Lux v. Judd

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

HERB LUX; STEPHEN CRUSE; 

ANDREW MIKEL; EUGENE FORET,

Plaintiffs-Appellants,

v.

CHARLES E. JUDD; KIMBERLY T.  No. 10-1997

BOWERS; DONALD PALMER,

members of the Virginia State

Board of Elections, in their official

capacities,

Defendants-Appellees.



Appeal from the United States District Court

for the Eastern District of Virginia, at Richmond.

Henry E. Hudson, District Judge.

(3:10-cv-00482-HEH)

Argued: May 12, 2011

Decided: July 6, 2011

Before DUNCAN and AGEE, Circuit Judges, and

David C. NORTON, Chief United States District Judge for

the District of South Carolina, sitting by designation.

Affirmed in part, reversed in part, and remanded by published

opinion. Judge Duncan wrote the opinion, in which Judge

Agee and Judge Norton joined.

2 LUX v. JUDD

COUNSEL

ARGUED: Jared Haynie, BOPP, COLESON & BOSTROM,

Terre Haute, Indiana, for Appellants. Earle Duncan Getchell,

Jr., OFFICE OF THE ATTORNEY GENERAL OF VIR-

GINIA, Richmond, Virginia, for Appellees. ON BRIEF:

James Bopp, Jr., Scott F. Bieniek, Josiah Neeley, BOPP,

COLESON & BOSTROM, Terre Haute, Indiana, for Appel-

lants. Kenneth T. Cuccinelli, II, Attorney General of Virginia,

Stephen M. Hall, Assistant Attorney General, Charles E.

James, Jr., Chief Deputy Attorney General, Wesley G. Rus-

sell, Jr., Deputy Attorney General, OFFICE OF THE

ATTORNEY GENERAL OF VIRGINIA, Richmond, Vir-

ginia, for Appellees.

OPINION

DUNCAN, Circuit Judge:

This case arises out of Herb Lux’s unsuccessful attempt to

run for Congress in Virginia’s Seventh Congressional District.

In 2010, Lux’s application for ballot placement as an indepen-

dent candidate was denied due to his failure to comply with

the state’s requirement that each petition signature in support

of his candidacy be witnessed by a district resident. Lux, and

his supporters Stephen Cruse, Andrew Mikel, and Eugene

Foret (collectively "plaintiffs"), sued representatives of the

Virginia State Board of Elections in their official capacities

(collectively "the Board"), urging that the residency require-

ment violated their First and Fourteenth Amendment rights.

The district court dismissed their complaint, relying in large

part on our analysis in Libertarian Party of Virginia v. Davis,

766 F.2d 865 (4th Cir. 1985). For the reasons described

below, we hold that the limited rationale underlying Davis has

been superseded by subsequent Supreme Court decisions, and

remand for further proceedings.

LUX v. JUDD 3

I.

A.

We briefly review the undisputed facts. Under Virginia

law, prospective independent candidates for the U.S. House of

Representatives ("the House") must file declarations of candi-

dacy with the State Board of Elections. See Va. Code Ann.

§ 24.2-505(A). Such candidates must also file petitions in

support of their inclusion on the ballot signed by 1000 "quali-

fied voters."1 Id. at § 24.2-506. At issue here is section 24.2-

506’s additional requirement that each of those signatures be

"witnessed by a person who is himself a qualified voter, or

qualified to register to vote, for the office for which he is cir-

culating the petition." Id.

In 2010, Lux tried to run as an independent candidate for

Virginia’s Seventh Congressional District’s House seat. Lux

is a Virginia resident, but did not live in the Seventh District.

As a nonresident of the Seventh District, Lux was not quali-

fied to vote in that district’s House election and was conse-

quently barred by section 24.2-506 from witnessing petition

signatures in support of his candidacy.2

Lux received and read a "candidate packet" that explained

the "qualified voter" requirement for petition witnesses. J.A.

