                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                               ________________

                                  No. 06-4093
                               ________________

Trudy Nolles; Angie Palmer; David       *
M. Jeffrey,                             *
                                        *
            Appellants,                 *
                                        *
      v.                                *      Appeal from the United States
                                        *      District Court for the
The State Committee for the             *      District of Nebraska.
Reorganization of School Districts;     *
Kendall Moseley; Gil Kettelhut;         *           [PUBLISHED]
Teresa Hawk; Gerry Osborn; Terry        *
Loshen,                                 *
                                        *
            Appellees.                  *

                               ________________

                               Submitted: May 17, 2007
                                   Filed: April 28, 2008
                               ________________

Before MURPHY, HANSEN, and COLLOTON, Circuit Judges.
                        ________________

HANSEN, Circuit Judge.

      Trudy Nolles, Angie Palmer, and David M. Jeffrey (collectively "Plaintiffs")
are registered voters in Nebraska who brought this 42 U.S.C. § 1983 action
challenging the State Committee for the Reorganization of School Districts'
(hereinafter "State Committee") implementation of Legislative Bill 126 (LB 126),
which implementation occurred prior to the November 2006 referendum vote which
ultimately repealed LB 126. The Plaintiffs claim that the State Committee's actions
violated the Plaintiffs' rights to substantive and procedural due process and their right
to vote as protected by the United States Constitution. We dismiss both of the due
process claims for lack of standing, and we affirm the district court's1 judgment
dismissing the right to vote claim.

                                             I.

       In 2005, the Nebraska legislature, overriding the Governor's prior veto, passed
LB 126, which, inter alia, mandated the dissolution of all Class I school districts and
required the Class I school districts to be merged into larger school districts that
served students through the twelfth grade. Class I school districts provided education
for students only from kindergarten through the eighth grade. LB 126 required the
State Committee to issue orders by December 1, 2005, directing how each Class I
school district would be merged. The orders merging the school districts were
required by LB 126 to take effect on June 15, 2006, following the end of the 2005-
2006 school year.

       Nebraska citizens commenced a referendum effort, see Neb. Const. art. III, §§
1, 3, & 4, and obtained enough signatures to put the repeal of LB 126 on the ballot at
the next general election, which was to be held on November 7, 2006. The
referendum effort did not, however, garner enough signatures to suspend the operation
of LB 126 pending the result of the election, as required under Nebraska Constitution
Article III, Section 3 (requiring the signature of 10% of registered voters to suspend
the operation of the challenged law). Three residents and taxpayers in Class I school
districts, along with several school districts, filed suit in Nebraska state court (referred


       1
      The Honorable Lyle E. Strom, United States District Judge for the District of
Nebraska.

                                            -2-
to as the "Pony Lake litigation") seeking an injunction to prevent the State Committee
from complying with LB 126 and entering consolidation orders before the November
2006 election. The state district court granted a permanent injunction, finding that the
effective dates of the consolidation orders impermissibly burdened the people's right
of referendum.

       The State Committee appealed the injunction to the Supreme Court of
Nebraska. Under Nebraska law, the appeal stayed the district court's injunction, see
Neb. Rev. Stat. § 25-21,213 (1995), and the Supreme Court declined to issue its own
temporary restraining order. On December 1, 2005, no longer under any injunction,
the State Committee issued its orders of merger as required by LB 126, although the
orders were not to take effect until June 15, 2006. The state court appellees then
cross-appealed, claiming that LB 126's effective dates denied them the right to vote
and the right to freedom of speech protected by the United States Constitution. The
Supreme Court of Nebraska reversed the district court on March 3, 2006, concluding
that the trial court had misapplied Nebraska's constitutional provisions regarding
referendums and holding that Article III, Section 3 of the Nebraska Constitution
clearly provided that where the referendum petition failed to garner sufficient
signatures, the legislation facing the ballot was not to be suspended pending the vote.
See Pony Lake Sch. Dist. 30 v. State Comm. for the Reorg. of Sch. Dists., 710 N.W.2d
609, 621-22 (Neb.), cert. denied, 547 U.S. 1130 (2006). The state Supreme Court also
addressed the federal voting right and free speech right issues raised by the cross-
appeal to determine if the trial court could be affirmed on either alternative basis but
determined that it could not. It determined that the right to vote protected by the
federal Constitution applied to the right to participate in a representative government
and had no impact on the direct democracy referendum process. Id. at 623-24. It
further found no free speech violation because the referendum process did not restrict
the state appellees' ability to communicate with voters about their attempt to repeal LB
126. Id. at 624-25.



