I. Introduction

In 2013, the State of Alabama held a special election to fill a seat in its First United States House of Representatives District.[1] Special elections rarely occur in the State of Alabama, and one man saw his chance to run for an open seat instead of having to muster enough support to beat out an incumbent for the seat.[2] James Hall sought to run as an independent candidate, but to be eligible, he needed to fulfill the state’s requirement of obtaining signatures from 3% of the district’s population by a certain date to secure his name on the ballot.[3] Due to the short time provided for him to fulfill that requirement, he failed in obtaining the needed signatures.[4] This, in turn, prevented him from having his name on the ballot, and it effectively ruined his chance to run in and win the special election.[5]

Since Alabama’s 3% rule and limited timeline prevented James Hall from running in the election, he filed Section 1983, First Amendment, and Fourteenth Amendment claims to challenge the 3% rule as applied to special elections.[6] The federal district court granted summary judgment in Hall’s favor, agreeing that the law was unconstitutional.[7]

Unfortunately for Hall, this happy ending did not last.[8] On appeal, the Eleventh Circuit Court of Appeals determined that the case could not heard in federal court.[9] Its reasoning was that the case was moot; the case did not satisfy the Constitution’s Article III requirement that each matter heard before the federal courts be a live case or controversy.[10] Just like that, Hall’s dream of challenging the Alabama state law was shattered.[11]

Mootness is one of the quickest ways to kill a would-be case in federal court. More specifically, mootness is an issue of timing, as there must still be a case or controversy that exists at all stages of appellate or certiorari review unless the matter falls under a handful of exceptions.[12] If, for any reason, a court determines that the case is moot, the case is automatically over before the court can consider the merits.[13]

Many cases have been dismissed because the courts have deemed them moot.[14] In Marbury v. Madison, the Supreme Court recognized that the legislature has limited power because all acts of Congress must comply with the Constitution:[15]

To what purpose are powers limited, and to what purpose is that limitation committed to writing, if these limits may, at any time, be passed by those intended to be restrained? The distinction, between a government with limited and unlimited powers, is abolished, if those limits do not confine the persons on whom they are imposed, and if acts prohibited and acts allowed, are of equal obligation.[16]

As important as it is to preserve the right to challenge laws under the Constitution and hold legislatures accountable, that need is all the more pressing when those laws pertain to elections.[17] According to the United States Agency for International Development: “A country cannot be truly democratic until its citizens have the opportunity to choose their representatives through elections that are free and fair.”[18] Therefore, it is especially important that cases pertaining to election laws be heard in the courts and not be dismissed before they can be heard on the merits.

Despite the fleeting nature of elections, there is no reason to declare that a case challenging an election law is moot. This Comment will discuss two major exceptions by which election law cases can survive a challenge of mootness and be heard on the merits: the “capable of repetition yet evading review” exception and the “public interest” exception.[19] Before delving into election law specifically, Part II covers the basics of mootness and provides an overview of the exceptions to mootness recognized by the federal courts, focusing on the “capable of repetition yet evading review” and “public interest” exceptions. Part III focuses on how the “capable of repetition yet evading review” exception, which is recognized by federal courts, applies to election law cases. It elaborates on why this exception applies not only to general election law cases but also special election cases, even when the possibility that a particular candidate will run for that position in a special election in the future is difficult to prove or even unlikely. Part IV will investigate the “public interest” exception to mootness, which, despite acceptance by most states, has not yet been accepted by the federal courts. It advocates for federal courts to accept the “public interest” exception as an alternative to the “capable of repetition yet evading review” exception by explaining that it does not violate Article III of the Constitution and it provides a safeguard for United States citizens to challenge in court election laws that they may view as unconstitutional. Regardless of the exception utilized, Part V concludes that any case that challenges a law pertaining to special elections is not moot and should be heard in court on the merits.

II. Brief Overview of Mootness

Article III under the Constitution requires that all matters heard by the courts consist of a case or controversy.[20] This “case or controversy” requirement is referred to as justiciability.[21] As discussed in Flast v. Cohen: “[N]o justiciable controversy is presented when the parties seek adjudication of only a political question, when the parties are asking for an advisory opinion, when the question sought to be adjudicated has been mooted by subsequent developments, and when there is no standing to maintain the action.”[22] Standing, ripeness, and mootness each regulate a different aspect of federal cases, as “[t]he law of standing considers whether the plaintiff is the proper person to assert the claim, the law of ripeness ensures that the plaintiff has not asserted the claim too early, and the law of mootness seeks to prevent the plaintiff from asserting the claim too late.”[23]

A. A Prime Example of Mootness

Mootness requires that a matter remain a case or controversy from the filing of the lawsuit through the appeal.[24] A case is moot when either (1) “the issues presented are no longer ‘live’” or (2) “the parties lack a legally cognizable interest in the outcome.”[25] In a sense, the doctrine of mootness is “the doctrine of standing set in a time frame: The requisite personal interest that must exist at the commencement of the litigation (standing) must continue throughout its existence.”[26]

One prime example of mootness can be found in the case DeFunis v. Odegaard.[27] In that case, Marco DeFunis, Jr. applied for admission to attend the University of Washington Law School, but was denied.[28] DeFunis filed a suit against the law school, claiming that the law school had discriminated against him on account of his race when it denied him admission.[29] The trial court granted his request for a mandatory injunction to allow him to attend the law school, and he entered the law school as a student that same year.[30] When the admissions policy was deemed constitutional on appeal, DeFunis had already completed his first year of law school.[31] The case worked its way up to the United States Supreme Court and, by that time, DeFunis was registered for his final quarter of law school.[32] The law school was clear that at this point, there was no chance that DeFunis would be removed from the school.[33] The Supreme Court, finding that a decision on the issue of the admission policy’s constitutionality would have no bearing on DeFunis’s education and would afford DeFunis no relief if resolved in his favor, held that the case was moot.[34]

