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

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APPENDIX A

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 16-16766

D.C. Docket No. 2:13-cv-00663-MHT-TFM

JAMES HALL,

Plaintiff – Appellee,

versus

SECRETARY, STATE OF ALABAMA,

Defendant – Appellant.

Appeal from the United States District Court

for the Middle District of Alabama

(August 29, 2018)

Before WILLIAM PRYOR, JILL PRYOR, and

ANDERSON, Circuit Judges.

ANDERSON, Circuit Judge:

Under Alabama law, independent candidates for

political office may obtain ballot access, meaning the

right to have their name listed on the election ballot,

by filing a petition signed by at least “three percent of

the qualified electors who cast ballots for the office of

Governor in the last general election for the state,

county, district, or other political subdivision in which

the candidate seeks to qualify.” Ala. Code. § 17-9-

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3(a)(3). In Swanson v. Worley, 490 F.3d 894 (11th Cir.

2007), this Court held that Alabama’s 3% signature

requirement for ballot access is constitutional as

applied during a regular election cycle. Id. at 912.

On December 17, 2013, Alabama held a special

election to fill a vacancy in its First United States

House of Representatives District. Appellee James

Hall ran as an independent candidate in that election.

Due to Hall’s failure to meet the 3% signature

requirement, Hall’s name did not appear on the special

election ballot. Hall sued Appellant, the Alabama

Secretary of State, pursuant to 42 U.S.C. § 1983,

claiming that the 3% requirement as applied during

the special election violated his First and Fourteenth

Amendment rights.1

After denying Hall’s motion for a preliminary

injunction (in large part because Hall had not shown a

substantial likelihood of success on the merits and

because ballots had already been mailed in accordance

with the Uniformed and Overseas Citizens Absentee

Voting Act), the district court granted summary

judgment in favor of Hall, issuing a declaratory

judgment that Alabama’s 3% signature requirement

for ballot access violates the First and Fourteenth

Plaintiff-below N.C. “Clint” Moser, Jr. also brought First

and Fourteenth Amendment claims in the district court. The

district court dismissed Moser’s claims as moot, and Moser did not

appeal. Plaintiffs also initially brought Equal Protection Clause

and Fifteenth Amendment claims. The district court granted

summary judgment in favor of the Secretary on Plaintiffs’ Equal

Protection Clause claims and found that Plaintiffs waived their

Fifteenth Amendment claims. Neither Hall nor Moser appealed

those decisions.

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Amendments when enforced during any off-season

special election for a U.S. House of Representatives

seat in Alabama, for which: “(a) the vacancy is

announced less than 124 days prior to the petition

deadline and (b) the date of the special election is

announced less than 57 days prior to the petition

deadline.” Appellant, the Secretary, brings this appeal.

Appellant argues that: (1) the case is moot; and,

alternatively, (2) Alabama’s 3% signature requirement

is constitutional in the specific circumstances

challenged by Hall. As discussed below, we conclude

that this case is moot. Thus, we do not address the

constitutionality

of

Alabama’s

3%

signature

requirement as applied during the special election

circumstances presented here.

I.

“Mootness is a question of law, which this court

reviews de novo.” Via Mat Int’l S. Am. Ltd. v. United

States, 446 F.3d 1258, 1262 (11th Cir. 2006). “The

doctrine of mootness derives directly from the [Article

III] case-or-controversy limitation because ‘an action

that is moot cannot be characterized as an active case

or controversy.’” Al Najjar v. Ashcroft, 273 F.3d 1330,

1335 (11th Cir. 2001) (per curiam) (quoting Adler v.

Duval Cty. Sch. Bd., 112 F.3d 1475, 1477 (11th Cir.

1997)). “[A] case is moot when it no longer presents a

live controversy with respect to which the court can

give meaningful relief.” Id. at 1336 (quoting Fla. Ass’n

of Rehab. Facilities, Inc. v. Fla. Dep’t of Health and

Rehab. Servs., 225 F.3d 1208, 1216–17 (11th Cir.

2000)). “If events that occur subsequent to the filing of

a lawsuit or an appeal deprive the court of the ability

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to give the plaintiff or appellant meaningful relief,

then the case is moot and must be dismissed.” Id.

There is an exception to the mootness doctrine for

cases that are “capable of repetition, yet evading

review.” S. Pac. Terminal Co. v. Interstate Commerce

Comm’n, 219 U.S. 498, 515 (1911) “[I]n the absence of

a class action, the ‘capable of repetition, yet evading

review’ doctrine [i]s limited to the situation where two

elements combine[]: (1) the challenged action [i]s in its

duration too short to be fully litigated prior to its

cessation or expiration, and (2) there [i]s a reasonable

expectation that the same complaining party w[ill] be

subjected to the same action again.”2 Weinstein v.

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

v. Fla. Sec’y of State, 772 F.3d 1335, 1343 (11th Cir.

2014) (adopting the same two-prong test). “The remote

possibility that an event might recur is not enough to

overcome mootness, and even a likely recurrence is

insufficient if there would be ample opportunity for

review at that time.” Al Najjar, 273 F.3d at 1336.

“The ‘capable of repetition, yet evading review’

doctrine, in the context of election cases, is appropriate

when there are ‘as applied’ challenges as well as in the

more typical case involving only facial attacks.” Storer

v. Brown, 415 U.S. 724, 737 n.8 (1974). Regarding the

application of the exception to as-applied challenges,

the plaintiff need not show that every “legally

relevant” characteristic in the case will recur. See Fed.

For the reasons discussed below, we reject Hall’s argument

that the Supreme Court has dispensed with the requirement that

the same complaining party will be subject to the same action

again.

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Election Comm’n v. Wis. Right To Life, Inc., 551 U.S.

449, 463 (2007). Rather, it is sufficient that there is a

reasonable expectation that “materially similar”

circumstances will recur. See id. at 463–64 (holding

that the plaintiff’s challenge to a law making it a crime

to run ads mentioning political candidates within a

certain number of days before an election was not moot

based on the plaintiff’s assertion that it intended to

run “‘materially similar’ future targeted broadcast ads

mentioning a candidate” before future elections

(citation omitted)).

II.

To determine whether this case is capable of

repetition, we confine our inquiry to whether there is a

reasonable expectation that Hall will be faced with

meeting the 3% ballot-access requirement during an

Alabama special election for a U.S. House seat. The

scope of the relief sought by Hall, and the relief

granted by the district court, was thus limited.

Moreover, meeting the 3% requirement for an office

other than a U.S. House seat could require Hall to

collect a materially different number of signatures

than the number that he was required to collect in

2013. Thus, a special election for an office other than a

U.S. House seat would not subject Hall to the same or

a materially similar action to the action that he faced

in 2013. We must therefore determine whether there is

a reasonable expectation that Hall will have an

opportunity during his life to run or vote in a special

election for a U.S. House seat in Alabama. We conclude

that there is not.

Hall resides in Alabama’s First House District and

there is no indication that he intends to move. Before

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2013, the last special election in Alabama’s First House

District was in 1935. Although it is possible that there

will be an unexpected vacancy in Alabama’s First

House District during Hall’s life, reasonable

expectation requires more than a theoretical

possibility. Similarly remote is the possibility that Hall

will run or vote in a special election for another

Alabama House seat. The record indicates that,

recently, special elections for any U.S. House seat in

Alabama have occurred only about every twenty

years.3 Hall contends that he wants to run in any

special election for a U.S. House seat in Alabama

regardless of his residence. But, as more fully

discussed below, the prospect of Hall running to

represent a district in which he does not live is farfetched. And Hall can only vote in the district in which

he resides. Given the infrequency and unpredictable

nature of special elections for U.S. House seats, it is

unreasonable to expect Hall to move to another

Alabama district at a time that allows him to run or

vote in such an election in that district. See Murphy v.

Hunt, 455 U.S. 478, 482 (1982) (per curiam) (“The

Court has never held that a mere physical or

theoretical possibility was sufficient to satisfy the

Alabama has held special elections for U.S. House seats in

1941, 1944, 1947, 1972, 1989, and 2013. Based on the fact that

Alabama has held six special elections for U.S. House seats since

1941, the dissent suggests that special elections for U.S. House

seats in Alabama have historically occurred approximately every

twelve years. Since 1947, however, special elections for U.S.

House seats in Alabama have occurred with intervals over twenty

years. In any event, the frequency of special elections in Alabama

House seats is such that it will likely be a long time before the

next one.

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[capable-of-repetition] test . . . .”); Al Najjar, 273 F.3d

at 1336. Thus, this case does not satisfy the second

prong of the capable-of-repetition-yet-evading-review

exception to mootness. There is no reasonable

expectation that Hall, the same complaining party, will

again be subject to the Alabama 3% requirement as an

independent candidate or voter in a special election for

a U.S. House seat.

III.

We recognize that some of the Supreme Court’s

early election law cases suggest that the same

complaining party rule may apply in a rather relaxed

manner in the context of election cases. See Storer, 415

U.S. at 737 n.8. In Storer, the Supreme Court

addressed several challenges to California’s election

laws as applied during a regular election cycle. Id. at

727. For example, California law barred independent

candidates from gaining ballot access if the candidate

had been affiliated with a political party within the

previous twelve months. Id. at 726. Two of the

challengers, Storer and Frommhagen, sought to run as

independent candidates for California’s Sixth and

Twelfth Congressional Districts in the 1972 election.

Id. at 727 n.3. They were barred from obtaining ballot

access because both had been registered Democrats

until early 1972. Id. at 728.

Before reaching the merits of their challenge, the

Court found that the case was not moot because “the

issues properly presented, and their effects on

independent candidacies, will persist as the California

statutes are applied in future elections.” Id. at 737 n.8.

The Court did not explicitly address whether there was

a reasonable expectation that Storer, Frommhagen, or

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any of their supporters would be subjected to the same

action again. The Storer opinion did not address

whether these candidates expressed their intent to

change their affiliation again in the future or their

intention to run again as independent candidates and

seek ballot access. Nevertheless, the Supreme Court

addressed the merits of the case, recognizing that

“[t]he construction of the statute, an understanding of

its operation, and possible constitutional limits on its

application, will have the effect of simplifying future

challenges” to California’s election laws. Id. The Storer

opinion also involved two other challengers, Hall and

Tyner, members of the Communist Party, who sought

ballot access to run as independent candidates for

President and Vice President of the United States. Id.

at 727–28. The Supreme Court addressed the merits of

their challenge also. Id. at 738.

The instant case, however, is materially different

than Storer. Storer addressed ballot access restrictions

during a regular election cycle. Thus, the issue

presented in that case would almost certainly repeat

every few years, presenting the Storer politicians with

repeated opportunities to run. In stark contrast, the

issue presented by Hall will not repeat during every

election cycle in Alabama. Rather, the record indicates

that, with this particular U.S. House seat, the last

special election was in 1935, and the record indicates

that, recently, a special election for any U.S. House

seat in Alabama has occurred only about every twenty

years. The issue presented in this case will therefore

recur, if at all, with far less frequency than the issue

presented in Storer and other cases that involve

challenges to election laws as applied during regular

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election cycles. Given this distinction, the application

of the same complaining party rule in ordinary election

law cases has limited import here.

IV.

It is true that the language used by Storer—i.e.,

that the case was not moot because the “effects [of the

challenged burdens] on independent candidacies . . .

will persist as the California statutes are applied in

future elections,” id. at 737 n.8—could be construed to

suggest that the Court was dispensing with any

requirement that the same complaining party will be

subject to the same action again. Relying on Storer,

Hall argues that the same complaining party rule does

not apply in the context of election cases. For several

reasons, we reject Hall’s argument; we do not believe

Storer should be construed as dispensing with the

same complaining party rule.

First, Storer is consistent with a relaxed

application of the same complaining party rule. The

Court did not explicitly address whether the four

challengers would again seek to run as independent

candidates and run afoul of the restriction that kept

them off of the ballot, but it is not unreasonable to

expect that politically active persons, like the

challengers, would do so in another general election.

As indicated below, cases construing the boundaries of

the relaxation of the same complaining party rule in

election cases do not always require affirmative proof

that the same complaining party intends to continue

similar participation in political activities and

challenge again the restriction at issue; rather, the

cases require only that there be a reasonable

expectation under all the circumstances that the same

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complaining party will continue such activities and

again be subject to the challenged restriction.

A second reason that we do not believe that Storer

dispensed with the same complaining party rule is as

follows. Supreme Court cases after Storer have

consistently applied the same complaining party rule

in evaluating whether a case falls within the capableof-repetition-yet-evading-review exception to mootness.

DeFunis v. Odegaard, 416 U.S. 312, 314, 319–20 (1974)

(per curiam) (holding that the plaintiff’s challenge to

the law school’s admission procedure was moot because

the plaintiff, who “brought the suit on behalf of himself

alone, and not as the representative of any class,” was

enrolled at the law school and would “complete his law

school studies at the end of the term for which he [was]

registered regardless of any decision th[e] Court might

reach on the merits of th[e] litigation”); Richardson v.

Ramirez, 418 U.S. 24, 36 (1974) (recognizing in the

election law context that “if the case were limited to

the named parties alone, it could be persuasively

argued that there was no present dispute on the issue

of the right to register [to vote] between the three

named individual respondents in this Court and the

one named petitioner here” but holding that the case

was not moot because the “individual named plaintiffs

brought their action in the Supreme Court of

California on behalf of themselves and all other exfelons similarly situated”); Sosna v. Iowa, 419 U.S. 393,

399 (1975) (holding that the case was not moot because

the plaintiff represented a certified class but opining,

“If appellant had sued only on her own behalf, both the

fact that she now satisfies the one-year residency

requirement and the fact that she has obtained a

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divorce elsewhere would make this case moot and

require dismissal.”); Weinstein, 423 U.S. at 149

(holding that the plaintiff’s challenge to North

Carolina’s parole procedures was moot because the

plaintiff had been paroled and stating, “Sosna decided

that in the absence of a class action, the ‘capable of

repetition, yet evading review’ doctrine was limited to

the situation where two elements combined: (1) the

challenged action was in its duration too short to be

fully litigated prior to its cessation or expiration, and

(2) there was a reasonable expectation that the same

complaining party would be subjected to the same

action again.”); Neb. Press Ass’n v. Stuart, 427 U.S.

539, 547 (1976) (holding that the case was not moot

because the dispute between the state and the

Nebraska Press Association, among others, regarding a

restraining order on the press during a criminal trial

was capable of repetition); Ill. State Bd. of Elections v.

Socialist Workers Party, 440 U.S. 173, 187–88 (1979)

(applying the Weinstein two-prong test and

determining that the State Board’s challenge to the

Chicago Board’s unilateral settlement regarding a

1977 special mayoral election in Chicago was moot

because the Chicago Board’s entry into the settlement

was not “a policy it had determined to continue,” “a

consistent pattern of behavior,” or “a matter of

statutory prescription”); Murphy, 455 U.S. at 482–84

(quoting the Weinstein two-prong test and holding that

the case was moot because there was “no reason to

believe that [the plaintiff] Hunt w[ould] once again be

in a position to demand bail before trial”); Honig v.

Doe, 484 U.S. 305, 319–20 (1988) (holding that the

challenge to the school district’s rule allowing the

unilateral exclusion of disabled children for dangerous

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or disruptive conduct was not moot as to one of the

plaintiffs because there was a reasonable expectation

that that plaintiff “would once again be subjected to a

unilateral ‘change in placement’ for conduct growing

out of his disabilities”); Meyer v. Grant, 486 U.S. 414,

417 n.2 (1988) (applying the Weinstein two-prong test

in the election law context and holding that the case

was not moot where the proponents of a ballot

initiative continued to advocate for its adoption); Int’l

Org. of Masters, Mates & Pilots v. Brown, 498 U.S.

466, 473 (1991) (holding in the context of union

elections that the individual plaintiff’s challenge to a

union election rule was not moot “even though

respondent’s campaign literature has been distributed

and even though he lost the election by a small

margin,” and noting that “[r]espondent has run for

office before and may well do so again”); Norman v.

Reed, 502 U.S. 279, 288 (1992) (holding in the election

law context that a challenge to the petitioners’ ability

to appear on the 1990 ballot under the Harold

Washington Party name was not moot even though the

1990 election had passed because “[t]here would be

every reason to expect the same parties to generate a

similar, future controversy subject to identical time

constraints”); Wis. Right To Life, Inc., 551 U.S. at 462–

64 (quoting the Weinstein two-prong test in the

campaign ad election context and holding that the

plaintiff’s challenge to a law prohibiting targeted

broadcasts within a certain number of days before an

election was not moot because the plaintiff intended to

run materially similar targeted broadcast ads before

future elections); Davis v. Fed. Election Comm’n, 554

U.S. 724, 735–36 (2008) (quoting the Weinstein twoprong test in the campaign finance election law context

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and holding that the plaintiff’s challenge to certain

campaign contribution limits was not moot where the

plaintiff made a public statement expressing his intent

to self-finance another bid for a House seat).

