Mah v. Board of County Commissioners of Shawnee County, Kansas et al

Filing 37

MEMORANDUM AND ORDER granting 31 intervenor-defendant's Motion to Dismiss for Failure to State a Claim. Signed by District Judge J. Thomas Marten on 7/31/13. (mss)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
ANN MAH,
Plaintiff,
v.

Case No. 12-4148-JTM

BOARD OF COUNTY
COMMISSIONERS of SHAWNEE
COUNTY KANSAS, et al.,
Defendants.
MEMORANDUM AND ORDER
The following matter comes to the court upon intervenor-defendant Kris
Kobach’s Motion to Dismiss (Dkt. 31). Having considered the briefs, the court grants the
Motion.
I. Factual Background
On November 6, 2012, Representative Ann Mah was a candidate for re-election
to the Kansas House of Representatives, 54th District, which includes parts of Douglas,
Osage, and Shawnee County. The initial vote count was quite close and Representative
Mah made a Kansas Open Records Act request seeking the names of individuals who
cast provisional ballots in her race. The Board of County Commissioners of Shawnee
County denied the request based on KAN. STAT. ANN. § 25-2422, which prohibited
disclosure of the contents of ballots “except as ordered by a court of competent
jurisdiction.” Representative Mah petitioned Shawnee County District Court, which she
argued to be a “court of competent jurisdiction.” The state court ordered the Shawnee

County Election Office to disclose to the petitioner “the names of all voters who cast
provisional ballots for the 54th House District in Shawnee County . . . by 6:00 p.m. on
Friday, November 9, 2012.” The court noted that the petitioner was not requesting
information regarding the content of any ballot or the reason voters cast a provisional
ballot. On the same afternoon, Secretary of State Kris Kobach filed a Motion for
Temporary Restraining Order in the U.S. District Court, District of Kansas, asking the
court to prevent the disclosure of the names of the provisional voters. The Secretary
argued that the disclosure of these names would be in violation of 42 U.S.C.
§ 15482(a)(5)(B). The Shawnee County Election Commission disclosed the names before
6:00 p.m. on November 9, as the court had ordered.
After expedited hearings, the court denied the Secretary of State’s Motion for
Temporary Restraining Order on November 14 (Dkt. 14), ruling that § 15482(a)(5)(B)
does not protect the names of the voters casting provisional ballots. However, KAN.
STAT. ANN. § 25-2422 was amended on April 16, 2013, and the amendments became
effective July 1, 2013. The statute now prohibits disclosing “any ballot or the manner in
which the ballot has been voted, whether cast in a regular or provisional manner, or the
name of any voter who cast such ballot.” KAN. STAT. ANN. § 25-2422(a)(1). The statute
also mandates that “[t]he name of any voter who has cast a ballot shall not be disclosed
from the time the ballot is cast until the final canvass of the election by the county board
of canvassers.” KAN. STAT. ANN. § 25-2422(b).
The Secretary of State now moves to dismiss this case under Rule 12 of the
Federal Rules of Civil Procedure, claiming that the amended statute renders the issue
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moot. Mah responds that this matter falls under an exception to the mootness doctrine
because the issue is capable of being repeated, yet evading review. Mah alleges that
although KAN. STAT. ANN. § 25-2422 was amended, other scenarios may arise in which
the names of voters casting provisional ballots may be at issue. Specifically,
Representative Mah asserts that a candidate could request the copies of poll books,
which contain the voter’s signature and an indication if the voter cast a provisional
ballot, and this act might also be challenged under the federal law at issue in this case.
II. Legal Standard
Under Article III of the U.S. Constitution, federal courts are courts of limited
jurisdiction and may only adjudicate actual, ongoing cases or controversies. Unified Sch.
Dist. No. 259 v. Kan. Advocacy & Protective Servs., Inc., 2005 WL 3655910 (D. Kan. Dec. 11,
2005) (citing Lewis v. Cont'l Bank Corp., 494 U.S. 472, 477–78 (1990)). This requirement
exists throughout all stages of the case and federal courts may not decide questions that
do not affect the rights of the litigants in the case before it. Lewis, 494 U.S. at 477. Lewis,
494 U.S. at 477. The parties must continue to have a personal stake in the outcome of the
suit. Spencer v. Kemna, 523 U.S. 1, 7 (1998) (internal citations omitted). To invoke federal
court jurisdiction, the litigant must have suffered, or be threatened with, an actual
injury traceable to the defendant that may be redressed by a favorable judicial decision.
R.M. Inv. Co. v. U.S. Forest Serv., 511 F.3d 1103, 1107 (10th Cir. 2007) (citing Lewis, 494
U.S. at 477–78). “A case becomes moot when events occur which resolve the
controversy underlying it.” Marrie v. Nickels, 70 F. Supp. 2d 1252, 1259 (D. Kan. 1999)
(citing United States v. Dominguez–Carmona, 166 F.3d 1052, 1055 (10th Cir. 1999)). When a
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case is moot, a court decision does not resolve the parties’ issue and the decision
therefore constitutes a constitutionally impermissible advisory opinion. Id. When a
statute is modified to resolve an issue raised by pending litigation, the court may
determine that the dispute is moot. 13C CHARLES ALAN WRIGHT, ARTHUR R. MILLER &
EDWARD H. COOPER, FEDERAL PRACTICE & PROCEDURE § 3533.6 (3d ed. 2013).
A case will not be dismissed as moot if the issue is deemed a wrong that is
capable of repetition yet evading review. R.M. Inv. Co., 511 F.3d at 1107 (internal citation
omitted). This narrow exception applies where (1) the challenged action is too short to
be fully litigated prior to the action’s expiration, and (2) there is a reasonable
expectation that the same complaining party will again be subject to the same action.
Booth v. Barton Cnty., 157 F. Supp. 2d 1178, 1182 (D. Kan. 2001) (citing McAlpine v.
Thompson, 187 F.3d 1213, 1216 (10th Cir. 1999)). The court will not assume that the party
seeking relief will repeat her conduct so that she is again affected by the objectionable
action. McAlpine, 187 F.3d at 1217 (citing Honig v. Doe, 484 U.S. 305, 320 (1988)). Instead,
the capable-of-repetition exception will only apply when the party seeking relief can
make a reasonable showing that she will again be subjected to the offensive action. Id.
(citing City of Los Angeles v. Lyons, 461 U.S. 95, 109 (1983)).
III. Analysis
The capable-of-repetition doctrine may be applied in election regulation cases
because the act at issue generally expires before the matter is fully litigated. See Fed.
Election Comm'n v. Wis. Right To Life, Inc., 551 U.S. 449, 463 (2007); Davis v. Fed. Election
Comm'n, 554 U.S. 724, 736 (2008). There is no question that here, the time-sensitive
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request for the names of provisional voters meets this first requirement. However, Mah
does not present a reasonable expectation that she will face this issue again.
A party has a reasonable expectation that she will be the subject of the same
action when she can establish a credible claim that her future action will be materially
similar to the current action and that she will likely be subject to the same adverse
action creating the controversy. Wisconsin Right To Life, 551 U.S. at 463. In Wisconsin
Right To Life, suit was filed against the Federal Election Commission challenging the
constitutionality of a black-out period of campaign advertising. 551 U.S. at 457–461. The
U.S. Supreme Court determined that although the campaign black-out period had
ended, the case was excluded from the mootness doctrine because Wisconsin Right to
Life credibly claimed that its future materially similar ads would run within another
blackout period, and the FEC would likely prohibit such advertising again. Id. at 463.
In Davis v. Fed. Election Comm'n, the Court determined that although the election
and campaign reporting periods had already passed, the issue was not moot. 554 U.S. at
736. In that case, Davis was a self-financed candidate subject to certain campaign
finance disclosures, and he filed suit against the FEC to challenge those disclosures. Id.
at 731–732. Although the issue stretched beyond the election date, Davis publicly
announced his intention to run again as a self-financed candidate. Id. at 736. The Court
determined that the campaign finance requirement was not a moot issue because Davis
would again run as a self-financed candidate and be required to make the same
campaign disclosures at issue. Id.