B. Exceptions to the Rule

There are exceptions to this requirement, however, which allow a case to continue on the merits even if the particular issue which caused the suit has ended.[35] The federal courts have recognized four major exceptions to the mootness doctrine: (1) class actions where the named party ceases to represent the class;[36] (2) collateral consequences;[37] (3) voluntary cessation of unlawful conduct;[38] and (4) wrongs capable of repetition yet evading review.[39]

The Supreme Court held that none of these exceptions applied in DeFunis v. Odegaard.[40] First, DeFunis was not a member of a class action; he alone filed the suit against the University of Washington Law School.[41] Second, DeFunis did not experience any other consequences from his initial rejection from the school, as he was able to begin classes that same semester and continue his studies as if he had been admitted from the start.[42] Third, there was no unlawful conduct by either party, nor was this a case where the school temporarily admitted DeFunis in an attempt to make the issue disappear.[43] Lastly, this issue was not one “capable of repetition yet evading review” as DeFunis would not be attending law school again once he completed his studies.[44]

Although these four exceptions are the only exceptions recognized by the federal courts, most state courts have recognized other exceptions to mootness.[45] One prominent additional exception to mootness recognized by the states is the “public interest” exception. Even though the majority of states have recognized a “public interest” exception to mootness, the federal courts have refrained from utilizing it for one simple reason: Article III of the Constitution limits the jurisdiction of federal courts, not state courts.[46] This means that while the state courts are free to utilize additional exceptions to mootness, federal courts must be extra cautious that they are still complying with the Constitution:

[T]his reality reflects an essential difference between the two court systems—that the federal courts are courts of limited jurisdiction and that the state courts are courts of general jurisdiction. Article III does not constrain the state courts. Many state courts thus not only have authority to relax their rules on mootness, but they also permit advisory opinions and indeed some State constitutions explicitly provide for them.[47]

Specifically, regarding the “public interest” exception, the Supreme Court has refrained from holding whether such an exception could exist under the Constitution.[48] This restraint does not necessitate that the public interest exception be found unconstitutional; it simply means that the question of its constitutionality is left unanswered.

C. Do Election Laws Qualify for an Exception?

By their very nature, elections occur, and then they are over. For the federal government, House of Representatives elections occur every two years,[49] Senate elections occur every six years,[50] and Presidential elections occur every four years.[51] Additionally, state and local governments each have their own elections. Regardless of which type of election, all have one thing in common: there is no way to rewind a clock and redo an election that has already passed. Since any case challenging an election law post-election cannot change the election, such cases are by definition moot, absent an exception.[52]

For general election cases, the federal courts have agreed that a “capable of repetition yet evading review” exception often exists. The reasoning lies in the fact that such elections do recur on a regular basis, so it is plausible that such a potential candidate could run again in a subsequent election and experience the same alleged harm.[53] Still, the frequency of the election at issue and that particular candidate’s realistic likelihood of running in the future are taken into consideration, causing the exception to be denied in some election cases—the majority in Hall failed to grant the “capable of repetition yet evading review” exception because the election was a special election.[54] This should not be the case, as courts tend to be more relaxed in applying the “capable of repetition yet evading review” exception in election law cases.[55] Regardless of whether a general election or special election law is at issue, the “capable of repetition yet evading review” exception should apply.[56]

Additionally, a “public interest” exception should exist for election law cases. Although the federal courts have not yet accepted such an exception for mootness, there is no reason to believe that such an exception would not survive Article III of the Constitution. The federal courts should follow in the footsteps of the majority of state courts and adopt the exception. Because it is in the public interest that elections be free and fair,[57] such an exception would apply for both general and special elections.[58]

III. Election Cases Are “Capable of Repetition Yet Evading Review”

The “capable of repetition yet evading review” exception to mootness can be traced back to 1911, when the Supreme Court considered the case Southern Pacific Terminal Co. v. Interstate Commerce Commission.[59] In that case, the Court for the first time held that these “consideration[s] ought not to be, as they might be, defeated, by short term orders, capable of repetition, yet evading review, and at one time the [g]overnment, and at another time the carriers, have their rights determined by the Commission without a chance of redress.”[60] This doctrine was reaffirmed in several subsequent cases.[61]

In Weinstein v. Bradford, the Supreme Court established the two elements required to satisfy the “capable of repetition yet evading review” exception: “(1) the challenged action was in its duration too short to be fully litigated prior to its cessation or expiration, and (2) there was a reasonable expectation that the same complaining party would be subjected to the same action again.”[62] For election cases, the first element is simple to satisfy. While election seasons can vary in length, there can be years between the actual election and the appeal of the case challenging election law.[63] It is unlikely that a case challenging an election law would be fully litigated before the end of the elections season such that the court can provide “effective relief in the event that it decides the matter on the merits in [the plaintiff’s] favor.”[64]

A. The Same Complaining Party Rule and Likelihood of Recurrence in Elections

The second element of this test, the “same complaining party rule,” is the aspect of the test that is harder to satisfy. Historically, this element has caused great debate between many courts in determining what is sufficient to satisfy the element.[65] Courts agree that there must be more than a remote possibility that the event would recur, but there is no bright-line test for how much certainty must be proven to satisfy this element.[66] Instead, courts consider whether there is a reasonable expectation that “materially similar” circumstances will recur, a requirement that is highly dependent on subjective interpretation.[67] This could be a difficult threshold to satisfy depending on the certainty a court is searching for in order to meet this element. Theoretically, it is impossible to prove that a specific candidate is going to run for the same exact political office in the future, even if that candidate expresses a desire to run again, and thus that candidate could experience the same hardships again with the election law at issue.

