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Delaware Enjoined From Enforcing Campaign Finance Disclosure Law

By Gabriella Khorasanee, JD on April 11, 2014 | Last updated on March 21, 2019

In the latest fallout from the Citizens United v. Federal Election Commission decision, the United States District Court for the District of Delaware has issued an order granting a preliminary injunction, enjoining the state of Delaware from enforcing Delaware Election Code Sections 8002(10), 8002(27) and 8031, which requires certain disclosures related to financial contributions to third-party political ads.

On January 1, 2013, Delaware's Election Disclosures Act ("Act") took effect, which would require organizations, including non-profits, to disclose donors when the funds are used for third-party advertisements during an election. Non-profit conservative group, Delaware Strong Families, who publishes and distributes a voter guide, sought to prevent enforcement of the Act by filing a verified complaint in district court.

Preliminary Injunction Factors

The court began its analysis of campaign finance jurisprudence and discussed the Supreme Court's line of cases beginning with Buckley v. Valeo, all the way down to Citizens United. Then, it turned to the four factor test to determine whether to grant a preliminary injunction.

In discussing the likelihood of success on the merits, the court concluded that the Act did not include standard exemptions, and "is so broadly worded as to include within the scope of its disclosure requirements virtually every communication made during the critical time period, no matter how indirect or unrelated it is to the electoral process." Because the issues dealt with hampering speech protected by the First Amendment, the court concluded the harms weighed in favor of Delaware Strong Families.

Going Forward

The Delaware Attorney General's office has not released a statement, but Delaware Strong Families released a press release stating, "The government cannot impose extensive regulatory burdens, or violate the privacy of donors, where an organization does not advocate for any candidate," reports The News Journal. Though Delaware Strong Families showed a likelihood to succeed, it remains to be seen whether they will maintain that likelihood on a more developed factual record.

Regardless of the outcome, we're betting on appeals.

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