Law-of-the-Case, Waiver, and Post‑Judgment Supplementation in Repeated Ballot‑Access Challenges
Commentary on Martin Cowen v. Secretary of State of the State of Georgia, No. 24‑13164 (11th Cir. Nov. 18, 2025) (non‑published)

I. Introduction

This opinion marks the third trip to the Eleventh Circuit in a long‑running challenge by the Libertarian Party of Georgia and several of its candidates to Georgia’s ballot access regime for congressional elections. The litigation centers on Georgia’s requirement that “political bodies” (i.e., parties that have not reached the statutory 20% vote threshold in the last gubernatorial election) must gather signatures from 5% of eligible voters in a congressional district to obtain general‑election ballot access for their nominees.

The current appeal is notable not for any new substantive ruling on ballot access, but for two intertwined procedural holdings:

• First, that the plaintiffs’ “discriminatory purpose” equal‑protection theory—asserting that the 5% requirement was enacted to target disfavored parties (first Communists, later recast as a racially discriminatory measure)—was barred by the law‑of‑the‑case doctrine because the plaintiffs failed to appeal a prior district‑court ruling declaring that theory moot.
• Second, that the district court did not abuse its discretion in denying leave under Federal Rule of Civil Procedure 15(d) to supplement the complaint with a new, late‑breaking challenge to a distinct statutory scheme for presidential ballot access, especially after final judgment had already been entered.

The Eleventh Circuit, in a brief per curiam and non‑precedential opinion, reaffirms orthodox but critically important principles of appellate practice and civil procedure: the consequences of not appealing available issues, the binding nature of the law‑of‑the‑case doctrine, and the limited role of post‑judgment supplementation under Rule 15(d), particularly when Rule 60(b) and Rule 59(e) are already in play.

II. Background and Procedural History

A. Georgia’s Ballot Access Scheme and the Libertarian Party

Georgia election law distinguishes between:

• “Political parties” – parties whose candidate for Governor in the last election received at least 20% of the vote. Their nominees automatically appear on the general election ballot.
• “Political bodies” – parties that did not meet that threshold. Their nominees must satisfy more stringent requirements to appear on the ballot.

For congressional races, candidates of political bodies (such as the Libertarian Party) must file nominating petitions signed by 5% of the eligible registered voters in the relevant congressional district. By contrast, for certain statewide offices, a 1% signature requirement applies.

The Libertarian Party of Georgia—joined by several individual candidates and supporters (Martin Cowen, Allen Buckley, Aaron Gilmer, and John Monds)—challenged the 5% requirement in federal court, asserting:

1. A First and Fourteenth Amendment claim (under the Anderson–Burdick framework) alleging that the 5% requirement unconstitutionally burdened their voting and associational rights.
2. An Equal Protection Clause claim alleging discriminatory treatment:
   • First, that the 5% congressional requirement was discriminatory relative to the 1% statewide requirement.
   • Second, that the 5% requirement was enacted with a discriminatory purpose, originally framed as targeting the Communist Party, later re‑framed (very late in the litigation) as racially motivated.

B. The “Discriminatory Purpose” Theory and the Richardson Expert

From the outset, the complaint advanced a very narrow “discriminatory purpose” theory: that the 5% requirement was enacted “with the discriminatory purpose of preventing Communist Party candidates from appearing on Georgia’s ballots.”

The only factual allegation initially supporting that claim was a 1943 newspaper article stating that the 5% requirement “sustained” the Georgia Secretary of State in refusing to place a Communist presidential candidate on the ballot in 1940. To bolster this thin record, the plaintiffs proffered an “expert”:

• Darcy Richardson, a self‑described political activist and perennial third‑party candidate, without advanced formal education, whose expertise was based primarily on self‑published books and non‑peer‑reviewed writings.
• His research in this case consisted largely of reading the statute and searching newspaper archives around 1940–1943. He did not consult legislative history or Attorney General opinions.
• In particular, he missed a 1948 Georgia Attorney General opinion explaining that the 5% requirement was intended to prevent candidates with little public support from “clogging” the ballot.

