PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
HERB LUX; STEPHEN CRUSE;
ANDREW MIKEL; EUGENE FORET,
Plaintiffs-Appellants,
v.
CHARLES E. JUDD; KIMBERLY T. No. 10-1997
BOWERS; DONALD PALMER,
members of the Virginia State
Board of Elections, in their official
capacities,
Defendants-Appellees.
Appeal from the United States District Court
for the Eastern District of Virginia, at Richmond.
Henry E. Hudson, District Judge.
(3:10-cv-00482-HEH)
Argued: May 12, 2011
Decided: July 6, 2011
Before DUNCAN and AGEE, Circuit Judges, and
David C. NORTON, Chief United States District Judge for
the District of South Carolina, sitting by designation.
Affirmed in part, reversed in part, and remanded by published
opinion. Judge Duncan wrote the opinion, in which Judge
Agee and Judge Norton joined.
2 LUX v. JUDD
COUNSEL
ARGUED: Jared Haynie, BOPP, COLESON & BOSTROM,
Terre Haute, Indiana, for Appellants. Earle Duncan Getchell,
Jr., OFFICE OF THE ATTORNEY GENERAL OF VIR-
GINIA, Richmond, Virginia, for Appellees. ON BRIEF:
James Bopp, Jr., Scott F. Bieniek, Josiah Neeley, BOPP,
COLESON & BOSTROM, Terre Haute, Indiana, for Appel-
lants. Kenneth T. Cuccinelli, II, Attorney General of Virginia,
Stephen M. Hall, Assistant Attorney General, Charles E.
James, Jr., Chief Deputy Attorney General, Wesley G. Rus-
sell, Jr., Deputy Attorney General, OFFICE OF THE
ATTORNEY GENERAL OF VIRGINIA, Richmond, Vir-
ginia, for Appellees.
OPINION
DUNCAN, Circuit Judge:
This case arises out of Herb Lux’s unsuccessful attempt to
run for Congress in Virginia’s Seventh Congressional District.
In 2010, Lux’s application for ballot placement as an indepen-
dent candidate was denied due to his failure to comply with
the state’s requirement that each petition signature in support
of his candidacy be witnessed by a district resident. Lux, and
his supporters Stephen Cruse, Andrew Mikel, and Eugene
Foret (collectively "plaintiffs"), sued representatives of the
Virginia State Board of Elections in their official capacities
(collectively "the Board"), urging that the residency require-
ment violated their First and Fourteenth Amendment rights.
The district court dismissed their complaint, relying in large
part on our analysis in Libertarian Party of Virginia v. Davis,
766 F.2d 865 (4th Cir. 1985). For the reasons described
below, we hold that the limited rationale underlying Davis has
been superseded by subsequent Supreme Court decisions, and
remand for further proceedings.
LUX v. JUDD 3
I.
A.
We briefly review the undisputed facts. Under Virginia
law, prospective independent candidates for the U.S. House of
Representatives ("the House") must file declarations of candi-
dacy with the State Board of Elections. See Va. Code Ann.
§ 24.2-505(A). Such candidates must also file petitions in
support of their inclusion on the ballot signed by 1000 "quali-
fied voters."1 Id. at § 24.2-506. At issue here is section 24.2-
506’s additional requirement that each of those signatures be
"witnessed by a person who is himself a qualified voter, or
qualified to register to vote, for the office for which he is cir-
culating the petition." Id.
In 2010, Lux tried to run as an independent candidate for
Virginia’s Seventh Congressional District’s House seat. Lux
is a Virginia resident, but did not live in the Seventh District.
As a nonresident of the Seventh District, Lux was not quali-
fied to vote in that district’s House election and was conse-
quently barred by section 24.2-506 from witnessing petition
signatures in support of his candidacy.2
Lux received and read a "candidate packet" that explained
the "qualified voter" requirement for petition witnesses. J.A.
