SD VOICE; Cory Heidelberger v. Kristi Noem, Governor of South Dakota

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 20-1262
___________________________
SD VOICE; Cory Heidelberger
Plaintiffs - Appellees
v.
Kristi Noem, Governor of South Dakota, in her official capacity; Jason Ravnsborg,
Attorney General of South Dakota, in his official capacity; Steve Barnett, Secretary
of State of South Dakota, in his official capacity.
Defendants - Appellants
------------------------------
South Dakota Chamber of Commerce & Industry; South Dakota Biotech
Association
Amici on Behalf of Appellant(s)
___________________________
No. 20-1278
___________________________
SD VOICE; Cory Heidelberger
Plaintiffs - Appellants
v.
Kristi Noem, Governor of South Dakota, in her official capacity; Jason Ravnsborg,
Attorney General of South Dakota, in his official capacity; Steve Barnett, Secretary
of State of South Dakota, in his official capacity.
Defendants - Appellees

-- 1 of 9 --

-2-
____________
Appeal from United States District Court
for the District of South Dakota - Aberdeen
____________
Submitted: December 16, 2020
Filed: February 16, 2021
____________
Before GRUENDER, ERICKSON, and KOBES, Circuit Judges.
____________
GRUENDER, Circuit Judge.
Defendants (the South Dakota governor, attorney general, and secretary of
state) appeal the district court’s decision permanently enjoining as unconstitutional
a South Dakota law regulating ballot-petition circulation. In turn, Plaintiffs (South
Dakota ballot-question committee SD Voice and its operator Cory Heidelberger)
cross-appeal the district court’s failure to decide all of their claims. For the following
reasons, we dismiss both appeals for lack of jurisdiction.
I.
South Dakota citizens may enact laws directly through ballot measures. S.D.
Const. art. 3, § 1. Before being placed on the ballot, a measure must garner support
from a sufficient number of electors, which is generally achieved by circulating
ballot petitions for signatures. See S.D. Codified Laws § 2-1-1. In 2019, the South
Dakota Legislature enacted House Bill 1094 (“HB 1094”), regulating this process.
2019 S.D. Sess. Laws ch. 14 §§ 1-11. HB 1094 applied to “petition circulators,”
defined to include any adult resident who “solicit[ed] petition signatures from
members of the public for the purpose of placing ballot measures on any statewide
election ballot.” Id. § 1. Under HB 1094, petition circulators had to provide the
South Dakota secretary of state with a large amount of personally identifying

-- 2 of 9 --

-3-
information, which would then be compiled in a publicly available directory. Id.
§§ 3-4. HB 1094 also required petition circulators to wear a badge displaying an
identifying number that could be cross-referenced with this directory. See id. §§ 6-
7.
After HB 1094’s enactment, Plaintiffs brought this case, arguing the law
violated the First Amendment. Plaintiffs also challenged a statutory requirement
predating HB 1094 that required ballot petitions to be filed one year before the next
general election (the “Fifth Claim”). See S.D. Codified Laws § 2-1-1.2 (2018). After
a bench trial, the district court entered judgment for Plaintiffs, declared HB 1094
unconstitutional, and permanently enjoined Defendants from enforcing it. The
district court did not, however, decide Plaintiffs’ Fifth Claim, and it summarily
denied Plaintiffs’ subsequent request for a decision.
Defendants appealed, challenging the district court’s decision permanently
enjoining HB 1094’s enforcement. Plaintiffs cross-appealed, contending the district
court should have decided their Fifth Claim. While these appeals were pending, the
South Dakota Legislature passed Senate Bill 180 (“SB 180”), which substantially
changed HB 1094. See 2020 S.D. Sess. Laws ch. 8 §§ 1-13. Given this change,
Plaintiffs move to dismiss Defendants’ appeal as moot.
II.
A.
We first consider whether Defendants’ appeal is moot. “Under Article III of
the Constitution, [we] may adjudicate only actual, ongoing cases or controversies.”
McCarthy v. Ozark Sch. Dist., 359 F.3d 1029, 1035 (8th Cir. 2004) (internal
quotation marks omitted). “[W]hen the issues presented [in a case] are no longer
‘live,’” the case is moot and is “therefore no longer a ‘Case’ or ‘Controversy’ for
purposes of Article III.” Teague v. Cooper, 720 F.3d 973, 976 (8th Cir. 2013).