                                          -3-
       After the Supreme Court of the United States denied the Pony Lake plaintiffs'
petition for certiorari on May 15, 2006, the current Plaintiffs, none of whom were
parties to the state court litigation, brought a declaratory judgment action in federal
district court on June 8, 2006, claiming that LB 126 violated the federal Constitution's
protection of the rights to vote and to freedom of speech, and the Fourteenth
Amendment's protection of the rights to substantive due process and procedural due
process. They sought a declaration that the State Committee's actions were
unconstitutional and therefore null and void. In the meantime, the school districts
were merged pursuant to LB 126 effective June 15, 2006. The federal district court
stayed its ruling on the § 1983 claims to see if the voters would retain LB 126, thus
mooting the claims. The referendum appeared on the ballot at the November 7, 2006,
general election, and the voters of Nebraska voted to repeal LB 126. Nothing about
the repeal affected the prior actions of the State Committee or otherwise authorized
the re-establishment of the dissolved school districts.

       The district court subsequently dismissed the federal case, finding all of the
claims to be barred by res judicata based on the Pony Lake litigation. The district
court also determined that the right to vote and the right to freedom of speech claims
were mooted because the Plaintiffs did in fact vote on the referendum and that the due
process claims lacked merit. The Plaintiffs appeal.2

                                          II.

A.    Due Process

      Even though not raised by the parties or addressed by the district court, we "are
under an independent obligation to examine [our] own jurisdiction, and standing is


      2
       The Plaintiffs do not address the freedom of speech claim on appeal, and
neither do we.

                                          -4-
perhaps the most important of the jurisdictional doctrines." United States v. Hays, 515
U.S. 737, 742 (1995) (internal marks omitted). Federal courts are courts of limited
jurisdiction, cabined by the authority granted to them by Article III of the United
States Constitution. Article III limits federal courts' jurisdiction to the deciding of
"Cases" and "Controversies." U.S. Const. art III, § 2; see also Hein v. Freedom from
Religion Found., Inc., 127 S. Ct. 2553, 2562 (2007) ("'"No principle is more
fundamental to the judiciary's proper role in our system of government than the
constitutional limitation of federal-court jurisdiction to actual cases or
controversies."'" (quoting Raines v. Byrd, 521 U.S. 811, 818 (1997) (in turn quoting
Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26, 37 (1976))). "'One of the
controlling elements in the definition of a case or controversy under Article III' is
standing." Hein, 127 S. Ct. at 2562 (quoting ASARCO Inc. v. Kadish, 490 U.S. 605,
613 (1989) (Kennedy, J., concurring)). At a "'constitutional minimum,'" standing
requires three elements: (1) injury in fact, (2) causation, and (3) redressability. Hays,
515 U.S. at 742-43 (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61
(1992)). Injury in fact requires the party bringing suit to have "a legally protected
interest that is (a) concrete and particularized, and (b) actual or imminent, not
conjectural or hypothetical." Id. at 743 (internal marks omitted).

