Richard Jackson v. William Jones

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FOR PUBLICATION

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 26-10854

____________________

RICHARD L. JACKSON,

JACKSON FOR GOVERNOR, INC.,

Plaintiffs-Appellants

Cross-Appellees,

versus

WILLIAM BURTON JONES,

in his personal capacity, and in his official

capacity as the Lieutenant Governor of Georgia,

WBJ LEADERSHIP COMMITTEE, INC.,

BURT JONES FOR GEORGIA, INC.,

Defendants-Appellees

Cross-Appellants,

CHRISTOPHER M. CARR, et al.,

in their official capacities,

Defendants.

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2 Opinion of the Court 26-10854

____________________

Appeal from the United States District Court

for the Northern District of Georgia

D.C. Docket No. 1:26-cv-00782-TWT

____________________

____________________

No. 26-10886

____________________

RICHARD L. JACKSON,

JACKSON FOR GOVERNOR, INC.,

Plaintiffs-Appellees,

versus

WILLIAM BURTON JONES, in his personal

capacity, and in his official capacity as the

Lieutenant Governor of Georgia,

WBJ LEADERSHIP COMMITTEE, INC.,

Defendants-Appellants.

____________________

Appeal from the United States District Court

for the Northern District of Georgia

D.C. Docket No. 1:26-cv-00782-TWT

____________________

Before WILLIAM PRYOR, Chief Judge, and JORDAN and GRANT,

Circuit Judges.

GRANT, Circuit Judge:

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26-10854 Opinion of the Court 3

Gubernatorial candidate Rick Jackson is the latest in a line of

would-be governors who have objected to the uncapped

fundraising opportunity that Georgia law offers incumbent

Governors and Lieutenant Governors. And he is likely correct.

The First Amendment does not forgive such favoritism.

To receive the preliminary injunctive relief he seeks, Jackson

must also show a likelihood that the conduct of his opponent’s

“leadership committee” qualifies as state action. This question is

admittedly somewhat closer, in part because federal courts have

not confronted a similar statute from any other jurisdiction. But

the actions of this one-of-a-kind “leadership” entity—the existence

of which is attributable to the State and the challenged conduct of

which can occur only with a specific state official at its helm—are

fairly characterized as state action.

Jackson is thus likely to succeed on the merits question, and

the other preliminary injunction factors favor him as well—both

the equities between the parties and the public interest point in

favor of resolving the irreparable First Amendment injury caused

by Georgia’s singular campaign finance innovation. We affirm the

district court’s preliminary injunction.

I.

The Georgia Government Transparency and Campaign

Finance Act comprehensively regulates campaign financing and

spending in state elections. OCGA §§ 21-5-1, 21-5-2. The law

imposes limits on the amount of money that candidates for

statewide office can accept from individual contributors. Id. § 21-

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4 Opinion of the Court 26-10854

5-41(a). Currently, those limits are $8,400 for primary and general

elections, and $4,800 for runoff elections. See id. § 21-5-41(a), (k). 1

Georgia has had contribution limits in place, indexed for inflation,

since at least the year 1990. 2

Campaign committees are subject to those same limitations.

See OCGA § 21-5-41(a). Georgia also allows various other political

committees that have different rules, but none of them allow both

contributions of an unlimited amount and direct support of a

candidate. Independent committees, for example, can accept

unlimited amounts from an individual donor, but cannot

coordinate their expenditures with candidates or their campaign

committees. Id. § 21-5-3(15); Ga. Comp. R. & Regs. 189-6-.04.

Next take political action committees, which also face no

restrictions on the amount of money they can accept from

individual donors, but their own contributions to candidates

cannot exceed the usual limits. Cf. OCGA § 21-5-41(a). Hybrid

PACs fall somewhere in the middle; they can contribute directly to

candidates (like a PAC) and expend uncoordinated funds to support

or oppose a candidate (like an independent committee), but only if

the committee maintains separate accounting for the two pots of

1 The statutory contribution limits are indexed for inflation.

See OCGA § 21-

5-41(k); Contribution Limits, Ga. State Ethics Comm’n, https://ethics.ga.gov

/contribution-limits/ [https://perma.cc/R9Y9-UNHS].

2 See 1997 Op. Att’y Gen. 97-8 (Ga.), https://law.georgia.gov/opinions/97-8

[https://perma.cc/R3SZ-WQHF].

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26-10854 Opinion of the Court 5

money and limits any direct candidate contributions to the typical

contribution limits.3

The “leadership committees,” authorized by the Georgia

legislature in 2021, are birds of a different feather. Id. § 21-5-34.2.

They are bound by neither contribution limits nor restrictions on

direct support for candidates—they can both give and receive

unlimited dollars. Id. § 21-5-34.2(e). And they can directly

coordinate with any campaign. See id. § 21-5-34.2(d).

Sounds great, at least from the candidate’s perspective. But

not all candidates can take advantage—only those occupying a few

particular roles can form and chair leadership committees. See id.

§ 21-5-34.2(a). Most relevant here, and in past litigation over this

provision, is that two major players can chair leadership

committees ahead of a primary election for statewide office—the

incumbent Governor and the incumbent Lieutenant Governor.4

Id.

The consequences are significant—a complete release from

generally applicable contribution limitations in a primary election

3 See Ga. State Ethics Comm’n, Adv. Op. 2015-02, at 3, https://ethics.ga.gov

/wp-content/uploads/2022/02/2015.06.25-AO-2015-02-PAC-Registration-

Executed.pdf [https://perma.cc/HNK3-5UDX]; see also OCGA § 21-5-41(a).

4 After a primary election, the nominees of a political party for Governor and

Lieutenant Governor selected during that primary may also form leadership

committees. OCGA § 21-5-34.2(a). Additionally, the leaders of the majority

and minority caucuses of the State House and Senate may create leadership

committees. Id.

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6 Opinion of the Court 26-10854

for these two officials. And only these two officials. So ahead of a

primary election, a leadership committee can accept contributions

in any amount and then use those contributions to directly support

the sitting Governor or Lieutenant Governor’s campaign. The

incumbent’s opponents, however, are not so lucky. Other than the

majority and minority caucus leaders of both legislative houses, no

one else can establish a leadership committee. Not a legislator, not

another statewide elected official, and not a private citizen. These

candidates have all the usual contribution limits imposed by

Georgia law.5

These “leadership committees” have raised eyebrows

during the last several election cycles, and this year is no exception.

Georgia’s Lieutenant Governor, Burt Jones, is seeking the

Republican nomination for Governor. In 2022, Jones set up a

leadership committee, the WBJ Leadership Committee, Inc., under

§ 21-5-34.2. Free from contribution limits, his leadership

committee has raised millions of dollars—including multiple

individual contributions of $100,000. And Jones has used those

funds to support his campaign.

The same rules do not apply to Richard Jackson, who

entered the gubernatorial race on February 3, 2026, and also seeks

the Republican nomination. Currently a private citizen, he cannot

5 One other thing: the leadership committee statute relieves the incumbent

Governor and Lieutenant Governor from the restrictions that Georgia law has

long placed on candidates accepting campaign contributions during legislative

sessions. See OCGA § 21-5-35(a).

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establish a leadership committee. See id. § 21-5-34.2(a). So while

his primary opponent has unlimited fundraising and unrestrained

coordination, Jackson does not.

Chafing against these comparative limits, a week after he

entered the race, Jackson (and his campaign committee, Jackson for

Governor) filed a complaint against Jones, the WBJ Leadership

Committee, Burt Jones for Georgia, Georgia’s Attorney General,

and the members of the Georgia State Ethics Commission. Jackson

sought declaratory and injunctive relief under 42 U.S.C. § 1983,

arguing that the leadership committee statute violates his rights

under the First and Fourteenth Amendments. The next day, he

filed an emergency motion for a preliminary injunction seeking,

among other things, to enjoin political fundraising and spending by

Jones’s leadership committee.

Before the district court ruled on that motion, Jackson filed

one more—a motion for a temporary restraining order. In that

motion, Jackson alleged that Jones’s leadership committee sharply

increased its spending after the complaint was filed. The district

court swiftly held a hearing and granted a TRO from the bench.

