Dan Whitfield v. John Thurston ( 2021 )

United States Court of Appeals
For the Eighth Circuit
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No. 20-2309
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Dan Whitfield
Plaintiff - Appellant
Gary Fults
Plaintiff
v.
John Thurston, In his Official Capacity as Secretary of State for the State of
Arkansas
Defendant - Appellee
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Appeal from United States District Court
for the Eastern District of Arkansas - Central
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Submitted: March 18, 2021
Filed: July 2, 2021
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Before GRUENDER, BENTON, and GRASZ, Circuit Judges.
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GRUENDER, Circuit Judge.
Arkansas limits which candidates can appear on its general-election ballot.
Ark. Code § 7-7-101. Relevant here, to appear on the ballot, a candidate running for
the U.S. Senate as an Independent must submit a political-practices pledge, an
affidavit of eligibility, and a notice of candidacy. See id. § 7-7-103(a)(1). The
candidate also must submit a nominating petition by May 1 in the year of the general
election that is “signed by not less than three percent (3%) of the qualified electors
of the state or which contain[s] ten thousand (10,000) signatures of qualified
electors, whichever is the lesser.” Id. § 7-7-103(b)(1)(B). The candidate may
circulate this petition for signatures only in the ninety days preceding the filing
deadline. Id. § 7-7-103(b)(3)(B).
In 2020, Dan Whitfield ran for the U.S. Senate as an Independent but failed
to obtain the required signatures. He brought suit challenging as unconstitutional
the previously mentioned requirements. After holding a bench trial, the district
court1 entered a judgment upholding the challenged provisions. Whitfield appealed.
As Whitfield’s appeal was pending, the 2020 general election came and went.
Concerned that this may have mooted the appeal, we ordered the parties to submit
supplemental briefing addressing mootness. For the following reasons, we dismiss
Whitfield’s appeal as moot.
“Under Article III of the Constitution, we may adjudicate only actual, ongoing
cases or controversies. When the issues presented in a case are no longer live, the
case is moot and is therefore no longer a ‘Case’ or ‘Controversy’ for purposes
of Article III.” SD Voice v. Noem, 987 F.3d 1186, 1189 (8th Cir. 2021) (internal
quotation marks and brackets omitted). For instance, this occurs when the “requisite
personal interest” that gave the plaintiff standing to bring the suit disappears as the
case proceeds. Phelps-Roper v. City of Manchester, 697 F.3d 678, 687 (8th Cir.
2012) (en banc).
Here, Whitfield’s interest in this case was predicated on his status as an
Independent candidate; without such a candidacy, the challenged provisions do not
1
The Honorable Kristine G. Baker, United States District Judge for the Eastern
District of Arkansas.
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apply to him. But Whitfield’s 2020 Independent candidacy has ended and, despite
direct inquiries from us at oral argument, he has not indicated whether he intends to
run as an Independent again. Thus, this case is no longer “live,” and this appeal is
moot. See McCarthy v. Ozark Sch. Dist., 359 F.3d 1029, 1035 (8th Cir. 2004).
Whitfield counters that this case falls within the capable-of-repetition-yet-
evading-review exception to mootness. Under this doctrine, a case that would
otherwise be moot is not if “(1) the challenged action was 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, 149 (1975). As the party invoking the
exception, Whitfield bears the burden of demonstrating that it applies. See
Abdurrahman v. Dayton, 903 F.3d 813, 817 (8th Cir. 2018). But Whitfield has not
done so. Even assuming that the first requirement is met, Whitfield has not shown
that he is reasonably likely to be subject to the challenged statutory provisions again.
Instead, Whitfield argues that election cases are “different,” such that he does
not have to show that he will be subject to the same laws again, only that these laws
“will affect candidates and voters in similar situations in future elections.” Whitfield
is mistaken.
