No. 20-2309 ___________________________

Dan Whitfield

Plaintiff - Appellant

Gary Fults

Plaintiff

v.

John Thurston, In his Official Capacity as Secretary of State for the State of Arkansas

Defendant - Appellee ____________

Appeal from United States District Court for the Eastern District of Arkansas - Central ____________

Submitted: March 18, 2021 Filed: July 2, 2021 ____________ Before GRUENDER, BENTON, and GRASZ, Circuit Judges. ____________ GRUENDER, Circuit Judge.

Arkansas limits which candidates can appear on its general-election ballot. Ark. Code § 7-7-101. Relevant here, to appear on the ballot, a candidate running for the U.S. Senate as an Independent must submit a political-practices pledge, an affidavit of eligibility, and a notice of candidacy. See id. § 7-7-103(a)(1). The candidate also must submit a nominating petition by May 1 in the year of the general election that is “signed by not less than three percent (3%) of the qualified electors of the state or which contain[s] ten thousand (10,000) signatures of qualified electors, whichever is the lesser.” Id. § 7-7-103(b)(1)(B). The candidate may circulate this petition for signatures only in the ninety days preceding the filing deadline. Id. § 7-7-103(b)(3)(B).

In 2020, Dan Whitfield ran for the U.S. Senate as an Independent but failed to obtain the required signatures. He brought suit challenging as unconstitutional the previously mentioned requirements. After holding a bench trial, the district court1 entered a judgment upholding the challenged provisions. Whitfield appealed. As Whitfield’s appeal was pending, the 2020 general election came and went. Concerned that this may have mooted the appeal, we ordered the parties to submit supplemental briefing addressing mootness. For the following reasons, we dismiss Whitfield’s appeal as moot.

“Under Article III of the Constitution, we may adjudicate only actual, ongoing cases or controversies. When 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.” SD Voice v. Noem, 987 F.3d 1186, 1189 (8th Cir. 2021) (internal quotation marks and brackets omitted). For instance, this occurs when the “requisite personal interest” that gave the plaintiff standing to bring the suit disappears as the case proceeds. Phelps-Roper v. City of Manchester, 697 F.3d 678, 687 (8th Cir. 2012) (en banc).

Here, Whitfield’s interest in this case was predicated on his status as an Independent candidate; without such a candidacy, the challenged provisions do not

1 The Honorable Kristine G. Baker, United States District Judge for the Eastern District of Arkansas.

-2- apply to him. But Whitfield’s 2020 Independent candidacy has ended and, despite direct inquiries from us at oral argument, he has not indicated whether he intends to run as an Independent again. Thus, this case is no longer “live,” and this appeal is moot. See McCarthy v. Ozark Sch. Dist., 359 F.3d 1029, 1035 (8th Cir. 2004).

Whitfield counters that this case falls within the capable-of-repetition-yet- evading-review exception to mootness. Under this doctrine, a case that would otherwise be moot is not if “(1) the challenged action was in its duration too short to be fully litigated prior to its cessation or expiration, and (2) there [is] a reasonable expectation