James Hall . Secretary, State of Alabama

Case: 16-16766 Date Filed: 08/29/2018 Page: 1 of 50
[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
_______________________
No. 16-16766
________________________
D.C. Docket No. 2:13-cv-00663-MHT-TFM
JAMES HALL,
Plaintiff-Appellee,
versus
SECRETARY, STATE OF ALABAMA,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Alabama
_________________________
(August 29, 2018)
Before WILLIAM PRYOR, JILL PRYOR, and ANDERSON, Circuit Judges.
ANDERSON, Circuit Judge:
Under Alabama law, independent candidates for political office may obtain
ballot access, meaning the right to have their name listed on the election ballot, by
Case: 16-16766 Date Filed: 08/29/2018 Page: 2 of 50
filing a petition signed by at least “three percent of the qualified electors who cast
ballots for the office of Governor in the last general election for the state, county,
district, or other political subdivision in which the candidate seeks to qualify.” Ala.
Code. § 17-9-3(a)(3). In Swanson v. Worley, 490 F.3d 894 (11th Cir. 2007), this
Court held that Alabama’s 3% signature requirement for ballot access is
constitutional as applied during a regular election cycle. Id. at 912.
On December 17, 2013, Alabama held a special election to fill a vacancy in
its First United States House of Representatives District. Appellee James Hall ran
as an independent candidate in that election. Due to Hall’s failure to meet the 3%
signature requirement, Hall’s name did not appear on the special election ballot.
Hall sued Appellant, the Alabama Secretary of State, pursuant to 42 U.S.C. § 1983,
claiming that the 3% requirement as applied during the special election violated his
First and Fourteenth Amendment rights.1
After denying Hall’s motion for a preliminary injunction (in large part
because Hall had not shown a substantial likelihood of success on the merits and
1
Plaintiff-below N.C. “Clint” Moser, Jr. also brought First and Fourteenth Amendment
claims in the district court. The district court dismissed Moser’s claims as moot, and Moser did
not appeal. Plaintiffs also initially brought Equal Protection Clause and Fifteenth Amendment
claims. The district court granted summary judgment in favor of the Secretary on Plaintiffs’
Equal Protection Clause claims and found that Plaintiffs waived their Fifteenth Amendment
claims. Neither Hall nor Moser appealed those decisions.
2
Case: 16-16766 Date Filed: 08/29/2018 Page: 3 of 50
because ballots had already been mailed in accordance with the Uniformed and
Overseas Citizens Absentee Voting Act), the district court granted summary
judgment in favor of Hall, issuing a declaratory judgment that Alabama’s 3%
signature requirement for ballot access violates the First and Fourteenth
Amendments when enforced during any off-season special election for a U.S.
House of Representatives seat in Alabama, for which: “(a) the vacancy is
announced less than 124 days prior to the petition deadline and (b) the date of the
special election is announced less than 57 days prior to the petition deadline.”
Appellant, the Secretary, brings this appeal. Appellant argues that: (1) the case is
moot; and, alternatively, (2) Alabama’s 3% signature requirement is constitutional
in the specific circumstances challenged by Hall. As discussed below, we conclude
that this case is moot. Thus, we do not address the constitutionality of Alabama’s
3% signature requirement as applied during the special election circumstances
presented here.
I.
“Mootness is a question of law, which this court reviews de novo.” Via Mat
Int’l S. Am. Ltd. v. United States, 446 F.3d 1258, 1262 (11th Cir. 2006). “The
doctrine of mootness derives directly from the [Article III] case-or-controversy
limitation because ‘an action that is moot cannot be characterized as an active case
3
Case: 16-16766 Date Filed: 08/29/2018 Page: 4 of 50
or controversy.’” Al Najjar v. Ashcroft, 273 F.3d 1330, 1335 (11th Cir. 2001) (per
curiam) (quoting Adler v. Duval Cty. Sch. Bd., 112 F.3d 1475, 1477 (11th Cir.
1997)). “[A] case is moot when it no longer presents a live controversy with
respect to which the court can give meaningful relief.” Id. at 1336 (quoting Fla.
Ass’n of Rehab. Facilities, Inc. v. Fla. Dep’t of Health and Rehab. Servs., 225 F.3d
1208, 1216–17 (11th Cir. 2000)). “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.
There is an exception to the mootness doctrine for cases that are “capable of
repetition, yet evading review.” S. Pac. Terminal Co. v. Interstate Commerce
Comm’n, 219 U.S. 498, 515, 31 S. Ct. 279, 283, 55 L. Ed. 310 (1911) “[I]n the
absence of a class action, the ‘capable of repetition, yet evading review’ doctrine
[i]s limited to the situation where two elements combine[]: (1) the challenged
action [i]s in its duration too short to be fully litigated prior to its cessation or
expiration, and (2) there [i]s a reasonable expectation that the same complaining
party w[ill] be subjected to the same action again.”2 Weinstein v. Bradford, 423
2
For the reasons discussed below, we reject Hall’s argument that the Supreme Court has
dispensed with the requirement that the same complaining party will be subject to the same
action again.
4
Case: 16-16766 Date Filed: 08/29/2018 Page: 5 of 50
U.S. 147, 149, 96 S. Ct. 347, 349, 46 L. Ed. 2d 350 (1975) (per curiam); Arcia v.
Fla. Sec’y of State, 772 F.3d 1335, 1343 (11th Cir. 2014) (adopting the same two-
prong test). “The remote possibility that an event might recur is not enough to
overcome mootness, and even a likely recurrence is insufficient if there would be
ample opportunity for review at that time.” Al Najjar, 273 F.3d at 1336.
“The ‘capable of repetition, yet evading review’ doctrine, in the context of
election cases, is appropriate when there are ‘as applied’ challenges as well as in
the more typical case involving only facial attacks.” Storer v. Brown, 415 U.S.
724, 737 n.8, 94 S. Ct. 1274, 1282 n.8, 39 L. Ed. 2d 714 (1974). Regarding the
application of the exception to as-applied challenges, the plaintiff need not show
that every “legally relevant” characteristic in the case will recur. See Fed. Election
Comm’n v. Wis. Right To Life, Inc., 551 U.S. 449, 463, 127 S. Ct. 2652, 2663,
168 L. Ed. 2d 329 (2007). Rather, it is sufficient that there is a reasonable
expectation that “materially similar” circumstances will recur. See id. at 463–64,
127 S. Ct. at 2663 (holding that the plaintiff’s challenge to a law making it a crime
to run ads mentioning political candidates within a certain number of days before
an election was not moot based on the plaintiff’s assertion that it intended to run
“‘materially similar’ future targeted broadcast ads mentioning a candidate” before
future elections (citation omitted)).
5
Case: 16-16766 Date Filed: 08/29/2018 Page: 6 of 50
II.
To determine whether this case is capable of repetition, we confine our
inquiry to whether there is a reasonable expectation that Hall will be faced with
meeting the 3% ballot-access requirement during an Alabama special election for a
U.S. House seat. The scope of the relief sought by Hall, and the relief granted by
the district court, was thus limited. Moreover, meeting the 3% requirement for an
office other than a U.S. House seat could require Hall to collect a materially
different number of signatures than the number that he was required to collect in
2013. Thus, a special election for an office other than a U.S. House seat would not
subject Hall to the same or a materially similar action to the action that he faced in
2013. We must therefore determine whether there is a reasonable expectation that
Hall will have an opportunity during his life to run or vote in a special election for
a U.S. House seat in Alabama. We conclude that there is not.
Hall resides in Alabama’s First House District and there is no indication that
he intends to move. Before 2013, the last special election in Alabama’s First House
District was in 1935. Although it is possible that there will be an unexpected
vacancy in Alabama’s First House District during Hall’s life, reasonable
expectation requires more than a theoretical possibility. Similarly remote is the
possibility that Hall will run or vote in a special election for another Alabama
6
Case: 16-16766 Date Filed: 08/29/2018 Page: 7 of 50
House seat. The record indicates that, recently, special elections for any U.S.
