ALASKA POLICY FORUM v. ALASKA PUBLIC OFFICES COMMISSION; YES ON 2 FOR BETTER ELECTIONS; and PROTECT MY BALLOT
Supreme Court No. S-18533
THE SUPREME COURT OF THE STATE OF ALASKA
February 13, 2026
No. 7801
BORGHESAN, Justice.
Superior Court No. 3AN-21-07137 CI
Appeal from the Superior Court of the State of Alaska, Third Judicial District, Anchorage, Frank A. Pfiffner, Judge.
Appearances: Stacey C. Stone, Holmes Weddle & Barcott, PC, Anchorage, and Steve Shevorski, Adam J. Tragone, and Charles Miller, Institute for Free Speech, Washington, DC, for Appellant. Kimberly D. Rodgers, Assistant Attorney General, Anchorage, and Treg Taylor, Attorney General, Juneau, for Appellee Alaska Public Offices Commission. Samuel G. Gottstein and Scott M. Kendall, Cashion Gilmore & Lindemuth, Anchorage, for Appellee Yes on 2 for Better Elections. No appearance by Appellee Protect My Ballot.
Before: Maassen, Chief Justice, and Carney, Borghesan, Henderson, and Pate, Justices.
BORGHESAN, Justice.
“The effective functioning of our democratic form of government is premised on an informed electorate. When citizens vote on the basis of misinformation, or a lack of relevant information, the decision-making process on which our government ultimately rests suffers to that extent.”1
To promote an informed electorate, Alaska law requires public reporting of expenditures made for the purpose of influencing the outcome of a ballot proposition, through which the voters directly exercise legislative power. Alaska law also requires that advertisements and announcements pertaining to ballot propositions state who paid for the communication. Voters can use that information to evaluate the messages they hear.
In this case a nonprofit organization disseminated materials criticizing ranked-choice voting in the months before an election that featured a ballot proposition that proposed to adopt ranked-choice voting and other significant changes to Alaska‘s election laws. The state agency charged with enforcing Alaska‘s campaign finance laws determined that the organization failed to comply with the law because it did not report its spending on these materials or place a “paid for by” disclosure on them. The organization appealed to the superior court, which affirmed the agency‘s decision.
The organization now appeals to us. It argues that the agency wrongly determined that its materials are subject to reporting and disclosure laws, that the legal standards applied by the agency are unconstitutionally vague, and that aspects of Alaska‘s reporting and disclosure laws violate the First Amendment. We uphold the agency‘s decision, concluding that the cited publications had to be reported and required a “paid for by” disclosure. We also hold that the statutory standards are not unconstitutionally vague because they give fair notice of what kind of speech must be
II. FACTS AND PROCEEDINGS
A. Alaska Campaign Finance Law
Alaska law regulates spending on both candidate elections and ballot propositions.2 The Alaska Public Offices Commission (the Commission) is the state agency that applies and enforces these campaign finance laws.3 These laws impose three basic requirements on those who spend money to influence elections: reporting, registration, and disclosures.4
First, expenditures made to influence the outcome of a ballot proposition must be reported to the Commission.5 Every person making an expenditure for this purpose must “make a full report of expenditures made and contributions received, . . . unless exempt from reporting.”6 The report must include the person‘s “name, address, principal occupation, and employer,” the name of the proposition, “whether the expenditure is made to support or oppose the . . . ballot proposition,” and a list of donations the person may have received “for the purpose of influencing the outcome of
Second, Alaska law requires persons to register with the Commission before making an expenditure related to a ballot proposition.10 Individuals are exempt from this registration requirement.11
Third, certain election-related “communications” must include a disclosure identifying the person who paid for the communication.12 The campaign finance statutes define a “communication” as “an announcement or advertisement disseminated through print or broadcast media, including radio, television, cable, and satellite, the Internet, or through a mass mailing.”13 But the definition excludes announcements and advertisements “by an individual or nongroup entity and costing $500 or less” and those that “do not directly or indirectly identify a candidate or proposition.”14 Those exempted categories of speech need not include a disclosure.
Communications that must include a disclosure must “be clearly identified by the words ‘paid for by’ followed by the name and address of the person paying for
With this framework in mind, we turn to the facts of the dispute.
B. Facts
Alaska Policy Forum (APF) is a 501(c)(3) nonprofit corporation incorporated in 2009. APF‘s self-described mission is to “provide research, information and public education in support of individual rights, limited government, personal responsibility and government accountability.”
In July 2019 some Alaska residents proposed to enact major changes to Alaska‘s election laws via voter initiative.17 This initiative, called “Alaska‘s Better Elections Initiative” (the Initiative), proposed to (1) replace Alaska‘s party primary system with an open nonpartisan primary, (2) require additional disclosures from “independent expenditure” groups, and (3) establish ranked-choice voting for the general election. Proponents of this initiative began collecting signatures a few months later. The lieutenant governor accepted the petition in March 2020, scheduling the Initiative for a vote in the November 2020 election.
Protect My Ballot launched an education campaign about ranked-choice voting on July 24, 2020. APF emailed a press release announcing the campaign to a national media list and to an Alaska-specific media list. The press release was entitled “Protect My Ballot: New Campaign Exposes Flaws in Ranked Choice Voting.” Noting that the campaign was “led by Alaska Policy Forum,” the press release explained that the campaign “highlights bipartisan opposition to” ranked-choice voting. The release included the following statement from APF‘s executive director:
As Alaskans take to the polls in November, history should provide a warning for what Ranked Choice Voting would lead to. Not only can Ranked Choice Voting cause votes to be discarded, research shows it also decreases voter turnout. We need to encourage Americans of all backgrounds to visit the polls, not give them another reason to avoid casting a ballot.
The release also quoted statements from the leaders of other state think tanks participating in the campaign and linked to a video about ranked-choice voting on Protect My Ballot‘s website.
A week later APF published the video on its website with the caption: “Ranked-choice voting (RCV) is an electoral scheme that adds more confusion to the
In October 2020, less than a month before the election, APF published additional materials about ranked-choice voting. On October 8 APF issued a press release announcing a new report on the effects of ranked-choice voting. The press release described the results of the report, including how ranked-choice voting could change the results of elections. Highlighted in bold text in the middle of the press release was a statement by one of APF‘s officers:
A voting system that frequently results in the discarding of legally submitted ballots has no place in Alaska or anywhere else in the United States. After researching candidates, going to the polls, and voting, no Alaskan should have to worry that their ballot won‘t be counted in the final tally.
