FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT

KARI LAKE; MARK FINCHEM,              No. 22-16413

            Plaintiffs-Appellants,   D.C. No. 2:22-cv-
                                        00677-JJT
 v.

ADRIAN FONTES, Arizona Secretary        OPINION
of State; BILL GATES, as a member
of the Maricopa County Board of
Supervisors; CLINT HICKMAN, as a
member of the Maricopa County
Board of Supervisors; JACK
SELLERS, as a member of the
Maricopa County Board of
Supervisors; THOMAS GALVIN, as a
member of the Maricopa County
Board of Supervisors; STEVE
GALLARDO, as a member of the
Maricopa County Board of
Supervisors; MARICOPA COUNTY
BOARD OF SUPERVISORS; REX
SCOTT, as a member of the Pima
County Board of Supervisors; MATT
HEINZ, as a member of the Pima
County Board of Supervisors;
SHARON BRONSON, as a member
of the Pima County Board of
2                     LAKE V. FONTES


Supervisors; STEVE CHRISTY, as a
member of the Pima County Board of
Supervisors; ADELITA GRIJALVA,
as a member of the Pima County
Board of Supervisors,

              Defendants-Appellees.



       Appeal from the United States District Court
                for the District of Arizona
       John Joseph Tuchi, District Judge, Presiding

        Argued and Submitted September 12, 2023
                   Phoenix, Arizona

                 Filed October 16, 2023

    Before: Ronald M. Gould, Andrew D. Hurwitz, and
            Patrick J. Bumatay, Circuit Judges.

                   Per Curiam Opinion
                          LAKE V. FONTES                           3


                          SUMMARY *


                     Civil Rights/Elections

    The panel affirmed the district court’s dismissal for lack
of standing of an action, brought before the 2022 general
election by former Republican nominees for Governor and
Secretary of State of Arizona, alleging that Arizona’s use of
electronic tabulation systems violated the federal
Constitution.
    The gravamen of Plaintiffs’ operative complaint is that
notwithstanding safeguards, electronic tabulation systems
are particularly susceptible to hacking by non-governmental
actors who intend to influence election results. On appeal,
Plaintiffs conceded that their arguments were limited to
potential future hacking, and not based on any past harm.
    The panel held that because Plaintiffs are no longer
nominated candidates for state office and no longer seek
relief related to the 2022 election, they likely now lacked
standing on that ground. But even assuming Plaintiffs could
continue to claim standing as prospective voters in future
elections, they had not alleged a particularized injury and
therefore failed to establish the kind of injury Article III
requires. None of Plaintiffs’ allegations supported a
plausible inference that their individual votes in future
elections will be adversely affected by the use of electronic
tabulation, particularly given the robust safeguards in
Arizona law, the use of paper ballots, and the post-tabulation
retention of those ballots. The panel concluded that

*
 This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
4                       LAKE V. FONTES


speculative allegations that voting machines may be
hackable were insufficient to establish an injury in fact under
Article III.



                         COUNSEL

Andrew D. Parker (argued), Parker Daniels Kibort LLC,
Minneapolis, Minnesota; Kurt Olsen, Olsen Law PC,
Washington, D.C.; for Plaintiffs-Appellants.
Kara M. Karlson (argued), Deputy Attorney General,
Arizona Attorney General’s Office, Phoenix, Arizona; Craig
A. Morgan, Shayna G. Stuart, and Jake T. Rapp, Sherman &
Howard LLC, Phoenix, Arizona; for Defendant/Appellee
Arizona Secretary of State Adrian Fontes
Emily M. Craiger (argued), Burgess Law LLC, Phoenix,
Arizona; Rachel H. Mitchell, Maricopa County Attorney;
Thomas P. Liddy, Joseph J. Branco, Joseph E. La Rue, and
Karen J. Hartman-Tellez, Deputy County Attorneys;
Maricopa County Attorney’s Office, Civil Services
Division, Phoenix, Arizona; for Maricopa County
Defendants-Appellees Bill Gates, Clint Hickman, Jack
Sellers, Thomas Galvin, and Steve Gallardo.
Laura Conover, Pima County Attorney; Daniel Jurkowitz,
Deputy County Attorney; Pima County Attorney’s Office,
Civil Division, Tucson, Arizona; for Pima County
Defendants-Appellees Rex Scott, Matt Heinz, Sharon
Bronson, Steve Christy, and Adelita Grijalva.
                          LAKE V. FONTES                            5

