Amicus Curiae Brief — James Hall, Petitioner v. John H. Merrill, Alabama Secretary of State

Supreme Court briefMay 29, 2019

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No. 18-1362

IIN

N THE

THE

Supreme Court

the Einiteb

United iptatez

States

fpuprente

Court of

of tie

_________

JAMES H

ALL,

JAMES

HALL,

v.v.

Petitioner,

JOHN

MERRILL,

SECRETARY

STATE,

JOHN H. M

ERRILL, ALABAMA

ALABAMA S

ECRETARY OF S

TATE,

Respondent.

_________

On Petition for a Writ of Certiorari to the United

States Court of Appeals for the Eleventh Circuit

_________

BRIEF OF AMICUS CURIAE THE

COALITION FOR FREE AND OPEN

ELECTIONS IN SUPPORT OF PETITIONER

_________

OLLEEN E. R

OH SINZDAK

SINZDAK

R011

COLLEEN

Counsel of Record

RIN R. C

HAPMAN

CHAPMAN

ERIN

LOVELLS

OGAN L

OVELLS US LLP

HOGAN

555 Thirteenth Street, N.W.

Washington, D.C. 20004

(202) 637-5600

colleen.sinzdak@hoganlovells.com

Counsel for Amicus Curiae

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES........................................ii

STATEMENT OF INTEREST .................................... 1

INTRODUCTION AND SUMMARY OF

ARGUMENT ....................................................... 2

ARGUMENT ............................................................... 4

II.

CERTIORARI IS NECESSARY

BECAUSE SPECIAL ELECTIONS

HAPPEN WITH GREAT

FREQUENCY ................................................... 4

Special Elections Have Been A

Frequent Occurrence Since The

Founding ................................................... 5

Alabama Itself Often Holds Special

Elections.................................................... 9

Leaving The Eleventh Circuit’s

Circuit's

Decision In Place Will Hobble

Courts’ Ability To Review The

Courts'

Constitutionality Of Special

Elections..................................................

Elections

RESOLVING THE SPLIT IS

CRITICALLY IMPORTANT

BECAUSE SPECIAL ELECTIONS

ENRICH OUR DEMOCRACY BY

BRINGING IN NEW CANDIDATES ............ 14

Special Elections Offer A Rare

Opportunity To Bring New

Viewpoints Into Office ............................ 14

Congress..... 19

Special Elections Diversify Congress

CONCLUSION .......................................................... 26

TABLE OF AUTHORITIES

Page(s)

CASES:

Anderson v. Celebrezze,

460 U.S. 780 (1983).................................. 16, 17, 19

Georgia State Conference NAACP v.

Georgia,

No. 1:17-cv-1397-TCB, 2017 WL

9435558 (N.D. Ga. May 4, 2017) ......................... 12

Illinois State Bd. of Elections v. Socialist

Workers Party,

440 U.S. 173 (1979)........................................ 16, 19

Rodriguez v. Popular Democratic Party,

457 U.S. 1 (1982).................................................... 4

S. Pac. Terminal Co. v. Interstate

Commerce Comm’n,

Comm'n,

219 U.S. 498 (1911)................................................ 2

Sweezy v. New Hampshire ex rel. Wyman,

354 U.S. 234 (1957).............................................. 16

Thompson v. Alabama,

293 F. Supp. 3d 1313 (M.D. Ala. 2017) ............... 13

Thompson v. Alabama,

No. 2:16-CV-783-WKW, 2017 WL

3223915 (M.D. Ala. July 28, 2017) ...................... 12

United States v. Georgia,

952 F. Supp. 2d 1318 (N.D. Ga. 2013),

judgment vacated and appeal dismissed

as moot, 778 F.3d 1202 (11th Cir. 2015) ....... 12, 13

Weinstein v. Bradford,

423 U.S. 147 (1975)................................................ 2

111

iii

TABLE OF AUTHORITIES—Continued

Page(s)

Wesberry v. Sanders,

1 (1964).................................................. 13

376 U.S. 1

Williams v. Rhodes,

393 U.S. 23 (1968)................................................ 17

CONSTITUTIONAL PROVISIONS:

PROVISIONS:

CONSTITUTIONAL

U.S. Const. art. I, § 2, cl. 4 ................................... 4, 5

U.S. Const. amend. XVII ...................................... 4, 6

STATUTES:

Ala. Code § 17-9-3(a)(3) ............................................ 1

Ala. Code § 17-9-3(b)............................................. 1, 2

Ala. Code § 17-15-1(1)............................................. 11

LEGISLATIVE

LEGISLATIVE MATERIAL:

MATERIAL:

H.R. Doc. No. 108-222 (2005) ............................. 8, 10

OTHER AUTHORITIES:

AUTHORITIES:

OTHER

Alabama state legislative special elections,

2014, Ballotpedia,

https://ballotpedia.org/

Alabama_state_legislative_

special_elections,_2014 (last visited May

29, 2019) ............................................................... 12

Alabama state legislative special elections,

2016, Ballotpedia,

https://ballotpedia.org/

Alabama_state_legislative_

special_elections,_2016 (last visited May

29, 2019) ............................................................... 12

TABLE OF AUTHORITIES—Continued

Page(s)

Alabama state legislative special elections,

2017, Ballotpedia,

https://ballotpedia.org/Alabama_state_le

gislative_special_elections,_2017 (last

visited May 29, 2019) .......................................... 12

Alabama state legislative special elections,

2018, Ballotpedia,

https://ballotpedia.org/Alabama_state_le

gislative_special_elections,_2018 (last

visited May 29, 2019) ..................................... 11, 12

Eric M. Baer, Recurrence Interval, Sci.

Educ. Res. Ctr. Carleton Coll.,

https://serc.carleton.edu/quantskills/met

https://serc.carleton.edulquantskills/met

hods/quantlit/RInt.html (last visited

May 29, 2019)................................................. 10, 11

Laura Bassett, Karen Handel, Susan G.

Komen’s Anti-Abortion VP, Drove

Komen's

Decision To Defund Planned

Parenthood, Huffington Post (updated

Feb. 6, 2012),

https://www.huffpost.com/entry/karenhttps://www.huffpost.comientry/karenhandel-susan-g-komen-decision-defundplanned-parenthood_n_1255948 ................... 24, 25

Kristen Bialik, For the fifth time in a row,

the new Congress is the most racially

and ethnically diverse ever, Pew

Research Ctr. (Feb. 8, 2019),

https://www.pewresearch.org/fact-tank/

2019/02/08/for-the-fifth-time-in-a-rowthe-new-congress-is-the-most-raciallyand-ethnically-diverse-ever/ ................................ 20

TABLE OF AUTHORITIES—Continued

Page(s)

Matthew Bloch et al., Alabama Election

Results: Doug Jones Defeats Roy Moore

in U.S. Senate Race, N.Y. Times (Dec.

12, 2017, 11:59 PM),

https://www.nytimes.com/elections/

results/alabama-senate-special-election11

roy-moore-doug-jones ....................................... 8, 11

Ida A. Brudnick & Jennifer E. Manning,

Cong. Research Serv., RL30378, African

American Members of the United States

Congress: 1870-2018 (updated Dec. 28,

2018), available at

https://www.senate.gov/CRSpubs/617f17

bb-61e9-40bb-b301-50f48fd239fc.pdf .................. 24

Congress Profiles: 66th Congress (19191921), U

U.S.

.S. House of Representatives,

https://history.house.gov/CongressionalOverview/Profiles/66th/ (last visited May

29, 2019) ................................................................. 6

Michael Cooper, G.O.P. Senate Victory

Stuns Democrats, N.Y. Times (Jan. 19,

2010), https://www.nytimes.com/

2010/01/20/us/politics/20election.html .................. 7

Nick Corasaniti & Shane Goldmacher,

Cory Booker Announces Presidential Bid,

Joining Most Diverse Field Ever, N.Y.

