Holley v. Lepak: Hypothetical Injury from an Unpassed Ballot Initiative Does Not Establish Article III Standing

1. Introduction

In Holley v. Lepak, the Tenth Circuit addressed whether a voter could challenge the anticipated constitutional effects of an Oklahoma ballot initiative before voters had approved it. The court held that the plaintiff’s alleged injuries, which depended on the initiative’s future approval and implementation, were too hypothetical to establish federal jurisdiction.

Adam Holley, representing himself, sued Benjamin Lepak in his official capacity as Acting Oklahoma Secretary of State and the Oklahoma State Election Board under 42 U.S.C. § 1983. His complaint challenged Oklahoma State Question No. 836, Initiative Petition No. 448, referred to as SQ 836. He alleged that the measure, if approved and implemented, would violate the First and Fourteenth Amendments.

Holley sought an injunction preventing further steps to certify, place, or maintain SQ 836 on a ballot before the upcoming midterm elections. He also requested removal of the measure from any such ballot until a court had determined its constitutional validity, together with declaratory relief concerning its anticipated constitutional effects.

The central issue was not whether SQ 836 was constitutional. It was whether Holley had alleged an actual or sufficiently imminent personal injury permitting a federal court to decide that question.

2. Procedural Background and Summary of the Decision

The district court directed Holley to show cause why his complaint should not be dismissed for lack of subject-matter jurisdiction. It observed that his allegations described a contingent future event rather than an imminent injury. After considering his response, the court dismissed the complaint without prejudice.

The Tenth Circuit exercised appellate jurisdiction under 28 U.S.C. § 1291 and reviewed the standing determination de novo. It affirmed on the following grounds:

• The alleged injury was hypothetical: Holley’s claimed constitutional harm depended on SQ 836 becoming law and being implemented.
• The principal comparison case was distinguishable: Awad v. Ziriax involved an already-approved ballot measure and Establishment Clause standing principles not applicable to Holley’s claims.
• The Fourteenth Amendment’s wording did not establish present injury: Its prohibition against a state “mak[ing]” certain laws did not authorize judicial intervention merely because preliminary lawmaking steps were underway.
• Arguments about constitutional wrongdoing could not replace standing: Legal maxims addressing indirect violations concerned the merits, not the jurisdictional deficiency.
• Litigation expenses could not create standing: Time and money spent pursuing the lawsuit were consequences of filing it, not an independent injury supporting jurisdiction.

The court did not decide whether SQ 836 would violate the Constitution or whether Holley would have standing if it later became law. It also denied as moot his motion seeking submission on the briefs, a determination that appellees’ argument was waived, and expedited disposition.

3. Analysis of the Precedents Cited

Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836 (10th Cir. 2005)

The court cited Garrett to explain its treatment of Holley’s self-represented status. Although courts construe a pro se litigant’s arguments liberally, they cannot assume the role of counsel by constructing arguments or searching the record on the litigant’s behalf. This principle framed the court’s review: Holley received a generous reading of his submissions, but he remained responsible for alleging facts sufficient to establish jurisdiction.

Petrella v. Brownback, 697 F.3d 1285 (10th Cir. 2012)

Petrella supplied the appellate standard of review. A dismissal for lack of standing is reviewed de novo, using the same standard applied by the district court. The panel therefore independently assessed the sufficiency of Holley’s allegations rather than deferring to the district court’s legal conclusion.

Lujan v. Defs. of Wildlife, 504 U.S. 555 (1992)

Lujan provided the decision’s central constitutional framework. Injury in fact must involve an invasion of a legally protected interest that is concrete and particularized, and actual or imminent rather than conjectural or hypothetical. The party invoking federal jurisdiction bears the burden of establishing standing, with support appropriate to the stage of litigation.

Applied here, that framework exposed the defect in Holley’s complaint: he described what SQ 836 would do if approved and implemented, not an existing or sufficiently imminent injury. Because that deficiency was dispositive, the panel did not need to resolve the remaining standing requirements of causation and redressability.

Texas v. United States, 523 U.S. 296 (1998)

The court relied on Texas for the proposition that a claim is not ripe when it depends on contingent future events that may occur differently than anticipated or may never occur. SQ 836 had not passed, so the constitutional consequences alleged by Holley depended on an uncertain future development. This precedent reinforced the conclusion that the requested adjudication was premature.

