                                                                         FILED
                                                             United States Court of Appeals
                                                                     Tenth Circuit
                       UNITED STATES COURT OF APPEALS
                                                                    April 12, 2016
                                    TENTH CIRCUIT                Elisabeth A. Shumaker
                                                                     Clerk of Court

 JAMES T. PARKER,

           Plaintiff - Appellant,

 v.                                                      No. 15-2088
                                                   (D.C. No. 14-CV-00617)
 BRAD WINTER, in his official                             (D.N.M.)
 capacity as New Mexico Secretary of
 State, *

           Defendant - Appellee,

 and

 STATE OF NEW MEXICO, ex rel
 HECTOR H. BALDERAS, New
 Mexico Attorney General,

           Defendant Intervenor -
           Appellee.


                              ORDER AND JUDGMENT **


Before KELLY, McKAY, and LUCERO, Circuit Judges.


       Plaintiff-Appellant James T. Parker appeals from the district court’s

       *
       Pursuant to Fed. R. App. P. 43(c)(2) Dianna J. Duran is replaced by Brad
Winter in his official capacity as New Mexico Secretary of State.
       **
         This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
judgment dismissing his complaint for declaratory and injunctive relief. Parker v.

Duran, No. 14-cv-617 MV-GBW (D.N.M. Apr. 30, 2015). The district court had

previously denied Mr. Parker’s motions for a temporary restraining order and

injunctive relief. Parker v. Duran, No. 14-cv-617 MV-GBW, 2014 WL 7653394

(D.N.M. Aug. 7, 2014). Mr. Parker challenged New Mexico’s requirement that a

prospective independent party candidate must obtain more signatures on a

nominating petition (three percent of the total votes cast for governor at the last

preceding general election at which a governor was elected) than a minor party

candidate (one percent of such votes cast). N.M. Stat. Ann. 1987 §§ 1-8-51(E); 1-

8-2(C). He argued that the greater requirement for an independent party

candidate violated his First and Fourteenth Amendment rights, and the New

Mexico Constitution. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we

affirm.

      The parties are familiar with the facts and we need not restate them here.

Our review of constitutional facts and law is de novo. Revo v. Disciplinary Bd.

of the Supreme Court, 106 F.3d 929, 932 (10th Cir. 1997); see also Chandler v.

City of Arvada, 292 F.3d 1236, 1240-41 (10th Cir. 2002).

      We first consider jurisdiction. Mr. Parker did not initially discuss his

intention to run for office at any point in the future. He now seeks to amend his

complaint to state that he plans to run for office again as an independent

candidate. Because we decide the case is not moot, the motion is denied.

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      “Our jurisdiction under Art. III, § 2, of the Constitution extends only to

actual cases and controversies.” Neb. Press Ass’n v. Stuart, 427 U.S. 539, 546

(1976). In determining whether a case or controversy exists, we ask “whether

granting a present determination of the issues offered will have some effect in the

real world.” Rio Grande Silvery Minnow v. Bureau of Reclamation, 601 F.3d

1096, 1110 (10th Cir. 2010) (quoting Wyoming v. U.S. Dep’t of Agric., 414 F.3d

1207, 1212 (10th Cir. 2005)). Although mootness generally requires a live case

or controversy, there are exceptions — we have jurisdiction over cases which are

“capable of repetition, yet evading review.” S. Pac. Terminal Co. v. Interstate

Commerce Comm’n, 219 U.S. 498, 515 (1911). Claims fall within this exception

when “(1) the challenged action was in its duration too short to be fully litigated

prior to its cessation or expiration, and (2) there was a reasonable expectation that

the same complaining party would be subjected to the same action again.”

Weinstein v. Bradford, 423 U.S. 147, 149 (1975). The 2014 election has passed

and relief specific to that election could have no effect in the real world.

Therefore, for our jurisdiction to arise, the case must fall within the category of

cases capable of repetition yet evading review.

      Within the context of constitutional challenges to election laws, we often

analyze interlocutory appeals from the denial of motions for preliminary

injunctions. We have little guidance in the context of an appeal of a final

judgment denying injunctive and declaratory relief. But see Pearlman v. Vigil-

                                         -3-
Giron, 71 F. App’x 11, 14 (10th Cir. 2003). This procedural distinction is

significant because “[w]hether the [capable of repetition yet evading review]

exception applies can depend on the posture of the case on appeal.” Fleming v.

Gutierrez, 785 F.3d 442, 446 (10th Cir. 2015). In Thournir v. Buchanan, 710

F.2d 1461 (10th Cir. 1983), and Fleming v. Gutierrez, 785 F.3d 442 (10th Cir.

2015), we determined that interlocutory appeals from the denial of motions for

preliminary injunctions were moot. In both cases, the parties’ claims for either a

permanent injunction or declaratory relief remained pending in the district court.

Because review was not only possible but also likely to occur in the pending

cases, the issues would not evade review.

      Unlike Thournir and Fleming, this is not an interlocutory appeal. Each

claim raised by Mr. Parker has been dismissed by the district court. The claims

are likely to recur and evade review. “Challenges to election laws are one of the

quintessential categories of cases” capable of repetition yet evading review

“because litigation has only a few months before the remedy sought is rendered

impossible by the occurrence of the relevant election.” Lawrence v. Blackwell,

430 F.3d 368, 371 (6th Cir. 2005). This is true even though Mr. Parker raises an

‘as applied’ challenge. See Storer v. Brown, 415 U.S. 724, 737 n.8 (1974) (“The

‘capable of repetition, yet evading review’ doctrine, in the context of election

cases, is appropriate when there are ‘as applied’ challenges as well as in the more

typical case involving only facial attacks.”)

                                         -4-
      Less clear is whether there is a reasonable expectation that Mr. Parker

would be subjected to the same action again. It is key to remember that “[o]ur

concern in these cases” is whether “the controversy was capable of repetition and

not . . . whether the claimant had demonstrated that a recurrence of the dispute

was more probable than not.” Honig v. Doe, 484 U.S. 305, 319 n.6 (1988).

Although there is no evidence in the record that Mr. Parker intends to run for

elected office again, the second factor is likely satisfied because “he is certainly

capable of doing so, and under the circumstances it is reasonable to expect that he

will do so.” Lawrence, 430 F.3d at 371; see also Norman v. Reed, 502 U.S. 279,

287-88 (1992).

      Turning to the merits, we affirm the judgment of the district court for

substantially the same reasons set forth in its Memorandum Opinion and Order of

April 30, 2015. The district court cogently addressed Mr. Parker’s claims and

explained why they are without merit.

      AFFIRMED.

                                        Entered for the Court


                                        Paul J. Kelly, Jr.
                                        Circuit Judge




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