Finally, on October 12 APF published a short blog post entitled “Ranked-Choice Voting Disenfranchises Voters,” authored by an APF intern.22 The post began: “A voting trend to uproot the electoral process is sweeping the country and has made it all the way to Alaska: ranked-choice voting.”23 The piece described problems with
C. Proceedings
1. Administrative Proceedings
In September 2020 Yes on 2 for Better Elections (Yes on 2), a nonprofit organization, filed a complaint with the Commission regarding APF and Protect My Ballot‘s activities. Yes on 2 alleged that APF and Protect My Ballot had failed to register with the Commission and to report their expenditures as required by law.
APF denied any campaign finance violations in its answer. Commission staff investigated. In response to the Commission‘s document requests for a list of expenditures related to ranked-choice voting, APF stated that it had spent $643.20 “in the form of staff time to review educational content, send out press releases, etc.” between September 1, 2019 and September 8, 2020.
Commission staff submitted a report to the Commission recommending that it rule that APF had violated the law by failing to report expenditures made to influence the outcome of a ballot proposition, to register before making such expenditures, and to include disclosures on its communications. Staff noted that the legislature had defined the kinds of spending on election-related speech that had to be reported as expenditures. The statutory definition of expenditure “includes an express communication and an electioneering communication, but does not include an issues
Applying this framework, staff concluded that APF‘s publications met the standard for “express communications” that had to be reported. Relying on previous advisory opinions applying this framework,30 staff highlighted APF‘s “recent burst of activity against ranked choice voting as the November election approache[d]” and reasoned that APF‘s activities around ranked-choice voting were express
APF disputed the staff‘s conclusions. APF argued that it had not advocated against the Initiative “as a whole” because it “ha[d] not urged citizens to vote for or against ranked-choice voting” or addressed the other two changes proposed in the Initiative (changes to campaign finance laws and to primary elections). It also argued that the staff had unduly focused on the context of the communications rather than their content.
In subsequent briefing APF argued that the staff report‘s approach to identifying express communications violated the First Amendment. APF also argued that the Commission‘s interpretation of the disclosure statutes was unconstitutional because (1) they applied, with some exceptions, regardless of how little money was spent; and (2) requiring disclosures for communications that “indirectly” reference a ballot proposition is unconstitutionally vague.
After a hearing the Commission issued a final order adopting the staff report‘s conclusions. The Commission found that “at least as of [APF‘s] July press release,” APF had violated
2. Superior court proceedings
APF appealed to the superior court. It argued that (1) the Commission‘s analysis and use of hyperlinks rather than record exhibits did not adequately support its findings; (2) the Commission had improperly applied the statutory definition of “express communication” to advocacy related to a ballot proposition when the definition applied only to candidate elections; (3) its communications did not qualify as “express communications“; (4) the statutes at issue were unconstitutionally vague; and (5) the statutes violated the First Amendment.
The superior court affirmed the Commission‘s order. The court rejected APF‘s argument that the Commission‘s findings were not supported by record evidence.32 In addressing APF‘s statutory construction argument, the superior court applied the reasonable basis test for an agency‘s interpretation of statutes involving fundamental policies within an agency‘s purview. The court concluded that the Commission reasonably adapted the “express communication” standard to speech about ballot propositions and reasonably concluded that APF‘s activities satisfied this definition. Acknowledging that the statutory definition of “express communication”
The superior court then rejected APF‘s vagueness argument. APF had argued that the statute‘s definition of “communication” in the statute — covering media that “directly or indirectly identif[ies] a candidate or proposition”34 — was unconstitutionally vague because it does not give speakers sufficient notice of when their speech will “indirectly touch[] on a proposition.” Citing the Ninth Circuit‘s decision in Alaska Right to Life Committee v. Miles, 441 F.3d 773, 780-86 (9th Cir. 2006), the superior court reasoned that requiring disclosure for communications that “indirectly reference” a ballot measure was not unconstitutionally vague. It also concluded that there was no constitutional problem in applying this standard to APF because its publications made “unambiguous reference” to the Initiative.
The court examined APF‘s First Amendment arguments under an exacting scrutiny framework.36 It rejected APF‘s argument that Alaska‘s “first-dollar” registration and reporting requirements were unconstitutional.37 And it rejected APF‘s argument that the reporting and disclosure laws were not narrowly tailored.
III. STANDARD OF REVIEW
“When the superior court is acting as an intermediate court of appeal in an administrative matter, we independently review the merits of the agency or administrative board‘s decision.”38 Different standards apply depending on the subject of review.39
“We apply the reasonable basis standard, under which we give deference to the agency‘s interpretation so long as it is reasonable, when the interpretation at issue implicates agency expertise or the determination of fundamental policies within the scope of the agency‘s statutory functions.”40
By contrast, we use our independent judgment to interpret a statute when “the agency‘s specialized knowledge and experience would not be particularly probative on the meaning of the statute.”41
“We apply our independent judgment to questions of constitutional law and review de novo the construction of the . . . federal Constitution[].”42
IV. DISCUSSION
First, it argues that the Commission erred in applying its governing statutes. It was error, APF contends, to adopt the “express communication” standard, which is defined in terms of candidate elections, for reportable expenditures involving ballot initiatives. It was also error, APF argues, to conclude that its speech qualified as expenditures that had to be reported and communications that required a “paid for by” disclosure.
Second, APF asserts that these standards are so vague that they do not give fair notice of what the law requires, violating the right to due process.
Third, APF argues that Alaska‘s reporting, registration, and disclosure requirements violate the First Amendment. APF maintains that the laws are not narrowly tailored in light of the burden they impose on election-related speech.
A. We Uphold The Commission‘s Ruling That APF‘s Communications Triggered Reporting, Registration, And Disclosure Requirements.
