OPAWL - BUILDING AAPI FEMINIST LEADERSHIP; NORTHEAST OHIO COALITION FOR THE HOMELESS; ELISA BREDENDIEK; PETER QUILLIGAN; JOHN GERRATH, Plaintiffs-Appellees, v. DAVE YOST, in his official capacity as Ohio Attorney General; FRANK LAROSE, in his official capacity as Ohio Secretary of State, Defendants-Appellants.
Nos. 24-3768
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
Decided and Filed: October 8, 2024
24a0229p.06
Before: McKEAGUE, THAPAR, and DAVIS, Circuit Judges.
RECOMMENDED FOR PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b). On Motion for Stay Pending Appeal. United States District Court for the Southern District of Ohio at Columbus. No. 2:24-cv-03495—Michael H. Watson, District Judge.
ON MOTION AND REPLY: T. Elliot Gaiser, Michael J. Hendershot, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for Appellants. ON RESPONSE: Elisabeth C. Frost, Jyoti Jasrasaria, Melinda K. Johnson, ELIAS LAW GROUP LLP, Washington, D.C., C. Benjamin Cooper, Kaela King, COOPER ELLIOTT, Columbus, Ohio, for Appellees. ON BRIEF: Jason Walta, Philip A. Hostak, NATIONAL EDUCATION ASSOCIATION, Washington, D.C., Nathan Johnson, THE OHIO ENVIRONMENTAL COUNCIL, Columbus, Ohio, for Amici Curiae.
THAPAR, J., delivered the opinion of the court in which McKEAGUE, J., joined. DAVIS, J. (pp. 21–32), delivered a separate dissenting opinion.
THAPAR, Circuit Judge. Ohio passed a law to stop foreign money from influencing its elections. The law bans foreign nationals from spending money to support or defeat ballot initiatives. It also bans foreign nationals from contributing to candidates in state elections. After plaintiffs brought a First Amendment challenge, the district court found that Ohio’s law violates the rights of lawful permanent residents. The district court preliminarily enjoined Ohio from enforcing its new campaign finance law with respect to all foreign nationals. Ohio appealed the district court’s decision. It also asked us for an emergency stay of the district court’s order so that Ohio can enforce its law while we consider the merits of the appeal. Because our initial review suggests that the district court’s First Amendment analysis was flawed, we now grant Ohio’s motion for a stay of the district court’s order.
I.
After a referendum in 2023, Ohio became concerned that foreign money was pouring into its elections. Mot. for Stay at 3. So earlier this year, Ohio passed a law (Section 121) scheduled to take effect on September 1 banning foreign nationals from making political expenditures or contributions in support of or opposition to a candidate for any elective office.
Section 121 defines foreign national to mean, in part, an individual who is not a United States citizen or national.
Ohio is not alone in its concern about foreign influence on elections. The Federal Election Campaign Act (FECA) also prohibits contributions and expenditures by foreign nationals. See
Soon after Ohio enacted § 121, various plaintiffs challenged the law in federal district court on First Amendment grounds. They sought declaratory and injunctive relief. The plaintiffs are (a) two advocacy organizations who assert that they receive funding from non-citizens; (b) two non-citizen lawful permanent residents; and (c) a United States citizen who is married to one of the non-citizen plaintiffs and fears that contributing from the family’s joint bank account would expose him to criminal liability.
The district court acknowledged that § 121 is constitutional as applied to foreign citizens who aren’t lawful permanent residents. Yet it preliminarily enjoined Ohio from enforcing § 121 as to all foreign national individuals, on the ground that the law violated the First Amendment rights of lawful permanent residents. R. 32, Pg. ID 1141. The court permitted Ohio to enforce the remainder of the law, including prohibitions on spending by foreign governments or political parties. See
II.
Ohio’s application for a stay of the district court’s injunction pending appeal requires us to weigh four factors: (1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies. Nken v. Holder, 556 U.S. 418, 434 (2009).
Notably, there is substantial overlap between the four factors governing the grant of a stay and the factors governing the initial grant of a preliminary injunction. Id. (citing Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 24 (2008)). But these two tests are not . . . one and the same. Id. If we were asked to enjoin § 121 in the first instance, we would require a significantly higher justification than if we were merely staying an injunction. Respect Maine PAC v. McKee, 562 U.S. 996, 996 (2010) (quoting Ohio Citizens for Responsible Energy, Inc. v. Nuclear Regul. Comm‘n, 479 U.S. 1312, 1313 (1986) (Scalia, J., in chambers)). Why? Because by granting a stay, we halt the district court’s own judicial alteration of the status quo. Id. By contrast, to issue an injunction after the lower court had refused, we would grant[] judicial intervention that has been withheld by a lower court. Id. Therefore, a party seeking a stay on appeal faces a lower burden than one seeking an injunction on appeal.
A.
