Hall et al v. Bennett

Filing 81

OPINION. Signed by Honorable Judge Myron H. Thompson on 9/30/16. (djy, )

IN THE DISTRICT COURT OF THE UNITED STATES FOR THE
MIDDLE DISTRICT OF ALABAMA, NORTHERN DIVISION
JAMES HALL and
N.C. “CLINT” MOSER, JR.,
Plaintiffs,
v.
JOHN MERRILL, Alabama
Secretary of State,
in his official capacity,
Defendant.

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CIVIL ACTION NO.
2:13cv663-MHT
(WO)

OPINION
Plaintiffs James Hall and N.C. “Clint” Moser, Jr.
planned to run in the December 2013 special election to
fill the vacant United States House of Representatives
seat

in

Alabama’s

First

Congressional

District.

However, neither timely submitted a petition with the
number of signatures required under state law, and, as
a result, neither appeared on the ballot.
Pursuant to 42 U.S.C. § 1983, Hall and Moser filed
this case against Alabama’s Secretary of State, raising
First

and

Fourteenth

Amendment

challenges

to

the

constitutionality

of

Alabama’s

ballot-access

the context of such a special election.1
equal protection claim as well.

laws

in

They raise an

Jurisdiction is proper

under 28 U.S.C. § 1331.
Currently before the court are Hall and Moser’s
motion for summary judgment and the Secretary’s motion
for summary judgment.
the

oral

arguments

Based on the record, as well as

conducted

before

this

court,

the

court will grant summary judgment in favor of Hall on
his

First

and

Fourteenth

Amendment

claim,

and

grant

summary judgment in favor of the Secretary on Hall’s
equal-protection

claim.

Because

the

relief

to

be

afforded to Hall is identical to the relief sought by
Moser,

the

jurisdiction

court
to

need
hear,

not
or

decide
evaluate

whether
the

it

has

merits

of,

Moser’s claims, and his claims will be dismissed as
moot.

The

motions

will

be

denied

in

all

other

1. John Merrill has replaced Jim Bennett as
Alabama’s Secretary of State and is automatically
substituted as the official capacity defendant in this
action. Fed. R. Civ. P. 25(d).

2

respects.

I.
Summary
shows

that

SUMMARY-JUDGMENT STANDARD

judgment

is

appropriate

there

no

genuine

is

“if

the

dispute

as

movant
to

any

material fact and the movant is entitled to judgment as
a matter of law.”

Fed. R. Civ. P. 56.

The court must

view the evidence in the light most favorable to the
non-moving party and draw all reasonable inferences in
favor of that party.

Matsushita Elec. Indus. Co. v.

Zenith Radio Corp., 475 U.S. 574, 587 (1986).
56

standard

is

unaffected

by

cross-motions for summary judgment.

the

The Rule

filing

of

See Gerling Global

Reins. Corp. of Am. v. Gallagher, 267 F.3d 1228, 1233
(11th Cir. 2001).

II.
A.

FACTS

Alabama’s Ballot-Access Scheme

Alabama law provides a prospective candidate with
different routes onto the ballot, depending on whether
the candidate runs as a member of a political party or
3

as an independent.

A political party is defined as an

organization whose candidate received more than 20 % of
the votes cast in the last general election in the
relevant

political

§ 17-13-40.

subdivision.

Candidates

who

1975

run

as

a

Ala.

Code

member

of

a

political party have their names placed on the ballot
after they prevail in their party’s primary—election
processes.

1975 Ala. Code § 17-9-3(a)(1).

Independent

candidates,

on

the

other

hand,

must

seek to have their names placed on the ballot through
signature

petitions.

independent

candidate

signatures

of

Alabama
to

qualified

gather

law
a

requires

certain

electors--that

number
is,

an
of

voters

registered in the relevant political subdivision and
therefore eligible to vote for the candidate.

Alabama

law sets this signature threshold at 3 % of the number
of voters who cast ballots for the office of Governor
in

the

last

general

election

in

the

political

subdivision in which the candidate seeks to qualify.
1975 Ala. Code § 17-9-3(a)(3).
Any

qualified

elector
4

may

sign

a

petition

regardless
Alabama’s

of

whether

last

the

signer

gubernatorial

actually

election

or

voted

in

intends

to

vote in the election in which the candidate wishes to
appear on the ballot.
signer

be

unaffiliated

There is no requirement that a
with

a

political

party,

no

prohibition on signers voting in a party primary, and
no prohibition on signing multiple petitions.
no

fee

for

signatures,

the
and

Secretary
there

State

no

is

of

to

requirement

There is

verify

the

that

the

signature petition be notarized or witnessed.

Since

not all signatures on petitions will be valid, there is
no limit on the number of signatures that a candidate
may submit, and petitions may be submitted in parts,
although no part may be submitted after the deadline.
State

regulations

require

that

any

signature

petition contain a header that with the “name of the
prospective

independent

candidate,

the

date

of

the

general election for which ballot access is sought, and
the name of the office sought, including the district
number,

if

applicable.”

Ala.

§ 820-2-4-.05.
5

Admin.

Code

R.

Independent

candidates

must

file

their

signature

petitions with the Secretary of State’s office by 5:00
p.m. on the date of the first primary election.

1975

Ala. Code § 17-9-3(a)(3).

B.

The December 2013 Special Election
1.

On May 23, 2013, Representative Jo Bonner announced
his retirement from the U.S. House of Representatives,
effective August 15, 2013.
moved up to August 2.

That date was eventually

His retirement left Alabama’s

First Congressional District, which is in southwestern
Alabama,

without

a

representative.

Although

the

Governor had not yet announced a date for a special
election,
candidates

Democratic,
filed

Republican,

statements

of

and

independent

organization

from

mid-June to early July.
Hall contacted the Secretary of State’s office in
early June to verify that he could begin collecting
signatures for his independent candidacy in compliance
with Alabama law.

On June 7, Hall e-mailed the office
6

with a draft petition to verify that it conformed to
Alabama laws and regulations.

He was concerned that

the header on his signature petition might not conform,
since

the

Candidate

Filing

Guide

published

on

the

Secretary of State’s website, which he had consulted,
stated that signature petitions must contain the “date
of

the

general

sought.”

election

for

which

ballot

access

is

Hall Decl. (doc. no. 25-1) at 6; Sec’y of

State’s Candidate Filing Guide (doc. no. 16-3) at 2;
Ala. Admin. Code R. § 820-2-4-.05.
contacted

the

Secretary

of

At the time Hall

State’s

office,

sample

petitions had been posted on its website for regularly
scheduled elections, but not for the special election.
As

the

date

of

the

special

election

had

not

been

announced, it was impossible for Hall to include it on
his signature petition.
On June 11, 2013, Alabama’s Director of Elections
reviewed Hall’s draft petition and changed its header
to indicate that it was a petition to place Hall on the
ballot “in the Special General Election to be held on a
date yet to be determined ....”
7

Packard Aff. (doc. no.

23-1) at 3-4.

The revised signature petition was sent

to Hall, and he acknowledged its receipt the same day.
This revised header appeared on the completed signature
petition he eventually submitted.
On July 26, 2013, the dates for the special primary
election and special general election were set by court
order in United States v. Alabama, No. 2:12-cv-179-MHT
(M.D. Ala.), a case seeking to compel Alabama to comply
with

the

Voting

Uniformed

Act

and

(UOCAVA),

Overseas

42

U.S.C.

Citizens

Absentee

§ 1973ff.

UOCAVA

provides that, no later than 45 days before a federal
election,

States

must

send

ballots

to

overseas voters who have requested them.
§ 1973ff-1(a)(8)(A).
primary

election

for

military

and

See 42 U.S.C.

The court order set the special
September

24,

2013,

and

the

special general election for December 17, 2013, because
those

dates

would

allow

enough

time

to

mail

UOCAVA-compliant ballots for both elections.
The Secretary of State’s office publicly announced
the date of the special primary election and special
general election three days later, on July 29, 2013.
8

Hall did not learn of the date of the special primary
election--and, hence, the date his signature petition
was due--until that announcement was made.
The parties agree that meeting the 3 % signature
requirement for Alabama’s First Congressional District
required at that time 5,938 valid signatures.

They

dispute, however, how much time Hall had to collect
those

signatures.

candidates

had

56

Hall

contends

days

to

that

obtain

independent

the

necessary

signatures; he arrives at this number by calculating
the time between the July 29 announcement of election
dates

and

the

September

24

petition

excluding both the start and end dates.2

deadline

and

Hall uses July

29 as the start date because that is the earliest date
an

independent

candidate

could

have

begun

gathering

signatures using a signature petition that included the
date of the election in its header.