OPINION

PER CURIAM:

    Kari Lake and Mark Finchem (“Plaintiffs”), the
Republican nominees for Governor and Secretary of State of
Arizona, filed this action before the 2022 general election,
contending that Arizona’s use of electronic tabulation
systems violated the federal Constitution.1 The district court
dismissed their operative first amended complaint for lack of
Article III standing. Lake v. Hobbs, 

,
1027–29 (D. Ariz. 2022).
    Plaintiffs’ candidacies failed at the polls, and their
various attempts to overturn the election outcome in state
court have to date been unavailing. 2 On appeal, they no
longer seek any relief concerning the 2022 election, but
instead seek to bar use of electronic tabulation systems in
future Arizona elections. We agree with the district court
that Plaintiffs’ “speculative allegations that voting machines
may be hackable are insufficient to establish an injury in fact
under Article III,” Lake, 623 F. Supp. 3d at 1029, and affirm.
                                  I.
    Arizona authorized electronic tabulation of election
ballots in 1966. See H.B. 204, 27th Leg., 2d. Reg. Sess.



1
  Plaintiffs raised no federal statutory claims and have withdrawn the
state law claims raised in their operative complaint on appeal.
2
 See, e.g., Lake v. Hobbs, 

 (Ariz. Ct. App. 2023); Order,
Finchem v. Fontes, No. CV 23-0064 (Ariz. Ct. App. Aug. 1, 2023).
6                          LAKE V. FONTES


(Ariz. 1966). 3 Under the Arizona election system, voters
mark their choices on paper ballots, which are then fed into
electronic machines for tabulation. 

-
462, 16-468(2), 16-502(A). 4 Before being certified for use
in elections, the tabulation machines are tested by an
accredited laboratory and the Secretary of State’s
Certification Committee. 

; see
also§16-552 (identical testing requirement for tabulation of
early ballots). The certified machines are then subjected to
pre-election logic and accuracy tests by the Secretary of
State and the election officials of each county. 

; Ariz. Sec’y of State, 2019 Election
Procedures Manual (“2019 EPM”) at 86. 5
    After tabulation by machines, the paper ballots cast by
each voter are retained for post-election audits and possible
recounts. After an election, political party representatives

3
  Like the district court, we take judicial notice of relevant Arizona
statutes and the Secretary of State’s 2019 Election Procedures Manual.
See Fed. R. Evid. 201(b); Lake, 623 F. Supp. 3d at 1023 n.5. We find it
unnecessary to rely on any testimony from the preliminary injunction
hearing. See id. at 1023 (citing testimony from preliminary injunction
hearing).
4
  Despite the state-law requirement that voters mark paper ballots, the
operative complaint requested that the district court mandate use of
“paper ballots” in the 2022 general election. Plaintiffs’ attorneys were
sanctioned in part for “misrepresentations about Arizona’s use of paper
ballots.” Lake v. Hobbs, 

, 1001 (D. Ariz. 2022).
Appeals of that sanctions order are pending separately. See Lake v.
Gates, et. al., No. 23-16022 (9th Cir. appeal docketed Jul. 24, 2023);
Lake v. Gates, et. al., No. 23-16023 (9th Cir. appeal docketed Jul. 24,
2023).
5
 The current manual does not differ from the 2019 Manual in any respect
relevant to this opinion. See Ariz. Sec’y of State, 2023 Election
Procedures Manual.
                        LAKE V. FONTES                        7


conduct a sample hand count of the paper ballots under the
oversight of county elections departments. 