House seat in Alabama have occurred only about every twenty years. 3 Hall
contends that he wants to run in any special election for a U.S. House seat in
Alabama regardless of his residence. But, as more fully discussed below, the
prospect of Hall running to represent a district in which he does not live is far-
fetched. And Hall can only vote in the district in which he resides. Given the
infrequency and unpredictable nature of special elections for U.S. House seats, it is
unreasonable to expect Hall to move to another Alabama district at a time that
allows him to run or vote in such an election in that district. See Murphy v. Hunt,
455 U.S. 478, 482, 102 S. Ct. 1181, 1183–84, 7 L. Ed. 2d 353 (1982) (per curiam)
(“The Court has never held that a mere physical or theoretical possibility was
sufficient to satisfy the [capable-of-repetition] test . . . .”); Al Najjar, 273 F.3d at
1336. Thus, this case does not satisfy the second prong of the capable-of-
repetition-yet-evading-review exception to mootness. There is no reasonable
3
Alabama has held special elections for U.S. House seats in 1941, 1944, 1947, 1972,
1989, and 2013. Based on the fact that Alabama has held six special elections for U.S. House
seats since 1941, the dissent suggests that special elections for U.S. House seats in Alabama have
historically occurred approximately every twelve years. Since 1947, however, special elections
for U.S. House seats in Alabama have occurred with intervals over twenty years. In any event,
the frequency of special elections in Alabama House seats is such that it will likely be a long
time before the next one.
7
Case: 16-16766 Date Filed: 08/29/2018 Page: 8 of 50
expectation that Hall, the same complaining party, will again be subject to the
Alabama 3% requirement as an independent candidate or voter in a special election
for a U.S. House seat.
III.
We recognize that some of the Supreme Court’s early election law cases
suggest that the same complaining party rule may apply in a rather relaxed manner
in the context of election cases. See Storer, 415 U.S. at 737 n.8, 94 S. Ct. at 1282
n.8. In Storer, the Supreme Court addressed several challenges to California’s
election laws as applied during a regular election cycle. Id. at 727, 94 S. Ct. at
1277. For example, California law barred independent candidates from gaining
ballot access if the candidate had been affiliated with a political party within the
previous twelve months. Id. at 726, 94 S. Ct. at 1277. Two of the challengers,
Storer and Frommhagen, sought to run as independent candidates for California’s
Sixth and Twelfth Congressional Districts in the 1972 election. Id. at 727 n.3, 94 S.
Ct. at 1278 n.3. They were barred from obtaining ballot access because both had
been registered Democrats until early 1972. Id. at 728, 94 S. Ct. at 1278.
Before reaching the merits of their challenge, the Court found that the case
was not moot because “the issues properly presented, and their effects on
independent candidacies, will persist as the California statutes are applied in future
8
Case: 16-16766 Date Filed: 08/29/2018 Page: 9 of 50
elections.” Id. at 737 n.8, 94 S. Ct. at 1282 n.8. The Court did not explicitly
address whether there was a reasonable expectation that Storer, Frommhagen, or
any of their supporters would be subjected to the same action again. The Storer
opinion did not address whether these candidates expressed their intent to change
their affiliation again in the future or their intention to run again as independent
candidates and seek ballot access. Nevertheless, the Supreme Court addressed the
merits of the case, recognizing that “[t]he construction of the statute, an
understanding of its operation, and possible constitutional limits on its application,
will have the effect of simplifying future challenges” to California’s election laws.
Id. The Storer opinion also involved two other challengers, Hall and Tyner,
members of the Communist Party, who sought ballot access to run as independent
candidates for President and Vice President of the United States. Id. at 727–28, 94
S. Ct. at 1278. The Supreme Court addressed the merits of their challenge also. Id.
at 738, 94 S. Ct. at 1283.
The instant case, however, is materially different than Storer. Storer
addressed ballot access restrictions during a regular election cycle. Thus, the issue
presented in that case would almost certainly repeat every few years, presenting the
Storer politicians with repeated opportunities to run. In stark contrast, the issue
presented by Hall will not repeat during every election cycle in Alabama. Rather,
9
Case: 16-16766 Date Filed: 08/29/2018 Page: 10 of 50
the record indicates that, with this particular U.S. House seat, the last special
election was in 1935, and the record indicates that, recently, a special election for
any U.S. House seat in Alabama has occurred only about every twenty years. The
issue presented in this case will therefore recur, if at all, with far less frequency
than the issue presented in Storer and other cases that involve challenges to
election laws as applied during regular election cycles. Given this distinction, the
application of the same complaining party rule in ordinary election law cases has
limited import here.
IV.
It is true that the language used by Storer—i.e., that the case was not moot
because the “effects [of the challenged burdens] on independent
candidacies . . . will persist as the California statutes are applied in future
elections,” id. at 737 n.8, 94 S. Ct. at 1282 n.8—could be construed to suggest that
the Court was dispensing with any requirement that the same complaining party
will be subject to the same action again. Relying on Storer, Hall argues that the
same complaining party rule does not apply in the context of election cases. For
several reasons, we reject Hall’s argument; we do not believe Storer should be
construed as dispensing with the same complaining party rule.
10
Case: 16-16766 Date Filed: 08/29/2018 Page: 11 of 50
First, Storer is consistent with a relaxed application of the same complaining
party rule. The Court did not explicitly address whether the four challengers would
again seek to run as independent candidates and run afoul of the restriction that
kept them off of the ballot, but it is not unreasonable to expect that politically
active persons, like the challengers, would do so in another general election. As
indicated below, cases construing the boundaries of the relaxation of the same
complaining party rule in election cases do not always require affirmative proof
that the same complaining party intends to continue similar participation in
political activities and challenge again the restriction at issue; rather, the cases
require only that there be a reasonable expectation under all the circumstances that
the same complaining party will continue such activities and again be subject to the
challenged restriction.
A second reason that we do not believe that Storer dispensed with the same
complaining party rule is as follows. Supreme Court cases after Storer have
consistently applied the same complaining party rule in evaluating whether a case
falls within the capable-of-repetition-yet-evading-review exception to mootness.
DeFunis v. Odegaard, 416 U.S. 312, 314, 319–20, 94 S. Ct. 1704, 1705, 1707, 40
L. Ed. 2d 164 (1974) (per curiam) (holding that the plaintiff’s challenge to the law
school’s admission procedure was moot because the plaintiff, who “brought the
11
Case: 16-16766 Date Filed: 08/29/2018 Page: 12 of 50
suit on behalf of himself alone, and not as the representative of any class,” was
enrolled at the law school and would “complete his law school studies at the end of
the term for which he [was] registered regardless of any decision th[e] Court might
reach on the merits of th[e] litigation”); Richardson v. Ramirez, 418 U.S. 24, 36,
94 S. Ct. 2655, 2662, 41 L. Ed. 2d 551 (1974) (recognizing in the election law
context that “if the case were limited to the named parties alone, it could be
persuasively argued that there was no present dispute on the issue of the right to
register [to vote] between the three named individual respondents in this Court and
the one named petitioner here” but holding that the case was not moot because the
“individual named plaintiffs brought their action in the Supreme Court of
California on behalf of themselves and all other ex-felons similarly situated”);
Sosna v. Iowa, 419 U.S. 393, 399, 95 S. Ct. 553, 557, 42 L. Ed. 2d 532 (1975)
(holding that the case was not moot because the plaintiff represented a certified
class but opining, “If appellant had sued only on her own behalf, both the fact that
she now satisfies the one-year residency requirement and the fact that she has
obtained a divorce elsewhere would make this case moot and require dismissal.”);
Weinstein, 423 U.S. at 149, 96 S. Ct. at 349 (holding that the plaintiff’s challenge
to North Carolina’s parole procedures was moot because the plaintiff had been
paroled and stating, “Sosna decided that in the absence of a class action, the
12
Case: 16-16766 Date Filed: 08/29/2018 Page: 13 of 50
‘capable of repetition, yet evading review’ doctrine was limited to the situation
where two elements combined: (1) the challenged action was in its duration too
short to be fully litigated prior to its cessation or expiration, and (2) there was a
reasonable expectation that the same complaining party would be subjected to the
same action again.”); Neb. Press Ass’n v. Stuart, 427 U.S. 539, 547, 96 S. Ct.
2791, 2797, 49 L. Ed. 2d 683 (1976) (holding that the case was not moot because
the dispute between the state and the Nebraska Press Association, among others,
regarding a restraining order on the press during a criminal trial was capable of
repetition); Ill. State Bd. of Elections v. Socialist Workers Party, 440 U.S. 173,
187–88, 99 S. Ct. 983, 992, 59 L. Ed. 2d 230 (1979) (applying the Weinstein two-
prong test and determining that the State Board’s challenge to the Chicago Board’s
unilateral settlement regarding a 1977 special mayoral election in Chicago was
moot because the Chicago Board’s entry into the settlement was not “a policy it
had determined to continue,” “a consistent pattern of behavior,” or “a matter of
statutory prescription”); Murphy, 455 U.S. at 482–84, 102 S. Ct. at 1183–84
(quoting the Weinstein two-prong test and holding that the case was moot because
there was “no reason to believe that [the plaintiff] Hunt w[ould] once again be in a
position to demand bail before trial”); Honig v. Doe, 484 U.S. 305, 319–20, 108 S.
