IN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF FLORIDA 

TALLAHASSEE DIVISION 

CASE NO. 1:10-cv-00423-RH/WCS 

ANDREW NATHAN WORLEY, et al., 

 Plaintiffs, 

v. 

DAWN K. ROBERTS, et al., 

 Defendants. 

DEFENDANT’S MEMORANDUM IN OPPOSITION TO PLAINTIFF’S MOTION 

FOR PRELIMINARY INJUNCTION 

 The state Defendants provide this response in opposition to the preliminary 

injunctive relief that Plaintiffs seek. Plaintiffs fail to meet the four criteria necessary for 

injunctive relief. No substantial likelihood of success exists on their First Amendment 

claims; their claim of irreparable harm is unsupported; and the public interest and balance 

of harms favor the state. 

BACKGROUND

Government regulation of individuals pooling their resources in an effort to 

influence voting is well-established both federally and in Florida. The Federal Election 

Campaign Act of 1971 required campaigns and political committees to report the names, 

addresses, and occupations of donors of $200 or more. 2 U.S.C. §431. The State of 

Florida followed suit and for almost 40 years has maintained certain registration and 

disclosure requirements of applicable groups seeking to expressly advocate the election 

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or defeat of a candidate or the passage or defeat of an issue. §106.011, Fla. Stat. (2009). 

Courts have held such regulation is essential to insuring that voters have sufficient 

information about those trying to sway their decision before entering the voting booth. 

E.g., Citizens United v. Federal Election Commission, 130 S.Ct. 876, 914 (2010) 

(“disclosure could be justified based on a governmental interest in ‘providing the 

electorate with information’ about the sources of election-related spending.”)

In this case, Plaintiffs want to pool their money to expressly advocate against a 

proposed amendment to the Florida Constitution but do not want to form a political 

committee as Florida law requires. This proposed amendment, known as Amendment 4, 

proposes that all changes to local government comprehensive land-use plans will require 

a taxpayer-funded referendum. Proponents of Amendment 4, principally the political 

committee, Florida Hometown Democracy, Inc., began their effort in June 2005. The 

initiative was certified for the ballot four years later in June 2009. Duly-registered 

political committees supporting and opposing the passage of Amendment 4 have 

collected and spent millions of dollars hoping to influence voters while complying with 

Florida’s campaign finance statutes. On September 28, 2010, a mere five weeks before 

the general election, Plaintiffs filed this action claiming these same laws have chilled 

their ability to speak about Amendment 4. 

Amendment 4 is but one of six proposed amendments to the Florida Constitution 

that will appear on the November 2 ballot. In addition, Floridians will be asked to choose 

a governor, a U.S. senator, members of Congress, state cabinet officers, as well as district 

representatives to the Florida Legislature and local government leaders. At this late date, 

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should the existing laws be struck, the state may not have an opportunity to appeal before 

the general election. Certainly, it will not be able to act legislatively. The potential for a 

compromised election if interest groups are allowed to unconditionally advocate is 

compelling and the results could be significant.

Indeed, after this Court struck Florida’s then existing electioneering 

communication laws in Broward Coal. of Condos., Homeowners Ass’ns and Community 

Orgs., Inc. v. Browning, No. 4:08cv445-SPM/WCS, 2009 WL 1457972, at *1 (N.D. Fla. 

May 22, 2009), a “no-holds-barred political brawl” ensued in a state senate special 

election in which unchecked interest groups attempted to intimidate senior citizens with 

racially tinged mailers warning of Black Panthers and “armed thugs” at the voting booth. 

Aaron Deslatte, Thrasher in tough fight for King’s Senate seat, Orlando Sentinel (Aug. 

30, 2009), available at http://articles.orlandosentinel.com/2009-08-

30/news/0908290125_1_thrasher-jacksonville-lawyers-present (last visited Oct. 12, 

2010). Absent any means of curtailing such abuse of the open electioneering 

communication loophole, the state could not protect the integrity of the election process 

and the well-recognized informational interest of the public to know who is speaking to 

them about campaign issues. 