Times (Feb. 1, 2019),

https://www.nytimes.com/2019/02/01/us/

politics/cory-booker-2020.html ............................ 24

TABLE OF AUTHORITIES—Continued

Page(s)

Gary W. Cox & Michael C. Munger,

Closeness, Expenditures, and Turnout in

the 1982 U.S. House Elections, 83 Am.

Pol. Sci. Rev. 217 (1989) ...................................... 18

Lawrence A. Cremin, Horace Mann,

Encyclopedia Britannica,

https://www.britannica.com/biography/H

orace-Mann (last updated Apr. 30, 2019) ........... 15

Dianne Feinstein: Biography, U.S. Senate,

https://www.feinstein.senate.gov/public/i

https://www.feinstein.senate.gov/publicli

ndex.cfm/biography (last visited May 29,

2019) ..................................................................... 23

Michael J. Dubin, United States

Congressional Elections, 1788-1997

(1998)............................................................ passim

David Dykes, Tim Scott wins historic

Senate election, Greenville News

(updated Nov. 4, 2014, 7:38 PM),

https://www.greenvilleonline.com/story/

news/politics/2014/11/04/tim-scott-winshistoric-senate-election/18490375/ ........................ 7

Editorial, Kirsten Gillibrand for New

York, N.Y. Times (Oct. 20, 2012),

https://www.nytimes.com/2012/10/21/

opinion/sunday/kirsten-gillibrand-for-ussenate-from-new-york.html ............................. 7, 23

Electing Senators: A Historical

Perspective, U.S. Senate,

https://www.senate.gov/general/Features

https://www.senate.gov/generalifeatures

/ElectingSenators_AHistoricalPerspectiv

e.htm (last visited May 29, 2019).................... 6, 10

vii

TABLE OF AUTHORITIES—Continued

Page(s)

Election Results 2008: Mississippi, N.Y.

Times (Dec. 9, 2008),

https://www.nytimes.com/elections/2008/

https://www.nytimes.comielections/2008/

results/states/mississippi.html .............................. 7

Election Results 2008: Wyoming, N.Y.

Times (Dec. 9, 2008),

https://www.nytimes.com/elections/2008/

results/states/wyoming.html ................................. 7

Matt Friedman, Booker defeats Lonegan in

special U.S. Senate election, NJ.com

(Oct. 17, 2013),

https://www.nj.com/politics/2013/10/cory

_booker_beats_steve_lonegan_in_us_sen

ate_election.html .................................................... 7

Ronald Keith Gaddie & Charles S.

Bullock, III, Elections to Open Seats in

the U.S. House: Where the Action Is

(2000).............................................................. 14, 21

A.W. Geiger et al., The changing face of

Congress in 6 charts, Pew Research Ctr.

(Feb. 15, 2019),

https://www.pewresearch.org/fact-tank/

2019/02/15/the-changing-face-ofcongress/ ......................................................... 19, 20

Shane Goldmacher, Kirsten Gillibrand

Officially Enters 2020 Democratic Race,

N.Y. Times (Mar. 17, 2019),

https://www.nytimes.com/2019/03/17/us/

politics/gillibrand-2020-announce.html .............. 23

viii

TABLE OF AUTHORITIES—Continued

Page(s)

Chris Graff, Bernie Sanders: Still a

Maverick, Politico (Feb. 7, 2007, 8:46

PM), https://www.politico.com/story/

2007/02/bernie-sanders-still-a-maverick002690 .................................................................. 16

John D. Griffin, Electoral Competition and

Democratic Responsiveness: A Defense of

the Marginality Hypothesis, 68 J. Pol.

911 (2006) ............................................................. 18

H. Gibbs Knotts & Jordan M. Ragusa, The

Nationalization of Special Elections for

the U.S. House of Representatives, 26 J.

Elections, Pub. Opinion & Parties 22

(2016)...................................................................... 5

Katie McNally, The Third-Party Impact

on American Politics, UVAToday (Aug.

3, 2016),

https://news.virginia.edu/content/thirdparty-impact-american-politics ..................... 18, 19

Democrats’

Lindsey McPherson, House Democrats'

New Elected Leadership Team Is More

Progressive and Diverse, Roll Call (Dec.

4, 2018, 5:05 AM),

https://www.rollcall.com/news/politics/ne

w-democratic-elected-leadership-team-ismore-progressive-and-diverse ............................. 24

TABLE OF AUTHORITIES—Continued

Page(s)

Dan Merica, Democrats aren't

aren’t expecting

an Arizona miracle, but their eyes are on

November, CNN (updated Apr. 18, 2018,

2:42 PM),

https://edition.cnn.com/2018/04/18/politic

s/democrats-arizona-special-electionnovember/index.html ........................................... 25

Missouri History: United States Senators,

Mo. Sec’y

Sec'y State,

https://www.sos.mo.gov/archives/history/

historicallistings/ussenators (last visited

May 29, 2019)..................................................... 6, 7

Nancy Pelosi: Full Biography, U.S. House

of Representatives,

https://pelosi.house.gov/biography-0 (last

visited May 29, 2019) ........................................... 23

The NewsHour, Interview with Delaware

Senator-Elect Chris Coons, Real Clear

Politics (Nov. 11, 2010),

https://www.realclearpolitics.com/2010/1

1/11/interview_with_delaware_senatorelect_chris_coons_245692.html ............................. 7

David L. Nixon & R. Darcy, Special

Women’s

Elections and the Growth of Women's

Representation in the U.S. House of

Representatives, 16 Women & Pol. 99

(1996) ........................................................ 19, 22, 23

TABLE OF AUTHORITIES—Continued

Page(s)

Simone Pathé,

Pathe, Tina Smith Wins

Minnesota Special Election for Franken

Seat, Roll Call (Nov. 6, 2018, 11:19 PM),

https://www.rollcall.com/news/politics/

https://www.rollcall.cominews/politics/

tina-smith-wins-minnesota-specialelection-franken-seat ............................................. 8

Reelection Rates Over the Years, Ctr. for

Responsive Politics,

https://www.opensecrets.org/overview/re

elect.php (last visited May 29, 2019)................... 14

Ron Paul, Encyclopedia Britannica,

https://www.britannica.com/biography/R

on-Paul (last visited May 29, 2019)..................... 15

Steven J. Rosenstone et al., Third Parties

in America (1984) ................................................. 16

Lydia Saad, Perceived Need for Third

Major Party Remains High in U.S.,

Gallup (Sept. 27, 2017),

https://news.gallup.com/poll/219953/

perceived-need-third-major-partyremains-high.aspx................................................ 17

Kevin Sack, Former Governor to Replace

Georgia Senator, N.Y. Times (July 25,

2000),

https://www.nytimes.com/2000/07/25/us/f

ormer-governor-to-replace-georgiasenator.html ........................................................... 6

Susan Saulny, Republican Kirk Wins

Obama’s Old Senate Seat, N.Y. Times

Obama's

(Nov. 3, 2010), https://www.nytimes.com/

2010/11/03/us/politics/03illinois.html.................... 7

TABLE OF AUTHORITIES—Continued

Page(s)

Katharine Q. Seelye, Democrat Wins

Kerry’s Senate Seat,

Special Election for Kerry's

N.Y. Times (June 25, 2013),

https://www.nytimes.com/2013/06/26/us/

massachusetts-special-senateelection.html........................................................... 7

Bradley A. Smith, Judicial Protection

Ballot-Access

of Ballot

Access Rights: Third Parties

Need Not Apply, 28 Harv. J. Legis.

