UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 20-2167

LEAGUE OF WOMEN VOTERS OF SOUTH CAROLINA; THE FAMILY UNIT, INC.; GEORGE HOPKINS; ALBERTUS CLEA,

Plaintiffs – Appellees,

v.

MARCI ANDINO, in her official capacity as the Executive Director of the South Carolina State Election Commission; HOWARD M. KNAPP, in his official capacity as Director of Voter Services of the South Carolina State Election Commission; JOHN WELLS, in his official capacity as Chair of the South Carolina State Election Commission; JOANNE DAY, in her official capacity as member of the South Carolina State Election Commission; CLIFFORD J. EDLER, in his official capacity as member of the South Carolina State Election Commission; LINDA MCCALL, in her official capacity as member of the South Carolina State Election Commission; SCOTT MOSELEY, in his official capacity as member of the South Carolina State Election Commission,

Defendants – Appellants,

REPRESENTATIVE JAMES H. (JAY) LUCAS, in his capacity as Speaker of the South Carolina House of Representatives; SENATOR HARVEY PEELER, in his capacity as President of the South Carolina Senate,

Intervenors/Defendants – Appellants.

Appeal from the United States District Court for the District of South Carolina, at Charleston. Richard Mark Gergel, District Judge. (2:20-cv-03537-RMG)

Argued: January 25, 2021 Decided: March 11, 2021 Before KING, FLOYD, and QUATTLEBAUM, Circuit Judges.

Dismissed and remanded with instructions by unpublished per curiam opinion.

ARGUED: William Grayson Lambert, BURR & FORMAN LLP, Columbia, South Carolina; Kevin Hall, WOMBLE BOND DICKINSON (US) LLP, Columbia, South Carolina, for Appellants. Julianne J. Marley, DEBEVOISE & PLIMPTON LLP, New York, New York, for Appellees. ON BRIEF: M. Elizabeth Crum, Jane W. Trinkley, BURR & FORMAN LLP, Columbia, South Carolina, for Election Appellants. Susan P. McWilliams, Marc C. Moore, NEXSEN PRUET, LLC, Columbia, South Carolina, for James H. Lucas. M. Todd Carroll, WOMBLE BOND DICKINSON (US) LLP, Columbia, South Carolina, for Appellant Harvey Peeler. Susan K. Dunn, Shirene C. Hansotia, AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF SOUTH CAROLINA, Charleston, South Carolina; Ezra Rosenberg, John Powers, LAWYERS’ COMMITTEE FOR CIVIL RIGHTS UNDER LAW, Washington, D.C.; Catherine Amirfar, Rhianna Hoover, Anagha Sundararajan, Joshua Burger, DEBEVOISE & PLIMPTON LLP, New York, New York, for Appellees.

Unpublished opinions are not binding precedent in this circuit.

2 PER CURIAM:

Prior to the 2020 presidential election, Plaintiffs-Appellees the League of Women

Voters of South Carolina, The Family Unit, George Hopkins, and Albertus Clea

(collectively, “the League”) brought suit against South Carolina election officials to enjoin

the rejection of absentee ballots with signature-based deficiencies. The district court

entered a preliminary injunction on October 27, 2020, specifically prohibiting the use of

signature matching by county election boards without adequate notice-and-cure

procedures. Defendants-Appellants—various South Carolina State Election Commission

officials and leaders of the state legislative branch (collectively, “the Officials”) 1—

appealed that injunction to this Court. On appeal, the Officials argue that the issue of

signature matching became moot hours before the district court entered its injunction.

Because the district court has not yet had the opportunity to rule on the question of

mootness, we dismiss this appeal and remand to the district court to consider mootness in

the first instance.

