Respondents Brief — James Hall, Petitioner v. John H. Merrill, Alabama Secretary of State
Supreme Court briefJul 31, 2019
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No. 18-1362
In the
Supreme Court of the United States
──────────────────────────
JAMES HALL,
Petitioner,
v.
SECRETARY OF STATE OF ALABAMA,
Respondent.
──────────────────────────
On Petition for a Writ of Certiorari to the
United States Court of Appeals for the Eleventh Circuit
──────────────────────────
BRIEF IN OPPOSITION
──────────────────────────
STEVE MARSHALL
Attorney General
EDMUND G. LACOUR JR.*
Solicitor General
MISTY S. FAIRBANKS MESSICK
Assistant Attorney General
OFFICE OF THE ALABAMA
ATTORNEY GENERAL
501 Washington Avenue
Montgomery, AL 36130
(334) 242-7300
elacour@ago.state.al.us
*Counsel of Record
Counsel for Secretary of State
QUESTION PRESENTED
Petitioner James Hall sought to run as an independent candidate in a 2013 special election for Alabama’s First Congressional District, but he failed to
obtain the roughly 6,000 signatures necessary to secure ballot access in the 106 days available. The election thus went forward without his name on the ballot. The last special election in this U.S. House District was more than 70 years ago, the Governor has
discretion to set the dates for any special election such
that each one is different, Hall has since affiliated
with the Republican Party, and State law has been
amended to allow independent candidates to start
gathering ballot access signatures earlier than they
could have under the 2013 regulations.
The question presented is whether Hall’s challenge
to the number of signatures required during the time
allotted before the 2013 special election for Alabama’s
First Congressional District is moot.
ii
RELATED CASES
Hall v. Merrill, No. 2:13-cv-663-MEF-TFM, U.S. District Court for the Middle District of Alabama. Judgment entered November 13, 2013.
Hall v. Secretary of State, State of Alabama, No. 1315214, U.S. Court of Appeals for the Eleventh Circuit.
Judgment entered December 12, 2013.
Hall v. Bennett, No. 2:13-cv-663-MEF-TFM, U.S. District Court for the Middle District of Alabama. Judgment entered March 3, 2014.
Hall v. Merrill, No. 2:13-cv-663-MHT, U.S. District
Court for the Middle District of Alabama. Judgment
entered September 30, 2016.
Hall v. Secretary, State of Alabama, No. 16-16766,
U.S. Court of Appeals for the Eleventh Circuit. Judgment entered August 29, 2018.
iii
TABLE OF CONTENTS
QUESTION PRESENTED.......................................... i
RELATED CASES ..................................................... ii
TABLE OF CONTENTS ........................................... iii
TABLE OF AUTHORITIES........................................v
INTRODUCTION........................................................1
STATEMENT OF THE CASE.....................................3
A. Alabama Law Requires Independent
Candidates to Petition for Ballot Access .........3
B. Former Congressman Jo Bonner’s
Resignation Announcement Leads to a
Special Election in 2013 ...................................5
C. Hall Unsuccessfully Attempts to Gain
Ballot Access as an Independent
Candidate..........................................................6
D. Hall Files Suit, and the Eleventh Circuit
Determines His Case is Moot...........................8
REASONS FOR DENYING THE PETITION...........11
I.
There Is No Meaningful Split Among the
Courts of Appeals on This Issue.......................181
A. The Fifth, Sixth, and Ninth Circuits
Generally Apply a Relaxed SamePlaintiff Requirement.....................................12
B. The Second and Eleventh Circuits, Like
Other Circuits, Apply a Relaxed SamePlaintiff Requirement.....................................15
II. This Case Is a Poor Vehicle for Resolving
This Unimportant Question ...............................18
iv
A. The Question Presented Is Unimportant ......18
B. Hall’s Case Is Moot Several Times Over. ......21
III. The Eleventh Circuit’s Decision Is Correct........26
A. This Court Has Not Exempted Election
Law Cases from Any “Reasonable
Expectation” Requirement to Avoid
Mootness. ........................................................26
B. The Eleventh Circuit Properly Assessed
Mootness in the Context of This Special
Election. ..........................................................28
C. The Eleventh Circuit Has Not Insulated
Ballot Access Challenges from Judicial
Review. ..........................................................311
CONCLUSION ..........................................................32
v
TABLE OF AUTHORITIES
Cases
ACLU of Ohio, Inc. v. Taft,
385 F.3d 641 (6th Cir. 2004) ..................................29
Acosta v. Democratic City Committee,
288 F. Supp. 3d 597 (E.D. Pa. 2018) ......................30
Akina v. Hawaii,
835 F.3d 1003 (9th Cir. 2016) ....................13, 20, 21
Already, LLC v. Nike, Inc.,
568 U.S. 85 (2013)...................................................27
Am. Party of Tex. v. White,
415 U.S. 767 (1974)...............................................3, 4
Arcia v. Florida Secretary of State,
772 F.3d 1335 (11th Cir. 2014) ..............................17
Campbell-Ewald Co. v. Gomez,
136 S. Ct. 663 (2016) ........................................25, 26
Caruso v. Yamhill Cty.,
422 F.3d 848 (9th Cir. 2005) ..................................18
Catholic Leadership Coalition of Texas v.
Reisman, 764 F.3d 409 (5th Cir. 2014) ............14, 19
Ctr. for Individual Freedom v. Carmouche,
449 F.3d 655, 662 (5th Cir. 2006)...........................18
City of Erie v. Pap’s A.M.,
529 U.S. 277 (2000).................................................28
Constitution Party of Missouri. v. St. Louis
County, No. 4:15-CV-207 RLW, 2015 WL
3908377 (E.D. Mo. June 25, 2015) .........................30
vi
Davis v. FEC,
554 U.S. 724 (2008).....................................15, 16, 26
Dunn v. Blumstein,
405 U.S. 330 (1972)...........................................27, 31
FEC v. Wis. Right to Life, Inc.,
551 U.S. 449 (2007)...............................11, 15, 16, 27
First National Bank v. Bellotti,
435 U.S. 765 (1978).................................................27
Fulani v. Krivanek,
973 F.2d 1539 (11th Cir. 1992) ................................5
Gill v. Galvin,
No. CV 16-11720-DJC, 2017 WL 2221185
(D. Mass. May 19, 2017) .........................................30
Human Life of Wash. Inc. v. Brumsickle,
624 F.3d 990 (9th Cir. 2010) ..................................14
In re: 2016 Primary Election,
836 F.3d 584 (6th Cir. 2016) ..................................12
Jenness v. Fortson,
403 U.S. 431 (1971)...................................................6
Kingdomware Techs., Inc. v. United States,
136 S. Ct. 1969 (2016).............................................26
Kucinich v. Tex. Democratic Party,
563 F.3d 161 (5th Cir. 2009) ..................................18
Lawrence v. Blackwell,
430 F.3d 368 (6th Cir. 2005) ............................12, 18
vii
Libertarian Party of Ohio v. Blackwell,
462 F.3d 579, 584 (6th Cir. 2006)...........................25
Libertarian Party v. Dardenne,
595 F.3d 215 (5th Cir. 2010) ............................14, 24
Meyer v. Grant,
486 U.S. 414 (1988).................................................26
Moore v. Hosemann,
591 F.3d 741 (5th Cir. 2009) ..................................18
Moore v. Ogilvie,
394 U.S. 814 (1969).................................................27
Murphy v. Hunt, 455 U.S. 478 (1982).......................19
Nat’l Org. for Marriage, Inc. v. Walsh,
714 F.3d 682 (2d Cir. 2013) ....................................16
Newcomb v. U.S. Office of Special Counsel,
550 F. App’x 532 (9th Cir. 2013) ............................13
Norman v. Reed,
502 U.S. 279 (1992) ................................................27
Ohio Council 8 Am. Fed’n of State v.
