People Not Politicians Oregon v. Beverly Clarno

• Court: Court of Appeals for the Ninth Circuit
• Decided: September 1, 2020
• Docket: 20-35630
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS SEP 1 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

PEOPLE NOT POLITICIANS OREGON; et No. 20-35630 al., D.C. No. 6:20-cv-01053-MC Plaintiffs-Appellees,

v. MEMORANDUM*

BEVERLY CLARNO, Oregon Secretary of State,

Defendant-Appellant.

Appeal from the United States District Court for the District of Oregon Michael J. McShane, District Judge, Presiding

Argued and Submitted August 13, 2020 Anchorage, Alaska

Before: RAWLINSON, MURGUIA, and R. NELSON, Circuit Judges. Dissent by Judge R. NELSON

People Not Politicians Oregon (“PNP”) seeks to place an initiative on the

November 2020 ballot that would amend the Oregon Constitution to create a

redistricting commission for the state (the “Initiative”). To place the Initiative on

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. the ballot, the Oregon Constitution requires PNP to file a petition with the Oregon

Secretary of State signed by eight percent (8%) of eligible voters in the last

gubernatorial election (the “Signature Requirement”) no less than four months

before the November election (the “Deadline Requirement”). Or. Const. art. IV, §§

1(2)(a), (e). Therefore, to place the Initiative on the November 2020 ballot, PNP

was required to submit 149,360 signatures by July 2, 2020. The Secretary of State,

Beverly Clarno, then has until September 3, 2020 to file the finalized ballot with

each county’s clerk.

On June 30, 2020, PNP sued Oregon Secretary of State Beverly Clarno,

alleging that Clarno’s strict enforcement of the Signature and Deadline

Requirements during the COVID-19 pandemic violates the rights of PNP’s members

to engage in core political speech and to associate with others for political purposes

under the First Amendment of the United States Constitution. PNP also asked the

district court to enjoin Secretary Clarno from enforcing the Signature and Deadline

Requirements by lowering the signature threshold and postponing the July 2, 2020

deadline.

On July 10 and 13, 2020, the district court issued a preliminary injunction of

the Signature and Deadline Requirements, requiring Secretary Clarno to either (1)

allow PNP’s Initiative on the ballot with the signatures gathered as of the day of the

2 injunction, or (2) reduce the signature threshold to 58,789 signatures and extend the

deadline to gather signatures until August 17, 2020.

On August 11, 2020, the Supreme Court stayed the district court’s preliminary

injunction pending disposition of this appeal “and disposition of the petition for a

writ of certiorari, if such writ is timely sought.” Clarno v. People Not Politicians,

No. 20A21, 2020 WL 4589742, at *1 (U.S. Aug. 11, 2020). The practical effect of

the stay is that even if we affirm the district court’s injunction, the Supreme Court is

not likely to lift the stay until after the September 3, 2020 deadline to place the

Initiative on the November 2020 ballot, likely rendering this action moot as to this

election cycle.

“We review questions of mootness de novo.” United States v. Hulen, 879

F.3d 1015, 1018 (9th Cir. 2018). We have jurisdiction under 28 U.S.C. § 1292(a)(1),

and we remand for further proceedings.

“Generally, a case is rendered moot when the issues presented are no longer

‘live’ or the parties lack a legally cognizable interest in the outcome.” Rubin v. City

of Santa Monica, 308 F.3d 1008, 1013 (9th Cir. 2002) (quoting Schaefer v.

Townsend, 215 F.3d 1031, 1033 (9th Cir. 2000)). However, “a court is not precluded

from exercising jurisdiction over an otherwise moot case where . . . the case is

‘capable of repetition, yet evading review.’” Id. With this in mind, the Supreme

Court has long established that courts “may exercise jurisdiction over [a challenge

3 to an electoral restriction] if ‘(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 would be subjected to the same action

again.’” Meyer v. Grant, 486 U.S. 414, 417 n.2 (1988) (quoting Murphy v.

