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[PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-11299
____________________
MARJORIE TAYLOR GREENE,
Plaintiff-Appellant,
versus
SECRETARY OF STATE FOR THE STATE OF GEORGIA,
CHARLES R. BEAUDROT,
in his official capacity as an Administrative Law Judge
for the Office of State Administrative Hearings
for the State of Georgia,
JOHN DOE, I,
GOVERNMENT ENTITY 1,
Defendants-Appellees,
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2 Opinion of the Court 22-11299
DAVID ROWAN,
DONALD GUYATT,
ROBERT RASBURY,
DANIEL O. COOPER,
RUTH DEMETER,
Intervenor Defendants-Appellees.
____________________
Appeal from the United States District Court
for the Northern District of Georgia
D.C. Docket No. 1:22-cv-01294-AT
____________________
Before WILSON, BRANCH, and LAGOA, Circuit Judges.
PER CURIAM:
Representative Marjorie Taylor Greene, a member of the
U.S. House of Representatives for Georgia’s 14th Congressional
District, appeals the district court’s denial of her Motion for
Preliminary Injunctive Relief. In her motion, Rep. Greene asked
the district court to enjoin the state court’s application of O.C.G.A.
§ 21-2-5 (“Challenge Statute”) against her to prevent her from
being disqualified as a candidate for Congress under § 3 of the
Fourteenth Amendment to the United States Constitution. After
oral argument and careful consideration, and because of
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22-11299 Opinion of the Court 3
intervening circumstances, we remand this case to the district
court with instructions to dismiss the case as moot.
This lawsuit was prompted by related state court
proceedings. Shortly before Rep. Greene filed this lawsuit in
federal district court, a group of voters (“Challengers”) in Rep.
Greene’s district challenged her eligibility to be on the primary
ballot after she filed her candidacy for the upcoming election. The
Challengers invoked the Challenge Statute—which permits an
eligible voter to file a pre-election challenge to the qualification of
a candidate for state or federal office—and argued that Rep. Greene
was disqualified from serving in the U.S. House of Representatives
under § 3 of the Fourteenth Amendment because she engaged in
“insurrection” in connection with the events of January 6, 2021, at
the U.S. Capitol.
Pursuant to Georgia law, a state administrative law judge
(“ALJ”) heard the voters’ challenge. The ALJ held that the
Challengers had not presented sufficient evidence to support their
claim, finding Rep. Greene “did not ‘engage’ in the Invasion [of the
U.S. Capitol]”—whether or not those events constituted
“insurrection” under § 3 of the Fourteenth Amendment—and was
therefore qualified to appear on the ballot. The Georgia Secretary
of State, Brad Raffensperger, adopted the ALJ’s conclusions. The
Challengers petitioned for judicial review in the Superior Court of
Fulton County, and the superior court affirmed the Secretary’s
decision. The Challengers then filed an application for
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4 Opinion of the Court 22-11299
discretionary review of the superior court decision in the Supreme
Court of Georgia, which was denied on September 1, 2022.
After the state case was initiated, Rep. Greene filed this
action against Secretary Raffensperger and the ALJ in federal
district court, seeking a preliminary injunction barring state
officials from adjudicating the voters’ challenge to her eligibility.
The district court denied her motion for a preliminary injunction,
holding that Rep. Greene failed to show a substantial likelihood of
success on the merits, and Rep. Greene timely appealed to this
Court. However, as discussed above, while her appeal from the
federal proceedings have been pending in this Court, the state
proceedings have concluded.
“We have jurisdiction to reach the merits of a case only
where there is an active controversy.” Hand v. Desantis,
946 F.3d
1272, 1275 (11th Cir. 2020). And “[a]n action that is moot cannot
be characterized as an active case or controversy.” BankWest, Inc.
v. Baker,
446 F.3d 1358, 1363 (11th Cir. 2006) (quotations omitted).
“The rule in federal cases is that an actual controversy must be
extant at all stages of review, not merely at the time the complaint
is filed.” Hand, 946 F.3d at 1275 (quoting Steffel v.
