14

them, could still be in effect today. After all, the first
rule of political science is that legislators will act in
their own self-interest when it comes to maximizing
their chances of being re-elected. See, generally, Da-
vid R. Mayhew, Congress: The Electoral Connection
(2d ed., 2004). Thus, such burdensome regulations
are particularly likely to remain entrenched when
they work to the benefit of incumbents, protecting
those incumbents from new and potentially disrup-
tive voters in each election. When legislatures have
no incentive to eliminate unconstitutional voting re-
strictions, it is even more vital that courts have the
power to actually review those statutes. An election-
law exception provides courts with this ability and
makes it more difficult for these incumbent-
protecting tactics to evade judicial review.

II.THE CONTRIBUTION LIMITS AT ISSUE
INCENTIVIZE STRATEGIC BEHAVIOR BY
PACS AND DO NOT DECREASE THE RISK
OF CORRUPTION

A. The Lowered Contribution Limits are
Unlikely to Achieve Their Desired Effects

The six-month waiting period of the statute at is-
sue envisions a sharp distinction between “new” polit-
ical action committees and “seasoned” ones that have
existed for more than six months. The former are
supposedly more at risk of corrupting the political
system by “sprouting up” immediately before an elec-
tion and contributing to individual candidates. This is
why “seasoned” PACs enjoy the right to contribute
$5,000 to individual candidates, while newer PACs
may only contribute $2,700. See Pet. at 10.


8

to resolve the ballot-access issue underlying the mer-
its of Moore v. Ogilvie, an issue that initially arose in
relation to the (then-passed) 1968 election, but that
would inevitably arise again in future. 394 U.S. 814
(1969). The Moore Court firmly rejected the argument
of the dissent, which argued against adjudicating the
“moot” case because the appellants had not indicated
any “intent to participate as candidates in any future
Tllinois election.” Id. at 819 (1969) (Stewart, J., dis-
senting) (arguing against resolving controversy on
the ground that “the 1968 election is now history”).

The Moore Court realized that rather than adjudi-
cating a 1968 election controversy too late, it was in
fact resolving an issue that would arise in the 1972
election (and beyond) at exactly the right time—with
three years to spare before the next presidential elec-
tion. Continuing the practice which worked so well in
Moore will allow this Court to resolve potentially con-
tentious issues in advance, and thereby reduce the
likelihood of future mid-election legal crises.

C. The “Same-Plaintiff” Requirement
Creates Perverse Incentives

Maintaining a same-plaintiff requirement in the
election law context creates a range of perverse in-
centives for both plaintiffs and defendants.

1. It incentivizes plaintiffs’ disingenuous
predictions to preserve jurisdiction.

The same-plaintiff requirement in election law
presents problems that extend beyond the circum-
stances of this particular case. Here, the six-month
waiting period applies once in a PAC’s lifetime. But
frequently, a regulation imposes burdens that recur
every election cycle. With the same-plaintiff require-


18

ly sound. In focusing only on the overall equality of
the burdens, the lower court entirely missed the fact
that both burdens violate the First Amendment be-
cause neither can be justified by limiting corruption.

Review of a lower-court decision is warranted
when its approach so squarely conflicts with one of
this Court’s recent precedents. Without this Court’s
review, lower courts may continue to flagrantly ig-
nore McCutcheon’ approach, which would represent a
significant threat to First Amendment rights.

CONCLUSION

The decision below confuses and complicates elec-
tion law and leaves in place regulations that are
counterproductive and unconstitutional. The Court
should grant the petition.

Respectfully submitted,

BENJAMIN P. EDWARDS ILYA SHAPIRO

Barry University Counsel of Record

6441 East Colonial Drive Cato Institute

Orlando, Florida 32807 1000 Mass. Ave. N.W.

bpedwards@barry.edu Washington, D.C. 20001
(202) 842-0200
ishapiro@cato.org

August 24, 2016


iv

TABLE OF AUTHORITIES

Page(s)

Cases
Anderson v. Celebrezze,

460 U.S. 780 (1983) ..sccecsssessssseeessssessssssessssseessseeeeees 13
Barr v. Galvin,

626 F. 3d 99 (1st Cir. 2010) ween 4
Bush v. Gore,

531 U.S. 98 (2000)... eee ceseeeeecseseseeeeeeeeeneee 7
Caruso v. Yamhill Cnty.,

422 F.3d 848 (9th Cir. 2005) .....eeeeeseseseseeseseseees 4
Catholic Leadership Coal. of Tex. v. Reisman,

764 F.3d 409 (5th Cir. 2014)... eee eeeeeeeeneeeeee 4

Dunn v. Blumstein,
405 U.S. 330 (1972)..

