Petition for Writ of Certiorari — James Hall, Petitioner v. John H. Merrill, Alabama Secretary of State

No. 18-___

IN THE

JAMES HALL,

v.

Petitioner,

SECRETARY, STATE OF ALABAMA,

Respondent.

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Eleventh Circuit

PETITION FOR A WRIT OF CERTIORARI

Jeffrey L. Fisher

Brian H. Fletcher

Pamela S. Karlan

Leah M. Litman

STANFORD LAW SCHOOL

SUPREME COURT

LITIGATION CLINIC

559 Nathan Abbott Way

Stanford, CA 94305

David I. Schoen

Counsel of Record

DAVID I. SCHOEN,

ATTORNEY AT LAW

2800 Zelda Road

Suite 100-6

Montgomery, AL 36106

(334) 395-6611

schoenlawfirm@gmail.com

QUESTION PRESENTED

This Court has long recognized an exception to the

mootness doctrine for a controversy that is “capable of

repetition, yet evading review.” S. Pac. Terminal Co. v.

ICC, 219 U.S. 498, 515 (1911). The courts of appeals

are split over how this exception applies to cases

involving elections. This case presents the following

question:

Under what circumstances can a candidate

continue to challenge a ballot-access rule after the

election over which he originally sued has passed?

ii

TABLE OF CONTENTS

QUESTION PRESENTED ........................................... i

TABLE OF AUTHORITIES ....................................... iv

PETITION FOR A WRIT OF CERTIORARI .............. 1

OPINIONS BELOW .................................................... 1

JURISDICTION........................................................... 1

RELEVANT CONSTITUTIONAL PROVISION ........ 1

INTRODUCTION ........................................................ 2

STATEMENT OF THE CASE..................................... 3

REASONS FOR GRANTING THE WRIT ................ 11

I.

There is a three-way split among the courts

of appeals over the question presented. ............. 11

II. It is important that this Court resolve the

question presented. ............................................. 19

III. This case is the right vehicle for resolving

the question presented. ....................................... 23

IV. The Eleventh Circuit’s decision is wrong. .......... 24

A. The Eleventh Circuit misconstrues this

Court’s precedent governing the

“capable of repetition” requirement. ............ 25

B. The class action device cannot solve the

mootness

problem

the

Eleventh

Circuit’s decision creates. ............................. 31

CONCLUSION .......................................................... 33

APPENDIX

Appendix A, Opinion (published) of the U.S.

Court of Appeals for the Eleventh Circuit,

dated August 29, 2018......................................... 1a

iii

Appendix B, Opinion (published) of the U.S.

District Court, Middle District of Alabama,

dated September 30, 2016 ................................. 45a

Appendix C, Memorandum Opinion and Order

(published) of the U.S. District Court,

Middle District of Alabama, dated March 3,

2014 .................................................................... 89a

Appendix D, Order of the U.S. Court of Appeals

for the Eleventh Circuit, denying petition

for rehearing and rehearing en banc, dated

December 13, 2018 .......................................... 104a

iv

TABLE OF AUTHORITIES

Page(s)

Cases

ACLU of Ohio, Inc. v. Taft,

385 F.3d 641 (6th Cir. 2004) ............................... 31

Acosta v. Democratic City Comm.,

288 F. Supp. 3d 597 (E.D. Pa. 2018) ................... 31

Anderson v. Celebrezze,

460 U.S. 780 (1983) ................................. 20, 21, 28

Barr v. Galvin,

626 F.3d 99 (1st Cir. 2010)............................ 16, 18

Belitskus v. Pizzingrilli,

343 F.3d 632 (3d Cir. 2003) ........................... 16, 22

Burdick v. Takushi,

504 U.S. 428 (1992) ............................................. 31

Caruso v. Yamhill Cty.,

422 F.3d 848 (9th Cir. 2005) ............................... 14

Constitution Party of Mo. v. St. Louis Cty.,

No. 4:15-CV-207 RLW, 2015 WL 3908377

(E.D. Mo. June 25, 2015) ..................................... 31

Ctr. for Individual Freedom v. Carmouche,

449 F.3d 655 (5th Cir. 2006) ............................... 13

Cty. of Riverside v. McLaughlin,

500 U.S. 44 (1991) ............................................... 32

Davis v. FEC,

554 U.S. 724 (2008) ................................... 2, 19, 27

Dekom v. New York,

No. 12-CV-1318 (JS)(ARL), 2013 WL

3095010 (E.D.N.Y. June 18, 2013), aff’d,

583 Fed. Appx. 15 (2d Cir. 2014) ........................ 15

v

Dennin v. Conn. Interscholastic Athletic

Conference, Inc.,

94 F.3d 96 (2d Cir. 1996)..................................... 15

Dunn v. Blumstein,

405 U.S. 330 (1972) ....................................... 14, 25

FEC v. Wisc. Right to Life, Inc.,

551 U.S. 449 (2007) ....................................... 19, 27

Friends of the Earth, Inc. v. Laidlaw Envtl.

Servs. (TOC), Inc.,

528 U.S. 167 (2000) ............................................. 22

Gerstein v. Pugh,

420 U.S. 103 (1975) ....................................... 32, 33

Gill v. Galvin,

No. 16-11720-DJC, 2017 WL 2221185

(D. Mass. May 19, 2017)...................................... 31

Honig v. Doe,

484 U.S. 305 (1988) ................................. 12, 19, 28

Int’l Org. of Masters, Mates & Pilots v. Brown,

498 U.S. 466 (1991) ............................................. 17

Krislov v. Rednour,

226 F.3d 851 (7th Cir. 2000) ............................... 17

Kucinich v. Tex. Democratic Party,

563 F.3d 161 (5th Cir. 2009) ................. 2, 8, 12, 19

LaRouche v. Fowler,

152 F.3d 974 (D.C. Cir. 1998) ............................. 18

Lawrence v. Blackwell,

430 F.3d 368 (6th Cir. 2005) ..................... 8, 13, 17

Libertarian Party of Ill. v. Ill. State Bd. of

Elections,

164 F. Supp. 3d 1023 (N.D. Ill. 2016), aff’d

sub nom. Libertarian Party of Ill. v. Scholz,

872 F.3d 518 (7th Cir. 2017) ............................... 22

vi

Libertarian Party of N.H. v. Gardner,

843 F.3d 20 (1st Cir. 2016).................................. 16

Lux v. Judd,

651 F.3d 396 (4th Cir. 2011) ............................... 16

Majors v. Abell,

317 F.3d 719 (7th Cir. 2003) ............................... 17

McLain v. Meier,

637 F.2d 1159 (8th Cir. 1980) ............................. 17

Merle v. United States,

351 F.3d 92 (3d Cir. 2003)................................... 16

Meyer v. Grant,

486 U.S. 414 (1988) ....................................... 26, 27

Montano v. Lefkowitz,

575 F.2d 378 (2d Cir. 1978) ................................. 29

Moore v. Hosemann,

591 F.3d 741 (5th Cir. 2009) ............................... 13

Moore v. Ogilvie,

394 U.S. 814 (1969) ............................................. 25

N.C. Right to Life Comm. Fund for Indep.

