castro had failed to satisfy the injury-in-fact
requirement. The District Court reasoned that Castro had made "no
attempt to demonstrate that he is actually competing with Trump
for votes and contributions, as required under the operative
competitor standing theory"; that the alleged injury was too
"speculative, as it depends on what voters and contributors . . .
may do if Trump's name is not listed on the New Hampshire primary
ballot"; and that, by filing as a Republican presidential primary
candidate, Castro had impermissibly attempted to "creat[e] his own
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injury in order to manufacture standing to challenge Trump's
eligibility to run for president."
The District Court also concluded that Castro failed to
establish standing because had not met his burden to satisfy the
causation and redressability requirements. The District Court
reasoned that Castro had not shown that his alleged injury was
traceable to the Secretary or that it could be redressed by the
requested relief because "Castro acknowledges[] that [the former
President's] absence from the primary ballot would not affect the
number of votes or contributions Castro would receive."
The District Court then shifted focus and explained why,
the issue of standing aside, the complaint had to be dismissed
because Castro's Section 3 claim presented a nonjusticiable
political question. Here, the District Court determined that
"state and federal district courts have consistently found that
the U.S. Constitution assigns to Congress and the electors, and
not the courts, the role of determining if a presidential candidate
or president is qualified and fit for office -- at least in the
first instance."
In so ruling, the District Court rejected as "wholly
underdeveloped and unsubstantiated" Castro's argument that the
political question doctrine did not bar his suit because the
political question cases that the defendants cited "were initiated
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or decided after the political parties held their national
conventions to select presidential nominees," and that "this
circumstance alone 'proves that the political question doctrine
applies only after the major political parties hold their
conventions.'" Observing that Castro had not presented "any
factual or legal authority" on which to rest such a distinction,
the District Court found that it could not accept Castro's
position.
Castro timely filed his notice of appeal. He then
requested an expedited briefing schedule, which we granted, though
we denied his motion for initial hearing en banc.
In his brief on appeal, Castro takes aim at both grounds
that the District Court gave for dismissing the complaint. Castro
notes in his brief, with respect to standing, that on October 23,
the former President filed his declaration of candidacy in New
Hampshire and paid the requisite $1,000 filing fee to the
Secretary.5 Castro also argues that the District Court erred by
not "reserv[ing] ruling on jurisdiction to allow the facts [to]
Because the sole relief that Castro seeks is an injunction
5
preventing the Secretary from "accepting [or] processing . . .
Trump's ballot access documentation," there is a question as to
whether this case is moot. See Harris v. Univ. Mass. Lowell, 43
F.4th 187, 191–92 (1st Cir. 2022). But because we conclude that
Castro lacks standing, we need not address this potential
alternative ground for dismissal, which we note the parties have
not briefed.
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materialize" that Castro claims establish his standing, including
that he ultimately registered as a New Hampshire primary candidate
and has since "dispatched campaign staffers to New Hampshire to
knock on doors and place hundreds of campaign signs" and ordered
"thousands of postcards" to mail to New Hampshire voters. He
asserts in that regard that the District Court's standing ruling
rested on a "baseless assumption that [Castro] would never engage
in any campaign activity in New Hampshire," and he asks us to
reverse and remand for a trial on the merits of his request for
injunctive relief.
II.
The District Court dismissed Castro's complaint on two
independently sufficient jurisdictional grounds. See Schlesinger
v. Reservists Comm. to Stop the War, 418 U.S. 208, 215 (1974)
(summarizing that "the concept of justiciability . . . embodies
both the standing and political question doctrines," such that
"either the absence of standing or the presence of a political
question suffices to prevent the power of the federal judiciary
from being invoked by the complaining party"). We confine our
analysis, however, to the issue of standing and, specifically, to
the question of whether Castro has met his burden to satisfy the
injury-in-fact requirement, see TransUnion LLC v. Ramirez,
141 S.
Ct. 2190, 2207–08 (2021). We do so both because Castro has clearly
- 13 -
failed to meet that burden and because of the limited nature of
the arguments that he makes about the more generally consequential
political question issue. Cf. Doe v. Bush, 323 F.3d 133, 139–40
(1st Cir. 2003) (clarifying that this court affirmed dismissal
"based on ripeness rather than the political question doctrine,"
and noting that like the Supreme Court, "[o]ur court has been
similarly sparing in its reliance on the political question
doctrine").
