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 Vice- President, 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,

(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

- 3 - 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.,

(1st Cir. 2018).

- 4 - 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

- 5 - 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,

(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,

(1st Cir. 2022) (internal quotation marks omitted)

(quoting Hochendoner v. Genzyme Corp.,

(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

("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.").

- 6 - 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,

(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

- 7 - 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

- 8 - 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

- 9 - 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

- 10 - 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

- 11 - 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,

, 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.

- 12 - 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,

(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,

, 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,

, 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,

, 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,

(1st Cir. 2004) (citing Mangual v. Rotger-

Sabat,

(1st Cir. 2003)); see Keene Corp. v. United

States,

, 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,

, 569 n.4 (1992) (rejecting the theory that events after the

filing of a suit's operative complaint had "retroactively created

- 14 - 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,

, 586–87 (5th Cir. 2006);

Shays v. FEC,

(D.C. Cir. 2005); Fulani v.

League of Women Voters Educ. Fund,

, 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

- 15 - economic competitor standing. See Clinton v. City of New York,

(1998); Adams v. Watson,

, 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,

(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,

, 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),

(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

- 16 - bottom line may be adversely affected by the challenged government

action." New World Radio, Inc. v. FCC,

(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

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,

, 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,

(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]."

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,

(D.C. Cir. 2023) (discussing Mendoza) (internal quotation marks omitted).

- 17 - 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,

(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,

(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

- 18 - 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,

(2020) (quoting Lance v. Coffman,

(2007) (per

curiam)). Therefore, we must be careful not to define "a direct

and current competitor" in the political context, New World Radio,

(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,

.

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

- 19 - 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,"

(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.

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,

. 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

.

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

at 387 n.5. We explained that the

- 20 - 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

Yet, the FEC emphasized, Nader was

not "compet[ing] in the same arena" as the CPD itself.

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."

(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,

and that he stood to be "adversely affected [in

that arena] by the challenged government action." New World Radio,

. In addition, we conclude that for Castro to show

that he was a "direct and current" competitor at that time,

-- or, to use Becker's way of putting it, that he was a

competitor "in the same arena,"

n.5 -- he must

- 21 - 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,

(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,

(1st Cir. 2010), Castro has failed to

show that he was a "direct and current competitor."

- 22 - 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

- 23 - 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,

. 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,

(D.D.C. 2013), "because if it were sufficient any

- 24 - citizen could obtain standing (in violation of Article III of the

U.S. Constitution) by merely 'self[-]declaring.'" Sibley v.

Obama, No. 12–5198,

, 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.,

(W.D. Tenn. 2012),

aff'd

(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.

. 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]."

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."

.

- 25 - 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

- 26 - 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,

(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,

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.

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.

- 27 - 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.

- 28 - 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,

(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,

(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

- 29 - 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,

, 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

- 30 - 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,

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

- 31 - absent his requested relief. Cf. Shays,

; 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.

- 32 - 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,

(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.

- 33 -