## United States Court of Appeals **For the Eighth Circuit**

___________________________
No. 20 -1262

___________________________

SD VOICE; Cory Heidelberger

Plaintiffs - Appellees

v.
Kristi Noem, Governor of South Dakota, in her official capacity; Jason Ravnsborg, Attorney General of South Dakota, in his official capacity; Steve Barnett, Secretary of State of South Dakota, in his official capacity.

Defendants - Appellants

------------------------------

Sout h Dakota Chamber of Commerce & Industry; South Dakota Biotech Association

Amici on Behalf of Appellant(s)

___________________________
No. 20 -1278

___________________________

SD VOICE; Cory Heidelberger

Plaintiffs - Appellants

v.
Kristi Noem, Governor of South Dakota, in her official capacity; Jason Ravnsborg, Attorney General of South Dakota, in his official capacity; Steve Barnett, Secretary of State of South Dakota, in his official capacity.

Defendants - Appellees-2- ____________ Appeal from United States District Court for the District of South Dakota - Aberdeen

____________
Submitted: December 16, 2020 Filed: February 16, 2021

____________ Before GRUENDER, ERICKSON, and K OBES, Circuit Judges.

____________
GRUENDER, Circuit Judge.

Defendants ( the South Dakota governor, attorney g eneral, and s ecretary of

s tate ) appeal the district court’s decision permanently enjoining as unconstitutional a South Dakota law regulating ballot

- petition circulation. In turn, Plaintiffs (South
Dakota ballot

- question committee SD Voice and its operator Cory Heidelberger)

cross

- appeal the district court’s failure to decide all of their claims. For the following

reasons, w e dismiss both appe als for lack of jurisdiction

.

I.

South Dakota citizens may enact laws directly through ballot measures. S.D.
Const. a rt. 3, § 1. Before being placed on the ballot, a measure must garner support from a sufficient number of electors, which is generally a chieved by circulating ballot petitions for signatures. See S.D. Codified Laws § 2 -1-1. In 2019, the South
Dakota L egislature enacted House Bill 1094 (“HB 1094”)
, regulat ing this process. 2019 S.D. Sess. Laws ch. 14 §§ 1 -11. HB 1094 applied to “petitio n circulators,”
defined to include any adult resident who “solicit [ed] petition signatures from members of the public for the purpose of placing ballot measures on any statewide election ballot .” Id. § 1. U nder HB 1094, petition circulators had to provide the
South Dakota s ecretary of s tate with a large amount of personally identifying-3- information , which would then be compiled in a publicly available d irectory

. Id. §§ 3-4. HB 1094 also required petition circulators to wear a badge displaying an id entifying number that could be cross

- reference d with this directory

. See i d. §§ 6-
7.

After HB 1094’s enactment, Plaintiffs brought this case, arguing the law
violated the First Amendment. Plaintiffs also challenged a statutory requirement predating HB 1094 that required ballot petitions to be filed one year before the next general election (the “ Fifth Claim”)

. See S.D. Codified Laws § 2 -1-1. 2 (2018)

. After a bench trial, the district court e ntered judgment for Plaintiffs, declared HB 1094 unconstitutional, and permanently enjoined Defendants from enforcing it

. The district court did not, however, decide Plaintiffs ’ Fifth Claim , a nd it summarily denied Plaintiffs ’ subsequent request for a decision.

Defendants appeal ed
, challenging the district court ’s decision permanently enjoining HB 1094 ’s enforcement . Plaintiffs cross

- appealed , contending the district
court should have decide d their Fifth Claim. While these appeals were pending, the South Dakota Legislature passed Senate Bill 180 (“SB 180”), which substantially changed HB 1094. See 2020 S.D. Sess. Laws ch. 8 §§ 1 -13

. Given this change,
Plaintiffs move to dismiss Defendants’ appeal as moot.

II.

A.