. The counties then perform additional logic and
accuracy testing. 2019 EPM at 235. Arizona law mandates
a recount whenever the margin between the top two
candidates “is less than or equal to one-half of one percent
of the number of votes cast for both such candidates or on
such measures or proposals.” 

.
    When not in use, the hardware components of electronic
tabulation systems are inventoried, stored in secure
locations, and sealed with tamper-resistant seals. 2019 EPM
at 95–96. An electronic tabulation system may not be
connected to the internet, wireless communications devices,
or external networks and may “not contain remote access
software or any capability to remotely-access the system.”
2019 EPM at 96.
                              II.
    The gravamen of Plaintiffs’ operative complaint is that
notwithstanding safeguards, electronic tabulation systems
are particularly susceptible to hacking by non-governmental
actors who intend to influence election results. Although the
operative complaint cites opinions by purported experts on
manipulation risk and alleges that difficulties have occurred
in other states using electronic tabulation systems, it does not
contend that any electronic tabulation machine in Arizona
has ever been hacked. And, on appeal, counsel for Plaintiffs
conceded that their arguments were limited to potential
future hacking, and not based on any past harm.
                              A.
    The district court held that, even accepting the factual
allegations of the operative complaint as true, Plaintiffs had
8                        LAKE V. FONTES


not established Article III standing to sue. Lake, 623 F.
Supp. 3d at 1029. Article III requires, at an “irreducible
constitutional minimum,” that a plaintiff have “(1) suffered
an injury in fact, (2) that is fairly traceable to the challenged
conduct of the defendant, and (3) that is likely to be
redressed by a favorable judicial decision.” Spokeo, Inc. v.
Robins, 

 (2016) (citing Lujan v. Defs. of
Wildlife, 

, 560–61 (1992)). The plaintiff must
demonstrate a “concrete and particularized” and “actual or
imminent” “invasion of a legally protected interest.” Lujan,

. A “concrete” injury must be “real,” Spokeo,

, and an “imminent” one must be “certainly
impending,” Clapper v. Amnesty Int’l USA, 

 (2013). “[A]n abstract, theoretical concern will not do.”
Pierce v. Ducey, 

 (9th Cir. 2020).
    An injury is “particularized” when it impacts a plaintiff
in a “personal and individual way.” Spokeo, 

(quoting Lujan, 

 n.1). “An interest shared
generally with the public at large in the proper application of
the Constitution and laws will not do.” Arizonans for Off.
Eng. v. Arizona, 

 (1997); see also Pierce, 

.
                               1.
    Plaintiffs assert standing as the nominated candidates of
their party and as voters. Because Lake and Fontes are no
longer nominated candidates for state office and no longer
seek relief related to the 2022 election, they likely now lack
standing on that ground. See TransUnion LLC v. Ramirez,

 (2021) (“Plaintiffs must maintain their
personal interest in the dispute at all stages of litigation.”).
But even assuming Plaintiffs can continue to claim standing
                           LAKE V. FONTES                             9


as prospective voters in future elections, they have not
established the kind of injury Article III requires.
    We note as an initial matter that the precise nature of
Plaintiffs’ claimed injury is not clear. Although Plaintiffs
contend that the use of electronic tabulation systems denies
them a “fundamental right” to vote, they do not allege that
the State has in any way burdened their individual exercise
of the franchise. See, e.g., Harper v. Virginia State Bd. of
Elections, 

, 665–66 (1966) (finding a fee an
unconstitutional burden on the right to vote). Nor do they
claim that the Arizona system discriminates against them
because of race, sex, inability to pay a poll tax, or age. See
U.S. Const. amends. XV, XIX, XXIV, or XXVI.
    Moreover, Plaintiffs do not appear to allege a
particularized injury. They do not allege that the tabulation
of their votes will be manipulated. Rather, as the district
court noted, they at most assert a “generalized interest in
seeing that the law is obeyed,” an interest that “is neither
concrete nor particularized.” Lake, 623 F. Supp. 3d at 1028
(cleaned up); see also Lance v. Coffman, 