196. However, due to "confusion" on his part, he nevertheless

personally circulated and witnessed sixty-three petitions in

1

With certain exceptions not relevant here, the Code of Virginia defines

a "qualified voter" as one who "is entitled to vote pursuant to the Constitu-

tion of Virginia and who is (i) 18 years of age on or before the day of the

election . . . (ii) a resident of the Commonwealth and of the precinct in

which he offers to vote, and (iii) registered to vote." Va. Code Ann.

§ 24.2-101.

2

Lux’s nonresident status did not affect his constitutional eligibility for

the district’s House seat, see U.S. Const. Art. I. § 2, nor does the Board

otherwise contest his statutory or constitutional qualifications for the

office.

4 LUX v. JUDD

support of his candidacy, and collected approximately 1063

signatures. Id. District residents—including Cruse, Mikel, and

Foret—circulated and witnessed an additional fifteen candi-

date petitions on Lux’s behalf, and collected a total of about

151 signatures. Lux submitted all seventy-eight petitions, as

well as his timely declaration of candidacy, to the State Board

of Elections on June 8, 2010.

On June 21, the Board sent Lux a letter informing him that,

because he did not live in the Seventh District, it would not

count any petition signatures that he had personally collected

and witnessed. The letter further noted that even if all the

remaining signatures witnessed by district residents were veri-

fied, Lux would still not meet the 1000-signature threshold

necessary to appear on the ballot. Two days later, the Board

issued a final ruling confirming that, with the petitions Lux

had witnessed excluded, he had failed to provide sufficient

signatures to qualify as a House candidate from Virginia’s

Seventh District.

B.

On July 13, 2010, plaintiffs sued the Board in the federal

district court for the Eastern District of Virginia. Their one-

count complaint alleged that section 24.2-506’s district-

residency requirement for petition witnesses violated their

rights to freedom of speech and association under the First

and Fourteenth Amendments. Plaintiffs sought a declaration

that the residency requirement was unconstitutional. They

also asked for preliminary and permanent injunctive relief

against the Board’s enforcement of the requirement, as well

as attorney’s fees.

The Board opposed plaintiffs’ request for a preliminary

injunction and, in early August, moved to dismiss their com-

plaint under Fed. R. Civ. P. 12(b)(6). Recognizing the time

constraints posed by the looming filing deadline for the

November election, the parties consolidated their motions for

LUX v. JUDD 5

preliminary relief and disposition. In late August 2010, the

district court denied plaintiffs’ motion for a preliminary

injunction and granted the Board’s motion to dismiss.

In a comprehensive memorandum decision that relied in

significant part on our decision in Davis, the district court

held that plaintiffs had failed to state a plausible claim for

relief. The district court focused in particular on Davis’s anal-

ysis of a statute that established ballot-access conditions in

presidential elections for organizations that did not qualify as

political parties under Virginia law; among these conditions

was a residency requirement for petition witnesses similar to

the provision at issue here. As the district court explained,

Davis held that that requirement passed constitutional muster,

as it served the "important purpose" of ensuring a threshold

level of popular support, by mandating at least one in-district

"activist" willing to "shoulder the burden of witnessing signa-

tures." J.A. 235 (quoting Davis, 766 F.2d at 869-70). Citing,

inter alia, "the weight of [this circuit’s] contrary jurispru-

dence," the district court found that plaintiffs could not plausi-

bly argue that the residency requirement violated their

constitutional rights. J.A. 238.

On August 27, 2010, plaintiffs timely appealed. They sub-

sequently sought injunctive relief, which we denied on Sep-

tember 15, 2010.

Plaintiffs then applied for an injunction from the U.S.

Supreme Court. On September 30, 2010, Chief Justice Rob-

erts, in his capacity as Circuit Justice for this circuit, declined

to grant relief. See Lux v. Rodrigues, 131 S. Ct. 5, 7 (2010)

(Roberts, Circuit Justice). Chief Justice Roberts acknowl-

edged that plaintiffs "may very well be correct" that Davis

had been undermined by subsequent Supreme Court deci-

sions. Id. at 6. However, given that at least one of the

Supreme Court cases on which Lux relied differentiated

between the registration requirements before it and the sort of

residency requirement applied here, the Chief Justice found

6 LUX v. JUDD

that Lux had not satisfied his burden of showing a right to

relief that was "indisputably clear." Id. at 6-7.