Ct. 592, 602, 98 L. Ed. 2d 686 (1988) (holding that the challenge to the school
13
Case: 16-16766 Date Filed: 08/29/2018 Page: 14 of 50
district’s rule allowing the unilateral exclusion of disabled children for dangerous
or disruptive conduct was not moot as to one of the plaintiffs because there was a
reasonable expectation that that plaintiff “would once again be subjected to a
unilateral ‘change in placement’ for conduct growing out of his disabilities”);
Meyer v. Grant, 486 U.S. 414, 417 n.2, 108 S. Ct. 1886, 1890 n.2, 100 L. Ed. 2d
425 (1988) (applying the Weinstein two-prong test in the election law context and
holding that the case was not moot where the proponents of a ballot initiative
continued to advocate for its adoption); Int’l Org. of Masters, Mates & Pilots v.
Brown, 498 U.S. 466, 473, 111 S. Ct. 880, 885, 112 L. Ed. 2d 991 (1991) (holding
in the context of union elections that the individual plaintiff’s challenge to a union
election rule was not moot “even though respondent’s campaign literature has been
distributed and even though he lost the election by a small margin,” and noting that
“[r]espondent has run for office before and may well do so again”); Norman v.
Reed, 502 U.S. 279, 288, 112 S. Ct. 698, 705, 116 L. Ed. 2d 711 (1992) (holding in
the election law context that a challenge to the petitioners’ ability to appear on the
1990 ballot under the Harold Washington Party name was not moot even though
the 1990 election had passed because “[t]here would be every reason to expect the
same parties to generate a similar, future controversy subject to identical time
constraints”); Wis. Right To Life, Inc., 551 U.S. at 462–64, 127 S. Ct. at 2662–63
14
Case: 16-16766 Date Filed: 08/29/2018 Page: 15 of 50
(quoting the Weinstein two-prong test in the campaign ad election context and
holding that the plaintiff’s challenge to a law prohibiting targeted broadcasts within
a certain number of days before an election was not moot because the plaintiff
intended to run materially similar targeted broadcast ads before future elections);
Davis v. Fed. Election Comm’n, 554 U.S. 724, 735–36, 128 S. Ct. 2759, 2769–70,
171 L. Ed. 2d 737 (2008) (quoting the Weinstein two-prong test in the campaign
finance election law context and holding that the plaintiff’s challenge to certain
campaign contribution limits was not moot where the plaintiff made a public
statement expressing his intent to self-finance another bid for a House seat).
As the foregoing cases demonstrate, the Supreme Court has indicated
repeatedly that the capable-of-repetition-yet-evading-review exception to mootness
should be tested by the Weinstein two-pronged test (including the same
complaining party rule) in cases generally. And, particularly relevant for the instant
case, several Supreme Court cases have applied the same complaining party rule in
the election law context, as indicated in the parenthetical notations above. For
example, the Court in Meyer v. Grant sets out the two-pronged Weinstein test,
holds that both prongs are satisfied, and explains that the plaintiffs (who
challenged state law restrictions to ballot access) continued to advocate for the
adoption of the state constitutional amendment at issue and thus it was “reasonable
15
Case: 16-16766 Date Filed: 08/29/2018 Page: 16 of 50
to expect that the same controversy will recur between these two parties, yet evade
meaningful judicial review.” 486 U.S. at 417 n.2, 108 S. Ct. at 1890 n.2. The fact
that the Supreme Court has expressly found that the same complaining party rule is
satisfied in election law cases counsels against interpreting Storer as dispensing
with the rule. See also Arcia, 772 F.3d at 1343 (in the election context, this Court
applied the two-pronged Weinstein test, including the same complaining party
rule).
Finally, the Supreme Court’s other early election cases are consistent with
our interpretation of Storer. For example, in Moore v. Ogilvie, 394 U.S. 814, 89 S.
Ct. 1493, 23 L. Ed. 2d 1 (1969), independent candidates for the offices of electors
of the President and Vice President of the United States challenged an Illinois
ballot access signature requirement. Id. at 815, 89 S. Ct. at 1494. The Court held
that the case was not moot because the law would continue to control future
elections, “as long as Illinois maintains her present system as she has done since
1935.” Id. at 816, 89 S. Ct. at 1494. Although the Court did not explicitly address
the likelihood that the same independent candidates would seek to run again, there
was a reasonable expectation that they would do so, given that they were
politically active individuals who would have the opportunity to do so every four
years. Also, in Brockington v. Rhodes, 396 U.S. 41, 90 S. Ct. 206, 24 L. Ed. 2d
16
 Case: 16-16766 Date Filed: 08/29/2018 Page: 17 of 50
209 (1969) (per curiam), the Court held that the plaintiff’s ballot access challenge
was moot because the election was over and the plaintiff sought only a limited,
extraordinary remedy—“a writ of mandamus to compel the appellees to place his
name on the ballot as a candidate for a particular office in a particular election.” Id.
at 43, 90 S. Ct. at 208. The Court noted that the plaintiff did not allege that he
intended to run for office in future elections, attempt to maintain a class action, sue
on behalf of himself and independent voters, or seek a declaratory judgment. Id. at
43, 90 S. Ct. at 207–08. The Court’s recognition of the first three factors suggests
that the Court considered whether the same plaintiff would be subjected to the
same action again in this pre-Storer election law case.4
4
The final two pre-Storer election law cases on which Hall relies also fail to support his
argument that the Supreme Court has dispensed with the same complaining party rule in the
election context. These cases, Dunn v. Blumstein, 405 U.S. 330, 92 S. Ct. 995, 31 L. Ed. 2d 274
(1972) and Rosario v. Rockefeller, 410 U.S. 752, 93 S. Ct. 1245, 36 L. Ed. 2d 1 (1973), were
class actions. Dunn, 405 U.S. at 331, 92 S. Ct. at 997 (“The issue arises in a class action for
declaratory and injunctive relief brought by appellee James Blumstein.”); Rosario, 410 U.S. at
755 n.4, 93 S. Ct. at 1248 n.4 (“The present consolidated case originated in two complaints, one
by the petitioner Rosario and other named plaintiffs, on behalf of a class, and one by the
petitioner Eisner.”). As noted above, in Sosna, the Supreme Court made clear that the class
action context is different than the situation in which an individual plaintiff’s claim is moot and
not capable of repetition with regards to the individual plaintiff. Relying on Dunn and Rosario,
the Sosna Court held that the plaintiff’s class action challenge to Iowa’s durational residency
requirement to obtain a divorce was not moot even though the named plaintiff had satisfied the
requirement, obtained a divorce, and was therefore unlikely to be subjected to the same action
again. 419 U.S. at 401–02, 95 S. Ct. at 558–59. The Court observed that the class action issue
“was present in Dunn v. Blumstein, 405 U.S. 330, 92 S. Ct. 995, 31 L. Ed. 2d 274 (1972), and
was there implicitly resolved in favor of the representative of the class.” Id. at 400, 95 S. Ct. at
17
Case: 16-16766 Date Filed: 08/29/2018 Page: 18 of 50
V.
Although it is clear that the Supreme Court has not dispensed with the same
complaining party rule, several cases, multiple treatises, and several scholars have
suggested that the rule is applied in a rather relaxed manner. See 13C Charles A.
Wright, Arthur R. Miller, Edward H. Cooper, Federal Practice & Procedure
§ 3533.9 (3d ed. 2008) (“Wright & Miller”) (“Although it has not been abandoned,
the requirement that the individual plaintiff is likely to be affected by a future
recurrence of a mooted dispute has been diluted in some cases.”); 15 Moore’s
Federal Practice § 101.99 (2018) (“[T]he [capable-of-repetition] exception
generally applies only if the claim of the very same litigant will evade
review. . . . However, this standard has been relaxed in some cases . . . .”); Evan
Tsen Lee, Deconstitutionalizing Justiciability: The Example of Mootness, 105
Harv. L. Rev. 603, 623 (1992) (arguing that mootness should be considered a
prudential doctrine); Marc Rohr, Fighting for the Rights of Others: The Troubled
Law of Thirdparty Standing and Mootness in the Federal Courts, 35 U. Miami L.
