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TABLE OF CONTENTS 

Page 

TABLE OF AUTHORITIES .................................. .ii 

ARGUMENT ........................................................... l 

I. THIS COURT SHOULD RESOLVE 

WHETHER THE SAME-PLAINTIFF 

REQUIREMENT OF THE "CAPABLE 

OF REPETITION, YET EVADING 

REVIEW' DOCTRINE APPLIES IN 

ELECTION-LAW CASES ................................. ! 

II. THIS COURT SHOULD CONSIDER 

PETITIONERS' EQUAL PROTECTION 

CLAIM BECAUSE THE FOURTH CIRCUIT'S RULING CONFLICTS 

WITH THIS COURT'S EQUAL 

PROTECTION AND CAMPAIGN 

FINANCE JURISPRUDENCE ......................... 8 

CONCLUSION ...................................................... 13 

,_; 
11 111 

UTHORITIES First Nat'l Bank v. Bellotti, 

Page(s) 435 U.S. 765 (1978) ............................................ 3 

Gerstein v. Pugh, 

420 U.S. 103 (1975) ..................................... , ...... 6 

....................................... 2 

....................................... 7 

Honig v. Doe, 

484 u.s. 305 (1988) ........................................ 2, 4 

. FEC, 

.................................... 10 

Ill. State Bd. of Elections v. 

Socialist Workers Party, 

440 u.s. 173 (1979) ............................................ 9 

nne, 

....................................... 2 

Kucinich v. Texas Democratic Party, 

563 F.3d 161 (5th Cir. 2009) .............................. 3 

.................................... 11 

Lawrence v. Texas, 

539 U.S. 558 (2003) ............................................ 8 

ng Ctr, Inc., 

................................... 8, 9 

League of Women Voters 

of N.C. v. North Carolina, 

769 F.3d 224 (4th Cir. 2014) .......... : ................... 5 

99850 

Mandel v. Bradley, 

432 U.S. 173 (1977) ............................................ 2 

 ...................................... 1 McCutcheon v. FEC, 

134 S. Ct. 1434 (2014) ...................................... 10 

....................................... 3 Meyer v. Grant, 

486 U.S. 414 (1988) ............................................ 3 

....................................... 2 Missourians for Fiscal Accountability v. Klahr, 

....................................... 4 

No. 15-2172, 2016 U.S. App. LEXIS 13767 

(8th Cir. July 29, 2016) ...................................... 1 

 Life, Inc., 

....................................... 3 

Moore v. Haseman, 

591 F.3d 7 41 (5th Cir. 2009) .............................. 3 

,, 
V 

....................................... 4 

........................... : ........... 5 

 Realty Co., 

1978) .............................. 5 

., 

................................... 2, 3 

................................... 2, 6 

....................................... 4 

rea New Party, 

..................................... 12 

Life v. FEC, 

2001) .............................. 5 

....................................... 2 

....................................... 9 

....................................... 5 

................................... 6, 7 

v 

Joshua A. Douglas, 

The Procedure of Election 

Law in Federal Courts, 

2011 UTAH 1. REV. 433 ...................................... 8. 

Matthew I. Hall, The Partially 

Prudential Doctrine of Mootness, 

77 GEO. WASH. 1. REV. 562 (2009) ..................... 8 

Samuel Isaacharoff & Pamela S. Karlan, The 

Hydraulics of Campaign Finance Reform, 

77 TEX.' 1. REV. 1705 (1999) ............................. 11 

Samuel Isaacharoff & Richard H. Pildes, 

Politics as Markets: Partisan Lockups 

of the Democratic Process, 

50 STAN. 1. REV. 643 (1998) ............................. 12 

MichaelS. Kang, 

The Year of the Super PAC, 

81 GEO. WASH. 1. REV. 1902 (2013) ................. 12 

Michael W. McConnell, 

Moderation and Coherence 

in American Democracy, 

99 CALIF. 1. REV. 373 (2011) ............................ 12 

Garrick B. Pursley, 

The Campaign Finance 

Safeguards of Federalism, 

63 EMORY L.J. 781 (2014) ................................ 12 

Daniel Tenny, Note,. There is Always a Need: 