II.

Against that background, we turn to consideration of the

arguments presented. As a threshold matter, the Board raises

two distinct jurisdictional challenges. First, it contends that

Cruse, Mikel, and Foret lack standing, as they cannot show a

cognizable injury. Second, it urges that Lux’s own claim has

been rendered moot. We consider each argument in turn.

A.

Article III standing requires plaintiffs to demonstrate, inter

alia, "an ‘injury in fact’ that is (a) concrete and particularized

and (b) actual or imminent, not conjectural or hypothetical."

Doe v. Obama, 631 F.3d 157, 160 (4th Cir. 2011). The Board

contends that Cruse, Mikel, and Foret have not suffered a cog-

nizable injury. It specifically argues that, as district residents,

the three coplaintiffs were free to circulate petitions on Lux’s

behalf and, ultimately, to vote for him as a write-in candidate.

Plaintiffs respond that the Board’s refusal to count the peti-

tions Lux had witnessed harmed all three coplaintiffs, as they

"had worked and associated together for the very purpose of

helping their preferred candidate appear on the ballot." Reply

Br. at 11.

While we are not unsympathetic to Lux’s supporters’ frus-

tration, they cannot show they suffered any cognizable harm

arising out of the residency requirement. The Board duly

counted the signatures collected by Cruse, Mikel, and Foret,

and section 24.2-506 did not prevent them from casting write-

in votes for Lux in the congressional election. On these facts,

Lux’s coplaintiffs’ "abstract, generalized interest" in seeing

his name on the ballot cannot "meet the requirement that an

injury be concrete and particularized." Bishop v. Bartlett, 575

F.3d 419, 424 (4th Cir. 2009); see also 13A C.A. Wright, et

LUX v. JUDD 7

al., Federal Practice & Procedure § 3531.4, at 193 (3d ed.

2008) (observing that "[t]he purest reason to deny" voter

standing "is that the plaintiff is not able to show an injury to

the voter interest, however much the plaintiff may feel

offended by the challenged practice").

We are also unpersuaded by plaintiffs’ argument that

Cruse, Mikel, and Foret have third-party standing to advance

the First Amendment rights of others. Plaintiffs are correct

that "courts sometimes permit litigants to challenge a statute

‘not because their own rights of free expression are violated,

but because of a judicial prediction or assumption that the

statute’s very existence may cause others not before the court

to refrain from constitutionally protected speech or expres-

sion.’" Burke v. City of Charleston, 139 F.3d 401, 405 n.2

(4th Cir. 1998) (quoting Broadrick v. Oklahoma, 413 U.S.

601, 612 (1973)). However, Lux’s own challenge to the resi-

dency requirement thoroughly undermines plaintiffs’ asser-

tion that those potentially harmed by the statute lack incentive

or initiative to contest it directly. Indeed, as plaintiffs’ counsel

recognized at oral argument, the participation of Lux’s

coplaintiffs in this litigation has no practical impact on the

relief sought. In short, absent a concrete injury or a valid basis

to assert third-party rights, we agree that Cruse, Mikel, and

Foret lack standing to advance their claims.

B.

The Board next asserts that, with the 2010 election long

past, Lux’s own claim is moot.3 Specifically, it argues that it

is highly unlikely that Lux will mount another independent

run for Congress in a district in which he does not live and opt

to witness his own petitions. The Board elaborates that Vir-

ginia is scheduled to undergo redistricting in 2011, which, it

3

Given our determination that plaintiffs Cruse, Mikel, and Foret lack

standing, we do not address the Board’s argument that their claims are

also moot.

8 LUX v. JUDD

claims, renders the prospect of Lux living outside of the Sev-

enth Congressional District during the next congressional

election yet more remote. The Board’s claim lacks merit.

