UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-2170
THE GREENVILLE COUNTY REPUBLICAN PARTY EXECUTIVE COMMITTEE,
a/k/a The Greenville County Republican Executive Committee;
WILLIAM MITCHELL, a/k/a Billy Mitchell,
Plaintiffs – Appellants,
and
THE SOUTH CAROLINA REPUBLICAN PARTY; BETTY S. POE, in her
official capacity as the Chairman of the Greenville County
Republican Party Executive Committee,
Plaintiffs,
v.
GREENVILLE COUNTY ELECTION COMMISSION; GREENVILLE COUNTY
BOARD OF REGISTRATION; BILLY WAY, JR., in his official
capacity as the Chairman of the South Carolina State
Election Commission,
Defendants – Appellees,
and
WAYNE GRIFFIN; REGINALD GRIFFIN; BRETT A. BURSEY; ALAN
OLSON; THE SOUTH CAROLINA INDEPENDENCE PARTY; THE SOUTH
CAROLINA CONSTITUTION PARTY; THE PROGRESSIVE NETWORK
EDUCATION FUND, INCORPORATED; THE COMMITTEE FOR A UNIFIED
INDEPENDENT PARTY, INCORPORATED, d/b/a
IndependentVoting.org; TERRY ALEXANDER, member of the Black
Legislative Caucus of the South Carolina House of
Representatives District 59; KARL B. ALLEN, member of the
Black Legislative Caucus of the South Carolina House of
Representatives District 25; JERRY N. GOVAN, JR., member of
the Black Legislative Caucus of the South Carolina House of
Representatives District 95; CHRIS HART, member of the
Black Legislative Caucus of the South Carolina House of
Representatives District 76; LEON HOWARD, member of the
Black Legislative Caucus of the South Carolina House of
Representatives District 76; JOSEPH JEFFERSON, JR., member
of the Black Legislative Caucus of the South Carolina House
of Representatives 102; JOHN RICHARD C. KING, member of the
Black Legislative Caucus of the South Carolina House of
Representatives District 49; DAVID J. MACK, III, member of
the Black Legislative Caucus of the South Carolina House
Representatives District 109; HAROLD MITCHELL, JR., member
of the Black Legislative Caucus of the South Carolina House
of Representatives District 31; JOSEPH NEAL, member of the
Black Legislative Caucus of the South Carolina House of
Representatives District 44; ANNE PARKS, member of the
Black Legislative Caucus of the South Carolina House of
Representatives District 12; RONNIE SABB, member of the
Black Legislative Caucus of the South Carolina House of
Representatives District 101; ROBERT WILLIAMS, member of
the Black Legislative Caucus of the South Carolina House of
Representatives District 62,
Intervenor/Defendants – Appellees,
and
CITY OF GREENVILLE MUNICIPAL ELECTION COMMISSION,
Defendant,
and
THE COLUMBIA TEA PARTY, INC.,
Intervenor/Defendant.
Appeal from the United States District Court for the District of
South Carolina, at Greenville. J. Michelle Childs, District
Judge; Mary G. Lewis, District Judge. (6:10-cv-01407-JMC-MGL)
Argued: October 29, 2014 Decided: March 17, 2015
Before MOTZ, KING, and KEENAN, Circuit Judges.
2
Affirmed in part and dismissed in part by unpublished per curiam
opinion.
ARGUED: Samuel Darryl Harms, III, HARMS LAW FIRM, PA,
Greenville, South Carolina, for Appellants. Harry M. Kresky,
LAW OFFICE OF HARRY KRESKY, New York, New York; Andrew
Lindemann, DAVIDSON & LINDEMANN, PA, Columbia, South Carolina,
for Appellees. ON BRIEF: Fletcher N. Smith, Jr., Greenville,
South Carolina, for Appellees Terry Alexander, Karl B. Allen,
Wayne Griffin, Reginald Griffin, Brett A. Bursey, Committee for
a Unified Independent Party, Incorporated, Chris Hart, Leon
Howard, Joseph Jefferson, Jr., John Richard C. King, David J.
Mack, III, Harold Mitchell, Jr., Joseph Neal, Alan Olson, Anne
Parks, Progressive Network Education Fund, Incorporated, Ronnie
Sabb, South Carolina Independence Party, South Carolina
Constitution Party, Robert Williams, and Jerry N. Govan, Jr.
Unpublished opinions are not binding precedent in this circuit.
