Approval-as-Injury: New York Recognizes Organizational Standing to Preemptively Challenge Certified Voting Machines and Permits Recasting of Article 78 Relief

Introduction

In Matter of Common Cause N.Y. v. Kosinski (2025 NY Slip Op 04690), the Appellate Division, Third Department, confronted two recurrent threshold issues in public-law litigation: (1) when does a petitioner have standing to challenge government approval of technology that may be deployed in the near future, and (2) how should courts treat mislabeled Article 78 pleadings that seek the wrong writ? The case arises from the New York State Board of Elections’ August 2023 approval of the ExpressVote XL voting system—an Election Systems & Software (ES&S) ballot-marking device that tabulates votes based on a machine-readable barcode rather than the human-readable summary displayed to the voter.

Petitioners—Common Cause New York, certain of its members, and the Black Institute—filed an Article 78 proceeding seeking mandamus to compel the Board to rescind the certification, arguing the device violates Election Law § 7-202(1)(e) because voters cannot independently verify that the barcode (the tabulated record) matches their intended selections. Supreme Court (Albany County) dismissed on standing grounds, holding the alleged harms were speculative. On appeal, the Third Department reversed, finding organizational standing for Common Cause and allowing the case to proceed—while also holding that the requested writ (mandamus to compel) was improper but could be recast as mandamus to review.

The judgment creates a practical and doctrinally significant precedent in two respects: approval of election technology can itself suffice to establish a sufficiently imminent, concrete risk to support organizational standing; and courts should, consistent with the “modern view,” recharacterize Article 78 relief when the facts support a different writ.

Summary of the Judgment

The Appellate Division reversed the dismissal and held that Common Cause has organizational standing. The court concluded that the Board’s approval of the ExpressVote XL rendered the device’s deployment “reasonably certain to occur” in counties using ES&S systems, making the alleged injury sufficiently concrete and non-speculative.
The court rejected the Board’s contention that injury is speculative until a county actually purchases and deploys the machines. Approval functions as a gateway step with an active marketing chain underway, and one county had already determined to purchase the device (delayed only by the litigation).
The court emphasized that the alleged harm is the inability of a voter to verify the barcode against the human-readable summary prior to casting a ballot, a harm tethered to Election Law § 7-202(1)(e), and not contingent upon a proven mismatch between barcode and summary.
On “public-at-large” objections, the court stressed that standing is not defeated simply because many people may be affected; the alleged harm to members was sufficiently particularized given their status as likely voters in affected counties.
Mandamus to compel is unavailable because the Board’s certification involves discretion, not a ministerial duty. However, employing the “modern view,” the court recast the petition as one for mandamus to review under CPLR 7803(3) and remitted for the Board to answer.
Judge Clark dissented, concluding that injury remained too speculative prior to county purchase and actual deployment, and would have affirmed dismissal for lack of standing.

