Justice et al v. Hosemann et al

Filing 79

MEMORANDUM OPINION re 78 Order on Motions for Summary Judgment, Order on Motion to Exclude, Order on Motion to Strike. Signed by District Judge Sharion Aycock on 9/30/2013. (dm)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
OXFORD DIVISION
GORDON VANCE JUSTICE, JR., et al.
V.

PLAINTIFFS
CAUSE NO.: 3:11-CV-138-SA-SAA

DELBERT HOSEMANN, in his official
capacity as Mississippi Secretary of State;
JIM HOOD, in his official capacity as
Attorney General of the State of Mississippi

DEFENDANTS

MEMORANDUM OPINION
Presently before the Court are the parties’ cross-motions for summary judgment [42,44],
Defendants’ Motion to Exclude [46], and Defendants’ Motion to Strike [53]. Plaintiffs challenge
the constitutionality of Mississippi’s campaign finance disclosure scheme as it applies to small
groups and individuals intending to support or oppose state constitutional ballot measures. The
State defends the disclosure scheme, contending that it imposes no undue constitutional hardship
on groups such as Plaintiffs’.
FACTUAL AND PROCEDURAL BACKGROUND
Plaintiffs are “a group of like-minded friends and neighbors” who have been meeting
regularly for the past few years, as a group and with others, to discuss the political issues of the
day. According to Plaintiffs, they “have no formal organization or structure. They meet at their
homes, at restaurants, and wherever else is convenient. They have no officers or directors, no
bank account, and no member dues.” Plaintiffs initially wished to associate with one another and
with others for the purposes of running independent political advertisements advocating the
passage of Initiative 31, a proposed amendment to the Mississippi Constitution which was indeed
passed by popular vote during a state-wide election held November 8, 2011. Initiative 31

proposed to “amend the Mississippi Constitution to prohibit state and local government from
taking private property by eminent domain and then conveying it to other persons or private
businesses for a period of 10 years after acquisition.”
Plaintiffs sought to pool funds in order to purchase posters, buy advertising in a local
newspaper, and distribute flyers supporting the Initiative. However, in order to do so, Plaintiffs
determined that they would have to register as a “political committee” under Mississippi
campaign finance law. Moreover, Plaintiffs additionally sought to individually spend in excess
of $200 of their own money to support Initiative 31, but, even as individuals, were required to
report their involvement to the State.
Plaintiffs thereafter filed suit in this Court, seeking a declaratory judgment that the
reporting and disclosure scheme is unconstitutional as applied to Plaintiffs. Following a hearing,
this Court denied Plaintiffs’ petition for a temporary restraining order and preliminary injunction.
On November 8, 2011, the state-wide election was held as scheduled and Initiative 31 was
approved by popular vote. Plaintiffs continued to maintain the suit, contending that although
they were unable to litigate their claims prior to the 2011 election, they continue to desire to
speak out about constitutional ballot measures in future elections.
Under Mississippi law, groups seeking to support or oppose state-wide balloted measures
must look to two Chapters of the Mississippi Code, both of which can be found in Title 23.
Chapter 15 sets forth the Mississippi Election Code generally, while Chapter 17 governs
amendments to the Mississippi Constitution by voter initiative.
Under Chapter 15, a political committee is defined as “any committee, party, club,
association, political action committee, campaign committee or other groups of persons or
affiliated organizations which receives contributions aggregating in excess of [$200] during a

2

calendar year, or has made such expenditures aggregating in excess of [$200] during a calendar
year.” MISS. CODE ANN. § 23-15-801(c). Political committees that “make expenditures for the
purpose of influencing or attempting to influence the action of voters for or against the
nomination for election, or election, of one or more candidates or balloted measures at such
election” are required to file a number of reports. MISS. CODE ANN. § 23-15-807(b) (emphasis
added). First, in any calendar year during which there is a regularly scheduled election, such
committees must file a “preelection report.” Id. at § 23-15-807(b)(i). Additionally, once every
four years, political committees are required to file a “periodic report.” Id. at § 23-15-807 (b)(ii).
Finally, in every calendar year except those in which a periodic report must be filed, political
committees must file a “calendar year” or annual report. Id. at § 23-15-807 (b)(iii). The
obligation to file such reports is extinguished only upon the submission of a “final report”
indicating that the committee “will no longer receive any contributions or make any
disbursement and that [the committee] has no outstanding debts or obligations.” Id. at § 23-15807(a).
For each of the Chapter 15 reports, the content requirements remain the same and are
found under Mississippi Code § 23-15-807(d). Chapter 15 reports must include:


The total amount of contributions received in the covered period. MISS. CODE
ANN. § 23-15-807(d)(i).



The total amount of expenditures for the covered period. Id. at § 23-15-807(d)(i).



The total amount of contributions received in the covered year. Id.



The total amount of expenditures for the covered year. Id.



The total amount of cash on hand. Id. at § 23-15-807(d)(iii).



The identification of each person or political committee who, within the covered
reporting period, makes a contribution when that person’s or political committee’s
annual contributions exceed $200 in the aggregate. Id. at § 23-15-807(d)(ii)(1).
3



The identification of each person or political committee who, within the covered
reporting period, receives an expenditure from the committee when the
committee’s annual expenditures to that person or political committee exceed
$200 in the aggregate. Id. at § 23-15-807(d)(ii)(2).

Additionally, Chapter 15 also places requirements on individuals under its independent
expenditure provision. MISS. CODE ANN. § 23-15-809(a). Under that provision, every person
“who makes independent expenditures in an aggregate amount or value in excess of [$200]
during a calendar year shall file a statement containing the information required under Section
23-15-807.” Id. Notably, however, the independent expenditure provision also provides that
“[s]tatements required to be filed by this section shall include . . . “[i]nformation indicating
whether the independent expenditure is in support of, or in opposition to, the candidate
involved.” Id. at § 23-15-809(b)(i).
On the other hand, Chapter 17 of the Mississippi Code governs amendments to the
Mississippi Constitution by way of voter initiative. MISS. CODE ANN. § 23-17-1 et seq. That
Chapter sets forth its own parameters for political committees. Under Chapter 17, a person is
defined as “any individual, family, firm, corporation, partnership, association or other legal
entity.” MISS. CODE ANN. § 23-17-47(b). A political committee is “any person, other than an
individual, who receives contributions or makes expenditures for the purpose of influencing the
passage or defeat of a measure on the ballot.” Id. at § 23-17-47(c).1 “Measure” is defined as “an
amendment to the Mississippi Constitution proposed by a petition of qualified electors under
Section 273, Mississippi Constitution of 1890.” Id. at § 23-17-1(1). Similar to Chapter 15, any

1

Although not addressed by the parties, the Court notes that based on a plain reading of the
statute there is least some ambiguity as to whether Plaintiffs’ informal association should even be
properly categorized as an “association or other legal entity” under § 23-17-47(b). The Court is,
however, able to definitively conclude that such an association should not be considered an
“individual, family, firm, corporation, [or] partnership.”
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political committee that receives contributions or makes expenditures in excess of $200 is
required to file financial reports with the Secretary of State. Id. at § 23-17-51 (1). Contribution
is defined, in pertinent part, to encompass “any gift, subscription, loan, advance, money or
anything of value made by a person or political committee . . . but does not include
noncompensated, nonreiumbursed volunteer personal services.” Id. at § 23-17-47(a). Chapter
17 financial reports are to be filed monthly and must continue until all contributions and
expenditures cease. Id. at § 23-17-51(3).
For purposes of Chapter 17, each political committee report must include:


The name, address, and telephone number of the committee filing the statement.
MISS. CODE ANN. § 23-17-53(a).



