No D. In the United States Court of Appeals for the Eleventh Circuit. Plaintiffs-Appellees, Defendants-Appellants.

Transcription

1 No D In the United States Court of Appeals for the Eleventh Circuit LEAGUE OF WOMEN VOTERS OF FLORIDA, ET AL., Plaintiffs-Appellees, v. SECRETARY OF THE STATE OF FLORIDA, ET ANO., Defendants-Appellants. ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF FLORIDA THE HONORABLE PATRICIA A. SEITZ PLAINTIFFS-APPELLEES OPPOSITION TO APPELLANTS SUGGESTION OF IMPENDING MOOTNESS WENDY R. WEISER RENÉE PARADIS The Brennan Center for Justice at NYU School of Law 161 Avenue of the Americas New York, New York Phone: (212) ERIC A. TIRSCHWELL CRAIG L. SIEGEL ERIN A. WALTER Kramer Levin Naftalis & Frankel LLP 1177 Avenue of the Americas New York, New York Phone: (212) ELIZABETH S. WESTFALL JENNIFER MARANZANO Advancement Project 1730 M Street, NW Suite 910 Washington, DC Phone: (202) Attorneys for Plaintiffs-Appellees

2 CERTIFICATE OF INTERESTED PARTIES Pursuant to 11th Circuit Rule , plaintiffs-appellees League of Women Voters of Florida, et al., certify that the Updated Certificate of Interested Parties contained in Appellants Suggestion of Impending Mootness is complete and accurate, except that Erin Walters, attorney for plaintiffs-appellees, should be spelled Erin Walter.

3 Introduction Defendants-Appellants Suggestion of Impending Mootness, which argues that this Court should not resolve this appeal, but instead should dismiss it as moot and vacate the district court order without further proceedings, is not only not ripe, but is also a transparent attempt by defendants to have their cake and eat it too. Defendants have filed the functional equivalent of a motion to withdraw their appeal but still demand vacatur of the opinion below an equitable remedy ordinarily only available to appellants who pursue their case to the last, deprived of review only through happenstance. By abandoning their appeal, defendants have forfeited any right they might have had to request vacatur. In any event, vacatur is not appropriate on an appeal from an interlocutory order. Plaintiffs-Appellees brought this action to challenge under the First Amendment Florida s unprecedented and crippling third-party voter registration law, which had forced them to shut down or dramatically curtail their voter registration drives. Defendants, the Secretary of State and the Director of the Division of Elections for the state of Florida, strenuously denied that the voter registration law regulated plaintiffs speech and association, a claim that was rejected by the district court in issuing a preliminary injunction against the law. Defendants immediately appealed. While that appeal was pending before this Court, the state of Florida amended, but did not repeal, the challenged law, leaving 1

4 in place the essential features of the law that unconstitutionally burdened and interfered with plaintiffs speech and association. Defendants now rush into court, a full five months before the amended law comes into effect and before the law has been precleared by the Department of Justice as required by the Voting Rights Act and ask this Court to dismiss their appeal as moot and vacate the district court order. This Court should either deny defendants motion as premature or treat the motion as one for withdrawal under Federal Rule of Appellate Procedure 42 and grant it. Background Plaintiffs commenced this action on May 18, 2006, to challenge a new and unprecedented Florida law restricting third-party voter registration drives. The gravamen of plaintiffs complaint is that the law unconstitutionally burdened the speech and association intrinsic to their voter registration drives and thus violated the First Amendment. 1 Because the law had forced them to shut down or dramatically scale back their voter registration drives, plaintiffs moved for a preliminary injunction enjoining its enforcement. After three days of testimony and argument on the motion, the district court granted plaintiffs motion for a preliminary injunction on August 28, Plaintiffs also assert that the law unconstitutionally interfered with their members right to vote, but that claim is not before this Court. 2