Frank v. Walker,
No. 11-C-1128, 2016 WL 3948068

(E.D. Wis. July 19, 2016) oo... eee eeeeeeeee 6
Honig v. Doe,

484 U.S. 3805 (1988) cece cesetsescseseseneeeesenene 4
Lawrence v. Blackwell,

430 F.3d 368 (6th Cir. 2005) oo... ee eeeeseseeseeteeteeeee 4

Majors v. Abell,
317 F.3d 719 (7th Cir. 2003).

McCutcheon v. FEC,
134 S. Ct. 1434 (2014) .cccccccceesscssessceseesceseeseesseeeessees 16

Moore v. Ogilvie,
394 U.S. 814 (1969) occ eseeeesereeseeeneenes 8,13



15

Yet in practice, the effect of the limits on newer
PACs is not to limit corruption, but to benefit well-
organized political groups, which can easily “game
the system” by creating PACs well in advance of
when they will actually be used. Despite the existing
limitations on coordinated action, the reality is that
the creation of such “shelf? PACs easily allows well-
organized groups to simply route funds through pre-
existing PACs already under the control of ideologi-
cally aligned groups—even if those PACs have never
been actively used. So long as seasoned PACs may
contribute nearly twice as much to individual candi-
dates, control over existing PACs (that have been reg-
istered for six months) grants insiders a significant
advantage over smaller, newer entrants seeking to
influence the political process.

Another supposed benefit of the donation limits is
to decrease the amount of money in politics. Yet once
again, due to the reality of coordination, the effect of
such regulations is not to decrease the total amount
of donations, but to spread them across more PACs,
making it more difficult to trace the influence of
money in politics (if that’s your thing). Unlike newer
PACs, which may contribute $33,400 to national par-
ty committees, 52 U.S.C. § 30116(a)(1)(B), seasoned
PACs may only contribute $15,000 annually. Id. §
30116(a)(2)(B). Rather than cutting in half the
amount that organized donors actually channel to na-
tional party committees, it is far more likely that
these restrictions on seasoned PACs simply lead to
twice as many PACs being created. Such an increase
in the number of money-channeling entities serves no
purpose except to make it harder for the public to un-
derstand actual capital flows in the political process.


17

likely to limit corruption. See id. at 1452 (“If there is
no corruption concern in giving nine candidates up to
$5,200 each, it is difficult to understand how a tenth
candidate can be regarded as corruptible if given
$1,801, and all others corruptible if given a dime.”).

Such an approach makes plain that neither de-
creasing the amount that new PACs may donate to
individual candidates nor decreasing the amount that
seasoned PACs may donate to parties is likely to limit
corruption. Since the law allows an individual candi-
date to accept $5,000 from a seasoned PAC, it is hard
to see how that same candidate can be “regarded as
corruptible” if given $2,701 from a new PAC. Like-
wise, since the law allows new PACs to donate
$33,400 to national political parties, it is hard to see
how those parties can be “regarded as corruptible” if
given $15,001 from a seasoned PAC. The very struc-
ture of the law reveals that limiting corruption was
neither intended, nor likely to be achieved, by the dif-
fering limitations on political donations.

The court below erred by treating this case solely
as an Equal Protection issue and entirely missing the
underlying First Amendment violations. As Petition-
ers explain, the Fourth Circuit invented a novel
“tradeoffs” approach to evaluate the burdens on both
seasoned and new PACs and found that the differing
burdens balanced out such that the two types of
PACs were treated equally. See Pet. at 38-40. But
just because two burdens are equal does not mean
that either burden is constitutional. If the govern-
ment tells one group of people they may not speak on
Tuesdays and another group they may not speak on
Wednesdays, the fact that the net burden on each
group is the same does not make both constitutional-


12

lead plaintiffs to raise questions about the defend-
ant’s integrity and ethics. An environment of rancor
and accusations of bad faith are far from the ideal
way to litigate important questions concerning the
fairness and constitutionality of election laws.