167 (1991) ........................................... 16, 17, 18, 19

David Smith, Most Americans do not feel

represented by Democrats or Republicans

–— survey, The Guardian (Oct. 25, 2016,

5:49 PM), https://www.theguardian.com/

us-news/2016/oct/25/american-politicalparties-democrats-republicansrepresentation-survey .......................................... 17

State legislative special elections, 2015,

Ballotpedia, https://ballotpedia.org/

State_legislative_special_elections,_2015

(last visited May 29, 2019) .................................. 12

State legislative special elections, 2017,

Ballotpedia,

https://ballotpedia.org/State_legislative_

special_elections,_2017 (last visited May

29, 2019) ................................................................. 9

State legislative special elections, 2018,

Ballotpedia,

https://ballotpedia.org/State_legislative_

special_elections,_2018#Historical_data

(last visited May 29, 2019) .................................... 9

xii

TABLE OF AUTHORITIES—Continued

Page(s)

Katherine Tully-McManus, Women

Elected at Historic Levels, But No

Surprise Here: White Men Dominate

116th Congress, Roll Call (Nov. 7, 2018,

10:43 AM),

https://www.rollcall.com/news/politics/

congress-women-historic-levels ........................... 20

United States Senate special election in

Hawaii, 2014, Ballotpedia,

https://ballotpedia.org/

United_States_Senate_special_election_i

n_Hawaii,_2014 (last visited May 29,

2019) ....................................................................... 7

United States Senate special election in

Mississippi, 2018, Ballotpedia,

https://ballotpedia.org/

United_States_Senate_special_election_

in_Mississippi,_2018 (last visited May

29, 2019) ................................................................. 8

United States Senate special election in

Oklahoma, 2014, Ballotpedia,

https://ballotpedia.org/

United_States_Senate_special_election_i

n_Oklahoma,_2014 (last visited May 29,

2019) ................................................................... 7, 8

Vacancies and Successors, 105th Congress

U.S.

(1997-1999), U

.S. House of

Representatives,

https://history.house.gov/Institution/

Vacancies-Successors/105/ (last visited

May 29, 2019) ................................................. 15, 16

xiii

TABLE OF AUTHORITIES—Continued

Page(s)

Vacancies and Successors, 113th Congress

U.S.

(2013-2015), U

.S. House of

Representatives,

https://history.house.gov/Institution/Vac

ancies-Successors/113/ (last visited May

29, 2019) ............................................................... 10

Vacancies and Successors, 115th Congress

U.S.

(2017-2019), U

.S. House of

Representatives,

https://history.house.gov/Institution/Vac

ancies-Successors/115/ (last visited May

29, 2019) ................................................................. 9

Vacancies and Successors, 1997 to Present,

U.S. House of Representatives,

https://history.house.gov/Institution/Vac

ancies-Successors/Vacancies-Successors/

(last visited May 29, 2019) .................................... 5

West Virginia special election reporting:

Comm’n

Senate vacancy, Fed. Election Comm'n

(Aug. 2, 2010), https://www.fec.gov/

updates/west-virginia-special-electionreporting-senate-vacancy/ ..................................... 7

Women in Congress, U.S. House of

Representatives,

https://history.house.gov/Exhibition-andPublications/WIC/Women-in-Congress/

(last visited May 29, 2019) .................................. 22

xiv

TABLE OF AUTHORITIES—Continued

Page(s)

Women Representatives and Senators by

Congress, 1917-Present, U.S. House of

Representatives,

https://history.house.gov/Exhibitionsand-Publications/WIC/HistoricalData/Women-Representatives-andSenators-by-Congress/ (last visited

May 29, 2019)..................................... 20, 21, 22, 24

Austin Wright, How Barbara Lee Became

an Army of One, Politico Mag. (July 30,

2017), https://www.politico.com/

magazine/story/2017/07/30/how-barbaralee-became-an-army-of-one-215434..................... 16

STATEMENT OF INTEREST

The Coalition for Free and Open Elections

(COFOE) is a nonprofit advocacy organization dedicated to the idea that full and fair access to the

democracy.1 COFOE

COFOE is

electoral process is central to democracy.1

a group of independents and representatives from

alternative parties. Since the 1980s, the group has

supported efforts to remove barriers to ballot access

that prevent non-major-party candidates and wouldbe voters from fully participating in the political

process.

The third-party candidates and voters that make

up COFOE's

COFOE’s constituency have an interest in the

question presented, because ballot-access laws

uniquely affect their ability to participate in elections. The Alabama law at issue here illustrates

why: The law gives political parties that received 20

percent of the vote cast in the last general election an

automatic place on the ballot, but candidates who

want to run under the banner of another party or as

an independent are first forced to gather signatures.

See Pet. App. 1a-2a;

la-2a; Ala. Code § 17-9-3(a)(3), (b). In

Petitioner’s

Petitioner's case, he was required to collect 5,938

signatures in 106 days, while the Democratic and

Republican candidates had to collect none. See Pet.

1 No party or counsel for a party authored this brief in whole or

in part. No party, counsel for a party, or person other than

amicus curiae, their members, or counsel made any monetary

contribution intended to fund the preparation or submission of

curiae’s intent to

this brief. All parties were notified of amicus curiae's

submit this brief at least 10 days before it was due, and all

parties have consented to the filing of this brief.

(1)

App. 25a (Pryor, J., dissenting); Ala. Code § 17-93(b). Answering the question presented will determine whether challenges to restrictive ballot-access

laws like Alabama's

Alabama’s will be over before they even

begin. COFOE has an interest in seeing that these

constitutional challenges are decided on the merits.

INTRODUCTION AND SUMMARY OF

ARGUMENT

Special elections start suddenly and end quickly,

leaving little time for a candidate to challenge the

rules of the race before it ends. Candidates who

question the constitutionality of state laws governing

special elections face a dilemma: Sue before a special

election is declared when there is plenty of time to

litigate and risk the case being deemed unripe, or

sue once the election is called and risk that the

lawsuit will outlast the election, rendering the case

moot? Traditionally, the "capable

“capable of repetition, yet

review” exception to mootness has offered a

evading review"

way out of this bind. S. Pac. Terminal Co. v. Interstate Commerce Comm’n,

Comm'n, 219 U.S. 498, 515 (1911).

Under that exception, a plaintiff can escape mootness if she can show (1) that the event or action that

precipitated the suit will repeat, and (2) that when it

does repeat there is a significant risk that timely

judicial remedies will not be available. See, e.g.,

Weinstein v. Bradford, 423 U.S. 147, 149 (1975) (per

curiam).

The question presented in this case concerns

whether plaintiffs challenging ballot-access restrictions must also satisfy an additional requirement—the so-called "same

“same complaining party”

party" re“be

quirement—by showing that they will personally "be

subjected to the same action again.”

again." Id. As the

petition explains, the courts of appeals have answered that question in markedly different ways.

See Pet. 11-19. Those approaches range from dispensing entirely with a same-plaintiff requirement to

demanding significant evidence in order to satisfy it,

as the Eleventh Circuit did below. See id.

Resolving this split and soundly rejecting the Eleventh Circuit’s

Circuit's approach is critically important.

Special elections, like the one at issue here, occur

with great frequency: Nationwide, a congressional

special election is held roughly once every 68 days,

and Respondent's

Respondent’s state, Alabama, holds one roughly

every five years. During the most recent session of

Congress, special elections were held to fill vacancies

in 17 seats. And last year alone states held 99

special elections to fill vacancies in their state legislatures.

Under the Eleventh Circuit’s

Circuit's approach, it will be

exceedingly difficult to challenge the constitutionality of the state laws that govern these elections. It is

unlikely that a challenge to a particular election

could be fully litigated before the election occurs, and

Circuit’s stringent standard means that

the Eleventh Circuit's

candidates will no longer be able to take advantage

of the mootness exception that was custom made for

cases like these where the underlying dispute is not

just capable of, but highly susceptible to, repetition.

In other words, the Eleventh Circuit’s

Circuit's standard will

essentially exempt state special election laws from

judicial review, raising the very real threat that

members of Congress will be routinely elected

through procedures that violate the Constitution

itself. That threat is particularly grave because

special elections play an important part in strength-

ening our democracy by bringing new candidates—

and hence new perspectives, new ideas, and new

Court’s intervention

constituencies—into office. The Court's

is urgently needed.

