LIBERTARIAN PARTY OF MICHIGAN; Gary Johnson; Denee Rockman-Moon, Plaintiffs-Appellants, v. Ruth JOHNSON, Defendant-Appellee, Republican Party of Michigan, Intervenor-Appellee.
No. 12-2153
United States Court of Appeals, Sixth Circuit.
May 1, 2013
Rehearing and Rehearing En Banc Denied July 1, 2013.
929 F.3d 929
Before: KEITH, MARTIN, and ROGERS, Circuit Judges.
OPINION
ROGERS, Circuit Judge.
This case involves the Libertarian Pаrty‘s challenge to a Michigan election regulation—the “sore loser” statute—which prevents a candidate who has run in and lost a party primary frоm running as a candidate of another party in the subsequent general election. The Libertarian Party of Michigan asserts that Michigan wrongly prohibited its prеsidential candidate, Gary Johnson, from appearing on the November 2012 Michigan ballot for the Libertarian Party because he had previously run in (and lost) the Republican primary during the 2012 election cycle.
The election is of course over, but the appeal is not moot because the issuе is capable of repetition, yet evading review. Affirmance is warranted because the district court properly concluded that Michigan‘s sоre loser statute is constitutional.
Gary Johnson, a former two-term Governor of New Mexico, ran for President of the United States in the 2012 election. He initially sought the Republican Party nomination, confirming with Michigan Secretary of State Ruth Johnson on November 8, 2011 that he would be placed on the primary election ballot as a Republican candidate. However, in December 2011, he changed his mind and decided to seek the nomination of the Libertariаn Party instead. Although he had been informed of the statutory withdrawal deadline, Gary Johnson submitted his affidavit stating he was no longer a presidential candidate of the Republican Party three minutes too late. Because his withdrawal was untimely, Gary Johnson‘s name appeared on the
Johnson was subsequently nominated as the Libertarian Party‘s presidential candidаte at the national Libertarian Party Convention on May 3-6, 2012. On May 3, 2012, the Michigan Secretary of State notified Johnson that under Michigan‘s sore loser law, he could not appear on the Michigan ballot as the Libertarian Party‘s candidate since he had run, and lost, as a candidate in the Republican Party primary. Michigan‘s “sore loser” law states:
No person whose name was printed or placed on the primary ballots or voting machines as a candidate for nomination on the primary ballots of 1 political party shall be eligible as a candidate of any other political party аt the election following that primary.
The district court granted the Secretary of State‘s motion to dismiss and denied Johnson‘s motion for summary judgment, holding that the sore loser statute applied to presidential candidates like Johnson and was not a severe burden on Johnson‘s or the Libertarian Party of Michigan‘s assoсiational rights, but rather was a “reasonable, nondiscriminatory restriction justified by Michigan‘s important regulatory interests of preventing extended intra party feuding, factionalism and voter confusion.” Libertarian Party of Mich. v. Johnson, 905 F.Supp.2d 751, 766 (E.D.Mich. 2012). Johnson and the Libertarian Party of Michigan then sought an emergency injunction and expedited appeal in this сourt to compel the Secretary of State to include Johnson on the presidential ballot pending appeal. We denied the injunction on the grounds that Johnson was unlikely to succeed in his claims in light of Timmons v. Twin Cities Area New Party, 520 U.S. 351 (1997), and because injunctive relief would “cause substantial harm to the orderly processing of the election.” Order, 2, Sept. 12, 2012. Johnson and the Libertarian Party did not appear on the general election ballot, and no listed presidential cаndidate was affiliated with the Libertarian Party. Mich. Dep‘t of State, 2012 Official Michigan General Candidate Listing, (Nov. 5, 2012, 4:07 PM), http://miboecfr.nictusa.com/election/candlist/12GEN/12GEN_CL.HTM. Johnson received 7,774 votes as a write-in candidate. Mich. Dep‘t of State, 2012 Official Michigan General Election Results-President of the United States, (Jan. 4, 2013, 3:09 PM), http://miboecfr.nictusa.com/election/results/12GEN/01000000.html.
This appeal is not moot, despite the fact that the 2012 presidential election has conсluded, because it appears to fall in the mootness exception for cases that are “capable of repetition, yet evading review.” See Lavin v. Husted, 689 F.3d 543, 546 (6th Cir.2012) (quoting Fed. Election Comm‘n v. Wis. Right to Life, Inc., 551 U.S. 449, 462 (2007)). The plaintiffs’ challenge to the sore loser statute satisfies both prongs of the “capable of repetition, yet evading reviеw” exception. First, the challenged
The first prong of the exception appears to be met. The issue in this case was arguably not squarely presented until the Libertarian Party nominated Johnson at its national convention on May 3-6, 2012, leaving only six months to resolve the case in the courts prior to the November election. This case could not have been fully resolved during that short window. Disputes over election laws “almost always takе more time to resolve than the election cycle permits.” Id. In many cases, we have held that a challenge to an election law is not mоot although the date of the election passed or the election was voided. See Lavin, 689 F.3d at 546-47; Carey v. Wolnitzek, 614 F.3d 189, 197 (6th Cir. 2010); Libertarian Party of Ohio, 462 F.3d at 585; Rosen v. Brown, 970 F.2d 169, 173 (6th Cir.1992). We have found that election cases fall into the “capable of repetition, yet evading review” exception even when challengers had a period of eleven months to pursue their claims in federal court. See Libertarian Party of Ohio, 462 F.3d at 584.
There is also a reasonable expectation that this controversy will recur, at least with respect to sоme other candidate and political party. We have previously allowed election law challenges to move forward even if the challenging parties do not have cognizable legal interests, because “the controversy almost invariably will recur with respect to some future potential candidate” and the standard for the second prong of the mootness exception is “somewhat relaxed in election cases.” Lawrence v. Blackwell, 430 F.3d 368, 372 (6th Cir. 2005); see also Libertarian Party of Ohio, 462 F.3d at 584-85.
The district court thoroughly and correctly evaluated the arguments of the parties on the merits. After reviewing the record, the parties’ briefs, and the applicable law, we determine that no jurisprudential purpose would be served by a panel opinion on the merits. Therefore, we affirm the district court‘s judgment for the reasons stated in its September 10, 2012 opinion and order. See Libertarian Party of Mich., 905 F.Supp.2d at 765-66.