An election-law exception would help drain such
potential rancor from these types of proceedings. By
moderating the time pressure that is otherwise guar-
anteed in a pre-election legal challenge, an election-
law exception might even result in more efficient liti-
gation because defendants would no longer try to win
by insisting on unnecessary procedure. Because of
this dynamic, the existence of an election exception
may actually diminish the need for its use, as parties
would no longer gain from delay, allowing for more
cases to be decided before the election in question.

3. It lets legislatures shield incumbent-
protecting laws from judicial review.

The same-plaintiff requirement not only provides
perverse incentives to those litigating election laws; it
also gives dangerous powers to the legislatures that
create them. That is because such a requirement cre-
ates a roadmap for insulating regulations from judi-
cial review. So long as the same-plaintiff requirement
is in place, legislators may simply create temporary
and time-limited “protective” measures that expire
after each election, when they have already achieved
their purpose. Although such measures only prevent
each individual voter, candidate, or political speaker
from participating in one election, the cumulative ef-
fect of such measures can be enormous.

One classic example of such a regulation is an un-
constitutionally lengthy residency requirement for


4

ARGUMENT

I, THE DECISION BELOW WIDENS THE VAST
DISPARITY ACROSS THE CIRCUITS IN
THE ABILITY OF PEOPLE TO PROTECT
THEIR FIRST AMENDMENT RIGHTS

This Court has a long history of adjudicating elec-
tion-law cases under the “capable of repetition, yet
evading review” exception, even when these cases do
not meet the “same-plaintiff’ requirement. Pet. at
21-26. As Justice Scalia’s correctly recognized Honig,
this practice has existed long enough to definitively
state that there is an exception to “the same-party
requirement” in election law cases. Honig v. Doe, 484
U.S. 305, 335-86 (1988) (Scalia, J., dissenting).

But despite the clear implication of this Court’s
precedent, a wide circuit split has developed over the
issue. The Fifth, Sixth, Seventh, and Ninth Circuits
recognize the exception, while the First, Second, and
Fourth Circuits do not. Compare Catholic Leadership
Coal. of Tex. v. Reisman, 764 F.3d 409, 423-24 (5th
Cir. 2014) (recognizing the implied election-law ex-
ception), Lawrence v. Blackwell, 430 F.3d 368, 372
(6th Cir. 2005) (same), Majors v. Abell, 317 F.3d 719,
723 (7th Cir. 2003) (same); and Caruso v. Yamhill
Cnty., 422 F.3d 848, 853-54 (9th Cir. 2005) (same);
with Barr v. Galvin, 626 F. 3d 99, 105-06 (1st Cir.
2010) (declining to apply the exception); Van Wie v.
Pataki, 267 F.3d 109, 114-15 (2d Cir. 2001) (same).

Not only does this split threaten the fabric of jus-
ticiability; it may blind courts to future divergences
on substantive issues as well. A circuit split on an is-
sue of justiciability can generate longstanding and
irresolvable divergences across the circuits on sub-


1

INTEREST OF THE AMICUS CURIAE!

The Cato Institute is a nonpartisan policy re-
search foundation established in 1977 and dedicated
to the principles of individual liberty, free markets,
and limited government. Cato’s Center for Constitu-
tional Studies was established in 1989 to help restore
the principles of constitutional government that are
the foundation of liberty. Toward those ends, Cato
publishes books and studies, conducts conferences,
and produces the annual Cato Supreme Court Review.

This case concerns amicus because it involves the
ability of the public to challenge senseless restrictions
on political activity. In particular, Cato supports this
petition because it may increase the ability to chal-
lenge laws that suppress participation in all parts of
the electoral process, including campaign contribu-
tions, voter registration, and voting itself.