5 The district court rejected defendants argument that a law that regulates the collection and submission of voter registration forms in a manner that reduces accompanying speech and association does not implicate the First Amendment. That is defendants main contention on appeal. (See Appellants Br. at ) 2 The district court found that the law burdened plaintiffs First Amendment activity, which was intertwined with their voter registration drives, and caused them to reduce their speech and association. Several features of the law were responsible for this effect, including onerous fines, arbitrary deadlines, and both strict and widespread liability. Taken as a whole, the law made it extremely risky to engage in voter registration because it threatened expensive fines for both groups and individuals that do so. The court also found that the law unconstitutionally discriminated in favor of political parties by exempting them from its reach. Finally, the court found that the law was not justified by any important or even legitimate state interest, and that there was no significant problem in Florida of nonpartisan voter registration groups submitting voter registration forms in an untimely fashion. Defendants appealed the grant of the preliminary injunction under 12 U.S.C. 1292(a)(1). Although that appeal did not deprive the district court of continuing 2 Defendants also argue that legitimate state interests support restricting voter registration drives, a facial challenge is inappropriate, and the law s discrimination in favor of political parties is constitutional. (Id. at ) 3

6 jurisdiction, the parties agreed to a stay of further proceedings in that court until August 12, 2007, or the date of a decision by this Court, whichever comes sooner. After the appeal was briefed, on May 21, 2007, Florida enacted amendments to the challenged law, which are scheduled to go into effect on January 1, 2008 if precleared under the Voting Rights Act. (As of July 23, 2007, the state had not yet submitted the amended law to the U.S. Department of Justice for preclearance.) The law as amended leaves in place the essential features that have interfered with plaintiffs voter registration drives escalating fines for failing to meet arbitrary deadlines, 3 nearly strict liability for those fines (with exceptions only for impossibility and force majeure ), and the risk of significant fines for individual volunteers and employees of plaintiffs voter registration drives. In amending the law, the legislature articulated no additional state interest that would justify its restriction of plaintiffs First Amendment activity. Absent an injunction, the amended law will penalize groups and individuals who engage in voter registration drives and will curtail their core political speech and association in a way fundamentally similar to the current version of the law. 3 Although the amended law imposes a $1000 annual limit on fines for each voter registration organization and its affiliate organizations, there is a risk that individuals and related entities working on a voter registration drive will each be liable for up to $1000 in fines each year for their First Amendment activity under the amended law s vague language. 4

7 I. THE COURT SHOULD DENY DEFENDANTS MOTION AS PREMATURE OR TREAT IT AS A MOTION TO WITHDRAW AND DISMISS THE APPEAL UNDER RULE 42 A. Defendants Motion is Premature Defendants argue that the recent amendments to Florida s voter registration law will moot the issues on appeal as of January 1, 2008, when the revised law is scheduled to go into effect if precleared. But defendants move to dismiss their appeal as moot five months in advance, rendering their motion clearly premature. Defendants concede that their motion is not ripe, arguing that the appeal should be dismissed due to impending mootness. (See Suggestion of Impending Mootness at 1 (emphasis added).) As defendants admit, January 1, 2008 is the earliest date on which their appeal could conceivably become moot. Oral argument is scheduled for the week of October 1, 2007, a full three months before that date. Courts routinely decide cases that may or will shortly become moot, even those that will become moot within days of the decision. See, e.g., Lewis v. BT Inv. Managers Inc., 447 U.S. 27, 53 n.15 (1980) (twenty-one days between decision and mooting event); United States v. Am. Tel. & Tel. Co., 551 F.2d 384, 390 (D.C. Cir. 1976) (four days between decision and possible mootness); Arbor Foods, Inc. v. United States, 607 F. Supp. 1474, 1479 (Ct. Int l Trade 1985) (two days between decision and mooting event). This Court has a duty to decide all cases and controversies within its jurisdiction. Envtl. Defense Fund, Inc. v. Alexander, 614 5

8 F.2d 474, 480 (5th Cir. 1980); see also Nat l Educ. Ass n v. Lee County Bd. of Pub. Instruction, 467 F.2d 447, 449 (5th Cir. 1972) (Court of Appeals has a constitutionally imposed duty to decide cases properly before us for review ); Siegel v. LePore, 234 F.3d 1163, 1194 (11th Cir. 2000) (Carnes, J., dissenting) (agreeing with the majority that [f]ederal courts have the authority and duty to address and decide such claims. ); cf. County of Allegheny v. Frank Mashuda Co., 360 U.S. 185, (1959) ( Abdication of the obligation to decide cases can be justified under [abstention] doctrine only in... exceptional circumstances. ); Strode Publishers, Inc. v. Holtz, 665 F.2d 333, 335 (11th Cir. 1982) (quoting County of Allegheny). Impending mootness is not a proper reason to refuse to decide an appeal or to hear oral argument. Other courts confronted with premature motions to dismiss appeals or cases as moot have denied them until such time as the appeal or case is actually moot. For instance, in Board of Trade v. SEC, 677 F.2d 1137, 1144, n.13 (7th Cir. 1982), vacated as moot sub nom. Chi. Bd. Options Exch., Inc. v. Bd. of Trade, 459 U.S (1982), respondent argued that a pending regulation would make an issue in the case moot. The court questioned whether the regulation would actually make the issue moot, but declined to decide the issue because [respondent s] argument 6

