League of Women Voters of SC v. Marci Andino ( 2021 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 20-2167
LEAGUE OF WOMEN VOTERS OF SOUTH CAROLINA; THE FAMILY UNIT,
INC.; GEORGE HOPKINS; ALBERTUS CLEA,
Plaintiffs – Appellees,
v.
MARCI ANDINO, in her official capacity as the Executive Director of the South
Carolina State Election Commission; HOWARD M. KNAPP, in his official capacity
as Director of Voter Services of the South Carolina State Election Commission;
JOHN WELLS, in his official capacity as Chair of the South Carolina State Election
Commission; JOANNE DAY, in her official capacity as member of the South
Carolina State Election Commission; CLIFFORD J. EDLER, in his official capacity
as member of the South Carolina State Election Commission; LINDA MCCALL, in
her official capacity as member of the South Carolina State Election Commission;
SCOTT MOSELEY, in his official capacity as member of the South Carolina State
Election Commission,
Defendants – Appellants,
REPRESENTATIVE JAMES H. (JAY) LUCAS, in his capacity as Speaker of the
South Carolina House of Representatives; SENATOR HARVEY PEELER, in his
capacity as President of the South Carolina Senate,
Intervenors/Defendants – Appellants.
Appeal from the United States District Court for the District of South Carolina, at
Charleston. Richard Mark Gergel, District Judge. (2:20-cv-03537-RMG)
Argued: January 25, 2021 Decided: March 11, 2021
Before KING, FLOYD, and QUATTLEBAUM, Circuit Judges.
Dismissed and remanded with instructions by unpublished per curiam opinion.
ARGUED: William Grayson Lambert, BURR & FORMAN LLP, Columbia, South
Carolina; Kevin Hall, WOMBLE BOND DICKINSON (US) LLP, Columbia, South
Carolina, for Appellants. Julianne J. Marley, DEBEVOISE & PLIMPTON LLP, New
York, New York, for Appellees. ON BRIEF: M. Elizabeth Crum, Jane W. Trinkley,
BURR & FORMAN LLP, Columbia, South Carolina, for Election Appellants. Susan P.
McWilliams, Marc C. Moore, NEXSEN PRUET, LLC, Columbia, South Carolina, for
James H. Lucas. M. Todd Carroll, WOMBLE BOND DICKINSON (US) LLP, Columbia,
South Carolina, for Appellant Harvey Peeler. Susan K. Dunn, Shirene C. Hansotia,
AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF SOUTH CAROLINA,
Charleston, South Carolina; Ezra Rosenberg, John Powers, LAWYERS’ COMMITTEE
FOR CIVIL RIGHTS UNDER LAW, Washington, D.C.; Catherine Amirfar, Rhianna
Hoover, Anagha Sundararajan, Joshua Burger, DEBEVOISE & PLIMPTON LLP, New
York, New York, for Appellees.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Prior to the 2020 presidential election, Plaintiffs-Appellees the League of Women
Voters of South Carolina, The Family Unit, George Hopkins, and Albertus Clea
(collectively, “the League”) brought suit against South Carolina election officials to enjoin
the rejection of absentee ballots with signature-based deficiencies. The district court
entered a preliminary injunction on October 27, 2020, specifically prohibiting the use of
signature matching by county election boards without adequate notice-and-cure
procedures. Defendants-Appellants—various South Carolina State Election Commission
officials and leaders of the state legislative branch (collectively, “the Officials”) 1—
appealed that injunction to this Court. On appeal, the Officials argue that the issue of
signature matching became moot hours before the district court entered its injunction.
Because the district court has not yet had the opportunity to rule on the question of
mootness, we dismiss this appeal and remand to the district court to consider mootness in
the first instance.
1
The League initially named the following as Defendants: Marci Andino, in her
official capacity as the Executive Director of the South Carolina State Election
Commission; Howard M. Knapp, in his official capacity as Director of Voter Services of
the South Carolina State Election Commission; John Wells, in his official capacity as Chair
of the South Carolina State Election Commission; and Joanne Day, Clifford J. Edler, Linda
McCall, and Scott Moseley, in their official capacities as members of the South Carolina
State Election Commission. One week later, Speaker of the South Carolina House of
Representatives James H. Lucas and South Carolina Senate President Harvey Peeler moved
to intervene as Defendants. Because the initial and intervening Defendants filed one set of
briefs in this Court, we refer to all Defendants collectively.