INTRODUCTION AND
SUMMARY OF ARGUMENT

The Court maintains a firm commitment to fair
and free elections. But if the Fourth Circuit’s ap-
proach here is allowed to stand, courts’ ability to ef-
fectively review such laws will be severely curtailed.
This case presents the Court with an opportunity to
ensure that lower courts will resolve election-law con-
troversies under the “capable of repetition, yet evad-
ing review” exception to its mootness doctrine. S. Pac.
Term. Co. v. ICC, 219 U.S. 498, 515 (1911). In other

1 Rule 37 statement: All parties received timely notice of
amicus’s intent to file this brief; their consent letters have been
lodged with the Clerk. Further, no counsel for any party au-
thored this brief in whole or in part and no person or entity oth-
er than amicus funded its preparation or submission.


Vv

N.C. State Conference of NAACP v. McCrory,
No. 16-1468, 2016 WL 4053033
(4th Cir. July 29, 2016) oc cceeeseseeseseeeeseseseeeerenes 6

One Wisconsin Inst., Inc. v. Thomsen,
No. 15-CV-324-JDP,2016 WL 4059222

(W.D. Wis. July 29, 2016) oe eeseeeeeeneneees 6,7
Rosario v. Rockefeller,

A410 U.S. 752 (1978) .ccceceeceseeseeeeteeseeeeteeseeeeeeeseeeeeeeeee 9
S. Pac. Term. Co. v. ICC,

219 U.S. 498 (1911) ceccesccseescsssececsseesesseesssreseessseesessees 1

Van Wie v. Pataki,
267 F.3d 109 (2d Cir. 2001) ..

Veasey v. Abbott,
No. 14-41127, 2016 WL 3923868

(5th Cir. July 20, 2016)... eeeseeeeseeeseneeeeeeeeeteeee 7
Weinstein v. Bradford,
423 U.S. 147 (1975) ccceccssessssecesecessecessecessccssecesseceseeese 2
Statutes
52 U.S.C. § 30116(a)(1)(B) eee eeeeteteeeeeeeeeeeeteneneeeee 15
52 U.S.C. § 30116(a)(2)(B) see eeseteseeeeeeeeeeeteenenenees 15
Other Authorities
ABA Model Rule Prof. Conduct 3.2....
David R. Mayhew, Congress: The Electoral
Connection (2d ed., 2004) .....cccccsceseesssseeseeseeeeeeee 14

Matthew I. Hall, The Partially Prudential Doctrine
of Mootness, 77 Geo. Wash. L. Rev. 562 (2009)....... 5


13

voting in state elections. Rejecting the same-plaintiff
requirement allowed this Court to reject such a regu-
lation in Dunn v. Blumstein, striking down Tennes-
see’s six-month residency-restriction on the right to
vote. 405 U.S. 330, 338 (1972). By the time that case
reached this Court, the residency had already been
satisfied by the individual plaintiff. But the Court
correctly held that the case was not moot: “Although
appellee now can vote, the problem to voters posed by
the Tennessee residence requirements is ‘capable of
repetition, yet evading review.” Id. at 333 n.2 (quoting
Moore, 394 U.S. at 816) (emphasis added).

Similarly, restrictions on the ability of independ-
ent candidates to run in elections, such as unconsti-
tutionally early ballot-registration deadlines, can lim-
it the electoral competition incumbents must face—
and in some cases even leave voters with no meaning-
ful choice. Ohio had one such rule, requiring inde-
pendent candidates to submit nominating petitions
75 days before the major parties had their primary
elections. When an independent presidential candi-
date challenged that regulation as imposing an une-
qual burden on independent candidates, this Court
rightly adjudicated the case, even though the election
at issue was three years past and the particular in-
dependent candidate gave no indication he intended
to run again. See Anderson v. Celebrezze, 460 U.S.
780, 784 n.3 (1983) (“Even though the 1980 election is
over, the case is not moot.”). Thus, the Court was able
to review the law, and ultimately struck it down as
an impermissible burden “on the voters’ freedom of
choice and freedom of association.” Id. at 806.

In a world without the same-plaintiff exception for
election-law cases, these regulations, and others like


3

creates an incentive for defendants to obstruct the
speedy resolution of cases and thus win a technical
victory based on mootness.