The Secretary

2. Hall presumably excludes the start and end
dates in order to reflect his belief that a candidate
cannot reasonably be expected to gather signatures on
either the day the election date is announced or the
day on which the signatures are due by 5:00 p.m.

9

argues,

however,

that

Hall

had

106

days

to

collect

signatures, beginning on the day of the June 11 e-mail
correspondence

between

Hall

and

the

Secretary

of

State’s office and ending on the September 24 petition
deadline.
On or around June 11, 2013, Hall began gathering
signatures and worked “tirelessly throughout the months
of June and July” to collect signatures for his ballot
petition.

Hall

Decl.

(doc.

no.

25-1)

at

2.

He

attempted to gather signatures at places of business
and at public events such as “charity runs, festivals,
yard sales, concerts, sporting events, a gun show, and
others.”

Id.

He also used social and work contacts as

well as friends to obtain signatures.
went

to

approximately

obtain signatures.

5,000

homes

He and his wife
in

an

effort

to

He was able to obtain roughly one

signature for every 12 houses visited.
Eventually, Hall placed an advertisement to hire
someone

to

gather

signatures

received only one response.

on

his

behalf,

but

he

Employing that signature

collector would have cost him approximately $ 4.00 per
10

signature, which he could not afford to pay.

Hall

attests

were

that

his

efforts

to

collect

signatures

impaired by his inability, given the short lead time,
to organize an effective signature drive.
Hall,

his

impaired

efforts
during

announcement

to

obtain

the
the

of

period
special

According to

signatures
preceding

were

the

election

also

July

date

29

because

voters were unaware of the election and had no interest
in it.
Hall timely filed a signature petition containing
2,835

signatures

September 24, 2013.
of

the

5,938

with

the

Secretary’s

office

on

Since this number was well short

signatures

required,

the

Secretary’s

office informed him that it would not attempt to verify
the signatures and that the number of signatures was
insufficient to provide him with ballot access.

After

the September 24 deadline, Hall continued to collect
signatures and was able to obtain an additional 451
signatures.

11

2.
Moser,

like

independent

Hall,

in

the

also

December

wanted
2013

to

run

special

as

an

election.

After Representative Bonner announced his retirement,
Moser met with a friend, who had been the campaign
coordinator in Alabama for Ron Paul and had managed
Paul’s signature campaign, to discuss strategies for
Moser’s signature petition.

According to Moser, this

friend

over

attempted

to

contact

100

of

his

former

contacts from the Paul campaign to collect signatures
for

Moser

and

to

set

up

a

Facebook

petition

page.

Despite those efforts, however, Moser and his associate
were able to find only one volunteer, and he was able
to obtain only 750 signatures by September 24.

Moser,

like Hall, was concerned about collecting signatures
before

a

date

for

the

election

had

been

announced

because the Candidate Filing Guide from the Secretary
of

State’s

website

stated

that

a

signature

must include the date of the election.

petition

Moser and his

associate feared that any signatures they might collect
before the date of the election was announced would be
12

rejected as invalid upon submission.

3.
Joshua Cassity, the Chairman of the Constitution
Party of Alabama, has also submitted a declaration in
this case.

He states that the Constitution Party’s

candidate was able to achieve ballot access for the
2010 general election for the House of Representatives
in the First Congressional District.

The Constitution

Party knew that its signature petition was due in June
of 2010 and began planning its signature petition in
November

2009.

results,

the

After

early

Constitution

efforts

Party

provided

spent

$ 15,000 to hire signature gatherers.

mixed

$ 12,000

to

With the help of

the paid signature gatherers, the Constitution Party
was able to meet the 3 % requirement and obtain ballot
access for its candidate.
Cassity

wanted

to

place

a

Constitution

Party

candidate on the ballot for the special election to
fill Representative Bonner’s seat but decided the party
could

not

acquire

the

required
13

signatures

in

the

shortened

timeframe

for

the

special

election.

Like

Moser, Cassity was concerned about gathering signatures
using a petition without the date of the election on it
as required by the Candidate Filing Guide.
employee

of

the

Secretary

of

State’s

Although an
office

told

Cassity to begin gathering signatures and then add the
date

of

the

announced,

election

Cassity

to

did

the
not

petition
want

to

once
rely

it
on

was
an

employee’s suggestion when it was contradicted by the
official

materials

State’s website.
did

not

attempt

contained

on

the

Secretary

of

As a result, the Constitution Party
to

gather

signatures

for

the

2013

special election.

4.
Hall was the only independent candidate to submit
signatures to the Secretary of State for the December
2013 special election.

Because he did not meet the 3 %

requirement, no independent candidate was on the ballot
for the special election.

14

C.

Procedural Background

On September 17, 2013, Hall and Moser filed their
complaint against the Secretary.
later

amended,

they

In the complaint, as

requested

(1)

a

declaratory

judgment that the ballot-access scheme for the special
election was unconstitutional, (2) a preliminary and
permanent

injunction

enforcing

the

prohibiting

ballot-access

the

laws

Secretary

for

the

from

special

election, (3) an order extending the filing deadline
and decreasing the number of signatures required for
them to be placed on the special-election ballot, (4) a
preliminary

and

permanent

injunction

requiring

the

Secretary to certify Hall as an independent candidate
on the special-election ballot, and (5) an award of
attorney’s fees and costs.
On
pending,

November

2,

2013,

UOCAVA-compliant

while

this

ballots

for

litigation
the

was

December

special general election were mailed to overseas voters
as required by federal law; they did not include Hall’s
name

as

a

candidate.

Since

the

Republican

primary

required a runoff on November 5, the UOCAVA-compliant
15

ballot included the names of all the candidates who
participated in the Republican runoff, so that overseas
voters could receive their ballots in compliance with
federal

law

but

still

vote

for

the

winner

Republican runoff, should they so choose.

of

the

On November

13, after the runoff, updated ballots containing only
the names of the candidates who were to appear in the
general

election

were

finalized;

mailed on November 19.

these

ballots

were

Overseas voters were permitted

to use the later ballots, if they received them in
time, or the earlier ballots, if they did not.

Hall

requested that the court enter an injunction requiring
the placement of his name on the updated ballot.
On November 13, the same day the updated ballots
were sent to the printer, the court3 held a hearing on
Hall

and

Moser’s

motion

for

a

temporary

restraining

3. Until August 20, 2014, Judge Mark Fuller
presided over this case.
However, this court has
reviewed the transcripts of all proceedings that took
place before him.

16

order

or

argument

preliminary
from

submissions

the

and

parties

made

denying the motion.
was

that,

because

injunction.4

an

based

oral

The
on

court

their

ruling

from

heard

written

the

bench

Among the reasons the court gave
the

UOCAVA-compliant

ballots

had

already been mailed to overseas voters without Hall’s
name on them, requiring the State to issue a new ballot
containing
election

Hall’s
having

name
to

would

be

result

in

rescheduled.

the
The

special
court

emphasized that rescheduling the special election would
result in a great expense to the State, risk voter
confusion,

and

increase

the

time

Alabama’s

First

Congressional District went without representation in
Washington.
The next day, Hall and Moser filed an emergency
appeal of the court’s oral order.

On December 12,

4. At
the
hearing,
the
court
also
briefly
addressed the Secretary’s motion to dismiss and, in the
alternative, for summary judgment.
The court denied
that motion to the extent it sought dismissal of Hall
and Moser’s claims, instead construing the motion as
solely one for summary judgment and taking it under
advisement. That motion is now before the court.

17

2013, the Eleventh Circuit Court of Appeals affirmed
the court’s ruling on the ground “that the injury to
the public from the issuance of an injunction would far
outweigh any injury appellants might suffer.”

Hall v.

Sec’y of State, Ala., 547 F. App’x 962, 963 (11th Cir.
2013) (per curiam).
Implicit in this court’s and the appellate court’s
reasoning was the so-called Purcell principle.
principle

of

election

law

essentially

means

This
that,

because of the risk of voter confusion, courts as a
general rule should be reluctant to allow last-minute
changes to the status quo.
549

U.S.

1

challenger

(2006)
seeks

(per

to

See Purcell v. Gonzalez,

curiam).

maintain

the

If

the

status

election
quo,

the

Purcell principle could arguably weigh in favor of the
challenger.

And,

of

course,

the

Purcell

principle

should be considered along with all the other factors
that

courts

temporary

use

in

determining

restraining

order

whether
or

a

to

grant

a

preliminary

injunction.
The special general election was held on December
18

17, 2013.