Susan B. Anthony List v. Driehaus, 573 U.S. 149 (2014)

The panel cited Susan B. Anthony List to explain why it treated the overlapping standing and ripeness concerns under the heading of standing. Although the doctrines are distinct, they can originate in the same Article III limitation and present the same practical question: is the threatened injury sufficiently immediate for judicial resolution?

The citation did not erase the distinction between the doctrines generally. It explained why, in this case, both focused on the same uncertainty surrounding future injury.

Awad v. Ziriax, 670 F.3d 1111 (10th Cir. 2012)

Holley relied on Awad to argue that a constitutional challenge could proceed before a proposed state measure had completed the process of becoming law. The panel identified two important differences.

First, the measure in Awad, SQ 755, had already received approval from more than 70 percent of Oklahoma voters and was approaching certification. SQ 836 had not passed. Second, Awad’s standing discussion addressed doctrine specific to Establishment Clause challenges, while Holley brought no such challenge.

The distinction is significant: a decision permitting litigation after voter approval does not necessarily authorize review before approval, particularly where the asserted constitutional injury arises under a different doctrinal framework. Nor did the panel suggest that voter approval alone would establish standing for every plaintiff.

New Orleans Water Works Co. v. City of New Orleans, 164 U.S. 471 (1896)

The court cited this decision by analogy when rejecting Holley’s interpretation of the Fourteenth Amendment’s prohibition against a state “mak[ing]” a law that abridges protected privileges or immunities. New Orleans Water Works Co. v. City of New Orleans distinguished judicial interference with a municipal assembly’s deliberations over proposed ordinances from judicial protection of private rights after an invalid ordinance had passed.

That distinction supported the panel’s understanding that “making” a law refers to enactment, not every preliminary step in the legislative process. The precedent thus reinforced the boundary between reviewing operative governmental measures and interrupting deliberation over proposals.

Rural Water Sewer & Solid Waste Mgmt., Dist. No. 1 v. City of Guthrie, 654 F.3d 1058 (10th Cir. 2011)

This case supplied the ordinary sequencing rule that jurisdictional issues, including standing, must be resolved before the merits. Holley invoked maxims suggesting that government cannot accomplish indirectly what it may not do directly. Even if those maxims could inform an eventual constitutional analysis, they did not show that he had suffered a cognizable injury. The asserted strength of a constitutional objection cannot substitute for jurisdiction to hear it.

Steel Co. v. Citizens for a Better Env't, 523 U.S. 83 (1998)

The panel relied on Steel Co. to reject Holley’s argument that his litigation expenditures supplied injury in fact. The Supreme Court’s statement that reimbursement of litigation costs cannot alone support standing prevented Holley from using the costs of bringing his challenge to establish the jurisdiction needed to maintain it.

Vermont Agency of Nat. Res. v. U.S. ex rel. Stevens, 529 U.S. 765 (2000)

This decision reinforced the same point through a broader formulation: an interest that is merely a byproduct of a lawsuit cannot generate a cognizable Article III injury. Together with Steel Co., it foreclosed an attempt to create standing through the act of litigating rather than through an independently existing or imminent injury.

4. The Court’s Legal Reasoning

A. Anticipated unconstitutionality is not itself a present injury

Holley’s own formulation—that SQ 836 would cause harm “if approved and implemented”—made the contingency central to his claim. The proposed measure might never become law. His complaint therefore asked the federal courts to determine constitutional consequences before the event allegedly producing those consequences had occurred or become sufficiently imminent.

The distinction is between a potentially valid constitutional objection and a presently justiciable dispute. A plaintiff may identify a serious legal concern yet lack standing to obtain a ruling at that time. Requests for declaratory or injunctive relief do not remove Article III’s injury requirement.

B. The constitutional text did not authorize intervention in preliminary lawmaking

Holley argued that “make,” rather than “made,” in Section 1 of the Fourteenth Amendment covered formal steps bringing a law into existence. The panel rejected that interpretation on both textual and institutional grounds.