3
PER CURIAM:
The Appellants — the Greenville County Republican Party
Executive Committee (the “Committee”) and William Mitchell —
seek relief from the district court’s rejection of their
constitutional challenges to certain South Carolina election
procedures. The Appellees — the Greenville County Election
Commission (the “County Election Commission”), the Greenville
County Board of Registration (the “Board”), and Billy Way, Jr.,
as Chairman of the South Carolina State Election Commission (the
“State Election Commission”) — urge us to sustain the decisions
of the district court, which were predicated on lack of standing
to sue and other grounds. See Greenville Cnty. Republican Party
Exec. Comm. v. Way, No. 6:10-cv-01407 (D.S.C. Mar. 30, 2011),
ECF No. 54 (the “First Opinion”); Greenville Cnty. Republican
Party Exec. Comm. v. Way, No. 6:10-cv-01407 (D.S.C. Aug. 30,
2013), ECF No. 181 (the “Second Opinion”). 1 Before we can reach
1
There are several Intervenors in this appeal, including
South Carolina voters, legislators, and entities that the
district court authorized to intervene as defendants on March 3,
2011. They include Wayne Griffin, Reginald Griffin, Brett A.
Bursey, Alan Olson, the South Carolina Independence Party, the
South Carolina Constitution Party, the Progressive Network
Education Fund, Incorporated, the Committee for a Unified
Independent Party, Incorporated, Terry Alexander, Karl B. Allen,
Jerry N. Govan, Jr., Chris Hart, Leon Howard, Joseph Jefferson,
Jr., John Richard C. King, David J. Mack, III, Harold Mitchell,
Jr., Joseph Neal, Anne Parks, Ronnie Sabb, and Robert Williams.
The Appellees and Intervenors made joint submissions in this
appeal, and their appellate contentions are thus the same. The
(Continued)
4
the merits of this appeal, we must address and resolve
jurisdictional issues. First, we must determine whether the
appeal is at least partially moot as a result of a municipal
ordinance enacted in May 2014 by the City of Greenville (the
“City”). 2 Pursuant to the ordinance, the City no longer conducts
its municipal elections by the partisan nomination procedures
being challenged in this case. Second, we must decide whether
the Appellants have standing to pursue any non-moot
constitutional claims.
As explained below, the recently enacted ordinance renders
this appeal substantially moot. With respect to the balance of
their claims, the Appellants lack standing to sue. As a result,
we affirm in part and dismiss in part.
I.
A.
1.
Under South Carolina law, municipalities must adopt by
ordinance either a nonpartisan or a partisan method of
Columbia Tea Party, Inc., intervened as a defendant in the
district court but is not a party to this appeal.
2
The City is a municipality in Greenville County, South
Carolina.
5
nominating candidates for public office in municipal elections.
See S.C. Code Ann. § 5-15-60. In non-municipal elections, such
candidates may be nominated by use of a partisan method. See
id. § 7-11-10. In utilizing the partisan method, candidates for
office are nominated through one of three possible procedures —
a party primary, a party convention, or a petition. See id.
§§ 5-15-60(3), 7-11-10. 3 The selection of which procedure to
utilize is made by a certified political party — such as, in
this case, the South Carolina Republican Party (the “State
Party”). See, e.g., id. § 7-9-10; see also S.C. Libertarian
Party v. S.C. State Election Comm’n, 757 S.E.2d 707, 708 (S.C.
2014). 4 The Committee — the primary Appellant here — is an
3
Section 5-15-60 of the South Carolina Code provides, in
pertinent part, that “[e]ach municipality in this State shall
adopt by ordinance one of the following alternative methods of
nominating candidates for and determining the results of its
nonpartisan elections,” including, inter alia, in section 5-15-
60(1) “[t]he nonpartisan plurality method prescribed in
[section] 5-15-61.” Section 5-15-60(3) provides, in pertinent
part, that “[i]f nonpartisan elections are not provided for,
nomination of candidates for municipal offices may be by party
primary, party convention or by petition.” Meanwhile, section
7-11-10 — which applies to non-municipal elections — specifies
that candidates may be nominated “by political party primary, by
political party convention, or by petition.” That provision was
amended during the pendency of the proceedings in the district
court, but the amendments have no bearing on this appeal. See
Act of June 13, 2013, No. 61, § 1, 2013 S.C. Acts 244.
4
Section 7-9-10 of the South Carolina Code explains that a
political party “desiring to nominate candidates for offices to
be voted on in a general or special election shall, before doing
so, have applied . . . for certification as such.” That
(Continued)
6
affiliate of the State Party and the Greenville County
Republican Party, but it is not a certified political party.