ARGUMENT

I. CERTIORARI IS NECESSARY BECAUSE

SPECIAL ELECTIONS HAPPEN WITH

GREAT FREQUENCY.

In the decision below, the Eleventh Circuit held

that Petitioner’s

Petitioner's case was moot. Pet. App. 3a. The

“no reasoncourt of appeals reasoned that there was "no

able 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.”

seat." Id. at 7a.

Because of that holding, the Court blocked review of

Alabama’s 3%

the important question of whether Alabama's

signature requirement violated Hall’s

Hall's First and

Fourteenth Amendment rights when it was applied

during a special election—a question that the district

court answered in the affirmative. Id. at 2a-3a, 46a.

And, unless this Court grants certiorari, the decision

will likely prevent any meaningful review of special

election laws in the Eleventh Circuit and the Second

Circuit, which has a similarly strict standard. See

Pet. at 14-15.

That will have a major effect on our democracy:

Special elections are used to fill the vacancies that

occur when members die or resign before the end of

their term. See Rodriguez v. Popular Democratic

Party, 457 U.S. 1, 5-6 & n.4 (1982) (listing methods

of filling seats); U.S. Const. art. I, § 2, cl. 4; id.

amend. XVII. Although exactly when and where a

vacancy will occur is uncertain, the fact that vacancies will regularly occur is not. Consequently, across

the country special elections play an important and

recurring role in the way voters choose their representatives.

A. Special Elections Have Been A Frequent

Occurrence Since The Founding.

Special elections date back to the Founding. The

“[w]hen vacanconstitution calls for special elections "[w]hen

cies happen"

happen” in the House. U.S. Const. art. I, § 2, cl.

4. There were two special elections for the House in

the first congressional session. See Michael J. Dubin, United States Congressional Elections, 17881997, at xvii (1998). Since then, every session of

Congress has had at least three special elections for

the House of Representatives; and there have been

as many as twenty-seven during a single session.2

session.2

Since 1788 there have been 1,491 special elections

held to fill vacant House seats, a rate of between six

and seven special elections a year.3

year.3

2 See Dubin, supra, at xvii; Vacancies and Successors, 1997 to

House

Representatives,

Present,

U.S.

https://history.house.gov/Institution/VacanciesSuccessors/Vacancies-Successors/ (last visited May 29, 2019).

3 There were 1,392 special elections for House Seats from 1778-

1996. See Dubin, supra, at xvii (sum total of special elections

between 1st and 104th Congresses). From 1997 to the end of

2018 there were 99 special elections for House seats. See

Vacancies and Successors, 1997 to Present, supra note 2 (sum

total between 105th and 115th Congresses); accord H. Gibbs

Knotts & Jordan M. Ragusa, The Nationalization of Special

Elections for the U.S. House of Representatives, 26 J. Elections,

Pub. Opinion & Parties 22, 22 (2016) (Between 1900 and 2008

Nor are special elections limited to the House.

With the passage of the Seventeenth Amendment in

1913 and the beginning of the direct election of

senators, states started to regularly fill Senate

vacancies through special elections as well. See U.S.

Const. amend. XVII.4

XVII.4 As

As many as nine special Senate elections have been held during a single session.5

session.5

In the one hundred years since the Seventeenth

Amendment was fully implemented, there have been

159 special elections to the U.S. Senate, averaging

year.6

between one and two each years

there was an average of 12.3 special House elections each

Congressional session.).

See

4 See

also Electing Senators: A Historical Perspective, U.S.

Senate,

https://www.senate.gov/general/Features/ElectingSenators_AHi

storicalPerspective.htm (last visited May 29, 2019).

5 See Dubin, supra, at xviii; see infra note 6 (listing Senate

special elections since 1997).

6 Since

“have been chosen by direct

1914, all Senate seats "have

popular election.”

election." Electing Senators: A Historical Perspective,

supra note 4. Senate terms are 6 years, so all Senate seats

were not filled by direct popular election until after the election

of 1918 and the beginning of the 66th Congress. See id.;

Congress Profiles: 66th Congress (1919-1921), U.S. House of

Representatives,

https://history.house.gov/CongressionalOverview/Profiles/66th/ (last visited May 29, 2019). There were

142 special elections for Senate seats from 1919 through the

end of 1996. See Dubin, supra, at xviii (sum total from 66th

session through 104th session). Between 1997 and the end of

2018 there were 17. See Kevin Sack, Former Governor to

Replace Georgia Senator, N.Y. Times (July 25, 2000),

https://www.nytimes.com/2000/07/25/us/former-governor-toreplace-georgia-senator.html (Georgia 2000); Missouri History:

United States Senators at n.25, Mo. Sec'y

Sec’y State,

https://www.sos.mo.gov/archives/history/historicallistings/ussen

ators (last visited May 29, 2019) (Missouri 2002); Election

Results 2008: Wyoming, N.Y. Times (Dec. 9, 2008),

https://www.nytimes.com/elections/2008/results/states/

wyoming.html (Wyoming 2008); Election Results 2008: Mississippi, N.Y. Times (Dec. 9, 2008), https://www.nytimes.com/

elections/2008/results/states/mississippi.html

(Mississippi

2008); Michael Cooper, G.O.P. Senate Victory Stuns Democrats,

N.Y. Times (Jan. 19, 2010), https://www.nytimes.com/

2010/01/20/us/politics/20election.html (Massachusetts 2010);

Obama’s Old Senate Seat,

Susan Saulny, Republican Kirk Wins Obama's

N.Y. Times (Nov. 3, 2010), https://www.nytimes.com/

2010/11/03/us/politics/03illinois.html (Illinois 2010);

The

NewsHour, Interview with Delaware Senator-Elect Chris Coons,

Politics

11,

Real

Clear

(Nov.

2010),

https://www.realclearpolitics.com/2010/11/11/interview_with_de

laware_senator-elect_chris_coons_245692.html

(Delaware

2010); Editorial, Kirsten Gillibrand for New York, N.Y. Times

(Oct. 20, 2012), https://www.nytimes.com/2012/10/21/opinion/

sunday/kirsten-gillibrand-for-us-senate-from-new-york.html

(New York 2010); West Virginia special election reporting:

Comm’n (Aug. 2, 2010),

Senate vacancy, Fed. Election Comm'n

https://www.fec.gov/updates/west-virginia-special-electionreporting-senate-vacancy/ (West Virginia 2010); Katharine Q.

Kerry’s Senate Seat,

Seelye, Democrat Wins Special Election for Kerry's

N.Y. Times (June 25, 2013), https://www.nytimes.com/

2013/06/26/us/massachusetts-special-senate-election.html

(Massachusetts 2013); Matt Friedman, Booker defeats Lonegan

in special U.S. Senate election, NJ.com (Oct. 17, 2013),

https://www.nj.com/politics/2013/10/cory_booker_beats_steve_lo

https://www.nj

.com/politics/2013/10/cory_booker_beats_steve_lo

negan_in_us_senate_election.html (New Jersey 2013); David

Dykes, Tim Scott wins historic Senate election, Greenville News

2014,

Nov.

7:38

PM),

(updated

https://www.greenvilleonline.com/story/news/politics/

2014/11/04/tim-scott-wins-historic-senate-election/18490375/

(South Carolina 2014); United States Senate special election in

Ballotpedia,

2014,

https://ballotpedia.org/

Hawaii,

United_States_Senate_special_election_in_Hawaii,_2014 (last

(Hawai‘i 2014); United States Senate

visited May 29, 2019) (Hawai`i

special

election

Oklahoma,

2014,

Ballotpedia,

https://ballotpedia.org/

All told, there have been 1,667 special elections

seats.7 Since

held to fill vacant House or Senate seats.'

