Peggy Jones v. Larry Jegley, Prosecuting Attorney for Pulaski County

United States Court of Appeals
For the Eighth Circuit
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No. 19-2260
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Peggy Jones
Plaintiff - Appellee
v.
Larry Jegley, Prosecuting Attorney for Pulaski County, In His Official Capacity;
Sybal Jordan Hampton, In Her Official Capacity as a Member of the Arkansas
Ethics Commission; Tony Juneau, In His Official Capacity as a Member of the
Arkansas Ethics Commission; Ashley Driver Younger, In Her Official Capacity as
a Member of the Arkansas Ethics Commission; Alice L. Eastwood, In Her Official
Capacity as a Member of the Arkansas Ethics Commission; Lori Klein, In Her
Official Capacity as a Member of the Arkansas Ethics Commission
Defendants - Appellants
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Institute for Free Speech
Amicus on Behalf of Appellee(s)
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Appeal from United States District Court
for the Eastern District of Arkansas - Little Rock
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Submitted: September 26, 2019
Filed: January 27, 2020
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Before KELLY, MELLOY, and STRAS, Circuit Judges.
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STRAS, Circuit Judge.
Peggy Jones wishes to donate to candidates running for state office in
Arkansas’s 2022 election. Arkansas law prohibits her from doing so until two
years before election day. Jones claims that this “blackout period” violates her
First Amendment rights. The district court
1
concluded that she is likely to win and
granted a preliminary injunction. We affirm.
I.
In Arkansas, individuals may donate up to $2,700 to a candidate for public
office for the primary election and then donate up to the same amount once again
for the general election. Ark. Code § 7-6-203(b)(1); see id. § 7-6-201(7)
(providing that a primary election and a general election “each constitute[s] a
separate election”). But there is a catch: candidates can only accept contributions
within two years of an election. Id. § 7-6-203(e). If money changes hands during
a “blackout period,” Arkansas has been clear that both the donor and the candidate
who received the contribution can be prosecuted. Brief of Appellants at 1; see Ark.
Code § 7-6-202.
Jones is a “longtime political activist” who has frequently donated to
political campaigns in Arkansas. She wants to donate now to candidates who have
expressed a willingness to run in 2022. But her fear of prosecution, at least
according to her complaint, has stopped her in her tracks. Hoping to clear the path,
however, she has filed a lawsuit challenging the blackout period and has named
Pulaski County Prosecutor Larry Jegley and the Commissioners of the Arkansas
Ethics Commission (collectively, “Arkansas”) as the defendants.
2
After
1
The Honorable James M. Moody, Jr., United States District Judge for the
Eastern District of Arkansas.
2
The Commissioners argue that they never should have been sued and that we
must now dismiss them from the lawsuit. We disagree. Because the Arkansas Ethics
Commission investigates campaign-finance violations, levies fines against candidates,
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concluding that Jones was likely to win on the merits, the district court granted her
request for a preliminary injunction. Arkansas asks us to vacate the injunction on
appeal. See 28 U.S.C. § 1292(a)(1).

II.
Our starting point is jurisdiction, and specifically whether Jones has
established standing to sue. Standing has three requirements: (1) an injury in fact;
(2) a causal connection between the injury and the challenged law; and (3) a
likelihood that a favorable decision will redress the injury. Telescope Media Grp.
v. Lucero, 936 F.3d 740, 749 (8th Cir. 2019) (citing Spokeo, Inc. v. Robins, 136
S. Ct. 1540, 1547 (2016)). The dispute is over the first one: whether Jones has
suffered an injury in fact.
At this stage, we assume that the allegations in the complaint are true and
view them in the light most favorable to Jones. See Heartland Acad. Cmty. Church
v. Waddle, 335 F.3d 684, 689 (8th Cir. 2003); see also Lujan v. Def. of Wildlife,
504 U.S. 555, 561 (1992) (explaining that “each element [of standing] must be
supported in the same way as any other matter on which the plaintiff bears the
burden of proof, i.e., with the manner and degree of evidence required at the
successive stages of the litigation”). Under this standard, Jones must have alleged
in her complaint, at a minimum, that she has “an intention to engage in a course of
conduct arguably affected with a constitutional interest, but proscribed by a statute,
and . . . a credible threat of prosecution thereunder.” Susan B. Anthony List v.