Republican Bradley Byrne was elected as the

Representative
District.
motion

for

Alabama’s

First

Congressional

On December 26, 2013, the Secretary filed a

to

dismiss

for

lack

of

subject-matter

jurisdiction, arguing that the case was mooted by the
completion of the special election.

The court rejected

this argument, finding that the controversy fell within
the

“capable

of

repetition,

yet

evading

review”

exception to the mootness doctrine because there was a
“demonstrated probability that the government will hold
future special elections where independent candidates
must comply with Alabama’s 3 % signature requirement
under a truncated petition deadline,” and, therefore,
that

Hall

and

Moser

had

“established

a

reasonable

expectation that future special elections in Alabama
will

burden

the

same

constitutional

interests at issue here.”
Supp.

2d

1266,

1270

(M.D.

rights

and

Hall v. Bennett, 999 F.
Ala.

2014)

(Fuller,

J.).

Furthermore, the court found that Hall and Moser met
the

mootness

exception’s

requirement--assuming,

“same

without
19

complaining

deciding,

that

party”
this

requirement

applied--because

expectation

that

Hall

independent

and

candidates

or

there

was

Moser
vote

Hall

and

Moser

reasonable

would
for

candidates in future special elections.

III.

a

run

as

independent

Id. at 1272.

DISCUSSION

challenge

Alabama’s

ballot-access

scheme in the context of a special election timeframe.
Specifically, they argue that Alabama’s 3 % signature
requirement and the shortened timeframe for meeting it
violated their First and Fourteenth Amendment rights as
candidates

to

associate

and

to

participate

in

the

political process, and as voters to associate and to
cast

their

votes

for

independent

candidates,

without serving any compelling state interest.
also

bring

an

Protection
discriminated

as-applied

Clause,
against

challenge

arguing

that

independent

under

the

the

candidates

all
They
Equal

Secretary
such

as

themselves and in favor of major-party candidates in

20

various ways.5

These challenges are now before the

court

parties’

on

the

cross-motions

for

summary

2013

election

judgment.
Because

the

December

special

has

already occurred, Hall’s and Moser’s earlier requests
to

be

become

placed
moot.

on

the

They

ballot
now

for

that

request

(1)

election
a

have

declaratory

judgment stating that the 3 % signature requirement for
independent

candidates

cannot

constitutionally

be

enforced with respect to special elections to seats in
the U.S. House of Representatives and (2) injunctive
relief

prohibiting

the

Secretary

from

enforcing

the

5. The
amended
complaint
also
asserts
that
Alabama’s ballot-access scheme violates Hall’s and
Moser’s rights as candidates and voters under the
Fifteenth Amendment.
Am. Compl. (doc. no. 13-1) at
2-3.
During the preliminary-injunction hearing, their
counsel advised the court that they would drop the
Fifteenth Amendment claim in an effort to proceed
expeditiously, but that they would pursue this claim
and seek additional discovery should Hall not be placed
on the ballot through a preliminary injunction. Schoen
Decl. (doc. no. 26-3) at 8–9. However, after the court
denied their request for a preliminary injunction, they
agreed to submit the case for review without further
argument or discovery on the Fifteenth Amendment claim.
Accordingly, the court finds that they have abandoned
their Fifteenth Amendment claim.

21

requirement with respect to a future special election
to a House seat.

A.

Subject-Matter Jurisdiction

Before proceeding to the merits of this case, the
court will address whether it possessed, and retains,
subject-matter
claims.

jurisdiction

over

Hall

and

Moser’s

The Secretary identifies two facts that, he

contends, bear on the court’s jurisdiction and warrant
reconsideration of the court’s conclusion that Hall and
Moser

had

presented

controversies:
when

the

(1)

and

Moser

complaint

was

continued
was

not

filed

or

to

present

registered
when

the

to

live
vote

special

election was held, and (2), after the special election,
Hall

ran

for

office

as

a

member

of

the

Republican

Party.

1.

Moser

Moser originally brought suit as a voter and as a
prospective candidate.

Compl. (doc. no. 2) at 3-4.

The Secretary argues that he lacked standing in either
22

capacity.
First,

the

Secretary

argues

that

Moser

lacked

standing to bring this suit as a voter because, at the
time the suit commenced and at the time of the December
2013 special election, he was not registered to vote in
Alabama.

According

to

the

affidavit

of

Alabama

Director of Elections Edward Packard, Moser had been
registered to vote in Baldwin County before 2009, but
was purged from the voter rolls in January 2009 because
he had not voted since the general election in 2004.
Moser

disputes

that

he

has

not

voted

since

2004;

however, he has not offered any evidence to suggest
that

his

name

was

relevant time period.

on

the

voter

rolls

during

the

Because Moser has presented no

evidence to rebut this contention, the court credits
it.6

As Moser was not registered to vote, it is open to

question whether he had standing to proceed as a voter.
6. Moser re-registered to vote on January 15,
2014. However, that fact does not affect his standing
to proceed when the complaint and amended complaint
were filed during 2013.

23

Cf. Kelly v. Harris, 331 F.3d 817, 820 (11th Cir. 2003)
(concluding

that

the

appellant

had

no

standing

to

challenge the requirement that candidates who wished to
run in the Democratic Party primary take a loyalty oath
when, as a registered Republican, he was ineligible to
vote in that primary).
Second,

although

the

Secretary

does

not

dispute

that Moser did have standing to sue as a prospective
candidate at the time the original complaint was filed,
he

argues

amending

that
his

Moser

complaint

abandoned
to

that

explain

claim

that,

by

due

later
to

the

“insurmountable obstacle for his candidacy” created by
the

challenged

provisions,

he

“ha[d]

withdrawn

from

that effort and now [sought] to support the candidacy
of Plaintiff Hall.”

Am. Compl. (doc. no. 13-1) at 5.

Additionally, the amended complaint removed the claim
for relief requesting to have Moser certified as an
independent candidate on the Special Election ballot.7
7. Moser argues that his original complaint, in
which he brought suit as both a voter and a candidate,
is the operative pleading for purposes of assessing
(continued...)
24

Compare Am. Compl. (doc. no. 13-1) at 18, with Compl.
(doc. no. 2) at 9.

Additionally, the Secretary notes,

Moser’s

stated

attorney

preliminary-injunction

at

hearing

the
that

November
Moser’s

13
only

“claims are his First and Fourteenth Amendment rights
as a voter,” and his “equal protection right ... to
vote for a candidate of his choice,” because “he is not
a candidate anymore.”
2:17-4:1.
been

Mot. Hr’g Tr. (doc. no. 36) at

That said, these representations may have

intended

to

reflect

only

that

Moser

was

not

seeking a preliminary injunction placing him on that
particular special election ballot, and not that he was
no

longer

seeking

any

prospective

relief

as

a

prospective candidate, especially in light of Moser’s
subsequent

submissions

to

the

court

indicating

his

future intent to run as an independent.
Moser also responds that, even if he does not have
standing and that he had standing at that time to bring
his claim as a candidate.
This is true but quite
beside the point; if he abandoned the claim he had
standing to pursue, he cannot proceed on it or on
another claim he did not have standing to pursue.

25

standing as a voter and has abandoned his claim as a
candidate, he still has standing based on the violation
of his “associational rights,” including his right “to
express

his

positions,

politics
as

candidate.”

a

and

to

advocate

citizen,

through

for
an

political

Independent

Pls.’ Resp. to Defs.’ Suppl. Br. (doc. no.

65) at 5.

While the court recognizes that Moser does

have an interest in expressing his views and advocating
for

the

candidate

of

his

choice,

Moser

has

not

identified--and the court has not found--any authority
for

the

alone

proposition

is

sufficient

that
to

injury

confer

to

these

standing

to

interests
challenge

ballot-access laws.

Rather, a survey of the relevant

case

that

law

indicates

individuals

who

challenge

ballot-access laws can do so in one of two ways: as
candidates

or

as

voters.

See,

e.g.,

Clingman

v.

Beaver, 544 U.S. 581 (2005); Anderson v. Celebrezze,
460 U.S. 780 (1983); Storer v. Brown, 415 U.S. 724
(1974);

Am.

Party

(1974);

Jenness

v.

of

Tex.

v.

Fortson,

White,
403

U.S.

415
431

U.S.

767

(1971);

Williams v. Rhodes, 393 U.S. 23 (1968); Baker v. Carr,
26

369 U.S. 186 (1962); Swanson v. Worley, 490 F.3d 894
(11th Cir. 2007); New Alliance Party of Ala. v. Hand,
933 F.2d 1568 (11th Cir. 1991); Bergland v. Harris, 767
F.2d 1551 (11th Cir. 1985).
In any event the court need not resolve the issues
that go to whether Moser has standing.