The total amount of contributions received during the covered period. Id. at § 2317-53(b)(1).



The total amount of expenditures made during the covered period. Id. at § 23-1753(b)(2).



The cumulative amount of those respective totals. Id. at § 23-17-53(b)(3).



The balance of cash and cash equivalents on hand at the beginning and end of the
covered period. Id. at § 23-17-53(b)(4).



The total amount of contributions received in the covered period from persons
contributing less than $200. Id. at § 23-17-53(b)(v).



The total amount of contributions received in the covered period from persons
contributing in excess of $200. Id. at § 23-17-53(b)(vi).



The name and street address of each person contributing in excess of $200 during
the covered period with the amount of contribution, the date of receipt, and the
cumulative amount contributed by that person. Id. at § 23-17-53(b)(vii).

Notably, Chapter 17 also places filing requirements on individuals. Under Chapter 17,
any individual “who on his or her own behalf expends in excess of [$200] for the purpose of
influencing the passage or defeat of a measure” must file monthly financial reports with the

5

Secretary of State. MISS. CODE ANN. § 23-17-51 (2). “Measure” is again defined as “an
amendment to the Mississippi Constitution proposed by a petition of qualified electors under
Section 273, Mississippi Constitution of 1890.” Id. at § 23-17-1(1). That individual must
continue to file reports until all expenditures cease. Id. at § 23-17-51(3). Chapter 17 individual
reports must include:


The name, address, and telephone number of the person filing the statement.
MISS. CODE ANN. § 23-17-53 (a).



The total amount of expenditures made during the covered period. Id. at § 2317-53(c)(i).



The cumulative amount of that total for each measure. Id. at § 23-17-53(c)(ii).



The name and street address of each person to whom an expenditure of greater
than $200 was made, the amount of each separate expenditure made to that
person during the covered period, and the purpose of the expenditure. Id. at §
23-17-53(c)(iii).



The total amount of contributions received during the covered period. Id. at §
23-17-53(c)(iv).



The cumulative amount of contributions received for each measure. Id. at § 2317-53(c)(iv).



The name and street address of each person who contributed more than $200
and the amount contributed. Id. at § 23-17-53(c)(iv).

Thus, while the individual and political committee reporting requirements under Chapter
15 and Chapter 17 are similar in a number of respects, there remain material differences between
the two.

First, as to their respective applications, the Chapter 15 political committee

requirements apply to associations that “make expenditures for the purpose of influencing or
attempting to influence the action of voters for or against the nomination for election, or election,
of one or more candidates or balloted measures at such election.” MISS. CODE ANN. § 23-15807(b) (emphasis added). On the other hand, Chapter 17 applies in a more limited but arguably

6

duplicitous context, placing requirements only on individuals and associations who receive or
expend funds for the “purpose of influencing the passage or defeat of a [constitutional] measure
on the ballot.” MISS. CODE. ANN. § 23-17-47(c) (defining a political committee); Id. at § 23-1751(2) (placing an individual expenditure requirement on individual persons); Id. at § 23-17-1(1)
(defining “measure” as a constitutional measure).2 As to their requirements, Chapter 15 and
Chapter 17 differ as to both when reports are required, and what those respective reports must
include.
Although for present purposes the State claims that only Chapter 17 applies to groups or
individuals attempting to influence constitutional measures, Plaintiffs argue that being forced to
navigate through the potentially conflicting statutes only serves to multiply the burdens imposed
by the scheme. Claiming that these requirements effectively chilled and continue to chill their
attempt to speak out regarding constitutional ballot measures, Plaintiffs seek to have this Court
determine that Mississippi’s political financial disclosure regime places an unconstitutional
burden on Plaintiff’s First Amendment rights. The Court turns to the merits of the parties’
contentions.
STANDARD OF LAW
Summary judgment is warranted under Rule 56(a) of the Federal Rules of Civil
Procedure when the evidence reveals no genuine dispute regarding any material fact, and the
moving party is entitled to judgment as a matter of law. The rule “mandates the entry of
summary judgment, after adequate time for discovery and upon motion, against a party who fails
to make a showing sufficient to establish the existence of an element essential to that party’s

2

The Court finds it noteworthy while Chapter 17 indeed applies only to constitutional ballot
measures, a potential proponent must cross-reference the Chapter’s definitional section to reach
that conclusion.
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case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett,
477 U.S. 317, 322, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986).
The party moving for summary judgment “bears the initial responsibility of informing the
district court of the basis for its motion, and identifying those portions of [the record] which it
believes demonstrate the absence of a genuine issue of material fact.” Id. at 323, 106 S. Ct.
2548. The nonmoving party must then “go beyond the pleadings” and “designate ‘specific facts
showing that there is a genuine issue for trial.’” Id. at 324, 106 S. Ct. 2548 (citation omitted).
In reviewing the evidence, factual controversies are to be resolved in favor of the nonmovant,
“but only when . . . both parties have submitted evidence of contradictory facts.” Little v. Liquid
Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc). When such contradictory facts exist,
the Court may “not make credibility determinations or weigh the evidence.”

Reeves v.

Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150, 120 S. Ct. 2097, 147 L. Ed. 2d 105 (2000).
However, conclusory allegations, speculation, unsubstantiated assertions, and legalistic
arguments have never constituted an adequate substitute for specific facts showing a genuine
issue for trial. TIG Ins. Co. v. Sedgwick James of Wash., 276 F.3d 754, 759 (5th Cir. 2002);
SEC v. Recile, 10 F.3d 1093, 1097 (5th Cir. 1997); Little, 37 F.3d at 1075.
DISCUSSION AND ANALYSIS
I. Standing
Although not heavily contested between the parties, this Court need initially consider
whether the Plaintiffs have standing to maintain the current action. Notably, although Plaintiffs
complaint challenged the constitutionality of Mississippi’s political finance disclosure scheme
both facially and as-applied, the Plaintiffs’ arguments at the summary judgment stage have been
almost exclusively grounded in an as-applied context. Based on the briefing of the parties, the