Hunt, 455 U.S. 478, 482 (1982) (per curiam)). Accordingly, the Supreme Court and

our circuit have decided the merits of numerous challenges to electoral restrictions

after the elections took place because “[t]he short span of time between the filing

deadline and the election makes [ ] challenge[s to election restrictions under the First

Amendment] evasive of review.” Rubin, 308 F.3d at 1013 (quoting Schaefer, 215

F.3d at 1033)).1

In Meyer, for example, the Supreme Court struck down Colorado’s ban on

paid circulators after the election period at issue. 486 U.S. at 417 n.2, 428. The

Court reasoned that (1) it was unlikely that the plaintiffs could obtain a favorable

ruling within the six-month period to gather signatures to place an initiative on the

ballot in Colorado, and (2) the plaintiffs continued to advocate for the initiative’s

adoption and would attempt to obtain the necessary signatures to place the initiative

on the ballot in future elections. Id. at 417 n.2. At oral argument, PNP’s counsel

1 See, e.g., Norman v. Reed, 502 U.S. 279, 288 (1992); Anderson v. Celebrezze, 460 U.S. 780, 784 n.3 (1983); Storer v. Brown, 415 U.S. 724, 737 n.8 (1974); Ariz. Green Party v. Reagan, 838 F.3d 983, 987–88 (9th Cir. 2016); Rubin, 308 F.3d at 1012; Schaefer, 215 F.3d at 1033.

4 confirmed that, like the plaintiffs in Meyer, PNP will attempt to gather the necessary

signatures to place the Initiative on the November 2022 ballot if the Supreme Court

does not lift its stay in time to place it on the November 2020 ballot. Therefore, we

must evaluate whether “it is reasonable to expect that the same controversy will recur

between [PNP and Secretary Clarno], yet evade meaningful judicial review” if the

pandemic continues unabated leading up to the next election cycle. Meyer, 486 U.S.

at 417 n.2.

However, this mootness issue only arose on appeal as a result of the Supreme

Court’s recent stay of the district court’s injunction, and the parties did not have an

opportunity to brief or develop the record below on whether it is reasonable to expect

that the same controversy will recur leading up to the November 2022 election.

Because the district court is better positioned to evaluate factual nuances and

disputes, we remand to allow the parties to develop the record and brief the district

court on whether this controversy is “capable of repetition, yet evading review,” and

so the district court can decide this issue in the first instance.

REMANDED with instructions.2 Each party shall bear its own costs.

2 Our colleague dissents and invites us to “revisit [our] jurisprudence regarding ballot initiatives.” We do not find it necessary to reach the merits, however, because we are remanding this action for the district court to determine whether the controversy between the parties is capable of repetition yet evading review.

5 FILED SEP 1 2020 People Not Politicians Oregon v. Clarno, No. 20-35630 R. NELSON, Circuit Judge, dissenting: MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

I respectfully dissent from our decision to remand this case with any

suggestion it is not or will not become moot. Given the Supreme Court’s recent

stay of the district court’s order, Clarno v. People Not Politicians Or., No. 20A21

(U.S. Aug. 11, 2020) (order granting application for stay), the preliminary

injunction is either moot or will become moot by September 3, 2020. Since our

courts cannot provide any meaningful relief as to the preliminary injunction before

that date, I would vacate the district court’s order and remand with instructions to

dismiss this appeal as prudentially moot. See Deutsche Bank Nat’l Tr. Co. v.

FDIC, 744 F.3d 1124, 1135 (9th Cir. 2014). Otherwise, I would vacate and

remand with instructions to dismiss as moot under Article III on September 3.

Any suggestion the preliminary injunction may not be moot is meritless.

This appeal presents no “exceptional situation[]” justifying an exception to

mootness. See Protectmarriage.com-Yes on 8 v. Bowen, 752 F.3d 827, 836–37

(9th Cir. 2014) (citation omitted); City of Los Angeles v. Lyons, 461 U.S. 95, 109

(1983). Though the unique confluence of factors giving rise to this as-applied

challenge may occur again, even a possibility is not enough to constitute a

“reasonable expectation” or “demonstrated probability” that “the same controversy

will recur involving the same complaining party.” See FEC v. Wis. Right to Life,

Inc., 551 U.S. 449, 463 (2007) (internal citations omitted). It may be possible for 1 the district court to address Appellees’ legal contentions in the claim for

declaratory relief pending before that court, but as the to claim for preliminary

injunction on appeal before us, there is no exception to mootness. Indeed, it is

unprecedented to allow a preliminary injunction to survive mootness when the

sought-for equitable relief is no longer available. The district court has no choice

but to dismiss this preliminary injunction claim as moot after September 3.