Before we get to the Nken analysis, we must address whether the Purcell principle applies. See Purcell v. Gonzalez, 549 U.S. 1 (2006) (per curiam). Purcell teaches that federal courts must not alter election rules on the eve of an election. Id. But here, the district court enjoined Ohio’s law just two months before the 2024 November election. To be sure, courts have split on whether Purcell applies in the campaign finance context. Compare Lair v. Bullock, 697 F.3d 1200, 1202, 1214 (9th Cir. 2012), with Chancey v. Illinois State Bd. of Elections, 635 F. Supp. 3d 627, 644–45 (N.D. Ill. 2022). But there are strong arguments that it should. Campaign finance rules are key to the legal landscape that shapes our political contests. Campaign finance law affects who can speak, how much they can speak, and what they can speak about. That speech influences who and what is on the ballot—and voters’ opinions about the candidates and the issues. Section 121’s restrictions thus form part of a delicate campaign contribution equilibrium leading up to [Ohio’s] imminent election. Lair, 697 F.3d at 1203–04.
Ultimately, however, we don’t need to resolve whether Purcell’s admonition applies to federal-court injunctions of campaign-finance regulations, since we conclude that Ohio is entitled to a stay regardless.1
B.
We now turn to likelihood of success on the merits. In the context of First Amendment emergency motions, the merits analysis is often dispositive. See Fischer v. Thomas, 52 F.4th 303, 307 (6th Cir. 2022). Here, Ohio is likely to succeed on the merits. Contrary to the district court’s preliminary injunction analysis, Section 121 is not overbroad or otherwise facially invalid.
i.
Plaintiffs claim that § 121 is overbroad. The district court agreed. It didn’t dispute that § 121 is constitutional as applied to non-citizens who aren’t lawful permanent residents. After all, FECA already restricts the campaign spending of non-citizens who aren’t lawful permanent residents—and those restrictions have been upheld. See Bluman v. Fed. Election Comm‘n, 800 F. Supp. 2d 281 (D.D.C. 2011) (Kavanaugh, J.), aff’d, 565 U.S. 1104 (2012). But the district
But even if the inclusion of lawful permanent residents in § 121 violates the First Amendment (it doesn’t), that wouldn’t make § 121 overbroad. In the First Amendment context, a successful overbreadth challenge requires the plaintiff to prove that the statute is substantially overbroad relative to [its] plainly legitimate sweep. United States v. Williams, 553 U.S. 285, 292 (2008). Invalidation for overbreadth is strong medicine that is not to be casually employed. Id. at 293 (citation omitted) (cleaned up). The district court proved too ready to administer this strong medicine. Lawful permanent residents comprise less than a quarter of the foreign-born population in the United States. See Mohamad Moslimani & Jeffrey S. Passel, What the data says about immigrants in the U.S., Pew Rsch. Ctr. (July 22, 2024), https://www.pewresearch.org/short-reads/2024/07/22/key-findings-about-us-immigrants. And Ohio’s contribution and expenditure bans extend to all non-citizens, not only those non-citizens who happen to be present on American soil. Therefore, the 11 million lawful permanent residents make up only about .14% of the people covered by the law. Cf. U.S. and World Population Clock, U.S. Census Bureau, https://www.census.gov/popclock/world. If only .14% of a law’s applications are unconstitutional, the law is not substantially overbroad in relation to its plainly legitimate sweep.
To be sure, contributions and expenditures are speech, and overbreadth doctrine focuses on how much protected speech a law restricts. Of course, the district court did not rely on this type of theory—and for good reason. The plaintiffs never presented evidence that lawful permanent residents spend significantly more money on Ohio elections than other categories of foreign nationals. And the burden lies with the plaintiffs to show that § 121 sweeps too broadly. See Virginia v. Hicks, 539 U.S. 113, 122 (2003). Since the plaintiffs haven’t met that burden, their overbreadth challenge fails.
ii.
Plaintiffs also argue the law is facially invalid because it unconstitutionally restricts the political speech of lawful permanent residents. To assess that claim, we must answer three
(1) Lawful permanent residents have First Amendment rights. The Supreme Court has long held that [f]reedom of speech and of press is accorded aliens residing in this country. Bridges v. Wixon, 326 U.S. 135, 148 (1945). To be sure, more recent precedent construing references to the people in the Bill of Rights—including in the First Amendment, see
Here, Section 121 regulates the expressive activity and associational freedoms of lawful permanent residents because it regulates their campaign-related expenditures and contributions. See Buckley v. Valeo, 424 U.S. 1, 16–23 (1976). Because lawful permanent residents have First Amendment rights, Section 121 triggers First Amendment scrutiny.
Ohio, for its part, contends that there’s no need to subject § 121 to First Amendment scrutiny because noncitizens do not have a constitutional right to participate in the machinery of voting in the first instance. Mot. for Stay at 12. That’s true. See Bluman, 800 F. Supp. 2d at 287–88. But it doesn’t alter Supreme Court precedent holding that noncitizens like lawful permanent residents enjoy First Amendment rights. See Wixon, 326 U.S. at 148.