Richardson’s declaration emphasized the Secretary of State’s 1940 refusal to place a Communist presidential candidate on the ballot, citing “public policy” concerns about overthrowing the constitutional order, and referenced a single newspaper article linking the subsequent legislation to that episode. He declared that no other justification was apparent in the “historical record,” which, to him, effectively meant the limited materials he had reviewed. Importantly, neither the complaint nor Richardson’s declaration mentioned race.

The Secretary moved to exclude Richardson’s testimony; the district court avoided ruling on that motion in early stages, resolving the case on other grounds.

C. The First Appeal: Cowen I

In the initial summary judgment round, the district court:

• Upheld the 5% requirement under prior Supreme Court and Eleventh Circuit precedent (mainly Jenness v. Fortson and Coffield v. Kemp).
• Concluded that those precedents rendered the discriminatory intent claim effectively moot, because the Supreme Court had already approved the scheme’s constitutionality.

On appeal, the Eleventh Circuit in Cowen v. Georgia Secretary of State (“Cowen I”), 960 F.3d 1339 (11th Cir. 2020), held that the district court used the wrong analytical framework. Instead of relying on Jenness, it should have applied the modern Anderson–Burdick balancing test to the First and Fourteenth Amendment claims.

The Eleventh Circuit therefore:

• Vacated and remanded, instructing the district court to apply the proper framework to the constitutional claims.
• Directed the court to consider the equal‑protection challenges afresh.

D. The Second Appeal: Cowen II

On remand after Cowen I, the district court:

• Granted summary judgment to the Libertarian Party on the First and Fourteenth Amendment claim, finding that the 5% rule imposed a “severe burden” on the Party’s rights under Anderson–Burdick.
• Granted summary judgment to the Secretary on the equal protection claim that compared the 5% congressional requirement to the 1% statewide requirement.
• In a separate order, issued about five months later, found the discriminatory purpose equal‑protection theory “moot” on the logic that, because the Party had already obtained the relief it sought (an injunction against the 5% requirement) under the First and Fourteenth Amendment theory, no additional relief could be obtained via discriminatory purpose.

Both sides appealed, leading to Cowen v. Secretary of State of Georgia (“Cowen II”), 22 F.4th 1227 (11th Cir. 2022). On that appeal:

• The Eleventh Circuit affirmed the district court’s rejection of the equal protection claim (the 5% vs. 1% comparison).
• The Court reversed the judgment for the Libertarian Party on the First and Fourteenth Amendment claim, i.e., it disagreed that the 5% requirement imposed a “severe burden” under Anderson–Burdick.
• Crucially, the Libertarian Party did not appeal the district court’s “mootness” ruling on the discriminatory purpose theory, and the Eleventh Circuit explicitly noted that “the discriminatory purpose theory” was “not at issue” on appeal. Cowen II, 22 F.4th at 1231 n.2.

At that point, the discriminatory purpose theory—never reviewed on appeal—was effectively left as a final, unchallenged district court disposition.

E. Post–Cowen II Proceedings: Rule 60(b), New Arguments, and New Claims

Following Cowen II, the district court entered final judgment in favor of the Secretary on both surviving claims. The Libertarian Party then tried to revive its discriminatory purpose theory through procedural maneuvers:

1. Rule 60(b)(1) Motion – The Party moved for relief from the prior order that had declared the discriminatory purpose claim moot. The district court granted this motion “as to the equal‑protection claim asserted on a discriminatory-purpose theory,” effectively reopening that part of the case.
2. Attempts to Replace the Expert – By that time, the plaintiffs’ expert, Darcy Richardson, had “disappeared without a trace.” Plaintiffs sought to reopen discovery to replace him, but the district court held that motion in abeyance and allowed the Secretary to move for summary judgment on the reopened discriminatory‑purpose theory.
3. New Factual Theory: Racism – In opposing summary judgment, the Libertarian Party attached thirteen new exhibits (newspaper articles, legislative journal excerpts, Communist Party platform, new declarations) and, for the first time in the litigation, asserted that the 1943 law had a racially discriminatory purpose. This was a material expansion—and transformation—of the original Communist‑targeting theory pled in the complaint.
4. Summary Judgment for the Secretary – The district court was unpersuaded and granted summary judgment to the Secretary again on the discriminatory purpose theory.
5. Rule 59(e) Motion – Nearly a month after entry of judgment, the Party filed a motion to alter or amend the judgment under Rule 59(e), seeking reconsideration. The court did not promptly rule on it.
6. Rule 15(d) Motion to Supplement – Almost eight months after final judgment (while the Rule 59(e) motion was still pending), the Party sought leave under Rule 15(d) to supplement the pleadings with a new claim: a challenge to a recently‑enacted Georgia law that allowed political body presidential candidates to gain Georgia ballot access by qualifying in 20 other states, while congressional candidates still had to meet the 5% signature threshold.
7. The district court denied both the Rule 59(e) motion and the Rule 15(d) motion.

The current appeal (the third) thus focuses only on:

• The viability of the discriminatory purpose equal‑protection theory after all these procedural events; and
• The propriety of denying the Rule 15(d) motion to supplement the complaint with a new presidential‑ballot‑access claim.

III. Summary of the Opinion

The Eleventh Circuit affirms the district court’s judgment in full. Its key holdings are:

A. Law-of-the-Case Bars Revival of Discriminatory Purpose Theory

The Court holds that the Libertarian Party’s discriminatory purpose equal‑protection theory was procedurally barred. The Party could have challenged the district court’s earlier mootness ruling in the Cowen II appeal but did not. That unappealed ruling thus became the law of the case, and the Party “waived the right to challenge that decision at a later time.”

Because the issue was law‑of‑the‑case, the district court should not have disturbed the original judgment in favor of the Secretary on the discriminatory purpose theory. The Eleventh Circuit therefore affirms on the alternative ground that the original judgment in favor of the Secretary on that theory “should never have been disturbed.”

B. Denial of Rule 15(d) Supplementation after Final Judgment Was Proper

The Court also affirms the district court’s denial of the Rule 15(d) motion to supplement the complaint with a new equal‑protection challenge to the presidential ballot‑access scheme. It reasons that:

• Generally, litigants may not use Rule 15(d) to supplement pleadings after final judgment, as this would allow Rule 15 to swallow Rule 60.
• Even if analyzed as a pre‑judgment motion, denial would still be proper because the proposed supplementation came late, introduced a wholly new theory of recovery, and could readily be brought in a separate lawsuit.

IV. Analysis of the Opinion

A. Precedents and Doctrines Cited

1. Law-of-the-Case and Waiver: Robinson, Winn‑Dixie, Anderson, Carey, Compulife

The Court relies heavily on the law‑of‑the‑case doctrine, citing:

• Robinson v. Sauls, 102 F.4th 1337, 1341 n.5 (11th Cir. 2024) – Held that a plaintiff who fails to appeal a dismissive ruling in an earlier phase of a case “waived the right to challenge that decision at a later time.” Robinson had a § 1983 claim dismissed early, later lost on summary judgment, and failed to challenge the dismissal in the interim appeal; she was barred from reviving it.
  Cowen is explicitly analogized to Robinson: the Libertarian Party, like Robinson, had an available appellate opportunity and chose not to use it.
• Winn‑Dixie Stores, Inc. v. Dolgencorp, LLC, 881 F.3d 835, 843 (11th Cir. 2018) – Emphasizes that a district court may not ignore the law of the case on remand; once the appellate court has spoken, its decision binds subsequent proceedings.
• United States v. Anderson, 772 F.3d 662, 669 (11th Cir. 2014) – Confirms that the Eleventh Circuit may raise the law‑of‑the‑case doctrine sua sponte; it need not rely on a party to invoke it.
• Carey v. Dep’t of Corr., 57 F.4th 985, 989 (11th Cir. 2023) – Reiterates the general principle that appellate courts may affirm on any ground supported by the record, even if the district court relied on different reasoning. This permits the panel to affirm based on the original, undisturbed judgment.
• Compulife Software, Inc. v. Newman, 111 F.4th 1147, 1161 (11th Cir. 2024), cert. denied, 145 S. Ct. 1172 (2025) – Articulates the three narrow exceptions to law of the case:
  1. Subsequent trial produces substantially different evidence.
  2. Intervening controlling authority changes the law.
  3. The prior decision was clearly erroneous and would work a manifest injustice.
  The panel notes explicitly that none of these exceptions applies.