Driehaus, 573 U.S. 149, 159 (2014) (citation omitted) (explaining how to establish
an injury in fact in a pre-enforcement constitutional challenge); see also 281 Care
Comm. v. Arneson, 638 F.3d 621, 627 (8th Cir. 2011) (stating that “[s]elf-
censorship can . . . constitute [an] injury in fact” for a free-speech claim when a
and makes referrals to law enforcement, Ark. Code § 7-6-218(b), the Commissioners
have a “strong enough” connection to the challenged law to make them “proper
defendant[s].” 281 Care Comm. v. Arneson, 638 F.3d 621, 632–33 (8th Cir. 2011)
(applying Ex parte Young, 209 U.S. 123 (1908)).
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plaintiff reasonably decides “to chill [her] speech in light of the challenged
statute”).
Jones’s complaint clears this hurdle. In it, she alleges that she would donate
to candidates running in the 2022 election if it were not illegal to do so. This
general expression of intent is enough. See Ark. Right to Life State Political Action
Comm. v. Butler, 146 F.3d 558, 560 (8th Cir. 1998); see also Constitution Party of
S.D. v. Nelson, 639 F.3d 417, 420 (8th Cir. 2011) (concluding that “‘general
factual allegations of injury resulting from the defendant’s conduct’ will suffice to
establish Article III standing at the pleading stage” (quoting Lujan, 504 U.S. at
561)).
She did not stop there. Once Arkansas began to question whether she had
standing, she filed an affidavit expressing her desire to donate to Arkansas State
Senator Mark Johnson. The affidavit stated that she has donated to Johnson before
and wishes to make another contribution in advance of the 2022 election. See
Davis v. Anthony, Inc., 886 F.3d 674, 677 (8th Cir. 2018) (noting the “wide
discretion” of trial courts to consider affidavits and other evidence of “disputed
jurisdictional facts” at the pleading stage (citation omitted)). Together, the
allegations in Jones’s complaint and the affidavit leave us with no doubt that she
has done enough at this stage to establish an intended “course of conduct arguably
affected with a constitutional interest.” Susan B. Anthony List, 573 U.S. at 159
(citation omitted).
Jones has also adequately alleged a credible threat of prosecution. Arkansas
insists that donors who make contributions during a blackout period, as Jones
wants to do, can be prosecuted for “knowingly fail[ing] to comply” with campaign-
finance laws. Ark. Code § 7-6-202. Nevertheless, Arkansas argues that any threat
of prosecution at this point is not “credible” because Jones has not actually violated
the statute. We have repeatedly rejected the argument that a plaintiff must risk
prosecution before challenging a statute under the First Amendment, and we do so
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again here. See, e.g., Telescope Media Grp., 936 F.3d at 749; 281 Care Comm.,
638 F.3d at 627; St. Paul Area Chamber of Commerce v. Gaertner, 439 F.3d 481,
485 (8th Cir. 2006); Ark. Right to Life, 146 F.3d at 560. As we explained in 281
Care Committee, as long as there is no “evidence—via official policy or a long
history of disuse—that authorities” have “actually” refused to enforce a statute, a
plaintiff’s fear of prosecution for illegal activity is objectively reasonable. 638
F.3d at 628.
Arkansas also argues that there is no credible threat of prosecution because
Senator Johnson has not yet become a “candidate” under Arkansas law. Ark. Code
§ 7-6-201(2). To be sure, Senator Johnson has not, as Arkansas points out,
“publicly announced” that he is running for reelection. But no public
announcement is necessary. Rather, anyone who “has knowingly and willingly
taken affirmative action, including solicitation of funds, for the purpose of seeking
nomination for or election to any public office” is a “[c]andidate.” Id.
Here, Johnson has already “knowingly and willingly” taken at least one
“affirmative action”: he allegedly told Jones that he was running in 2022. He has
not yet solicited or accepted contributions for his reelection bid, but the reason is
clear: any attempt to do so would expose him to criminal liability for violating the
blackout period. Under these circumstances, Jones has established, at least at this
stage, that if she were to donate to Senator Johnson now, the threat of prosecution
would be credible.

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III.
Having dealt with standing, our next task is to address whether Jones was
entitled to a preliminary injunction. When deciding whether to grant one, the
district court had to consider four equitable factors: whether Jones “[was] likely to
succeed on the merits, [whether s]he [was] likely to suffer irreparable harm in the
absence of preliminary relief, [whether] the balance of equities tip[ped] in h[er]
favor, and [whether] an injunction [was] in the public interest.” Winter v. Nat. Res.
Def. Council, Inc., 555 U.S. 7, 20 (2008); see also Benisek v. Lamone, 138 S. Ct.
