Virginia Society for Human Life, Inc. v. Caldwell

906 F.Supp. 1071 (1995)

VIRGINIA SOCIETY FOR HUMAN LIFE, INC., et al., Plaintiffs,
v.
Donald S. CALDWELL, et al., Defendants.

Civ. A. No. 95-1042-R.

United States District Court, W.D. Virginia, Roanoke Division.

October 30, 1995.

Donald Wise Huffman, Donald W. Huffman & Associates, P.C., Roanoke, VA, James Bopp, Jr., and Richard E. Coleson, Bopp, Coleson & Bostrom, Terre Haute, IN, for plaintiffs.

Alice Ann Berkebile, James S. Gilmore, III, and Lee Melchor Turlington, Office of the Attorney General, Richmond, VA, for defendants.

CORRECTED MEMORANDUM OPINION

WILSON, District Judge.

Plaintiffs, Virginia Society for Human Life, Inc. ("VSHL"), and Andrea Sexton, bring this action for declaratory and injunctive relief pursuant to 42 U.S.C. § 1983 for infringement of their rights to freedom of speech in violation of the First and Fourteenth Amendments to the United States Constitution. VSHL is a nonprofit, nonstock, public interest corporation that purportedly engages in "issue advocacy" in Virginia through the preparation and distribution of "voter guides."^[1] Sexton is a Virginia resident who distributes those guides in Virginia at her own expense. Defendants are Virginia's Commonwealth's Attorneys and members of the State Board of Elections charged with enforcing Virginia's election laws.^[2] VSHL and Sexton maintain that various provisions of Virginia's Campaign Finance Disclosure Act, Va.Code Ann. §§ 24.2-901 to 24.2-930 (1993), are overly broad and chill their free speech rights. They seek a declaratory judgment declaring the challenged provisions unconstitutional, and they seek to enjoin defendants from enforcing those provisions. Defendants contend that the challenged provisions do not apply to VSHL and Sexton and that the relief sought should be denied. The court finds that the challenged provisions arguably apply to VSHL and Sexton and have a chilling effect on their freedom of speech, if not narrowed by construction. Because a narrow reading could cure constitutional infirmity in two of the challenged provisions, this court, in the interest of avoiding potentially unnecessary constitutional adjudication and in the interest of federalism and comity, will submit issues of state statutory construction involving these provisions to the Virginia Supreme Court. In the meantime, however, this court will preliminarily enjoin enforcement of the challenged provisions.

I.

VSHL and Sexton challenge three sections of Virginia's Campaign Finance Disclosure Act, Va.Code Ann. § 24.2-908, § 24.2-910, and § 24.2-1014.^[3] Section 24.2-908 requires, with certain exceptions, "each person and political committee which anticipates receiving contributions or making expenditures in excess of $100" to file a "statement of organization" with the State Board of Elections detailing organizational, identifying and financial information. Section 24.2-910 requires persons and organizations subject to § 24.2-908 to maintain records and file disclosure reports. It also requires, in part, persons and political committees making "independent expenditures" to maintain records and report "contributions" received and "expenditures" made of:

1. Any funds, in the aggregate, in excess of $500 for a statewide election or $100 for any other election expended for the purpose of influencing the outcome of any election;

2. Any funds in any amount expended to publish or broadcast to the public any material referring to a candidate by name, description, or other reference and (i) advocating his election or defeat, (ii) setting forth his position on any public issue, voting record, or other official acts, or (iii) otherwise designed to influence individuals to cast their votes for or against him or to withhold their votes from him; and

3. Any funds in any amount expended to publish or broadcast to the public any material promoting or opposing a question submitted to the voters in a referendum.

Va.Code Ann. § 24.2-910.

The third challenged section, § 24.2-1014, makes it unlawful "to cause any writing ... to appear concerning any potential nominee or candidate, or concerning any question to be submitted to the voters unless such writing plainly identifies the person responsible for it," § 24.2-1014(B), and if that person is required to file a statement of organization under § 24.2-908, the writing must contain a registration number provided by the State Board of Elections. § 24.2-1014(B)(3).

