Chancey v. Illinois State Board of Elections

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

JOHN MATTHEW CHANCEY, et al., )

)

Plaintiffs, ) No. 22 CV 04043

)

v. ) Judge John J. Tharp, Jr.

)

THE ILLINOIS STATE BOARD OF

)

ELECTIONS, et al.,

)

)

Defendants.

MEMORANDUM OPINION AND ORDER

The plaintiffs challenge two recently enacted provisions of the Illinois Election Code as

violative of their First Amendment rights to free speech. Both provisions regulate campaign

financing during state judicial elections. The first prohibits judicial candidate committees from

receiving any contributions from an out-of-state person. The second caps the amount that any

independent expenditure committee established to support or oppose a judicial candidate can

receive from any single source during an election cycle at $500,000. The plaintiffs seek to

preliminarily enjoin the defendants from enforcing these two provisions during the upcoming

November 8, 2022, election, a permanent injunction to the same effect for future election cycles,

and a declaratory judgment that these two provisions are unconstitutional. Defendant Illinois

Attorney General Kwame Raoul has moved to dismiss the plaintiffs’ complaint for failure to state

a claim and opposed the plaintiffs’ motion for preliminary injunction. For the reasons set forth

below, the plaintiffs’ motion for a preliminary injunction is granted, and the motion to dismiss is

denied because the plaintiffs, having shown they have some likelihood of success on the merits,

necessarily have also demonstrated that they have stated a plausible claim for relief.

BACKGROUND

For the most part, state court judges in Illinois are elected officials.1 The Illinois Election

Code regulates various aspects of state and local elections, including campaign financing for

judicial elections. See 10 ILCS 5/9-1 et seq. It imposes, inter alia, disclosure, reporting,

accounting, and spending requirements and contribution limits for the various kinds of political

committees that are formed to support or oppose candidates for office.

Candidates for judicial office in Illinois, like candidates for other elected positions,

organize (or designate) candidate political committees to facilitate their campaigns. The Code

defines “candidate political committee” as, “the candidate himself or herself or any natural person,

trust, partnership, corporation, or other organization or group of persons designated by the

candidate that accepts contributions or makes expenditures during any 12-month period in an

aggregate amount exceeding $5,000 on behalf of the candidate.” 10 ILCS 5/9-1.8. Each candidate

can only have one candidate committee.

The Code also regulates other types of political committees that seek to receive, contribute,

and spend money to support or oppose candidates in state and local elections. See 10 ILCS 5/9-

1.8(a)-(f) (defining the types of political committees governed by Art. 9 of the Code). One such

type of committee is an “independent expenditure committee,” or IEC. As the name implies, IECs

are formally independent from the candidate committees, and they are subject to special rules. By

definition, they exist either to make “independent expenditures” in support of or opposition to

candidates or public policy positions, or to make electioneering communications on those subjects

1 The associate judges in each judicial circuit, for instance, are appointed by the Circuit

Court judges from those circuits. Illinois Const., Art. VI, §8. Further, in the event of a midterm

vacancy on the Illinois Supreme, Appellate, or Circuit Courts, the Illinois Supreme Court justices

appoint interim judges to fill those vacancies until elections are held. See Illinois Const., Art. VI,

§12(c); Judicial Vacancies Act, 705 ILCS 40.

to voters. 10 ILCS 5/9-1.8(f). “Independent expenditures” cannot be made in concert with the

candidates’ campaigns or political committees. 10 ILCS 5/9-1.15. Electioneering communications

are subject to the same restriction. Id. Under no circumstance may an IEC “give any money directly

to a candidate committee.” Compl. ¶ 31 (citing 10 ILCS 5/9-8.5(b)).

Election Code Provisions at Issue

The Illinois legislature recently made a series of changes to the Election Code. Two of

those changes are at issue in this case, and they only come into effect during judicial elections.

They reflect Illinois’ decision to treat some aspects of fundraising for judicial elections differently

from fundraising for executive or legislative elections.

First, enacted on November 15, 2021, Illinois Senate Bill 536 (Public Act 102-0668)

amended the Code by prohibiting any judicial candidate political committee from “accept[ing]

contributions from any out-of-state-person…” 10 ILCS 5/9-8.5(b-5)(1)(B).2,3 The statutory

amendment provides that any “political committee that receives a contribution in violation of this

Section” must dispose of or return the contribution, or else the contribution escheats to the State’s

General Revenue Fund and the committee will be “subject to a civil penalty not to exceed 150%

2 See 10 ILCS 5/9-1.4(A)-(B), for the Election Code’s definition of “contribution”; see also

10 ILCS 5/9-8.5(A)-(B), for an additional definition of “contribution” in the same provision as the

prohibition on out-of-state contributions to judicial candidate political committees.

3 The Election Code does not define “out-of-state” or “out-of-state person,” but the Illinois

State Board of Elections has adopted rules set forth in the Illinois Administrative Code, which

defines “out-of-state person” as “includ[ing] but [] not limited to any of the following:”

A) a natural person whose primary residence lies outside the geographic boundaries of the

State of Illinois;

B) a person, as defined in Code Section 9-1.6, other than a natural person, who does not

operate an office, branch location, or place of business situated in this State, and does not have

employees, agents or representatives in this State.

Ill. Admin. Code tit. 26, § 100.75(j)(2).

of the total amount of the contribution.” 10 ILCS 5/9-8.5(j). The Code only distinguishes between

in- and out-of-state contributions to candidate committees for the purposes of judicial elections;

there is no bar to out-of-state contributions to candidate committees in executive or legislative

elections. No provision of the Code prohibits out-of-state persons from contributing to other types

of political committees involved in judicial elections, e.g., political party committees or IECs.

Second, enacted on May 27, 2022, Illinois House Bill 0716 (Public Act 102-0909) added

a provision prohibiting any “independent expenditure committee established to support or oppose

a candidate seeking nomination, election, or retention to the Supreme Court, the Appellate Court,

or the Circuit Court” from “accept[ing] contributions from any single person in a cumulative

amount that exceeds $500,000 in any election cycle.” 10 ILCS 5/9-8.5(b-5)(1.2). Section 9-8.5(b-

5)(1.2) of the Code further provides that “[a]ny contribution [to an IEC by a single person] in

excess of [$500,000 in an election cycle] shall escheat to the State of Illinois.” IECs are required

to immediately forward any amount received by an individual that exceeds $500,000 to the State

Treasurer who shall deposit the funds into the State Treasury. 10 ILCS 5/9-8.5(b-5)(1.2). In

contrast, the Code does not restrict the amount of money that an IEC established to support or

oppose a candidate running for a non-judicial office may receive from any single person.