(2) What tier of scrutiny should apply to § 121? Political expenditures and contributions are acts of political expression and association protected by the First Amendment. Bluman, 800 F. Supp. 2d at 285. So presumably we’d apply the traditional tiers of scrutiny to the
However, we decline to resolve what tier of scrutiny applies, because § 121 passes muster even under the regular forms of scrutiny for campaign finance regulations. See id. at 285. Thus, we may assume for the sake of argument that Ohio’s ban on expenditures by foreign nationals, including lawful permanent residents, is subject to strict scrutiny. Likewise, we will assume that § 121’s restrictions on contributions must withstand Buckley’s form of intermediate scrutiny. Under that test, Ohio must demonstrate[] a sufficiently important interest and employ[] means closely drawn to avoid unnecessary abridgement of associational freedoms. Buckley, 424 U.S. at 25. Section 121 passes both tests.
(3) To withstand strict scrutiny, a law must be narrowly tailored to serve a compelling interest. Williams-Yulee v. Fla. Bar, 575 U.S. 433, 442 (2015). Strict scrutiny is a demanding and rarely satisfied standard. S. Bay United Pentecostal Church v. Newsom, 141 S. Ct. 716, 718 (2021) (statement of Gorsuch, J.). But it’s not fatal in fact.’ Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 237 (1995). Indeed, the Court has repeatedly upheld laws after subjecting them to strict scrutiny, including in the campaign-finance context. See Williams-Yulee, 575 U.S. at 444 (collecting cases). Here, Ohio’s expenditure limits clear this high bar.
*
What compelling interest does Ohio assert? [P]reventing noncitizens from pouring money into Ohio’s elections. Mot. for Stay at 15–16. That’s a compelling interest—and the court below acknowledged as much. As the Bluman court held, the government has a compelling interest in preventing foreign influence over U.S. elections. 800 F. Supp. 2d at 288 n.3. That conclusion is unsurprising: The Supreme Court has repeatedly instructed that states
Indeed, the exclusion of aliens from basic governmental processes is not a deficiency in the democratic system but a necessary consequence of the community’s process of self-definition. Cabell v. Chavez-Salido, 454 U.S. 432, 439 (1982). States can prevent non-citizens from serving as probation officers, see id., or teaching in public schools, see Ambach v. Norwick, 441 U.S. 68 (1979). Why? Because the distinction between citizens and aliens, though ordinarily irrelevant to private activity, is fundamental to the definition and government of a State. Id. at 75. It is because of this special significance of citizenship that governmental entities, when exercising the functions of government, have wider latitude in limiting the participation of noncitizens. Id. So, excluding non-citizens from certain activities can advance a compelling interest when those activities form part of the the process of democratic self-government. Bluman, 800 F. Supp. 2d at 287.
Campaign contributions and independent expenditures are part of our process of democratic self-government. Under Supreme Court precedent, the activities of self-government include functions as unrelated to the electoral process as teaching in public schools and serving as police and probation officers. Id. at 288 (citations omitted). [S]pending money to influence voters and finance campaigns is at least as (and probably far more) closely related to democratic self-government than serving as a probation officer or public schoolteacher. Id. at 288–89. It’s thus unsurprising that the dissenters in Citizens United emphasized that the Court has never cast doubt on laws that place special restrictions on campaign spending by foreign nationals. Citizens United v. Fed. Election Comm‘n, 558 U.S. 310, 423 (2010) (Stevens, J., concurring in part and dissenting in part). For this very same reason, courts have upheld large-donor disclosure requirements because, in part, they help ensure that foreign nationals . . . do not seek to influence United States’ elections. Indep. Inst. v. Fed. Election Comm‘n, 216 F. Supp. 3d 176, 191 (D.D.C. 2016), aff’d, 580 U.S. 1157 (2017); see also SpeechNow.org v. Fed. Election Comm‘n, 599 F.3d 686, 698 (D.C. Cir. 2010).
Plaintiffs, for their part, take issue with the fact that § 121 extends to advocacy surrounding ballot initiatives. They argue that spending related to ballot issues falls outside
Ohio’s compelling interest in preventing foreign influence over its elections encompasses the influence of lawful permanent residents. Discussing who the government can exclude from the processes of self-government, the Supreme Court has drawn the relevant distinction between citizens and non-citizens. Cabell, for example, distinguished between aliens and United States citizens, 454 U.S. at 439, and Ambach focused on noncitizens, 441 U.S. at 75. Lawful permanent residents fall on the non-citizen side of that dividing line.
Bluman supports this reading. It focused on the exclusion of foreign citizens from the democratic process. 800 F. Supp. 2d at 287. And the statute at issue served the compelling interest of limiting the participation of non-Americans in the activities of democratic self-government. Id. at 290 (emphasis in original). The compelling interest identified by the Supreme Court amounts to preventing influence by all those without American citizenship, including lawful permanent residents, over America’s process of democratic self-government. Bernal v. Fainter, 467 U.S. 216, 220 (1984).
The district court cited several features of lawful permanent residents that distinguish them from other non-citizens: indefinite residency in the United States, ability to serve in the military, registration with the Selective Service, and payment of income taxes. But none of these aspects of lawful permanent residency alters our analysis.