Fortunately, federal courts tend to be more relaxed in determining whether a party has satisfied the same complaining party rule.[68] For example, one treatise points out that “[c]andidates have often been allowed to challenge restrictions on candidacy after completion of the election immediately involved and without any showing of plans to become involved in any future election.”[69] Further, there are a great number of Supreme Court and circuit court cases that also discuss a lower threshold requirement regarding the same complaining party rule when proving the likelihood of the injury recurring again.[70] The Sixth Circuit Court of Appeals noted in Lawrence v. Blackwell that “[a]lthough Lawrence has not specifically stated that he plans to run in a future election, he is certainly capable of doing so, and under the circumstances it is reasonable to expect that he will do so.”[71] Thus, in that case, the threshold was determined to be satisfied.[72] There are also a number of election-specific cases that likewise reflect this lower threshold requirement to satisfy the “same complaining party rule.”[73]

B. Precedent Establishes Election Cases Are Not Moot

If the federal law appears to be finally mostly settled with regard to mootness and elections,[74] why then did the Eleventh Circuit in Hall decide the candidate’s challenge to an election law was moot?[75] The distinction the court was concerned with was the type of election: in Hall, an independent candidate sought to challenge a law pertaining to a special election.[76] The court found the fact that the case dealt with a special election as determinative, as every single one of the other election cases mentioned above instead dealt with general elections.[77] General elections are those elections which occur on regular, fixed intervals.[78] Quite often, one of the candidates is an incumbent.[79] The nature of incumbents is important to consider, as historically incumbents have a higher likelihood of retaining their seat in elections than losing it to an opponent.[80]

On the other hand, special elections happen rarely, only when there is an open seat to fill during a time when a general election is not occurring.[81] By its very nature, a special election always consists of an open seat, with no incumbent edge for any of the potential candidates.[82]

For the court in Hall, this distinction was critical. First, the court determined that it was “highly unlikely” that there would even be “another special election in Hall’s own First U.S. House District during his life.”[83] Further, the court considered whether Hall would possibly run to represent a different district where he does not currently reside, and the court decided that option was a “mere theoretical possibility”—there was “no suggestion” that Hall was considering running in such an election.[84] Ultimately, as the court determined it was so unlikely that Hall would run in a special election again, the court felt that even if the lower standard for the same complaining party rule was applied in this case, it still would not come close to satisfying the further relaxed requirement for likelihood of recurrence.[85]

Despite the obvious differences between general elections and special elections, the court in Hall incorrectly held that the case was moot.[86] The key here is that there is nothing in Moore v. Ogilvie or the other election cases which would lend them to only apply to general election cases.[87] Although Moore also dealt with a case involving an election that had since passed, the court spent only a few lines establishing that the case was not moot:

Appellees urged in a motion to dismiss that since the November 5, 1968, election has been held, there is no possibility of granting any relief to appellants and that the appeal should be dismissed. But while the 1968 election is over, the burden which MacDougall v. Green . . . allowed to be placed on the nomination of candidates for statewide offices remains and controls future elections, as long as Illinois maintains her present system as she has done since 1935. The problem is therefore ‘capable of repetition, yet evading review.’[88]

The Court did not discuss the fact that the election was a general election as part of the reasoning for its holding.[89] Likewise, the Court did not consider whether those independent candidates would be certain to run in a future election for those positions again.[90] In effect, the Court rubber stamped the question of mootness and proceeded to consideration on the merits, simply because of the possibility that the candidates could run again.

After Moore, the Court afforded an even shorter consideration of mootness and the “capable of repetition yet evading review” exception in its decisions in Rosario v. Rockefeller[91] and American Party of Texas v. White.[92] Not only did each case confine its discussion of mootness to one sentence, but each sentence was placed in a footnote rather than the body of the decision.[93] These cases further reaffirm the court’s rubber stamp approach to the question of mootness in election cases, regardless of the specific facts of the case.

If the precedent established for the lessened threshold of the “same complaining party rule” is followed in every case regarding elections, then cases such as Hall would never be considered moot.[94] A candidate in a special election who wishes to challenge the law would not need to prove any future desire to run for office because, under this lower standard, it would be assumed that because he ran before he is likely to run again, regardless of the likelihood or frequency of that specific type of election happening again.[95] This is an important safeguard for keeping free and fair elections in the United States, as it would guarantee that each person challenging an election law would indeed have his day in court.[96]

IV. Election Cases Are a “Public Interest”

Although all election cases meet the “capable of repetition yet evading review” exception when the precedent is applied properly,[97] there is an additional exception that would likewise safeguard the ability to challenge the constitutionality of election cases: the “public interest” exception. Although this exception is not yet adopted by the federal courts, it has been adopted by nearly every state.[98] While this exception would provide no further protection for election cases beyond that provided in the “capable of repetition yet evading review” exception, it could provide further protection for other matters important to the public beyond elections.

A. States and the “Public Interest” Exception

Although the federal courts have only officially recognized four exceptions to mootness, most states have recognized a further exception: the “public interest” exception.[99] This exception was specifically designed so that the state courts could hear cases involving a broad public interest that is likely to recur.[100] Since each state has its own rules for its courts, the exception is not quite the same in each state. Still, the elements for the “public interest” exception are remarkably intertwined with those of the “capable of repetition yet evading review” exception. For example, in Alaska, the “public interest” exception requires the following elements: “(1) whether the disputed issues are capable of repetition, (2) whether the mootness doctrine, if applied, may cause review of the issues to be repeatedly circumvented, and (3) whether the issues presented are so important to the public interest as to justify overriding the mootness doctrine.”[101] As such, the Alaska elements for the “public interest” exception actually contain “capable of repetition yet evading review” as part of the exception.[102] This same link between the two exceptions is also the case in Illinois, as the “public interest” exception likewise requires that the issue be “likely to recur.”[103]

