Greenville County Republican P v. Greenville County Election Com

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 6:10-cv-01407-MGL Copies to all parties and the district court. [999547126]. [13-2170]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 13-2170

THE GREENVILLE COUNTY REPUBLICAN PARTY EXECUTIVE COMMITTEE,
a/k/a The Greenville County Republican Executive Committee;
WILLIAM MITCHELL, a/k/a Billy Mitchell,
Plaintiffs – Appellants,
and
THE SOUTH CAROLINA REPUBLICAN PARTY; BETTY S. POE, in her
official capacity as the Chairman of the Greenville County
Republican Party Executive Committee,
Plaintiffs,
v.
GREENVILLE COUNTY ELECTION COMMISSION; GREENVILLE COUNTY
BOARD OF REGISTRATION; BILLY WAY, JR., in his official
capacity as the Chairman of the South Carolina State
Election Commission,
Defendants – Appellees,
and
WAYNE GRIFFIN; REGINALD GRIFFIN; BRETT A. BURSEY; ALAN
OLSON; THE SOUTH CAROLINA INDEPENDENCE PARTY; THE SOUTH
CAROLINA
CONSTITUTION
PARTY;
THE
PROGRESSIVE
NETWORK
EDUCATION FUND, INCORPORATED;
THE COMMITTEE FOR A UNIFIED
INDEPENDENT
PARTY,
INCORPORATED,
d/b/a
IndependentVoting.org; TERRY ALEXANDER, member of the Black
Legislative
Caucus
of
the
South
Carolina
House
of
Representatives District 59; KARL B. ALLEN, member of the
Black Legislative Caucus of the South Carolina House of
Representatives District 25; JERRY N. GOVAN, JR., member of
the Black Legislative Caucus of the South Carolina House of
Representatives District 95; CHRIS HART, member of the
Black Legislative Caucus of the South Carolina House of

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Representatives District 76; LEON HOWARD, member of the
Black Legislative Caucus of the South Carolina House of
Representatives District 76; JOSEPH JEFFERSON, JR., member
of the Black Legislative Caucus of the South Carolina House
of Representatives 102; JOHN RICHARD C. KING, member of the
Black Legislative Caucus of the South Carolina House of
Representatives District 49; DAVID J. MACK, III, member of
the Black Legislative Caucus of the South Carolina House
Representatives District 109; HAROLD MITCHELL, JR., member
of the Black Legislative Caucus of the South Carolina House
of Representatives District 31; JOSEPH NEAL, member of the
Black Legislative Caucus of the South Carolina House of
Representatives District 44; ANNE PARKS, member of the
Black Legislative Caucus of the South Carolina House of
Representatives District 12; RONNIE SABB, member of the
Black Legislative Caucus of the South Carolina House of
Representatives District 101; ROBERT WILLIAMS, member of
the Black Legislative Caucus of the South Carolina House of
Representatives District 62,
Intervenor/Defendants – Appellees,
and
CITY OF GREENVILLE MUNICIPAL ELECTION COMMISSION,
Defendant,
and
THE COLUMBIA TEA PARTY, INC.,
Intervenor/Defendant.

Appeal from the United States District Court for the District of
South Carolina, at Greenville.
J. Michelle Childs, District
Judge; Mary G. Lewis, District Judge. (6:10-cv-01407-JMC-MGL)

Argued:

October 29, 2014

Decided:

Before MOTZ, KING, and KEENAN, Circuit Judges.

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Affirmed in part and dismissed in part by unpublished per curiam
opinion.

ARGUED:
Samuel Darryl Harms, III, HARMS LAW FIRM, PA,
Greenville, South Carolina, for Appellants.
Harry M. Kresky,
LAW OFFICE OF HARRY KRESKY, New York, New York; Andrew
Lindemann, DAVIDSON & LINDEMANN, PA, Columbia, South Carolina,
for Appellees.
ON BRIEF:
Fletcher N. Smith, Jr., Greenville,
South Carolina, for Appellees Terry Alexander, Karl B. Allen,
Wayne Griffin, Reginald Griffin, Brett A. Bursey, Committee for
a Unified Independent Party, Incorporated, Chris Hart, Leon
Howard, Joseph Jefferson, Jr., John Richard C. King, David J.
Mack, III, Harold Mitchell, Jr., Joseph Neal, Alan Olson, Anne
Parks, Progressive Network Education Fund, Incorporated, Ronnie
Sabb,
South
Carolina
Independence
Party,
South
Carolina
Constitution Party, Robert Williams, and Jerry N. Govan, Jr.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
The Appellants — the Greenville County Republican Party
Executive Committee (the “Committee”) and William Mitchell —
seek

relief

from

constitutional
procedures.
Commission

the

district

challenges
The

(the

to

Appellees
“County

court’s

certain
—

the

Election

rejection

South

of

Carolina

Greenville

Commission”),

County
the

their

election
Election

Greenville

County Board of Registration (the “Board”), and Billy Way, Jr.,
as Chairman of the South Carolina State Election Commission (the
“State Election Commission”) — urge us to sustain the decisions
of the district court, which were predicated on lack of standing
to sue and other grounds.