Husted, 814 F.3d 329 (6th Cir. 2016).....................13
Padilla v. Lever, 463 F.3d 1046 (9th Cir.
2006)........................................................................14
Platt v. Board of Comm’rs on Grievances
and Discipline of Ohio Supreme Court,
769 F.3d 447 (6th Cir. 2014) ..................................18
Princeton Univ. v. Schmid,
455 U.S. 100 (1982).................................................28
viii
Richardson v. Ramirez,
418 U.S. 24 (1974)...................................................27
Rosario v. Rockefeller,
410 U.S. 752 (1973)...........................................27, 31
Schaefer v. Townsend,
215 F.3d 1031 (9th Cir. 2000) ..............13, 14, 18, 30
Sloan v. Caruso,
566 Fed. App’x 98 (2d Cir. 2014)............................16
Sosna v. Iowa,
419 U.S. 393 (1975)...........................................27, 29
Speer v. City of Oregon,
847 F.2d 310 (6th Cir. 1988) ..................................13
Spencer v. Kemna,
523 U.S. 1 (1998).....................................................26
Stop Reckless Economic Instability Caused
by Democrats (Stop REID) v. FEC,
814 F.3d 221 (4th Cir. 2016), cert.
denied, 137 S. Ct. 374 (2016)..............................3, 25
Storer v. Brown,
415 U.S. 724 (1974)...........................................26, 27
Swanson v. Worley,
490 F.3d 894 (11th Cir. 2007) ................4, 17, 23, 31
Tigret v. Cooper,
595 F. App’x 554 (6th Cir. 2014) ......................12, 20
United States v. Alaska S.S. Co.,
253 U.S. 113 (1920)...........................................22, 23
ix
Van Allen v. Cuomo,
621 F.3d 244 (2d Cir. 2010) ....................................16
Van Wie v. Pataki,
267 F.3d 109 (2d Cir. 2001) ....................................15
Weinstein v. Bradford,
423 U.S. 147 (1975).............................................1, 27
Wolfson v. Brammer,
616 F.3d 1045 (9th Cir. 2010) ................................14
Statutes
Ala. Admin. Code R. 820-2-4-.05(l) (2001)............6, 21
Ala. Admin. Code R. 820-2-4-.05(l) (2015)............6, 22
ALA. CODE § 17-13-40 ..................................................3
ALA. CODE § 17-15-1 ..............................................9, 24
ALA. CODE § 17-6-22 ....................................................4
ALA. CODE § 17-9-3 ..................................................4, 5
Constitutional Provisions
Tenn. Const. art. XI, § 9............................................20
INTRODUCTION
This case is an exceptionally poor vehicle to address an unimportant issue that lower courts approach in fundamentally the same way. On May 23,
2013, Congressman Jo Bonner announced that he
would resign from office that August. Bonner’s resignation gave the Governor the opportunity to set the
date for a special election for Alabama’s First Congressional District—the first such election the district
had seen in more than 70 years. Petitioner James
Hall sought a spot on the ballot as an independent
candidate. Thus, under then-extant State law, Hall
needed to collect the signatures of 5,938 registered
voters in the district (roughly 1.4% of such voters)
within 106 days. Hall spent time but no money gathering signatures, failed to meet the signature requirement, and sued the Secretary of State. He argued that
the number of signatures the State required to appear
on the ballot for the 2013 election was too high in relation to the limited time he was given to gather signatures. The once-in-a-lifetime election then came
and went without Hall on the ballot, and the Eleventh
Circuit properly concluded that his claim was moot,
for there is no “reasonable expectation that [Hall]
would be subjected to the same action again.”
Pet.App.20a n.7 (quoting Weinstein v. Bradford, 423
U.S. 147, 149 (1975) (per curiam)).
Hall argues that there is a split among the circuits
over whether plaintiffs challenging ballot access requirements must show that there is “‘a reasonable expectation’ that they personally ‘will be subjected to the
same action again,’” Pet.11. But the split is either illusory, unimportant, or both, as the courts of appeals
approach the question of mootness in ballot access
2
cases in fundamentally the same manner. In effect,
the courts of appeals all apply a relaxed version of the
same-plaintiff rule in such cases. Because elections
are typically recurring, and candidate-plaintiffs typically run for political office again and again, plaintiffs
can typically avoid mootness by asserting an intent to
run again for a similar election. Hall contends that
the Second and Eleventh Circuits have required a
more substantial showing from plaintiffs, but numerous decisions from those courts establish that they are
in line with their sister circuits. Hall next asserts that
the Fifth, Sixth, and Ninth Circuits have dispensed
with the same-plaintiff rule altogether in ballot access
cases, but the Sixth and Ninth Circuits continue to apply the rule. And though the Fifth Circuit has relieved
some candidate-plaintiffs from satisfying the sameplaintiff requirement, it has done so only in cases
where plaintiffs could have easily met that requirement anyway.
Thus, Hall’s purported split is at best academic, as
the same-plaintiff rule is easily satisfied by any plaintiff in any circuit challenging ballot access regulations
that are likely to be applied again under similar circumstances.
By the same token, Hall’s challenge to the unique
circumstances that applied to him during this once-ina-lifetime special election for a specific U.S. House
District would fail in any circuit. He challenged Alabama’s 3% signature requirement as it applied (1) to
himself alone, (2) in a special election, (3) for a U.S.
House District, (4) with 106 days to collect signatures.
And the Eleventh Circuit properly found the case
moot following the special election, noting that because circumstances materially similar to these were
3
extremely unlikely to reoccur in Hall’s lifetime, the
court could “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.”
Pet.App.22a.
In any event, Hall’s case is a poor vehicle for considering this issue. Even setting aside the sameplaintiff requirement, Hall’s case is moot several
times over. Most notably, a key regulation that delayed when Hall could start gathering signatures no
longer exists. Had current regulations been in effect
in 2013, Hall would have had significantly more time
to gather signatures. And any decision on Hall’s case
would necessarily be constrained to facts concerning a
regulation that no longer applies, meaning it would
provide no benefit to Hall or any hypothetical candidate.
Finally, this Court already denied review of this issue only three years ago, in a case that was free of the
numerous vehicle problems present here. See
Stop Reckless Economic Instability Caused by Democrats (Stop REID) v. FEC, 814 F.3d 221 (4th Cir.
2016), cert. denied, 137 S. Ct. 374 (2016). The Court
should deny review again.