Other Relevant Portions of the Election Code

Since these new provisions are embedded within a complicated framework of campaign

financing, spending, and disclosure rules, it is necessary to understand how they interact with

preexisting rules. First, the Code imposes general limits on the amounts that donors may contribute

directly to a candidate committee (as distinguished from an IEC) for all races, including judicial

races. Those limits are: $5,000 from any individual; $10,000 from any corporation, labor

organization, or association; and $50,000 from a candidate political committee or political action

committee.4 10 ILCS 5/9-8.5(b). There is no limit, however, to how much political party

committees may contribute to candidate committees during general elections (except during

primary elections). Compl. ¶ 31 (citing 10 ILCS 5/9-8.5(b)).

The Code lifts these limits on direct contributions to candidate committees in two

circumstances. The Court will refer to these as the “self-funding waiver” and the “independent-

expenditure waiver,” respectively. In both of these circumstances, the Board notifies all candidates

running in the race that these waivers have been triggered, and the 10 ILCS 5/9-8.5(b) direct

contribution limits (discussed in the preceding paragraph) are lifted for all candidates in that race.

In non-judicial races, both of these waivers remove any limit on direct campaign contributions. In

judicial races, however, the degree to which the contribution limits are lifted depends on which

waiver is triggered.

The self-funding waiver is triggered when a candidate or his immediate family contributes

to the candidate’s committee during the 12 months prior to an election (i.e., a candidate self-funds)

in an aggregate amount of more than (i) $250,000 for statewide office or (ii) $100,000 for all other

elective offices. 10 ILCS 5/9-8.5(h). The Code does not treat any judicial office as a “statewide

office.” See 10 ILCS 5/9-8.5(k). Therefore, once a judicial candidate self-funds in excess of

$100,000, the self-funding waiver kicks in, and candidate committee contribution limits increase

for that race. In judicial elections, the $5,000 (individual), $10,000 (corporation, union,

association), $50,000 (candidate committee or PAC) candidate committee contribution limits are

4 A “political action committee” (PAC) is a distinct type of political committee. See 10

ILCS 5/9-1.8(d) (defining “political action committee.”). Neither of the challenged provisions in

this case impose restrictions specific to PACs. IECs are essentially independent-expenditure-only

PACs, see 10 ILCS 5/9-1.8(f), and the two types of committees are subject to different rules and

limits under the Code.

increased to $500,000 regardless of the category of contributor. See 10 ILCS 5/9-8.5(b-5)(1.1).5

For non-judicial races, the triggering of the self-funding waiver lifts the contribution limits

entirely, i.e., anyone can then make unlimited contributions to the candidate committees. See 10

ILCS 5/9-8.5(h).

The independent-expenditure waiver is triggered when an individual or IEC makes

independent expenditures in support of or in opposition to a candidate in an aggregate amount of

more than (i) $250,000 for statewide office or (ii) $100,000 for all other elective offices in an

election cycle. 10 ILCS 5/9-8.5(h-5). Again, the Code does not treat any judicial office as a

“statewide office.” Therefore, when an individual or IEC spends $100,000 or more in support of

or in opposition to a judicial candidate, the independent-expenditure waiver kicks in, and candidate

committee contribution limits are completely removed for that judicial race. Id. In other words,

anyone (except an IEC) can make unlimited contributions directly to the candidate committee

when the independent-expenditure waiver kicks in.

The Code also contains numerous provisions aimed at increasing transparency in campaign

financing. Some apply to all elections, and some are geared toward judicial elections specifically.

The Code requires individuals making independent expenditures in excess of $3,000 to file

disclosures with the ISBE.6 10 ILCS 5/9-8.6(a). All political committees, including candidate

committees and IECs, are required to “file quarterly reports of campaign contributions,

5 The new $500,000 limit does not apply to additional self-funding from the candidate or

his family. Id.

6 Once the individual makes independent expenditures in excess of $3,000, they “have a

continuing obligation to report further expenditures in relation to the same election, in $1,000

increments, to the State Board until the conclusion of the election…. Each disclosure must identify

the natural person, the public official or candidate supported or opposed, the date, the amount, and

nature of each independent expenditure, and nature of each independent expenditure, and the

natural person’s occupation and employer.” 10 ILCS 5/9-8.6(a).

expenditures, and independent expenditures.” 10 ILCS 5/9-10(b); see 10 ILCS 5/9-11 for the

information that is required in these reports. For contributions in excess of $150, the quarterly

financial report must contain, inter alia, details about the identity of the source, amount, and date

of those contributions. 10 ILCS 5/9-11(a)(4). Information regarding any contribution of $1,000 or

more must be filed within 5 business days of receipt. 10 ILCS 5/9-10(c). All political committees

established to support or oppose a judicial candidate are prohibited from receiving contributions

greater than $500 from any committee, association, organization, or other group of persons that is

not required to disclose its contributors under the Code. 10 ILCS 5/9-8.5(b-5)(1.3).

The Parties

The plaintiffs claim that the two recently enacted Election Code provisions are

unconstitutional because they impose undue restrictions on certain modes of political participation

in judicial races. Plaintiff John Matthew Chancey specifically challenges the provision prohibiting

judicial candidate committees from accepting contributions from out-of-state persons, 10 ILCS

5/9-8.5(b-5)(1)(B). Chancey lived in Illinois for 63 years before retiring to Texas. Some of his

professional and personal acquaintances from his time practicing law in Illinois are running for

judicial office in the November 8, 2022, elections. He seeks to donate money to them. But since

he now resides in Texas, and thus qualifies as an “out-of-state person,” the judicial candidate

committees to which he seeks to contribute cannot accept his contributions under the amended

Election Code.