Political Expenditures v. Leake,

524 F.3d 427 (4th Cir. 2008) ............................... 17

Norman v. Reed,

502 U.S. 279 (1992) ............................................. 27

Parker v. Winter,

645 Fed. Appx. 632 (10th Cir. 2016) ................... 17

Pearlman v. Vigil-Giron,

71 Fed. Appx. 11 (10th Cir. 2003) ....................... 17

Purcell v. Gonzalez,

549 U.S. 1 (2006) (per curiam) .................. 5, 21, 22

Richardson v. Ramirez,

418 U.S. 24 (1974) ............................................... 25

vii

Rosario v. Rockefeller,

410 U.S. 752 (1973) ............................................. 25

S. Pac. Terminal Co. v. ICC,

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

Schaefer v. Townsend,

215 F.3d 1031 (9th Cir. 2000) ......................passim

Sloan v. Caruso,

566 Fed. Appx. 98 (2d Cir. 2014) ........................ 15

Sosna v. Iowa,

419 U.S. 393 (1975) ............................................. 32

Stop Reckless Econ. Instability Caused by

Democrats v. FEC,

814 F.3d 221 (4th Cir. 2016) ......................... 11, 19

Storer v. Brown,

415 U.S. 724 (1974) ......................................passim

U.S. Parole Comm’n v. Geraghty,

445 U.S. 388 (1980) ....................................... 32, 33

United States v. Sanchez-Gomez,

138 S. Ct. 1532 (2018) ........................................... 2

Van Bergen v. Minnesota,

59 F.3d 1541 (8th Cir. 1995) ............................... 17

Van Wie v. Pataki,

267 F.3d 109 (2d Cir. 2001) ................. 2, 12, 14, 15

Vote Choice, Inc. v. DiStefano,

4 F.3d 26 (1st Cir. 1993)...................................... 16

Warner-Jenkinson Co. v. Hilton Davis

Chem. Co.,

520 U.S. 17 (1997) ............................................... 18

Weinstein v. Bradford,

423 U.S. 147 (1975) (per curiam) .................passim

viii

Williams v. Rhodes,

393 U.S. 23 (1968) ............................................... 20

Constitutional Provisions

U.S. Const., Art. I, § 2, cl. 2 ....................................... 29

U.S. Const., Art. III, § 2 ................................... 1, 13, 24

U.S. Const., amend. I ......................................... 6, 7, 24

U.S. Const., amend. XIV........................................ 7, 24

Statutes

28 U.S.C. § 1254(1) ...................................................... 1

Ala. Code § 17-9-3 ................................................ 14, 26

Ala. Code § 17-9-3(a)(3) ............................................... 4

Rules and Regulations

Fed. R. Civ. P. 23 ....................................................... 10

Other Authorities

Ballotpedia, Ballot Access for Major and Minor

Party Candidates, https://bit.ly/2ryJ8op ............ 20

Ballotpedia, Current Third-Party and

Independent State Officeholders,

https://bit.ly/2qNkJuB ........................................ 21

Ballotpedia, Special Elections to the 113th

United States Congress (2013-2014),

https://bit.ly/2EveQv5 ......................................... 30

Ballotpedia, Special Elections to the 114th

United States Congress (2015-2016),

https://bit.ly/2RSsJXn ......................................... 30

ix

Ballotpedia, Special Elections to the 115th

United States Congress (2017-2018),

https://bit.ly/2oxVeP2 .............................. 28, 29-30

Constitution Party, Current Officeholders,

https://bit.ly/2BNM4TN ..................................... 21

Green Party, Officeholders,

https://bit.ly/2amhdjn ......................................... 21

Libertarian Party, Elected Officials,

https://bit.ly/2AJVIVK ....................................... 21

Moore’s Federal Practice (2018) .................................. 9

U.S. Courts, Statistics and Reports, U.S.

District Courts–Civil Federal Judicial

Caseload Statistics (Mar. 31, 2018),

https://bit.ly/2Cbfonv ........................................... 30

U.S. House of Representatives, History, Art &

Archives, Party Divisions of the House of

Representatives, https://bit.ly/2GrTNeX ........... 21

U.S. Senate, Senators Representing Third or

Minor Parties, https://bit.ly/2PcceTT ................ 21

Willging, Thomas E. & Emery G. Lee III, Class

Certification and Class Settlement:

Findings from Federal Question Cases,

2003–2007, 80 U. Cin. L. Rev. 315 (2011) .......... 32

Wright, Charles A., Arthur R. Miller & Edward

H. Cooper, Federal Practice & Procedure

(3d ed. 2008) .......................................................... 9

Zitter, Jay M., Annotation, Validity,

Construction, and Application of State

Statutes Governing “Minor Political

Parties,” 120 A.L.R.5th 1 (2004) ......................... 20

PETITION FOR A WRIT OF CERTIORARI

Petitioner James Hall respectfully petitions for a

writ of certiorari to review the judgment of the United

States Court of Appeals for the Eleventh Circuit.

OPINIONS BELOW

The opinion of the United States Court of Appeals

for the Eleventh Circuit (Pet. App. 1a) is published at

902 F.3d 1294. The district court’s opinion (Pet. App.

45a) is published at 212 F. Supp. 3d 1148. The district

court’s memorandum opinion and order denying the

State’s motion to dismiss (Pet. App. 89a) is published

at 999 F. Supp. 2d 1266. 1

JURISDICTION

The judgment of the court of appeals was entered

on August 29, 2018. Pet. App. 1a. A timely petition for

rehearing and rehearing en banc was denied on

December 13, 2018. Id. 104a. On March 8, 2019,

Justice Thomas extended the time within which to file

a petition for a writ of certiorari to and including May

12, 2019. See 18A909. This Court has jurisdiction

pursuant to 28 U.S.C. § 1254(1).

RELEVANT CONSTITUTIONAL PROVISION

Article III, Section 2 of the United States

Constitution provides in pertinent part: “The judicial

power shall extend to all cases, in law and equity,

arising under this Constitution, [and] the laws of the

United States . . . .”

Respondent in this case is the Secretary of State of

Alabama, sued in his official capacity. See Pet. App. 46a. For ease

of exposition, petitioner refers to respondent as “the State.”

1

2

INTRODUCTION

For over a century, this Court has recognized an

exception to mootness for controversies that are

“capable of repetition, yet evading review.” S. Pac.

Terminal Co. v. ICC, 219 U.S. 498, 515 (1911); see also

United States v. Sanchez-Gomez, 138 S. Ct. 1532,

1540 (2018). And it has repeatedly applied that

exception to permit lawsuits challenging election laws

to proceed even after the election that initially

prompted the lawsuit is over. See, e.g., Storer v.

Brown, 415 U.S. 724, 737 n.8 (1974); Davis v. FEC,

554 U.S. 724, 735-36 (2008). As this Court has

explained, election-law challenges often evade review

because election season is simply “too short” to permit

cases “to be fully litigated prior to its cessation or

expiration,” Sanchez-Gomez, 138 S. Ct. at 1540.

But courts of appeals disagree over how to

determine whether a particular election-law

controversy is sufficiently “capable of repetition” to

escape mootness. Some have read this Court’s

decisions to require only that the challenged law will

be “applied in future elections.” Kucinich v. Tex.

Democratic Party, 563 F.3d 161, 165 (5th Cir. 2009)

(quoting Storer, 415 U.S. at 737 n.8). By contrast,

others demand proof that the challenged practice will

again be imposed on the “same complaining party.”

Van Wie v. Pataki, 267 F.3d 109, 114 (2d Cir. 2001)

(quoting Weinstein v. Bradford, 423 U.S. 147, 149

(1975) (per curiam)). And courts in this latter camp are

further split over how a plaintiff can satisfy that

requirement.

In this case, the Eleventh Circuit deepened the

split by holding that, to avoid mootness, a candidateplaintiff must not only allege he will run again but

3

must also show that his future candidacy would have

a substantial chance of success. Absent such a

showing, courts within that circuit can disregard even

a candidate-plaintiff’s sworn statement that he

intends to run again (and will again confront the

challenged practice).

Only review by this Court can resolve the

recurring conflict over how to interpret the “capable of

repetition” requirement in election controversies.

Given the importance of access to the political process,

it is vital that this Court provide guidance—to lower

courts, election authorities, and plaintiffs—on when

and how election-law challenges can be adjudicated.

Until

this

Court

provides

such

guidance,

unconstitutional ballot-access restrictions will be

insulated in the Eleventh Circuit and other

jurisdictions from effective judicial review, thereby

denying both candidates and voters some of their most

important constitutional rights.

