Argued October 28, 2014.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE. (D.C. Civ. No. 1-13-cv-01746). District Judge: Honorable Sue L. Robinson.
Jonathan G. Cedarbaum, Esq. [ARGUED], Seth P. Waxman, Esq., Wilmer Hale, Washington, DC; Joseph C. Handlon, Esq., Aleph A. Woolfolk, Esq., Delaware Department of Justice, Wilmington, DE, Counsel for Appellant.
Allen J. Dickerson, Esq. [ARGUED], Zachary R. Morgan, Esq., Center for Competitive Politics, Alexandria, VA; David E. Wilks, Esq., Wilks, Lukoff & Bracegirdle, Wilmington, DE, Counsel for Appellee.
David B. Hird, Esq., Weil, Gotshal & Manges, Washington, DC, Counsel for Amicus Appellants League of Women Voters of Delaware and Common Cause.
James Bopp., Jr., Esq., James Madison Center for Free Speech, Terre Haute, IN; Randy Elf, Esq., James Madison Center for Free Speech, Lakewood, NY, Counsel for Amicus Appellee James Madison Center for Free Speech.
Heidi K. Abegg, Esq., Webster, Chamberlain & Bean, Washington, DC, Counsel for Amicus Appellees United States Constitutional Rights Legal Defense Fund and National Right to Work Committee.
Before: MCKEE, Chief Judge, GREENAWAY, JR., and KRAUSE, Circuit Judges.
GREENAWAY, JR., Circuit Judge.
This case requires us to decide whether the Delaware Elections Disclosure Act (the " Act" ) is constitutional as applied to a 2014 Voter Guide (" Voter Guide" ) that Appellee Delaware Strong Families (" DSF" ) intended to produce and distribute. DSF's Complaint seeks a declaratory judgment that the Act's disclosure provisions are unconstitutional and a preliminary injunction preventing enforcement of the Act. The United States District Court for the District of Delaware (" District Court" ) granted the preliminary injunction declaring that the Act's disclosure requirements are unconstitutional. Because the Act is narrowly tailored and not impermissibly broad we will reverse the District Court and remand for entry of judgment in favor of Appellants.
On October 23, 2013, DSF filed a Complaint alleging both facial and as-applied challenges to the Act. DSF planned to distribute the 2014 Voter Guide over the internet within sixty days of Delaware's general election and planned to spend more than $500 on its creation and distribution. The State of Delaware (" State" ) filed an answer and issued various discovery requests. DSF moved for a protective order and preliminary injunction. The District Court denied DSF's motion for a protective order and instructed the parties to submit briefs addressing whether the Act is constitutional. J.A. 5-6. On March 31, 2014, Judge Robinson issued an opinion granting a preliminary injunction against Appellants and, on April 8, 2014, entered an order granting DSF's motion for a preliminary injunction. Id. at 4. This appeal followed.
In 2012, DSF disseminated its 2012 Voter Guide without having to disclose its donors. However, enactment of the Act on January 1, 2013, changed the relevant disclosure requirements. The Act requires " [a]ny person . . . who makes an expenditure for any third-party advertisement that causes the aggregate amount of expenditures for third-party advertisements made by such person to exceed $500 during an election period [to] file a third-party advertisement report with the Commissioner." 15 Del. C. § 8031(a).
The Act defines a " third-party advertisement" in part as " an electioneering communication." Id. § 8002(27). An electioneering ...