8

Court considers the Plaintiffs’ challenge only under an as-applied framework, and deems the
facial challenge abandoned. Int’l Women’s Day March Planning Comm. v. City of San Antonio,
619 F.3d 346, 356 (5th Cir. 2010) (quoting Keelan v. Majesco Software Inc., 407 F.3d 332, 340
(5th Cir. 2005) (“If a party wishes to preserve an argument for appeal, the party ‘must press and
not merely intimate the argument during the proceedings before the district court.’”).
Under Fifth Circuit and United States Supreme Court precedent, the Court determines
that the Plaintiffs at issue indeed have standing to bring their as-applied challenge. In order to
maintain standing for purposes of Article III jurisdiction, a plaintiff must show: (1) it has
suffered, or imminently will suffer, a concrete and particularized injury-in-fact; (2) the injury is
fairly traceable to the defendant’s conduct; and (3) a favorable judgment is likely to redress the
injury. Houston Chronicle Pub. Co. v. City of League City, 488 F.3d 613, 617 (5th Cir. 2007)
(citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S. Ct. 2130, 119 L. Ed. 2d 351
(1992)). Although here, Plaintiffs’ action is a pre-enforcement challenge, the Fifth Circuit has
clearly established that “[c]hilling a plaintiff’s speech is a constitutional harm adequate to satisfy
the injury-in-fact requirement.” Id. (internal citations omitted). This is likely so because “it is
not necessary that [a party] first expose himself to actual arrest or prosecution to be entitled to
challenge a statute that he claims deters the exercise of his constitutional rights.” Id. (quoting
Steffel v. Thompson, 415 U.S. 452, 94 S. Ct. 1209, 39 L. Ed. 2d 505 (1974)).
Because mere allegations of a “subjective chill” are not an adequate substitute for a
present objective harm or threat, however, a plaintiff relying on the chilling exception must still
demonstrate the likelihood of imminent future prosecution. Id. at 618-19. Once that showing is
fulfilled, however, the Fifth Circuit has before at least implied that plaintiffs should have
standing to bring either an as-applied or facial challenge. Id. at 623 (finding that plaintiffs’ as-

9

applied challenge failed because it was underpinned only by “future enforcement intentions.”)
(emphasis in original); see also Citizens United v. Federal Election Comm’n, 558 U.S. 310, 331,
130 S. Ct. 876, 175 L. Ed. 2d 753 (2010) (articulating that “the distinction facial and as-applied
challenges is not so well defined that it has some automatic effect or that it must always control
the pleadings and disposition in every case involving a constitutional challenge.”); Gonzales v.
Carhart, 550 U.S. 124, 167, 127 S. Ct. 1610, 167 L. Ed. 2d 480 (2007) (noting that in the case of
a pre-enforcement challenge the “facial attack should not have been entertained in the first
instance” and enunciating that when presented with “discrete and well-defined instances a
particular condition has or is likely to occur in which the [conduct] prohibited by the Act [will
take place]” an as-applied challenge is the correct mechanism).
In the case at hand, Plaintiffs discretely aver that they sought to purchase posters, buy
advertising in a local newspaper, and distribute flyers supporting the Initiative. They aver, and
Defendants cannot contest, that those expenses would have indeed exceeded the State’s $200
registration threshold requirement. Moreover, the State refuses to contest that Chapter 17 would
have applied with full-force to Plaintiffs as soon as they crossed that monetary threshold.
Additionally, the State did apply, at the time of Plaintiffs’ desired involvement, and continues to
apply the statute to such groups. In Assistant Secretary of State Kim Turner’s deposition, for
instance, she noted that a contemporaneously active association who had apparently received in
excess of $200 in contributions “need[ed] to be registered.” Thus, the Court finds that Plaintiffs
have sufficiently shown more than “subjective chill” and have standing to raise the current
challenge.

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II. First Amendment Challenges
Having concluded that standing is present, the Court turns to the merits of the action.
Under the First Amendment, Plaintiffs challenge the requirements placed on both individuals and
associations attempting to influence constitutional ballot measures in Mississippi. In order to
evaluate those respective challenges, the Court must first determine what level of scrutiny to
apply. That determination, in turn, will guide the remainder of the Court’s analysis.
Generally, “[l]aws that burden political speech are subject to strict scrutiny, which
requires the Government to prove that the restriction furthers a compelling interest and is
narrowly tailored to achieve that interest.” Citizens United, 558 U.S. at 340, 130 S. Ct. 876. On
the other hand, however, the Court has before “subjected strictures on campaign-related speech
that [it] found less onerous to a lower level of scrutiny.” Arizona Free Enter. Club’s Freedom
Club PAC v. Bennett, —U.S.—, 131 S. Ct. 2806, 2817, 180 L. Ed. 2d 664 (2011). Significant
for present purposes, “[d]isclosure requirements may burden the ability to speak, but they
‘impose no ceiling on campaign-related activities,’ and ‘do not prevent anyone from speaking.’”
Citizens United, 558 U.S. at 366-67, 131 S. Ct. 2806; Asgeirsson v. Abbott, 696 F.3d 454, 463
(5th Cir. 2012) (“For First Amendment purposes, the requirement to make information public is
treated more leniently than are other speech regulations. The Court has often upheld disclosure
provisions even where it has struck down other regulations of speech in the same statutes.”).
Thus, with that in mind, “[t]he Court has [consequently] subjected these requirements to
‘exacting scrutiny,’ which requires a ‘substantial relation’ between the disclosure requirement
and a ‘sufficiently important’ governmental interest.” Id. (citing Buckley v. Valeo, 424 U.S. 1,
66, 96 S. Ct. 612, 46 L. Ed. 2d 659 (1976) (Buckley I)).

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A. Exacting Scrutiny
Although Plaintiffs contend that strict scrutiny should apply here, they acknowledge that
Mississippi places no substantive cap on contributions, but instead merely requires the disclosure
of information relating to contributions received and expended.

Particularly damaging to

Plaintiffs’ position, however, is the fact that the Fifth Circuit recently articulated that “disclosure
laws” are subject to “exacting rather than strict scrutiny.” See Asgeirsson, 696 F.3d at 462.
Moreover, as the Eleventh Circuit recently opined in an extraordinarily similar context, applying
strict scrutiny to a disclosure scheme would run in contradiction to all Circuit Courts to have
recently considered the question. Worley v. Florida Sec. of State, 717 F.3d 1238, 1244 (11th Cir.
2013) (collecting cases from the First, Seventh, Eighth, Ninth, and Tenth Circuits).

Because

Mississippi’s statutory scheme places no cap on contributions, instead merely imposing reporting
and disclosure requirements, this Court applies exacting scrutiny to Mississippi’s political
finance disclosure requirements. Under that framework, in order to withstand constitutional
scrutiny, there must be a substantial relation between the disclosure requirement and a
sufficiently important governmental interest. Asgeirsson, 696 F.3d at 464 n.11 (citing Citizens
United, 130 S. Ct. at 914).
B. Sufficiently Important Governmental Interest
In support of its registration, recording, and reporting requirements, Mississippi relies
almost exclusively on the informational interest allegedly served by the statutory scheme’s
requirements.3 Plaintiffs ardently argue that there is no such interest in the context of