Together, these citations emphasize that:

• Law of the case is procedural but binding: it bars re‑litigation of issues actually decided (or that could have been decided) in earlier phases of the same case.
• Failure to appeal an issue when one has the chance is treated as waiver of that issue going forward.

2. Standards of Review and Summary Judgment: McCreight

For standards of review, the Court cites:

• McCreight v. AuburnBank, 117 F.4th 1322, 1329 (11th Cir. 2024) – Reiterates de novo review of summary judgment, with all evidence and reasonable inferences viewed in favor of the non‑moving party.
• Federal Rule of Civil Procedure 56(a) – Summary judgment standard (“no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law”).
• Willard v. Fairfield Southern Co., 472 F.3d 817, 821 (11th Cir. 2006) – Standard of review for Rule 60(b) decisions is abuse of discretion.
• Georgia Ass’n of Latino Elected Officials v. Gwinnett Cnty. Bd. of Registration & Elections, 36 F.4th 1100, 1126 (11th Cir. 2022) – Abuse‑of‑discretion review for Rule 15(d) motions to supplement pleadings.

3. Fabric of Ballot Access Precedent: Jenness, Coffield, and Anderson–Burdick

Earlier in the litigation (referenced in the opinion), two key ballot access precedents had framed the district court’s and the Eleventh Circuit’s analysis:

• Jenness v. Fortson, 403 U.S. 431 (1971) – The Supreme Court upheld Georgia’s 5% petition requirement against First Amendment and Equal Protection challenges, emphasizing that states have a legitimate interest in requiring candidates to demonstrate a “significant modicum of support” before being placed on the ballot.
• Coffield v. Kemp, 599 F.3d 1276 (11th Cir. 2010) – The Eleventh Circuit, relying on Jenness, again upheld Georgia’s 5% rule, finding it constitutional as applied to an independent congressional candidate.
• The Eleventh Circuit in Cowen I clarified that, despite Jenness, lower courts must now assess ballot access restrictions under the Anderson–Burdick balancing test (stemming from Anderson v. Celebrezze and Burdick v. Takushi), which evaluates the burden on constitutional rights against the state’s interests.

While this third opinion does not re‑apply Anderson–Burdick (that issue was resolved against the Libertarian Party in Cowen II), the background is crucial to understanding why the Party tried to pivot to a discriminatory purpose equal‑protection argument and later to a new presidential ballot‑access claim.

4. Rule 15(d) and Post-Judgment Supplementation: Summers, Camilla Cotton Oil, Manning, Schwarz, Bonner

On Rule 15(d), the Court cites:

• Summers v. Earth Island Institute, 555 U.S. 488, 500 (2009) – The Supreme Court cautioned that post‑judgment supplementation is generally impermissible because it would allow Rule 15 to “swallow whole” Rule 60. In other words, you cannot evade finality and the specific requirements of Rule 60(b) by treating new allegations as supplemental pleadings.
• Camilla Cotton Oil Co. v. Spencer Kellogg & Sons, Inc., 257 F.2d 162, 167 (5th Cir. 1958) – A former Fifth Circuit case (binding in the Eleventh Circuit via Bonner v. City of Prichard) stating that Rule 15(d) should be afforded “liberal allowance” to update the pleadings with new facts.
• Manning v. City of Auburn, 953 F.2d 1355, 1359 (11th Cir. 1992) – Explains that supplemental pleadings typically allow the addition of new facts that “update” earlier allegations, rather than introduce fundamentally new claims.
• Schwarz v. City of Treasure Island, 544 F.3d 1201, 1229 (11th Cir. 2008) – Upholds denial of leave to supplement when the motion:
  • Arises late,
  • Raises “an entirely new theory of recovery,” and
  • Is filed when “discovery was already well underway” and the claims could be brought in another lawsuit.
  The court uses Schwarz as a template for upholding denial here.
• Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981) (en banc) – Establishes that pre‑October 1, 1981 Fifth Circuit decisions are binding in the Eleventh Circuit, thereby making Camilla Cotton Oil controlling precedent.