9 is premature. It therefore denied the motion to dismiss the petition as moot. Id.; 4 see also Commodity Futures Trading Comm n v. Incomco, Inc., 649 F.2d 128, 133 (2d Cir. 1981) (finding court s consideration of mootness premature); United States v. Johnson, 652 F.2d 475, 477 (5th Cir. 1981) ( government s suggestion of mootness is premature before mooting event takes place), superseded by statute on other grounds, Pub. L. No , 96 Stat This Court should similarly deny defendants motion as premature. Defendants motion is premature not only because it is brought before the occurrence of the alleged mooting event, but also because their claim of mootness depends on a future, uncertain act. Specifically, defendants ignore the fact that the amended version of the challenged law has not yet been precleared by the Department of Justice as required by the Voting Rights Act, 42 U.S.C. 1973c, and thus may not go into effect by January 1, 2008 or even afterward. Because five Florida counties are subject to preclearance under the Voting Rights Act, see 28 C.F.R. part 51 Appendix, all changes in state law governing voting must be precleared by the Department of Justice. See Lopez v. Monterey County, 525 U.S. 266, (1999). Until the amended law is precleared, it is not certain that it will go into effect, making defendants assertion of mootness entirely speculative. 4 The case was eventually mooted by statutory amendment rather than the regulation at issue on appeal. See Salomon Forex, Inc. v. Tauber, 8 F.3d 966, 973 (4th Cir. 1993). 7

10 See Washington v. Wash. State Commer. Passenger Fishing Vessel Ass n, 443 U.S. 658, 692 n.32 (1979) ( If all state officials stand by the Attorney General s representations... this issue will be rendered moot.... Nonetheless, the issue is still live since state implementation efforts are now at a standstill and the orders are still in effect. Accordingly, we must decide it. ). Moreover, it could take a long time before a new law regulating voting is precleared and goes into effect. See, e.g., Reno v. Bossier Parish Sch. Bd., 528 U.S. 320, (2000) (finding preclearance appropriate seven years after initial denial by Department of Justice). The federal courts do not decline to reach every constitutional issue that might become moot. United States v. Sharpe, 470 U.S. 675, 681 (1985). B. By Suggesting That This Court Should Avoid Decision on Their Appeal, Defendants Are Essentially Withdrawing Their Appeal Defendants have filed their motion now, notwithstanding the fact that it is clearly premature, to avoid the risk of this Court deciding their appeal of the district court s decision. Their intention to avoid a decision is made clear by their assertion that the Court s resolution of the appeal may not be an effective use of limited judicial resources, and their request that [i]nstead, this Court dismiss their appeal as moot without the need for further proceedings. (Suggestion of Impending Mootness at 1.) By suggesting that this Court not rule even though the appeal is still live, defendants are essentially abandoning their appeal. This Court should therefore treat their motion as one to withdraw their appeal under Federal 8