STATEMENT OF THE CASE
A. Alabama Law Requires Independent Candidates to Petition for Ballot Access
Alabama law provides two means to achieve ballot
access. First, political parties that “have recently
demonstrated substantial voter appeal,” Am. Party of
Tex. v. White, 415 U.S. 767, 783 n.16 (1974), such as
4
the Democratic and Republican Parties, may achieve
ballot access based on their recent electoral performance. ALA. CODE § 17-13-40. Alternatively, independent candidates and political parties that have not
demonstrated voter appeal through election results
may seek ballot access via petition. ALA. CODE § 17-622.
Candidates petitioning for ballot access in regularly-scheduled or special elections must gather signatures of registered voters in the State (for statewide
offices) or in the relevant political subdivision (for
other offices) numbering 3% of the ballots cast in that
jurisdiction in the most recent gubernatorial election.
ALA. CODE § 17-9-3(a)(3). Because not all registered
voters actually participate in elections, the requirement only amounted to 1.4% of registered voters for
the 2013 special election at issue here. Doc. 23-1 at
¶¶22-26.1 Alabama’s 3% signature requirement is
less restrictive than several signature requirements
upheld by this Court and other courts. See Swanson v.
Worley, 490 F.3d 894, 899 (11th Cir. 2007).
The Eleventh Circuit has also recognized several
“alleviating factors” of Alabama’s ballot access scheme
that “ameliorate any burden on the plaintiffs’ constitutional rights.” Id. at 904, 909. In addition to the
relatively low signature requirement, voters may sign
multiple petitions for different candidates and are not
obligated to refrain from voting, or otherwise participating, in the electoral process of any other party.
Doc. 23-2 at ¶4; cf. Am. Party of Tex., 415 U.S. at 785
n.17 (upholding Texas law restricting the pool of persons qualified to sign the petitions to those who had
1 “Doc.” numbers correspond to district court docket entries.
5
not participated in the primary election). Moreover,
there is no fee for signature verification, and signatures count (even if missing relevant voter information) so long as the Secretary can verify their identity. Doc. 23-2 at ¶4; cf. Fulani v. Krivanek, 973 F.2d
1539, 1540 (11th Cir. 1992) (upholding Florida law imposing fee for verifying signatures so long as not unduly burdensome). History demonstrates that diligent candidates and political parties achieve ballot access through petition. See Doc. 23-1 at ¶¶2-13; Doc.
23-1 at 10; Doc. 23-20 at ¶¶5–6; Doc. 23-21 at 16-17.
B. Former Congressman Jo Bonner’s Resignation Announcement Leads to a Special
Election in 2013
On May 23, 2013, then-Congressman Jo Bonner of
Alabama’s First Congressional District announced,
with great notice, that he was resigning, effective August 15, 2013. Pet.App.48a.2 It was then immediately
clear that a special election would occur to fill the seat,
and independent candidates, Republicans, and Democrats filed statements of organization before the special election date was announced. Id. at 48a-49a. The
forthcoming vacancy was announced 124 days before
the date set for filing ballot access petitions. Id. at
48a-51a.
Once Bonner vacated his seat, the Governor set the
dates for the special election primary—which is also
the date ballot access petitions are due—and the general election. See Doc. 23-4; see also ALA. CODE § 179-3. These dates were announced 56 days before
2 Bonner later moved his resignation date to August 2 to allow
the State to fill his seat by the end of the year. See Doc. 23-6.
6
petitions were due, promptly after Bonner vacated his
seat. Pet.App.50a.
In 2013, Alabama’s electoral regulations required
independent candidates to identify on the ballot petition the specific election for which they were running
as well as the election date. See Ala. Admin. Code R.
820-2-4-.05(l) (2001). In the context of special elections, the regulation had the effect of limiting the time
for petitioning. After Hall inquired about the requirement, the Secretary of State granted him a special exception from it, which gave Hall 106 days to gather
signatures before petitions were due. Pet.App.51a. In
2015, this election-date requirement was eliminated
for independent candidates seeking ballot access in
special elections, meaning that independent candidates now have in theory an unlimited amount of time
to petition for a spot on a special election ballot. See
Ala. Admin. Code R. 820-2-4-.05(l) (2015). But the
regulation’s application in 2013 shortened Hall’s time
to gather signatures by at least 18 days (the length of
time between Bonner’s announcement and Hall’s special exception to begin gathering signatures).
C. Hall Unsuccessfully Attempts to Gain Ballot Access as an Independent Candidate
To achieve ballot access for the 2013 special election, independent candidates needed to submit the
signatures of 5,938 voters—approximately 1.4% of
registered voters in the district—by the day of the primary election. Pet.App.50a.
Hall gathered signatures during the 106 days he
had under the old regulation, but he collected only
“roughly one signature for every 12 houses” he canvassed. Pet.App.51a. Ultimately, after 3½ months of
7
campaigning, Hall obtained only 2,835 unverified signatures. Id. at 52a. As he failed to make a “preliminary showing of a significant modicum of support,” the
Secretary of State was unable to place him on the ballot. Jenness v. Fortson, 403 U.S. 431, 442 (1971);
Pet.App.67a.
Hall asserted that he did not pay signature gatherers to help him obtain ballot access because, at $4per-signature, the roughly $23,000 he would need to
spend was “a prohibitive sum.” Pet.4-5; see also 1st
Am. Compl. ¶44 (explaining Hall’s refusal to pay a signature-gatherer because “he is a person of limited financial means”). It is unclear whether Hall raised or
spent any funds for his candidacy. See James Hall for
Congress, Committee Filings, FED. ELECTION COMM’N
(2014) (Hall filed no forms with the FEC except to organize and terminate his campaign).3
Meanwhile, other candidates attempting to secure
ballot access through a party primary raised and
spent substantial sums of money. The eventual winner of the Republican primary in this heavily Republican district, Bradley Byrne, raised about $241,000
and spent about $132,000 in the time period from July
1, 2013 to September 4, 2013.4 Another Republican
candidate, Wells Griffith, raised about $162,000 and
spent about $75,000 during this time period.5 Yet
3 FEC filings available at: https://bit.ly/2Yqf3Jx (last visited July
25, 2019).
4 FEC document available at: https://bit.ly/2LGal4n (last visited
July 25, 2019).
5 FEC document available at: https://bit.ly/2JQct7s (last visited
July 25, 2019).
8
another Republican, Dean Young, spent approximately $55,000 during this time period.6 Even the
winner of the uncompetitive Democratic primary
raised approximately $6,650 and spent $5,650 ahead
of the primary. Id.7 To earn a spot on the general
election ballot, Byrne had to win a primary runoff in
which more than 72,000 people voted.8
D. Hall Files Suit, and the Eleventh Circuit
Determines His Case is Moot
Roughly four months after Bonner announced his
pending resignation and more than three months after Hall began gathering signatures, Hall filed suit in
the Middle District of Alabama. Pet.App.54a. He
challenged Alabama’s 3% signature requirement as
applied to the timeframe of the 2013 special election,
arguing that it violated his constitutional rights as a
candidate and voter. Id. Although Hall’s complaint
requested “a preliminary and permanent injunction,”
Doc.2 at 9, Hall did not move for a preliminary injunction until more than a month after the signature deadline had passed. Doc. 25. The district court denied his
motion for a preliminary injunction placing him on the
ballot, and the Eleventh Circuit affirmed.