ARGUMENT

 In order to obtain the preliminary injunction they seek, Plaintiffs must establish 

(1) a substantial likelihood of success on the merits; (2) irreparable injury if the 

injunction is not issued; (3) that such injury would outweigh any harm the injunction 

would bring to the Defendant; and (4) that granting the injunction would not disserve the 

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public interest. See Horton v. City of St. Augustine, 272 F. 3d 1318, 1326 (11th Cir. 

2001). As explained below, Plaintiffs have failed to satisfy the test. 

I. PLAINTIFFS ARE UNLIKELY LIKELY TO SUCCEED ON THE MERITS 

A. Strict Scrutiny and Exacting Scrutiny 

 Plaintiffs challenge Florida’s political committee registration and disclosure laws. 

They argue for strict scrutiny, yet that is the not the correct standard under which to 

evaluate these laws. Florida’s law requires political committees to register, make regular 

reports, and comply with disclosure and disclaimer requirements. In Citizens United, the 

Supreme Court reiterated that “exacting scrutiny” rather than “strict scrutiny” applies to 

such requirements. 130 S. Ct. at 914; see also John Doe No. 1 v. Reed, 130 S. Ct. 2811, 

2818 (2010) (explaining that challenges to disclosure requirements are reviewed under 

the “exacting scrutiny” standard); South Carolina Citizens for Life, Inc. v. Krawcheck, 

No. 4:06-cv-2773-TLW, 2010 WL 3582377, at *18 (D.S.C. Sept. 13, 2010) (“The 

[Citizens United] Court noted that disclosure requirements are subject to “exacting 

scrutiny” which “requires a ‘substantial relation’ between the disclosure requirement and 

a ‘sufficiently important’ governmental interest.”). 

 Furthermore, in Citizens United, the Supreme Court recognized the importance of 

such disclosures: “The First Amendment protects political speech; and disclosure permits 

citizens and shareholders to react to the speech of corporate entities in a proper way.” 

130 S. Ct. at 916. The Court went on to explain, “[t]his transparency enables the 

electorate to make informed decisions and give proper weight to different speakers and 

messages.” Id. at 915-16. 

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 The Supreme Court long ago concluded that federal reporting and disclosure 

requirements survive exacting scrutiny. See Buckley v. Valeo, 424 U.S. 1, 82 (1976) 

[Buckley I] (upholding the reporting, recordkeeping, and disclosure provisions of the 

Federal Election Campaign Act and noting the State’s interest in keeping voters informed 

of candidate’s constituencies); Buckley v. Am. Constitutional Law Found., 525 U.S. 182, 

202 (1999) [Buckley II] (noting the state’s interest in keeping voters informed about 

“where political campaign money comes from”); 

And the federal circuit courts have repeatedly reaffirmed the importance of the 

informational interest to the public. Canyon Ferry Rd. Baptist Church of East Helena, 

Inc. v. Unsworth, 556 F.3d 1021, 1032 (9th Cir. 2009) (Montana’s informational interest 

is generally “important” in the context of Montana’s statewide ballot issues.); California 

Pro-Life Council, Inc. v. Randolph, 507 F.3d 1172, 1179 (9th Cir. 2007) (in the context 

of disclosure requirements, the government’s interest in providing the electorate with 

information related to election and ballot issues is well-established ) (citing McConnell, 

540 U.S. at 196; Buckley I, 424 U.S. at 66.); Nat’l Org. For Marriage v. McKee, 666 F. 

Supp. 2d 193, 205 (D. Me. 2009) (stating that the Supreme Court has continued to uphold 

disclosure and registration requirements because of the government’s important interest 

in making the information available to voters). Indeed, in a post-Citizens United case, the 

D.C. Circuit reaffirmed that “[t]he Supreme Court has consistently upheld organizational 

and reporting requirements against facial challenges.” SpeechNow.org v. Federal 

Election Comm’n, 599 F.3d 686, 696-697 (D.C. Cir. 2010). 