On several occasions, state circuit courts have not only broadly construed similar provisions of the predecessor to Virginia's Campaign Finance Disclosure Act, the Fair Election Practice Act, Va.Code Ann. §§ 24.1-252 to 24.1-263.1 (repealed 1993), but also have relied on those similarly worded provisions to impose unconstitutional prior restraints. In 1989, for example, Virginia held elections for Governor, Lieutenant Governor, Attorney General, and the General Assembly. The Virginia Leadership Council ("VLC"), an unincorporated association consisting of various Virginia citizens, prepared over one million voter cards comparing the political positions taken by the major parties' candidates. On November 4, 1989, three days before the election, a judge of the Circuit Court of the City of Richmond enjoined VLC and an individual "from distributing any literature of a political nature without first identifying by name and address the person causing the literature to be distributed, and including on any literature distributed the required authorization statement."^[4] By its terms, the injunction expired after the election.

In connection with the 1989 elections, the "Committee for Providing Truth in Political Candidate Positions," an unincorporated association in Fairfax County, Virginia, consisting of various Fairfax County residents, prepared a handbill entitled "Read Before You Vote." The Democratic Party of Virginia ("DPV"), brought suit against that association and the VLC seeking an injunction. The day before the election, the Circuit Court of Fairfax County issued an unconstitutional prior restraint enjoining them from distributing or causing to be distributed the "Read Before You Vote" handbills and the "Leadership '89 Voter Cards" as well as "any other materials or publications or writings as defined in 24.1-277."^[5] The injunction was effective "until such time as the defendants [could] demonstrate to the Court compliance with the law."^[6]

In 1993, elections were held again for Governor, Lieutenant Governor, Attorney General, and the General Assembly. Following a similar pattern, the Circuit Court of Fairfax County entertained a suit shortly before the election to enjoin distribution of certain handbills. On October 27, 1993, the Circuit Court enjoined the defendants "from distributing any writing about candidates for any office elective ... without first filing a statement of organization with the [Virginia State] Board [of Elections]" and identified on the writing "the person responsible therefore" and the registration number.^[7] The Virginia Supreme Court dissolved the injunction on November 1, 1993, without opinion.^[8]

VSHL and Sexton now maintain that they would like to distribute voter guides that are equivalent to voter guides found unlawful and enjoined in connection with the 1989 and 1993 elections. However, they are concerned that they would be subject to civil and criminal penalties if their voter guides do not conform with Virginia law as that law has been applied by Virginia's circuit courts. On October 11, 1995, this court held a hearing on VSHL's and Sexton's motion for a preliminary injunction to enjoin enforcement of the challenged provisions. At the conclusion of the hearing, the court took the motion for preliminary injunction under advisement and issued a temporary restraining order restraining application of the challenged provisions to VSHL and Sexton, except in the case of "express advocacy for the election or defeat of a specific candidate." Virginia Society for Human Life, Inc. v. Caldwell, Civil No. 95-1042-R, (W.D.Va. Oct. 11, 1995) (temporarily enjoining enforcement of challenged statutes).

II.

Federal courts should abstain from deciding constitutional claims if a state court's interpretation of an unclear state statute might eliminate the constitutional issue. Railroad Comm'n v. Pullman, 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941); Educational Serv., Inc. v. Maryland State Bd. for Higher Educ., 710 F.2d 170 (4th Cir. 1983). Defendants maintain that the challenged provisions do not apply to pure issue advocacy, and thus, injunctive relief is unnecessary as to plaintiffs' "voter guides."^[9] In any event, defendants urge the court to submit constitutional questions to the Virginia Supreme Court. VSHL and Sexton respond that the provisions apply to them and that similar provisions of predecessor statutes have been broadly applied by the Virginia circuit courts to enjoin "issue advocacy," thus chilling their freedom of speech. They claim the challenged provisions are excessively overbroad, that no construction can save them, and that this court should declare them unconstitutional.

This court rejects the course of action suggested by each side. First, as to defendants' suggested course of action, Pullman counsels abstention, not abdication. The challenged provisions are arguably overbroad, and that potential overbreadth has been burdened further by the unhelpful constructions of various state circuit courts that have chilled First Amendment speech and imposed unconstitutional prior restraints. The constitutionality of the provisions is properly challenged in federal court, and the court cannot fulfill its responsibility by sending that constitutional challenge elsewhere. Pullman and federalism counsel that issues of state statutory construction, but not constitutional interpretation, be submitted to the Virginia Supreme Court. Second, as to plaintiffs' suggested course of action, this court has concluded that there are narrow constructions that the Virginia Supreme Court might place on § 24.2-908 and § 24.2-910 that would eliminate some constitutional issues. Under such circumstances, the court is satisfied that the provident course is to certify the issues of state statutory construction to the Virginia Supreme Court and, while awaiting that court's response, narrow application of the provisions by preliminary injunction. See Roe v. Alabama, 43 F.3d 574 (11th Cir.1995).