Plaintiffs Fair Courts America (FCA) and Restoration PAC are IECs established to support

or oppose judicial candidates in the upcoming election. They challenge the new provision

prohibiting IECs from accepting contributions greater than $500,000 from any single individual

donor, 10 ILCS 5/9-8.5(b-5)(1.2). They each claim they seek to receive contributions from certain

unidentified prospective donors in excess of an aggregate amount of $500,000 per donor.

Restoration PAC also seeks to contribute an amount in excess of $500,000 to FCA in furtherance

of its efforts to support or oppose Illinois judicial candidates. Plaintiffs FCA and Restoration PAC

are restricted from receiving (and, in Restoration PAC’s case, also making) these contributions as

IECs under the amended Code.

The defendants are members of the Illinois State Board of Elections, which is the unit of

Illinois state government responsible for investigating and holding enforcement hearings regarding

violations of the Election Code, 10 ILCS 5/9-18, and Kwame Raoul, who is the Attorney General

of the State of Illinois and prosecutes violations of the Illinois Code’s provisions restricting

campaign contributions. 10 ILCS 5/9-25.2. The plaintiffs also initially named the Illinois State

Board of Elections as a defendant. Per the parties’ agreed motion, ECF No. 15, however, the Court

dismissed the ISBE from this suit. ECF No. 18. By agreement of the parties, the Court also excused

the Board Member defendants from answering or otherwise actively participating in the case. Id.

ANALYSIS

Although neither party has called the Court’s subject-matter jurisdiction into doubt, the

Court must nevertheless ensure it remains “secure at all times.” See Minn-Chem, Inc. v. Agrium,

Inc., 683 F.3d 845, 853 (7th Cir. 2012). Constitutional standing is essential to the Court’s exercise

of jurisdiction. Korte v. Sebelius, 735 F.3d 654, 667 (7th Cir. 2013). The Seventh Circuit has

elucidated the connection between the judicial power under the Constitution and the doctrine of

standing:

Article III of the Constitution limits the judicial power to “Cases”

and “Controversies,” U.S. CONST. art. III, § 2, cl. 1, a limitation

understood to confine the federal courts to the traditional role of

Anglo–American courts, which is to redress or prevent actual or

imminently threatened injury to persons caused by private or official

violation of law. The doctrine of standing enforces this limitation.

Id. (cleaned up). “To invoke the authority of a federal court, a litigant must have ‘an injury that is

concrete, particularized, and actual or imminent; fairly traceable to the defendant's challenged

action; and redressable by a favorable ruling.’” Id. at 667 (quoting Horne v. Flores, 557 U.S. 433,

445 (2009)).

Plaintiff Chancey claims he would donate to various judicial candidate political committees

but for the law prohibiting such out-of-state direct contributions. Plaintiffs FCA and Restoration

PAC claim they seek to receive contributions from at least some prospective donors in excess of

an aggregate amount of $500,000 per donor but are prohibited from doing so by the Code’s limit

on contributions to IECs. Restoration PAC also claims it would make such a contribution to co-

plaintiff FCA but for that same limit. The plaintiffs do not claim that the defendants have

prosecuted them or otherwise enforced the Code’s restrictions against them thus far, but they do

outline the enforcement mechanisms for these new provisions in their complaint, and the Court

sees no reason why the State would not pursue those mechanisms if violations occur. In pre-

enforcement First Amendment cases such as this, the specter of enforcement places a chill on the

speech of prospective contributors—here, Chancey and Restoration PAC—and constitutes a

cognizable and redressable harm. Thus, it is not necessary for the plaintiffs to “risk prosecution or

otherwise await enforcement of the statute” before suing. Wisconsin Right to Life State Pol. Action

Comm. v. Barland, 664 F.3d 139, 147 (7th Cir. 2011). Further, FCA and Restoration PAC

adequately allege injury in their capacities as “contributee” organizations; since they cannot accept

certain donations, they have standing to sue on behalf of their would-be contributors who, though

unnamed, FCA and Restoration PAC plausibly allege exist. See id. at 147-48.

With the plaintiffs’ standing secure, the Court now turns to the merits of the plaintiffs’

motion for a preliminary injunction. To obtain a preliminary injunction, “the moving party must

demonstrate that (1) it has no adequate remedy at law and will suffer irreparable harm if a

preliminary injunction is denied; and (2) there is some likelihood of success on the merits of the

claim.” Korte v. Sebelius, 735 F.3d 654, 665 (7th Cir. 2013). If the moving party makes such a

threshold showing, the Court balances the equities, i.e., it “weighs the competing harms to the

parties if an injunction is granted or denied,” and in so doing, the Court “also considers the public

interest.” Id. This is “a sliding-scale analysis; the greater the likelihood of success on the merits,

the less heavily the balance of harms must tip in the moving party's favor. The aim is to minimize

the costs of a wrong decision.” Id. The Court addresses each of these elements in turn, starting

with the likelihood of success on the merits for each of the challenged provisions.

I. Likelihood of Success on the Merits

To succeed on the merits, the plaintiffs first need to show that Illinois has burdened their

speech. They have made such a showing, and the defendants do not dispute it. “Spending for

political ends and contributing to political candidates both fall within the First Amendment’s

protection of speech and political association.” FEC v. Colo. Republican Fed. Campaign Comm.,

533 U.S. 431, 440 (2001). “Discussion of public issues and debate on the qualifications of

candidates are integral to the operation of” our system where many governmental officials hold

elected office. Buckley v. Valeo, 424 U.S. 1, 14 (1976) (per curiam). The Seventh Circuit has also

applied Supreme Court precedent to hold that limits on contributions to entities engaged in

independent spending in support of candidates burden speech. See generally Barland, 664 F.3d

139. Here, one challenged provision prohibits judicial candidate committees from accepting any

donations from out-of-state persons. The other caps the aggregate amount that IECs can accept

from any single donor at $500,000. That these are provisions regulating financing in judicial

elections specifically does not diminish the existence or quality of the burden on the plaintiffs’

speech. Where a state’s judiciary is elected, restrictions on “[t]he right of citizens to inquire, to

hear, to speak, and to use information to reach consensus,” Citizens United v. FEC, 558 U.S. 310,

339 (2010), about candidates’ fitness for the bench call into question whether the government is

animated by a valid interest in enacting those restrictions, the importance of that interest, and to

what degree the restrictions are tailored to actually serve the interest. See, e.g., Republican Party

of Minnesota v. White, 536 U.S. 765 (2002) (discussing the importance of public debate on judicial

candidates’ qualifications and views). That is, there is no reason to suspect that political speech

during judicial elections is any less valuable than speech during elections for other types of office.