· The "Necessity Doctrine" and Class 

Certification Against Government Agencies, 

103 MICH. 1. REV. 1018 (2005) .......................... 6 

.. 

rJ 
 

ess, Class Action 

Not to Sue, 

(2015) .......................... 6 

1 

ARGUMENT 

I. THIS COURT SHOULD RESOLVE 

WHETHER THE SAME-PLAINTIFF 

REQUIREMENT OF THE "CAP ABLE 

OF REPETITION, YET EVADING 

REVIEW' DOCTRINE APPLIES IN 

ELECTION-LAW CASES 

In the few weeks since this Petition for Certiorari 

was filed, courts have applied the "same plaintiff' requirement of the "capable of repetition, yet 

evading review" doctrine in yet more election-law 

cases to determine whether the plaintiffs would have 

their day in court. See, e.g., Cromwell v. Kobach, No. 

15-9300-JAR-JPO, 2016 U.S. Dist. LEXIS 99850, at 

*27-30 (D. Kan. July 29, 2016) (dismissing lead 

plaintiffs challenge to a proof-of-citizenship 

requirement for voter registration as moot because he would not again be subject to the challenged regulation); cf. Missourians for Fiscal Accountability 

v. Klahr, No. 15-2172, 2016 U.S. App. LEXIS 13767, 

at *11-12 (8th Cir. July 29, 2016) (holding that the 

plaintiff political committee's claims were not moot 

because it would be subject to the challenged 

statutes again in the next election cycle). Whether 

the same-plaintiff requirement applies to electionlaw cases is a crucial question that will continue to 

arise repeatedly and requires definitive resolution. 

The Government's arguments cast no doubt upon 

the compelling need for certiorari. This case 

presents a pure question of law that has thoroughly percolated throughout the federal judiciary for years, 

dividing eight circuits and causing rifts within this 

Court's own precedents. It involves a fundamental 
jurisdiction specifically 

cases, an area of critical 

ng democracy. The split 

fairness, with the ability 

n materially identical 

depending on the 

e able to file. 

ntends that the various 

 this Court did not apply 

ment were sub silentio 

 this Court purportedly 

plaintiff requirement" in 

3 U.S 147 (1975) (per 

a, 419 U.S. 393 (1975). 

is flawed. 

 itself recognizes that 

mally overturn ... earlier 

p. at 11 (quoting Shalala 

 Care Inc., 529 U.S. 1, 18 

plaintiff requirement was 

se 1975 cases, but rather 

ced before then. See, e.g., 

6 U.S. 312, 319 (1974); 

mm 'rs of Princess Anne, 

(1968). 

continued applying the 

to the same-plaintiff 

975. See Anderson v. 

84 n.3 (1983); Mandel v. 

5 n.1 (1977). Thus, this 

isregard Justices Scalia's 

 of the body of precedent 

w exception to the same

nig v. Doe, 484 U.S. 305, 

nting). 

w 

3 

2. The Government also argues that recognizing 

an election-law exception to the same-plaintiff 

requirement "would be inconsistent with this Court's recent election-law decisions in Davis v. FEC, 554 

U.S. 724 (2008), and FEC v. Wisconsin Right to Life, 

Inc., 551 U.S. 449 (2007) (WRTL)." Opp. at 10. This 

Court allowed the plaintiffs in those cases to litigate 

their claims, · despite possible mootness concerns, 

because the challenged provisions would likely apply 

to them again in the future. Id. 

As noted.above, however, cases such as Davis and 

WRTL may not be read as sub silentio overruling 

"'earlier authority"' from this Court recognizing and 

applying the election-law exception to the sameplaintiff requirement. Opp. at 11 (quoting Shalala, 

529 U.S. at 18). Moreover, because the plaintiffs in 

Davis and WRTL would be subject to the challenged 

provisions again, this Court did not need to 

determine whether the election-law exception 

remained good law. In short, Davis and WRTL neither considered the issue nor overturned any of 

this Court's earlier precedents regarding it. See 

Moore v. Haseman, 591 F.3d 741, 744-45 (5th Cir. 