Va.Code Ann. § 24.2-908

At first blush, § 24.2-908 appears to apply to organizations engaged in pure issue advocacy and not simply electioneering. The "statement of organization" required by § 24.2-908, however, is tied to the receipt of contributions or the making of expenditures "for the purpose of influencing the outcome of an election." See § 24.2-901.

In Buckley v. Valeo, 424 U.S. 1, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976), the United States Supreme Court narrowly construed the language "for purpose of influencing the outcome of an election" contained in the Federal Election Campaign Act, by tying it to a major purpose of the Act's disclosure provision — "to reach only funds used for communications that expressly advocate the election or defeat of a clearly identified candidate," and thereby, avoided its application to "groups engaged purely in issue discussion." Id. at 79, 96 S.Ct. at 664.^[10] It is conceivable that the Virginia Supreme Court might do likewise with § 24.2-908. It would be incongruous for federal courts to narrowly construe the Federal Election Campaign Act so as to avoid constitutional challenge and then reach out and invalidate Virginia's Campaign Finance Disclosure Act without submitting pivotal statutory construction issues to the Virginia Supreme Court.

Va.Code Ann. § 24.2-910

Section 24.2-910 appears facially overbroad when read apart from the definitions of § 24.2-901. The disclosure requirements complained of, however, are once again tied to the receipt of "contributions" and the making of "expenditures," § 24.2-910(B), "for the purpose of influencing the outcome of an election." See § 24.2-901(A). Therefore, just as a narrow statutory construction of § 24.2-908 might eliminate the constitutional issues presented in the challenge to that section, narrow construction of § 24.2-910 might eliminate the constitutional issues presented in the challenge to that section as well.

Va.Code Ann. § 24.2-1014

The challenge to § 24.2-1014 is more problematic in light of McIntyre v. Ohio Elections Commission, ___ U.S. ___, 115 S.Ct. 1511, 131 L.Ed.2d 426 (1995). McIntyre presented the question of whether an Ohio statute that prohibited the distribution of anonymous campaign literature was "a ``law ... abridging the freedom of speech' within the meaning of the First Amendment." McIntyre, ___ U.S. at ___, 115 S.Ct. at 1514. McIntyre opposed an imminent referendum on a proposed school tax levy and distributed leaflets at a public meeting at an Ohio middle school. She composed and printed the text of the leaflets on her home computer and paid a professional printer to make additional copies. Some of the leaflets identified her as the author and others simply purported to be from "Concerned Parents and Tax Payers." All of the leaflets urged the voters to "vote no" on the referendum. The Ohio Elections Commission found that McIntyre's distribution of unsigned leaflets violated Ohio election law and imposed a $100 fine. The Ohio Supreme Court rejected McIntyre's constitutional challenge to the statute. The Supreme Court granted certiorari and reversed.

The Court traced the essential role of anonymous speech, finding that "an author's decision to remain anonymous, like other decisions concerning omissions or additions to the content of a publication, is an aspect of the freedom of speech protected by the First Amendment." Id. at ___, 115 S.Ct. at 1516. According to the Court, "[t]he freedom to publish anonymously extends beyond the literary realm" to political speech. Id. at ___, 115 S.Ct. at 1516. The Court then determined that the statute involved placed a limitation on "core political speech" that was subject to "exacting scrutiny" and that could survive only if "narrowly tailored" to serve an overriding state interest. Id. at ___, 115 S.Ct. at 1519.