STATEMENT OF THE CASE

1. On May 23, 2013, Jo Bonner announced his

retirement from the U.S. House of Representatives

effective three months later. Pet. App. 48a. Bonner’s

retirement necessitated a special election to fill the

vacancy from Alabama’s First Congressional District.

Id. 48a-49a.

Alabama law provides two different mechanisms

for appearing on the ballot. Pet. App. 47a. Candidates

representing major political parties are automatically

placed on the ballot after prevailing in their parties’

nomination processes. Id. By contrast, all other

candidates gain access to the ballot by presenting

petitions signed by a specified number of registered

4

voters within the relevant political subdivision. Id.

That number is equal to three percent of the ballots

most recently cast for governor in that subdivision.

Ala. Code § 17-9-3(a)(3). This requirement applies to

both regularly-scheduled and special elections. Pet.

App. 47a-48a. For the special election to fill

Representative Bonner’s seat, this number was 5,938.

Id. 50a. And under Alabama law these signatures all

had to be collected and submitted by September 24,

just 56 days after the date for the special election had

been set. Id.

2. Petitioner James Hall, a 39-year-old Marine

Corps veteran and longtime Alabamian, has been

active in politics for many years. Believing that his

election to Congress would serve interests “excluded

and ignored by the major political parties,” he decided

to run as an independent in the special election for

Representative Bonner’s seat. First Am. Compl. ¶ 3,

ECF No. 12.

Petitioner worked “tirelessly” to gather the 5,938

required signatures, despite his full-time job and the

short timeframe. Pet. App. 51a. He solicited

signatures from voters at “approximately 5,000

homes,” various businesses, and public events such as

“charity runs, festivals, yard sales, concerts, sporting

events, [and] a gun show.” Id. (quoting Hall Decl. 2,

Oct. 31, 2017, ECF No. 25-1). He managed to obtain

close to 3,000 signatures. Id. 52a. But even though

canvassing homes produced “roughly one signature for

every 12 houses visited”—meaning that a significant

number of voters were prepared to support placing

petitioner on the ballot—petitioner would have had to

“knock on over 71,000 doors” to obtain the required

number. Id. 51a, 76a. And paid signature-gatherers

5

“would have cost him a prohibitive sum—over

$23,000—to get the bare minimum number of

signatures.” Id. 76a-77a.

3. A week before the petition deadline, recognizing

that he was bound to fall short of the statutory

signature requirement, petitioner filed suit in the U.S.

District Court for the Middle District of Alabama. Pet.

App. 54a. He brought constitutional challenges, as

both a candidate and a voter, to Alabama’s signature

requirement as applied to special elections. Id. He

sought a declaratory judgment and both preliminary

and permanent injunctive relief. Id.

Although the district court agreed, in light of the

impending election, to expedite the proceedings, see

Order, Oct. 25, 2013, ECF No. 20, it denied petitioner’s

motion for a preliminary injunction placing his name

on the ballot, Pet. App. 55a-56a. The court expressed

concern that granting that form of relief after overseas

ballots had already been mailed would incur “great

expense to the State” and “risk voter confusion.” Id.

56a (discussing Purcell v. Gonzalez, 549 U.S. 1 (2006)

(per curiam)). The Eleventh Circuit affirmed. Id.

In December 2013, Alabama conducted the special

election in the First Congressional District. Pet. App.

57a. Only the Democratic and Republican candidates

appeared on the ballot. Id. 54a. 2

4. After the election, the State moved to dismiss

petitioner’s complaint as moot. Pet. App. 89a. The

district court agreed that the case was moot as to

Alabama’s Secretary of State refused to put petitioner on

the ballot because his timely-filed signature petition did not

contain the required number of signatures. Pet. App. 52a.

2

6

petitioner’s claim for a preliminary injunction. Id. 90a.

But the court held that petitioner’s claim for a

permanent injunction and a declaratory judgment

remained justiciable because it was “capable of

repetition, yet evading review.” Id. 101a.

The district court explained that the parties did

not dispute that the “challenged action”—here,

enforcement of the signature requirement—was “in its

duration too short to be fully litigated prior” to the

election. Pet. App. 92a (quoting Weinstein v. Bradford,

423 U.S. 147, 149 (1975) (per curiam)).

The sole dispute was whether petitioner’s claim

was capable of repetition. Pet. App. 92a. The State had

argued that it was not, because there was no

“reasonable expectation” of “future special elections”

with “equally severe burdens on [petitioner]’s First

Amendment rights.” Id. 94a. The district court

rejected this argument because Alabama has a “long

history of holding special elections.” Id. 96a.

The State had also argued that the case could

proceed only if “the same . . . independent candidate

plaintiff[]” would likely “be subject to the same

constitutional burden in a future special election.” Pet.

App. 100a. The district court “acknowledge[d]” the

“conflicting law in the circuits on this issue.” Id. It then

held that petitioner’s declaration stating that he

intended to continue to seek public office in Alabama

as an independent candidate and intended to vote for

future independent candidates sufficed to avoid

mootness. Id. 101a. The court therefore denied the

motion to dismiss. Id. 103a.

The parties subsequently filed cross-motions for

summary judgment. The State again argued that

7

petitioner’s case was moot—this time on the ground

that because petitioner had since run as a Republican

in a local election, “Alabama’s ballot-access laws for

independent candidates no longer appl[ied] to Hall.”

Pet. App. 62a. The district court rejected this variant

of the State’s mootness argument as well. Id. The court

found it “still reasonably likely that the controversy

will recur as to Hall” because he was “free to affiliate

with the Republican Party for now while retaining his

right and persisting in his desire to run as an

independent in the future.” Id. 62a, 65a. The district

court further explained that courts of appeals outside

the Eleventh Circuit had allowed cases to proceed even

absent “any explicit statement” that the plaintiff

“intended to run or vote again.” Id. 66a.

The district court then addressed the merits of

petitioner’s claims. It held that, as applied to special

elections,

Alabama’s

three-percent

signature

requirement violated the First and Fourteenth

Amendments. Pet. App. 46a.

First, the magnitude of the signature requirement

“imposes a severe burden in the context of special

elections.” Pet. App. 81a. Specifically, the “truncated

petitioning window, lack of preparation time, and low

voter interest” in these elections “offer[] reasonably

diligent independent candidates no realistic means of

ballot access.” Id. 82a.

Second, the state had failed to show “that the 3%

signature requirement is narrowly tailored to

advance” any compelling state interest. Pet. App. 83a.

The district court therefore granted petitioner’s

motion for summary judgment. The court viewed

declaratory relief as “sufficient, in light of the court’s

8

confidence” that the Secretary of State would “act

accordingly.” Pet. App. 88a.

5. A divided Eleventh Circuit panel vacated the

judgment of the district court and remanded the case

with instructions to dismiss the complaint. Pet. App.

24a. The court did not reach the constitutionality of

Alabama’s ballot-access regime as applied to special

elections because it concluded that petitioner’s claims,

both as a candidate and as a voter, were moot. Id. 3a.

It based its holding on its view that there was “no

reasonable 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.” Id. 7a.

The Eleventh Circuit acknowledged, as petitioner

had argued, that this Court’s decision in Storer v.

Brown, 415 U.S. 724 (1974), “could be construed” to

“dispens[e] with” the same-plaintiff requirement in

ballot-access cases. Pet. App. 9a. In that decision, this

Court had explained that although the original

election was “long over,” the plaintiffs’ challenge was

not moot because the issue presented, and its “effects

on independent candidacies,” would “persist” when the

statutes were “applied in future elections.” Id. (quoting

Storer, 415 U.S. at 737 n.8) (emphasis added).

But “[t]o the extent” that the Fifth, Sixth, and

Ninth Circuits have followed that construction of

Storer, the panel majority “respectfully disagree[d]”

with how those circuits apply mootness doctrine in

election-law cases. Pet. App. 18a n.5 (citing

Lawrence v. Blackwell, 430 F.3d 368, 372 (6th Cir.