Indefinite residency is a privilege given to lawful permanent residents by the United States government. Indeed, the Supreme Court has observed that protract[ing] this ambiguous status within the country is not [an alien’s] right but is a matter of permission and tolerance. Harisiades v. Shaughnessy, 342 U.S. 580, 586–87 (1952). In other words, the United States government decided to give lawful permanent residents the privilege of indefinite residency.
To be sure, permitting military service for lawful permanent residents conveys a high degree of trust. See
Further, the fact that some lawful permanent residents must register for the Selective Service and pay income taxes doesn’t affect Ohio’s compelling interest. Lawful permanent residents’ duties to pay taxes and register for the Selective Service are part and parcel of the bargain they’ve struck with the United States to remain here. They enjoy the unrivaled benefits of United States residency, including many of the protections of the Bill of Rights. What’s more, all foreign citizens working in the United States must pay taxes. And the fact that lawful permanent residents must register for the Selective Service doesn’t detract from Ohio’s compelling interest in preventing foreign influence in its elections.
In sum, the Supreme Court’s approval of excluding foreigners from the process of self-government applies with full force to Ohio’s restrictions on lawful permanent residents’ political spending. The statute does not serve a compelling interest in limiting the participation of non-voters in the activities of democratic self-government; it serves the compelling interest of limiting the participation of non-Americans in the activities of democratic self-government.
Lower court precedent invalidating state campaign finance laws restricting the political speech of citizens from other states isn’t to the contrary. Unlike § 121, since those laws involve citizens, they must advance a permissible anti-quid pro quo corruption interest. See Fed. Election Comm‘n v. Cruz, 596 U.S. 289, 305 (2022). Usually, those cases involve states trying to prevent citizens from other states influencing their elections. That isn’t permissible since it doesn’t go to quid pro quo corruption. See Thompson v. Hebdon, 7 F.4th 811, 824–27 (9th Cir. 2021). But the fact that Alaska’s restrictions on the political spending of Texans fail to advance a legitimate anti-corruption interest says nothing about whether Ohio’s restrictions on the political spending of Russian citizens fail to advance an independently legitimate interest in guarding against foreign influence over U.S. elections. See Bluman, 800 F. Supp. 2d at 288 n.3.
* *
Next, we ask whether Ohio’s independent expenditure limits are narrowly tailored to its compelling interest. The court below upheld Ohio’s ban on expenditures by foreign nationals who aren’t lawful permanent residents. But the district court concluded that the law’s ban on expenditures by lawful permanent residents fails narrow tailoring. We disagree. Section 121 advances Ohio’s interest in guarding against foreign influence as applied to lawful permanent residents and is backed by sufficient evidence. And it’s neither overinclusive nor underinclusive.
Ohio has demonstrated a sufficient evidentiary link between its restriction on the political speech of lawful permanent residents and its compelling interest in preventing foreign influence in elections. To satisfy the narrow tailoring requirement of strict scrutiny, [t]here must be a direct causal link between the restriction imposed and the injury to be prevented. R. 32, Pg. ID 1178 (quoting United States v. Alvarez, 567 U.S. 709, 725 (2012)). But the quantum of empirical evidence needed to satisfy heightened judicial scrutiny of legislative judgments will
Ohio’s justification for § 121 is neither novel nor implausible. Worries about foreign influence in American politics date back to the Founding. See, e.g., George Washington, Farewell Address (Sept. 17, 1796), in 1 A Compilation of the Messages and Papers of the Presidents, 1789-1907, at 214 (James D. Richardson ed., 1908) (worrying about foreign influence that tamper[s] with domestic factions). And the prohibition on foreign contributions to political campaigns originated with the amended Foreign Agents Registration Act. See Pub. L. No. 89–486, § 8, 80 Stat. 244, 248–49 (1966). Those restrictions soon became part of the Federal Election Campaign Act of 1974. See Pub. L. No. 93–443, § 101(d), 88 Stat. 1263, 1267. Then, in 2002, mounting concerns about foreign financial involvement in American elections led to a ban on contributions and expenditures by foreign nationals. See Bipartisan Campaign Reform Act of 2002, Pub. L. No. 107–155, § 303, 116 Stat. 81, 96.
Worries about foreign influence in American elections have escalated in recent years. As a result, other states have also sought to restrict the influence of foreigners in their elections. See, e.g.,
Given this tradition of government regulation, Ohio has met its evidentiary burden for purposes of strict scrutiny. Ohio cites ample evidence of foreign money being spent on statewide elections and referenda. Before § 121’s passage, Ohio couldn’t detect the individual sources of foreign money because the recipient organizations spending the money did not need to report the identity of their donors. Katz Decl., R. 29-3, Pg. ID 1094. This created an untraceable
Stuck between a rock and a hard place, Ohio opted to draw bright lines to prevent foreign-national participation in Ohio’s self-government processes. Id. at 1095. By including lawful permanent residents, Ohio sought to apply its definition of foreign national comprehensively . . . to all non-citizens and to be clear about its reach. Id. (emphasis in original). Ohio had good reason to include lawful permanent residents within its regulatory purview.