Pet.App.55a-56a. Among the reasons the district
court gave when denying the motion was that Hall
waited to move for a preliminary injunction until after
6 FEC document available at: https://bit.ly/2GsZs1R (last visited
July 25, 2019).
7 FEC document available at: https://bit.ly/2Y7Q2DN (last vis-
ited July 25, 2019).
8 Theresa Seiger, Final Results from Tuesday’s AL-01 Special
Runoff Election, AL.com (Nov. 6, 2013), https://bit.ly/2YvNTwX
(last visited July 30, 2019).
9
ballots had already been mailed to overseas voters.
Id. at 56a.
Since the election, the Secretary of State has
raised three mootness arguments. First, the Secretary argued, the Governor has the sole authority to set
election dates and petition deadlines. ALA. CODE § 1715-1. Therefore, the amount of time an independent
candidate has to gather signatures depends on when
a representative resigns and how the Governor decides to exercise her discretion. Thus, future special
elections will likely operate on a different timeframe
than the 2013 special election. Id. Second, the Secretary argued, special elections for Alabama’s First Congressional District are so rare that there is no reasonable expectation that Hall will ever be similarly affected by the signature requirement in his lifetime.
Doc.41. Third, Hall has since run for office and actively campaigned as a Republican, and in doing so,
certified that he is a Republican who “endorse[s] and
will actively support the principles and policies of the
Republican Party.” Doc.62-1 at 6. Given that Hall
certified he was a Republican only about two weeks
after submitting a sworn declaration of his intent to
seek elective office as an independent candidate, the
Secretary argued there was no reasonable expectation
Hall would again be subject to similar circumstances
as in 2013. Doc.66 at 2; see Doc.48-1.
The district court disagreed with the Secretary’s
mootness arguments and ruled that Alabama’s ballot
access scheme was unconstitutional as applied to the
specific circumstances and timeframe of the 2013 special election. Pet.App.62a, 66a, 88a. The district
court’s ruling was both narrow and broad. First, the
court declined to “hold that that the 3% signature
10
requirement can never be enforced,” holding instead
that “it cannot be enforced in the context of an off-season special election occurring on a similarly limited
timeframe.” Pet.App.88a. But the court also purported to enter “relief extending to all prospective independent candidates, and not just to Hall.”
Pet.App.87a-88a (emphasis added). Despite issuing
this declaratory judgment, the district court acknowledged that “this is a problem that should be addressed
legislatively.” Pet.App.88a.
The Secretary appealed the district court’s decision. Before oral argument, the Eleventh Circuit
flagged an additional mootness issue. 11th Cir.
Memo. To Counsel Re: Mootness (Nov. 21, 2017). The
court noted that the regulation limiting Hall’s time to
gather signatures in advance of the 2013 special election had been changed and now provides candidates
unlimited time to gather signatures ahead of the petition deadline. Id.
The Eleventh Circuit held that Hall’s case was
moot “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.” Id. at 22a. The court reasoned that special
elections in Alabama’s First Congressional District
are so rare that there could be no reasonable expectation that Hall would again participate in another one
in his lifetime, either as a candidate or a voter.
Pet.App.20a. And the court declined to credit Hall’s
statement that if a special election for a U.S. Congressional seat were to arise in another part of the state,
on very short notice, Hall would run in that election.
Id. at 20a-21a. The Eleventh Circuit, “confident”
11
Hall’s case was moot on these grounds, did not address other reasons the case might be moot. Id.
REASONS FOR DENYING THE PETITION
I. There Is No Meaningful Split Among the
Courts of Appeals on This Issue.
The capable-of-repetition-yet-evading-review exception to mootness “applies where (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.” FEC v. Wis.
Right to Life, Inc., 551 U.S. 449, 462 (2007) (WRTL)
(internal quotation omitted). Hall asserts that there
is a three-way split among the circuits as to how or
even whether to apply the second prong of that test in
election law cases. See Pet.11-19. But that split is
merely academic, if not illusory. The fact is that all
circuits apply a relaxed version of the same-plaintiff
requirement in election law cases, to the point where
the requirement is quite easy to satisfy. See
Pet.App.15a (“several scholars have suggested that
the [same-plaintiff requirement] is applied in a rather
relaxed manner”). Hall does not dispute that the
First, Third, Fourth, Seventh, Eighth, Tenth, and
D.C. Circuits adjudicate cases in this manner.
Hall contends that the Second and Eleventh Circuits have departed from these circuits by ratcheting
up the showing a candidate must make to meet the
same-plaintiff rule. But this assertion is belied by decisions from those courts applying a standard as relaxed as any of their sister circuits.
12
That leaves the Fifth, Sixth, and Ninth Circuits,
which Hall asserts have dispensed with the sameplaintiff rule in election law cases. But despite some
loose language in a few opinions, the requirement is
clearly alive and well in the Sixth and Ninth Circuits.
And while the Fifth Circuit may have concluded that
application of the same-plaintiff requirement is so relaxed that it may no longer apply at all in certain election law cases, the court applies this approach only in
cases where a plaintiff could easily meet the sameplaintiff rule that governs in every other circuit.
A. The Fifth, Sixth, and Ninth Circuits Generally Apply a Relaxed Same-Plaintiff Requirement.
Hall agrees that most circuits apply the sameplaintiff rule, albeit in a relaxed form. See Pet.15-18.
He asserts, however, that the Fifth, Sixth, and Ninth
Circuits have lowered the bar so far in election law
cases that it no longer exists. Decisions from the Sixth
and Ninth Circuits, however, make clear that those
courts still retain the same-plaintiff rule, and to the
extent the Fifth Circuit takes a different tact, it does
so only in cases where nearly any plaintiff could meet
the requirement.
Hall’s argument as to the Sixth Circuit (at Pet.13)
turns on one line from Lawrence v. Blackwell, 430
F.3d 368, 372 (6th Cir. 2005). But that language is
likely dicta, as the court had already held that the
plaintiff had satisfied the same-plaintiff requirement,
and the Sixth Circuit has repeatedly applied the
same-plaintiff requirement in election law cases, both
before and after Lawrence. See, e.g., In re: 2016 Primary Election, 836 F.3d 584, 588-89 (6th Cir. 2016)
13
(dismissing case for failing same-plaintiff requirement because the complaining party could not be identified); Tigret v. Cooper, 595 F. App’x 554, 557-68 (6th
Cir. 2014) (dismissing case for failing same-plaintiff
requirement because elections for consolidation of city
and county governments “are not regularly scheduled
and do not occur frequently” so there was no reasonable expectation of future injury to same plaintiffs); see
also Ohio Council 8 Am. Fed’n of State v. Husted, 814
F.3d 329 (6th Cir. 2016) (expressly acknowledging the
same-plaintiff requirement was satisfied); Speer v.
City of Oregon, 847 F.2d 310, 311-12 (6th Cir. 1988)
(“Because Speer cannot again be subjected to the
claimed illegality, we are persuaded that her claim
should be deemed moot.”).