As the foregoing cases demonstrate, the Supreme

Court has indicated repeatedly that the capable-ofrepetition-yet-evading-review exception to mootness

should be tested by the Weinstein two-pronged test

(including the same complaining party rule) in cases

generally. And, particularly relevant for the instant

case, several Supreme Court cases have applied the

same complaining party rule in the election law

context, as indicated in the parenthetical notations

above. For example, the Court in Meyer v. Grant sets

out the two-pronged Weinstein test, holds that both

prongs are satisfied, and explains that the plaintiffs

(who challenged state law restrictions to ballot access)

continued to advocate for the adoption of the state

constitutional amendment at issue and thus it was

“reasonable to expect that the same controversy will

recur between these two parties, yet evade meaningful

judicial review.” 486 U.S. at 417 n.2. The fact that the

Supreme Court has expressly found that the same

complaining party rule is satisfied in election law cases

counsels against interpreting Storer as dispensing with

the rule. See also Arcia, 772 F.3d at 1343 (in the

election context, this Court applied the two-pronged

Weinstein test, including the same complaining party

rule).

Finally, the Supreme Court’s other early election

cases are consistent with our interpretation of Storer.

For example, in Moore v. Ogilvie, 394 U.S. 814 (1969),

independent candidates for the offices of electors of the

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President and Vice President of the United States

challenged an Illinois ballot access signature

requirement. Id. at 815. The Court held that the case

was not moot because the law would continue to

control future elections, “as long as Illinois maintains

her present system as she has done since 1935.” Id. at

816. Although the Court did not explicitly address the

likelihood that the same independent candidates would

seek to run again, there was a reasonable expectation

that they would do so, given that they were politically

active individuals who would have the opportunity to

do so every four years. Also, in Brockington v. Rhodes,

396 U.S. 41 (1969) (per curiam), the Court held that

the plaintiff’s ballot access challenge was moot because

the election was over and the plaintiff sought only a

limited, extraordinary remedy—“a writ of mandamus

to compel the appellees to place his name on the ballot

as a candidate for a particular office in a particular

election.” Id. at 43. The Court noted that the plaintiff

did not allege that he intended to run for office in

future elections, attempt to maintain a class action,

sue on behalf of himself and independent voters, or

seek a declaratory judgment. Id. at 43. The Court’s

recognition of the first three factors suggests that the

Court considered whether the same plaintiff would be

subjected to the same action again in this pre-Storer

election law case.4

The final two pre-Storer election law cases on which Hall

relies also fail to support his argument that the Supreme Court

has dispensed with the same complaining party rule in the

election context. These cases, Dunn v. Blumstein, 405 U.S. 330

(1972) and Rosario v. Rockefeller, 410 U.S. 752 (1973), were class

actions. Dunn, 405 U.S. at 331 (“The issue arises in a class action

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V.

Although it is clear that the Supreme Court has

not dispensed with the same complaining party rule,

several cases, multiple treatises, and several scholars

have suggested that the rule is applied in a rather

relaxed manner. See 13C Charles A. Wright, Arthur R.

Miller, Edward H. Cooper, Federal Practice &

Procedure § 3533.9 (3d ed. 2008) (“Wright & Miller”)

(“Although it has not been abandoned, the requirement

that the individual plaintiff is likely to be affected by a

future recurrence of a mooted dispute has been diluted

in some cases.”); 15 Moore’s Federal Practice § 101.99

(2018)

(“[T]he

[capable-of-repetition]

exception

generally applies only if the claim of the very same

for declaratory and injunctive relief brought by appellee James

Blumstein.”); Rosario, 410 U.S. at 755 n.4 (“The present

consolidated case originated in two complaints, one by the

petitioner Rosario and other named plaintiffs, on behalf of a class,

and one by the petitioner Eisner.”). As noted above, in Sosna, the

Supreme Court made clear that the class action context is

different than the situation in which an individual plaintiff’s

claim is moot and not capable of repetition with regards to the

individual plaintiff. Relying on Dunn and Rosario, the Sosna

Court held that the plaintiff’s class action challenge to Iowa’s

durational residency requirement to obtain a divorce was not

moot even though the named plaintiff had satisfied the

requirement, obtained a divorce, and was therefore unlikely to be

subjected to the same action again. 419 U.S. at 401–02. The Court

observed that the class action issue “was present in Dunn v.

Blumstein, 405 U.S. 330 (1972), and was there implicitly resolved

in favor of the representative of the class.” Id. at 400; see also

United States v. Sanchez-Gomez, No. 17-312, 2018 WL 2186177,

at *5 (U.S. May 14, 2018) (“The ‘fact that a putative class acquires

an independent legal status once it is certified’ was . . . ‘essential

to [the] decision[ ] in Sosna.’” (alteration adopted) (quoting

Genesis Healthcare Corp. v. Symczyk, 569 U.S. 66, 75 (2013))).

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litigant will evade review. . . . However, this standard

has been relaxed in some cases . . . .”); Evan Tsen Lee,

Deconstitutionalizing Justiciability: The Example of

Mootness, 105 Harv. L. Rev. 603, 623 (1992) (arguing

that mootness should be considered a prudential

doctrine); Marc Rohr, Fighting for the Rights of

Others: The Troubled Law of Thirdparty Standing and

Mootness in the Federal Courts, 35 U. Miami L. Rev.

393, 444 (1981) (recognizing that the Supreme Court

has applied the same complaining party rule with

“leniency” in election cases).

One treatise states, “The requirement that the

plaintiff show a prospect of personal future

involvement with challenged practices may be relaxed

substantially with respect to matters of apparent

public interest.” Wright & Miller, supra at § 3533.8.3.

Another opines that the rule is relaxed in cases

“involving elections or ongoing government policies.”

Moore’s Federal Practice, supra at § 101.99.

Particularly regarding election cases, “[c]andidates

have often been allowed to challenge restrictions on

candidacy after completion of the election immediately

involved and without any showing of plans to become

involved in any future election.” Wright & Miller,

supra at § 3533.9. Our discussion above of Storer

seems to confirm some relaxation. See also Moore, 394

U.S. at 815–16 (holding that the independent

candidates’ challenge to Illinois’s ballot access

signature requirement was not moot without explicitly

addressing the likelihood that the same independent

candidates would seek to run again); Brown, 498 U.S.

at 473 & n.8 (stating that “[r]espondent has run for

office before and may well do so again” but also noting

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that the respondent was in fact running in another

union election).

The Sixth Circuit case Lawrence v. Blackwell, 430

F.3d 368 (6th Cir. 2005), illustrates this relaxed

application of the same complaining party rule.

Lawrence involved an independent candidate’s

challenge to Ohio’s restrictions on ballot access in the

context of a regular general election cycle. Id. at 370.

The court held that the case was not moot

notwithstanding that the 2004 election at issue had

passed. Id. at 371. Applying the same complaining

party rule, the court held that the controversy was

capable of repetition:

Although Lawrence has not specifically stated

that he plans to run in a future election, he is

certainly capable of doing so, and under the

circumstances it is reasonable to expect that he

will do so. Neither is an explicit statement

from Shilo necessary in order to reasonably

expect that in a future election she will wish to

vote for an independent candidate who did not

decide to run until after the early filing

deadline passed. The law at issue is still valid

and applicable to both Lawrence and any

independent candidate Shilo might wish to

vote for in future election years. Therefore, the

controversy is capable of repetition.

Id. Thus, the Sixth Circuit has held that there is no

requirement for affirmative proof that the same

complaining party intends to continue similar

participation in politics and again challenge the

restriction at issue; it is sufficient that there be a

reasonable expectation under the circumstances that

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he will again

restriction.5

be

subjected

to

the

challenged

Other courts have interpreted the same

complaining party rule in a similarly relaxed manner.

See Merle v. United States, 351 F.3d 92, 95 (3d Cir.

2003) (holding that a postal worker’s challenge to a

provision of the Hatch Act that barred him from

running for Congress was not moot even though the

election had passed because it was reasonable to

expect the plaintiff to wish to run for office again

regardless of whether he explicitly stated his intent to

do so but also interpreting the plaintiff’s statement

that he would be subject to the Hatch Act in future

elections as an indication that the plaintiff intended to

run for office again); Majors v. Abell, 317 F.3d 719, 723

(7th Cir. 2003) (holding that the plaintiff’s challenge to

a state law regarding political advertising was capable

of repetition even though the named plaintiff had not

sought to run as a candidate in the next election,

stating, “[I]n an election case the court will not keep

interrogating the plaintiff to assess the likely

trajectory of his political career.”); Vote Choice, Inc. v.

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

reasonable expectation that the plaintiff “w[ould]

encounter the same barrier again” where “she ha[d]

The Sixth Circuit in Lawrence, either in dicta or an

alternative holding, also seemed to dispense with the requirement

of a reasonable expectation that the same complaining party be

subjected to the same restriction again. Id. at 372. To the extent

that the Sixth Circuit so held, we respectfully disagree for the

reasons set forth in this opinion. In any event, the Sixth Circuit

case is distinguishable from the instant case because it involved a

regular election cycle, which would recur frequently.

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not renounced possible future candidacies,” and noting

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

in the pursuit of high elective office”); see also Kucinich

v. Tex. Democratic Party, 563 F.3d 161, 165 (5th Cir.

2009) (holding that a challenge to a Texas Democratic

Party oath requirement was not moot even though the

plaintiff’s counsel “could not state whether his client

ha[d] an intention to run for President in the future

and declined to express a belief that [the plaintiff]

w[ould] again be subject to the party’s oath

requirement”); Schaefer v. Townsend, 215 F.3d 1031,

1033 (9th Cir. 2000) (relying on Dunn and holding that

the plaintiff’s challenge to a residency requirement

was not moot even though the candidate refused to

disclose whether he intended to run in future

elections); McLain v. Meier, 637 F.2d 1159, 1162 n.5

(8th Cir. 1980) (holding that the plaintiff’s challenge to

state ballot access and formatting statutes was not

moot without requiring proof that the plaintiff

intended to seek ballot access in future elections).6

6

To the extent that the Fifth Circuit in Kucinich, the Ninth

Circuit in Schaefer, or the Eighth Circuit in McLain suggests that

the same complaining party rule does not apply at all, we

respectfully disagree, as discussed above. Cf. Kucinich, 563 F.3d

at 164–65 (observing Justice Scalia’s argument “that the Court’s

treatment of election law cases differs from its traditional

mootness jurisprudence by dispensing with the same-party

requirement” (citing Honig, 484 U.S. at 335–36 (Scalia, J.,

dissenting)); Schaefer, 215 F.3d at 1033 & n.1 (finding that the

plaintiff’s challenge to the residency requirement was not moot

even though the plaintiff had satisfied the requirement and the

election had already been held); McLain, 637 F.2d at 1162 n.5

(“Regardless of [the plaintiff]’s candidacy in any future election,

election law controversies tend not to become moot.”). Moreover,

like the Sixth Circuit Lawrence case, Kucinich and McLain

20a

We need not definitively decide in this case the

outer boundaries of the relaxation with respect to the

application of the same complaining party rule. We are

confident that the instant case does not satisfy the

same complaining party rule, however relaxed the rule

may be. In light of the history of the infrequent

occurrences of special elections in Alabama for U.S.

House seats, we conclude that it is highly unlikely that

Hall will have an opportunity during his life to seek to

run or vote in a special election for a U.S. House seat

in Alabama.7 As noted above, it is highly unlikely that

there will be another special election in Hall’s own

First U.S. House District during his life. And we

involved challenges to election laws as applied during regular

election cycles. And although Schaefer involved a special election,

the opinion suggests that the challenged residency requirement

would apply with equal or greater force during regular election

cycles. 215 F.3d at 1034 n.2. Thus, the issues presented in those

cases would likely recur frequently, making those cases materially

different than the instant case.

7

By focusing so intensely on Hall’s asserted intent to run in

future special elections for U.S. House seats in Alabama, the

dissent ignores a critical issue in this case—i.e., whether Hall will

have an opportunity to run in such an election. Regardless of

Hall’s intent, if Hall is not likely to have the opportunity to run in

a future special election for a U.S. House seat in Alabama, there

can be no reasonable expectation that he will do so.

We recognize that courts “do not always require affirmative

proof that the same complaining party intends to continue similar

participation in political activities” in order to find that the same

complaining party rule is satisfied. See supra Part IV. However,

the law is well established that courts do require that there be “a

reasonable expectation that the same complaining party would be

subjected to the same action again.” Weinstein, 423 U.S. at 149.

For all of the reasons discussed in this opinion, we cannot

conclude that there is such a reasonable expectation in this case.

21a

consider the prospect of Hall’s running to represent a

district in which he does not reside a mere theoretical

possibility. Even if Hall were willing to move to

another district upon the announcement of a mid-term

U.S. House vacancy—and there is no suggestion that

he is—the unpredictable nature of a mid-term U.S.

House vacancy would mean that Hall’s move to the

new district would be shortly before the election. Thus,

Hall would probably be considered a carpetbagger if he

attempted to run in the special election, further

reducing the likelihood of his doing so.8 Similarly

unlikely is the prospect of Hall uprooting his life and

quickly moving to a new U.S. House district in order to

register and vote in a special election in that district.

We therefore conclude that this case is not capable of

repetition with regards to Hall under any reasonable

application of the same complaining party rule.9

The dissent’s focus on our carpetbagger comment is

misplaced. The fact that Hall would be unlikely to prevail if

running in a foreign House district is just one more factor

indicating that there is no reasonable likelihood of such a race.

8

The dissent mistakenly suggests that we make a factual

finding that Hall does not really intend to run in future special

elections for U.S. House seats in Alabama. To the contrary, we

hold only, as established law provides, that there must be a

“reasonable expectation” that he will run again and be subjected

to the same or similar restrictions. Under the circumstances

presented here, we cannot conclude that Hall’s intent is

reasonable. Running in a special election for a U.S. House seat

outside of Hall’s district would require Hall to either abruptly

move or regularly travel to another part of Alabama to campaign.

Such practical difficulties along with the fact that such an election

may not occur for twenty years make the prospect of Hall running

in such an election remote regardless of Hall’s present intent.

9

22a

We recognize that this case presents a conflict

between strong and legitimate concerns. On the one

hand, the district court’s opinion seems to us to be a

resolution of only the rights of future independent

candidates seeking ballot access in future special

elections. We can perceive of no real interest on the

part of Hall because there is no remedy available to

him other than the satisfaction of having this Court

tell him that he should have been allowed access to the

ballot. See Flanigan’s Enters., Inc. of Ga. v. City of

Sandy Springs, 868 F.3d 1248, 1268 (11th Cir. 2017)

(en banc) (recognizing that “absent an accompanying

practical effect on the legal rights or responsibilities of

the parties before us, we are without jurisdiction to

give” litigants “purely psychic satisfaction” through

“judicial validation”), cert. denied sub nom., No. 17869, 2018 WL 1460786 (U.S. Mar. 26, 2018). Any

opinion by us on the merits of this case would be

nothing more than an advisory opinion. Wholly aside

from our constitutional constraint to entertain only

real cases or controversies, advisory opinions are

always unwise. It is hard for a party to devote the

appropriate effort to prosecute a case that can make no

real difference to the party; the parties’ advocacy

In the dissent’s view, the constitutional issue of mootness

depends entirely on a plaintiff’s mere assertion of intent to run

regardless of how unreasonable that may be. In our judgment, the

constitutional authority of a court to decide a case could not

depend on so slender a read, one so readily subject to

manipulation.

23a

necessarily suffers, and the Court is left without

necessary guidance.10

On the other hand, courts are understandably

loathe to permit a situation in which a governmental

restriction is effectively immune from judicial review

and correction, because the duration of the restriction

is too short to be fully litigated before it expires.

Fortunately, the instant case does not present a

situation in which a challenge to the Alabama

restriction will always evade review. Although “the

‘mere presence of . . . allegations’ that might . . . benefit

other similarly situated individuals cannot ‘save [a

litigant’s] suit from mootness once [his] individual

claims’ have dissipated,” Sanchez-Gomez, 2018 WL

2186177, at *6 (quoting Genesis Healthcare Corp., 569

U.S. at 73), a litigant whose interest extends beyond

his or her own concern about access to the ballot for a

particular special election can file a class action suit

that comports with the strictures of Federal Rule of

Civil Procedure 23, and thus avoid mootness. Id. at *5–

6. The Supreme Court in Sosna has held that, when a

suit is brought as a class action and the district court

To the extent that the dissent suggests that a plaintiff’s

past candidacy alone is sufficient – i.e., sufficient to satisfy the

requirement that there be a reasonable expectation that the

plaintiff will run again and be subjected to the same or similar

restrictions – even if it is extremely unlikely that the plaintiff will

have the opportunity to run and be subjected to the same or

similar restrictions, the dissent is in effect dispensing with any

requirement that the same complaining party will be subject to

the same action again. In Part IV of our opinion, we consider and

reject this proposition. We believe that our position—rather than

the dissent’s position—is more in harmony with the cases in the

Supreme Court and the other circuits.