1. It was not error to use the “express communication” standard when applying statutory reporting requirements.
Alaska law requires reporting of expenditures made for the purpose of influencing the outcome of a candidate election or a ballot proposition.43 The legislature defined “expenditures” in a way that narrows the term when applied to speech related to candidate elections.44
This narrowing reflects federal court decisions interpreting similarly worded federal campaign finance laws to avoid unconstitutional vagueness and overbreadth. In Buckley v. Valeo the United States Supreme Court held that the Federal
Alaska‘s legislature later enshrined the Furgatch standard in Alaska law.48 Reportable expenditures are defined to include “express communications,”49 which the legislature further defined using the language from Furgatch quoted above.50 This language refers specifically to candidate elections and does not mention elections involving ballot propositions.51
The Commission decided to adopt a similar narrowing standard to determine when speech related to ballot propositions qualifies as an “expenditure” that
APF argues that the Commission erred in doing so.53 Its arguments on this point are in tension with each other. It argues that the Commission erred by disregarding the statutory language, which defines “express communication” only in terms of candidate speech. Yet APF also argues that the First Amendment requires the term “expenditure” to be construed narrowly as applied to speech about ballot propositions. We do not find this position persuasive.
First, it is important to note that the Commission‘s approach does not expand the range of speech subject to regulation. Rather, it limits the type of speech about a ballot proposition that can count as an “expenditure” that must be reported. “Expenditure” means “a purchase or a transfer of money or anything of value . . . incurred or made for the purpose of . . . influencing the outcome of a ballot
Second, we do not view the Commission‘s use of the “express communication” standard to regulate spending on ballot measures as a usurpation of the legislative role, as APF suggests. Rather, it is an attempt to apply the agency‘s governing statutes within constitutional bounds, consistently with the principles of Buckley and subsequent federal court decisions.56 The Commission did not err by limiting its enforcement of Alaska‘s campaign finance statutes in this way.
We must next determine whether the Commission erred by concluding that APF‘s speech qualified as “communications” that had to contain a “paid for by” disclosure and as “express communications” that had to be reported. We first consider how much deference to give the Commission‘s decision. Then we examine APF‘s speech.
a. Standard of review
The superior court applied the deferential reasonable basis standard to review the Commission‘s rulings. This is the standard that normally applies to an agency‘s application of a legal standard to a given set of facts when the issue involves the agency‘s expertise.57
But a deferential standard does not make sense in this particular case. That is because the “express communication” standard the Commission adopted is not susceptible to deferential review. According to the Commission, ballot speech qualifies as an express communication if, “when read as a whole and with limited reference to outside events,” it “is susceptible of no other reasonable interpretation but as an exhortation to vote for or against” a specific ballot proposition.58 The standard does not permit reasonable disagreement. We cannot say that the Commission had a reasonable basis to conclude that the speech is “susceptible of no other reasonable interpretation” than an exhortation to vote against a ballot proposition if we believe the speech is
b. Application to APF‘s communications
We now determine whether APF‘s speech qualified as “communications” that had to contain a disclosure and “express communications” that had to be reported. As noted above, a “communication” means an “announcement or advertisement” that “directly or indirectly identif[ies]” a ballot proposition.61 An “express communication,” as applied by the Commission to speech about ballot initiatives, means a “communication that, when read as a whole and with limited reference to outside events, is susceptible of no other reasonable interpretation but as an exhortation to vote for or against a specific”62 ballot initiative. The latter term includes the former, so we analyze the terms together when considering their application to APF‘s speech.
Because the “express communications” standard is derived from the Ninth Circuit‘s decision in Federal Election Commission v. Furgatch,63 which followed the
In Buckley the Court considered the constitutionality of various provisions of FECA.65 One of FECA‘s provisions required disclosure of election-related expenditures, defined as “the use of money or other valuable assets ‘for the purpose of . . . influencing’ the nomination or election of candidates for federal office.”66 The Court held that in light of FECA‘s significant criminal penalties, this definition had to be narrowly construed to avoid constitutional vagueness problems.67 The Court was particularly concerned that the provision, without a narrowing construction, “could be interpreted to reach groups engaged purely in issue discussion,” rather than only those advocating an electoral result.68 It therefore held that FECA‘s disclosure requirement had to be narrowly interpreted to apply only to “funds used for communications that expressly advocate the election or defeat of a clearly identified candidate.”69 Congress amended FECA accordingly.70
In Furgatch the Ninth Circuit considered the newly revised provision of FECA and expanded upon the “express advocacy” test the Supreme Court had
This analysis, according to the Ninth Circuit, permits limited consideration of the speech‘s context: “A consideration of the context in which speech is uttered may clarify ideas that are not perfectly articulated, or supply necessary premises that are unexpressed but widely understood by readers or viewers.”75 Yet the court cautioned that “context cannot supply a meaning that is incompatible with, or simply unrelated to, the clear import of the words.”76
Attempting to distill a standard from those principles, the Ninth Circuit held that express advocacy has three elements. First, the speech must be “unambiguous, suggestive of only one plausible meaning.”77 Second, the speech must contain “a clear
APF argues that the Commission misapplied the express communication standard because it relied too much on context. Specifically, APF challenges the Commission‘s reliance on two contextual factors: (1) the timing of APF‘s publications relative to the election on the Initiative and (2) the fact that APF had not published statements about ranked-choice voting prior to 2020. Although we need not defer to the Commission‘s decision and instead apply our independent judgment, we must decide whether these factors are proper to consider when applying the “express communication” standard directly to APF‘s communications.
Considering the timing of speech relative to an upcoming election is permissible. The presence of an upcoming election is relevant to determining whether speech should be interpreted as an appeal to vote for or against a candidate or proposition. In Furgatch, the Ninth Circuit considered whether a newspaper ad placed within a week of the presidential election qualified as “express advocacy” that had to be reported under FECA.80 The ad began with the words, “DON‘T LET HIM DO IT,” then described actions the president had done or would do, then concluded again: “DON‘T LET HIM DO IT.”81 The court reasoned that “[t]iming the appearance of the advertisement less than a week before the election left no doubt of the action
The same cannot always be said for the speaker‘s history of speech on a topic.85 The average reader or listener may not know whether the speaker has spoken on the subject before. If the reader is not aware of the prior speech, that speech cannot have an effect on how the current message is interpreted. Unless the prior speech is referenced by or displayed alongside the new speech (as on some social media platforms), it is external to the new speech. Yet the “express communication” standard requires the speech to be evaluated with “limited reference to outside events.”86
In this case the record is not conclusive as to whether APF‘s publications would have been read or seen together, so that one communication would shape an
With these points in mind, we proceed to apply the statutory provisions to APF‘s speech.
i. July 24, 2020 press release
We first consider APF‘s July 24 press release announcing the launch of “the national education campaign Protect My Ballot.”88 The release states that the campaign is “led by Alaska Policy Forum” and “details the harmful consequences of an electoral scheme known as Ranked Choice Voting (RCV).” According to the press release, the campaign would “highlight[] bipartisan opposition to RCV.” The release goes on to describe how ranked-choice voting works and describes perceived negative consequences of this system. The release concludes with four statements from representatives of Protect My Ballot‘s members. The first quote is from Alaska Policy Forum‘s executive director:
As Alaskans take to the polls in November, history should provide a warning for what Ranked Choice Voting would
lead to. Not only can Ranked Choice Voting cause votes to be discarded, research shows it also decreases voter turnout. We need to encourage Americans of all backgrounds to visit the polls, not give them another reason to avoid casting a ballot.