In addition to resolving the circuit split regarding
the “same plaintiff’ requirement, the Court should
also accept this case to protect the important First
Amendment freedoms at stake. The petitioner has
challenged a senseless, six-month “seasoning” period,
after which the donation limits placed on a political
action committee (PAC) shift in conflicting and con-
tradictory directions. These arbitrary and mutually
inconsistent changes do nothing to reduce quid pro
quo corruption or the appearance of corruption. If an-
ything, the shifting limits contribute to corruption be-
cause they provide significant advantages to insiders
with pre-established PACs.

The law at issue violates the First Amendment
rights of newer PACs because they are barred from
full participation during the vital pre-election period.
A new PAC is hardly able to engage in the core First
Amendment speech of political advocacy if it must
wait until after an election cycle to disburse its funds.

Furthermore, the law needlessly burdens the First
Amendment rights of “seasoned” PACs that have ex-
isted for more than six months. The law’s shifting do-
nation limit forces such PACs to reduce their dona-
tions to existing political parties. To the extent that
the creators of a seasoned PAC created it to support
existing parties, the shifting regulatory structure re-
duces the utility of the existing PAC and creates an
incentive to either throw support to newer PACs.
These rules do nothing to reduce corruption and only
drive the proliferation of PACs for no reason other
than technical legal compliance.


No. 16-109

IN THE
Supreme Court of the Anited States

Stop RECKLESS ECONOMIC INSTABILITY CAUSED BY DEM-
OCRATS; TEA PARTY LEADERSHIP FUND; AND ALEXANDRIA
REPUBLICAN CITY COMMITTEE., ET AL.
Petitioners,

v.

FEDERAL ELECTION COMMISSION,
Respondent.

On Petition for a Writ of Certiorari to the
United States Court of Appeals for the Fourth Circuit

BRIEF FOR THE CATO INSTITUTE AS
AMICUS CURIAE IN SUPPORT OF PETITIONERS

Benjamin P. Edwards ILYA SHAPIRO

Barry University Counsel of Record

6441 East Colonial Drive Cato Institute

Orlando, Florida 32807 1000 Mass. Ave. N.W.

bpedwards@barry.edu Washington, D.C. 20001
(202) 842-0200
ishapiro@cato.org

August 24, 2016



6

A. The “Same-Plaintiff”’ Requirement
Impedes the Resolution of Controversies
over Voter-Identification Laws

Courts must vigilantly protect against the “inevi-
table tendency of elected officials to entrench them-
selves by targeting groups unlikely to vote for them.”
See N.C. State Conference of NAACP v. McCrory, No.
16-1468, 2016 WL 4053033, at *1 (4th Cir. July 29,
2016) (recognizing that “minority voters” may be
“uniquely vulnerable” to voter suppression laws). The
absence of an election-law exception reduces the abil-
ity of courts to review voter-identification laws be-
cause such laws often only prevent each individual
voter from participating in one election. For example,
defenders of enhanced voter-ID laws have repeatedly
sought the dismissal of suits challenging those laws
by arguing that such cases become moot once a plain-
tiff obtains or renews a photo ID. See, e.g., Frank v.
Walker, No. 11-C-1128, 2016 WL 3948068, at *2 (E.D.
Wis. July 19, 2016) (“The defendants point out that
two of these plaintiffs . . . have obtained ID, and con-
tend that therefore their claims are moot”); One Wisc.
Inst., Inc. v. Thomsen, No. 15-CV-324-JDP, 2016 WL
4059222, at *14 (W.D. Wis. July 29, 2016) (“Defend-
ants contend that the latest emergency rule fixes the
problems with the [ID system], and that because all
petitioners still in the process have a receipt valid for
voting, the dispute over the [ID process] is moot”).

So long as the same-plaintiff requirement is in
place, such tactics may allow these laws to persist in-
definitely, even if they disenfranchise minority voters
while addressing minor voter-fraud problems. See
One Wisc. Inst., 2016 WL 4059222, at *2 (“The Wis-
consin experience demonstrates that a preoccupation


5

stantive law, because courts that do not recognize the
“same-plaintiff’ exception will be simply unable to
adjudicate many significant election-law questions.
For example, jurisdictions that do not recognize the
election-law exception may be significantly less likely
to adjudicate the constitutionality of time-limited
election laws. See, e.g., Dunn v. Blumstein, 405 U.S.
330, 338 (1972) (“Tennessee’s durational residence
laws classify bona fide residents on the basis of recent
travel, penalizing those persons . . . who have gone
from one jurisdiction to another during the qualifying
period.”). If the same-plaintiff rule remains in place,
some jurisdictions will be able to insulate their voter-
suppression laws from review, generating great dis-
parities in the enforcement of constitutional rights.

