Lack of “Adversity” Between Litigants Over a Constitutional Question Deprives Court of Article III Case or Controversy, Holds Fifth Circuit

In Pool v. City of Houston, No. 22-2049 (5th Cir. Dec. 11, 2023), the Fifth Circuit dismisses a four-year-old First Amendment case for lack of subject-matter jurisdiction, where the court determines that “all parties have agreed from the beginning . . . that Houston’s [challenged] voter registration provisions governing circulators” are unconstitutional, and thus the parties lack adversity.

This case had been before the Fifth Circuit once before (978 F.3d 307 (5th Cir. 2020)). See Just in Time for Halloween, Fifth Circuit Reanimates Challenge to “Zombie” Law. The plaintiffs sought to circulate a “2019 petition sought to put an ordinance on the Houston ballot that would limit campaign contributions from City contractors to candidates for municipal office.” The city’s petition form continued to say that only qualified voters could legally circulate petitions despite that the Supreme Court held a similar law unconstitutional twenty years earlier. See Buckley v. Am. Constitutional Law Found., Inc., 525 U.S. 182, 193–97 (1999).

After making an inquiry of the city’s Legal Department and getting no definitive response, the plaintiffs filed their federal lawsuit. “Within a week, however, the City informed the Pools that it would not enforce the Charter’s voter-registration requirement.” During the district court proceedings, the City conceded that the ordinance was unconstitutional. In the Fifth Circuit’s 2020 decision, it held that the case was not moot, despite the city’s concession, and that the plaintiffs had standing because there was some demonstrable risk that the city might seek to enforce ordinance.

On remand, the “district court entered a declaratory judgment that held unconstitutional certain voter-registration provisions in the Houston City Charter. Plaintiffs appeal the wording of that judgment.”

On appeal, the panel dismisses without prejudice in a two-page (give or take a few lines) opinion. “It is well settled that, where the parties agree on a constitutional question, there is no adversity and hence no Article III case or controversy . . . . The City has repeatedly and consistently emphasized its agreement with the plaintiffs throughout this suit . . . Such faux disputes do not belong in federal court.”

And thus, pop, goes four years of litigation (and quite possibly attorney’s fees under 42 U.S.C. § 1988 as well).