2009); Kucinich v. Texas Democratic Party, 563 F.3d 

161, 164-65 (5th Cir. 2009).1 

3. The Government further claims that, in the 

cases in which this Court recognized the election-law 

exception to the same-plaintiff requirement, "the 

normal requirements of the capable-of-repetition 

[doctrine] either were satisfied or presumably could 

have been satisfied." Opp. at 12. But the 

1 The same analysis applies to the other cases the Government 

cites, First Nat7 Bank v. Bellotti, 435 U.S. 765, 774-75 (1978), 

and Meyer v. Grant, 486 U.S. 414, 417 n.2 (1988). Opp. at 11. 
 

dispose of inconvenient 

s Court's actual reasoning 

tuting some hypothetical 

rt did not employ. 

4 U.S. 814, 815 (1969), the 

after the election because 

hallenged legal provision 

tion of candidates for 

d] and control[led] future 

torer v. Brown, 415 U.S. 

t held that the "capable of 

ied because "the issues 

eir effects on independent 

as the California statutes 

tions." See also Dunn v. 

32 n.2 (1972) (holding that 

 doctrine applied because 

ain[ed] on the books" and 

"). These rulings lack any 

the challenged provisions 

he same plaintiffs again. 

 and O'Connor recognized 

sD instead upon the great 

 will recur between the 

members of the public at 

calia, J., dissenting). This 

ari to affirm the continued 

cast doubt on Petitioners' initial 

 baseless. Opp. at 16. The 

he founders of Stop REID and 

trol[led] the timing of their 

rticular election.'" Id. (quoting 

when Stop REID and American 

ver, they still would have been 

( 

\ 

( 

( 

5 

4. The Government additionally asserts that 

Petitioners' claims would have remained justiciable 

had this case been certified as a class action. Opp. 6-

7, 11, 12.3 Under the law of the Fourth Circuit and 

other jurisdictions, however, Petitioners had the 

right to seek effectively classwide injunctive relief, 

enjoining the law with regard to all similarly 

situated P ACs, even without class certification. See 

Sandford v. R.L. Coleman Realty Co., 573 F.2d 173, 

178 (4th· Cir. 1978) ("Since the plaintiffs could 

receive the. same injunctive relief in their individual 

action as they sought by the filing of their proposed 

class action, class certification was unnecessary in order to give the plaintiffs the injunctive relief they 

requested through class certification .... ");see; e.g., 

League of Women Voters of N.C. v. North Carolina, 

769 F.3d 224, 248-49 (4th Cir. 2014) (enjoining state 

from shortening the early voting period for any 

voters, even though the case was not a class action). 

But see Virginia Soc'y for Human Life V; FEC, 263 

F.3d 379, 392-93 (4th Cir. 2001). Thus, all of the 

rationales that led this Court to eliminate the "same 

plaintiff' requirement in class-action cases apply 

subject to the six-month waiting period, which arose as a 

matter of statute, see 52 U.S.C. § 30116(a)(1)(A), (a)(2)(A), 

(a)(4), rather than their founders' decisions. 

3 The Government dismisses Rosario v. Rockefeller, 410 U.S. 

752, 756 n.5 (1973) (cited in Opp. at 12), on the grounds that it 

was a class action. In determining that the case remained 

justiciable, however, the Court did not consider its status as a 

class action.. See id. 
f Sosna, 419 U.S. at 401-

tiff seeks injunctive or 

ainst an allegedly 

many circuits refuse to 

son that certification is 

ame effectively classwide 

ess of whether the suit 

See Daniel Tenny, Note, 

e "Necessity Doctrine" and 

t Government Agencies, 

019 n.8 (2005) (collecting 

tion of challenges to legal 

electoral process is a 

esture. Rule 23(b)(2) 

which the plaintiff seeks 

elief. FED. R. CIV. P. 

fies a Rule 23(b)(2) class, 

ve class members notice, 

 or the chance to opt out. 