Finally, I write separately to highlight our circuit’s decision in Angle v.

Miller, 673 F.3d 1122 (9th Cir. 2012), and its potential incongruity with

established First Amendment principles as recently signaled by four justices of the

Supreme Court. See Little v. Reclaim Idaho, No. 20A18, 591 U.S. ___ (Jul. 30,

2020) (Roberts, C.J., concurring). Though we do not reach the merits of this issue

here, I recommend reviewing Angle en banc in a future case.

I

In this litigation, Appellees People Not Politicians Oregon, Common Cause,

League of Women Voters of Oregon, NAACP of Eugene/Springfield, Independent

Party of Oregon, and C. Normal Turrill (collectively, “PNP”), challenged Oregon’s

signature and submission deadline requirements for ballot initiatives. The Oregon

Constitution requires that ballot initiative proponents garner eight percent of the

total votes cast in the last gubernatorial election, Or. Const. art. IV § 1(2)(c), and

submit those signatures no less than four months before an election, id. §1(2)(e).

2 For the 2020 election cycle, initiative proponents would need to submit 149,360

verified signatures by July 2, 2020, to qualify for the November 2020 ballot.

Notably, Oregon law allows petition signatures to be gathered in-person or

electronically. See Or. Rev. Stat. § 250.052(6).

Though PNP could have started as early as July 2018, it did not begin the

statutory approval process until late November 2019. After a third-party challenge

to its ballot title, see id. § 250.085, PNP was approved to begin circulating its

petition on April 9, 2020. Around that time, the COVID-19 pandemic had already

caused the Oregon Governor to issue executive orders mandating social distancing.

See Or. Exec. Order No. 20-12 (Mar. 23, 2020),

https://www.oregon.gov/gov/Documents/executive_orders/eo_20-12.pdf; Or. Exec.

Order No. 20-30 (June 30, 2020),

https://www.oregon.gov/gov/Documents/executive_orders/eo_20-30.pdf. The

governor did not issue a stay-at-home order. See id.

In May, a month after being approved for circulation, PNP began collecting

signatures electronically through its online portal and mailed 500,000 petitions to

voters directly. By the July 2 deadline, PNP had collected 64,172 signatures, or 43

per cent of the required total.

Two days before the July deadline, PNP sought declaratory and injunctive

relief, claiming that the enforcement of the signature and deadline requirements as

3 applied violated the First Amendment. The district court granted the injunction,

ordering the state to either (1) put PNP’s initiative on the ballot or (2) extend the

submission deadline to August 17 (six weeks after the constitutional deadline) and

lower the signature threshold to 58,789 (39 per cent of the required total). Oregon

chose the second option. On August 11, two days before oral argument, the

Supreme Court stayed the district court’s order pending its resolution of a petition

for writ of certiorari. Clarno, No. 20A21 (U.S. Aug. 11, 2020) (order granting

application for stay).

II

This case is currently moot or, at the very least, will become moot on

September 3. For a federal court to retain Article III jurisdiction, “an actual

controversy must be extant at all stages of review, not merely at the time the

complaint is filed.” Arizonans for Official English v. Arizona, 520 U.S. 43, 67

(1997) (internal citation omitted). “Article III’s ‘case-or-controversy’ requirement

precludes federal courts from deciding ‘questions that cannot affect the rights of

litigants in the case before them.’” Protectmarriage.com, 752 F.3d at 834 (quoting

DeFunis v. Odegaard, 416 U.S. 312, 316 (1974)).

On September 3, the Oregon Secretary of State will lose its statutory

authority to place initiatives on the ballot. See Or. Rev. Stat. § 254.085. Because

any decision relating to the preliminary injunction “cannot affect the rights of

4 litigants” after September 3, see Protectmarriage.com, 752 F.3d at 834 (internal

citation omitted), our courts will no longer have Article III jurisdiction over the

case and must dismiss it as moot on that date. Nome Eskimo Cmty. v. Babbit, 67

F.3d 813, 815 (9th Cir. 1995) (underscoring once a case is moot, “the judicial

branch loses its power to render a decision on the merits of the claim”); see also

Bogaert v. Land, 543 F.3d 862, 864 (6th Cir. 2008) (holding appeal of a

preliminary injunction that required placement of an issue on the ballot was moot

once ballots were sent to printer).