The court’s written order, filed the next week, barred Jones’s

leadership committee from raising or spending money in support

of Jones’s gubernatorial campaign. Jackson v. Jones, No. 26-cv-

00782, 2026 WL 561148, at *12 (N.D. Ga. Feb. 27, 2026). The

record is not clear about whether spending stopped.

A few weeks later, the district court held a hearing on

Jackson’s motion for a preliminary injunction. Having concluded

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8 Opinion of the Court 26-10854

that Jackson was substantially likely to succeed on the merits, the

court entered a preliminary injunction against the leadership

committee. The committee orally moved to stay the preliminary

injunction pending an appeal to this Court, and after hearing

arguments from the parties, the court granted that motion.

The district court’s written preliminary injunction order

followed. See Jackson v. Jones, No. 26-cv-00782, 2026 WL 781193

(N.D. Ga. Mar. 19, 2026). Building on three earlier orders from the

Northern District of Georgia, all holding that the leadership

committee statute likely violates the First Amendment, the district

court concluded that Jackson was likely to succeed on the merits.

Id. at *7–8 (citing Perdue v. Kemp, 584 F. Supp. 3d 1310, 1321–27

(N.D. Ga. 2022); One Ga., Inc. v. Carr, 601 F. Supp. 3d 1291, 1304–

07 (N.D. Ga. 2022); Graham v. Carr, 634 F. Supp. 3d 1343, 1354–56

(N.D. Ga. 2022), vacated as moot sub nom., Graham v. Att’y Gen., State

of Ga., 110 F.4th 1239 (11th Cir. 2024)). 6 The court also concluded

that Jones’s leadership committee likely qualified as a state actor,

making it subject to suit under § 1983. Id. at *6–7. As a result, and

6 In fact, this case marks the seventh time that the leadership committee

statute has been challenged in federal court since its enactment. Its

constitutionality has been tested in three other cases in the Northern District

of Georgia, in addition to the cases cited above. Those cases did not result in

preliminary injunctions for reasons unrelated to the merits of the First

Amendment question. See Order at 16–20, Carr v. WBJ Leadership Committee,

No. 25-cv-04426 (N.D. Ga. Aug. 8, 2025), Dkt. No. 22 (standing); Order at 26–

29, Democratic Party of Ga. v. Kemp, No. 24-cv-03154 (N.D. Ga. Sept. 19, 2024),

Dkt. No. 23 (standing); Safe Affordable Ga. v. Kreyenbuhl, No. 25-cv-06985, 2026

WL 1072927, at *6 (N.D. Ga. Jan. 27, 2026) (scope of the injunction).

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26-10854 Opinion of the Court 9

after weighing the remaining preliminary injunction factors, the

court enjoined the leadership committee from “soliciting

contributions and making any expenditures in support of” Jones’s

campaign for Governor—that is, until he “becomes the nominee

of the Republican Party or further order of this Court, whichever

comes first.” Id. at *13.

The district court stayed that injunction pending appeal,

citing “exceptional circumstances.” Id. at *10. This Court

subsequently denied Jackson’s motion to vacate the stay pending

appeal, but also expedited this appeal.

II.

We review the district court’s grant of a preliminary

injunction for abuse of discretion, reviewing underlying legal

conclusions de novo and factual findings for clear error. See

Gonzalez v. Governor of Ga., 978 F.3d 1266, 1270 (11th Cir. 2020); cf.

Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S.

418, 428 (2006). Because a preliminary injunction is an

“extraordinary and drastic remedy,” it is appropriate only when the

moving party can show that “(1) it has a substantial likelihood of

success on the merits; (2) irreparable injury will be suffered unless

the injunction issues; (3) the threatened injury to the movant

outweighs whatever damage the proposed injunction may cause

the opposing party; and (4) if issued, the injunction would not be

adverse to the public interest.” Otto v. City of Boca Raton, 981 F.3d

854, 860 (11th Cir. 2020).

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10 Opinion of the Court 26-10854

III.

The defendants first challenge Jackson’s Article III standing

to seek a preliminary injunction against Jones’s leadership

committee. We see little to discuss, despite the defendants’

“spirited efforts to overcomplicate these questions.” Mobile

Baykeeper, Inc. v. Ala. Power Co., 175 F.4th 1316, 1321 (11th Cir.

2026). “A party has standing when it (1) suffered an injury in fact,

(2) that is fairly traceable to the challenged conduct of the

defendant, and (3) that is likely to be redressed by a favorable

judicial decision.” Ctr. for a Sustainable Coast v. U.S. Army Corps of

Eng’rs, 100 F.4th 1349, 1355 (11th Cir. 2024) (quotation omitted).

An injury in fact is one “that is concrete, particularized, and

actual or imminent, rather than conjectural or hypothetical.”

Muransky v. Godiva Chocolatier, Inc., 979 F.3d 917, 925 (11th Cir.

2020) (en banc). As this Court and the Supreme Court have already

recognized, a candidate is harmed by the “grant of a competitive

advantage—an increase in the ability of [a candidate’s] opponent to

speak.” Scott v. Roberts, 612 F.3d 1279, 1291–92 (11th Cir. 2010); see

also Davis v. Fed. Election Comm’n, 554 U.S. 724, 739 (2008).

Georgia’s leadership committee statute provides Jones with an

opportunity to raise “additional funds” relative to Jackson. Ariz.

Free Enter. Club’s Freedom Club PAC v. Bennett, 564 U.S. 721, 747

(2011) (quotation omitted); see OCGA § 21-5-34.2(e). Jones’s

leadership committee has taken that opportunity, which makes

Jackson’s “own speech . . . less effective.” Bennett, 564 U.S. at 747

(quotation omitted). We agree with the district court that Jackson

suffers injury when he is “confronted with an uneven electoral

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26-10854 Opinion of the Court 11

playing field between incumbents and non-incumbents.” Jackson,

2026 WL 781193, at *4.

Nor can we argue with the district court’s conclusion that

Jackson’s injury is traceable to the leadership committee and its

actions—not just the statute. See id. at *4–5. “The second element

of standing can be referred to as either causation or traceability,

and requires plaintiffs to allege that their injuries are caused by the

conduct they challenge.” Mobile Baykeeper, 175 F.4th at 1323. Jones

is wrong to suggest that any injury Jackson suffers must be from

what the statute allows in the abstract, rather than actions taken by

Jones’s leadership committee. Cf. Winsness v. Yocom, 433 F.3d 727,

732 (10th Cir. 2006) (McConnell, J.) (“The mere presence on the

statute books of an unconstitutional statute . . . does not entitle

anyone to sue.”). The existence of the leadership committee

statute in the Georgia codebook does not cause Jackson’s injury.

The Jones committee’s taking advantage of the uneven playing

field available under that statute does. See Jackson, 2026 WL

781193, at *4–5.

And that injury would be redressed by an order disallowing

the committee from doing just that: using the uneven scheme to

benefit Jones’s campaign. See id. at *5. This is not a close call.

“Indeed, redressability is often just the flip side of causation: If a

defendant’s action causes an injury, enjoining the action or

awarding damages for the action will typically redress that injury.”

Mobile Baykeeper, 175 F.4th at 1323 (quotation omitted). As the

district court explained, the harm posed by the leadership

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committee’s conduct will cease if Jackson obtains the injunctive

relief he seeks. Jackson, 2026 WL 781193, at *5.

Jackson has shown that he has standing to pursue the

preliminary injunction he seeks.

IV.

This is not the first time that the leadership committee

statute has been challenged. But it is the first time it has arrived

here in time for a decision. We agree with each district court that

has addressed the First Amendment question: our Constitution

does not allow States to favor some candidates over others with

different contribution limits. Whatever the justification (and there

is not much of one here), “allowing the government to set the

terms of the debate is poison, not antidote.” Honeyfund.com Inc. v.

Governor, State of Fla., 94 F.4th 1272, 1283 (11th Cir. 2024). Jackson

is thus likely to succeed in showing that he has suffered a First

Amendment injury.

But that is not the end of the story—we also consider one

other merits-related question. Jackson brought this suit under 42

U.S.C. § 1983, which provides a cause of action for deprivations of

federal rights by persons acting “under color of” state law. So he

needs to show not only that he likely suffered a constitutional

injury, but also that it is likely that a state actor committed that

deprivation. See Harvey v. Harvey, 949 F.2d 1127, 1130 (11th Cir.