1942, 1943–44 (2018) (per curiam); Dataphase Sys., Inc. v. C L Sys., Inc., 640
F.2d 109, 114 (8th Cir. 1981) (en banc). Only the conclusion that Jones is likely to
succeed on the merits—generally the most important factor in First Amendment
cases—is contested here. See Phelps-Roper v. Nixon, 545 F.3d 685, 690 (8th Cir.
2008) (explaining that, in a First Amendment case, likelihood of success on the
merits is “often the determining factor in whether a preliminary injunction should
issue”), overruled on other grounds by Phelps-Roper v. City of Manchester, 697
F.3d 678 (8th Cir. 2012) (en banc).
A.
The district court was right that, at this early stage of the litigation, Jones is
likely to succeed on the merits. “[T]he First Amendment safeguards an
individual’s right to participate in the public debate through political expression
and political association. When an individual contributes money to a candidate,
[s]he exercises both of those rights . . . .” McCutcheon v. Fed. Election Comm’n,
572 U.S. 185, 203 (2014) (plurality opinion) (internal citation omitted). Because
of the constitutional rights involved, any attempt to restrict political contributions
must withstand exacting scrutiny. Under this standard, the state bears the burden
of establishing that the restriction “advance[s] a sufficiently important state interest
and employ[s] means closely drawn to avoid unnecessary abridgement of First
Amendment freedoms.” Free & Fair Election Fund v. Mo. Ethics Comm’n, 903
F.3d 759, 763 (8th Cir. 2018).
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Arkansas asserts that the blackout period’s purpose is to prevent corruption
or its appearance. There is no doubt that, in the abstract, this is a sufficiently
important state interest. See Minn. Citizens Concerned for Life, Inc. v. Kelley, 427
F.3d 1106, 1112 (8th Cir. 2005) (noting the “significant state interest” in
“[a]voiding the appearance or perception of corruption”). But Arkansas “may
target only a specific type of corruption—‘quid pro quo’ corruption,” McCutcheon,
572 U.S. at 207 (plurality opinion), and even then only if blackout-period
contributions pose a “substantial risk” of it. Free & Fair Election Fund, 903 F.3d
at 764.
Arkansas has not shown that contributions made more than two years before
an election present a greater risk of actual or apparent quid pro quo corruption than
those made later. In fact, at the preliminary-injunction hearing before the district
court, Arkansas admitted that it was “unaware of any . . . evidence” tying earlier
contributions to the state’s anti-corruption interest. (Emphasis added). Arkansas
has given us no reason to believe that it will have anything more to offer at trial
either. See Nixon v. Shrink Mo. Gov’t PAC, 528 U.S. 377, 392 (2000) (stating that
“mere conjecture” is never “adequate to carry a First Amendment burden”).
We do not write on a blank slate here. In McCutcheon, the Supreme Court
told us what type of evidence to expect when applying exacting scrutiny. In
addressing the constitutionality of aggregate contribution limits—which capped the
total amount that each donor could give to all candidates in a single election
cycle—the Court said that there must be proof that they accomplish something
more than base limits alone. See McCutcheon, 572 U.S. at 210 (plurality opinion);
see also Holmes v. Fed. Election Comm’n, 875 F.3d 1153, 1161 (D.C. Cir. 2017)
(en banc) (explaining that, after McCutcheon, “an additional constraint layered on
top of the base limits . . . separately need[s] to serve the interest in preventing the
appearance or actuality of corruption” (internal citation and quotation marks
omitted)). In the absence of such proof, the Court held, the statute violated the
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First Amendment.
3
See McCutcheon, 572 U.S. at 227 (plurality opinion). Just as
in McCutcheon, Arkansas’s failure here to provide any evidence that its blackout
period accomplishes anything more than the $2,700 base limits alone means that it
cannot survive exacting scrutiny. See id. at 210 (“If there is no corruption concern
in giving nine candidates up to $5,200 each, it is difficult to understand how a tenth
candidate can be regarded as corruptible if given $1,801, and all others corruptible
if given a dime.”); see also Zimmerman v. City of Austin, 881 F.3d 378, 392 (5th
Cir. 2018) (holding that a restriction on the timing of contributions “must be
justified by evidence that the additional limit serves a distinct interest in preventing
corruption that is not already served by the base limit”).
Arkansas would have us reach the opposite conclusion based on three other
decisions, none of which are binding or helpful. One decision, O’Toole v.