1 The League initially named the following as Defendants: Marci Andino, in her official capacity as the Executive Director of the South Carolina State Election Commission; Howard M. Knapp, in his official capacity as Director of Voter Services of the South Carolina State Election Commission; John Wells, in his official capacity as Chair of the South Carolina State Election Commission; and Joanne Day, Clifford J. Edler, Linda McCall, and Scott Moseley, in their official capacities as members of the South Carolina State Election Commission. One week later, Speaker of the South Carolina House of Representatives James H. Lucas and South Carolina Senate President Harvey Peeler moved to intervene as Defendants. Because the initial and intervening Defendants filed one set of briefs in this Court, we refer to all Defendants collectively.

3 I.

A.

South Carolina law established both the South Carolina State Election Commission

(“the Commission”) and county election boards, which together manage elections in the

state. See

(establishing the Commission);

§ 7-5-10

(establishing county boards). County boards are responsible for, among other duties,

verifying and counting absentee ballots. Id. § 7-15-420. The Commission, through its

Executive Director Marci Andino, is responsible for supervising the administration of

absentee voting by county boards. See id. § 7-3-20(c)(1). When Andino “determines that

a county board . . . has failed to comply with applicable state or federal law . . . the State

Election Commission, acting through [Andino] or other designee, must supervise . . . the

county board to the extent necessary to . . . establish a plan to correct the failure[]

and . . . implement the plan to correct the failure.” Id. § 7-3-25(A). Andino’s interpretation

of state law controls over any differing interpretation by the county boards. Id. § 7-3-

25(A)(3) (“In the event of a difference of policy or opinion between a county election

official and the State Election Commission . . . the policy or opinion of the State Election

Commission shall control.”).

Typically, only certain South Carolina voters are eligible to vote absentee. See

. Eligible voters may request and receive from their county board

an absentee ballot accompanied by printed instructions; a “ballot herein” envelope into

which that ballot is placed; a separate, return-addressed envelope; and any other materials

required to guarantee the ballot’s validity.

§§ 7-15-330, 370. The return-addressed

4 envelope has printed on it an oath to be signed by the voter and a space for a witness

signature. Id. § 7-15-380. State law requires county boards to reject absentee ballots that

arrive in envelopes not “properly signed [by the voter] and witnessed.” Id. § 7-15-420(B).

Under the Commission’s interpretation of state law, county boards must reject any

unsigned ballot and may not provide any opportunity for a voter to correct the deficiency.

The Commission therefore has instructed county boards that they may not allow voters to

cure absentee ballots that do not comply with the signature requirement.

The ongoing health risks posed by COVID-19 led the state to greatly expand

eligibility for absentee voting during the 2020 presidential election. See

. Anticipating a dramatic increase in the number of absentee ballots cast, the League

filed suit on October 2, 2020, alleging that absentee voters risked rejection of their ballots

for signature deficiencies in violation of procedural due process and the fundamental right

to vote. Relevant to this appeal, the League alleged that some county boards were engaged

in signature matching—a process whereby a county board compares the signature on an

absentee ballot to that voter’s signature in the voter registration database—to reject

otherwise-valid absentee ballots. 2 The League contended that this practice, which was not

provided for under South Carolina law, similarly violated voters’ procedural due process

rights and the fundamental right to vote.

2 Other allegations in the Complaint are not before this Court on appeal, and we do not address them.

5 B.

On October 9, 2020, the League moved for a preliminary injunction against the

rejection of absentee ballots with signature deficiencies absent notice and the opportunity

to cure the deficiency. 3 As part of the Officials’ response to this motion, Andino submitted

a declaration averring that she was unaware of any signature matching by county boards;

that the Commission never published any materials, provided any training, or tracked

statistics on signature matching during her tenure as Commissioner; and that she knew of

no state “statutes, regulations, rules, handbooks, memoranda, or other documents”

concerning signature matching. J.A. 272. However, Andino acknowledged that the

Charleston County Board had previously requested the Commission’s permission to

purchase signature-matching equipment.

