Robbins featured in Federalist Society Blog

Robbins firm attorney Miles Skedsvold was recently featured in the Federalist Society Blog discussing the Georgia Supreme Court’s recent decision in Republican National Committee et al. v. Eternal Vigilance Action Inc., et al. and its impacting on Georgia’s standing doctrine:

Not all important election litigation happens in the hours before and after votes are cast: on June 10, the Georgia Supreme Court set (or, perhaps, reset) important rules-of-the-road in one of the most-watched political battlegrounds in the country. In Republican National Committee et al v. Eternal Vigilance Action, Inc., the court issued a 96-page decision deciding the lawfulness of several controversial State Election Board Rules, overruling several cases on standing and non-delegation principles in the process. By the time the 2026 and 2028 election cycles roll around, election litigation will look quite different in Georgia—and perhaps in other states, too.

In recent years, the Georgia Supreme Court has moved away from the familiar Lujan-style injury-in-fact standing regime applied in the federal courts. In Sons of Confederate Veterans v. Henry County Board of Commissioners, the court held that the Georgia Constitution limits the jurisdiction of Georgia courts to deciding cases where the plaintiff has a legal right at stake that requires adjudication to protect it—but the court moved away from the requirement that a plaintiff have suffered “an injury in fact,” at least in cases that (1) do not allege that a state statute is unconstitutional (since declaring the work of a coordinate branch of government unconstitutional implicates the separation of powers, requiring a concrete injury) and (2) seek to require local governments to follow the law, since Georgia law has long allowed “community stakeholders” to bring a sort of derivative action against the community in which they pay taxes. Earlier this year, the court rolled back so-called third-party standing in a case called Wasserman v. Franklin County.

In Eternal Vigilance, the court brought those principles to the elections sphere in ways that will shape who can bring election lawsuits, and what kind. This case clarified several important points about standing under Georgia law:

• Georgia courts will no longer recognize “associational” or “diversion-of-resources” theories of standing.
• The “community stakeholder” standing applied in cases like Son of Confederate Veterans will (generally) not apply in suits against the State, since state citizenship is not like the stakeholder status—analogous to being a shareholder in a private corporation—in “municipal corporations” historically recognized by Georgia courts.
• Individual voters will have standing for claims that government action violates or threatens their right to vote or right to have their vote counted—such as rules regulating the use of absentee-ballot drop boxes, or the tabulation of votes, or the certification of results. This right to sue will extend even to claims that the government action creates a risk that a person will not be allowed to vote or their vote will not be counted, even if the risk is “not certain,” and even if the plaintiff’s risk of harm is no different than that of the public at large. But it will not extend to challenge matters of procedure that do not touch on the validity or counting of votes—such as rules governing poll watchers or requiring counties to issue summaries of the votes cast.
• It is unclear whether local election officials will have standing to challenge state election laws. One of the individual plaintiffs in Eternal Vigilance alleged that he had standing to challenge certain State Election Board Rules because he might misinterpret or fail to follow such rules, and become liable to legal consequences. The court rejected that theory because mere uncertainty is not enough, without the violation of a legal right, but—while raising questions about the official’s ability to leverage his official duties into an individual capacity suit—the court left open the possibility that such a plaintiff might be able to establish standing.
• The court also suggested “that ‘proof’ of standing depends on the stage of litigation in which it is challenged,” which is the rule in federal courts, but held open the possibility that it might decide otherwise in a future case.

While Eternal Vigilance is obviously a Georgia case applying Georgia law, the Georgia Supreme Court is not alone in attacking doctrines like associational standing, with Justice Clarence Thomas, as well as law professors including Michael Morley, Andrew Hessick, and Jonathan Adler making similar points in recent years. So whether or not more and more of the state courts around the country trend originalist in the years to come, we can expect Eternal Vigilance and its reasoning to feature in the next round of election litigation come 2026 and beyond.