Alexandria, VA – The Center for Competitive Politics (CCP), America’s largest non-profit dedicated to protecting political free speech rights, issued the following statement in reaction to the Third Circuit Court of Appeals ruling in the case of Delaware Strong Families v. Attorney General of the State of Delaware:
“We’re disappointed that the 3rd Circuit declined to rehear the Delaware Strong Families case, and we’ll now appeal to the Supreme Court,” said Allen Dickerson, Legal Director for CCP and counsel to Delaware Strong Families (“DSF”).
“The First Amendment does not permit draconian restrictions on non-partisan voter guides that take no position on any candidate,” added David Keating, CCP President.
This case, initially brought before the 2012 elections, focused on the breadth of Delaware’s “electioneering communications” law. Unlike federal law, which is limited to broadcast communications, Delaware’s law goes much further, regulating the incidental mention of a candidate in mailings and on the Internet, even for neutral voter information activities distributed by educational groups. No other state has such a far-reaching law.
Should the state have the power to regulate groups that publish non-partisan voter guides in the same way that it regulates candidate committees, political parties and PACs? That’s the issue at stake in the case, which challenges a Delaware law that places unconstitutional burdens on groups publishing non-partisan voter guides.
As written, the law appears to require groups to choose between publishing information on candidates and violating the privacy of their supporters who might contribute as little as $9 a month. The Delaware law creates a new form of regulated speech known as a “third-party advertisement.” The law appears to subject groups that publish voter guides to essentially the same regulatory and disclosure burdens as parties, PACs and candidate committees.
In district court, DSF prevailed, receiving an injunction that permitted DSF to produce the guides before the 2012 general election. The judge ruled that “there is no case that purports to address disclosure requirements with the breadth” of the Delaware law. “The court concludes that the relation between the personal information collected … is too tenuous to pass constitutional muster. Therefore, the Act, as applied [to Delaware Strong Families], is unconstitutional.” The Third Circuit overruled that decision, holding that because DSF’s voter information guides were “communications that seek to impact voter choice by focusing on specific issues,” they could be regulated more stringently than broadcast ads aired by well-capitalized groups in federal elections.
Today a request for rehearing by the full Court of Appeals was denied, although two judges voted in favor of DSF’s motion.