11 Rule of Appellate Procedure 42(b), the only appropriate means of avoiding an appellate decision in these circumstances. 5 The fact that defendants did not expressly move to withdraw their appeal under Rule 42(b) should not affect this result. Had defendants made clear their request to withdraw, they would have been unable to ask this Court for vacatur of the district court s opinion. As discussed below, vacatur is an equitable remedy that should only be granted where an appellant would be unfairly prejudiced by the actual mooting of her appeal. Defendants cannot move to have their appeal dismissed before it becomes moot and then turn around and claim that they will suffer prejudice from this Court s failure to decide their appeal. Defendants want the benefit of withdrawal not risking an adverse decision without the burden letting the decision below stand without the possibility of vacatur. This Court should not reward defendants attempt to reap the benefits but not the burdens of withdrawal. By seeking to avoid a decision on their appeal, defendants have filed the functional equivalent of a motion to withdraw under Rule 42(b), and this motion should be treated as such. If defendants want the appeal to be dismissed, this Court need not rule on the issue of mootness or determine whether vacatur is appropriate; it should simply dismiss the appeal on defendants 5 With plaintiffs consent, such a motion could be granted by the clerk of court acting alone. See F.R.A.P. 42(b). Even without agreement of the parties, such motions are routinely granted. See Benton v. County of Berrien, 570 F.2d 114, 118 (6th Cir. 1978). 9

12 motion and return the case to the district court, where the parties can contest the meaning of the amended law or seek modification of the preliminary injunction to protect their rights. II. EVEN IF THE COURT DECIDES DEFENDANTS MOTION, VACATUR IS NOT APPROPRIATE A. Vacatur is Not Appropriate Because Defendants Have Asked this Court Not to Decide Their Appeal Even if this Court considers defendants motion to dismiss on the basis of the imminent mootness of the appeal, vacatur of the district court s opinion is not a proper remedy, regardless of whether the appeal or the entire case becomes moot. Contrary to defendants suggestion, vacatur is not granted as a matter of course; instead, the party seeking relief from the status quo of the... judgment [below] bears the burden of demonstrating equitable entitlement to the extraordinary remedy of vacatur. U.S. Bancorp Mortg. Co. v. Bonner Mall P'ship, 513 U.S. 18, 26 (1994). Ordinarily, a party whose appeal becomes moot is entitled to the remedy of vacatur in order to avoid preclusive effects of the decision below, so that none is prejudiced by a decision which in the statutory scheme was only preliminary. United States v. Munsingwear, Inc., 340 U.S. 36, 40 (1950); accord U.S. Bancorp, 513 U.S. at 25 ( A party who seeks review of the merits of an adverse ruling, but is frustrated by the vagaries of circumstance, ought not in fairness be forced to acquiesce in the judgment. ). But defendants here are not 10

13 frustrated by the vagaries of circumstance ; instead, they have essentially abandoned their appeal by arguing that it should not be heard nearly a half-year before it may become moot. Where the losing party has voluntarily forfeited his legal remedy, he has also surrender[ed] his claim to the equitable remedy of vacatur. Id. B. Vacatur is Not Appropriate Because the Decision Appealed From Is an Interlocutory Order Without Preclusive Effect Defendants are also not entitled to vacatur of the decision below for the simple reason that it is not a final judgment. When an interlocutory order such as a preliminary injunction becomes moot on appeal, the usual practice is just to dismiss the appeal as moot and not vacate the order appealed from. Brooks v. Ga. Bd. of Elections, 59 F.3d 1114, 1122 (11th Cir. 1995) (quoting In re Tax Refund Litig., 915 F.2d 58, 59 (2d Cir. 1990)) (internal quotation marks omitted); accord Housing Works, Inc. v. City of New York, 203 F.3d 176, 178 (2d Cir. 2000); Orion Sales, Inc. v. Emerson Radio Corp., 148 F.3d 840, 843 (7th Cir. 1998); Gjertsen v. Bd. of Election Comm rs of the City of Chi., 751 F.2d 199, 202 (7th Cir. 1984); see also Pac. Ins. Co. v. Gen l Dev. Corp., 28 F.3d 1093 (11th Cir. 1994) (dismissing appeal without vacating preliminary injunction); Tropicana Prods. Sales, Inc. v. Phillips Brokerage Co., 874 F.2d 1581, 1584 (11th Cir. 1989) (same). Courts do not vacate interlocutory orders because the primary reason to vacate a district court decision that becomes moot on appeal is to prevent it from having preclusive effect 11