558; see also United States v. Sanchez-Gomez, No. 17-312, 2018 WL 2186177, at *5 (U.S. May
14, 2018) (“The ‘fact that a putative class acquires an independent legal status once it is
certified’ was . . . ‘essential to [the] decision[ ] in Sosna.’” (alteration adopted) (quoting Genesis
Healthcare Corp. v. Symczyk, 569 U.S. 66, 75, 133 S. Ct. 1523, 1530, 185 L. Ed. 2d 636
(2013))).
18
Case: 16-16766 Date Filed: 08/29/2018 Page: 19 of 50
Rev. 393, 444 (1981) (recognizing that the Supreme Court has applied the same
complaining party rule with “leniency” in election cases).
One treatise states, “The requirement that the plaintiff show a prospect of
personal future involvement with challenged practices may be relaxed substantially
with respect to matters of apparent public interest.” Wright & Miller, supra at
§ 3533.8.3. Another opines that the rule is relaxed in cases “involving elections or
ongoing government policies.” Moore’s Federal Practice, supra at § 101.99.
Particularly regarding election cases, “[c]andidates have often been allowed to
challenge restrictions on candidacy after completion of the election immediately
involved and without any showing of plans to become involved in any future
election.” Wright & Miller, supra at § 3533.9. Our discussion above of Storer
seems to confirm some relaxation. See also Moore, 394 U.S. at 815–16, 89 S. Ct.
at 1494 (holding that the independent candidates’ challenge to Illinois’s ballot
access signature requirement was not moot without explicitly addressing the
likelihood that the same independent candidates would seek to run again); Brown,
498 U.S. at 473 & n.8, 111 S. Ct. at 885 & n.8 (stating that “[r]espondent has run
for office before and may well do so again” but also noting that the respondent was
in fact running in another union election).
19
Case: 16-16766 Date Filed: 08/29/2018 Page: 20 of 50
The Sixth Circuit case Lawrence v. Blackwell, 430 F.3d 368 (6th Cir. 2005),
illustrates this relaxed application of the same complaining party rule. Lawrence
involved an independent candidate’s challenge to Ohio’s restrictions on ballot
access in the context of a regular general election cycle. Id. at 370. The court held
that the case was not moot notwithstanding that the 2004 election at issue had
passed. Id. at 371. Applying the same complaining party rule, the court held that
the controversy was capable of repetition:
Although Lawrence has not specifically stated that he
plans to run in a future election, he is certainly capable of
doing so, and under the circumstances it is reasonable to
expect that he will do so. Neither is an explicit statement
from Shilo necessary in order to reasonably expect that in
a future election she will wish to vote for an independent
candidate who did not decide to run until after the early
filing deadline passed. The law at issue is still valid and
applicable to both Lawrence and any independent
candidate Shilo might wish to vote for in future election
years. Therefore, the controversy is capable of repetition.
Id. Thus, the Sixth Circuit has held that there is no requirement for affirmative
proof that the same complaining party intends to continue similar participation in
politics and again challenge the restriction at issue; it is sufficient that there be a
20
Case: 16-16766 Date Filed: 08/29/2018 Page: 21 of 50
reasonable expectation under the circumstances that he will again be subjected to
the challenged restriction.5
Other courts have interpreted the same complaining party rule in a similarly
relaxed manner. See Merle v. United States, 351 F.3d 92, 95 (3d Cir. 2003)
(holding that a postal worker’s challenge to a provision of the Hatch Act that
barred him from running for Congress was not moot even though the election had
passed because it was reasonable to expect the plaintiff to wish to run for office
again regardless of whether he explicitly stated his intent to do so but also
interpreting the plaintiff’s statement that he would be subject to the Hatch Act in
future elections as an indication that the plaintiff intended to run for office again);
Majors v. Abell, 317 F.3d 719, 723 (7th Cir. 2003) (holding that the plaintiff’s
challenge to a state law regarding political advertising was capable of repetition
even though the named plaintiff had not sought to run as a candidate in the next
election, stating, “[I]n an election case the court will not keep interrogating the
plaintiff to assess the likely trajectory of his political career.”); Vote Choice, Inc. v.
5
The Sixth Circuit in Lawrence, either in dicta or an alternative holding, also seemed to
dispense with the requirement of a reasonable expectation that the same complaining party be
subjected to the same restriction again. Id. at 372. To the extent that the Sixth Circuit so held, we
respectfully disagree for the reasons set forth in this opinion. In any event, the Sixth Circuit case
is distinguishable from the instant case because it involved a regular election cycle, which would
recur frequently.
21
Case: 16-16766 Date Filed: 08/29/2018 Page: 22 of 50
DiStefano, 4 F.3d 26, 37 n.12 (1st Cir. 1993) (finding a reasonable expectation that
the plaintiff “w[ould] encounter the same barrier again” where “she ha[d] not
renounced possible future candidacies,” and noting that “politicians, as a rule, are
not easily discouraged in the pursuit of high elective office”); see also Kucinich v.
Tex. Democratic Party, 563 F.3d 161, 165 (5th Cir. 2009) (holding that a challenge
to a Texas Democratic Party oath requirement was not moot even though the
plaintiff’s counsel “could not state whether his client ha[d] an intention to run for
President in the future and declined to express a belief that [the plaintiff] w[ould]
again be subject to the party’s oath requirement”); Schaefer v. Townsend, 215 F.3d
1031, 1033 (9th Cir. 2000) (relying on Dunn and holding that the plaintiff’s
challenge to a residency requirement was not moot even though the candidate
refused to disclose whether he intended to run in future elections); McLain v.
Meier, 637 F.2d 1159, 1162 n.5 (8th Cir. 1980) (holding that the plaintiff’s
challenge to state ballot access and formatting statutes was not moot without
requiring proof that the plaintiff intended to seek ballot access in future elections).6
6
To the extent that the Fifth Circuit in Kucinich, the Ninth Circuit in Schaefer, or the
Eighth Circuit in McLain suggests that the same complaining party rule does not apply at all, we
respectfully disagree, as discussed above. Cf. Kucinich, 563 F.3d at 164–65 (observing Justice
Scalia’s argument “that the Court’s treatment of election law cases differs from its traditional
mootness jurisprudence by dispensing with the same-party requirement” (citing Honig, 484 U.S.
22
 Case: 16-16766 Date Filed: 08/29/2018 Page: 23 of 50
We need not definitively decide in this case the outer boundaries of the
relaxation with respect to the application of the same complaining party rule. We
are confident that the instant case does not satisfy the same complaining party rule,
however relaxed the rule may be. In light of the history of the infrequent
occurrences of special elections in Alabama for U.S. House seats, we conclude that
it is highly unlikely that Hall will have an opportunity during his life to seek to run
or vote in a special election for a U.S. House seat in Alabama. 7 As noted above, it
is highly unlikely that there will be another special election in Hall’s own First
at 335–36, 108 S. Ct. at 611 (Scalia, J., dissenting)); Schaefer, 215 F.3d at 1033 & n.1 (finding
that the plaintiff’s challenge to the residency requirement was not moot even though the plaintiff
had satisfied the requirement and the election had already been held); McLain, 637 F.2d at 1162
n.5 (“Regardless of [the plaintiff]’s candidacy in any future election, election law controversies
tend not to become moot.”). Moreover, like the Sixth Circuit Lawrence case, Kucinich and
McLain involved challenges to election laws as applied during regular election cycles. And
although Schaefer involved a special election, the opinion suggests that the challenged residency
requirement would apply with equal or greater force during regular election cycles. 215 F.3d at
1034 n.2. Thus, the issues presented in those cases would likely recur frequently, making those
cases materially different than the instant case.
7
By focusing so intensely on Hall’s asserted intent to run in future special elections for
U.S. House seats in Alabama, the dissent ignores a critical issue in this case—i.e., whether Hall
will have an opportunity to run in such an election. Regardless of Hall’s intent, if Hall is not
likely to have the opportunity to run in a future special election for a U.S. House seat in
Alabama, there can be no reasonable expectation that he will do so.
We recognize that courts “do not always require affirmative proof that the same
complaining party intends to continue similar participation in political activities” in order to find
that the same complaining party rule is satisfied. See supra Part IV. However, the law is well
established that courts do require that there be “a reasonable expectation that the same
complaining party would be subjected to the same action again.” Weinstein, 423 U.S. at 149, 96
S. Ct. at 349. For all of the reasons discussed in this opinion, we cannot conclude that there is
such a reasonable expectation in this case.
23
Case: 16-16766 Date Filed: 08/29/2018 Page: 24 of 50
U.S. House District during his life. And we consider the prospect of Hall’s running
to represent a district in which he does not reside a mere theoretical possibility.