Ohio sought to justify the statute stating that it advanced the state's interest in "preventing fraudulent and libelous statements and its interest in providing the electorate with relevant information." Id. at ___, 115 S.Ct. at 1519. The Court concluded that the statute accomplished neither purpose advanced by the state and was unconstitutionally overbroad:

As this case demonstrates, the prohibition encompasses documents that are not even arguably false or misleading. It applies not only to the activities of candidates and their organized supporters, but also to individuals acting independently and using only their own modest resources. It applies not only to elections of public officers, but also to ballot issues that present neither a substantial risk of libel nor any potential appearance of corrupt advantage. It applies not only to leaflets distributed on the eve of an election, when the opportunity for reply is limited, but also to those distributed months in advance. It applies no matter what the character or strength of the author's interest in anonymity.

Id. at ___ - ___, 115 S.Ct. at 1521-22 (footnotes omitted).

Practically speaking, § 24.2-1014(B) is indistinguishable from the statute struck down in McIntyre and cannot, in its entirety, survive exacting scrutiny. Although the court finds important distinctions between anonymous pamphleteering in connection with a referendum and anonymous pamphleteering in connection with an election, § 24.2-1014(B) applies to both. Moreover, under § 24.2-1014(B)(3)(b) it is "unlawful for any person to cause any writing ... to appear concerning any potential nominee or candidate ... unless such writing plainly identifies the person responsible for it." The provision makes no pretense of limiting itself to electioneering. Therefore, although Pullman counsels abstention as to § 24.2-908 and § 24.2-910, the reach of § 24.2-1014(B)(3)(b) is clear, and it does not survive "strict scrutiny."

III.

The standard for preliminary injunctions in this circuit was established in Blackwelder Furniture Co. v. Seilig Manufacturing Co., 550 F.2d 189 (4th Cir.1977). Four factors must be considered:

1. the likelihood of irreparable harm to the plaintiff if the preliminary injunction is denied;

2. the likelihood of harm to the defendant if the injunction is granted;

3. the likelihood that the plaintiffs will succeed on the merits; and

4. the public interest.

Rum Creek Coal Sales, Inc. v. Caperton, 926 F.2d 353, 359 (4th Cir.1991). These factors are not weighted equally. The "balance of hardships," determined by comparing the relevant harms to the parties, is the most important determination. Hughes Network Sys. v. Interdigital Communications Corp., 17 F.3d 691 (4th Cir.1994). The determination of the balance of harms will dictate how strong a likelihood of success the plaintiffs must show. Id. Applying the Blackwelder standard, the court finds that the balance of harms weighs greatly in favor of the plaintiffs, that plaintiffs have shown serious questions for decision, and that the issuance of an injunction would serve the public interest. Accordingly, the court will enter the preliminary injunction.

When an individual's free speech rights are infringed, irreparable harm is generally inflicted. Elrod v. Burns, 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976). In this case, the chilling effect of a broad reading of the challenged provisions is clear, and constitutes irreparable harm.

The degree of harm to be suffered by the defendants, should an injunction issue, is extremely slight. Defendants have articulated no lasting harm, and the only harm apparent would be that voters in this year's elections would have minimally less information about the origins of "issue advocacy" literature distributed during election season. Moreover, defendants assert that the challenged provisions do not even apply to the "issue advocacy" in which VSHL and Sexton seek to engage. Thus, the balance of harms between the injury to plaintiffs' First Amendment freedoms and the negligible harm to defendants, tips dramatically in favor of VSHL and Sexton.

When the balance of harms greatly favors the plaintiffs, as here, they need only show "grave or serious" questions for ultimate decision. L.J. By and Through Darr v. Massinga, 838 F.2d 118, 120 (4th Cir.1988), cert. denied, 488 U.S. 1018, 109 S.Ct. 816, 102 L.Ed.2d 805 (1989). Given the substantial questions of the constitutionality of the challenged Virginia statutes discussed in Part II, above, the court concludes that plaintiffs have met this burden of showing serious issues for decision by the court.

The public interest is the last factor to be considered, and it too, points to the issuance of an injunction in this case. Given the importance of core political speech and the possible chilling effect of the statutory scheme, the court concludes that an injunction limiting enforcement of the relevant statutes would be in the public interest.

IV.

For the reasons stated, the court will enter a preliminary injunction enjoining the enforcement of § 24.2-908 and § 24.2-910, as indicated above, as applied to VSHL and Sexton. The court also will enjoin enforcement of § 24.2-1014(B)(3)(b) as to any person.

