The Common Sense Party v. Alex Padilla

• Court: Court of Appeals for the Ninth Circuit
• Decided: January 21, 2021
• Docket: 20-16335
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JAN 21 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

THE COMMON SENSE PARTY; et al., No. 20-16335

Plaintiffs-Appellants, D.C. No. 2:20-cv-01091-MCE-EFB

v. MEMORANDUM* ALEX PADILLA, Secretary of State of California, in his official capacity as Secretary of State of California,

Defendant-Appellee.

Appeal from the United States District Court for the Eastern District of California Morrison C. England Jr., District Judge, Presiding

Submitted January 15, 2021** San Francisco, California

Before: WALLACE and M. SMITH, Circuit Judges, and LASNIK,*** District Judge.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable Robert S. Lasnik, United States District Judge for the Western District of Washington, sitting by designation. The Common Sense Party, Tom Campbell, Debbie Benrey, and Michael

Turnipseed (collectively, the “CSP”) appeal from the district court’s order denying

CSP’s motion for a temporary restraining order or preliminary injunction enjoining

California’s Secretary of State from enforcing California Election Code § 5151(c).

Section 5151(c) states that in order to qualify to participate in a presidential general

election, a new political party must obtain voter registrations of equal to 0.33 percent

of the number of registered voters in California by the 123rd day before the election.

The CSP argues that § 5151(c), as applied in the context of the COVID-19 pandemic

and the state-ordered public health measures, violates the CSP’s speech, voting, and

associational rights under the First Amendment and the CSP’s due process rights

under the Fourteenth Amendment. We have jurisdiction under 28 U.S.C.

§ 1292(a)(1). “We review questions of mootness de novo.” United States v. Hulen,

879 F.3d 1015, 1018 (9th Cir. 2018). We dismiss the CSP’s appeal as moot.

The occurrence of an election does not necessarily moot relief sought in

related litigation. See Joyner v. Mofford, 706 F.2d 1523, 1527 (9th Cir. 1983).

However, the occurrence of an election moots relief sought with respect to that

election cycle. See Ariz. Green Party v. Reagan, 838 F.3d 983, 987 (9th Cir. 2016).

The “capable of repetition, yet evading review” exception to mootness “applies

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

2 complaining party will be subject to the same action again.” FEC v. Wis. Right to

Life, Inc., 551 U.S. 449, 462 (2007) (citation and quotation marks omitted).

“Election cases often fall within this exception, because the inherently brief duration

of an election is almost invariably too short to enable full litigation on the merits.”

Porter v. Jones, 319 F.3d 483, 490 (9th Cir. 2003). “The 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.” Wis. Right to Life, 551 U.S. at 463 (citation and quotation marks omitted).

The November 2020 presidential general election has passed. The relief that

the CSP seeks with respect to the November 2020 presidential general election is

moot. The CSP only challenges the application of § 5151(c) in the context of the

COVID-19 pandemic and the state-ordered public health measures, not the

constitutionality of the provision itself or its constitutionality as applied to the CSP

outside this context. The CSP recognizes § 5151(c) as an “otherwise acceptable”

requirement. Nothing in the record supports a reasonable expectation or

demonstrated probability that the same controversy with the CSP will recur. The

“capable of repetition, yet evading review” exception to mootness does not apply.

DISMISSED.