Summary
In Democratic Exec. Comm. of Fla. v. Nat'l Republican Senatorial Comm., the Eleventh Circuit declined to vacate a stay-panel opinion because "the necessarily tentative and preliminary nature of a stay-panel opinion precludes the opinion from having an effect outside that case."
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No. 18-14758
02-19-2020
DEMOCRATIC EXECUTIVE COMMITTEE OF FLORIDA, Bill Nelson for U.S. Senate, Plaintiffs-Appellees, v. NATIONAL REPUBLICAN SENATORIAL COMMITTEE, Intervenor Defendant-Appellant.
Jennifer S. Blohm, Ronald G. Meyer, Meyer Brooks Blohm & Hearn, PA, Tallahassee, FL, Marc Erik Elias, Elisabeth Frost, Uzoma Nkwonta, Daniel C. Osher, Washington, DC, Sarah Langberg Schirack, Anchorage, AK, Perkins Coie, LLP, for Plaintiffs-Appellees. Thomas Henderson Dupree, Jr., Helgi C. Walker, Gibson Dunn & Crutcher, LLP, Washington, DC, Andre V. Bardos, George T. Levesque, GrayRobinson, PA, Tallahassee, FL, Jason Brett Torchinsky, Holtzman Vogel Josefiak Torchinsky, PLLC, Warrenton, VA, for Defendant-Appellant. Elizabeth Baker Murrill, Attorney General's Office, Department of Justice, Baton Rouge, LA, for Amici Curiae State of Louisiana, State of Texas, State of Alabama, State of Georgia.
Jennifer S. Blohm, Ronald G. Meyer, Meyer Brooks Blohm & Hearn, PA, Tallahassee, FL, Marc Erik Elias, Elisabeth Frost, Uzoma Nkwonta, Daniel C. Osher, Washington, DC, Sarah Langberg Schirack, Anchorage, AK, Perkins Coie, LLP, for Plaintiffs-Appellees.
Thomas Henderson Dupree, Jr., Helgi C. Walker, Gibson Dunn & Crutcher, LLP, Washington, DC, Andre V. Bardos, George T. Levesque, GrayRobinson, PA, Tallahassee, FL, Jason Brett Torchinsky, Holtzman Vogel Josefiak Torchinsky, PLLC, Warrenton, VA, for Defendant-Appellant.
Elizabeth Baker Murrill, Attorney General's Office, Department of Justice, Baton Rouge, LA, for Amici Curiae State of Louisiana, State of Texas, State of Alabama, State of Georgia.
Before JORDAN, NEWSOM, and GRANT, Circuit Judges.
PER CURIAM: Two days after Election Day in 2018, the plaintiffs in this case challenged the signature-match provisions of Florida’s mail-in-voting and provisional voter laws. But Florida has now changed those laws—which all parties agree renders the present case moot. The remaining contested issues before us involve whether we should vacate the prior preliminary opinions in this case—and whether we even retain jurisdiction to order vacatur if the intervenor-appellant, the National Republican Senatorial Committee, no longer has standing in the case. We conclude that we retain jurisdiction to consider the proposed motions for vacatur. We decline to vacate the prior opinions in this case, however, because under our precedent those opinions will not have negative collateral effects on any party.
I.
The Florida election for United States Senate in 2018 was a close race—so close that the margin triggered a statewide recount. During that recount, the Democratic Executive Committee of Florida and a campaign organization, Bill Nelson for U.S. Senate, together filed a constitutional challenge to the signature-match requirements of Florida’s vote-by-mail statute. See Fla. Stat. § 101.62 (2016) (permitting mail-in voting); Fla. Stat. § 101.65 (2016) (requiring mail-in voters to sign a voter’s certificate on the back of the mail-in envelope); Fla. Stat. § 101.68 (2017) (authorizing voting officials to compare the signature on the envelope with a signature on file and to reject votes where the signature does not match). The vote-by-mail statute contained a cure provision giving voters who learned that their votes had been blocked for signature mismatch until "5 p.m. one day before the election" to verify their identities by "submitting a cure affidavit and an accepted form of identification." Democratic Exec. Comm. of Fla. v. Lee , 915 F.3d 1312, 1316 (11th Cir. 2019) (citing Fla. Stat. § 101.68(4) ).
The plaintiffs also challenged the application of Florida’s law allowing prospective voters who could not prove their eligibility to cast provisional ballots. See Fla. Stat. § 101.048(1) (2008). Like mail-in votes, provisional votes were subject to a signature-match provision. Id. § 101.048(2)(b). Unlike mail-in votes, however, provisional ballots rejected because of signature mismatch could not be cured after the fact.