Accordingly, the Committee has no statutory authority to select
one of the partisan nomination procedures.
If a certified political party designates a party primary
as its preferred nomination procedure, South Carolina requires
that it be an open primary (the “open primary system”). The
open primary system authorizes all registered voters, regardless
of their party affiliations, to vote in any party primary in
South Carolina. See Drawdy v. S.C. Democratic Exec. Comm., 247
S.E.2d 806, 808 (S.C. 1978) (“Our election laws do not preclude
a member of one political party from voting in . . . the primary
. . . conducted by a different political party.”). 5
provision further explains methods of certification and that
certified political parties have the authority to select the
means by which their candidates will be nominated in partisan
elections.
5
No single provision of the South Carolina Code directly
mandates the open primary system. Rather, that system arises
from the interworking of several Code provisions. Persons who
are citizens of South Carolina and the United States, and who
satisfy specific age, residency, and registration requirements,
are entitled to vote at all local municipal elections, see S.C.
Code Ann. § 7-5-610, and all non-municipal party primaries, id.
§ 7-9-20, provided that those persons properly register, id.
§ 7-5-110. The State Election Commission must “establish and
maintain a statewide voter registration database.” Id. § 7-5-
186(A)(1). With respect to party primaries, “[i]mmediately
preceding” those elections, “the board of voter registration and
elections” shall furnish “two official lists of voters . . .
(Continued)
7
Alternatively, a certified political party may nominate its
candidates for public offices by a party convention or by
petition. In order to utilize the convention method, however,
South Carolina requires a party to secure a three-fourths
majority vote of the membership of the party’s state convention
(the “supermajority requirement”). See S.C. Code Ann. § 7-11-
30. 6
2.
Prior to May 2014, the City utilized the partisan method of
nominating and electing candidates for its municipal elections.
containing in each the names of all [voters] entitled to vote at
each precinct.” Id. § 7-5-420. Further, although nothing in
the Code provides that a voter’s political party affiliation
bears on his right to vote in a given primary election, the Code
does provide that “[n]o person shall be entitled to vote in more
than one party primary election held the same day.” Id. § 7-13-
1040.
6
Section 7-11-30 of the South Carolina Code contains
requirements pertaining to partisan nominations by convention,
and that Code provision has been amended twice since 2013. The
version in effect during the events at issue provided that “[n]o
convention shall make nominations for candidates for offices
unless the decision to use the convention method is reached by a
three-fourths vote of the total membership of the convention,
except the office of state Senator and of member of the House of
Representatives.” See S.C. Code Ann. § 7-11-30 (2012). The two
amended versions of section 7-11-30 — effective July 3, 2013 and
June 2, 2014 — each retain the supermajority requirement, but
further require that the convention nomination process be
approved by a majority of voters in the party’s next primary
election. See Act of June 13, 2013, No. 61, § 3, 2013 S.C. Acts
246-47; Act of June 2, 2014, No. 196, § 6, 2014 S.C. Acts 2209-
10.
8
Since the 1980s, the State Party has nominated its candidates
for partisan municipal and county elections by the open primary
system. As a result, the State Party could not nominate its
candidates by convention unless it satisfied the supermajority
requirement.
The Committee paid for and conducted the 2011 Republican
municipal open primary in the City. In the past, the Committee
has also paid for and conducted other such primaries.
B.
1.
This appeal has a somewhat complicated procedural history,
the relevant aspects of which are described below. On June 1,
2010, the Appellants, along with the State Party and Patrick
Haddon, the Committee’s then-Chairman (collectively, the
“Original Plaintiffs”) initiated this litigation in the District
of South Carolina. Their complaint was lodged against the State
of South Carolina and John Hudgens, in his official capacity as
Chairman of the State Election Commission (together, the
“Original Defendants”). 7 The complaint challenged the
constitutionality of South Carolina’s open primary system, as
7
Appellee Way replaced Original Defendant Hudgens as
Chairman of the State Election Commission in May 2013. As a
result, Way became a party-defendant in this litigation. See
Fed. R. Civ. P. 25(d).
9
well as its supermajority requirement for use of a party
convention. More specifically, the complaint alleged that those
procedures, facially and as-applied, contravene the First and
Fourteenth Amendments. 8
By its First Amendment contentions, the complaint
maintained that South Carolina’s open primary system and
supermajority requirement, facially and as-applied, contravene
the Committee’s right to freedom of association in two respects.