1992). Again, we think it likely that Jackson prevails. Georgia’s

leadership committee statute gives special authority only to select

incumbent officials, and that authority dries up as soon as they no

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longer wield official state power. So although the Jones leadership

committee is formally a private entity, its fundraising advantages

are available only as a consequence of Jones’s status as an

incumbent Lieutenant Governor. That combination is enough to

make its actions in connection with those advantages creditable to

the State for purposes of § 1983.

A.

The First Amendment “has its fullest and most urgent

application to speech uttered during a campaign for political

office.” Bennett, 564 U.S. at 734 (quotations omitted). After all, that

protection “was designed to secure the widest possible

dissemination of information from diverse and antagonistic

sources, and to assure unfettered interchange of ideas for the

bringing about of political and social changes desired by the

people.” Buckley v. Valeo, 424 U.S. 1, 49 (1976) (quotations omitted).

What’s more, both political spending and candidate contributions

“fall within the First Amendment’s protection of speech and

political association.” Ala. Democratic Conf. v. Att’y Gen. of Ala., 838

F.3d 1057, 1062 (11th Cir. 2016) (quotation omitted). Indeed, such

interests are among “the most fundamental First Amendment

activities.” Buckley, 424 U.S. at 14.

Even so, as compared to expenditures, contributions “lie

closer to the edges than to the core of political expression.” Ala.

Democratic Conf., 838 F.3d at 1062–63 (quotation omitted). So while

restrictions on expenditures must survive strict scrutiny,

contribution limits satisfy constitutional review if they are “closely

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drawn to match a sufficiently important interest.” Fed. Election

Comm’n v. Beaumont, 539 U.S. 146, 162 (2003) (quotations omitted);

see Buckley, 424 U.S. at 25. Such interests are limited. In fact,

“preventing corruption or the appearance of corruption are the

only legitimate and compelling government interests thus far

identified for restricting campaign finances.” Ala. Democratic Conf.,

838 F.3d at 1064 (quotation omitted).

No one disputes that the baseline contribution limits

imposed by Georgia’s Campaign Finance Act satisfy that standard.

The Supreme Court has repeatedly upheld “government-imposed

limits on contributions to candidates,” explaining that those

restrictions are typically justified by an interest in combatting

political corruption. Bennett, 564 U.S. at 735, 749; see Buckley, 424

U.S. at 23–25. 7

The leadership committee statute is different. It disrupts the

Georgia scheme’s evenhanded application by providing effectively

unlimited fundraising for some—but not all—candidates. Jones,

through his leadership committee, can accept campaign

contributions in any amount and spend them directly on his own

election. Jackson cannot. He contends that the Supreme Court’s

decision in Davis v. Federal Election Commission all but compels the

7 The leadership committees also have a few other special advantages, most

prominently the ability to fundraise during the annual legislative session when

other officeholders are barred from doing so. See OCGA § 21-5-35(a). Because

Jackson is not an officeholder, he had no limits in that regard. So that provision

is not at issue in this litigation.

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conclusion that this uneven scheme violates his First Amendment

rights. 554 U.S. 724. We agree: such schemes are “antithetical to

the First Amendment.” Id. at 744.

To start, the Jones leadership committee has never even

tried to articulate an anticorruption interest justifying the statutory

scheme. Instead, the committee makes the remarkable assertion

that § 21-5-34.2 “does not implicate First Amendment concerns.”

We would be hard pressed to reach that conclusion even in the first

instance, but Davis has already given us the answer. See id. at 743–

44. There, the Supreme Court considered the constitutionality of

a federal election law that, in its words, sometimes imposed

“different campaign contribution limits on candidates competing

for the same congressional seat.” Id. at 728.

Under the so-called “Millionaire’s Amendment,” when a

candidate’s personal election spending exceeded a certain amount,

that candidate’s opponent could then receive contributions three

times larger than the ordinary limits. Id. at 729, 736. Because the

self-financed candidate was still subject to the generally applicable

contribution limits, the scheme effectively imposed different

contribution limits “on candidates vying for the same seat.” Id. at

729, 743–44. The differential between the two gave self-funded

candidates a reason to keep their personal spending below the

statutory trigger. Id. at 738–39. That “scheme of discriminatory

contribution limits,” like the one here, was not justified by “any

governmental interest in eliminating corruption or the perception

of corruption,” and it could not survive First Amendment

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16 Opinion of the Court 26-10854

challenge. Id. at 740. The Court memorably described it as a “drag

on First Amendment rights.” Id. at 739.

Whether before or after Davis, the Supreme Court has

“never upheld the constitutionality of a law that imposes different

contribution limits for candidates who are competing against each

other.” Id. at 738; see also Bennett, 564 U.S. at 736. Neither have we.

In Scott v. Roberts, for example, we rejected a Florida campaign

finance law subsidizing candidates who participated in the state’s

public financing system. 612 F.3d at 1281. The subsidy was

triggered when a nonparticipating candidate exceeded the

statutory expenditure limit; after that, the State gave the

participating candidate matching funds, dollar-for-dollar for any

amount the nonparticipating opponent spent above the threshold.

Id. at 1286. As in Davis, the problem was “the grant of a

competitive advantage”—that is, “an increase in the ability of [the

candidate’s] opponent to speak.” Id. at 1291–92. And there too, the

State could not show that any “anticorruption interest” justified the

statute’s asymmetrical treatment of candidates. Id. at 1292. We

concluded that the plaintiff was “exceedingly likely” to show a First

Amendment violation because “Davis compel[led] this

conclusion.” Id. at 1297.

Here too, the leadership committee scheme “produces

fundraising advantages for opponents in the competitive context of

electoral politics.” Davis, 554 U.S. at 739. And it directly affects

speech “at the core of our electoral process and of the First

Amendment freedoms.” Williams v. Rhodes, 393 U.S. 23, 32 (1968).

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Before and during the 2026 gubernatorial primary, only Lieutenant

Governor Jones can chair a leadership committee. So only

Lieutenant Governor Jones can use that committee to accept

unlimited contributions to directly further his own campaign.

That places Jackson at a direct disadvantage: he remains subject to

the ordinary contribution limits imposed by Georgia law. The

leadership committee scheme thus imposes—quite directly—

different contribution limits “on candidates vying for the same

seat.” Davis, 554 U.S. at 744. That step is plainly “antithetical to

the First Amendment” under Davis. Id. It is no surprise that each

district court to consider the matter has reached the same answer. 8

The Jones defendants resist this conclusion—though not

with any serious defense of the statute. They offer no justification

for its favoritism in their briefing, and instead contend that the First

Amendment is not implicated because Davis only applies when

uneven contribution limits follow a self-financing trigger. No.

What prompted First Amendment review in Davis was “the grant

of a competitive advantage—an increase in the ability of [the

candidate’s] opponent to speak.” Scott, 612 F.3d at 1291–92; see

Davis, 554 U.S. at 739. Though the particulars differ, the root

problem here is the same. Georgia law gives Jones an

unconstitutional advantage over his competitors in the Republican

primary. See Scott, 612 F.3d at 1291–92. We do not see how the

8 See Perdue, 584 F. Supp. 3d at 1321–27; One Ga., 601 F. Supp. 3d at 1304–07;

Graham, 634 F. Supp. 3d at 1354–56; Jackson, 2026 WL 781193, at *7–8; Safe

Affordable Ga., 2026 WL 1072927, at *5.

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First Amendment can tolerate an exception that plays favorites

with contribution limits, offering a few candidates unlimited

contributions with no serious justification.

Jackson, in short, has all but conclusively demonstrated that

he is likely to succeed in showing a First Amendment infirmity in

the leadership committee statute’s “discriminatory fundraising

limitations.” See Davis, 554 U.S. at 739. 9

B.

That is not, however, the end of our analysis. Section 1983

allows plaintiffs to hold state officials accountable for depriving

them of rights secured by federal law or the Constitution. So a

plaintiff seeking relief under that statute must show that the

unlawful conduct he challenges “was committed by a person acting

under color of state law.” Harvey, 949 F.2d at 1130. 10 Traditionally,

that standard is met by proving that the defendant in a § 1983 action

“exercised power possessed by virtue of state law and made

possible only because the wrongdoer is clothed with the authority

of state law.” West v. Atkins, 487 U.S. 42, 49 (1988) (quotation

omitted).