Further, Ohio has provided enough evidence of the law’s necessity given the leeway states enjoy in addressing potential interference in their elections. The Supreme Court has noted that states’ interest in preserving the integrity of the electoral process is compelling. Munro v. Socialist Workers Party, 479 U.S. 189, 194 (1986). After all, protecting public confidence in elections is deeply important—indeed, critical—to democracy. Democratic Exec. Comm. of Fla. v. Lee, 915 F.3d 1312, 1327 (11th Cir. 2019) (citing Crawford v. Marion Cnty. Election Bd., 553 U.S. 181, 197 (2008) (plurality opinion)).
To this end, we’ve recognized that solicitude for state sovereignty regarding elections mitigates the evidentiary burden a State must satisfy to clear strict scrutiny. Russell v. Lundergan-Grimes, 784 F.3d 1037, 1053 (6th Cir. 2015). That makes sense: Just as information can be difficult to obtain and the impact of certain conduct difficult to assess when making efforts to confront evolving [foreign] threats, so too is information difficult to gather when making efforts to preserve election integrity from foreign influence. Holder v. Humanitarian L. Project, 561 U.S. 1, 34 (2010). In this context, conclusions must often be based on informed judgment rather than concrete evidence, and that reality affects what we may reasonably insist on from the Government. Id. at 34–35.
And the Supreme Court has recognized that state laws advancing foundational yet abstract interests like the public’s confidence in its government will rarely rest on hard evidence. In upholding a state restriction on the solicitation of campaign donations by judicial candidates,
So too here: Ohio can take steps to assure its people that foreign interests haven’t unduly swayed its elections without abundant proof by documentary record. Id. at 447. Addressing a widespread perception of foreign interference makes perfect sense. Nixon, 528 U.S. at 390. Leave the perception of impropriety unanswered, and the cynical assumption that [foreign] donors call the tune could jeopardize the willingness of voters to take part in democratic governance. Id. Thus, contrary to the district court’s finding, Ohio met its burden of linking spending by lawful permanent residents to preventing foreign interference in Ohio’s elections.3
Similarly, to maintain public confidence in fair elections, the Court has permitted states to respond to potential deficiencies in the electoral process with foresight rather than reactively. Munro, 479 U.S. at 195. For example, the Supreme Court has recognized that because [e]lections vary from year to year, and place to place, it can be difficult to make specific findings about the effects of a voting regulation. Burson v. Freeman, 504 U.S. 191, 209 (1992). As a result, requiring precise proof of those effects would necessitate that a State’s political system sustain some level of damage before the legislature could take corrective action. Munro, 479 U.S. at 195. So too with a campaign finance restriction: quantifying the precise effects of non-citizens’ political expenditures is all but impossible.
Just as § 121 doesn’t fail narrow tailoring for lack of evidentiary support, so too does it satisfy narrow tailoring with respect to its means-ends fit. To begin with, Section 121 is not overinclusive since it doesn’t restrict more speech than necessary.
Plaintiffs argue that the law is overinclusive because it’s far too sweeping. Response at 11. They maintain that § 121 would proscribe seemingly innocuous conduct, including incidental expenditures for a yard-sign that expresses a view on state or local politics. Id. at 12 (quoting R. 32, Pg. ID 1182). That’s incorrect. Section 121 doesn’t bar anyone from posting yard-signs. It only applies to the purchase of a yard-sign. Thus, this provision plugs a loophole by which a non-citizen could, say, buy a yard-sign for $20,000 and circumvent Ohio’s other spending prohibitions. This prohibition doesn’t sweep too broadly. Ohio’s law still allows homemade yard-signs. And it allows a non-citizen to receive a yard-sign and place it on his lawn. At bottom, Ohio set out to prevent foreign influence in state elections by preventing foreign influence in state elections. Nothing could be more narrowly tailored.
The district court also deemed Ohio’s restrictions on lawful permanent residents’ political speech overinclusive because § 121 swept in American citizens who share finances with
Plaintiffs counter that Ohio’s administrative code doesn’t alter its campaign finance laws or the Attorney General’s enforcement authority. True, but irrelevant. Ohio expressly conceded that its laws wouldn’t apply to a citizen who shares a bank account with a non-citizen and spends money on a political campaign from the shared account. Ohio would be judicially estopped from enforcing § 121 under those circumstances. See New Hampshire v. Maine, 532 U.S. 742, 745 (2001).
The same goes for Ohio’s regulation of ballot advocacy along with advocacy for or against a candidate. FECA only prohibited the latter. But FECA’s limited scope doesn’t render Ohio’s law overinclusive. In fact, FECA was challenged as underinclusive for not covering ballot advocacy. See Bluman, 800 F. Supp. 2d at 290–91. Overinclusive if you do, underinclusive if you don’t. The First Amendment doesn’t create that dilemma.