Even if Hall were willing to move to another district upon the announcement of a
mid-term U.S. House vacancy—and there is no suggestion that he is—the
unpredictable nature of a mid-term U.S. House vacancy would mean that Hall’s
move to the new district would be shortly before the election. Thus, Hall would
probably be considered a carpetbagger if he attempted to run in the special
election, further reducing the likelihood of his doing so. 8 Similarly unlikely is the
prospect of Hall uprooting his life and quickly moving to a new U.S. House district
in order to register and vote in a special election in that district. We therefore
conclude that this case is not capable of repetition with regards to Hall under any
reasonable application of the same complaining party rule. 9
8
The dissent’s focus on our carpetbagger comment is misplaced. The fact that Hall
would be unlikely to prevail if running in a foreign House district is just one more factor
indicating that there is no reasonable likelihood of such a race.
9
The dissent mistakenly suggests that we make a factual finding that Hall does not really
intend to run in future special elections for U.S. House seats in Alabama. To the contrary, we
hold only, as established law provides, that there must be a “reasonable expectation” that he will
run again and be subjected to the same or similar restrictions. Under the circumstances presented
here, we cannot conclude that Hall’s intent is reasonable. Running in a special election for a U.S.
House seat outside of Hall’s district would require Hall to either abruptly move or regularly
travel to another part of Alabama to campaign. Such practical difficulties along with the fact that
such an election may not occur for twenty years make the prospect of Hall running in such an
election remote regardless of Hall’s present intent.
24
Case: 16-16766 Date Filed: 08/29/2018 Page: 25 of 50
We recognize that this case presents a conflict between strong and legitimate
concerns. On the one hand, the district court’s opinion seems to us to be a
resolution of only the rights of future independent candidates seeking ballot access
in future special elections. We can perceive of no real interest on the part of Hall
because there is no remedy available to him other than the satisfaction of having
this Court tell him that he should have been allowed access to the ballot. See
Flanigan’s Enters., Inc. of Ga. v. City of Sandy Springs, 868 F.3d 1248, 1268 (11th
Cir. 2017) (en banc) (recognizing that “absent an accompanying practical effect on
the legal rights or responsibilities of the parties before us, we are without
jurisdiction to give” litigants “purely psychic satisfaction” through “judicial
validation”), cert. denied sub nom., No. 17-869, 2018 WL 1460786 (U.S. Mar. 26,
2018). Any opinion by us on the merits of this case would be nothing more than an
advisory opinion. Wholly aside from our constitutional constraint to entertain only
real cases or controversies, advisory opinions are always unwise. It is hard for a
party to devote the appropriate effort to prosecute a case that can make no real
In the dissent’s view, the constitutional issue of mootness depends entirely on a plaintiff’s
mere assertion of intent to run regardless of how unreasonable that may be. In our judgment, the
constitutional authority of a court to decide a case could not depend on so slender a read, one so
readily subject to manipulation.
25
Case: 16-16766 Date Filed: 08/29/2018 Page: 26 of 50
difference to the party; the parties’ advocacy necessarily suffers, and the Court is
left without necessary guidance.10
On the other hand, courts are understandably loathe to permit a situation in
which a governmental restriction is effectively immune from judicial review and
correction, because the duration of the restriction is too short to be fully litigated
before it expires. Fortunately, the instant case does not present a situation in which
a challenge to the Alabama restriction will always evade review. Although “the
‘mere presence of . . . allegations’ that might . . . benefit other similarly situated
individuals cannot ‘save [a litigant’s] suit from mootness once [his] individual
claims’ have dissipated,” Sanchez-Gomez, 2018 WL 2186177, at *6 (quoting
Genesis Healthcare Corp., 569 U.S. at 73, 133 S. Ct. at 1529), a litigant whose
interest extends beyond his or her own concern about access to the ballot for a
particular special election can file a class action suit that comports with the
10
To the extent that the dissent suggests that a plaintiff’s past candidacy alone is
sufficient – i.e., sufficient to satisfy the requirement that there be a reasonable expectation that
the plaintiff will run again and be subjected to the same or similar restrictions – even if it is
extremely unlikely that the plaintiff will have the opportunity to run and be subjected to the same
or similar restrictions, the dissent is in effect dispensing with any requirement that the same
complaining party will be subject to the same action again. In Part IV of our opinion, we
consider and reject this proposition. We believe that our position—rather than the dissent’s
position—is more in harmony with the cases in the Supreme Court and the other circuits.
26
Case: 16-16766 Date Filed: 08/29/2018 Page: 27 of 50
strictures of Federal Rule of Civil Procedure 23, and thus avoid mootness. Id. at
*5–6. The Supreme Court in Sosna has held that, when a suit is brought as a class
action and the district court has certified the class and found that the named
plaintiff would fairly and adequately protect the interests of the class, “[t]he
controversy may exist . . . between a named defendant and a member of the class
represented by the named plaintiff, even though the claim of the named plaintiff
has become moot” and is not capable of repetition with regards to the named
plaintiff. 419 U.S. at 402, 95 S. Ct. at 559. We believe that such a posture is much
preferable, as compared to the advisory opinion that Hall seeks, because the class
certification findings provide assurance that the class of future candidates and/or
future voters would be adequately represented by vigorous advocacy. 11 See also
Sanchez-Gomez, 2018 WL 2186177, at *6 (“[C]ourts may not ‘recognize . . . a
common-law kind of class action’ or ‘create de facto class actions at will.’”
11
The dissent expresses concern that a class action challenging Alabama’s ballot access
restrictions during a special election would also be moot and not capable of repetition with
regards to any member of the class once the election at issue had passed. We disagree. Such a
class action could likely include independent candidates and voters in all U.S. House districts in
Alabama. There is a greater likelihood of a future special election when all U.S. House seats are
in play; thus, the class would have a much stronger argument than Hall that the issue was capable
of repetition with regards to at least some members of the class.
27
Case: 16-16766 Date Filed: 08/29/2018 Page: 28 of 50
(quoting Taylor v. Sturgell, 553 U.S. 880, 901, 128 S. Ct. 2161, 2176, 171 L. Ed.
2d 155 (2013))).
For the foregoing reasons, we conclude that this case is MOOT.
Accordingly, we vacate the judgment of the district court and remand with
instructions to dismiss the case as MOOT.
VACATED and REMANDED with instructions.
28
Case: 16-16766 Date Filed: 08/29/2018 Page: 29 of 50
JILL PRYOR, Circuit Judge, dissenting:
In 2013, Congressman Jo Bonner, who represented Alabama’s First
Congressional District, announced that he would be retiring, and a special election
was called to elect the district’s next representative. James Hall, a 39-year-old
United States Marine Corps veteran, sought to run as an independent candidate in
the special election.
To be listed on the ballot, candidates had to obtain signatures from 5,938
registered voters in the district—a number equivalent to 3% of the votes cast in the
district in the last gubernatorial election. See Ala. Code § 17-9-3(a)(3). There
were only about four months between Congressman Bonner’s announcement and
the deadline for candidates to submit the required signatures. Within this relatively
brief period, Hall decided to run, created a plan for collecting signatures, and
began gathering them. Hall’s time frame was even more compressed because the
Secretary of State had no official form available for candidates to use to collect
signatures for the special election, which meant that Hall could not begin gathering
signatures until the Secretary of State approved his form. After receiving the
Secretary of State’s approval, Hall had only 106 days remaining to obtain the
signatures. He sought signatures at community events, canvassed his network of
friends and colleagues, and visited over 5,000 homes, but he was unable to collect
29
Case: 16-16766 Date Filed: 08/29/2018 Page: 30 of 50
the required number of signatures in time. As a result, Hall’s name did not appear
on the ballot for the 2013 special election.
In this appeal, Hall challenges the State of Alabama’s application of its
ballot access requirement to the 2013 special election. We previously held that
Alabama’s ballot access requirement was constitutional when applied to a
regularly scheduled election, Swanson v. Worley, 490 F.3d 894, 896-97, 903 (11th
Cir. 2007), but this appeal presents a different question: whether the ballot access
requirement is constitutional when applied to a special election for a United States
House of Representatives seat, where a candidate faces a considerably more
compressed time frame for gathering signatures. Unfortunately, the majority
avoids answering this important constitutional question by concluding—
incorrectly, in my view—that Hall’s claim is moot.