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I.
A.
South Carolina law established both the South Carolina State Election Commission
(“the Commission”) and county election boards, which together manage elections in the
state. See S.C. Code Ann. § 7-3-10 (establishing the Commission); id. § 7-5-10
(establishing county boards). County boards are responsible for, among other duties,
verifying and counting absentee ballots. Id. § 7-15-420. The Commission, through its
Executive Director Marci Andino, is responsible for supervising the administration of
absentee voting by county boards. See id. § 7-3-20(c)(1). When Andino “determines that
a county board . . . has failed to comply with applicable state or federal law . . . the State
Election Commission, acting through [Andino] or other designee, must supervise . . . the
county board to the extent necessary to . . . establish a plan to correct the failure[]
and . . . implement the plan to correct the failure.” Id. § 7-3-25(A). Andino’s interpretation
of state law controls over any differing interpretation by the county boards. Id. § 7-3-
25(A)(3) (“In the event of a difference of policy or opinion between a county election
official and the State Election Commission . . . the policy or opinion of the State Election
Commission shall control.”).
Typically, only certain South Carolina voters are eligible to vote absentee. See S.C.
Code Ann. § 7-15-320. Eligible voters may request and receive from their county board
an absentee ballot accompanied by printed instructions; a “ballot herein” envelope into
which that ballot is placed; a separate, return-addressed envelope; and any other materials
required to guarantee the ballot’s validity. Id. §§ 7-15-330, 370. The return-addressed
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envelope has printed on it an oath to be signed by the voter and a space for a witness
signature. Id. § 7-15-380. State law requires county boards to reject absentee ballots that
arrive in envelopes not “properly signed [by the voter] and witnessed.” Id. § 7-15-420(B).
Under the Commission’s interpretation of state law, county boards must reject any
unsigned ballot and may not provide any opportunity for a voter to correct the deficiency.
The Commission therefore has instructed county boards that they may not allow voters to
cure absentee ballots that do not comply with the signature requirement.
The ongoing health risks posed by COVID-19 led the state to greatly expand
eligibility for absentee voting during the 2020 presidential election. See 2020 S.C. Acts
143. Anticipating a dramatic increase in the number of absentee ballots cast, the League
filed suit on October 2, 2020, alleging that absentee voters risked rejection of their ballots
for signature deficiencies in violation of procedural due process and the fundamental right
to vote. Relevant to this appeal, the League alleged that some county boards were engaged
in signature matching—a process whereby a county board compares the signature on an
absentee ballot to that voter’s signature in the voter registration database—to reject
otherwise-valid absentee ballots. 2 The League contended that this practice, which was not
provided for under South Carolina law, similarly violated voters’ procedural due process
rights and the fundamental right to vote.
2
Other allegations in the Complaint are not before this Court on appeal, and we do
not address them.
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B.
On October 9, 2020, the League moved for a preliminary injunction against the
rejection of absentee ballots with signature deficiencies absent notice and the opportunity
to cure the deficiency. 3 As part of the Officials’ response to this motion, Andino submitted
a declaration averring that she was unaware of any signature matching by county boards;
that the Commission never published any materials, provided any training, or tracked
statistics on signature matching during her tenure as Commissioner; and that she knew of
no state “statutes, regulations, rules, handbooks, memoranda, or other documents”
concerning signature matching. J.A. 272. However, Andino acknowledged that the
Charleston County Board had previously requested the Commission’s permission to
purchase signature-matching equipment.