10

24a

has certified the class and found that the named

plaintiff would fairly and adequately protect the

interests of the class, “[t]he controversy may exist . . .

between a named defendant and a member of the class

represented by the named plaintiff, even though the

claim of the named plaintiff has become moot” and is

not capable of repetition with regards to the named

plaintiff. 419 U.S. at 402. We believe that such a

posture is much preferable, as compared to the

advisory opinion that Hall seeks, because the class

certification findings provide assurance that the class

of future candidates and/or future voters would be

adequately represented by vigorous advocacy.11 See

also Sanchez-Gomez, 2018 WL 2186177, at *6

(“[C]ourts may not ‘recognize . . . a common-law kind of

class action’ or ‘create de facto class actions at will.’”

(quoting Taylor v. Sturgell, 553 U.S. 880, 901 (2013))).

For the foregoing reasons, we conclude that this

case is MOOT. Accordingly, we vacate the judgment of

the district court and remand with instructions to

dismiss the case as MOOT.

VACATED and REMANDED with instructions.

The dissent expresses concern that a class action

challenging Alabama’s ballot access restrictions during a special

election would also be moot and not capable of repetition with

regards to any member of the class once the election at issue had

passed. We disagree. Such a class action could likely include

independent candidates and voters in all U.S. House districts in

Alabama. There is a greater likelihood of a future special election

when all U.S. House seats are in play; thus, the class would have

a much stronger argument than Hall that the issue was capable of

repetition with regards to at least some members of the class.

11

25a

JILL PRYOR, Circuit Judge, dissenting:

In 2013, Congressman Jo Bonner, who represented

Alabama’s First Congressional District, announced

that he would be retiring, and a special election was

called to elect the district’s next representative. James

Hall, a 39-year-old United States Marine Corps

veteran, sought to run as an independent candidate in

the special election.

To be listed on the ballot, candidates had to obtain

signatures from 5,938 registered voters in the

district—a number equivalent to 3% of the votes cast

in the district in the last gubernatorial election. See

Ala. Code § 17-9-3(a)(3). There were only about four

months between Congressman Bonner’s announcement

and the deadline for candidates to submit the required

signatures. Within this relatively brief period, Hall

decided to run, created a plan for collecting signatures,

and began gathering them. Hall’s time frame was even

more compressed because the Secretary of State had

no official form available for candidates to use to collect

signatures for the special election, which meant that

Hall could not begin gathering signatures until the

Secretary of State approved his form. After receiving

the Secretary of State’s approval, Hall had only 106

days remaining to obtain the signatures. He sought

signatures at community events, canvassed his

network of friends and colleagues, and visited over

5,000 homes, but he was unable to collect the required

number of signatures in time. As a result, Hall’s name

did not appear on the ballot for the 2013 special

election.

In this appeal, Hall challenges the State of

Alabama’s application of its ballot access requirement

26a

to the 2013 special election. We previously held that

Alabama’s

ballot

access

requirement

was

constitutional when applied to a regularly scheduled

election, Swanson v. Worley, 490 F.3d 894, 896-97, 903

(11th Cir. 2007), but this appeal presents a different

question: whether the ballot access requirement is

constitutional when applied to a special election for a

United States House of Representatives seat, where a

candidate faces a considerably more compressed time

frame for gathering signatures. Unfortunately, the

majority

avoids

answering

this

important

constitutional question by concluding—incorrectly, in

my view—that Hall’s claim is moot.

The Constitution limits our jurisdiction to actual

cases or controversies. See U.S. Const. art. III, § 2, cl.

1. We lack jurisdiction to hear a moot case—one that

“no longer presents a live controversy with respect to

which the court can give meaningful relief.” Al Najjar

v. Ashcroft, 273 F.3d 1330, 1336 (11th Cir. 2001)

(internal quotation marks omitted). But even if the

controversy at hand is no longer live, we may retain

jurisdiction under an exception to the mootness

doctrine that addresses circumstances in which the

issue is capable of repetition yet tends to evade judicial

review. Kingdomware Techs., Inc. v. United States,

136 S. Ct. 1969, 1976 (2016) (internal quotation marks

omitted). This exception applies when (1) “the

challenged action is in its duration too short to be fully

litigated prior to cessation or expiration,” and (2)

“there is a reasonable expectation that the same

complaining party will be subject to the same action

again.” Id. (alterations adopted) (internal quotation

27a

marks omitted). No one disagrees that the first prong

of this test is satisfied here.

The majority holds that the second prong of the

test, the “same complaining party rule,” is not satisfied

here. Maj. Op. at [20a]. The majority concedes that in

the context of election challenges the same

complaining party rule applies in a “relaxed” manner.

Id. Despite failing to identify what kind of proof is

required to satisfy the same complaining party rule in

this context, the majority holds that Hall’s proof was

insufficient. See id. (“We are confident that the instant

case does not satisfy the same complaining party rule,

however relaxed the rule may be.”). And it reaches this

conclusion even though Hall testified that he plans to

run as an independent candidate in a future election.

I disagree with the majority’s application of the

same complaining party rule in this case. Looking to

Supreme Court precedent, I would conclude that in the

unique context of an election-related challenge, we can

infer from Hall’s past candidacy alone that there is a

reasonable expectation he will run as an independent

candidate in a future special election and be subject to

the same ballot access requirement. But even

assuming that to satisfy the same complaining party

rule a candidate is required to submit some additional

evidence of his intent to run again, I believe Hall

satisfied this burden with his testimony that he

intends to run as an independent candidate in future

elections, which would include special elections. I

would hold that the case is not moot, address the

merits, and affirm based on the district court’s wellreasoned opinion. I respectfully dissent.

28a

I.

In Election Challenges, Courts Can Infer That

Candidates Will Run in Future Special Elections

from the Fact That They Ran in a Previous

Special Election.

To satisfy the same complaining party rule, a

plaintiff must show that “there is a reasonable

expectation” that she “will be subject to the same

action again.” Kingdomware Techs, 136 S. Ct. at 1976

(alterations adopted) (internal quotation marks

omitted). In general, this means that a plaintiff must

come forward with evidence of her future plans. But,

as the majority concedes, the Supreme Court has

applied this rule less strictly in the context of electionrelated challenges. See Storer v. Brown, 415 U.S. 724,

737 n.8 (1974). In this unique context, we can infer a

reasonable expectation that a candidate will run in a

future election and be subject to the same challenged

ballot access restriction from the fact that she

previously ran as a candidate.

The Supreme Court implicitly drew such an

inference in Storer. There, several candidates

challenged a California law that barred an individual

who had recently been affiliated with a political party

from being listed as an independent candidate on an

election ballot. Id. at 726-27. By the time the case

made its way to the Supreme Court, the election for

which the candidates sought ballot access had passed.

Id. at 737 n.8. In addition, for some of the plaintiffs,

sufficient time had passed since they disaffiliated from

their former political party that they now were exempt

from the challenged law. See id. at 726-28. The

Supreme Court nevertheless held that the case was not

moot because “the issues properly presented, and their

29a

effects on independent candidacies, will persist as the

California statutes are applied in future elections.” Id.

at 737 n.8.

The Court held that the case was not moot without

conducting any inquiry into any candidate’s intent to

run in a future election or the likelihood that the

candidate would be subject to the disaffiliation

requirement in a future election. See id. This was so

even though at least some of the candidates would be

subject to the disaffiliation restriction in the future

only if they chose to rejoin a political party and then

decided to run as an independent candidate before

sufficient time had passed since their disaffiliation

from the political party. See id. The absence of any

discussion about the actual likelihood of the candidates

being subject to the disaffiliation requirement in the

future means the Court must have treated the fact

that the candidates had run in a past election as

sufficient to establish a reasonable likelihood that they

would be subject to the challenged restriction again in

the future. See id.; see also Moore v. Ogilvie, 394 U.S.

814, 816 (1969) (concluding—without requiring

evidence that any plaintiff would run in a future

election and despite a dissent arguing that the case

was moot without such evidence—that a challenge to a

ballot access requirement for independent candidates

was not moot because even though the relevant

“election is over, the burden . . . remains and controls

future elections”).

Subsequent Supreme Court cases confirm that in

the specific context of a challenge to a ballot access

requirement, courts can infer from the fact that a party

previously ran as a candidate a reasonable expectation

30a

that he will run in a future election and again be

subject to the challenged requirement. In Norman v.

Reed, a group of voters who were organizing a new

political party challenged an Illinois law requiring

them to collect a certain number of signatures for the

party to be listed on the election ballot. 502 U.S. 279,

283-84 (1992). By the time the case reached the

Supreme Court, the election was over. Id. at 287. Yet

the Supreme Court held that the case was not moot

because “[t]here would be every reason to expect the

same parties to generate a similar, future controversy

subject to identical time constraints if [the Court]

should fail to resolve the constitutional issues” that

arose during the first election. Id. at 288. Again, the

Court reached this conclusion without requiring

evidence that the voters would try to get the party on

the ballot in future elections. Instead, it appears that

the Court inferred from the voters’ past attempt to

seek ballot access that they would do so in the future.

See id.; see also Int’l Org. of Masters, Mates & Pilots v.

Brown, 498 U.S. 466, 473 (1991) (holding that union

officer candidate’s challenge to union’s election rule

was not moot because the candidate “has run for office

before and may well do so again,” without addressing

whether there was any evidence of the candidate’s

actual intent to run again).

I acknowledge that in other election-related cases

the Supreme Court has held that the same

complaining party rule was satisfied where the

plaintiffs presented evidence that they would engage in

conduct that would make them subject to the

challenged restriction in a future election. See Davis v.

FEC, 554 U.S. 724, 735-36 (2008); FEC v. Wis. Right to

31a

Life, Inc., 551 U.S. 449, 463-64 (2007); Meyer v. Grant,

486 U.S. 414, 417 n.2 (1988). The Supreme Court held

in these cases that evidence of the candidate’s intent

was sufficient to satisfy the same complaining party

rule, but it has never held that such evidence was

necessary to satisfy the rule. Nor did the Supreme

Court cast any doubt in these cases about its decisions

in Storer, Reed, or other cases in which it required no

evidence of the plaintiff’s intent to run in a future

election.

The majority contends that the Supreme Court’s

decision in Brockington v. Rhodes, 396 U.S. 41 (1969)

(per curiam), illustrates that a more searching inquiry

into a plaintiff’s intent to run in a future election is

required. But Brockington does not control here. In

that case, a candidate challenged an Ohio ballot access

law requiring independent candidates to gather

signatures from 7% of the qualified voters in the

district. Id. at 41-42. The candidate obtained

signatures amounting to a little over 1% and then

petitioned in Ohio state court for a writ of mandamus

commanding the election board to certify his

nominating petition as sufficient and “to do all things

necessary to place [his] name upon the ballot.” Id. at

42. He sought no declaratory relief. Id. at 42. By the

time the appeal reached the Supreme Court, the

election was over. The Court concluded that the case

was moot “in view of the limited nature of the relief

sought” because with the election over it was “now

impossible to grant the [candidate] the limited,

extraordinary relief he sought in the Ohio courts.” Id.

at 43-44. Because the Supreme Court’s mootness

decision in Brockington was driven by the candidate’s

32a

decision to seek only mandamus relief, the Court had

no occasion to address what evidence would be

sufficient for candidates to satisfy the same

complaining party rule when they seek a declaratory

judgment that a ballot access requirement is

unconstitutional. See id.

The majority also relies on the Supreme Court’s

decision in Illinois State Board of Elections v. Socialist

Workers Party, 440 U.S. 173, 175-76 (1979), to support

its assertion that to satisfy the same complaining party

rule candidates must provide direct evidence of their

intent regarding future elections. But that case does

not advance the majority’s position. After Chicago’s

mayor died in office, several new political parties and

an independent candidate sought to be included on the

ballot for the special mayoral election. Id. at 177-78.

Together they brought a lawsuit against the Chicago

Board of Elections and the State Board of Elections

challenging a state law requiring independent

candidates and new political parties to gather more

than 35,000 signatures before they could be included

on the mayoral ballot. Id. Before the election occurred,

the district court permanently enjoined enforcement of

the state law. The Chicago Board of Elections and the

plaintiffs then reached a settlement agreement, which

the district court incorporated into an order, that

reduced the required number of signatures for new

political parties and independent candidates. Id. at

180. The State Board of Elections filed a motion to

vacate the district court’s order, arguing that the

Chicago Board lacked the authority to settle the

dispute without its permission. Id. The district court

denied the motion. Id. The State Board then appealed

33a

the district court’s orders permanently enjoining

enforcement of the ballot access requirement and

refusing to vacate the order incorporating the

settlement agreement. Id.

The Supreme Court affirmed the district court’s

injunction, holding that the ballot access requirement

was unconstitutional. Id. at 187. Separately, the Court

held that the State Board’s challenge to the Chicago

Board’s settlement authority was moot. Id. at 187-88.

The capable-of-repetition-yet-evading-review exception

to the mootness doctrine did not apply, the Court held,

because there was no “reasonable expectation” that the

Chicago Board would engage in the challenged

conduct—settling litigation without the approval of the

State Board—in the future. Id. The mootness analysis

in Illinois State Board of Elections addressed only

whether the Chicago Board was likely to attempt to

resolve future litigation without agreement from the

State Board, not whether future candidates would be

subject to the ballot access restriction. I fail to see how

the case tells us anything about the application of the

same complaining party requirement here.

By requiring evidence of intent to run in a future

election from a plaintiff in Hall’s position, the majority

creates a circuit split. Seven other circuits—like the

Supreme Court in Storer—have found candidate

challenges not moot, despite the election at issue

having taken place, without requiring any evidence

about the candidate’s intent to run in future elections.

See Kucinich v. Tex. Democratic Party, 563 F.3d 161,

165 (5th Cir. 2009) (holding that a candidate’s

challenge to a political party’s oath requirement was

not moot even though his counsel “could not state

34a

whether his client ha[d] an intention to run . . . in the

future and declined to express a belief that [plaintiff]

w[ould] again be subject to the party’s oath

requirement”); Lawrence v. Blackwell, 430 F.3d 368,

371-72 (6th Cir. 2005) (concluding that a challenge to a

ballot access requirement was capable of repetition yet

evading review even though the plaintiff had “not

specifically stated that he plan[ned] to run in a future

election”); Merle v. United States, 351 F.3d 92, 94-95

(3d Cir. 2003) (concluding that there was a reasonable

expectation that a postal worker, who had sought to

run for Congress but was barred by federal law from

running for partisan political office, would be subject to

the challenged law again even though he failed to

allege that he intended to run in a future election);

Schaefer v. Townsend, 215 F.3d 1031, 1033 (9th Cir.

2000) (concluding that case was not moot “without

examining the future political intentions of the

challenger[]”); Vote Choice, Inc. v. DiStefano, 4 F.3d

26, 37 n.12 (1st Cir. 1993) (holding that controversy

was not moot because the candidate had “not

renounced possible future candidacies, and politicians,

as a rule, are not easily discouraged in the pursuit of

high elective office”); McLain v. Meier, 637 F.2d 1159,

1162 n.5 (8th Cir. 1980) (“Regardless of McLain’s

candidacy in any future election, election law

controversies tend not to become moot”). The decisions

of our sister circuits uniformly reflect that “in an

election case the court will not keep interrogating the

plaintiff to assess the likely trajectory of his political

career.” Majors v. Abell, 317 F.3d 719, 723 (7th Cir.

2003). No circuit besides ours has taken a contrary

position.

35a

The majority tries to distinguish Storer and the

decisions from every other circuit on the ground that

these cases involved challenges to election laws or

regulations in the context of regularly scheduled

elections, but this case involves a challenge to a special

election. The majority argues that because special

elections occur less frequently, we cannot look to cases

applying the same complaining party rule to regularly

scheduled elections, which will reoccur with

predictable regularity. But the majority cites no

authority to support its position. In the absence of any

indication from the Supreme Court or even persuasive

authority from another circuit to support it, I would

not create a different standard for special elections. I

would instead follow the Supreme Court’s analysis and

the similar path taken by every other circuit. I would

conclude that the same complaining party rule is

satisfied in this case because there is a reasonable

expectation that Hall will be subject to Alabama’s

ballot access requirement in a future special election

based on the fact that he ran as an independent

candidate in a previous special election.

