United States Court of Appeals

For the Eighth Circuit

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No. 18-1382

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Mark Moore

lllllllllllllllllllllPlaintiff - Appellee

Michael Harrod; William C. Johnson

lllllllllllllllllllllPlaintiffs

v.

John Thurston, in his official capacity as Secretary of State for the State of Arkansas

lllllllllllllllllllllRespondent - Appellant

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Appeal from United States District Court

for the Eastern District of Arkansas - Little Rock

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Submitted: April 16, 2019

Filed: July 1, 2019

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Before LOKEN, WOLLMAN, and STRAS, Circuit Judges.

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WOLLMAN, Circuit Judge.
Mark Moore, a registered voter and potential candidate for state office,

challenged Arkansas’s ballot accessrequirements for independent candidates.

1 After

the district court2granted his request for declaratory and injunctive relief, the

Arkansas Secretary of State (the Secretary)

3

filed this appeal. Asthe state legislature

recently amended the challenged statute to accord with the petition filing deadline

that Moore had sought, no controversy remains, and thus we dismiss the appeal as

moot.

I.

Under Arkansas law, independent candidates for both federal and state office

must meet certain requirements to be included on the ballot. Candidates must file a

petition signed by at least three percent of the qualified electors in the state, county,

township, or district in which the person is seeking office. Ark. Code Ann. § 7-7-

103(b)(1)(A). The petition filing deadline had been May 1 of general election years,

but in 2013, the legislature changed the date to the end of the party filing period,

typically March 1 of general election years. See 2013 Ark. Acts 1356, codified as

amended at Ark. Code Ann. § 7-7-103. Petitions may not be circulated for signatures

earlier than ninety days prior to this deadline. Ark. Code Ann. § 7-7-103(b)(3)(B). 

The statute also requires independent candidates to file a political practices pledge,

an affidavit of eligibility, and a notice of candidacy by the same date. Id. at § 7-7-

103(a)(1)(A). 

1WilliamC. Johnson and Michael Harrod, potential independent candidates for

a county judgeship and the state house of representatives, respectively, were plaintiffs

in the original action. They are not parties to this appeal.

2The Honorable James M. Moody, Jr., United States District Judge for the

Eastern District of Arkansas.

3Secretary John Thurston is substituted for his predecessor, Mark Martin. See

Fed. R. App. P. 43(c)(2). 

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Moore filed suit in federal district court in February 2014, challenging the

constitutionality of the statute as applied to him. He alleged that the March 1 petition

filing deadline was unnecessarily early and burdened his rights under the First and

Fourteenth Amendments. He claimed that the law required independent candidates

to gather petition signatures in December, January, and February, when political

interest among the voting public was low and the weather was less conducive to

gathering signatures. Moore failed to file the necessary paperwork and was thus

ineligible to run for state office in 2014. He also sought declaratory and injunctive

relief as to future election cycles, however, stating that he intended to run again in

2018. 

In granting the Secretary’s motion for summary judgment and denying

Moore’s, the district court determined that Moore had standing and that the

conclusion of the 2014 election cycle did not moot the case. D. Ct. Order of Aug. 25,

2015, at 3-4. In analyzing Moore’s constitutional claims, the court employed a form

of strict scrutiny known as the compelling state interest test. Id. at 6. The test

requiresthe court to first determine whether the challenged statute imposes “a burden

of some substance on a plaintiff’srights,” Moore v. Martin, 854 F.3d 1021, 1026 (8th

Cir. 2017) (quoting Libertarian Party of N.D. v. Jaeger, 659 F.3d 687, 693 (8th Cir.

2011)), and then to evaluate the State’s justification for the statute, determining

whether the “challenged statute is narrowly drawn to serve the State’s compelling

interest.” Id. The court concluded that the March 1 petition filing deadline imposed

a burden of some substance on Moore’s rights as a potential independent candidate

and voter. It found the deadline necessary, however, to meet “Arkansas’s compelling

interests in timely certifying candidates and interests for the ballot.” D. Ct. Order of

Aug. 25, 2015, at 6. 

Moore appealed, and we reversed the summary judgment grant to the Secretary. 