Nor has the Ninth Circuit eliminated the sameplaintiff requirement in election law cases. Hall (at
14) points to language from Schaefer v. Townsend, 215
F.3d 1031 (9th Cir. 2000), but before the court opined
on the existence of the requirement, the court specifically found that “Schaefer’s claim [wa]s capable of repetition because in the future California would deny
him or any other resident the right to file a declaration of candidacy.” Id. at 1033 (emphasis added). In
any event, the Ninth Circuit has continued to apply
the same-plaintiff rule in election law cases, also dismissing cases where the requirement was not met.
See, e.g., Akina v. Hawaii, 835 F.3d 1003 (9th Cir.
2016) (per curiam) (dismissing plaintiffs’ appeal of
preliminary injunction over election practices for failing same-plaintiff requirement because it was unlikely a similar election would ever reoccur); Newcomb
v. U.S. Office of Special Counsel, 550 F. App’x 532 (9th
Cir. 2013) (dismissing even though the “cloud of Hatch
14
Act enforcement” hindered plaintiff’s election to a
school board because he indicated he would no longer
run in such elections, meaning the injury was “not capable of repetition,” even though other federal employees could run in such elections); see also, e.g., Human Life of Wash. Inc. v. Brumsickle, 624 F.3d 990
(9th Cir. 2010) (expressly acknowledging the sameplaintiff requirement was satisfied); Wolfson v. Brammer, 616 F.3d 1045 (9th Cir. 2010) (same); Padilla v.
Lever, 463 F.3d 1046 (9th Cir. 2006) (same).
The Ninth Circuit has even expressly questioned
whether Schaefer is good law. In Wolfson, the Ninth
Circuit, after finding Wolfson had “more than sufficient evidence” to satisfy the same-plaintiff test, wrote
that “[a]lthough the parties have vigorously disputed
the viability, meaning, and import of Schaefer, we
need not weigh in on the matter…. We therefore leave
for another case the significance of Schaefer in this
Circuit.” 616 F.3d at 1055-56.
While the Fifth Circuit has eliminated the sameplaintiff requirement in some election law cases, it has
done so only in those election law cases where the
plaintiff could have satisfied the requirement anyway—and retained the requirement in cases where
the plaintiff might not. See, e.g., Libertarian Party v.
Dardenne, 595 F.3d 215, 218 n.6 (5th Cir. 2010) (explaining that not all election law cases “automatically
fall[]” under the exception to the same-plaintiff requirement). In order to invoke the exception to the
same-plaintiff requirement, a plaintiff must show that
“the challenged illegality will again occur” and that
“other individuals certainly will be affected by the continuing existence of the challenged provision.” Catholic Leadership Coalition of Texas v. Reisman, 764
15
F.3d 409, 424 (5th Cir. 2014) (emphasis added) (internal quotations omitted). In other words, the plaintiff
must show that the challenged law will injure someone else again in a materially similar way. While this
approach appears out-of-sync with the other circuits,
the practical effect is that cases will almost always
survive or be dismissed exactly the same in the Fifth
Circuit as in other circuits.
B. The Second and Eleventh Circuits, Like
Other Circuits, Apply a Relaxed SamePlaintiff Requirement.
Hall tries to manufacture a split by asserting that
the Second and Eleventh Circuits have departed from
other circuits by “demand[ing] significant evidence
that a candidate-plaintiff will again suffer the complained of injury.” Pet.14. But numerous decisions
from these courts prove otherwise.
To the extent the Second Circuit ever “demand[ed]
significant evidence” that an injury would reoccur, it
dropped such demands following this Court’s decisions in more recent election law cases. Pet.14. Hall
relies on the Second Circuit’s decision in Van Wie v.
Pataki, 267 F.3d 109 (2d Cir. 2001), in which the court
disregarded plaintiffs’ assertion that they would again
participate in presidential primaries in the same way.
But since 2001, this Court has clarified the application of the same-plaintiff requirement in election law
cases in WRTL, 551 U.S. 449, and Davis v. FEC, 554
U.S. 724 (2008).
In WRTL, this Court found the same-plaintiff requirement satisfied because plaintiff “credibly
claimed” it would again participate in an election in
the same way and “there [wa]s no reason to believe
16
that the FEC” would refrain from again causing an injury. 551 U.S. at 463. In Davis, this Court found the
requirement satisfied based solely on “a public statement” expressing plaintiff’s intent to repeat his actions. 554 U.S. at 736.
The Second Circuit has acknowledged these precedents and since found that a plaintiff’s statements
that he would again suffer a similar injury is sufficient to satisfy the same-plaintiff requirement in election law cases. See Nat’l Org. for Marriage, Inc. v.
Walsh, 714 F.3d 682, 692 (2d Cir. 2013) (finding the
same-plaintiff rule met because “[t]his case is like
Wisconsin Right to Life”); see also Van Allen v. Cuomo,
621 F.3d 244, 247 (2d Cir. 2010) (suggesting a case
would not be moot if plaintiff had alleged he would
again suffer injury).
Sloan v. Caruso, 566 Fed. App’x 98 (2d Cir. 2014),
does not show that a candidate-plaintiff’s statement
he would run again is insufficient to satisfy the sameplaintiff requirement. Contra Pet.15. Rather, that
case merely demonstrates that the Second Circuit will
not credit objectively unreasonable statements of future intent to participate in similar elections. The
plaintiff in Sloan failed to appear on the ballot due to
his own procedural error, by ignoring New York’s requirement that witnesses to a Republican nominating
petition be registered Republicans. Id. at 98-99. In
light of the obvious fact that a candidate would not
repeat this error in good faith, the Second Circuit correctly found the likelihood the same situation would
again arise to be a “mere theoretical possibility.” Id.
at 99.
17
Hall’s contentions regarding the Eleventh Circuit
are likewise baseless. The Eleventh Circuit has never
demanded “significant evidence” that a candidateplaintiff in an election law case will again suffer injury. In Swanson v. Worley, 490 F.3d 894 (11th Cir.
2007), Alabama’s 3% signature requirement for ballot
access was challenged in the context of regularlyscheduled elections, as opposed to special elections on
a specific timeframe. The Eleventh Circuit determined that plaintiffs satisfied the same-plaintiff requirement because even “absent plaintiffs’ expressed
intent to run again, plaintiffs are certainly capable of
doing so, and it is reasonable to expect that they will
do so in the future.” Id. at 905 n.13. Likewise, in Arcia v. Florida Secretary of State, the court set a low
bar for plaintiffs, which they cleared merely because
the Florida Secretary of State had “not offered to refrain from” election practices similar to those that
caused plaintiffs’ original injury. 772 F.3d 1335, 1343
(11th Cir. 2014).
Hall’s problem was that he could not clear even
this low bar, because his alleged injury is both very
specific and very rare. The Eleventh Circuit correctly
determined that it was unreasonable to conclude that
Hall would ever again have the opportunity to participate in a special election like the previous one in his
House district or in another House district. Hall does
not identify a circuit that has considered a challenge
like his to election laws as applied in only special elections. Any circuit, however, would find his case moot,
for the unique facts of his case show that the purported harms caused by the 2013 special election are
unlikely to ever befall him or even a hypothetical candidate. See Part II.
18
II. This Case Is a Poor Vehicle for Resolving
This Unimportant Question.