II. Even if Candidates Must Prove Their Intent to

Run in a Future Election to Satisfy the Same

Complaining Party Rule, Hall Has Carried This

Burden.

Even assuming the majority is correct—that to

satisfy the same complaining party rule in the context

of a special election candidates must submit some

evidence of their intent to run for office, which will

subject them to the challenged requirement in the

future—Hall has met this burden. The majority

concludes there is only a “theoretical possibility” that

36a

Hall would be subject to the ballot access requirement

in a future special election. Maj. Op. at [21a]. I

disagree.

The majority so concludes because special elections

for U.S. House of Representatives seats historically

have occurred too infrequently in Hall’s home district

to say that there is a reasonable expectation that one

will occur again during his lifetime. But even granting

the majority that there is no reasonable expectation

that a special election will occur in Hall’s own district

during his lifetime, we must consider whether a

reasonable expectation exists that he will run in a

future special election for a House seat anywhere in

Alabama. As a resident of Alabama, Hall is eligible to

represent any district in the State; there is no legal bar

to his running for a House seat in a district other than

his home district. See U.S. Const. art. I, § 2, cl. 2.

Hall’s evidence is sufficient to establish a reasonable

expectation that he will run for a House seat in a

future Alabama special election (whether it is held in

his home district or another district) and thus be

subject to the same ballot access requirement.

There is no dispute that we can reasonably expect

Alabama to hold a special election for an open seat in

the U.S. House of Representatives in the future. There

will be special elections when members of the House

resign for various reasons: to accept other

appointments or positions (like Alabama Congressman

Jo Bonner or Georgia Congressman Tom Price), due to

the fallout from public scandal (like Michigan

Congressman John Conyers or Texas Congressman

Blake Farenthold), or for personal reasons (like

Pennsylvania Congressman Charlie Dent). Seats

37a

unfortunately

will

become

vacant

when

representatives die while in office (like Mississippi

Congressman Alan Nunnelee). Although we do not

know when the next such special election will occur in

Alabama, we know that another vacancywill occur and

need to be filled through a special election.1 Since 1941,

the State of Alabama has held six special elections for

House seats, meaning special elections historically

have occurred on average once every 12 years. Given

this frequency and the fact that Hall was only 39 years

old during the last special election, we can reasonably

expect a future special election for an Alabama House

seat to occur in Hall’s lifetime. The majority accepts

the validity of this type of analysis. See Maj. Op. at [56] (looking to historical evidence about the frequency in

Alabama of special elections for the House of

Representatives to assess whether there is a

reasonable expectation of a future special election

occurring in Hall’s lifetime).

The next question is whether, for purposes of

applying the same complaining party rule, it is

reasonably likely that Hall will run as an independent

candidate in such an election. Despite the fact that the

Constitution permits Hall to represent any House

district in Alabama, see U.S. Const. art. I, § 2, cl. 2, the

majority concludes that Hall would not run for a seat

outside his home district because he would be viewed

I note that even in cases outside the election context, the

Supreme Court has recognized that to satisfy the same

complaining party rule a plaintiff is not required to “establish[]

with mathematical precision the likelihood” that he will be subject

to the same challenged government action. Honig v. Doe, 484 U.S.

305, 320 n.6 (1988).

1

38a

as a “carpetbagger” and thus would be unlikely to win.

Maj. Op. at [21a]. But the majority offers no authority

supporting its assumption that a candidate who lives

outside a district cannot win an election there. I cannot

agree with the majority’s unsupported speculation.2

But the probability of a candidate winning an

election for a seat outside her home district is really

beside the point. As the majority acknowledges, Hall

testified that he “wants to run in any special election

for a U.S. House seat in Alabama regardless of his

residence” in another district. Id. at [6a]. It is not our

place to reject this direct evidence, essentially making

a finding of fact that he would not do so. See PullmanStandard v. Swint, 456 U.S. 273, 291 (1982)

(“Factfinding is the basic responsibility of district

courts, rather than appellate courts. . . .” (alteration

adopted) (internal quotation marks omitted)); Norelus

v. Denny’s, Inc., 628 F.3d 1270, 1293 (11th Cir. 2010)

(“[A]s everyone knows, appellate courts may not make

fact findings.”).

Indeed, an internet search for members of Congress who

live outside the districts they represent calls into question the

majority’s assumption that candidates for House seats outside the

district where they reside cannot win elections. The results of

such a search include reports showing that in June 2017 at least

20 members of Congress were registered to vote (meaning their

official residences were located) outside the districts they were

elected to represent. I acknowledge the possibility that some of

these representatives moved outside their districts after being

elected. But even accepting this possibility, the fact that

representatives are willing to live outside the districts they were

elected to represent suggests that there no significant stigma

attached to it.

2

39a

Furthermore, the majority simply assumes that a

candidate will run in an election only if she can win.

The majority’s supposition ignores that independent

and third party candidates may choose to run in

elections even though they have no realistic chance of

winning. As the Supreme Court has explained, these

candidates may run not because they believe that they

can win the election, but rather to use the “election

campaign [as] a means of disseminating ideas” outside

those presented by the two dominant political parties.

Ill. State Bd. of Elections, 440 U.S. at 186. Hall may

run as an independent candidate in a future special

election to try to introduce new political ideas and help

frame the issues; I cannot agree with the majority that

Hall is unlikely to run in an election unless he can win.

By requiring Hall to show that he has a chance not

only to run in a future election, but also to win it, the

majority adds an element to the same complaining

party inquiry that no other court has adopted. In every

election-related Supreme Court case discussing the

evidence that did or did not satisfy the same

complaining party rule, the Court has held that the

plaintiffs satisfied the rule when they introduced a

statement of intent to participate in a future election.

See Davis, 554 U.S. at 736 (holding that there was a

reasonable expectation that a congressional candidate

would be subject to a federal campaign finance law in

the future when he “made a public statement

expressing his intent” to run for the seat in the future);

see also Wis. Right to Life, Inc., 551 U.S. at 463

(concluding that there was a reasonable expectation

that an ideological organization would again be subject

to a federal law that restricted the content of its

40a

political advertisements in the period shortly before

primary and general federal elections because the

organization “credibly claimed that it planned on

running materially similar future targeted broadcast

ads . . . within the blackout period”); Meyer, 486 U.S.

at 417 n.2 (holding, without considering the likelihood

that voters would actually approve the initiative, that

it was reasonable to expect that proponents of a ballot

initiative would be subject to a state law that

prohibited paying petition circulators when, despite

the initiative’s failure, the proponents “continue[d] to

advocate its adoption and plan future attempts to

obtain the signatures necessary to place the issue on

the ballot”). Not one of these cases required—or even

hinted—that the plaintiffs had to establish the

likelihood that they would win (or the position they

supported would prevail) in a future election to satisfy

the same complaining party requirement. I cannot

agree with the majority’s decision, which effectively

adds this additional requirement to the same

complaining party rule, to go well beyond Supreme

Court precedent.

I am concerned that by imposing more stringent

requirements on candidates seeking to challenge ballot

access laws, the majority’s decision will effectively

close the courthouse doors to future independent and

third party candidates and voters. As an example,

when the next special election for a House seat in

Alabama is held, to gain access to the ballot

independent and third party candidates again will

have to satisfy an onerous signature requirement in a

significantly compressed time frame. If Hall—or any

other candidate or voter in that future special

41a

election—brings a lawsuit raising a constitutional

challenge to the signature requirement, due to the

nature of such vacancies there will be very little time

to litigate the challenge before the election passes and

the case becomes moot. The plaintiff will be unable to

rely on the capable-of-repetition-yet-evading-review

exception because, using the majority’s logic, there will

never be a reasonable expectation of the candidate

running in another special election in his home district

(because such an election is unlikely to occur again

during the plaintiff’s lifetime) or in a special election in

another district (because the plaintiff will be unlikely

to win).3

The majority acknowledges that “courts are

understandably loathe to permit a situation in which a

governmental restriction is effectively immune from

judicial review and correction, because the duration of

the restriction is too short to be fully litigated before it

expires.” Maj. Op. at [23a]. I agree. The majority

suggests, in dicta, that its reasoning will not create

such a situation because in a future special election a

candidate or voter may challenge Alabama’s ballot

access requirements in a class action. Id. at 25-26. I am

far less comfortable that a class action would provide a

viable option. Under the majority’s logic, a future class

action challenging the ballot access restriction brought

during the next special election would, like Hall’s

action here, become moot after the special election

It seems to me that a candidate who was unable to gather

the number of signatures required to appear on the ballot would

never be able to show that he was likely to win a future election.

The effect of the majority’s decision, then, is to insulate ballot

access laws from judicial review.

3

42a

occurs. The majority’s reasons for concluding there is

no reasonable expectation that a special election would

occur again in Hall’s district during his lifetime

likewise would indicate that there is no reasonable

expectation that a special election would occur again in

any class member’s district during her lifetime. The

majority suggests that the class could consist of

independent voters and candidates in all districts in

Alabama, but it fails to explain how the claims of class

members in other districts where no special election

was pending would be justiciable.4

By making Alabama’s ballot access requirements,

as applied in the context of special elections, effectively

immune from judicial review and correction, the

majority’s decision closes the courthouse doors to

independent and third party candidates and voters.

These citizens are left with no meaningful recourse in

the courts to challenge these restrictions, even when

the restrictions impose substantial burdens on First

Amendment and Fourteenth Amendment rights to vote

and to associate for political purposes. I cannot agree

with the majority that we should depart from Supreme

Court precedent and the decisions of all the other

circuits to address this issue by holding that ballot

access restrictions curtailing these rights—which

By pointing to a class action as a suitable alternative, the

majority implicitly concedes that a special election can reasonably

be expected to occur in at least one House district in Alabama

during some class member’s lifetime. This argument seems to me

to be contrary to the majority’s contention that it is “extremely

unlikely” that Hall would have the opportunity to run in another

special election for a House seat in the same district during his

lifetime. Maj. Op. at [23a n.10].

4

43a

“rank among our most precious freedoms”—are

effectively unreviewable. Williams v. Rhodes, 393 U.S.

23, 30 (1968).

***

I would hold that the case is not moot under the

capable–of–repetition–yet - evading-review exception.

There is a reasonable expectation that Hall will be

subject to Alabama’s ballot access signature

requirement in a future special election. I would draw

this conclusion based solely on the fact that Hall ran as

an independent in the special election at issue here.

Alternatively, even if I were to accept the majority’s

position that Hall was required to produce some

evidence showing his intention to run in a future

election, I would conclude that he met his burden given

his testimony that he plans to run in future elections

for any open House seat in the State of Alabama.

Because I would hold that the case is not moot, I

would address on the merits Hall’s claim that

Alabama’s

ballot

access

requirement

is

unconstitutional as applied to the special election here.

States certainly have “important and compelling

interests in regulating the election process and in

having ballot access requirements.” Swanson, 490 F.3d

at 902 (internal quotation marks omitted). But

Alabama’s ballot access restriction “implicate[s] the

constitutional rights of voters, especially those with

preferences outside the existing parties, to associate

and cast their votes effectively.” Id. Weighing these

interests, I agree with the district court that Alabama’s

ballot access requirement is unconstitutional as

applied in the context of a special election for the

House of Representatives when there were only about

44a

four months between the announcement of the vacancy

and the deadline for an independent or third party

candidate to submit signatures to appear on the ballot,

and the candidate was further limited to a 106-day

period to collect signatures. I would affirm the district

court’s judgment.

Respectfully, I dissent.

45a

APPENDIX B

IN THE DISTRICT COURT OF THE

UNITED STATES FOR THE

MIDDLE DISTRICT OF ALABAMA,

NORTHERN DIVISION

JAMES HALL and

N.C. “CLINT”

MOSER, JR.,

Plaintiffs,

v.

JOHN MERRILL,

Alabama Secretary of

State, in his official

capacity,

Defendant.

)

)

)

)

)

)

)

)

)

)

)

)

CIVIL ACTION NO.

2:13cv663-MHT

(WO)

OPINION

Plaintiffs James Hall and N.C. “Clint” Moser, Jr.

planned to run in the December 2013 special election

to fill the vacant United States House of

Representatives

seat

in

Alabama’s

First

Congressional District. However, neither timely

submitted a petition with the number of signatures

required under state law, and, as a result, neither

appeared on the ballot.

Pursuant to 42 U.S.C. § 1983, Hall and Moser

filed this case against Alabama’s Secretary of State,

raising First and Fourteenth Amendment challenges

to the constitutionality of Alabama’s ballot-access

46a

laws in the context of such a special election.1 They

raise an equal protection claim as well. Jurisdiction

is proper under 28 U.S.C. § 1331.

Currently before the court are Hall and Moser’s

motion for summary judgment and the Secretary’s

motion for summary judgment. Based on the record,

as well as the oral arguments conducted before this

court, the court will grant summary judgment in

favor of Hall on his First and Fourteenth Amendment

claim, and grant summary judgment in favor of the

Secretary on Hall’s equal-protection claim. Because

the relief to be afforded to Hall is identical to the

relief sought by Moser, the court need not decide

whether it has jurisdiction to hear, or evaluate the

merits of, Moser’s claims, and his claims will be

dismissed as moot. The motions will be denied in all

other respects.

I.

SUMMARY-JUDGMENT STANDARD

Summary judgment is appropriate “if the movant

shows that there is no genuine dispute as to any

material fact and the movant is entitled to judgment

as a matter of law.” Fed. R. Civ. P. 56. The court

must view the evidence in the light most favorable to

the non-moving party and draw all reasonable

inferences in favor of that party. Matsushita Elec.

Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587

(1986). The Rule 56 standard is unaffected by the

filing of cross-motions for summary judgment. See

John Merrill has replaced Jim Bennett as Alabama’s

Secretary of State and is automatically substituted as the

official capacity defendant in this action. Fed. R. Civ. P. 25(d).

1

47a

Gerling Global Reins. Corp. of Am. v. Gallagher, 267

F.3d 1228, 1233 (11th Cir. 2001).

II. FACTS

A. Alabama’s Ballot-Access Scheme

Alabama law provides a prospective candidate

with different routes onto the ballot, depending on

whether the candidate runs as a member of a

political party or as an independent. A political party

is defined as an organization whose candidate

received more than 20 % of the votes cast in the last

general election in the relevant political subdivision.

1975 Ala. Code § 17-13-40. Candidates who run as a

member of a political party have their names placed

on the ballot after they prevail in their party’s

primary-election processes. 1975 Ala. Code § 17-93(a)(1).

Independent candidates, on the other hand, must

seek to have their names placed on the ballot through

signature petitions. Alabama law requires an

independent candidate to gather a certain number of

signatures of qualified electors--that is, voters

registered in the relevant political subdivision and

therefore eligible to vote for the candidate. Alabama

law sets this signature threshold at 3 % of the

number of voters who cast ballots for the office of

Governor in the last general election in the political

subdivision in which the candidate seeks to qualify.

1975 Ala. Code § 17-9-3(a)(3).

Any qualified elector may sign a petition

regardless of whether the signer actually voted in

Alabama’s last gubernatorial election or intends to

vote in the election in which the candidate wishes to

48a

appear on the ballot. There is no requirement that a

signer be unaffiliated with a political party, no

prohibition on signers voting in a party primary, and

no prohibition on signing multiple petitions. There is

no fee for the Secretary of State to verify the

signatures, and there is no requirement that the

signature petition be notarized or witnessed. Since

not all signatures on petitions will be valid, there is

no limit on the number of signatures that a candidate

may submit, and petitions may be submitted in parts,

although no part may be submitted after the

deadline.

State regulations require that any signature

petition contain a header that with the “name of the

prospective independent candidate, the date of the

general election for which ballot access is sought, and

the name of the office sought, including the district

number, if applicable.” Ala. Admin. Code R. § 820-24-.05.

Independent candidates must file their signature

petitions with the Secretary of State’s office by 5:00

p.m. on the date of the first primary election. 1975

Ala. Code § 17-9-3(a)(3).

B. The December 2013 Special Election

1.

On May 23, 2013, Representative Jo Bonner

announced his retirement from the U.S. House of

Representatives, effective August 15, 2013. That date

was eventually moved up to August 2. His retirement

left Alabama’s First Congressional District, which is

in southwestern Alabama, without a representative.

Although the Governor had not yet announced a date

49a

for a special election, Democratic, Republican, and

independent

candidates

filed

statements

of

organization from mid-June to early July.