2005)); see also id. 19a n.6 (citing Kucinich v. Tex.

Democratic Party, 563 F.3d 161, 164-65 (5th Cir.

9

2009)); Schaefer v. Townsend, 215 F.3d 1031, 1033

(9th Cir. 2000)). In the majority’s view, courts may not

“dispense with” the same-plaintiff rule altogether. Id.

18a n.5.

The Eleventh Circuit also recognized that “several

cases, multiple treatises, and several scholars” have

embraced a “rather relaxed” mootness standard in

election cases. Pet. App. 15a; see also id. 16a-19a

(citing 13C Charles A. Wright, Arthur R. Miller &

Edward H. Cooper, Federal Practice & Procedure

§ 3533.9 (3d ed. 2008); and 15 Moore’s Federal Practice

§ 101.99 (2018)). In particular, it recognized that other

circuits allow candidates to continue their challenges

post-election based on a simple statement that they

intend to run in a future election. Id. 17a-19a.

But the panel majority rejected that rule too. In

the majority’s view, it is not enough for the candidateplaintiff to assert—as petitioner did in a sworn

declaration—an “intent to run in future special

elections.” Pet. App. 20a n.7.

The panel majority fastened on the fact that

petitioner had challenged practices as applied to

special elections. The court thought this entitled it to

disregard petitioner’s sworn declaration: Because

special elections had been “infrequent” historically,

there was little likelihood of another special election in

the First Congressional District in petitioner’s

lifetime. Pet. App. 20a.

And although the court recognized “a greater

likelihood of a future special election when all U.S.

House seats” in Alabama “are in play,” Pet. App. 24a

n.11, it discredited petitioner’s stated intent to run for

any of those seats. In the majority’s view, petitioner

10

would “be considered a carpetbagger” if he attempted

to run in another district without first moving there.

Id. 21a. It saw “no reasonable likelihood of such a race”

because it thought that “Hall would be unlikely to

prevail if running in a foreign House district.” Id. 21a

n.8.

The panel majority acknowledged that any

individual plaintiff’s challenge to the statute at issue

here would be “effectively immune from judicial

review and correction.” Pet. App. 23a. But it thought

that mootness could be avoided by having an aspiring

candidate or voter “file a class action suit that

comports with the strictures of Federal Rule of Civil

Procedure 23.” Id.

6. Judge Jill Pryor dissented. She agreed with the

district court both that the case was not moot and that

“Alabama’s

ballot

access

requirement

is

unconstitutional” under the circumstances presented

here. Pet. App. 43a.

She criticized the majority for contributing to a

“circuit split” over whether and how the same-plaintiff

rule applies in election cases. Pet. App. 33a. She also

stressed that the majority “add[ed] an element to the

same complaining party inquiry that no other court

has adopted”—namely, a requirement for petitioner to

“show that he has a chance not only to run in a future

election, but also to win it.” Id. 39a. What is more, the

majority’s application of the same-plaintiff test

improperly “create[d] a different standard for special

elections” in the “absence of any indication from the

Supreme Court or even persuasive authority from

another circuit to support it.” Id. 35a.

11

As for the majority’s class action proposal, the

dissent expressed doubt that it “would provide a viable

option” for avoiding mootness “[u]nder the majority’s

logic.” Pet. App. 41a. The claims of class members in

other districts would face the same problems the

majority’s test had created for petitioner’s claim. Id.

41a-42a.

REASONS FOR GRANTING THE WRIT

I.

There is a three-way split among the courts of

appeals over the question presented.

The courts of appeals are intractably divided over

whether

plaintiffs

challenging

ballot-access

restrictions must satisfy a same-plaintiff requirement

to avoid mootness—that is, whether the plaintiffs

must show “a reasonable expectation” that they

personally will “be subjected to the same action again,”

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

curiam). As the Fourth Circuit recently explained, the

courts of appeals have taken “different views” of this

Court’s caselaw and have thus “reached different

results.” Stop Reckless Econ. Instability Caused by

Democrats v. FEC, 814 F.3d 221, 230 (4th Cir. 2016);

see also Pet. App. 18a-19a, 100a (pointing to the

disagreement).

Three circuits do not apply a same-plaintiff

requirement in ballot-access cases. Nine circuits do,

but they are further split over what such a

requirement entails. Most apply the requirement in a

relaxed manner, which petitioner’s declaration would

undeniably satisfy. But others, including the Eleventh

Circuit here, demand significant evidence to satisfy

this requirement above and beyond an assertion that

12

the plaintiff-challenger will run again in future

elections.

This split will not go away without this Court’s

intervention. The courts of appeals acknowledge as

much, recognizing that the “tension” among them

arises from disagreement over how to read this Court’s

opinions. Van Wie v. Pataki, 267 F.3d 109, 114 (2d Cir.

2001). Only this Court can resolve competing rules

within its own caselaw.

1. The Fifth, Sixth, and Ninth Circuits do not

apply a same-plaintiff requirement in election-law

cases.

In Kucinich v. Texas Democratic Party, 563 F.3d

161 (5th Cir. 2009), a candidate challenged a party

loyalty oath that served as a prerequisite to placement

on the party primary ballot. Id. at 163. While the

appeal from denial of a preliminary injunction was

pending, the primary election occurred. Id. At oral

argument, the candidate’s counsel “declined to express

a belief that [his client would] again be subject to the

party’s oath requirement.” Id. at 165. Nonetheless, the

Fifth Circuit held that the case was not moot because,

as in Storer v. Brown, 415 U.S. 724 (1974), the

contested law’s effects would “persist . . . in future

elections.” Kucinich, 563 F.3d at 165 (quoting Storer,

415 U.S. at 737 n.8). Having reviewed a “consistent

line of rulings” from this Court, the Fifth Circuit

aligned itself with Justice Scalia’s understanding of

this “Court’s treatment of election law cases,” which

“differs from its traditional mootness jurisprudence by

dispensing with the same-party requirement.” Id. at

164-65 (citing Honig v. Doe, 484 U.S. 305, 335-36

(1988) (Scalia, J., dissenting)).

13

The Fifth Circuit took the same approach in

Moore v. Hosemann, 591 F.3d 741 (5th Cir. 2009). In

that case, it permitted a ballot-access challenge to

proceed despite the fact that the candidate did not

aver “that he [was] likely to run” again. Id. at 744. It

was enough that the challenged practice remained in

force and future candidates would “need to conform to

its demands.” Id. at 744-45. Indeed, even when it is

“doubtful” that the current plaintiff will again be

subjected to an election regulation, challenges to such

regulations in the Fifth Circuit are not moot. Ctr. for

Individual Freedom v. Carmouche, 449 F.3d 655, 662

(5th Cir. 2006). The fact that “other individuals

certainly will be affected by the continuing existence”

of the challenged practice is sufficient to satisfy Article

III. Id.

The Sixth Circuit likewise does not require

plaintiffs with initial standing to challenge an election

practice to demonstrate that they themselves will be

subjected in future elections to the challenged

practice. In Lawrence v. Blackwell, 430 F.3d 368 (6th

Cir. 2005), the plaintiffs (a candidate and a voter)

challenged Ohio’s filing deadline for independent

congressional candidates. Id. at 369-70. The court of

appeals explained that even if a court “could not

reasonably expect that the controversy would recur

with respect to” the named plaintiffs, “the fact that the

controversy almost invariably will recur with respect

to some future candidate or voter” would be

“sufficient” to avoid mootness. Id. at 372.

Finally, the Ninth Circuit has rejected a sameplaintiff requirement in ballot-access cases. In

Schaefer v. Townsend, 215 F.3d 1031 (9th Cir. 2000),

the plaintiff sought to file as a candidate for a special

14

congressional election in California without first

establishing residency in the state. Id. at 1032.

