On July 31, attorneys for Alabama filed this brief in Hall v Merrill, 18-1362. This is the case over whether Alabama can require a petition of 3% of the last gubernatorial vote in special elections, when there isn’t much time to petition. Alabama asks the Court not to take the case. Alabama’s brief says the issue is “unimportant” even though there have been thousands of special congressional elections in U.S. history, and typically nine or ten every two years.

The U.S. District Court had ruled after the special congressional election that the law was unconstitutional. The state appealed, and the Eleventh Circuit ruled 2-1 that the case was moot, and therefore the U.S. District Court should not have issued an opinion. Therefore, the real issue in the U.S. Supreme Court is whether ballot access cases can be adjudicated after the election is over.

The state puts much emphasis on the fact that in the First U.S. House District, there hadn’t been a special election (until the year this case was filed) in 70 years. But Alabama has had special congressional elections 35 times, and it seems irrelevant how long it had been in one particular district. Various U.S. House districts change their boundaries all the time, and sometimes disappear from one decade to the next.

The U.S. Supreme Court had said in 1969 in Moore v Ogilvie that ballot access cases are not moot just because the election is over. And in 1973, the U.S. Supreme Court discussed its Moore holding, and said that the plaintiffs in Moore did not intend to run again in a future election. But the Alabama brief does not mention that.