                            RECOMMENDED FOR FULL-TEXT PUBLICATION
                                 Pursuant to Sixth Circuit Rule 206
                                        File Name: 07a0015p.06

                     UNITED STATES COURT OF APPEALS
                                    FOR THE SIXTH CIRCUIT
                                      _________________


                                                  X
                                                   -
 EFFIE STEWART, et al.,
                                                   -
                                   Plaintiffs-Appellants,
                                                   -
                                                   -
                                                                 No. 05-3044
           v.
                                                   ,
                                                    >
 J. KENNETH BLACKWELL, et al.,                     -
                            Defendants-Appellees. -
                                                  N

                                      Filed: January 12, 2007

                                        _________________
                                             ORDER
                                        _________________
        The plaintiffs, having agreed with the defendants before en banc review that this appeal has
become moot, request that this Court vacate the district court’s judgment and remand with
instructions to dismiss.
           “When a civil case becomes moot pending appellate adjudication, ‘the established practice
. . . in the federal system . . . is to reverse or vacate the judgment below and remand with a direction
to dismiss.’” Coalition for Gov’t Procurement v. Federal Prison Indus., Inc., 365 F.3d 435, 484 (6th
Cir. 2004) (quoting United States v. Munsingwear, Inc., 340 U.S. 36, 39 (1950)). This practice is
not applicable in all cases:               “Vacatur is in order when mootness occurs through
happenstance—circumstances not attributable to the parties—or . . . the ‘unilateral action of the
party who prevailed in the lower court.’” Arizonans for Official English v. Ariz., 520 U.S. 43, 71-72
(1997) (quoting U.S. Bancorp Mortg. Co. v. Bonner Mall P'ship, 513 U.S. 18, 26 (1994)). In other
words, vacatur is generally appropriate to avoid entrenching a decision rendered unreviewable
through no fault of the losing party.
        Though some of the County defendants suggest that the plaintiffs themselves were
responsible for rendering this case moot by conceding mootness in their letter of November 30,
2006, the State correctly recognizes that it “caused the mootness by abandoning the election
machines that Plaintiffs attacked.” The State contends, however, that the changes that led to the
case’s mootness stemmed inexorably from commitments made before the decision of the district
court, and in response not to the litigation itself in an effort to evade an adverse judgment, but in
response to policy concerns and changes in federal law. Whatever the truth of these contentions,
they in no way render the plaintiffs responsible for the current posture of the case. Nor does the
contention of several defendants that plaintiffs should have conceded mootness at an earlier stage
of the proceedings compel the conclusion that, by acting inequitably, the plaintiffs cannot now seek
the equitable remedy of vacatur. Although the overall costs of this litigation would have been
reduced, the plaintiffs were under no obligation to accept the defendants’ assurances that mootness
was inevitable.


                                                   1
No. 05-3044          Stewart, et al. v. Blackwell, et al.                                 Page 2


        Accordingly, the judgment of the district court is vacated, and the case is remanded with
instructions to dismiss as moot.


                                              ENTERED BY ORDER OF THE COURT


                                                    /s/ Leonard Green
                                              ___________________________________
                                                            Clerk
