I now conclude that under governing Supreme Court precedent, theMaine election law standard applying to expenditures “to influence” or “toinfluence in any way” an election is unconstitutionally vague, but that theMaine election law statutes otherwise survive the plaintiff’s constitutionalchallenges.
The claims here come from the Second Amended Verified Complaint thatNOM filed on June 25, 2010.
NOM seeks a declaratory judgment on theconstitutionality of Maine’s definitions of “political action committee” (“PAC”),its regulation of “independent expenditures,” and its attribution and disclaimerrequirements for political messages. NOM also seeks injunctive relief againstenforcement of the law.
certainly made no ruling that the trial evidence would be sealed. I am not willing to make aFirst Amendment decision based upon a sealed record. As evidence at trial, the record is nowpublic in precisely the way that it would have been had live witnesses been called to testify. The parties must re-file the trial evidence as unsealed documents, part of the public record,but with any redactions required by Fed. R. Civ. P. 5.2.
The lawsuit as first filed in 2009 dealt with ballot question committees under Maine law. Idenied NOM and APIA a temporary restraining order on that subject before 2009’s referendumelection. See Nat'l Org. for Marriage v. McKee, 666 F. Supp. 2d 193 (D. Me. 2009).
Afterappeals and other delays, summary judgment practice is now underway for the ballot questioncommittee part of the lawsuit. In June 2010, NOM’s motion to file a Second Amended VerifiedComplaint was granted because of new Supreme Court caselaw. As a result, NOM added thecandidate election law issues that are the subject of this decision, but that turns out to havebeen unwise. Even NOM says that “[r]unning the two parts together—even considering the twoparts together—creates confusion.” Pl.’s Third Prelim. Inj. Reply at 7 (Docket Item 140). NOMrequested, and the Attorney General’s office agreed, to treat them separately, “including atseparate hearings.” Id. at 8. By agreement, therefore, and under Federal Rule of CivilProcedure 42(a), I ordered a separate trial on the candidate election issues. I find now thatthere is no just reason for delay with respect to the candidate election law issues, and directentry of final judgment on this set of claims, Counts V through VIII, under Federal Rule of CivilProcedure 54(b). The candidate election issues are entirely distinct from the ballot questioncommittee issues that remain. Final judgment as to the candidate election claims will permitan appeal before the 2010 elections.
Specifically, NOM seeks to enjoin enforcement of 21-A M.R.S.A. §§ 1052(5) (PAC definition),1012(3) and 1052(4) (definitions of “expenditure”), 1053-B (regulation of out-of-state PACs),1019-B (independent expenditure definition and reporting requirements), 1014 (attribution and
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