14 against a losing party who has been denied an appeal. See Munsingwear, 340 U.S. at 39-40; Marilyn T., Inc. v. Evans, 803 F.2d 1383, 1385 (5th Cir. 1986); Gjertsen, 751 F.2d at 202. Because a judgment must be final and on the merits to have preclusive effect, In re Justice Oaks II, Ltd., 898 F.2d 1544, 1550 (11th Cir. 1990), there is no reason to vacate a decision that is merely interlocutory, like a preliminary injunction. See United States v. U.S. Smelting Ref. & Mining Co., 339 U.S. 186, (1950) (finding that a preliminary injunction is not a final judgment). Moreover, because findings of fact and conclusions of law made by a court granting a preliminary injunction are not binding at a trial on the merits[,] leaving the district court s order in place will not disadvantage defendants in the ongoing proceedings. Univ. of Tex. v. Camenisch, 451 U.S. 390, 395 (1981); see also David Vincent, Inc. v. Broward County, 200 F.3d 1325, 1331 n.8 (11th Cir. 2000); cf. Gjertsen, 751 F.2d at 202 ( A preliminary injunction has no preclusive effect... on the judge s decision whether to issue a permanent injunction. ). This is particularly true where, as defendants argue is the case here, the preliminary injunction will cease to have force after a certain point. 6 See Housing Works, 203 F.3d at 178 (declining to vacate preliminary injunction that had become 6 Of course the preliminary injunction in this case continues to have effect at least as long as the current law is in effect. 12

15 irrelevant ); Marilyn T., 803 F.2d at 1385 (declining to vacate district court order because it is an interlocutory order that has lost its effectiveness ). 7 III. DEFENDANTS SUGGESTION THAT THE ENTIRE CASE IS MOOT IS BASELESS Although defendants do not move to dismiss this case as moot, they do suggest that the entire case, and not just their appeal, will become moot as of January 1, This is not correct; the law as amended is still unconstitutional, as plaintiffs will have the opportunity to allege in an amended complaint in the district court once the stay of proceedings expires on August 12. When a challenged law is amended and the new [law] differs in certain respects from the old one, the case is not moot as long as [t]he gravamen of [plaintiffs ] complaint continues. Ne. Fl. Ch. of the Assoc. Gen. Contractors of 7 Most of the remaining cases defendants cite in support of their request for vacatur are cases where an appeal from a final judgment became moot and are thus inapposite. See De La Teja v. United States, 321 F.3d 1357, 1366 (11th Cir. 2003) (vacating denial of writ of habeas corpus, which is a final, appealable judgment under 28 U.S.C. 1291); Soliman v. United States, 296 F.3d 1237, (11th Cir. 2002) (same); In re Ghandatchi, 705 F.2d 1315 (11th Cir. 1983) (vacating decision that appeals court had previously assumed was final, see 697 F.2d 1037 (11th Cir. 1983)). While in BankWest, Inc. v. Baker, 446 F.3d 1358, 1368 (11th Cir. 2006), cited by defendants, this Court vacated the denial of a preliminary injunction on appeal, the Court did not expressly decide the issue of whether vacatur is appropriate where an appeal is interlocutory, nor did it cite the relevant circuit precedent. To the extent that BankWest determined that a denial of a preliminary injunction would have preclusive effect warranting vacatur, it was incorrect. Brooks is the only case in the Eleventh Circuit of which plaintiffs are aware that expressly decided the issue of whether vacatur is appropriate on an interlocutory appeal, and Brooks squarely held that it is not. 59 F.3d at

16 Am. v. City of Jacksonville, 508 U.S. 656, 662 (1993). A challenge to an amended law should proceed in the same case when the new law disadvantage[s] [plaintiffs] to a lesser degree than the old one, but... it disadvantages them in the same fundamental way. Id.; see also Coal. for the Abol. of Marijuana Prohibition v. City of Atlanta, 219 F.3d 1301, 1314 (11th Cir. 2000) (refusing to dismiss case as moot based on changes to challenged ordinance that narrow[ed] the scope of events which will be governed by the ordinance but do not substantially alter the appellants argument that the ordinance is content-based ). The entire case becomes moot only where the [law] has been sufficiently altered so as to present a substantially different controversy. Ne. Fl., 508 U.S. at 662 n.3 (citation omitted). Whether or not the amended law is sufficiently different from the current version of the law to moot defendants appeal when it goes into effect, it will injure plaintiffs in a fundamentally similar way as the prior law, and thus the case will not become moot. Specifically, the law as amended will continue to burden plaintiffs voter registration drives and will therefore continue to restrict plaintiffs speech and association and to interfere with the right to vote of plaintiffs members. The amended law disadvantages plaintiffs in the same fundamental way as the current law, even if some of the unlawful aspects of the law identified by the district court have been modified: it still threatens plaintiffs with fines for engaging in protected 14