The Constitution limits our jurisdiction to actual cases or controversies. See
U.S. Const. art. III, § 2, cl. 1. We lack jurisdiction to hear a moot case—one that
“no longer presents a live controversy with respect to which the court can give
meaningful relief.” Al Najjar v. Ashcroft, 273 F.3d 1330, 1336 (11th Cir. 2001)
(internal quotation marks omitted). But even if the controversy at hand is no
longer live, we may retain jurisdiction under an exception to the mootness doctrine
that addresses circumstances in which the issue is capable of repetition yet tends to
30
Case: 16-16766 Date Filed: 08/29/2018 Page: 31 of 50
evade judicial review. Kingdomware Techs., Inc. v. United States, 136 S. Ct. 1969,
1976 (2016) (internal quotation marks omitted). This exception applies when
(1) “the challenged action is in its duration too short to be fully litigated prior to
cessation or expiration,” and (2) “there is a reasonable expectation that the same
complaining party will be subject to the same action again.” Id. (alterations
adopted) (internal quotation marks omitted). No one disagrees that the first prong
of this test is satisfied here.
The majority holds that the second prong of the test, the “same complaining
party rule,” is not satisfied here. Maj. Op. at 22. The majority concedes that in the
context of election challenges the same complaining party rule applies in a
“relaxed” manner. Id. Despite failing to identify what kind of proof is required to
satisfy the same complaining party rule in this context, the majority holds that
Hall’s proof was insufficient. See id. (“We are confident that the instant case does
not satisfy the same complaining party rule, however relaxed the rule may be.”).
And it reaches this conclusion even though Hall testified that he plans to run as an
independent candidate in a future election.
I disagree with the majority’s application of the same complaining party rule
in this case. Looking to Supreme Court precedent, I would conclude that in the
unique context of an election-related challenge, we can infer from Hall’s past
31
Case: 16-16766 Date Filed: 08/29/2018 Page: 32 of 50
candidacy alone that there is a reasonable expectation he will run as an
independent candidate in a future special election and be subject to the same ballot
access requirement. But even assuming that to satisfy the same complaining party
rule a candidate is required to submit some additional evidence of his intent to run
again, I believe Hall satisfied this burden with his testimony that he intends to run
as an independent candidate in future elections, which would include special
elections. I would hold that the case is not moot, address the merits, and affirm
based on the district court’s well-reasoned opinion. I respectfully dissent.
I. In Election Challenges, Courts Can Infer That Candidates Will Run in
Future Special Elections from the Fact That They Ran in a Previous
Special Election.
To satisfy the same complaining party rule, a plaintiff must show that “there
is a reasonable expectation” that she “will be subject to the same action again.”
Kingdomware Techs, 136 S. Ct. at 1976 (alterations adopted) (internal quotation
marks omitted). In general, this means that a plaintiff must come forward with
evidence of her future plans. But, as the majority concedes, the Supreme Court has
applied this rule less strictly in the context of election-related challenges. See
Storer v. Brown, 415 U.S. 724, 737 n.8 (1974). In this unique context, we can
infer a reasonable expectation that a candidate will run in a future election and be
32
Case: 16-16766 Date Filed: 08/29/2018 Page: 33 of 50
subject to the same challenged ballot access restriction from the fact that she
previously ran as a candidate.
The Supreme Court implicitly drew such an inference in Storer. There,
several candidates challenged a California law that barred an individual who had
recently been affiliated with a political party from being listed as an independent
candidate on an election ballot. Id. at 726-27. By the time the case made its way
to the Supreme Court, the election for which the candidates sought ballot access
had passed. Id. at 737 n.8. In addition, for some of the plaintiffs, sufficient time
had passed since they disaffiliated from their former political party that they now
were exempt from the challenged law. See id. at 726-28. The Supreme Court
nevertheless held that the case was not moot because “the issues properly
presented, and their effects on independent candidacies, will persist as the
California statutes are applied in future elections.” Id. at 737 n.8.
The Court held that the case was not moot without conducting any inquiry
into any candidate’s intent to run in a future election or the likelihood that the
candidate would be subject to the disaffiliation requirement in a future election.
See id. This was so even though at least some of the candidates would be subject
to the disaffiliation restriction in the future only if they chose to rejoin a political
party and then decided to run as an independent candidate before sufficient time
33
Case: 16-16766 Date Filed: 08/29/2018 Page: 34 of 50
had passed since their disaffiliation from the political party. See id. The absence
of any discussion about the actual likelihood of the candidates being subject to the
disaffiliation requirement in the future means the Court must have treated the fact
that the candidates had run in a past election as sufficient to establish a reasonable
likelihood that they would be subject to the challenged restriction again in the
future. See id.; see also Moore v. Ogilvie, 394 U.S. 814, 816 (1969) (concluding—
without requiring evidence that any plaintiff would run in a future election and
despite a dissent arguing that the case was moot without such evidence—that a
challenge to a ballot access requirement for independent candidates was not moot
because even though the relevant “election is over, the burden . . . remains and
controls future elections”).
Subsequent Supreme Court cases confirm that in the specific context of a
challenge to a ballot access requirement, courts can infer from the fact that a party
previously ran as a candidate a reasonable expectation that he will run in a future
election and again be subject to the challenged requirement. In Norman v. Reed, a
group of voters who were organizing a new political party challenged an Illinois
law requiring them to collect a certain number of signatures for the party to be
listed on the election ballot. 502 U.S. 279, 283-84 (1992). By the time the case
reached the Supreme Court, the election was over. Id. at 287. Yet the Supreme
34
Case: 16-16766 Date Filed: 08/29/2018 Page: 35 of 50
Court held that the case was not moot because “[t]here would be every reason to
expect the same parties to generate a similar, future controversy subject to identical
time constraints if [the Court] should fail to resolve the constitutional issues” that
arose during the first election. Id. at 288. Again, the Court reached this conclusion
without requiring evidence that the voters would try to get the party on the ballot in
future elections. Instead, it appears that the Court inferred from the voters’ past
attempt to seek ballot access that they would do so in the future. See id.; see also
Int’l Org. of Masters, Mates & Pilots v. Brown, 498 U.S. 466, 473 (1991) (holding
that union officer candidate’s challenge to union’s election rule was not moot
because the candidate “has run for office before and may well do so again,”
without addressing whether there was any evidence of the candidate’s actual intent
to run again).
I acknowledge that in other election-related cases the Supreme Court has
held that the same complaining party rule was satisfied where the plaintiffs
presented evidence that they would engage in conduct that would make them
subject to the challenged restriction in a future election. See Davis v. FEC,
554 U.S. 724, 735-36 (2008); FEC v. Wis. Right to Life, Inc., 551 U.S. 449, 463-64
(2007); Meyer v. Grant, 486 U.S. 414, 417 n.2 (1988). The Supreme Court held in
these cases that evidence of the candidate’s intent was sufficient to satisfy the same
35
Case: 16-16766 Date Filed: 08/29/2018 Page: 36 of 50
complaining party rule, but it has never held that such evidence was necessary to
satisfy the rule. Nor did the Supreme Court cast any doubt in these cases about its
decisions in Storer, Reed, or other cases in which it required no evidence of the
plaintiff’s intent to run in a future election.
The majority contends that the Supreme Court’s decision in Brockington v.
Rhodes, 396 U.S. 41 (1969) (per curiam), illustrates that a more searching inquiry
into a plaintiff’s intent to run in a future election is required. But Brockington does
not control here. In that case, a candidate challenged an Ohio ballot access law
requiring independent candidates to gather signatures from 7% of the qualified
voters in the district. Id. at 41-42. The candidate obtained signatures amounting to
a little over 1% and then petitioned in Ohio state court for a writ of mandamus
commanding the election board to certify his nominating petition as sufficient and
“to do all things necessary to place [his] name upon the ballot.” Id. at 42. He
sought no declaratory relief. Id. at 42. By the time the appeal reached the
Supreme Court, the election was over. The Court concluded that the case was
moot “in view of the limited nature of the relief sought” because with the election
over it was “now impossible to grant the [candidate] the limited, extraordinary
relief he sought in the Ohio courts.” Id. at 43-44. Because the Supreme Court’s
mootness decision in Brockington was driven by the candidate’s decision to seek
36
Case: 16-16766 Date Filed: 08/29/2018 Page: 37 of 50
only mandamus relief, the Court had no occasion to address what evidence would
be sufficient for candidates to satisfy the same complaining party rule when they
seek a declaratory judgment that a ballot access requirement is unconstitutional.
See id.
