NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS SEP 1 2020

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

RECLAIM IDAHO, an Idaho political No. 20-35584 action committee; LUKE MAYVILLE, D.C. No. 1:20-cv-00268-BLW Plaintiffs-Appellees,

v. MEMORANDUM*

BRAD LITTLE, in his official capacity as Governor of Idaho; LAWERENCE DENNY, in his official capacity as Idaho Secretary of State,

Defendants-Appellants.

Appeal from the United States District Court for the District of Idaho B. Lynn Winmill, Chief District Judge, Presiding

Argued and Submitted August 13, 2020 Anchorage, Alaska

Before: RAWLINSON, MURGUIA, and R. NELSON, Circuit Judges. Dissent by Judge R. NELSON

Reclaim Idaho seeks to place an initiative on the November 2020 ballot (the

“Initiative”). To place the Initiative on the ballot, Idaho law requires Reclaim Idaho

to file a petition with the Idaho Secretary of State signed by six percent (6%) of

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. eligible voters in the last general election in at least eighteen (18) of the thirty-five

(35) legislative districts, as well as at least six percent (6%) of the total qualified

electors statewide. Idaho Code §§ 34-1802–05. Importantly, the proponents must

obtain these signatures in person (the “In-Person Signature Requirement”). Id. § 34-

1801A(2). Therefore, to place the Initiative on the November 2020 ballot, Reclaim

Idaho was required to submit 55,057 signatures by May 1, 2020 (the “Deadline

Requirement”). The Secretary of State then has until September 7, 2020 to file the

finalized ballot with each county’s clerk. Id. § 34-909(1), 34-603.

On June 6, 2020, Reclaim Idaho sued Idaho’s Governor, Brad Little, and

Secretary of State, Lawrence Denney (collectively, the “State”), alleging that the

State’s strict enforcement of the In-Person Signature and Deadline Requirements

during the COVID-19 pandemic violates the rights of Reclaim Idaho’s members

under the First and Fourteenth Amendments of the United States Constitution.

Reclaim Idaho also asked the district court to enjoin the State from enforcing the In-

Person Signature and Deadline Requirements by allowing it to gather signatures

electronically past the May 1, 2020 deadline.

On June 23 and 26, 2020, the district court issued a preliminary injunction of

the In-Person Signature and Deadline Requirements, requiring the State to either (1)

allow Reclaim Idaho’s Initiative on the ballot with the signatures gathered as of the

day of the injunction, or (2) allow Reclaim Idaho an additional forty-eight (48) days

2 to collect signatures electronically with the assistance of DocuSign, a world leader

in electronic signature gathering.

On July 30, 2020, the Supreme Court stayed the district court’s preliminary

injunction pending disposition of this appeal “and disposition of the petition for a

writ of certiorari, if such writ is timely sought.” Little v. Reclaim Idaho, No. 20A18,

2020 WL 4360897, at *1 (U.S. July 30, 2020). The practical effect of the stay is that

even if we affirm the district court’s injunction, the Supreme Court is not likely to

lift the stay until after the September 7, 2020 deadline to place the Initiative on the

November 2020 ballot, likely rendering this action moot as to this election cycle.

“We review questions of mootness de novo.” United States v. Hulen, 879

F.3d 1015, 1018 (9th Cir. 2018). We have jurisdiction under 28 U.S.C. § 1292(a)(1),

and we remand for further proceedings.

“Generally, a case is rendered moot when the issues presented are no longer

‘live’ or the parties lack a legally cognizable interest in the outcome.” Rubin v. City

of Santa Monica, 308 F.3d 1008, 1013 (9th Cir. 2002) (quoting Schaefer v.

Townsend, 215 F.3d 1031, 1033 (9th Cir. 2000)). However, “a court is not precluded

from exercising jurisdiction over an otherwise moot case where . . . the case is

‘capable of repetition, yet evading review.’” Id. With this in mind, the Supreme

Court has long established that courts “may exercise jurisdiction over [a challenge

to an electoral restriction] if ‘(1) the challenged action [is] in its duration too short

3 to be fully litigated prior to its cessation or expiration, and (2) there [is] a reasonable

expectation that the same complaining party would be subjected to the same action

again.’” Meyer v. Grant, 486 U.S. 414, 417 n.2 (1988) (quoting Murphy v.