Although the election had passed, the Ninth Circuit

held that the plaintiff’s challenge was not moot. Id. at

1033. Judge O’Scannlain’s opinion for the court

explained that the “capable-of-repetition prong should

not be construed [so] narrowly” that a future intention

to seek election is the “only ” way to satisfy it. Id. In

reaching this conclusion, he relied on Dunn v.

Blumstein, 405 U.S. 330 (1972), where this Court

“proceeded to the merits without examining the future

political intentions of the challenger[].” Schaefer, 215

F.3d at 1033. Thus, even though Schaefer had

“demonstrated no likelihood of running for office”

again in California, and appeared now to be a state

resident, the case was not moot because the state could

continue to deny “any other nonresident the right” to

run in its congressional elections. Id.; see also, e.g.,

Caruso v. Yamhill Cty., 422 F.3d 848, 853-54 (9th Cir.

2005).

Under the rule applied in the Fifth, Sixth, and

Ninth Circuits, petitioner’s case would not be moot

because Alabama’s law remains in effect and will

govern future candidacies in special elections. See Ala.

Code § 17-9-3.

2. The Second and Eleventh Circuits take a

diametrically opposed position to the Fifth, Sixth, and

Ninth Circuits. They demand significant evidence that

a candidate-plaintiff will again suffer the complainedof injury.

The Second Circuit first announced its rule in Van

Wie, a case involving party affiliation requirements for

voters. 267 F.3d at 111. After reviewing five opinions

by this Court that appeared to cut in conflicting

15

directions, the court of appeals adopted a sameplaintiff requirement for all election cases. Id. at 114.

And it applied that requirement with evidentiary

rigor. It treated the plaintiffs’ assertion that they

would face the same dilemma again as a “speculation”

that did “not establish ‘a reasonable expectation’” that

they would “again be subjected to the same dispute.”

Id. at 115 (quoting Dennin v. Conn. Interscholastic

Athletic Conference, Inc., 94 F.3d 96, 101 (2d Cir.

1996)).

In Sloan v. Caruso, 566 Fed. Appx. 98 (2d Cir.

2014), the Second Circuit confirmed that the sameplaintiff requirement applies to ballot-access

challenges. It treated a candidate’s statement that he

intended to run for office the next year as nothing

more than “a mere theoretical possibility that the

controversy [was] capable of repetition.” Id. at 99

(quoting Van Wie, 267 F.3d at 115); see also Dekom v.

New York, No. 12-CV-1318 (JS)(ARL), 2013 WL

3095010, at *10 n.14 (E.D.N.Y. June 18, 2013), aff’d,

583 Fed. Appx. 15 (2d Cir. 2014).

In this case, the Eleventh Circuit announced that

it would apply a same-plaintiff requirement in ballotaccess cases. See Pet. App. 20a-21a. And, like the

Second Circuit, it held that an express declaration of

an intent to run is not necessarily enough to avoid

mootness. In the Eleventh Circuit’s view, candidates

can show a “reasonable expectation” that they will run

again (and thereby be subjected to the challenged

practice again) only if they have a “reasonable” shot at

victory. See id. 21a & nn.8-9.

3. The remaining seven circuits have adopted an

intermediate position. In contrast to the Fifth, Sixth,

and Ninth Circuits, they require that candidate-

16

plaintiffs satisfy some version of the same-plaintiff

requirement to avoid mootness. But, in contrast to the

Second and Eleventh Circuits, all of these circuits

either presume that past candidates will continue to

aspire to elected office or fully credit statements of

intent to run again as satisfying the test.

Consider the First Circuit. That court held that a

candidate’s lawsuit does not become moot postelection so long as a candidate “has not renounced

possible future candidacies.” Vote Choice, Inc. v.

DiStefano, 4 F.3d 26, 37 n.12 (1st Cir. 1993). The court

reasoned that “politicians, as a rule, are not easily

discouraged in the pursuit of high elective office.” Id.

In short, the First Circuit gives plaintiffs in ballotaccess cases the “benefit of the doubt” when analyzing

the same-plaintiff criterion. Libertarian Party of

N.H. v. Gardner, 843 F.3d 20, 24 (1st Cir. 2016)

(quoting Barr v. Galvin, 626 F.3d 99, 106 (1st Cir.

2010)).

The Third Circuit has similarly held the sameplaintiff requirement satisfied unless there is

“evidence to the contrary” to rebut the premise “that it

is reasonable to expect political candidates to seek

office again in the future.” Belitskus v. Pizzingrilli,

343 F.3d 632, 648-49 & n.11 (3d Cir. 2003). In Merle v.

United States, 351 F.3d 92 (3d Cir. 2003), that court

therefore held that alleging an intent to run in

subsequent elections would be sufficient, though not

necessary, to spare a case from mootness. Id. at 95.

In the Fourth Circuit, plaintiffs can satisfy the

“capable of repetition” requirement so long as they are

merely “considering running in a future election.”

Lux v. Judd, 651 F.3d 396, 401 (4th Cir. 2011).

Rejecting the notion that the mootness exception can

17

be satisfied “only if the ex-candidate specifically

alleges an intent to run again,” the Fourth Circuit

reasons that the fact that political candidates have

“run for office before” is enough to indicate they “may

well do so again.” N.C. Right to Life Comm. Fund for

Indep. Political Expenditures v. Leake, 524 F.3d 427,

435-36 (4th Cir. 2008) (quoting Int’l Org. of Masters,

Mates & Pilots v. Brown, 498 U.S. 466, 473 (1991)).

So too in the Seventh Circuit. That court does not

interpret the same-plaintiff requirement “literally.”

Majors v. Abell, 317 F.3d 719, 723 (7th Cir. 2003).

Instead, a mere statement of interest in running for

office again will suffice, Krislov v. Rednour, 226 F.3d

851, 858 (7th Cir. 2000), as “the court will not keep

interrogating the plaintiff to assess the likely

trajectory of his political career,” Majors, 317 F.3d at

723.

The Eighth Circuit has likewise held that the

“capable of repetition” requirement is satisfied where

the plaintiff, “[a]s an active politician,” would likely be

“in a position to wish to run for office” again. Van

Bergen v. Minnesota, 59 F.3d 1541, 1547 (8th Cir.

1995); see also McLain v. Meier, 637 F.2d 1159, 1162

n.5 (8th Cir. 1980).

The Tenth Circuit demands no more. In Parker v.

Winter, 645 Fed. Appx. 632 (10th Cir. 2016), that court

asked whether the plaintiff “would be subjected to the

same action again,” and held that he likely would,

even though the complaint did not “discuss his

intention to run for office at any point in the future.”

Id. at 634-35. It was enough that the plaintiff was

“capable of doing so.” Id. at 635 (quoting Lawrence,

430 F.3d at 371); see also Pearlman v. Vigil-Giron, 71

Fed. Appx. 11, 13-14 (10th Cir. 2003).

18

Finally, the D.C. Circuit deems the same-plaintiff

requirement satisfied so long as the plaintiff has run

before and expresses an intent to run again. See

LaRouche v. Fowler, 152 F.3d 974, 978-79 (D.C. Cir.

1998).

Petitioner’s case would not be moot in this septet

of circuits. Petitioner has run for office more than once

already and has sworn under oath that he plans to run

in any future special election for the House of

Representatives in Alabama regardless of the district.

Pet. App. 62a, 101a. He has also sworn that he intends

to vote for independent candidates in any election

where he is able to do so. Id. 101a. And the State has

never denied that the Alabama statute at issue here

will govern all such elections.

4. There is no reason to await further percolation.

Every circuit that oversees elections has now weighed

in on how to assess mootness where candidates or

voters challenge ballot-access restrictions. The courts

of appeals recognize the existence of a conflict.

Certiorari is especially appropriate when this

Court has “two lines of precedent” that potentially cut

in opposite directions, because the Court is the only

actor that can “clarify the proper scope of the doctrine.”