-- 3 of 9 --

-4-
“When a law has been amended or repealed, actions seeking . . . injunctive relief for
earlier versions are generally moot.” Id.
Here, Plaintiffs sought injunctive relief barring HB 1094’s enforcement.
While this appeal was pending, the South Dakota Legislature enacted SB 180,
replacing HB 1094. See 2020 S.D. Sess. Laws ch. 8 § 1. Thus, Defendants’ appeal,
which asks us to uphold the now-defunct HB 1094 as constitutional, is moot.
Defendants concede SB 180 amended HB 1094 but counter that SB 180 is
sufficiently similar to HB 1094 to sustain our jurisdiction. True, “[a] controversy is
not moot if the new statute is sufficiently similar to the [old] statute” such that it
“disadvantages [the plaintiff] in the same fundamental way the [old] statute did.”
Smithfield Foods, Inc. v. Miller, 367 F.3d 1061, 1064 (8th Cir. 2004) (internal
quotation marks and brackets omitted); see also Ne. Fla. Chapter of Assoc. Gen.
Contractors of Am. v. City of Jacksonville, 508 U.S. 656, 662 (1993) (rejecting
mootness argument because the amended law still “disadvantage[d] [the plaintiffs]
in the same fundamental way” as the old law).
But SB 180 is a far cry from HB 1094 and does not disadvantage Plaintiffs in
the same fundamental way that HB 1094 did. For example, the district court held
that HB 1094’s definition of “petition circulator” had a “terrible sweep,” conceivably
applying to any ballot-measure supporter, regardless of his involvement in petition
circulation. Accordingly, the court held that this definition constituted viewpoint
discrimination because it targeted only ballot-measure proponents and, alternatively,
was unconstitutionally broad. SB 180 addresses this problem, redefining “petition
circulator” to include only those persons actually circulating petitions. 2020 S.D.
Sess. Laws ch. 8 §§ 1-2.
Further, the district court held that the petition-circulator directory, in
conjunction with the requirement to wear a badge displaying an identification
number, failed constitutional scrutiny. The court specifically noted that these
requirements—and the identification number in particular—violated the Supreme

-- 4 of 9 --

-5-
Court’s decision in Buckley v. American Constitutional Law Foundation, Inc., 525
U.S. 182 (1999). But SB 180 has tackled this issue too by eliminating the
identification number from the badge. 2020 S.D. Sess. Laws ch. 8 § 7.
Indeed, Defendants’ claim that SB 180 is essentially the same as HB 1094 is
at odds with SB 180’s apparent purpose. As one of SB 180’s sponsors explained at
a legislative hearing, SB 180 (and particularly the definitional change) was designed
to address the constitutional infirmities identified by the district court.1
Moreover, the contrast between our decisions applying the sufficiently-similar
doctrine and this case shows the doctrine’s inapplicability. In Smithfield, we held
that the appeal was not moot because the new law “impose[d] the same restrictions
on [the plaintiff] as before the amendment” and actually “enlarged the group subject
to [the law’s] prohibitions.” 367 F.3d at 1064. Similarly, in Rosenstiel v. Rodriguez,
we held that the appeal was not moot because the new law impaired the Plaintiffs
“in the very same way” and the changes seemed to “broaden[] the coverage of the
law.” 101 F.3d 1544, 1548 (8th Cir. 1996). Here, by contrast, SB 180 substantially
narrows the universe of regulated persons by redefining “petition circulators” and
by requiring only paid petition circulators to register with the secretary of state. 2020
S.D. Sess. Laws ch. 8 §§ 2-3. And, unlike the laws in Smithfield and Rosenstiel,
rather than imposing the same regulations on Plaintiffs, SB 180 removes the
identifying number from the required badge. Finally, it seems that the plaintiffs in
Smithfield and Rosenstiel did not claim mootness, whereas here Plaintiffs do. See
Appellant’s Suppl. Br. at 4, Smithfield, 367 F.3d 1061 (8th Cir. Oct. 17, 2003) (No.
03-1411); Rosenstiel, 101 F.3d at 1548.
Considering SB 180’s substantial changes, we cannot say that it disadvantages
Plaintiffs “in the same fundamental way” as HB 1094. See Smithfield, 367 F.3d at
1064. That Plaintiffs—who are uniquely situated to evaluate SB 180’s impact on
1See Senate Bill 180, South Dakota Legislature,
https://sdlegislature.gov/Session/Bill/12123 (follow audio hyperlink for the
Amendment 180C hearing, audio at 1:05:00-06:50).