First, the open primary system unconstitutionally requires the
Committee to pay for and certify the results of partisan
municipal primaries in which registered Democrats participate.
Second, as to county elections, the supermajority requirement
unconstitutionally regulates the internal processes of a
certified political party in South Carolina by dictating the
8
A facial constitutional challenge to a statute asserts
either “that no set of circumstances exists under which the law
would be valid” or that the statute “is overbroad because a
substantial number of its applications are unconstitutional.”
Greater Balt. Ctr. for Pregnancy Concerns, Inc. v. Mayor of
Balt., 721 F.3d 264, 282 (4th Cir. 2013) (en banc) (alterations
and internal quotation marks omitted). In assessing a facial
challenge, a reviewing court must examine the “challenged law
without regard to its impact on the plaintiff asserting the
. . . challenge.” Educ. Media Co. at Va. Tech, Inc. v. Insley,
731 F.3d 291, 298 n.5 (4th Cir. 2013) (internal quotation marks
omitted). By contrast, an as-applied constitutional challenge
contends that a statute has been unconstitutionally applied to
the plaintiff. Id. at 301. That is, an as-applied challenge
“is based on a developed factual record and the application of a
statute to a specific person.” Id. at 298 n.5 (internal
quotation marks omitted).
10
vote percentage (three-fourths) requirement for the convention
nomination procedure.
With respect to the Fourteenth Amendment, the complaint
alleged that the open primary system and the supermajority
requirement, facially and as-applied, contravene the Equal
Protection Clause. Mitchell, who resides in the City,
maintained that the open primary system violates his equal
protection rights by compelling him to vote in partisan
municipal elections conducted by a political party rather than
by an election commission, such as that which conducts
nonpartisan municipal elections. The Committee alleged that the
supermajority requirement contravenes its equal protection
rights by imposing more stringent requirements on a political
party’s use of the convention nomination procedure in county
elections than other South Carolina statutes impose on
nonpolitical organizations, such as churches and businesses.
The complaint thus sought to enjoin the Original Defendants from
using and enforcing the open primary system and the
supermajority requirement in future municipal and county
elections. The Committee also sought declaratory and monetary
relief for violations of its First and Fourteenth Amendment
rights in previous elections.
In February 2011, after discovery had been completed, the
parties filed cross-motions for summary judgment with respect to
11
the facial constitutional challenges being pursued. On March
30, 2011, by its First Opinion, the district court awarded
summary judgment to the Original Defendants on each of those
facial challenges. More specifically, the court ruled that:
(1) the open primary system does not facially violate a
certified political party’s freedom of association, as
alternative partisan nomination procedures are available;
(2) the supermajority requirement does not facially violate a
certified political party’s freedom of association, because it
does not curtail the party’s internal operations; and (3) the
open primary system and the supermajority requirement do not
facially contravene a certified political party’s rights under
the Equal Protection Clause, as those provisions do not
discriminate among certified political parties. See First
Opinion 15-22. 9
2.
Nine months after the First Opinion, on January 6, 2012,
the Original Plaintiffs filed an amended complaint in the
district court, primarily to terminate and add certain
9
Subsequent to the First Opinion, on April 27, 2011, the
Original Defendants sought Rule 59(e) relief, filing a motion in
the district court to alter or amend judgment. That motion was
denied on July 18, 2011.
12
defendants. 10 More than a year later, on June 7, 2013, the State
Party, which had been an Original Plaintiff, filed a stipulation
of dismissal pursuant to Federal Rule of Civil Procedure 41 and
withdrew from the litigation. As a result, the plaintiffs then
in the case were the Committee, Mitchell, and Betty S. Poe, in
her official capacity as the Committee’s Chairman. 11 Poe did not
appeal, and the Committee and Mitchell are the only plaintiffs
(now Appellants) involved herein. The Appellees — the County
Election Commission, the Board, and Way — are now the only non-
intervening defendants.
In early July 2013, the Appellees sought summary judgment
on the claims lodged against them in the amended complaint,
arguing that the Appellants lack standing to sue with respect to
their as-applied constitutional challenges. The Intervenors, on
the other hand, filed a motion for judgment on the pleadings,
pursuant to Federal Rule of Civil Procedure 12(c), also arguing
10
The amended complaint abandoned all claims against the
State of South Carolina as a party-defendant. It named three
new defendants, however — the County Election Commission, the
Board, and the since-dismissed City of Greenville Municipal
Election Commission. The only Appellee who has been a party-
defendant over the entire course of the litigation is the
Chairman of the State Election Commission (initially Hudgens and
now Way).