17 First Amendment activity; penalizes them for missing an arbitrary ten-day deadline; imposes liability even when they act with reasonable care; and is not justified by any state interest. 8 These are the same fundamental charges plaintiffs raised against the law as originally enacted. (See Compl. at ) Defendants are thus incorrect that the amendments to Florida s voter registration law repealed all of the challenged aspects of the law. 9 What is more, there is no basis for defendants assumption that the amended law no longer burdens plaintiffs. Although the amendment reduces the law s fines and includes an annual cap, the fine structure remains in place. Although it creates an exception to fines for force majeure and impossibility of performance, it continues to require fines in other situations where an organization is entirely blameless, such as when a volunteer has car trouble and submits forms a day after the ten-day deadline expires or when an employee s sister dies in Georgia and they leave [for a week] and they still have voter registration [forms] in their car[]. (Hearing Tr., July 26, 2006, 16:9-11 (Dorfman Testimony).) Although the amendment deletes the personal and joint and several liability language from the law, it does not insulate individual voter registration volunteers and workers from 8 In addition, as plaintiffs will allege in the district court, the law as amended is now also unconstitutionally vague. 9 The amendments did, however, repeal the provisions of the law that discriminated on the basis of affiliation with a political party. 15

18 personal liability. 10 And while it purports to include affiliate organizations in the annual cap on fines, it fails to define affiliate organizations, leaving plaintiffs affiliated entities at risk of separate fines. Finally, the amendments also leave the arbitrary ten-day deadline entirely intact. Although plaintiffs do not agree that the amendments to the challenged law address all of the specific defects identified in the district court s opinion, even if they do, that does not mean that the case will become moot. In Horton v. City of Augustine, 272 F.3d 1318, (11th Cir. 2001), cited by defendants, this Court rejected the proposition that a case becomes moot simply because a challenged law is amended to address the reasoning in an opinion granting a preliminary injunction. The complaint in Horton made five claims of unconstitutionality against a municipal ordinance. The district court issued a preliminary injunction based on the vagueness of certain language in the law and the possibility of arbitrary enforcement just one of the plaintiff s claims. The ordinance was then amended to remove the vague language, and the municipality argued that the case was therefore moot. This Court rejected that argument, noting that [t]he majority of Horton s challenges to [the law] remain alive and unresolved. Id. at The Court also found that [t]he correctness of the 10 The definition of a third party voter registration organization in Fla. Stat (36) continues to include individuals, without indicating when individuals will be organizations unto themselves subject to fines. 16

19 district court s conclusion that the ordinance was unconstitutionally vague remain[ed] a live controversy because the amendments did not go far enough in making the statute s language concrete. Id. Here, as in Horton, the amended law does not address all of plaintiffs claims, nor does it go far enough to prevent plaintiffs from suffering fundamentally similar harm as before. The case thus is not moot. See also Naturist Soc y, Inc. v. Fillyaw, 958 F.2d 1515, 1520 (11th Cir. 1992) (case does not become moot unless the superseding statute... satisfies all of the principles sought in an attack on the prior statute ) (quoting Johnson v. State, 586 F.2d 387, 388 (5th Cir. 1978)). In any case, even if there is a question as to how the amendment will affect plaintiffs challenge to the voter registration law, the appropriate course is to remand to the district court to consider in the first instance whether plaintiffs claims are moot. See id. at 1524 ( it would be inappropriate for this court to consider [plaintiffs claims] in light of the amended [law] without district court findings of facts and conclusions of law ). That is particularly true in this case, where so much of the dispute centers on the effects of the challenged law on plaintiffs, an intensely factual question. In an analogous situation, the Supreme Court considered an appeal from a successful challenge on Connecticut s procedures for deciding unemployment claims, focusing on the length of time applicants were required to wait to receive benefits. See Fusari v. Steinberg,