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 Here, Florida’s political committee laws are even less burdensome than federal 

regulations and, likewise, survive exacting scrutiny. Such groups must file registration 

statements (consisting of a two-page form available at the website of the Department of 

State1

) and disclosures of contributions and expenditures (each of which are one-page 

forms also available at the DOS website2

). These requirements are minimal and 

sufficiently relate to the state’s substantial interest in keeping the voters informed about 

where political campaign money comes from. See Ctr. for Individual Freedom v. 

Madigan, No. 10 C 4383, 2010 WL 3404973, at *1 (N.D. Ill. Aug. 26, 2010) (statute 

requiring registration and reporting similar to Florida statute valid). 

1. Florida’s Law Survives Exacting Scrutiny 

Plaintiffs cite to the Supreme Court’s statement in Citizens United that formation 

of a PAC as an alternative to corporate speech is an onerous burden. [Pl.’s Initial Br. at 

10 (citing Citizens United, 130 S. Ct. at 897-98)]. That argument misconstrues Citizens 

United. Citizens United held that an outright ban on corporate expenditures for 

electioneering communications is unconstitutional. 130 S. Ct. at 913. In particular, the 

BCRA made it “a felony for all corporations . . . to expressly advocate the election or 

defeat of candidates or to broadcast electioneering communications within 30 days of a 

primary election and 60 days of a general election.” Id. at 897. Citizens United stated 

that a corporation’s option of forming a PAC segregated from the corporation was an 

 

1

 Form available at http://election.dos.state.fl.us/forms/pdf/DSDE103.pdf (last visited 

Oct. 12, 2010). 

2

 Forms for contributions available at 

http://election.dos.state.fl.us/forms/pdf/DSDE13.pdf (last visited Oct. 12, 2010). Forms 

for expenditures available at http://election.dos.state.fl.us/forms/pdf/DSDE14.pdf (last 

visited Oct. 12, 2010). 

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expensive and burdensome alternative to an unconstitutional ban on speech. See id. at 

897-88. 

Plaintiffs cannot claim any similar burden. Florida law does not place an outright 

ban on speech. Rather, Florida law merely requires that an organization register and 

make certain disclosures in the event it engages in express advocacy. That requirement is 

substantially related to the state’s sufficiently important interest in helping its citizens 

make informed choices in the political marketplace. McConnell, 540 U.S. at 197. As the 

Court in McConnell recognized, “Plaintiffs' argument for striking down BCRA's 

disclosure provisions does not reinforce the precious First Amendment values that 

Plaintiffs argue are trampled by BCRA, but ignores the competing First Amendment 

interests of individual citizens seeking to make informed choices in the political 

marketplace.” Id. 

 Plaintiffs fail to make any legitimate comparison between the federal PAC 

requirements and the Florida political committee requirements. Other courts faced with 

this argument have looked at the actual burden imposed by the state regulations. In 

McKee, the Maine District Court found registration and reporting requirements that were 

substantially similar to Florida’s were not burdensome. 666 F. Supp. 2d at 207. 

Similarly, the D.C. Circuit in SpeechNow.org held “[n]or do the organizational 

requirements that SpeechNow protests, such as designating a treasurer and retaining 

records, impose much of an additional burden upon SpeechNow.” 599 F.3d at 697; see 

also, Human Life of Washington, Inc. v. Brumsickle, No. C08-0590-JCC, 2009 WL 

62144, at *11 (W.D. Wash. Jan. 8, 2009) (reporting requirements not particularly 

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onerous); Alaska Right To Life Comm. v. Miles, 441 F.3d 773, 792 (9th Cir. 2006) 

(reporting provisions in Alaska statutes are constitutional.) 

 Arguing that Florida’s PC requirements are burdensome and consequently 

unconstitutional, Plaintiffs take issue with Florida’s requirement that political committees 

(1) must appoint a treasurer; (2) must disclose the identities of all contributors and 

recipients of expenditures, regardless of the amount, and (3) must not spend money 

collected during the five days prior to the election until after the election. As explained 

below, these arguments are meritless. 