Ryan C. Williams, Due 

uts, and the Right Not to 

9, 610 (2015). And when 

 constitutionality of an 

tein v. Pugh, 420 U.S. 103, 110 

 remained justiciable after the 

n part because "[t]he attorney 

ents is a public defender, and 

e has other clients with a 

his case." Likewise, here, 

experienced political law 

ted, presently represent, and 

he future numerous political 

nth waiting period at issue. 

7 

election-related provision as a matter of law, its 

claim is necessarily common to, and typical of, all 

potential class members. Cf. Fed. R. Civ. 23(a)(2)-

(4). 

Indeed, in most election-law cases, no meaningful 

class can be certified. In cases where courts have applied the election-law exception to the sameplaintiff requirement, the alternative would have 

been to certify a plaintiff class of all present and 

future voters (i.e., nearly the entire population, 

including children), or anyone who might ever run 

for office. Certifying a class of any non-connected 

PAC created at any point in the future that receives 

at least 50 contributions, contributes to at least 5 

candidates, and is registered with the FEC for less 

than six months is not much more practicable. 

Justiciability in election law cases should not turn 

on the certification of effectively limitless classes of 

unidentifiable people and hypothetical future 

groups. 

5. Perhaps most importantly, this case gives 

the Court an opportunity to insulate the federal 

judiciary from the morass of politics without 

sacrificing its institutional obligation to enforce the 

Constitution. Preserving the election-law exception 

to the same-plaintiff requirement will make it easier 

for this Court to adjudicate critical election-related 

issues outside the context of particular elections 

where the outcome hangs in the balance, and the 

identities of the candidates who would immediately 

benefit from different possible rulings are 

definitively known. Cf. Bush v. Gore, 531 U.S. 98 

(2000) (per curiam). 

Both the concept of mootness and the "capable of 

repetition, yet evading review" doctrine are at least 
w I. Hall, The Partially 

tness, 77 GEO. WASH. L. 

he election-law exception 

uirement would be a 

g the federal judiciary's 

with an ever-increasing 

lection-related disputes. 

he Procedure of Election 

1 UTAH L. REV. 433, 442 

eightened legitimacy for 

. For these reasons, this 

i. 

ULD CONSIDER 

UAL PROTECTION 

THE FOURTH 

G CONFLICTS 

T'S EQUAL 

 CAMPAIGN 

RUDENCE 

grant certiorari to reject 

 reinterpretation of this 

urisprudence, which the 

y embraces. See Opp. 

ndamental tenet of Equal 

rsons similarly situated 

Cleburne v. Cleburne 

432, 439 (1985); accord 

 558, 579 (2003). In this 

political committees are 

rent restrictions on their 

ical parties based solely 

registered with the FEC 

9 

for six months. This Court repeatedly has 

invalidated laws that discriminate among materially identical political associations based on whether 

they are new or established. See, e.g., Ill. State· Bd. 

of Elections v. Socialist Workers Party, 440 U.S. 173, 

176-77, 183-87 · (1979) (applying strict scrutiny and 

invalidating law that invidiously subjected newer 

political parties to different ballot access 

requirements than established parties); Williams v. 

Rhodes, 393 U.S. 23, 31-32 (1968) (same). 

Moreover; the statutory scheme. of which this 

discrimination is a part is completely irrational. 

The Government has not offered a coherent 

explanation for this bizarre, internally inconsistent 

system. Nor has it attempted . to explain why 

contributions to political parties that were perfectly 

acceptable throughout the first six months of a 

PAC's existence somehow become more pernicious or 

corrupting once the group hits that six-month mark. 

The Government asks this Court to tacitly accept 

the Fourth Circuit's theory of "different but 

equivalent." In the Government's view, Congress 

may treat materially identical groups differently 

with regard to the exercise of constitutionally 

protected rights so long as the "'overall' restrictions" 

to which the groups are subject are purportedly 

comparable. Opp. at 17 (quoting Pet. App. A27). 

Such reasoning does not accord with contemporary 

Equal Protection doctrine. See Cleburne, 473 U.S. 

at 439. 

2. The Fourth Circuit'$ holding also directly 

contravenes this Court's campaign finance 

jurisprudence, which prohibits the Government from 

restraining people's First Amendment activities to 

enforce or preserve some aggregate or "overall" limit. 