But given the Supreme Court’s recent stay of the preliminary injunction, we

are left in somewhat of a quandary. We are not mandated to dismiss as

constitutionally moot under Article III until the September 3 deadline. Yet the

Supreme Court’s stay almost certainly “dooms to mootness [PNP’s] First

Amendment claims[.]” See Reclaim Idaho, 591 U.S. ___, slip op. at 2 (Sotomayor,

J., dissenting); see also id., slip op. at 4 (Roberts, C.J., concurring) (noting the stay

“may preclude this particular initiative from appearing on the ballot this

November”). For a court to provide redress, this case would need to go through

the panel, en banc, certiorari, and Supreme Court merits stages all before

September 3—in two days.1 The panel’s decision to remand on the limited

1 PNP at oral argument contended that the case is not constitutionally moot until September 17. Even assuming this is the correct date (which it is not, see Or. Rev.

5 question of mootness only decreases the likelihood of that timely redress. In short,

Article III does not mandate dismissal until September 3, but delaying the

inevitable is inconsistent with judicial economy and a waste of judicial resources.

I suggest a third option: dismiss the preliminary injunction as prudentially

moot. The doctrine of mootness is comprised of both constitutional and prudential

considerations. See Honig v. Doe, 484 U.S. 305, 330–31 (1988) (Rehnquist, C.J.,

concurring) (discussing the history of the mootness doctrine grounded in prudence

rather than Article III). Indeed, the very existence of exceptions to mootness only

underscores this point. See, e.g., S. Pac. Terminal Co. v. ICC, 219 U.S. 498 (1911)

(creating the “capable of repetition, yet evading review” exception to mootness

though no such exception exists under Article III). Though this circuit has

addressed the doctrine of prudential mootness rarely, see, e.g., Hunt v. Imperial

Merch. Servs., Inc., 560 F.3d 1137 (9th Cir. 2009); Deutsche Bank Nat’l Tr. Co. v.

FDIC, 744 F.3d 1124 (9th Cir. 2014); Maldonado v. Lynch, 786 F.3d 1155 (9th

Cir. 2015), and applied it in just one case, see Deutsche Bank, 744 F.3d at 1135–

38, the principles undergirding this doctrine strongly counsel in favor of its

application in this case.

Stat. § 254.085), two additional weeks do not make it any more likely that this case will complete a full appellate lifecycle sufficient to provide a remedy. 6 In our government of separated powers, it is a constitutional maxim that a

greater power includes a lesser one. See U.S. v. Hudson, 11 U.S. (7 Cranch) 32, 33

(1812) (finding Congress’s power to create federal courts includes the lesser power

to restrict jurisdiction); Seila Law LLC v. CFPB, 140 S. Ct. 2183, 2211 (2020)

(finding the President’s executive power “generally includes the ability to

supervise and remove the agents who wield executive power in his stead.”). For

federal courts, the greater power to exercise jurisdiction includes the lesser power

to abstain from exercising that jurisdiction in limited circumstances. See generally

Rucho v. Common Cause, 139 S. Ct. 2484 (2019) (political question doctrine);

Ashwander v. TVA, 297 U.S. 288 (1936) (principle of constitutional avoidance);

R.R. Comm’n of Texas v. Pullman Co., 312 U.S. 496 (1941) (Pullman abstention);

Younger v. Harris, 401 U.S. 37 (1971) (Younger abstention); Atl. Marine Constr.

Co., Inc. v. U.S. Dist. Court for W. Dist. of Tex., 571 U.S. 49 (2013) (forum non

conveniens).

In a similar vein, we have has recognized that a court may “dismiss an

appeal not technically moot if circumstances have changed since the beginning of

litigation that forestall any occasion for meaningful relief[.]” Deutsche Bank, 744

F.3d at 1135 (internal citation omitted). Nearly every one of our sister circuits

7 have adopted this doctrine in some form,2 and the Tenth Circuit in particular found

this doctrine applicable in the election law context. See Am. Constitutional Law

Found., Inc. v. Davidson, No. 99-1142, 2000 WL 488460, at *2 (10th Cir. Apr. 26,

2000) (unpublished) (recognizing prudential mootness in the ballot initiative

context and dismissing the case as the substance of the case had already been

resolved by state courts, leaving “nothing more for the federal courts to do in this

respect”); see also Citizen Ctr. v. Gessler, 770 F.3d 900, 909 (10th Cir. 2014)

(recognizing the authority to dismiss a case as prudentially moot in the ballot

tracing context, but choosing not to as the injury could still be remedied).