Because Moser

seeks exactly the same relief as Hall does, and because
relief will be granted in Hall’s favor, Moser would
have nothing to gain from adjudication of his claims
that he has not obtained through the vindication of one
or more of Hall’s.

Moser’s claims are therefore moot

and will be dismissed.

2.

Hall

The court turns next to Hall.

The Secretary argues

that Hall’s claims are moot because he is currently
affiliated with the Republican Party and because he ran
as a Republican in a local election held after the
special

election.

Hence,

the

Secretary

asserts,

Alabama’s ballot-access laws for independent candidates
no

longer

apply

to

Hall.
27

Although

the

court

has

already rejected dismissal on a mootness ground, see
Hall v. Bennett, 999 F. Supp. 2d 1266 (M.D. Ala. 2014)
(Fuller,

J.),

the

Secretary

continues

to

press

the

argument in light of changed circumstances, and so the
court addresses it here.
This court previously found that Hall’s claims fall
within the narrow exception to the mootness doctrine
for cases that are “capable of repetition, yet evading
review.”

See S. Pac. Terminal Co. v. ICC, 219 U.S.

498, 515 (1911).

Election law cases routinely fall

within this exception.

A controversy is capable of

repetition, yet evading review where two requirements
are met.
First,

“the

challenged

action

[must

duration too short to be fully litigated.”

be]

in

its

Weinstein

v. Bradford, 423 U.S. 147, 149 (1975) (per curiam).
The parties have never disputed that the first prong of
this test applies.

See Lawrence v. Blackwell, 430 F.3d

368, 371 (6th Cir. 2005) (“Challenges to election laws
are one of the quintessential categories of cases which
usually fit this prong because litigation has only a
28

few

months

before

impossible

by

the

the

remedy

sought

occurrence

of

is
the

rendered
relevant

election.”).
Second, and as pertinent here, a plaintiff must
show

a

reasonable

expectation

or

a

demonstrated

probability that the controversy will recur.

See Honig

v.

There

Doe,

484

conflicting

U.S.

305,

authority

319-23

regarding

(1988).
whether

a

is

plaintiff

must also establish a reasonable expectation that the
controversy

will

recur

election-law cases.

as

to

the

same

plaintiff

in

Compare Van Wie v. Pataki, 267

F.3d 109, 114 (2nd Cir. 2001), with Majors v. Abell,
317 F.3d 719, 723 (7th Cir. 2003), and Lawrence, 430
F.3d at 372.

The Eleventh Circuit has recently, and

without any discussion of this conflict, stated that it
was applying the ‘same complaining party’ requirement
in an election-law case, Arcia v. Florida Secretary of
State, 772 F.3d 1335, 1343 (11th Cir. 2014) (explaining
that the requirement had been met because the defendant
had

“not

offered

complained-of

to

refrain

voter-roll-purging
29

from”

reprising

practice

in

the
the

future, and concluding, apparently on this basis alone,
that

“there

is

a

reasonable

expectation

that

the

plaintiffs will be subject to the same action again”).
This court will follow Arcia’s lead and require Hall to
show a reasonable expectation that he will again be
subject, either as a candidate or as a voter, to the
3 %

signature

requirement

for

independent

candidates

during a special election.
Previously,
argument

that

the
the

court

rejected

passage

of

the

the

Secretary’s

special

election

rendered the case moot, assuming without deciding that
the ‘same complaining party’ requirement applied, and
holding that Hall met it because it was reasonable to
expect that Hall would run as an independent candidate
in future special elections.

That decision was based,

in part, on a declaration submitted by Hall, wherein he
stated

that

he

intended

to

seek

public

office

in

Alabama as an independent candidate in a future special
election.

Hall Decl. (doc. no. 48-1) at 1 (“I intend

to continue to seek elective office in Alabama in the
future, including, but not limited to, the office of
30

U.S. Representative, and I intend to seek such elective
office

as

election

an
is

election.”).

independent
a

Special

candidate,
Election

whether

or

a

such

regular

Hall also stated that he intends to vote

for independent candidates in future special elections.
Id. (“I also intend to cast my vote in Alabama for an
independent

candidate

for

elective

office

in

each

Special Election and regular election in which I am
eligible to vote.”).
Since then, however, Hall has affiliated himself
with the Republican Party and has run for office on the
Republican

ticket.

The

Secretary

presents

evidence

that, according to Republican Party guidelines, members
may

not

simultaneously

be

a

Republican

member of another party or an independent.

and

also

a

Therefore,

the Secretary argues, Hall can no longer establish a
reasonable

expectation

that

he

will

run

as

an

independent candidate in a future special election and,
consequently, cannot show that he will be subject to
the same challenged ballot-access laws in the future.
Hall’s decision to run as a Republican in a local
31

election

held

though,

after

does

declaration

not

of

independent.

the

a

court’s analysis.

election

significantly

intent
As

special

to

run

result,

in

it

at

issue,

undermine
the

future

does

not

his
as

alter

an
the

Hall is certainly free to affiliate

with the Republican Party for now while retaining his
right

and

persisting

in

his

independent in the future.
believe

this

Accordingly,

sort
the

of

desire

to

run

as

an

Nor is there any reason to
party-swapping

court

finds

that

is
it

unusual.
is

still

reasonably likely that the controversy will recur as to
Hall.
However, even if Hall were unlikely to run as an
independent in the future, this still would not defeat
the

court’s

amended

subject-matter

complaint,

candidate

but

also

Hall
as

jurisdiction.

brought
a

suit

voter.

not

In
only

Republican

his
as

a

Party

guidelines do not preclude registered Republicans from
voting
likely

for

independent

that

they

do

candidates;
so

with

indeed,
some

it

seems

frequency.

Considering Hall’s declaration that he intends to vote
32

for independent candidates in future special elections,
the court finds it reasonably likely that his First and
Fourteenth

Amendment

rights

as

a

voter

in

future

special elections would be burdened by the challenged
laws.
Moreover, courts of appeals have found election-law
controversies
respect

to

to

be

individual

‘capable

of

plaintiffs

repetition’
even

without

with
any

explicit statement by those plaintiffs (such as Hall
has made) that they intended to run or vote again.

See

Lawrence, 430 F.2d at 371 (“Although Lawrence has not
specifically stated that he plans to run in a future
election,

he

is

certainly

capable

of

doing

so,

and

under the circumstances it is reasonable to expect that
he will do so.

Neither is an explicit statement from

Shilo necessary in order to reasonably expect that in a
future

election

she

will

wish

to

vote

for

an

independent candidate who did not decide to run until
after the early filing deadline passed.

The law at

issue is still valid and applicable to both Lawrence
and any independent candidate Shilo might wish to vote
33

for

in

future

election

years.

Therefore,

controversy is capable of repetition.”).

the

This court

agrees with the Seventh Circuit that, “in an election
case[,]

the

plaintiff

court

to

will

assess

not

the

keep

likely

interrogating
trajectory

the

of

his

political career,” Majors, 317 F.3d at 723, at least so
long

as

the

challenged
another

plaintiff

law

in

running

candidate,

statement,

that

could

and

he

for

tells

again
office

the

anticipates

confront
or

court,
doing

the

voting
in

a

so.

for

sworn
Hall’s

professed intention to run again as an independent and
to

vote

again

election--both

for
of

an

which

independent
he

is

in

perfectly

a

special

capable

of

doing--is enough to survive a mootness challenge.
Having

found

that

this

case

continues

to

fall

within the ‘capable of repetition, yet evading review’
exception to the mootness doctrine, the court proceeds
to the merits of Hall’s claims.

34

B. First and Fourteenth Amendment
Political Association and Participation
1.
The

First

Constitutional Framework
and

Fourteenth

Amendments

afford

all

candidates vying for elected office, and their voting
constituencies, the fundamental right to associate for
political purposes and to participate in the electoral
process.

See, e.g., Clingman, 544 U.S. at 586; Burdick

v. Takushi, 504 U.S. 428, 433 (1992); Anderson, 460
U.S. at 787–88; Williams, 393 U.S. at 30.
restrictions

on

candidates’

and

Placing

political

parties’

access to the ballot interferes with their right to
associate

for

political

purposes

and

the

rights

of

qualified voters to cast their votes for the candidates
of their choice.

