Hatchett v. Barland
816 F. Supp. 2d 583
E.D. Wis.2011Background
- Hatchett challenges Wisconsin election statutes Wis. Stat. §§ 11.23 and 11.30 and Wis. Admin. Code GAB § 1.655 as applied to referendum advocacy.
- Hatchett mailed a private postcard opposing 2010 Whitewater referendums; he did not sign the card and paid costs personally.
- Following enforcement concerns, GAB staff and Walworth County DA indicated they would not prosecute Hatchett under those statutes.
- The court previously granted a preliminary injunction enjoining enforcement against Hatchett in relation to the 2010 referendum; May 2010 amendment raised §11.23’s trigger from $25 to $750.
- Hatchett seeks permanent injunction and declaratory relief; issues include mootness and as-applied vs facial challenges; court conducts merits under exacting scrutiny for §11.23 and §11.30.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Are Hatchett’s claims moot?” | Hatchett remains subject to ongoing risk of enforcement. | Events show no current enforcement threat; mootness applies. | Not moot; capable of repetition yet evading review. |
| Is Wis. Stat. § 11.30 unconstitutional as applied? | Speech anonymity is protected; disclosure burdens core First Amendment rights. | Disclosures serve informing electorate and preventing corruption. | unconstitutional as applied to Hatchett. |
| Is Wis. Stat. § 11.23 unconstitutional as applied? | Reporting requirements burden minor, issue-focused advocacy. | Reporting provides public information and integrity of process. | unconstitutional as applied to Hatchett. |
| Should there be permanent injunction and declaratory relief? | statutes violate First Amendment rights; irreparable harm. | Statutes are constitutional; nonenforcement indicates no irreparable harm. | permanent injunction granted; statutes unconstitutional as applied; declaratory relief denied for facial challenge. |
| Should the statutes be declared facially unconstitutional? | Citizens United era requires facial invalidation given chill on speech. | Record is too undeveloped; unsettled jurisprudence; avoid facial ruling. | Court declines to declare facial invalidity. |
Key Cases Cited
- Citizens United v. FEC, 558 U.S. 310 (2010) (disclosure and record-keeping requirements reviewed under exacting scrutiny; PAC provisions are distinct)
- McIntyre v. Ohio Elections Comm'n, 514 U.S. 334 (1995) (anonymity and its protection under First Amendment)
- Buckley v. Valeo, 424 U.S. 1 (1976) (reporting requirements must survive exacting scrutiny)
- Swaffer v. Deininger, 610 F. Supp. 2d 962 (2009) (Wisconsin reporting/disclosure provisions analyzed as applied)
- Majors v. Abell, 317 F.3d 719 (7th Cir. 2003) (guidance on mootness and repetition in election contexts)
- Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) (mootness and standing principles relevant to ongoing challenges)