20 U.S. 379 (1975). While the case was on appeal, the state changed the governing procedures. Although the record from the district court showed that Connecticut s previous system often failed to deliver benefits in a timely manner, the Court found that it could only speculate how the new system might operate. Id. at 388. It therefore remanded the case for reconsideration in light of the new law. Similarly, in Crowell v. Mader, 444 U.S. 505 (1979), the Court found that a new redistricting plan mooted out plaintiffs challenge to a prior plan but would not dismiss the entire case as moot. It explained, [t]he recent legislation did not moot the entire case, but only the issues raised on appeal. Appellees may still wish to attack the newly enacted legislation. Id. at ; see also Diffenderfer v. Central Baptist Church of Miami, 404 U.S. 412, (1972) (where challenged law was amended, appeal was moot but [b]ecause it is possible that appellants may wish to amend their complaint so as to... attack the newly enacted legislation, remanding with leave for plaintiffs to amend their pleadings rather than to dismiss); Suster v. Marshall, 149 F.3d 523, 528 (6th Cir. 1998) (where judicial campaign finance regulation was amended from flat spending caps to caps based on population of judicial district, appeal of issue was moot but challenge to new caps remanded to district court for consideration in the first instance). Cases cited by the defendants in arguing that the case is moot are not to the contrary. For instance, in National Advertising Co. v. City of Miami, 402 F.3d 18

21 1329, 1334 (11th Cir. 2005), this Court considered an appeal from a district court s grant of summary judgment to the defendant on the sole issue of whether the defendant s municipal sign ordinance impermissibly favored commercial speech over non-commercial speech. Because [t]he amendments made clear that noncommercial messages would be permitted anywhere commercial messages were allowed, the plaintiff s claims [we]re moot. Id. at Similarly, in Tanner Advertising Group, L.L.C. v. Fayette County, 451 F.3d 777, (11th Cir. 2006), this Court dismissed most of the plaintiff s appeal as moot where the amended ordinance clearly answered all of plaintiff s complaints about the previous law. Notably, in both Tanner and National Advertising, the plaintiffs argued that the complained-of laws were unconstitutional because of facial defects, questions that required no factual resolution. In this case, the amendments do not by any means make clear that plaintiffs speech and association will not be burdened by Florida s voter registration law. Serious questions remain as to the effect of the amended law on plaintiffs voter registration drives, making it impossible to find mootness without remand to the district court Other cases cited by defendants are also inapposite. In Coral Springs St. Sys., Inc, v. City of Sunrise, 371 F.3d 1320 (11th Cir. 2004), this Court did not deal with the question of whether an amendment to a challenged law moots that challenge, but instead with the question of how likely it is a particular challenged law will be reenacted. In contrast, here [t]here is no mere risk that [Florida] will repeat its allegedly wrongful conduct; it has already done so. Ne. Fla., 508 U.S. at 662. And in KH Outdoor, L.L.C. v. Clay County, 482 F.3d 1299, (11th Cir. 19

22 Conclusion For the foregoing reasons, defendants motion to dismiss their appeal, to avoid a decision on their appeal, and for vacatur of the preliminary injunction should be denied in its entirety. Alternatively, it should be treated as a motion to withdraw their appeal under Rule 42(b) and granted. This 25th day of July, 2007 Respectfully submitted, Wendy R. Weiser Renée Paradis The Brennan Center for Justice at NYU School of Law 161 Avenue of the Americas, 12th Fl. New York, New York Phone: (212) Eric A. Tirschwell Craig L. Siegel Erin A. Walter Kramer Levin Naftalis & Frankel LLP 1177 Avenue of the Americas New York, New York Phone: (212) Elizabeth S. Westfall Jennifer Maranzano Advancement Project 1730 M Street, NW, Suite 910 Washington, DC Phone: (202) ), this Court did not decide the question of whether the amended law rendered the plaintiffs claim for injunctive relief moot, because plaintiffs had a live damages claim. Princeton Univ. v. Schmid, 455 U.S. 100 (1982), is wholly irrelevant since it dealt with a past criminal conviction and there was no ongoing controversy. 20

23 Certificate of Service The undersigned attorney certifies that on July 25, 2007, a true copy of the foregoing was served upon the following counsel as indicated below: Peter Antonacci Allen Winsor GrayRobinson, P.A. 301 S. Bronough Street, Suite 600 Tallahassee, Florida Tel. (850) pva@gray-robinson.com (by United States Mail and ) Renée Paradis July 25, 2007