       1.     Substantive Due Process

       The Plaintiffs claim that the implementation of LB 126 prior to the referendum
vote, as required by Article III, Section 3 of the Nebraska Constitution, rendered their
vote in the referendum election ineffective, resulting in a fundamentally unfair
election process in violation of their right to substantive due process. The contested
standing issue with respect to the substantive due process claim is whether the
Plaintiffs can establish an injury in fact. "A federal court cannot pronounce any
statute, either of a State or of the United States, void, because irreconcilable with the
constitution, except as it is called upon to adjudge the legal rights of litigants in actual
controversies." Baker v. Carr, 369 U.S. 186, 204 (1962) (internal marks omitted); see

                                            -5-
also id. at 206 (holding that only those "voters who allege facts showing disadvantage
to themselves as individuals have standing to sue"). Federal courts lack the authority
to review legislative acts merely because they are allegedly unconstitutional. Rather,
the courts are limited to considering the constitutionality of a legislative act only when
it is said to result in or threaten a direct injury to the party challenging the act. See
Massachusetts v. Melon, 262 U.S. 447, 488 (1923) (dismissing for lack of standing
a claim that the Maternity Act was unconstitutional in a case brought based on
taxpayer standing). "[W]here large numbers of Americans suffer alike, the political
process, rather than the judicial process, may provide the more appropriate remedy for
a widely shared grievance." Fed. Election Comm'n v. Akins, 524 U.S. 11, 23 (1998).

       "Election law, as it pertains to state and local elections, is for the most part a
preserve that lies within the exclusive competence of the state courts." Bonas v. Town
of N. Smithfield, 265 F.3d 69, 74 (1st Cir. 2001). A canvass of substantive due
process cases related to voting rights reveals that voters can challenge a state election
procedure in federal court only in limited circumstances, such as when the complained
of conduct discriminates against a discrete group of voters, see, e.g., Hays, 515 U.S.
at 744-45 (plaintiffs residing in racially gerrymandered districts could challenge
redistricting as racially discriminatory); Griffin v. Burns, 570 F.2d 1065, 1074 (1st
Cir. 1978) (absentee voters whose votes were not counted could challenge decision,
made after election, not to count absentee votes), when election officials refuse to hold
an election though required by state law, resulting in a complete disenfranchisement,
see Duncan v. Poythress, 657 F.2d 691, 693 (5th Cir. 1981) (holding "that the due
process clause of the fourteenth amendment . . . protects against the
disenfranchisement of a state electorate in violation of state election law" where state
officials refused to hold an election for a vacant Supreme Court justice seat as
required by state law) (subsequent history omitted); Bonas, 265 F.3d at 74-75 (holding
that town officials violated voters' due process rights by refusing to hold a local
election as mandated by state and local rules), or when the willful and illegal conduct
of election officials results in fraudulently obtained or fundamentally unfair voting

                                           -6-
results, see United States v. Saylor, 322 U.S. 385, 388-89 (1944) (fraudulent ballot
stuffing); Briscoe v. Kusper, 435 F.2d 1046, 1055 (7th Cir. 1970) (holding that city
board of election commissioners violated voters' rights to substantive due process by
changing voting rules without informing voters of new requirements for voting and
then refusing to count their votes).

       The Supreme Court has "'consistently held that a plaintiff raising only a
generally available grievance about government–claiming only harm to his and every
citizen's interest in proper application of the Constitution and laws, and seeking relief
that no more directly and tangibly benefits him than it does the public at large–does
not state an Article III case or controversy.'" Lance v. Coffman, 127 S. Ct. 1194, 1196
(2007) (quoting Lujan, 504 U.S. at 573-74). In Lance, four Colorado voters brought
a claim in federal court, alleging that a provision of the Colorado Constitution
permitting congressional redistricting only once per census violated their Elections
Clause right to have their elected representatives set their congressional district
boundaries.3 See id. The Supreme Court held that the voters lacked standing to
challenge application of the Colorado Constitution because their only injury, "that the
law–specifically the Elections Clause–ha[d] not been followed," alleged only a
generalized grievance. Id. at 1198. The Court found the voters' claim to be "quite


      3
        The facts of Lance are somewhat analogous to the facts here. In Lance, a state
court redrew congressional district boundaries when the Colorado legislature was
unable to agree on how to set the boundaries to accommodate an additional member
of the federal House of Representatives following the 2000 census. The Colorado
legislature finally reached agreement and subsequently redrew the district boundaries
in 2003. The Colorado Attorney General challenged the subsequent redistricting as
a violation of Article V, Section 44 of the Colorado Constitution, which limited
redistricting to once per census. See Lance, 127 S. Ct. at 1196. Following extensive
adjudication in state court, in which the Colorado Supreme Court ultimately struck
down the 2003 legislatively-drawn redistricting plan as a violation of Section 44, the
voter-plaintiffs moved to federal court, challenging the application of the state
constitution as violating their rights under the federal constitution.

