Statement on ruling in the case of Delaware Strong Families v. Attorney General

July 16, 2015   •  By Scott Blackburn
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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.

“In allowing Delaware to police non-political groups as though they were political parties and destroy the privacy of supporters contributing years before any election, the Third Circuit committed a grave error,” said Allen Dickerson, Legal Director for CCP and counsel to Delaware Strong Families (“DSF”). “Worse, this decision shatters forty years of Supreme Court precedent protecting the fundamental right to speak and associate without governmental scrutiny. We intend to seek that Court’s review.”

Nicole Theis, President of DSF, said: “Delaware, and the Third Circuit, are wrong to treat our voter guide like the ad buys of a major political party, requiring us to register with the State before seeking to educate voters on a strictly nonpartisan basis. A well-informed electorate is good for everyone, and the First Amendment protects our right to speech and association, and we intend to continue fighting to ensure those rights for ourselves and all Delaware citizens.”

This case, initially brought by the CCP 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.

Should the state have the power to regulate groups that publish nonpartisan 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 nonpartisan 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. Today’s ruling by 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.

Scott Blackburn

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