That is not to say that this doctrine should be applied broadly. Indeed,

prudential mootness only applies “[w]here it is so unlikely that the court’s grant of

[a] remedy will actually relieve the injury[.]” MBIA Ins. Corp. v. FDIC, 708 F.3d

234, 245 (D.C. Cir. 2013) (alteration adopted) (emphasis added) (internal citations

omitted). We have similarly limited prudential mootness. In Hunt v. Imperial

Merchant Services, we did not dismiss a class action case as prudentially moot

2 See Allende v. Shultz, 845 F.2d 1111 (1st Cir. 1988); In re Metromedia Fiber Network, Inc., 416 F.3d 136 (2d Cir. 2005); Nordhoff Invs., Inc. v. Zenith Elecs. Corp., 258 F.3d 180 (3d Cir. 2001); In re U.S. Airways Grp., Inc., 369 F.3d 806 (4th Cir. 2004); In re Blast Energy Servs., Inc., 593 F.3d 418 (5th Cir. 2010); In re City of Detroit, 838 F.3d 792 (6th Cir. 2016); S. Utah Wilderness All. v. Smith, 110 F.3d 724 (10th Cir. 1997); Bennett v. Jefferson Cty., 899 F.3d 1240 (11th Cir. 2018); Chamber of Commerce v. U.S. Dep’t of Energy, 627 F.2d 289 (D.C. Cir. 1980). 8 because the issue was one that “often arises in district courts but typically evades

appellate review.” 560 F.3d at 1142. In other words, an exception to mootness

applied. In Maldonado, sitting en banc, we declined to dismiss an immigration

case on prudential mootness grounds because the plaintiff “will obtain meaningful

relief” if the panel ruled in his favor. 786 F.3d at 1161 n.5 (emphasis added).

Furthermore, we noted that prudential mootness is not a per se consideration, see

id., meaning the court may choose not to apply it even if it makes sense to do so.

Put together, these cases illustrate just how limited this doctrine is: only in rare

situations where no exception to mootness applies or when it is so unlikely that a

party will obtain meaningful relief can a court dismiss a case as prudentially moot.

This case falls within that limited set of circumstances. Because of the

Supreme Court’s stay, “circumstances have changed . . . that forestall any occasion

for meaningful relief[.]” See Deutsche Bank, 744 F.3d at 1135 (internal citation

omitted). It is practically impossible that this case will succeed in completing a

full litigation lifecycle before the September deadline, making it “so unlikely” that

anything our courts do will “actually relieve the injury[.]” See MBIA, 708 F.3d at

245 (internal citation omitted). Moreover, Hunt and Maldonado are inapposite:

PNP “will [not] obtain meaningful relief,” and no exception to mootness applies.

See Part III, infra. I recognize my colleagues’ hesitancy in applying this doctrine

when we have applied it so infrequently, but I would vacate the district court order

9 as prudentially moot and remand with instructions to dismiss the preliminary

injunction claim—there is simply no meaningful injunctive relief that we can

provide given the Supreme Court’s stay.

III

Even if this case is not dismissed as prudentially moot, it will become moot

under Article III on September 3. And it does not qualify as a “capable of

repetition, yet evading review” exception to mootness. “Because mootness

concerns whether we have power to hear a case, we apply the ‘capable of

repetition, yet evading review’ exception sparingly, and only in ‘exceptional

situations.’” Protectmarriage.com, 752 F.3d at 836–37. An action qualifies as an

“exceptional situation” under this exception where “(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.” Davis v. FEC, 554 U.S. 724, 735 (quoting Wis. Right to

Life, 551 U.S. at 462). Though the first prong may be met in this case, the second

is certainly not.

A

As to the first prong, “the injury suffered must be so inherently limited in

duration that the action will become moot before the completion of appellate

review.” In re Di Giorgio, 134 F.3d 971, 975 (9th Cir. 1998) (emphasis added).

10 Courts have repeatedly held that challenges to election laws, and ballot initiative

requirements specifically, are often inherently limited in duration sufficient to

satisfy the first prong. See, e.g., Meyer v. Grant, 486 U.S. 414, 417 n.2 (1988)

(recognizing the exception in the ballot initiative context); Citizens for Clean Gov’t

v. City of San Diego, 474 F.3d 647, 650 (9th Cir. 2007) (same).