A.
In undertaking our independent obligation to ensure that
Castro has met his burden to satisfy the injury-in-fact
requirement, Hernández-Gotay, 985 F.3d at 77, we emphasize that
the facts that matter are "the facts as they existed at the time
the [operative] complaint was filed." Steir v. Girl Scouts of the
USA,
383 F.3d 7, 15 (1st Cir. 2004) (citing Mangual v. Rotger-
Sabat,
317 F.3d 45, 58 (1st Cir. 2003)); see Keene Corp. v. United
States,
508 U.S. 200, 207–08 (1993) (in affirming a motion to
dismiss for lack of jurisdiction, considering the facts as they
existed at the time the complaint was filed, rather than, as
plaintiff urged, at the time of the trial court's ruling on the
motion to dismiss); see also Lujan v. Defs. of Wildlife,
504 U.S.
555, 569 n.4 (1992) (rejecting the theory that events after the
filing of a suit's operative complaint had "retroactively created
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a redressability (and hence a jurisdiction) that did not exist at
the outset" of litigation). Castro thus cannot show that he has
satisfied the injury-in-fact requirement on the basis of
developments that concern his participation in the New Hampshire
Republican presidential primary that occurred after he filed his
complaint, even assuming that those developments might suffice to
establish that he did have standing as of that time but not before.
Notably, Castro does not suggest that his claimed injury
stems from a restriction that has been placed on his ability to
run in the 2024 New Hampshire Republican presidential primary. He
contends that his injury stems solely from the absence of a
restriction on the ability of someone else to run in that race.
Castro thus premises his claimed injury-in-fact entirely on a
theory of political competitor standing, see, e.g., Tex.
Democratic Party v. Benkiser, 459 F.3d 582, 586–87 (5th Cir. 2006);
Shays v. FEC,
414 F.3d 76, 83, 87 (D.C. Cir. 2005); Fulani v.
League of Women Voters Educ. Fund,
882 F.2d 621, 626–27 (2d Cir.
1989), even though neither our Circuit nor the Supreme Court of
the United States yet has had occasion to expressly recognize that
theory.
That said, the theory of standing that Castro asks us to
accept derives its logic from a standing doctrine that the Supreme
Court and our Circuit have expressly recognized: the doctrine of
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economic competitor standing. See Clinton v. City of New York,
524 U.S. 417, 433 (1998); Adams v. Watson,
10 F.3d 915, 921–22
(1st Cir. 1993). Under that doctrine, a plaintiff can satisfy the
injury-in-fact requirement based on a showing of "probable
economic injury resulting from [governmental actions] that alter
competitive conditions." Clinton,
524 U.S. at 433 (alteration in
original) (quoting 3 K. Davis & R. Pierce, Admin. L. Treatise 13–
14 (3d ed. 1994)).
The logic of the economic competitor standing doctrine
is "firmly rooted in the basic law[] of economics" that one direct
competitor's gain of market share is another's loss. United
Transp. Union v. Interstate Com. Comm'n, 891 F.2d 908, 912 n.7
(D.C. Cir. 1989). Not surprisingly, therefore, "[i]mplicit in the
reasoning" of the cases that recognize economic competitor
standing is "a requirement that in order to establish an injury as
a competitor a plaintiff must show that he personally competes in
the same arena with the party to whom the government has bestowed
the assertedly illegal benefit." In re U.S. Cath. Conf. (Abortion
Rights Mobilization Inc. v. Baker),
885 F.2d 1020, 1029 (2d Cir.
1989).
In other words, the notion that a competitive injury can
satisfy the injury-in-fact requirement is "premised on the
[plaintiff's] status as a direct and current competitor whose
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bottom line may be adversely affected by the challenged government
action." New World Radio, Inc. v. FCC, 294 F.3d 164, 170 (D.C.