Under Florida law, groups of two or more individuals that wish to engage in the 

type of political speech described in section 106.011 (1)(a), Florida Statutes, must 

register as a political committee. Registration and disclosure requirements, and the 

requirement that political committees appoint a treasurer, conditions which are similar to 

those found in Florida’s campaign finance statutes, have previously been upheld by 

federal courts. See Citizens United, 130 S. Ct. at 914 (“Disclaimer and disclosure 

requirements may burden the ability to speak, but they ‘impose no ceiling on campaignrelated activities,’ . . . and ‘do not prevent anyone from speaking’. . . .) (citations 

omitted). In SpeechNow.org, 599 F.3d at 691-92, recordkeeping and reporting 

requirements of the BCRA, which are more onerous than Florida’s laws, were held 

constitutional. The D.C. Circuit noted that “[t]he Supreme Court has consistently upheld 

organizational and reporting requirements against facial challenges . . . based on a 

governmental interest in ‘provid[ing] the electorate with information’ about the sources 

of political campaign funds.” Id. at 696 (quoting Buckley v. Valeo, 424 U.S. 1, 66 

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(1976)). Additionally, in McConnell, 540 U.S. at 196, the Supreme Court recognized that 

“the important state interests that prompted the Buckley Court to uphold FECA’s 

disclosure requirements—providing the electorate with information, deterring actual 

corruption and avoiding any appearance thereof . . . apply in full to the BCRA.” 

 Many other courts have reached the same conclusion. See Buckley v. Am. 

Constitutional Law Found., 525 U.S. 182, 202 (1999) [Buckley II] (noting the state’s 

interest in keeping voters informed about “where political campaign money comes 

from”); Canyon Ferry Rd. Baptist Church of East Helena, Inc. v. Unsworth, 556 F.3d 

1021, 1032 (9th Cir. 2009) (Montana’s informational interest is generally “important” in 

the context of Montana’s statewide ballot issues.); California Pro-Life Council, Inc. v. 

Randolph, 507 F.3d 1172, 1179 (9th Cir. 2007) (in the context of disclosure 

requirements, the government’s interest in providing the electorate with information 

related to election and ballot issues is well-established ) (citing McConnell, 540 U.S. at 

196; Buckley, 424 U.S. at 66.); Nat’l Org. For Marriage v. McKee, 666 F. Supp. 2d 193, 

205 (D. Me. 2009) (upholding registration and reporting requirements substantially 

similar to Florida’s requirements and noting that the Supreme Court has continued to 

uphold disclosure and registration requirements because of the government’s important 

interest in making the information available to voters). 

And these types of disclosure and disclaimer requirements have been upheld as 

equally applying to ballot initiatives and issue advocacy measures. See e.g., Citizens 

Against Rent Control v. City of Berkley, 454 U.S. 290 (1981) (upholding regulations 

compelling the disclosure of expenditures and contributions in the ballot-initiative 

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context); Alaska Right To Life Committee v. Miles, 441 F.3d 773 (9th Cir. 2006) 

(challenged reporting requirements did not violate First Amendment; compelling state 

interests justified application of challenged reporting requirements; and disclosure 

requirements did not violate First Amendment as applied to corporation.); Canyon Ferry, 

556 F.3d 1032; California Pro-Life Council, Inc., 507 F.3d 1172. 

 Likewise here, Florida’s disclaimer and disclosure requirements survive exacting 

scrutiny. Indeed, the requirements are minimal and sufficiently relate to the state’s 

substantial interest in keeping the voters informed about where political campaign money 

originates. Accordingly, the nominal burden imposed by Florida law is constitutional on 

its face and as applied. 