The plaintiffs filed suit against the Florida Secretary of State, alleging that these signature schemes were unconstitutional under the Equal Protection Clause of the Fourteenth Amendment. In their view, the signatures were compared without a standard, making the decision to count the vote (or not) arbitrary. See Lee , 915 F.3d at 1316–17. The plaintiffs asked for an emergency injunction requiring officials to count "every vote-by-mail and provisional vote that had been rejected" due to signature mismatch. See id. at 1317. The National Republican Senatorial Committee sought and was granted leave to intervene on the defendants’ behalf (the Florida Attorney General also intervened). The district court entered a modified preliminary injunction allowing the "ballots of those voters who were belatedly notified of signature mismatch" to be counted, provided that "those voters timely verified their identities by following the normal cure procedures." Id. (citing Democratic Exec. Comm. of Fla. v. Detzner , 347 F. Supp. 3d 1017, 1032 (N.D. Fla. 2018) ).
Given the effect that the preliminary injunction might have on the just-held election, the NRSC sought an emergency stay of the district court’s preliminary injunction on the same day that it was entered. The defendants also entered an appeal. Later that same day a motions panel of this Court denied the emergency stay by a 2-1 vote without hearing argument. The preliminary injunction expired by its own terms two days later.
In February of 2019—nearly three months after issuing its denial of the emergency stay—the motions panel issued a lengthy published opinion explaining its denial of the emergency stay (alongside a dissenting opinion). See generally id. At that point in time, litigation was ongoing in the trial court over the signature-match provisions. We asked the parties to file briefs as to whether the underlying appeal of the preliminary injunction was now moot.
In June of 2019, though, the Governor of Florida signed into law S.B. 7066, which significantly amended the signature-match provisions at issue in this case. After the bill was enacted, the plaintiffs voluntarily dismissed their lawsuit. Florida’s Secretary of State and Attorney General then successfully moved to dismiss their appeal of the district court’s preliminary injunction order.
Among other changes, S.B. 7066 provided for formal signature-match training; it also provided that both rejected mail-in votes and provisional votes may be cured until 5 p.m. on the second day after the election.
The sole remaining appellant, the NRSC, agreed with the appellees that the case was now moot. Still, the NRSC filed motions with this Court asking us to vacate the district court’s order granting a preliminary injunction as well as our prior stay-panel opinion under the doctrine of United States v. Munsingwear, Inc. , which states that vacatur may be appropriate when the intervening mootness of a case prevents review of a decision on appeal. See 340 U.S. 36, 41, 71 S.Ct. 104, 95 L.Ed. 36 (1950) (explaining that vacatur is appropriate "to prevent a judgment, unreviewable because of mootness, from spawning any legal consequences"). We carried the motions with our consideration of whether or not the appeal was moot.
II.
A.
The plaintiffs first suggest that we are unable to grant the requested motions for vacatur because the NRSC lacks standing to bring an appeal (following the Florida defendants’ decision to withdraw their appeal). After all, they argue, to "appeal a decision that the primary party does not challenge, an intervenor must independently demonstrate standing." Virginia House of Delegates v. Bethune-Hill , ––– U.S. ––––, 139 S. Ct. 1945, 1951, 204 L.Ed.2d 305 (2019). And because a non-specific interest in defending the validity of a generally-applicable state law is not sufficient to confer standing, the plaintiffs argue that the appeal and the motions for vacatur should be dismissed for lack of standing. See Hollingsworth v. Perry , 570 U.S. 693, 706, 133 S.Ct. 2652, 186 L.Ed.2d 768 (2013). But the NRSC asserted more than a generalized interest in upholding the validity of a state law. Under well-established circuit precedent, organizations possess standing to challenge election laws if they show "that they will have to divert personnel and time to educating potential voters on compliance with the laws." Arcia v. Florida Sec’y of State , 772 F.3d 1335, 1341 (11th Cir. 2014). The same is necessarily true of orders, like the district court’s preliminary injunction in this case, that modify election laws. At the time of the district court’s entry of a preliminary injunction in this case, the NRSC’s preferred candidate was winning a statewide election. The relief instituted by the preliminary injunction permitted a batch of new votes to be added to the previous totals, potentially threatening the election of that preferred candidate. The NRSC alleges that it responded by diverting personnel and time to educating voters about the modified law (presumably to ensure that voters supporting the NRSC’s preferred candidate were as well-informed about the district court’s order as those supporting the plaintiffs’ preferred candidate). Cf. id. Far from "piggy-backing" on the state-defendants’ standing, then, the NRSC has asserted its own standing in the case.