196. However, due to "confusion" on his part, he nevertheless
personally circulated and witnessed sixty-three petitions in
1
With certain exceptions not relevant here, the Code of Virginia defines
a "qualified voter" as one who "is entitled to vote pursuant to the Constitu-
tion of Virginia and who is (i) 18 years of age on or before the day of the
election . . . (ii) a resident of the Commonwealth and of the precinct in
which he offers to vote, and (iii) registered to vote." Va. Code Ann.
§ 24.2-101.
2
Lux’s nonresident status did not affect his constitutional eligibility for
the district’s House seat, see U.S. Const. Art. I. § 2, nor does the Board
otherwise contest his statutory or constitutional qualifications for the
office.
4 LUX v. JUDD
support of his candidacy, and collected approximately 1063
signatures. Id. District residents—including Cruse, Mikel, and
Foret—circulated and witnessed an additional fifteen candi-
date petitions on Lux’s behalf, and collected a total of about
151 signatures. Lux submitted all seventy-eight petitions, as
well as his timely declaration of candidacy, to the State Board
of Elections on June 8, 2010.
On June 21, the Board sent Lux a letter informing him that,
because he did not live in the Seventh District, it would not
count any petition signatures that he had personally collected
and witnessed. The letter further noted that even if all the
remaining signatures witnessed by district residents were veri-
fied, Lux would still not meet the 1000-signature threshold
necessary to appear on the ballot. Two days later, the Board
issued a final ruling confirming that, with the petitions Lux
had witnessed excluded, he had failed to provide sufficient
signatures to qualify as a House candidate from Virginia’s
Seventh District.
B.
On July 13, 2010, plaintiffs sued the Board in the federal
district court for the Eastern District of Virginia. Their one-
count complaint alleged that section 24.2-506’s district-
residency requirement for petition witnesses violated their
rights to freedom of speech and association under the First
and Fourteenth Amendments. Plaintiffs sought a declaration
that the residency requirement was unconstitutional. They
also asked for preliminary and permanent injunctive relief
against the Board’s enforcement of the requirement, as well
as attorney’s fees.
The Board opposed plaintiffs’ request for a preliminary
injunction and, in early August, moved to dismiss their com-
plaint under Fed. R. Civ. P. 12(b)(6). Recognizing the time
constraints posed by the looming filing deadline for the
November election, the parties consolidated their motions for
LUX v. JUDD 5
preliminary relief and disposition. In late August 2010, the
district court denied plaintiffs’ motion for a preliminary
injunction and granted the Board’s motion to dismiss.
In a comprehensive memorandum decision that relied in
significant part on our decision in Davis, the district court
held that plaintiffs had failed to state a plausible claim for
relief. The district court focused in particular on Davis’s anal-
ysis of a statute that established ballot-access conditions in
presidential elections for organizations that did not qualify as
political parties under Virginia law; among these conditions
was a residency requirement for petition witnesses similar to
the provision at issue here. As the district court explained,
Davis held that that requirement passed constitutional muster,
as it served the "important purpose" of ensuring a threshold
level of popular support, by mandating at least one in-district
"activist" willing to "shoulder the burden of witnessing signa-
tures." J.A. 235 (quoting Davis, 766 F.2d at 869-70). Citing,
inter alia, "the weight of [this circuit’s] contrary jurispru-
dence," the district court found that plaintiffs could not plausi-
bly argue that the residency requirement violated their
constitutional rights. J.A. 238.
On August 27, 2010, plaintiffs timely appealed. They sub-
sequently sought injunctive relief, which we denied on Sep-
tember 15, 2010.
Plaintiffs then applied for an injunction from the U.S.
Supreme Court. On September 30, 2010, Chief Justice Rob-
erts, in his capacity as Circuit Justice for this circuit, declined
to grant relief. See Lux v. Rodrigues, 131 S. Ct. 5, 7 (2010)
(Roberts, Circuit Justice). Chief Justice Roberts acknowl-
edged that plaintiffs "may very well be correct" that Davis
had been undermined by subsequent Supreme Court deci-
sions. Id. at 6. However, given that at least one of the
Supreme Court cases on which Lux relied differentiated
between the registration requirements before it and the sort of
residency requirement applied here, the Chief Justice found
6 LUX v. JUDD
that Lux had not satisfied his burden of showing a right to
relief that was "indisputably clear." Id. at 6-7.
