the Common Sense Party; v. ALEX PADILLA, Secretary of State of California

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
THE COMMON SENSE PARTY; et al.,
Plaintiffs-Appellants,
v.
ALEX PADILLA, Secretary of State of
California, in his official capacity as
Secretary of State of California,
Defendant-Appellee.
No. 20-16335
D.C. No. 2:20-cv-01091-MCE-EFB
MEMORANDUM*
Appeal from the United States District Court
for the Eastern District of California
Morrison C. England Jr., District Judge, Presiding
Submitted January 15, 2021**
San Francisco, California
Before: WALLACE and M. SMITH, Circuit Judges, and LASNIK,*** District
Judge.
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
*** The Honorable Robert S. Lasnik, United States District Judge for the
Western District of Washington, sitting by designation.
FILED
JAN 21 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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The Common Sense Party, Tom Campbell, Debbie Benrey, and Michael
Turnipseed (collectively, the “CSP”) appeal from the district court’s order denying
CSP’s motion for a temporary restraining order or preliminary injunction enjoining
California’s Secretary of State from enforcing California Election Code § 5151(c).
Section 5151(c) states that in order to qualify to participate in a presidential general
election, a new political party must obtain voter registrations of equal to 0.33 percent
of the number of registered voters in California by the 123rd day before the election.
The CSP argues that § 5151(c), as applied in the context of the COVID-19 pandemic
and the state-ordered public health measures, violates the CSP’s speech, voting, and
associational rights under the First Amendment and the CSP’s due process rights
under the Fourteenth Amendment. We have jurisdiction under 28 U.S.C.
§ 1292(a)(1). “We review questions of mootness de novo.” United States v. Hulen,
879 F.3d 1015, 1018 (9th Cir. 2018). We dismiss the CSP’s appeal as moot.
The occurrence of an election does not necessarily moot relief sought in
related litigation. See Joyner v. Mofford, 706 F.2d 1523, 1527 (9th Cir. 1983).
However, the occurrence of an election moots relief sought with respect to that
election cycle. See Ariz. Green Party v. Reagan, 838 F.3d 983, 987 (9th Cir. 2016).
The “capable of repetition, yet evading review” exception to mootness “applies
where (1) the challenged action is in its duration too short to be fully litigated prior
to cessation or expiration, and (2) there is a reasonable expectation that the same

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complaining party will be subject to the same action again.” FEC v. Wis. Right to
Life, Inc., 551 U.S. 449, 462 (2007) (citation and quotation marks omitted).
“Election cases often fall within this exception, because the inherently brief duration
of an election is almost invariably too short to enable full litigation on the merits.”
Porter v. Jones, 319 F.3d 483, 490 (9th Cir. 2003). “The second prong of the
‘capable of repetition’ exception requires a reasonable expectation or a demonstrated
probability that the same controversy will recur involving the same complaining
party.” Wis. Right to Life, 551 U.S. at 463 (citation and quotation marks omitted).
The November 2020 presidential general election has passed. The relief that
the CSP seeks with respect to the November 2020 presidential general election is
moot. The CSP only challenges the application of § 5151(c) in the context of the
COVID-19 pandemic and the state-ordered public health measures, not the
constitutionality of the provision itself or its constitutionality as applied to the CSP
outside this context. The CSP recognizes § 5151(c) as an “otherwise acceptable”
requirement. Nothing in the record supports a reasonable expectation or
demonstrated probability that the same controversy with the CSP will recur. The
“capable of repetition, yet evading review” exception to mootness does not apply.
DISMISSED.

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