Thompson, 415
U.S. 452, 459 n.10 (1974)). “If events that occur subsequent to the
filing of a lawsuit or an appeal deprive the court of the ability to
give the plaintiff or appellant meaningful relief, then the case is
moot and must be dismissed.”
Id. (quotations omitted); see also
Jews for Jesus, Inc. v. Hillsborough Cnty. Aviation Auth.,
162 F.3d
627, 629 (11th Cir. 1998) (explaining that when a policy change had
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22-11299 Opinion of the Court 5
given plaintiffs the relief that they sought, “there [was] therefore
no meaningful relief left for the court to give” because “[t]he only
remaining issue [was] whether the [policy at issue] was
constitutional—which, at [that] stage, [was] a purely academic
point”).
As explained, in this federal lawsuit, Rep. Greene is seeking
to enjoin the application of the Challenge Statute against her in the
state proceedings to prevent her from being disqualified as a
candidate for Congress under § 3 of the Fourteenth Amendment.
However, the state proceedings under the Challenge Statute have
concluded, and Rep. Greene has prevailed at each stage: the ALJ
ruled in Rep. Greene’s favor, Secretary Raffensperger adopted the
ALJ’s conclusions, the Superior Court of Fulton County affirmed
the Secretary’s decision, and the Supreme Court of Georgia denied
the Challengers’ application for discretionary review. Ultimately,
Rep. Greene was not disqualified from being a candidate for
Congress and is presently on the ballot for the upcoming election.
Accordingly, we no longer have the ability to accord Rep. Greene
meaningful relief.1 We therefore hold that this case is moot.
1
Rep. Greene’s argument that this case is not moot because it falls within the
“exception to the mootness doctrine for cases that are capable of repetition,
yet evading review” is unavailing. Hall v. Sec’y, Alabama,
902 F.3d 1294, 1297
(11th Cir. 2018) (quotations omitted). A dispute qualifies for this exception
only if (1) the challenged action is in its duration too short to be fully litigated
before its cessation or expiration, and (2) there is a reasonable expectation that
the same complaining party will be subjected to the same action again.
Id.
Rep. Greene has not established that the exception applies in this case. Indeed,
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6 Opinion of the Court 22-11299
This case is hereby REMANDED with instructions to
DISMISS for mootness.
at oral argument, Rep. Greene’s counsel conceded twice that it would be
unlikely that Rep. Greene would face another challenge under § 3 of the
Fourteenth Amendment due to the determination that she was qualified to
appear on the ballot in the state court proceedings.
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22-11299 Branch, J., Concurring 1
BRANCH, J., Concurring:
While this case is moot, I write separately because at the
time Rep. Greene filed her federal lawsuit, she was entitled to a
preliminary injunction.
I. Background
(a) Legal Framework
Under O.C.G.A. § 21-2-5 (“Challenge Statute”), an eligible
voter may file a pre-election challenge to the qualifications of a
candidate for state or federal office. Once a challenge is filed with
the Secretary of State, the Secretary then notifies the candidate and
refers the challenge to the Office of State Administrative Hearings
(“OSAH”) for a hearing by a state ALJ. § 21-2-5(b).
Upon referral from the Secretary of State, an ALJ must hold
a hearing on the challenge and report his findings of fact and legal
conclusions back to the Secretary of State. Id. After receiving the
ALJ’s report, the Secretary of State “shall determine if the candidate
is qualified” to hold the relevant public office. § 21-2-5(c). The
parties to the challenge—the voters or candidate—can seek judicial
review of the Secretary’s decision in the Superior Court of Fulton
County. § 21-2-5(e). The superior court can affirm the decision,
remand the case for further proceedings, or reverse or modify the
decision. Id. The statute also provides for appellate review of the
superior court decision “as provided by law.” Id.
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(b) Voter Challenge to Rep. Greene’s Eligibility
Rep. Greene filed her candidacy for the upcoming election
on March 7, 2022, and amended that filing three days later. On
March 24, 2022, the Challengers filed an official challenge against
Rep. Greene under the Challenge Statute. The challenge alleged
that Rep. Greene “does not meet the federal constitutional
requirements for a Member of the U.S. House of Representatives.”
