In a case involving Stacey Abrams’ New Georgia Project, the Eleventh Circuit holds in New Georgia Project, Inc., et al v. Attorney General, State of Georgia, No. 22-14302 (11th Cir. July 8, 2024), that federal litigation of a challenge to Georgia’s campaign laws must await the conclusion of a state administrative enforcement action against the plaintiff, pursuant to the Younger doctrine, Younger v. Harris, 401 U.S. 37 (1971). In a concurring opinion, Judge Robin S. Rosenbaum deplores the already five-year delay in the reckoning of the plaintiff’s First Amendment rights.
“The Georgia Government Transparency and Campaign Fi[1]nance Act requires individuals and entities that spend more than a specified amount on express advocacy in favor of or in opposition to a particular candidate or ballot measure to disclose those expenditures and their sources . . . . The Act also requires ‘campaign committees’ and ‘independent committees’ to register with the Georgia Government Transparency and Campaign Finance Commission [‘Commission’].”
New Georgia fashions itself as “voter registration, organizing, and [issue] advocacy” organization, without a connection to nomination or election of candidates. It did not, under the Act, disclose its finances or register with the state. An administrative complaint was filed in the Commission in 2019 charging New Georgia with violations of the Act. In 2022, “the Commission issued an order finding ‘reasonable grounds’ to conclude that New Georgia had violated the Act and referring the case to the Georgia Attorney General’s office for further proceedings.”
To resist further adjudication of the charge, “New Georgia filed a civil-rights action in federal district court against the Georgia Attorney General and the members of the Commission . . . claiming that the Act violated the First and Fourteenth Amendments, both on its face and as applied.” A month after New Geogia commenced its action, “the Georgia Attorney General formally transferring the enforcement action to the Office of State Administrative Hearings (‘OSAH’) for an evidentiary hearing.”
The district court entered a preliminary injunction against the state, holding that the Act’s mandates “weren’t sufficiently tailored and swept too broadly” to pass First Amendment muster.
On appeal, the Eleventh Circuit dismisses the action, holding that the federal court should have allowed the state proceeding to reach its conclusion before acting. The panel holds that, for Younger abstention purposes, the state campaign-finance proceeding against New Georgia was “ongoing” on the date of the “reasonable grounds” finding and thus was pending when New Georgia filed its federal action. Moreover, the panel finds that the district court had engaged in no “proceedings of substance on the merits” by the time the state Attorney General formally transferred the state proceeding to the OSAH. Thus, under Younger principles, the district court was obliged to step aside in the interests of federalism and deference until the state concluded its ongoing action.
The panel also rejects an argument that application of Younger to this case would abrade the organization’s First Amendment rights:
“New Georgia asserts that the First Amendment is just different—uniquely resistant to the principles of Younger and Hicks: ‘[T]his Court,’ New Georgia says, ‘has been particularly reluctant to order abstention based on post-filing events in cases . . . involving a facial or as-applied challenge to a state statute on First Amendment free speech grounds.’ Br. of Appellee at 23 (quotation marks omitted). And to be sure, we have recognized (albeit in dicta) that in the First Amendment context we can consider ‘the costs of duplication and delay caused by Younger as we calibrate how broadly or narrowly to define proceedings of substance on the merits under Hicks [v. Miranda, 422 U.S. 332 (1975)]’ . . . . Even so, we have clarified that ‘First Amendment concerns do not, in themselves, provide a federal court with justification for interfering with a pending state criminal proceeding’ . . . . And indeed, many of the decisions in which the Supreme Court recognized and then expanded abstention doctrine—including, most notably, Younger and Hicks—were First Amendment cases.”
Judge Rosenbaum, concurring, accepts that the panel majority faithfully applies the prevailing Younger law, but worries that—over the decades—expansion of the doctrine has “prevent[ed] those who seek to exercise their right to engage in core political speech from meaningfully doing so” in the face of state law-enforcement actions. “In practice, this means that parties who want to vindicate their First Amendment right to speak may have to wait years before any institution considers that right.”
“Take New Georgia Project as an example. It first asserted its First Amendment rights in 2019 when the Commission issued a subpoena for its financial records. But neither the Commission nor the Georgia state courts considered the merits of New Georgia’s First Amendment claim in the three years between that subpoena and the start of this suit. And now we are forced to abstain under Younger. So New Georgia Project must wait even longer before any institution considers its right to engage in core political speech— during an election, no less!”
“In short, Younger has evolved to allow states to impose a state-exhaustion requirement on those trying to exercise core First Amendment rights. Perhaps we are meant to just put up with this result in the large majority of cases . . . . But in cases like this one, when the federal plaintiff seeks to vindicate its right to engage in political speech during election time, Younger silences that plaintiff—ironically in the name of federalism. In my view, it is time for the Younger doctrine to be reexamined.”
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