In opposing the League’s motion, the Officials represented that the use of signature
matching to reject absentee ballots would violate state law. Following oral argument, the
district court ordered Andino to survey the county boards to determine whether any boards
were engaged in signature matching and if so, whether those boards had procedural
safeguards in place for affected voters. In response to that survey, nine county boards
responded that they were using or planning to use signature matching to reject otherwise-
valid absentee ballots; five county boards declined to respond; one county board stated that
it tried to use signature matching but could not keep pace with the number of ballots
3
Because the district court only granted the League’s request for a preliminary
injunction against the use of signature matching, we do not describe the League’s other
arguments for injunctive relief.
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received; and one county board indicated only that it would “follow SC Code of Laws
Section 7-15-420.” J.A. 281. Thirty county boards responded that they did not use
signature matching to disqualify absentee ballots. Andino then filed a declaration attaching
Directive No. 2020-001, which she had issued to all forty-six county boards. The Directive
instructed county boards to cease signature matching because the practice was not
permitted by South Carolina law.
Andino’s declaration attaching Directive No. 2020-001 was filed on October 26,
2020. The next day, the district court entered an order granting in part and denying in part
the League’s motion for a preliminary injunction. The district court held, as to signature
matching, that the League had satisfied the four-factor preliminary injunction test set forth
in Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7, 20 (2008). In so holding,
the court found that signature matching violated state law and that the Commission was
“genuinely unaware that a minority of counties were engaged in unauthorized signature
matching procedures.” J.A. 313 n.4. The court preliminarily enjoined the use of signature
matching by county boards unless they provided an adequate notice-and-cure procedure to
the court. Importantly, the court’s order did not consider what effect—if any—Directive
No. 2020-01 had on the justiciability or the merits of the League’s preliminary injunction
motion.
The Officials timely appealed the district court’s order, and the parties agreed to
stay the portion of the court’s injunction permitting county boards to submit notice-and-
cure procedures for the court’s approval. See League of Women Voters of S.C. v. Andino,
No. 20-2167, 2020 U.S. App. LEXIS 35114, at *2–4 (4th Cir. Oct. 29, 2020).
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II.
A.
In their opening brief, the Officials argued only that the district court abused its
discretion under Winter by entering the preliminary injunction. For the first time in their
reply brief, the Officials separately argued that the district court lacked jurisdiction to enter
the injunction because Directive No. 2020-001 made the issue of signature matching non-
justiciable. In particular, the Officials contend that Directive No. 2020-001 ended any
signature matching by county boards and reinforced the Commission’s longstanding
interpretation that state law forbids its use. The Officials therefore asked this Court to hold
that any challenge to the constitutionality of signature matching became moot prior to entry
of the injunction. 4 Although the Officials did not raise the issue of mootness before the
district court or in their opening brief, we have an obligation to ensure the question of
4
The Officials separately argued that the Directive deprived the League of standing
and rendered their challenge to future elections unripe. These arguments are meritless
because they rely on the voluntary issuance of Directive No. 2020-01 during the litigation,
a question best analyzed under the rubric of mootness. See, e.g., U.S. Parole Comm’n v.
Geraghty, 445 U.S. 388, 397 (1980) (describing mootness as “the doctrine of standing set
in a time frame” (quoting Henry P. Monaghan, Constitutional Adjudication: The Who and
When, 82 Yale L.J. 1363, 1384 (1973))); Deal v. Mercer Cnty. Bd. of Educ., 911 F.3d 183,
191 (4th Cir. 2018) (“The [Commission] cannot, as it evidently seeks to do here, reframe
this case as an unripe challenge to some future iteration of [the state’s election procedures]
in order to avoid the demanding requirements of demonstrating mootness.”).
The Officials also argued that there is no Article III case or controversy because the
parties agree that signature matching is prohibited by law. Even assuming the Officials
accurately depict the parties’ legal positions, their argument confuses the question of legal
consensus with the question of whether the League risks suffering a cognizable injury. See
United States v. Windsor, 570 U.S. 744, 759 (2013).
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signature matching presented a live case or controversy at the time the district court entered
the injunction. See Suarez Corp. Indus. v. McGraw, 125 F.3d 222, 227–28 (4th Cir. 1997)
(raising question of mootness sua sponte).
