CASE STUDIES IN EMERGENCY ELECTION LITIGATION

Federal Judicial Center 10/7/2023 1

Constitutionality of a Campaign 

Expenditure Reporting Statute 

National Organization for Marriage v. McKee 

(D. Brock Hornby and John H. Rich III, D. Me. 1:09-cv-538) 

Advocacy organizations filed a federal challenge to campaign finance reporting regulations two weeks before an election including 

a ballot initiative. Able to rule before the election, the court denied 

the plaintiffs injunctive relief. After the election, the court of appeals affirmed the legal holding. 

Subject: Campaign activities. Topics: Campaign finance; ballot 

measure. 

Thirteen days before the November 3, 2009, election in Maine, which featured a referendum on Maine’s provision for same-sex marriage, two advocacy organizations filed a federal complaint challenging Maine’s registration 

and reporting requirements for organizations collecting or spending money 

to support or defeat a ballot measure.1

 With their complaint, the plaintiffs 

filed motions for a temporary restraining order,2 for a preliminary injunction,3

 and to expedite the action.4

The court assigned the case to District Judge D. Brock Hornby.5

 Judge 

Hornby delegated to Magistrate Judge John H. Rich III initial contact with 

the plaintiffs.6

 In emergency cases, Judge Hornby often asked a magistrate 

judge to make prompt initial contact with the plaintiffs to get an early assessment of what would be required from the court.7

 He also typically asked 

his law clerks to begin legal research on the matter immediately, focusing the 

research as papers were filed.8

1. Complaint, Nat’l Org. for Marriage v. McKee, No. 1:09-cv-538 (D. Me. Oct. 21, 2009), 

D.E. 1; Nat’l Org. for Marriage v. McKee, 666 F. Supp. 2d 193, 197–98 (D. Me. 2009); see Me. 

Rev. Stat. tit. 21-A, § 1056-B; see also David Hench, Campaign Disclosure Ruling Slated, 

Portland Press Herald, Oct. 27, 2009, at B1. 

2. Temporary-Restraining-Order Motion, Nat’l Org. for Marriage, No. 1:09-cv-538 (D. 

Me. Oct. 21, 2009), D.E. 3; Nat’l Org. for Marriage, 666 F. Supp. 2d at 198. 

3. Preliminary-Injunction Motion, Nat’l Org. for Marriage, No. 1:09-cv-538 (D. Me. Oct. 

21, 2009), D.E. 4. 

4. Motion, id. (Oct. 21, 2009), D.E. 5. 

5. Docket Sheet, id. (Oct. 21, 2009). 

Tim Reagan interviewed Judge Hornby for this report by telephone. 

6. Report, Nat’l Org. for Marriage, No. 1:09-cv-538 (D. Me. Oct. 21, 2009), D.E. 10 [hereinafter Oct. 21, 2009, Report]; Interview with Hon. D. Brock Hornby, Aug. 6, 2012; Interview with Hon. John H. Rich III, Aug. 2, 2012 (observing that Judge Hornby, who was the 

district’s first full-time magistrate judge, used magistrate judges very effectively). 

Tim Reagan interviewed Judge Rich for this report by telephone on August 2, 2012. 

7. Interview with Hon. D. Brock Hornby, Aug. 6, 2012. 

8. Id. 
Constitutionality of a Campaign Expenditure Reporting Statute 

2 Federal Judicial Center 10/7/2023 

 The main task of Judge Rich’s teleconference with plaintiffs’ counsel, 

which was held at 4:15 p.m. on Wednesday, October 21, the day the case was 

filed, was to make sure that the plaintiffs served the defendants promptly.9

On Thursday afternoon at 3:00, Judge Rich had a teleconference with both 

sides.10

I initially explored with the parties whether it was possible for them to 

reach an agreement that would obviate the need for an expedited hearing in 

advance of Election Day, November 3, 2009. Following lengthy discussion, 

the parties were unable to reach such an agreement. Accordingly, I noted 

that it would be necessary for the court to schedule a hearing on an expedited basis before Judge Hornby, most likely on Monday, October 26, 2009.11