, 441–
42 (2007) (finding no particularized injury in voters’
challenge to districting plan where “only injury” alleged was
that law “has not been followed.”).
    And, to the extent that Plaintiffs assert a constitutional
right to a certain level of accuracy in the Arizona tabulation
system, their claim plainly fails. 6 “[I]t is the job of


6
 Plaintiffs cite the “Cyber Ninjas” hand-count audit of Maricopa County
votes in 2020 authorized by the Arizona Senate. But, they overlook the
audit report’s conclusion that “there were no substantial differences
between the hand count of the ballots provided and the official election
canvass results for Maricopa County.” Maricopa County Forensic
10                         LAKE V. FONTES


democratically elected representatives to weigh the pros and
cons of various balloting systems,” recognizing that “[n]o
balloting system is perfect.” Weber v. Shelley, 

, 1106–07 (9th Cir. 2003). Indeed, “the possibility of
electoral fraud can never be completely eliminated.” 

.
                                  2.
    In any event, the district court correctly held that
Plaintiffs, who claim no past injury, failed to establish that a
future injury was either imminent or substantially likely to
occur. “Where there is no actual harm . . . its imminence
(though not its precise extent) must be established.” Lujan,

 n.2. Article III requires a “certainly
impending” injury or, at the very least, a “substantial risk
that the harm will occur,” Susan B. Anthony List v. Driehaus,

, 158 (2014) (cleaned up).
    Plaintiffs simply have not plausibly alleged a “real and
immediate threat of” future injury. City of Los Angeles v.
Lyons, 

 (1983). Rather, as the district court
noted, they posit only “conjectural allegations of potential
injuries.” Lake, 623 F. Supp. 3d at 1032. Their operative
complaint relies on a “long chain of hypothetical
contingencies” that have never occurred in Arizona and
“must take place for any harm to occur—(1) the specific
voting equipment used in Arizona must have ‘security
failures’ that allow a malicious actor to manipulate vote
totals; (2) such an actor must actually manipulate an
election; (3) Arizona’s specific procedural safeguards must
fail to detect the manipulation; and (4) the manipulation


Election Audit, Volume I, at 1 (Sept. 24, 2021), https://perma.cc/B4EA-
U683.
                             LAKE V. FONTES                              11


must change the outcome of the election.” Id. at 1028. This
is the kind of speculation that stretches the concept of
imminence “beyond its purpose.” Lujan, 

n.2.     Plaintiffs’ “conjectural allegations of potential
injuries,” Lake, 623 F. Supp. 3d at 1032, are insufficient to
plead a plausible “real and immediate threat of” election
manipulation, Lyons, 

.
    In the end, none of Plaintiffs’ allegations supports a
plausible inference that their individual votes in future
elections will be adversely affected by the use of electronic
tabulation, particularly given the robust safeguards in
Arizona law, the use of paper ballots, and the post-tabulation
retention of those ballots. 7 The district court correctly
dismissed the operative complaint for lack of Article III
standing. 8
                                   III.
    The judgment of the district court is AFFIRMED.




7
  Curling v. Kemp, a decision cited by Plaintiffs finding plausible an
allegation of a “future hacking event,” 

(N.D. Ga. 2018), is not to the contrary. The plaintiffs in that case alleged
that the electronic system at issue “was actually accessed or hacked
multiple times.” 

. And, the electronic machines used in
Georgia did “not create a paper trail.” 

. In Arizona, “every
vote cast can be tied to a paper ballot.” Lake, 623 F. Supp. 3d at 1028
n.13.
8
  We therefore find it unnecessary to address the district court’s holding
that the complaint must also be dismissed under the Eleventh
Amendment for failure to plausibly allege a constitutional violation. See
Lake, 623 F. Supp. 3d at 1032.