                                          -7-
different from the sorts of injuries alleged by plaintiffs in voting rights cases where
[it had] found standing." Id. (distinguishing Baker, 369 U.S. at 207-08, where the
Court held that voters in specific counties had standing to challenge as a substantive
due process violation a state apportionment statute that apportioned state
representatives among counties in a racially discriminatory manner); see also Hays,
515 U.S. at 744-45 (holding that while a plaintiff residing in a racially gerrymandered
district had standing to challenge the redistricting, a plaintiff not residing in such a
district lacked standing to challenge the redistricting).

        The Eleventh Circuit recently recognized that Lance abrogated its prior
precedent and held that voters in a county lacked independent standing to challenge
a consent decree that increased the number of county commissioners, required a
cumulative voting system, and instituted a system whereby the rotating Commission
chairmanship would periodically be offered to an African-American. See Dillard v.
Chilton County Comm'n, 495 F.3d 1324 (11th Cir. 2007). Under its prior precedent,
the Eleventh Circuit had found standing where voters were subject to a newly imposed
election scheme ordered by the consent decree. Id. at 1331 (discussing Dillard v.
Baldwin County Comm'rs (Baldwin III), 225 F.3d 1271, 1277 (11th Cir. 2000)). The
court determined that Lance changed its analysis, noting that Lance differentiated
between plaintiffs "who alleged concrete and personalized injuries in the form of
denials of equal treatment or of vote dilution, and plaintiffs like those in the instant
case, . . . who merely seek to protect an asserted interest in being free of an allegedly
illegal electoral system." Dillard, 495 F.3d at 1333.

      The Plaintiffs in this case are attempting to bring a generalized grievance shared
in common by all the voters in Nebraska who voted to repeal LB 126. Because they
have not asserted a personalized injury, they lack standing to assert a violation of
substantive due process under the Fourteenth Amendment. The Plaintiffs couch their
claim as one against the actions of the State Committee in voting to dissolve the Class
I school districts prior to the referendum election. We respectfully reject this

                                          -8-
characterization. First, the State Committee did not act of its own accord, exercise its
own independent judgment or discretion, or "vote" in any sense of the term, but
instead acted pursuant to the mandatory requirements of the Nebraska constitution and
the lawful directions of the then duly-enacted LB 126, which ordered the State
Committee to dissolve the school districts on or before December 1, 2005, with an
effective date of June 15, 2006. (See Appellants' App. at 46, LB 126 § 2(1) ("[O]n or
before December 1, 2005, the State Committee . . . shall enter an order dissolving any
Class I school district that does not comply with the requirements of subsection (4)
of section 1 of this act . . . .) (emphasis added); id., LB 126 § 2(4) ("The effective date
. . . shall be . . . June 15, 2006, for all other purposes [besides establishing
residency].").) The State Committee members did not "vote" to dissolve the school
districts, but merely acted to carry out their obligatory duties as mandated by the duly
enacted and then binding and effective legislation.

        Second, the claim that the application of Article III, Section 3 of the Nebraska
Constitution (which prevented the delaying of the implementation of LB 126 until
after the referendum election) resulted in a fundamentally unfair election does not
allege a personalized injury. The Plaintiffs do not allege that they were treated
differently than other voters or that their votes were diluted as compared to other
voters, that election officials refused to count their votes or failed to follow state
election procedures, or even that the State Committee violated state law in dissolving
the school districts (the Plaintiffs' complaint is the opposite–that the State Committee
followed state law to the Plaintiffs' detriment). Nebraska voters successfully repealed
LB 126 through the referendum voting process. As in Lance, they challenge only the
application of the Nebraska Constitution to the state-created referendum process. This
is a generalized grievance better left to the state political and legislative process. In
short, the Plaintiffs fail to allege a specific individualized injury necessary to establish
standing in federal court resulting from the allegedly unfair election, that is, an injury
not shared by all the voters who voted as they did in the referendum election. (See
Appellants' Suppl. Br. at. 5, arguing that there had been an injury to the right of every

                                            -9-
voter to a fundamentally fair election). Because the Plaintiffs lack federal Article III
standing, their substantive due process claim must be and is dismissed for lack of
federal jurisdiction.