II.
Against that background, we turn to consideration of the
arguments presented. As a threshold matter, the Board raises
two distinct jurisdictional challenges. First, it contends that
Cruse, Mikel, and Foret lack standing, as they cannot show a
cognizable injury. Second, it urges that Lux’s own claim has
been rendered moot. We consider each argument in turn.
A.
Article III standing requires plaintiffs to demonstrate, inter
alia, "an ‘injury in fact’ that is (a) concrete and particularized
and (b) actual or imminent, not conjectural or hypothetical."
Doe v. Obama, 631 F.3d 157, 160 (4th Cir. 2011). The Board
contends that Cruse, Mikel, and Foret have not suffered a cog-
nizable injury. It specifically argues that, as district residents,
the three coplaintiffs were free to circulate petitions on Lux’s
behalf and, ultimately, to vote for him as a write-in candidate.
Plaintiffs respond that the Board’s refusal to count the peti-
tions Lux had witnessed harmed all three coplaintiffs, as they
"had worked and associated together for the very purpose of
helping their preferred candidate appear on the ballot." Reply
Br. at 11.
While we are not unsympathetic to Lux’s supporters’ frus-
tration, they cannot show they suffered any cognizable harm
arising out of the residency requirement. The Board duly
counted the signatures collected by Cruse, Mikel, and Foret,
and section 24.2-506 did not prevent them from casting write-
in votes for Lux in the congressional election. On these facts,
Lux’s coplaintiffs’ "abstract, generalized interest" in seeing
his name on the ballot cannot "meet the requirement that an
injury be concrete and particularized." Bishop v. Bartlett, 575
F.3d 419, 424 (4th Cir. 2009); see also 13A C.A. Wright, et
LUX v. JUDD 7
al., Federal Practice & Procedure § 3531.4, at 193 (3d ed.
2008) (observing that "[t]he purest reason to deny" voter
standing "is that the plaintiff is not able to show an injury to
the voter interest, however much the plaintiff may feel
offended by the challenged practice").
We are also unpersuaded by plaintiffs’ argument that
Cruse, Mikel, and Foret have third-party standing to advance
the First Amendment rights of others. Plaintiffs are correct
that "courts sometimes permit litigants to challenge a statute
‘not because their own rights of free expression are violated,
but because of a judicial prediction or assumption that the
statute’s very existence may cause others not before the court
to refrain from constitutionally protected speech or expres-
sion.’" Burke v. City of Charleston, 139 F.3d 401, 405 n.2
(4th Cir. 1998) (quoting Broadrick v. Oklahoma, 413 U.S.
601, 612 (1973)). However, Lux’s own challenge to the resi-
dency requirement thoroughly undermines plaintiffs’ asser-
tion that those potentially harmed by the statute lack incentive
or initiative to contest it directly. Indeed, as plaintiffs’ counsel
recognized at oral argument, the participation of Lux’s
coplaintiffs in this litigation has no practical impact on the
relief sought. In short, absent a concrete injury or a valid basis
to assert third-party rights, we agree that Cruse, Mikel, and
Foret lack standing to advance their claims.
B.
The Board next asserts that, with the 2010 election long
past, Lux’s own claim is moot.3 Specifically, it argues that it
is highly unlikely that Lux will mount another independent
run for Congress in a district in which he does not live and opt
to witness his own petitions. The Board elaborates that Vir-
ginia is scheduled to undergo redistricting in 2011, which, it
3
Given our determination that plaintiffs Cruse, Mikel, and Foret lack
standing, we do not address the Board’s argument that their claims are
also moot.
8 LUX v. JUDD
claims, renders the prospect of Lux living outside of the Sev-
enth Congressional District during the next congressional
election yet more remote. The Board’s claim lacks merit.
