Submitted: February 13, 2018
from United States District Court for the District of
Minnesota - Minneapolis
SMITH, Chief Judge, MURPHY and COLLOTON, Circuit Judges.
COLLOTON, CIRCUIT JUDGE.
State of Minnesota appointed Muhammad Abdurrahman as a
presidential elector during the 2016 presidential election.
Contrary to Minnesota's Uniform Faithful Presidential
Electors Act, Minn. Stat. §§ 208.40-208.48,
Abdurrahman attempted to vote for candidates other than those
to whom he was pledged. By operation of law, Minnesota deemed
Abdurrahman to have vacated his position as an elector and
appointed a substitute elector. Abdurrahman then sued in an
effort to have the Act declared unconstitutional and to
enjoin Minnesota officials from counting the vote of the
substitute elector. After a hearing, the district
courtdismissed the action as moot, and
Abdurrahman appeals. We agree that Abdurrahman's claim is
moot, and we therefore affirm the judgment.
the district court dismissed Abdurrahman's case at the
pleading stage, we take the following facts alleged in his
complaint as true. On August 11, 2016, the Minnesota
Democratic-Farmer-Labor Party nominated Abdurrahman as a
candidate to be a presidential elector if the Democratic
presidential candidate won Minnesota's general election.
As required by Minnesota's Uniform Faithful Presidential
Electors Act, Minn. Stat. § 208.43, Abdurrahman pledged
as follows: "If selected for the position of elector, I
agree to serve and to mark my ballots for president and vice
president for the nominees for those offices of the party
that nominated me."
November 8, Hillary Clinton and Tim Kaine, the Democratic
Party's presidential and vice presidential nominees, won
the most votes for those offices in Minnesota's general
election. As a result of their victory, Abdurrahman became
one of Minnesota's presidential electors by operation of
law. See 3 U.S.C. § 1; Minn. Stat. §§
208.02, 208.04. After the election, Governor Dayton submitted
a certificate of ascertainment to the Archivist of the United
States under 3 U.S.C. § 6 naming Abdurrahman as one of
Minnesota's presidential electors.
keeping with federal and Minnesota law, the Minnesota
electors met on December 19 to cast their ballots for
President and Vice President. 3 U.S.C. § 7; Minn. Stat.
§ 208.06. Contrary to his pledge, Abdurrahman attempted
to cast his ballot for Bernie Sanders and Tulsi Gabbard for
President and Vice President. Following the Minnesota Act,
the Minnesota Secretary of State declined to accept
Abdurrahman's ballot, deemed Abdurrahman to have vacated
his office as elector, and counted instead a ballot from a
substitute elector who voted for Clinton and Kaine. Minn.
Stat. § 208.46(b)-(d).
same day as the meeting of the Minnesota electors,
Abdurrahman filed a verified complaint, an emergency motion
for a temporary restraining order, an ex parte
motion for expedited briefing, and a motion for summary
judgment in federal district court. Abdurrahman asserted that
the Minnesota Act violated Article II and the Twelfth
Amendment of the Constitution and 3 U.S.C. § 5 by
limiting his power to vote for whom he wished and by
preventing him from counting, certifying, and transmitting
his vote. Abdurrahman sought an injunction preventing
Minnesota officials from enforcing the Act and a judgment
declaring the Act unconstitutional.
district court set a hearing on the emergency motion for
December 22, three days after the elector meeting. On
December 21, the Minnesota officials filed an opposition
pleading in which they argued that Abdurrahman's motion
was moot and did not fall within the exception to mootness
for cases capable of repetition yet evading review. The
officials cited Abdurrahman's failure to pursue his
action earlier, on November 9, 2016, when it was apparent he
would become a presidential elector, and urged that it was
speculative that Abdurrahman would be appointed as an elector
in a future election.
December 22 hearing, the district court asked Abdurrahman:
"Why is this entire matter not moot?"
Abdurrahman's counsel responded that Minnesota officials
could submit an amended list of Minnesota elector votes
before Congress counted them on January 6, 2017, and that the
suit fell within the exception for cases capable of
repetition yet evading review.
December 23, the day after the hearing, the district court
dismissed Abdurrahman's action as moot. The court
reasoned that the Minnesota elector votes already had been
submitted to the President of the United States Senate.
Regarding the exception for cases capable of repetition yet
evading review, the district court concluded that although
Abdurrahman had insufficient time to litigate his suit fully,
it was merely a theoretical possibility that Abdurrahman
would become an elector again and have his vote invalidated
under the Minnesota Act. The district court also concluded
that Abdurrahman's motion was barred by laches and failed
on the merits.
filed an emergency motion for injunction pending appeal in
this court on December 28 and an application for injunction
pending appellate review with the Supreme Court on January 3.
The motion and application were denied on January 4 and
January 5, respectively. ...