Cir. 2002) (emphasis in original). At the same time, to show such
an injury, a plaintiff need not show "currently realized economic
loss." Watson, 10 F.3d at 920–21 (emphasis in original). However,
if a plaintiff who seeks to show such an injury does not show an
already realized loss, then the asserted injury must be premised,
"at a minimum, on particularized future economic injury which,
though latent, nonetheless qualifies as imminent."6
Id.
We do also note, however, that although the parties make
no mention of it, there is precedent from our Circuit that draws
on the logic of the theory of political competitor standing without
directly adopting it. See Becker v. Fed. Election Comm'n, 230
F.3d 381, 385–89 & n.5 (1st Cir. 2000) (concluding that third-
party presidential candidate Ralph Nader had standing to challenge
6 In a case upon which Castro relies heavily, Mendoza v.
Perez, 754 F.3d 1002, 1014 (D.C. Cir. 2014), the D.C. Circuit held
that a group of plaintiffs had standing to challenge conditions in
the sheep herding market even though they did "not currently work
as herders and ha[d] not filled out formal job applications." This
was because the plaintiffs were nonetheless still "informal[ly]"
but directly and currently "involve[d] in [the] market" due to
their continued monitoring of it with the intention and ability to
enter it "if conditions improve[d]."
Id. In recognizing that
"informal" involvement in a market can satisfy competitor
standing, Mendoza did not undermine the rule that a plaintiff must
show that they are "in fact a direct and current competitor" to
have competitor standing. Air Excursions LLC v. Yellen,
66 F.4th
272, 280 (D.C. Cir. 2023) (discussing Mendoza) (internal quotation
marks omitted).
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FEC regulations permitting corporate sponsorship of presidential
debates because the regulations "threatened to force Nader to
decline an invitation to participate in the debates, and that
threat affected the conduct of his campaign" and put him "at a
competitive disadvantage in the presidential race"); see also Vote
Choice, Inc. v. DiStefano, 4 F.3d 26, 37 (1st Cir. 1993)
(concluding that a gubernatorial candidate had standing to
challenge a state public campaign financing scheme in part because
"having decided to forgo [public financing], she had to structure
her campaign to account for her adversaries' potential receipt of
television time, fundraising advantages, and the like"). We draw
on this precedent, too, in the analysis that follows.
B.
Castro contends that he can satisfy the injury-in-fact
requirement here because he can show that he is "a direct and
current competitor" of the former President in the 2024 New
Hampshire Republican presidential primary, New World Radio, 294
F.3d at 170 (emphasis in original). Thus, Castro's contention on
appeal is that the District Court erred in determining that he
failed to show that he was a competitor of such a direct and
current kind.
Because political markets are hardly governed by the
same "basic law[]" as economic ones, United Transp. Union, 891
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F.2d at 913 n.7, there is necessarily some uncertainty as to how
we should analogize the political realm to the economic one for
standing purposes. As a result, there is also some uncertainty as
to what it means to be a "direct and current" competitor in the
political context. We find some guidance, though, in the fact
that Article III empowers federal courts to address only "Cases"
or "Controversies."
This limitation on the judicial power prevents a
plaintiff from invoking the Article III jurisdiction of a federal
court by asserting what is merely a "general interest common to
all members of the public." Carney v. Adams, 141 S. Ct. 493, 499
(2020) (quoting Lance v. Coffman,
549 U.S. 437, 440 (2007) (per
curiam)). Therefore, we must be careful not to define "a direct
and current competitor" in the political context, New World Radio,
294 F.3d at 170 (emphasis omitted), in a manner that would "weaken
the longstanding legal doctrine preventing [federal courts] from
providing advisory opinions at the request of one who, without
other concrete injury, believes that the government is not
following the law." Carney,
141 S. Ct at 501.
As a result, we cannot define a "direct and current
competitor" in the political context so loosely that a claim of
political competitor injury becomes a means by which a federal
court entertains a suit based on what is, in effect, a generalized
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concern that a particular individual is not lawfully entitled to
run for office. We must define such a competitor in a manner that
ensures that the plaintiff who claims political competitor
standing has "[t]he requisite personal interest," id. at 499
(citation and quotation marks omitted), in the determination of
the constitutionality of a rival candidate's eligibility for
office in consequence of a "concrete, particularized 'injury in
fact' over and above the abstract generalized grievance suffered
by all citizens . . . who (if [the plaintiff] is right) must live
in a State subject to an unconstitutional" electoral process.