To the extent that the plaintiffs allege that the NRSC now lacks an interest in the resolution of the underlying dispute, that question concerns the doctrine of mootness. But the NRSC agrees that the underlying dispute in this case is moot—the question is whether, given that the case is moot, the preliminary orders in this case should be vacated. Granting Munsingwear -style relief always requires appellate courts to consider whether vacatur is appropriate when the requirements of Article III are no longer met because one party is no longer able to obtain relief on the merits. As the Supreme Court has stated, "reason and authority refute" the "notion that a federal appellate court may not take any action with regard to a piece of litigation once it has been determined that the requirements of Article III no longer are (or indeed never were) met." U.S. Bancorp Mortg. Co. v. Bonner Mall P’ship , 513 U.S. 18, 21, 115 S.Ct. 386, 130 L.Ed.2d 233 (1994) ; see also 28 U.S.C. § 2106. That logic would hold appellate courts "powerless to award costs" or "even to enter an order of dismissal" in "cases that become moot while awaiting review." Bancorp , 513 U.S. at 21, 115 S.Ct. 386. We therefore conclude that we retain jurisdiction to consider the NRSC’s motions to vacate the prior opinions in this case.
B.
We now consider the NRSC’s request that we vacate our own prior opinion in this case, which denied a motion for an emergency stay of the district court’s preliminary injunction. See Lee , 915 F.3d at 1315. The NRSC requests vacatur of that opinion to ensure that it does not spawn "any legal consequences." See CAMP Legal Def. Fund, Inc. v. City of Atlanta , 451 F.3d 1257, 1277 (11th Cir. 2006) (citing Munsingwear , 340 U.S. at 41, 71 S.Ct. 104 ).
The equitable remedy of vacating prior opinions in cases that become moot is driven by the principle that a "party who seeks review of the merits of an adverse ruling, but is frustrated by the vagaries of circumstance, ought not in fairness be forced to acquiesce in the judgment." Bancorp , 513 U.S. at 25, 115 S.Ct. 386. The NRSC asks for vacatur of the stay-panel opinion in this case due to its concern that, if the opinion is not vacated, then the organization will be "forced to acquiesce" in the reasoning of that opinion. But fortunately for the NRSC, no such acquiescence will be required. Under recent precedent in this Circuit, vacatur of a prior stay-panel opinion once a case becomes moot on appeal is inappropriate—precisely because that stay-panel opinion cannot spawn binding legal consequences regarding the merits of the case. See Hand v. DeSantis , 946 F.3d 1272, 1275 n.5 (11th Cir. 2020).
In Hand , we adopted the reasoning that vacatur of a prior stay-panel opinion was not required once a case became moot because orders concerning stays are "not a final adjudication of the merits of the appeal" and accordingly have "no res judicata" effect. Id. (quoting FTC v. Food Town Stores, Inc. , 547 F.2d 247, 249 (4th Cir. 1977) ). To the extent that vacatur is requested with regards to the stay-panel opinion in this case, then, it is not required: under the rule announced in Hand , the necessarily tentative and preliminary nature of a stay-panel opinion precludes the opinion from having an effect outside that case.
Hand may set up an either/or proposition, so that in a rare case where a party could identify any ruling within a stay-panel opinion that would have precedential effect beyond the preliminary decision on the stay, then vacatur may be warranted if the case were to become moot. Cf. Munsingwear , 340 U.S. at 41, 71 S.Ct. 104. This case does not involve such a scenario, so we do not address it.
C.
The NRSC also asks that we vacate the district court’s prior order in this case implementing a preliminary injunction. We note that the rule recently announced in Hand does not apply to appeals of preliminary injunctions. Generally, when "a case becomes moot after the district court enters its judgment but before this court has issued a decision, we are divested of jurisdiction and must dismiss the appeal and vacate the underlying judgment." Brooks v. Georgia State Bd. of Elections , 59 F.3d 1114, 1122 (11th Cir. 1995) (quoting Ethredge v. Hail , 996 F.2d 1173, 1175 (11th Cir. 1993) ). "In the case of interlocutory appeals, however, ‘the usual practice is just to dismiss the appeal as moot and not vacate the order appealed from.’ " Id. (quoting In re Tax Refund Litig. , 915 F.2d 58, 59 (2d Cir. 1990) ). We have previously "dismissed moot appeals without vacating the underlying district court order in cases involving appeals from preliminary injunctions and interlocutory orders," and see no reason to divert from that practice here. See id.
* * *
The underlying dispute in this case is moot, and the preliminary opinions in the case are precluded from spawning negative collateral consequences. We therefore DENY the motion to vacate the district court’s order and opinion implementing a preliminary injunction, DENY the motion to vacate our previous opinion denying a stay, and DISMISS the appeal as moot.