See Greenville Cnty. Republican Party

Exec. Comm. v. Way, No. 6:10-cv-01407 (D.S.C. Mar. 30, 2011),
ECF No. 54 (the “First Opinion”); Greenville Cnty. Republican
Party Exec. Comm. v. Way, No. 6:10-cv-01407 (D.S.C. Aug. 30,
2013), ECF No. 181 (the “Second Opinion”). 1

1

Before we can reach

There are several Intervenors in this appeal, including
South Carolina voters, legislators, and entities that the
district court authorized to intervene as defendants on March 3,
2011.
They include Wayne Griffin, Reginald Griffin, Brett A.
Bursey, Alan Olson, the South Carolina Independence Party, the
South Carolina Constitution Party, the Progressive Network
Education Fund, Incorporated, the Committee for a Unified
Independent Party, Incorporated, Terry Alexander, Karl B. Allen,
Jerry N. Govan, Jr., Chris Hart, Leon Howard, Joseph Jefferson,
Jr., John Richard C. King, David J. Mack, III, Harold Mitchell,
Jr., Joseph Neal, Anne Parks, Ronnie Sabb, and Robert Williams.
The Appellees and Intervenors made joint submissions in this
appeal, and their appellate contentions are thus the same. The
(Continued)
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the

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this

jurisdictional issues.

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appeal,

we

must

address

and

resolve

First, we must determine whether the

appeal is at least partially moot as a result of a municipal
ordinance enacted in May 2014 by the City of Greenville (the
“City”). 2

Pursuant to the ordinance, the City no longer conducts

its municipal elections by the partisan nomination procedures
being challenged in this case.
the

Appellants

have

Second, we must decide whether

standing

to

pursue

any

non-moot

constitutional claims.
As explained below, the recently enacted ordinance renders
this appeal substantially moot.

With respect to the balance of

their claims, the Appellants lack standing to sue.

As a result,

we affirm in part and dismiss in part.

I.
A.
1.
Under
ordinance

South
either

Carolina
a

law,

nonpartisan

municipalities
or

a

must

partisan

adopt
method

Columbia Tea Party, Inc., intervened as a defendant
district court but is not a party to this appeal.
2

in

by
of

the

The City is a municipality in Greenville County, South
Carolina.

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nominating candidates for public office in municipal elections.
See S.C. Code Ann. § 5-15-60.

In non-municipal elections, such

candidates may be nominated by use of a partisan method.
id. § 7-11-10.

See

In utilizing the partisan method, candidates for

office are nominated through one of three possible procedures —
a party primary, a party convention, or a petition.
§§ 5-15-60(3), 7-11-10. 3

See id.

The selection of which procedure to

utilize is made by a certified political party — such as, in
this

case,

Party”).

the

South

Carolina

Republican

Party

(the

“State

See, e.g., id. § 7-9-10; see also S.C. Libertarian

Party v. S.C. State Election Comm’n, 757 S.E.2d 707, 708 (S.C.
2014). 4

The Committee — the primary Appellant here — is an

3

Section 5-15-60 of the South Carolina Code provides, in
pertinent part, that “[e]ach municipality in this State shall
adopt by ordinance one of the following alternative methods of
nominating candidates for and determining the results of its
nonpartisan elections,” including, inter alia, in section 5-1560(1)
“[t]he
nonpartisan
plurality
method
prescribed
in
[section] 5-15-61.”
Section 5-15-60(3) provides, in pertinent
part, that “[i]f nonpartisan elections are not provided for,
nomination of candidates for municipal offices may be by party
primary, party convention or by petition.”
Meanwhile, section
7-11-10 — which applies to non-municipal elections — specifies
that candidates may be nominated “by political party primary, by
political party convention, or by petition.” That provision was
amended during the pendency of the proceedings in the district
court, but the amendments have no bearing on this appeal.
See
Act of June 13, 2013, No. 61, § 1, 2013 S.C. Acts 244.
4

Section 7-9-10 of the South Carolina Code explains that a
political party “desiring to nominate candidates for offices to
be voted on in a general or special election shall, before doing
so, have applied . . . for certification as such.”
That
(Continued)
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affiliate

of

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the

State

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Party

and

the

Greenville

County

Republican Party, but it is not a certified political party.
Accordingly, the Committee has no statutory authority to select
one of the partisan nomination procedures.
If a certified political party designates a party primary
as its preferred nomination procedure, South Carolina requires
that it be an open primary (the “open primary system”).