1959, when Congress reached its modern size of 535

members, there have been 318 congressional special

elections.8 That

That amounts to roughly 10 to 11 special

elections.8

elections during each congressional session, for an

average of one special election every 68 days.9

days.9 DurDur-

United_States_Senate_special_election_in_Oklahoma,_2014

(last visited May 29, 2019) (Oklahoma 2014); Matthew Bloch et

al., Alabama Election Results: Doug Jones Defeats Roy Moore in

U.S. Senate Race, N.Y. Times (Dec. 12, 2017, 11:59 PM),

https://www.nytimes.com/elections/results/alabama-senatehttps

://www.nytimes.com/elections/results/alabama-senatespecial-election-roy-moore-doug-jones (Alabama 2017); Simone

Pathé,

Pathe, Tina Smith Wins Minnesota Special Election for Franken Seat, Roll Call (Nov. 6, 2018, 11:19 PM),

https://www.rollcall.com/news/politics/tina-smith-winsminnesota-special-election-franken-seat

(Minnesota

2018);

United States Senate special election in Mississippi, 2018,

Ballotpedia,

https://ballotpedia.org/United_States_Senate_

special_election_in_Mississippi,_2018 (last visited May 29,

2019) (Mississippi 2018).

This total includes the 17 Senate special elections held

7 This

between the 59th and the 65th sessions of Congress before the

Seventeenth Amendment was fully implemented. See Dubin,

supra, at xviii; see also supra note 6.

Hawai‘i

8 Hawai`i

was admitted as a state in 1959 and sent its first

congressional delegation to the 86th Congress. See H.R. Doc.

No. 108-222, at 417 & n.9 (2005). That increased the number of

senators to its modern number, 100. See id. There were 170

House and 32 Senate special elections between the 86th and the

104th sessions of Congress. See Dubin, supra, xvii-xviii (sum

total). There were 99 House and 17 Senate special elections

between the 105th and 115th sessions of Congress. See supra

notes 3, 6.

9 318 special elections between 1959 and 2018 amounts to 5.39

special elections every 365 days. 365 divided by 5.39 is 67.72,

ing the most recent full session of Congress, special

elections were held even more regularly—an average

of once every 43 days—to fill a staggering 17 vacancies.10

cies.1°

Special elections are not limited to Congress. In

2018, 99 special elections were held to fill vacant

seats in state legislatures nationwide; the year

98.11 That

That means a special election

before there were 98.11

for a state legislative seat is held roughly once every

days.12

four days.12

B. Alabama Itself Often Holds Special Elections.

To see the frequency of special elections, look no

further than Alabama. Since Alabama first sent a

meaning that a congressional special election is held on average

once every 67.72 days.

1°

There were 14 vacancies in the House that were filled by

special election. See Vacancies and Successors, 115th Congress

(2017-2019),

U.S.

House

Representatives,

https://history.house.gov/Institution/Vacancies-Successors/115/

(last visited May 29, 2019). Special elections were held to fill

three Senate vacancies. See supra note 6 (Alabama, Minnesota,

and Mississippi held special elections). Seventeen special

elections in 730 days (or the length of a two-year Congressional

session) amount to a special election, on average, once every

42.94 days.

See State legislative special elections, 2018, Ballotpedia,

See

https://ballotpedia.org/State_legislative_special_elections,_2018

https

://ballotpedia.org/State_legislative_special_elections,_2018

#Historical_data (last visited May 29, 2019); State legislative

Ballotpedia,

special

elections,

2017,

https://ballotpedia.org/State_legislative_special_elections,_2017

https

://ballotpedia.org/State_legislative_special_elections,_2017

(last visited May 29, 2019).

12 365 days divided by 98 special elections means one election

occurs roughly once every 3.72 days.

voting congressional delegation to the House of

Representatives in 1819,13

1819, 13 Alabama

Alabama has held 29

special elections to fill vacant House seats: in 1838,

1844, twice in 1846, 1880, 1882, twice in 1883, 1894,

1900, 1904, 1908, twice in 1914, 1919, 1920, 1921,

1923, 1928, 1933, 1935, 1938, 1940, 1941, 1944,

2013.14 These

These special elections

1947, 1972, 1989, and 2013.14

occur with sufficient frequency that, in any given

year, there is approximately a 14.6% probability that

Alabama will hold a special election to fill a vacant

seat.15

House seat.15

Special elections for open Senate seats also occur

with some regularity in the State. After the passage

of the Seventeenth Amendment, Alabama became

only the second state to hold a special election to fill

a vacant Senate seat. See Electing Senators: A

Historical Perspective, supra note 4; Dubin, supra, at

13 See H.R. Doc. No. 108-222, at 86 & n.5.

14 Dubin, supra, at 119, 137, 143, 248, 255, 263, 302, 329, 346,

364, 395, 428, 438, 448, 468, 498, 508, 520, 530, 539, 548, 567,

675, 764; Vacancies and Successors, 113th Congress (2013Representatives,

2015),

U.S.

House

https://history.house.gov/Institution/Vacancies-Successors/113/

(last visited May 29, 2019).

15 To discuss the frequency of congressional elections, this brief

To discuss the frequency of congressional elections, this brief

utilizes the commonly used recurrence interval formula. We

have divided the number of years in the relevant period by the

number of events—here,

events-here, special elections—to

elections-to get the recurgenerally Eric M. Baer, Recurrence Interval,

rence interval. See generally

Coll.,

Educ.

Sci.

Res.

Ctr.

Carleton

https://serc.carleton.edu/quantskills/methods/quantlit/RInt.htm

1l (last visited May 29, 2019). To determine the odds of a special

election occurring in the same period, we have taken the

interval—that is, one divided by the

inverse of the recurrence interval-that

recurrence interval. See id.

396. Including that contest, Alabama has held a

total of six special elections to fill vacant Senate

seats in 1914, 1920, 1938, 1946, 1978, and 2017.

2017.16

In total, Alabama has held 35 special elections to

seats.17 Of

Of these confill vacant House or Senate seats.17

gressional elections, 23 occurred after Alabama

began selecting its entire congressional delegation

1913.18 Since

Since that time, Alabama

through election in 1913.18

has held a special election for an open congressional

seat roughly once every 4.57 years, meaning there is

approximately a 21.9% probability in any given year

that there will be a Congressional special election in

Alabama.19

Alabama also frequently holds special elections to

fill vacancies in its state legislature. State law

“[w]hen a vacancy occurs

requires a special election "[w]hen

in the office of senator or representative in the

Legislature.”

Legislature." Ala. Code § 17-15-1(1). These happen

often. In 2018, Alabama held three, and in the last

five years, Alabama held ten, an average of two per

year.20

year.2°

16 See Dubin, supra, at 396, 429, 521, 559, 706; Matthew Bloch

et al., supra note 6.

17 See supra notes 14, 16 and accompanying text.

18 See id.

See id.

19 The 105 years between 1913 and 2018, divided by 23 special

The 105 years between 1913 and 2018, divided by 23 special

elections, equals 4.57 years between special elections. The

inverse of the recurrence interval of 4.57 is 21.9%. See Baer,

supra note 15.

20 See Alabama state legislative special elections, 2018, Ballotpedia,

https://ballotpedia.org/Alabama_state_legislative_special_electi

Circuit’s Decision In

C. Leaving The Eleventh Circuit's

Place Will Hobble Courts'

Courts’ Ability To Review The Constitutionality Of Special

Elections.