9 Given our resolution, we need not address Jackson’s equal protection claim.

10 This requirement has consistently been treated as equivalent to the

Fourteenth Amendment’s state action requirement, so we use the terms

interchangeably, and consider both lines of precedent, too. See Focus on the

Fam. v. Pinellas Suncoast Transit Auth., 344 F.3d 1263, 1276 n.4 (11th Cir. 2003).

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That cashes out to two requirements. First, “the deprivation

must be caused by the exercise of some right or privilege created

by the State.” Harvey, 949 F.2d at 1130 (quotation omitted). So far,

so good—Georgia law straightforwardly establishes the discordant

contribution-limit carveout that Jackson challenges and that

Jones’s leadership committee exploits. But the second presents a

tougher challenge, at least for Jackson: “the party charged with the

deprivation must be a person who may fairly be said to be a state

actor.” Id. (quotation omitted). “[M]erely private conduct” cannot

be targeted, “no matter how discriminatory or wrongful.” Am.

Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 50 (1999) (quotations

omitted). Put differently, stopping “[i]ndividual invasion of

individual rights” is not the object of § 1983. Burton v. Wilmington

Parking Auth., 365 U.S. 715, 722 (1961) (quotation omitted).

Even so, nominally private conduct carried out by a formally

private actor is still actionable under § 1983 when that “conduct is

fairly attributable to the State.” Sullivan, 526 U.S. at 50. And when

a state official is involved, the “dispositive issue is whether the

official was acting pursuant to the power he/she possessed by state

authority or acting only as a private individual.” Edwards v. Wallace

Cmty. Coll., 49 F.3d 1517, 1523 (11th Cir. 1995). Though the

Supreme Court has set out certain parameters for deciding this

question, it has cautioned that it would be “an impossible task” to

“fashion and apply a precise formula for recognition of state

responsibility.” Burton, 365 U.S. at 722 (quotation omitted). The

Court has also emphasized that the “framework of the peculiar

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20 Opinion of the Court 26-10854

facts” in each case will determine whether there is state action. Id.

at 726.

This Court, drawing from Supreme Court case law, has

recognized “three tests for establishing state action by what is

otherwise a private person or entity: the public function test, the

state compulsion test, and the nexus/joint action test.” Harvey, 949

F.2d at 1130. Jackson travels only under the third. The “relevant

inquiry” there “is whether the State has so far insinuated itself into

a position of interdependence with the private parties that it was a

joint participant in the enterprise.” Rayburn ex rel. Rayburn v. Hogue,

241 F.3d 1341, 1348 (11th Cir. 2001) (alteration adopted and

quotation omitted).

We have cautioned that this “rule language” sometimes

“suffers from a lack of context.” Charles v. Johnson, 18 F.4th 686,

696–97 (11th Cir. 2021). At bottom, our precedents show that the

State (or a state official) must have had “some affirmative role” in

bringing about “the particular conduct underlying a claimant’s civil

rights grievance.” Rayburn, 241 F.3d at 1348 (emphasis and

quotation omitted); see also Cobb v. Ga. Power Co., 757 F.2d 1248,

1251 (11th Cir. 1985). But we need not find an exact match to a

past case—as both we and the Supreme Court have emphasized,

“this analysis will be heavily fact specific.” Charles, 18 F.4th at 696

(citing Burton, 365 U.S. at 722). That’s especially true here, where

we consider a statute unlike any other the courts have tested.

Jackson has likely met his burden. His primary assertion in

support of finding state action is that the leadership committee

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26-10854 Opinion of the Court 21

exists only by virtue of Jones’s status as the Lieutenant Governor.

Absolutely: if Jones were not the Lieutenant Governor, he could

not form a leadership committee. See OCGA § 21-5-34.2(a). And

whenever he “ceases to hold the office,” his committee must either

name another “eligible person” as chairman or dispose of its

remaining assets. Id. § 21-5-34.2(c). Effectively, the committee

must dissolve as soon as Jones is no longer the Lieutenant

Governor. These requirements are a firm signal that the leadership

committee must be acting under color of state law because Jones’s

status—and only his status—enables his leadership committee to

behave in a way that violates Jackson’s constitutional rights.

But what of the fact that when an official campaigns for

office, that conduct is generally considered private rather than

public? See, e.g., Campbell v. Reisch, 986 F.3d 822, 825 (8th Cir. 2021).

To start, the state action issue only arises when the challenged

conduct is ostensibly private; the question is whether the State or

its officials are so embedded into that conduct that it should be

credited to the State. And the facts here show that the Jones

leadership committee’s fundraising fits the bill. One key difference

between ordinary candidate behavior and the actions challenged in

this lawsuit is that state officials do not—or at least should not—

have special rules that make it easier for them to win elections. So

conduct permitted by those special rules, available only to specified

state actors, is reasonably credited to the State. After all, a private

party’s conduct does not become state action simply because it is

“made possible by Georgia statute.” Harvey, 949 F.2d at 1130.

Instead, the State or one of its officials must have taken some action

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22 Opinion of the Court 26-10854

as a “joint participant in the enterprise.” Rayburn, 241 F.3d at 1348

(quotation omitted). That’s exactly what happened here.

The Lieutenant Governor himself, a proper defendant in his

official capacity, has made an “active choice to partner with a

private entity in a way that can impart liability” by participating in

the leadership committee enterprise. Charles, 18 F.4th at 696. Jones

as a private actor would have no access to the advantages offered

by a leadership committee. Only Jones as a government actor—

the sitting Lieutenant Governor—can raise unlimited funds and

spend those funds directly on his campaign. This sort of “[m]isuse

of power, possessed by virtue of state law and made possible only

because the wrongdoer is clothed with the authority of state law,

is action taken ‘under color of’ state law.” United States v. Classic,

313 U.S. 299, 326 (1941).

Does that mean that all campaign action is converted into

official activity? Thankfully not. No case says once an entity is a

state actor for one purpose it is a state actor for all other purposes.

Quite the opposite, in fact: under § 1983, “a private entity may be

designated a state actor for some purposes but still function as a

private actor in other respects.” Caviness v. Horizon Cmty. Learning

Ctr., Inc., 590 F.3d 806, 814 (9th Cir. 2010). Take the Supreme

Court’s cases holding that even political parties can be state actors

when state law “prescribes an election process that gives a special

role to [them].” Cal. Democratic Party v. Jones, 530 U.S. 567, 573

(2000). In Smith v. Allwright, for example, the Court treated the

Texas Democratic Party’s racially discriminatory primary process

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26-10854 Opinion of the Court 23

as state action. 321 U.S. 649, 663 (1944). That conclusion did not

mean that everything the Party did took on constitutional

dimensions as an act of the state. Same goes here. Leadership

committee conduct that is not legally attributable to Jones’s status

as an officeholder—actions that any candidate’s campaign

committee could take—likely would not qualify as state action.

Jones pushes back, arguing that Jackson cannot show state

action because he has pointed to nothing suggesting that the State

itself has actively participated in the leadership committee’s raising

and spending funds to support his gubernatorial campaign. This

objection misses the mark. To qualify as a state actor, a private

party’s decisions or purposes need not be formally blessed by the

State or directly benefit the State. Entwinement with a

participating state official’s own ends, lawful or not, is enough:

“The involvement of a state official plainly provides the state action

essential to show a direct violation of petitioner’s [First]

Amendment rights.” Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 157 n.5

(1978) (alterations adopted and quotation omitted).

So while the State cannot be said to have a particular interest

in supporting the campaign of Burt Jones, its role is not, as the

dissent would put it, “entirely permissive.” Dissenting Op. at 3.