Id.
This conclusion accords, we add, with our decision in
Becker. There, we held that a presidential candidate, Ralph Nader,
had standing to challenge the FEC's regulations permitting
corporate sponsorship of debates put on by the Commission on
Presidential Debates ("CPD"). Becker, 230 F.3d at 385-89. We
explained that Nader satisfied the injury-in-fact requirement by
showing that the FEC's regulations put him to the "coerced choice"
of either participating in a presidential debate with corporate
sponsorship or suffering a competitive disadvantage by not
participating. See
id. at 387.
We then went on in a footnote to describe as "flawed"
the FEC's contention that Nader could not satisfy the causation
component of standing. See id. at 387 n.5. We explained that the
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FEC had argued that insofar as Nader was claiming standing based
on the FEC's having placed him at a competitive disadvantage in
the presidential race, the FEC had so placed him only by giving a
benefit to the CPD. See id. Yet, the FEC emphasized, Nader was
not "compet[ing] in the same arena" as the CPD itself.
Id. We
were not persuaded because, as we pointed out, the FEC's argument
ignored the fact that the challenged FEC regulations resulted in
"free television exposure for the debate participants; and
obviously Nader competes in the same arena with these other
candidates."
Id. (emphasis added).
Against this backdrop, we conclude that for Castro to
show that he was a "direct and current competitor" at the time he
filed his complaint he must show, at the very least, that at that
time he was "competing" with the former President and that he was
doing so in the 2024 New Hampshire Republican presidential primary
itself. Otherwise, we do not see how Castro can show that at the
time he was "compet[ing] in the same arena" with the former
President, id., and that he stood to be "adversely affected [in
that arena] by the challenged government action." New World Radio,
294 F.3d at 170. In addition, we conclude that for Castro to show
that he was a "direct and current" competitor at that time,
id. -- or, to use Becker's way of putting it, that he was a
competitor "in the same arena,"
230 F.3d at 387 n.5 -- he must
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show that he was then competing with the former President for
voters and/or contributors in that primary.
Our reasons for this last conclusion are as follows.
Not even Castro disputes that, to distinguish his claimed injury
from a generalized interest in ensuring legal compliance, he must
show that his status as a political candidate gave rise to the
kind of injury that he claims. And Castro himself describes his
injury in his complaint as "a diminution of votes and/or
fundraising" in the primary at issue. Thus, it stands to reason
that he must show that, at the time of his complaint, he was
competing with the former President for voters or contributors in
relation to the New Hampshire race itself -- or, at the least,
that it would not be overly speculative to conclude that he would
do so. For, otherwise, his claimed injury would not be "concrete
and particularized," and would instead be "conjectural or
hypothetical." Carney, 141 S. Ct. at 498 (quoting Lujan, 504 U.S.
at 560–61).
C.
Having laid out the applicable legal framework in some
detail, we are now ready to apply it to the record at hand. As we
will explain, we conclude that, reviewing de novo, see Bingham v.
Massachusetts, 616 F.3d 1, 5 (1st Cir. 2010), Castro has failed to
show that he was a "direct and current competitor."
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1.
As an initial matter, Castro did not allege in his
complaint that, when he filed it, he was on the ballot in the 2024
New Hampshire Republican presidential primary, had taken the steps
necessary for him to appear on that ballot, or even intended to
take such steps. Instead, with respect to that primary, he merely
stated in the "Verification" attached to his complaint that he
"intend[ed] to either appear on the 2024 Republican primary ballot
in [New Hampshire] or to file documentation to be a formally
recognized write-in candidate in both the primary and general
elections" (emphasis added). It was on that limited basis that,
at the time of the complaint's filing, he asserted: "As such, I
will maintain 'standing' throughout the course of this litigation"
(emphasis added).