Election law cases would certainly qualify as cases that are not moot under the “public interest” exception. With elections, U.S. citizens have the ability to have a say in how the government functions through voting.[104] Voting is considered “one of the most important rights and responsibilities that U.S. citizens have,” and as such, elections are of the utmost importance for Americans.[105] After all, a public interest is “something in which the public as a whole has a stake.”[106] Further, election law cases are “capable of repetition” or “likely to recur” as the “capable of repetition yet evading review” exception applies.[107]

B. Can the Federal Courts Apply the “Public Interest” Exception?

The states may as a whole utilize the “public interest” exception, but that does not make it binding on the federal courts. In DeFunis v. Odegaard, the Supreme Court briefly discussed this exception yet ultimately chose not to apply it to the case.[108] Although the state courts had deemed the case as not moot, the Supreme Court decided otherwise.[109] The Court’s reasoning was simple:

Although as a matter of Washington state law it appears that this case would be saved from mootness by “the great public interest in the continuing issues raised by this appeal,” the fact remains that under [Article] III “[e]ven in cases arising in the state courts, the question of mootness is a federal one which a federal court must resolve before it assumes jurisdiction.”[110]

Instead, the Supreme Court found the fact that the case would afford DeFunis no relief if it were resolved in his favor as determinative that the case was moot.[111]

Several other federal courts have discussed the “public interest” exception adopted by the states, but they have refrained from applying that same exception to federal cases. The reasoning cited by these courts is twofold. First, while the Supreme Court has not expressly prohibited the exception, its decision in DeFunis appears to preclude the federal courts from using it.[112] Second, the federal courts are bound by the “case or controversy” requirement of Article III; a requirement not binding to the state courts.[113]

There is no reason to believe that the “public interest” exception would violate Article III of the Constitution. Article III simply requires that all matters heard by the federal courts consist of a case or controversy.[114] The justiciability doctrine of mootness furthers that requirement by mandating that “an actual controversy must exist at stages of appellate or certiorari review, and not simply at the date the action is initiated.”[115] This requirement that there continues to be a controversy at all stages has already been afforded four exceptions in federal courts, one of which is closely intertwined with the “public interest” exception at issue.[116] There is no huge leap in adding the “public interest” exception as the fifth exception to mootness.

C. What Is the Point in Enacting a “Public Interest” Exception?

If election cases can be heard on the merits under the “capable of repetition yet evading review” exception, is there even a point in adding a “public interest exception” for federal courts? The answer lies in the fact that the “public interest” exception can include a broader range of “public interests” beyond that of just election law cases.

In a sense, it could operate as a fusion of both the “capable of repetition yet evading review”[117] and “class action”[118] exceptions. Just as in “capable of repetition yet evading review” cases, the issue could still be decided for when a similar matter arises in the future, only, the court would not need to speculate whether that specific plaintiff would experience the same harm.[119] This would be akin to the lessened threshold approach in the election cases, where the mere possibility that that person could run for that office again was sufficient to deem the cases as not moot.[120] Further, the “public interest” exception resembles the “class action” exception, as the controversy remains alive for others impacted by the law at issue.[121] Considering the similarities between the “public interest” exception and those already accepted by the federal courts, perhaps it is only a matter of time before the federal courts add this fifth exception to challenges of mootness.

V. Conclusion

Regardless of whether the “capable of repetition yet evading review” exception or “public interest” exception to mootness is applied in election cases, the result is the same: any election case by its very nature can be heard on the merits. In Hall v. Secretary, Alabama, the Eleventh Circuit erred in holding that the fact that Hall ran in a special election made the case moot on appeal because it was unlikely to recur.[122] Even if the federal courts fail to adopt the “public interest” exception, people wishing to challenge election laws are indeed able to do so by applying the lower threshold requirement for the “same complaining party rule” by utilizing the “capable of repetition yet evading review” exception to mootness.[123] This lower threshold requirement does indeed apply to all election cases, including those involving special elections, because the specifics of each election are not at issue when determining if the “same complaining party rule” is met.[124]

Still, federal courts should be open to applying the popular additional exception to mootness that a majority of states have adopted. The “public interest” exception is a viable exception which satisfies the requirements laid out in Article III of the Constitution, and it provides a further way for the people to challenge the laws that they believe violate the Constitution.[125] This exception provides a way to survive a challenge to mootness similar to those already in existence, but provides additional ways for other areas of public interest to survive scrutiny that otherwise could not.[126] Both the “capable of repetition yet evading review” exception and “public interest” exception are safeguards to guaranteeing that all laws conform with the Constitution and that all rights are protected.

Rebecca Sonne

  1. Hall v. Sec’y, Ala., 902 F.3d 1294, 1296 (11th Cir. 2018), cert. denied, 140 S. Ct. 117 (2019).

  2. Id. at 1298 (discussing how Hall wanted to run in a special election, and how special elections for a U.S. House seat in Alabama only occur about once every twenty years).

  3. Id. at 1296.

  4. Id. at 1296, 1307.

  5. Id. at 1296.

  6. Id.

  7. Id. at 1296–97.

  8. Id. at 1297.

  9. Id. (noting that, as the case was moot, there was no need to address the constitutionality of the election law at issue).

  10. Id.; see also Roe v. Wade, 410 U.S. 113, 125 (1973) (“The usual rule in federal cases is that an actual controversy must exist at stages of appellate or certiorari review, and not simply at the date the action is initiated.”).

  11. Hall, 902 F.3d at 1307 (vacating the judgment from the district court and dismissing the case as moot).

  12. Mootness “derives directly from the [Article III] case-or-controversy limitation because ‘an action that is moot cannot be characterized as an active case or controversy.’” See Al Najjar v. Ashcroft, 273 F.3d 1330, 1335 (11th Cir. 2001) (per curiam) (quoting Adler v. Duval Cty. Sch. Bd., 112 F.3d 1475, 1477 (11th Cir. 1997)).