Warner-Jenkinson Co. v. Hilton Davis Chem. Co., 520

U.S. 17, 29, 21 (1997). Such is the case here. The

disarray among the circuits stems from their

contradictory readings of this Court’s caselaw.

Courts of appeals believe there is “imprecision” as

to whether this Court’s election-law decisions

“demand[] that it be the same party who is likely to

face a similar [restriction] in the future.” Barr, 626

F.3d at 105. Some courts focus on the language in

19

Storer about the relevant repetition involving

“candidacies,” rather than candidates. 415 U.S. at 737

n.8. They conclude that this Court has “dispens[ed]

with the same-party requirement” in ballot-access

cases “and ‘focus[ed] instead upon the great likelihood

that the issue will recur between the defendant and

the other members of the public at large.’” Kucinich,

563 F.3d at 165 (quoting Honig, 484 U.S. at 335-36

(Scalia, J., dissenting)).

By contrast, other courts read decisions such as

Davis v. FEC, 554 U.S. 724 (2008), and FEC v.

Wisconsin Right to Life, Inc., 551 U.S. 449 (2007), as

requiring that the same complaining party have a

reasonable expectation that it will face the same

action again. See Pet. App. 11a-13a. These courts

believe that they must apply a same-plaintiff rule in

all election cases, because Davis and Wisconsin Right

to Life used Weinstein’s “same complaining party”

formulation to analyze whether campaign finance

controversies were capable of repetition. See id. 13a.

The question whether, and under what

circumstances, the same-plaintiff requirement applies

in election cases has therefore been “le[ft] to the

Supreme Court.” Stop Reckless Econ. Instability, 814

F.3d at 231. If this Court does not answer the question

presented, courts will continue to apply different

versions of mootness doctrine, with some reaching the

merits and others insulating constitutional claims

from judicial review.

II. It is important that this Court resolve the

question presented.

Resolving the question presented is critical to

orderly and consistent adjudication of claims involving

20

rights that “rank among our most precious freedoms,”

Williams v. Rhodes, 393 U.S. 23, 30 (1968).

Every state imposes a variety of restrictions on

access to the electoral process. See Ballot Access for

Major and Minor Party Candidates, Ballotpedia,

https://bit.ly/2ryJ8op (last visited Feb. 27, 2019).

These include signature-gathering requirements and

restrictions, filing fees, time limitations, affiliation

provisions, and the like. See Jay M. Zitter, Annotation,

Validity, Construction, and Application of State

Statutes Governing “Minor Political Parties,” 120

A.L.R.5th 1 (2004).

These restrictions can impair the ability of

citizens to vote for the candidates of their choice and

to associate for the advancement of political beliefs—

rights that “mean[] little if a party [or candidate] can

be kept off the election ballot and thus denied an equal

opportunity to win votes,” Williams, 393 U.S. at 31.

And

unconstitutionally

severe

ballot-access

restrictions do not just harm candidates and voters;

they can threaten democracy more broadly by

“reduc[ing] diversity and competition in the

marketplace of ideas,” Anderson v. Celebrezze, 460

U.S. 780, 794 (1983).

Independent and third-party candidates serve at

least two critical functions. First, they often reflect the

will of the voters. There have been 77 Senators elected

as independent or third-party candidates. And an

independent or third-party candidate has won election

21

to the U.S. House of Representatives nearly 700

times. 3

Second, even when these candidates have not

prevailed, they have been “fertile sources of new ideas

and new programs,” Anderson, 460 U.S. at 794—from

abolition to women’s suffrage—that later have “made

their way into the political mainstream,” id.

Whether the judicial system can adjudicate

challenges to restrictions on these candidacies,

though, depends on whether courts retain jurisdiction

over properly filed lawsuits even after the elections

that initially prompted the lawsuits have taken place.

After all, it is nearly impossible to reach final

resolution of the merits of a ballot-access dispute prior

to an election. As in this case, where Election Day was

just a few months after the vacancy’s announcement,

there is seldom enough time to fully adjudicate such

cases before the election passes. And obtaining

preliminary relief close to an election is not a realistic

possibility, given that Purcell v. Gonzalez, 549 U.S. 1

See Senators Representing Third or Minor Parties, U.S.

Senate, https://bit.ly/2PcceTT (last visited Feb. 27, 2019); Party

Divisions of the House of Representatives, History, Art &

Archives, U.S. House of Representatives, https://bit.ly/2GrTNeX

(last visited Feb. 27, 2019).

3

Moreover, hundreds of third-party and independent officeholders serve at the state and local level. See Current ThirdParty and Independent State Officeholders, Ballotpedia,

https://bit.ly/2qNkJuB (last visited Feb. 27, 2019); see also

Elected Officials, Libertarian Party, https://bit.ly/2AJVIVK (last

visited Feb. 27, 2019) (177 officeholders); Officeholders, Green

Party, https://bit.ly/2amhdjn (last visited Feb. 27, 2019) (161

officeholders); Current Officeholders, Constitution Party,

https://bit.ly/2BNM4TN (last visited Feb. 27, 2019) (25

officeholders).

22

(2006) (per curiam), puts a strong thumb on the scale

against enjoining election rules—even likely

unconstitutional ones—close to Election Day. See id.

at 4-5.

District courts in jurisdictions like the Eleventh

Circuit thus find themselves in a quandary. They are

unable to give plaintiffs relief before an election

because of compressed timeframes and Purcell. So the

question of whether they can give relief after an

election takes on added importance. The question

presented here cuts to the very heart of that issue.

If a stringent same-plaintiff rule applies, there

will be neither binding resolution of the particular

controversy nor any articulation of broader electionlaw principles to guide other jurisdictions. Such a

system would “prove more wasteful than frugal,”

Friends of the Earth, Inc. v. Laidlaw Envtl. Servs.

(TOC), Inc., 528 U.S. 167, 192 (2000). Courts will be

forced to adjudicate the same challenges to the same

laws in each election cycle without producing binding

precedent as to the laws’ legality. As a result,

unconstitutional election laws can remain perpetually

on the books and be insulated from judicial review. 4

Indeed, had they applied a strict same-plaintiff rule, courts

might never have struck down such unconstitutional practices as

“full slate” requirements mandating parties run candidates for

every office on a ballot; filing fees with no indigence exception;

and state residency requirements for U.S. Representatives at

time of filing instead of election. See, e.g., Libertarian Party of

Ill. v. Ill. State Bd. of Elections, 164 F. Supp. 3d 1023, 1028-29

n.2, 1032 (N.D. Ill. 2016) (“full slate”), aff’d sub nom. Libertarian

Party of Ill. v. Scholz, 872 F.3d 518 (7th Cir. 2017); Belitskus v.

Pizzingrilli, 343 F.3d 632, 647-49 & n.11 (3d Cir. 2003) (filing

4

23

No one is served by such a system—not

prospective candidates, not voters, not jurisdictions

seeking to promulgate fair election laws, and certainly

not courts. At the very least, such an odd system

should not be allowed to persist without this Court’s

review.

III. This case is the right vehicle for resolving the

question presented.

This case is an ideal vehicle for resolving the

question of how to determine whether a ballot-access

challenge is sufficiently capable of repetition to avoid

mootness.

1. The parties have “never disputed” that

petitioner’s lawsuit could not “be fully litigated prior

to” the election and would therefore evade review

absent the mootness exception. Pet. App. 63a, 92a

(quoting Weinstein v. Bradford, 423 U.S. 147, 149

(1975) (per curiam)). The decision below thus explicitly

“confine[d] [its] inquiry” to the question presented by

this petition: “whether this case is capable of

repetition.” Id. 5a. It squarely held that petitioner had

failed to satisfy this requirement only because he had

not shown a “reasonable expectation” that he

personally would be subjected to the Alabama threepercent signature requirement in a future

congressional special election. Id. A well-reasoned

dissent also analyzed the “capable of repetition” prong

at length, further sharpening the issue for review. See

id. 25a-44a.

fees); Schaefer v. Townsend, 215 F.3d 1031, 1033, 1039 (9th Cir.