The Verification's conditional phrasing shows -- at
least concretely -- no more than that Castro intended, at the time
of the complaint, to seek documentation that would permit him to
become a "formally recognized" write-in candidate in the New
Hampshire Republican presidential primary. Moreover, the record
reveals that thereafter Castro made no showing that, as of the
time of filing his complaint, he was in fact competing for votes
or contributions in that contest, let alone competing with the
former President for them. In fact, while Castro alleged that at
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the time of the complaint's filing he had registered with the FEC
as a candidate for President, he stipulated (and later confirmed
through his testimony at the evidentiary hearing) that, as of that
time, and indeed for weeks afterward, he did "not yet have a
campaign office in New Hampshire," did "not yet have employees in
New Hampshire," was "not yet running any advertisements in New
Hampshire," and was "not yet engaging in campaign activities in
New Hampshire other than this lawsuit" (emphasis added). And,
with respect to the question of whether he had a "campaign
strategy," Castro asserted, "Keep watching and learn."
Thus, the record from the evidentiary hearing reveals
what is at most an overly speculative basis for finding that, as
of the time of the filing of the complaint, Castro intended to do
more than take steps that would enable him to qualify as an
"officially recognized" write-in candidate. But no authority of
which we are aware -- or that Castro has identified -- suggests
that the mere statement of an intention to seek write-in votes
suffices in and of itself to make an individual a "current and
direct competitor." New World Radio, 294 F.3d at 170. In fact,
persuasive authority is directly to the contrary, as Sibley v.
Alexander explains that a plaintiff's "status as a write-in
candidate is insufficient" to establish injury-in-fact,
916 F.
Supp. 2d 58, 61 (D.D.C. 2013), "because if it were sufficient any
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citizen could obtain standing (in violation of Article III of the
U.S. Constitution) by merely 'self[-]declaring.'" Sibley v.
Obama, No. 12–5198, 2012 WL 6603088, at *1 (D.C. Cir. Dec. 6, 2012)
(internal citation omitted).
Thus, for all the record shows, Castro was, at least as
of the time of the complaint, in a similar position to the
plaintiffs in Liberty Legal Foundation v. National Democratic
Party of the USA, Inc., 875 F. Supp. 2d 791 (W.D. Tenn. 2012),
aff'd
575 F. App'x 662 (6th Cir. 2014). Those plaintiffs claimed
to be "candidates" for the presidency in the 2012 general election
in Tennessee and they claimed on that basis to have standing to
challenge then-President Obama's eligibility to appear on the
ballot in that contest.
Id. at 800-01. But those plaintiffs were
deemed not to have satisfied the injury-in-fact requirement for
standing because they had not alleged that they were "truly in
competition" with their claimed rival, as they had not shown either
that they "w[ould] appear" on the relevant ballot or that "[they
were] campaigning in the state of Tennessee, [or] that any
registered voter in Tennessee intend[ed] to cast a vote for
[them]."
Id. The district court in that case, we note, also
determined that those plaintiffs had not done anything to show
"that President Obama's presence on the ballot [would] in any way
injure either candidate's campaign."
Id. at 801.
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Notwithstanding Sibley and Liberty, Castro develops no
argument that he can satisfy his obligation to show injury-in-fact
at the time of his complaint if he can show no more than the
unsuccessful litigants in those cases did. And even though neither
Sibley nor Liberty binds us here, we do not see how we may accept
a definition of a "direct and current competitor" in the political
context that is based on a plaintiff's mere "self-declaration" of
political candidacy.
Were we to do so, we would be doing what the Supreme
Court explained that it was taking care not to do in Carney:
"weaken[ing] the longstanding legal doctrine" that prevents
federal courts from offering advisory opinions about whether the
law is being followed. 141 S. Ct. at 501. We would be doing so,
moreover, in a case that asks us to render an opinion on a matter
as important to our democratic system of government as any that is
likely to arise in connection with a claim of political competitor
standing: may a former President run for the Office of the
President of the United States again even if he is shown to "have
engaged in insurrection or rebellion against the [U.S.