Hunt, 455 U.S. 478, 482 (1982) (per curiam)). Accordingly, the Supreme Court and

our circuit have decided the merits of numerous challenges to electoral restrictions

after the elections took place because “[t]he short span of time between the filing

deadline and the election makes [ ] challenge[s to election restrictions under the First

Amendment] evasive of review.” Rubin, 308 F.3d at 1013 (quoting Schaefer, 215

F.3d at 1033)).1

In Meyer, for example, the Supreme Court struck down Colorado’s ban on

paid circulators after the election period at issue. 486 U.S. at 417 n.2, 428. The

Court reasoned that (1) it was unlikely that the plaintiffs could obtain a favorable

ruling within the six-month period to gather signatures to place an initiative on the

ballot in Colorado, and (2) the plaintiffs continued to advocate for the initiative’s

adoption and would attempt to obtain the necessary signatures to place the initiative

on the ballot in future elections. Id. at 417 n.2. At oral argument, Reclaim Idaho’s

counsel confirmed that, like the plaintiffs in Meyer, Reclaim Idaho will attempt to

1 See, e.g., Norman v. Reed, 502 U.S. 279, 288 (1992); Anderson v. Celebrezze, 460 U.S. 780, 784 n.3 (1983); Storer v. Brown, 415 U.S. 724, 737 n.8 (1974); Ariz. Green Party v. Reagan, 838 F.3d 983, 987–88 (9th Cir. 2016); Rubin, 308 F.3d at 1012; Schaefer, 215 F.3d at 1033.

4 gather the necessary signatures to place the Initiative on the November 2022 ballot

if the Supreme Court does not lift its stay in time to place it on the November 2020

ballot. Therefore, we must evaluate whether “it is reasonable to expect that the same

controversy will recur between [Reclaim Idaho and the State], yet evade meaningful

judicial review” if the pandemic continues unabated leading up to the next election

cycle. Meyer, 486 U.S. at 417 n.2.

However, this mootness issue only arose on appeal as a result of the Supreme

Court’s recent stay of the district court’s injunction, and the parties did not have an

opportunity to brief or develop the record below on whether it is reasonable to expect

that the same controversy will recur leading up to the November 2022 election.

Because the district court is better positioned to evaluate factual nuances and

disputes, we remand to allow the parties to develop the record and brief the district

court on whether this controversy is “capable of repetition, yet evading review,” and

so the district court can decide this issue in the first instance.

REMANDED with instructions.2 Each party shall bear its own costs.

2 Our colleague dissents and invites us to “revisit [our] jurisprudence regarding ballot initiatives.” We do not find it necessary to reach the merits, however, because we are remanding this action for the district court to determine whether the controversy between the parties is capable of repetition yet evading review.

5

FILED

SEP 1 2020

Reclaim Idaho v. Little et al., No. 20-35584

R. NELSON, Circuit Judge, dissenting: MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

I respectfully dissent from our decision to remand. Both parties agree that

the issues underlying this appeal are moot, and I find no argument to the contrary.

Ultimately, because Reclaim Idaho has failed to gather the signatures necessary by

the district court’s August 26 deadline, the preliminary injunction has expired on

its own terms. As the preliminary injunction is the only issue before us, there is no

longer a live controversy sufficient to support Article III jurisdiction over this

appeal. See Shell Offshore Inc. v. Greenpeace, Inc., 815 F.3d 623, 628 (9th Cir.

2016).