In opposing the League’s motion, the Officials represented that the use of signature

matching to reject absentee ballots would violate state law. Following oral argument, the

district court ordered Andino to survey the county boards to determine whether any boards

were engaged in signature matching and if so, whether those boards had procedural

safeguards in place for affected voters. In response to that survey, nine county boards

responded that they were using or planning to use signature matching to reject otherwise-

valid absentee ballots; five county boards declined to respond; one county board stated that

it tried to use signature matching but could not keep pace with the number of ballots

3 Because the district court only granted the League’s request for a preliminary injunction against the use of signature matching, we do not describe the League’s other arguments for injunctive relief.

6 received; and one county board indicated only that it would “follow SC Code of Laws

Section 7-15-420.” J.A. 281. Thirty county boards responded that they did not use

signature matching to disqualify absentee ballots. Andino then filed a declaration attaching

Directive No. 2020-001, which she had issued to all forty-six county boards. The Directive

instructed county boards to cease signature matching because the practice was not

permitted by South Carolina law.

Andino’s declaration attaching Directive No. 2020-001 was filed on October 26,

2020. The next day, the district court entered an order granting in part and denying in part

the League’s motion for a preliminary injunction. The district court held, as to signature

matching, that the League had satisfied the four-factor preliminary injunction test set forth

in Winter v. Natural Resources Defense Council, Inc.,

(2008). In so holding,

the court found that signature matching violated state law and that the Commission was

“genuinely unaware that a minority of counties were engaged in unauthorized signature

matching procedures.” J.A. 313 n.4. The court preliminarily enjoined the use of signature

matching by county boards unless they provided an adequate notice-and-cure procedure to

the court. Importantly, the court’s order did not consider what effect—if any—Directive

No. 2020-01 had on the justiciability or the merits of the League’s preliminary injunction

motion.

The Officials timely appealed the district court’s order, and the parties agreed to

stay the portion of the court’s injunction permitting county boards to submit notice-and-

cure procedures for the court’s approval. See League of Women Voters of S.C. v. Andino,

No. 20-2167,

, at *2–4 (4th Cir. Oct. 29, 2020).

7 II.

A.

In their opening brief, the Officials argued only that the district court abused its

discretion under Winter by entering the preliminary injunction. For the first time in their

reply brief, the Officials separately argued that the district court lacked jurisdiction to enter

the injunction because Directive No. 2020-001 made the issue of signature matching non-

justiciable. In particular, the Officials contend that Directive No. 2020-001 ended any

signature matching by county boards and reinforced the Commission’s longstanding

interpretation that state law forbids its use. The Officials therefore asked this Court to hold

that any challenge to the constitutionality of signature matching became moot prior to entry

of the injunction. 4 Although the Officials did not raise the issue of mootness before the

district court or in their opening brief, we have an obligation to ensure the question of

4 The Officials separately argued that the Directive deprived the League of standing and rendered their challenge to future elections unripe. These arguments are meritless because they rely on the voluntary issuance of Directive No. 2020-01 during the litigation, a question best analyzed under the rubric of mootness. See, e.g., U.S. Parole Comm’n v. Geraghty,

(1980) (describing mootness as “the doctrine of standing set in a time frame” (quoting Henry P. Monaghan, Constitutional Adjudication: The Who and When,

, 1384 (1973))); Deal v. Mercer Cnty. Bd. of Educ.,

(4th Cir. 2018) (“The [Commission] cannot, as it evidently seeks to do here, reframe this case as an unripe challenge to some future iteration of [the state’s election procedures] in order to avoid the demanding requirements of demonstrating mootness.”).

The Officials also argued that there is no Article III case or controversy because the parties agree that signature matching is prohibited by law. Even assuming the Officials accurately depict the parties’ legal positions, their argument confuses the question of legal consensus with the question of whether the League risks suffering a cognizable injury. See United States v. Windsor,

(2013).

8 signature matching presented a live case or controversy at the time the district court entered

the injunction. See Suarez Corp. Indus. v. McGraw,

, 227–28 (4th Cir. 1997)

(raising question of mootness sua sponte).