Il. THE “SAME-PLAINTIFF” REQUIREMENT
CREATES PROBLEMS IN ELECTION LAW

Justiciability and mootness doctrines currently
“lacks a coherent theoretical foundation.” Matthew I.
Hall, The Partially Prudential Doctrine of Mootness,
77 Geo. Wash. L. Rev. 562, 562 (2009). It is not sur-
prising, then, that lower courts have struggled to ap-
ply them. In many instances, courts simply take a
prudential approach, adjudicating cases even when a
party’s personal interest may be moot or tenuous at
best. Id. As explained below, the election-law context
presents unique challenges to adjudicating legal is-
sues before particular plaintiffs undergo a permanent
change in legal status, and therefore it calls for a
clear exception to the same-plaintiff requirement.


2

contexts, courts applying this exception typically re-
quire that the controversy be capable of repetition re-
garding the same plaintiff. See, e.g., Weinstein v.
Bradford, 423 U.S. 147, 149 (1975). But, as the Peti-
tion explains, such an approach would severely limit
review in election-law cases—and this Court has thus
often relaxed or waived this “same-plaintiff’ require-
ment in such situations. See Pet. at 1-2.

This case presents a valuable opportunity for the
Court to explicitly affirm this election-law exception
that has already been recognized and applied by its
jurisprudence. Indeed, circuit courts are divided over
the same-plaintiff exception. This split threatens to
open a rift across federal jurisdictions in the ability of
people to enforce their fundamental constitutional
rights. Affirming the election-law exception to the
same-plaintiff requirement will ensure that courts
can continue to actually resolve disputes, and it will
increase the likelihood that future elections proceed
in an orderly, constitutionally valid manner.

Without an election-law exception to the same-
plaintiff requirement, substantial harms to voting
rights will occur without legal redress. In particular,
legislators may exploit the same-plaintiff rule to sup-
press voting by discrete groups. As this case shows,
timing-related restrictions may limit participation
during the crucial pre-election period and then phase
out once the election is over, preventing judicial scru-
tiny of the underlying unconstitutional law.

The “same-plaintiff’ requirement rewards plain-
tiffs and defendants alike for taking disingenuous po-
sitions. It creates an incentive for plaintiffs to allege
that they will run again in the future, even if they
have no future desire to run for public office. And it


16

In sum, neither of the lowered contribution limits
are likely to achieve the benefits that motivated Con-
gress to enact them—such as lowering the influence
of newer PACs or decreasing the amount of money in
politics. Instead, both are far more likely to backfire
and make the world of campaign finance more arcane
and abstruse, benefitting only those with the re-
sources, networks, and strategic expertise necessary
to navigate it.

B. The Contribution Limits Do Not Decrease
the Risk of Corruption, And Therefore
Violate The First Amendment

Besides the fact that they are unlikely to achieve
their desired effect, these regulations also face an
even more fundamental problem. Even if they did
achieve these desired effects, neither of these goals
would justify the restriction on First Amendment po-
litical participation that the limitations entail. The
Court has “made clear that Congress may not regu-
late contributions simply to reduce the amount of
money in politics, or to restrict the political participa-
tion of some in order to enhance the relative influence
of others.” McCutcheon v. FEC, 134 S. Ct. 1434, 1441
(2014). Instead, it is only decreasing quid pro quo
corruption (or the appearance thereof) that can justi-
fy such limits. Id.