For planning purposes, Judge Rich asked the parties to let him know by 

Friday morning whether any witnesses would be called at the hearing.12 His 

case manager was informed by telephone that there would be no need for 

witnesses at the hearing.13

The Monday hearing was greatly facilitated by experienced lawyers on 

both sides.14 Two days later, Judge Hornby denied the plaintiffs immediate 

relief.15 “It is important to emphasize that the Maine statute does not prohibit

contributions or expenditures. Instead, it is a registration and reporting statute.”16

On November 3, Maine voters overturned same-sex marriage.17

Reviewing Judge Hornby’s decisions18 on the plaintiffs’ second amended 

complaint,19 the court of appeals determined that Maine’s laws in question 

passed constitutional muster.20

9. Oct. 21, 2009, Report, supra note 6; Interview with Hon. John H. Rich III, Aug. 2, 

2012. 

10. Report, Nat’l Org. for Marriage, No. 1:09-cv-538 (D. Me. Oct. 22, 2009), D.E. 14 

[hereinafter Oct. 22, 2009, Report]; Docket Sheet, supra note 5. 

11. Oct. 22, 2009, Report, supra note 10, at 1–2. 

12. Id. at 2. 

13. Interview with Hon. John H. Rich III, Aug. 2, 2012. Judge Rich retired on April 1, 

2022. Retirement of U.S. Magistrate Judge John H. Rich III, www.med.uscourts.gov/news/ 

retirement-us-magistrate-judge-john-h-rich-iii. 

14. Interview with Hon. D. Brock Hornby, Aug. 6, 2012; Transcript, Nat’l Org. for Marriage, No. 1:09-cv-538 (D. Me. Oct. 26, 2009, filed Nov. 5, 2009), D.E. 23. 

15. Nat’l Org. for Marriage v. McKee, 666 F. Supp. 2d 193 (D. Me. 2009); see Trevor 

Maxwell, Judge: State Can Press for Disclosure of Donors, Portland Press Herald, Oct. 29, 

2009, at A1. 

16. Nat’l Org. for Marriage, 666 F. Supp. 2d at 204. 

17. See Susan M. Cover, Mainers Vote Down Gay-Marriage Law, Portland Press Herald, 

Nov. 4, 2009, at A1; Kevin Miller & Judy Harrison, Gay Marriage Rejected, Bangor Daily 

News, Nov. 4, 2009, at 1. 

18. Nat’l Org. for Marriage v. McKee, 765 F. Supp. 2d 38 (D. Me. 2011); Nat’l Org. for 

Marriage v. McKee, 723 F. Supp. 2d 245 (D. Me. 2010); see Campaign Finance Law Stands 

Up to Challenge, Portland Press Herald, Aug. 20, 2010, at A1; Kevin Miller, All But Two PAC 

Provisions in Campaign Finance Law OK’d, Bangor Daily News, Aug. 20, 2010, at 1; Kevin 

Miller, Another Legal Setback for Gay Marriage Foes, Bangor Daily News, Feb. 19, 2011, at 5. 
Constitutionality of a Campaign Expenditure Reporting Statute 

Federal Judicial Center 10/7/2023 3

19. Second Amended Complaint, Nat’l Org. for Marriage, No. 1:09-cv-538 (D. Me. June 

25, 2010), D.E. 114. 

20. Nat’l Org. for Marriage v. McKee, 669 F.3d 34 (1st Cir.), cert. denied, 568 U.S. 928 

(2012); Nat’l Org. for Marriage v. McKee, 649 F.3d 34 (1st Cir. 2011), cert. denied, 565 U.S. 

1234 1635 (2012); see also Nat’l Org. for Marriage v. Daluz, 654 F.3d 115 (1st Cir. 2011) 

(finding a challenge to Rhode Island’s reporting statute unlikely to prevail).