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Justice v. Hosemann

United States Court of Appeals, Fifth Circuit

November 14, 2014

DELBERT HOSEMANN, in his official capacity as Mississippi Secretary of State; JAMES M. HOOD, III, in his official capacity as Attorney General of the State of Mississippi, Defendants -- Appellants

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Appeal from the United States District Court for the Northern District of Mississippi.

For Gordon Vance Justice, Jr., Sharon Bynum, Matthew Johnson, Alison Kinnaman, Stanley O'Dell, Plaintiffs - Appellees: Paul Vincent Avelar, Institute for Justice, Tempe, AZ; Russell Latino III, Esq., Wells, Marble & Hurst, P.L.L.C., Ridgeland, MS; Diana Kaye Simpson, Esq., Institute for Justice, Arlington, VA.

For DELBERT HOSEMANN, in his official capacity as Mississippi Secretary of State, JAMES M. HOOD, III, in his official capacity as Attorney General of the State of Mississippi, Defendant - Appellant: Harold Edward Pizzetta III, Esq., Special Attorney to the Attorney General, Office of the Attorney General for the State of Mississippi - Civil Litigation, Jackson, MS.

For Campaign Legal Center, Amicus Curiae: J. Gerald Hebert, Esq., Washington, DC.

For Center For Competitive Politics, Amicus Curiae: Allen Joseph Dickerson, Center for Competitive Politics, Alexandria, VA.

For James Madison Center For Free Speech, Amicus Curiae: Randy Elf, James Madison Center for Free Speech, Lakewood, NY; James Bopp Jr., Esq., Bopp, Coleson & Bostrom, Terre Haute, IN.

Before DAVIS, DENNIS, and COSTA, Circuit Judges.


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GREGG COSTA, Circuit Judge:

Reflecting Justice Brandeis's observation that " [s]unlight is said to be the best of disinfectants," [1] most states require disclosure of financial contributions to political campaigns. Mississippi is one such state. This case involves a challenge to Mississippi's disclosure requirements for ballot initiatives proposing amendments to the state constitution. Plaintiffs are Mississippi citizens who contend that the disclosure requirements impermissibly burden their First Amendment rights. On competing summary judgment motions, the district court agreed with their " as-applied" challenge. It enjoined Mississippi from enforcing the requirements against small groups and individuals expending " just in excess of" Mississippi's $200 disclosure threshold.[2]

Before turning to the substance of Plaintiffs' First Amendment challenge, we must first address the following question: can these particular Plaintiffs--who had no history of contributions and did not identify how much they intended to raise in future ballot initiative cycles--pursue an as-applied challenge as a " small group" that would have spent " just in excess of" $200?


A. Mississippi's Disclosure Requirements

In Mississippi, as in a number of other states, voters can amend their state constitution through ballot initiatives. This initiative process is a rigorous one. To even qualify for the ballot, a petition proposing an initiative must be signed by a number of qualified electors equal to at least 12% of the number of votes cast for all candidates for governor in the most recent gubernatorial election. Miss. Const. art. 15, § 273(3). Once it is in front of the voters, an initiative must receive both a majority of the votes cast for that initiative and 40% of the total votes cast in that election. Miss. Const. art. 15, § 273(7). In 2011, the year Plaintiffs brought this suit, only three constitutional initiatives were placed on the ballot.

Chapter 17 of the Mississippi Code sets out the following disclosure requirements for political committees and individuals who receive or spend money in connection

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with an " amendment to the Mississippi Constitution proposed by a petition of qualified electors." [3] Miss. Code Ann. § 23-17-1(1).

