CCP Files Amicus Brief Against 11th Amendment Dismissal in Ohio

DATELINE: Monday, July 23, 2012

CONTACT: Sarah Lee, Communications Director, Center for Competitive Politics, 770.598.7961

ALEXANDRIA, Va. – CCP’s Legal Department has filed a “friend of the court” brief in Kilroy v. Husteda case currently before the U.S. Court of Appeals for the Sixth Circuit after being dismissed on 11th Amendment grounds. CCP is arguing that a lower court erred in requiring enforcement to be “imminent” before allowing federal courts to review allegedly-unconstitutional state statutes. Such a ruling would make civil-rights challenges difficult and, in the context of First Amendment litigation, chill protected speech by threatening potential speakers with uncertain and unpredictable enforcement.

CCP’s brief was joined by the Brennan Center for Justice at NYU School of Law, the ACLU of Ohio, the ACLU Voting Rights Project, and the First Amendment Coalition.

The original case was brought by John Kilroy against Ohio Secretary of State John Husted. Kilroy alleged that he felt compelled to withdraw from contributing to candidates due to his ownership of a small number of shares in Target Corp., a provider of Medicaid services. Under Ohio law, certain candidates may not receive contributions from any person having an “ownership interest” in a company that provides such services. A federal judge in Ohio ruled that, because the statute had not been enforced, and because the Secretary’s staff would “not recommend” enforcement, that the 11th Amendment prevented the suit.

In their brief in support of Kilroy’s appeal, CCP and fellow amici argue that a number of important civil rights cases would never have been heard under the district court’s interpretation of the 11th Amendment. Said Legal Director Allen Dickerson, “this rule would allow states to insulate patently-unconstitutional statutes from legal challenge, raising the dangerous specter of selective enforcement and otherwise chilling legal activity. Obviously, as evidenced by the range of organizations joining this brief, the issue is one that transcends the political divide.”

Oral argument has not yet been scheduled.

The Center for Competitive Politics promotes and defends the First Amendment’s protection of political rights of speech, assembly, and petition. It is the only organization dedicated solely to protecting First Amendment political rights.

 

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The Center for Competitive Politics is now the Institute for Free Speech.