The State has invoked the same interest for both provisions, and the Supreme Court has

previously deemed that interest compelling in a related context. Illinois contends it enacted the

two provisions to protect its interest in preserving public confidence in a fair and disinterested

judiciary. That is, both the integrity and appearance of integrity of the Illinois state judiciary are at

stake absent the provisions in question, according to the State. The Supreme Court has held that

this interest is compelling, though that was in a different (but related) context. See Williams-Yulee

v. Fla. Bar, 575 U.S. 433 (2015) (holding that a canon of a state’s code of judicial conduct

prohibiting judicial candidates from personally soliciting funds for their campaigns is narrowly

tailored to serve the state’s compelling interest in preserving public confidence in the integrity of

its judiciary). The plaintiffs do not dispute that this interest is generally a compelling one. They do

dispute, however, that the interest can justify the speech-burdening restrictions at issue here. That

depends in part on whether the restrictions are appropriately tailored to serve the governmental

interest.

A. Count I: Illinois’ Prohibition on Contributions from Out-of-State Persons to

Judicial Candidate Committees

The parties dispute the level of tailoring required for the prohibition on judicial candidate

committees from accepting out-of-state contributions to survive: the intermediate “closely drawn”

standard occasionally used in the campaign-finance context, or strict scrutiny’s “narrowly tailored”

standard. It is not necessary for the Court to reach a definitive conclusion here. The provision fails

even under the closely drawn standard, which is “a lesser but still ‘rigorous standard of review.’”

McCutcheon v. FEC, 572 U.S. 185, 197 (2014) (quoting Buckley, 424 U.S. at 21).

Since the Court will be analyzing the provision under the closely drawn standard, some

background is necessary. Since Buckley, the Supreme Court has “recognized that contribution

limits, unlike limits on expenditures, ‘entai[l] only a marginal restriction upon the contributor’s

ability to engage in free communication.’” McConnell v. Fed. Election Comm'n, 540 U.S. 93, 134

(2003) (quoting Buckley, 424 U.S. at 20). The reason the restriction is marginal is because “[a]

contribution serves as a general expression of support for the candidate and his views, but does not

communicate the underlying basis for the support.” Buckley, 424 U.S. at 21. Further, other than

their marginal symbolic effect, contributions “involve speech by someone other than the

contributor.” Id. at 161-62. The contributor is essentially paying someone else to engage in speech

that the contributor presumably agrees with or would like to hear. Accordingly, in cases where

campaign contributions are at issue, courts examine whether “the restriction at issue [is] ‘closely

drawn’ to serve a ‘sufficiently important interest.’” Arizona Free Enter. Club's Freedom Club PAC

v. Bennett, 564 U.S. 721, 735 (2011) (quoting McConnell, 540 U.S. at 136). In contrast, restrictions

on political expenditures merit strict scrutiny because they “necessarily reduce[] the quantity of

expression by restricting the number of issues discussed, the depth of their exploration, and the

size of the audience reached.” Buckley, 424 U.S. at 19; see also Barland, 664 F.3d at 152-53.

Furthermore, the Supreme Court has held that the “closely drawn” standard applies regardless of

whether a court is confronted with a ban or a limit on contributions. See, e.g., FEC v.

Beaumont, 539 U.S. 146, 161 (2003) (upholding ban on direct corporate contributions under the

closely drawn standard); McConnell, 540 U.S. at 231-32 (applying closely drawn standard to strike

a ban on contributions from individuals seventeen years old or younger as violative of First

Amendment); see also Wagner v. FEC, 793 F.3d 1, 5 (D.C. Cir. 2015) (“The Supreme Court has

repeatedly applied this ‘closely drawn’ standard to challenges to campaign contribution

restrictions.” (collecting cases)). This is important because the ban-limit distinction becomes

relevant in the tailoring analysis, not at the initial stage of selecting the appropriate level of

scrutiny.

Is the provision at issue here closely drawn to serve Illinois’ sufficiently important interest

of preserving the appearance of a fair and disinterested judiciary? Likely not. In order to be

“closely drawn,” the restriction must be “above the ‘lower bound’ at which ‘the constitutional risks

to the democratic electoral process become too great.’” Illinois Liberty PAC v. Madigan, 904 F.3d

463, 470 (7th Cir. 2018) (plurality opinion) (quoting Randall v. Sorrell, 548 U.S. 230, 248 (2006).

The State has failed to adequately explain at this stage how its complete prohibition of an entire

source of money based solely on geography is a valid—i.e., closely drawn—method of protecting

the public’s confidence in the integrity and independence of the state judiciary.

To be sure, a state’s interest in preserving public confidence in the integrity of its judiciary

may in some cases justify certain restrictions on speech relating to judicial campaign contributions

that would not survive scrutiny if similarly applied during representative elections. This is because

“a State's interest in preserving public confidence in the integrity of its judiciary extends beyond

its interest in preventing the appearance of corruption in legislative and executive elections.”

Williams-Yulee, 575 U.S. at 447. And the manner in which judicial campaigns raise funds can

result in damage to the public’s perception of the judiciary’s integrity. In Williams-Yulee, for

example, the Supreme Court upheld a rule restricting judicial candidates from personally soliciting

campaign contributions because such conduct may create the “regrettable but unavoidable”

appearance of diminished judicial integrity. Id. Moreover, the State is correct in pointing out that

this is not a total ban on out-of-state participation in public debate surrounding judicial elections

in Illinois, even via financial contributions. It just prohibits one way that out-of-staters like

Chancey can participate, i.e., via contributions directly to a candidate committee. Chancey can still

make unlimited independent expenditures in support of his desired candidates, donate to the

candidates’ political parties (who can then donate directly to the campaigns if they so choose),

and/or donate to IECs, such as his fellow plaintiffs. But the mere existence of alternative methods

of participation does not save the challenged provision from being a poor fit, nor does it change

the fact that Chancey is precluded from symbolically associating himself with the candidates he

supports. Even if Buckley held that that sort of symbolic speech is comparatively less significant

than other types of political speech, that does not mean the State can eliminate it without good

reason.