No exception to mootness applies either. This preliminary injunction

presents no “exceptional situation[]” justifying an exception to mootness. See

Protectmarriage.com-Yes on 8 v. Bowen, 752 F.3d 827, 836–37 (9th Cir. 2014)

(citation omitted); City of Los Angeles v. Lyons, 461 U.S. 95, 109 (1983). The

unique confluence of factors giving rise to this as-applied challenge might occur

again, but a mere possibility is not enough to constitute a “reasonable expectation”

or “demonstrated probability” that “the same controversy will recur involving the

same complaining party.” FEC v. Wis. Right to Life, Inc., 551 U.S. 449, 463

(2007) (internal citations omitted). Perhaps the district court can address

Appellees’ declaratory relief action, but as to the preliminary injunction, there is no

exception to mootness. Indeed, it is unprecedented to allow a preliminary 1 injunction to survive mootness when the sought-for equitable relief is no longer

available. Rather than remand when it is clear no exception to mootness applies, I

would dismiss this appeal as moot and remand for further proceedings related to

the declaratory judgment pending before the district court.

Finally, I write separately to highlight our circuit’s decision in Angle v.

Miller, 673 F.3d 1122 (9th Cir. 2012), and its potential incongruity with

established First Amendment principles as recently signaled by four Justices of the

Supreme Court. See Reclaim Idaho, 591 U.S. ___ (Roberts, C.J., concurring).

Though we do not reach the merits here, I recommend reviewing Angle en banc in

a future case.

I

Appellee Reclaim Idaho (“Reclaim”) challenged Idaho’s signature and

deadline ballot initiative requirements. Idaho’s Constitution guarantees citizens

the right to directly enact legislation through an initiative process and allows the

State legislature to determine the “conditions and . . . manner” of that process.

Idaho Const. art. III, § 1. By statute, initiative proponents must obtain signatures

equivalent to at least six per cent of qualified electors during the prior election

spread proportionally across each of the State’s legislative districts. Idaho Code

§ 34-1805. Proponents have up to eighteen months prior to April 30 of the election

year to collect and submit the necessary signatures. Id. § 34-1802(1). All

2 signatures must be collected in a petition circulator’s presence. Id. § 34-1807. For

Reclaim, this meant that it would need to gather and submit at least 55,057

signatures in person by April 30, 2020. The Idaho Secretary of State must certify

ballot questions to the county clerks no later than September 7, 2020. Id. § 34-603.

Reclaim began the initiative process on August 30, 2019, and received

approval for circulation on October 25, 2019, around six months before the

submission deadline. By mid-February, Reclaim had collected approximately

15,000 signatures, and by mid-March that number had doubled.

On March 13, 2020, Idaho confirmed its first COVID-19 case, leading the

Governor to issue a proclamation declaring a state of emergency. After losing

volunteers who preferred not to gather signatures during the pandemic, Reclaim

contacted offices of both the Idaho Governor and Secretary of State, requesting to

gather the signatures electronically. In response, Idaho Appellants stated that they

would not offer an accommodation and that in-person signatures would still be

required. On March 18, Reclaim voluntarily suspended its campaign. On March

25, the Governor issued an order to self-isolate, requiring Idaho citizens to shelter

in place. This order was extended to and ultimately expired on April 30.

Reclaim filed its complaint on June 6 (37 days after it was required to

submit signatures with the Secretary of State). Specifically, it sought declaratory

and preliminary injunctive relief, claiming the signature and deadline requirements,

3 see id. §§ 34-1802, 34-1807, as applied violated the First Amendment. The district

court granted Reclaim’s motion for a preliminary injunction, giving Idaho

Appellants the option to either place the petition on the ballot or extend the

signature deadline and suspend the in-person requirement. When Idaho Appellants

refused either option, the district court ordered the State to extend the submission

deadline to August 26 and allow signatures to be gathered electronically. On July

30, the Supreme Court stayed the district court’s order pending final resolution,

including any petition for a writ of certiorari. Reclaim Idaho, 591 U.S. ___.

II

Remanding this case serves no purpose. Because the preliminary injunction

has expired, this appeal must be dismissed as moot. The majority’s decision to

remand this case, especially when the parties have conceded mootness,1 ignores the

obvious realities of this case, and invites an unconstitutional advisory opinion

contrary to Article III.