A case is moot "when the issues presented are no longer
‘live’ or the parties lack a legally cognizable interest in the
outcome." Simmons v. United Mortg. & Loan Inv., LLC, 634
F.3d 754, 763 (4th Cir. 2011). There is, however, a well-
established mootness exception for conduct "capable of repe-
tition, yet evading review." Fed. Election Comm’n v. Wisc.
Right to Life, Inc., 551 U.S. 449, 462 (2007); see also Miller
v. Brown, 503 F.3d 360, 364 n.5 (4th Cir. 2007). This excep-
tion applies when "(1) the challenged action is in its duration
too short to be fully litigated prior to cessation or expiration;
and (2) there is a reasonable expectation that the same com-
plaining party will be subject to the same action again." Wisc.
Right to Life, Inc., 551 U.S. at 462. Election-related disputes
qualify as "capable of repetition" when "there is a reasonable
expectation that the challenged provisions will be applied
against the plaintiffs again during future election cycles." N.C.
Right to Life Comm. Fund for Indep. Political Expenditures
v. Leake, 524 F.3d 427, 435 (4th Cir. 2008). There is clearly
such an expectation here.
Plaintiffs’ complaint explicitly stated that Lux is "consider-
ing running in a future election for the United State[s] House
of Representatives in Virginia’s Seventh Congressional Dis-
trict." J.A. 12; cf. Leake, 524 F.3d at 435 (rejecting the propo-
sition that a former candidate qualifies for the exception "only
if the ex-candidate specifically alleges an intent to run again
in a future election"). The complaint also confirmed Lux’s
intent "to circulate his own candidate petitions" and desire to
"recruit other petition circulators, including individuals who
live outside Virginia’s Seventh Congressional District [how-
ever it may then be configured], to circulate petitions on his
behalf." J.A. 12. These statements support a reasonable
expectation that Lux will be adversely affected by the resi-
dency requirement in future elections whether or not he lives
LUX v. JUDD 9
in the Seventh District. At the very least, there is a real possi-
bility that section 24.2-506 will prevent Lux from recruiting
preferred petition circulators. As a result, Lux’s challenge fits
comfortably into the mootness exception for conduct capable
of repetition yet evading review.
III.
We proceed to the merits of Lux’s argument that the court
erred by relying on Davis to dismiss his challenge to the dis-
trict residency requirement. We review the grant of a motion
to dismiss de novo, mindful that to survive such a motion, a
complaint must "raise a right to relief" that is more than
"speculative." Coleman v. Md. Court of Appeals, 626 F.3d
187, 190 (4th Cir. 2010). Although the First Amendment pro-
tects many election-related activities, "it is also clear that
States may, and inevitably must, enact reasonable regulations
of parties, elections, and ballots to reduce election- and
campaign-related disorder." Timmons v. Twin Cities Area
New Party, 520 U.S. 351, 358 (1997); see also Buckley v. Am.
Constitutional Law Found., Inc., 525 U.S. 182, 191 (1999)
(emphasizing states’ "considerable leeway . . . with respect to
election processes"). When assessing the reasonableness of a
particular regulation, the salient question is whether "the
strength of the governmental interest . . . reflect[s] the serious-
ness of the actual burden on First Amendment rights." John
Doe No. 1 v. Reed, 130 S. Ct. 2811, 2818 (2010); see also
Anderson v. Celebrezze, 460 U.S. 780, 789 (1983).
Lux contends that the district court erred by deferring to
our reasoning in Davis when evaluating the district residency
requirement’s constitutionality. He argues in particular that
the Supreme Court’s intervening decisions in Meyer v. Grant,
486 U.S. 414 (1988), and Buckley, 525 U.S. at 182, so under-
mined Davis’s basis for sustaining the residency requirement
as to overrule that portion of our analysis.4 We agree.
4
Because we find that Meyer and Buckley superseded the basis we relied
on in Davis to sustain the residency requirement, we do not address Lux’s
additional argument that Davis is factually and legally distinguishable
from his present claim.