      2.     Procedural Due Process

       The Plaintiffs, all property taxpayers, also brought a procedural due process
claim, alleging that the consolidation of the Class I school districts would increase
property taxes for some properties located in a former Class I district, and that they
were entitled to a hearing before their property taxes could be raised. None of the
Plaintiffs alleged, however, that their own property taxes were in fact (or would be)
increased, only that some property taxes within the state would be raised, some would
be lowered, and some would remain unchanged. Indeed, "[a]t the time this suit was
filed the tax rates for the newly reorganized districts had not yet been set."
(Appellants' Suppl. Br. at 9.) The amended complaint filed in the district court did not
mention an increase in property taxes at all, but asserted only that the State
Committee's actions of dissolving school districts and changing school district
boundaries were quasi-judicial actions requiring a hearing. (Appellants' App. at 154,
156.)

       The Plaintiffs failed to allege a particularized injury and thus lack standing to
bring this procedural due process claim. See Raines, 521 U.S. at 818-19 ("[A]
plaintiff must allege personal injury fairly traceable to the defendant's allegedly
unlawful conduct." (internal marks omitted)). Article III's case and controversy
prerequisite "requires the party who invokes the court's authority to 'show that he
personally has suffered some actual or threatened injury as a result of the putatively
illegal conduct of the defendant.'" Valley Forge Christian Coll. v. Ams. United for
Separation of Church & State, Inc., 454 U.S. 464, 472 (1982) (quoting Gladstone,
Realtors v. Vill. of Bellwood, 441 U.S. 91, 99 (1979)). See also Lujan, 504 U.S. at
560 n.1 ("By particularized, we mean that the injury must affect the plaintiff in a

                                         -10-
personal and individualized way."). The Plaintiffs' claimed injury of the potential for
increased property taxes without a hearing was conjectural, not concrete and actual
or imminent at the time they filed their complaint, as is required to establish the
standing necessary to challenge the state action. See Lujan, 504 U.S. at 560; see also
id. at 570 n.4 (plurality opinion) (Standing is "assessed under the facts existing when
the complaint is filed."). The procedural due process claim is dismissed for lack of
jurisdiction.

B.    Right to Vote

       The Plaintiffs claim that the State Committee violated their fundamental right
to vote in the referendum election by implementing LB 126 before the general
election, thus nullifying their subsequent sufficient vote to repeal LB 126. The district
court dismissed the right to vote claim based on res judicata, or claim preclusion,
applying the equitable doctrine of virtual representation and concluding that the
Nebraska Supreme Court conclusively decided this issue in the Pony Lake litigation.
The application of res judicata is a legal conclusion that we review de novo. See St.
Paul Fire & Marine Ins. Co. v. Compaq Computer Corp., 457 F.3d 766, 770 (8th Cir.
2006). "The res judicata effect of the first forum's judgment is governed by [the] first
forum's law," id. (internal marks omitted), or Nebraska law in this case. Additionally,
we review de novo the district court's interpretation and application of state law. See
Salve Regina Coll. v. Russell, 499 U.S. 225, 231 (1991).

      Under Nebraska law,

      [t]he doctrine of res judicata, or claim preclusion, bars the relitigation of
      a matter that has been directly addressed or necessarily included in a
      former adjudication if (1) the former judgment was rendered by a court
      of competent jurisdiction, (2) the former judgment was a final judgment,
      (3) the former judgment was on the merits, and (4) the same parties or
      their privies were involved in both actions.