To retain jurisdiction over this appeal, “an actual controversy must be extant

at all stages of review, not merely at the time the complaint is filed.” Arizonans for

Off. Eng. v. Arizona, 520 U.S. 43, 67 (1997) (internal citation omitted). When an

1 Though the parties agree that the appeal is moot, we have “an independent obligation to consider mootness sua sponte.” Shell Offshore, 815 F.3d at 628 (internal citation omitted). 4 actual controversy no longer exists, “the appellate court lacks jurisdiction and must

dismiss the appeal.” Shell Offshore, 815 F.3d at 628.

For preliminary injunctions specifically, the expiration of the injunction

moots an appeal of that order. In Shell Offshore, the district court issued a

preliminary injunction that expired on its own terms on November 1, 2015. Id.

When no party sought to renew the injunction, we dismissed the appeal because

“the only order on appeal [had] expired” and we were “unable to grant any

effectual relief to either party.” Id. As the parties no longer had a “continued,

legally cognizable interest in the validity of the injunction” and no exception to

mootness applied, we no longer had Article III jurisdiction to entertain the appeal.

Id.; cf. Paulson v. City of San Diego, 475 F.3d 1047, 1048 (9th Cir. 2007)

(dismissing appeal after legislative taking “divested City of any interest in the war

memorial,” rendering appeal moot).

The Supreme Court similarly recognized “when the injunctive aspects of a

case become moot on appeal of a preliminary injunction,” the appeal of the

preliminary injunction is moot. Univ. of Tex. v. Camenisch, 451 U.S. 390, 396

(1981). Any remaining legal issues “must be resolved in a trial on the merits.” Id.

The Supreme Court reaffirmed this rule in Honig v. Students of the California

School for the Blind, 471 U.S. 148, 149 (1985), dismissing an appeal of a

5 preliminary injunction as moot “because the terms of the injunction . . . ha[d] been

fully and irrevocably carried out.” Many other circuits have held similarly.2

Here, the district court’s preliminary injunction was in force only until

August 26, after which date the injunction “no longer constrains” the State to

collect signatures beyond the statutory deadline. See Shell Offshore, 815 F.3d at

628. Like in Shell Offshore, the district court’s order has expired “on its own

terms,” stripping our court of Article III jurisdiction over this appeal. See 815 F.3d

at 628. Accordingly, I would dismiss the appeal. 3

2 E.g., Henco, Inc. v. Brown, 904 F.2d 11, 13 (7th Cir. 1990) (dismissing appeal of preliminary injunction as moot “[b]ecause the preliminary injunction Brown appealed from expired under its own terms”); Integrated Cash Mgmt. Servs,. Inc. v. Digit. Transactions, Inc., 920 F.2d 171, 175 (2d Cir. 1990) (same); see generally 13C Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 3533.3.2 (3d ed. 2020) (collecting cases regarding mootness due to expired orders). 3 On September 7, the preliminary injunction will become moot under Article III. On that date, the Idaho Secretary of State must certify ballots to county clerks, Idaho Code § § 34-603, making it impossible for any federal court to “affect the rights of litigants in the case before them.” Protectmarriage.com, 752 F.3d at 834 (quoting DeFunis v. Odegaard, 416 U.S. 312, 316 (1974) (per curiam)); see also Bogaert v. Land, 543 F.3d 862, 864 (6th Cir. 2008) (holding appeal of preliminary injunction that required placement of an issue on the ballot moot once ballots were sent to printer). On that date, no federal court—be it ours or the lower court—will have Article III jurisdiction over the injunction action, and it must be vacated and dismissed as moot. See Nome Eskimo Cmty. v. Babbit, 67 F.3d 813, 815 (9th Cir. 1995) (once case is moot, “the judicial branch loses its power to render a decision on the merits of the claim”). Even now, however, the injunction is prudentially moot because of the Supreme Court’s stay. See People Not Politicians Or. v. Clarno, No. 20-35630 (9th Cir. Sept. 1, 2020) (R. Nelson, J., dissenting) (noting similar preliminary injunction was prudentially moot). 6

III

Because the injunction has expired, no mootness analysis is warranted.