The majority also relies on the Supreme Court’s decision in Illinois State
Board of Elections v. Socialist Workers Party, 440 U.S. 173, 175-76 (1979), to
support its assertion that to satisfy the same complaining party rule candidates
must provide direct evidence of their intent regarding future elections. But that
case does not advance the majority’s position. After Chicago’s mayor died in
office, several new political parties and an independent candidate sought to be
included on the ballot for the special mayoral election. Id. at 177-78. Together
they brought a lawsuit against the Chicago Board of Elections and the State Board
of Elections challenging a state law requiring independent candidates and new
political parties to gather more than 35,000 signatures before they could be
included on the mayoral ballot. Id. Before the election occurred, the district court
permanently enjoined enforcement of the state law. The Chicago Board of
Elections and the plaintiffs then reached a settlement agreement, which the district
court incorporated into an order, that reduced the required number of signatures for
new political parties and independent candidates. Id. at 180. The State Board of
37
Case: 16-16766 Date Filed: 08/29/2018 Page: 38 of 50
Elections filed a motion to vacate the district court’s order, arguing that the
Chicago Board lacked the authority to settle the dispute without its permission. Id.
The district court denied the motion. Id. The State Board then appealed the
district court’s orders permanently enjoining enforcement of the ballot access
requirement and refusing to vacate the order incorporating the settlement
agreement. Id.
The Supreme Court affirmed the district court’s injunction, holding that the
ballot access requirement was unconstitutional. Id. at 187. Separately, the Court
held that the State Board’s challenge to the Chicago Board’s settlement authority
was moot. Id.at 187-88. The capable-of-repetition-yet-evading-review exception
to the mootness doctrine did not apply, the Court held, because there was no
“reasonable expectation” that the Chicago Board would engage in the challenged
conduct—settling litigation without the approval of the State Board—in the future.
Id. The mootness analysis in Illinois State Board of Elections addressed only
whether the Chicago Board was likely to attempt to resolve future litigation
without agreement from the State Board, not whether future candidates would be
subject to the ballot access restriction. I fail to see how the case tells us anything
about the application of the same complaining party requirement here.
38
Case: 16-16766 Date Filed: 08/29/2018 Page: 39 of 50
By requiring evidence of intent to run in a future election from a plaintiff in
Hall’s position, the majority creates a circuit split. Seven other circuits—like the
Supreme Court in Storer—have found candidate challenges not moot, despite the
election at issue having taken place, without requiring any evidence about the
candidate’s intent to run in future elections. See Kucinich v. Tex. Democratic
Party, 563 F.3d 161, 165 (5th Cir. 2009) (holding that a candidate’s challenge to a
political party’s oath requirement was not moot even though his counsel “could not
state whether his client ha[d] an intention to run . . . in the future and declined to
express a belief that [plaintiff] w[ould] again be subject to the party’s oath
requirement”); Lawrence v. Blackwell, 430 F.3d 368, 371-72 (6th Cir. 2005)
(concluding that a challenge to a ballot access requirement was capable of
repetition yet evading review even though the plaintiff had “not specifically stated
that he plan[ned] to run in a future election”); Merle v. United States, 351 F.3d 92,
94-95 (3d Cir. 2003) (concluding that there was a reasonable expectation that a
postal worker, who had sought to run for Congress but was barred by federal law
from running for partisan political office, would be subject to the challenged law
again even though he failed to allege that he intended to run in a future election);
Schaefer v. Townsend, 215 F.3d 1031, 1033 (9th Cir. 2000) (concluding that case
was not moot “without examining the future political intentions of the
39
Case: 16-16766 Date Filed: 08/29/2018 Page: 40 of 50
challenger[]”); Vote Choice, Inc. v. DiStefano, 4 F.3d 26, 37 n.12 (1st Cir. 1993)
(holding that controversy was not moot because the candidate had “not renounced
possible future candidacies, and politicians, as a rule, are not easily discouraged in
the pursuit of high elective office”); McLain v. Meier, 637 F.2d 1159, 1162 n.5
(8th Cir. 1980) (“Regardless of McLain’s candidacy in any future election, election
law controversies tend not to become moot”). The decisions of our sister circuits
uniformly reflect that “in an election case the court will not keep interrogating the
plaintiff to assess the likely trajectory of his political career.” Majors v. Abell,
317 F.3d 719, 723 (7th Cir. 2003). No circuit besides ours has taken a contrary
position.
The majority tries to distinguish Storer and the decisions from every other
circuit on the ground that these cases involved challenges to election laws or
regulations in the context of regularly scheduled elections, but this case involves a
challenge to a special election. The majority argues that because special elections
occur less frequently, we cannot look to cases applying the same complaining party
rule to regularly scheduled elections, which will reoccur with predictable
regularity. But the majority cites no authority to support its position. In the
absence of any indication from the Supreme Court or even persuasive authority
from another circuit to support it, I would not create a different standard for special
40
Case: 16-16766 Date Filed: 08/29/2018 Page: 41 of 50
elections. I would instead follow the Supreme Court’s analysis and the similar
path taken by every other circuit. I would conclude that the same complaining
party rule is satisfied in this case because there is a reasonable expectation that
Hall will be subject to Alabama’s ballot access requirement in a future special
election based on the fact that he ran as an independent candidate in a previous
special election.
II. Even if Candidates Must Prove Their Intent to Run in a Future Election
to Satisfy the Same Complaining Party Rule, Hall Has Carried This
Burden.
Even assuming the majority is correct—that to satisfy the same complaining
party rule in the context of a special election candidates must submit some
evidence of their intent to run for office, which will subject them to the challenged
requirement in the future—Hall has met this burden. The majority concludes there
is only a “theoretical possibility” that Hall would be subject to the ballot access
requirement in a future special election. Maj. Op. at 22. I disagree.
The majority so concludes because special elections for U.S. House of
Representatives seats historically have occurred too infrequently in Hall’s home
district to say that there is a reasonable expectation that one will occur again during
his lifetime. But even granting the majority that there is no reasonable expectation
that a special election will occur in Hall’s own district during his lifetime, we must
41
Case: 16-16766 Date Filed: 08/29/2018 Page: 42 of 50
consider whether a reasonable expectation exists that he will run in a future special
election for a House seat anywhere in Alabama. As a resident of Alabama, Hall is
eligible to represent any district in the State; there is no legal bar to his running for
a House seat in a district other than his home district. See U.S. Const. art. I, § 2, cl.
2. Hall’s evidence is sufficient to establish a reasonable expectation that he will
run for a House seat in a future Alabama special election (whether it is held in his
home district or another district) and thus be subject to the same ballot access
requirement.
There is no dispute that we can reasonably expect Alabama to hold a special
election for an open seat in the U.S. House of Representatives in the future. There
will be special elections when members of the House resign for various reasons: to
accept other appointments or positions (like Alabama Congressman Jo Bonner or
Georgia Congressman Tom Price), due to the fallout from public scandal (like
Ohio Congressman John Conyers or Texas Congressman Blake Farenthold), or for
personal reasons (like Pennsylvania Congressman Charlie Dent). Seats
unfortunately will become vacant when representatives die while in office (like
Mississippi Congressman Alan Nunnelee). Although we do not know when the
next such special election will occur in Alabama, we know that another vacancy
42
Case: 16-16766 Date Filed: 08/29/2018 Page: 43 of 50
will occur and need to be filled through a special election.1 Since 1941, the State
of Alabama has held six special elections for House seats, meaning special
elections historically have occurred on average once every 12 years. Given this
frequency and the fact that Hall was only 39 years old during the last special
election, we can reasonably expect a future special election for an Alabama House
seat to occur in Hall’s lifetime. The majority accepts the validity of this type of
analysis. See Maj. Op. at 6-7 (looking to historical evidence about the frequency in
Alabama of special elections for the House of Representatives to assess whether
there is a reasonable expectation of a future special election occurring in Hall’s
lifetime).
The next question is whether, for purposes of applying the same
complaining party rule, it is reasonably likely that Hall will run as an independent
candidate in such an election. Despite the fact that the Constitution permits Hall to
represent any House district in Alabama, see U.S. Const. art. I, § 2, cl. 2, the
majority concludes that Hall would not run for a seat outside his home district
because he would be viewed as a “carpetbagger” and thus would be unlikely to
1
I note that even in cases outside the election context, the Supreme Court has recognized
that to satisfy the same complaining party rule a plaintiff is not required to “establish[] with
mathematical precision the likelihood” that he will be subject to the same challenged government
action. Honig v. Doe, 484 U.S. 305, 320 n.6 (1988).