Munro v. Socialist Workers Party, 479

U.S. 189, 193 (1986) (citing Williams, 393 U.S. at 30);
see also Norman v. Reed, 502 U.S. 279, 288 (1992);
Anderson, 460 U.S. at 786; Ill. State Bd. of Elections
v. Socialist Workers Party, 440 U.S. 173, 184 (1979).
Ballot-access requirements that place more burdensome
restrictions

on

certain

types

35

of

candidates

than

on

others

implicate

Clause as well.
States,
interests

rights

the

have

regulating

“important

the

election

having ballot access requirements.”
490

F.3d

902

Equal

Protection

See Williams, 393 U.S. at 30–31.

however,

in

under

(11th

Cir.

and

compelling

process

and

in

Swanson v. Worley,

2007)

(quoting

Green

Mortham, 155 F.3d 1332, 1335 (11th Cir. 1998)).

v.
Most

significantly, States have an “important state interest
in requiring some preliminary showing of a significant
modicum

of

political

support

before

organization’s

printing

candidates

the

on

name

the

of

ballot.”

Jenness v. Fortson, 403 U.S. 431, 442 (1971).

And,

similarly, cases have “establish[ed] with unmistakable
clarity that States have an ‘undoubted right to require
candidates to make a preliminary showing of substantial
support

in

ballot.’”

order

to

qualify

deception,

a

place

on

the

Munro, 479 U.S. at 194 (quoting Anderson,

460 U.S. at 788-89, n.9).
preliminary

for

showings
and

even

Ballot-access laws requiring

serve

to

frustration

process at the general election.”
36

prevent
of

the

“confusion,
democratic

Jenness, 403 U.S. at

442.
The
framework
parties,
political

Supreme
for

Court

has

balancing

candidates,
process

the

and

with

established
interests

voters
the

an

in

analytical

of

political

engaging

interests

of

in

the

States

conducting fair and effective elections.

in

Under this

framework, a court must first “consider the character
and

magnitude

of

the

asserted

injury

to

the

rights

protected by the First and Fourteenth Amendments that
the plaintiff seeks to vindicate.”
at 789.
the

Second, the court must “identify and evaluate

precise

interests

justifications
Id.

Anderson, 460 U.S.

for

the

put

forward

burden

by

imposed

the
by

State
its

as

rule.”

Third, “the court must not only determine the

legitimacy and strength of each of those interests; it
also must consider the extent to which those interests
make it necessary to burden the plaintiff’s rights.”
Id.
In this analysis, “the burden is on the state to
‘put

forward’

the

‘precise

interests

...

[that

are]

justifications for the burden imposed by its rule,’”
37

and

to

“explain

the

relationship

between

interests” and the challenged provision.

these

Fulani, 973

F.2d at 1544 (quoting Anderson, 460 U.S. at 789).
State

must

introduce

evidence

to

justify

“The

both

the

interests the State asserts and the burdens the State
imposes on those seeking ballot access.”

Bergland, 767

F.2d at 1554.
Courts are to determine the appropriate level of
scrutiny

based

imposed.

“Regulations imposing severe burdens ... must

be

narrowly

interest,”
exacting

on

tailored
while

review,

the

seriousness

and

advance

“[l]esser
and

a

a

burdens

State’s

of

the

burden

compelling
...

state

trigger

important

less

regulatory

interests will usually be enough to justify reasonable,
nondiscriminatory
Cities

Area

New

restrictions.”
Party,

520

U.S.

Timmons
351,

v.

358–59

Twin
(1997)

(citations and internal quotation marks omitted).8
8. Hall suggests that the court should not apply
the approach outlined in Timmons.
He contends that,
because the ballot-access restriction at issue here
imposes a greater burden on independent candidates
during a special election (and its collapsed timeframe)
(continued...)
38

than during a general election, the State must show
that the interests justifying the restriction are
commensurately greater in the context of a special, as
opposed to a regular, election.
In support of this
argument, Hall cites Jones v. McGuffage, 921 F. Supp.
2d 888 (N.D. Ill. 2013) (Tharp, J.).
In Jones, the plaintiffs raised a claim similar to
the one Hall advances here, challenging the application
of a signature requirement during the special election
held to fill Representative Jesse Jackson, Jr.’s
congressional seat in Illinois.
For a regular
election, independent candidates were required to
submit petitions with the signatures of at least 5 % of
voters within a 90-day petitioning window. Id. at 898.
However, during the special election, independent
candidates were afforded only 62 days to collect the
same
number
of
signatures.
Id.
The
court
preliminarily enjoined the State from enforcing the law
and reduced the number of signatures required, in order
to lessen the burden, explaining that although the 5 %
requirement
was
constitutional
during
a
regular
election, “because of the increased burden [during a
special election], the state necessarily must offer
some increased justification for its decision to
truncate the signature-gathering period while leaving
all other requirements in place.” Id.
Hall’s argument (and this language drawn from
Jones) would make sense only if Hall had shown that
Alabama’s
ballot-access
scheme
for
independent
candidates during regular elections represented a
constitutional boundary-line, such that any greater
burden or any lesser justification would tip the law
into unconstitutional territory. He has not shown, and
no court has held, as much.
It is true that a
particularly burdensome requirement must be met by a
particularly
significant
justification.
It
is
nonsensical, though, to contend that each and every
(continued...)
39

Eleventh Circuit case law offers helpful direction
as to what sorts of ballot-access laws impose severe
burdens, and what sorts do not.

A ballot-access law

imposes a severe burden if it “‘freeze[s]’ the status
quo by effectively barring all candidates other than
those of the major parties” and does not “provide a
realistic means of ballot access.”

Libertarian Party

of Fla., 710 F.2d at 793 (quoting Jenness, 403 U.S. at
439).
[can]

If, however, a “reasonably diligent [] candidate
be

expected

to

satisfy

the

signature

requirements,” then the burden is not severe, and the
State’s

interests

justification.

will

generally

be

a

sufficient

Id. (quoting Storer, 415 U.S. at 742).

time a State prevails in defending a ballot-access law
by
offering
up
a
strong
justification
for
the
restriction, the constitutional floor is ratcheted
upwards.
See Libertarian Party of Fla. v. State of
Fla., 710 F.2d 790,793 (11th Cir. 1983) (recognizing
that any given signature threshold is “‘necessarily
arbitrary’” and “impossible to defend ... as either
compelled or least drastic” (citation omitted)); see
also Green v. Mortham, 155 F.3d 1332, 1339 (11th Cir.
1998) (“There is a range of fees and signature
requirements that are constitutional, and the ...
legislature is free to choose its ballot access
requirements from that constitutional spectrum.”).

40

2.

Burden Imposed

Under this framework, the court must first assess
whether the 3 % signature requirement for independent
candidates
constitutes

in
a

the

context

severe

of

burden

a

or

special
whether

election
it

is

a

reasonable, non-discriminatory regulation.
The

parties

requirement
context

of

agree

does
a

not

that
impose

regularly

Alabama’s
a

severe

scheduled

3 %

signature

burden

in

election.

the
See

Swanson, 490 F.3d at 896 (recently upholding Alabama’s
ballot-access scheme in regular elections).

Because

Alabama’s election scheme has not meaningfully changed
since the decision in Swanson, the Eleventh Circuit’s
application of the Supreme Court’s balancing test to
Alabama’s 3 % signature requirement in Swanson provides
a good starting point for the court’s analysis in this
case.
In

Swanson,

the

Eleventh

Circuit

held

that

Alabama’s 3 % signature requirement, by itself and in
combination with Alabama’s June filing deadline, did
not violate the First and Fourteenth Amendments.
41

Id.

at 903–10.

In reaching this conclusion, it focused on

Jenness v. Fortson, in which the Supreme Court upheld
Georgia’s

5 %

signature

requirement

for

regular

elections in combination with a June filing deadline.
Id.

at

906.

The

Eleventh

Circuit

reasoned

that

Alabama’s ballot-access scheme was permissible because
it

was

example,

less

restrictive

whereas

than

Georgia

Georgia’s.
required

Id.

For

prospective

independent candidates to submit the signatures of 5 %
of

all

registered

voters,

Alabama

required

signatures of only 3 % of actual voters.
relative

timeframe

for

collecting

Id.

signatures

the
The
in

Georgia, 180 days, also was significantly shorter than
the timeframe in Alabama, which the court characterized
as being “unlimited.”
for

filing

Id.

signatures

Finally, the June deadline
did

not

put

independent

candidates at a disadvantage as compared to major-party
candidates, who faced a primary election on that date.
Id.
The appellate court placed significant weight on
the

Alabama

law’s

inclusion
42

of

many

of

the

same

“alleviating factors”--factors that eased the burden of
gathering signatures--as were present in a previously
upheld

Florida

Libertarian

scheme

Party

of

for

regular

Fla.,

710

elections.