A case is moot "when the issues presented are no longer

‘live’ or the parties lack a legally cognizable interest in the

outcome." Simmons v. United Mortg. & Loan Inv., LLC, 634

F.3d 754, 763 (4th Cir. 2011). There is, however, a well-

established mootness exception for conduct "capable of repe-

tition, yet evading review." Fed. Election Comm’n v. Wisc.

Right to Life, Inc., 551 U.S. 449, 462 (2007); see also Miller

v. Brown, 503 F.3d 360, 364 n.5 (4th Cir. 2007). This excep-

tion 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 com-

plaining party will be subject to the same action again." Wisc.

Right to Life, Inc., 551 U.S. at 462. Election-related disputes

qualify as "capable of repetition" when "there is a reasonable

expectation that the challenged provisions will be applied

against the plaintiffs again during future election cycles." N.C.

Right to Life Comm. Fund for Indep. Political Expenditures

v. Leake, 524 F.3d 427, 435 (4th Cir. 2008). There is clearly

such an expectation here.

Plaintiffs’ complaint explicitly stated that Lux is "consider-

ing running in a future election for the United State[s] House

of Representatives in Virginia’s Seventh Congressional Dis-

trict." J.A. 12; cf. Leake, 524 F.3d at 435 (rejecting the propo-

sition that a former candidate qualifies for the exception "only

if the ex-candidate specifically alleges an intent to run again

in a future election"). The complaint also confirmed Lux’s

intent "to circulate his own candidate petitions" and desire to

"recruit other petition circulators, including individuals who

live outside Virginia’s Seventh Congressional District [how-

ever it may then be configured], to circulate petitions on his

behalf." J.A. 12. These statements support a reasonable

expectation that Lux will be adversely affected by the resi-

dency requirement in future elections whether or not he lives

LUX v. JUDD 9

in the Seventh District. At the very least, there is a real possi-

bility that section 24.2-506 will prevent Lux from recruiting

preferred petition circulators. As a result, Lux’s challenge fits

comfortably into the mootness exception for conduct capable

of repetition yet evading review.

III.

We proceed to the merits of Lux’s argument that the court

erred by relying on Davis to dismiss his challenge to the dis-

trict residency requirement. We review the grant of a motion

to dismiss de novo, mindful that to survive such a motion, a

complaint must "raise a right to relief" that is more than

"speculative." Coleman v. Md. Court of Appeals, 626 F.3d

187, 190 (4th Cir. 2010). Although the First Amendment pro-

tects many election-related activities, "it is also clear that

States may, and inevitably must, enact reasonable regulations

of parties, elections, and ballots to reduce election- and

campaign-related disorder." Timmons v. Twin Cities Area

New Party, 520 U.S. 351, 358 (1997); see also Buckley v. Am.

Constitutional Law Found., Inc., 525 U.S. 182, 191 (1999)

(emphasizing states’ "considerable leeway . . . with respect to

election processes"). When assessing the reasonableness of a

particular regulation, the salient question is whether "the

strength of the governmental interest . . . reflect[s] the serious-

ness of the actual burden on First Amendment rights." John

Doe No. 1 v. Reed, 130 S. Ct. 2811, 2818 (2010); see also

Anderson v. Celebrezze, 460 U.S. 780, 789 (1983).

Lux contends that the district court erred by deferring to

our reasoning in Davis when evaluating the district residency

requirement’s constitutionality. He argues in particular that

the Supreme Court’s intervening decisions in Meyer v. Grant,

486 U.S. 414 (1988), and Buckley, 525 U.S. at 182, so under-

mined Davis’s basis for sustaining the residency requirement

as to overrule that portion of our analysis.4 We agree.

4

Because we find that Meyer and Buckley superseded the basis we relied

on in Davis to sustain the residency requirement, we do not address Lux’s

additional argument that Davis is factually and legally distinguishable

from his present claim.