That the leadership committees are formally private cannot

obscure that they are designed under state law “to attain

governmental objectives” and are “directed and controlled” by

state officials. Brentwood Acad. v. Tenn. Secondary Sch. Athletic Ass’n,

531 U.S. 288, 296 (2001); see also Lebron v. Nat’l R.R. Passenger Corp.,

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24 Opinion of the Court 26-10854

513 U.S. 374, 398 (1995). For one, the leadership committee

statute’s asymmetric advantages reveal a government policy

favoring a few incumbent officials.11 That conclusion is only

supported by the fact that Georgia has failed to articulate a credible

justification for the statute, and the Jones committee has offered no

justification at all. See Jackson, 2026 WL 781193, at *8. A state

cannot launder impermissible objectives by running them through

a private entity. Under these circumstances, “private use of the

challenged state procedures with the help of state officials

constitutes state action.” Lugar v. Edmondson Oil Co., 457 U.S. 922,

933 (1982).

The Jones leadership committee protests that if this were the

rule, “every Georgia pharmacist would act as an arm of the state

when prescribing controlled substances pursuant to a professional

license.” No. To start, it is obvious that state licensure alone does

not create state action. See Harvey, 949 F.2d at 1132. But if a state

statute created a special class of pharmacies with unique authority,

available if and only if they were owned and operated by the state’s

incumbent Governor or Lieutenant Governor, you can bet that

11 We note that every state official with some high-level role in passing or

signing legislation has the opportunity to be involved in a leadership

committee. See Ga. Const. art. V, § I, para. III (“The Lieutenant Governor

shall be the President of the Senate.”); OCGA § 21-5-34.2(a) (majority and

minority caucus leaders of both legislative houses may form leadership

committees). In contrast, no official without some role in the legislative

process has that opportunity during the primary election.

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26-10854 Opinion of the Court 25

there would be a good case for treating those pharmacies’ conduct

as state action.

Going beyond the strawman, this assertion reflects a more

fundamental error. Treating an entity as an arm of the state is

different, both legally and conceptually, than treating certain

actions as creditable to the state in litigation. See, e.g., Walker v.

Jefferson Cnty. Bd. of Educ., 771 F.3d 748, 751 (11th Cir. 2014).

Conflation of these two concepts infuses many of the arguments

against finding state action. The Jones brief, for example, argues

that “the district court’s order dangerously transformed a

committee authorized by state law into one that is an arm of the state

itself,” and “threatens not only conduct protected by the First

Amendment, but every decision of every licensed person or

corporation in Georgia.” Again, no. Neither the district court nor

this one has said that the Jones leadership committee is an “arm of

the state,” with every one of its acts a government act, and all of

the rules that restrict government entities applying to it. And

surely no one is asserting that the Jones leadership committee has

Eleventh Amendment immunity as an alter ego of the State of

Georgia. Finding that the committee’s acts can be attributed to the

State does not mean that the committee is the State.

We close by reemphasizing that our decision is narrow.

Unless courts come across another statute built like this one,

today’s holding is unlikely to have significant grip. After all, only

“by sifting facts and weighing circumstances on a case-by-case basis

can a nonobvious involvement of the State in private conduct be

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26 Opinion of the Court 26-10854

attributed its true significance.” Reitman v. Mulkey, 387 U.S. 369,

378 (1967) (quotations omitted). Here, the state legislature created,

the state Ethics Commission blesses, and state officials run, these

entities that offer fundraising favoritism to a few incumbent

officials. And the State conditions its statutory favoritism plan on

the direct involvement of an incumbent official during his term of

office. These points are more than enough to construe the Jones

leadership committee’s beyond-the-limits fundraising as state

action. The leadership committee, a formally private actor,

“operates as a willful participant in joint activity” with the State’s

Lieutenant Governor. Brentwood, 531 U.S. at 296 (quotation

omitted). This conclusion “looks not to form but to an underlying

reality”: the unconstitutional acts of Jones’s ostensibly private

leadership committee cannot be disentangled from his status as a

state official. Id. at 301 n.4.

The sum of it is this: the leadership committee statute offers

certain extra powers, available to no private citizen, that are

entirely dependent on Jones’s status as Lieutenant Governor.

Jackson has likely shown that, when the Jones leadership

committee exercises those powers, its conduct is fairly attributed

to the State.

C.

Because Jackson has shown a likelihood of success on the

merits, we next consider whether he has met the remaining factors

required to obtain a preliminary injunction. See Otto, 981 F.3d at

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26-10854 Opinion of the Court 27

860. We see no abuse of discretion in the district court’s assessment

of the remaining equitable factors.

First, the district court correctly noted that the “loss of First

Amendment freedoms, for even minimal periods of time,

unquestionably constitutes irreparable injury.” Jackson, 2026 WL

781193, at *8 (quoting Elrod v. Burns, 427 U.S. 347, 373 (1976)). The

leadership committee statute prevents Jackson from accepting

campaign contributions on an equal footing with Jones’s leadership

committee—a First Amendment harm that cannot feasibly be

remedied by a post-election monetary judgment. See Scott, 612

F.3d at 1295.

Next, the district court did not abuse its discretion in

determining that the balance of harms favors a preliminary

injunction. See Otto, 981 F.3d at 860. Jones points out that an

injunction against his use of committee funds to support his

campaign would decrease his speech during the primary election,

as he “will have less money to support his campaign.” Scott, 612

F.3d at 1296. And he contends that he has “budgeted and allocated

campaign resources in reliance upon the enforceability” of the

leadership committee statute. While we do not doubt that an

injunction in Jackson’s favor will likely cause Jones to speak less,

Jones remains free to receive contributions and make expenditures

through his campaign committee, Burt Jones for Georgia. Yes,

those contributions are limited, but contribution limits have been

in place for much longer in Georgia than the leadership committee

statute has allowed certain candidates to circumvent them.

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28 Opinion of the Court 26-10854

Plus, Jones was on notice “that the [statute] was vulnerable

to legal challenge.” Id. The Northern District of Georgia had

previously concluded, in three separate cases, that the leadership

committee was likely unconstitutional. See Perdue, 584 F. Supp. 3d

at 1327; One Ga., 601 F. Supp. 3d at 1307; Graham, 634 F. Supp. 3d

at 1356. Jones “should have known” since at least 2022 that “he

could not comfortably rely” on his leadership committee to bear

the brunt of his campaign costs. Scott, 612 F.3d at 1296.

Jones also argues that he will be worse off because the

Jackson Campaign continues to outspend him despite being subject

to contribution limits. But we decline to discount Jackson’s harm

just because he exercises his First Amendment “right to spend

personal funds for campaign speech.” Davis, 554 U.S. at 738–39.

And finally, a preliminary injunction that does nothing more than

prevent Jones from continuing to benefit from an uneven

contribution scheme is not contrary to the public interest: “it is in

the public interest to protect First Amendment rights.”

Honeyfund.com, 94 F.4th at 1283. In short, the district court did not

abuse its discretion in concluding that the public interest would be

served by an injunction.

* * *

We also offer a brief response to the dissenting opinion’s

suggestion that a different method of challenging the leadership

committee statute would be more appropriate.

The dissent surmises that Jackson “could have sought a

remedy against the state officials responsible for enforcing the

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26-10854 Opinion of the Court 29

contribution limits against him: members of the State Ethics

Commission.” Dissenting Op. at 5. And it goes on to assert that

“it is not difficult to see why” Jackson did not choose that path. Id.

Jackson’s personal wealth could have something to do with the

remedy he seeks, as the dissent suggests. See id. But it is not our

place to assume so, and Davis makes clear that federal courts

cannot penalize a candidate for self-funding his campaign. See 554

U.S. at 738–39.

In any event, Jackson’s litigation strategy has a proven track

record: the district courts have been granting preliminary

injunctions against leadership committees on this basis since 2022,

shortly after the statute was passed. See Perdue, 584 F. Supp. 3d at

1328–29 (preliminary injunction against Governor Kemp’s

leadership committee in suit by David Perdue); One Ga., 601 F.

Supp. 3d at 1309 (same in suit by Stacey Abrams). In contrast, they

have rejected several candidates’ requests to bar the State from

enforcing its ordinary contribution and coordination limits against

them. See, e.g., Order at 32–34, One Ga., Inc. v. Carr, No. 22-cv-

01130 (N.D. Ga. Apr. 14, 2022), Dkt. No. 45 (“This Court will not

rewrite Georgia law to enable One Georgia [the Abrams

committee] to stand in the same shoes as a leadership committee

that, in Plaintiffs’ view, is operating in violation of the First

Amendment.”). So the theory that Jackson raised and that this

Court accepts is not “novel.” Dissenting Op. at 1.