Relying on McIntyre v. Ohio Elections Comm’n, 514 U.S. 334 (1995), Plaintiffs 

attempt to argue that the only possible interest that can support the imposition of 

registration and reporting requirements like those in Florida law is the interest in fighting 

corruption, especially quid pro quo corruption and the appearance of corruption, which 

does not exist here. This argument is misguided. When dealing with limits on 

contributions or expenditures, the Court has held that the informational interest asserted 

here is insufficient. See Citizens United, 130 S.Ct. at 883. But the Supreme Court treats 

registration and reporting requirements such as those at issue here differently and has 

upheld the similar provisions of the FECA and the BCRA based on the informational 

interest asserted here. See Citizens United, 130 S.Ct. at 914. In Federal Election Com'n 

v. Public Citizen, 268 F.3d 1283, 1289 (11th Cir. 2001), the court distinguished McIntyre

and affirmed the validity of disclosures in § 441d(a), stating that “Among the rationales 

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offered in support of the disclosures in Buckley was the governmental interest in 

“provid[ing] the electorate with information as to where the political campaign money 

comes from and how it is spent by the candidate in order to aid the voters in evaluating 

those who seek federal office.” 

 If Plaintiffs are permitted to pool their money in order to purchase advertising 

urging voters to defeat a proposed amendment in the upcoming November election, and 

they are not required to disclose the source of the advertising or the funding resources, 

then Florida voters will not have the benefit of learning the source of Plaintiffs’ electionrelated spending and will consequently be less informed when making a choice in the 

political marketplace. That would defeat the government’s important interest in keeping 

the public informed as to where political money comes from. 

B. Section 106.08(4), Florida Statutes, is constitutional 

 Plaintiffs also challenge section 106.08(4), Fla. Stat., which prohibits political 

committees from spending money collected during the last five days prior to the election 

until after the election. But that argument is simply an extension of the challenge to 

Florida’s disclosure requirements. The five day provision merely ensures that the public 

is made aware of the individuals who make political contributions before the day they 

must vote. Under Florida’s reporting requirements, the last reporting day for political 

committees is the Thursday before the Tuesday of the election. See Fla. Dep’t of State, 

Div. of Elections, Political Committee Handbook, 4 (June 2010). In the current election 

cycle, that is October 29, five days before the November 2 election. The October 29 

report should include all contributions received until midnight October 28. Prohibiting 

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political committees from spending money collected after the last reporting deadline 

before the election until after the election merely furthers the State’s interest in providing 

public information. If this provision were not in place, big contributors could 

strategically wait until after the last reporting day to funnel large amounts of money to a 

political committee, and it would not be reported until after the people voted. Florida’s 

Third District Court of Appeal recognized this important purpose in Ferre v. State ex rel. 

Reno, 478 So.2d 1077, 1080 (Fla. 3rd DCA 1985), finding: 

A second compelling governmental interest is the goal of allowing the 

public to be informed before an election of the identities of persons 

contributing to the campaign of a particular candidate. In the absence of 

the challenged statutes, a candidate could conceal the identity of 

supporters until after the election when it is too late for the revelation to be 

considered by the voters in casting their ballots. 

Large amounts of strategically withheld funds could certainly work to influence the 

outcome of an election, much like what occurred in the wake of Broward Coal. of 

Condos., Homeowners Ass’ns and Community Orgs., Inc. v. Browning, No. 4:08cv445-

SPM/WCS, 2009 WL 1457972 (N.D. Fla. May 22, 2009). And if the public is unaware 

of the source of those funds, then the State’s interest in informing the voters will have 

been thwarted. 

 It also should be noted that this limitation does not regulate the content of any 

speech, nor does it keep political committees from speaking. On the contrary, political 

committees can spend unlimited reported funds during the five days before an election. 

Political committees can also collect funds in the last days before election. This 

limitation of section 106.08(4) merely prevents political committees from spending 

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unreported funds during the last five days prior to an election. This provision is contentneutral and narrowly tailored to serve this important state interest. 

C. Disclaimer 

 Plaintiffs complain that the disclaimer requirement in section 106.071(2), Fla. 