When determining whether a donation is likely to
purchase influence and therefore become corrupting,
it is the amount of a donation—not its source—that is
key. This is clear from the Court’s approach in
McCutcheon, which looked at the amount individuals
could donate per candidate—rather than the amount
individuals were permitted to donate in the aggre-
gate—in determining whether the limitation was


iii

II. THE CONTRIBUTION LIMITS AT ISSUE
INCENTIVIZE STRATEGIC BEHAVIOR
BY PACS AND DO NOT DECREASE THE

RISK OF CORRUPTION... eeeeseseseteeeeees 14
A. The Contribution Limits are Unlikely to
Achieve Their Desired Effects ...........eeee 14

B. The Contribution Limits Do Not Decrease
the Risk of Corruption, and Therefore
Violate the First Amendment ..............0005 16

CONCLUSION ..0.. ce cesecccceesessseseseeeesesesesesescseseseenenes 18


9

ment, plaintiffs are forced to “tip their hand” to main-
tain standing, by declaring that they intend to act in
future elections in ways that will expose them to the
same regulations. Such a requirement is in sharp
tension with the respect for autonomy and independ-
ent decisionmaking at the heart of political freedom.

Political groups that are unwilling to reveal their
intentions and strategies years in advance should not
be prevented from vindicating their legal rights. The
Court’s precedents show that such groups have only
found adequate protection when the same-plaintiff
requirement has been discarded. For example, in Ro-
sario v. Rockefeller, this Court retained jurisdiction to
resolve the constitutionality of a party-registration
deadline, even though no plaintiff could guarantee a
desire to change their party registration again in fu-
ture elections. 410 U.S. 752 (1978). It was enough for
the Court to simply note that the “petitioners will be
eligible to vote in the next scheduled New York pri-
mary” and to leave the question of whether they ac-
tually would vote unanswered. Id. at 756 n.5. The
Court recognized that this is a choice voters should be
free to make when they choose to make it, not one
that they should be forced to make (or pretend to
make) just to artificially preserve standing.

The experience of the plaintiffs in Rosario stands
in stark contrast to the experience of plaintiffs in cir-
cuits that rigidly apply the same-plaintiff require-
ment in election-law cases. For example, when a
group of plaintiffs challenged a New York require-
ment that voters register for one of the party prima-
ries before knowing who would be running in that
primary, the Second Circuit dismissed the case as
moot because the plaintiffs could not guarantee they


11

es for as long as possible, in the hope that the expira-
tion of an election will protect them from having to
defend a law on the merits. Once an election or time
limit passes, the legal issue may be deemed “moot,”
effectively insulating the law or practice from review
and vindicating the most dilatory defendants.

In many instances, it may be difficult to differen-
tiate legitimate but time-consuming behavior from
foot-dragging designed to destroy jurisdiction. For in-
stance, here the respondent repeatedly insisted on
time-consuming discovery, even though it never cited
any evidence developed from that discovery. See, e.g.,
Pet. at 14-15. Foot-dragging or legitimate legal strat-
egy? The same-plaintiff requirement makes it diffi-
cult to determine the strategic calculus behind such
fruitless requests for discovery, but it assuredly
makes such requests more common.

The benefits of delay caused by the same-plaintiff
rule may unfairly force defendants into ethical di-
lemmas. The ABA’s Model Rules of Professional Con-
duct call for lawyers to “make reasonable efforts to
expedite litigation consistent with the interests of the
client.” ABA Model Rule Prof. Conduct 3.2. A com-
ment to that rule explains that a failure to expedite
litigation is not reasonable “if done for the purpose of
frustrating an opposing party’s attempt to obtain
rightful redress.” Id. Cmt. 1 (“It is not a justification
that similar conduct is often tolerated by the bench
and bar.”). The same-plaintiff rule inherently puts
the strategic interests of defendants in tension with
this rule, since victory can often be assured simply by
stretching a case beyond the six-month point. Thus,
even when defendants have not actually violated this
rule, the same-plaintiff requirement will naturally


ii

TABLE OF CONTENTS
QUESTIONS PRESENTED..
TABLE OF AUTHORITIES..