The special nature of judicial elections does not justify Illinois’ differential treatment of in-

and out-of-state contributors in this manner. The Court cannot ignore the gravity of the restriction

with which it is faced: A state law prohibits an entire class of people from engaging in a distinct

category of political expression during the electoral process.7 See Randall v. Sorrell, 548 U.S. 230,

249-53 (2006) (plurality opinion) (holding that individual contribution limits ranging from $200-

400 are too low to survive scrutiny.). The State claims that “[t]he ban on out-of-state contributions

prevents a situation where outside donors dominate and control another state’s judiciary. Such a

7 That this is a ban, rather than a limit, on out-of-state contributions to judicial candidate

committees is relevant to this stage of the Court’s analysis, not to the level of scrutiny it should

apply. See Beaumont, 539 U.S. at 162 (“It is not that the difference between a ban and a limit is to

be ignored; it is just that the time to consider it is when applying scrutiny at the level selected, not

in selecting the standard of review itself.”).

situation could cast doubt upon the integrity of the judiciary should the public believe the court

system beholden to foreign interests.” Def.’s Resp. at 11. But why would it matter whether funds

sufficient to cast doubt on the integrity of the judiciary originate in-state rather than out of state?

The State does not (and cannot) explain why money is more corrupting simply because its source

is from outside the state, so the premise that the out-of-state ban on campaign contributions

materially enhances the state judiciary’s appearance of integrity is entirely without foundation.

The asymmetry between how the Election Code treats the injection of foreign money into

judicial campaigns versus in-state money, moreover, belies the notion that this provision is closely

drawn to serve the stated goal of preserving public confidence in the integrity of the judiciary. To

illustrate, as the law currently stands, an individual residing in Illinois can contribute up to $5,000

to a judicial candidate committee under normal circumstances, and an out-of-state person can

contribute nothing. There does not appear to be a legitimate concern that either sort of individual

can assert domination or control by means of direct campaign contributions under such

circumstances. But that would also be true absent the challenged provision, in which case any

individual, regardless of geography, could only contribute up to the $5,000 limit.

Now consider what happens when one of the waiver scenarios is triggered. As the law

currently stands, depending on which waiver applies, in-state residents can then make direct

campaign contributions either up to $500,000 or without limit,8 whereas out-of-state residents can

contribute nothing. Lastly, absent the challenged provision, and if a waiver provision kicks in,

everyone would be permitted to make unlimited contributions directly to campaigns. In such a

8 Recall that if the self-funding provision kicks in, then contributions from donors other

than the donor or a member of the donor’s family are capped at $500,000 per donor. 10 ILCS 5/9-

8.5(b-5)(1.1). If the independent-expenditure-waiver provision kicks in, there is no limit on how

much any single donor can contribute directly to the judicial candidate committee. The plaintiffs

do not challenge these waiver-related provisions.

situation, there is equal opportunity for in- and out-of-state donors to “dominate and control” the

judiciary via campaign contributions. The State offers no basis on which to distinguish the threat

to judicial integrity arising from direct campaign contributions by out-of-state residents from that

resulting from contributions from in-state persons, and the Court can fathom none. The State’s

argument can only be predicated on the fact that direct campaign contributions in general can raise

eyebrows when it comes to judicial integrity. Importantly, it cannot be the case that the State can

restrict the speech of out-of-state contributors because it deems them uniquely and inherently

erosive of public confidence. Buckley, 424 U.S. at 48-49 (“[T]he concept that government may

restrict the speech of some elements of our society in order to enhance the relative voice of others

is wholly foreign to the First Amendment.”). Of course, the State does place a $5,000 limit on in-

state contributions before the waivers kick in. But that’s not when it matters; it’s only once those

limits are lifted—when the gloves really come off—that any credible threat to the appearance of

the judiciary’s integrity can be said to exist.

The Court recognizes that the underinclusiveness inquiry is of a “limited nature” and such

claims “occupy difficult theoretical terrain.” Illinois Liberty PAC, 904 F.3d at 471, 473. It is not

simply because the State should also institute similar bans on in-state campaign contributions to

further its purpose that this provision falters constitutionally. It is rather what the asymmetry

reveals about the State’s actual concerns that is fatal. See Brown v. Ent. Merchants Ass'n, 564 U.S.

786, 802 (2011) (“Underinclusiveness raises serious doubts about whether the government is in

fact pursuing the interest it invokes, rather than disfavoring a particular speaker or viewpoint.”);

White, 536 U.S. at 780 (holding that a restriction on judicial candidates’ speech was “so woefully

underinclusive as to render belief in [the government’s supposed interest of protecting the integrity

of the judiciary] a challenge to the credulous”). The State does not contend that the judiciary is

particularly susceptible to capture by outside influences as compared to internal ones. Nor does

the State argue that the public’s confidence is shaken more by massive external spending than by

internal spending. The examples of past corruption in Illinois courts the State cites in its briefing,

e.g., Operation Greylord, don’t do the State any favors in this regard; there is no indication that

any of those corruption scandals had much, if anything, to do with influences from outside of

Illinois as opposed to internal ones.

Consistent with this reasoning, the Ninth Circuit recently struck as unconstitutional an

aggregate limit on the amount that a candidate could receive from all out-of-state residents in part

because the state “fail[ed] to demonstrate that the risk of quid pro quo corruption turns on a donor’s

particular geography.” Thompson v. Hebdon, 7 F.4th 811, 825 (9th Cir. 2021). And even if the

context of judicial elections warrants a broader conception of corruption than quid pro quo

corruption, the State has not persuasively argued that there is a meaningful difference between in-

and out-of-state residents’ abilities to corrupt, or create the appearance of corruption, in any sense

of the term. As a result, Illinois’ exclusive targeting of out-of-state contributions raises a serious

red flag that it is actually animated by what prospective out-of-state contributors have to say—or

the ideologies of the judges whom they may tend to support—rather than public confidence in its

judiciary.9 Whatever its intent, the ban on out-of-state contributions will likely be more effective

in preserving the status quo of the state’s judiciary than in enhancing its appearance of integrity.

Accordingly, the Court concludes that plaintiff Chancey has shown “some likelihood” that he will

prevail on the merits of his constitutional claim.