-- 5 of 9 --

-6-
them—insist that “SB 180 does not disadvantage [them] in the same fundamental
way” HB 1094 did only bolsters this conclusion. Accordingly, we must dismiss
Defendants’ appeal as moot.
B.
The question now becomes what to do with the district court’s judgment,
which Defendants ask us to vacate. “[V]acatur is an equitable remedy, not an
automatic right.” Moore v. Thurston, 928 F.3d 753, 758 (8th Cir. 2019). As the
parties seeking vacatur, Defendants bear the burden of showing an “entitlement to
[this] extraordinary remedy.” See U.S. Bancorp Mortg. Co. v. Bonner Mall P’ship,
513 U.S. 18, 26 (1994). In considering whether vacatur is appropriate, we typically
consider “fault and public interest.” Moore, 928 F.3d at 758.
In evaluating fault, we distinguish between situations where a party’s own
actions moot a case, and situations where mootness arises from mere
“happenstance.” Id. Plaintiffs argue only that the South Dakota governor—who
signed SB 180 into law—is at fault for the mootness here. That makes sense, as the
South Dakota attorney general and secretary of state apparently had nothing to do
with SB 180’s enactment. Cf. id. (suggesting that a secretary of state is not at fault
for mooting legislation).
We have not yet decided whether a governor who signs the mooting
legislation into law is at “fault” for vacatur purposes. Decisions from other circuits
are mixed. Compare Hall v. Louisiana, 884 F.3d 546, 553 (5th Cir. 2018) (holding
that a governor who signs the mooting law is not at fault where “there is no evidence
that he was the moving force behind the legislation”), with Valero Terrestrial Corp.
v. Paige, 211 F.3d 112, 121 (4th Cir. 2000) (suggesting a governor, as opposed to
other executive officials, may be considered at fault for mooting legislation). But
we need not wade into these murky waters here as the public interest alone defeats
vacatur. See Moore, 928 F.3d at 758-59 (denying vacatur solely on public-interest