The release also quotes a representative of a Minnesota-based group stating: “Public participation in elections is vital for a democracy to work. Discouraging and complicating the system threatens the people‘s voice. That‘s why a bipartisan coalition of citizens and legislators wants to ban ranked choice voting in Minnesota.” The release ends with a statement from a Maine-based member of Protect My Ballot warning: “Voters should be skeptical when they hear from special interest groups trying to change the way we exercise our sacred right to vote.”
APF first argues that this press release does not qualify as a “communication” requiring a “paid for by” disclosure because it does not “indirectly identify” the Initiative.89 Although the press release does not identify the Initiative by name, the indirect identification of the Initiative is unambiguous. Comparison to a Ninth Circuit decision involving a Washington ballot initiative is instructive.
In Human Life of Washington Inc. v. Brumsickle, the Ninth Circuit considered a Washington campaign finance law using a standard similar to Alaska‘s “directly or indirectly identify” standard.90 Concerned about potential enforcement of this law, an advocacy group challenged the law‘s application to advertisements it wished to publish in advance of the vote on a ballot initiative proposing to allow physician-assisted suicide.91 For example, one proposed radio ad stated that “[a]ssisted suicide is back in the news” and went on to summarize results of a study about the
The references to the Initiative in APF‘s July 24 press release are at least as clear as the ads in Human Life of Washington. The press release‘s detailed discussion of ranked-choice voting, its reference to “voters” and “Alaskans tak[ing] to the polls in November,” and its timing — less than four months before the election — “indirectly identify” the Initiative and are susceptible to no interpretation other than an appeal to vote it down. The fact that the message includes statements from people in other states criticizing and opposing ranked-choice voting does not undermine the conclusion that this press release, when referencing an upcoming Alaska election, makes clear reference to the Initiative.
APF‘s second argument is that its speech is not an “express communication” because it is “[c]lassic issue advocacy, as opposed to express advocacy.” It likens its speech to the “genuine issue ad[s]” described in Federal Election Commission v. Wisconsin Right To Life, Inc.98 In that case the Court considered the constitutionality of a federal law that prohibited corporations from using general treasury funds to pay for certain kinds of radio advertisements.99 The ads described U.S. senators “using the filibuster delay tactic to block federal judicial nominees from a simple ‘yes’ or ‘no’ vote“; they urged voters to “[c]ontact Senators Feingold and Kohl and tell them to oppose the filibuster.”100 The Court, in a split opinion, ruled that federal law was unconstitutional as applied to the ads.101 The principal opinion reasoned that prohibition on corporations paying for political advertisements could be upheld if the ads amounted to express advocacy.102 But it concluded that the ads were not express advocacy because they “[did] not mention an
We note as a threshold matter that Wisconsin Right to Life is not squarely on point. In that case the federal statute under review barred express advocacy by certain entities.105 The justices analyzed this prohibition under the First Amendment, and a majority held that the First Amendment did not allow Congress to prohibit such speech.106 But the Alaska law at issue here does not prohibit speech; it requires reporting and disclosure of certain speech. And the Supreme Court has rejected the argument that statutory reporting and disclosure requirements must be limited to speech that is express advocacy because “disclosure is a less restrictive alternative to more comprehensive regulations of speech.”107 Therefore, we are skeptical that the “express advocacy” line described in Wisconsin Right to Life‘s principal opinion should delimit the definition of “express communication” in Alaska‘s statutes.
In any event, APF‘s July 24 press release is not at all like the “issues” communications in Wisconsin Right to Life. The Wisconsin Right To Life ads could plausibly be interpreted as urging listeners to do something other than vote against the senator standing for election. The ads expressly urged listeners to take a different kind of action: to call their senators and urge them to change their minds on the filibuster.108
APF maintains that the July press release cannot be an “express communication” because it is instead an issues communication — it “isolates a single issue, takes a position on it, and exhorts the public to adopt the speaker‘s view on that issue.” But APF fails to acknowledge that, in the context of ballot initiatives, referencing an upcoming election and attempting to persuade the public to oppose a discrete issue on the ballot at that election amounts to advocating an electoral result. As recognized by the Ninth Circuit in Human Life of Washington, “express and issue advocacy are arguably one and the same” when it comes to ballot initiatives.110
Therefore, the only reasonable way to interpret the July 24 press release, published by APF a few months before the election, is as an exhortation to vote against the Initiative. The indirect reference to the Initiative is unmistakable from the references to “[v]oters” and “Alaskans tak[ing] to the polls in November.” Though the call to action is not as explicit as Furgatch‘s “Don‘t let him do it,”111 the plea to vote against the Initiative is clear. The release approvingly emphasizes the “bipartisan opposition to RCV” and explains why speakers from other states “want[] to ban ranked choice voting.” And it offers a “warning” to “Alaskans tak[ing] to the polls in November” about what ranked-choice voting would lead to: discarding votes and decreasing turnout. It then offers a prescription about what should be done: “We need to encourage Americans of all backgrounds to visit the polls, not give them another
We are unpersuaded by APF‘s argument that because the express communication standard requires the speech to be considered “as a whole,” it is improper to highlight particular phrases or sentences. Highlighting particular sentences is an appropriate way to apply the express communication standard because particular sentences may have outsized impact on the overall meaning of a statement.113 For example, in Furgatch, the sentence “don‘t let him do it” was key to the ad‘s meaning: It turned what otherwise might have been a criticism of the president‘s conduct into a call to action.114 The Ninth Circuit rejected the idea that highlighting key phrases necessarily ignores a communication‘s broader context, emphasizing “that the whole consists of its parts in relation to each other.”115
APF maintains that because ranked-choice voting was only one of three components of the Initiative, its publications criticizing ranked-choice voting do not amount to exhortations to vote against the Initiative as a whole. Again, we are not persuaded. The press release‘s statements urged an outcome: “We need to encourage Americans of all backgrounds to visit the polls, not give them another reason to avoid casting a ballot.” In light of the release‘s assertion that ranked-choice voting would do
For these reasons, the July 24 press release qualified as both a “communication” and an “express communication” subject to disclosure and reporting requirements.