The

open primary system authorizes all registered voters, regardless
of their party affiliations, to vote in any party primary in
South Carolina.

See Drawdy v. S.C. Democratic Exec. Comm., 247

S.E.2d 806, 808 (S.C. 1978) (“Our election laws do not preclude
a member of one political party from voting in . . . the primary
. . . conducted by a different political party.”). 5

provision further explains methods of certification and that
certified political parties have the authority to select the
means by which their candidates will be nominated in partisan
elections.
5

No single provision of the South Carolina Code directly
mandates the open primary system.
Rather, that system arises
from the interworking of several Code provisions.
Persons who
are citizens of South Carolina and the United States, and who
satisfy specific age, residency, and registration requirements,
are entitled to vote at all local municipal elections, see S.C.
Code Ann. § 7-5-610, and all non-municipal party primaries, id.
§ 7-9-20, provided that those persons properly register, id.
§ 7-5-110.
The State Election Commission must “establish and
maintain a statewide voter registration database.”
Id. § 7-5186(A)(1).
With respect to party primaries, “[i]mmediately
preceding” those elections, “the board of voter registration and
elections” shall furnish “two official lists of voters . . .
(Continued)
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Alternatively, a certified political party may nominate its
candidates

for

petition.

In order to utilize the convention method, however,

South

Carolina

public

offices

requires

a

by

party

a

to

party

secure

convention

a

or

by

three-fourths

majority vote of the membership of the party’s state convention
(the “supermajority requirement”).

See S.C. Code Ann. § 7-11-

30. 6
2.
Prior to May 2014, the City utilized the partisan method of
nominating and electing candidates for its municipal elections.

containing in each the names of all [voters] entitled to vote at
each precinct.”
Id. § 7-5-420.
Further, although nothing in
the Code provides that a voter’s political party affiliation
bears on his right to vote in a given primary election, the Code
does provide that “[n]o person shall be entitled to vote in more
than one party primary election held the same day.” Id. § 7-131040.
6

Section 7-11-30 of the South Carolina Code contains
requirements pertaining to partisan nominations by convention,
and that Code provision has been amended twice since 2013. The
version in effect during the events at issue provided that “[n]o
convention shall make nominations for candidates for offices
unless the decision to use the convention method is reached by a
three-fourths vote of the total membership of the convention,
except the office of state Senator and of member of the House of
Representatives.” See S.C. Code Ann. § 7-11-30 (2012). The two
amended versions of section 7-11-30 — effective July 3, 2013 and
June 2, 2014 — each retain the supermajority requirement, but
further require that the convention nomination process be
approved by a majority of voters in the party’s next primary
election. See Act of June 13, 2013, No. 61, § 3, 2013 S.C. Acts
246-47; Act of June 2, 2014, No. 196, § 6, 2014 S.C. Acts 220910.

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Since the 1980s, the State Party has nominated its candidates
for partisan municipal and county elections by the open primary
system.

As a result, the State Party could not nominate its

candidates by convention unless it satisfied the supermajority
requirement.
The Committee paid for and conducted the 2011 Republican
municipal open primary in the City.

In the past, the Committee

has also paid for and conducted other such primaries.
B.
1.
This appeal has a somewhat complicated procedural history,
the relevant aspects of which are described below.

On June 1,

2010, the Appellants, along with the State Party and Patrick
Haddon,

the

Committee’s

then-Chairman

(collectively,

the

“Original Plaintiffs”) initiated this litigation in the District
of South Carolina.

Their complaint was lodged against the State

of South Carolina and John Hudgens, in his official capacity as
Chairman
“Original

of

the

State

Defendants”). 7

Election
The

Commission
complaint

(together,
challenged

the
the

constitutionality of South Carolina’s open primary system, as

7

Appellee Way replaced Original Defendant Hudgens as
Chairman of the State Election Commission in May 2013.
As a
result, Way became a party-defendant in this litigation.
See
Fed. R. Civ. P. 25(d).

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as

its

convention.

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supermajority

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requirement

for

use

of

a

party

More specifically, the complaint alleged that those

procedures, facially and as-applied, contravene the First and
Fourteenth Amendments. 8
By

its

maintained

First

that

Amendment

South

contentions,

Carolina’s

open

the

primary

complaint
system

and

supermajority requirement, facially and as-applied, contravene
the Committee’s right to freedom of association in two respects.
First, the open primary system unconstitutionally requires the
Committee

to

pay

for

and

certify

the

results

of

partisan

municipal primaries in which registered Democrats participate.
Second, as to county elections, the supermajority requirement
unconstitutionally