B. The Court’s Legal Reasoning

1. Law-of-the-Case and the Discriminatory Purpose Claim

The core procedural move in this opinion rests on a straightforward but powerful application of the law‑of‑the‑case doctrine:

1. The district court, after the second round of summary judgment, issued a separate order declaring the discriminatory purpose equal‑protection theory “moot” because the Libertarian Party had already obtained complete relief via the Anderson–Burdick ruling.
2. The Libertarian Party did not challenge that mootness ruling in its cross‑appeal in Cowen II. Neither its notice of cross‑appeal nor its briefing raised the issue. The Eleventh Circuit recognized explicitly in Cowen II that the discriminatory purpose theory was “not at issue” on that appeal.
3. Under Robinson, when a party fails to appeal an adverse ruling that could be reviewed alongside other appealable orders, that party “waives” the right to raise that issue in a later appeal of the same case.
4. Consequently, the district court’s mootness determination became the law of the case, and the district court on remand lacked authority to revive or revisit that claim via Rule 60(b).
5. The Eleventh Circuit, empowered to raise law‑of‑the‑case sua sponte, holds that “the judgment originally entered for the Secretary should never have been disturbed.” It thus affirms on that ground without needing to reach the merits of discriminatory purpose or the sufficiency of plaintiffs’ late‑developed evidence.

Importantly, the panel considers and rejects the three recognized exceptions from Compulife:

• No “substantially different evidence” at a subsequent trial (the evidence sought to be introduced was materially new, but the rule concerns new evidence at a new trial, not evidence that was deliberately withheld or could have been presented earlier).
• No intervening change in controlling law.
• No showing that the prior decision (the mootness ruling, left unchallenged) was clearly erroneous and working a manifest injustice.

The opinion thus signals that a party cannot:

• Obtain partial success in one phase (here, a favorable First Amendment ruling),
• Decline to appeal an adverse ruling on another theory (discriminatory purpose), and then
• After losing that first success on appeal, seek to re‑animate the previously un‑appealed theory via post‑judgment motions.

2. Rule 15(d) Supplementation: Timing, Scope, and Finality

On the second issue, the Libertarian Party sought to add a new claim attacking a newly‑enacted Georgia statute that granted an alternative route to ballot access for presidential candidates of political bodies (by qualifying in 20 other states), while leaving congressional candidates subject to the 5% signature rule.

The Court’s reasoning proceeds in two steps:

1. Post‑Judgment Bar (Summers) – As the Supreme Court held in Summers, allowing supplemental pleadings after final judgment would let Rule 15(d) “swallow whole” Rule 60. Litigants could effectively circumvent the strict standards for reopening judgments by continuously adding new claims. Therefore, as a default rule, you cannot supplement once a final judgment has been entered, particularly when Rule 59(e) and Rule 60(b) provide the designated mechanisms for post‑judgment relief.
2. Even Under Pre‑Judgment Standards, Denial Was Proper (Schwarz) – The panel notes that, even if this were analyzed as if it were a pre‑judgment motion, the district court’s denial would still be within its discretion because:
   • The case was already at a very late stage—after years of litigation, multiple summary judgment motions, and two prior appeals.
   • The proposed supplemental claim represented an entirely new theory of recovery (a distinct equal‑protection challenge to presidential ballot access), rather than simply “updating” existing allegations.
   • Schwarz approves denial of supplemental pleadings filed late in the case that introduce new claims when discovery is already well advanced and when there is a realistic alternative—here, filing a new, independent lawsuit challenging the new law.

The Court emphasizes that both the district court and the Party acknowledged that the new presidential‑access claim could be brought in a separate action. That recognition essentially undercuts any argument that denial of leave to supplement causes meaningful prejudice or injustice.