F.2d

at

See

793.

The

Swanson court particularly emphasized that the Alabama
scheme,

unlike

the

schemes

in

Florida

and

Georgia,

imposed a submission deadline but no start date, and,
therefore, no limit on the time period for gathering
signatures.
diligent

This “unlimited petition window” meant “a

independent

or

minor

party

candidate

could

meet the filing deadline by collecting signatures many
months” in advance, thus significantly lessening the
scheme’s burden.
Thus,
regular

the

Swanson, 490 F.3d at 909.

Swanson

elections

requirement
regulation

was
that

court

that
a

held

in

Alabama’s

reasonable,

fell

within

the
3 %

context

of

signature

non-discriminatory
the

“spectrum

of

constitutional legislative choices” and did not impose
a “severe burden.”

Id. at 907, 910.

The Secretary does acknowledge that the truncated
special-election schedule increased the burden imposed
43

by Alabama’s 3 % signature requirement--as compared to
the burden deemed not “severe” in Swanson--by reducing
the

time

Hall

could

gather

signatures.

However,

according to the Secretary, reducing the time Hall had
to

petition

imposed

not

necessarily

the

by

did

3 %

signature

render

the

requirement

burden
severe.

Rather, the Secretary argues that the burden imposed by
the ballot-access requirements was less severe than the
burdens at issue in Jenness and Libertarian Party of
Florida and, therefore, permissible as a matter of law.
To reach this conclusion, the Secretary urges the
court to compare the percentages of voters’ signatures
required

per

day

requirements

in

Florida

the

to

to

satisfy

Jenness

and

percentage

the

ballot-access

Libertarian
of

voters’

Party

of

signatures

required per day to get on the ballot in Alabama’s
special election.

In Jenness, the Supreme Court upheld

a regime requiring independent candidates in regular
elections to obtain signatures from 5 % of registered
voters

in

Libertarian

180

days,

Party

of

403

U.S.

Florida,
44

at
the

440-42,
Eleventh

and,

in

Circuit

upheld
regular

a

regime

requiring

elections

to

independent

obtain

candidates

signatures

from

3 %

in
of

registered voters in 188 days, 710 F.2d at 790, 794.
In this case, Hall was required to obtain signatures
from 3 % of qualified electors who voted in the last
gubernatorial

election--the

Secretary

calculates

this

to amount to 1.4 % of registered voters--in 106 days,
the amount of time the Secretary argues Hall had to
petition.

The

Secretary

argues

that,

even

taking

Hall’s contention--that he had only 56 days--as true,
the

burden

still

less

imposed

during

onerous

than

the

special

that

ballot-access law upheld in Jenness.

election

imposed

by

was
the

Thus, according

to the Secretary, the Alabama regime does not, as a
matter of law, impose a severe burden.

See Swanson,

490 F.3d at 907 (upholding a 3 % signature requirement
because a 5 % requirement, in combination with an even
earlier deadline, had been upheld in Jenness).
The Secretary’s calculation, however, ignores the
Supreme Court decision in Anderson, which requires the
court to consider cumulatively the burdens imposed by
45

the

overall

scheme,

percentages

of

and

not

signatures

mechanically

required

to

per

compare

day.

See

Anderson, 460 U.S. at 788; see also Clingman, 544 U.S.
at 607-08 (“A panoply of regulations, each apparently
defensible when considered alone, may nevertheless have
the

combined

participation

effect
and

concurring).

of

severely

competition.”)

restricting

(O’Connor,

J.,

The Secretary’s approach is precisely the

sort of “litmus-paper test” analysis the Supreme Court
prohibits.

Anderson, 460 U.S. at 789; see also id. at

789-90 (“The results of this evaluation will not be
automatic;

as

we

have

recognized,

there

is

no

substitute for the hard judgment that must be made.”
(citation and internal quotation marks omitted)).
Such
address

a

mechanical

the

elections.

often

approach

significant

interest
There

are

not

adequately

differences

between

In other words, there are 'elections,' and

there are 'elections.'
elections

does

for
and

President
voting

election

As everyone knows, there are
and

Governor,

likelihood
for

other
46

are

where

likely

statewide

voter

highest.

federal

and

state

offices

likelihood

may

where
be

voter

lower

interest

but

still

and

relatively

voting
great.

There are elections for non-statewide federal and state
offices and for local offices were voter interests and
voting

likelihood

may

significantly lower.

be,

relatively

speaking,

There are elections held on the

Tuesday after the first Monday in November, that is,
‘election day,’ when voters are most likely accustomed
to voting.

And there are elections in other months

when voters are likely much less accustomed, and thus
less likely, to vote. There are also regular elections
that recur at stated intervals fixed by law, and thus
when voters are more likely accustomed to voting, and
there are special elections, for which there are no
predetermined dates. When it comes to voter interest
and voting likelihood in a special election, therefore,
it

is

one

piggybacked

thing
onto

for
a

the

special

regular

election

election
for

a

to

be

statewide

federal or state office on ‘election day’; it is quite
another thing when it is held by itself ‘off season,’
that is, on a day other than election day.
47

The general

circumstances in which the signature requirement can
occur are many and can vary significantly.

And it is

against this backdrop that the court now considers the
specific circumstances presented.
This court must undertake an examination of the
evidence in the record, and draw a full picture, to
determine whether a reasonably diligent candidate could
have

been

expected

to

satisfy

the

3 %

signature

requirement within the petitioning time allotted for
the special election here; if not, the law imposes a
severe burden.

Applying the proper test, the court

finds that the challenged ballot-access laws, in the
context of the special election set here, did impose a
severe burden.
First,

the

3 %

signature

requirement

imposed

a

substantially heavier burden on Hall than it would have
during a regular election like the ones at issue in
Swanson and the cases it discusses.

In addition to the

truncated petitioning window, the lack of preparation
time

and

off-season

low

voter

special

as

interest
compared
48

characteristic
to

regular

of

elections

combined

to

make

it

impossible

for

a

reasonably

diligent candidate, such as Hall, to satisfy the 3 %
requirement.
To begin with, the evidence is clear that Hall was
a reasonably diligent candidate.

Within three weeks of

Representative Bonner’s announcement of his retirement,
Hall had begun to collect petition signatures (indeed,
he contacted the Secretary of State’s office to begin
the process two weeks after the announcement).
worked

“tirelessly”

requisite

number

of

for

two

months

signatures

by

to

obtain

visiting

Hall
the

numerous

businesses and soliciting at public events including
“charity

runs,

festivals,

yard

sales,

sporting events, a gun show, and others.”
(doc. no. 25-1) at 2.

concerts,
Hall Decl.

He received assistance from

social and work contacts and friends, and he and his
wife

knocked

on

about

5,000

doors.

Although

the

response rate was far from insubstantial--he obtained
one signature for every dozen houses visited--he would
have had to knock on over 71,000 doors to obtain the
required number of signatures from canvassing alone.
49

Although

Hall

placed

an

ad

for

a

paid

signature-gatherer, the only person who responded would
have charged about $ 4.00 per signature; at this rate,
it

would

have

cost

him

a

prohibitive

sum--over

$ 23,000--to get the bare minimum number of signatures.
See Hall Decl. (doc. no. 25-1) at 3.
Moreover, the amount of time Hall had to collect
signatures

was

dramatically

reduced

from

available in the regular-election context.

the

time

Although

the parties dispute how many days Hall had to petition
in the December 2013 special election, it is undisputed
that his time was not unlimited.
regularly

scheduled

election,

In contrast, in a

there

is

no

required

start date or limited period for collecting signatures,
and

such

regular

elections

are

held

at

regular

intervals with the dates and deadlines predetermined.
See Swanson, 490 F.3d at 904.

Indeed, it appears that

an independent candidate wishing to run in a regular
election
begin

a

decade

petitioning

however,

a

from

now

today.

prospective

can,
In

under

a

independent
50

Alabama

special

law,

election,

candidate

cannot

begin

collecting

announced.

signatures

until

a

vacancy

is

Further, because the Secretary of State’s

regulations state that the petition used must have the
date of the special election on it, candidates seeking
to comply with the letter of the law must wait until
the date for the special election is revealed to begin
petitioning.

In

upholding

the

3 %

signature

requirement in the context of a regular election, the
Swanson

court

singled

out

the

unlimited

petitioning

time as a particularly important factor alleviating the
burden

imposed.

