On February 19, the 5th circuit asked Louisiana to respond to the Libertarian Party’s latest brief, in the case filed in 2008 over whether Bob Barr should have been on the ballot for President. The party had lost the case in the 5th circuit on January 21, 2010. However, the party had asked then for a rehearing before all the full-time judges of the 5th circuit. The case is Libertarian Party v Dardenne, 09-30307.
This development is good news for the Libertarian Party’s lawsuit. It is unusual for a rehearing request to get any response at all except a denial. The January 21 decision by three judges of the 5th circuit had said the case is moot.
A case is not moot if it is capable of repetition. Given that Barr’s political career is probably not over and the Libertarian party is not going away, I don’t see how the case could possibly be moot. It’s possible that Louisiana has changed its policies on how someone gets on the ballot to undermine the basis of the suit, but even then the doctrine of “voluntary cessation” usually says the case still isn’t moot, since Louisiana could conceivably just change its policy right back again.
Okay, I just read the opinion. It looks like what happened was that the deadline was altered unilaterally by the Secretary of State because of a hurricane. The court determined that it was not reasonable to expect that situation to occur again while these particular candidates are running for president, therefore it is not “capable of repetition.” I disagree, but I see their point.
The “capable of repetition” doesn’t depend on the same candidates running again.
The odd thing about the panel’s decision is that it does not rely on the lack of inclement weather in Louisiana around Labor Day. Indeed, it would have a hard time saying that. Instead, the panel ruled that the parties lost because they had not proved that the Secretary would do the same thing again were a storm to close the state. This shifted burden of proof contradicts established precedent; as does the requirement that proof be put forth at the pleading stage. The panel’s conclusion also seems inconsistent with another panel’s conclusion that the Socialist’s challenge to Mississippi’s Secretary of State’s new deadline was capable of repetition.