O’Connor, 802 F.3d 783, 789–91 (6th Cir. 2015), upheld a restriction limiting the
timing of individual donations to judicial campaign committees. O’Toole is not on
point, however, because “a State’s interest in preserving public confidence in the
integrity of its judiciary extends beyond its interest in preventing the appearance of
corruption in legislative and executive elections.” Williams-Yulee v. Fla. Bar, 135
S. Ct. 1656, 1667 (2015). In other words, the Supreme Court has been clear that
different rules apply to judicial elections. See id. (explaining that its “precedents
3
Arkansas argues that we should not treat the plurality opinion in McCutcheon
as binding, because Chief Justice Roberts wrote on behalf of only four members of the
Court, with Justice Thomas concurring in the judgment. This is not how the Supreme
Court has instructed us to read its opinions. Rather, when “no single rationale
explaining the result enjoys the assent of five Justices,” the holding of the Court is the
“position taken by those Members who concurred in the judgments on the narrowest
grounds.” Marks v. United States, 430 U.S. 188, 193 (1977) (citation omitted).
Because Chief Justice Roberts’s plurality opinion is the narrowest in support of the
judgment, it is binding. See Holmes, 875 F.3d at 1157 (applying Marks and
concluding that the McCutcheon plurality opinion is controlling); cf. Thompson v.
Hebdon, 140 S. Ct. 348 (2019) (per curiam) (vacating and remanding a campaign-
finance decision because of the failure to apply the plurality opinion from Randall v.
Sorrell, 548 U.S. 230 (2006)).
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applying the First Amendment to political elections have little bearing on” judicial
elections).
The other two decisions are even less helpful because they predate
McCutcheon. See N.C. Right to Life, Inc. v. Bartlett, 168 F.3d 705, 715–17 (4th
Cir. 1999); Thalheimer v. City of San Diego, 645 F.3d 1109, 1121–24 (9th Cir.
2011), overruled in part on other grounds by Bd. of Trs. of the Glazing Health &
Welfare Tr. v. Chambers, 941 F.3d 1195 (9th Cir. 2019) (en banc). And, in any
event, neither excuses Arkansas from its obligation to show how the blackout
period advances its anti-corruption interest.
B.
Perhaps aware that a lack of evidence may doom its argument that the
blackout period independently furthers its anti-corruption interest, Arkansas
advances an alternate rationale. It claims that prohibiting donors from making
contributions more than two years before an election ensures compliance with
other anti-corruption measures. Scrutinizing this “prophylaxis-upon-prophylaxis
approach” closely, we conclude that this rationale falls short too. McCutcheon,
572 U.S. at 221 (plurality opinion) (requiring courts to be “particularly diligent in
scrutinizing” these types of justifications).
Arkansas starts with the base limits, which it says would be placed in
jeopardy if candidates could accept contributions from donors for multiple cycles
at the same time. As with its principal anti-corruption rationale, however,
Arkansas has provided no evidence that the blackout period prevents
circumvention of its base limits. See id. at 217 (discussing the absence of evidence
of “any real-world examples of circumvention”). Moreover, even if the two
restrictions are indeed linked, the blackout period is still “poorly tailored.” Id. at
218. If preventing circumvention is the goal, there are a number of more closely
drawn alternatives, the most obvious of which would be prohibiting the solicitation
and receipt of funds for future election cycles. Arkansas’s chosen method of
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regulation, by contrast, which “indiscriminate[ly] ban[s] . . . all contributions”
through what appears to be an arbitrary two-year cutoff, goes too far in light of the
availability of other, closer-fitting alternatives. Id. at 220; see Free & Fair
Election Fund, 903 F.3d at 765 (explaining that, to survive exacting scrutiny, “the
fit between the interest served and the means selected need not be perfect, [but] it
must be reasonable, with the means selected proportionate to the interest served”).
Arkansas fares no better in trying to connect the blackout period to its post-
election-contribution ban. See Ark. Code § 7-6-203(g)(5). Under Arkansas law,
candidates are prohibited from accepting contributions after an election, except to
retire campaign debt. See id. Arkansas is apparently worried that donors will use
future campaign contributions as a way of offering post-election bribes to
victorious candidates. But even aside from the lack of an evidentiary record on
how the blackout period helps reduce this risk, there is an obvious problem with
this explanation. Given that Arkansas law already bans candidates from using
“campaign funds as personal income,” id. § 7-6-203(f)(1), it is unclear what, if
anything, the blackout period adds. See McCutcheon, 572 U.S. at 216 (plurality
opinion) (dismissing scenarios that were “either illegal under current campaign
finance laws or divorced from reality”). The bottom line is that the anti-
circumvention, “prophylaxis-upon-prophylaxis” rationale does not get Arkansas
past the finish line either. Id. at 221.
IV.
We accordingly affirm the grant of a preliminary injunction to Jones and
remand this case for further proceedings consistent with this opinion.
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