regulates

the

internal

processes

of

a

certified political party in South Carolina by dictating the
8

A facial constitutional challenge to a statute asserts
either “that no set of circumstances exists under which the law
would be valid” or that the statute “is overbroad because a
substantial number of its applications are unconstitutional.”
Greater Balt. Ctr. for Pregnancy Concerns, Inc. v. Mayor of
Balt., 721 F.3d 264, 282 (4th Cir. 2013) (en banc) (alterations
and internal quotation marks omitted).
In assessing a facial
challenge, a reviewing court must examine the “challenged law
without regard to its impact on the plaintiff asserting the
. . . challenge.” Educ. Media Co. at Va. Tech, Inc. v. Insley,
731 F.3d 291, 298 n.5 (4th Cir. 2013) (internal quotation marks
omitted).
By contrast, an as-applied constitutional challenge
contends that a statute has been unconstitutionally applied to
the plaintiff.
Id. at 301.
That is, an as-applied challenge
“is based on a developed factual record and the application of a
statute to a specific person.”
Id. at 298 n.5 (internal
quotation marks omitted).

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vote percentage (three-fourths) requirement for the convention
nomination procedure.
With
alleged

respect

that

requirement,

to

the

the

open

facially

Protection

that

protection

rights

primary
and

Clause.

maintained

Fourteenth

system

open

by

and

as-applied,

Mitchell,

the

Amendment,

who

primary

compelling

the

the

complaint

supermajority

contravene
resides

system
him

the
the

in

Equal
City,

violates

to

vote

his

in

equal

partisan

municipal elections conducted by a political party rather than
by

an

election

commission,

such

nonpartisan municipal elections.
supermajority

requirement

as

that

which

conducts

The Committee alleged that the

contravenes

its

equal

protection

rights by imposing more stringent requirements on a political
party’s use of the convention nomination procedure in county
elections

than

nonpolitical

other

South

organizations,

Carolina

such

as

statutes

churches

impose

and

on

businesses.

The complaint thus sought to enjoin the Original Defendants from
using

and

enforcing

supermajority

the

requirement

open
in

primary

future

system

municipal

and

and

the

county

elections.

The Committee also sought declaratory and monetary

relief

violations

for

of

its

First

and

Fourteenth

Amendment

rights in previous elections.
In February 2011, after discovery had been completed, the
parties filed cross-motions for summary judgment with respect to
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the facial constitutional challenges being pursued.
30,

2011,

by

its

First

Opinion,

the

district

On March

court

awarded

summary judgment to the Original Defendants on each of those
facial challenges.
(1) the

open

certified

More specifically, the court ruled that:

primary

political

alternative

system

does

party’s

partisan

not

facially

freedom

nomination

of

violate

association,

procedures

are

a
as

available;

(2) the supermajority requirement does not facially violate a
certified political party’s freedom of association, because it
does not curtail the party’s internal operations; and (3) the
open primary system and the supermajority requirement do not
facially contravene a certified political party’s rights under
the

Equal

Protection

discriminate

among

Clause,

certified

as

those

political

provisions

parties.

do

See

not
First

Opinion 15-22. 9
2.
Nine months after the First Opinion, on January 6, 2012,
the

Original

district

Plaintiffs

court,

filed

primarily

to

9

an

amended

terminate

complaint

in

and

certain

add

the

Subsequent to the First Opinion, on April 27, 2011, the
Original Defendants sought Rule 59(e) relief, filing a motion in
the district court to alter or amend judgment. That motion was
denied on July 18, 2011.

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More than a year later, on June 7, 2013, the State

Party, which had been an Original Plaintiff, filed a stipulation
of dismissal pursuant to Federal Rule of Civil Procedure 41 and
withdrew from the litigation.

As a result, the plaintiffs then

in the case were the Committee, Mitchell, and Betty S. Poe, in
her official capacity as the Committee’s Chairman. 11

Poe did not

appeal, and the Committee and Mitchell are the only plaintiffs
(now Appellants) involved herein.

The Appellees — the County

Election Commission, the Board, and Way — are now the only nonintervening defendants.
In early July 2013, the Appellees sought summary judgment
on

the

claims

lodged

against

them

in

the

amended

complaint,

arguing that the Appellants lack standing to sue with respect to
their as-applied constitutional challenges.

The Intervenors, on

the other hand, filed a motion for judgment on the pleadings,
pursuant to Federal Rule of Civil Procedure 12(c), also arguing
10

The amended complaint abandoned all claims against the
State of South Carolina as a party-defendant.
It named three
new defendants, however — the County Election Commission, the
Board, and the since-dismissed City of Greenville Municipal
Election Commission.
The only Appellee who has been a partydefendant over the entire course of the litigation is the
Chairman of the State Election Commission (initially Hudgens and
now Way).
11

In May 2011, Original Plaintiff Haddon was replaced by
Poe, the new Committee Chairman.
Poe resigned during the
pendency of this appeal, apparently leaving the Chairman seat
vacant.

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that the Appellants lacked standing to sue.
by

its

Second

Opinion,

the

district

On August 21, 2013,

court

“dismisse[d]

Appellants’] action for lack of standing” to sue.