  13. See id. at 1336 (citing Fla. Ass’n of Rehab. Facilities, Inc. v. Fla. Dep’t of Health & Rehab. Servs., 225 F.3d 1208, 1216–17 (11th Cir. 2000)).

  14. See, e.g., Lane v. Williams, 455 U.S. 624, 625 (1982) (holding that because the case was moot, the Court would not consider the question of due process); AT&T Commc’ns of Sw., Inc. v. City of Austin, 235 F.3d 241, 242–44 (5th Cir. 2000) (holding that the case was moot without discussing any further issues before the court).

  15. Marbury v. Madison, 5 U.S. (1 Cranch) 137, 176 (1803).

  16. Id. at 176–77.

  17. See Sw. Voter Registration Educ. Project v. Shelley, 344 F.3d 882, 913 (9th Cir.) (noting that the court was “especially mindful of the need to demonstrate [its] commitment to elections held fairly, free of chaos” in considering a case concerning punch-card voting), rev’d on reh’g en banc, 344 F.3d 914 (9th Cir. 2003). While it is important to safeguard the legal system and follow the requirements of the Constitution, it is equally important to allow people to have their day in court to challenge the laws that they believe violate the Constitution. See Note, Cases Moot on Appeal: A Limit on the Judicial Power, 103 U. Pa. L. Rev. 772, 773 (1955) (“Our basic legal philosophy is premised on the theory that the best way to achieve a wise resolution of disputed legal matters is to allow each party his day in court to present his views, with opportunity to challenge and rebut those of his opponent.”).

  18. Supporting Free and Fair Elections, USAID, https://www.usaid.gov/what-we-do/democracy-human-rights-and-governance/supporting-free-and-fair-elections [http://web.archive.org/web/20180925193604/https://www.usaid.gov/what-we-do/democracy-human-rights-and-governance/supporting-free-and-fair-elections] (last updated Sept. 6, 2018).

  19. See infra Parts III–IV (discussing the “capable of repetition yet evading review” and “public interest” exceptions to mootness).

  20. U.S. Const. art. III, § 2; see also Roe v. Wade, 410 U.S. 113, 125 (1973) (“The usual rule in federal cases is that an actual controversy must exist at stages of appellate or certiorari review, and not simply at the date the action is initiated.”); Susan Bandes, The Idea of a Case, 42 Stan. L. Rev 227, 230 (1990) (discussing how the Article III phrase “case and controversy” is an “opaque phrase” which has been difficult to interpret).

  21. Flast v. Cohen, 392 U.S. 83, 95 (1968); see also Jack L. Landau, State Constitutionalism and the Limits of Judicial Power, 69 Rutgers U. L. Rev. 1309, 1311 (2017) (discussing federal justiciability and how Article III restricts federal courts’ ability to hear cases).

  22. Flast, 392 U.S. at 95. Flast discusses a number of instances when a case is not deemed justiciable: political questions, advisory opinions, mootness, and lack of standing. This is a non-exhaustive list. See, e.g., Nat’l Park Hosp. Ass’n v. Dep’t of Interior, 538 U.S. 803, 807–08 (2003) (discussing ripeness as a justiciability doctrine). For the purposes of this Comment, I focus solely on mootness.

  23. Evan Tsen Lee, Deconstitutionalizing Justiciability: The Example of Mootness, 105 Harv. L. Rev. 603, 606 (1992).

  24. See Al Najjar v. Ashcroft, 273 F.3d 1330, 1336 (11th Cir. 2001) (per curiam) (“If events that occur subsequent to the filing of a lawsuit or an appeal deprive the court of the ability to give the plaintiff or appellant meaningful relief, then the case is moot and must be dismissed.”).

  25. Powell v. McCormack, 395 U.S. 486, 496 (1969).

  26. U.S. Parole Comm’n v. Geraghty, 445 U.S. 388, 397 (1980) (quoting Henry P. Monaghan, Constitutional Adjudication: The Who and When, 82 Yale L.J. 1363, 1384 (1973)); see also Lee, supra note 23, at 611 (discussing that, while it is “not clear exactly what qualities a case must possess to avoid Article III mootness,” generally “the plaintiff must maintain a certain ‘live’ personal stake in the outcome”).

  27. See DeFunis v. Odegaard, 416 U.S. 312 (1974).

  28. Id. at 314.

  29. Id.

  30. Id.

  31. Id. at 315.

  32. Id. at 315–16.

  33. Id. at 316.

  34. Id. at 319–20.

  35. S. Pac. Terminal Co. v. Interstate Commerce Comm’n, 219 U.S. 498, 515 (1911).

  36. Sosna v. Iowa, 419 U.S. 393, 401 (1975) (providing class actions as an exception to mootness because “[a]lthough the controversy is no longer live as to [the appellant], it remains very much alive for the class of persons she has been certified to represent”).

  37. Spencer v. Kemna, 523 U.S. 1, 8 (1998) (recognizing collateral consequences as a basis for avoiding mootness); see also Carafas v. LaVallee, 391 U.S. 234, 237 (1968) (“It is clear that petitioner’s cause is not moot. In consequence of his conviction, he cannot engage in certain businesses; he cannot serve as an official of a labor union for a specified period of time; he cannot vote in any election held in New York State; he cannot serve as a juror.”).

  38. United States v. Concentrated Phosphate Exp. Ass’n, 393 U.S. 199, 203 (1968) (“Mere voluntary cessation of allegedly illegal conduct does not moot a case; if it did, the courts would be compelled to leave ‘[t]he defendant . . . free to return to his old ways.’” (alteration in original)).