It is also, we think, more likely to be correct. Because we

have identified a constitutional problem with the statute, the

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30 Opinion of the Court 26-10854

remedial question turns on whether Georgia would have “struck

an exception and applied the general rule equally to all, or instead,

would have broadened the exception” to cure the constitutional

defect. Sessions v. Morales-Santana, 582 U.S. 47, 75 (2017). We have

no doubt that the best reading of these statutes is the latter—that

Georgia would preserve “the general rule.” Id.; see also Scott, 612

F.3d at 1298. To adopt the alternative approach would require

deciding that the legislature would prefer to jettison its decades-

old, plainly constitutional, and generally applicable contribution

limits rather than scrap its bespoke exception advantaging a select

set of government officials. We see that as unlikely. And it would

also be inconsistent with our ordinary practice: “when confronting

a constitutional flaw in a statute, we try to limit the solution to the

problem, severing any problematic portions while leaving the

remainder intact.” Free Enter. Fund v. Pub. Co. Acct. Oversight Bd.,

561 U.S. 477, 508 (2010) (quotations omitted).

The dissent also posits that, in First Amendment cases, the

best remedy is the one that leads to more speech. See Dissenting

Op. at 6. Even if that is generally so as a policy matter, our task

today is deciding whether the district court abused its discretion in

granting this remedy, not whether it could have granted a better

one. And the First Amendment itself takes no side in that debate.

In fact, the Supreme Court has already rejected the argument that

“a court should not cure a First Amendment violation by outlawing

more speech.” Barr v. Am. Ass’n of Pol. Consultants, Inc., 591 U.S.

610, 633 (2020) (plurality) (quotation omitted) (The “First

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26-10854 Opinion of the Court 31

Amendment does not tell us which way to cure the unequal

treatment in this case.”).

Both Davis and Scott, our two closest First Amendment

precedents, support this view, too. In each case, the courts

imposed a remedy that resulted in less speech: the complaining

candidates’ opponents could no longer take advantage of the

enhanced fundraising opportunities offered by the constitutionally

invalid statutes. See Davis, 554 U.S. at 744–45; Scott, 612 F.3d at

1296–98. So although campaign spending is plainly considered

speech, that does not decide the question. We do not think, for

example, that courts would hesitate to stop candidates from

spending funds they had unlawfully received in other contexts. See,

e.g., 52 U.S.C. § 30121(a)(1)–(2) (barring campaign contributions

from foreign nationals).

Davis, as a matter of fact, imposed exactly the same remedy

as we do here—holding all candidates to the ordinary contribution

limits (not applying the exceptional heightened limits to more

candidates). See Davis, 554 U.S. at 744–45. That equivalence belies

the assertion, cobbled together from Davis quotations six pages

apart from one another, that “the ‘obvious remedy’ for a candidate

faced with unequal contribution limits is to seek to ‘raise or

eliminate those limits,’ not to demand that his opponent’s

‘contributions be regulated more strictly.’” Dissenting Op. at 5

(quoting Davis, 554 U.S. at 743, 737). The Supreme Court has said

no such thing, in Davis or elsewhere.

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32 Opinion of the Court 26-10854

That alone is enough to reject the suggestion that applying

the same campaign limitation to both Jones and his competitors is

fairly characterized as a prior restraint. See Dissenting Op. at 6–8.

We will not linger on the issue, except to note that the very case

the dissenting opinion cites reveals the argument’s likely infirmity.

In Alexander v. United States, the Supreme Court batted down the

petitioner’s argument that the forfeiture order imposed on his

adult entertainment business was a prior restraint. 509 U.S. 544,

549–50 (1993). No, the Court explained: he was perfectly welcome

to continue his “expressive activities” with other funds. Id. at 550–

51. The same goes for Jones and his leadership committee. The

district court’s order does not ban Jones’s campaign speech; it bans

using funds obtained in violation of the First Amendment to pay

for that speech. In fact, he can still use leadership committee funds

to support other candidates, and he can still use campaign

committee funds to support his own campaign. See OCGA §§ 21-

5-34.2(d), 21-5-3(2). No prior restraint, just the same limits that

apply to everyone else.

Last, we respectfully reject the complaint that this decision

“is all but permanent” because of the timing of the runoff election.

Dissenting Op. at 8. That is the nature of such challenges during

election season; time is short, and all the parties know it. Plus, the

fact that election seasons move quickly is probably the only reason

that Jones ever benefitted from his leadership committee’s unequal

fundraising opportunities in the first place. As we have noted, the

district courts have found that the leadership committee statute is

likely unconstitutional—counting this case, five out of five times

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26-10854 Opinion of the Court 33

they have considered the question. See Perdue, 584 F. Supp. 3d at

1321–27; One Ga., 601 F. Supp. 3d at 1304–07; Graham, 634 F. Supp.

3d at 1354–56; Jackson, 2026 WL 781193, at *7–8; Safe Affordable Ga.

v. Kreyenbuhl, No. 25-cv-06985, 2026 WL 1072927, at *5 (N.D. Ga.

Jan. 27, 2026). But this appeal is the first chance our Court has had

an opportunity to issue a precedential decision.

Today’s decision—unanimous in its important conclusion

that the First Amendment was violated—should come as no

surprise. So anyone relying on the asymmetrical funding scheme

permitted by the leadership committee statute was living on

borrowed time. Jones will now be restrained by the same limits

that have applied to every other candidate in this primary election.

* * *

The State of Georgia created a hand-in-glove campaign

committee for select incumbent officials, and offered those officials

the opportunity to raise (and then spend) funds that their

competitors could not. Jackson has shown that it is likely—very

likely—that the Georgia leadership committee statute’s limited

exception to campaign-funding limits puts him on unequal footing

in violation of the First Amendment. He has also shown it likely

that the Jones leadership committee is a state actor under § 1983,

rather than a completely private party simply making the most of

a system that benefits Jones over his competitors. It is also plain

that the denial of a fair First Amendment playing field in campaign

finance rules creates an irreparable injury, that the balance of

harms weighs in favor of eliminating an unconstitutional

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34 Opinion of the Court 26-10854

advantage, and that the public interest favors a preliminary

injunction that does just that. We therefore AFFIRM the

preliminary injunction.

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26-10854 JORDAN, J., Concurring 1

JORDAN, Circuit Judge, Concurring:

I join Judge Grant’s opinion for the Court, and agree that

Mr. Jackson has shown a likelihood of success on his First Amend-

ment claim, including the color of law component. I join the opin-

ion because I believe it is important to provide some guidance to

the bench and bar about the constitutionality of O.C.G.A. § 21-5-

34.2, and without my vote we would be left with a confusing 1-1-1

result.

The majority opinion applies de novo review with respect to

the First Amendment and the color of law issues. As I have stated

elsewhere, however, it often makes doctrinal and practical sense to

conduct abuse of discretion review when assessing likelihood of

success in a preliminary injunction appeal. See Lebron v. Sec’y, Fla.

Dep’t of Children & Families, 710 F.3d 1202, 1218–19 (11th Cir. 2013)

( Jordan, J., concurring); Wood v. Fla. Dep’t of Edu., 142 F.4th 1286,

1294–96 (11th Cir. 2025) ( Jordan, J., dissenting); Fla. Agency for

Health Care Admin. v. Administrator for Ctrs. for Medicare & Medicaid

Servs., 161 F.4th 765, 789–91 (11th Cir. 2025) ( Jordan, J., concurring).

The Supreme Court’s cases permit such limited merits re-

view in this procedural posture. And those cases are still good law.

See, e.g., Ashcroft v. ACLU, 542 U.S. 656, 666 (2004) (concluding that

the district court’s determination as to likelihood of success on a

First Amendment challenge to a federal statute “was not an abuse

of discretion”); Doran v. Salem Inn, Inc., 422 U.S. 922, 934 (1975)

(finding no abuse of discretion in the district court’s grant of a pre-

liminary injunction, and explaining that “[t]his is the extent of our

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2 JORDAN, J., Concurring 26-10854

appellate inquiry, and we therefore ‘intimate no view as to the ulti-

mate merits of respondents’ contentions’”) (citation modified).