ii. July 31, 2020 ranked-choice voting video
On July 31, 2020, APF posted a video to its website and YouTube channel.116 The video begins by describing how traditional voting works, then states: “Now, some wealthy interest groups are pushing for ranked-choice voting.”117 The video describes the various ways in which ranked-choice voting is harmful to voters’ interests and directs viewers to visit Protect My Ballot‘s website to learn more.118 The last frame of the video features animated hands holding up signs that read “PROTECT MY VOTE” and “SAY NO TO RANKED CHOICE VOTING.”119 When a cursor is moved over the video, it displays a header with APF‘s logo next to the title.120 The video is displayed in the middle of the web page below the following caption: “Ranked choice voting (RCV) is an electoral scheme that adds more confusion to the voting system while threatening our democracy and failing to ensure every vote counts.”121 At the top of the web page is a banner with APF‘s name, logo, and vision statement: “an
APF argues that this video cannot qualify as a “communication” because it does not directly or indirectly identify the Initiative. The video itself does not mention Alaska, nor does it mention the Initiative by name. But it is published on the website of the Alaska Policy Forum beneath a statement of the group‘s vision for Alaska. Displayed in this context, the reference to a “push[]” for ranked-choice voting by “wealthy interest groups” is an unambiguous reference to the upcoming ballot proposition, especially for Alaskans who are presumably the main audience for the message. The video urges viewers to “SAY NO TO RANKED CHOICE VOTING.”123 Unlike the ads in Federal Election Commission v. Wisconsin Right To Life, Inc., which urged listeners to contact legislators, the APF video‘s call to action is not ambiguous.124 In the context of an upcoming election in which ranked-choice voting is on the ballot, the video‘s reference to a “push” by “interest groups” for ranked-choice voting and its call to “SAY NO TO RANKED CHOICE VOTING” is a clear, albeit indirect, reference to voting against the Initiative.
In this way the video is similar to the advertisements that the Ninth Circuit in Human Life of Washington Inc. v. Brumsickle deemed susceptible of no reasonable interpretation other than as an urgent appeal to vote against Washington‘s assisted suicide initiative.125 The ads did not expressly reference the initiative, but pointedly criticized assisted suicide.126 For example, one of the proposed radio ads referenced the Hippocratic Oath, then stated that assisted suicide undermines the trust the oath
iii. October 8, 2020 press release and report
APF issued a press release on October 8, 2020, just weeks before the election. The press release announced that APF had issued a report exposing “alarming ramifications to ranked-choice voting,” such as “how the method of determining a winner results in discarded ballots, how RCV elections do not result in a majority winner, and how it can completely change the outcome of an election.” The release described the results of the report, which was hyperlinked at the end of the press release, as “disturbing.” Emphasized in larger, bold font in the middle of the page was a quote from APF‘s Vice President of Operations & Communications:
A voting system that frequently results in the discarding of legally submitted ballots has no place in Alaska or anywhere else in the United States. After researching candidates, going to the polls, and voting, no Alaskan should have to worry that their ballot won‘t be counted in the final tally.
This press release can be reasonably interpreted only as an exhortation to vote against the Initiative. It indirectly identifies the Initiative by describing ranked choice voting as a “voting system that . . . has no place in Alaska” and urging that “no Alaskan should have to worry that their ballot won‘t be counted in the final tally.” The call to action is less explicit than Furgatch‘s “Don‘t let him do it.” But it is still unmistakable. To an objective listener, likely aware of the upcoming election, the statement that ranked-choice voting “has no place in Alaska” can only be understood
iv. October 12, 2020 article
The October 12 article, authored by an APF intern and titled “Ranked-Choice Voting Disenfranchises Voters,” was published less than a month before the election. The article opens by stating: “A voting trend to uproot the electoral process is sweeping the country and has made it all the way to Alaska, ranked-choice voting (RCV).” As the title suggests, the piece describes the ways in which ranked-choice voting “threatens to complicate voting, ultimately disenfranchising voters and decreasing turnout.” The piece contrasts ranked-choice voting with the traditional “one person, one vote” process, explains the contention that ranked-choice voting confuses voters and results in votes not being counted, and points to jurisdictions in which voters have enacted and then repealed ranked-choice voting. It concludes with the cautionary statement that “other cities and states should serve as an example of the complications that arise from implementing RCV. It is critical for our country that elections maintain their integrity, and disenfranchising voters through RCV accomplishes the opposite.”
This article is susceptible of only one interpretation: an appeal to vote “no” on the Initiative. First, the article‘s description of “[a] voting trend to uproot the electoral process” — which it identifies as ranked-choice voting — that “has made it all the way to Alaska” indirectly but clearly identifies the Initiative. Second, the article‘s descriptions of the harmful consequences of ranked-choice voting make its opposition to the Initiative clear. In light of the article‘s release mere weeks before the election, the admonition that jurisdictions that have adopted and then repealed ranked-choice voting “should serve as an example” to Alaskans can only be read as a declaration “that the situation demands action.”129 So too with the closing pitch that
B. APF Fails To Show That Alaska‘s Reporting And Disclosure Statutes Are Unconstitutionally Vague As Applied To Ballot-Related Speech.
A law is void for vagueness if it fails to give a “person of ordinary intelligence a reasonable opportunity to know what is prohibited” and to “provide explicit standards for those who apply them.”130 “When speech is involved, rigorous adherence to those requirements is necessary to ensure that ambiguity does not chill protected speech.”131 Even so, “perfect clarity and precise guidance have never been required even of regulations that restrict expressive activity”132 because “we can never expect mathematical certainty from our language.”133
APF makes both facial and as-applied vagueness challenges to Alaska‘s campaign finance regime.