Registration Threshold:

Under Chapter 17, " [a] political committee that either receives contributions or makes expenditures in excess of Two Hundred Dollars ($200.00) shall file financial reports with the Secretary of State." Miss. Code Ann. § 23-17-51(1). This $200 threshold is higher than those that exist in a number of other states. In Washington, for instance, political committees must register on the " expectation of receiving contributions or making expenditures." Wash. Rev. Code Ann. § 42.17A.205. The same is true in Ohio and Massachusetts. See Ohio Rev. Code Ann. § 3517.12(A) (requiring " the circulator or committee in charge of an initiative or referendum petition" to register " prior to receiving a contribution or making an expenditure" ); Mass. Office of Campaign & Pol. Fin., Disclosure and Reporting of Contributions and Expenditures Related to Ballot Questions, at 5 (revised Sept. 19, 2014), available at (groups must register " prior to raising or spending any funds" ). Other states, like Oregon and Montana, require registration upon the first dollar raised. See Or. Rev. Stat. Ann. § 260.118(2) (stating that groups must register " not later than the third business day after a chief petitioner or the treasurer receives a contribution or makes an expenditure relating to the initiative" ); Mont. Code Ann. § 13-37-201 (" A political committee shall file the certification . . . within 5 days after it makes an expenditure or authorizes another person to make an expenditure on its behalf, whichever occurs first." ).

Some states with large populations set the registration bar higher. Texas, for example, requires political committees to designate a treasurer before receiving or expending $500. See Tex. Elec. Code Ann. § 253.031(b). Federal regulations governing political action committees start at a $1,000 threshold. 11 C.F.R. § 100.5(a).

Registration Requirements:

When a group registers as a political committee in Mississippi, it must file a one-page " Statement of Organization" that asks it to list the following: the name and address of the committee; whether it is registered with the Federal Election Commission or authorized by a candidate; its purpose; the names of all officers; and its director and treasurer.[4] The one-page form is less

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onerous than those that exist in some other states. See, e.g., Catholic Leadership Coal. of Tex. v. Reisman, 764 F.3d 409, 440 (5th Cir. 2014) (observing that Texas has a three-page form seeking " basic information" ; the form requires registrants to include the committee's acronym, its campaign treasurer, the person appointing the treasurer, and controlling entity information); Worley v. Cruz-Bustillo, 717 F.3d 1238, 1250 (11th Cir. 2013) (citing Fla. Stat. Ann. § 106.03(1)(a), which requires committees to fill out " four pages of basic information" ); Human Life of Wash. Inc. v. Brumsickle, 624 F.3d 990, 998-99 (9th Cir. 2010) (noting that Washington requires political committees to file a two-page Political Committee Registration Form containing most of the information on Mississippi's forms plus the following: " the ballot proposition or candidate that the committee supports or opposes; how surplus funds will be distributed in the event of dissolution; and the name, address, and title of anyone who works for the committee to perform ministerial functions" ).

Itemization and Reporting Requirements:

In Mississippi, political committees must file monthly reports with the Secretary of State that disclose contributions and expenditures, both monthly and cumulatively. Miss. Code Ann. § § 23-17-51(3), 23-17-53. They also must itemize all contributions from individuals who have contributed $200 or more in a given month and list the donor's name, street address, and date of the donation. Miss. Code Ann. § 23-17-53(b)(vii). These are common reporting requirements, with Mississippi's $200 threshold on the high end of state disclosure laws. In Oregon, for instance, all donations from a single person or committee that aggregate to over $100 in a calendar year must be itemized. Or. Rev. Stat. Ann. § 260.083(1)(a). Montana sets its itemization level at $35, and its form asks for the donor's name, address, occupation, and employer. State of Montana, Form C-6: Political Committee Finance Report (revised May 2012), available at Florida requires committees to itemize every contribution and expenditure regardless of amount. Fla. Stat. Ann. § 106.07(4)(a). The other two states in this circuit, Louisiana and Texas, also have lower itemization requirements than Mississippi does: Louisiana has no minimum threshold requirement for itemizing donations, La. Rev. Stat. Ann. § 18:1495.5(B)(4), and Texas has a $50 threshold for reporting " the full name and address of the person making the contributions, and the dates of the contributions." Tex. Elec. Code Ann. § 254.031(a)(1).

Individual Reporting Requirements: Plaintiffs also object to monthly reporting requirements for individuals who expend over $200 to influence voters. Miss Code Ann. § § 23-17-51(2), 23-17-53(c). Again, other states impose similar reporting requirements. See, e.g., Ohio Rev. Code Ann. § 3517.105(C)(2)(b) (requiring individuals who expend more than $100 on a ballot initiatives to file an expenditure report); Wash. Rev. Code Ann. § 42.17A.255(2) (requiring individuals who expend more than $100 on a ...

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