2000) (state residency requirement).

24

2. The question presented is outcomedeterminative. In the Fifth, Sixth, and Ninth Circuits,

petitioner’s case would have continued because those

circuits have dispensed with the same-plaintiff

requirement altogether. In the First, Third, Fourth,

Seventh, Eighth, Tenth, and D.C. Circuits, petitioner’s

case would have also avoided mootness because those

circuits would have given dispositive weight to his

sworn declaration of intent to run in future elections.

3. This case also highlights the stakes of the

Article III question presented. The district court

issued a lengthy and well-reasoned ruling that

application

of

the

three-percent

signature

requirement in special elections violates the First and

Fourteenth Amendments. Reversing the judgment of

the Eleventh Circuit would allow that court to address

the merits of petitioner’s challenge. The court of

appeals could then bring needed clarity to the

constitutional restraints on this and other ballotaccess requirements.

IV. The Eleventh Circuit’s decision is wrong.

The Eleventh Circuit’s approach contravenes

decades of precedent and effectively immunizes ballotaccess restrictions from judicial review. Its stringent

same-plaintiff rule will simultaneously force courts to

handle a barrage of emergency motions during every

election cycle but prevent final resolution of the legal

issues involved. And its application of the rule to

special elections is even less justifiable. Finally, its

hope that class actions can provide an alternative

route to full adjudication of these cases is ill-founded.

25

A. The Eleventh Circuit misconstrues this

Court’s precedent governing the “capable of

repetition” requirement.

1. The best reading of this Court’s caselaw is that

there is no same-plaintiff requirement in ballot-access

cases. This Court has repeatedly allowed ballot-access

challenges to proceed even after an election has

occurred, so long as the challenged law will govern

future elections. And not by mere oversight: What

matters is whether similar candidacies will recur, not

whether the same candidates will run again. So long

as the burden placed on other prospective candidates

“remains and controls future elections,” an action is

capable of repetition and thus not moot. See Moore v.

Ogilvie, 394 U.S. 814, 816 (1969).

Thus, in Storer v. Brown, 415 U.S. 724 (1974),

independent candidates’ constitutional challenges to a

party disaffiliation requirement were not mooted by

the election’s completion. Id. at 737 n.8. The case

remained justiciable despite the fact that “no effective

relief” could be provided to the original parties

themselves, because the “issues properly presented,

and their effects on independent candidacies” would

“persist as the [state’s] statutes [we]re applied in

future elections.” Id. In Moore, this held true even

though “the particular candidacy was not apt to be

revived in a future election.” Richardson v. Ramirez,

418 U.S. 24, 35 (1974) (citing Moore, 394 U.S. 814); see

also Rosario v. Rockefeller, 410 U.S. 752, 756 & n.5

(1973); Dunn v. Blumstein, 405 U.S. 330, 333 n.2

(1972). In short, where this Court has been satisfied

that the challenged practice itself is capable of

repetition, it has never held that an election challenge

26

was moot because the practice would not be challenged

by the same plaintiff.

The Eleventh Circuit therefore erred in ordering

that petitioner’s victory on the merits be vacated as

moot. The ballot-access restrictions at issue are still on

the books in Alabama. See Ala. Code § 17-9-3. So all

prospective independent candidates will face the

severely

burdensome

three-percent

signature

requirement in future special elections. And the issue

will recur: In Alabama, special elections for U.S.

House seats “historically have occurred on average

once every 12 years” since 1941. Pet. App. 37a (Jill

Pryor, J., dissenting). 5

2. Even assuming arguendo that some version of

the same-plaintiff requirement should apply to ballotaccess cases, the Eleventh Circuit’s version of this test

finds no real support in this Court’s decisions.

To the extent this Court’s election law cases have

considered whether the individual plaintiffs had a

“reasonable expectation” of being “subjected to the

same action again,” this Court has never required

more than a simple statement that the plaintiff

anticipates being subjected again to the challenged

practice in the future. See Weinstein v. Bradford, 423

U.S. 147, 149 (1975) (per curiam) (first articulating the

same-plaintiff criterion). For example, in Meyer v.

Grant, 486 U.S. 414 (1988), it was enough that

The majority inexplicably excluded special elections in

1941 and 1944 to conclude that special elections have “occurred

with intervals over twenty years” since 1947. Pet. App. 6a n.3.

But whether the interval is twelve years or twenty, there is still

a demonstrated probability of other special elections in

petitioner’s lifetime.

5

27

plaintiffs’ counsel at oral argument “represent[ed]”

that one of the plaintiffs, “as a probability[,] would be

interested in going forward with the [ballot] initiative”

that had prompted the initial lawsuit. Transcript of

Oral Argument at 37, Meyer, 486 U.S. 414 (1988)

(No. 87-920); see Meyer, 486 U.S. at 417 n.2 (pointing

to this exchange). And in Davis v. FEC, 554 U.S. 724

(2008), an unsworn “public statement” of future intent

to run—made in a newspaper only after the issue of

mootness was raised in this Court—sufficed to

establish the dispute was capable of repetition and

therefore not moot. Id. at 736; see also FEC v. Wisc.

Right to Life, 551 U.S. 449, 463-64 (2007). 6

Under those precedents, petitioner’s case is not

moot. Petitioner submitted a sworn declaration that

he “intend[ed] to continue to seek elective office in

Alabama in the future, including, but not limited to,

the office of U.S. Representative and [he] intend[ed] to

seek such elective office as an independent candidate”

in any “Special Election.” Pet. App. 64a (quoting Hall

Decl. 1, Jan 27, 2014, ECF No. 48-1). If a statement

reported in a newspaper was enough in Davis, or

cautious speculation by counsel was enough in Meyer,

And even these statements may not be necessary to find

the same-plaintiff requirement satisfied. See Norman v. Reed,

502 U.S. 279, 287-88 (1992) (seeing “every reason to expect the

same parties to generate a similar, future controversy subject to

identical time constraints if we should fail to resolve the

constitutional issues”).

6

28

then a fortiori petitioner’s statement suffices to avoid

mootness. 7

3. The Eleventh Circuit’s decision to disregard

petitioner’s statement of intent on the ground that he

would not stand a realistic chance of winning a future

election, see Pet. App. 21a n.8, only compounds its

error. This Court has never insisted that a plaintiff

prove a likelihood of electoral success to overcome

mootness. For example, in Anderson v. Celebrezze,

460 U.S. 780 (1983), the case was not moot even

though the candidate there only received

approximately six percent of the vote. Id. at 784 & n.3.

And American history is marbled with independent

candidates—from Eugene Debs to Ross Perot to

petitioner here—who have run for office, undaunted

by long odds of electoral success, because they had a

message to convey.

Nor can the Eleventh Circuit’s assumption that it

would be “farfetched” for petitioner to run in any

Moreover, the Eleventh Circuit “overstates the stringency”

of what constitutes a reasonable expectation of recurrence,

Honig v. Doe, 484 U.S. 305, 318 n.6 (1988). This error stems from

its confusion of frequency with likelihood. Just because special

elections occur infrequently does not make it “highly unlikely”

that one will occur in petitioner’s lifetime, Pet. App. 20a. To the

contrary, there is a near certainty that petitioner will have the

opportunity to run again in a special election.

7

From 2004-2013, there were thirty-one special elections

held in Alabama. Pet. Reh’g & Reh’g En Banc 12 n.5. Special

elections are also commonplace for filling vacancies in Congress:

In the 115th Congress alone, there were ten off-season special

elections for seats in the House of Representatives and one for a

Senate seat. Special Elections to the 115th United States

Congress (2017-2018), Ballotpedia, https://bit.ly/2oxVeP2 (last

visited Feb. 27, 2019).