We first consider whether Defendants’ appeal is moot

. “Under Article III of the Constitution, [we] may adjudicate only actual, ongoing cases or controversies.” McCarthy v. Ozark Sch. Dist. , 359 F.3d 1029, 1035 (8th Cir. 2004) (internal quotation marks omitted). “[W]hen the issues presented [in a case] are n o longer ‘live,’ ” the case is moot and is “therefore no longer a ‘ Case ’ or ‘Controversy’ for purposes of Article III.” Teague v. Cooper , 720 F.3d 973, 976 (8th Cir. 2013).-4- “ W hen a law has been amended or repealed, actions seeking

. . . injunctive relief for earlier versions are generally moot

. ” Id.

Here, Plaintiffs sought injunctive relief barring HB 1094 ’s enforcement. While this appeal was pending, the South Dakota Legisl ature enacted SB 180, replacing HB 1094. See 2020 S.D. Sess. Laws ch. 8 § 1. Thus, Defendants’ appeal, which asks us to uphold the now -defunct HB 1094 as constitutional, is moot.

Defendants concede SB 180 amended HB 1094 but counter that SB 180 is sufficiently similar to HB 1094 to sustain our jurisdiction . True, “[a] controversy is not moot if the new statute is sufficiently similar to the [old] statute ” such that it

“ disadvantages [the plaintiff] in the same fundamental way the [old] statute did .” Smithfield Foods, Inc. v. Miller , 367 F.3d 1061, 1064 (8th Cir. 2004) (internal quotation marks and brackets omitted); see also Ne. Fla. Chapter of Assoc. Gen.
Contractors of Am. v. City of Jacksonville , 508 U.S. 656, 662 (1993) ( rejecting mootness argument because the amended law still “disadvantage[d] [the plaintiffs] in the same fundamental way” as the old law ).

But SB 180 is a far cry from HB 1094 and does not disadvantage Plaintiffs in the same fundamental way that HB 1094 did

. For example, the district court held that HB 1094’s definition of “petition circulator” had a “terrible sweep,” conceivabl y applying to any ballot

- measure supporter, regardles s of his involvement in petition
circulation. Accordingly, the court held that this definition constituted viewpoint discrimination because it targeted only ballot

- measure proponents and, alternatively, was unconstitutionally broad. SB 180 addresses this problem, redefining “petition
circulator” to include only those persons actually circulating petitions. 2020 S.D. Sess. Laws ch. 8 §§ 1 -2.

Further
, the district court held that the petition

- circulator directory , in conjunction with the requirement to wear a badge displaying an identification number, failed constitutional scrutiny

. The court specifically noted that these requirements

— and the identification number in particular

— violated the Supreme-5- Court’s decision in Buckley v. American Constitutional Law Foundation, Inc. , 525 U.S. 182 (1999). But SB 180 has tackled this issue too by eliminating the identification number from the badge. 2020 S.D. Sess. Laws ch. 8 § 7.

Indeed, Defendants’ claim that SB 180 is essentially the same as H B 1094 is at odds with SB 180’s apparent purpose

. As one of SB 180’s sponsors explained at a legislative hearing, SB 180 ( and particularly the definitional change) was designed to address the constitutional infirmities identified by the district court. 1

Moreover , t he contrast between our decisions applying the sufficiently

- similar doctrine and this case shows the doctrine’s inapplicability. In Smithfield , we held
that the appeal was not moot because the new law “impose[d] the same restrictions on [the plaintiff] as before the amendment” and actually “enlarged the group subject to [the law’s] prohibitions.” 367 F.3d at 1064. Similarly, in Rosenstiel v. Rodriguez
,
we held that the appeal was not moot because the new law impaired the Plaintiffs “in the very same way” and the changes seemed to “broaden[] the coverage of the
law.” 101 F.3d 1544, 1548 (8th Cir. 1996). Here, by contrast, SB 180 substantially narrows the universe of regulated persons by redefining “petition circulators” and by requiring only paid petition circulators to register with the s ecretary of s tate . 2020 S.D. Sess. Laws ch. 8 §§ 2-3. And, unlike the laws in Smithfield and Rosenstiel
,
r ather than imposing the same re gulations on Plaintiffs, SB 180 removes the identifying number from the required badge. Finally, it seems that the plaintiffs in Smithfield and Rosenstiel did not claim mootness , whereas here Plaintiffs do

. See Appellant’s Supp l . Br. at 4, Smithfield
, 367 F.3d 1061 (8th Cir. Oct. 17, 2003) (No. 03-1411); Rosenstiel
, 101 F.3d at 1548.