Many of our cases also conduct abuse of discretion review

as to likelihood of success. These cases, moreover, span more than

six decades. See, e.g., Wooten v. Ohler, 303 F.2d 759, 762 (5th Cir.

1962) (“[W]e do not review the intrinsic merits of the case as such.

Rather, our inquiry is whether there has been an abuse of discre-

tion. Our review of the probable merits does not go to the ques-

tion of whether we would ultimately hold that the trial [j]udge was

right or wrong, but only to the ascertainment of whether his action

was within his broad range of discretion.”); Di Giorgio v. Causey, 488

F.2d 527, 528–29 (5th Cir. 1973) (“[O]n an appeal from a preliminary

injunction this Court does not concern itself with the merits of the

controversy . . . . No attention is paid to the merits of the contro-

versy beyond that necessary to determine the presence or absence

of an abuse of discretion.”) (citations omitted); Cafe 207, Inc. v. St.

Johns Cnty., 989 F.2d 1136, 1137 (11th Cir. 1993) (addressing a First

Amendment claim: “Whether the district court’s determination of

[substantial likelihood of success] is right or wrong, the record be-

fore us indicates no abuse of discretion.”); BellSouth Telecomms., Inc.

v. MCIMetro Access Transmission Servs., LLC, 425 F.3d 964, 970 (11th

Cir. 2005) (“The district court did not abuse its discretion in deter-

mining that BellSouth had established a substantial likelihood of

success.”); LSSi Data Corp. v. Comcast Phone LLC, 696 F.3d 1114, 1120

(11th Cir. 2012) (“The first question before us is whether the Dis-

trict Court abused its discretion in concluding that LSSi has shown

‘a substantial likelihood of success on the merits’ of its claim.”)

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26-10854 JORDAN, J., Concurring 3

(internal citation omitted); Grayson v. Comm’r, Ala. Dep’t of Corr.,

121 F.4th 894, 897 (11th Cir. 2024) (“As to the first preliminary in-

junction prong, the question for us is whether the district court

‘abused its discretion in concluding that [Mr. Grayson] has [not]

shown a “substantial likelihood of success” on the merits of [his

Eighth Amendment] claim.’ . . . . In answering that question, we

do not decide the ultimate merits of Mr. Grayson’s claim.”) (cita-

tions omitted).

In my opinion, such limited review is warranted here. We

are being asked to decide important issues of constitutional law,

related to a novel state election statute, on an expedited timeline in

the midst of a primary election in Georgia. “When a district court,

particularly on a close legal issue of first impression, analyzes

whether the plaintiff has shown a substantial likelihood of success

on the merits, it is not definitely deciding who wins and who loses;

it is instead weighing the parties’ arguments and making a proba-

bilistic determination about which side is likely to prevail.” Fla.

Agency, 161 F.4th at 790 ( Jordan, J., concurring). I do not see why

we should be doing anything different when we conduct appellate

review of the grant or denial of a preliminary injunction.

If the circumstances were different, I would apply abuse of

discretion review with respect to likelihood of success. That would

leave me with the same result—affirming the preliminary injunc-

tion issued by the district court.

For example, on the state action issue, the Supreme Court

has held several times that political parties—which are otherwise

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4 JORDAN, J., Concurring 26-10854

private entities—can be state actors if state law “prescribes an elec-

tion process that gives a special role to [them].” Cal. Democratic

Party v. Jones, 530 U.S. 567, 573 (2000). See, e.g., Smith v. Allwright,

321 U.S. 649, 663 (1944) (holding that the racially discriminatory

“White Primary” conducted by the Texas Democratic Party consti-

tuted state action: “[Texas’] statutory system for the selection of

party nominees for inclusion on the general election ballot makes

the party which is required to follow these legislative directions an

agency of the state in so far as it determines the participants in a

primary election. The party takes its character as a state agency

from the duties imposed upon it by state statutes; the duties do not

become matters of private law because they are performed by a

political party.”). Given such decisions, and for the reasons set out

in the majority opinion, I do not believe that the district court com-

mitted a “clear error of judgment,” United States v. Frazier, 387 F.3d

1244, 1259 (11th Cir. 2004) (en banc), in concluding that Mr. Jackon

established a likelihood of success on the state action issue.

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26-10854 WILLIAM PRYOR, C.J., Dissenting 1

WILLIAM PRYOR, Chief Judge, Dissenting:

I agree with the majority that Georgia’s campaign finance

scheme is likely unconstitutional. See Davis v. FEC, 554 U.S. 724, 738

(2008); Scott v. Roberts, 612 F.3d 1279, 1290–92 (11th Cir. 2010). In-

deed, its unconstitutionality is plain. But Georgia officials enforce

that unconstitutional scheme, and Burt Jones’s leadership commit-

tee only benefits from it. So Rick Jackson’s request for preliminary

relief against Jones’s leadership committee targets the wrong de-

fendant. He contests this obvious point with a novel theory of state

action that expands the doctrine to reach what a state permits in-

stead of what it commits. Because the majority erroneously adopts

this theory, I respectfully dissent.

True, the fact that Jackson’s theory is novel does not doom

it. Majority Op. at 20. But a fact-specific inquiry is not a license to

contravene our precedents. And it is not unusual for a government

to implement a campaign finance regime with unequal effects. See

Davis, 554 U.S. at 738; Scott, 612 F.3d at 1291–92. In both Davis and

Scott, the Supreme Court and we decided that the government

could not create a competitive advantage for one candidate by pe-

nalizing the speech of the other. See Davis, 554 U.S. at 742; Scott,

612 F.3d at 1290–91. Yet both suits proceeded against the officials

responsible for enforcing the laws that created those advantages,

not against a committee chaired by the opposing candidate. And

for good reason: a candidate who takes advantage of an unconsti-

tutional system does not thereby become a state actor. It does not

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2 WILLIAM PRYOR, C.J., Dissenting 26-10854

matter that, in this appeal, the advantaged party happens to be the

incumbent lieutenant governor.

Under our precedent, this appeal is straightforward. Jones’s

leadership committee acts in a private capacity, not as a state actor,

when it supports his campaign for governor. Cf. State v. Meadows,

88 F.4th 1331, 1347 (11th Cir. 2023) (explaining that “[c]ampaigning

for a specific candidate is not official conduct”); see also Mackey v.

Rising, 106 F.4th 552, 561 (6th Cir. 2024) (“[A] state-agency official

did not engage in state action when he participated in political ac-

tivities.”); Blassingame v. Trump, 87 F.4th 1, 5 (D.C. Cir. 2023) (stat-

ing that a sitting president campaigns for office “in an unofficial,

private capacity as office-seeker, not an official capacity as office-

holder” (emphasis added)); Campbell v. Reisch, 986 F.3d 822, 825 (8th

Cir. 2021) (“Running for public office is not state action; it is a pri-

vate activity.”). We have said that candidate speech “during an

election campaign occupies the core of the protection afforded by

the First Amendment.” Weaver v. Bonner, 309 F.3d 1312, 1319 (11th

Cir. 2002) (citation modified). And that principle extends to the en-

joined acts of the leadership committee: both the “solicitation of

campaign funds,” Williams-Yulee v. Fla. Bar, 575 U.S. 433, 446 (2015),

and the “expenditure of money” in support of a campaign are po-

litical speech, Buckley v. Valeo, 424 U.S. 1, 16–17 (1976). Campaign

committees too perform both functions. And all candidates, includ-

ing incumbent officials, run their campaign committees in their pri-

vate capacities. Those campaign committees are not state actors.

Jones’s leadership committee is no different.

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26-10854 WILLIAM PRYOR, C.J., Dissenting 3

That Jones acts in his private capacity makes Jackson’s cho-

sen “joint action” test a non-starter. Jackson may attribute the lead-

ership committee’s conduct to the state only when “the state has

so far insinuated itself into a position of interdependence with the

private parties that it was a joint participant in the enterprise.” Ray-

burn ex rel. Rayburn v. Hogue, 241 F.3d 1341, 1348 (11th Cir. 2001)

(emphasis added) (citation modified); see also Charles v. Johnson, 18

F.4th 686, 696 (11th Cir. 2021) (holding that the joint action test

requires the “state or its agents” be a “willful participant in joint

activity” with the private actor (citation modified)); Focus on the

Fam. v. Pinellas Suncoast Transit Auth., 344 F.3d 1263, 1278 (11th Cir.