  39. Weinstein v. Bradford, 423 U.S. 147, 148–49 (1975) (discussing a “capable of repetition, yet evading review” exception to mootness); see also Roe v. Wade, 410 U.S. 113, 125 (1973) (discussing how “[p]regnancy provides a classic justification for a conclusion of nonmootness,” as a nine-month term for pregnancy could easily end before the end of litigation, yet can be repeated again if the woman becomes pregnant again).

  40. See generally DeFunis v. Odegaard, 416 U.S. 312 (1974).

  41. Id. at 314.

  42. See id. at 314–15, 319.

  43. See id. at 314–15 (noting that the school allowed DeFunis to enter the law school due to the mandatory injunction granted by the district court).

  44. See id. at 317 (“[I]t is evident that he will be given an opportunity to complete all academic and other requirements for graduation, and, if he does so, will receive his diploma regardless of any decision this Court might reach on the merits of this case.”).

  45. See, e.g., Carlisle v. Carlisle, 277 S.W.3d 801, 802 (Mo. Ct. App. 2009) (noting that Missouri has two exceptions to hearing a moot appeal: when a case has been “submitted and argued,” and the “public interest exception”); Envtl. Charter High Sch. v. Centinela Valley Union High Sch. Dist., 18 Cal. Rptr. 3d 417, 420 (2004) (“[T]here are three discretionary exceptions to the rules regarding mootness: (1) when the case presents an issue of broad public interest that is likely to recur; (2) when there may be a recurrence of the controversy between the parties; and (3) when a material question remains for the court’s determination.”), as modified on denial of reh’g (Sept. 10, 2004).

  46. See Fialka-Feldman v. Oakland Univ. Bd. of Trs., 639 F.3d 711, 716 (6th Cir. 2011) (discussing how federal courts have limited jurisdiction and state courts have general jurisdiction); William A. Fletcher, The “Case or Controversy” Requirement in State Court Adjudication of Federal Questions, 78 Calif. L. Rev. 263, 263–64, 276 (1990) (noting the differences between federal and state courts, specifically how state courts have long been considered as not bound by the “case or controversy” requirement of Article III of the Constitution).

  47. Fialka-Feldman, 639 F.3d at 716.

  48. See id. at 715 (“The Supreme Court has never recognized any such exception and in several instances has refused to adopt one.”); DeFunis, 416 U.S. at 316 (noting that although under Washington state law the case would be saved from mootness by “the great public interest in the continuing issues raised by this appeal,” federal law is restricted by Article III, as “[e]ven in cases arising in the state courts, the question of mootness is a federal one which a federal court must resolve before it assumes jurisdiction”).

  49. See U.S. Const. art. I, § 2.

  50. See id. art. I, § 3.

  51. See id. art. II, § 1.

  52. As the plaintiff must generally “maintain a certain ‘live’ personal stake in the outcome,” and elections are already over by the time a suit comes to challenge the law, such cases would be moot. Lee, supra note 23, at 611; see also Steffel v. Thompson, 415 U.S. 452, 459 n.10 (1974) (“The rule in federal cases is that an actual controversy much be extant at all stages of review, not merely at the time the complaint is filed.”).

  53. See 29 C.J.S. Elections § 2 (2015) (noting that general elections occur on regular, fixed intervals); cf. Hall v. Sec’y, Ala., 902 F.3d 1294, 1305 (11th Cir. 2018) (focusing on the infrequency of special elections), cert. denied, 140 S. Ct. 117 (2019).

  54. See Hall, 902 F.3d at 1305 & n.7.

  55. See id. at 1304 (discussing how, while the Supreme Court has not dispensed of the same complaining party rule, the rule does appear to have been applied in a more relaxed manner); see also id. at 1308 (Pryor, J., dissenting) (explaining how the majority’s distinguishing of special elections is faulty).

  56. See infra Part III (discussing election cases and the “capable of repetition yet evading review” exception in further detail).

  57. See Sw. Voter Registration Educ. Project v. Shelley, 344 F.3d 882, 913 (9th Cir.) (noting the importance that “elections [be] held fairly [and] free of chaos”), rev’d on reh’g en banc, 344 F.3d 914 (9th Cir. 2003); Cases Moot on Appeal, supra note 17, at 789 (discussing the public interest in deciding election cases regardless of mootness).

  58. See infra Part IV (discussing election cases and the “public interest” exception in further detail).

  59. See S. Pac. Terminal Co. v. Interstate Commerce Comm’n, 219 U.S. 498, 515 (1911).

  60. Id.

  61. See, e.g., Sosna v. Iowa, 419 U.S. 393, 400–01 (1975) (holding that, in a class action suit, the “capable of repetition, yet evading review” standard applied for class members, although the case was moot for the class representative); Moore v. Ogilvie, 394 U.S. 814, 816 (1969) (discussing how, although the 1968 election had ended, the burden “on the nomination of candidates for statewide office remains and controls future elections,” making the problem “capable of repetition yet evading review”); see also Weinstein v. Bradford, 423 U.S. 147, 148–49 (1975) (per curiam) (discussing the “capable of repetition yet evading review” doctrine but holding it did not apply to a man already on parole seeking to challenge the rules regarding eligibility for parole).

  62. Weinstein, 423 U.S. at 149; see also, e.g., United States v. Juvenile Male, 564 U.S. 932, 938 (2011) (per curiam) (citing Weinstein’s elements in holding that an adult can no longer challenge his juvenile sentence, because “he will never again be subject to an order imposing special conditions of juvenile supervision”).

  63. See, e.g., Hall v. Sec’y, Ala., 902 F.3d 1294, 1296 (11th Cir. 2018) (showing that the election Hall wanted to run in was in 2013 but the appeal was finally heard in 2018), cert. denied, 140 S. Ct. 117 (2019).