The Challengers claimed that on the days surrounding January 6,
2021, Rep. Greene “aided and engaged in an insurrection to
obstruct the peaceful transfer of presidential power, disqualifying
her from serving as a Member of Congress under Section 3 of the
14th Amendment and rendering her ineligible under state and
federal law to be a candidate for such office.”
Secretary Raffensperger referred the challenge to the OSAH
for a hearing before a state ALJ. The ALJ held a public hearing on
April 22, 2022, during which Rep. Greene testified and was cross-
examined by counsel for the Challengers.
However, on April 1, 2022, weeks before the scheduled
OSAH hearing, Rep. Greene sued Secretary Raffensperger and the
ALJ (“State Defendants”), along with two unnamed defendants, in
the underlying federal action, filing a motion for a preliminary
injunction and a verified complaint for declaratory relief, which
alleged that the Challenge Statute was unconstitutional under
42
U.S.C. § 1983. Rep. Greene asserted claims under the First and
Fourteenth Amendments (Counts I and II), Article I, § 5 of the
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22-11299 Branch, J., Concurring 3
United States Constitution (Count III), and the 1872 Amnesty Act
(Count IV).
In Count I, Rep. Greene alleged that because the Challenge
Statute can be triggered based only on a Challenger’s “belief” that
a candidate is not qualified to seek and hold “the public office for
which he or she is offering,” it violates her First Amendment right
to run for political office. In Count II, she contended that the
Challenge Statute violates the Fourteenth Amendment’s Due
Process Clause by placing the burden on the candidate to prove
that she is qualified. In Count III, Rep. Greene alleged that the
Challenge Statute violates Article I, § 5 of the U.S. Constitution
because it permits the State to judge independently the
qualifications of a candidate for the U.S. House of Representatives,
exceeding the State’s power to regulate election procedures and
usurping the constitutional role of the U.S. House of
Representatives as “the Judge of the Elections, Returns and
Qualifications of its own Members.” Finally, in Count IV, Rep.
Greene asserted that the state proceedings violated the 1872
Amnesty Act, which she maintains removed the “disability”
imposed by § 3 of the Fourteenth Amendment prospectively to all
future members of Congress. 1
1
The 1872 Amnesty Act provides:
[A]ll political disabilities imposed by the third section of the
fourteenth article of amendments of the Constitution of the
United States are hereby removed from all persons
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A few days after Rep. Greene filed her complaint against the
State Defendants in district court, the Challengers moved to
intervene. The district court granted their motion several days
later.
On April 8, 2022, the district court heard oral argument from
Rep. Greene, the State Defendants, and the Challenger-
intervenors. On April 18, four days before the OSAH hearing on
the candidacy challenge, the district court issued an order denying
Rep. Greene’s motion for preliminary injunctive relief, finding that
she failed to show a substantial likelihood of success on the merits
on any of her constitutional or statutory challenges because, in
part, Rep. Greene failed to “cite persuasive legal authority or even
include a developed legal argument” that Georgia lacks the
authority to enforce “an existing constitutional provision.” The
district court declined to address the other injunction factors. Rep.
Greene timely appealed the district court’s ruling to this Court.
Soon after, on April 22, the state ALJ held a hearing on the
challenge to Rep. Greene’s candidacy qualifications. The ALJ then
issued a decision, concluding that the “evidence in this matter is
insufficient to establish that Rep. Greene, having ‘previously taken
whomsoever, except Senators and Representatives of the
thirty-sixth and thirty-seventh Congresses, officers in the
judicial, military, and naval service of the United States, heads
of departments, and foreign ministers of the United States.
Act of May 22, 1872, ch. 193,
17 Stat. 142 (1872).
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22-11299 Branch, J., Concurring 5
an oath as a member of Congress . . . to support the Constitution
of the United States . . . engaged in insurrection or rebellion against
the same, or [gave] aid or comfort to the enemies thereof’ under
the [Fourteenth] Amendment to the Constitution” and holding
that Rep. Greene “is qualified to be a candidate for Representative
for Georgia’s 14th Congressional District.” 2 Secretary
Raffensperger subsequently adopted the ALJ’s findings of law and
fact.