11
In May 2011, Original Plaintiff Haddon was replaced by
Poe, the new Committee Chairman. Poe resigned during the
pendency of this appeal, apparently leaving the Chairman seat
vacant.
13
that the Appellants lacked standing to sue. On August 21, 2013,
by its Second Opinion, the district court “dismisse[d] [the
Appellants’] action for lack of standing” to sue. See Second
Opinion 22. 12
In its Second Opinion, the district court recognized that
the Appellants bore the burden on the issue of standing to sue.
The court then identified the applicable analysis for a standing
issue, which, as established by the Supreme Court, required the
Appellants to show that
(1) [they have] suffered an “injury in fact” that is
(a) concrete and particularized and (b) actual or
imminent, not conjectural or hypothetical; (2) the
injury is fairly traceable to the challenged action of
the defendant; and (3) it is likely, as opposed to
merely speculative, that the injury will be redressed
by a favorable decision.
Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc.,
528 U.S. 167, 180-81 (2000). Relying on our decision in
Marshall v. Meadows, 105 F.3d 904, 906 (4th Cir. 1997), the
12
The dismissal of a claim for lack of standing to sue is
typically sought by way of Rule 12(b)(1) of the Federal Rules of
Civil Procedure, which provides for dismissal for lack of
subject-matter jurisdiction. In this instance, the district
court’s judgment order related that “Summary Judgment is granted
on behalf of [the Appellees].” See Greenville Cnty. Republican
Party Exec. Comm. v. Way, No. 6:10-cv-01407 (D.S.C. Sept. 6,
2013), ECF No. 182. The Second Opinion, on the other hand,
specified that the action was dismissed for lack of standing.
Notwithstanding this apparent discrepancy, we are satisfied that
the disposition of the district court was a dismissal for lack
of standing to sue. Indeed, there are no contentions to the
contrary.
14
district court determined that the open primary system was not
traceable to the Committee’s alleged freedom of association
injury. That injury, rather, was traceable solely to the State
Party’s decision to utilize the open primary system of selecting
its nominees for public office. The court concluded that,
because the State Party was not a party-defendant, the Committee
could not satisfy the second, traceability prong of the standing
analysis. The court also ruled that the Committee was unable to
satisfy the third prong of that analysis, in that its alleged
injury was not redressable. As the court explained, it could
not, as a matter of law, compel the State Party to adopt and
utilize any particular partisan nomination procedure.
The Second Opinion also rejected Mitchell’s as-applied
equal protection challenge to the open primary system for lack
of standing to sue. In so ruling, the district court reasoned
that Mitchell’s alleged injuries were traceable solely to the
City’s decision to conduct partisan municipal elections.
Accordingly, the absence of the City as a party-defendant
deprived Mitchell of standing to pursue an equal protection
claim.
Finally, the Second Opinion rejected — also for lack of
standing to sue — the Committee’s as-applied freedom of
association and equal protection challenges to the supermajority
requirement. In that regard, the district court explained that
15
the State Party — as the entity tasked with selecting the
procedure by which the State Party selects its nominees for
office in South Carolina — was the only entity entitled to
challenge the constitutionality of the supermajority
requirement. The State Party, however, had abandoned the
litigation two months earlier, in June 2013, and was no longer a
party-plaintiff. The court therefore dismissed the Appellants’
as-applied constitutional challenges for lack of standing to
sue.
Judgment was entered in favor of the Appellees on September
6, 2013. The Appellants timely noticed this appeal, and we
possess jurisdiction pursuant to 28 U.S.C. § 1291.
C.
On May 12, 2014, after this appeal was noticed and briefed,
the City enacted the municipal ordinance that impacts our
jurisdiction in this appeal. See Greenville, S.C., Ordinance
No. 2014-25 (2014) (the “Ordinance”). The Ordinance provides,
in pertinent part, that the City “shall cease operating under
the partisan method of nominating and electing candidates in
municipal elections.” Id. In place of the partisan method, the
Ordinance “adopts the nonpartisan plurality [procedure]”
prescribed by section 5-15-61 of the South Carolina Code. Id.
Accordingly, the City no longer conducts municipal elections
16
utilizing the partisan nomination procedures that are challenged
by the Appellants.