                                          -11-
Ichtertz v. Orthopaedic Specialists of Neb., P.C., 730 N.W.2d 798, 804 (Neb. 2007).
The Supreme Court of Nebraska addressed and rejected the Pony Lake plaintiffs'
constitutional claims, including the same right-to-vote claim brought by the Plaintiffs
here. Thus, if applicable, res judicata prevents these Plaintiffs from relitigating the
same claim in a second forum. The first three elements are not in dispute. The
judgment in the Pony Lake litigation was issued by a court of competent jurisdiction;
that judgment is final; and the judgment determined the merits of the Pony Lake
plaintiffs' right-to-vote claim under the United States Constitution. Thus, the only
contested issue is whether the Plaintiffs in the present case are in privity with the Pony
Lake plaintiffs.

       "State courts are generally free to develop their own rules for protecting against
the relitigation of common issues," as long as the state's application of its preclusion
doctrines complies with due process. Richards v. Jefferson County, Ala., 517 U.S.
793, 797 (1996). Due process under the United States Constitution precludes giving
"a conclusive effect to a prior judgment against one who is neither a party nor in
privity with a party therein." Id. at 797 n.4 (internal marks omitted). "[A]lthough
there are clearly constitutional limits on the 'privity' exception, the term 'privity' is
now used to describe various relationships between litigants that would not have come
within the traditional definition of that term." Id. at 798. Finding a party to be a
virtual representative for a nonparty to the suit is another way of saying that the
nonparty was in privity with the party in the original suit. See Pirrotta v. Indep. Sch.
Dist. No. 347, 396 N.W.2d 20, 22 n.1 (Minn. 1986) (noting that virtual representation
appears to be no different from the traditional privity analysis).

        "[V]irtual representation is best understood as an equitable theory rather than
as a crisp rule with sharp corners and clear factual predicates, such that a party's status
as a virtual representative of a nonparty must be determined on a case-by-case basis."
Gonzalez v. Banco Cent. Corp., 27 F.3d 751, 761 (1st Cir. 1994) (internal citations

                                           -12-
omitted). As an equitable tool, courts weigh various factors in determining whether
a party to a suit virtually represented a nonparty. The weight and identity of the
factors vary from case to case, but a few common threads appear throughout the cases,
indicating a handful of critical factors. This court has previously concluded that
"identity of interests between the two parties is necessary, though not alone
sufficient." Tyus v. Schoemehl, 93 F.3d 449, 455 (8th Cir. 1996), cert. denied, 520
U.S. 1166 (1997). The Supreme Court has focused on notice (actual or constructive)
and sufficient representation as minimum requirements before a nonparty can be
bound by a prior judgment, particularly when a nonparty seeks to adjudicate private
interests. See Richards, 517 U.S. at 805; see also Gonzalez, 27 F.3d at 761
("[N]otwithstanding identity of interests, virtual representation will not serve to bar
a nonparty's claim unless the nonparty has had actual or constructive notice of the
earlier litigation, and the balance of the relevant equities tips in favor of preclusion.")
(internal footnotes omitted). Other factors that may support a finding of virtual
representation include a close relationship, participation by the nonparty in the prior
litigation, apparent acquiescence, tactical maneuvering by the nonparty to avoid the
effects of the first action, and whether the issue involves public or private issues. See
Tyus, 93 F.3d at 455-56; Irwin v. Mascott, 370 F.3d 924, 929-30 (9th Cir. 2004) ("In
short, a close relationship, substantial participation, and tactical maneuvering all
support a finding of virtual representation; identity of interests and adequate
representation are necessary to such a finding.").