It is well established that an issue becomes moot when, due to a change in facts or
law, “the issues presented are no longer ‘live’ or the parties lack a legally cognizable
interest in the outcome.” Porter v. Clarke, 852 F.3d 358, 363 (4th Cir. 2017) (quoting
Powell v. McCormack, 395 U.S. 486, 496 (1969)). The Officials contend that Directive
No. 2020-01 ended any signature matching in South Carolina, so the League had no
concrete interest in a ruling on its legality at the time of the injunction. But “a defendant’s
voluntary cessation of a challenged practice does not deprive a federal court of its power
to determine the legality of the practice.” City of Mesquite v. Aladdin’s Castle, Inc., 455
U.S. 283, 289 (1982). Accordingly, the Officials must overcome the voluntary cessation
exception to the mootness doctrine.
Not all voluntary conduct triggers the voluntary cessation exception, which “seeks
to prevent ‘a manipulative litigant immunizing itself from suit indefinitely, altering its
behavior long enough to secure a dismissal and then reinstating it immediately after.’”
Porter, 852 F.3d at 364 (citing ACLU of Mass. v. U.S. Conf. of Cath. Bishops, 705 F.3d 44,
54–55 (1st Cir. 2013)). To avoid the conclusion that Directive No. 2020-01 is a mere
“litigation tactic,” see 6th Cong. Dist. Republican Comm. v. Alcorn, 913 F.3d 393, 407 (4th
Cir. 2019), the Officials “bear[] the formidable burden of showing that it is absolutely clear
[signature matching] could not reasonably be expected to recur.” See Friends of the Earth,
Inc. v. Laidlaw Env’t Servs. (TOC), Inc., 528 U.S. 167, 190 (2000). The Officials contend
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both that the Commission lacks the authority to rescind Directive No. 2020-01 in the future
because South Carolina law prohibits signature matching and that “voluntary cessation” is
not applicable because the Commission has never permitted signature matching.
Given the timing of Directive No. 2020-01, which was issued on the eve of the
preliminary injunction, we conclude the district court was not adequately given the chance
to consider the issue of mootness. Indeed, this Court does not consider “assurances” on
appeal enough to demonstrate the permanent termination of a challenged practice. Wall v.
Wade, 741 F.3d 492, 497 (4th Cir. 2014). Instead, mootness turns on a number of factual
questions, including (but not limited to) whether the Directive actually reflects a
longstanding interpretation of the Commission, whether the Commission has authority to
rescind the Directive, what degree of supervision and enforcement the Commission
exercises over the Directive, whether the Commission engaged in any such supervision in
the past, and whether any signature matching occurred at the county level in the wake of
the Directive. “Because all of the prior litigation was conducted” before the issuance of
Directive No. 2020-01, we hold the district court should consider whether the Directive
moots the League’s preliminary injunction motion in the first instance. See Grimm v.
Gloucester Cnty. Sch. Bd., 869 F.3d 286, 290 (4th Cir. 2017). 5 We accordingly dismiss
this appeal and remand to the district court to resolve the question of mootness.
5
The League has alleged that other state laws and Commission policies violate
voters’ constitutional rights. We note that even if the narrow issue of the legality of
signature matching is moot, other issues in this case may remain live. See DOJ v.
Provenzano, 469 U.S. 14, 15 (1984) (per curiam) (“The mootness of the particular issue
that was presented to us . . . does not mean that the case[ itself does] not remain alive.”).
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B.
Not only was the district court unable to consider the issue of mootness in light of
the Directive, it also was unable to consider the Directive when applying its Winter analysis
to determine whether a preliminary injunction should be issued. See Winter, 555 U.S. at
20. If the district court determines the case is not moot, the Directive seems plainly relevant
to the Winter analysis. In particular, the Directive bears on the issues of likelihood of
success on the merits and the likelihood plaintiffs will suffer irreparable harm in the
absence of an injunction. Id. Thus, on remand, if the district court determines the case is
not moot, it should re-evaluate the Winter factors with the benefit of the Directive and any
other pertinent evidence in the record.
DISMISSED AND REMANDED WITH INSTRUCTIONS
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