43
Case: 16-16766 Date Filed: 08/29/2018 Page: 44 of 50
win. Maj. Op. at 23. But the majority offers no authority supporting its
assumption that a candidate who lives outside a district cannot win an election
there. I cannot agree with the majority’s unsupported speculation. 2
But the probability of a candidate winning an election for a seat outside her
home district is really beside the point. As the majority acknowledges, Hall
testified that he “wants to run in any special election for a U.S. House seat in
Alabama regardless of his residence” in another district. Id. at 7. It is not our
place to reject this direct evidence, essentially making a finding of fact that he
would not do so. See Pullman-Standard v. Swint, 456 U.S. 273, 291 (1982)
(“Factfinding is the basic responsibility of district courts, rather than appellate
courts. . . .” (alteration adopted) (internal quotation marks omitted)); Norelus v.
Denny’s, Inc., 628 F.3d 1270, 1293 (11th Cir. 2010) (“[A]s everyone knows,
appellate courts may not make fact findings.”).
2
Indeed, an internet search for members of Congress who live outside the districts they
represent calls into question the majority’s assumption that candidates for House seats outside
the district where they reside cannot win elections. The results of such a search include reports
showing that in June 2017 at least 20 members of Congress were registered to vote (meaning
their official residences were located) outside the districts they were elected to represent. I
acknowledge the possibility that some of these representatives moved outside their districts after
being elected. But even accepting this possibility, the fact that representatives are willing to live
outside the districts they were elected to represent suggests that there no significant stigma
attached to it.
44
Case: 16-16766 Date Filed: 08/29/2018 Page: 45 of 50
Furthermore, the majority simply assumes that a candidate will run in an
election only if she can win. The majority’s supposition ignores that independent
and third party candidates may choose to run in elections even though they have no
realistic chance of winning. As the Supreme Court has explained, these candidates
may run not because they believe that they can win the election, but rather to use
the “election campaign [as] a means of disseminating ideas” outside those
presented by the two dominant political parties. Ill. State Bd. of Elections,
440 U.S. at 186. Hall may run as an independent candidate in a future special
election to try to introduce new political ideas and help frame the issues; I cannot
agree with the majority that Hall is unlikely to run in an election unless he can win.
By requiring Hall to show that he has a chance not only to run in a future
election, but also to win it, the majority adds an element to the same complaining
party inquiry that no other court has adopted. In every election-related Supreme
Court case discussing the evidence that did or did not satisfy the same complaining
party rule, the Court has held that the plaintiffs satisfied the rule when they
introduced a statement of intent to participate in a future election. See Davis,
554 U.S. at 736 (holding that there was a reasonable expectation that a
congressional candidate would be subject to a federal campaign finance law in the
future when he “made a public statement expressing his intent” to run for the seat
45
Case: 16-16766 Date Filed: 08/29/2018 Page: 46 of 50
in the future); see also Wis. Right to Life, Inc., 551 U.S. at 463 (concluding that
there was a reasonable expectation that an ideological organization would again be
subject to a federal law that restricted the content of its political advertisements in
the period shortly before primary and general federal elections because the
organization “credibly claimed that it planned on running materially similar future
targeted broadcast ads . . . within the blackout period”); Meyer, 486 U.S. at 417 n.2
(holding, without considering the likelihood that voters would actually approve the
initiative, that it was reasonable to expect that proponents of a ballot initiative
would be subject to a state law that prohibited paying petition circulators when,
despite the initiative’s failure, the proponents “continue[d] to advocate its adoption
and plan future attempts to obtain the signatures necessary to place the issue on the
ballot”). Not one of these cases required—or even hinted—that the plaintiffs had
to establish the likelihood that they would win (or the position they supported
would prevail) in a future election to satisfy the same complaining party
requirement. I cannot agree with the majority’s decision, which effectively adds
this additional requirement to the same complaining party rule, to go well beyond
Supreme Court precedent.
I am concerned that by imposing more stringent requirements on candidates
seeking to challenge ballot access laws, the majority’s decision will effectively
46
Case: 16-16766 Date Filed: 08/29/2018 Page: 47 of 50
close the courthouse doors to future independent and third party candidates and
voters. As an example, when the next special election for a House seat in Alabama
is held, to gain access to the ballot independent and third party candidates again
will have to satisfy an onerous signature requirement in a significantly compressed
time frame. If Hall—or any other candidate or voter in that future special
election—brings a lawsuit raising a constitutional challenge to the signature
requirement, due to the nature of such vacancies there will be very little time to
litigate the challenge before the election passes and the case becomes moot. The
plaintiff will be unable to rely on the capable-of-repetition-yet-evading-review
exception because, using the majority’s logic, there will never be a reasonable
expectation of the candidate running in another special election in his home district
(because such an election is unlikely to occur again during the plaintiff’s lifetime)
or in a special election in another district (because the plaintiff will be unlikely to
win).3
The majority acknowledges that “courts are understandably loathe to permit
a situation in which a governmental restriction is effectively immune from judicial
3
It seems to me that a candidate who was unable to gather the number of signatures
required to appear on the ballot would never be able to show that he was likely to win a future
election. The effect of the majority’s decision, then, is to insulate ballot access laws from
judicial review.
47
Case: 16-16766 Date Filed: 08/29/2018 Page: 48 of 50
review and correction, because the duration of the restriction is too short to be fully
litigated before it expires.” Maj. Op. at 25. I agree. The majority suggests, in
dicta, that its reasoning will not create such a situation because in a future special
election a candidate or voter may challenge Alabama’s ballot access requirements
in a class action. Id. at 25-26. I am far less comfortable that a class action would
provide a viable option. Under the majority’s logic, a future class action
challenging the ballot access restriction brought during the next special election
would, like Hall’s action here, become moot after the special election occurs. The
majority’s reasons for concluding there is no reasonable expectation that a special
election would occur again in Hall’s district during his lifetime likewise would
indicate that there is no reasonable expectation that a special election would occur
again in any class member’s district during her lifetime. The majority suggests
that the class could consist of independent voters and candidates in all districts in
Alabama, but it fails to explain how the claims of class members in other districts
where no special election was pending would be justiciable. 4
4
By pointing to a class action as a suitable alternative, the majority implicitly concedes
that a special election can reasonably be expected to occur in at least one House district in
Alabama during some class member’s lifetime. This argument seems to me to be contrary to the
majority’s contention that it is “extremely unlikely” that Hall would have the opportunity to run
in another special election for a House seat in the same district during his lifetime. Maj. Op. at
24 n.10.
48
Case: 16-16766 Date Filed: 08/29/2018 Page: 49 of 50
By making Alabama’s ballot access requirements, as applied in the context
of special elections, effectively immune from judicial review and correction, the
majority’s decision closes the courthouse doors to independent and third party
candidates and voters. These citizens are left with no meaningful recourse in the
courts to challenge these restrictions, even when the restrictions impose substantial
burdens on First Amendment and Fourteenth Amendment rights to vote and to
associate for political purposes. I cannot agree with the majority that we should
depart from Supreme Court precedent and the decisions of all the other circuits to
address this issue by holding that ballot access restrictions curtailing these rights—
which “rank among our most precious freedoms”—are effectively unreviewable.
Williams v. Rhodes, 393 U.S. 23, 30 (1968).
***
I would hold that the case is not moot under the capable-of-repetition-yet-
evading-review exception. There is a reasonable expectation that Hall will be
subject to Alabama’s ballot access signature requirement in a future special
election. I would draw this conclusion based solely on the fact that Hall ran as an
independent in the special election at issue here. Alternatively, even if I were to
accept the majority’s position that Hall was required to produce some evidence
showing his intention to run in a future election, I would conclude that he met his
49
Case: 16-16766 Date Filed: 08/29/2018 Page: 50 of 50
burden given his testimony that he plans to run in future elections for any open
House seat in the State of Alabama.
Because I would hold that the case is not moot, I would address on the
merits Hall’s claim that Alabama’s ballot access requirement is unconstitutional as
applied to the special election here. States certainly have “important and
compelling interests in regulating the election process and in having ballot access
requirements.” Swanson, 490 F.3d at 902 (internal quotation marks omitted). But
Alabama’s ballot access restriction “implicate[s] the constitutional rights of voters,
especially those with preferences outside the existing parties, to associate and cast
their votes effectively.” Id. Weighing these interests, I agree with the district court
that Alabama’s ballot access requirement is unconstitutional as applied in the
context of a special election for the House of Representatives when there were only
about four months between the announcement of the vacancy and the deadline for
an independent or third party candidate to submit signatures to appear on the
ballot, and the candidate was further limited to a 106-day period to collect
signatures. I would affirm the district court’s judgment.
Respectfully, I dissent.
50