Hall contacted the Secretary of State’s office in

early June to verify that he could begin collecting

signatures for his independent candidacy in

compliance with Alabama law. On June 7, Hall emailed the office with a draft petition to verify that it

conformed to Alabama laws and regulations. He was

concerned that the header on his signature petition

might not conform, since the Candidate Filing Guide

published on the Secretary of State’s website, which

he had consulted, stated that signature petitions

must contain the “date of the general election for

which ballot access is sought.” Hall Decl. (doc. no. 251) at 6; Sec’y of State’s Candidate Filing Guide (doc.

no. 16-3) at 2; Ala. Admin. Code R. § 820-2-4-.05. At

the time Hall contacted the Secretary of State’s office,

sample petitions had been posted on its website for

regularly scheduled elections, but not for the special

election. As the date of the special election had not

been announced, it was impossible for Hall to include

it on his signature petition.

On June 11, 2013, Alabama’s Director of

Elections reviewed Hall’s draft petition and changed

its header to indicate that it was a petition to place

Hall on the ballot “in the Special General Election to

be held on a date yet to be determined . . . .” Packard

Aff. (doc. no. 23-1) at 3-4. The revised signature

petition was sent to Hall, and he acknowledged its

receipt the same day. This revised header appeared

on the completed signature petition he eventually

submitted.

50a

On July 26, 2013, the dates for the special

primary election and special general election were set

by court order in United States v. Alabama, No. 2:12cv-179-MHT (M.D. Ala.), a case seeking to compel

Alabama to comply with the Uniformed and Overseas

Citizens Absentee Voting Act (UOCAVA), 42 U.S.C. §

1973ff. UOCAVA provides that, no later than 45 days

before a federal election, States must send ballots to

military and overseas voters who have requested

them. See 42 U.S.C. § 1973ff-1(a)(8)(A). The court

order set the special primary election for September

24, 2013, and the special general election for

December 17, 2013, because those dates would allow

enough time to mail UOCAVA-compliant ballots for

both elections.

The Secretary of State’s office publicly announced

the date of the special primary election and special

general election three days later, on July 29, 2013.

Hall did not learn of the date of the special primary

election -- and, hence, the date his signature petition

was due -- until that announcement was made.

The parties agree that meeting the 3 % signature

requirement for Alabama’s First Congressional

District required at that time 5,938 valid signatures.

They dispute, however, how much time Hall had to

collect those signatures. Hall contends that

independent candidates had 56 days to obtain the

necessary signatures; he arrives at this number by

calculating the time between the July 29

announcement of election dates and the September

24 petition deadline and excluding both the start and

51a

end dates.2 Hall uses July 29 as the start date

because that is the earliest date an independent

candidate could have begun gathering signatures

using a signature petition that included the date of

the election in its header. The Secretary argues,

however, that Hall had 106 days to collect signatures,

beginning on the day of the June 11 e-mail

correspondence between Hall and the Secretary of

State’s office and ending on the September 24

petition deadline.

On or around June 11, 2013, Hall began

gathering signatures and worked “tirelessly

throughout the months of June and July” to collect

signatures for his ballot petition. Hall Decl. (doc. no.

25-1) at 2. He attempted to gather signatures at

places of business and at public events such as

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

events, a gun show, and others.” Id. He also used

social and work contacts as well as friends to obtain

signatures. He and his wife went to approximately

5,000 homes in an effort to obtain signatures. He was

able to obtain roughly one signature for every 12

houses visited.

Eventually, Hall placed an advertisement to hire

someone to gather signatures on his behalf, but he

received only one response. Employing that signature

collector would have cost him approximately $ 4.00

per signature, which he could not afford to pay. Hall

Hall presumably excludes the start and end dates in order

to reflect his belief that a candidate cannot reasonably be

expected to gather signatures on either the day the election date

is announced or the day on which the signatures are due by 5:00

p.m.

2

52a

attests that his efforts to collect signatures were

impaired by his inability, given the short lead time,

to organize an effective signature drive. According to

Hall, his efforts to obtain signatures were also

impaired during the period preceding the July 29

announcement of the special election date because

voters were unaware of the election and had no

interest in it.

Hall timely filed a signature petition containing

2,835 signatures with the Secretary’s office on

September 24, 2013. Since this number was well

short of the 5,938 signatures required, the

Secretary’s office informed him that it would not

attempt to verify the signatures and that the number

of signatures was insufficient to provide him with

ballot access. After the September 24 deadline, Hall

continued to collect signatures and was able to obtain

an additional 451 signatures.

2.

Moser, like Hall, also wanted to run as an

independent in the December 2013 special election.

After Representative Bonner announced his

retirement, Moser met with a friend, who had been

the campaign coordinator in Alabama for Ron Paul

and had managed Paul’s signature campaign, to

discuss strategies for Moser’s signature petition.

According to Moser, this friend attempted to contact

over 100 of his former contacts from the Paul

campaign to collect signatures for Moser and to set

up a Facebook petition page. Despite those efforts,

however, Moser and his associate were able to find

only one volunteer, and he was able to obtain only

750 signatures by September 24. Moser, like Hall,

53a

was concerned about collecting signatures before a

date for the election had been announced because the

Candidate Filing Guide from the Secretary of State’s

website stated that a signature petition must include

the date of the election. Moser and his associate

feared that any signatures they might collect before

the date of the election was announced would be

rejected as invalid upon submission.

3.

Joshua Cassity, the Chairman of the Constitution

Party of Alabama, has also submitted a declaration

in this case. He states that the Constitution Party’s

candidate was able to achieve ballot access for the

2010

general

election

for

the

House

of

Representatives in the First Congressional District.

The Constitution Party knew that its signature

petition was due in June of 2010 and began planning

its signature petition in November 2009. After early

efforts provided mixed results, the Constitution Party

spent $ 12,000 to $ 15,000 to hire signature

gatherers. With the help of the paid signature

gatherers, the Constitution Party was able to meet

the 3 % requirement and obtain ballot access for its

candidate.

Cassity wanted to place a Constitution Party

candidate on the ballot for the special election to fill

Representative Bonner’s seat but decided the party

could not acquire the required signatures in the

shortened timeframe for the special election. Like

Moser, Cassity was concerned about gathering

signatures using a petition without the date of the

election on it as required by the Candidate Filing

Guide. Although an employee of the Secretary of

54a

State’s office told Cassity to begin gathering

signatures and then add the date of the election to

the petition once it was announced, Cassity did not

want to rely on an employee’s suggestion when it was

contradicted by the official materials contained on

the Secretary of State’s website. As a result, the

Constitution Party did not attempt to gather

signatures for the 2013 special election.

4.

Hall was the only independent candidate to

submit signatures to the Secretary of State for the

December 2013 special election. Because he did not

meet the 3 % requirement, no independent candidate

was on the ballot for the special election.

C. Procedural Background

On September 17, 2013, Hall and Moser filed

their complaint against the Secretary. In the

complaint, as later amended, they requested (1) a

declaratory judgment that the ballot-access scheme

for the special election was unconstitutional, (2) a

preliminary and permanent injunction prohibiting

the Secretary from enforcing the ballot-access laws

for the special election, (3) an order extending the

filing deadline and decreasing the number of

signatures required for them to be placed on the

special-election ballot, (4) a preliminary and

permanent injunction requiring the Secretary to

certify Hall as an independent candidate on the

special-election ballot, and (5) an award of attorney’s

fees and costs.

On November 2, 2013, while this litigation was

pending, UOCAVA-compliant ballots for the

55a

December special general election were mailed to

overseas voters as required by federal law; they did

not include Hall’s name as a candidate. Since the

Republican primary required a runoff on November

5, the UOCAVA-compliant ballot included the names

of all the candidates who participated in the

Republican runoff, so that overseas voters could

receive their ballots in compliance with federal law

but still vote for the winner of the Republican runoff,

should they so choose. On November 13, after the

runoff, updated ballots containing only the names of

the candidates who were to appear in the general

election were finalized; these ballots were mailed on

November 19. Overseas voters were permitted to use

the later ballots, if they received them in time, or the

earlier ballots, if they did not. Hall requested that the

court enter an injunction requiring the placement of

his name on the updated ballot.

On November 13, the same day the updated

ballots were sent to the printer, the court3 held a

hearing on Hall and Moser’s motion for a temporary

restraining order or preliminary injunction.4 The

court heard argument from the parties based on their

written submissions and made an oral ruling from

3

Until August 20, 2014, Judge Mark Fuller presided over

this case. However, this court has reviewed the transcripts of all

proceedings that took place before him.

At the hearing, the court also briefly addressed the

Secretary’s motion to dismiss and, in the alternative, for

summary judgment. The court denied that motion to the extent

it sought dismissal of Hall and Moser’s claims, instead

construing the motion as solely one for summary judgment and

taking it under advisement. That motion is now before the

court.

4

56a

the bench denying the motion. Among the reasons

the court gave was that, because the UOCAVAcompliant ballots had already been mailed to

overseas voters without Hall’s name on them,

requiring the State to issue a new ballot containing

Hall’s name would result in the special election

having to be rescheduled. The court emphasized that

rescheduling the special election would result in a

great expense to the State, risk voter confusion, and

increase the time Alabama’s First Congressional

District went without representation in Washington.

The next day, Hall and Moser filed an emergency

appeal of the court’s oral order. On December 12,

2013, the Eleventh Circuit Court of Appeals affirmed

the court’s ruling on the ground “that the injury to

the public from the issuance of an injunction would

far outweigh any injury appellants might suffer.”

Hall v. Sec’y of State, Ala., 547 F. App’x 962, 963

(11th Cir. 2013) (per curiam).

Implicit in this court’s and the appellate court’s

reasoning was the so-called Purcell principle. This

principle of election law essentially means that,

because of the risk of voter confusion, courts as a

general rule should be reluctant to allow last-minute

changes to the status quo. See Purcell v. Gonzalez,

549 U.S. 1 (2006) (per curiam). If the election

challenger seeks to maintain the status quo, the

Purcell principle could arguably weigh in favor of the

challenger. And, of course, the Purcell principle

should be considered along with all the other factors

that courts use in determining whether to grant a

temporary restraining order or a preliminary

injunction.

57a

The special general election was held on

December 17, 2013. Republican Bradley Byrne was

elected as the Representative for Alabama’s First

Congressional District. On December 26, 2013, the

Secretary filed a motion to dismiss for lack of subjectmatter jurisdiction, arguing that the case was mooted

by the completion of the special election. The court

rejected this argument, finding that the controversy

fell within the “capable of repetition, yet evading

review” exception to the mootness doctrine because

there was a “demonstrated probability that the

government will hold future special elections where

independent candidates must comply with Alabama’s

3 % signature requirement under a truncated

petition deadline,” and, therefore, that Hall and

Moser had “established a reasonable expectation that

future special elections in Alabama will burden the

same constitutional rights and interests at issue

here.” Hall v. Bennett, 999 F. Supp. 2d 1266, 1270

(M.D. Ala. 2014) (Fuller, J.). Furthermore, the court

found that Hall and Moser met the mootness

exception’s “same complaining party” requirement -assuming, without deciding, that this requirement

applied -- because there was a reasonable expectation

that Hall and Moser would run as independent

candidates or vote for independent candidates in

future special elections. Id. at 1272.

III. DISCUSSION

Hall and Moser challenge Alabama’s ballot-access

scheme in the context of a special election timeframe.

Specifically, they argue that Alabama’s 3 % signature

requirement and the shortened timeframe for

meeting it violated their First and Fourteenth

Amendment rights as candidates to associate and to

58a

participate in the political process, and as voters to

associate and to cast their votes for independent

candidates, all without serving any compelling state

interest. They also bring an as-applied challenge

under the Equal Protection Clause, arguing that the

Secretary

discriminated

against

independent

candidates such as themselves and in favor of majorparty candidates in various ways.5 These challenges

are now before the court on the parties’ cross-motions

for summary judgment.

Because the December 2013 special election has

already occurred, Hall’s and Moser’s earlier requests

to be placed on the ballot for that election have

become moot. They now request (1) a declaratory

judgment stating that the 3 % signature requirement

for independent candidates cannot constitutionally be

enforced with respect to special elections to seats in

the U.S. House of Representatives and (2) injunctive

relief prohibiting the Secretary from enforcing the

requirement with respect to a future special election

to a House seat.

The amended complaint also asserts that Alabama’s

ballot-access scheme violates Hall’s and Moser’s rights as

candidates and voters under the Fifteenth Amendment. Am.

Compl. (doc. no. 13-1) at 2-3. During the preliminary-injunction

hearing, their counsel advised the court that they would drop

the Fifteenth Amendment claim in an effort to proceed

expeditiously, but that they would pursue this claim and seek

additional discovery should Hall not be placed on the ballot

through a preliminary injunction. Schoen Decl. (doc. no. 26-3) at

8–9. However, after the court denied their request for a

preliminary injunction, they agreed to submit the case for

review without further argument or discovery on the Fifteenth

Amendment claim. Accordingly, the court finds that they have

abandoned their Fifteenth Amendment claim.

5

59a

A. Subject-Matter Jurisdiction

Before proceeding to the merits of this case, the

court will address whether it possessed, and retains,

subject-matter jurisdiction over Hall and Moser’s

claims. The Secretary identifies two facts that, he

contends, bear on the court’s jurisdiction and warrant

reconsideration of the court’s conclusion that Hall

and Moser had presented and continued to present

live controversies: (1) Moser was not registered to

vote when the complaint was filed or when the

special election was held, and (2), after the special

election, Hall ran for office as a member of the

Republican Party.

1. Moser

Moser originally brought suit as a voter and as a

prospective candidate. Compl. (doc. no. 2) at 3-4. The

Secretary argues that he lacked standing in either

capacity.

First, the Secretary argues that Moser lacked

standing to bring this suit as a voter because, at the

time the suit commenced and at the time of the

December 2013 special election, he was not registered

to vote in Alabama. According to the affidavit of

Alabama Director of Elections Edward Packard,

Moser had been registered to vote in Baldwin County

before 2009, but was purged from the voter rolls in

January 2009 because he had not voted since the

general election in 2004. Moser disputes that he has

not voted since 2004; however, he has not offered any

evidence to suggest that his name was on the voter

rolls during the relevant time period. Because Moser

has presented no evidence to rebut this contention,

60a

the court credits it.6 As Moser was not registered to

vote, it is open to question whether he had standing

to proceed as a voter. Cf. Kelly v. Harris, 331 F.3d

817, 820 (11th Cir. 2003) (concluding that the

appellant had no standing to challenge the

requirement that candidates who wished to run in

the Democratic Party primary take a loyalty oath

when, as a registered Republican, he was ineligible to

vote in that primary).

Second, although the Secretary does not dispute

that Moser did have standing to sue as a prospective

candidate at the time the original complaint was

filed, he argues that Moser abandoned that claim by

later amending his complaint to explain that, due to

the “insurmountable obstacle for his candidacy”

created by the challenged provisions, he “ha[d]

withdrawn from that effort and now [sought] to

support the candidacy of Plaintiff Hall.” Am. Compl.

(doc. no. 13-1) at 5. Additionally, the amended

complaint removed the claim for relief requesting to

have Moser certified as an independent candidate on

the Special Election ballot.7 Compare Am. Compl.

(doc. no. 13-1) at 18, with Compl. (doc. no. 2) at 9.

Additionally, the Secretary notes, Moser’s attorney

6

Moser re-registered to vote on January 15, 2014. However,

that fact does not affect his standing to proceed when the

complaint and amended complaint were filed during 2013.

Moser argues that his original complaint, in which he

brought suit as both a voter and a candidate, is the operative

pleading for purposes of assessing standing and that he had

standing at that time to bring his claim as a candidate. This is

true but quite beside the point; if he abandoned the claim he

had standing to pursue, he cannot proceed on it or on another

claim he did not have standing to pursue.

7

61a

stated at the November 13 preliminary-injunction

hearing that Moser’s only “claims are his First and

Fourteenth Amendment rights as a voter,” and his

“equal protection right . . . to vote for a candidate of

his choice,” because “he is not a candidate anymore.”

Mot. Hr’g Tr. (doc. no. 36) at 2:17-4:1. That said,

these representations may have been intended to

reflect only that Moser was not seeking a preliminary

injunction placing him on that particular special

election ballot, and not that he was no longer seeking

any prospective relief as a prospective candidate,

especially in light of Moser’s subsequent submissions

to the court indicating his future intent to run as an

independent.

Moser also responds that, even if he does not

have standing as a voter and has abandoned his

claim as a candidate, he still has standing based on

the violation of his “associational rights,” including

his right “to express his politics and to advocate for

political positions, as a citizen, through an

Independent candidate.” Pls.’ Resp. to Defs.’ Suppl.