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Here, Mah has not indicated that she may once again be subjected to the same
actions prohibiting her from receiving the names of provisional voters. First, she makes
no claim that she will again run for office. Likewise, she does not assert that she will
attempt to request the names of provisional voters shortly after the election but prior to
the final canvass. Indeed, if she runs again for office, she may win or lose by a wide
margin and, therefore, would have no practical need to request the names of the
provisional voters. Although Mah claims that future candidates may face the issues
presented in this case, “[a]n allegation of collateral consequences in a separate lawsuit
does not fall within any exception to the mootness doctrine.” Citizens for Responsible
Gov't State Political Action Comm. v. Davidson, 236 F.3d 1174, 1184 (10th Cir. 2000)
(internal quotations omitted). This court may not decide issues that do not affect the
rights of the litigants in the case before it. Lewis, 494 U.S. at 477.
Second, the newly amended KAN. STAT. ANN. § 25-2422(b) prevents the names of
provisional voters from being disclosed until the final canvass of the county board of
canvassers. This change in the law resolves the underlying controversy, rendering it
moot. See Marrie, 70 F. Supp. 2d at 1259. Even if Mah were to run for office once more
and attempt to request the names of provisional voters prior to the final canvass, the
plain language of the statute prohibits such action. Additionally, the legislative history
indicates that the amendments to KAN. STAT. ANN. § 25-2422(b) were proposed to
answer the question raised by this pending litigation. Second Conf. Comm. Rep. Brief,
S.B. No. 122 (2013). The amended statute renders this issue moot. 13C WRIGHT, MILLER
& COOPER, FEDERAL PRACTICE & PROCEDURE § 3533.6 (3d ed. 2013).
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IV. Conclusion
The court finds this matter moot due to the recent amendments to KAN. STAT.
ANN. § 25-2422. The plaintiff has not established that this matter is entitled to any
mootness exception because there is not a reasonable expectation that she will be subject
to the same action at a later date. The defendant-intervenor’s motion to dismiss is
granted.
IT IS THEREFORE ORDERED this 31st day of July, 2013, that the intervenordefendant’s Motion to Dismiss (Dkt. 31) is granted.

s/ J. Thomas Marten
J. THOMAS MARTEN, JUDGE

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