C. Impact and Significance

1. Practical Consequences for This Case

The immediate consequence is procedural:

• The Libertarian Party’s discriminatory purpose equal‑protection theory is permanently out of this case. The Eleventh Circuit does not (and now will not) reach the merits of whether the 5% rule was motivated by anti‑Communist or racially discriminatory intent.
• The Party’s attempt to pivot to a new presidential ballot‑access theory within this case is rejected, leaving that claim for a separate lawsuit if the Party chooses to pursue it.
• The bottom line: the 5% congressional petition requirement remains intact against these plaintiffs in this litigation, reinforcing the status quo set by Jenness, Coffield, and Cowen II.

2. Broader Lessons for Election-Law Litigation

This opinion underscores several practical lessons for election‑law litigants (and civil litigants more generally):

1. Appeal All Adverse Rulings You Care About – The decision emphatically illustrates that strategic forbearance in appealing can be costly. The Libertarian Party may have believed that prevailing on Anderson–Burdick mooted the need to pursue its discriminatory purpose theory. Once the Anderson–Burdick victory was reversed in Cowen II, the unappealed mootness ruling on discriminatory purpose became an insurmountable barrier. Future litigants should:
   • Carefully evaluate which adverse orders they must appeal to preserve important alternative theories.
   • Avoid relying solely on one theory when multiple theories have been partially litigated; if they all matter, they must all be preserved on appeal.
2. Law-of-the-Case is Not a Mere Formailty – The doctrine is often treated as technical, but here it has decisive, outcome‑determinative force. Once an issue is resolved or left unresolved by choice at an earlier appellate stage, it will not easily be revisited in subsequent appeals. Election‑law challenges that unfold over many cycles, with repeated preliminary injunctions and appeals, are especially vulnerable to law‑of‑the‑case constraints.
3. Do Not Save Discriminatory Intent Theories for Late Stages – The Party’s attempt to reframe its discriminatory purpose argument as racially targeted came “for the first time” in opposing summary judgment in the reopened phase of litigation. That is both procedurally awkward and substantively vulnerable. Equal protection discriminatory purpose claims, especially when they pivot from one protected target (Communists) to another (racial minorities), require a robust, coherent historical record and should be developed early, clearly pled, and consistently pursued.
4. Rule 15(d) is Not a Post-Judgment Escape Hatch – Litigation over election laws often spans multiple statutory amendments and evolving factual landscapes (e.g., new ballot access formulas, redistricting). This opinion reinforces that:
   • New legislative developments should usually be challenged by filing a new lawsuit, not by attempting to append them to a nearly completed (or finally resolved) case.
   • Rule 15(d) is designed to “update” existing pleadings with new facts, not to tack on entirely new and independent claims or theories after the case is effectively over.

3. Limited but Real Precedential (and Persuasive) Value

Although the opinion is marked “Not for Publication” and therefore is formally non‑precedential in the Eleventh Circuit, its reasoning is wholly conventional and grounded in well‑established doctrine. It will likely function as:

• A persuasive authority on how law‑of‑the‑case applies when parties omit issues from earlier appeals; and
• A practical reiteration of Summers and Schwarz on the boundaries of Rule 15(d) in the post‑judgment context.

V. Simplifying Key Concepts

A. Law-of-the-Case vs. Res Judicata

Law-of-the-case is an intra‑case doctrine: it applies to decisions made earlier in the same litigation, especially after an appeal. Once an appellate court (or a district court in an earlier phase) has decided a legal issue, that decision usually governs later phases of the same case.

By contrast, res judicata (claim preclusion) and collateral estoppel (issue preclusion) apply across different lawsuits. They bar relitigation of claims or issues after final judgments in prior cases. Here, the court uses law‑of‑the‑case because everything happens within one extended case with multiple appeals.

B. Discriminatory Purpose in Equal Protection

An Equal Protection claim can proceed on two broad tracks:

• Discriminatory effect – The law has a disparate impact on a protected group.
• Discriminatory purpose – The law was enacted “because of,” not merely “in spite of,” its adverse effect on a protected group. Plaintiffs must show that the legislature or decision maker had an invidious motive.