ORDER

October 21, 1995

In accordance with the Memorandum Opinion entered this day^[*], the court finds that plaintiffs, Virginia Society for Human Life, Inc. and Andrea Sexton will be irreparably harmed were preliminary injunction not to issue, that defendants will not be irreparably harmed by the issuance of a preliminary injunction, that plaintiffs have shown a likelihood of success on the merits, and that the public interest will be served by the court's injunction. Accordingly, it is hereby

ORDERED AND ADJUDGED

that

(1) All named defendants and the defendant class, all Commonwealth's Attorneys for the Commonwealth of Virginia, are hereby enjoined from enforcing the following provisions of the Virginia Code as to VSHL and Sexton pending final judgment on the merits of this case:

(a) Virginia Code § 24.2-908, except as to contributions and expenditures for express advocacy of the election or defeat of a specific candidate;

(b) Virginia Code § 24.2-910, except as to contributions received and expenditures made for express advocacy of the election or defeat of specific candidate;

(2) All named defendants and the defendant class, all Commonwealth's Attorneys for the Commonwealth of Virginia, are hereby enjoined from enforcing the following provisions of the Virginia Code pending final judgment on the merits of this case:

(a) Virginia Code § 24.2-1014(B)(3)(b).

(3) Bond for the preliminary injunction is set in the amount of $250 per plaintiff to be posted within five days.

APPENDIX 1(A)

§ 24.2-901. Definitions. — A. As used in this chapter, unless the context requires a different meaning:

"Campaign committee" means the committee designated by a candidate to receive all contributions and make all expenditures for him or on his behalf in connection with his nomination or election.

"Contribution" means money and services of any amount, and any other thing of value over $100, given, advanced, promised, loaned, or in any other way provided to a candidate, campaign committee, political committee, inaugural committee, or person for the purpose of influencing the outcome of an election or defraying the costs of the inauguration of a Governor, Lieutenant Governor, or Attorney General. "Contribution" includes money, services, or things of value in any way provided by a candidate to his own campaign.

"Expenditure" means money and services of any amount, and any other thing of value over $100, paid, promised, loaned, provided, or in any other way disbursed by any candidate, campaign committee, political committee, inaugural committee, or person for the purpose of influencing the outcome of an election or defraying the costs of the inauguration of a Governor, Lieutenant Governor, or Attorney General.

"Inaugural committee" means any committee which anticipates receiving contributions or making expenditures, from other than publicly appropriated funds, for the inauguration of the Governor, Lieutenant Governor, or Attorney General and related activities.

"Independent expenditure" means an expenditure made by any person or political committee which is not made to, controlled by, coordinated with, or made upon consultation with a candidate, his campaign committee, or an agent of the candidate or his campaign committee.

"Person" means any individual or corporation, partnership, business, labor organization, membership organization, association, cooperative, or other like entity.

"Political action committee" means any organization, other than a campaign committee or political party committee, established or maintained in whole or in part to receive and expend contributions for political purposes.

"Political committee" means any state political party committee, congressional district political party committee, county or city political party committee for a county or city with a population of more than 100,000, organized political party group of elected officials, political action committee, or other committee or group of persons which receives contributions or makes expenditures for the purpose of influencing the outcome of any election. The term shall not include: a campaign committee or a political party committee exempted pursuant to § 24.2-911.

B. For the purpose of applying the filing and reporting requirements of Article 3 (§ 24.2-908 et seq.) and Article 4 (§ 24.2-914 et seq.) of this chapter, the terms "person," "political action committee," and "political committee" shall not include an organization holding tax-exempt status under § 501(c)(3) of the United States Internal Revenue Code which, in providing information to voters, does not advocate or endorse the election or defeat of a particular candidate, group of candidates, or the candidates of a particular political party. (1970, c. 462, § 24.1-255; 1975, c. 515, § 24.1-254.1; 1981, c. 425, § 24.1-254.2; 1983, c. 119; 1988, c. 616; 1991, cc. 9, 474, 709, § 24.1-254.3; 1993, cc. 641, 776, 921; 1994, c. 510.)

The 1994 amendment added subsection B.

APPENDIX 1(B)

§ 24.2-908. Statement of organization. — Each person and political committee which anticipates receiving contributions or making expenditures in excess of $100 shall file with the State Board a statement of organization (i) within ten days after its organization or, if later, within ten days after the date on which it has information which causes the person or committee to anticipate it will receive contributions or make expenditures in excess of $100 or on which it otherwise becomes subject to the provisions of this chapter, and (ii) annually thereafter by January 15. This requirement shall not apply to a person or committee whose only disbursement is in the form of a contribution and which itself receives no contributions from which the disbursement is made.