10 LUX v. JUDD

Ordinarily, "[a] decision of a panel of this court becomes

the law of the circuit and is binding on other panels." United

States v. Collins, 415 F.3d 304, 311 (4th Cir. 2005) (quoting

Etheridge v. Norfolk & W. Ry. Co., 9 F.3d 1087, 1090 (4th

Cir. 1993)). Nevertheless, a panel’s decision may be "over-

ruled by a subsequent en banc opinion of this court or," as rel-

evant here, "a superseding contrary decision of the Supreme

Court." Id. A Supreme Court holding that "specifically

repudiate[s] the reasoning" on which a panel relied constitutes

such contrary authority. Etheridge, 9 F.3d at 1090.

A brief review of Davis sets the stage for our assessment

of the Supreme Court’s intervening decisions. As noted

above, the statute at issue in Davis established ballot-access

requirements in presidential elections for organizations that

failed to qualify as "political parties" under Virginia law. 766

F.2d at 866 (citing Va. Code § 24.1-159 (1980)). It mandated

that such organizations secure the signatures of a threshold

number of registered voters, "including at least two hundred

voters from each congressional district" (the "distribution

requirement"). Id. It also—much like the provision at issue

here—required that those signatures be "witnessed and

attested by a qualified voter from the same congressional dis-

trict as the petition signer." Id. The Libertarian Party of Vir-

ginia challenged both requirements. Id. at 867. The district

court dismissed the Party’s complaint, and we affirmed. Id.

Our decision in Davis primarily addressed the constitution-

ality of the distribution requirement. See id. at 867-69. Indeed,

we devoted just one paragraph of our opinion to assessing the

constitutional merits of the residency provision. Id. at 869-70.

Our brief discussion of that portion of the statute first noted

that mandating that someone witness petition signatures

helped combat election fraud. Id. at 869. We then echoed the

district court’s determination that the additional requirement

that witnesses be district residents served a distinct state inter-

est, explaining:

LUX v. JUDD 11

[T]he requirement that the witness be from the same

congressional district as the petition signer serves the

important purpose of assuring "some indication of

geographic as well as numerical support" by demon-

strating "that within each congressional district there

is at least one ‘activist’ sufficiently motivated to

shoulder the burden of witnessing signatures." It is

difficult to imagine how the state could accomplish

these objectives by less restrictive means. The statute

does not limit the number of signatures that an indi-

vidual may witness nor does it require that witnesses

be members of the Libertarian Party.

Id. at 869-70 (quoting Libertarian Party of Va. v. Davis, 591

F. Supp. 1561, 1564 (E.D. Va. 1984)) (internal citations omit-

ted).

Guaranteeing sufficient in-district popular support was the

lone state interest we identified in connection with the resi-

dency requirement. See id. In the more than twenty-five years

since we decided Davis, the Supreme Court has twice consid-

ered—and on each occasion rejected as a rationale—the

importance of ensuring a threshold level of grassroots support

as a basis for restrictions on petition circulation. See Buckley,

525 U.S. at 204-05; Meyer, 486 U.S. at 426-27.

About three years after our holding in Davis, the Supreme

Court considered a Colorado law that made payment of peti-

tion circulators a felony offense.5 See Meyer, 486 U.S. at 417.

5

The Colorado restriction at issue in Meyer concerned the circulation of

petitions in support of ballot initiatives, rather than candidates. We do not

find that distinction significant here. Meyer’s apparent rejection of the

proposition that something more than a threshold signature requirement is

necessary to assure popular support is plainly applicable in the candidate

context. Cf. Krislov v. Rednour, 226 F.3d 851, 861 (7th Cir. 2000).

By the same token, we do not believe the fact that Meyer and Buckley

addressed petition circulators rather than witnesses is salient. While that

distinction may bear on the comparative intrusiveness of the measure at

issue here, it does not affect the Court’s rejection of the sole rationale,

"some indication of geographical as well as numerical support," which

underlaid the Davis residency-requirement analysis. 766 F.2d at 869-70.