C onsidering SB 180’s substantial changes, we cannot say that it disadvantages Plaintiffs “in the same fundamental way” as HB 1094. See Smithfield , 367 F.3d at 1064. Tha t Plaintiffs

— who are uniquely situated to evaluate SB 180’s impact on

1 See Senate Bill 180, South Dakota Legislature, https://sdlegislature.gov/Session/Bill/12123 (follow audio hyperlink for the Amendment 180C hearing, audio at 1:05:00 -06:50).-6- them

— insist that “ SB 180 does not disadvantage [them] in the same fundamental way” HB 1094 did only bolsters this conclusion. Accordingly, we must dismiss Defendants’ appeal as moot.

B.

The question now becomes what to do with the district court’s judgment
, which Defendants ask us to vacate. “[V]acatur is an equitable remedy, not an automatic right.” Moore v. Thurston , 928 F.3d 753, 758 (8th Cir. 2019). As the parties seeking vacatur, Defendants bear the burden of show ing an “entitlement to [this] extraordinary remedy.” See U .S. Bancorp Mortg. Co. v. Bonner Mall P’ship
, 513 U.S. 18, 26 (1994). In considering whether vacatur is appropriate, we typically consider “fault and public interest.” Moore , 928 F.3d at 758.

In evaluating fault, we distinguish between situations where a part y’s own actions moot a case, and situation s where mootness arises from mere “happenstance .” Id. Plaintiffs argue only that the South Dakota governor—who signed SB 180 into law

— is at fault for the mootness here. T hat makes sense
, as the
South Dakota attorney g eneral and s ecretary of s tate apparently had nothing to do
with SB 180’s enactment. Cf. id. (suggestin g that a secretary of state is not at fault for mooting legislation).

We have not yet decided whether a governor who signs the mooting legislation into law is at “fault” for vacatur purposes

. Decisions from other circuits
are mixed. Compare Hall v. Louisiana , 884 F.3d 546, 553 (5th Cir. 2018) (holding that a governor who signs the mooting law is not at fault where “there is no evidence that he was the moving force behind the legislation”), with Valero Terrestrial Corp. v. Paige , 211 F.3d 112, 121 (4th Cir. 2000) (suggesting a governor, as opposed to other executive officials, may be considered at fault for mooting legislation). But we need not wade into these murky waters here as the public interest alone defeats

vacatur. See Moore , 928 F.3d at 758

- 59 (denying vacatur solely on public

- interest-7- ground); U.S. Bancorp , 513 U.S. at 26 (“[Judgments] should stand unless a court concludes that the public interest would be served by a vacatur.”).

Considering the public interest, “judicial precedents are ‘pr esumptively correct and valuable to the legal community as a whole’ and generally should be permitted to stand.” Moore , 928 F.3d at 758 (quoting U.S. Bancorp , 513 U.S. at 26). This is particularly true here, where the district court’s judgment works to p rotect petition circulation, which the Supreme Court has described as “core political speech” where “First Amendment protection . . . is at its zenith.” See Buckley , 525

at

186-87 (internal quotation marks omitted) ; see also Moore , 928 F.3d at 758-59 ( denying vacatur because “t he public interest [was] 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”). Moreover, while
D efendants acknowledge that the public interest is important to the vacatur inquiry, they offer no argument as to how vacatur here serves th e public in terest , instead arguing only how vacatur serves them

. Accordingly, Defendants have failed to show
their e ntitlement to vacatur , and we decline to vacate the district court’s judgment

.