Br. (doc. no. 65) at 5. While the court recognizes that

Moser does have an interest in expressing his views

and advocating for the candidate of his choice, Moser

has not identified -- and the court has not found -any authority for the proposition that injury to these

interests alone is sufficient to confer standing to

challenge ballot-access laws. Rather, a survey of the

relevant case law indicates that individuals who

challenge ballot-access laws can do so in one of two

ways: as candidates or as voters. See, e.g., Clingman

v. Beaver, 544 U.S. 581 (2005); Anderson v.

Celebrezze, 460 U.S. 780 (1983); Storer v. Brown, 415

U.S. 724 (1974); Am. Party of Tex. v. White, 415 U.S.

62a

767 (1974); Jenness v. Fortson, 403 U.S. 431 (1971);

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

Carr, 369 U.S. 186 (1962); Swanson v. Worley, 490

F.3d 894 (11th Cir. 2007); New Alliance Party of Ala.

v. Hand, 933 F.2d 1568 (11th Cir. 1991); Bergland v.

Harris, 767 F.2d 1551 (11th Cir. 1985).

In any event the court need not resolve the issues

that go to whether Moser has standing. Because

Moser seeks exactly the same relief as Hall does, and

because relief will be granted in Hall’s favor, Moser

would have nothing to gain from adjudication of his

claims that he has not obtained through the

vindication of one or more of Hall’s. Moser’s claims

are therefore moot and will be dismissed.

2. Hall

The court turns next to Hall. The Secretary

argues that Hall’s claims are moot because he is

currently affiliated with the Republican Party and

because he ran as a Republican in a local election

held after the special election. Hence, the Secretary

asserts, Alabama’s ballot-access laws for independent

candidates no longer apply to Hall. Although the

court has already rejected dismissal on a mootness

ground, see Hall v. Bennett, 999 F. Supp. 2d 1266

(M.D. Ala. 2014) (Fuller, J.), the Secretary continues

to press the argument in light of changed

circumstances, and so the court addresses it here.

This court previously found that Hall’s claims fall

within the narrow exception to the mootness doctrine

for cases that are “capable of repetition, yet evading

review.” See S. Pac. Terminal Co. v. ICC, 219 U.S.

498, 515 (1911). Election law cases routinely fall

within this exception. A controversy is capable of

63a

repetition, yet evading

requirements are met.

review

where

two

First, “the challenged action [must be] in its

duration too short to be fully litigated.” Weinstein v.

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

parties have never disputed that the first prong of

this test applies. See Lawrence v. Blackwell, 430 F.3d

368, 371 (6th Cir. 2005) (“Challenges to election laws

are one of the quintessential categories of cases

which usually fit this prong because litigation has

only a few months before the remedy sought is

rendered impossible by the occurrence of the relevant

election.”).

Second, and as pertinent here, a plaintiff must

show a reasonable expectation or a demonstrated

probability that the controversy will recur. See Honig

v. Doe, 484 U.S. 305, 319-23 (1988). There is

conflicting authority regarding whether a plaintiff

must also establish a reasonable expectation that the

controversy will recur as to the same plaintiff in

election-law cases. Compare Van Wie v. Pataki, 267

F.3d 109, 114 (2nd Cir. 2001), with Majors v. Abell,

317 F.3d 719, 723 (7th Cir. 2003), and Lawrence, 430

F.3d at 372. The Eleventh Circuit has recently, and

without any discussion of this conflict, stated that it

was applying the ‘same complaining party’

requirement in an election-law case, Arcia v. Florida

Secretary of State, 772 F.3d 1335, 1343 (11th Cir.

2014) (explaining that the requirement had been met

because the defendant had “not offered to refrain

from” reprising the complained-of voter-roll-purging

practice in the future, and concluding, apparently on

this basis alone, that “there is a reasonable

expectation that the plaintiffs will be subject to the

64a

same action again”). This court will follow Arcia’s

lead and require Hall to show a reasonable

expectation that he will again be subject, either as a

candidate or as a voter, to the 3 % signature

requirement for independent candidates during a

special election.

Previously, the court rejected the Secretary’s

argument that the passage of the special election

rendered the case moot, assuming without deciding

that the ‘same complaining party’ requirement

applied, and holding that Hall met it because it was

reasonable to expect that Hall would run as an

independent candidate in future special elections.

That decision was based, in part, on a declaration

submitted by Hall, wherein he stated that he

intended to seek public office in Alabama as an

independent candidate in a future special election.

Hall Decl. (doc. no. 48-1) at 1 (“I intend to continue to

seek elective office in Alabama in the future,

including, but not limited to, the office of U.S.

Representative, and I intend to seek such elective

office as an independent candidate, whether such

election is a Special Election or a regular election.”).

Hall also stated that he intends to vote for

independent candidates in future special elections.

Id. (“I also intend to cast my vote in Alabama for an

independent candidate for elective office in each

Special Election and regular election in which I am

eligible to vote.”).

Since then, however, Hall has affiliated himself

with the Republican Party and has run for office on

the Republican ticket. The Secretary presents

evidence that, according to Republican Party

guidelines, members may not simultaneously be a

65a

Republican and also a member of another party or an

independent. Therefore, the Secretary argues, Hall

can no longer establish a reasonable expectation that

he will run as an independent candidate in a future

special election and, consequently, cannot show that

he will be subject to the same challenged ballotaccess laws in the future. Hall’s decision to run as a

Republican in a local election held after the special

election at issue, though, does not significantly

undermine his declaration of intent to run in the

future as an independent. As a result, it does not

alter the court’s analysis. Hall is certainly 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. Nor is there any

reason to believe this sort of party-swapping is

unusual. Accordingly, the court finds that it is still

reasonably likely that the controversy will recur as to

Hall.

However, even if Hall were unlikely to run as an

independent in the future, this still would not defeat

the court’s subject-matter jurisdiction. In his

amended complaint, Hall brought suit not only as a

candidate but also as a voter. Republican Party

guidelines do not preclude registered Republicans

from voting for independent candidates; indeed, it

seems likely that they do so with some frequency.

Considering Hall’s declaration that he intends to vote

for independent candidates in future special

elections, the court finds it reasonably likely that his

First and Fourteenth Amendment rights as a voter in

future special elections would be burdened by the

challenged laws.

66a

Moreover, courts of appeals have found electionlaw controversies to be ‘capable of repetition’ with

respect to individual plaintiffs even without any

explicit statement by those plaintiffs (such as Hall

has made) that they intended to run or vote again.

See Lawrence, 430 F.2d at 371 (“Although Lawrence

has not specifically stated that he plans to run in a

future election, he is certainly capable of doing so,

and under the circumstances it is reasonable to

expect that he will do so. Neither is an explicit

statement from Shilo necessary in order to

reasonably expect that in a future election she will

wish to vote for an independent candidate who did

not decide to run until after the early filing deadline

passed. The law at issue is still valid and applicable

to both Lawrence and any independent candidate

Shilo might wish to vote for in future election years.

Therefore, the controversy is capable of repetition.”).

This court agrees with the Seventh Circuit that, “in

an election case[,] the court will not keep

interrogating the plaintiff to assess the likely

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

723, at least so long as the plaintiff could again

confront the challenged law in running for office or

voting for another candidate, and tells the court, in a

sworn statement, that he anticipates doing so. Hall’s

professed intention to run again as an independent

and to vote again for an independent in a special

election -- both of which he is perfectly capable of

doing -- is enough to survive a mootness challenge.

Having found that this case continues to fall

within the ‘capable of repetition, yet evading review’

exception to the mootness doctrine, the court

proceeds to the merits of Hall’s claims.

67a

B. First and Fourteenth Amendment Political

And Participation

1. Constitutional Framework

The First and Fourteenth Amendments afford all

candidates vying for elected office, and their voting

constituencies, the fundamental right to associate for

political purposes and to participate in the electoral

process. See, e.g., Clingman, 544 U.S. at 586; Burdick

v. Takushi, 504 U.S. 428, 433 (1992); Anderson, 460

U.S. at 787–88; Williams, 393 U.S. at 30. Placing

restrictions on candidates’ and political parties’

access to the ballot interferes with their right to

associate for political purposes and the rights of

qualified voters to cast their votes for the candidates

of their choice. Munro v. Socialist Workers Party, 479

U.S. 189, 193 (1986) (citing Williams, 393 U.S. at 30);

see also Norman v. Reed, 502 U.S. 279, 288 (1992);

Anderson, 460 U.S. at 786; Ill. State Bd. of Elections

v. Socialist Workers Party, 440 U.S. 173, 184 (1979).

Ballot-access requirements that

place

more

burdensome restrictions on certain types of

candidates than on others implicate rights under the

Equal Protection Clause as well. See Williams, 393

U.S. at 30–31.

States, however, have “important and compelling

interests in regulating the election process and in

having ballot access requirements.” Swanson v.

Worley, 490 F.3d 902 (11th Cir. 2007) (quoting Green

v. Mortham, 155 F.3d 1332, 1335 (11th Cir. 1998)).

Most significantly, States have an “important state

interest in requiring some preliminary showing of a

significant modicum of support before printing the

name of political organization’s candidates on the

68a

ballot.” Jenness v. Fortson, 403 U.S. 431, 442 (1971).

And, similarly, cases have “establish[ed] with

unmistakable clarity that States have an ‘undoubted

right to require candidates to make a preliminary

showing of substantial support in order to qualify for

a place on the ballot.’” Munro, 479 U.S. at 194

(quoting Anderson, 460 U.S. at 788-89, n.9). Ballotaccess laws requiring preliminary showings serve to

prevent “confusion, deception, and even frustration of

the democratic process at the general election.”

Jenness, 403 U.S. at 442.

The Supreme Court has established an analytical

framework for balancing the interests of political

parties, candidates, and voters in engaging in the

political process with the interests of States in

conducting fair and effective elections. Under this

framework, a court must first “consider the character

and magnitude of the asserted injury to the rights

protected by the First and Fourteenth Amendments

that the plaintiff seeks to vindicate.” Anderson, 460

U.S. at 789. Second, the court must “identify and

evaluate the precise interests put forward by the

State as justifications for the burden imposed by its

rule.” Id. Third, “the court must not only determine

the legitimacy and strength of each of those interests;

it also must consider the extent to which those

interests make it necessary to burden the plaintiff’s

rights.” Id.

In this analysis, “the burden is on the state to

‘put forward’ the ‘precise interests . . . [that are]

justifications for the burden imposed by its rule,’” and

to “explain the relationship between these interests”

and the challenged provision. Fulani, 973 F.2d at

1544 (quoting Anderson, 460 U.S. at 789). “The State

69a

must introduce evidence to justify both the interests

the State asserts and the burdens the State imposes

on those seeking ballot access.” Bergland, 767 F.2d at

1554.

Courts are to determine the appropriate level of

scrutiny based on the seriousness of the burden

imposed. “Regulations imposing severe burdens . . .

must be narrowly tailored and advance a compelling

state interest,” while “[l]esser burdens . . . trigger less

exacting review, and a State’s important regulatory

interests will usually be enough to justify reasonable,

nondiscriminatory restrictions.” Timmons v. Twin

Cities Area New Party, 520 U.S. 351, 358–59 (1997)

(citations and internal quotation marks omitted).8

Hall suggests that the court should not apply the

approach outlined in Timmons. He contends that, because the

ballot-access restriction at issue here imposes a greater burden

on independent candidates during a special election (and its

collapsed timeframe) than during a general election, the State

must show that the interests justifying the restriction are

commensurately greater in the context of a special, as opposed

to a regular, election. In support of this argument, Hall cites

Jones v. McGuffage, 921 F. Supp. 2d 888 (N.D. Ill. 2013) (Tharp,

J.).

8

In Jones, the plaintiffs raised a claim similar to the one

Hall advances here, challenging the application of a signature

requirement during the special election held to fill

Representative Jesse Jackson, Jr.’s congressional seat in

Illinois. For a regular election, independent candidates were

required to submit petitions with the signatures of at least 5 %

of voters within a 90-day petitioning window. Id. at 898.

However, during the special election, independent candidates

were afforded only 62 days to collect the same number of

signatures. Id. The court preliminarily enjoined the State from

enforcing the law and reduced the number of signatures

required, in order to lessen the burden, explaining that although

70a

Eleventh Circuit case law offers helpful direction

as to what sorts of ballot-access laws impose severe

burdens, and what sorts do not. A ballot-access law

imposes a severe burden if it “‘freeze[s]’ the status

quo by effectively barring all candidates other than

those of the major parties” and does not “provide a

realistic means of ballot access.” Libertarian Party of

Fla., 710 F.2d at 793 (quoting Jenness, 403 U.S. at

439). If, however, a “reasonably diligent [] candidate

[can] be expected to satisfy the signature

requirements,” then the burden is not severe, and the

the 5 % requirement was constitutional during a regular

election, “because of the increased burden [during a special

election], the state necessarily must offer some increased

justification for its decision to truncate the signature-gathering

period while leaving all other requirements in place.” Id.

Hall’s argument (and this language drawn from Jones)

would make sense only if Hall had shown that Alabama’s ballotaccess scheme for independent candidates during regular

elections represented a constitutional boundary-line, such that

any greater burden or any lesser justification would tip the law

into unconstitutional territory. He has not shown, and no court

has held, as much. It is true that a particularly burdensome

requirement must be met by a particularly significant

justification. It is nonsensical, though, to contend that each and

every time a State prevails in defending a ballot-access law by

offering up a strong justification for the restriction, the

constitutional floor is ratcheted upwards. See Libertarian Party

of Fla. v. State of Fla., 710 F.2d 790,793 (11th Cir. 1983)

(recognizing that any given signature threshold is “‘necessarily

arbitrary’” and “impossible to defend . . . as either compelled or

least drastic” (citation omitted)); see also Green v. Mortham, 155

F.3d 1332, 1339 (11th Cir. 1998) (“There is a range of fees and

signature requirements that are constitutional, and the . . .

legislature is free to choose its ballot access requirements from

that constitutional spectrum.”).

71a

State’s interests will generally be a sufficient

justification. Id. (quoting Storer, 415 U.S. at 742).

2. Burden Imposed

Under this framework, the court must first assess

whether the 3 % signature requirement for

independent candidates in the context of a special

election constitutes a severe burden or whether it is a

reasonable, non-discriminatory regulation.

The parties agree that Alabama’s 3 % signature

requirement does not impose a severe burden in the

context of a regularly scheduled election. See

Swanson, 490 F.3d at 896 (recently upholding

Alabama’s ballot-access scheme in regular elections).

Because Alabama’s election scheme has not

meaningfully changed since the decision in Swanson,

the Eleventh Circuit’s application of the Supreme

Court’s balancing test to Alabama’s 3 % signature

requirement in Swanson provides a good starting

point for the court’s analysis in this case.

In Swanson, the Eleventh Circuit held that

Alabama’s 3 % signature requirement, by itself and

in combination with Alabama’s June filing deadline,

did not violate the First and Fourteenth

Amendments. Id. at 903–10. In reaching this

conclusion, it focused on Jenness v. Fortson, in which

the Supreme Court upheld Georgia’s 5 % signature

requirement for regular elections in combination with

a June filing deadline. Id. at 906. The Eleventh

Circuit reasoned that Alabama’s ballot-access scheme

was permissible because it was less restrictive than

Georgia’s. Id. For example, whereas Georgia required

prospective independent candidates to submit the

signatures of 5 % of all registered voters, Alabama

72a

required the signatures of only 3 % of actual voters.

Id. The relative timeframe for collecting signatures in

Georgia, 180 days, also was significantly shorter than

the timeframe in Alabama, which the court

characterized as being “unlimited.” Id. Finally, the

June deadline for filing signatures did not put

independent candidates at a disadvantage as

compared to major-party candidates, who faced a

primary election on that date. Id.

The appellate court placed significant weight on

the Alabama law’s inclusion of many of the same

“alleviating factors”--factors that eased the burden of

gathering signatures--as were present in a previously

upheld Florida scheme for regular elections. See

Libertarian Party of Fla., 710 F.2d at 793. The

Swanson court particularly emphasized that the

Alabama scheme, unlike the schemes in Florida and

Georgia, imposed a submission deadline but no start

date, and, therefore, no limit on the time period for

gathering signatures. This “unlimited petition

window” meant “a diligent independent or minor

party candidate could meet the filing deadline by

collecting signatures many months” in advance, thus

significantly lessening the scheme’s burden.

Swanson, 490 F.3d at 909.

Thus, the Swanson court held in the context of

regular elections that Alabama’s 3 % signature

requirement was a reasonable, non-discriminatory

regulation that fell within the “spectrum of

constitutional legislative choices” and did not impose

a “severe burden.” Id. at 907, 910.

