Hall v. Secretary

• Decision Date: 29 August 2018
• Docket Number: No. 16-16766,16-16766
• Citation: 902 F.3d 1294
• Parties: James HALL, Plaintiff-Appellee, v. SECRETARY, State of ALABAMA, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

902 F.3d 1294

James HALL, Plaintiff-Appellee,
v.
SECRETARY, State of ALABAMA, Defendant-Appellant.

No. 16-16766

United States Court of Appeals, Eleventh Circuit.

August 29, 2018

902 F.3d 1296

David I. Schoen, David I. Schoen, Attorney at Law, 2800 Zelda Rd. Ste. 100-6, Montgomery, AL 36106-2685, for Plaintiff-Appellee

Andrew Lynn Brasher, James W. Davis, Misty Shawn Fairbanks Messick, Luther J. Strange, III, Alabama Attorney General's Office, 501 Washington Ave., PO Box 300152, Montgomery, AL 36130-0152, for Defendant-Appellant

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. § 17-9-3(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

902 F.3d 1297

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 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 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, 31 S.Ct. 279, 283, 55 L.Ed. 310 (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, 96 S.Ct. 347, 349, 46 L.Ed. 2d 350 (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, 94 S.Ct. 1274, 1282 n.8, 39 L.Ed. 2d 714 (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. Election Comm’n v. Wis. Right To Life, Inc., 551 U.S. 449, 463, 127 S.Ct. 2652, 2663, 168 L.Ed. 2d 329 (2007).

902 F.3d 1298

Rather, it is sufficient that there is a reasonable expectation that "materially similar" circumstances will recur. See id. at 463–64, 127 S.Ct. at 2663 (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 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 far-fetched. 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, 102 S.Ct. 1181, 1183–84, 71 L.Ed. 2d 353 (1982) (per curiam) ("The Court has never held that a mere physical or theoretical possibility was sufficient to satisfy the [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.

902 F.3d 1299

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, 94 S.Ct. at 1282 n.8. In Storer, the...