III.

We next turn to Plaintiffs’ cross

- appeal, which presents a different jurisdictional defect. With exceptions absent here, we have jurisdiction only over a district court’s “final decisions.” See 28 U.S.C. § 1291. An “order is final if it ends the litigation on the merits and leaves nothing more for the district court to do but execute the judgment.” Alpine Glass, Inc. v. Country Mut. Ins. Co. , 686 F.3d 874, 877 (8th Cir. 2012) (internal quotation marks omitted) ; see also Ritzen Grp., Inc. v. Jackson Masonry, LLC
, 589 U.S.

--- , 140 S. Ct. 582, 586 (2020) (same). An order that resolves fewer than all claims is paradigmatically not final. See

, e.g. , Consul Gen. of Republic of Indon. ex rel. Salom v. Bill’s Rentals, Inc. , 251 F.3d 718, 720 (8th Cir. 2001) ; Thomas v. Basham , 931 F.2d 521, 523 (8th Cir. 1991). Thus, generally, when a party appeals from a non

- final order, we must dismiss for lack o f jurisdiction. See Miller v. Special Weapons, L.L.C. , 369 F.3d 1033, 10 33- 35 (8th-8- Cir. 2004) (dismissing appeal for lack of jurisdiction because claims were still pending in the district court when appeal was filed ).

Here, Plaintiffs appeal the district court’s failure to decide the Fifth Claim

. But Plaintiffs’ own argument highlights the jurisdictional problem : t he district court has not yet decided all of their claims.

True, as Defendants point out
, the district court purported to enter a “judgment” in this case and, by awarding attorney’s fees
, signaled that t he case was finished. But the district court’s view of finality is not controlling. For example, in Riley v. Kennedy
, “the District Court directed entry of [the] order ‘as a final j udgment pursuant to Rule 58.’” 553 U.S. 406, 419 (2008). Nonetheless, the Supreme Court decided the order was nonfinal because the district court had not yet addressed all of the plaintiff’s claims for relief

. Id. In doing so, it noted that “[t]he labe l used by the
D istrict C ourt . . . cannot control an order’s appealability .” Id. (internal quotation marks omitted)

. So too here

. The district court’s characterization notwithstanding,
we see no indication that the district court decided

— or even mentioned

— Plaintiffs’ Fifth Claim. Its summary denial of Plaintiffs’ request for a ruling on their Fifth Claim is similarly unrevealing. And the district court’s ordered remedy, enjoining HB 1094’s enforcement, does not resolve Plaintiffs’ Fifth Claim, w hich challenged a statutory provision predating HB 1094. In sum, because Plaintiffs’ Fifth Claim remains outstanding
, the district court has not yet entered a final order
, and we thus lack jurisdiction over Plaintiffs’ cross

- appeal. See Miller , 369 F.3d at 1035.

Accordingly, we dismiss Plaintiffs’ cross

- appeal for lack of jurisdiction and remand to the district court for consideration of Plaintiffs’ remaining, unresolved
claim. See, e.g., Snider- Carpenter v. City of Dixon
, 504 F. App’x 527, 529

- 31 (8t h Cir. 2013) (per curiam) (doing the same in similar circumstances); Owens v. Mallinger , 320 F. App’x 476, 47 6- 77 (8th Cir. 2009) (per curiam) ; Ugbo v. All. Legal Grp., P.L.L.C. , 691 F. App’x 779, 780 (4th Cir. 2017 ) (per curiam); Stillman v. Travelers Ins. Co. , 88 F.3d 911, 914 (11th Cir. 1996) (per curiam).-9- IV.

For the foregoing reasons, we dismiss both Defendants’ appeal and Plaintiffs’

cross

- appeal for lack of jurisdiction, and we remand the issue raised on cross

- appeal to the district court for consideration

.

______________________________