On July 25, 2022, while this appeal was pending, the
Superior Court of Fulton County affirmed Secretary
Raffensperger’s decision,3 and the Supreme Court of Georgia
denied the Challengers’ application for discretionary review of the
superior court’s decision on September 1, 2022.
II. Standard of Review
This Court reviews a district court’s denial of a preliminary
injunction for abuse of discretion and its conclusions of law de
novo. LaCroix v. Town of Fort Myers Beach, Fla.,
38 F.4th 941,
946 (11th Cir. 2022).
2
Although Rep. Greene raised constitutional arguments against the state
proceeding itself, the ALJ did not address them.
3
The Superior Court of Fulton County similarly declined to address Rep.
Greene’s arguments about the unconstitutionality of the state proceeding.
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6 Branch, J., Concurring 22-11299
III. Analysis
I conclude that the district court erred in denying Rep.
Greene preliminary injunctive relief.
To obtain a preliminary injunction, Rep. Greene had to
show: (1) a substantial likelihood of success on the merits; (2) that
if relief is not granted, she will suffer irreparable injury; (3) that the
threatened injury outweighs the harm the injunction would cause
the opposing party; and (4) that the injunction is not adverse to the
public interest. KH Outdoor, LLC v. City of Trussville,
458 F.3d
1261, 1268 (11th Cir. 2006). The district court decided this case on
the first factor—concluding that Rep. Greene could not show a
substantial likelihood of success on the merits because, among
other reasons, she failed to convince the district court that the State
lacked authority to enforce an “existing disqualification within the
text of the Constitution.” It did not reach the remaining injunctive
relief factors.
On appeal, Rep. Greene asserts that the district court erred
because the Challenge Statute is unconstitutional both facially and
as applied to her because the State is exceeding its power to
regulate the time, place, and manner of elections and usurping the
U.S. House’s role, as provided in Article I, § 5 of the U.S.
Constitution, as the final arbiter of the qualifications of its
members. The State Defendants respond that the Georgia
challenge process is constitutional under the State’s authority to
regulate the time, place, and manner of elections under Article I,
§ 4 of the U.S. Constitution. And the Challengers assert that the
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22-11299 Branch, J., Concurring 7
State is merely enforcing an existing constitutional qualification—
i.e., § 3 of the Fourteenth Amendment to the U.S. Constitution.
I start with the first factor—whether Rep. Greene has shown
a substantial likelihood of success on the merits. Before the district
court, she did.
The Constitution divides authority to regulate
congressional elections between the states and the federal
government. Article I, § 2 of the U.S. Constitution sets forth the
qualifications for anyone wanting to serve in the U.S. House: “[n]o
Person shall be a Representative who shall not have attained to the
Age of twenty five Years, and been seven Years a Citizen of the
United States, and who shall not, when elected, be an Inhabitant of
that State in which he shall be chosen.” U.S. Const. art. I, § 2, cl. 2.
Article I, § 5, in turn, specifies that Congress judges whether a
person satisfies those qualifications: “Each House shall be the Judge
of the Elections, Returns and Qualifications of its own Members.”
U.S. Const. art. I, § 5, cl. 1. Meanwhile, the Constitution empowers
the states to regulate the “Times, Places and Manner of holding
Elections” for the U.S. House and Senate. U.S. Const. art. I, § 4
(“Elections Clause”). But as the Supreme Court explained in U.S.
Term Limits, Inc. v. Thornton, the states’ power to regulate the
“Times, Places and Manner of holding Elections” does not include
the power to add to the existing constitutional qualifications for
congressional office.
514 U.S. 779, 783–827 (1995). When states
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8 Branch, J., Concurring 22-11299
add qualifications, they exceed their authority under Article I, § 4.4
Id.
Underlying the challenge to Rep. Greene’s candidacy under
Georgia law, § 3 of the Fourteenth Amendment to the U.S.
Constitution—which was ratified in 1868, three years after the Civil
War—provides:
No person shall be a Senator or 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
4
The Supreme Court in Term Limits invalidated an Arkansas constitutional
amendment barring three-term representatives from appearing on the ballot.
514 U.S. at 828–38. The Arkansas Attorney General argued that the term limit
amendment was not a legal bar on service in Congress because it did not
preclude incumbents from running as write-in candidates, and was therefore
not an additional qualification but a permissible ballot access regulation.