Constitution], or given aid or comfort to the enemies thereof"?
The nature of the question itself shows the need for us to ensure
that the limits on our power to render advisory opinions remain as
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strong after we decide this case as they were before it came to
us.
We add, too, that our analysis in Becker points in the
same direction. We made clear there that we should not "second-
guess a candidate's reasonable assessment of his own campaign" by
"assum[ing]" the "guises" of "campaign consultants or political
pundits" in assessing the candidate's assertion of how a challenged
governmental action affects their capacity to compete politically.
Becker, 230 F.3d at 387 (emphasis added). But, at the same time,
we were careful in Becker not to adopt a rule that would "grant[]
standing to any political entrant to challenge" any aspect of an
election that might "someday" affect them,
id. at 386 n.4 (emphasis
in original) (internal quotation marks omitted), and we therefore
required the candidate to show a "plausible" chance of being
competitively affected by the conditions that they challenged.
Id.
It follows that, on this record, we must conclude that
Castro has not shown what he must to establish that he was a direct
and current competitor at the time that he filed his complaint.
Accordingly, it follows that he has not shown that, as of that
time, he had satisfied the injury-in-fact component of the standing
inquiry.
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2.
We are not quite finished. The reason is that we are
aware that there is evidence in the record that shows that, after
Castro filed the operative complaint, he expressed his intent to
travel to New Hampshire on October 11 to file his declaration of
candidacy and pay the $1,000 filing fee to appear on the state's
2024 Republican presidential primary ballot -- and that on October
11, he did so.
True, Castro did not amend his complaint at that time.
And, as we have explained, he cannot predicate his standing on
post-complaint developments. See Keene Corp., 508 U.S. at 207–
08. Nor is it evident what issues concerning mootness or remedies
may arise in relation to any new complaint that may be filed based
on those developments. Nonetheless, Castro does appear to be
contending that a plaintiff who sues to block another's access to
the ballot necessarily shows that he is a direct and current
competitor -- and thus satisfies the injury-in-fact
requirement -- by showing that he will appear (or is likely to
appear) on the relevant ballot. And if that contention were
correct, it would be evident that an amended complaint in this
case might be filed that could suffice to satisfy the injury-in-
fact requirement.
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The precedents that Castro cites in support of this
contention, though, do not support such a sweeping proposition, at
least given the nature of the plaintiffs who were involved in those
cases and the circumstances of them. See Shays, 414 F.3d at 82
(sitting members of Congress seeking re-election); Fulani, 882
F.2d at 625–26 ("significant" third-party candidate for
presidential election contesting the criteria for invitation to
national debate, which invited only "significant" candidates
belonging to a major party, and "not claim[ing] the [debate] was
obligated to include . . . every individual who had announced his
or her candidacy"). Nor are we aware of any case that, when
considered in context, would support such a broad proposition.
Cf. Becker, 230 F.3d at 386 (observing that it was "certainly
possible that Nader would be able to meet the . . . fifteen-percent
showing of support in the national polls" required to qualify for
the presidential debates at issue).
We also do not see how the logic of political competitor
standing requires this categorical conclusion. In some cases, the
record might reveal that the only activity in relation to the race
in which a plaintiff seeking such standing engaged -- beyond, that
is, taking steps to secure ballot access like those Castro took
here -- was the pursuit of the legal challenge itself. And, in
such cases, the record might also show scant indication that any
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foreseeable future activity by the plaintiff in relation to that
race would amount to anything more than the further pursuit of
that legal challenge.
In cases with such a record, though, we could not agree
that the plaintiff had political competitor standing. And that is
because, given that record, we could not agree that the likely
prospect of the plaintiff's nominal appearance on the ballot would
suffice in and of itself to show a competitive injury with the
requisite degree of concreteness and particularity.