490

F.3d

at

910.

The

truncated

timeframe in this special election, whether it was 56
or 106 days, materially distinguishes this case from
Swanson.9
9. Cassity,
the
Chairman
of
the
Alabama
Constitution Party, concurred that this short period
for signature-collection would make it very difficult
for an independent candidate to meet the threshold.
“Notwithstanding our great desire to run a Constitution
Party candidate in the Special Election for the seat
Mr. Bonner vacated, we ultimately concluded that the
combination of the short time frame and the number of
signatures required would make it virtually impossible
for any small party [or] independent candidate to gain
access to the ballot and certainly made it impossible
(continued...)
51

Second and relatedly, Hall’s ability to petition
was further burdened by the lack of preparation time in
advance

of

the

off-season

special

election.

The

preparation required for a successful signature drive
can

be

significant

and

take

many

months;

candidates

must raise funds, organize their campaigns, and recruit
and train campaign staff, including volunteer or paid
signature-gatherers. Prospective independent candidates
in

a

regular

petitioning

election

time--they

prepare to petition.
independent

not

also

only

have

have

unlimited

unlimited
time

to

In a special election, however,

candidates,

who

cannot

rely

on

party

infrastructure to support their efforts, do not have
“any period of time ... to meaningfully prepare for the
arduous signature drive.”
at 4.10

Winger Decl. (doc. no. 25-4)

This was certainly the case in the December

for our Party and we abandoned our efforts, based
solely on this very severe burden imposed by the
signature requirement and the short time frame (a time
frame which we could not even ascertain until the very
end of July or beginning of August).”
Cassity Decl.
(doc. no. 25-3) at 4.
10. The
Secretary
challenges
Winger’s
expert
(continued...)
52

2013 special election; Hall could not have predicted
Bonner’s

resignation

and,

therefore,

could

not

have

begun to prepare until a short time before the special
election.

He and Moser specifically stated that this

hampered their efforts to collect signatures.
Third,

Hall

signatures

because

interested

in

the

encountered
voters
election

were

difficulty
less

before

the

obtaining

aware
date

of
of

special election was announced on July 29, 2014.

or
the
Hall

testimony.
The court declines to consider Winger’s
testimony to the extent he engages in legal analysis or
draws legal conclusions.
However, the court disagrees
with the Secretary that the remainder of Winger’s
testimony fails to satisfy Federal Rule of Evidence
702. Since 1960, Winger has devoted considerable time
to researching and to writing about state election
laws.
Winger is the editor of Ballot Access News, in
which he documents the history and application of
ballot-access laws in the United States, and he is the
author of numerous articles on the topic.
Courts
around the country, including courts in this district,
have qualified Winger as an expert to testify about the
effect of ballot-access laws. See, e.g., Swanson, 490
F.3d at 898.
Based on his knowledge and experience,
Winger is certainly qualified to discuss the history of
ballot-access laws in Alabama, how they compare to
ballot-access laws in other States, and how a truncated
special-election
schedule
affects
prospective
independent candidates’ access to the ballot, both
generally and in this special election.

53

stated in his declaration that low voter interest was
particularly
campaign.
(“When

I

burdensome

early

in

his

signature

See Hall Suppl. Decl. (doc. no. 26-1) at 2
first

started

trying

to

obtain

signatures

before the Governor announced that the Special Election
would

be

general

held

and

Special

on

what

Election

dates

would

the

be

primaries

held,

I

and

found

it

especially hard to obtain signatures because people did
not seem to know about the Special Election or have any
interest in it.
further

explain

I had to explain the situation and
that

we

did

not

yet

know

when

the

election I was asking to be on [the] ballot for would
be

held.

without
Suppl.

This

led

many

any

interest

Decl.

(doc.

in
no.

people

just

signing.”);
26-2)

at

to

see
7

dismiss
also

me

Winger

(“[B]efore

the

Special Election and its dates were announced by the
Governor,

gathering

ballot

signatures

for

an

independent candidate in Mr. Hall’s situation would be
much more difficult because of the lack of interest and
focus among citizens in general.”).
have

noted,

voter

apathy
54

is

high

As other courts
months

before

a

primary election and, especially for independent and
minor party candidates, support may not “coalesce until
comparatively late in the cycle.”

Clingman, 544 U.S.

at 607 (citing Anderson, 450 U.S. at 791–92).
apathy

may

impose

less

of

a

burden

in

a

Voter
regular

election, where independent candidates have unlimited
time to petition.

However, in an off-season special

election, where prospective candidates are under time
pressure to collect signatures, the lack of interest or
awareness

early

in

a

signature

drive

is

especially

burdensome.
Finally, the court looks to history--whether any
independent
enough

candidates

signatures

to

have

succeeded

appear

on

a

in

gathering

special

election

ballot--as an indicator of whether the 3 % requirement
“‘freeze[s]’ the status quo by effectively barring all
candidates other than those of the major parties” when
applied in a special election.

See Libertarian Party

of Fla., 710 F.2d at 793 (quoting Jenness, 403 U.S. at
439).

“Past

experience

always

unerring

guide:

will
it
55

be

will

a
be

helpful,
one

if

thing

not
if

independent candidates have qualified with regularity
and

quite

a

different

matter

if

they

have

not.”

Storer, 415 U.S. at 742.
The

ballot-access

history

here

supports

the

conclusion that the 3 % requirement imposes a severe
burden in the context of special elections.

While an

independent or minor-party candidate has been able to
comply

with

the

signature

requirement

in

general

elections in the First Congressional District in the
past,

no

signature

independent
and

deadline

candidate
requirement

has
in

met

Alabama’s

either

of

the

last two special congressional elections, including in
1989,

when

the

signature

requirement

was

only

1 %.

Indeed, since ballots were first printed by the State
in 1893, no independent candidate has ever appeared on
the ballot in any congressional special election in the
State.11

Winger Second Suppl. Decl. (doc. no. 29-1) at

11. Hall also brings the court’s attention to the
ballot-access laws of Alabama’s neighboring States.
According to Winger, in a special election for
Congress, Georgia and Florida require no signatures for
independent
candidates,
and
in
Mississippi
and
(continued...)
56

1-3.
The Secretary has not offered any evidence to rebut
the testimony submitted by Hall demonstrating that the
burden
severe.

of

Alabama’s

3 %

signature

requirement

was

All the Secretary offers is the suggestion,

unsupported by any evidence, that Hall’s inability to
obtain

the

consistent

requisite
with

the

number

of

signatures

possibility

“significant modicum of support.”

that

he

is

also

lacked

a

State Defs.’ Mot. to

Dismiss or for Summ. J. (doc. no. 23) at 27 (quoting
Jenness, 403 U.S. at 442).
The

court

does

not

agree.

Hall’s

efforts

were

futile not because he was a particularly unappealing
candidate--indeed,

he

was

able

to

obtain

over

2,000

Tennessee, only 25 signatures are required.
Winger
Decl. (doc. no. 25-4) at 4.
While the contrast is
stark, the Eleventh Circuit has repeatedly rejected the
argument that the ballot-access regimes of other States
are relevant when inquiring into the constitutionality
of the regime at issue.
See, e.g., Swanson, 490 F.3d
at 910 (disregarding Winger’s testimony that Alabama
has the “second toughest ballot access restrictions”
among all States in the 2002 election, because “the
legislative choices of other states are irrelevant”
(citing Libertarian Party of Fla., 710 F.2d at 794)).

57

signatures--but because a truncated petitioning window,
lack

of

preparation

time,

and

low

voter

interest

combined to create a severely burdensome ballot-access
scheme

offering

reasonably

diligent

independent

candidates no realistic means of ballot access.
Because the “Constitution requires that access to
the

electorate

be

real,

not

‘merely

theoretical,’”

requirements for ballot access “demanded [by the State]
may not be so excessive or impractical as to be in
reality

a

exclude

parties

ballot.”

mere

device
with

to

always,

significant

or

almost

support

always,

from

the

Party of Tex. v. White, 415 U.S. 767, 783

(1974) (quoting Jenness, 403 U.S. at 439).

In light of

the evidence Hall has presented--that he was diligent
in attempting to gather signatures, but unsuccessful in
light of the dramatically shortened timeframe, the lack
of

preparation

interest

time,

before

announced--the

the

court

and
date

low
of

concludes

voter

awareness

and

the

election

was

that

Alabama’s

3 %

signature requirement, in the context of an off-season
special election, imposes a severe burden, and, indeed,
58

does not afford independent candidates “real” access to
the ballot.
3.