[the

See Second

Opinion 22. 12
In its Second Opinion, the district court recognized that
the Appellants bore the burden on the issue of standing to sue.
The court then identified the applicable analysis for a standing
issue, which, as established by the Supreme Court, required the
Appellants to show that
(1) [they have] suffered an “injury in fact” that is
(a) concrete and particularized and (b) actual or
imminent, not conjectural or hypothetical; (2) the
injury is fairly traceable to the challenged action of
the defendant; and (3) it is likely, as opposed to
merely speculative, that the injury will be redressed
by a favorable decision.
Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc.,
528

U.S.

167,

180-81

(2000).

Relying

on

our

decision

in

Marshall v. Meadows, 105 F.3d 904, 906 (4th Cir. 1997), the
12

The dismissal of a claim for lack of standing to sue is
typically sought by way of Rule 12(b)(1) of the Federal Rules of
Civil Procedure, which provides for dismissal for lack of
subject-matter jurisdiction.
In this instance, the district
court’s judgment order related that “Summary Judgment is granted
on behalf of [the Appellees].” See Greenville Cnty. Republican
Party Exec. Comm. v. Way, No. 6:10-cv-01407 (D.S.C. Sept. 6,
2013), ECF No. 182.
The Second Opinion, on the other hand,
specified that the action was dismissed for lack of standing.
Notwithstanding this apparent discrepancy, we are satisfied that
the disposition of the district court was a dismissal for lack
of standing to sue.
Indeed, there are no contentions to the
contrary.

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district court determined that the open primary system was not
traceable
injury.

to

the

Committee’s

alleged

freedom

of

association

That injury, rather, was traceable solely to the State

Party’s decision to utilize the open primary system of selecting
its

nominees

for

public

office.

The

court

concluded

that,

because the State Party was not a party-defendant, the Committee
could not satisfy the second, traceability prong of the standing
analysis.

The court also ruled that the Committee was unable to

satisfy the third prong of that analysis, in that its alleged
injury was not redressable.

As the court explained, it could

not, as a matter of law, compel the State Party to adopt and
utilize any particular partisan nomination procedure.
The

Second

Opinion

also

rejected

Mitchell’s

as-applied

equal protection challenge to the open primary system for lack
of standing to sue.

In so ruling, the district court reasoned

that Mitchell’s alleged injuries were traceable solely to the
City’s

decision

Accordingly,
deprived

the

Mitchell

to

conduct

absence
of

of

standing

partisan
the
to

municipal

City

as

pursue

an

a

elections.

party-defendant
equal

protection

claim.
Finally, the Second Opinion rejected — also for lack of
standing

to

sue

—

the

Committee’s

as-applied

freedom

of

association and equal protection challenges to the supermajority
requirement.

In that regard, the district court explained that
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the

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State

procedure

Filed: 03/17/2015

Party
by

—

which

as

the

the

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entity

State

tasked

Party

with

selects

selecting

the

nominees

for

its

office in South Carolina — was the only entity entitled to
challenge

the

requirement.

constitutionality
The

State

Party,

of

the

however,

supermajority

had

abandoned

the

litigation two months earlier, in June 2013, and was no longer a
party-plaintiff.
as-applied

The court therefore dismissed the Appellants’

constitutional

challenges

for

lack

of

standing

to

sue.
Judgment was entered in favor of the Appellees on September
6, 2013.

The Appellants timely noticed this appeal, and we

possess jurisdiction pursuant to 28 U.S.C. § 1291.
C.
On May 12, 2014, after this appeal was noticed and briefed,
the

City

enacted

the

municipal

jurisdiction in this appeal.

ordinance

that

impacts

our

See Greenville, S.C., Ordinance

No. 2014-25 (2014) (the “Ordinance”).

The Ordinance provides,

in pertinent part, that the City “shall cease operating under
the partisan method of nominating and electing candidates in
municipal elections.”
Ordinance

“adopts

Id.
the

In place of the partisan method, the
nonpartisan

plurality

[procedure]”

prescribed by section 5-15-61 of the South Carolina Code.
Accordingly,

the

City

no

longer

16

conducts

municipal

Id.

elections

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utilizing the partisan nomination procedures that are challenged
by the Appellants.
During oral argument of this appeal, our panel identified
the Ordinance as potentially creating a jurisdictional problem,
in that the Ordinance may have mooted the Appellants’ claims.
As a result, we secured post-argument briefing from the parties
on the jurisdictional impact of the Ordinance.
therein

argued

Appellants’
partisan

that

the

Ordinance

constitutional

municipal

renders

claims

elections.

The

with

The Appellees

moot

each

respect

Appellants,

to
by

of

the

future

contrast,

maintained that those claims were not mooted by the Ordinance,
in that the City could yet again decide to utilize the partisan
nomination

procedures.