After all, although steps to secure ballot placement may
suffice on their own to show some kinds of injury-in-fact, cf.
Carney, 141 S. Ct. at 502, a plaintiff like Castro who asserts
political competitor standing does not predicate the claimed
injury on a bar to the plaintiff's right to receive votes or
campaign funds. Rather, such a plaintiff predicates the claimed
injury on a failure to limit someone else's right to campaign or
receive votes, as it is that failure that is claimed to give rise
to the competitive injury.
Thus, because a plaintiff incurs the kind of competitive
injury that grounds Castro's assertion of standing by actually
being a putative rival's competitor for either votes or
contributions, we cannot agree that a showing that a plaintiff has
taken the steps required to be placed on the ballot in the primary
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contest at issue necessarily always suffices to show such an
injury. Indeed, if the rule were otherwise, then the theory of
political competitor standing would seem to offer those invoking
it a significant means of effecting an end-run around the usual
bar to a federal court's power to remedy what is in the end merely
a generalized grievance. For, under a rule of that sort,
plaintiffs would be permitted to secure standing without
adequately distinguishing their interest in the legal outcome of
the case from that of anyone in the same state who is interested
in ensuring legal compliance with that state's ballot access rules
for candidates. And, we note once again, Becker shows that our
own precedent is not to the contrary. See Becker, 230 F.3d at 386
n.4 (declining to adopt a rule that would "grant[] standing to any
political entrant to challenge" any aspect of an election that
might "someday" affect them (emphasis in original) (internal
quotation marks omitted)).
This general point can be made more concrete by zeroing
in on the features of the record that show what Castro did, post-
complaint, when he went to New Hampshire to secure his placement
on the ballot. Notably, the record gives no indication that Castro
was competing even as of that time in the primary race at hand in
a way that could show that he had suffered -- or was at imminent
risk of suffering -- a diminution in either votes or contributions
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absent his requested relief. Cf. Shays, 414 F.3d at 82; Fulani,
882 F.2d at 625–26.
In that regard, Castro's brief points to nothing in the
record that refutes the District Court's determination that
"Castro makes no attempt to demonstrate that he is actually
competing with Trump for votes and contributions." Indeed, the
record shows that, beyond taking steps to be placed on the ballot,
Castro's efforts to compete for votes and contributors in the
specific New Hampshire primary at issue were non-existent. And,
consistent with that conclusion, we note that Castro's brief also
cites to nothing in the record that undermines the District Court's
findings that Castro neither "provided any evidence suggesting
that he has voters or contributors in New Hampshire" nor made any
showing that "he will benefit from voter or contributor defections
from Trump to himself."7
Thus, on this record, any claim that the former
President's presence on the ballot in the contest at issue will
diminish Castro's votes or contributions is simply too speculative
to credit, even allowing for the probabilistic nature of a claim
7 We note that the District Court found Castro's testimony
"about his media coverage" unpersuasive because "[t]he court ha[d]
no way of knowing whether the purported media coverage focused on
Castro as a candidate actually seeking the Republican nomination
for president, or as a litigant seeking to disqualify Trump."
Castro points to nothing in the record that contradicts that
assessment.
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of competitive injury. And we see no reason to conclude that a
claim of political competitive injury that is purely conjectural
fares any better than a purely conjectural claim of injury
otherwise does. Cf. Watson, 10 F.3d at 923 (explaining that an
allegation of standing must be more than "unadorned speculation").8
III.
For these reasons, the judgment of the District Court is
AFFIRMED.
8 The District Court also concluded that Castro could not
satisfy the causation and redressability elements of standing
because "Trump's absence from the primary ballot would not affect
the number of votes or contributions Castro would receive." On
this record, as discussed above, we have concluded that Castro did
not show injury because he was not competing at all. We thus have
no reason to address those other components of standing in this
case. We do note, though, that, as the District Court recognized,
if a further claim of standing is advanced based on post-complaint
developments in the relevant primary race, assessments of
causation and redressability, like injury-in-fact, will depend on
the state of the record as it will exist at the time of the
advancement of that claim.
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