During oral argument of this appeal, our panel identified
the Ordinance as potentially creating a jurisdictional problem,
in that the Ordinance may have mooted the Appellants’ claims.
As a result, we secured post-argument briefing from the parties
on the jurisdictional impact of the Ordinance. The Appellees
therein argued that the Ordinance renders moot each of the
Appellants’ constitutional claims with respect to future
partisan municipal elections. The Appellants, by contrast,
maintained that those claims were not mooted by the Ordinance,
in that the City could yet again decide to utilize the partisan
nomination procedures. Notwithstanding their disagreement in
that respect, the Appellants and the Appellees appear to agree
that the Ordinance does not moot the Committee’s facial and as-
applied freedom of association and equal protection challenges
to the supermajority requirement, as those challenges apply to
county — rather than municipal — elections. The parties also
appear to agree that the Ordinance does not moot the Committee’s
claims for declaratory and monetary relief with respect to
previous partisan municipal elections.
17
II.
When an issue of subject-matter jurisdiction arises, an
appellate court is obliged to conduct a full inquiry thereon.
See Dickens v. Aetna Life Ins. Co., 677 F.3d 228, 230 (4th Cir.
2012). We review de novo a district court’s dismissal of a
complaint for lack of standing to sue. See S. Walk at
Broadlands Homeowner’s Ass’n, Inc. v. OpenBand at Broadlands,
LLC, 713 F.3d 175, 181 (4th Cir. 2013).
III.
The Appellants assert on appeal that the district court, by
its First Opinion, erroneously awarded summary judgment to the
Original Defendants on the facial constitutional challenges.
The Appellants also contend that the court, by its Second
Opinion, erred in ruling that the as-applied challenges are
barred for lack of standing to sue. They further maintain,
invoking the “repetition exception” to mootness, that the
mootness doctrine does not undermine any of their claims in that
the City could alter the Ordinance.
Because the Ordinance was enacted during the pendency of
this appeal, we must assess whether its enactment impacts our
jurisdiction by rendering any of the claims moot. Indeed, we
are obliged to address both mootness and standing to sue prior
to any merits questions. See Warren v. Sessoms & Rogers, P.A.,
18
676 F.3d 365, 370 (4th Cir. 2012) (“As a federal court, we must
investigate the limits of our subject-matter jurisdiction
whenever that jurisdiction is fairly in doubt.” (internal
quotation marks omitted)).
A.
1.
The doctrine of mootness derives from the requirement of
Article III of the Constitution that “federal courts may
adjudicate only [those] disputes involving ‘a case or
controversy.’” Williams v. Ozmint, 716 F.3d 801, 808 (4th Cir.
2013). The case or controversy mandate demands that plaintiffs
in a federal lawsuit “continue to have a ‘particularized,
concrete stake’ in the outcome of the case through all stages of
litigation.” Id. at 808-09 (quoting Lewis v. Cont’l Bank Corp.,
494 U.S. 472, 479 (1990)). But when a party-plaintiff has
already received “the relief he or she sought to obtain through
the claim,” the federal court lacks the power to provide
“effective relief.” Id. at 809 (internal quotation marks
omitted). In such a situation, the claims of the plaintiff may
well be moot.
In this case, the City’s enactment of the Ordinance in May
of last year has provided the Appellants with a substantial part
of the relief they seek in this litigation. Specifically, the
Ordinance adopted the nonpartisan method of nominating
19
candidates for municipal elections, thereby rendering
inapplicable the open primary system that the Appellants seek to
challenge on constitutional grounds. As explained below, the
Appellants’ facial and as-applied freedom of association and
equal protection challenges, to the extent they relate to future
partisan municipal elections, have been rendered moot, unless
they are saved by the repetition exception argued by the
Appellants.
2.
As the Appellants maintain, we have recognized an exception
to the mootness doctrine for conduct “capable of repetition, yet
evading review.” Lux v. Judd, 651 F.3d 396, 401 (4th Cir.
2011). That exception might apply, for example, to an election-
related dispute when “there is a reasonable expectation that the
challenged provisions will be applied against the plaintiffs
again during future election cycles.” Id. (internal quotation
marks omitted). The repetition exception is a narrow one,
however, and it applies in exceptional situations only. See
City of L.A. v. Lyons, 461 U.S. 95, 109 (1983). Thus, “a party
seeking to invoke this exception to the mootness doctrine bears
the burden of showing its application.” Williams, 716 F.3d at
810.