The State’s Interests

Having found the burden on Hall’s constitutional
rights

to

regulation

be
in

severe,
the

the

context

court
of

can

special

uphold
elections

the
as

presented here only if it is “narrowly tailored and
advance[s] a compelling state interest.”
U.S.

at

358.

interests

as

requirement

The

Secretary

justification

(and

advances
for

accompanying

the

Timmons, 520
the

following

3 %

deadline

signature

for

petition

submission) in the context of special elections: (1)
ensuring

that

independent

and

minor-party

candidates

have a significant modicum of support, (2) eliminating
party
fair

splintering
treatment

and

between

factionalism,

(3)

encouraging

independent

and

minor-party

candidates and major party candidates, and (4) having
sufficient time to verify signatures.
The

interests

put

undoubtedly important.
912.

forth

by

the

Secretary

are

See Swanson, 490 F.3d at 910–

However, the court need not decide whether these
59

interests are ‘compelling’ because, even if they are,
the

Secretary

requirement

has

is

interests.

not

shown

narrowly

that

tailored

the

3 %

signature

to

advance

these

The Secretary need not prove that it would

be impossible to serve these interests without the 3 %
signature requirement; however, he must justify “the
extent to which [these] interests make it necessary to
burden the plaintiff’s rights.”

Anderson, 460 U.S. at

789; see also Munro, 479 U.S. at 194-96.
The Secretary has failed to provide any evidence or
explanation

as

to

why

requirement

in

the

applying

context

of

the

3 %

special

signature

elections

as

presented here is necessary to achieve the interests
articulated.

Although he need not prove that this is

the precise threshold below which the State’s interests
would not be served, see Libertarian Party of Fla., 710
F.2d at 793, he has offered no evidence to suggest that
even

dramatically

lower

thresholds

(such

as

the

1 %

signature requirement previously in place) would not
adequately have served these interests during a special
election.

Because he has failed to meet his burden,
60

Fulani, 973 F.2d at 1544, the court finds that the
ballot-access laws are not narrowly tailored to advance
a compelling interest.
Thus, summary judgment will be granted in favor of
Hall on his First and Fourteenth Amendment claim.

C.

Equal Protection

Hall also asserts that his constitutional right to
equal

protection

was

violated

by

the

Secretary’s

actions, although he gives this argument short shrift
in

his

briefing.

In

the

Eleventh

Circuit,

“equal

protection challenges to state ballot-access laws are
considered

under

the

Anderson

test”--that

is,

“a

balancing test that ranges from strict scrutiny to a
rational-basis analysis, depending” on whether or not
the burden imposed by the laws is severe.
F.2d at 1543.

Fulani, 973

As explained below, Hall has failed to

show the existence of a genuine dispute as to whether
his right to equal protection was violated.
It is well established that providing ballot access
to

political

parties

through
61

the

primary-election

process and to independent candidates through signature
petitions does not violate the Equal Protection Clause
of the Fourteenth Amendment.
42.

Rather,

such

laws

Jenness, 403 U.S. at 440–

provide

two

constitutionally

permissible alternative means of ballot access; neither
method “can be assumed to be inherently more burdensome
than the other.”

Id. at 441.

Perhaps in light of this case law, Hall does not
appear to argue that the shortened timeframe rendered
the

ballot-access

process

for

independent

candidates

inherently more burdensome than that available to party
candidates.

Instead, he points to discrete actions by

the Secretary that he contends discriminated in favor
of

political

candidates.

parties
Hall

and

contends

against
that

the

independent
Secretary

discriminated against independent candidates, first, by
allowing Democratic candidates to be certified one hour
past their deadline, and, second, by creating a special
“Instant Primary Ballot” for UOCAVA voters.
Hall first notes that the Secretary allowed the
Democratic Party to certify candidates one hour after
62

the deadline had passed, but did not agree to reduce
the

number

candidates
reasonably,

of
to

signatures

needed

qualify.

that

he

The

made

for

independent

Secretary

the

exception

explained,
for

the

Democratic Party because the party head had not been
informed

of

the

exact

deadline.

In

any

case,

the

extension the Democratic Party received was de minimis,
and

Hall

nowhere

suggests

that

such

marginal

flexibility was denied to, or would have benefited, any
independent candidate.

If he had been a few signatures

short and was denied an extra hour to gather them,
Hall’s equal protection argument might hold more water.
Here, differential treatment (if indeed there was any)
did not impose a significant burden and had a rational
basis.

Indeed, the record also demonstrates that the

Secretary’s office made an accommodation for Hall as
well by providing him with a unique signature petition
header, instead of requiring him to submit petitions
with the election date on them.
The

creation

of

the

“Instant

Primary

Ballots”

likewise did not impermissibly discriminate in favor of
63

political party candidates.

These absentee ballots,

sent to military and overseas voters, had to list the
names of all Republican candidates participating in the
primary runoff because federal law required the ballots
to be mailed before the winner of the runoff was known.
Although

the

candidates

inclusion

on

the

of

ballot

multiple

undoubtedly

Republican
placed

the

eventual party nominee at a significant disadvantage,
it

is

true

obtained,

in

independent

that
a

the

eventual

technical

candidates

in

losers

sense,
that

some
they

of

the

runoff

advantage
were

over

allowed

to

appear on the ballot despite not being their party’s
nominee and without submitting the petition signatures
required of an independent candidate.

In a practical

sense, however, the eventual losers of the runoff were
not given a free pass; they had already demonstrated a
(very) significant modicum of support by receiving a
sufficient share of the votes in the initial primary to
warrant participation in the runoff.
If mere affiliation with a major party ordinarily
earned a candidate other than that party’s nominee a
64

place

on

the

UOCAVA

ballot,

that

significant equal protection concerns.

might

raise

The court need

not decide whether the burden imposed on independent
candidates in such a case would be severe, however,
because

in

the

context

of

the

primary

runoff,

the

actions of the Secretary were unquestionably justified
and would pass strict scrutiny.

Including Republican

runoff candidates on the instant ballot permitted the
State

to

comply

with

federal

law.

Had

all

the

Republican candidates participating in the runoff not
been included, military and overseas voters wishing to
cast

their

have

had

election

votes
to

for

write

the
in

administrators

numerous

write-in

doubtful

that

ballots

the

Republican

that

candidate’s

would
by

federal

candidate

have

hand).
court

name

had

to

Indeed,

then

tasked

would
(and
count
it

is

with

protecting the UOCAVA rights of military and overseas
votes would have accepted this alternative.
Other

than

by

applying

the

3 %

signature

requirement, there is no indication that the Secretary
acted in an unconstitutional manner towards independent
65

candidates in general or towards Hall in particular.
Thus, summary judgment will be granted in favor of the
Secretary on Hall’s equal protection claim.

IV.

Appropriate Relief

Hall requests a declaratory judgment that the 3 %
signature requirement for independent candidates cannot
constitutionally

be

enforced

with

respect

to

future

off-season special elections to seats in the U.S. House
of

Representatives.

prohibiting

the

He

also

Secretary

from

seeks

an

enforcing

injunction
the

3

%

requirement.
According to his filings, Hall seeks both facial
and as-applied relief.
extending
and

not

to

all

just

Facial relief--that is, relief

prospective
to

independent

Hall--is

candidates,

appropriate

Nevertheless, that facial relief is limited.

here.

The court

does not hold that the 3 % signature requirement can
never be enforced, only that it cannot be enforced in
the context of an off-season special election occurring
on

a

similarly

limited
66

timeframe.

Given

the

Secretary’s

concession

at

oral

argument

that,

typically, off-season special elections will be held on
an even shorter timeline than occurred in the December
2013 election in which Hall attempted to stand as a
candidate, this may prove to be a distinction without a
difference.
33:18-23.
election
lead

See

Mot.

Hr’g

Tr.

(doc.

no.

71)

at

However, the court recognizes that a special
could

time,

and

theoretically
that

this

be

held

might

with

alter

much

the

more

court’s

analysis as to the severity of the burden imposed on
independent candidates seeking access to the ballot.
(Nevertheless, it is evident that this is a problem
that

should

be

addressed

legislatively,

either

to

accommodate the specific but typical off-season special
election

presented

reasonably

here

conceivable

or,

types

more
of

generally,

special

all

elections,

including the one here.)
In

the

court’s

view,

declaratory

relief

is

sufficient, in light of the court’s confidence that the
Secretary will act accordingly.

67

An appropriate judgment will be entered.
DONE, this the 30th day of September, 2016.
/s/ Myron H. Thompson
UNITED STATES DISTRICT JUDGE