29

Alabama congressional district be squared with either

the Constitution or political reality. Leaving aside the

panel majority’s “carpetbagger” rhetoric, Pet. App. 21a

& n.8, the Constitution permits any citizen to

represent any congressional district in his state. U.S.

Const. art. I, § 2, cl. 2; see also Pet. App. 37a. And this

constitutional entitlement is not merely academic: In

2017, at least twenty members of Congress lived

somewhere “outside the districts they were elected to

represent.” Pet. App. 38 n.2.

4. Finally, the Eleventh Circuit’s mootness test

cannot be justified on the grounds that this case

involves a special election. See Pet. App. 8a. If

anything, that fact makes the Eleventh Circuit’s rule

less defensible. As Judge Friendly explained in a case

involving a special election for a New York

congressional district, special elections are a recurring

phenomenon and cases involving them are especially

capable of repetition, yet evading review given “the

very speed with which such elections must be

conducted.” Montano v. Lefkowitz, 575 F.2d 378, 382

(2d Cir. 1978).

Disputes involving special elections are especially

likely to evade binding resolution under a rule like the

Eleventh Circuit’s. Special elections necessarily occur

on short timeframes. 8 This leaves courts with little

Here, the special election occurred fewer than seven

months after Representative Bonner announced his retirement.

And in the sixteen off-season special elections for U.S. House

seats that have occurred since, the median time between the

vacancy’s announcement and Election Day was fewer than five

months. See Special Elections to the 115th United States

Congress (2017-2018), Ballotpedia, https://bit.ly/2oxVeP2 (last

8

30

time to adjudicate special-election challenges before

the elections pass. 9 Thus, no matter how diligent

plaintiffs are, or how much courts accelerate

adjudication, there is no chance of reaching binding

resolution before elections pass and cases become

moot.

Moreover, many questions regarding special

elections cannot be resolved by leaving such issues to

litigation involving regularly-scheduled elections,

which can perhaps take a more leisurely journey

through the courts. As this case shows, special-election

cases frequently involve as-applied challenges to

statutes that may well be constitutional when it comes

to regularly-scheduled elections. Because special

elections occur quickly and without the usual buildup

that generates voter interest, otherwise-constitutional

ballot-access restrictions can be overly burdensome in

the special-election context. See Pet. App. 82a. 10

visited Feb. 27, 2019); Special Elections to the 114th United

States Congress (2015-2016), Ballotpedia, https://bit.ly/2RSsJXn

(last visited Feb. 27, 2019); Special Elections to the 113th United

States Congress (2013-2014), Ballotpedia, https://bit.ly/2EveQv5

(last visited Feb. 27, 2019).

For example, the median civil case in the Middle District

of Alabama takes nearly ten months to wind its way through the

district court, not to mention time spent to reach a precedential

appellate decision. U.S. Courts, Statistics and Reports, U.S.

District Courts—Civil Federal Judicial Caseload Statistics tbl.C5 (Mar. 31, 2018), https://bit.ly/2Cbfonv.

9

Consider, for instance, how the Alabama signature

requirement at issue in this case applies to special elections.

Here, petitioner had at most 106 days—as compared to the

unlimited timeframe for regular elections. Pet. App. 25a, 78a.

Meeting such a deadline “requires considerable organization at

10

31

Thus, no other court has singled out special

election cases for distinctively severe treatment with

respect to the question of mootness. To the contrary:

Other courts consistently treat special and regularlyscheduled elections interchangeably with respect to

analysis of mootness. See ACLU of Ohio, Inc. v. Taft,

385 F.3d 641, 646-47 (6th Cir. 2004); Schaefer v.

Townsend, 215 F.3d 1031, 1032-33 (9th Cir. 2000); see

also Acosta v. Democratic City Comm., 288 F. Supp.

3d 597, 608-09, 623-24 (E.D. Pa. 2018); Gill v. Galvin,

No. 16-11720-DJC, 2017 WL 2221185, at *3-4 (D.

Mass. May 19, 2017); Constitution Party of Mo. v. St.

Louis Cty., No. 4:15-CV-207 RLW, 2015 WL 3908377,

at *3 (E.D. Mo. June 25, 2015). And they have allowed

such challenges to proceed.

B. The class action device cannot solve the

mootness problem the Eleventh Circuit’s

decision creates.

The Eleventh Circuit all but concedes that its rule

would leave ballot-access restrictions “effectively

immune from judicial review and correction” in any

case involving an individual plaintiff. See Pet. App.

23a. But the panel majority floats the possibility that

review can be obtained in these sorts of cases through

a class action lawsuit. Id. That suggestion is entirely

misplaced because there is simply no way to get a class

certified in a case like this.

First, the time it takes to certify a class would

further exacerbate the risk of mootness. An empirical

an early stage in the election, a condition difficult for many small

parties to meet.” Burdick v. Takushi, 504 U.S. 428, 443 (1992)

(Kennedy, J., dissenting) (discussing a 150-day signature

deadline).

32

study found that it takes on average 3.9 months to

certify a class for cases initially filed in federal court.

See Thomas E. Willging & Emery G. Lee III, Class

Certification and Class Settlement: Findings from

Federal Question Cases, 2003–2007, 80 U. Cin. L. Rev.

315, 321-22 (2011). Thus, it is unrealistic to expect

that a class could be certified before the election

occurred.

Moreover, once the election occurs, the named

plaintiff’s claims would be moot, at least where the

Eleventh Circuit’s same-plaintiff requirement applies,

thereby ending any possibility of certifying a class. See

Cty. of Riverside v. McLaughlin, 500 U.S. 44, 51-52

(1991). Rather than solve the mootness issue, the

majority’s suggestion will only cause plaintiffs to lose

precious months in a quixotic attempt to certify a

class.

Indeed, adopting the Eleventh Circuit’s

suggestion would require a significant expansion of

this Court’s existing caselaw regarding the

certification of class actions. This Court recognized an

exception to mootness for claims that “are so

inherently transitory that the trial court will not have

even enough time to rule on a motion for class

certification before the proposed representative’s

initial interest expires.” U.S. Parole Comm’n v.

Geraghty, 445 U.S. 388, 399 (1980). But a putative

class can avail itself of this exception only where there

is a “constant existence of a class of persons suffering”

an inherently transitory deprivation. Id. (quoting

Gerstein v. Pugh, 420 U.S. 103, 110 n.11 (1975)); see

also Sosna v. Iowa, 419 U.S. 393, 399-400 (1975).

In cases like petitioner’s, however, the injury is

not constantly being inflicted on a revolving

33

population. The injury occurred in the past to one set

of voters and candidates and, if the challenged law

remains on the books, will injure an additional set of

voters and candidates when the next special election

is announced. But in between those two elections,

there is no group of people suffering a current injury

who can compose a class to be certified. Thus, not only

would this Court have to dramatically expand the

workaround it developed in Gerstein and Geraghty,

but it would have to substantially rethink standing

doctrine as well: The Eleventh Circuit nowhere

explains how any potential class representative could

have an “interest [that] extends beyond his or her own

concern about access to the ballot for a particular

special election,” Pet. App. 23a. Far better to simply

hold, as the Fifth, Sixth, and Ninth Circuits already

have, and as this Court’s decision in Storer supports,

that plaintiffs like petitioner can continue to challenge

ballot-access restrictions even after the election has

happened.

CONCLUSION

For the foregoing reasons, the petition for a writ

of certiorari should be granted.

Respectfully submitted,

Jeffrey L. Fisher

Brian H. Fletcher

Pamela S. Karlan

Leah M. Litman

STANFORD LAW SCHOOL

SUPREME COURT

LITIGATION CLINIC

559 Nathan Abbott Way

Stanford, CA 94305

April 29, 2019

David I. Schoen

Counsel of Record

DAVID I. SCHOEN,

ATTORNEY AT LAW

2800 Zelda Road

Suite 100-6

Montgomery, AL 36106

(334) 395-6611

schoenlawfirm@gmail.com