UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

________________ _________________ STEPHEN JONES, Plaintiff - Appellant,

v. J. KEVIN STITT; PAUL ZIRIAX, Defendants - Appellees.

------------------------------ THE OKLAHOMA HOUSE OF REPRESENTATIVES; THE OKLAHOMA SENATE, Amici Curiae. No. 22-6094 (D.C. No. 5:22-CV-00278-HE) (W.D. Okla.)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before TYMKOVICH , MORITZ , and ROSSMAN , Circuit Judges.

________________ _________________

* After examining the briefs and appella te record, this pa nel has determined unanimously to honor the parties’ request for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore submitted without oral argument. This orde r and judgment is not binding precedent, except under the doctrines of law of the ca se, res judicata, and collateral estoppel. But it may be cited for its persuasive value. See Fed. R. App. P. 32.1(a); 10th Cir. R. 32.1(A). FILED United States Court of Appeals Tenth Circuit 

### February 2, 2023 Christopher M. Wolpert Clerk of Court Appellate Case: 22-6094 Document: 010110807177 Date Filed: 02/02/2023 Page: 12 Stephen Jones challenges the district c ourt’s order dismissing his Seventeenth Amendment claims for lack of standing an d alternatively rejecting such claims on their merits. For the reasons explained belo w, we dismiss Jones’ s appeal as moot. Background In late February 2022, Oklahoma’s U.S. Senator James Inhofe announced in a letter to Oklahoma’s secretary of state that he would retir e on January 3, 2023, rather than serve out the remainder of his term, which runs until January 2027. In the letter, Inhofe invoked an Oklahoma procedure that permits a U.S. senator to file an irrevocable resignation letter before the actual resignation da te, thereby allowing Oklahoma to conduct the nece ssary special elections to f ill the anticip ated vacancy ahead of time

. See Okla. Stat. tit. 26, §§ 12-101, -1 19. On March 1, 2022, in response to Inhofe’s letter, Oklahoma’s governor is sued a proclamation setting the specialelection dates for Inhofe’s replacement: a sp ecial primary election on June 28, 2022; a special runoff primary election, if ne cessary, on August 23, 2022; and special general election on N ovember 8, 2022. A month after the proclamation, Jones filed this action against Oklahoma’s governor and the secretary of the stat e election board (together, defendants), challenging Oklahoma’s vacancy procedures. 1 Jones invoked the Seventeenth Amendment, which provides for replacement elections “[w]hen v acancies happen” in the Senate. Specifically, hi s complaint assert ed that Oklahoma’s 2022 special

1 He first attempted to challenge th e vacancy procedures at the Oklahoma Supreme Court, but that court declined jurisdiction. Appellate Case: 22-6094 Document: 010110807177 Date Filed: 02/02/2023 Page: 23 elections were unconstitutionally premature because Inhofe’s lett er created only an anticipated vacancy, not an actual vacancy. An act ual vacancy would not happen, according to Jones, until the date Inhofe actually resigned. Jones contended that upon such date, the governor should appoint a temporary replacement until the next appropriate election cycle under Oklahoma law, which Jones reasoned would be 2024. Jones also attached to his complain t a letter asking the governor to appoint him to Inhofe’s vacant seat pending that anticip ated 2024 election cycle. As relief, Jones asked the district court to enter an order (1) preventing the 2022 special elections and (2) directing the governor to set the 2024 special elections and to appoint an interim senator to fill the gap. Defendants moved to dismiss on the basis that Jones lacked standing and failed to state a claim. On June 1, 2022, the di strict court conclude d that Jones lacked standing and dismissed the case for lack of ju risdiction. In the alte rnative, it rejected Jones’s claims on the merits. Jones appealed on June 9. After he fi led his optional repl y brief on September 23, his appeal was placed on our Janua ry 2023 oral-argument calendar (though submitted on the briefs). On November 23, 2022, because the special elections Jones sought to prevent had already occurred, we ordered supplem ental briefing on

mootness. 2

2 Jones did not seek to expedite this appeal until Decemb er 14, 2022—well after the November 8, 2022 special general election that he sought to prevent and a week after he filed his supplemental br ief arguing against mootness. And he only sought to expedite in th e alternative; his motion pr imarily sought an injunction Appellate Case: 22-6094 Document: 010110807177 Date Filed: 02/02/2023 Page: 34 Analysis We review mootness de novo. 3 WildEarth Guardians v. Pub. Serv. Co. of Colo. , 690 F.3d 1174, 1181 (10th Cir. 2012). M ootness is a “jurisdictional doctrine originating in Article III’s ‘cas e’ or ‘controversy’ language.” 4 Id. at 1182; see also U.S. Const. art. III, § 2, cl . 1. “In considering mootness, we ask ‘whether granting a present determination of the issues offered w ill have some effect in the real world.’” Fleming v. Gutierrez , 785 F.3d 442, 444–4 5 (10th Cir. 2015) (emphasis omitted) (quoting Rio Grande Silvery Minnow v. Bureau of Reclamation , 601 F.3d 1096, 1110 (10th Cir. 2010)). Accordingl y, “if an event occurs while a case is pending on appeal that makes it impossible for the court to grant any eff ectual relief whatever to a prevailing party, we must di smiss the case[] rath er than issue an advisory opinion.” Id. at 445 (quoting Stevenson v. Blythevill e Sch. Dist. No. 5 , 762 F.3d 765, 768 (8th Cir. 2014)). We “must decide whether a case is moot as to ‘each form of relief sought.’” Prison Legal News v. Fe d. Bureau of Prisons , 944 F.3d 868, 880 (10th Cir. 2019) (quoting Collins v. Daniels , 916 F.3d 1302, 1314 (10th Cir. 2019)).