Stat., violates their First Amendment rights in two ways. First, they claim that the 

disclaimer requirement “compels speech, thereby forcing Plaintiffs to change their 

political message” and second they claim that it violates “the right to engage in 

anonymous speech.” Neither of these claims has merit. 

 In Citizens United, 130 S.Ct. at 914 -15, the Supreme Court addressed the 

disclaimer requirement found in section 311 of the BCRA. Plaintiffs there claimed, 

among other things, that section 311 “decreases both the quantity and effectiveness of the 

group's speech by forcing it to devote four seconds of each advertisement to the spoken 

disclaimer.” Id. The Court responded by stating that “the disclaimers required by section 

311 “provid[e] the electorate with information and insure that the voters are fully 

informed” about the person or group who is speaking.” Id. (citations omitted). The 

Court went on to hold that “We rejected these arguments in McConnell, supra, at 230-

231, 124 S. Ct. 619. And we now adhere to that decision as it pertains to the disclosure 

provisions.” Id. 

 In reaching this conclusion, the Court relied upon McConnell, which held: “We 

think BCRA § 311's inclusion of electioneering communications in the FECA § 318 

disclosure regime bears a sufficient relationship to the important governmental interest of 

“shed[ding] the light of publicity” on campaign financing.” McConnell, 540 U.S. at 230-

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231. Both Citizens United and McConnell relied on the opinion in Buckley, 424 U.S. at 

78, holding that, by enacting the disclosure requirements, Congress “wished to promote 

full disclosure of campaign-oriented spending to insure both the reality and the 

appearance of the purity and openness of the federal election process.” Finally, in First 

Nat. Bank of Boston v. Bellotti, 435 U.S. 765, 792 (1978), the Court stated: 

“Identification of the source of advertising may be required as a means of disclosure, so 

that the people will be able to evaluate the arguments to which they are being subjected.” 

Cf. U.S. v. Harriss, 347 U.S. 612, 625-626 (1954) (disclosure of lobbying activities). 

 Here again Plaintiffs rely almost exclusively on McIntyre v. Ohio Elections 

Comm’n, 514 U.S. 334 (1995), for their assertion that they need not identify themselves 

in their advertisements. Although McIntyre did recognize some right to anonymity with 

respect to the type of communications at issue in that case, it is entirely unclear how far 

that right goes.3

 In McIntyre, the Court made a distinction between “the activities of 

candidates and their organized supporters” and “individuals acting independently and 

using only their own modest resources.” 514 U.S. at 351-52. What is clear is that the 

right does not extend to disclaimers on paid political advertising by political committees. 

The Court in Citizens United never cited McIntyre for the proposition that anonymous 

political speech is protected. Only Justice Thomas in dissent cited McIntyre for the 

proposition that “Congress may not abridge the “right to anonymous speech” based on 

 

3

 The Florida Supreme Court narrowed the scope of the disclaimer statutes, including § 

106.071, in Doe v. Mortham, 708 So.2d 929, 934 (Fla.,1998), holding them “inapplicable 

to the personal pamphleteering of “individuals acting independently and using only their 

own modest resources.” (citing McIntyre)

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the simple interest in providing voters with additional relevant information.” Citizens 

United, 130 S.Ct. at 980. 

 In Citizens United, the Supreme Court validated the use of disclaimers to inform 

the public who is speaking to them. Id. at 915. In addition, the Court expanded the 

universe of communications susceptible to disclosure and disclaimer requirements 

beyond express advocacy and its functional equivalent. Id. (“[W]e reject Citizens 

United’s contention that the disclosure requirements must be limited to speech that is the 

functional equivalent of express advocacy.”); Ctr. For Individual Freedom v. Madigan, 

No. 10 C 4383, 2010 WL 3404973, at *4 (N.D. Ill. Aug. 26, 2010) (“Recently, in Citizens 

United, the Supreme Court expressly rejected the contention that election-law disclosure 

requirements are limited to express advocacy or its functional equivalent.”). 