Analysis

Precedents Cited and Their Influence

Raines v. Byrd, 521 U.S. 811 (1997): Cited for the foundational proposition that standing turns on whether the plaintiff is the proper party, often linked to the nature and source of the claim. This frames the inquiry but does not drive the outcome.
Matter of Stevens v. New York State Division of Criminal Justice Services, 40 NY3d 505 (2023): The majority relied on Stevens to underscore that injury-in-fact cannot rest on “impermissible layers of speculation.” There, a concrete antecedent fact (a close relative’s DNA in the databank) created a real, non-hypothetical risk of future identification. Here, the antecedent fact is the Board’s approval plus active marketing and procurement momentum—creating a “reasonably certain” chain toward deployment. The dissent distinguished Stevens on the ground that the antecedent fact in Stevens (DNA already in the databank) was more immediate than mere approval.
Matter of Developmental Disabilities Institute, Inc. v. NYS Office for People with Developmental Disabilities, 200 AD3d 1273 (3d Dept 2021): Quoted for the “reasonably certain to occur” standard. The court used this as the operative test to evaluate imminence, concluding the post-approval sequence (marketing, procurement, county interest) met it.
Association for a Better Long Island, Inc. v. NYS DEC, 23 NY3d 1 (2014): Provided the caution against “amorphous allegation[s] of potential future injury,” which the court found inapplicable because concrete procurement steps were underway.
New York Univ. v. City of New York, 230 AD3d 416 (1st Dept 2024): Reinforced that the law does not require plaintiffs to “first experience the harm” when it is reasonably certain to occur. The majority used this to justify pre-enforcement review in the election context.
Society of Plastics Industries v. County of Suffolk, 77 NY2d 761 (1991): The touchstone for New York standing doctrine on “injury different in kind or degree.” The majority found the harm to Common Cause members sufficiently particularized despite its broad reach; the dissent leaned toward a stricter reading that the injury was still too generalized.
Sierra Club v. Village of Painted Post, 26 NY3d 301 (2015), and U.S. v. SCRAP, 412 U.S. 669 (1973), with Abrams v. NYC Transit Auth., 39 NY2d 990 (1976), NOW v. State Div. of Human Rights, 34 NY2d 416 (1974): These cases temper the “public-at-large” concern, confirming that widespread harm does not preclude standing if the plaintiff’s stake is concrete and within the statutory zone of interests.
Alliance to End Chickens as Kaporos v. NYPD, 152 AD3d 113 (1st Dept 2017), aff’d, 32 NY3d 1091 (2018): Supplies the modern, widely cited articulation distinguishing mandamus to compel (ministerial duty) from discretionary agency action (not compellable). The Board’s certification decision required reasoned judgment, foreclosing mandamus to compel.
Matter of Hussain v. Lynch, 215 AD3d 121 (3d Dept 2023): Supports the “modern view” that Article 78 petitions should be construed to afford proper relief notwithstanding mislabeling—here, recasting to mandamus to review under CPLR 7803(3).
Additional scaffolding cases: Borrello v. Hochul, 221 AD3d 1484 (4th Dept 2023) (concreteness); Lansingburgh CSD v. NYSED, 196 AD3d 937 (3d Dept 2021) (non-speculative risk); Clean Water Advocates of N.Y., Inc. v. DEC, 103 AD3d 1006 (3d Dept 2013) (organizational standing); Seneca Lake Guardian v. NYS DEC, 229 AD3d 987 (3d Dept 2024) (zone of interests and pleading stage posture).
Dissent’s authorities: New York State Bd. of Regents v. SUNY, 178 AD3d 11 (3d Dept 2019) (speculative harm insufficient); Animal Legal Defense Fund v. Aubertine, 119 AD3d 1202 (3d Dept 2014); Police Benevolent Assn. v. Division of NYSP, 29 AD3d 68 (3d Dept 2006); American Ins. Assn. v. Chu, 64 NY2d 379 (1985). These emphasize the need for concrete injury and caution against hypothesized, multi-step causal chains.

Legal Reasoning

1) Injury-in-Fact and Imminence in the Certification Context

The majority hinged standing on a real-world assessment of the post-approval procurement chain. Election Law §§ 7-200 and 7-204 make state-level certification a prerequisite for county purchase and use. By the time the petition was filed, ES&S was actively marketing the ExpressVote XL to counties, and at least one county had resolved to purchase devices for an upcoming election (footnote 3). That a litigation hold delayed consummation did not erase the likelihood of use; courts do not “ignore the reasonable likelihood of a sequence of actions that have not occurred, even those that appear to be delayed largely because of the underlying litigation itself.”

Key to the majority’s approach is its practical, chain-of-events analysis: approval begets marketing and purchasing within a discrete set of ES&S counties, making the alleged injury—voters’ inability to verify the machine-tabulated barcode before casting—a sufficiently concrete, imminent risk for at least one Common Cause member. This fits the “reasonably certain to occur” and “not impermissibly speculative” standards.

2) Particularization vs. Public-at-Large

The Board argued that any injury would be shared by the electorate as a whole. The court responded with a well-settled limit on the “public-at-large” objection: standing is not denied simply because many people might suffer the same injury (SCRAP; Sierra Club; Abrams; NOW). Here, the injury alleged—being a voter in a county that will adopt the ExpressVote XL and thus confronting an unverifiable barcode—was “different in kind or degree” relative to the general public because it turns on concrete, imminent exposure faced by specific voters in likely-adopting jurisdictions.

3) Nature of the Alleged Harm

Crucially, the court clarified that the predicate harm is not an actual mismatch between the barcode and the printed summary; it is the impossibility of confirming, prior to casting, that the barcode (the counted record) mirrors the human-readable selections. That harm maps directly onto the statutory requirement that voters have the ability to “privately and independently verify votes selected and the ability to privately and independently change such votes or correct any error before the ballot is cast and counted” (Election Law § 7-202[1][e]).

4) Writ Selection: Compel vs. Review

The court agreed with the Board that mandamus to compel does not lie. Certification entails discretion and judgment; it is not a ministerial “shall” duty with a single compelled outcome. But the panel refused to elevate form over substance. Citing the “modern view” of pleading in Article 78 (and Hussain), it recast the case as one for mandamus to review under CPLR 7803(3), which examines whether the certification determination was made “in violation of lawful procedure, was affected by an error of law or was arbitrary and capricious or an abuse of discretion.” This keeps the courthouse doors open for merits review while adhering to writ doctrine.

5) The Dissent’s Counterpoint

Judge Clark’s dissent would have affirmed for lack of standing. In the dissent’s view, the chain of events—county purchase, public acceptance testing (9 NYCRR 6209.10), and an election-day deployment—remained too contingent when the petition was filed. Thus, any harm was still conjectural and indistinct from the public at large. The dissent also reads Stevens more narrowly, requiring a more immediate antecedent injury than statewide approval and marketing.