3

Although the State additionally contends that the system furthers its interest in “gather[ing] data
necessary to deter and detect violations of campaign finance laws,” no Circuit to have considered
the government’s interest in the context of a ballot initiative has recognized such a theory and the
Court refuses to do so here.
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constitutional ballot measures, or, that at the very least, it is significantly diminished in regard to
such measures.
In Buckley I, the Supreme Court found that disclosure laws could be supported by at
least three rationales in the context of a candidate election. 424 U.S. 1, 66-69, 96 S. Ct. 612, 46
L. Ed. 2d 659 (1976). In regard to the potential information interest of the State, the Court
articulated:
[D]isclosure provides the electorate with information as to where political campaign
money comes from and how it is spent by the candidate in order to aid the voters in
evaluating those who seek federal office. It allows voters to place each candidate in the
political spectrum more precisely than is often possible solely on the basis of party labels
and campaign speeches. The sources of a candidate’s financial support also alert the voter
to the interests to which a candidate is most likely to be responsive and thus facilitate
predictions of future performance in office.
Buckley I, 424 U.S. at 66, 96 S. Ct. 612 (footnote omitted).
Plaintiffs argue that this informational interest is limited to the context of candidates
running for office; they argue that it does not apply, or alternatively, applies with much less force
in the context of ballot initiatives. Plaintiffs note that the while the Supreme Court has discussed
the utility of disclosure laws in the ballot issue context on three occasions, it has done so only in
dicta.
First, in First National Bank of Boston v. Bellotti, 435 U.S. 765, 98 S. Ct. 1407, 55 L. Ed.
2d 707 (1978), the Supreme Court invalidated a Massachusetts statute prohibiting corporate
expenditures in ballot-issue campaigns. Id. at 767, 98 S. Ct. 1407. However, the Court stated
that people “may consider, in making their judgment, the source and credibility of the advocate
. . . . Identification of the source of advertising may be required as a means of disclosure, so that
the people will be able to evaluate the arguments to which they are being subjected.” Id. at 79192, 792 n.32, 98 S. Ct. 1407.

13

Second, in Citizens Against Rent Control v. City of Berkely, 454 U.S. 290, 102 S. Ct.
434, 70 L. Ed. 2d 492 (1981), the Court invalidated a municipal ordinance setting a cap on
contributions to committees supporting or opposing ballot measures. Id. at 291-94, 102 S. Ct.
434. The Court concluded that the cap was not necessary because another provision in the
ordinance mandated disclosure, stating, “The integrity of the political system will be adequately
protected if contributors are identified in a public filing revealing the amounts contributed; if it is
thought wise, legislation can outlaw anonymous contributions.” Id. at 299-300, 102 S. Ct. 434.
Third, in Buckley v. American Const. Law Found., Inc., 525 U.S. 182, 119 S. Ct. 636,
142 L. Ed. 2d 599 (1999) (Buckley II), the Court invalidated a Colorado statute requiring the
disclosure of the names of paid initiative circulators and the amount paid to each circulator.
However, the Court, remarking on requirements that were not being challenged, stated:
We explained in [Buckley I] that disclosure provides the electorate with
information “as to where political campaign money comes from and how it is
spent,” thereby aiding electors in evaluating those who seek their vote. We
further observed that disclosure requirements “deter actual corruption and avoid
the appearance of corruption by exposing large contributions and expenditures to
the light of publicity. . . . In this regard, the State and supporting amici stress the
importance of disclosure as a control or check on domination of the initiative
process by affluent special interest groups. . . . Disclosure of the names of
initiative sponsors, and of the amounts they have spent gathering support for their
initiatives, responds to that substantial state interest. . . . Through the disclosure
requirements that remain in place, voters are informed of the source and amount
of money spent by proponents to get a measure on the ballot; in other words,
voters will be told who has proposed a measure and who has provided funds for
its circulation.
Id. at 202-03, 119 S. Ct. 636 (citations, brackets, and internal quotation marks omitted).
Persuasively, the Eleventh Circuit recently joined the ranks of courts recognizing the
informational interest justification for ballot initiatives. Worley v. Florida Secretary of State,
717 F. 3d 1238, 1249 (11th Cir. 2013); see also Family PAC v. McKenna, 685 F.3d 800, 803-14
(9th Cir. 2012); Nat’l Org. for Marriage, Inc. v. McKee (McKee II), 669 F.3d 34, 39-41(1st Cir.
14

2012); Nat’l Org for Marriage, Inc v. McKee (McKee I), 649 F.3d 34, 41-44, 55-61 (1st Cir.
2011). There, the court considered, and rejected, many of the arguments presented by Plaintiffs
here.

See id. at 1247-1249.

Relying principally on the aforementioned Supreme Court

precedent, the Eleventh Circuit concluded that “promoting an informed electorate in a ballot
issue election is a sufficiently important governmental interest to justify” the imposition of
political committee regulations. Id. at 1249. Based on both Supreme Court precedent and
persuasive Circuit Court precedent, this Court determines that promoting an informed electorate,
even in regard to constitutional ballot measures, is a sufficiently important governmental interest.
C. Substantial Relation
As articulated in the Court’s previously entered order, when evaluating the substantial
relation between the State’s interest and the measures imposed to achieve that interest, the Court
must assess the “fit” between the two. See Canyon Ferry Road Baptist Church of East Helena v.
Unsworth, 556 F.3d 1021, 1034 (9th Cir. 2009). This inquiry is “one of degree, not kind, for it is
well established that, in the ordinary case, a state informational interest is sufficient to justify the
mandatory reporting of expenditures and contributions in the context of ballot initiatives.” Id.
(citing Alaska Right to Life Comm. v. Miles, 441 F.3d 773, 789-92 (9th Cir. 2006); Cal. Pro-Life
Council, Inc. v. Randolph, 507 F.3d 1172, 1189 (9th Cir. 2007) (CPLC II)).
Plaintiffs argue that “no informational interest can exist at the point that Mississippi
imposes [its registration, reporting, and disclosure] burdens.” In other words, Plaintiffs argue
that the statutes’ threshold amount for registration and disclosure of anything greater than $200 is
too low compared to the burdens the subsequent requirements impose.
The disagreement between the parties in regard to the “fit” largely boils down to just how
exacting the Court’s scrutiny should be. Mississippi argues that the “fit” or substantial relation

15

should be considered only in regard to the State’s informational interest in general. In terms of
the degree to which that interest may vary based on the size of respective associations,
Mississippi contends that the Court should only weigh the legislature’s threshold determination
under the lens of “wholly without rationality” review. Stated another way, Mississippi argues
that exacting scrutiny should apply to the scheme generally, but complaints regarding the
legislature’s threshold determination for which groups are regulated should only be secondguessed if that determination was “wholly without rationality.” Plaintiffs, on the other hand,
argue that this approach completely defangs the exacting scrutiny framework, converting the
inquiry into merely a rational basis analysis and precluding small groups from adequately raising
an as-applied challenge.
In support of the State’s proposed “wholly without rationality” standard, Defendants
point primarily to the First Circuit’s analysis in McKee I.

There, the court gave extensive

attention to the Supreme Court’s decision in Buckley I , and noted that “[f]ollowing [Buckley I],
we have granted ‘judicial deference to plausible legislative judgments’ as to the appropriate
location of a reporting threshold, and have upheld such legislative determinations unless they are
‘wholly without rationality.’”

McKee I, 649 F. 3d at 60 (internal citations omitted).