Notwithstanding

their

disagreement

in

that respect, the Appellants and the Appellees appear to agree
that the Ordinance does not moot the Committee’s facial and asapplied freedom of association and equal protection challenges
to the supermajority requirement, as those challenges apply to
county — rather than municipal — elections.

The parties also

appear to agree that the Ordinance does not moot the Committee’s
claims

for

declaratory

and

monetary

previous partisan municipal elections.

17

relief

with

respect

to

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II.
When

an

issue

of

subject-matter

jurisdiction

arises,

an

appellate court is obliged to conduct a full inquiry thereon.
See Dickens v. Aetna Life Ins. Co., 677 F.3d 228, 230 (4th Cir.
2012).
complaint

We review de novo a district court’s dismissal of a
for

lack

of

standing

to

sue.

See

S.

Walk

at

Broadlands Homeowner’s Ass’n, Inc. v. OpenBand at Broadlands,
LLC, 713 F.3d 175, 181 (4th Cir. 2013).

III.
The Appellants assert on appeal that the district court, by
its First Opinion, erroneously awarded summary judgment to the
Original
The

Defendants

Appellants

Opinion,

erred

on

also
in

the

contend

ruling

facial
that

that

constitutional
the

the

as-applied

barred for lack of standing to sue.
invoking

the

“repetition

exception”

court,

by

challenges.
its

Second

challenges

are

They further maintain,
to

mootness,

that

the

mootness doctrine does not undermine any of their claims in that
the City could alter the Ordinance.
Because the Ordinance was enacted during the pendency of
this appeal, we must assess whether its enactment impacts our
jurisdiction by rendering any of the claims moot.

Indeed, we

are obliged to address both mootness and standing to sue prior
to any merits questions.

See Warren v. Sessoms & Rogers, P.A.,
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676 F.3d 365, 370 (4th Cir. 2012) (“As a federal court, we must
investigate
whenever

the

that

limits

of

jurisdiction

our
is

subject-matter
fairly

in

jurisdiction

doubt.”

(internal

quotation marks omitted)).
A.
1.
The doctrine of mootness derives from the requirement of
Article

III

adjudicate

of
only

controversy.’”
2013).
in

a

the

Constitution

[those]

that

disputes

“federal

involving

courts

may

case

or

‘a

Williams v. Ozmint, 716 F.3d 801, 808 (4th Cir.

The case or controversy mandate demands that plaintiffs
federal

lawsuit

“continue

to

have

a

‘particularized,

concrete stake’ in the outcome of the case through all stages of
litigation.”
494

U.S.

Id. at 808-09 (quoting Lewis v. Cont’l Bank Corp.,

472,

479

(1990)).

But

when

a

party-plaintiff

has

already received “the relief he or she sought to obtain through
the

claim,”

“effective
omitted).

the

federal

relief.”

Id.

court
at

lacks
809

the

power

(internal

to

provide

quotation

marks

In such a situation, the claims of the plaintiff may

well be moot.
In this case, the City’s enactment of the Ordinance in May
of last year has provided the Appellants with a substantial part
of the relief they seek in this litigation.
Ordinance

adopted

the

nonpartisan
19

method

Specifically, the
of

nominating

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candidates

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for

municipal

Pg: 20 of 28

elections,

thereby

rendering

inapplicable the open primary system that the Appellants seek to
challenge on constitutional grounds.
Appellants’

facial

and

as-applied

As explained below, the

freedom

of

association

and

equal protection challenges, to the extent they relate to future
partisan municipal elections, have been rendered moot, unless
they

are

saved

by

the

repetition

exception

argued

by

the

Appellants.
2.
As the Appellants maintain, we have recognized an exception
to the mootness doctrine for conduct “capable of repetition, yet
evading review.”
2011).

Lux v. Judd, 651 F.3d 396, 401 (4th Cir.

That exception might apply, for example, to an election-

related dispute when “there is a reasonable expectation that the
challenged

provisions

will

be

applied

again during future election cycles.”
marks

omitted).

The

repetition

against

the

plaintiffs

Id. (internal quotation

exception

is

narrow

one,

however, and it applies in exceptional situations only.

See

City of L.A. v. Lyons, 461 U.S. 95, 109 (1983).

a

Thus, “a party

seeking to invoke this exception to the mootness doctrine bears
the burden of showing its application.”

Williams, 716 F.3d at

810.
In these circumstances, the Appellants have not satisfied
their burden of establishing “a reasonable expectation” that the
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City will return to the partisan method of nominating candidates
in “future election cycles.”

See Lux, 651 F.3d at 401.

their

regard

contention

in

that

speculation and conjecture.
explained

its

nonpartisan

decision

municipal

is

predicated

Rather,

solely

on

In enacting the Ordinance, the City

to

shift

nomination

from

the

partisan

method.