Because special elections occur often—and occur

often in Alabama alone—the Eleventh Circuit’s

Circuit's

decision will have a major effect. Since Hall filed

suit, district courts in the Eleventh Circuit have

issued multiple opinions concerning the rules that

apply in special elections. See Thompson v. Alabama, No. 2:16-CV-783-WKW, 2017 WL 3223915, at

*1 (M.D. Ala. July 28, 2017) (challenge to felondisenfranchisement standard brought before special

election); Georgia State Conference NAACP v. Georgia, No. 1:17-cv-1397-TCB, 2017 WL 9435558, at *1

(N.D. Ga. May 4, 2017) (challenge to voter registration rules as applied to runoff special election);

United States v. Georgia, 952 F. Supp. 2d 1318, 132021 (N.D. Ga. 2013) (challenge to Georgia’s

Georgia's rules

regarding absentee voting by service members that

apply in runoff elections, including runoffs following

special elections), judgment vacated and appeal

ons,_2018 (last visited May 29, 2019); Alabama state legislative

Ballotpedia,

special

elections,

2017

https://ballotpedia.org/Alabama_state_legislative_special_electi

ons,_2017 (last visited May 29, 2019) (one special election);

Alabama state legislative special elections, 2016, Ballotpedia,

https://ballotpedia.org/Alabama_state_legislative_

special_elections,_2016 (last visited May 29, 2019) (three); State

legislative

special

elections,

2015

Ballotpedia,

https://ballotpedia.org/State_legislative_special_elections,_2015

(last visited May 29, 2019) (none); Alabama state legislative

special elections, 2014 Ballotpedia, https://ballotpedia.org/

Alabama_state_legislative_special_elections,_2014 (last visited

May 29, 2019) (three).

dismissed as moot, 778 F.3d 1202 (11th Cir. 2015).

In cases like these, an election will almost always

occur before the district court can enter a final,

appealable judgment on the merits.

See, e.g.,

Thompson v. Alabama, 293 F. Supp. 3d 1313, 1313,

1333 (M.D. Ala. 2017) (opinion on merits of motion to

dismiss entered five months after special election).

Under the Eleventh Circuit’s

Circuit's cramped understanding

of the capable-of-repetition exception, there will be

no opportunity to keep alive similar cases challenging either rules that only apply during special elections or the application of general rules in a special

election. That means that such decisions will be

effectively shielded from appellate review. Leaving

the split unresolved will thus render important

constitutional challenges unreviewable, which will in

turn diminish the credibility of the results from

those elections.

This outcome would be especially troubling in cases

like Petitioner's

Petitioner’s that involve elections to the House of

Representatives. The Framers "tenaciously

“tenaciously fought

for and established at the Constitutional Convention” that the House was to be "elected

“elected 'by

‘by the Peotion"

ple,’

ple,'"” directly and democratically. Wesberry v. Sanders, 376 U.S. 1, 8 (1964). Sending representatives to

the House via elections whose constitutionality is

both uncertain and unreviewable would undermine

that democratic vision. The Court should not allow

it.

II. RESOLVING THE SPLIT IS CRITICALLY

IMPORTANT

BECAUSE

SPECIAL

ELECTIONS ENRICH OUR DEMOCRACY

BY BRINGING IN NEW CANDIDATES.

By insulating third-party ballot-access restrictions

from review, the minority approach to the capable-ofrepetition analysis that the Eleventh Circuit adopted

below hurts candidates, parties, and voters. Left

unreviewed, unconstitutional ballot-access restrictions will deter third-party candidates from

running for office—an outcome that will hurt candidates, voters, and democracy. Moreover, the increased possibility that unlawful restrictions will be

allowed to stand is particularly harmful to thirdparty candidates from underrepresented backgrounds, who have historically made great gains

during special elections.

A. Special Elections Offer A Rare Opportunity To Bring New Viewpoints Into Office.

1. The deck is stacked in favor of incumbents. See,

e.g., Ronald Keith Gaddie & Charles S. Bullock, III,

Elections to Open Seats in the U.S. House: Where

1 (2000). They usually have more

the Action Is 1

money, more experience, and more name recognition

That means that when

than their opponents. 21

That

incumbents run, they almost always win. In 2018,

for example, 84 percent of incumbent Senators won

their races; while in the House, 91 percent did.

Reelection Rates Over the Years, supra note 21.

21 See Reelection Rates Over the Years, Ctr. for Responsive

Politics, https://www.opensecrets.org/overview/reelect.php (last

visited May 29, 2019).

Those odds make opposing a sitting Congress member’s reelection bid a political suicide mission.

ber's

But special elections are a new candidate's

candidate’s dream.

With no incumbent running for reelection, they offer

a rare opportunity for new candidates to prove

themselves without having to battle the distorting

advantages of incumbency. Special elections thus

present a rare opportunity for new candidates and

new ideas to prevail.

Historically, this has been especially true for thirdparty and independent candidates. For the better

part of two centuries, candidates that struggled to fit

comfortably into the mold of one of the two major

parties have succeeded in special elections. Nineteenth century education-reformer Horace Mann won

election.22

his congressional seat through a special election.22

Before he launched a third-party campaign for

president, Ron Paul won his House seat in a special

election.23 So

So did iconoclast Barbara Lee, who faelection.23

mously was the only member of Congress to vote

against the post-9/11 authorization for the use of

military force.24

force.24 And

And Independent Bernie Sanders

first ran for Senate during a special election.

election.25

22 See Dubin, supra, at 149; Lawrence A. Cremin, Horace Mann,

Encyclopedia

Britannica,

https://www.britannica.com/biography/Horace-Mann

(last

updated Apr. 30, 2019).

23 See Dubin, supra, at 694; Ron Paul, Encyclopedia Britannica,

https://www.britannica.com/biography/Ron-Paul (last visited

May 29, 2019).

24 See Vacancies and Successors, 105th Congress (1997-1999),

U.S. House of Representatives, https://history.house.gov/

Institution/Vacancies-Successors/105/ (last visited May 29,

2. Facilitating the participation of third party candidates is not just good for the candidates, it is good

for democracy. For one, third parties have proven to

be a "fertile"

“fertile” source of new policy ideas—including

women’s suffrage, the eight-hour work day, and the

women's

graduated income tax. See Anderson v. Celebrezze,

460 U.S. 780, 794 (1983); Illinois State Bd. of Elections v. Socialist Workers Party, 440 U.S. 173, 186

“a means of disseminating

(1979) (Campaigns are "a

ideas.”); Steven J. Rosenstone et al., Third Parties in

ideas.");

America 8 (1984); Bradley A. Smith, Judicial ProtecBallot-Access

tion of Ballot

Access Rights: Third Parties Need Not

Apply, 28 Harv. J. Legis. 167, 169 (1991). By championing new or neglected ideas that have not yet

“made their way into the political mainstream,”

mainstream,"

"made

independent candidates push mainstream political

discourse forward, preventing stagnation. Anderson,

460 U.S. at 794; see also Sweezy v. New Hampshire

ex rel. Wyman, 354 U.S. 234, 250-251 (1957) (plurality opinion).

Third-party candidates also allow political disvoters’ valcourse to better reflect the full range of voters'

ues. In a two-party system, not all voters will feel

like their views are represented by one of the two

major parties. See Sweezy, 354 U.S. at 250-251

(“All political ideas cannot and

(plurality opinion) ("All

2019); Austin Wright, How Barbara Lee Became an Army of

One, Politico Mag. (July 30, 2017), https://www.politico.com/

magazine/story/2017/07/30/how-barbara-lee-became-an-armyof-one-215434.

25 See Chris Graff, Bernie Sanders: Still a Maverick, Politico

(Feb. 7, 2007), https://www.politico.com/story/2007/02/berniesanders-still-a-maverick-002690.

should not be channeled into the programs of our two

major parties.”).

parties."). One 2016 survey found that sixtyone percent of Americans surveyed felt that neither

of the two major political parties represent their

views.26 Almost

Almost two thirds of Americans report that

views.26

they would prefer to have a third political party to

from.27 Third-party

Third-party candidates increase the

choose from.27

likelihood that these voters will have a candidate to

vote for who reflects their values.

Alternative parties and candidates can also decrease voter apathy. See Bradley A. Smith, supra, at

169. Would-be third-party candidates and voters are

“people who have tried to exert influence

often "people

failed.”

within one of the major parties . . . [and] failed."