A. The Question Presented Is Unimportant.
Because the same-plaintiff requirement is easily
satisfied, similar ballot access challenges tend to result in similar outcomes, no matter which circuit decides the case. Thus, any purported disagreement
among the circuits on whether to apply the requirement is unlikely to have any practical effect on litigants.
Consider every case Hall cites as purportedly dispensing with the same-plaintiff requirement. Some of
these cases suggested eliminating the same-plaintiff
requirement only after finding that plaintiff satisfied
the requirement. See Ctr. for Individual Freedom v.
Carmouche, 449 F.3d 655, 662 (5th Cir. 2006); Lawrence, 430 F.3d at 371 (6th Cir.); Schaefer, 215 F.3d at
1033 (9th Cir.). The other cases featured plaintiffs
who easily could have satisfied the requirement, by
simply stating they would again run for office in the
next regularly scheduled election or circulate another
ballot initiative. See Kucinich v. Tex. Democratic
Party, 563 F.3d 161, 165 (5th Cir. 2009); Moore v.
Hosemann, 591 F.3d 741, 744 (5th Cir. 2009); Caruso
v. Yamhill Cty., 422 F.3d 848, 854 (9th Cir. 2005).
In general, plaintiffs will satisfy the same-plaintiff
requirement when challenging election laws that will
be regularly applied, because it is almost always reasonable to assume candidates will again participate in
19
recurring elections. See, e.g., Platt v. Board of
Comm’rs on Grievances and Discipline of Ohio Supreme Court, 769 F.3d 447, 453 (6th Cir. 2014)
(“[C]hallenges by a former candidate are typically capable of repetition because the plaintiff retains the
right to run for judicial office again.” (internal quotations omitted)); Pet.App.8a (noting that “ballot access
restrictions during a regular election cycle … would
almost certainly repeat every few years, presenting
[those] politicians with repeated opportunities to
run”). In contrast, Hall’s challenge is to the specific
application of a ballot access law on a specific
timeframe for a once-in-a-lifetime special election that
may never reoccur. Pet.App.8a.
Indeed, Hall’s case demonstrates that the circuits
fundamentally agree on how to determine mootness in
election law cases. Hall asserts that in the Fifth,
Sixth, and Ninth Circuits, his case “would have continued because those circuits have dispensed with the
same-plaintiff requirement altogether.” Pet.24. But
this Court “has never held that a mere physical or theoretical possibility was sufficient to satisfy the [capable of repetition, yet evading review] test.” Murphy v.
Hunt, 455 U.S. 478, 482 (1982). And consistent with
this Court’s teaching, these circuits continue to require that there be a reasonable expectation the injury will reoccur within a meaningful timeframe.
In the Fifth Circuit, for example, Hall’s case would
have been subject to the same-plaintiff requirement.
Because there is no way to predict when, or if, special
elections for U.S. House seats in Alabama will reoccur, much less that independent candidates will again
be subject to the 3% signature requirement on a similar timeframe, Hall cannot show that “the challenged
20
illegality will again occur” and that “other individuals
certainly will be affected by the continuing existence
of the challenged provision.” Catholic Leadership Coalition, 764 F.3d at 424 (emphasis added). Hall’s case
thus would have been moot in the Fifth Circuit.
The Sixth Circuit has already heard a case very
similar to Hall’s and dismissed that case as moot. Tigret v. Cooper, 595 F. App’x 554 (6th Cir. 2014), concerned a Tennessee law permitting cities and counties
to consolidate into one jurisdiction by referendum.
Tenn. Const. art. XI, § 9. In 2010, immediately before
one such referendum was held, residents and voters
from Memphis challenged Tennessee’s consolidation
law. The referendum failed, and a Sixth Circuit panel
found plaintiffs’ ongoing case moot because it was only
a “mere physical or theoretical possibility” the situation would reoccur. Tigret, 595 F. App’x at 558. Although the Sixth Circuit acknowledged that mootness
determinations are “somewhat relaxed in election
cases,” the consolidation referendum “differs from
other elections courts have reviewed,” for “unlike in
most elections, consolidation elections are not regularly scheduled and do not occur frequently.” Id. Because only three such consolidation elections had occurred in Memphis in the past century, and the previous one was nearly 40 years prior, “[i]t is possible that
the next consolidation election will not occur again for
another half-century.” Id. at 557-58.
The Ninth Circuit’s recent ruling in Akina v. Hawaii, 835 F.3d 1003 (2016) (per curiam), likewise indicates that Hall’s case would be moot in that circuit.
In 2015, Hawaii sought, with the help of a nonprofit,
to form a convention to vote on Native Hawaiian selfdetermination, pursuant to a state law. Akina, 835
21
F.3d at 1008. Delegates were to be restricted to Native Hawaiians. Id. Residents sued, challenging the
delegate-selection process as unconstitutional, and
appealed the district court’s denial of a preliminary
injunction halting the election. Id. at 1009. Because
Hawaii and the nonprofit had since cancelled the election, and the nonprofit had dissolved, the Ninth Circuit held the residents’ interlocutory appeal moot. Id.
at 1010-11. Specifically, the Ninth Circuit found that
“it remains unclear what such an election would look
like, who would hold it, and when it would take place,
if at all,” and so “there is no reasonable expectation
that the plaintiffs will be subject to the same injury
again.” Id. at 1009, 1011 (emphasis added).
Because no one can predict under what circumstances another special election in Alabama’s 1st Congressional District will reoccur, if at all, a ruling on
Hall’s case “would amount to an impermissible advisory opinion that would, at most, guide any future …
efforts.” Akina, 835 F.3d at 1011. And because the
purportedly lenient Fifth, Sixth, and Ninth Circuits
would likely find Hall’s case moot, the question he presents is merely academic and does not merit this
Court’s review.
B. Hall’s Case Is Moot Several Times Over.
Beyond failing the same-plaintiff requirement for
the reasons stated by the Eleventh Circuit, there are
other significant jurisdictional issues with Hall’s case
that render it moot in other ways.
First, the regulation that limited Hall’s time to
gather ballot signatures in the 2013 special election
has been amended. Under the State regulation in effect at the time of the 2013 special election,
22
independent candidates seeking ballot access needed
to gather signatures on petitions indicating the date
of the special election. Ala. Admin. Code R. 820-2-4.05(l) (2001). But because the Governor could not
schedule the special election until the House seat was
vacant, more than two months passed between when
the vacancy was announced and when Governor set
the date of the special election. See Pet.App.48a-50a.
Hall asked the Secretary whether he could begin collecting signatures before the special election was
scheduled, and 18 days after the vacancy announcement, the Secretary approved Hall’s request to use petitions that did not list the date of the special election.
Id. at 49a. Accordingly, although the vacancy was announced 124 days before the petition deadline, Hall
had only 106 days to gather signatures. Id. at 48a51a.
Moreover, Hall argues that the relevant
timeframe here is the “56 days” between the petition
deadline and “the date … the special election had been
set.” Pet.4; see also Pet.App.50a (“Hall contends that
independent candidates had 56 days to obtain the necessary signatures.”).
But in 2015, Alabama’s ballot access regulations
were amended to allow independent candidates to
gather signatures for special elections without knowing the date of those elections. Ala. Admin. Code R.