Accordingly, the court found that the particular threshold amount at issue was not “wholly
without rationality” and was thus constitutional. Id. at 61.
In Buckley I, however, the Supreme Court considered whether a $10 record keeping
threshold and a $100 disclosure threshold were sufficient to survive constitutional scrutiny in the
face of an overbreadth challenge. Buckley I, 424 U.S. at 82-83, 96 S. Ct. 612. The Court stated:
The $10 and $100 thresholds are indeed low. Contributors of relatively small
amounts are likely to be especially sensitive to recording or disclosure of their
political preferences. These strict requirements may well discourage participation
by some citizens in the political process, a result that Congress hardly could have
16

intended. Indeed, there is little in the legislative history to indicate that Congress
focused carefully on the appropriate level at which to require recording and
disclosure. Rather, it seems merely to have adopted the thresholds existing in
similar disclosure laws since. But we cannot require Congress to establish that it
has chosen the highest reasonable threshold. The line is necessarily a judgmental
decision, best left in the context of this complex legislation to congressional
discretion. We cannot say, on this bare record, that the limits designated are
wholly without rationality.
Id. at 83, 96 S. Ct. 612 (emphasis added). Unfortunately, however, Buckley I does not
necessarily provide binding precedent for the present case.

Notably, the challenge to the

reporting requirements considered in Buckley I was an overbreadth challenge, unlike the asapplied challenge raised here. Indeed, under the overbreadth doctrine, “a statute is facially
invalid if it prohibits a substantial amount of protected speech.” United States v. Williams, 553
U.S. 285, 292, 128 S. Ct. 1830, 170 L. Ed. 2d 650 (2008) (emphasis added). Significantly,
“invalidating a law that in some of its applications is perfectly constitutional . . . has obvious
harmful effects” and its application subsequently requires that the “statute’s overbreadth be
substantial, not only in an absolute sense, but also relative to the statute’s plainly legitimate
sweep.” Id., 128 S. Ct. 1830. Stated alternatively, “[i]nvalidation for overbreadth is strong
medicine that is not to be casually employed.” Id. at 293.
Although neither is invalidation under the exacting scrutiny framework “to be casually
employed,” courts have remained ardent that exacting scrutiny is “more than a rubber stamp.”
Worley, 717 F.3d at 1249 (quoting Minnesota Citizens Concerned for Life v. Swanson, 692 F.3d
864, 876 (8th Cir. 2012)). Under exacting scrutiny, the Court has “closely scrutinized disclosure
requirements,” demanding that “the strength of the governmental interest…reflect the
seriousness of the actual burden on First Amendment rights. Davis v. Fed. Election Comm’n,
554 U.S. 724, 744, 128 S. Ct. 2759, 171 L. Ed. 2d 737 (2008). The Court has showed no
hesitancy in striking down impermissible constitutional infringements under such review. See
17

Minn. Citizens, 692 F.3d at 875 (collecting cases and noting that although possibly less rigorous
than strict scrutiny, “[t]he Supreme Court has not hesitated to hold laws unconstitutional under
[exacting scrutiny].”). Thus, without additional guidance from the Fifth Circuit, this Court is
hesitant to simply import the more deferential overbreadth framework into the exacting scrutiny
context.
Persuasively, both the Tenth and Eleventh Circuits recently subjected even the monetary
threshold registration requirements of two voter initiative statutes to exacting scrutiny, declining
to extend the “wholly without rationality” standard of review to the legislatures’ threshold
determination. See Sampson v. Buescher, 625 F.3d 1247, 1247 (10th Cir. 2010); Worley, 717
F.3d at 1238.
Illustratively, in Sampson v. Buescher, the court considered an as-applied challenge to
Colorado’s campaign committee requirements mandating that groups seeking to support or
oppose a ballot issue register and report as a political committee. 625 F.3d at 1249. There, state
law required registration once the organization had raised or expended in excess of $200. Id.
Such registration required the committee to identify the name of the committee, the name of a
registered agent, the committee’s address and telephone number, the identities of all affiliated
candidates or committees, and the purpose or nature of the committee. Id. at 1250. The
committee was further required to maintain a separate checking account, report the names and
addresses of persons who contributed twenty dollars or more, and include the employer and
occupation for anyone contributing one hundred dollars or more. Id.
The plaintiffs at issue had raised less than one thousand dollars in monetary and in-kind
contributions. Id. at 1249. The court ultimately concluded that “[t]here is virtually no proper
governmental interest in imposing disclosure requirements on ballot-initiative committees that

18

raise and expend so little money, and that limited interest cannot justify the burden that these
requirements impose on such a committee.” Id. Although the court downplayed the significance
of the state’s informational interest in the ballot initiative context, the court ultimately assumed
such an interest at least existed. Id. at 1259 (concluding that although attenuated, “there is a
legitimate public interest in financial disclosure from campaign organizations.”).
The court therefore carefully balanced the burdens of the thorough regulatory scheme,
placing particular emphasis in the Supreme Court’s admonition that “[p]rolix laws chill speech
for the same reason that vague laws chill speech: People of common intelligence must
necessarily guess at the law’s meaning and differ as to its application.” Id. (quoting Citizens
United, 558 U.S. at 324, 130 S. Ct. at 889). Accordingly, the court noted that the contributions at
issue were “sufficiently small that they say little about the contributors’ views of their financial
interest in the [ballot] issue.” Id. at 1260. Juxtaposed with the burden imposed by such
requirements, the court found that “the financial burden of state regulation on [p]laintiffs’
freedom of association approache[d] or exceede[d] the value of their financial contributions to
their political effort; and the governmental interest in imposing those regulations [was] minimal,
if not nonexistent, in light of the small size of the contributions.” Id. at 1261. Thus, the court
found that the burden imposed by the scheme could simply not be constitutionally borne by the
limited value of such information. Id.
Similarly, the Eleventh Circuit recently considered a similar disclosure scheme in
Worley.

717 F. 3d at 1249. Notably, the Eleventh’s Circuit decision in Worley was handed

down well after this Court’s Memorandum Opinion on Plaintiffs’ motion for a temporary
restraining order and preliminary injunction entered November 3, 2011. There, the Eleventh
Circuit considered a facial challenge to Florida’s political committee requirements, which, in

19

pertinent part, requires persons raising or expending in excess of five hundred dollars annually to
register and report as a political committee. Id. Once registered, Florida political committees are
required to appoint a treasurer and establish a campaign depository, make all expenditures by
check, keep detailed records, file regular reports itemizing contributions and expenditures,
submit to random audits, and maintain records for at least two years following the pertinent
election. Id. at 1241.
Although the court ultimately held that the statutory framework withstood constitutional
scrutiny, the court subjected it, including the monetary threshold, to exacting scrutiny. Id. at
1251 (“While we hold that the disclosure scheme survives exacting scrutiny, we nevertheless
find the [First Circuit’s “wholly without rationality” discussion] assessing disclosure thresholds
to be instructive.”). Further, however, the court noted that such deference was particularly
applicable in facial challenges to such statutes. Id.
This Court is particularly persuaded by the Eleventh Circuit’s recent announcement in
Worley, and finds significant the court’s refusal to adopt the “wholly without rationality” step
within the larger exacting scrutiny framework. Id. Additionally, the Court is mindful that while
the Eleventh Circuit articulated that the discussion regarding disclosure thresholds in McKee I
was “instructive,” the Eleventh Circuit cautioned that the scheme presently before it survived
“exacting scrutiny.” Id. Thus, in considering Plaintiffs’ as-applied challenge, this Court now
considers whether Mississippi’s interest in the registration and reporting requirements
constitutionally carry the regulatory burden the requirements likewise impose on individuals and
groups such as the Plaintiffs here.