Anderson, 460 U.S. at 805 (internal quotation marks

and citation omitted). The prospect of voting for a

“disaffected”

third-party candidate allows those "disaffected"

voters "who

“who disagree with the major parties and

their policies”

policies" to participate in elections, while still

expressing their discontent with the major parties.

Williams v. Rhodes, 393 U.S. 23, 32-33 (1968). In

“important

this way, third-party candidates provide "important

channels through which political dissent is aired.”

aired."

Id. at 39 (Douglas, J., concurring).

26 David Smith, Most Americans do not feel represented by

Democrats or Republicans –— survey, The Guardian (Oct. 25,

PM),

2016,

5:49

https://www.theguardian.com/us-news/

2016/oct/25/american-political-parties-democrats-republicansrepresentation-survey.

27 Lydia Saad, Perceived Need for Third Major Party Remains

High in U.S., Gallup (Sept. 27, 2017), https://news.gallup.com/

poll/219953/perceived-need-third-major-party-remainspol1/219953/perceived-need-third-major-party-remainshigh.aspx.

Under some circumstances, third-party candidates

can also increase voter turnout. For instance, if a

third-party candidate makes an election more competitive than it otherwise would be, the closeness of

the race may tend to increase voter turnout. See

Gary W. Cox & Michael C. Munger, Closeness, Expenditures, and Turnout in the 1982 U.S. House

Elections, 83 Am. Pol. Sci. Rev. 217, 217-226 (1989).

By increasing competition for disaffected voters,

third-party candidates can also push candidates and

parties to be more responsive to voters'

voters’ preferences.

Increasing competition for House seats incentivizes

members to legislate in a way that reflects the views

of their constituents or risk getting voted out of

office. In recent years, elected officials who represent more competitive districts have indeed been

more responsive to their constituents. See John D.

Griffin, Electoral Competition and Democratic Responsiveness: A Defense of the Marginality Hypothesis, 68 J. Pol. 911, 918-920 (2006). Similarly, thirdparty candidates force major parties to be more

responsive. See Bradley A. Smith, supra, at 169. For

example, after Ross Perot won nearly 19 percent of

the vote for president with his singular focus on a

balanced budget, both Democrats and Republicans

courted his supporters by backing legislation to

budget.28

balance the budget.28

Major parties also benefit when third-party candidacies alert them to new voting blocks that can be

28 See

Katie McNally, The Third-Party Impact on American

Politics,

UVAToday

(Aug.

2016),

https://news.virginia.edu/content/third-party-impact-americanpolitics.

wooed by a party willing to take on a particular

issue. See Bradley A. Smith, supra, at 169 n.8. For

instance, after the 2016 election, the Democratic

Party moved to the left to appeal to supporters of

Independent Bernie Sanders. See McNally, supra

note 28.

Finally, independent candidates often "serve

“serve[]

IjI as a

rallying-point for like-minded citizens."

citizens.” Anderson,

460 U.S. at 788. By bringing these citizens together,

even unsuccessful candidates allow their supporters

to build connections and networks of organizers that

can outlast any individual election. In this way, even

“undeniably”

when they lose, independent candidates "undeniably"

have an influence. Illinois State Bd. of Elections, 440

U.S. at 186. For these reasons, insulating ballotaccess rules from review would hurt not only thirdparty candidates, but also voters, parties, and democracy.

B. Special Elections Diversify Congress.

Special elections have also been essential to increasing the number of members of historically

underrepresented groups in Congress. See David L.

Nixon & R. Darcy, Special Elections and the Growth

of Women’s

Women's Representation in the U.S. House of

Representatives, 16 Women & Pol. 99, 99 (1996). It is

not hard to understand how: Because incumbents

have held their seats longer than their challengers,

they are more likely to reflect the demographics of an

America of old; and in practice that means they are

more likely to be male and white and straight.29

straight.29 In

29 See A.W. Geiger et al., The changing face of Congress in 6

charts,

Pew

Research

Ctr.

(Feb.

15,

2019),

other words, incumbency contributes to a kind of

representational lag whereby the diversity of congressional representatives lags behind the diversity

of the country. The numbers back this up. In 1981,

when the national population was roughly 20 percent

nonwhite, Congress was only 6 percent nonwhite; in

2001, when 31 percent of the nation was nonwhite,

only 12 percent of Congress was; and in 2019, while

39 percent of the nation’s

nation's population is nonwhite,

only 22 percent of Congress is.3°

is.30 As elections without

incumbent candidates, special elections thus offer a

rare opportunity for voters to make Congress more

diverse and more representative of the country at

large.

This has been especially true for female candidates.

Two of the first four women elected to Congress won

elections. 31 Each

Each of those

their seats in special elections.31

women was elected to fill the seat vacated by her late

https://www.pewresearch.org/fact-tank/2019/02/15/thehttps

://www.pewresearch.org/fact-tank/2019/02/15/thechanging-face-of-congress/.

30 Katherine Tully-McManus, Women Elected at Historic Levels,

But No Surprise Here: White Men Dominate 116th Congress,

Roll

Call

AM),

(Nov.

2018,

10:43

https://www.rollcall.com/news/politics/congress-women-historiclevels; Kristen Bialik, For the fifth time in a row, the new

Congress is the most racially and ethnically diverse ever, Pew

Research Ctr. (Feb. 8, 2019), https://www.pewresearch.org/facttank/2019/02/08/for-the-fifth-time-in-a-row-the-new-congress-isthe-most-racially-and-ethnically-diverse-ever/.

Women

31 Women

Representatives and Senators by Congress, 1917Present at nn.2-3, U.S. House of Representatives,

https://history.house.gov/Exhibitions-andPublications/WIC/Historical-Data/Women-Representatives-andSenators-by-Congress/ (last visited May 29, 2019).

husband or father, which began a long tradition of

women entering Congress via special election after a

male family member’s

death.32 Indeed,

Indeed, until 1946

member's death.32

when Helen Mankin won her seat, all of the women

elected to Congress via special election were elected

to serve out the remainder of their late husband or

father’s terms. Compare supra note 32, with infra

father's

note 34. Since 1987, the proportion of daughters and

widows has decreased, but the importance of special

elections as a pathway for women to win a seat in

Congress has not.

not.33

Today, women are more likely to run in a special

election. See Gaddie & Bullock, supra, at 159-160.

And not only are women more likely to run in special

elections, they are more likely to win. In one study,

The following female members of Congress succeeded their

32 The

late husbands or, in two instances, their late fathers: Winnifred Huck (succeeded father, not husband), Mae Nolan,

Florence Kahn, Edith Norse Rogers, Pearl Oldfield, Effiegene

Wingo, Willa Eslick, Marian Clarke, Rose Long, Elizabeth

Gasque, Frances Bolton, Florence Gibbs, Clara McMillan,

Margaret Chase Smith, Veronica Boland, Katherine Byron,

Willa Fulmer, Vera Bushfield, Vera Buchanan, Maude Kee,

Mary Farrington, Kathryn Granahan, Maurine Neuberger,

Catherine Norrell, Louise Reece, Corinne Riley, Lera Thomas,

Elizabeth Andrews, Corrine Claiborne (Lindy) Boggs, Cardiss

Collins, Shirley Pettis, Jean Ashbrook, Sala Burton, Cathy

Long, Susan Molinari (succeeded father, not husband), Jo Ann

Emerson, Mary Bono, Lois Capps, and Doris Matsui. Id. at

nn.2-11, 13-19, 21-23, 26, 28-34, 36-38, 43, 46-47, 52, 58, 60-61,

71.

33 Since

1987, only 5 of the 38 women who have won special

elections—13

elections-13 percent—have won a seat previously held by their

late husband or father. Compare supra note 32, with infra note

34 (counting from Nancy Pelosi’s

Pelosi's election in 1987).

female candidates had a success rate of 3.4% in a

race against an incumbent, but a 61.1% success rate

in special elections in which they entered. Nixon &

Darcy, supra, at 101-102.