However, no “capable of repetition, yet evading review” exception to mootness

applies either. “Because mootness concerns whether we have power to hear a case,

we apply the capable of repetition, yet evading review exception sparingly, and

only in ‘exceptional situations.’” Protectmarriage.com, 752 F.3d at 836–37

(internal quotation marks omitted). An action qualifies as an “exceptional

situation” under this exception where “(1) the challenged action is in its duration

too short to be fully litigated prior to cessation or expiration, and (2) there is a

reasonable expectation that the same complaining party will be subject to the same

action again.” Davis v. FEC, 554 U.S. 724, 735 (2008) (quoting Wis. Right to Life,

551 U.S. at 462). Though the first prong may be met in this case, the second is

certainly not. More fundamentally, the equitable nature of preliminary injunctions

precludes any application of this exception absent some other legal issue to

preserve the controversy. A court cannot balance equities that no longer exist.

A

As to the first prong, “the injury suffered must be so inherently limited in

duration that the action will become moot before the completion of appellate

review.” In re Di Giorgio, 134 F.3d 971, 975 (9th Cir. 1998) (emphasis added).

Courts have repeatedly held that challenges to election laws, and ballot initiative

7 requirements specifically, are often inherently limited in duration sufficient to

satisfy the first prong. See, e.g., Meyer v. Grant, 486 U.S. 414, 417 n.2 (1988)

(recognizing the exception in the ballot initiative context); Citizens for Clean Gov’t

v. City of San Diego, 474 F.3d 647, 650 (9th Cir. 2007) (same).

I question, however, whether this injunction is so inherently limited in

duration that any similar claim would face “imminent mootness,” making it

capable of being repeatedly and “irrevocably lost” without vindication. See

Singleton v. Wulff, 428 U.S. 106, 117 (1976). Here, Reclaim’s injury and First

Amendment claims revolve around the inability to meet a deadline. Reclaim’s

inability to meet the deadline was “attributable at least in part,” Reclaim Idaho, 591

U.S. ___, slip op. at 4 (Roberts, C.J., concurring), to its own decision to wait to file

its lawsuit over a month after the submission deadline has already passed.

Moreover, Reclaim suspended its campaign before it was legally required to do so,

and could have started the ballot initiative process ten months earlier on October

30, 2018. Idaho Code § 34-1802(1).

I understand Reclaim was impacted by COVID-19 and decided to pattern its

signature gathering efforts after its prior successful petition. But to claim this

specific controversy—so integrally tied to the timing of Reclaim’s start and late

filing of the complaint—is “inherently limited” such that similar claims would face

“imminent mootness” nears incredulity. As we underscored in

8 Protectmarriage.com, “the exception was designed to apply to situations where the

type of injury involved inherently precludes judicial review, not to situations where

review is precluded as a practical matter” due to the party’s own late filing. 752

F.3d at 837 (alteration adopted) (emphasis added) (internal citation omitted).

B

Even if Reclaim satisfies the first prong, it cannot satisfy the second. It is

not enough to demonstrate that it might be subject to the same injury again. To

satisfy this prong, Reclaim would need to demonstrate a “reasonable expectation”

or “demonstrated probability that the same controversy will recur involving the

same complaining party.” Murphy v. Hunt, 455 U.S. 478, 482 (1982) (internal

quotation marks and citation omitted). It cannot meet that burden.

On remand, the majority asks the district court to develop further evidentiary

findings as to whether Reclaim’s preliminary injunction is moot or whether an

exception applies. But what evidence can be developed? We would all love to

know whether this pandemic will continue until July 2022, given the uncertainty

that persists as COVID-19 disrupts our daily lives. But if the best and brightest

scientific minds combating this pandemic cannot predict the future next month, the

district court seems unable to offer any new revelation of what may be reasonably

expected in two years. Reclaim simply cannot develop any evidentiary support on

remand to meet the second Davis prong and acknowledged at oral arguments that

9 no such exception applies. To the contrary, Reclaim asserted that the controversy

stemmed from a “once-in-a-century pandemic.”