INTEREST OF THE AMICUS CURIAE..
INTRODUCTION AND SUMMARY OF

I. THE DECISION BELOW WIDENS THE
VAST DISPARITY ACROSS THE CIRCUITS
IN THE ABILITY OF PEOPLE TO PROTECT
THEIR FIRST AMENDMENT RIGHTS ............ 4

I. THE “SAME-PLAINTIFF” REQUIREMENT
CREATES SIGNICANT PROBLEMS IN
ELECTION LAW .......ccccccesessesesesesesssseeseeneneeeeeieee 5

A. The “Same-Plaintiff’ Requirement
Impedes the Resolution of Controversies
over Voter-Identification Laws ............c0 6

B. The “Same-Plaintiff’ Requirement Allows
Legal Uncertainty to Fester and Increases

the Likelihood of Mid-Election Crises............ 7
C. The “Same-Plaintiff’ Requirement Creates
Perverse Incentives ...........ccceeeeseseeeeeeeeee 8

1. It incentivizes plaintiffs’ disingenuous
predictions to preserve jurisdiction......... 8

2. It rewards defendants for causing
unnecessary delay. ......eccceceseteseeseeeeees 10

3. It lets legislatures shield incumbent-
protecting laws from judicial review. .... 12


i
QUESTIONS PRESENTED

1. In the context of election law, may federal courts
adjudicate the merits of disputes that are “capable
of repetition, yet evading review” even though the
same plaintiff may not face the same issue again?

2. May the government reduce First Amendment
rights after six months by cutting the amount that
political committees (PACs) may contribute to po-
litical parties, so long as it simultaneously boosts
a different form of political activity by increasing
the amount PACs may contribute to candidates?


7

with mostly phantom election fraud leads to real in-
cidents of disenfranchisement”). The longer that con-
troversies over election laws persist without resolu-
tion, the more the perceived integrity of elections will
be called into doubt. Only by explicitly recognizing an
election-law exception to the same-plaintiff require-
ment can this Court protect electoral legitimacy.

B. The “Same-Plaintiff’ Requirement Allows
Legal Uncertainty to Fester and Increases
the Likelihood of Mid-Election Crises

Resolving the validity of a law at the earliest op-
portunity is particularly important in the election-
law context, since allowing such issues to remain un-
settled threatens to taint future elections and dimin-
ish public confidence in the electoral process. But
without a same-plaintiff exception in such cases,
courts are often left with two unappealing alterna-
tives: either address difficult legal issues in a hurried
rush so that they can be adjudicated before the next
election or not resolve the issue at all once the next
election renders it moot. Cf. Veasey v. Abbott, No. 14-
41127, 2016 WL 3923868, at *16 (5th Cir. July 20,
2016) (explaining that in reaching its decision, the
court took into account the time “needed to com-
municate those modifications to the wider public so
as not to disrupt the election process”). An election-
law exception to the same-plaintiff requirement en-
sures that courts can engage in the ordinary delibera-
tive process and resolve these issues accurately.

It is far from ideal for courts to resolve legal issues
in an emergency, during the heat of an election and
subject to the distortions created by the charged, par-
tisan atmosphere. See, e.g., Bush v. Gore, 531 U.S. 98
(2000). The Court understood as much when it chose


10

would face the same situation in a future primary.
Van Wie v. Pataki, 267 F.3d 109, 115 (2d Cir. 2001).
Ironically, the freedom not to be forced to declare
one’s voting intentions before knowing the full cir-
cumstances of an election was precisely the right at
issue in the case. Vindicating that right in one elec-
tion would have been of little benefit if the plaintiffs
had been forced to guarantee in advance their behav-
ior in a subsequent election. Nonetheless, the Second
Circuit held that “a mere theoretical possibility that
the controversy is capable of repetition with respect”
to the same plaintiff in a future primary forced the
court to dismiss the case as moot. Id.

The same-plaintiff requirement also creates a per-
verse incentive for plaintiffs to avoid curing known
issues, since this is one tactic to guarantee that the
issue will affect them in future elections. For exam-
ple, in instances where litigants challenge identifica-
tion or registration requirements, the same-plaintiff
requirement creates a strong incentive to avoid ob-
taining an ID or providing updated registration in-
formation, so that the defect remains present during
the full course of litigation. An exception to the same-
plaintiff requirement would allow litigants to obtain
ID or register without mooting an otherwise valid
challenge—one that will protect others who have not
yet obtained that identification or registration.

2. It rewards defendants for causing un-
necessary delay.

Just as the same-plaintiff requirement creates
awkward—and sometimes perverse—incentives for
plaintiffs, so does it also create counterproductive in-
centives for defendants. Specifically, it incentivizes
defendants to delay the resolution of election-law cas-