Id.
at 828. The Supreme Court rejected this argument. Declining to provide a
comprehensive definition of “qualifications,” the Court held that the term-
limit amendment was an “indirect attempt to accomplish what the
Constitution prohibits Arkansas from accomplishing directly” and that such
“an amendment with the avowed purpose and obvious effect of evading the
requirements of the Qualifications Clauses by handicapping a class of
candidates cannot stand.”
Id. at 829, 831.
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22-11299 Branch, J., Concurring 9
enemies thereof. But Congress may by a vote of two-
thirds of each House, remove such disability.
U.S. Const. amend. XIV, § 3.
In essence, the parties were asking the district court to
determine whether the State of Georgia can keep a candidate for
U.S. House off the ballot pursuant to § 3 of the Fourteenth
Amendment to the U.S. Constitution if it determines the candidate
“having previously taken an oath . . . to support the Constitution
of the United States . . . engaged in insurrection or rebellion against
the” United States. The district court determined that the State
could do so, explaining that § 3 is “an existing provision enshrined
in the Fourteenth Amendment” and that the Challenge Statute’s
process enforces a “legitimate interest . . . to ensure that candidates
meet the threshold requirements for office and will therefore not
be subsequently disqualified, thereby causing the need for new
elections.” The district court erred in reaching that conclusion.
Although no case comprehensively delineates between a
state’s permissible election regulation and an impermissible
qualification, the Supreme Court has provided some guidance. In
Term Limits, the Court explained that states are “entitled to adopt
generally applicable and evenhanded restrictions that protect the
integrity and reliability of the electoral process itself” and that it
had upheld election regulations that “regulated election
procedures and did not even arguably impose any substantive
qualification rendering a class of potential candidates ineligible for
ballot position.”
514 U.S. at 834–35 (quotations omitted); see also
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10 Branch, J., Concurring 22-11299
Storer v. Brown,
415 U.S. 724, 733–35, 746 n.16 (1974) (rejecting a
challenge to a California Elections Code requirement that
independent candidates not be affiliated with a political party one
year before the primary, reasoning that it was “expressive of a
general state policy aimed at maintaining the integrity of the
various routes to the ballot” and was no more an additional
qualification for office than requiring a candidate to “win the
primary to secure a place on the general election ballot or
otherwise demonstrate substantial community support”);
Cartwright v. Barnes,
304 F.3d 1138, 1139 (11th Cir. 2002)
(upholding Georgia’s requirement that a candidate obtain the
signatures of 5% of registered voters as an election procedure, not
a qualification, and explaining that states may enact rules “merely
regulat[ing] the manner of holding elections” but they may not
“impose[] [a] substantive qualification on a class of potential
candidates for office”). So the states can regulate election
procedures, but when they impose a “substantive qualification
rendering a class of potential candidates ineligible for ballot
position,” they exceed their authority under Article I, § 4.
Turning to this case, in purporting to assess Rep. Greene’s
eligibility under the rubric of § 3 of the Fourteenth Amendment to
the U.S. Constitution, Georgia imposed a substantive qualification
on her. The State was not merely, as the district court incorrectly
concluded, enforcing the preexisting constitutional disability in § 3.
Instead, the State Defendants, acting under the Challenge Statute,
forced Rep. Greene to defend her eligibility under § 3 to even
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22-11299 Branch, J., Concurring 11
appear on the ballot pursuant to a voter challenge to her
candidacy—thereby imposing a qualification for office that
conflicts with the constitutional mechanism contained in § 3. 5 In
other words, by requiring Rep. Greene to adjudicate her eligibility
under § 3 to run for office through a state administrative process
without a chance of congressional override, the State imposed a
qualification in direct conflict with the procedure in § 3—which
provides a prohibition on being a Representative and an escape
hatch. 6
In so doing, the State exceeded its authority under Article I,
§ 4 and invaded Congress’s role to judge its members’
qualifications under Article I, § 5. “[T]he Framers understood the
Elections Clause as a grant of authority to issue procedural
regulations, and not as a source of power to dictate electoral
outcomes, to favor or disfavor a class of candidates, or to evade
important constitutional restraints.” Term Limits,
514 U.S. at 833–
5
The Court in Term Limits declined to address whether § 3 of the Fourteenth
Amendment constituted a “qualification” for office or whether the
qualifications enumerated in Article I, § 2 were exclusive, explaining that
“[b]ecause those additional provisions are part of the text of the Constitution,
they have little bearing on whether . . . the States may add qualifications to
those that appear in the Constitution.”