Even if Reclaim could demonstrate that the pandemic may extend through

the 2022 election cycle, that is not enough—it must provide a “demonstrated

probability.” See id. True, the exception does not “[r]equir[e] repetition of every

‘legally relevant’ characteristic of an as-applied challenge—down to the last

detail” since the circumstances must only be “materially similar.” Wis. Right to

Life, 551 U.S. at 463 (citation omitted). At a minimum, however, the “same

controversy” must occur again. See Murphy, 455 U.S. at 482; Lyons, 461 U.S. at

109 (finding a reasonable expectation when a party “will again be subjected to the

alleged illegality”).

Here, the Governor’s shelter-in-place mandate—the core state action

impeding Reclaim from being able to collect signatures in person—is no longer in

force and has not been since April 30. Furthermore, Reclaim’s challenge is

integrally tied to its inability to meet a deadline. Thus, to demonstrate a

controversy “capable of repetition,” Reclaim would need to show that a similar

confluence of a world pandemic, executive action, and executive non-

accommodation in the 2022 election would again inhibit it from meeting the April

30, 2022 deadline. Contra Wis. Right to Life, 551 U.S. at 463–64 (finding a

reasonable expectation “where WRTL [already] sought another preliminary

10 injunction” for the next election cycle and “there is no reason to believe that the

FEC will refrain from prosecuting violations of BCRA”) (internal quotation marks

and citation omitted)); Davis, 554 U.S. at 736 (finding a reasonable expectation

because “the FEC conceded . . . that Davis’[s] § 319(a) claim would be capable of

repetition”); Citizens for Clean Gov’t, 474 F.3d at 650 (finding a reasonable

expectation because the plaintiffs would “be subject to the same contribution

limits”). This “once-in-a-century” controversy is just that—something courts will

likely never see again.

C

Assuming the district court on remand finds the injunction action qualifies as

an exception to mootness, a more fundamental problem becomes clear: what

remedy could the district court provide in the preliminary injunction context? At

least in a declaratory judgment action, the district court (assuming an exception to

mootness applies) could analyze alleged violations of legal rights. See Declaratory

Judgment Act, 28 U.S.C. § 2201(a) (giving federal courts jurisdiction to “declare

the rights and other legal relations of any interested party seeking such declaration,

whether or not further relief is or could be sought”).4 But in the preliminary

4 Our court has often found that a demand for monetary damages can preserve a controversy past the extinguishment of equitable remedies. See, e.g., Cano v. Taylor, 739 F.3d 1214, 1217 (9th Cir. 2014) (dismissing as moot claims for declaratory and injunctive relief, but not claims for punitive and compensatory

11 injunction context, the court could only address a “likelihood of success on the

merits,” balancing that likelihood with equities that no longer exist in the real

world. See Winter v. NRDC, 555 U.S. 7, 24 (2008) (emphasis added). There is

simply no remedy that a court can provide in the preliminary injunction context,

suggesting no exception to mootness applies.5

For this reason, no precedent exists recognizing an otherwise moot

preliminary injunction as “capable of repetition, yet evading review.” This makes

sense. Preliminary injunctions are by definition an exercise of a court’s equitable

power and thus are inherently limited to the equitable remedies a court can

provide. For a case to qualify as an exception to mootness, at the very least there

must be some remedy to be had; otherwise, a court would be exceeding its power

under Article III’s case-or-controversy limitation. Thus, to find a case somehow

excepted from mootness when it is inherently dependent upon equitable relief no

longer available is to call for an impermissible advisory opinion. Put simply,

relief); cf. Bernhardt v. County of Los Angeles, 279 F.3d 862, 872 (9th Cir. 2002) (holding that a plaintiff’s claim for damages was not moot although the plaintiff's claim for prospective relief was); see generally, Wright & Miller, supra, at § 3533.3 (“The availability of damages or other monetary relief almost always avoids mootness[.]”). But Reclaim is not seeking monetary damages. 5 To the extent Reclaim seeks relief from impending threats they may face in future elections, that claim is not ripe. Without a “factual record of an actual or imminent application” of Idaho law that will likely prevent Reclaim from placing its initiative on the next election’s ballot, such allegations would present “no ripe controversy.” See Renne v. Geary, 501 U.S. 312, 321–22 (1991). 12 preliminary injunctions providing specific relief (especially in the as-applied

context) cannot qualify as an exception to mootness absent a separate legal remedy

to preserve the controversy.