In sum, the Court has laid out a new paradigm for election campaign regulation in 

which speech is not prohibited but the prophylactic effects of disclosure protect the 

integrity of the electoral process. Within this paradigm there is no principled reason to 

distinguish between electioneering for a candidate and for a ballot initiative because the 

public’s informational interest is the same in each case. As set forth above, the Court has 

abandoned that distinction and the disclaimer requirement is valid as to candidate or 

initiative elections. 

II. PLAINTIFFS ARE NOT LIKELY TO SUFFER IRREPARABLE HARM 

 Plaintiffs submit that their loss of First Amendment freedoms, for even minimal 

periods of time, unquestionably constitutes irreparable injury. But, as discussed above, 

Florida’s campaign finance statutes do not infringe on their First Amendment freedoms. 

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The statutes merely require that they register as a political committee if in fact they 

engage in express advocacy. 

 Moreover, Plaintiffs delayed filing their complaint until September 28, just weeks 

prior to the upcoming general election; such delay works against their claim of 

irreparable harm. See Oakland Tribune, Inc. v. Chronicle Publ’g Co., Inc., 762 F.2d 

1374, 1377 (9th Cir. 1985) (“[A] long delay before seeking a preliminary injunction 

implies a lack of urgency and irreparable harm.”); Citibank, N.A. v. Citytrust, 756 F.2d 

273, 276 (2d Cir. 1985) (“[Delay] may . . . indicate an absence of the kind of irreparable 

harm required to support a preliminary injunction.”); Badillo v. Playboy Entm’t Grp., 

Inc., No. 8:04-cv-591-T-30TBM, 2004 WL 1013372, at *2 (M.D. Fla., Apr. 16, 2004) 

(“In determining whether harm is irreparable, courts consider, as one factor, the delay of 

the movant in seeking relief.”); Pippin v. Playboy Entm’t Grp., Inc., No. 8:02-cv-2239-T17EAJ, 2003 WL 21981990, at *2 (M.D. Fla., Jul. 1, 2003) (“[d]elay, or too much of it, 

indicates that a suit or request for injunctive relief is more about gaining an advantage 

(either a commercial or litigation advantage) than protecting a party from irreparable 

harm.”). This statute has been in effect for nearly 40 years. Contriving to bring a 

challenge on the eve of an election does not create irreparable harm. 

III. INJURY TO THE STATE OUTWEIGHS ANY HARM TO PLAINTIFFS 

 Enjoining the State from enforcing its registration and disclosure statutes in the 

days just before an election would substantially injure the State and harm the public. 

“[A]ny time a State is enjoined by a court from effectuating statutes enacted by 

representatives of its people, it suffers . . . injury.” New Motor Vehicle Bd. of Cal. v. 

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Orrin W. Fox Co., 434 U.S. 1345, 1351 (1977) (Rehnquist, J., Circuit Justice). A 

“presumption of constitutionality” attaches to every legislative act, and that presumption 

is “an equity to be considered in favor of . . . [the government] in balancing hardships.” 

Walters v. Nat’l Ass’n of Radiation Survivors, 468 U.S. 1323, 1324 (1984) (Rehnquist, J., 

Circuit Justice). 

 Here, the imminent harm to the public if the State is not permitted to enforce its 

political committee registration and disclosure statutes far outweighs Plaintiffs’ desire not 

to follow the minimal requirements of the law. In these key days leading up to the 

election, a temporary lifting of the challenged statutes would allow countless 

organizations to engage in electioneering practices, encouraging or discouraging the 

public from voting for specific candidates or proposed constitutional amendments, while 

keeping the public in the dark as to the relevant constituencies. That practice conflicts 

with the Supreme Court’s recognition of the government’s sufficient interest in keeping 

the public informed. See Buckley I, 424 U.S. at 82; Buckley II, 525 U.S. at 202 (noting 

the state’s interest in keeping voters informed about “where political campaign money 

comes from”). Requiring political committees to reveal their financial campaign 

activities to the public serves a sufficiently important government interest in preventing 

corruption and educating the public. Without knowing what entity sponsored a political 

advertisement favoring or disfavoring a particular candidate or ballot question, the public 

will be less able to make informed choices at the polls. In that case, the harm to the State 

is irreparable, and substantially outweighs any minimal harm to Plaintiffs. 