Nor is § 121 overinclusive because it extends to lawful permanent residents in the first place. Indeed, Congress has contemplated this extension but never enacted it. See supra note 2. From this, the dissent reasons that less burdensome alternatives exist for advancing Ohio’s interest in preventing foreign influence over its elections—namely, a FECA-like regulation that doesn’t include lawful permanent residents. Dissent at 27. But narrow tailoring in the context of strict scrutiny only requires the government to use the least restrictive means that still allow it to achieve its compelling interest. Strict scrutiny doesn’t demand that the government sacrifice its compelling interest. We can’t invalidate a law because the government could’ve adopted a different approach that advances its compelling interest less effectively. If the goal is to prevent foreign influence, extending the ban to all non-citizens (including lawful permanent residents) is
Relatedly, amici worry that § 121 forces non-profits and unions to implement burdensome measures to segregate contributions from foreign nationals to ensure that such donations aren’t used for electioneering. See Ohio Educ. Ass’n Br. at 8; Ohio Env’t Council Br. at 14. While that may be true, an administrative burden can’t overcome Ohio’s interest in safeguarding its elections from foreign interference. And as Ohio points out, nonprofits and unions already must comply with a host of state and federal reporting obligations when they solicit donations. See, e.g.,
Amici also express concerns about the costs of unverified complaints and mandatory investigation by the Attorney General. See
Similarly, Ohio’s restriction on lawful permanent residents’ ability to make independent expenditures isn’t underinclusive. In concluding otherwise, the district court was right on the law and wrong on its application. [U]nderinclusiveness can raise doubts about whether the government is in fact pursuing the interest it invokes. R. 32, Pg. ID 1183 (citation and quotation omitted). A law cannot claim to protect an interest of the highest order, but then leave[] appreciable damage to that supposedly vital interest unprohibited. Id. (citation omitted).
So why did the district court find § 121 underinclusive? Because § 121 fails to restrain political speech by foreign-owned American corporate entities, which purportedly pose a much
In sum, Section 121 serves the compelling interest of limiting the participation of non-Americans in the activities of democratic self-government. A statute that excludes [lawful permanent residents] from political spending is therefore tailored to achieve that compelling interest. Bluman, 800 F. Supp. 2d at 290 (emphasis omitted). Ohio’s restriction on expenditures by lawful permanent residents is justified by a compelling government interest and is narrowly tailored in pursuing that interest. It survives strict scrutiny.
* * *
All these considerations apply with equal force to Ohio’s contributions ban. Ohio retains its compelling interest in preventing foreign influence over its elections, and the contributions ban is closely drawn to advance that interest for the same reasons the expenditures ban survives narrow tailoring. Buckley, 424 U.S. at 25. Just as Ohio’s expenditure ban survives
C.
Moving onto the second Nken factor, we conclude that Ohio will be irreparably harmed absent a stay of the injunction. The inability to enforce its duly enacted [law] clearly inflicts irreparable harm on the State. Abbott v. Perez, 585 U.S. 579, 602 n.17 (2018). At the same time, the loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury. Elrod v. Burns, 427 U.S. 347, 373 (1976). These competing claims to irreparable injury both point back to the importance of the merits inquiry in this context. Cf. Bays v. City of Fairborn, 668 F.3d 814, 819 (6th Cir. 2012) (noting the same in the preliminary injunction context with respect to First Amendment challenges).
D.
The third and fourth Nken factors—whether issuing a stay will substantially injure the other parties interested in the proceeding and where the public interest lies—merge when the government is a party. Nken, 556 U.S. at 435. And again, they hinge on the merits here: It’s in the public interest to prevent violations of constitutional rights. See Deja Vu of Nashville, Inc. v. Metro. Gov‘t of Nashville & Davidson Cnty., 274 F.3d 377, 400 (6th Cir. 2001). But it’s equally in the public interest to give effect to the will of the people by enforcing the laws they and their representatives enact, absent a constitutional issue. Thompson v. DeWine, 959 F.3d 804, 812 (6th Cir. 2020) (quotation omitted).
* * *
The state of Ohio passed a law restricting the ability of foreign nationals to contribute to state campaigns and make independent expenditures related to state ballot initiatives. Concerns about foreign interference in American politics aren’t new. And Ohioans and their representatives have a compelling interest in regulating such influence. We can’t interfere with their judgment unless the First Amendment demands it. And here, it doesn’t.
We accordingly grant Ohio’s motion and stay the district court’s injunction.
OPAWL - Building AAPI Feminist Leadership v. Yost
DAVIS, Circuit Judge
DAVIS, Circuit Judge, dissenting. Ohio’s
To begin,
United States citizens and lawful permanent residents have First Amendment rights. See Bridges v. Wixon, 326 U.S. 135, 148 (1945) (“Freedom of speech and press is accorded aliens residing in this country.”). And I agree with my colleagues’ observation that Ohio’s statutory regulation of independent expenditures and campaign contributions constitutes a restriction on speech. See Buckley v. Valeo, 424 U.S. 1, 16-23 (1976). As such,
A stay is an intrusion into the ordinary process of administration and judicial review. Nken v. Holder, 556 U.S. 418, 434 (2009). In deciding whether to grant Ohio a stay, we must consider “traditional stay factors,” which include: (1) whether the state has made a strong showing of its likelihood of success on the merits; (2) whether it will experience irreparable harm absent a stay; (3) the prospect that a stay would substantially injure other interested parties; and (4) the public interest in granting a stay.1 Id. at 426. And the district court’s grant of a preliminary injunction is reviewed for an abuse of discretion. Overstreet v. Lexington-Fayette Urb. Cnty. Gov’t, 305 F.3d 566, 573 (6th Cir. 2002). To obtain a stay, Ohio was required to show more than “the mere possibility of success.” Michigan Coal. of Radioactive Material Users, Inc. v. Griepentrog, 945 F.2d 150, 153 (6th Cir. 1991).