Of the 365 women who had served in Congress

through the end of the 115th Congress, 76 of them,

or 21 percent, won their seats through special elections. 34 And

And at various points the proportion of

tions.34

The

The following female members won their seat by special

election: Winnifred Huck, Mae Nolan, Florence Kahn, Edith

Norse Rogers, Pearl Oldfield, Effiegene Wingo, Willa Eslick,

Marian Clarke, Rose Long, Elizabeth Gasque, Frances Bolton,

Florence Gibbs, Clara McMillan, Margaret Chase Smith,

Veronica Boland, Katherine Byron, Willa Fulmer, Helen

Mankin, Vera Bushfield, Vera Buchanan, Maude Kee, Hazel

Abel, Mary Farrington, Kathryn Granahan, Maurine Neuberger, Catherine Norrell, Louise Reece, Corinne Riley, Lera

Thomas, Elizabeth Andrews, Corrine Claiborne (Lindy) Boggs,

Cardiss Collins, Shirley Pettis, Jean Ashbrook, Katie Beatrice

Hall, Barbara Kennelly, Sala Burton, Cathy Long, Nancy

Pelosi, Jill Long, Patsy Mink, Susan Molinari, Ileana RosLehtinen, Eva Clayton, Dianne Feinstein, Kay Bailey

Hutchison, Jo Ann Emerson, Juanita Millender-McDonald,

Mary Bono, Lois Capps, Barbara Lee, Heather Wilson, Diane

Edith Watson, Stephanie Herseth, Doris Matsui, Jean Schmidt,

Shelley Sekula Gibbs, Donna Edwards, Marsha Fudge, Laura

Richardson, Jackie Speier, Niki Tsongas, Judy Chu, Suzanne

Bonamici, Suzan K. DelBene, Janice Hahn, Kathleen C.

Hochul, Alma Adams, Katherine Clark, Robin Kelly, Colleen

Hanabusa, Karen Handel, Brenda Jones, Debbie Lesko, Mary

Gay Scanlon, and Susan Wild. Women Representatives and

Senators by Congress, 1917-Present, supra note 31, at nn.2-11,

13-24, 26, 28-34, 36-38, 43-53, 55-61, 63, 65, 69-73, 76-77, 79-83,

88-89, 91, 93-95, 97, 99, 101, 103-104, 106, 109; Women in

Representatives,

Congress,

U.S.

House

https://history.house.gov/Exhibition-andPublications/WIC/Women-in-Congress/ (last visited May 29,

2019).

women who won seats in special elections was even

higher. For instance, between 1980 and 1992, one

third of all women who entered the House of Representatives did so though a special election. See

Nixon & Darcy, supra, at 99. It is therefore unsurprising that many female leaders in the House and

Senate won their seats in special elections, including

Senate Judiciary Committee Ranking Member

Dianne Feinstein, presidential candidate Kirsten

Gillibrand, and Speaker of the House Nancy Pelosi.35

Pelosi.35

Minority candidates have also had particular success in special elections. Of the 154 African Americans to ever serve in Congress, 28 of them—or 18

percent—were elected through a special election.

election.36

36 See Dubin, supra, at 754, 775; Editorial, Kirsten Gillibrand

for New York, supra note 6; Dianne Feinstein: Biography, U.S.

Senate,

https://www.feinstein.senate.gov/public/index.cfm/biography

(last visited May 29, 2019); Shane Goldmacher, Kirsten Gillibrand Officially Enters 2020 Democratic Race, N.Y. Times

(Mar.

17,

2019),

https://www.nytimes.com/2019/03/17/us/politics/gillibrand-2020announce.html; Nancy Pelosi: Full Biography, U.S. House of

Representatives,

https://pelosi.house.gov/biography-0

(last

visited May 29, 2019).

36 The following African American members of Congress were

elected via special election: Alma Adams, Lucien Edward

Blackwell, Cory Anthony Booker, George Kenneth Butterfield,

André Carson, Eva Clayton, Cardiss Collins, George

Jr., Andre

Washington Collins, George William Crockett, Jr., Elijah

Eugene Cummings, Donna Edwards, Dwight Evans, Walter

Edward Fauntroy, Marcia F. Fudge, Katie Beatrice Hall,

Charles Arthur Hayes, Jesse L. Jackson, Jr., Brenda Jones,

Robin Kelly, Barbara Lee, Gregory W. Meeks, Juanita Millender-McDonald, Donald Milford Payne, Jr., Laura Richardson,

Bennie Thompson, Alton R. Waldon, Jr., Craig Anthony Wash-

Those members include former Chairs of the Congressional Black Caucus Cardiss Collins, Elijah

Eugene Cummings, Barbara Lee, and Walter Edward Fauntroy, and current presidential candidate

Cory Booker.

Booker.37

This is true for candidates from both major parties

and every ideology. Of the seven women on the

House Democratic leadership team, three of them

election.38 And

And the first four

were elected by special election.38

women to enter Congress through special elections

More recently, Karen Handel

were Republicans.

Republicans.39

won her seat in a special election after she famously

led the Susan G. Komen for the Cure organization to

; and Donald Trump

defund Planned Parenthood

Parenthood40;

ington, and Diane Watson. Ida A. Brudnick & Jennifer E.

Manning, Cong. Research Serv., RL30378, African American

Members of the United States Congress: 1870-2018, at i, 17-18,

20, 23-25, 28-29, 31-37, 39-40, 43, 45, 47-49 (updated Dec. 28,

2018), available at https://www.senate.gov/CRSpubs/617f17bb61e9-40bb-b301-50f48fd239fc.pdf.

Id.

37 Id.

Nick Corasaniti & Shane

at 18, 24-25, 29, 37;

Goldmacher, Cory Booker Announces Presidential Bid, Joining

Most Diverse Field Ever, N.Y. Times (Feb. 1, 2019),

https://www.nytimes.com/2019/02/01/us/politics/cory-booker2020.html.

Democrats’ New Elected

38 Compare Lindsey McPherson, House Democrats'

Leadership Team Is More Progressive and Diverse, Roll Call

AM),

(Dec.

2018,

5:05

https://www.rollcall.com/news/politics/new-democratic-electedleadership-team-is-more-progressive-and-diverse, with supra

note 34 (Katherine Clark, Nancy Pelosi, and Barbara Lee).

39 See Women Representatives and Senators by Congress, 1917-

Present, supra note 31, at nn.2-5.

40 See supra note 34; Laura Bassett, Karen Handel, Susan G.

Komen’s Anti-Abortion VP, Drove Decision To Defund Planned

Komen's

recorded a robocall for Debbie Lesko during her

bid.41

victorious special election bid.41

Special elections have thus played an essential role

in increasing the number of third party candidates,

women, and people of color in Congress. Insulating

challenges to restrictive ballot-access measures from

judicial review during special elections would deal

our democracy a double blow: increasing the likelihood of unconstitutional elections, and decreasing

the integrity of precisely the type of election that is

most likely to diversify and enrich our democracy.

Parenthood, Huffington Post (updated Feb. 6, 2012),

https://www.huffpost.com/entry/karen-handel-susan-g-komendecision-defund-planned-parenthood_n_1255948.

aren’t expecting an

41 See supra note 34; Dan Merica, Democrats aren't

Arizona miracle, but their eyes are on November, CNN (updated

Apr.

2:42

PM),

18,

2018,

https://edition.cnn.com/2018/04/18/politics/democrats-arizonaspecial-election-november/index.html.

CONCLUSION

This Court should grant the writ and reverse.

Respectfully submitted,

OLLEEN E. R

OH S

INZDAK

R011

SINZDAK

COLLEEN

Counsel of Record

RIN R. C

HAPMAN

CHAPMAN

ERIN

LOVELLS

US LLP

OGAN

OVELLS

HOGAN

555 Thirteenth Street, N.W.

Washington, D.C. 20004

(202) 637-5600

colleen.sinzdak@hoganlovells.com

Counsel for Amicus Curiae

AY 2019

MAY

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