True, in some of our older decisions, we held that election cases fell within
the capable-of-repetition-yet-evading-review exception without applying the same-
complaining-party requirement. See Libertarian Party v. Bond, 764 F.2d 538, 539
n.1 (8th Cir. 1985); MacBride v. Exon, 558 F.2d 443, 447 (8th Cir. 1977). For
example, in McLain v. Meier, an Independent candidate (McLain) challenged certain
ballot-access provisions. 637 F.2d 1159, 1161-62 (8th Cir. 1980). Even though the
election in which McLain was a candidate had passed, we held that the case was not
moot. Id. at 1162 & n.5. We explained that “[r]egardless of McLain’s candidacy in
any future election, election law controversies tend not to become moot” because
they are “capable of repetition yet evading review.” Id. at 1162 n.5.
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But our approach changed in Arkansas AFL-CIO v. F.C.C., 11 F.3d 1430,
1435-36 (8th Cir. 1993) (en banc) (plurality opinion).2 See Van Bergen v.
Minnesota, 59 F.3d 1541, 1546-47 (8th Cir. 1995) (treating the Arkansas AFL-CIO
plurality opinion as controlling). There, we noted that the appellant had
“unquestionably satisfie[d] the first prong” but that “[t]he second prong . . . , a
reasonable expectation that the same party [would] be subject to a future action,
present[ed] a closer question.” Ark. AFL-CIO, 11 F.3d at 1435-36. Because the
appellant had alleged that it would be subject to the challenged regulations again and
was already involved in another similar dispute, we concluded that the second prong
was met. Id. at 1436. Since Arkansas AFL-CIO, we have repeatedly applied the
same-complaining-party requirement in election cases. See Van Bergen, 59 F.3d at
1547; Nat’l Right to Life Pol. Action Comm. v. Connor, 323 F.3d 684, 692 (8th Cir.
2003); Missourians for Fiscal Accountability v. Klahr, 830 F.3d 789, 795-96 (8th
Cir. 2016). And, as these cases confirm, we must apply this requirement here.
The Supreme Court’s precedent on this issue confirms our approach. Like us,
in older cases, the Court applied the capable-of-repetition-yet-evading-review
exception in election cases apparently without insisting on the same-complaining-
party requirement. See Storer v. Brown, 415 U.S. 724, 737 n.8 (1974); Dunn v.
Blumstein, 405 U.S. 330, 333 n.2 (1972). But, in its more recent decisions, the Court
has changed tack. For example, in F.E.C. v. Wisconsin Right to Life, Inc., the Court
held in an election case that “[t]he second prong of the capable of repetition
exception requires a reasonable expectation or a demonstrated probability that the
same controversy will recur involving the same complaining party.” 551 U.S. 449,
463 (2007). There, because the party invoking the exception had “credibly claimed
that it planned on” engaging in the same conduct again and had already sought a
preliminary injunction based on that future conduct, there was “a reasonable
expectation that the same controversy involving the same party [would] recur.” Id.2
The concurrence in the judgment and the dissent in Arkansas AFL-CIO
disagreed with the plurality on other grounds not relevant here. See Ark. AFL-CIO,
11 F.3d at 1142-43 (Arnold, C.J., concurring in the judgment); id. at 1443-45(Gibson, J., dissenting).
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at 463-64. A year later, the Supreme Court again applied the same-complaining-
party requirement in an election case, concluding that it was met because the plaintiff
had “made a public statement expressing his intent to” engage in the conduct that
would place him in conflict with the challenged regulations again. Davis v. F.E.C.,
554 U.S. 724, 736 (2008). Thus, the Supreme Court’s more recent caselaw dictates
applying the same-complaining-party requirement in election cases. See Stop
Reckless Econ. Instability Caused by Democrats v. F.E.C., 814 F.3d 221, 229-31
(4th Cir. 2016) (acknowledging the Court’s earlier jurisprudence but reaching the
same conclusion we do here).
In sum, both the Supreme Court’s and our precedent require Whitfield to
demonstrate a reasonable expectation that he will be subject to the challenged laws
again. He has not. Thus, the capable-of-repetition-yet-evading-review exception
does not apply, and we dismiss this appeal as moot.
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