There is some question, however, whether the claim in this case is so

inherently limited in duration that any similar claim would face “imminent

mootness,” making it capable of being repeatedly and “irrevocably lost” without

vindication. See Singleton v. Wulff, 428 U.S. 106, 117 (1976). Here, PNP’s injury

and First Amendment claims revolve around the inability to meet a deadline. I do

not doubt PNP’s diligence in gathering signatures, especially during this pandemic,

but I cannot ignore the fact that its inability to meet the deadline was “attributable

at least in part,” see Reclaim Idaho, 591 U.S. ___, slip op. at 4 (Roberts, C.J.,

concurring), to its own decision to wait until November 2019 to begin the process.

A political organization that began even a few months earlier may not have had the

same deadline-related claim, making it questionable whether PNP’s claim is

actually “inherently limited” by the length of Oregon’s election cycles or that a

similar claim would face “imminent mootness” as well. As we underscored in

Protectmarriage.com, “the exception was designed to apply to situations where the

type of injury involved inherently precludes judicial review, not to situations where

11 review is precluded as a practical matter.” 752 F.3d at 837 (alteration adopted)

(emphasis added) (internal citation omitted).

B

Even if PNP can satisfy this first prong, it cannot satisfy the second. It is not

enough to demonstrate that it might be subject to the same injury again. To satisfy

this prong, PNP would need to demonstrate a “reasonable expectation” or

“demonstrated probability that the same controversy will recur involving the same

complaining party.” Murphy v. Hunt, 455 U.S. 478, 482 (1982) (internal citation

omitted). It cannot meet that burden.

On remand, the panel has asked the district court to develop further

evidentiary findings as to whether PNP’s claim is moot and whether an exception

applies. But I am not sure what evidence can be developed. Given how COVID-

19 has disrupted our daily lives and the uncertainty that persists, we would all love

to know whether this pandemic will continue until July 2022. But even in its own

brief, PNP frequently pointed to “unique circumstances of the Pandemic and

related health orders” causing this controversy. See Appl. Br. 4, 17, 23. To put it

mildly, if the best and brightest scientific minds combating this pandemic cannot

predict what the future will hold, I am reticent to assume that the district court

could offer any revelation of what may be reasonably expected. PNP simply

cannot develop any evidentiary support on remand to meet the second Davis prong.

12 Nor need it do so. Any relief yet to be had is far better sought through declaratory

judgement action than through preliminary injunction.

Even if PNP could demonstrate that the pandemic may extend through the

next election cycle, that is not enough. A possibility, even a colorable one, is not

enough to rise to the level of “demonstrated probability.” See Murphy, 455 U.S. at

482. True, the exception does not “[r]equir[e] repetition of every ‘legally relevant’

characteristic of an as-applied challenge—down to the last detail” since the

circumstances must only be “materially similar.” Wis. Right to Life, 551 U.S. at

463. However, at a minimum, the “same controversy” must occur again. See

Murphy, 455 U.S. at 482; Lyons, 461 U.S. at 109 (finding a reasonable expectation

when a party “will again be subjected to the alleged illegality”). Here, PNP’s

challenge is integrally tied to its inability to meet a deadline. Thus, to demonstrate

a controversy “capable of repetition,” PNP would need to show that similar

circumstances in the 2022 election would again inhibit it from meeting the July

2022 deadline.

Theoretically, PNP could begin the process for the 2022 election today3 and

be subject to the same pandemic, executive orders, and executive enforcement.

But unless PNP could show that it would similarly be unable to meet the July 2022

signature deadline and not be granted an accommodation, the second Davis prong

3 The initiative process for the November 2022 election began on July 6, 2020. 13 will not be satisfied. Contra Wis. Right to Life, 551 U.S. at 463–64 (finding a

reasonable expectation “where WRTL [already] sought another preliminary

injunction” for the next election cycle and “there is no reason to believe that the

FEC will refrain from prosecuting violations of BCRA”) (internal quotation marks

and citation omitted)); Davis, 554 U.S. at 736 (finding a reasonable expectation

because “the FEC conceded . . . that Davis’[s] § 319(a) claim would be capable of

repetition”); Citizens for Clean Gov’t, 474 F.3d at 650 (finding a reasonable

expectation because the plaintiffs would “be subject to the same contribution

limits”). If anything, by PNP starting today and beginning 18 months earlier than

it did in the 2020 election cycle, it is significantly less probable that this

controversy will arise again. This is particularly true where PNP already found

overwhelming success collecting signatures electronically during this election

cycle amidst the pandemic.