  64. See In re Burrell, 415 F.3d 994, 998 (9th Cir. 2005) (citing Garcia v. Lawn, 805 F.2d 1400, 1402 (9th Cir.1986)).

  65. See infra notes 68–73 and accompanying text.

  66. See Al Najjar v. Ashcroft, 273 F.3d 1330, 1336 (“The remote possibility that an event will recur is not enough to overcome mootness, and even a likely recurrence is insufficient if there would be ample opportunity for review at that time.”).

  67. See FEC v. Wis. Right to Life, Inc., 551 U.S. 449, 463–64 (2007) (discussing how the plaintiff need not show that every legally relevant characteristic in the case will recur to satisfy the same complaining party rule).

  68. Hall, 902 F.3d at 1303 (discussing how, while the Supreme Court has not dispensed with the same complaining party rule, the rule does appear to have been applied in a more relaxed manner).

  69. 13C Charles Alan Wright et al., Federal Practice & Procedure § 3533.9, at 495 (3d ed. 2008); see also Marc Rohr, Fighting for the Rights of Others: The Troubled Law of Third-Party Standing and Mootness in the Federal Courts, 35 U. Miami L. Rev. 393, 444 (1981) (discussing how the Supreme Court has shown some leniency in establishing mootness in election law cases).

  70. See, e.g., Moore v. Ogilvie, 394 U.S. 814, 816 (1969) (applying the “capable of repetition, yet evading review” exception without examining the likelihood of the plaintiffs running for office in the future); Merle v. United States, 351 F.3d 92, 95 (3d Cir. 2003) (holding that the case was not moot because it was reasonable to expect that the plaintiff would seek to run for office again).

  71. Lawrence v. Blackwell, 430 F.3d 368, 371 (6th Cir. 2005).

  72. Id. at 371–72.

  73. See, e.g., Am. Party of Tex. v. White, 415 U.S. 767, 770 n.1 (1974) (noting in a footnote that “[a]lthough the November 1972 election has been completed and this Court may not grant retrospective relief that would affect the outcome, this case is not moot” but refraining to give further explanation supporting this determination); Rosario v. Rockefeller, 410 U.S. 752, 756 n.5 (1973) (noting that “[a]lthough the June primary election has been completed and the petitioners will be eligible to vote in the next scheduled New York primary, this case is not moot, since the question the petitioners raise is ‘capable of repetition, yet evading review’” but providing no further explanation); Dunn v. Blumstein, 405 U.S. 330, 333 n.2 (1972) (“At the time the opinion below was filed, the next election was to be held in November 1970, at which time Blumstein would have met the three-month part of Tennessee’s durational residency requirements. The District Court properly rejected the State’s position that the alleged invalidity of the three-month requirement had been rendered moot . . . . Although appellee now can vote, the problem to voters posed by the Tennes see residence requirements is ‘capable of repetition, yet evading review.’”). For each of these cases, the precise wording shows exactly what the courts considered sufficient to meet the “capable of repetition yet evading review” exception to mootness.

  74. Although the concept of a “public interest” exception may not be settled, the more lenient application of the “capable of repetition yet evading review” exception to mootness has been consistently adopted by federal courts, at least in cases pertaining to general election cases. See supra notes 68–73 and accompanying text.

  75. Hall v. Sec’y, Ala., 902 F.3d 1294, 1307 (11th Cir. 2018), cert. denied, 140 S. Ct. 117 (2019).

  76. Id. at 1305.

  77. See id. at 1299 (discussing how the case did not pertain to a “regular election cycle,” which would “almost certainly repeat every few years,” but instead would “not repeat every election cycle in Alabama”).

  78. C.J.S., supra note 53.

  79. See John W. Schoen, Incumbents in Congress Are Hard to Beat—and a Lot of It Has to Do with Money, CNBC (Apr. 26, 2018, 10:09 AM), https://www.cnbc.com/2018/04/26/here-is-why-incumbents-in-congress-are-hard-to-beat.html [https://perma.cc/5K8N-G7WX].

  80. Id.; see also Linton Weeks, Why It’s Good to Be the Incumbent, npr (June 11, 2012, 10:54 AM), https://www.npr.org/sections/itsallpolitics/2012/06/11/154745966/why-its-good-to-be-the-incumbent [https://perma.cc/FD7C-M55N].

  81. C.J.S., supra note 53, § 3.

  82. See id.

  83. Hall v. Sec’y, Ala., 902 F.3d 1294, 1305 (11th Cir. 2018), cert. denied, 140 S. Ct. 117 (2019).

  84. Id.

  85. See id.

  86. See id. at 1306–07.

  87. The general election cases which the Supreme Court and circuit courts have ruled on do not have any kind of specific wording lending themselves to only apply to general election cases and not special election cases. See supra notes 70–73 and accompanying text.

  88. Moore v. Ogilvie, 394 U.S. 814, 816 (1969) (citing S. Pac. Terminal Co. v. Interstate Commerce Comm’n, 219 U.S. 498, 515 (1911)). See generally MacDougall v. Green, 335 U.S. 281 (1948), overruled in part by Moore v. Ogilvie, 394 U.S. 814 (1969).

  89. See generally Moore, 394 U.S. 814.

  90. See generally id.

  91. See Rosario v. Rockefeller, 410 U.S. 752, 756 n.5 (1973).

  92. See Am. Party of Tex. v. White, 415 U.S. 767, 770 n.1 (1974).

  93. Rosario, 410 U.S. at 756 n.5 (“Although the June primary election has been completed and the petitioners will be eligible to vote in the next scheduled New York primary, this case is not moot, since the question the petitioners raise is ‘capable of repetition, yet evading review.’”); Am. Party of Tex., 415 U.S. at 770 n.1 (“Although the November 1972 election has been completed and this Court may not grant retrospective relief that would affect the outcome, this case is not moot.”).