12 LUX v. JUDD

In response to Colorado’s argument that its regulation served

a state interest, a unanimous Court explicitly addressed and

rejected the claim that the challenged restriction helped ensure

that a particular ballot initiative enjoyed "sufficient grass

roots support." Id. at 425. The Court explained that the state’s

interest in ensuring a threshold level of support was "ade-

quately protected by the requirement that no initiative pro-

posal may be placed on the ballot unless the required number

of signatures has been obtained." Id. at 425-26.

More than a decade later, the Supreme Court reached a

similar conclusion in Buckley. There, the Court once more

faced Colorado laws governing initiative-petition circulators,

including a "requirement that . . . circulators be registered vot-

ers." Buckley, 525 U.S. at 186. In affirming the Tenth Cir-

cuit’s determination that these provisions were excessively

restrictive, the Supreme Court again emphasized that a thresh-

old signature requirement was adequate to ensure that an ini-

tiative had secured sufficient popular backing to warrant

placement on the ballot.6 See id. at 204-05 (finding that "Col-

orado can and does meet [its] substantial interests in regulat-

ing the ballot-initiative process" by "less problematic

measures," including a threshold signature requirement "[t]o

ensure grass roots support").

6

In support of its claim that Davis remains good law, the Board draws

on Buckley’s suggestion that some residency requirements are presump-

tively constitutional. See Appellee’s Br. at 23-24 (citing Buckley, 525 U.S.

at 197). However, when the Supreme Court assumed, without deciding,

"that a residence requirement would be upheld as a needful integrity-

policing measure," it was concerned with state residency requirements.

See Buckley, 525 U.S. 197. As the Court had already noted, such require-

ments were relevant to Colorado’s effort "to ensure that circulators will be

amenable to the Secretary of State’s subpoena power, which in these mat-

ters does not extend beyond the State’s borders." Id. at 196; see also Ini-

tiative & Referendum Inst. v. Jaeger, 241 F.3d 614, 617 (8th Cir. 2001).

The Board has not claimed that the district residency requirement at issue

here serves a similar purpose, but we also recognize that the Supreme

Court has not explicitly struck down such a requirement.

LUX v. JUDD 13

In both Meyer and Buckley, the Supreme Court recognized

that a signature requirement is generally adequate to ensure

the popular support necessary to warrant ballot access. In

doing so, the Court undermined the only state interest that

Davis identified in support of a residency requirement.

Against the backdrop of these intervening decisions, we can

no longer say that an in-district witness requirement is neces-

sarily justified by a state’s desire to gauge the depth of a can-

didate’s support.

Our recognition that Davis’s abbreviated residency-

requirement analysis has been superseded should not be con-

fused for a determination that the provision challenged here

offends Lux’s constitutional rights. Neither Meyer nor Buck-

ley addressed the particular witness residency requirement at

issue in this case. Moreover, we do not read either decision

as foreclosing the possibility that something more than a

threshold signature requirement may, in some circumstances,

be constitutionally permissible as a means of ensuring popular

support or achieving another state interest. In other words, we

hold only that the district court erred by relying on Davis to

find that Lux’s complaint did not raise a plausible claim for

relief and do not otherwise address the merits of Lux’s consti-

tutional challenge.

As this case comes before us on appeal of a Fed. R. Civ.

P. 12(b)(6) dismissal, we reserve substantive consideration of

Lux’s claim for the district court in the first instance. On

remand, the court should conduct an independent analysis of

the state interest served by the district residency requirement

and, after determining the appropriate standard of review,

conclude whether that portion of section 24.2-506 unduly

restricts Lux’s constitutional rights. See Celebrezze, 460 U.S.

at 789. Both parties are free to advance additional arguments

in light of our holding.

14 LUX v. JUDD

IV.

For the foregoing reasons we affirm the district court’s dis-

missal of Lux’s coplaintiffs, reverse the dismissal of Lux’s

claim, and remand for further proceedings.

AFFIRMED IN PART,

REVERSED IN PART,

AND REMANDED