In these circumstances, the Appellants have not satisfied
their burden of establishing “a reasonable expectation” that the
20
City will return to the partisan method of nominating candidates
in “future election cycles.” See Lux, 651 F.3d at 401. Rather,
their contention in that regard is predicated solely on
speculation and conjecture. In enacting the Ordinance, the City
explained its decision to shift from the partisan to the
nonpartisan municipal nomination method. The Ordinance
specified that “Greenville is one of only eight municipalities
in South Carolina to have partisan municipal elections and the
national trend is for municipalities the size of Greenville to
have nonpartisan elections.” See Greenville, S.C., Ordinance
No. 2014-25 (2014). It also reasoned that the partisan method
“results in a prolonged campaign period” and fails to “promote[]
full participation by all voters in the electoral process.” Id.
(emphasis omitted). Because the Appellants have not shown a
reasonable expectation that the City will return to the partisan
municipal nomination method, the repetition exception is simply
inapplicable. 13
B.
We recognize, however, that not all of the Committee’s
claims are mooted by the Ordinance. Specifically, the
Committee’s facial and as-applied freedom of association and
13
As a consequence of the City’s enactment of the Ordinance
and our application of the mootness doctrine, Appellant Mitchell
is left with no viable claims for relief in this case.
21
equal protection challenges to the supermajority requirement are
not impacted by the Ordinance. Nor are the Committee’s claims
for declaratory and monetary relief for violations of its right
to freedom of association in previous municipal open primaries.
As to those claims, we turn to the Committee’s central appellate
contention with respect to the Second Opinion, that the district
court erred in ruling that the Committee lacks standing to sue.
1.
By the First Opinion, the district court rejected the
contentions of the then-plaintiffs that the open primary system
and the supermajority requirement facially violated the First
and Fourteenth Amendments. As reflected below, we are now
satisfied — as was the district court in its Second Opinion —
that the Appellants lack standing to pursue any facial or as-
applied challenges to future partisan municipal elections.
Nevertheless, the State Party had standing to pursue the facial
challenges that were rejected by the First Opinion. The State
Party, however, then abandoned the case and has not appealed.
As to the First Opinion, we are being asked to vacate an appeal
by parties (the Appellants) that have had no independent
standing, either then or now. Because the Appellants lack
standing to appeal, we cannot disturb the First Opinion. See
Rhodes v. E.I. du Pont de Nemours & Co., 636 F.3d 88, 98-100
(4th Cir. 2011) (declining to review merits of denial of class
22
action certification where appellants subsequently dismissed
related claims and thus lacked standing to pursue appeal).
2.
Next, the Committee pursues as-applied freedom of
association and equal protection challenges with respect to the
supermajority requirement. In its freedom of association
argument, the Committee contends that the supermajority
requirement unconstitutionally regulates a certified political
party’s internal processes by dictating that a three-fourths
supermajority vote is required to alter a nomination procedure
to a convention. The Committee then maintains that the
supermajority requirement contravenes the Equal Protection
Clause by requiring political parties to obtain a supermajority
vote in order to utilize the convention nomination procedure,
while the State permits other entities — such as churches and
corporations — to make similar decisions by a simple majority.
On those challenges, however, the Committee does not satisfy the
first prong of the standing analysis, that is, a cognizable
injury.
As the Second Opinion recognized, the injuries alleged by
the Committee were actually suffered by another entity entirely
— the State Party, which is solely tasked with selecting the
partisan nomination procedure for Republican primaries. See
Second Opinion 17. It is a “fundamental restriction on our
23
authority that in the ordinary course, a litigant must assert
his or her own legal rights and interests, and cannot rest a
claim to relief on the legal rights or interests of third
parties.” Hollingsworth v. Perry, 133 S. Ct. 2652, 2663 (2013)
(alterations and internal quotation marks omitted). The
Committee has thus failed to show a cognizable injury under its
First or Fourteenth Amendment contentions, and the Committee
lacks standing to sue with regard to the supermajority
requirement.
3.
Finally, the Committee seeks declaratory and monetary
relief for violations of its right to freedom of association in
previous partisan municipal elections. More specifically, the
Committee contends that the open primary system
unconstitutionally required the Committee to conduct and pay for
those open primaries, in which registered Democrats
participated.
In this situation, the Committee cannot satisfy the
traceability prong of the standing analysis. In order to
satisfy that prong, the Committee was obliged to show that its
injury “fairly can be traced to the challenged action.”