Moore, 854 F.3d at 1028. We agreed with the district court that the March 1 petition

filing deadline imposed a burden of some substance, id. at 1026, but noted that a

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factual dispute existed with respect to whether the statute was narrowly drawn to

serve Arkansas’s compelling interest. We thus remanded for the district court to

examine “whether the verification of independent candidate petitions would conflict

with the processing of other signature petitions under the former May 1 deadline.” 

Id. at 1028. 

On remand and after a bench trial, the district court granted Moore the relief

he requested. It determined that the March 1 petition filing deadline was not

narrowly drawn to serve the state’s compelling interest in timely certifying signatures,

and entered injunctive relief permitting Moore to file his petition on or before May

1, 2018. See D. Ct. Am. Order of Jan. 25, 2018, at 6-7.

The court’s order did not address the filing deadline for the notice of

candidacy, affidavit, and political practices pledge. Moore failed to file those

documents by the March 1 deadline, and the Secretary thereafter moved to vacate the

injunction as moot, claiming that Moore was ineligible for the 2018 ballot because

he had missed the statutory filing deadline. The court then extended the filing

deadline for the notice, affidavit, and pledge at Moore’s request. Moore filed those

documents and his petition on April 30, 2018. Because his petition lacked the

requisite number of verified signatures, however, Moore was again ineligible for

candidacy.

After the Secretary filed this appeal and the parties submitted their briefs, the

state legislature amended the petition filing deadline for independent candidates to

12:00 p.m. on May 1 of the general election year. See 2019 Ark. Acts 68, to be

codified as amended at Ark. Code §§ 7-7-103. The law is scheduled to take effect

later this year.4

4Arkansaslaws without emergency clauses go into effect on the ninety-first day

after the legislative session adjourns. Fulkerson v. Refunding Bd., 147 S.W.2d 980,

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II.

We may adjudicate only cases and controversies. Accordingly, we “will

dismiss a case as moot when ‘changed circumstances [have] already provide[d] the

requested relief and eliminate[d]the need for court action.’” Libertarian Party of Ark.

v. Martin, 876 F.3d 948, 951 (8th Cir. 2017) (alterationsin original) (quoting Teague

v. Cooper, 720 F.3d 973, 976 (8th Cir. 2013)). Statutory changes generally render a

case moot, despite the legislature’s power to reenact the challenged provision. Id.;

see also Phelps-Roper v. City of Manchester, 697 F.3d 678, 687 (8th Cir. 2012) (en

banc). 

We conclude that the Secretary’s appeal is moot. The recent amendment

addresses the current—and soon obsolete—statute’s infirmity, granting the relief

Moore sought by allowing independent candidates to file their petition by noon on

May 1 of general election years.

5 Further, we have considered the exceptions to the

mootness doctrine and determined that neither applies because there is no indication

that the legislature is “virtually certain” to repeal its recent amendment. Libertarian

Party of Ark., 876 F.3d at 951 (explaining that, in the context of a claim mooted by

legislative action,mootness exceptions are rare and typically involve situations where

the repealed law is virtually certain to be reenacted). The unconstitutional burden

faced here is thus neither capable of repetition yet evading review, nor one that can

be reasonably expected to recur after the defendant voluntarily ceased imposing it. 

983 (Ark. 1941). This allows ninety days for citizens to file referendum petitions. 

See Ark. Const. art. 5, § 1. Arkansas’s regular session adjourned on April 24, 2019,

see H.R. Journal, 92d Gen. Assemb., Gen. Sess. 4050-51 (2019), and the law will thus

take effect in late July of 2019.

5We decline to addressMoore’s argument challenging the noon deadline, to the

extent that he has raised one. See Libertarian Party of Ark., 876 F.3d at 952

(declining to address a challenge to a statute amended after the parties filed their

appellate briefs). 

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No controversy remains, and we lack the authority to adjudicate whatever quibbles

linger.

Contrary to the Secretary’s contention, Moore’s claim did not become moot

earlier in the litigation when he failed to file the required candidate paperwork in

2014 and again in 2018. Moore had credibly alleged an intent to run for state office

in the future. Had the ballot-access statute not been amended, he would have been

subject to the same petition filing deadline, rendering the issue capable of repetition,

yet evading review. See Fed. Election Comm’n v. Wis. Right To Life, Inc., 551 U.S.