Courts have repeatedly recognized this jurisprudential truism. For instance,

in Southern Pacific Terminal—the first case recognizing the “capable of repetition,

yet evading review” exception—the Court distinguished its case from past cases

where “the acts sought to be enjoined had been completely executed, and there was

nothing that the judgment of the court, if the suits had been entertained, could have

affected.” 219 U.S. at 514–15. Though past cases were dismissed as moot for

want of redressability, Southern Pacific Terminal involved “rights determined by

the Commission without a chance of redress.” Id. at 515 (emphasis added).

Because “[t]he judgment of the court [was] sought upon the question of the legality

of the [ICC orders],” the redressability of legal rights preserved the justiciability of

the plaintiffs’ suit. Id. (emphasis added).

This principle held true in Moore v. Ogilvie, 394 U.S. 814, 815 (1969),

where candidates challenged an Illinois law, seeking declaratory and injunctive

relief. Illinois urged dismissal on mootness grounds, arguing that “since the

November 5, 1968, election has been held, there is no possibility of granting any

relief to appellants[.]” Id. at 816. The Court rejected this argument, not because

equitable relief could extend beyond the election deadline, but because “the [legal]

13 burden . . . placed on the nomination of candidates for statewide

offices . . . remains and controls future elections[.]” Id. Again, the availability of

legal relief allowed the case to exist beyond the extinguishment of equitable

remedies.

Similarly, in Wisconsin Right to Life, the Supreme Court found the case

“capable of repetition, yet evading review” in “consider[ing] the merits of WRTL’s

as-applied challenge in the first instance,” not in analyzing WRTL’s preliminary

injunction. 551 U.S. at 460. The Court in Davis also found an exception to

mootness when analyzing a facial challenge seeking declaratory relief even though

Davis had also sought to enjoin the Federal Election Commission during the 2006

election. 554 U.S. at 731–32, 744–45. In each case, the availability of legal, not

equitable, relief allowed the cases to extend beyond election deadlines. See Moore,

394 U.S. at 818–19 (overruling precedent); Wisc. Right To Life, 551 U.S. at 460–

61 (finding the relevant statutory provision unconstitutional); Davis, 554 U.S. at

744–45 (same); Meyer, 486 U.S. at 428 (same).

Simply stated, “[i]t has long been settled that we have no authority to give

opinions upon moot questions or abstract propositions, or to declare principles or

rules of law which cannot affect the matter in issue in the case before us.”

Schneider v. Chertoff, 450 F.3d 944, 959 (9th Cir. 2006) (emphasis added)

(internal citation omitted). For injunctive relief specifically, once a court’s ability

14 to provide equitable relief has passed, the case cannot survive mootness without

contravening Article III. Because on remand the district court “cannot affect the

[preliminary injunction] before [it],” id., the majority asks for nothing short of an

impermissible advisory opinion.

* * *

As the only issue raised in this appeal is a claim for injunctive relief

pertaining to the 2020 election, and as Reclaim cannot satisfy the second Davis

prong, this case cannot qualify as an exception to mootness. Accordingly, nothing

preserves this appeal from being dismissed as moot.6

IV

One final thought. Though we do not reach the merits of this case and the

potential First Amendment implications because of mootness, our court may need

to revisit its jurisprudence regarding ballot initiatives en banc in future cases.

Chief Justice Roberts, joined by three Justices, identified a circuit split on this issue

and signaled that the Ninth Circuit was on the wrong side. Reclaim Idaho, 591

U.S. ___, slip op. at 2–3 (Roberts, C.J., concurring). Siding with other circuits, the

Chief Justice criticized our test in Angle v. Miller for “require[ing] scrutiny of the

6 Likewise, nothing preserves the preliminary injunction from being vacated as moot on September 7. 15 interests of the State whenever a neutral, procedural regulation inhibits a person’s

ability to place an initiative on the ballot.” Id. at 2.