It first observed that only the Privileges or Immunities Clause within Section 1 contains the relevant word, so Holley’s argument could not support his other claims. It then agreed with the district court that a governmental entity does not “make” a law in the pertinent constitutional sense until enactment.

The court illustrated the point by observing that describing courts as “making law” refers to the resulting legal product, not judicial conferences or drafting. It likewise found no reason to understand the Fourteenth Amendment as requiring courts to cut short state legislative deliberations. This reasoning answered Holley’s specific textual argument; it did not establish immunity from review for every independently unlawful act occurring during a legislative or electoral process.

C. Standing could not be created through merits arguments or litigation activity

Holley’s remaining arguments failed because they addressed something other than the missing injury. Maxims against indirect constitutional violations went to whether governmental conduct would be unlawful. His expenditures of time and money arose from pursuing the suit itself. Neither established an actual or imminent injury stemming from SQ 836.

D. The dismissal left both merits and future standing unresolved

The dismissal was without prejudice because the court lacked jurisdiction, not because it had rejected Holley’s constitutional theories on their merits. Nevertheless, future enactment would not automatically establish his standing. Both courts expressly left open whether his circumstances, including his status as a registered voter, would support a later challenge.

5. Potential Impact and Limits

The decision provides persuasive guidance for premature ballot-measure challenges. A plaintiff who attacks only the anticipated operation of an unpassed initiative must do more than allege that it would be unconstitutional if enacted. The complaint must connect the challenged conduct to an actual or sufficiently imminent personal injury.

It distinguishes stages of the initiative process. Proposing a measure, obtaining voter approval, completing certification, and implementing a law may present different jurisdictional circumstances. The treatment of Awad v. Ziriax shows why those stages cannot be treated as interchangeable.

It does not categorically prohibit pre-enforcement review. The panel resolved the allegations before it, which made injury conditional on approval and implementation. It did not hold that a plaintiff must always await enforcement or that every challenge involving an unpassed proposal necessarily fails. A claim based on a distinct present injury would require its own analysis.

Its institutional significance is restraint. The reasoning preserves the distinction between legislative consideration and judicial resolution of concrete disputes. Federal courts do not ordinarily provide advance constitutional clearance for proposals merely because someone anticipates that their eventual operation will be unlawful.

Its authority remains limited. Future courts may find the analysis persuasive, but the order does not establish binding circuit precedent outside its stated exceptions.

6. Complex Concepts Simplified

Article III standing

The requirement that a plaintiff have a sufficiently personal and concrete stake in a dispute to invoke federal judicial power. Here, the missing element was actual or imminent injury.

Injury in fact

A real, individualized harm that has occurred or is sufficiently imminent. Concern about what a proposal might do if it becomes law is not necessarily enough.

Ripeness

A rule addressing whether a dispute is ready for judicial decision. A claim may be premature when essential future events remain uncertain.

Subject-matter jurisdiction

A court’s legal authority to decide a category of dispute. Without Article III standing, a federal court cannot decide the constitutional merits.

De novo review

Fresh appellate review of a legal question, without deference to the lower court’s legal conclusion.

Dismissal without prejudice

A dismissal that does not decide the substantive claim against the plaintiff. A later suit remains possible, but it must independently satisfy jurisdictional and other applicable requirements.

42 U.S.C. § 1983

A statutory means of seeking relief for violations of federal rights by persons acting under state authority. Invoking it does not dispense with constitutional standing requirements.

Privileges or Immunities Clause

The Fourteenth Amendment provision prohibiting states from making or enforcing laws that abridge the privileges or immunities of United States citizens. The panel addressed its wording without deciding whether SQ 836 would violate it.

Nonprecedential disposition

A decision that may persuade other courts but does not generally bind them. Its effects within the same litigation or through applicable preclusion doctrines are distinct from its value as precedent.

7. Conclusion

Holley v. Lepak reinforces a fundamental jurisdictional boundary: predicted constitutional harm from an unpassed ballot initiative does not establish standing when the alleged injury remains contingent on future approval and implementation.

The Tenth Circuit affirmed dismissal without prejudice, leaving SQ 836’s constitutionality and Holley’s potential future standing unresolved. The decision’s principal lesson is that courts must have a concrete dispute before addressing even substantial constitutional objections; neither merits arguments nor the costs of litigation can supply that missing foundation.