Marshall v. Meadows, 105 F.3d 904, 906 (4th Cir. 1997) (internal
quotation marks omitted). Here, the “challenged action” is
South Carolina’s open primary. In Marshall, we determined that
24
the plaintiffs lacked standing to challenge Virginia’s open
primary statutes, reasoning that
it [was] not the Open Primary Law that [was] the cause
of the plaintiffs’ alleged injury. Rather, it [was]
the decision of the Virginia Republican Party to
conduct an “open” primary that [caused] this alleged
injury, as there is: (1) nothing unconstitutional
about a political party’s choice of an “open” primary;
and (2) simply no indication that the Virginia
Republican Party would have a “closed” primary in the
absence of the Open Primary Law.
Id. (emphasis and citations omitted). Accordingly, we ruled
that the absence of the Virginia Republican Party as a party-
defendant in Marshall deprived the plaintiffs of standing to
sue. Id.
Here too, the Committee’s alleged injuries were fairly
traceable to the decision of the State Party to select its
nominees by way of the open primary system. Thus, as the Second
Opinion explained, the State Party is an intermediary that
“‘stands directly between [the Committee] and the challenged
conduct in a way that breaks the causal chain’” between the open
primary system and the Committee’s freedom of association
claims. See Second Opinion 17 (quoting Frank Krasner Enters.,
Ltd. v. Montgomery Cnty., Md., 401 F.3d 230, 236 (4th Cir.
2005)). Because the State Party is not a party-defendant in
25
this litigation, the Committee is unable to satisfy the
traceability prong of the standing analysis. 14
Contrary to the Committee’s contention, our decision in
Miller v. Brown, 462 F.3d 312 (4th Cir. 2006), does not dictate
some other conclusion. In Miller, a local political
organization contested the open primary system in Virginia that
was challenged in Marshall. See Miller, 462 F.3d at 316. When
Miller was decided, however, the Virginia Republican Party had
already taken steps to implement its use of closed primaries.
Id. at 318. Specifically, the Virginia Republican Party had
amended its plan of organization to “exclude voters who
participated in the nomination process of another party within
the preceding five years from voting in the Republican primary.”
Id. at 314. In that circumstance, we concluded that the local
political organization had standing to sue, because it was
seeking to enforce the Virginia Republican Party’s desire to
14
We also agree with the Second Opinion that the Committee
is unable to establish the redressability prong of the standing
analysis. If South Carolina’s open primary system is
unconstitutional, we would likely be unable to compel the State
Party to conduct closed primaries, as such a court order may
well violate the Constitution. See Tashjian v. Republican Party
of Conn., 479 U.S. 208, 224 (1986) (recognizing that a court
“may not constitutionally substitute its own judgment for that
of the [p]arty,” as the “[p]arty’s determination of the
boundaries of its own association, and of the structure which
best allows it to pursue its political goals, is protected by
the Constitution”) (internal quotation marks omitted)).
26
conduct closed primaries. Id. at 318. We readily distinguished
that situation from the one in Marshall, where the Virginia
Republican Party had not yet implemented its use of closed
primaries. Id. Thus, the plaintiffs in Marshall were merely
challenging the Party’s desire to conduct open primaries, not
the open primary system itself. Id.
Miller is not applicable here because, unlike the Virginia
Republican Party in Miller, the State Party has done nothing, on
this record, that seeks to conduct closed primaries in South
Carolina. Accordingly, this situation more closely resembles
that in Marshall, with the Committee challenging the State
Party’s decision to conduct open primaries. Thus, the Committee
lacks standing to pursue its claims for declaratory and monetary
relief based on alleged constitutional violations in previous
partisan municipal elections. 15
IV.
Pursuant to the foregoing, we dismiss as moot the
Appellants’ facial and as-applied challenges to future partisan
15
Finally, the Committee erroneously contends that the
State Party’s platform — vaguely indicating support for a closed
primary system — is sufficient to establish standing for the
Committee’s freedom of association claims. As recognized in the
Second Opinion, however, the Party’s platform “at most states a
possible preference or partiality for [open] primaries . . .
[which] is undoubtedly trumped by its rules and conduct.” See
Second Opinion 21.
27
municipal elections. We also dismiss, for lack of standing to
sue, the facial challenges to the supermajority requirement.
Finally, we affirm the dismissal, for lack of standing to sue,
of the as-applied challenges to the supermajority requirement,
as well as the claims for declaratory and monetary relief with
respect to previous partisan municipal elections.
AFFIRMED IN PART
AND DISMISSED IN PART
28