Impact

A. Election Technology Litigation

Pre-enforcement standing clarified: State approval of a voting system can itself create a sufficiently imminent, concrete risk to support organizational standing—especially where procurement pipelines and vendor marketing to known counties are active.
Focus on verification design: The court’s articulation of harm (inability to verify the counted record) spotlights a critical line of statutory interpretation under Election Law § 7-202(1)(e). This places barcode-based tabulation squarely within the crosshairs for merits review.
Vendor and agency records: Agencies and vendors may need to document procurement readiness, marketing, and county interest with greater care, as these facts can establish imminence and standing at the pleading stage.

B. Article 78 Practice

Recasting relief: Litigants and courts gain flexibility; even if the wrong writ is pleaded, courts should consider the factual posture and construe the petition as mandamus to review where appropriate.
Ministerial vs. discretionary boundary reaffirmed: Certification decisions remain discretionary; mandamus to compel will not lie to reverse or dictate outcomes of such determinations.

C. Broader Administrative Law

Imminence threshold: The decision contributes to a growing body of New York authority permitting standing where a regulatory approval is a necessary gate to downstream actions that are already in motion, bridging concerns often associated with ripeness and standing.
Public-at-large nuance: Reinforces that widespread harm does not automatically bar standing where the plaintiff’s exposure is concrete and tied to the statute’s protective aims.

Complex Concepts Simplified

Standing: The legal right to bring a case. You generally need an “injury-in-fact” (a real, concrete harm or imminent risk), and your interest must be within the “zone of interests” the law aims to protect.
Organizational standing: An organization can sue on behalf of its members if at least one member has standing, the issue aligns with the organization’s mission, and individual member participation isn’t needed to resolve the case.
Injury-in-fact (imminence): Not purely hypothetical. Courts ask whether the harmful events are “reasonably certain to occur,” not stacked on “impermissible layers of speculation.”
Public-at-large vs. particularized injury: Even if many people are harmed, a plaintiff can have standing if its stake is concrete and distinct in kind or degree, especially when it will be directly impacted by the challenged action.
Mandamus to compel: A writ used to force a government body to perform a clear, non-discretionary (ministerial) duty. It cannot force a specific outcome where the agency has discretion.
Mandamus to review (CPLR 7803[3]): The standard mechanism to challenge discretionary administrative actions as arbitrary and capricious, contrary to law, or procedurally improper.
Election Law § 7-202(1)(e): Requires that a voter must be able to privately and independently verify selections and correct errors before the ballot is cast and counted. The case focuses on whether a barcode—unreadable by the voter—satisfies that requirement.
Barcode vs. human-readable summary: In some ballot-marking devices, the machine counts the barcode, not the printed text the voter can read. The alleged harm is that the voter cannot verify what the machine will actually count.

What Happens Next on Remand

The Appellate Division remitted for respondents to answer the petition, now treated as one for mandamus to review. The Supreme Court will evaluate, likely under the “arbitrary and capricious”/error-of-law standard, whether the Board’s certification of the ExpressVote XL comported with Election Law § 7-202(1)(e) and the regulatory framework (9 NYCRR Part 6209). Key questions will include:

Does a system that tabulates votes from a barcode provide the voter with a legally adequate “ability to privately and independently verify” the vote that will be counted?
Was the Board’s interpretation of § 7-202(1)(e) reasonable, and did it articulate a rational basis supported by the administrative record?
Did the Board follow required procedures and evaluate relevant factors (including security, usability, and auditability) in reaching its certification decision?

The merits are expressly open. The Appellate Division cautioned that its standing ruling “in no way reflects a position on the ultimate merits of the petition” (footnote 4).

Conclusion

Common Cause N.Y. v. Kosinski establishes two consequential guideposts in New York public-law litigation. First, in the election-technology context, statewide approval can create a sufficiently imminent and concrete risk to confer organizational standing—particularly when the procurement chain is active and device deployment in specific counties is reasonably certain to occur. The court rejects a formalist insistence on purchase-and-deployment as prerequisites for standing, aligning with modern pre-enforcement sensibilities and the protective aims of Election Law § 7-202(1)(e).

Second, the decision reinforces writ discipline without sacrificing access to review. Certification is discretionary; mandamus to compel is unavailable. Yet courts should apply the “modern view” of Article 78 pleading and recast mislabeled petitions as mandamus to review when the facts and standards so warrant. This promotes efficient, merits-focused adjudication while honoring doctrinal boundaries.

Looking ahead, the case signals that challenges to the design and verification features of voting systems will be justiciable at the certification stage, provided petitioners can demonstrate a practical, imminent nexus between approval and actual use. It also underscores the central statutory question for barcode-based systems: whether a voter’s inability to read the counted record itself is compatible with New York’s requirement of private and independent verification before a vote is cast and counted.