20

1. Political Committee Registration Requirement
Even granting leeway to the State and assuming that only Chapter 17 applies to persons
and groups attempting to support or oppose constitutional ballot measures, Mississippi law
compels groups to commence filing financial reports with the Mississippi Secretary of State as
soon as they receive contributions or make expenditures in excess of $200. MISS. CODE ANN. §
23-17-49(1). In conjunction with that requirement and within ten days of crossing the $200
threshold, those political committees must file a statement of organization and include the name
and address of the committee and all officers, indicate the name of the director of the committee
and the treasurer, and set forth a brief statement identifying the measure that the committee seeks
to pass or defeat. Id. at § 23-17-49(1)-(2).
Chapter 17 committees must then file monthly reports with the Secretary of State until all
contributions and expenditures cease. Id. at § 23-17-51(3). Those reports must include detailed
information regarding both the committee’s funding sources and organizations which receive
disbursements from the committee. Id. at § 23-17-53(a)-(b). Additionally, they must also
include the totals for the committee’s cash on hand and cash equivalents. Id.
As noted above, the Tenth Circuit was confronted with a similar disclosure scheme.
Sampson, 625 F.3d at 1249-1250. Again, there, Colorado law converted any group that had as
its major purpose supporting or opposing a ballot measure and accepted contributions or made
expenditures in excess of $200 into an issue committee. Id. Issue committees were thereafter
required to file a statement of registration, were required to open and maintain a separate bank
account, and were prohibited from expending or accepting in excess of $100 in cash. Id. at 1249.
They were required to report all contributions and expenditures, including the name and address

21

for persons contributing $20 or more and the occupation and employer for persons contributing
$100 or more. Id.
The Colorado plaintiffs were an informal association of neighbors opposed to the
annexation of their unincorporated residential development. Id. In their attempt to campaign
against annexation, the plaintiffs wrote letters, distributed flyers, and printed “No Annexation”
signs. Id. at 1251. In all, the committee expended approximately $782.02 for signs, a banner,
post cards, and postage. Id. at 1254. In gauging the “fit” between Colorado’s interest in the
disclosure requirements and the burden absorbed by plaintiffs, the court noted that the funds at
issue were “sufficiently small that they say little about the contributors’ views of their financial
interest” in the substantive ballot measure. Id. at 1261. Weighing the respective interests
further, the court held that “the financial burden of state regulation on Plaintiffs’ freedom of
association approaches or exceeds the value of their financial contributions to their political
effort; and the governmental interest in imposing those regulations is minimal, if not nonexistent,
in light of the small size of the contributions.” Id.
Moreover, in Canyon Ferry, the Ninth Circuit held even under a more lenient wholly
without rationality analysis that Montana’s zero-dollar threshold for disclosure was
unconstitutional as applied to in-kind de minimis contributions. 556 F.3d at 1034. There, under
Montana law, “a political committee that is not specifically organized or maintained for the
primary purpose of influencing elections but that may incidentally become a political committee
by making a contribution or expenditure to support or oppose a candidate and/or issue” was
deemed an “incidental committee.” Id. at 1026. Incidental committees were thereafter required
to report all transactions that were contributions or expenditures and were made in connection
with a statewide issue. Id. at 1027.

22

The plaintiffs in that case were members of a church that had sought to express support
for an amendment to the Montana constitution. Id. at 1024. In furtherance of that aim, church
members printed out the petition and made copies on the church’s copy machine, placed copies
of the petition in the church foyer, distributed flyers, advertised the screening of a simulcast
event through public service announcements on local radio stations, and aired the simulcast
program at a church service. Id.
In analyzing the challengers’ claim that the scheme violated the First Amendment, the
court noted that “in the ballot issue context, the relevant informational goal is to inform voters as
to ‘who backs or opposes a given initiative’ financially, so that others will ‘have a pretty good
idea of who stands to benefit from the legislation.’” Id. at 1032. Further, “[a]s a matter of
common-sense, the value of this financial information to the voters declines drastically as the
value of the expenditure or contribution sinks to a negligible level.” Id. at 1033. Articulating
that if even the Supreme Court’s rationality test “for disclosure levels has any force at all, there
must be a level below which mandatory disclosure of campaign expenditures by incidental
committees’ runs afoul of the First Amendment,” the court held that the requirements
impermissibly infringed upon the group’s free speech rights. Id. at 1034.
Turning to the case at hand, the Court finds that Mississippi’s requirements for groups
raising or expending in excess of $200 are too burdensome. Even under the State’s now
enunciated view of the regulatory scheme, as soon as informal associations in Mississippi accept
or expend funds in excess of $200, they are compelled to form a political committee and file a
statement of organization with the Mississippi Secretary of State. Having crossed that threshold,
the committee takes on monthly reporting obligations that are not extinguished until the
committee no longer receives funds or makes expenditures. Further, although the State contends

23

that the required forms are neither complex nor difficult to complete, the Court finds significant
the fact that the forms do not comport with the statutes at issue. Thus, even if a potential
advocate follows the state’s own instructions, he or she might nonetheless be fearful of a failure
to comport.
Although the State attempts to assuage the issue by ensuring that its enforcement is lax,
the statute’s plain wording presents no such gentle assurances. The statute imposes significant
criminal penalties for violators, including both monetary penalties and jail time. Additionally,
despite the fact that the Secretary of State has published a number of informational handbooks
and pamphlets to attempt to assist potential speakers in achieving compliance, those sources
leave many of the aforementioned ambiguities unresolved. That published guidance primarily
reiterates the importance of complying with the applicable requirements, emphasizing that
“[i]nitiative sponsors and all individuals active in the initiative process must become familiar
with the various laws regarding the conduct and regulation of elections.”

Constitutional

Initiative in Mississippi: A Citizen’s Guide 11 (2009). Moreover, the published guidance plainly
articulates, “[e]ngaging in prohibited or illegal campaign practices can lead to criminal
prosecution and other liability.” Id. According to the statute’s text, “[a]ny violation of Sections
23-17-49 through 23-17-59 is punishable by imprisonment in the county jail for not more than
one (1) year, or a fine not to exceed ($1,000), or by both such fine and imprisonment.” MISS.
CODE ANN. § 23-17-61.
Finally, the Court finds that the overlapping requirements of Chapter 15 and Chapter 17
indeed serve to add to the burden on potential speakers. Despite the fact that the State contends
only Chapter 17 applies, the language of the statute reveals no such caveat, and the parties have
been unable to point the Court to any judicial decisions confirming that position as a reality.

24

Moreover, the Court places weight in the simple fact that the Secretary of State’s published
guidance fails to preclude application of Chapter 15 to persons attempting to influence
constitutional ballot initiatives.