The statement of organization shall include:

1. The name and address of the person or committee;

2. The names, addresses, and relationships of affiliated or connected organizations;

3. The area, scope, or jurisdiction of the person or committee;

4. The name, residence and business addresses, and position of the custodian, if any, of books and accounts;

5. The name, residence address, and position of other principal officers, including officers and members of the finance committee, if any;

6. The name, address, office sought, and party affiliation of each individual whom the person or committee is supporting or opposing for nomination or for election to any public office whatever or, if supporting the entire ticket of any party, the name of the party;

7. In the event the person or committee is promoting or opposing a referendum, the subject of the referendum, the date and location of the election, and a statement whether the person or committee is promoting or opposing the referendum question;

8. In the case of an inaugural fund committee, the name, address, and office to which elected of the person on whose behalf the committee is organized;

9. A statement whether the person or committee is a continuing one;

10. The disposition of residual funds which will be made in the event of dissolution;

11. A listing of all banks, safe-deposit boxes, or other repositories used; and

12. Such other information as shall be required by the State Board.

Any change in information previously submitted in a statement of organization shall be reported to the State Board within ten days following the change.

Any person or committee which, after having filed one or more statements of organization, disbands or determines it will no longer receive contributions or make expenditures during the calendar year in an aggregate amount exceeding $100 shall so notify the State Board. (1975, c. 515, § 24.1-254.1; 1983, c. 119; 1991, cc. 9, 709; 1993, c. 641.)

APPENDIX 1(C)

§ 24.2-910. Persons and political committees required to file disclosure reports. — A. Any person or political committee required to file a statement of organization by § 24.2-908 shall be required to maintain records and file disclosure reports as provided in Article 4.

B. Any person or political committee making independent expenditures shall maintain records and report pursuant to Article 4 all contributions received and expenditures made of:

1. Any funds, in the aggregate, in excess of $500 for a statewide election or $100 for any other election expended for the purpose of influencing the outcome of any election;

2. Any funds in any amount expended to publish or broadcast to the public any material referring to a candidate by name, description, or other reference and (i) advocating his election or defeat, (ii) setting forth his position on any public issue, voting record, or other official acts, or (iii) otherwise designed to influence individuals to cast their votes for or against him or to withhold their votes from him; and

3. Any funds in any amount expended to publish or broadcast to the public any material promoting or opposing a question submitted to the voters in a referendum. (1970, c. 462, § 24.1-255; 1975, c. 515; 1981, c. 425; 1983, c. 119; 1988, c. 616; 1991, c. 9; 1993, c. 641.)

APPENDIX 1(D)

§ 24.2-1014. Identifying persons responsible for campaign writing; penalties. — A. As used in this section "writing" includes any printed or otherwise reproduced statement or advertisement, but shall not include editorial comment or news coverage which is sponsored and financed by the news medium publishing or broadcasting it nor writings authorized by the candidate on novelties including, but not limited to, pens, pencils, and buttons to be attached to wearing apparel.

B. It shall be unlawful for any person to cause any writing other than a television or radio broadcast to appear concerning any potential nominee or candidate, or concerning any question to be submitted to the voters unless such writing plainly identifies the person responsible for it. The writing shall carry the statement "authorized by" .............. and contain the following information to complete the statement:

1. The name of the candidate if the writing is authorized by the candidate or his campaign committee;

2. The name of the political party committee if the writing is authorized by that committee; or

3. If authorized by any person other than the candidate, his campaign committee, or a political party committee, either:

a. In the case of a committee that has filed a statement of organization under § 24.2-908, the full name of the committee and a registration number provided by the State Board, or

b. In any other case, the full name and residence address of the individual responsible for the writing.

C. It shall be unlawful for any person to use a false or fictitious name or address on any such writing described in subsection B.

D. It shall be unlawful for any person to cause any radio or television statement to appear unless the advertisement or statement contains information which plainly identifies the candidate, committee, or individual responsible for it.