I highlight the Chief Justice’s remarks to encourage future evaluation of the

legal test we adopted in Angle. First Amendment rights should be guarded

vigorously against state encroachment. There is no question that “the First

Amendment requires us to err on the side of protecting political speech rather than

suppressing it.” Wis. Right To Life, 551 U.S. at 457. But to err by infringing upon

a state’s “considerable leeway to protect the integrity and reliability of the

initiative process,” Buckley v. Am. Const. L. Found., Inc., 525 U.S. 182, 191

(1999), when no speech rights have been severely burdened, see Burdick v.

Takushi, 504 U.S. 428, 428 (1992), extends First Amendment protections far

beyond their constitutional reach. The First Amendment has never required strict

scrutiny in “the application of only the most typical sort of neutral regulations on

ballot access.” Reclaim Idaho, 591 U.S. ___, slip op. at 3 (Roberts, C.J.,

concurring).

The district court in this case applied Angle, finding strict scrutiny applicable

where Idaho Appellants’ “strict application of the statutory initiative conditions

make or made it less likely” for Reclaim to get its initiative on the ballot. Reclaim

Idaho v. Little, No. 1:20-cv-00268, 2020 WL 3490216, at *8 (D. Idaho June 26,

2020). If this is truly the test under Angle, it is discordant with established First

16 Amendment principles. Foundational to election law jurisprudence is the

understanding that “[e]lection laws will invariably impose some burden upon

individual voters.” Burdick, 504 U.S. at 433. “[T]he mere fact that a State’s

system creates barriers . . . does not of itself compel close scrutiny.” Id. (internal

citation omitted). Instead, “close scrutiny” is appropriate only where speech rights

“are subjected to ‘severe’ restrictions,” id. at 433–34 (quoting Norman v. Reed,

502 U.S. 279, 289 (1992)), not merely when restrictions “make or made it less

likely” for political groups to achieve their ends, see Reclaim Idaho, No. 1:20-cv-

00268, 2020 WL 3490216, at *8. We apply this “severe restrictions” test in other

contexts, e.g., Ariz. Libertarian Party v. Hobbs, 925 F.3d 1085, 1090 (9th Cir.

2019) (ballot access), and ballot initiatives should be treated no different. See

Meyer, 486 U.S. at 422 (finding petition circulation to be “core political speech”).

If anything, ballot initiatives may be less likely to trigger close scrutiny as

initiatives are “not . . . about the right to vote, but about how items are placed on

the ballot in the first place. Nothing in the Constitution requires Idaho or any other

State to provide for ballot initiatives.” Reclaim Idaho, 591 U.S. ___, slip op. at 3

(Roberts, C.J., concurring).

Additionally, the district court applying Angle also found a likely First

Amendment violation because Reclaim had been “reasonably diligent” in its

efforts to collect signatures. The district court may have committed legal error by

17 focusing solely on Reclaim’s individual efforts,7 but at least one other district court

has recently applied Angle in the same way. See People Not Politicians Or. v.

Clarno, No. 6:20-cv-01053, 2020 WL 3960440, at *5 (D. Or. Jul. 13, 2020). But I

can find no case in which First Amendment protections turn on whether the

speaker was sufficiently diligent while engaged in expression. If Angle truly

stands for how it is being applied—conditioning constitutional protections on the

diligence of the speaker or mandating strict scrutiny of all laws imposing any

burden on political speech—Angle must be revisited en banc in a future case and

brought in line with fundamental First Amendment principles.

V

I respectfully dissent. As the preliminary injunction has expired and no

exception to mootness applies, our court no longer has Article III jurisdiction to

hear this appeal. And because no exception to mootness applies here, the

majority’s remand serves no purpose. To that end, I would dismiss this appeal.

7 The plainest reading of Angle suggests an objective, not subjective, test. See Angle, 673 F.3d at 1133 (measuring “whether, in light of the entire statutory scheme regulating ballot access, ‘reasonably diligent’ candidates can normally gain a place on the ballot, or whether they will rarely succeed in doing so”) (emphasis added); id. at 1134 (finding plaintiffs assertions inadequate to demonstrate “they and other initiative proponents have been unable to qualify”) (emphasis added). 18