       The Supreme Court of Nebraska has not had a specific occasion to apply the
doctrine of virtual representation, so we are tasked with determining how and whether
that court would apply the doctrine in this case. Applying federal claim preclusion
law, the Nebraska Supreme Court has held nonparties to be in privity with parties to
a prior suit, noting that "privity requires, at a minimum, a substantial identity between
the issues in controversy and showing the parties in the two actions are really and
substantially in interest the same." VanDeWalle v. Albion Nat'l Bank, 500 N.W.2d
566, 573 (Neb. 1993) (internal marks omitted) (holding that two brothers were

                                           -13-
collaterally estopped from litigating the ownership of a piece of property based on a
prior suit brought by their parents). The Nebraska Supreme Court has quoted this
language from VandeWalle approvingly in subsequent cases applying Nebraska law.
See, e.g., R.W. v. Schrein, 642 N.W.2d 505, 511 (Neb. 2002) (holding that an insurer
was not in privity with its insured where it had no duty to defend the insured on the
claim that was the subject of the action); Torrison v. Overman, 549 N.W.2d 124, 132
(Neb. 1996) (same). In addressing the privity prong of claim preclusion, the Supreme
Court of Nebraska has stated that "due process requires that the rule . . . operate only
against persons who have had their day in court either as a party to a prior suit or as
a privy; and, where not so, that at least the presently asserted interest was adequately
represented in the prior trial." Gottsch v. Bank of Stapleton, 458 N.W.2d 443, 457
(Neb. 1990) (emphasis added) (internal marks omitted). The Supreme Court of
Nebraska has recognized, moreover, that the Nebraska class action statute, which
allows a class representative to represent numerous parties with common interests, is
analogous to the equitable doctrine of virtual representation. See Blankenship v.
Omaha Pub. Power Dist., 237 N.W.2d 86, 89-90 (Neb. 1976) (recognizing that a class
representative's interests must be compatible with the interests of all class members
by drawing an analogy to the doctrine of virtual representation). Given the broad
application of privity allowed by the Nebraska courts and the equitable nature of the
doctrine, we agree with the district court that the Nebraska courts would consider the
doctrine of virtual representation in determining whether a subsequent party was in
privity with a party to an earlier suit. We proceed to weigh the relevant factors.

        The interest asserted here is identical to the interests asserted in the Pony Lake
litigation. The Plaintiffs here claim that the Committee's actions infringed upon their
constitutional right to vote on the repeal of LB 126. The Pony Lake plaintiffs made
the same constitutional claim, asserting "their right to vote on the forced consolidation
of the Class I school districts." Pony Lake, 710 N.W.2d at 622-23. The Plaintiffs here
assert their rights as voters and members of the Class I districts, the same interests



                                          -14-
held by the plaintiffs in the Pony Lake litigation. The critical factor of similar
interests required by Tyus is satisfied; indeed, the interests are identical.

       Although the right to vote is an individual right, the claim here is not that the
Plaintiffs were prevented from voting–they were not. Rather, the Plaintiffs claim that
the Committee's actions of consolidating the school districts (as mandated by LB 126)
prior to the election deprived them of an effective vote. We view this claim as public
in nature. The Committee's actions complied with Nebraska law, and it was the
Nebraska Constitution that required implementation of LB 126 prior to the referendum
election that resulted in the repeal of LB 126. The Plaintiffs' voting rights claim in
this lawsuit in effect challenges the constitutionality of Nebraska's state constitution
based referendum scheme that provides for implementation of challenged legislation
prior to the referendum vote unless ten percent of registered voters sign the
referendum petition. This is analogous to the facts of Niere, where nonregistered
voters brought Equal Protection and First Amendment challenges to the Missouri
legislative scheme that allowed the disincorporation of their town based on a petition
signed by a supermajority of registered voters. See Niere v. St. Louis County, Mo.,
305 F.3d 834, 838 (8th Cir. 2002) (concluding that constitutional claims brought by
nonregistered voters seeking to challenge the disincorporation of their town were
public in nature); see also Tyus, 93 F.3d at 457 (characterizing First Amendment
challenge as raising an issue of public law where "the plaintiffs [did] not allege that
they 'ha[d] a different private right not shared in common with the public'") (quoting
Stromberg v. Bd. of Educ. of Bratenahl, 413 N.E.2d 1184, 1186 (Ohio 1980), which
found a taxpayer's challenge to the dissolution of a school district to be public in
nature and precluded by an earlier suit brought by the school board for the district).

