On August 29, the Eleventh Circuit issued an opinion in Hall v Merrill, 16-16766. This is the case in which the U.S. District Court had ruled that it is unconstitutional for Alabama to require the signatures of 3% of the last gubernatorial vote in special congressional elections, because in special congressional elections, there isn’t much time to get so many signatures. The decision is 21 pages. The dissent is 29 pages.

The majority says the U.S. District court victory is therefore “vacated.” But it is reported, and will still stand as a useful precedent because it is so detailed and convincing. 212 F.Supp. 3d 1148 (m.d., 2016).

The majority said that the case is moot, because the election was in the past when the U.S. District Court struck down the law. However, in 1969, the U.S. Supreme Court said in Moore v Ogilvie that ballot access constitutional cases are not moot just because the election is over. To get around this problem, the Eleventh Circuit made two errors: (1) it said that it believes the U.S. Supreme Court Moore decision only applies if the candidate expects to run in a future election; (2) it said that there is no reason to think the plaintiff will run in a future special election because special elections in Alabama are rare.

Neither the majority nor the minority mentioned that in 1973, in Richardson v Ramirez, the U.S. Supreme Court commented on Moore v Ogilvie and said on page 35, “Unlike Moore v Ogilvie, 394 U.S. 814 (1969), in which the particular candidacy was not apt to be revived in a future election…”. Therefore, this shows the U.S. Supreme Court did not expect the Moore plaintiffs to run in a future election, and yet the U.S. Supreme Court still said Moore v Ogilvie wasn’t moot. Furthermore, the Eleventh Circuit has no idea whether the plaintiff will run again in a future U.S. House election. It is somewhat likely that Hall will ask for a rehearing to point out the error.