820-2-4-.05(l) (2015). Thus, if the unique events of
2013 reoccurred today, Hall would have 124 days between the announcement of the vacancy and the ultimate deadline for filing his petition. And in theory,
Hall would have an unlimited amount of time to
gather petitions for the election. “[T]he necessary effect of the enactment of this [regulation]
is to make the cause a moot one,” United States v.
23
Alaska S.S. Co., 253 U.S. 113, 115 (1920), for as Judge
William Pryor explained during oral argument,
“whether [the regulatory change] is a big difference or
not, it’s a different case.” See 11th Cir. Oral Arg. at
4:05-4:12.9
The fact is, the regulatory change is “a big difference” because independent candidates now have theoretically unlimited time to gather signatures for the
next special election. This line of reasoning was crucial to the Eleventh Circuit’s holding that Alabama’s
3% signature requirement is constitutional in regularly-scheduled elections. See Swanson, 490 F.3d at
906, 909-10 (upholding Alabama’s 3% signature requirement in part because of “the unlimited time to
gather signatures”); see also Pet.App.72a (noting that
“the Swanson court particularly emphasized that the
Alabama scheme” imposed “no limit on the time period for gathering signatures”). Hall himself, in attempting to distinguish his case from Swanson, explained that he had only a “significantly truncated
time period” for gathering signatures for special elections, while “the time period for independents to
gather signatures in a regular election year in Alabama” is “unlimited.” Hall CA11 Br. 12; see also
Pet.30 (“Here, Hall had at most 106 days—as compared to the unlimited timeframe for regular elections.”).
Of course, Hall may protest that he is unlikely to
collect signatures for a special election that may never
again occur in his lifetime. But that merely underscores how unlikely it is that a federal court could ever
9Available at: https://bit.ly/2LDzMDX (last visited July 25, 2019).
24
provide him any meaningful relief in this challenge to
the unique signature requirements and timeframe for
an exceedingly rare special election.
Hall’s case is further moot for two other reasons
not reached by the Eleventh Circuit. First, the Governor has complete discretion when setting election
dates and petition deadlines. ALA. CODE § 17-15-1.
Hall thus cannot demonstrate that anyone will again
be subject to Alabama’s 3% signature requirement for
a Congressional special election on a timeframe similar to the one used in 2013. Merely showing that the
State “will have an opportunity to act in the same allegedly unlawful manner in the future” is not enough
to establish a “reasonable expectation” that the controversy will reoccur. Libertarian Party, 595 F.3d at
217.
Second, although Hall’s challenge was premised on
his status as an independent candidate, after he filed
his suit, Hall actively affiliated with the Republican
Party, even running for office as a Republican.
Pet.App.64a. Indeed, just two weeks after submitting
a sworn declaration to the district court averring that
he “intend[ed] to seek elective office in Alabama in the
future … as an independent candidate,” Doc.48-1,
Hall declared his candidacy for the Republican nomination for a seat in the Alabama Legislature, Doc.621 at 6. Hall certified that he was a Republican and
that he “endorse[s] and will actively support the principles and policies of the Republican Party.” Id. According to Republican Party guidelines, members may
not simultaneously be affiliated with the Republican
Party and be an independent. Pet.App.64a-65a. It is
thus unreasonable to expect Hall to be subject to
25
Alabama’s 3% signature requirement again in another special election in the same way he was in 2013.
Finally, Hall’s lead argument for his case being an
“ideal vehicle” for this question is that the parties
have never disputed the case is “evading review.”
Pet.23. But “legal disputes involving election laws almost always take more time to resolve than the election cycle permits.” Libertarian Party of Ohio v.
Blackwell, 462 F.3d 579, 584 (6th Cir. 2006). Thus,
nearly any election law case involving mootness will
have indisputably evaded review, but almost no such
case will come with the multiple other mootness problems afflicting Hall’s case.
Indeed, this Court was recently presented with a
better vehicle to consider the question Hall presents,
but the Court still denied certiorari. See Stop Reckless
Economic Instability Caused by Democrats (Stop
REID) v. FEC, 814 F.3d 221 (4th Cir. 2016), cert. denied, 137 S. Ct. 374 (2016). The petition in Stop REID
asked the Court to consider whether there is “an ‘election law’ exception to the same-plaintiff requirement
of the ‘capable of repetition, yet evading review’ doctrine.” Pet. at i, Stop REID v. FEC, No. 16-109 (U.S.
July 21, 2016). And petitioner’s case did not suffer
from the multitude of other mootness problems present here. Even so, the Court did not think the question merited review then, and nothing that has happened in the past three years has made the question
any more cert-worthy now.
26
III. The Eleventh Circuit’s Decision Is Correct.
A. This Court Has Not Exempted Election
Law Cases from Any “Reasonable Expectation” Requirement to Avoid Mootness.
“Article III of the Constitution limits federal-court
jurisdiction to ‘cases’ and ‘controversies,’” and “an actual controversy” must “be extant at all stages of review, not merely at the time the complaint is filed.”
Campbell-Ewald Co. v. Gomez, 136 S. Ct. 663, 669
(2016). Thus, once a court is no longer “capable of
granting the relief petitioner seeks,” his case is moot
unless the capable-of-repetition-yet-evading-review
exception to mootness applies. Kingdomware Techs.,
Inc. v. United States, 136 S. Ct. 1969, 1975 (2016).
And “[t]hat exception applies ‘only in exceptional situations,’ where (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. (quoting Spencer v.
Kemna, 523 U.S. 1, 17 (1998)) (cleaned up).
Hall asserts that the “best reading” of this Court’s
precedent shows that the Court has eliminated the
same-plaintiff requirement in election law cases.
Pet.25. But this Court has never allowed a challenge
to an election law (or any other law, for that matter)
to survive mootness when a plaintiff failed the sameplaintiff test. To be sure, in 1974, the Court permitted
the challenge in Storer v. Brown, 415 U.S. 724, to survive without explicitly holding whether the sameplaintiff requirement was satisfied. But since then,
this Court has repeatedly and explicitly applied a
same-plaintiff requirement in election law cases. See,
27
e.g., Davis v. FEC, 554 U.S. 724 (2008); FEC v. WRTL,
551 U.S. 449 (2007); Norman v. Reed, 502 U.S. 279
(1992); Meyer v. Grant, 486 U.S. 414 (1988); First National Bank v. Bellotti, 435 U.S. 765 (1978); Richardson v. Ramirez, 418 U.S. 24 (1974).
Hall cites four cases as implicitly eliminating the
same-plaintiff requirement. Pet.25. But two of these
cases were class actions that satisfied the same-plaintiff requirement under the theory that at least one
member of the class could reasonably expect to suffer
repeated injury. See Dunn v. Blumstein, 405 U.S. 330,
333 n.2 (1972) (holding that “Blumstein has standing
to challenge [residency requirements] as a member of
the class of people affected by the presently written
statute); Rosario v. Rockefeller, 410 U.S. 752, 755-56
nn.4-5 (1973) (noting case was class action and relying
on Blumstein when holding case was not moot); see
also Sosna v. Iowa, 419 U.S. 393, 401 (1975) (“Although the controversy is no longer alive as to appellant Sosna, it remains very much alive for the class of
persons she has been certified to represent.”); Weinstein, 423 U.S. at 149 (“In the absence of a class action,
the ‘capable of repetition, yet evading review’ doctrine
[requires] . . . a reasonable expectation that the same
complaining party would be subjected to the same action again.”).