In this case, the Libertarian Party’s equal protection claim was of the purpose variety: they initially alleged that Georgia’s 5% requirement was enacted to keep Communist candidates off the ballot, and later attempted to reframe it as a racially discriminatory measure.

Evidence of discriminatory purpose can include:

• Statements by legislators or officials.
• Historical background and sequence of events.
• Departures from normal procedures.
• Legislative history, official reports, Attorney General opinions.
• Contemporaneous media coverage and public discourse (with caution).

The Court here never reaches whether such evidence exists or is sufficient; it resolves the case on procedural grounds before getting to that question.

C. Anderson–Burdick Framework (Background Only)

The Anderson–Burdick test (from Anderson v. Celebrezze and Burdick v. Takushi) governs most constitutional challenges to state election regulations:

1. Identify the “character and magnitude” of the burden on voting and associational rights.
2. Weigh that burden against the interests the state asserts as justifications.
3. The more severe the burden, the more exacting the scrutiny; lesser burdens get more deferential review.

The first appeal, Cowen I, clarified that this is the correct standard rather than pure reliance on Jenness. In Cowen II, the Eleventh Circuit ultimately held that the burden imposed on the Libertarian Party did not rise to the level that would invalidate the 5% requirement under Anderson–Burdick. That substantive conclusion underlies why the discriminatory purpose theory became strategically important for plaintiffs and why this third opinion concerns their attempt to revive it.

D. Rule 15(d) vs. Rule 59(e) and Rule 60(b)

The Federal Rules of Civil Procedure provide three distinct avenues relevant here:

• Rule 15(d) – Allows supplemental pleadings to “set out any transaction, occurrence, or event that happened after the date of the pleading to be supplemented.” It is generally used before final judgment to update a complaint with subsequent facts, not to avoid finality.
• Rule 59(e) – Allows a party to move to alter or amend a judgment, usually to correct clear errors of law or fact, present newly discovered evidence that could not have been previously presented, or account for an intervening change in law.
• Rule 60(b) – Provides specific grounds for relief from a final judgment (mistake, new evidence, fraud, voidness, etc.). The standard is intentionally stringent, reflecting the strong interest in finality.

The Supreme Court in Summers warns that allowing post‑judgment supplementation under Rule 15(d) would undermine the carefully calibrated balance between finality and fairness embodied in Rules 59(e) and 60(b). That is why courts, including the Eleventh Circuit here, are highly reluctant to allow supplementation after final judgment, especially where a new, distinct theory is introduced.

VI. Conclusion: Key Takeaways

This third Eleventh Circuit decision in Cowen v. Secretary of State of Georgia does not reshape substantive ballot access doctrine. Instead, it serves as a cautionary procedural roadmap for complex, multi‑stage litigation:

• Law-of-the-case and waiver are decisive. By not appealing the district court’s mootness ruling on the discriminatory purpose equal‑protection theory in Cowen II, the Libertarian Party made that ruling the law of the case. The Party was thus foreclosed from reviving that claim in later proceedings, regardless of any new evidence or refined arguments it sought to introduce.
• Strategic appeal decisions have long-term consequences. Litigants must carefully preserve all meaningful theories for appellate review; success on one theory does not excuse failure to protect alternative grounds, especially when the opposing party is also appealing.
• Post-judgment supplementation is strictly limited. Rule 15(d) cannot be used to smuggle new claims into a case after final judgment has been entered, particularly when they represent new legal theories (such as challenges to newly enacted laws) that are better addressed in separate lawsuits.
• Election-law challenges must be planned holistically and early. Discriminatory purpose arguments and alternative ballot‑access theories should be integrated into the litigation strategy from the beginning, not held in reserve or introduced only after prior strategies falter on appeal.

In a broader legal context, the opinion is a reminder that procedural rules—law of the case, waiver, summary judgment standards, rules for amending and supplementing pleadings—are often as outcome‑determinative as the substantive constitutional issues they frame. For parties seeking to reform election laws, meticulous attention to those procedural dimensions is indispensable.