Ohio argues that it is likely to succeed on the merits because: (1) the state may exclude noncitizens from the mechanics of democratic self-government; and (2) the preliminary injunction is overbroad in that it blocks applications that are constitutional and reaches non-parties. (Doc. 15, Mot., 8–21). Both arguments fall short, leaving Ohio unlikely to prevail on the merits. Given the substantial influence we typically ascribe to this first factor, a stay is not warranted. See Boone Cnty. Republican Party Exec. Comm. v. Wallace, No. 24-5783, 2024 WL 4048630, at *4 (6th Cir. Sept. 5, 2024) (“[I]n First Amendment cases, the outcome generally boils down to the [likelihood of success].”); see also Bays v. City of Fairborn, 668 F.3d 814, 819 (6th Cir. 2012).
II.
The First Amendment provides that “Congress shall make no law . . . abridging the freedom of speech.”
Laws that abridge political speech are generally subject to, at least, intermediate scrutiny. See McCutcheon v. Fed. Election Comm’n, 572 U.S. 185, 228 (2014) (applying intermediate scrutiny and recognizing “[p]olitical speech [as] the primary object of First Amendment protection.”) (Thomas, J., concurring); Buckley, 424 U.S. at 42 (1976) (applying the intermediate “closely drawn” test and identifying political expenditures and contributions as qualifying political speech).
The district court determined that
Strict scrutiny requires the state to prove that the challenged law is narrowly tailored to further a compelling government interest, and that there are no less restrictive alternatives available. Americans for Prosperity Found. v. Bonta, 594 U.S. 595, 611 (2021), see also Boone Cnty., 2024 WL 4048630, at *8 (“When considering whether a regulation or restriction is narrowly tailored to the interest asserted, we consider the availability of less restrictive alternatives.”). Intermediate scrutiny, on the other hand, asks whether the law is closely drawn to further a sufficiently important government interest. McCutcheon, 572 U.S. at 197. To be clear, although the closely drawn standard is more intermediate scrutiny than it is strict, it is still a “rigorous” review. Id. at 199. To meet this burden, Ohio must do more than “simply posit the existence of the disease sought to be cured . . . It must instead point to record evidence or legislative findings demonstrating the need to address a special problem.” FEC v. Cruz, 596 U.S. 289, 307 (2022) (cleaned up). And “[b]road prophylactic rules in the area of free expression are suspect.” NAACP v. Button, 371 U.S. 415, 438 (1963).
Government Interest. The district court correctly concluded that Ohio has a “compelling interest in limiting the participation of foreign citizens in activities of American democratic self-government, and in thereby preventing foreign influence over the U.S. political process.” See Bluman v. Fed. Election Comm’n, 800 F. Supp. 2d 281 (D.D.C. 2011) (Kavanaugh, J.), aff’d, 565 U.S. 1104 (2012). “Just as the Framers of the Constitution intended the states to keep for themselves, as provided in the Tenth Amendment, the power to regulate elections . . . each State has the power to prescribe the qualifications of its officers and the manner in which they shall be chosen.” Sugarman v. Dougall, 413 U.S. 634, 647 (1973). And with that “historical power,” the states’ ability “to exclude aliens from participation in its democratic political institutions [is] part of the sovereign’s obligation to preserve the basic conception of a political community.” Bluman, 800 F. Supp. 2d at 287 (citing Foley v. Connelie, 435 U.S. 291, 295-96 (1978) (alteration in original)).
Sufficient Tailoring to LPRs. Accepting that states possess a general compelling interest in keeping foreign influences out of their political process, it is unlikely that a full bar against protected political speech of the sort restricted by
This is understandable given LPRs’s distinct status.3 Among other things, their First Amendment protected speech rights set them apart from other noncitizens and underscore their inclusion in the national community. Compare Bridges, 326 U.S. at 148 (affirmatively extending First Amendment rights to LPRs), with United States v. Verdugo-Urquidez, 494 U.S. 259, 266 (1990) (reserving First Amendment protections for “a class of persons who are persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community”) (citing United States ex rel. Turner v. Williams, 174 U.S. 279, 194 U.S. 292 (1904) (suggesting the exclusion of nonresident immigrants from First Amendment protections).