       The due process concerns that limit the application of the res judicata doctrine
to nonparties are lessened when the rights asserted involve issues of public concern
rather than private rights. See Richards, 517 U.S. at 803 (distinguishing between
public and private interests and noting that "States have wide latitude to establish

                                         -15-
procedures . . . to limit the number of judicial proceedings that may be entertained"
in cases raising public issues); Tyus, 93 F.3d at 457 (noting that "the due process
concerns attendant with a broad application of preclusion are lessened" in cases
raising public issues). In Tyus, the court noted that the nonparties to the first suit
would have benefitted if the named parties had won, but, absent preclusion, the
nonparties were not harmed by the named party's loss. Thus, there was no incentive
to intervene in the original action, and the lack of preclusion actually promoted fence
sitting. Tyus, 93 F.3d at 457 ("[H]olding preclusion inapplicable assures that a party
would not intervene, for it would allow various members of a coordinated group to
bring separate lawsuits in the hope that one member of the group would eventually be
successful, benefitting the entire group."). The same is true here. When the Pony
Lake plaintiffs were unsuccessful, a new group of voters and taxpayers brought this
suit, raising the same claims. If preclusion is not proper here and the Plaintiffs in this
case are not successful, nothing will prevent the next group of voters who voted to
repeal LB 126 from filing another suit. "This entails a significant cost to the judicial
system and discourages the principles and policies the doctrine of res judicata was
designed to promote." Id.

        Although none of the Plaintiffs in this case were named plaintiffs in the Pony
Lake litigation, one of these Plaintiffs is the spouse of one of the litigants in Pony
Lake, and the Plaintiffs here are represented by the same counsel as the Pony Lake
plaintiffs. See Tyus, 93 F.3d at 457 (noting that the presence of the same counsel
suggested that the parties were closely related); VanDeWalle, 500 N.W.2d at 573
(noting that the sons and parents had a close relationship with respect to the property
at issue in holding that the judgment in the parents' prior suit barred the sons' later
suit); see also Trevino v. Gates, 99 F.3d 911, 923-24 (9th Cir. 1996) (applying virtual
representation to a daughter's excessive force claim related to the death of her father
where the decedent's mother (the plaintiff's grandmother) had already brought a
wrongful death claim, based in part on the identical interests in seeing the officers
punished and on the employment of the same attorney), cert. denied, 520 U.S. 1117

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(1997). While these factors are not dispositive nor sufficient alone to establish privity,
they do tend to tip the scale toward a finding of privity.

       The Supreme Court has noted the importance of notice before a nonparty is
precluded by a prior suit. Richards, 517 U.S. at 805. The Plaintiffs do not assert that
they were unaware of the Pony Lake litigation, and the inclusion of at least one of the
Plaintiffs' spouses as well as employment of the same counsel in this suit, filed less
than one month after the Supreme Court of the United States denied the Pony Lake
plaintiffs' petition for a writ of certiorari, satisfy us that the Plaintiffs were on
sufficient notice of the prior suit that their due process rights would not be unduly
hindered by application of res judicata to this suit. Nor do the Plaintiffs assert that the
Pony Lake plaintiffs failed to vigorously pursue the voting rights claim or that they
otherwise ineffectively presented the claim. Cf. Taylor v. Blakey, 490 F.3d 965, 974-
75 (D.C. Cir. 2007) (considering the use of the same counsel as at least relevant to the
issue of whether the nonparty was adequately represented in the prior suit as "strongly
suggest[ing] satisfaction with the attorney's performance in the prior case"), cert.
granted, 128 S. Ct. 977 (2008). The Plaintiffs argue only that they should have their
own day in court. Based on the factors discussed above, we believe that the Nebraska
courts would find these Plaintiffs to be in privity with the Pony Lake plaintiffs. The
district court properly applied res judicata to preclude the Plaintiffs' right-to-vote
claim.

                                           III.

       The appeal of the due process claims is dismissed for lack of standing. The
district court's judgment on the right-to-vote claim is affirmed. The State Committee's
Motion to Strike Portions of Appellants' Reply Brief and Argument in Support
Thereof is denied.
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