prohibiting Oklahoma’s governor from cert ifying the election results pending the outcome of his appeal. We denied that motion on December 29. 3 We choose to begin with mootness even though the district court dismissed Jones’s claims for lack of standing because “[t]here is no manda tory ‘sequencing of nonmerits issues’” like these. Citizen Ctr. v. Gessler , 770 F.3d 900, 906 (10th Cir. 2014) (alteration in original) (quoting Sinochem Int’l Co. v. Ma laysia Int’l Shipping Corp. , 549 U.S. 422, 431 (2007)). 4 Mootness also has prudential element that can come into pl ay “if events so overtake a lawsuit that the an ticipated benefits of a reme dial decree no longer justify the trouble of deciding the case on the merits.” Winzler v. Toyota Motor Sales U.S.A., Inc. , 681 F.3d 1208, 1210 (10th Cir. 2012). We need not decide whether prudential mootness is also at issue here. Appellate Case: 22-6094 Document: 010110807177 Date Filed: 02/02/2023 Page: 45 Here, Jones seeks to prev ent the special election a nd to impose his preferred procedure: He requests an injunction ordering defendants to cancel the November 2022 election, to hold a special elect ion in 2024 following Inhofe’s actual resignation, and to appoint a temporary replacement pending the results of the 2024 election. The mootness of J ones’s attempt to prevent the November 2022 special election is obvious—such elec tion has already taken place. See Fleming , 785 F.3d at 445 (finding appeal challenging election moot “because the election ha[d] passed and we c[ould not] grant any effective relief”) . Moreover, Inhofe resi gned as planned on January 3, 2023, and Mark wayne Mullin (the winner of the 2022 special general election) was sworn in the same day. 5 Thus, we cannot effectively order defendants to appoint a temporary replacement for Inhof e or to hold another special election to fill that seat; such or der would have no effect in the real world. See Rio Grande , 601 F.3d at 1110. And to the exte nt that Jones seeks a decl aration that the 2022 special election violated his right to vote or his right to seek a temporary appointment, such declaration would not “affect[] the beha vior of the defendant[s] toward the plaintiff”—the election has occurred and there is no vacancy to be filled by temporary appointment. Id. at 1109–10 (quoting Cox v. Phelps Dodge Corp. , 43 F.3d 1345, 1348 (10th Cir. 1994)). Jones offers no meaningful response to these conclusions; nor does he invoke

5 We take judicial no tice of these facts. See Schaffer v. Clinton , 240 F.3d 878, 885 n.8 (10th Cir. 2001) (taking judicial notice of election results); 169 Cong. Rec. S3, S5 (Jan. 3, 2023) (noting Inhofe’s resi gnation, certification of Mullin’s election, and Mullin’s swearing in). Appellate Case: 22-6094 Document: 010110807177 Date Filed: 02/02/2023 Page: 56 any exceptions to mootness. On the contrary , he effectively con ceded mootness in his belated December 14, 2022 motion, acknowl edging that after Mullin’s swearing in “on January 3, 202[3], . . . the issues underlying this a ppeal will effectively evade judicial review.” Emergenc y Mot. 8. Likewise, Jones’ s supplemental mootness brief implicitly makes the same concession by asse rting that we could grant relief despite Mullin’s election because Mullin would not formally replace Inhofe until January 3, 2023. Given that both November 8, 2022, a nd January 3, 2023, ha ve come and gone, Jones’s appeal is moot.
Conclusion Because none of the relief Jones seeks w ould have any effect in the real world, we dismiss Jones’s appeal as moot. See Fleming , 785 F.3d at 444–45. We do so without vacating the judgment below because the mootness here is the result of Jones’s failure to expedite his appeal. See Wyoming v. U.S. Dep’t of Agric. , 414 F.3d 1207, 1213 (10th Cir. 2005) (explaining that “[v]acatur is generally not appropriate when mootness is a result of a volunt ary act of a nonprevailing party”).

Entered for the Court
Nancy L. Moritz Circuit Judge Appellate Case: 22-6094 Document: 010110807177 Date Filed: 02/02/2023 Page: 6