1. Facial challenge
APF challenges
We have already explained that it will often be improper to consider a speaker‘s history of speech when applying the “express communication” standard and have declined to consider it here. As for the other arguments, we address each in turn.
a. Whether speech “directly or indirectly identifies” a ballot proposition
As explained above, speech qualifies as a “communication” that must contain a “paid for by” disclosure if it is an advertisement or announcement disseminated through media that “directly or indirectly identifies” a ballot proposition.134 APF argues that this standard — “directly or indirectly identifies” — is unconstitutionally vague. It appears to argue that it is not clear what it means to “indirectly identify” a ballot proposition, so a narrowing construction must be applied to this term to avoid the statute being void for vagueness. We agree for the reasons stated below. With this interpretation, we do not believe the definition of “communication” is void for vagueness.135
In defending against APF‘s vagueness argument, the Commission points out that the Ninth Circuit has already upheld the standard “directly or indirectly identify” against a facial vagueness challenge.136 But this decision is not directly on
APF‘s argument has merit. Even when an issue is soon to come before the voters on a ballot proposition, not all speech addressing the issue necessarily concerns the ballot proposition.
One of the Commission‘s past advisory opinions illustrates this dynamic.137 At the time, two ballot propositions concerning regulations for large mines were set to come before the voters at the next election.138 A nonprofit group requested an advisory opinion on whether it would be required to report ads it wished to run urging listeners to “[p]rotect clean water and wild Alaska salmon.”139 The Commission ruled that while the language might be interpreted as support for the propositions, that was not the only reasonable interpretation of the ads because there were “numerous different kinds of opposition activity” to the Pebble Mine, the apparent target of the ballot propositions.140 In other words, because the speech could reasonably be understood to urge the listener to take some action to protect clean water and fish other than vote for the ballot propositions, it was not subject to regulation. We can envision similar instances when it may be unclear whether a speaker “indirectly identifies” a ballot proposition when an issue addressed by the speaker is on the ballot.
APF disagrees that its speech unambiguously identified the ballot proposition. But statements such as “Alaskans tak[ing] to the polls in November” and a “voting trend” that had “made it all the way to Alaska” were unambiguous references to the upcoming ballot proposition presenting ranked-choice voting. Because of the nature of ranked-choice voting — a change to the electoral system, which can be effectuated only through change to the law — the only reasonable way to interpret APF‘s speech opposing ranked-choice voting was as a reference to the upcoming ballot initiative proposing to enact ranked-choice voting.
b. Lack of neutrality
APF also challenges the Commission‘s interpretation of the “express communication” standard — whether speech is “susceptible of no other reasonable interpretation but as an exhortation to vote for or against” a specific ballot initiative — on vagueness grounds. APF argues that the Commission‘s focus on whether APF‘s statements were “neutral” was improper and suggests that, to the extent the “express
The Commission‘s decision asserted that APF‘s publications were “not neutral” and went on to quote excerpts before concluding that the publications could only be interpreted as exhortations to vote against the proposition. But the Commission did not elaborate on what it meant by “neutral” or why it interpreted the publications that way. The Commission might have meant that ranked-choice voting was not presented “neutrally,” a factor supporting its conclusion that the publications could be interpreted only as exhortations to vote against the Initiative. Alternatively, the Commission‘s statement that the publications were “not neutral” might have been a way of stating its conclusion: i.e. that the publications opposed the Initiative.
To the extent the Commission was referring to a slant in the way ranked choice voting was discussed, we caution that slanted language is not necessarily an exhortation to vote a certain way. It can be difficult to determine whether discussion of an issue is truly “neutral.” For instance, a pamphlet discussing the pros and cons of an issue may be viewed by some as neutral and by others as non-neutral depending on what facts are presented and how they are described. Pointing out the costs and benefits of a policy proposal does not necessarily amount to an appeal to vote for or against it.
But the “express communication” standard need not incorporate a “magic words” test to avoid being unconstitutionally vague. That is, we do not believe that the need to give the public fair notice of what speech is subject to regulation, and to give regulators a precise standard to apply, means that only speech containing words like “vote against” can be deemed a clear plea to vote against a ballot initiative. Rather, if the speech unambiguously identifies the ballot proposition (as required by our ruling above), it is permissible to consider statements of support for or opposition to the policy
The vagueness concerns identified in Buckley, on which APF relies, do not apply in the same way in the context of ballot propositions. An ad expressing opposition to an issue while referring to a particular candidate may be susceptible to different interpretations. Such was the case with the ads at issue in Wisconsin Right to Life, which urged listeners, on the eve of an election, to call their senators about the filibuster.144 By contrast, an ad expressing opposition to a policy while referring to a ballot proposition about that policy does not have the same ambiguity.145 Therefore, we reject APF‘s argument that the express communication standard, as applied to ballot propositions, is unconstitutionally vague.
c. Timing
APF also criticizes the Commission‘s reliance on the timing of APF‘s speech relative to the placement of the issue on the ballot as “arbitrary” and providing “no guidance to the unwary as to when the relevant time period starts.” But the time period during which speech can count as a reportable “expenditure” or a
2. As-applied challenge
APF argues that the Commission‘s “express communication” standard is unconstitutionally vague as applied to its publications because they addressed only one of the three major changes proposed by the Initiative. Specifically, APF argues that the definition of communication is unconstitutionally vague as applied to its own publications because it “refers to the direct or indirect identification of a ballot initiative, not to the discussion of any ‘key’ issue” within a ballot initiative.152 It argues that “[n]othing about the topic of ranked-choice voting as an issue in 2020 would alert APF that opposition to ranked-choice voting necessarily meant opposition” to the Initiative.
This is particularly true because, at the time, Alaskans had only one route to oppose ranked-choice voting: casting their vote against it. Unlike the ads urging listeners to “protect clean water and wild Alaska salmon” in the advisory opinion
The fact that the Initiative included other policy measures does not change that dynamic. The title of the ballot measure was “An Act Replacing the Political Party Primary with an Open Primary System and Ranked-Choice General Election, and Requiring Additional Campaign Finance Disclosures.”155 With the election just months away, it should have been clear to APF that by urging readers to oppose ranked-choice voting, it was urging them to vote against the Initiative. There was no other way for APF‘s listeners to “SAY NO TO RANKED CHOICE VOTING.”
Therefore, application of Alaska‘s reporting and disclosure statutes to APF‘s speech was not unconstitutionally vague.
C. APF‘s First Amendment Challenges Are Unavailing.
APF argues that Alaska‘s registration, reporting, and disclosure requirements violate the First Amendment. APF acknowledges that the government has a legitimate interest in ensuring that voters receive useful information. But it contends that Alaska‘s laws are not substantially related or narrowly tailored to that interest and therefore unnecessarily burden protected speech.