Indeed, our government has passed and adjudicated laws respecting federal elections that seek to protect the same interests Ohio has identified here without implicating LPRs at all. See, e.g.,
That is because LPRs have a lawful, though conditional, right to live in the United States permanently, and they have a different relationship with this country than do other groups of noncitizens. LPRs share in many of the responsibilities, and the rights, of United States citizens. For instance, LPRs register for selective service in the United States military, pay taxes and they
Understanding the majority’s point that the empirical evidence required to satisfy heightened scrutiny varies with the novelty and plausibility of the justification raised, Ohio has still failed to meet this burden. Nixon v. Shrink Missouri Gov’t PAC, 528 U.S. 377, 391 (2000). Indeed, defining LPRs as foreign nationals worthy of concern as it relates to protecting elections from foreign influence appears to be relatively novel. The examples cited by the majority do not help. Minnesota’s
Moreover, less burdensome alternatives exist. Boone Cnty., 2024 WL 4048630, at *8; see also Bonta, 594 U.S. at 611. Several examples demonstrate the ill fit between
Domestic Organizations. In addition to
In an apparent attempt to evade this flaw,
The majority asserts that crediting the OEA’s argument leads to being “[o]verinclusive if you do, underinclusive if you don’t.” Majority Op. at 19. But that is not the case. The root of the problem with
United States Citizens. There also remains the legitimate concern relating to joint accounts owned by both citizens and lawful permanent residents. The district court noted that “Plaintiff Peter Quilligan’s situation illustrates the statute’s overbreadth.” (R. 32, Op. & Order,
The words “[a]bsent evidence to the contrary” are freighted. In briefing, Ohio does not clarify whether the person, a United States citizen, endorsing a check from a joint account will come under any civil or criminal scrutiny. The law’s phrasing certainly leaves open the possibility that Ohio will rigorously question the authenticity and accurateness of checks from joint accounts. Accordingly, citizens could be pursued civilly or criminally for exercising their First Amendment rights to political speech. Even if they are ultimately cleared of any wrongdoing, such state action is unnecessarily burdensome and could chill speech.
Each of the above examples demonstrate that
The above-noted instances of exclusion of LPRs from expenditure restrictions in federal law raise the question whether this class of noncitizens wields the corrupting influence Ohio’s law seeks to tackle. Since the interest of limiting foreign influence in Ohio’s political process can be met without abridging the rights of an entire category of right-holders, it is difficult to say that it is closely drawn.
III.
The remaining factors do not change the result here. Thompson v. Dewine, 959 F.3d 804, 807–08 (6th Cir. 2020) (quoting Obama for Am. v. Husted, 697 F.3d 423, 436 (6th Cir. 2012)) (“When evaluating [the stay] factors for an alleged constitutional violation, ‘the likelihood of success on the merits often will be the determinative factor.’”). Any irreparable injury to Ohio rests on whether the law it seeks to enforce is constitutional. See Thompson, 959 F.3d at 812 (“Unless the statute is unconstitutional, enjoining a state from conducting its elections pursuant to a statute enacted by the Legislature . . . would seriously and irreparably harm the state.”) (cleaned up). The answer to such a question necessarily circles back to Ohio’s likelihood of success on the merits when the constitutionality of the law is being challenged. Similarly, the “merged” third and fourth factors offer no help. Nken, 556 U.S. at 435. The government has no interest in enforcing unconstitutional laws, and “[l]ikewise, the determination of where the public interest lies also is dependent on a determination of the likelihood of success on the merits of the First Amendment challenge because ‘it is always in the public interest to prevent the violation of a party’s constitutional rights.’” Connection Distrib. Co. v. Reno, 154 F.3d 281, 288 (6th Cir. 1998) (quoting G & V Lounge, Inc. v. Mich. Liquor Control Comm’n, 23 F.3d 1071, 1079 (6th Cir. 1994)). Thus, Ohio’s low likelihood success on the merits counsels against issuing a stay.
Lastly, the Purcell principle likely does not apply here. See Purcell v. Gonzalez, 549 U.S. 1 (2006) (per curiam). Ohio asserts that Purcell applies in its favor, noting that both this court and the Supreme Court have stayed injunctions of state laws regarding signature requirements for ballot-initiative petitions. (Doc. 15, Mot., 6–7 (citing Little v. Reclaim Idaho, 140 S. Ct. 2616 (2020); Thompson, 959 F.3d 804 (6th Cir. 2020) (order) (per curiam)).
However, this case shares more in common with Boone Cnty., where this court—without regard to Purcell—enjoined the Kentucky agency tasked with investigating and prosecuting campaign-finance violations from enforcing its advisory opinion against plaintiff-executive committees for raising or expending funds in support of a constitutional amendment on the November ballot. 2024 WL 4048630; but see Lair v. Bullock, 697 F.3d 1200, 1214 (9th Cir. 2012) (granting a stay pending appeal of the district court’s injunction enjoining Montana from enforcing its campaign contribution limits).
The core concerns underlying Purcell relate to the “risk of voter confusion and the unfairness of unexpected administrative burdens.” Tenn. Conf. of the NAACP, 105 F.4th at 897. A law not even touching voting rights—or seeking to regulate voters for that matter—does not address those concerns.
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Because Ohio has not shown that it is likely to demonstrate a strong likelihood of success on the merits, I would deny a stay of the district court’s injunction.