2003) (finding state action when “the state, acting through the pri-

vate entity, caused the third party’s harm” (emphasis added)). Jack-

son has not established any state involvement in the leadership

committee’s challenged fundraising and spending, much less the

“pervasive entwinement” required to overcome the leadership

committee’s “private character.” Brentwood Acad. v. Tenn. Secondary

Sch. Athletic Ass’n, 531 U.S. 288, 298 (2001).

The state’s role is entirely permissive: it allows the leader-

ship committee to exist. The same can be said of almost any cam-

paign committee created under state law. The state does not play

the “affirmative role” in committee fundraising and spending our

precedents require to establish joint action. Rayburn, 241 F.3d at

1348 (citation modified). At most, the state’s role is limited to giv-

ing permission to some individuals to form leadership committees.

The majority posits that the state permits leadership committees to

advance its interest in “favoring . . . incumbent[s].” Majority Op. at

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4 WILLIAM PRYOR, C.J., Dissenting 26-10854

24. Setting aside the fact that leadership committees are available

to certain non-incumbents—Jones himself is not an incumbent of

the office he seeks—the state’s motivation for authorizing leader-

ship committees does not speak to whether it has made an “active

choice to partner with” those committees or “conspire[d]” with

them to deny Jackson his rights. Charles, 18 F.4th at 696.

The majority decides that there is an “active choice” here:

the state, through Jones, has partnered with the leadership com-

mittee. In doing so, it decides that Jones’s campaign for governor

is an official act of the Office of Lieutenant Governor. Majority Op.

at 21–22. The majority thus expands official conduct to include the

canonical example of private speech: campaigning for office. There

is no principled reason to do so. The office of lieutenant governor

“as an institution is agnostic about who will occupy” the guberna-

torial office next. Blassingame, 87 F.4th at 4. So “campaigning to gain

that office is not an official act of the office” of lieutenant governor.

Id. If any conduct is unofficial, the act of seeking a new job must

qualify.

Georgia law reflects this reality. The provision allowing the

formation of leadership committees is in the campaign finance

chapter of the election code. See GA. CODE ANN. § 21-5-34.2. The

Lieutenant Governor’s powers, in contrast, are principally found in

Title 28, which speaks to the operation of the General Assembly.

See, e.g., id. §§ 28-4-1(a), 28-5-4(b), 28-5-22, 28-6-8(b)(2), (e); see also

GA. CONST. art. V, § I, para. III (“The Lieutenant Governor shall be

the President of the Senate.”). Other portions of the Georgia Code

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26-10854 WILLIAM PRYOR, C.J., Dissenting 5

largely speak to his power to appoint members of regulatory bod-

ies. See, e.g., GA. CODE ANN. §§ 12-5-575(a)(5), 15-1-21(c)(2), 15-1-

21(c)(5), 31-11-101(a). Within Title 21, the only power conferred

directly on the lieutenant governor is the authority to appoint a

member of the State Election Board if a vacancy occurs when the

General Assembly is not in session. Id. § 21-2-30(b). Nothing else in

Title 21 confers official powers or duties on the Lieutenant Gover-

nor.

To be clear, I would reject Jackson’s claim against Jones’s

leadership committee even if I were unsure that he had any other

avenue for relief from this unconstitutional scheme. Even so, Jack-

son’s ability to seek relief for his constitutional injury does not de-

pend on his novel state action theory. Here, the “obvious remedy”

for a candidate faced with unequal contribution limits is to seek to

“raise or eliminate those limits,” not to demand that his opponent’s

“contributions be regulated more strictly.” Davis, 554 U.S. at 737,

743. Jackson could have sought a remedy against the state officials

responsible for enforcing the contribution limits against him: mem-

bers of the State Ethics Commission. After all, he sued them too.

An injunction barring them from enforcing those limits would

remedy his constitutional injury.

But Jackson did not seek that injunction. And it is not diffi-

cult to see why. As the district court found, Jackson is “outspend-

ing” Jones “by a large margin.” Because Jackson is “self-fund[ing]

his campaign,” it would do him little good to enjoin the enforce-

ment of any contribution limits against him. So he has declined to

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6 WILLIAM PRYOR, C.J., Dissenting 26-10854

seek the ordinary injunction that would solve his First Amendment

injury. Instead, he seeks, and the majority grants him, an injunction

that erases the well-trodden line between official and unofficial

conduct. Cf. DiDonato v. Panatera, 24 F.4th 1156, 1160 (7th Cir. 2022)

(stating that the fact that “one is a state officer does not necessarily

mean that one acts under color of state law” (citation modified)).

If the leadership committee is not a state actor, then the con-

sequences of today’s decision are stark. The majority opinion

blesses a preliminary injunction that directly limits the core politi-

cal speech of one candidate while his opponent speaks unre-

strained. Jones will “speak less” because of the majority’s decision.

Scott, 612 F.3d at 1296. Its provision barring campaign expenditures

imposes on Jones a “prior restraint”: the “most serious and least

tolerable infringement on First Amendment rights.” Nebraska Press

Ass’n v. Stuart, 427 U.S. 539, 559 (1976). Such restraints are espe-

cially concerning where the First Amendment “has its fullest and

most urgent application,” in the “conduct of campaigns for political

office.” Monitor Patriot Co. v. Roy, 401 U.S. 265, 272 (1971). In these

cases, federal courts should seek to employ “[t]he preferred First

Amendment remedy of more speech, not enforced silence.” Brown

v. Hartlage, 456 U.S. 45, 61 (1982) (citation modified). Instead, the

majority limits one side’s political speech on the eve of an election.

Davis and Scott do not dictate this result. In both decisions, a

government program penalized a candidate for speaking. See Davis,

554 U.S. at 740 (explaining that the Millionaire’s Amendment “im-

poses a substantial burden on the exercise of the First Amendment

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26-10854 WILLIAM PRYOR, C.J., Dissenting 7

right to use personal funds for campaign speech”); Scott, 612 F.3d

at 1290 (“[T]he subsidy imposes a burden on nonparticipating can-

didates.”). Because the government’s chosen burden enabled the

candidates’ opponents to speak more, there was no way to remedy

these inequities without causing one candidate to “speak less.”

Scott, 612 F.3d at 1296. We do not face that dilemma today.

Unlike the remedies at issue in Davis and Scott, this injunc-

tion is not limited to “holding all candidates to the ordinary contri-

bution limits.” Majority Op. at 31. It bars Jones’s leadership com-

mittee from “soliciting contributions and making any expenditures

in support” of his campaign. So it is not true that this injunction

“appl[ies] the same campaign limitation to both Jones and his com-

petitors.” Id. at 32. The statute, of course, contains no expenditure

limitation. Jones’s leadership committee and Jackson’s campaign

committee are both free to expend unlimited resources in support

of their campaigns.

This injunction will have the “primary effect” of “re-

strict[ing] the quantity of campaign speech” by Jones. Buckley, 424

U.S. at 39. The majority insists that this limitation is not a “prior

restraint.” Majority Op. at 32. But I have no other term for a “judi-

cial order[] forbidding certain communications when issued in ad-

vance of the time that such communications are to occur.” Alexan-

der v. United States, 509 U.S. 544, 550 (1993) (emphasis omitted) (ci-

tation modified). Unlike the forfeiture order permitted by Alexan-

der, the restraint on speech the majority blesses is not collateral: it

literally “forbid[s] [Jones’s leadership committee from] engag[ing]

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8 WILLIAM PRYOR, C.J., Dissenting 26-10854

in . . . expressive activities in the future.” Id. at 550–51. Perhaps

some other injunction could leave Jones’s leadership committee

free to “continue [its] expressive activities with other funds,” but

this one does not. Majority Op. at 32 (citation modified).

In this context, a preliminary injunction is all but permanent.

The runoff election is only days away. Even if there were time to

litigate this case to final judgment, Jackson would have no incen-

tive to do so. Our decision today will likely set the rules for the rest

of the campaign.

We should vacate the preliminary injunction. That resolu-

tion would still allow Jackson to seek a remedy against the state

officials he sued. Because the majority instead adopts Jackson’s

novel theory of state action, I respectfully dissent.