See Campaign Finance Guide: Ensuring Compliance and

Improving Disclosure 12 (2010) (explaining that “[a] political committee is any committee,
party, club, association, political action committee, or other group that makes contributions or
disbursements of more than $200 aggregate in a calendar year toward influencing or attempting
to influence voters.”). Although the Chapter 17 political committee guidance cross-references
only the punitive section of Chapter 15, the guide explicitly disclaims any reliance on that
publication to avoid prosecution. It states, “[t]his guide is for general information purposes
only. Initiative sponsors should review the constitutional and statutory provisions related to
Mississippi’s constitutional initiative and the relevant case law.” Constitutional Initiative in
Mississippi: A Citizen’s Guide 11 (emphasis added); see also id. at 10 (“No attempt to include
all campaign finance disclosure requirements is made in this publication. Refer to the law in
Miss. Code Ann. §§ 23-17-47 through 23-17-53 (1972) and Miss. Code Ann. §§ 23-15-801
through 23-15-815.”) (emphasis added).4
The Court finds it extraordinarily significant, and frankly disconcerting, that the
requirements Plaintiffs are indeed subjected to cannot be simply ascertained from a plain reading
of the respective statutes, or even from the State’s published guidance. Indeed, the State’s best
argument for the sole application of Chapter 17 is that the Court should turn to the canons of

4

In the State’s supplemental memorandum submitted following the motion for summary
judgment hearing, the State contends that “[g]iven that no state court has found the Secretary’s
forms to be inconsistent with state law, any argument . . . that the Secretary was acting
inconsistently with state law would, at best, create a question regarding uncertain state election
law warranting abstention.” Notably, this Court does not find that that Secretary’s forms do not
comply with state law, only that, unlike the State contends, the forms do not establish that the
statutory framework is simple and straightforward.
25

construction to determine whether Plaintiffs such as these are regulated by the duplicitous, yet
distinctive requirements of both Chapters 15 and 17. As pointed out by Plaintiffs, however,
resort to a canon of statutory construction presupposes that the statute’s meaning is not readily
ascertainable from a plain reading of the text. See Bates v. United States, 522 U.S. 23, 29, 118
S. Ct. 285, 139 L. Ed. 2d 215 (1997) (instructing that courts “ordinarily” should “resist reading
words or elements into a statute that do not appear on its face.”). In Sampson, the Tenth Circuit
plainly emphasized that,
[t]he average citizen cannot be expected to master on his or her
own the many campaign financial-disclosure requirements set forth
in Colorado’s constitution, the Campaign Act, and the Secretary of
State’s Rules Concerning Campaign and Political Finance. Even if
those rules that apply to issue committees may be few, one would
have to sift through them all to determine which apply.
625 F.3d at 1259-1260. In observing that such groups might well be required to consult an
attorney, and that the cost of those attorneys’ fees might well significantly overshadow the
amount such groups initially intended to even spend, the Tenth Circuit took notice of the
Supreme Court’s admonition in Citizens United that “[t]he First Amendment does not permit
laws that force speakers to retain a campaign finance attorney, conduct demographic marketing
research, or seek declaratory rulings before discussing the most salient political issues of our
day.”). Id. at 1260 (quoting Citizens United, 558 U.S. at 324, 130 S. Ct. at 889).
Where, as here, potential speakers might well require legal counsel to determine which
regulations even apply, above and beyond how to comport with those requirements, the burdens
imposed by the State’s regulations are simply too great to be borne by the State’s interest in
groups raising or expending as little as $200.5 Contrary to the State’s contention that Plaintiffs

5

The State’s supplemental memorandum also makes reference to the potential need for Pullman
abstention. Despite the late nature of the argument, the Court considers and rejects its
26

here failed to allege confusion regarding the potential dual application of the State’s regulations,
even the Plaintiffs’ verified complaint averred, “[t]he burden of complying with Mississippi’s
regulations is compounded by the fact that there are multiple statutes contained in different
sections of the Mississippi Code that one has to wade through to figure out all the relevant
registration, reporting, and disclosure obligations.” Unlike the regulatory scheme confronted by
the Eleventh Circuit in Worley where Florida’s laws required “little more if anything that a
prudent person or group would do in these circumstances anyway,” Worley, 717 F.3d at 1250,
Mississippi’s requirements are such that a prudent person might have extraordinary difficulty
merely determining what is required. The Plaintiffs averments here indeed confirm that
possibility as a reality.
As held by numerous circuits, in the context of a ballot-initiative, the State’s interest is
limited to the informational interest. That interest, in turn, is proportionately related to the
amount spent or raised by Plaintiffs in furtherance of their speech. Sampson, 625 F.3d at 1259
(“while assuming that there is a legitimate public interest in financial disclosure from campaign
organizations, we also recognize that this interest is significantly attenuated when the
organization is concerned with only a single ballot issue and when the contributions and
expenditures are only slight.”). Here, the State places significant and onerous burdens on
persons attempting to join together to raise or expend in excess of just $200. The Plaintiffs at

applicability. To invoke Pullman, the issue before the court must “involve (1) a federal
constitutional challenge to state action and (2) an unclear issue of state law that, if resolved,
would make it unnecessary for us to rule on the federal question.” Moore v. Hosemann, 591 F.
3d 741, 745 (5th Cir. 2009) (internal citations omitted). Stated another way, “generally, Pullman
abstention is appropriate only when there is an issue of uncertain state law that is fairly subject to
an interpretation [by a state court] which will render unnecessary or substantially modify the
federal constitutional question.” Id. Although the Court determines that the overlap between
Chapters 15 and 17 increases the hardship placed on Plaintiffs, the Court finds the regulatory
burdens too significant for the limited amount of speech involved here irrespective of any
potential state rulings on the precise statutory applicability.
27

issue sought to place a newspaper advertisement in the local paper, distribute flyers, and
purchase posters in support of a constitutional ballot measure, but were dissuaded by the burden
of the State’s requirements. Simply put, as applied to a small group attempting to expend
minimal funds in support of their grass-roots campaign effort, the State’s requirements,
particularly coupled with the confusion surrounding those requirements, unconstitutionally
infringe upon the First Amendment.
2. Individual Reporting Requirement
Plaintiffs next likewise challenge the reporting requirements placed on individuals
essentially making independent expenditures in an attempt to influence the passage or defeat of
constitutional ballot measures. Assuming initially that only Chapter 17 applies to individual
persons expending in excess of $200 for the purpose of influencing the passage or defeat of a
constitutional measure, such individuals are still faced with substantive requirements and
potential penalties. As previously articulated, individuals expending in excess of $200 must file
a report initially identifying the person’s name, address, and telephone number. MISS. CODE
ANN. § 23-17-51(2); MISS. CODE ANN. § 23-17-53(a). Further, they must provide the total
amount of expenditures made during the covered monthly period, the cumulative total expended
in support or opposition of that measure, and the name, street address, and amount of
contribution for each person to whom a disbursement of greater than $200 was made. MISS.
CODE ANN. §§ 23-17-53(c)(i)-(iii). Finally, despite the fact that it is a person’s expenditures
rather than acceptance of contributions that triggers the reporting requirement, individual persons
must also include “[t]he total amount of contributions received during the period covered by the
financial report, the cumulative amount of that total for each measure, and the name and street
address of each person who contributed more than [$200] and the amount contributed.” Id. at §