The

to

the

Ordinance

specified that “Greenville is one of only eight municipalities
in South Carolina to have partisan municipal elections and the
national trend is for municipalities the size of Greenville to
have nonpartisan elections.”
No. 2014-25 (2014).

See Greenville, S.C., Ordinance

It also reasoned that the partisan method

“results in a prolonged campaign period” and fails to “promote[]
full participation by all voters in the electoral process.”
(emphasis omitted).

Id.

Because the Appellants have not shown a

reasonable expectation that the City will return to the partisan
municipal nomination method, the repetition exception is simply
inapplicable. 13
B.
We
claims

recognize,
are

Committee’s

mooted
facial

however,
by
and

the

that

not

all

Ordinance.

as-applied

13

freedom

of

the

Committee’s

Specifically,
of

association

the
and

As a consequence of the City’s enactment of the Ordinance
and our application of the mootness doctrine, Appellant Mitchell
is left with no viable claims for relief in this case.

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equal protection challenges to the supermajority requirement are
not impacted by the Ordinance.

Nor are the Committee’s claims

for declaratory and monetary relief for violations of its right
to freedom of association in previous municipal open primaries.
As to those claims, we turn to the Committee’s central appellate
contention with respect to the Second Opinion, that the district
court erred in ruling that the Committee lacks standing to sue.
1.
By

the

First

Opinion,

the

district

court

rejected

the

contentions of the then-plaintiffs that the open primary system
and the supermajority requirement facially violated the First
and

Fourteenth

Amendments.

As

reflected

below,

we

are

now

satisfied — as was the district court in its Second Opinion —
that the Appellants lack standing to pursue any facial or asapplied

challenges

to

future

partisan

municipal

elections.

Nevertheless, the State Party had standing to pursue the facial
challenges that were rejected by the First Opinion.

The State

Party, however, then abandoned the case and has not appealed.
As to the First Opinion, we are being asked to vacate an appeal
by

parties

standing,

(the

either

Appellants)
then

or

that

now.

have

had

Because

the

no

independent

Appellants

lack

standing to appeal, we cannot disturb the First Opinion.

See

Rhodes v. E.I. du Pont de Nemours & Co., 636 F.3d 88, 98-100
(4th Cir. 2011) (declining to review merits of denial of class
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action

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certification

where

Pg: 23 of 28

appellants

subsequently

dismissed

related claims and thus lacked standing to pursue appeal).
2.
Next,

the

Committee

pursues

as-applied

freedom

of

association and equal protection challenges with respect to the
supermajority
argument,

requirement.

the

Committee

In

its

contends

freedom
that

of

the

association
supermajority

requirement unconstitutionally regulates a certified political
party’s

internal

processes

by

dictating

that

a

three-fourths

supermajority vote is required to alter a nomination procedure
to

a

convention.

supermajority

The

requirement

Committee

then

contravenes

maintains

the

Equal

that

the

Protection

Clause by requiring political parties to obtain a supermajority
vote in order to utilize the convention nomination procedure,
while the State permits other entities — such as churches and
corporations — to make similar decisions by a simple majority.
On those challenges, however, the Committee does not satisfy the
first

prong

of

the

standing

analysis,

that

is,

a

cognizable

injury.
As the Second Opinion recognized, the injuries alleged by
the Committee were actually suffered by another entity entirely
— the State Party, which is solely tasked with selecting the
partisan

nomination

Second Opinion 17.

procedure

for

Republican

primaries.

See

It is a “fundamental restriction on our
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authority that in the ordinary course, a litigant must assert
his or her own legal rights and interests, and cannot rest a
claim

to

parties.”

relief

on

the

legal

rights

or

interests

of

third

Hollingsworth v. Perry, 133 S. Ct. 2652, 2663 (2013)

(alterations

and

internal

quotation

marks

omitted).

The

Committee has thus failed to show a cognizable injury under its
First

or

lacks

Fourteenth

standing

Amendment

to

sue

contentions,

with

regard

to

and
the

the

Committee

supermajority

requirement.
3.
Finally,

the

Committee

seeks

declaratory

and

monetary

relief for violations of its right to freedom of association in
previous partisan municipal elections.
Committee

contends

that

More specifically, the

the

open

primary

system

unconstitutionally required the Committee to conduct and pay for
those

open

primaries,

in

situation,

which

the

registered

Democrats

participated.
In

this

traceability

prong

of

the

Committee

standing

cannot

analysis.

satisfy
In

order

the
to

satisfy that prong, the Committee was obliged to show that its
injury

“fairly

can

be

traced

to

the

challenged

action.”

Marshall v. Meadows, 105 F.3d 904, 906 (4th Cir. 1997) (internal
quotation

marks

omitted).