449, 462-63 (2007) (applying exception where nonprofit corporation challenging

election advertisement laws credibly claimed that it would run similar advertisements

in the future, and thus had a reasonable expectation that the same controversy would

occur). We also note that the Secretary’s argument that Moore has lacked standing

throughout this litigation is better understood as one of mootness, see Phelps–Roper,

697 F.3d at 687 (“Mootness is akin to the doctrine of standing because the ‘requisite

personal interest that must exist at the commencement of the litigation (standing)

must continue throughout its existence (mootness)’” (quoting McCarthy v. Ozark

Sch. Dist., 359 F.3d 1029, 1035 (8th Cir. 2004))), and we have already determined

that Moore had standing to bring this lawsuit as a candidate and voter. See Moore,

854 F.3d at 1025.

The Secretary asks that we vacate the district court’s judgment. This is our

normal practice when a civil case becomes moot pending appellate adjudication, as

doing so “‘clears the path for future relitigation’ by eliminating a judgment the loser

was stopped from opposing on direct review.” Arizonans for Official English v.

Ariz., 520 U.S. 43, 71 (1997) (quoting United States v. Munsingwear, Inc., 340 U.S.

36, 40 (1950)). But vacatur is an equitable remedy, not an automatic right. See U.S.

Bancorp Mortg. Co. v. Bonner Mall P’ship, 513 U.S. 18, 23 (1994) (declining to

vacate lower court decision after settlement mooted the case). In determining

whether vacatur is appropriate, absent unusual circumstances, our decision is

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“informed almost entirely, if not entirely, by the twin considerations of fault and

public interest.” Valero Terrestrial Corp. v. Paige, 211 F.3d 112, 118 (4th Cir. 2000). 

In considering fault, we distinguish between a party whose voluntary actions caused

the mootness, and a party prevented from seeking relief from the judgment below by,

as relevant here, happenstance. Bancorp, 513 U.S. at 24. Generally, only the latter

situations may merit vacatur. In considering the public interest, we recognize that

judicial precedents are “presumptively correct and valuable to the legal community

as a whole” and generally should be permitted to stand. Id. at 26 (quoting Izumi

Seimitsu Kogyo Kabushiki Kaisha v. U.S. Philips Corp., 510 U.S. 27, 40 (1993)

(Stevens, J., dissenting)). 

We conclude that the equities weigh against vacatur. Although we have not

explicitly addressed the issue, our sister circuits have generally considered legislation

to be an “intervening, independent event and not voluntary action, particularly when

the governmental entity taking the appeal . . . is not part of the legislative branch.” 

Diffenderfer v. Gomez-Colon, 587 F.3d 445, 452 (1st Cir. 2009) (gathering cases). 

But even if the Secretary is not at fault for the mootness here, the public interest

weighs in favor of allowing the district court’s judgment to stand. As we previously

observed in Moore, 854 F.3d at 1026, independent candidates and voters have

repeatedly—and successfully—challenged Arkansas’s ballot-access requirements. 

We thus conclude that the public interest is best served by a substantial body of

judicial precedents limiting the burden that those requirements may place on

candidates’ and voters’ First and Fourteenth Amendment rights.

The appeal is dismissed as moot. 

STRAS, Circuit Judge, concurring in part and dissenting in part.

I agree with the court that the case is moot, but I would follow “our normal

practice” and vacate. Teague v. Cooper, 720 F.3d 973, 978 (8th Cir. 2013)

(addressing a case mooted by a legislative change). This case became moot only

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through the “happenstance” of a statutory amendment, so there islittle reason to treat

it any differently than usual and every reason to “clear[] the path for future

[]litigation,” should it become necessary. United States v. Munsingwear, Inc., 340

U.S. 36, 40 (1950); see also U.S. Bancorp Mortg. Co. v. Bonner Mall P’ship, 513

U.S. 18, 25 (1994) (“A party who seeks review of the merits of an adverse ruling, but

is frustrated by the vagaries of circumstance, ought not in fairness be forced to

acquiesce in the judgment.”).

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