On July 26, the Second Circuit issued a summary order in Meadors v Erie County Board of Elections, 23-1054. This is the case filed in 2021 against the May petition deadline for independent candidates. The U.S. District Court had enjoined the deadline and had ordered Buffalo Mayor Byron Brown (who was running for re-election) put on the November 2021 ballot as an independent candidate. But then, nine days later, the Second Circuit had issued a one-sentence order, cancelling the injunctive relief, so the Mayor, Byron Brown, had to run and win as a write-in candidate in November. The one sentence reversal did not cite any reason to reverse the relief.
After the election, a U.S. District magistrate said the May deadline is constitutional, at least as applied to non-presidential candidates. That was appealed to the Second Circuit, which now says the case is moot because the voters who filed the case have not shown that a future election will affect them. The July 26, 2024 order will not be published, and is not signed, and is only six pages long. It wipes out the U.S. District Court decision that said the deadline is constitutional. It says, “We express no view on the merits of the plaintiffs’ challenge to New York’s independent nominating petition filing deadline.”
The Second Circuit is wrong to say the case is moot. In 1969, the U.S. Supreme Court said ballot access constitutional cases are not moot just because the election is over. That is true whether the plaintiffs intend to run in a future election or not. The 1969 case was Moore v Ogilvie. That was an Illinois case, settled after the 1968 election was over, in which the plaintiffs were independent anti-war candidates for presidential elector. They failed to get on the ballot because they didn’t comply with the old Illinois distribution requirement, which required 200 signatures from each of 50 counties. Moore v Ogilvie didn’t discuss whether the candidates expected to run in a future election. But in 1973, the U.S. Supreme Court issued another decision, Richardson v Ramirez, 418 US 24, which discussed Moore v Ogilvie and mootness. Justice Rehnquist, writing for the court in Richardson v Ramirez, said on page 35 that in Moore v Ogilvie, “the particular candidacy was not apt to be revived in a future election”. Nevertheless, the Moore lawsuit was not moot.
The Second Circuit did not mention any U.S. Supreme Court ballot access opinion in its order. The U.S. Supreme Court has issued eleven ballot access full decisions after the election was over: Moore v Ogilvie, Jenness v Fortson, American Party of Texas v White, Storer v Brown, Lubin v Panish, Communist Party of Indiana v Whitcomb, Mandel v Bradley, Munro v Socialist Workers Party, Illinois State Board of Elections v Socialist Workers Party, Anderson v Celebrezze, and Norman v Reed. In none of them did the Court even discuss whether the plaintiff was likely to run in a future election or not.
The oddest aspect to the Second Circuit’s order is that at the oral argument, both sides agreed that the case is not moot, and yet the court disagreed with both sides and said it is moot. The three judges were Reena Raggi, a Bush Jr. appointee; Denny Chin, an Obama appointee; and Steve Menashi, a Trump appointee.