Here,

South Carolina’s open primary.

the

“challenged

action”

is

In Marshall, we determined that
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the

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plaintiffs

lacked

Pg: 25 of 28

standing

to

challenge

Virginia’s

open

primary statutes, reasoning that
it [was] not the Open Primary Law that [was] the cause
of the plaintiffs’ alleged injury.
Rather, it [was]
the decision of the Virginia Republican Party to
conduct an “open” primary that [caused] this alleged
injury, as there is:
(1) nothing unconstitutional
about a political party’s choice of an “open” primary;
and
(2) simply
no
indication
that
the
Virginia
Republican Party would have a “closed” primary in the
absence of the Open Primary Law.
Id. (emphasis and citations omitted).

Accordingly, we ruled

that the absence of the Virginia Republican Party as a partydefendant in Marshall deprived the plaintiffs of standing to
sue.

Id.
Here

traceable

too,
to

the

the

Committee’s

decision

of

alleged

the

injuries

State

Party

nominees by way of the open primary system.
Opinion

explained,

“‘stands

directly

the

State

between

Party

[the

is

to

fairly

select

its

Thus, as the Second

an

Committee]

were

intermediary
and

the

that

challenged

conduct in a way that breaks the causal chain’” between the open
primary

system

and

the

Committee’s

freedom

of

association

claims.

See Second Opinion 17 (quoting Frank Krasner Enters.,

Ltd.

Montgomery

v.

2005)).

Cnty.,

Md.,

401

F.3d

230,

236

(4th

Cir.

Because the State Party is not a party-defendant in

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litigation,

the

Committee

Pg: 26 of 28

is

unable

to

satisfy

the

traceability prong of the standing analysis. 14
Contrary

to

the

Committee’s

contention,

our

decision

in

Miller v. Brown, 462 F.3d 312 (4th Cir. 2006), does not dictate
some

other

conclusion.

In

Miller,

a

local

political

organization contested the open primary system in Virginia that
was challenged in Marshall.

See Miller, 462 F.3d at 316.

When

Miller was decided, however, the Virginia Republican Party had
already taken steps to implement its use of closed primaries.
Id. at 318.
amended

its

Specifically, the Virginia Republican Party had
plan

of

organization

to

“exclude

voters

who

participated in the nomination process of another party within
the preceding five years from voting in the Republican primary.”
Id. at 314.
political

In that circumstance, we concluded that the local

organization

had

standing

to

sue,

because

it

was

seeking to enforce the Virginia Republican Party’s desire to

14

We also agree with the Second Opinion that the Committee
is unable to establish the redressability prong of the standing
analysis.
If
South
Carolina’s
open
primary
system
is
unconstitutional, we would likely be unable to compel the State
Party to conduct closed primaries, as such a court order may
well violate the Constitution. See Tashjian v. Republican Party
of Conn., 479 U.S. 208, 224 (1986) (recognizing that a court
“may not constitutionally substitute its own judgment for that
of the [p]arty,” as the “[p]arty’s determination of the
boundaries of its own association, and of the structure which
best allows it to pursue its political goals, is protected by
the Constitution”) (internal quotation marks omitted)).

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conduct closed primaries.
that

situation

from

Republican

Party

primaries.

Id.

the

had

Id. at 318.
one

not

Pg: 27 of 28

in

yet

We readily distinguished

Marshall,

implemented

where
its

the

use

Virginia

of

closed

Thus, the plaintiffs in Marshall were merely

challenging the Party’s desire to conduct open primaries, not
the open primary system itself.

Id.

Miller is not applicable here because, unlike the Virginia
Republican Party in Miller, the State Party has done nothing, on
this record, that seeks to conduct closed primaries in South
Carolina.
that

in

Accordingly, this situation more closely resembles
Marshall,

with

the

Committee

challenging

Party’s decision to conduct open primaries.

the

State

Thus, the Committee

lacks standing to pursue its claims for declaratory and monetary
relief based on alleged constitutional violations in previous
partisan municipal elections. 15

IV.
Pursuant

to

the

foregoing,

we

dismiss

as

moot

the

Appellants’ facial and as-applied challenges to future partisan
15

Finally, the Committee erroneously contends that the
State Party’s platform — vaguely indicating support for a closed
primary system — is sufficient to establish standing for the
Committee’s freedom of association claims. As recognized in the
Second Opinion, however, the Party’s platform “at most states a
possible preference or partiality for [open] primaries . . .
[which] is undoubtedly trumped by its rules and conduct.”
See
Second Opinion 21.

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municipal elections.
sue,

the

facial

Pg: 28 of 28

We also dismiss, for lack of standing to

challenges

to

the

supermajority

requirement.

Finally, we affirm the dismissal, for lack of standing to sue,
of the as-applied challenges to the supermajority requirement,
as well as the claims for declaratory and monetary relief with
respect to previous partisan municipal elections.
AFFIRMED IN PART
AND DISMISSED IN PART

28