C

Assuming the district court on remand finds that this case qualifies as an

exception, an even larger problem becomes clear: what remedy could the district

court provide in the preliminary injunction context? At least in a declaratory

judgment action, the district court (assuming an exception to mootness applies)

could analyze alleged violations of legal rights. See Declaratory Judgment Act, 28

U.S.C. § 2201(a) (giving federal courts jurisdiction to “declare the rights and other

14 legal relations of any interested party seeking such declaration, whether or not

further relief is or could be sought”). But in the preliminary injunction context, the

court could only address a “likelihood of success on the merits,” balancing that

likelihood with equities that no longer exist in the real world. See Winter v.

NRDC, 555 U.S. 7, 24 (2008) (emphasis added). There is simply no remedy that a

court can provide in the preliminary injunction context, even if an exception to

mootness applies.4

For this reason, no precedent exists recognizing an otherwise moot

preliminary injunction as “capable of repetition, yet evading review.” This makes

sense. Preliminary injunctions are by definition an exercise of a court’s equitable

power and thus are inherently limited to the equitable remedies a court can

provide. For a case to qualify as an exception to mootness, at the very least there

must be some remedy to be had; otherwise, a court would be exceeding its power

under Article III’s case-or-controversy limitation. Thus, to find a case somehow

excepted from mootness when it is inherently dependent upon equitable relief that

is no longer available is to call for nothing short of an impermissible advisory

opinion. Put simply, preliminary injunctions providing specific relief (especially

4 To the extent PNP seeks relief from impending threats they may face in future elections, that claim is not ripe. Without a “factual record of an actual or imminent application” of Oregon law that will likely prevent PNP from placing its initiative on the next election’s ballot, such allegations would present “no ripe controversy.” See Renne v. Geary, 501 U.S. 312, 321–22 (1991). 15 in the as-applied context) cannot qualify as an exception to mootness absent a

separate legal remedy to preserve the controversy. Courts have repeatedly

recognized this jurisprudential truism.

For instance, in Southern Pacific Terminal, the first case recognizing the

“capable of repetition, yet evading review” exception, the Court distinguished its

case from past cases where “the acts sought to be enjoined had been completely

executed, and there was nothing that the judgment of the court, if the suits had

been entertained, could have affected.” 219 U.S. at 514–15. Though past cases

were dismissed as moot for want of redressability, Southern Pacific Terminal

involved “rights determined by the Commission without a chance of redress.” Id.

at 515 (emphasis added). Because “[t]he judgment of the court [was] sought upon

the question of the legality of the [ICC orders],” the redressability of legal rights

preserved the justiciability of the plaintiffs’ suit. Id. (emphasis added).

This principle held true in Moore v. Ogilvie, 394 U.S. 814, 815 (1969),

where candidates challenged an Illinois law, seeking declaratory and injunctive

relief. Illinois urged dismissal on mootness grounds, arguing that “since the

November 5, 1968, election has been held, there is no possibility of granting any

relief to appellants[.]” Id. at 816. The Court rejected this argument, not because

equitable relief could extend beyond the election deadline, but because “the [legal]

burden . . . placed on the nomination of candidates for statewide

16 offices . . . remains and controls future elections[.]” Id. Again, the availability of

legal relief allowed the case to exist beyond the extinguishment of equitable

remedies.

Similarly, in Wisconsin Right to Life, the Supreme Court found the case

“capable of repetition, yet evading review” not in analyzing WRTL’s preliminary

injunction, but in “consider[ing] the merits of WRTL’s as-applied challenge in the

first instance.” 551 U.S. at 460. The Court in Davis also found an exception to

mootness when analyzing a facial challenge seeking declaratory relief even though

Davis had also sought to enjoin the Federal Election Commission during the 2006

election. 554 U.S. at 731–32, 744–45. In each case, the availably of legal, not

equitable, relief allowed the cases to extend beyond election deadlines. See Moore,

394 U.S. at 818–19 (overruling precedent); Wisc. Right To Life, 551 U.S. at 460–

61 (finding the relevant statutory provision unconstitutional); Davis, 554 U.S. at

744–45 (same); Meyer, 486 U.S. at 428 (same).