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IV. AN INJUNCTION WOULD DISSERVE THE PUBLIC INTEREST 

 The public interest would be disserved by an order enjoining the operation of 

Florida’s public campaign financing system in the middle of an election process already 

underway. Florida unquestionably has “a compelling interest in preserving the integrity 

of its election process.” Purcell v. Gonzalez, 549 U.S. 1, 7 (2006) (citing Eu v. San 

Francisco Cnty. Democratic Cent. Comm., 489 U.S. 214, 231 (1989)). Moreover, 

“[c]onfidence in the integrity of our electoral processes is essential to the functioning of 

our participatory democracy.” Purcell, 549 U.S. at 4. The courts have routinely 

recognized “that election cases are different from ordinary injunction cases. Interference 

with impending elections is extraordinary.” Southwest Voter Registration Educ. Project 

v. Shelley, 344 F.3d 914, 919 (9th Cir. 2003). 

 This Court considered the disruption of the election process when a suit was 

brought challenging Florida’s congressional districting plan seven weeks before the first 

primary election. In Johnson v. Smith, No. TCA 94-40025-WS 1994 WL 907596, at *1 

(N.D. Fla. Jul. 18, 1994), this Court declined to enter a preliminary injunction “primarily 

because the court finds that the public interest would not be served by an act that would 

inevitably disrupt an election process already well underway.” See also, Ausman v. 

Browning, CASE NO. 4:07cv519-RH/WCS (order denying preliminary injunction, 

1/8/08). 

 As stated above, the public deserves to be informed of what organization is 

behind a political advertisement advocating a particular candidate for office. If that 

information is withheld from the public, by way of enjoining the State from enforcing its 

Case 4:10-cv-00423-RH -WCS Document 23 Filed 10/14/10 Page 18 of 20
19 

registration and disclosure statutes, electors will be less likely to make informed choices 

at the polls. For that reason, granting an injunction would disserve the public’s interest. 

CONCLUSION 

 Plaintiffs have failed to establish the four requirements for a preliminary 

injunction and their motion should be denied. 

 Respectfully submitted this 14th day of October, 2010. 

C.B. Upton 

General Counsel 

Fla. Bar No. 0037241 

Florida Department of State 

R.A. Gray Building 

500 S. Bronough Street 

Tallahassee, FL 32399-0250 

850-245-6536 

850-245-6127 (fax) 

cbupton@dos.state.fl.us 

Counsel for Defendant 

Secretary of State Dawn K. Roberts 

 

BILL MCCOLLUM 

ATTORNEY GENERAL 

/s/ Jonathan A. Glogau 

Jonathan A. Glogau 

Chief, Complex Litigation 

Fla. Bar No. 371823 

Diane G. DeWolf 

Deputy Solicitor General 

Fla. Bar No. 59719 

PL-01, The Capitol 

Tallahassee, FL 32399-1050 

850-414-3300, ext. 4817 

850-414-9650 (fax) 

jon.glogau@myfloridalegal.com 

Counsel for Defendants 

Case 4:10-cv-00423-RH -WCS Document 23 Filed 10/14/10 Page 19 of 20
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CERTIFICATE OF SERVICE 

 I HEREBY CERTIFY that the foregoing document was served by filing in this 

court’s CM/ECF system this 14th day of October, 2010, on: 

William H. Mellor 

Paul M. Sherman 

Robert W. Gall 

901 North Glebe Road, Suite 900 

Arlington, VA 22203-1854 

Darren A. Schwartz 

215 South Monroe Street, Suite 702 

Tallahassee, FL 32301 

 /s/ Jonathan A. Glogau 

 Attorney 

Case 4:10-cv-00423-RH -WCS Document 23 Filed 10/14/10 Page 20 of 20