9 It hardly needs saying that the government may not justify a restriction on certain

viewpoints based on a contention—which, to be clear, the State does not make here—that public

confidence in one of its institutions erodes when that viewpoint is more widely disseminated.

B. Count II: Illinois’ Limit on Contributions to IECs in Judicial Races

Plaintiffs Fair Courts America and Restoration PAC challenge as unconstitutional the

Election Code provision placing a $500,000 cap on contributions to IECs established to support or

oppose a candidate in a judicial race from any single source during an election cycle. Since the

limit imposes a burden on speech, the Court must again scrutinize the governmental interest the

limit purports to serve and whether it is appropriately tailored toward serving that interest. The

parties dispute which level of scrutiny should apply and whether the limit survives under both

levels.

Courts have consistently held that the government cannot limit contributions to IECs based

on an anticorruption interest. See Barland, 664 F.3d at 154-155 (collecting cases). Three premises

account for this result. First, the Supreme Court has narrowly interpreted the anticorruption interest

to mean the prevention of quid pro quo corruption only. See Citizens United, 558 U.S. at 359.

Second, that specific type of corruption “is the only interest the Supreme Court has recognized as

sufficient to justify campaign-finance restrictions.” Barland, 664 F.3d at 153. Third, “[t]he

separation between candidates and independent expenditure groups negates the possibility that

independent expenditures will result in the sort of quid pro quo corruption with which [the Court’s]

case law is concerned.” Ariz. Free Enterprise, 564 U.S. at 751. “As such, after Citizens United,

there is no valid governmental interest sufficient to justify imposing limits on fundraising by

independent-expenditure organizations.” Barland, 664 F.3d at 154.

But the State again contends that its interest in protecting the integrity of the judiciary is

sufficient to justify such IEC-fundraising limits in the special case of judicial elections. It argues

that its interest in preserving the public’s confidence in judicial integrity extends beyond its interest

in preventing conventional quid pro quo corruption and justifies this provision. Further, the State

supposes that the courts have not ruled this interest out when striking IEC contribution limits in

previous cases because those cases concerned other—non-judicial—types of elections. See id. This

broader, judicial-election-specific interest, the State argues, is capable of justifying a cap on

contributions to IECs that would, the State admits, fail scrutiny if applied in the context of a

legislative or executive election. Specifically, the State argues that this is because such

contributions “can create the perception of a judiciary subject to the whims of major donors.”

Def.’s Resp. at 14. Although the Court is unaware of any binding authority that directly addresses

it, this very issue has been at the heart of multiple Justices’ concurring and dissenting opinions in

the Supreme Court’s campaign-finance decisions. See, e.g., Williams-Yulee, 575 U.S. at 458

(GINSBURG, J. concurring) (“[B]ecause the role of judges differs from the role of politicians, this

Court's precedents applying the First Amendment to political elections [should] have little bearing

on elections to judicial office.” (cleaned up)); see also White, 536 U.S. at 792 (O’CONNOR, J.

concurring) (“If the State has a problem with judicial impartiality, it is largely one the State brought

upon itself by continuing the practice of popularly electing judges.”).

This Court does not need to reach the question of whether this governmental interest in

judicial integrity can ever be capable of justifying campaign-financing limits in judicial elections

that the traditional quid pro quo interest cannot in other types of elections. This is because even if

(1) the State’s special interest during judicial elections is valid in this context, and (2) the less-

demanding “closely drawn” standard is applied,10 the $500,000 limit fails because it is not closely

drawn to further the stated interest.

10 The parties also dispute which level of scrutiny applies. As discussed ante, contribution

limits are typically evaluated under the less-demanding “closely drawn” standard. On the other

hand, “laws that burden spending for political speech—whether candidate spending or

independent spending—get strict scrutiny and usually flunk.” Barland, 664 F.3d at 153 (collecting

cases). The Court is not aware of any binding precedent holding that limits on contributions to

entities that engage in independent spending exclusively are subject to one standard or the other.

See, e.g., id. at 154 (declining to determine which level of review applies to limit on aggregate

The State cites the damage done to the public’s confidence in the integrity of the judiciary

as a result of “massive spending in judicial elections,” Def.’s Resp. at 13-14, but does not explain

how the IEC contribution limit actually mitigates that damage. Suppose a judge were to rule in

favor of a litigant who had made a million-dollar independent expenditure (or other sort of

contribution) in support of the judge when the judge was running for election. This, according to

the State, poses an obvious threat to the appearance of judicial integrity and so the State has a

compelling interest in preventing the erosion of confidence that would attend such a ruling, but the

State tells us nothing about how the IEC contribution and expenditure limit minimizes that threat.

To make the case that the IEC restrictions are closely drawn, the State must argue that the $500,000

IEC contribution limit does something—anything—to shore up public confidence in judicial

integrity. But other than making some conclusory statements, the State offers nothing.

That is almost certainly because the IEC restrictions are entirely inadequate to the task. It

is true enough that, to qualify as “closely drawn,” the State “need not address all aspects of a

problem in one fell swoop,” Williams-Yulee, 575 U.S. at 449, but here the State’s actions are so

flawed that it is impossible to credit the effort as a genuine attempt to address the problem.

Consider what the legislature allows in purporting to stave off the threat posed by “massive

spending” in judicial elections. First, recall that the Code imposes no limit on the amount that an

individual may spend on his or her own independent expenditures in support of or opposition to a

candidate during a judicial race. That is, plaintiffs FCA and Restoration PAC’s prospective

donors—the ones who wish to contribute more than $500,000 to those IECs but are prevented

from doing so by to the challenged provision—can spend that money on their own independent

annual PAC contribution limit because the government’s anticorruption interest is insufficient to

justify the restriction under either level of scrutiny); SpeechNow.org v. FEC, 599 F.3d 686, 695-

96 (2010) (reaching a similar conclusion).

expenditures in connection with a judicial race. They could, for example, run their own ads or

distribute their own pamphlets without involving a committee. Next, as discussed above, if an

individual or IEC makes $100,000 in independent expenditures in support of or opposition to a

particular judicial candidate, then the independent-expenditure waiver kicks in. Upon triggering

of that independent-expenditure waiver, anyone (other than an IEC) can make unlimited

contributions directly to a candidate’s campaign committee in that race.