When reporting and disclosure laws are challenged on First Amendment grounds, we subject the laws to exacting scrutiny.156 Exacting scrutiny requires “a substantial relation between the disclosure requirement and a sufficiently important
Although APF acknowledges that courts have applied exacting scrutiny to disclosure requirements, it argues that requiring the speaker to describe who paid for the message amounts to compelled speech, which is subject to strict scrutiny. Under strict scrutiny a law is upheld only if is the least restrictive means of achieving a compelling state interest.159 APF points out that in National Institute of Family & Life Advocates v. Becerra, the Supreme Court declined to decide whether strict or exacting scrutiny applied to statements that the State of California required crisis pregnancy centers to make about the availability of state-funded abortion services.160
We are not persuaded that strict scrutiny applies. The compelled speech in National Institute of Family & Life Advocates required the pregnancy centers to “alte[r] the content of [their] speech.”161 The “paid for by” disclosure does not alter the content of speech; it simply says who paid for it. “[R]egulations directed only at disclosure of political speech are subject to . . . ‘exacting scrutiny.’ ”162 We therefore review APF‘s challenge to both the reporting and disclosure requirements using exacting scrutiny.
The interest underlying Alaska‘s reporting and disclosure laws is strong enough to pass exacting scrutiny. The Supreme Court has held that the government‘s interest in an informed electorate satisfies exacting scrutiny.165 We too have emphasized that an informed electorate is necessary to the “effective functioning of our democratic form of government” and that this rationale “applies with full force to ballot issues.”166 Because ballot propositions are “often complex and difficult to understand,” a “voter may wish to cast his ballot in accordance with his approval, or disapproval, of the sources of financial support.”167 The Ninth Circuit has reasoned that “by revealing information about the contributors to and participants in public discourse and debate, disclosure laws help ensure that voters have the facts they need to evaluate the various messages competing for their attention.”168
APF acknowledges the importance of this purpose but argues that the reporting and disclosure laws cannot withstand exacting scrutiny because they are not substantially related to it or narrowly tailored.
APF argues that the statutes’ requirements are “insufficiently tied” to the government‘s interest in an informed electorate because they are triggered, in some instances, no matter how little money is spent to produce the speech. APF argues that the public has little interest in knowing the identity of those funding speech that costs very little to produce.
As explained earlier, Alaska law requires that expenditures made for the purpose of influencing a ballot proposition be reported to the Commission, and such expenditures include certain kinds of speech.169 Political groups and nonprofits (but not individuals) must also register before making such expenditures.170 There is no general de minimis exception to these requirements. Expenditures by an individual “acting independently of any other person” on certain printed materials need not be reported if they total less than $500 annually.171 But there is no low-dollar exemption for expenditures by non-individual speakers (such as nonprofits and political groups).
Similarly, a “paid for by” disclosure is required for all “announcement[s] or advertisement[s] disseminated through print or broadcast media,” regardless of how much they cost to produce, except for those by “individual[s] or nongroup entit[ies]” that cost $500 or less.172 This means that even low-cost communications by groups, for-profit entities, and labor unions must contain a disclosure.
The Ninth Circuit has repeatedly addressed thresholds for campaign finance regulation. In Smith v. Helzer the court rejected a challenge to Alaska‘s reporting and disclosure requirements for individual donations greater than $2,000 per year when aggregated and made to organizations that make independent expenditures in candidate elections.173 In upholding the reporting requirements, the Ninth Circuit explained that the line at which campaign contributions must be disclosed is “‘necessarily a judgmental decision, best left’ to the discretion of the legislature, here the people of Alaska.”174 The court went on to emphasize that “[b]ecause ‘[t]he acceptable threshold for triggering reporting requirements need not be high,’ [it has] routinely upheld reporting thresholds much lower than the $2,000-per-calendar-year one here,” noting that it had upheld “reporting thresholds as low as $100.”175 And in National Association for Gun Rights, Inc. v. Mangan, the Ninth Circuit ruled that a Montana disclosure regime applicable to organizations spending more than $250 on a single electioneering communication was “within the range of constitutionally acceptable reporting thresholds.”176
By contrast, in Canyon Ferry Road Baptist Church of East Helena, Inc. v. Unsworth, the Ninth Circuit held that a church‘s in-kind expenditures made in support
Other cases to which APF directs our attention are less on point. In Randall v. Sorrell the Supreme Court held that a provision of Vermont‘s campaign finance statute capping direct contributions to the governor at $200 per donor each election cycle was unconstitutional.180 But contribution limits are more closely scrutinized than disclosure requirements. In Citizens United, the Supreme Court explained that “disclosure is a less restrictive alternative to more comprehensive regulations of speech,” like spending limits.181
APF also cites two Tenth Circuit decisions holding that Colorado‘s registration and reporting requirements were unconstitutional as applied to groups spending less than $3,500 on a ballot measure, but the court‘s rationale in those cases
And in Vote Choice, Inc. v. DiStefano, the First Circuit struck down Rhode Island‘s disclosure law on associational grounds because its “disparity between the first dollar disclosure threshold applicable to those who choose to pool money by making contributions to [political action committees] and the $100 disclosure threshold applicable to those who choose to act alone by making direct contributions and expenditures” did not satisfy exacting scrutiny.183 But the court did not conclude that the low thresholds were unjustified absent such a disparity. It “decline[d] to rule out categorically the legislative tool of first dollar disclosure,” stating, “that tool may in certain contexts . . . serve sufficiently compelling government interests to be upheld.”184
In APF‘s view, Alaska‘s statutes, which (with the exceptions mentioned above) are triggered by the first dollar spent, are unconstitutional as applied to its communications because its expenditures were minimal. “[A]n as-applied
The facts do not show that APF‘s spending was so minimal that the public had no interest in knowing who funded it. APF maintains that the Commission “failed to introduce evidence that expenditures on any communication individually was more than negligible.” But the Commission found that APF spent $643.20 on unreported expenditures, and APF acknowledges this finding is based on its discovery response to Commission staff averring that APF spent $643.20 on “staff time to review educational content, send out press releases, etc.” related to ranked-choice voting between September 1, 2019 and September 8, 2020.