The Eleventh Circuit correctly recognized that the
other two cases Hall relied on to support his election
law exception to the same-plaintiff requirement involved candidate-plaintiffs who easily satisfied the
same-plaintiff requirement because their past candidacies provided a reasonable expectation they would
run again in regularly occurring elections.
28
Pet.App.7a-8a, 13a-14a (discussing Storer, 415 U.S. at
724, and Moore v. Ogilvie, 394 U.S. 814, 816 (1969)).
Elimination of the same-plaintiff requirement
would be fundamentally inconsistent with this Court’s
Article III jurisprudence. The “capable of repetition,
yet evading review exception” exists as a means for
courts to provide prospective relief to specific plaintiffs who may again suffer the same injury. After all,
courts can adjudicate cases about only “the plaintiffs’
particular legal rights.” Already, LLC v. Nike, Inc.,
568 U.S. 85, 91 (2013). And if the court cannot grant
“any effectual relief” to the prevailing party, its decision on the legality of the matter is merely advisory.
City of Erie v. Pap’s A.M., 529 U.S. 277, 287 (2000).
Article III courts “do not sit to decide hypothetical issues or to give advisory opinions about issues as to
which there are not adverse parties before” them.
Princeton Univ. v. Schmid, 455 U.S. 100 (1982) (per
curiam).
B. The Eleventh Circuit Properly Assessed
Mootness in the Context of This Special
Election.
The Eleventh Circuit correctly evaluated the mootness of Hall’s case in light of the fact that he challenged only Alabama’s 3% signature requirement as
applied to special elections for U.S. House seats on a
specific timeframe.
The last special election in Alabama’s First Congressional District before 2013 was in 1935, and special elections for U.S. House seats in other districts of
the State have likewise been rare events. Pet.App.8a.
Acknowledging this, the Eleventh Circuit properly
found that there was no reasonable expectation that
29
Hall will again participate in a special election in his
home district in his lifetime, since one is not likely to
occur. Id. at 5a. Moreover, given the infrequency and
unpredictability of special elections, and the difficulty
associated with a last-minute move across the state
for a “person of limited financial means,” First Am.
Compl. ¶44, the Eleventh Circuit found there also was
no reasonable expectation that Hall would run as an
independent in a future special election outside his
house district. Pet.App.21a. In the absence of any
suggestion that Hall was willing to move to another
district upon the announcement of a mid-term U.S.
House vacancy, Hall’s unsupported statement that he
would again participate in a special election as an independent in any district could not give rise to a “reasonable expectation” that he would face the alleged
harms of 2013 again, especially when he has since run
for office as a Republican. See id. at 21a, 59a.
Hall claims that “[o]ther courts consistently treat
special and regularly-scheduled elections interchangeably with respect to analysis of mootness.”
Pet.31. But none of the cases Hall cites helps him.
First, ACLU of Ohio, Inc. v. Taft, 385 F.3d 641 (6th
Cir. 2004), merely demonstrates the flaw in Hall’s
particular challenge. In that case, the ACLU filed suit
on behalf of its members, who would otherwise have
standing to sue in their own right. Id. at 646. Thus,
a reasonable expectation existed that the injury would
reoccur to some member of the organization, even if
not to any individual plaintiff specifically. Cf. Sosna,
419 U.S. at 401. In contrast, Hall sued only on his
own behalf, making it much less likely that the harm
he identified would again befall a plaintiff in this case.
30
Next, Schaefer is irrelevant because the Ninth Circuit there found a reasonable expectation the law
would be applied against the plaintiff again in the
same way in both special and regularly-scheduled
elections. See Schaefer, 215 F.3d at 1034 n.2; see also
Pet.App.19a n.6 (“[A]lthough Schaefer involved a special election, the opinion suggests that the challenged
residency requirement would apply with equal or
greater force during regular election cycles.”). Meanwhile, Hall’s challenge is only to the application of Alabama’s 3% signature requirement to special elections
for U.S. House districts on a specific timeframe.
Pet.App.2a.
The last three cases Hall musters are similarly inapposite. Acosta v. Democratic City Committee, 288 F.
Supp. 3d 597 (E.D. Pa. 2018), sheds no light on this
case, as plaintiffs’ claims of voter intimidation did not
turn at all on whether the election was special or regularly scheduled. Gill v. Galvin merely “[a]ssum[ed]
arguendo that” plaintiff’s claims were “capable of repetition yet evad[ing] review,” before dismissing the
claims on other grounds. No. CV 16-11720-DJC, 2017
WL 2221185, at *4 (D. Mass. May 19, 2017). And
Constitution Party of Missouri. v. St. Louis County is
distinguishable from Hall’s case by the simple fact
that the court found “a reasonable probability that” a
vacancy on city council would “present itself in the future,” No. 4:15-CV-207 RLW, 2015 WL 3908377, at *3
(E.D. Mo. June 25, 2015), while there is little chance
that Hall will again have the opportunity to run for a
special election for the U.S. House.
31
C. The Eleventh Circuit Has Not Insulated
Ballot Access Challenges from Judicial
Review.
Hall contends that the Eleventh Circuit’s “rule
would leave ballot access restrictions ‘effectively immune from judicial review and correction’ in any case
involving an individual plaintiff.” Pet.31. But that
ignores the fact that Alabama’s 3% signature requirement already faced judicial scrutiny in a case involving individual plaintiffs on a different timeframe and
set of circumstances. See Swanson, 490 F.3d 894
(11th Cir. 2007).
Moreover, to the extent that the Eleventh Circuit’s
ruling in this case affects mootness considerations in
future election law cases, it does so only for uniquely
fact-bound challenges like Hall’s, which are about as
likely to arise as another special election in Alabama’s
First Congressional District.
Finally, as the Eleventh Circuit noted, Hall could
have tried to avoid mootness problems by bringing his
claim on behalf of a class. Pet.App.23a-24a. That
route 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 … would be adequately represented by vigorous advocacy.” Pet.App.24a.
Hall asserts that “there is simply no way to get a
class certified in a case like this,” Pet.31, and as proof,
he cites a study finding that “it takes on average 3.9
months to certify a class.” Pet.32. But in this case,
Hall learned of the upcoming election four months before it occurred, leaving him adequate time to file a
class action. And plaintiffs have a long history of
32
using class actions to satisfy the same-plaintiff requirement in election law contexts. See, e.g., Rosario,
410 U.S. 752; Blumstein, 405 U.S. 330. The Court
thus need not, and should not, create an election law
exception to Article III.
CONCLUSION
For the foregoing reasons, this Court should deny
the petition.
Respectfully submitted,
STEVE MARSHALL
Attorney General
EDMUND G. LACOUR JR.*
Solicitor General
MISTY S. FAIRBANKS
MESSICK
Assistant Attorney General
OFFICE OF THE ALABAMA
ATTORNEY GENERAL
501 Washington Avenue
Montgomery, AL 36130
(334) 242-7300
elacour@ago.state.al.us
July 31, 2019
*Counsel of Record
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