10 LUX v. JUDD
Ordinarily, "[a] decision of a panel of this court becomes
the law of the circuit and is binding on other panels." United
States v. Collins, 415 F.3d 304, 311 (4th Cir. 2005) (quoting
Etheridge v. Norfolk & W. Ry. Co., 9 F.3d 1087, 1090 (4th
Cir. 1993)). Nevertheless, a panel’s decision may be "over-
ruled by a subsequent en banc opinion of this court or," as rel-
evant here, "a superseding contrary decision of the Supreme
Court." Id. A Supreme Court holding that "specifically
repudiate[s] the reasoning" on which a panel relied constitutes
such contrary authority. Etheridge, 9 F.3d at 1090.
A brief review of Davis sets the stage for our assessment
of the Supreme Court’s intervening decisions. As noted
above, the statute at issue in Davis established ballot-access
requirements in presidential elections for organizations that
failed to qualify as "political parties" under Virginia law. 766
F.2d at 866 (citing Va. Code § 24.1-159 (1980)). It mandated
that such organizations secure the signatures of a threshold
number of registered voters, "including at least two hundred
voters from each congressional district" (the "distribution
requirement"). Id. It also—much like the provision at issue
here—required that those signatures be "witnessed and
attested by a qualified voter from the same congressional dis-
trict as the petition signer." Id. The Libertarian Party of Vir-
ginia challenged both requirements. Id. at 867. The district
court dismissed the Party’s complaint, and we affirmed. Id.
Our decision in Davis primarily addressed the constitution-
ality of the distribution requirement. See id. at 867-69. Indeed,
we devoted just one paragraph of our opinion to assessing the
constitutional merits of the residency provision. Id. at 869-70.
Our brief discussion of that portion of the statute first noted
that mandating that someone witness petition signatures
helped combat election fraud. Id. at 869. We then echoed the
district court’s determination that the additional requirement
that witnesses be district residents served a distinct state inter-
est, explaining:
LUX v. JUDD 11
[T]he requirement that the witness be from the same
congressional district as the petition signer serves the
important purpose of assuring "some indication of
geographic as well as numerical support" by demon-
strating "that within each congressional district there
is at least one ‘activist’ sufficiently motivated to
shoulder the burden of witnessing signatures." It is
difficult to imagine how the state could accomplish
these objectives by less restrictive means. The statute
does not limit the number of signatures that an indi-
vidual may witness nor does it require that witnesses
be members of the Libertarian Party.
Id. at 869-70 (quoting Libertarian Party of Va. v. Davis, 591
F. Supp. 1561, 1564 (E.D. Va. 1984)) (internal citations omit-
ted).
Guaranteeing sufficient in-district popular support was the
lone state interest we identified in connection with the resi-
dency requirement. See id. In the more than twenty-five years
since we decided Davis, the Supreme Court has twice consid-
ered—and on each occasion rejected as a rationale—the
importance of ensuring a threshold level of grassroots support
as a basis for restrictions on petition circulation. See Buckley,
525 U.S. at 204-05; Meyer, 486 U.S. at 426-27.
About three years after our holding in Davis, the Supreme
Court considered a Colorado law that made payment of peti-
tion circulators a felony offense.5 See Meyer, 486 U.S. at 417.
5
The Colorado restriction at issue in Meyer concerned the circulation of
petitions in support of ballot initiatives, rather than candidates. We do not
find that distinction significant here. Meyer’s apparent rejection of the
proposition that something more than a threshold signature requirement is
necessary to assure popular support is plainly applicable in the candidate
context. Cf. Krislov v. Rednour, 226 F.3d 851, 861 (7th Cir. 2000).
By the same token, we do not believe the fact that Meyer and Buckley
addressed petition circulators rather than witnesses is salient. While that
distinction may bear on the comparative intrusiveness of the measure at
issue here, it does not affect the Court’s rejection of the sole rationale,
"some indication of geographical as well as numerical support," which
underlaid the Davis residency-requirement analysis. 766 F.2d at 869-70.