Illinois’ current framework, then, does virtually nothing to mitigate the threat posed by

large donations to IECs. Consider the hypothetical litigant who wants to donate a million dollars

to support the candidacy of the judge presiding over his case; he would have myriad means to do

so notwithstanding the IEC restriction. The contributor-litigant could, for example, donate up to

the $500,000 limit to an IEC that makes independent expenditures in support of the judge and

spend the other half on his own independent expenditures in support of the judge.11 Alternatively,

the contributor-litigant could spend the whole million dollars on individual independent

expenditures without involving a committee. Most problematically, the contributor-litigant can

spend only $100,000 in independent expenditures in support of the judge, thus triggering the

independent-expenditure waiver, and then donate $900,000 directly to the judge’s candidate

committee. This scenario actual increases the risk and appearance of corruption because, as the

Supreme Court has recognized, see Citizens United, 558 U.S. at 359-60, direct contributions to

11 It is not clear from the parties’ briefing or the Election Code whether an individual may

contribute up to $500,000 to multiple IECs that can then re-route those contributions to one IEC,

or if an identical set of individuals can otherwise create “shell” IECs, to get around the $500,000

limit under the current regime. One can imagine that those involved in running Restoration PAC

could theoretically circumvent the $500,000 limit on its prospective contribution to FCA by

creating two new IECs and routing the money in excess of $500,000 through them. The possible

availability of these alternatives would further weaken the State’s argument, but the Court does

not consider them now given the undeveloped state of the record and the expediency with which

it must resolve the plaintiffs’ motion for a preliminary injunction.

candidate campaign committees are categorically more likely to corrupt in this sense than

independent expenditures.

In response to the availability of these alternative channels of injecting large sums of

money into judicial races, the State argues that the $500,000 cap nevertheless furthers its interest

because it enhances transparency by reducing the ability of donors to use IECs as independent

channels to conceal their identities. Moreover, these donors would opt for using these independent

channels over direct candidate committee contributions to avoid having the details of their

contributions disclosed as part of the candidate committee’s required disclosures. The State points

out that “Plaintiffs allege that Restoration PAC would like to contribute in excess of $500,000 to

[FCA], another PAC, which obscures the ultimate source of the donation and requires greater

exploration on the part of voters who wish to be informed.” Def.’s Resp. at 15. But this argument

does not hold water. First, in the hypothetical situation above, the obfuscation of the source actually

makes it less likely that the hypothetical easily-swayed judge will rule in favor of the donor. If, as

the State argues, the provision obfuscates the source of the money going toward independent

expenditures, the judge, too, would have to follow a paper trail to determine the identity of the

donor. The State rejoins that donors might take it upon themselves to inform judges of their

donations, but that is a possibility whether or not there are limits on IEC contributions and

expenditures.

In sum, the State has not sufficiently explained how the $500,000 limit on IEC

contributions accomplishes anything other than imposing some burden on plaintiffs’ exercise of

their speech and associational rights. Admittedly, given the myriad ways a well-heeled donor can

work around the IEC restrictions, the burden is not great. But even if that burden is minimal,

“something … outweighs nothing every time.” Barland, 664 F.3d at 144 (quoting SpeechNow.org,

599 F.3d at 695). For this reason, the Court concludes that plaintiffs FCA and Restoration PAC

have shown some likelihood of success on the merits.

II. Other Preliminary Injunction Factors

The plaintiffs have shown that they have no adequate remedy at law and will suffer

irreparable harm if the Court does not enjoin the defendants from enforcing the challenged

provisions in the upcoming November 8 election. They have also shown that the balance of harms

tips in their favor.

A. Adequate Remedy at Law

The State does not dispute that the plaintiffs have no adequate remedy at law. Money

damages are rarely adequate remedies for the loss of First Amendment freedoms. See Flower Cab

Co. v. Petitte, 685 F.2d 192, 195 (7th Cir. 1982) (“In [First Amendment] cases the quantification

of injury is difficult and damages are therefore not an adequate remedy.”); Nat'l People's Action v.

Vill. of Wilmette, 914 F.2d 1008, 1013 (7th Cir. 1990) (“[I]njunctions are especially appropriate in

the context of first amendment violations because of the inadequacy of money damages.”).

Therefore, the only adequate remedy in this case would be equitable—i.e., injunctive—relief.

B. Irreparable Injury

The State disputes this element. It argues that the plaintiffs have failed to show “irreparable

harm because they cannot show they have suffered any constitutional wrong.” ECF No. 12, Def.’s

Resp. at 18. But that is just to double-down on its argument on the merits, rather than to address

the nature of the injuries claimed and so forfeits any argument that the plaintiffs’ injuries are not

irreparable even if caused by an unconstitutional infringement of the plaintiffs’ First Amendment

rights. The defendants lose little by that forfeiture, however, because as the plaintiffs point out, the

Seventh Circuit has held that the “loss of First Amendment freedoms, for even minimal periods of

time, unquestionably constitutes irreparable injury” for purposes of the preliminary injunction

analysis. Pls.’ Mot. at 14; ECF No. 5; Backpage.com, LLC v. Dart, 807 F.3d 229, 239 (7th Cir.

2015) (quoting Elrod v. Burns, 427 U.S. 347, 373 (1976)). As discussed in detail above, the

plaintiffs not only credibly allege violations of their First Amendment rights but have also shown

that they have some likelihood of success on the merits of both counts.

The State also argues that Chancey has not shown irreparable harm because “Chancey’s

bare assertion that he seeks to donate money to certain judges is unsupported by any evidence.

Moreover, Chancey has submitted no evidence that he has any history of participating in elections

through contributions.” Def.’s Resp. at 18. Chancey does not need to submit evidence that he has

previously contributed to electoral campaigns; he only needed to credibly allege that he seeks to

do so now and his speech is chilled by the Code’s prohibition on out-of-state contributions to

judicial candidate committees. The Court addressed this point in its discussion of standing above.