28

23-17-53(c)(iv). Once again, those reports must continue to be filed until “all contributions and
expenditures cease.” Id. at § 23-17-51(3).
Although individuals expending in excess of $200 are not required to file a statement of
organization as they are not actually converted into a political committee, the Secretary of State’s
guidance makes no such distinction. Instead, it instructs:
Any person or group which accepts contributions or makes
expenditures for or against an initiative . . . and those contributions
or expenditures TOTAL more than $200 must register with the
Secretary of State.
This registrations is accomplished by
completing and filing with the Secretary of State a form entitled
“Statement of Organization for a Political Committee.” Regardless
of what a person or group calls itself, if it accepts enough
contributions to total over $200, OR it spends over $200 on the
initiative campaign, it must file the statement of organization and
monthly financial reports. Failing to do so results in fines of $50
per day and exposes the committee or individual to possible
criminal prosecution.
Constitutional Initiative in Mississippi: A Citizen’s Guide 11.
In addition to the less than cohesive guidance issued in regard to Chapters 17’s textual
requirements, would-be individual speakers must also at least initially examine Chapter 15 to
ensure their conduct comports with that Chapter as well. Although Mississippi now reassures
that only Chapter 17 applies, the Secretary of State’s guidance once again reiterates, “[n]o
attempt to include all campaign finance disclosure requirements is made in this publication.
Refer to the law in Miss. Code Ann. §§ 23-17-47 through 23-17-53 (1972) and Miss. Code Ann.
§§ 23-15-801 through 23-15-815.” Id. at 10 (emphasis added).
Under Chapter 15, individuals are potentially governed under the independent
expenditure provision. MISS. CODE ANN. § 23-15-809. That section provides that “[e]very
person who makes independent expenditures in an aggregate amount or value in excess of [$200]
during a calendar year shall file a [financial statement including the information required of
29

political committees].”

Id.

However, the independent expenditure provision goes on to

articulate that those reports are required to include “information indicating whether the
independent expenditure in support of, or in opposition to, the candidate involved.” Miss. Code
Ann. § 23-15-809 (a). Thus, it seems possible that such reports may not ultimately be required in
the context of constitutional initiatives on that ground alone. Nonetheless, navigating through
the law certainly serves to increase the statutory burden placed on persons attempting to expend
funds in support or opposition to a measure.
Once again, based on the minute level of speech involved, Mississippi’s scheme is simply
too burdensome to be carried by the State’s informational interest in individual speakers
attempting to expend in excess of only $200. The potentially applicable statutory provisions
present a myriad of pitfalls for the unwary, requiring in-depth analysis to determine which law
applies, and then what the law requires and what it does not. Further, the Secretary of State’s
guidance provides no relief; it at times further obfuscates the requirements, but never provides
substantial clarification that might preclude the State’s potential avenues of enforcement. Thus,
the Court finds that Mississippi’s informational interest in persons expending $200 is too limited
to carry the burden imposed by those regulations. The Court therefore finds that Mississippi’s
current filing requirements are unconstitutional as applied to individual persons seeking to
expend just over $200 in support or opposition to constitutional measures.
3. Individual and Political Committee Reporting and Recording Obligations
Moreover, Plaintiffs also challenge a number of recording and reporting obligations
imposed on political committees and individuals who raise or expend in excess of $200 to
support or oppose a ballot initiative. Specifically, Plaintiffs challenge Mississippi Code § 23-1749(2)(a), which requires that political committees disclose the name and addresses of their

30

officers, and Mississippi Code § 23-17-53(a), which requires that individuals expending in
excess of $200 provide his or her name, address, and telephone number. Additionally, Plaintiffs
attack Mississippi Code § 23-17-53(b)(vii), which requires, in part, that political committees
disclose the name and street address of each person from whom a contribution in excess of $200
was received during the covered period.
However, because the Court determines that groups and individuals, such as Plaintiffs
here, who seek to expend just in excess of $200 in support or opposition of a ballot measure
cannot constitutionally be subjected to Mississippi’s current individual and political committee
reporting requirements, the Court need not reach this contention. As articulated by the Supreme
Court, “[e]mbedded in the traditional rules governing constitutional adjudicating is the principle
that a person to whom a statute may constitutionally be applied will not be heard to challenge
that statute on the ground that it may conceivably be applied unconstitutionally to others, in other
situations not before the [c]ourt.” Broadrick v. Oklahoma, 413 U.S. 601, 611, 93 S. Ct. 2908, 37
L. Ed. 2d 830 (1973). Likewise, “[a] closely related principle is that constitutional rights are
personal and may not be asserted vicariously.”

Id., 93 S. Ct. 2908 (citing McGowan v.

Maryland, 366 U.S. 420, 429-30, 81 S. Ct. 1101, 6 L. Ed. 2d 393 (1961)).
Under the overbreadth doctrine, and in the unique context of the First Amendment, those
traditional standing requirements may be relaxed to permit litigants to “challenge a statute not
because their own rights of free expression are violated, but because of a judicial prediction or
assumption that the statute’s very existence may cause others not before the court to refrain from
constitutionally protected speech or expression.” Id. at 612. The Plaintiffs here, however, have
remained ardent that they are challenging Mississippi’s regulations as they apply only to the
present Plaintiffs and to similar small groups or individuals. In Plaintiffs’ recent Notice of

31

Supplemental Authority, for instance, Plaintiffs articulated that a recently issued opinion “should
not affect this Court’s analysis of the Plaintiffs’ as-applied challenge.” Additionally, Plaintiffs’
have specifically disavowed that they are bringing an overbreadth challenge, stating, “Plaintiffs
are not, of course, making an overbreadth argument, they are making an as-applied challenge.”
The challenge to Mississippi’s requirements regarding what political committees and individuals
must actually report is therefore left for another day, to potentially be brought by a group that is
governed by the substantive reporting and recording obligations Mississippi imposes on political
committees and individuals receiving or expending higher amounts.
III. Motion to Strike and Motion to Exclude
Finally, the Court turns to Defendants’ Motion to Exclude and Motion to Strike. In
particular, Defendants’ Motion to Exclude seeks to preclude the expert opinion of David Primo.
Defendants’ Motion to Strike, on the other hand, seeks to bar the eighty-four paragraph
declaration of Diana Stimpson, on grounds that she was not disclosed as a witness and her
declaration would not qualify as a permissible summary under Rule 1006. The Court has
considered all of the aforementioned arguments, however, and has determined that summary
judgment is due in favor of Plaintiffs irrespective of any rulings on those motions. Therefore,
Defendants’ Motion to Exclude [46] and Motion to Strike [53] are deemed moot.
CONCLUSION
For the foregoing reasons, the Court determines that the regulations Mississippi currently
places on individuals and groups seeking to raise or expend in excess of $200 in support or
opposition of a constitutional ballot measure do not survive exacting scrutiny under the First
Amendment. Significantly, the Court does not hold that Mississippi may not regulate individuals
and groups attempting to influence constitutional ballot measures. Instead, the Court holds only

32

that under the current regulatory scheme, which is convoluted and exacting, the requirements are
too burdensome for the State’s $200 threshold. The Court finds that the $200 threshold is simply
too low for the substantial burdens that the statute imposes on groups and individuals. Thus, as
applied to Plaintiffs, the State’s group registration and individual reporting requirements are
unconstitutional. Accordingly, the Court grants in part and denies in part Plaintiffs’ Motion for
Summary Judgment [42], denies Defendants’ Motion for Summary Judgment [44], and finds
Defendants’ Motion to Exclude [46] and Defendants’ Motion to Strike [53] moot.
SO ORDERED, this the 30th day of September, 2013.
/s/ Sharion Aycock_________
U.S. DISTRICT JUDGE

33