The lack of more granular findings or evidence is not the Commission‘s fault. Although APF argued to the Commission that “low thresholds” are constitutionally suspect, it supplied no evidence showing that any of its expenditures were de minimis.186 Instead it argued that the Commission could avoid the constitutional issues “inherent to the low thresholds” by construing its statutes in a way that did not apply to APF‘s speech. And APF did not attempt to present such evidence to the superior court on appeal.187
Based on the facts we do have, we cannot say APF‘s spending on speech was so minimal that the public lacked an interest in knowing who funded it. As the
APF‘s spending is not negligible, unlike the in-kind contributions made by the pastor in Canyon Ferry Road Baptist Church.190 Although “expending a few moments of a[n employee‘s] time” to repost a video to a business‘s social media page
Finally, we note APF‘s assertion that Alaska‘s disclosure statutes are facially unconstitutional but hold that APF waived this argument with inadequate briefing. In the First Amendment context, a law burdening speech “may be invalidated as overbroad” because “a substantial number of its applications are unconstitutional, judged in relation to the statute‘s plainly legitimate sweep.”194 APF does not even recite this standard, let alone attempt to explain why it is met. It makes no attempt to explain
2. Requiring APF to post disclosures on communications that included speech by others is substantially related to the government‘s interest in an informed electorate.
APF also argues that applying the disclosure requirement to what it describes as “reposted” materials will not promote an informed electorate but will instead mislead and confuse voters. Specifically, APF argues that applying
We question the premise that the communications APF describes are “others’ communications.” The press release was emailed to media contacts by APF‘s executive director. Its dateline announced it was sent from Anchorage. The press release describes APF as the leader of the four-group coalition launching the “Protect My Ballot” campaign and includes a quote from APF‘s executive director stating that “[a]s Alaskans take to the polls in November, history should provide a warning for what Ranked Choice Voting would lead to.” Although the press release includes messages from other speakers, APF broadcasted it and contributed time and money to produce it.
Therefore, we do not agree that these communications can be described as merely others’ speech.
For that reason, we are not persuaded by APF‘s argument that the law requiring APF to add a disclosure to these communications lacks a substantial relationship with the interest in an informed electorate. Curating and broadcasting speech first produced by others may involve time, effort, and financial resources. APF‘s publication of the video boosted its reach and literally placed its name on the message, heightening its salience for the Alaska audience. In the same way that voters have an interest in knowing who is paying to produce speech meant to influence the outcome of an election, they have an interest in knowing who is paying to broadcast that speech to more listeners. Therefore, voters have an interest in knowing who financially supports APF‘s efforts to broadcast messages opposing an issue on the ballot in the upcoming election.198
Nor are we persuaded that the risk of confusion created by having to post a disclosure on the press release and video was so great that the requirement lacks a
This communication was paid for by (person‘s name and city and state of principal place of business). The top contributors of (person‘s name) are (the name and city and state of residence or principal place of business, as applicable, of the largest contributors to the person under
AS 15.13.090(a)(2)(c) ).200
APF argues that having to post this disclosure on the page where it displayed the video would confuse voters as to who actually made the communication. We are not convinced.
The “communication” to which the disclosure applies is APF‘s dissemination of the video on its webpage and YouTube channel, where APF has appended its own name, logo, and commentary to the video. The fact that APF expended resources to obtain and publish the video on its website makes it accurate to say that APF paid for that communication. This is true even if someone else paid to produce the video and let APF use it without charge. Perhaps that nuance will be lost on some viewers, who may assume that the video itself was produced or paid for by APF. But the possibility of such confusion does not undermine the purpose of the disclosure statute, which is to give the public information about who is financially backing or opposing candidates and ballot initiatives. For that reason, we are not
3. APF‘s narrow tailoring arguments are not persuasive.
APF argues that
Narrow tailoring means “a fit that is not necessarily perfect, but reasonable; that represents not necessarily the single best disposition but one whose scope is ‘in proportion to the interest served.’ ”202 The State “is not free to enforce any disclosure regime that furthers its interests. It must instead demonstrate its need for universal production in light of any less intrusive alternatives.”203 Narrow tailoring does not, however, require that a legislature choose the least restrictive means of achieving its ends.204
The Supreme Court upheld disclosure requirements in Citizens United, observing that they represent “a less restrictive alternative to more comprehensive regulations of speech.”205 And Alaska‘s reporting statute carves out some common
The Commission also interprets AS 15.13 as already containing an earmarking provision, although the statute does not explicitly describe it as such. Under
APF did not dispute the Commission‘s interpretation of its statutes or regulations or argue that this interpretation is constitutionally deficient. And we agree with the Commission‘s argument that the provisions in question can be interpreted as it describes. So we reject APF‘s argument that AS 15.13 fails exacting scrutiny for lack of earmarking. And because APF has made no argument that the particular approach to earmarking described in statute is insufficiently tailored, we do not address that precise issue.
We also reject APF‘s argument that requiring communications to include a disclosure is not narrowly tailored because the State could instead maintain a repository of donor information that voters can consult to discover who is funding what speech. APF relies on the Ninth Circuit‘s decision in American Civil Liberties Union of Nevada v. Heller214 and the Supreme Court‘s decision in National Institute of Family & Life Advocates v. Becerra.215
To the extent that the Heller decision held that an on-message disclosure is compelled speech that violates the First Amendment,216 it was undercut by the
The National Institute of Family & Life Advocates decision is not on point. The government interest at stake was entirely different, making the decision‘s reasoning inapplicable here. In that case the Supreme Court struck down a California law requiring pro-life pregnancy centers to post government-drafted notices about the availability of state-sponsored pregnancy services, including abortion — “the very practice [the] petitioners [were] devoted to opposing.”220 The asserted government interest for the notice requirement was “providing low-income women with information about state-sponsored services.”221 The Court struck down the notice requirement,
But in the case at hand, a public database of speakers and their contributors would not be as effective in promoting the government‘s interest in an informed electorate. Unlike in National Institute of Family & Life Advocates, where the interest motivating the notice requirement was in promoting information about health resources generally, here the government interest is in informing voters of the funding sources behind a particular message. On-advertisement disclosures can be “more effective in generating discourse that facilitates the ability of the public to make informed choices in the specialized electoral context” in addition to being “a more efficient tool [than public disclosure] for a member of the public who wishes to know the identity of the donors backing the speaker.”223 So a public repository of funding information is not a substitute for on-message disclosure.
Therefore, we are not persuaded by APF‘s tailoring arguments. Its argument that Alaska‘s reporting and disclosure statutes violate the First Amendment fails.
V. CONCLUSION
For the foregoing reasons we AFFIRM the judgment of the superior court.