# 
0 

 Ct. 1434, 1448-49 (2014). 

not vitiate a political 

ntribute to the political 

nts to associate, on the 

reased that committee's 

ndidates with whom the 

terest in associating. 

ment expressly declined to 

atic reduction in limits on 

 parties is tailored to 

ent corruption. See Opp. 

ourt's campaign finance 

t "[a]ny regulation" of 

must . . . target . . . 

ce." McCutcheon, 134 S. 

d). 

nt and the Fourth Circuit 

scheme is immune from 

ration under California 

453 U.S. 182 (1981) 

16; Pet. App. A23-A28. 

 this case into CalMed is 

eg, round hole. CalMed 

ose different contribution 

 and unincorporated 

nions and corporations,"' 

e differing structures and 

S. at 201 (quoted in Opp. 

different entities "may 

gulation.'' ld. 

Petitioners challenge 

on entities of the same 

Political committees that 

n every respect-groups 

11 

that may have the same "structure," "purpose," 

number of contributors, financial resources, and staff 

size as each other-are permitted to exercise their 

First Amendment rights to substantially different 

degrees based solely on whether they have been 

registered for six months. Yet the Government 

offers no indication that, after it has been registered 

for six months, a committee becomes more likely to 

engage in corruption with political parties (and 

simultaneously less likely to engage in corruption 

with candidates). 

The Fourth Circuit's ruling thus violates 

fundamental principles of Equal Protection and 

campaign finance jurisprudence, and is contrary not 

only to McCutcheon, but CalMed itself. 

4. This important issue warrants certiorari. 

FEC records show that approximately 1, 700 

multicandidate PACs are subject to this 

discriminatorily low limit on contributions to 

political parties. Collectively, these PACs have 

raised hundreds of millions of dollars; this case 

presents the question of whether they have the right 

to contribute twice as much to political parties. 

Extraordinary amounts of constitutionally protected 

associational and expressive activity are at stake. 

Furthermore, as a result of this Court's ruling in 

Citizens United v. FEC, 558 U.S. 310 (2010), 

SuperPACs have come to . dominate the political 

landscape. Funds that cannot be given to political 

parties due to contribution limits are being diverted, 

in part, to SuperPACs. Cf. Samuel Isaacharoff & 

Pamela S. Karlan, The Hydraulics of Campaign 

Finance Reform, 77 TEX. L. REV. 1705 (1999). Super 

PACs are supplanting the traditional role of political 

parties in identifying viable candidates for public 
2 

rces necessary to support 

jor media markets with 

e.g., Garrick B. Pursley, 

feguards of Federalism, 63 

14); MichaelS. Kang, The 

GEO. WASH. 1. REV. 1902, 

traditionally acted as a 

erican politics. Samuel 

ildes, Politics as Markets: 

Democratic Process, 50 

(1998) (discussing median 

 McConnell, Moderation 

n Democracy, 99 CALIF. L. 

ause of the stabilizing role 

Court has recognized the 

 our party-based system. 

rea New Party, 520 U.S. 

ing these discriminatory 

cal party fundraising will 

perform their traditional 

titutions, offsetting some 

ctural consequences of 

erican political system. 

13 

CONCLUSION 

For these reasons, this Court should grant the 

petition. 

OCTOBER 2016 

Resp-ectfully submitted, 

Michael T. Morley* 

COOLIDGE-REAGAN FOUNDATION 

1629 K St., Suite 300 

Washington, DC 20013 

(860) 778-3883 

michael@ coolidgereagan.org 

Counsel for Petitioners 

& Petitioner-Intervenor 

*COUNSEL OF RECORD 

Dan Backer DB CAPITOL STRATEGIES, PLLC 

203 S. Union St., Suite 300 

Alexandria, VA 22314 

(202) 210-5431 

· DBacker@DBCapitolStrategies.com 

Counsel for Petitioners 

J erad N ajvar 

NAJV AR LAW FIRM 

4151 Southwest Fwy. #625 

Houston, TX 77027 

(281) 494-4696 

jerad@najvarlaw.com 

Counsel for Petitioner-Intervenor