514 U.S. at 787 n.2. I similarly offer no
analysis on whether § 3 constitutes a qualification.
6
Critically, an individual who would otherwise be barred by § 3 may still hold
office if Congress removes § 3’s disability by a vote of two-thirds of each
House. U.S. Const. amend. XIV, § 3 (“But Congress may by a vote of two-
thirds of each House, remove such disability.”).
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12 Branch, J., Concurring 22-11299
34 (emphasis added). The Supreme Court has distinguished
between impermissible substantive qualifications that could
handicap a class of candidates and permissible procedural
regulations that, for example, “demonstrate substantial
community support.” Cartwright,
304 F.3d at 1143–44 (quotations
omitted) (emphasis removed). The State’s application of the
Challenge Statute to Rep. Greene to determine her eligibility to
appear on the ballot—which was far from a “generally applicable
and evenhanded” procedural determination and was untethered
from any community support in the electoral process—falls in the
first category. Term Limits,
514 U.S. at 834–35 (explaining that
Supreme Court decisions upholding election procedures “did not
involve measures that exclude candidates from the ballot without
reference to the candidates’ support in the electoral process”); see
also Cartwright,
304 F.3d at 1144 (distinguishing between
unconstitutional substantive qualifications and permissible
election procedures that require candidates to show a threshold of
community or voter support to maintain the integrity and
regularity of the electoral process). In sum, rather than merely
imposing an election procedure, the State’s pre-election
adjudication under the Challenge Statute was an “effort to dress
eligibility to stand for Congress in ballot access clothing.” Term
Limits,
514 U.S. at 829 (quotations omitted). Accordingly, at the
time of her hearing before the district court, Rep. Greene had
shown a substantial likelihood of success on the merits.
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22-11299 Branch, J., Concurring 13
Turning to the next factor, in her motion for a preliminary
injunction, Rep. Greene argued that she would be irreparably
harmed by the unconstitutional enforcement of the Challenge
Statute—which would violate her constitutional rights—and, if the
challenge succeeded, would prevent her from running for
Congress.
Rep. Greene satisfied this factor when she filed her federal
complaint and motion for preliminary relief on April 1, 2022. At
that time, the administrative hearing was still three weeks away.
Indeed, when the district court issued its decision denying Rep.
Greene a preliminary injunction on April 18, the hearing before the
ALJ was still four days away. Before the hearing took place, Rep.
Greene surely faced a risk of irreparable harm in having to defend
herself in proceedings that carried the risk that the State
Defendants would act outside the Constitution and strike her from
the ballot, purportedly under § 3 of the Fourteenth Amendment.
Given the timing of the federal litigation, the district court was
well-positioned to obviate the risk of harm faced by Rep. Greene
by issuing a preliminary injunction.
Turning to the last two factors, Rep. Greene was also
required to show that the threatened injury outweighed the harm
that the injunction would cause the opposing party and that the
injunction was not adverse to the public interest. KH Outdoor,
458
F.3d at 1268. At the time of her district court proceedings, she
satisfied both. Because the enforcement of § 3 of the Fourteenth
Amendment through the Challenge Statute to Rep. Greene is
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14 Branch, J., Concurring 22-11299
unconstitutional, enjoining such enforcement would not have
been adverse to the public interest. The public “has no interest in
enforcing an unconstitutional law.” Scott v. Roberts,
612 F.3d
1279, 1297 (11th Cir. 2010). And the equities did not favor
thwarting the will of the voters through an unconstitutional
proceeding.
Accordingly, because Rep. Greene met her burden on all
four factors during her district court proceedings, she was entitled
to preliminary injunctive relief, and the district court erred by
concluding otherwise.