E. Any person violating any provision of this section shall be subject to a civil penalty not to exceed fifty dollars; and, in the case of a willful violation, he shall be guilty of a Class 1 misdemeanor. The procedure to enforce the civil penalty provided in this section shall be as stated in § 24.2-929. The violation of this section shall not void any election. (Code 1950, § 24-456; 1956, c. 398; 1970, c. 462, § 24.1-277; 1972, c. 620; 1973, c. 30; 1975, c. 515; 1976, c. 616; 1981, c. 425; 1982, c. 650; 1991, c. 709; 1993, c. 641.)

Cross references.—As to punishment for misdemeanors for which no punishment is prescribed, see § 18.2-12. As to punishment for Class 1 misdemeanors, see § 18.2-11.

APPENDIX 2(A)

APPENDIX 2(B)

APPENDIX 2(C)

APPENDIX 3(A)

APPENDIX 3(B)

NOTES

[1] See Appendix 3(A)(i); 3(A)(ii); 3(B).

[2] Named defendants are Donald S. Caldwell, Pamela M. Clark, Dr. George M. Hampton, and Bruce Meadows. The Commonwealth's Attorneys for the Commonwealth of Virginia have been certified as a defendant class pursuant to Federal Rule of Civil Procedure 23 in accordance with the court's order dated October 11, 1995.

[3] See Appendix 1(A); 1(B); 1(C); 1(D).

[4] See Appendix 2(A)(i).

[5] See Appendix 2(B).

[6] Id.

[7] See Appendix 2(C).

[8] Defendants in the Fairfax County Circuit Court action filed suit in the United States District Court for the Eastern District of Virginia immediately following the Circuit Court's injunction. The district court dismissed the suit on the authority of Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971). The Court of Appeals concluded that abstention was proper. See Family Foundation, Inc. v. Brown, 9 F.3d 1075 (4th Cir.1993).

[9] In a recent opinion letter, the Attorney General of the Commonwealth of Virginia narrowly construed Va.Code Ann. § 24.2-1014, as he now urges this court to do. (Opinion Letter from Attorney General of the Commonwealth of Virginia to M. Bruce Meadows, July 13, 1995.)

[10] "Buckley adopted the ``express advocacy' requirement to distinguish discussion of issues and candidates from more pointed exhortations to vote for particular persons." Federal Election Comm'n v. Massachusetts Citizens for Life, Inc., 479 U.S. 238, 249, 107 S.Ct. 616, 623, 93 L.Ed.2d 539 (1986). This court recognizes that the line between "issue advocacy" and advocacy for the election or defeat of a candidate will often be a hard line to draw. But given the clash between the First Amendment and the states' strong interest in ensuring that elections are fair and open to real public scrutiny, lines must be drawn.

VSHL argues that § 24.2-908 and § 24.2-910 cannot be applied to an organization that has issue advocacy as its primary purpose. Indeed, the Court of Appeals for the D.C. Circuit intimated that the Federal Election Commission avoided a serious "First Amendment issue of the sort seen in cases like NAACP v. Alabama, 357 U.S. 449, 460, 78 S.Ct. 1163, 1170-71, 93 L.Ed.2d 1488 (1958)," when it applied "the major purpose test" to the "core purpose of the organization itself, [and] not the individual expenditure or contribution." Akins v. Federal Election Comm'n, 66 F.3d 348, 355 (D.C.Cir.1995). The D.C. Circuit's conclusion, however, might be somewhat at odds with the Supreme Court's reasoning in Buckley. "The Buckley court concluded that the disclosure of a group's independent campaign expenditures serves the important governmental interest of ``shed[ding] the light of publicity' on campaign financing, thereby helping voters to evaluate the constituencies of those who seek federal office. As a result, the burden of disclosing independent expenditures generally is ``a reasonable and minimally restrictive method of furthering First Amendment values by opening the basic processes of our federal election system to public view.'" Federal Election Comm'n v. Massachusetts Citizens for Life, Inc., 479 U.S. 238, 265, 107 S.Ct. 616, 632, 93 L.Ed.2d 539 (1986) (O'Connor, J., concurring in part and concurring in the judgment and quoting Buckley, 424 U.S. at 81-82, 96 S.Ct. at 664-665) (citations omitted).

[*] Editor's Note: A corrected memorandum opinion was filed October 30, 1995 but this order did not change and was not refiled.