The Secretary does acknowledge that the

truncated special-election schedule increased the

73a

burden imposed by Alabama’s 3 % signature

requirement -- as compared to the burden deemed not

“severe” in Swanson -- by reducing the time Hall

could gather signatures. However, according to the

Secretary, reducing the time Hall had to petition did

not necessarily render the burden imposed by the 3 %

signature requirement severe. Rather, the Secretary

argues that the burden imposed by the ballot-access

requirements was less severe than the burdens at

issue in Jenness and Libertarian Party of Florida

and, therefore, permissible as a matter of law.

To reach this conclusion, the Secretary urges the

court to compare the percentages of voters’

signatures required per day to satisfy the ballotaccess requirements in Jenness and Libertarian

Party of Florida to the percentage of voters’

signatures required per day to get on the ballot in

Alabama’s special election. In Jenness, the Supreme

Court upheld a regime requiring independent

candidates in regular elections to obtain signatures

from 5 % of registered voters in 180 days, 403 U.S. at

440-42, and, in Libertarian Party of Florida, the

Eleventh Circuit upheld a regime requiring

independent candidates in regular elections to obtain

signatures from 3 % of registered voters in 188 days,

710 F.2d at 790, 794. In this case, Hall was required

to obtain signatures from 3 % of qualified electors

who voted in the last gubernatorial election -- the

Secretary calculates this to amount to 1.4 % of

registered voters -- in 106 days, the amount of time

the Secretary argues Hall had to petition. The

Secretary argues that, even taking Hall’s contention

-- that he had only 56 days -- as true, the burden

imposed during the special election was still less

74a

onerous than that imposed by the ballot-access law

upheld in Jenness. Thus, according to the Secretary,

the Alabama regime does not, as a matter of law,

impose a severe burden. See Swanson, 490 F.3d at

907 (upholding a 3 % signature requirement because

a 5 % requirement, in combination with an even

earlier deadline, had been upheld in Jenness).

The Secretary’s calculation, however, ignores the

Supreme Court decision in Anderson, which requires

the court to consider cumulatively the burdens

imposed by the overall scheme, and not mechanically

to compare percentages of signatures required per

day. See Anderson, 460 U.S. at 788; see also

Clingman, 544 U.S. at 607-08 (“A panoply of

regulations, each apparently defensible when

considered alone, may nevertheless have the

combined effect of severely restricting participation

and competition.”) (O’Connor, J., concurring). The

Secretary’s approach is precisely the sort of “litmuspaper test” analysis the Supreme Court prohibits.

Anderson, 460 U.S. at 789; see also id. at 789-90

(“The results of this evaluation will not be automatic;

as we have recognized, there is no substitute for the

hard judgment that must be made.” (citation and

internal quotation marks omitted)).

Such a mechanical approach does not adequately

address the often significant differences between

elections. In other words, there are ‘elections,’ and

there are ‘elections.’ As everyone knows, there are

elections for President and Governor, where voter

interest and voting likelihood are likely highest.

There are election for other statewide federal and

state offices where voter interest and voting

likelihood may be lower but still relatively great.

75a

There are elections for non-statewide federal and

state offices and for local offices were voter interests

and voting likelihood may be, relatively speaking,

significantly lower. There are elections held on the

Tuesday after the first Monday in November, that is,

‘election day,’ when voters are most likely accustomed

to voting. And there are elections in other months

when voters are likely much less accustomed, and

thus less likely, to vote. There are also regular

elections that recur at stated intervals fixed by law,

and thus when voters are more likely accustomed to

voting, and there are special elections, for which

there are no predetermined dates. When it comes to

voter interest and voting likelihood in a special

election, therefore, it is one thing for the special

election to be piggybacked onto a regular election for

a statewide federal or state office on ‘election day’; it

is quite another thing when it is held by itself ‘off

season,’ that is, on a day other than election day. The

general circumstances in which the signature

requirement can occur are many and can vary

significantly. And it is against this backdrop that the

court now considers the specific circumstances

presented.

This court must undertake an examination of the

evidence in the record, and draw a full picture, to

determine whether a reasonably diligent candidate

could have been expected to satisfy the 3 % signature

requirement within the petitioning time allotted for

the special election here; if not, the law imposes a

severe burden. Applying the proper test, the court

finds that the challenged ballot-access laws, in the

context of the special election set here, did impose a

severe burden.

76a

First, the 3 % signature requirement imposed a

substantially heavier burden on Hall than it would

have during a regular election like the ones at issue

in Swanson and the cases it discusses. In addition to

the truncated petitioning window, the lack of

preparation time and low voter interest characteristic

of off-season special as compared to regular elections

combined to make it impossible for a reasonably

diligent candidate, such as Hall, to satisfy the 3 %

requirement.

To begin with, the evidence is clear that Hall was

a reasonably diligent candidate. Within three weeks

of Representative Bonner’s announcement of his

retirement, Hall had begun to collect petition

signatures (indeed, he contacted the Secretary of

State’s office to begin the process two weeks after the

announcement). Hall worked “tirelessly” for two

months to obtain the requisite number of signatures

by visiting numerous businesses and soliciting at

public events including “charity runs, festivals, yard

sales, concerts, sporting events, a gun show, and

others.” Hall Decl. (doc. no. 25-1) at 2. He received

assistance from social and work contacts and friends,

and he and his wife knocked on about 5,000 doors.

Although the response rate was far from

insubstantial -- he obtained one signature for every

dozen houses visited -- he would have had to knock

on over 71,000 doors to obtain the required number of

signatures from canvassing alone. Although Hall

placed an ad for a paid signature-gatherer, the only

person who responded would have charged about

$ 4.00 per signature; at this rate, it would have cost

him a prohibitive sum -- over $ 23,000 -- to get the

77a

bare minimum number of signatures. See Hall Decl.

(doc. no. 25-1) at 3.

Moreover, the amount of time Hall had to collect

signatures was dramatically reduced from the time

available in the regular-election context. Although

the parties dispute how many days Hall had to

petition in the December 2013 special election, it is

undisputed that his time was not unlimited. In

contrast, in a regularly scheduled election, there is no

required start date or limited period for collecting

signatures, and such regular elections are held at

regular intervals with the dates and deadlines

predetermined. See Swanson, 490 F.3d at 904.

Indeed, it appears that an independent candidate

wishing to run in a regular election a decade from

now can, under Alabama law, begin petitioning

today. In a special election, however, a prospective

independent candidate cannot begin collecting

signatures until a vacancy is announced. Further,

because the Secretary of State’s regulations state

that the petition used must have the date of the

special election on it, candidates seeking to comply

with the letter of the law must wait until the date for

the special election is revealed to begin petitioning.

In upholding the 3 % signature requirement in the

context of a regular election, the Swanson court

singled out the unlimited petitioning time as a

particularly important factor alleviating the burden

imposed. 490 F.3d at 910. The truncated timeframe

in this special election, whether it was 56 or 106

78a

days,

materially

Swanson.9

distinguishes

this

case

from

Second and relatedly, Hall’s ability to petition

was further burdened by the lack of preparation time

in advance of the off-season special election. The

preparation required for a successful signature drive

can be significant and take many months; candidates

must raise funds, organize their campaigns, and

recruit and train campaign staff, including volunteer

or paid signature-gatherers. Prospective independent

candidates in a regular election not only have

unlimited petitioning time -- they also have unlimited

time to prepare to petition. In a special election,

however, independent candidates, who cannot rely on

party infrastructure to support their efforts, do not

have “any period of time . . . to meaningfully prepare

for the arduous signature drive.” Winger Decl. (doc.

no. 25-4) at 4.10 This was certainly the case in the

Cassity, the Chairman of the Alabama Constitution Party,

concurred that this short period for signature-collection would

make it very difficult for an independent candidate to meet the

threshold. “Notwithstanding our great desire to run a

Constitution Party candidate in the Special Election for the seat

Mr. Bonner vacated, we ultimately concluded that the

combination of the short time frame and the number of

signatures required would make it virtually impossible for any

small party [or] independent candidate to gain access to the

ballot and certainly made it impossible for our Party and we

abandoned our efforts, based solely on this very severe burden

imposed by the signature requirement and the short time frame

(a time frame which we could not even ascertain until the very

end of July or beginning of August).” Cassity Decl. (doc. no. 253) at 4.

9

The Secretary challenges Winger’s expert testimony. The

court declines to consider Winger’s testimony to the extent he

engages in legal analysis or draws legal conclusions. However,

10

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December 2013 special election; Hall could not have

predicted Bonner’s resignation and, therefore, could

not have begun to prepare until a short time before

the special election. He and Moser specifically stated

that this hampered their efforts to collect signatures.

Third, Hall encountered difficulty obtaining

signatures because voters were less aware of or

interested in the election before the date of the

special election was announced on July 29, 2014. Hall

stated in his declaration that low voter interest was

particularly burdensome early in his signature

campaign. See Hall Suppl. Decl. (doc. no. 26-1) at 2

(“When I first started trying to obtain signatures

before the Governor announced that the Special

Election would be held and on what dates the

primaries and general Special Election would be held,

I found it especially hard to obtain signatures

because people did not seem to know about the

Special Election or have any interest in it. I had to

the court disagrees with the Secretary that the remainder of

Winger’s testimony fails to satisfy Federal Rule of Evidence 702.

Since 1960, Winger has devoted considerable time to

researching and to writing about state election laws. Winger is

the editor of Ballot Access News, in which he documents the

history and application of ballot-access laws in the United

States, and he is the author of numerous articles on the topic.

Courts around the country, including courts in this district,

have qualified Winger as an expert to testify about the effect of

ballot-access laws. See, e.g., Swanson, 490 F.3d at 898. Based on

his knowledge and experience, Winger is certainly qualified to

discuss the history of ballot-access laws in Alabama, how they

compare to ballot-access laws in other States, and how a

truncated

special-election

schedule

affects

prospective

independent candidates’ access to the ballot, both generally and

in this special election.

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explain the situation and further explain that we did

not yet know when the election I was asking to be on

[the] ballot for would be held. This led many people

just to dismiss me without any interest in signing.”);

see also Winger Suppl. Decl. (doc. no. 26-2) at 7

(“[B]efore the Special Election and its dates were

announced by the Governor, gathering ballot

signatures for an independent candidate in Mr. Hall’s

situation would be much more difficult because of the

lack of interest and focus among citizens in

general.”). As other courts have noted, voter apathy is

high months before a primary election and, especially

for independent and minor party candidates, support

may not “coalesce until comparatively late in the

cycle.” Clingman, 544 U.S. at 607 (citing Anderson,

450 U.S. at 791–92). Voter apathy may impose less of

a burden in a regular election, where independent

candidates have unlimited time to petition. However,

in an off-season special election, where prospective

candidates are under time pressure to collect

signatures, the lack of interest or awareness early in

a signature drive is especially burdensome.

Finally, the court looks to history--whether any

independent candidates have succeeded in gathering

enough signatures to appear on a special election

ballot--as an indicator of whether the 3 %

requirement “‘freeze[s]’ the status quo by effectively

barring all candidates other than those of the major

parties” when applied in a special election. See

Libertarian Party of Fla., 710 F.2d at 793 (quoting

Jenness, 403 U.S. at 439). “Past experience will be a

helpful, if not always unerring guide: it will be one

thing if independent candidates have qualified with

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regularity and quite a different matter if they have

not.” Storer, 415 U.S. at 742.

The ballot-access history here supports the

conclusion that the 3 % requirement imposes a severe

burden in the context of special elections. While an

independent or minor-party candidate has been able

to comply with the signature requirement in general

elections in the First Congressional District in the

past, no independent candidate has met Alabama’s

signature and deadline requirement in either of the

last two special congressional elections, including in

1989, when the signature requirement was only 1 %.

Indeed, since ballots were first printed by the State

in 1893, no independent candidate has ever appeared

on the ballot in any congressional special election in

the State.11 Winger Second Suppl. Decl. (doc. no. 291) at 1-3.

The Secretary has not offered any evidence to

rebut the testimony submitted by Hall demonstrating

that the burden of Alabama’s 3 % signature

requirement was severe. All the Secretary offers is

Hall also brings the court’s attention to the ballot-access

laws of Alabama’s neighboring States. According to Winger, in a

special election for Congress, Georgia and Florida require no

signatures for independent candidates, and in Mississippi and

Tennessee, only 25 signatures are required. Winger Decl. (doc.

no. 25-4) at 4. While the contrast is stark, the Eleventh Circuit

has repeatedly rejected the argument that the ballot-access

regimes of other States are relevant when inquiring into the

constitutionality of the regime at issue. See, e.g., Swanson, 490

F.3d at 910 (disregarding Winger’s testimony that Alabama has

the “second toughest ballot access restrictions” among all States

in the 2002 election, because “the legislative choices of other

states are irrelevant” (citing Libertarian Party of Fla., 710 F.2d

at 794)).

11

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the suggestion, unsupported by any evidence, that

Hall’s inability to obtain the requisite number of

signatures is also consistent with the possibility that

he lacked a “significant modicum of support.” State

Defs.’ Mot. to Dismiss or for Summ. J. (doc. no. 23) at

27 (quoting Jenness, 403 U.S. at 442).

The court does not agree. Hall’s efforts were futile

not because he was a particularly unappealing

candidate -- indeed, he was able to obtain over 2,000

signatures -- but because a truncated petitioning

window, lack of preparation time, and low voter

interest combined to create a severely burdensome

ballot-access scheme offering reasonably diligent

independent candidates no realistic means of ballot

access.

Because the “Constitution requires that access to

the electorate be real, not ‘merely theoretical,’”

requirements for ballot access “demanded [by the

State] may not be so excessive or impractical as to be

in reality a mere device to always, or almost always,

exclude parties with significant support from the

ballot.” Party of Tex. v. White, 415 U.S. 767, 783

(1974) (quoting Jenness, 403 U.S. at 439). In light of

the evidence Hall has presented -- that he was

diligent in attempting to gather signatures, but

unsuccessful in light of the dramatically shortened

timeframe, the lack of preparation time, and low

voter awareness and interest before the date of the

election was announced -- the court concludes that

Alabama’s 3 % signature requirement, in the context

of an off-season special election, imposes a severe

burden, and, indeed, does not afford independent

candidates “real” access to the ballot.

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3. The State’s Interests

Having found the burden on Hall’s constitutional

rights to be severe, the court can uphold the

regulation in the context of special elections as

presented here only if it is “narrowly tailored and

advance[s] a compelling state interest.” Timmons,

520 U.S. at 358. The Secretary advances the

following interests as justification for the 3 %

signature requirement (and accompanying deadline

for petition submission) in the context of special

elections: (1) ensuring that independent and minorparty candidates have a significant modicum of

support, (2) eliminating party splintering and

factionalism, (3) encouraging fair treatment between

independent and minor-party candidates and major

party candidates, and (4) having sufficient time to

verify signatures.

The interests put forth by the Secretary are

undoubtedly important. See Swanson, 490 F.3d at

910–912. However, the court need not decide whether

these interests are ‘compelling’ because, even if they

are, the Secretary has not shown that the 3 %

signature requirement is narrowly tailored to

advance these interests. The Secretary need not

prove that it would be impossible to serve these

interests without the 3 % signature requirement;

however, he must justify “the extent to which [these]

interests make it necessary to burden the plaintiff’s

rights.” Anderson, 460 U.S. at 789; see also Munro,

479 U.S. at 194-96.

The Secretary has failed to provide any evidence

or explanation as to why applying the 3 % signature

requirement in the context of special elections as

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presented here is necessary to achieve the interests

articulated. Although he need not prove that this is

the precise threshold below which the State’s

interests would not be served, see Libertarian Party

of Fla., 710 F.2d at 793, he has offered no evidence to

suggest that even dramatically lower thresholds

(such as the 1 % signature requirement previously in

place) would not adequately have served these

interests during a special election. Because he has

failed to meet his burden, Fulani, 973 F.2d at 1544,

the court finds that the ballot-access laws are not

narrowly tailored to advance a compelling interest.

Thus, summary judgment will be granted in favor

of Hall on his First and Fourteenth Amendment

claim.

C. Equal Protection

Hall also asserts that his constitutional right to

equal protection was violated by the Secretary’s

actions, although he gives this argument short shrift

in his briefing. In the Eleventh Circuit, “equal

protection challenges to state ballot-access laws are

considered under the Anderson test” -- that is, “a

balancing test that ranges from strict scrutiny to a

rational-basis analysis, depending” on whether or not

the burden imposed by the laws is severe. Fulani, 973

F.2d at 1543. As explained below, Hall has failed to

show the existence of a genuine dispute as to whether

his right to equal protection was violated.