It is well established that an issue becomes moot when, due to a change in facts or

law, “the issues presented are no longer ‘live’ or the parties lack a legally cognizable

interest in the outcome.” Porter v. Clarke,

(4th Cir. 2017) (quoting

Powell v. McCormack,

(1969)). The Officials contend that Directive

No. 2020-01 ended any signature matching in South Carolina, so the League had no

concrete interest in a ruling on its legality at the time of the injunction. But “a defendant’s

voluntary cessation of a challenged practice does not deprive a federal court of its power

to determine the legality of the practice.” City of Mesquite v. Aladdin’s Castle, Inc.,

(1982). Accordingly, the Officials must overcome the voluntary cessation

exception to the mootness doctrine.

Not all voluntary conduct triggers the voluntary cessation exception, which “seeks

to prevent ‘a manipulative litigant immunizing itself from suit indefinitely, altering its

behavior long enough to secure a dismissal and then reinstating it immediately after.’”

Porter,

(citing ACLU of Mass. v. U.S. Conf. of Cath. Bishops,

,

54–55 (1st Cir. 2013)). To avoid the conclusion that Directive No. 2020-01 is a mere

“litigation tactic,” see 6th Cong. Dist. Republican Comm. v. Alcorn,

(4th

Cir. 2019), the Officials “bear[] the formidable burden of showing that it is absolutely clear

[signature matching] could not reasonably be expected to recur.” See Friends of the Earth,

Inc. v. Laidlaw Env’t Servs. (TOC), Inc.,

(2000). The Officials contend

9 both that the Commission lacks the authority to rescind Directive No. 2020-01 in the future

because South Carolina law prohibits signature matching and that “voluntary cessation” is

not applicable because the Commission has never permitted signature matching.

Given the timing of Directive No. 2020-01, which was issued on the eve of the

preliminary injunction, we conclude the district court was not adequately given the chance

to consider the issue of mootness. Indeed, this Court does not consider “assurances” on

appeal enough to demonstrate the permanent termination of a challenged practice. Wall v.

Wade,

(4th Cir. 2014). Instead, mootness turns on a number of factual

questions, including (but not limited to) whether the Directive actually reflects a

longstanding interpretation of the Commission, whether the Commission has authority to

rescind the Directive, what degree of supervision and enforcement the Commission

exercises over the Directive, whether the Commission engaged in any such supervision in

the past, and whether any signature matching occurred at the county level in the wake of

the Directive. “Because all of the prior litigation was conducted” before the issuance of

Directive No. 2020-01, we hold the district court should consider whether the Directive

moots the League’s preliminary injunction motion in the first instance. See Grimm v.

Gloucester Cnty. Sch. Bd.,

(4th Cir. 2017). 5 We accordingly dismiss

this appeal and remand to the district court to resolve the question of mootness.

5 The League has alleged that other state laws and Commission policies violate voters’ constitutional rights. We note that even if the narrow issue of the legality of signature matching is moot, other issues in this case may remain live. See DOJ v. Provenzano,

(1984) (per curiam) (“The mootness of the particular issue that was presented to us . . . does not mean that the case[ itself does] not remain alive.”).

10 B.

Not only was the district court unable to consider the issue of mootness in light of

the Directive, it also was unable to consider the Directive when applying its Winter analysis

to determine whether a preliminary injunction should be issued. See Winter,

. If the district court determines the case is not moot, the Directive seems plainly relevant

to the Winter analysis. In particular, the Directive bears on the issues of likelihood of

success on the merits and the likelihood plaintiffs will suffer irreparable harm in the

absence of an injunction.

Thus, on remand, if the district court determines the case is

not moot, it should re-evaluate the Winter factors with the benefit of the Directive and any

other pertinent evidence in the record.

DISMISSED AND REMANDED WITH INSTRUCTIONS

11