-- 6 of 9 --

-7-
ground); U.S. Bancorp, 513 U.S. at 26 (“[Judgments] should stand unless a court
concludes that the public interest would be served by a vacatur.”).
Considering the public interest, “judicial precedents are ‘presumptively
correct and valuable to the legal community as a whole’ and generally should be
permitted to stand.” Moore, 928 F.3d at 758 (quoting U.S. Bancorp, 513 U.S. at 26).
This is particularly true here, where the district court’s judgment works to protect
petition circulation, which the Supreme Court has described as “core political
speech” where “First Amendment protection . . . is at its zenith.” See Buckley, 525
at 186-87 (internal quotation marks omitted); see also Moore, 928 F.3d at 758-59
(denying vacatur because “the public interest [was] best served by a substantial body
of judicial precedents limiting the burden that those requirements may place on
candidates’ and voters’ First and Fourteenth Amendment rights”). Moreover, while
Defendants acknowledge that the public interest is important to the vacatur inquiry,
they offer no argument as to how vacatur here serves the public interest, instead
arguing only how vacatur serves them. Accordingly, Defendants have failed to show
their entitlement to vacatur, and we decline to vacate the district court’s judgment.
III.
We next turn to Plaintiffs’ cross-appeal, which presents a different
jurisdictional defect. With exceptions absent here, we have jurisdiction only over a
district court’s “final decisions.” See 28 U.S.C. § 1291. An “order is final if it ends
the litigation on the merits and leaves nothing more for the district court to do but
execute the judgment.” Alpine Glass, Inc. v. Country Mut. Ins. Co., 686 F.3d 874,
877 (8th Cir. 2012) (internal quotation marks omitted); see also Ritzen Grp., Inc. v.
Jackson Masonry, LLC, 589 U.S. ---, 140 S. Ct. 582, 586 (2020) (same). An order
that resolves fewer than all claims is paradigmatically not final. See, e.g., Consul
Gen. of Republic of Indon. ex rel. Salom v. Bill’s Rentals, Inc., 251 F.3d 718, 720
(8th Cir. 2001); Thomas v. Basham, 931 F.2d 521, 523 (8th Cir. 1991). Thus,
generally, when a party appeals from a non-final order, we must dismiss for lack of
jurisdiction. See Miller v. Special Weapons, L.L.C., 369 F.3d 1033, 1033-35 (8th

-- 7 of 9 --

-8-
Cir. 2004) (dismissing appeal for lack of jurisdiction because claims were still
pending in the district court when appeal was filed).
Here, Plaintiffs appeal the district court’s failure to decide the Fifth Claim.
But Plaintiffs’ own argument highlights the jurisdictional problem: the district court
has not yet decided all of their claims.
True, as Defendants point out, the district court purported to enter a
“judgment” in this case and, by awarding attorney’s fees, signaled that the case was
finished. But the district court’s view of finality is not controlling. For example, in
Riley v. Kennedy, “the District Court directed entry of [the] order ‘as a final judgment
pursuant to Rule 58.’” 553 U.S. 406, 419 (2008). Nonetheless, the Supreme Court
decided the order was nonfinal because the district court had not yet addressed all of
the plaintiff’s claims for relief. Id. In doing so, it noted that “[t]he label used by the
District Court . . . cannot control an order’s appealability.” Id. (internal quotation
marks omitted). So too here. The district court’s characterization notwithstanding,
we see no indication that the district court decided—or even mentioned—Plaintiffs’
Fifth Claim. Its summary denial of Plaintiffs’ request for a ruling on their Fifth
Claim is similarly unrevealing. And the district court’s ordered remedy, enjoining
HB 1094’s enforcement, does not resolve Plaintiffs’ Fifth Claim, which challenged
a statutory provision predating HB 1094. In sum, because Plaintiffs’ Fifth Claim
remains outstanding, the district court has not yet entered a final order, and we thus
lack jurisdiction over Plaintiffs’ cross-appeal. See Miller, 369 F.3d at 1035.
Accordingly, we dismiss Plaintiffs’ cross-appeal for lack of jurisdiction and
remand to the district court for consideration of Plaintiffs’ remaining, unresolved
claim. See, e.g., Snider-Carpenter v. City of Dixon, 504 F. App’x 527, 529-31 (8th
Cir. 2013) (per curiam) (doing the same in similar circumstances); Owens v.
Mallinger, 320 F. App’x 476, 476-77 (8th Cir. 2009) (per curiam); Ugbo v. All. Legal
Grp., P.L.L.C., 691 F. App’x 779, 780 (4th Cir. 2017) (per curiam); Stillman v.
Travelers Ins. Co., 88 F.3d 911, 914 (11th Cir. 1996) (per curiam).

-- 8 of 9 --

-9-
IV.
For the foregoing reasons, we dismiss both Defendants’ appeal and Plaintiffs’
cross-appeal for lack of jurisdiction, and we remand the issue raised on cross-appeal
to the district court for consideration.
______________________________

-- 9 of 9 --