It is well established that providing ballot access

to political parties through the primary-election

process and to independent candidates through

signature petitions does not violate the Equal

Protection Clause of the Fourteenth Amendment.

85a

Jenness, 403 U.S. at 440–42. Rather, such laws

provide two constitutionally permissible alternative

means of ballot access; neither method “can be

assumed to be inherently more burdensome than the

other.” Id. at 441.

Perhaps in light of this case law, Hall does not

appear to argue that the shortened timeframe

rendered the ballot-access process for independent

candidates inherently more burdensome than that

available to party candidates. Instead, he points to

discrete actions by the Secretary that he contends

discriminated in favor of political parties and against

independent candidates. Hall contends that the

Secretary

discriminated

against

independent

candidates, first, by allowing Democratic candidates

to be certified one hour past their deadline, and,

second, by creating a special “Instant Primary Ballot”

for UOCAVA voters.

Hall first notes that the Secretary allowed the

Democratic Party to certify candidates one hour after

the deadline had passed, but did not agree to reduce

the number of signatures needed for independent

candidates to qualify. The Secretary explained,

reasonably, that he made the exception for the

Democratic Party because the party head had not

been informed of the exact deadline. In any case, the

extension the Democratic Party received was de

minimis, and Hall nowhere suggests that such

marginal flexibility was denied to, or would have

benefited, any independent candidate. If he had been

a few signatures short and was denied an extra hour

to gather them, Hall’s equal protection argument

might hold more water. Here, differential treatment

(if indeed there was any) did not impose a significant

86a

burden and had a rational basis. Indeed, the record

also demonstrates that the Secretary’s office made an

accommodation for Hall as well by providing him

with a unique signature petition header, instead of

requiring him to submit petitions with the election

date on them.

The creation of the “Instant Primary Ballots”

likewise did not impermissibly discriminate in favor

of political party candidates. These absentee ballots,

sent to military and overseas voters, had to list the

names of all Republican candidates participating in

the primary runoff because federal law required the

ballots to be mailed before the winner of the runoff

was known. Although the inclusion of multiple

Republican candidates on the ballot undoubtedly

placed the eventual party nominee at a significant

disadvantage, it is true that the eventual losers of the

runoff obtained, in a technical sense, some advantage

over independent candidates in that they were

allowed to appear on the ballot despite not being

their party’s nominee and without submitting the

petition signatures required of an independent

candidate. In a practical sense, however, the eventual

losers of the runoff were not given a free pass; they

had already demonstrated a (very) significant

modicum of support by receiving a sufficient share of

the votes in the initial primary to warrant

participation in the runoff.

If mere affiliation with a major party ordinarily

earned a candidate other than that party’s nominee a

place on the UOCAVA ballot, that might raise

significant equal protection concerns. The court need

not decide whether the burden imposed on

independent candidates in such a case would be

87a

severe, however, because in the context of the

primary runoff, the actions of the Secretary were

unquestionably justified and would pass strict

scrutiny. Including Republican runoff candidates on

the instant ballot permitted the State to comply with

federal law. Had all the Republican candidates

participating in the runoff not been included, military

and overseas voters wishing to cast their votes for the

Republican candidate would have had to write in that

candidate’s name (and election administrators would

have had to count numerous write-in ballots by

hand). Indeed, it is doubtful that the federal court

then tasked with protecting the UOCAVA rights of

military and overseas votes would have accepted this

alternative.

Other than by applying the 3 % signature

requirement, there is no indication that the Secretary

acted in an unconstitutional manner towards

independent candidates in general or towards Hall in

particular. Thus, summary judgment will be granted

in favor of the Secretary on Hall’s equal protection

claim.

IV. Appropriate Relief

Hall requests a declaratory judgment that the

3%

signature

requirement

for independent

candidates cannot constitutionally be enforced with

respect to future off-season special elections to seats

in the U.S. House of Representatives. He also seeks

an injunction prohibiting the Secretary from

enforcing the 3 % requirement.

According to his filings, Hall seeks both facial

and as-applied relief. Facial relief -- that is, relief

extending to all prospective independent candidates,

88a

and not just to Hall -- is appropriate here.

Nevertheless, that facial relief is limited. The court

does not hold that the 3 % signature requirement can

never be enforced, only that it cannot be enforced in

the context of an off-season special election occurring

on a similarly limited timeframe. Given the

Secretary’s concession at oral argument that,

typically, off-season special elections will be held on

an even shorter timeline than occurred in the

December 2013 election in which Hall attempted to

stand as a candidate, this may prove to be a

distinction without a difference. See Mot. Hr’g Tr.

(doc. no. 71) at 33:18-23. However, the court

recognizes that a special election could theoretically

be held with much more lead time, and that this

might alter the court’s analysis as to the severity of

the burden imposed on independent candidates

seeking access to the ballot. (Nevertheless, it is

evident that this is a problem that should be

addressed legislatively, either to accommodate the

specific but typical off-season special election

presented here or, more generally, all reasonably

conceivable types of special elections, including the

one here.)

In the court’s view, declaratory relief is sufficient,

in light of the court’s confidence that the Secretary

will act accordingly.

An appropriate judgment will be entered.

DONE, this 30th day of September, 2016.

/s/ Myron H. Thompson

UNITED STATES DISTRICT JUDGE

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APPENDIX C

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF ALABAMA,

NORTHERN DIVISION

JAMES HALL, et al.,

Plaintiffs,

v.

JIM BENNETT, Alabama

Secretary of State, in his

official capacity,

Defendant.

)

)

)

)

)

)

)

)

)

)

CASE NO.:

2:13-cv-663

(WO – Publish)

MEMORANDUM OPINION AND ORDER

Now before the Court is Defendant Secretary Jim

Bennett’s (“Bennett”) Motion to Dismiss for Lack of

Subject Matter Jurisdiction (Doc. #41) filed on

December 26, 2013. Bennett contends that the claims

in this matter are moot because the subject election

has concluded, and, therefore, the Court no longer

has subject matter jurisdiction to hear the case. The

Court disagrees and, for the reasons set forth below,

finds that Bennett’s motion is due to be DENIED.

This is a ballot access case filed by two

prospective independent candidates, James Hall and

N. C. “Clint” Moser, Jr. (collectively, “Plaintiffs”), who

were unable to meet state signature requirements

and, as a result, were precluded from running in the

December 2013 special election to fill a vacant United

States House of Representatives seat in Alabama’s

First Congressional District (hereinafter, the “Special

Election”). Plaintiffs bring as applied and facial

90a

challenges to the constitutionality of Alabama’s ballot

access scheme as applied to special elections, arguing

that the 3% signature requirement coupled with the

truncated time frame inherent in a special election

imposes an unconstitutionally severe burden on their

First Amendment rights to engage in political

speech.1 In their First Amended Complaint, Plaintiffs

sought a preliminary injunction requiring the State

to place Plaintiffs on the ballot in addition to

declaratory relief and a permanent injunction against

future enforcement of Alabama’s ballot access laws as

they apply to special elections. After a hearing on

November 19, 2013, the Court denied Plaintiffs

request for a preliminary injunction or temporary

restraining order. The Eleventh Circuit Court of

Appeals affirmed the Court’s ruling on December 12,

2013. (Doc. #39.) The Special Election was then held

on December 17, 2013, and Congressman Bradley

Byrne was duly elected. Bennett filed the instant

motion to dismiss on December 26, 2013, arguing

that, because the Special Election had been held,

Plaintiffs claims are moot and the Court should

dismiss the action for lack of subject matter

jurisdiction. (Doc. #41.)

It is undisputed that the case is moot as to

Plaintiffs’ claims for a preliminary injunction.

However, a case may be moot as to some issues and

not as to others. See Powell v. McCormack, 395 U.S.

486, 497 (1969). Accordingly, the issue before the

Plaintiffs also list several other side-effects of the

truncated time frame that further burden their speech,

including the lack of “ramp up” time to organize a signature

drive and the inability to campaign because they are having to

devote all resources to obtaining signatures.

1

91a

Court is whether Plaintiffs’ claims for a permanent

injunction and declaratory judgment are mooted by

the passage of the Special Election.

As the Eleventh Circuit has explained:

The doctrine of mootness derives directly

from the case-or-controversy limitation

because an action that is moot cannot be

characterized as an active case or

controversy. A case is moot when the issues

presented are no longer ‘live’ or the parties

lack a legally cognizable interest in the

outcome. As [the Eleventh Circuit] has

explained, put another way, a case is moot

when it no longer presents a live controversy

with respect to which the Court can give

meaningful relief. If events that occur

subsequent to the filing of a lawsuit or an

appeal deprive the court of the ability to give

the plaintiff or appellant meaningful relief,

then the case is moot and must be dismissed.

Indeed, dismissal is required because

mootness is jurisdictional. Any decision on

the merits of a moot case or issue would be an

impermissible advisory opinion.

Al Najjar v. Ashcroft, 273 F.3d 1330, 1336 (11th Cir.

2001) (alteration to original) (citations and internal

quotation marks omitted). The passage of an election

does not necessarily render a ballot access challenge

moot. See, e.g., Norman v. Reed, 502 U.S. 279, 287–

88 (1992); Storer v. Brown, 415 U.S. 724, 737 n.8

(1974); Moore v. Ogilvie, 394 U.S. 814, 816 (1969).

After an election is held, a controversy is not

considered moot if the issue presented is one that is

92a

capable of repetition, yet evading review. See S. Pac.

Terminal Co. v. ICC, 219 U.S. 498, 515 (1911). A

controversy is capable of repetition, yet evading

review where: “(1) the challenged action [is] in its

duration too short to be fully litigated prior to its

cessation or expiration, and (2) there [is] a reasonable

expectation that the same complaining party [will] be

subjected to the same action again.” Weinstein v.

Bradford, 423 U.S. 147 (1975) (per curiam); see also

Sierra Club v. Martin, 110 F.3d 1551, 1554 (11th Cir.

1997). The parties do not dispute whether the first

prong has been met, and the Court agrees that it has.

See, e.g., Lawrence v. Blackwell, 430 F.3d 368, 371

(6th Cir. 2005) (citing Morse v. Republican Party of

Va., 517 U.S. 186, 235 (1996); Reed, 502 U.S. at 287–

88; Speer v. City of Oregon, 847 F.2d 310, 311 (6th

Cir. 1988) (“Challenges to election laws are one of the

quintessential categories of cases which usually fit

this prong because litigation has only a few months

before the remedy sought is rendered impossible the

occurrence of a relevant election.”)). The parties

dispute only whether the second prong—whether

there is a reasonable expectation that the current

dispute will recur—is met.

To satisfy the second prong of the test, there

must only be a reasonable expectation or a

demonstrated probability of reoccurrence of the

controversy, but a party need not establish that the

recurrence was more probable than not. See Honig v.

Doe, 484 U.S. 305, 318 (1988) (“Our concern in these

cases, as in all others involving potentially moot

claims, was whether the controversy was capable of

repetition and not, as the dissent seems to insist,

whether the claimant had demonstrated that the

93a

recurrence of the dispute was more probable than

not.”). However, “[t]he remote possibility that an

event might recur is not enough to overcome

mootness, and even likely recurrence is insufficient if

there would be an ample opportunity for review at

that time.” Al Najjar, 273 F.3d at 1336. Courts

routinely find that election law disputes satisfy the

second prong of the “capable of repetition, yet

evading review” test. Indeed, the Eleventh Circuit

has stated that “it is well settled that ballot access

challenges fall under the ‘capable of repetition yet

evading review’ exception to the mootness doctrine.”

Swanson v. Worley, 490 F.3d 894, 903 (11th Cir.

2007).2 This is because even though an election has

concluded, the burden imposed by a challenged ballot

access scheme remains the same for future elections

and, therefore, continues to adversely affect the

parties’ rights and interests. See, e.g., Moore, 394

U.S. at 816 (“But while the 1968 election is over, the

burden . . . allowed to be placed on the nomination of

candidates for statewide offices remains and controls

future elections . . .”); Reed, 502 U.S. at 288 (“There

would be 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 that arose in 1990.”).

Bennett argues that the second prong has not

been met because, in contrast to regularly scheduled

It is worth noting that Swanson also involved a challenge

to the same signature requirement challenged by Plaintiffs in

this case. In Swanson, however, the challenge was brought in

the context of a regularly scheduled election, whereas the

challenge in this case is in the context of, and as applied to, a

special election.

2

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elections, there is not a reasonable expectation that

there will be future special elections with signature

requirements that impose equally severe burdens on

Plaintiffs’ First Amendment rights. Unlike regularly

scheduled elections, special elections are only held

when an elected office becomes vacant mid-term. Ala.

Code § 17-15-1. Furthermore, whereas independent

candidates have a statutorily set time-frame to meet

the 3% signature requirement in regularly scheduled

elections , in special elections, Alabama law vests

power with the Governor to set elections dates and

petition deadlines. See id. When a vacancy arises

mid-term and a special election is held, the amount of

time a prospective independent candidate has to

meet the signature requirement varies depending on

how the Governor chooses to structure the election.

Because the truncated time frame to gather

signatures is set by the Governor, and, therefore, will

likely be different for each future special election,

Bennett argues that Plaintiffs’ claims are not capable

of repetition, and any possibility that a future special

election would impose the same constitutional burden

is too remote, speculative or theoretical.

In support of his position, Bennett cites to two

cases, both of which the Court finds distinguishable

from the instant case. First, Bennett cites to Super

Tire Engineering Company v. McCorkle, 416 U.S. 115

(1974). In Super Tire, the Supreme Court held that

the termination of a strike did not moot the

employers’ challenge to a New Jersey statute that

extended public assistance benefits to striking

workers. Id. at 116. In reaching this decision, the

Supreme Court distinguished its holdings in two

prior cases, Oil Workers Union v. Missouri, 161 U.S.

95a

363 (1960), and Harris v. Battle, 348 U.S. 803 (1954),

which involved challenges to state statutes that

authorized the Governor to take immediate

possession of a public utility in the event of a strike.

The Court explained that, whereas in Super Tire the

policy of extending benefits was “fixed and definite”

and would necessarily recur in the event of a strike,

in Oil Workers and Harris, the challenged

government action depended on “the distant

contingencies of another strike and the discretionary

act of [the Governor].” Super Tire, 416 U.S. at 123.

Due to these contingencies, the Court characterized

the threat of government action in Oil Workers and

Harris as “two steps removed from reality” and “so

remote and speculative that there was no tangible

prejudice to the existing interests of the parties.” Id.

(citing Oil Workers, 361 U.S. at 371).

Bennett contends that, like Oil Workers and

Harris, the threat of future injury in this case is also

“two steps removed from reality.” According to

Bennett, in order for the harm to recur, “Plaintiffs

need both a special election (a strike) and the

Governor to exercise his discretion in a particular

manner (a seizure)” but that the likelihood of these

“distant contingencies” occurring is too remote and

speculative. (Doc. #41.) Moreover, Bennett argues

that the specific petition deadline, and, consequently,

the exact number of days given to independent

candidates to collect signatures, is left to the

Governor’s discretion and making it reasonable to

expect that same or similar time frames will be

imposed on candidates in future special elections.

96a

Bennett’s likening of Oil Workers and Harris to

this case is misplaced.3 While the potential harm in

this case is contingent on the occurrence of another

special election, and the exact time frame in which a

potential independent candidate has to comply with

the signature requirement is contingent on the

Governor’s discretion, it can hardly be said that these

contingencies are “distant.” See Super Tire, 416 U.S.

at 123. Alabama has a long history of holding special

elections to fill vacant state and federal legislative

positions, and the statute requires the Governor to

hold a special election should a vacancy arise. See

Ala. Code § 17-15-1; see also State of Alabama

Proclamation (Doc. #23-4) (“under the Constitution

and laws of the State of Alabama, it is my duty as

Governor, by proclamation, to call and set the dates

of all related special elections . . .”); Second

Declaration of Richard Winger (Doc. #19-1) (listing

Special Elections held in Alabama for Vacant United

States Congressional seats since 1893). Once the

special election is called, the Governor must set the

election schedule and petition deadlines for

independent candidates. See Ala. Code § 17-15-2.

This, by itself, distinguishes Oil Workers and Harris

from the present case because the challenged statute

here does not give the Governor discretion over

whether to call and to set deadlines in a special

election when a vacancy arises. Thus, the occurrence

of a special election under these circumstances is a

much less “distant contingency” than the seizure of

The Court also notes that Oil Workers and Harris are

further distinguishable from this case because they do not deal

with election law challenges, much less suits involving ballot

access or signature requirements.

3

97a

an industry. Moreover, these special election

petitioning deadlines will necessarily require

independent candidates to submit petitions in a time

frame that is shorter than they woul

This text is long and has been trimmed here. Open the source document for the complete record.