Put simply, “[i]t has long been settled that we have no authority to give

opinions upon moot questions or abstract propositions, or to declare principles or

rules of law which cannot affect the matter in issue in the case before us.”

Schneider v. Chertoff, 450 F.3d 944, 959 (9th Cir. 2006) (emphasis added)

(internal citation omitted). For injunctive relief specifically, once a court’s ability

to provide equitable relief has passed, the case cannot survive mootness without

17 contravening Article III. Because on remand the district court “cannot affect the

matter in issue in the case before [it],” id., the panel asks for nothing short of an

impermissible advisory opinion.

* * *

As the only issue raised in this appeal is a claim for injunctive relief

pertaining to the 2020 election, and as PNP cannot satisfy the second Davis prong,

this case cannot qualify as an exception to mootness. There is no conceivable

situation in which a federal court could maintain jurisdiction over this action after

September 3 without contravening Article III.

IV

One final thought. Though we do not reach the merits of this case and the

potential First Amendment implications, this court may need to revisit its

jurisprudence regarding ballot initiatives en banc in a future case. The Supreme

Court recently stayed a district court’s order restructuring signature and deadline

requirements for a ballot initiative in Idaho. See generally Reclaim Idaho, 591

U.S. ___ (per curiam). Concurring in that grant, Chief Justice Roberts along with

three other members of the Court identified a circuit split on this issue and signaled

that the Ninth Circuit was on the wrong side. Id., slip op. at 2–3 (Roberts, C.J.,

concurring). Siding with other circuits, the Chief Justice criticized our test in

Angle v. Miller for “require[ing] scrutiny of the interests of the State whenever a

18 neutral, procedural regulation inhibits a person’s ability to place an initiative on the

ballot.” Id. at 2.

I highlight the Chief Justice’s remarks to encourage future evaluation of the

legal test we adopted in Angle. First Amendment rights should be guarded

vigorously against state encroachment. There is no question that “the First

Amendment requires us to err on the side of protecting political speech rather than

suppressing it.” Wis. Right To Life, 551 U.S. at 457. But to err by infringing upon

a state’s “considerable leeway to protect the integrity and reliability of the

initiative process,” Buckley v. Am. Constitutional Law Found., Inc., 525 U.S. 182,

191 (1999), when no speech rights have been severely burdened, see Burdick v.

Takushi, 504 U.S. 428, 428 (1992), extends First Amendment protections far

beyond their constitutional reach. The First Amendment has never required strict

scrutiny in “the application of only the most typical sort of neutral regulations on

ballot access.” Reclaim Idaho, 591 U.S. ___, slip op. at 3 (Roberts, C.J.,

concurring).

The district court in this case applied Angle, finding that Oregon’s signature

and deadline requirements violate the First Amendment, even though those

requirements do not implicate any speech interests facially and do not severely

burden speech implicitly. Instead, the court’s analysis turned on how “reasonably

diligent” PNP had been throughout the process and whether the requirements

19 impeded PNP from getting its initiative on the ballot. People Not Politicians Or. v.

Clarno, 2020 WL 3960440, at *4–6 (D. Or. July 13, 2020). A district court in a

similar case recently applied Angle in the same way. See generally Reclaim Idaho

v. Little, 2020 WL 3490216 (D. Idaho June 26, 2020).

This seems to contravene core First Amendment principles. Although

“[e]lection laws will invariably impose some burden upon individual voters,” “the

mere fact that a State system creates barriers . . . does not of itself compel close

scrutiny.” Burdick, 504 U.S. at 433 (alteration adopted) (internal citation omitted).

Moreover, First Amendment protection has never turned on the diligence of the

speaker. If Angle truly does require strict scrutiny in situations where the First

Amendment is not implicated and if it allows for speech protections to turn entirely

on the reasonable diligence of the speaker, Angle must be revisited and brought

back in line with fundamental First Amendment principles.

V

For the above reasons, I respectfully dissent. As the case is now prudentially

moot, I would vacate the district court’s order and remand with instructions to

dismiss the preliminary injunction claim. Otherwise, on September 3, I would

similarly vacate and remand as no exception to mootness applies.