Lastly, the State argues that the plaintiffs’ delay in challenging these provisions shows they

are not actually likely to suffer irreparable harm. See Redbox Automated Retail, LLC v. Xpress

Retail LLC, 310 F. Supp. 3d 949, 953 (N.D. Ill. 2018) (“A lengthy, unexplained delay in seeking

relief calls into question ‘how urgent the need for preliminary equitable relief really is.’” (quoting

Michigan v. U.S. Army Corps of Eng'rs, 667 F.3d 765, 788 (7th Cir. 2011)). “However, delay is

only one among several factors to be considered; [the case law does] not support a general rule

that irreparable injury cannot exist if the plaintiff delays in filing its motion for a preliminary

injunction.” Ideal Industries, Inc. v. Gardner Bender, Inc., 612 F.2d 1018 (7th Cir. 1979)

(concerning a trademark case).

The plaintiffs did not delay regarding Count II, the $500,000 IEC contribution limit in

judicial races. That limit was enacted May 27, 2022. Plaintiffs filed their complaint on August 3,

2022. As the plaintiffs point out, that is little over two months. The Court does not consider that

to be a meaningful delay.

Turning to Count I, the prohibition of out-of-state contributions to judicial candidate

committees, that provision came into effect on November 15, 2021. It thus took Chancey eight-

and-a-half months to bring this claim. That is not a dramatic delay, and Chancey has explained

why this delay is reasonable. He argues that, at least in the realm of campaign finance, he is a

relatively unsophisticated party (especially compared to political parties, committees, etc.) “who

may not know in the fall or winter of 2021 that [he] intend[s] to donate to candidates in the 2022

election—many of those candidates [were] not even … candidates yet.” Pls.’ Reply at 9. Further,

the provision “applies only to out-of-state donors, who have even less reason to keep abreast of

what Illinois’ legislature is up to.” Id. Considering these justifications, the limited duration of the

delay, and the fact that delay is only one factor among many in determining the existence of

irreparable harm, the Court will not preclude Chancey from seeking preliminary relief for this

reason. Accordingly, the plaintiffs have demonstrated irreparable injury if the provisions at issue

remain enforceable in the upcoming election.

C. Balancing the Harms

At this stage, the Court considers “the irreparable harm the nonmoving party will suffer if

preliminary relief is granted, balancing that harm against the irreparable harm to the moving party

if relief is denied,” and “the public interest, meaning the consequences of granting or denying the

injunction to non-parties.” Abbott Labs. v. Mead Johnson & Co., 971 F.2d 6, 11-12 (7th Cir. 1992).

This factor involves what has been called “the ‘sliding scale’ approach: the more likely it is the

plaintiff will succeed on the merits, the less the balance of irreparable harms needs to weight

towards its side.” Id. at 12.

This factor is relatively straightforward in most circumstances where, as here, the plaintiffs

make a strong showing of their likelihood of success on the merits of their First Amendment

challenges. See Elrod, 427 U.S. at 373 (“The loss of First Amendment freedoms, for even minimal

periods of time, unquestionably constitutes irreparable injury.”). Further, “injunctions protecting

First Amendment freedoms are always in the public interest.” Christian Legal Soc’y v. Walker,

453 F.3d 853, 859 (7th Cir. 2006).

The timing of the upcoming election, however, complicates the issue, according to the

State. The general election is coming up on November 8, 2022, less than a month from when relief

would issue. The State argues that, over the past year, the State Board of Elections has made

numerous preparations for the upcoming election, including “promulgat[ing] guidance regarding

the contribution limits applicable to state judicial elections…” Def.’s Resp. at 21. “The disruption

of these settled plans and expectations would be substantial, sparking confusion among state

officials as well as candidates.” Id. In support, the State cites the Purcell line of cases, which stand

for the proposition that “lower federal courts should ordinarily not alter the election rules on the

eve of an election.” Republican Nat'l Committee v. Democratic Nat'l Committee, 140 S. Ct. 1205,

1207 (2020) (citing Purcell v. Gonzalez, 549 U.S. 1 (2006) (per curiam); Frank v. Walker, 574

U.S. 929 (2014); and Veasey v. Perry, 574 U.S. 951 (2014)).

Plaintiffs rightly point out, however, that the Purcell cases concerned last-minute changes

to election laws, not campaign financing regulations. Purcell concerned the Court of Appeals for

the Ninth Circuit’s issuance of an order enjoining a state from enforcing a measure “requiring

voters to present proof of citizenship when they register to vote and to present identification when

they vote on election day.” Purcell, 549 U.S. at 2. Such orders, the Supreme Court reasoned, can

“result in voter confusion and consequent incentive to remain away from the polls.” Id. at 4-5.

The requested relief here does not implicate the same concerns. The Purcell principle

cautions against creating confusion, disruption, and “unanticipated and unfair consequences for

candidates, political parties, and voters, among others” arising from eleventh-hour changes to

election procedures. Merrill v. Milligan, 142 S. Ct. 879, 881 (2022) (KAVANAUGH, J.

concurring). Here, there is little basis for such worries; it is difficult to imagine—and the

defendants fail to persuasively raise the specter—that if relief is granted, then voters will be

confused about whether, how, where, when, or for whom they can vote. Although candidates and

committees have settled expectations about their finances, they are doubtless all interested in

obtaining additional financing; there is no reason to suspect that any one party, candidate, or

committee will be particularly prejudiced if relief is granted. Lastly, to the extent the State argues

that it is itself prejudiced by having to issue new guidance at the late hour, that does not outweigh

the First Amendment harms suffered by the plaintiffs and those who are similarly situated to them.

And to the extent the State claims any prejudice, the problem is in large measure self-inflicted; the

State, not the plaintiffs, enacted these amendments, which raise substantial constitutional concerns,

less than a year before the election. Hyperbole aside, the State fails to explain why “chaos” will

reign if it is enjoined from enforcing two campaign finance provisions that were enacted only

months before this suit was filed.

For these reasons, the Court finds that the balance of harms also tips in favor of the

plaintiffs.

* * *

For the foregoing reasons, the plaintiffs’ motion for a preliminary injunction is granted.

Since the plaintiffs have demonstrated some likelihood of success on the merits of their claims,

they have also demonstrated that they have plausible claims for relief and defendant Attorney

General Raoul’s motion to dismiss is therefore denied. Accordingly, it is hereby ordered that

Illinois is, pending further order of this Court, enjoined from enforcing subsections 10 ILCS 5/9-

8.5(b-5)(1)(B) and 10 ILCS 5/9-8.5(b-5)(1.2).

Dated: October 14, 2022 John J. Tharp, Jr.

United States District Judge

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