Alabama State Conference, et al v. State of Alabama, et al

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 17-14443-CC
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ALABAMA STATE CONFERENCE OF THE NATIONAL ASSOCIATION
FOR THE ADVANCEMENT OF COLORED PEOPLE,
SHERMAN NORFLEET,
CLARENCE MUHAMMAD,
CURTIS TRAVIS,
JOHN HARRIS,
Plaintiffs-Appellees,

versus

STATE OF ALABAMA,
SECRETARY OF STATE FOR THE STATE OF ALABAMA,

Defendants-Appellants.
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On Appeal from the United States
District Court for the Middle District of Alabama
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BEFORE: WILSON and BRANCH, Circuit Judges, and VINSON,
∗
District Judge.

BY THE COURT:

Before the Court is Appellants’ “Motion to Vacate Decision and Dismiss Appeal as
Moot.” The motion is GRANTED, IN PART, to the extent the appeal is DISMISSED as moot.
The motion is DENIED, IN PART, to the extent Appellants seek vacatur of the Court’s February
3, 2020 opinion.

∗
Honorable C. Roger Vinson, Senior United States District Judge for the Northern
District of Florida, sitting by designation.

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BRANCH, Circuit Judge, concurring in part and dissenting in part:
I agree that that we should grant Appellants’ motion to dismiss the appeal as
moot. But I would also grant the motion to the extent it seeks to have us vacate
our February 3, 2020 opinion.
The purpose of vacatur is to vacate an opinion when a case becomes moot
pending appeal in order to “prevent a judgment, unreviewable because of
mootness, from spawning any legal consequences.” United States v.
Munsingwear, Inc., 340 U.S. 36, 41, 71 S.Ct. 104, 95 L.Ed. 36 (1950). Therefore,
the Supreme Court’s “ordinary practice in disposing of a case that has become
moot on appeal is to vacate the judgment with directions to dismiss.” New York
State Rifle & Pistol Ass'n, Inc. v. City of New York, New York, No. 18–280, 590
U.S. ____ (2020) (quoting Lewis v. Continental Bank Corp., 494 U. S. 472, 482–
483 (1990)).
As this case is now moot, three factors weigh in favor of vacating our prior
opinion. First, not vacating the panel opinion would spawn immense legal
consequences for Florida, Georgia, and Alabama because they have no state
sovereign immunity for any suit brought under Section 2 of the Voting Rights Act.
See Munsingwear, 340 U.S. at 39–41; see also Democratic Exec. Comm. of Fla. v.
Nat'l Republican Senatorial Comm., 950 F.3d 790, 795 (11th Cir. 2020) (declining
to vacate a prior stay-panel opinion because it could not spawn binding legal
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consequences regarding the merits of the case); see also Hand v. Desantis, 946
F.3d 1272, 1275 n.5 (11th Cir. 2020) (same).
Second, if we do not vacate our opinion, Alabama is treated as if there has
been a review when, as it stands, it cannot seek an en banc review or file a petition
for certiorari. See Camreta v. Greene, 563 U.S. 692, 712 (2011) (reaffirming that
the purpose of vacatur is to ensure that “those who have been prevented from
obtaining the review to which they are entitled [are] not ... treated as if there had
been a review”)
And, third, the constitutional ruling in this case—abrogation of state
sovereign immunity—is certainly a legally consequential decision. Id. at 713.
(noting that vacatur of the Ninth Circuit’s constitutional rulings was warranted
because a “constitutional ruling in a qualified immunity case is a legally
consequential decision.”).

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