12 LUX v. JUDD
In response to Colorado’s argument that its regulation served
a state interest, a unanimous Court explicitly addressed and
rejected the claim that the challenged restriction helped ensure
that a particular ballot initiative enjoyed "sufficient grass
roots support." Id. at 425. The Court explained that the state’s
interest in ensuring a threshold level of support was "ade-
quately protected by the requirement that no initiative pro-
posal may be placed on the ballot unless the required number
of signatures has been obtained." Id. at 425-26.
More than a decade later, the Supreme Court reached a
similar conclusion in Buckley. There, the Court once more
faced Colorado laws governing initiative-petition circulators,
including a "requirement that . . . circulators be registered vot-
ers." Buckley, 525 U.S. at 186. In affirming the Tenth Cir-
cuit’s determination that these provisions were excessively
restrictive, the Supreme Court again emphasized that a thresh-
old signature requirement was adequate to ensure that an ini-
tiative had secured sufficient popular backing to warrant
placement on the ballot.6 See id. at 204-05 (finding that "Col-
orado can and does meet [its] substantial interests in regulat-
ing the ballot-initiative process" by "less problematic
measures," including a threshold signature requirement "[t]o
ensure grass roots support").
6
In support of its claim that Davis remains good law, the Board draws
on Buckley’s suggestion that some residency requirements are presump-
tively constitutional. See Appellee’s Br. at 23-24 (citing Buckley, 525 U.S.
at 197). However, when the Supreme Court assumed, without deciding,
"that a residence requirement would be upheld as a needful integrity-
policing measure," it was concerned with state residency requirements.
See Buckley, 525 U.S. 197. As the Court had already noted, such require-
ments were relevant to Colorado’s effort "to ensure that circulators will be
amenable to the Secretary of State’s subpoena power, which in these mat-
ters does not extend beyond the State’s borders." Id. at 196; see also Ini-
tiative & Referendum Inst. v. Jaeger, 241 F.3d 614, 617 (8th Cir. 2001).
The Board has not claimed that the district residency requirement at issue
here serves a similar purpose, but we also recognize that the Supreme
Court has not explicitly struck down such a requirement.
LUX v. JUDD 13
In both Meyer and Buckley, the Supreme Court recognized
that a signature requirement is generally adequate to ensure
the popular support necessary to warrant ballot access. In
doing so, the Court undermined the only state interest that
Davis identified in support of a residency requirement.
Against the backdrop of these intervening decisions, we can
no longer say that an in-district witness requirement is neces-
sarily justified by a state’s desire to gauge the depth of a can-
didate’s support.
Our recognition that Davis’s abbreviated residency-
requirement analysis has been superseded should not be con-
fused for a determination that the provision challenged here
offends Lux’s constitutional rights. Neither Meyer nor Buck-
ley addressed the particular witness residency requirement at
issue in this case. Moreover, we do not read either decision
as foreclosing the possibility that something more than a
threshold signature requirement may, in some circumstances,
be constitutionally permissible as a means of ensuring popular
support or achieving another state interest. In other words, we
hold only that the district court erred by relying on Davis to
find that Lux’s complaint did not raise a plausible claim for
relief and do not otherwise address the merits of Lux’s consti-
tutional challenge.
As this case comes before us on appeal of a Fed. R. Civ.
P. 12(b)(6) dismissal, we reserve substantive consideration of
Lux’s claim for the district court in the first instance. On
remand, the court should conduct an independent analysis of
the state interest served by the district residency requirement
and, after determining the appropriate standard of review,
conclude whether that portion of section 24.2-506 unduly
restricts Lux’s constitutional rights. See Celebrezze, 460 U.S.
at 789. Both parties are free to advance additional arguments
in light of our holding.
14 LUX v. JUDD
IV.
For the foregoing reasons we affirm the district court’s dis-
missal of Lux’s coplaintiffs, reverse the dismissal of Lux’s
claim, and remand for further proceedings.
AFFIRMED IN PART,
REVERSED IN PART,
AND REMANDED