  94. See supra Section III.A.

  95. See Hall v. Sec’y, Ala., 902 F.3d 1294, 1312 (11th Cir. 2018) (Pryor, J., dissenting), cert. denied, 140 S. Ct. 117 (2019).

  96. See supra note 17 and accompanying text.

  97. See supra Part III.

  98. See infra Section IV.A.

  99. Fialka-Feldman v. Oakland Univ. Bd. of Trs., 639 F.3d 711, 716 (6th Cir. 2011); Gator.com Corp. v. L.L. Bean, Inc., 398 F.3d 1125, 1141–42 (9th Cir. 2005) (Fletcher, J., dissenting) (citing cases applying the “public interest” exception in Idaho, Hawaii, Nevada, Alaska, Florida, Washington, California, New York, Arizona, and Montana).

  100. See Envtl. Charter High Sch. v. Centinela Valley Union High Sch. Dist., 18 Cal. Rptr. 3d 417, 420 (2004) (noting a specific mootness exception for “when the case presents an issue of broad public interest that is likely to recur”), as modified on denial of reh’g (Sept. 10, 2004).

  101. Akpik v. State, Office of Mgmt. & Budget, 115 P.3d 532, 535 (Alaska 2005) (citing Kodiak Seafood Processors Ass’n v. State, 900 P.2d 1191, 1196 (Alaska 1995)).

  102. Id.

  103. In re J.B., 789 N.E.2d 1259, 1262 (2003) (“[T]he public interest exception is applicable only if it is clearly shown that: (1) the question is of a substantial public nature; (2) there is a need for an authoritative decision to provide future guidance; and (3) the situation is likely to recur.”).

  104. Why Should I Vote?, Knox County, Ill., https://co.knox.il.us/county-clerk/elections-information/why-should-i-vote/ [https://perma.cc/GE29-2C6M] (last visited Jan. 13, 2019).

  105. Id.

  106. Public Interest, Black’s Law Dictionary (5th pocket ed. 2016) (“Something in which the public as a whole has a stake; esp., an interest that justifies governmental regulation.”).

  107. See supra Part III; see also In re J.B., 789 N.E.2d at 1262 (including an element that “the situation is likely to recur” for the “public interest” exception); Akpik, 115 P.3d at 535 (including an element that “the disputed issues are capable of repetition” for the “public interest” exception).

  108. See DeFunis v. Odegaard, 416 U.S. 312, 316 (1974).

  109. Id.

  110. Id. (citations omitted).

  111. Id. at 319–20 (“Because the petitioner will complete his law school studies at the end of the term for which he has now registered regardless of any decision this Court might reach on the merits of this litigation, we conclude that the Court cannot, consistently with the limitations of Art. III of the Constitution, consider the substantive constitutional issues tendered by the parties.”); see also supra notes 27–34 and accompanying text (discussing how the four exceptions to mootness accepted by the Supreme Court do not apply in DeFunis).

  112. See Defunis, 416 U.S. at 316.

  113. See Gator.com Corp. v. L.L. Bean, Inc., 398 F.3d 1125, 1141–42 (9th Cir. 2005) (“We are, of course, not a state court but an Article III court bound by the ‘case or controversy’ requirement.”); Fialka-Feldman v. Oakland Univ. Bd. of Trs., 639 F.3d 711, 716 (6th Cir. 2011) (“[T]his reality reflects an essential difference between the two court systems—that the federal courts are courts of limited jurisdiction and that the state courts are courts of general jurisdiction. Article III does not constrain the state courts. Many state courts thus not only have authority to relax their rules on mootness, but they also permit advisory opinions and indeed some State constitutions explicitly provide for them.”).

  114. U.S. Const. art. III, § 2.

  115. See Roe v. Wade, 410 U.S. 113, 125 (1973).

  116. See supra Section III.B.

  117. Weinstein v. Bradford, 423 U.S. 147, 148–49 (1975) (discussing a “capable of repetition yet evading review” exception to mootness); see also Roe, 410 U.S. at 125 (discussing how “[p]regnancy provides a classic justification for a conclusion of nonmootness,” as a nine-month term for pregnancy could easily end before the end of litigation, yet can be repeated again if the woman becomes pregnant again).

  118. Sosna v. Iowa, 419 U.S. 393, 401 (1975).

  119. Weinstein, 423 U.S. at 149 (requiring that “there was a reasonable expectation that the same complaining party would be subjected to the same action again” as an element for the “capable of repetition yet evading review” exception).

  120. Am. Party of Tex. v. White, 415 U.S. 767, 770 n.1 (1974) (“Although the November 1972 election has been completed and this Court may not grant retrospective relief that would affect the outcome, this case is not moot.”); Rosario v. Rockefeller, 410 U.S. 752, 756 n.5 (1973) (“Although the June primary election has been completed and the petitioners will be eligible to vote in the next scheduled New York primary, this case is not moot, since the question the petitioners raise is ‘capable of repetition, yet evading review.’”).

  121. Sosna, 419 U.S. at 401 (providing class actions as an exception to mootness because “[a]lthough the controversy is no longer alive as to [the appellant], it remains very much alive for the class of persons she has been certified to represent”).

  122. See Hall v. Sec’y, Ala., 902 F.3d 1294, 1305 (11th Cir. 2018) (discussing how it is unlikely that Hall would ever run in a special election again due to their infrequency), cert. denied, 140 S. Ct. 117 (2019).

  123. See supra notes 68–73 and accompanying text.

  124. See supra note 123 and accompanying text.

  125. See Cases Moot on Appeal, supra note 17, at 773 (“Our basic legal philosophy is premised on the theory that the best way to achieve a wise resolution of disputed legal matters is to allow each party his day in court to present his views, with opportunity to challenge and rebut those of his opponent.”).

  126. See supra Section IV.C.