Rio Grande Foundation v. Toulouse Oliver

57 F.4th 1147

• Court: Court of Appeals for the Tenth Circuit
• Decided: January 18, 2023
• Docket: 22-2004
• Status: Published

Opinion

Appellate Case: 22-2004 Document: 010110799219 Date Filed: 01/18/2023 Page: 1 FILED United States Court of Appeals PUBLISH Tenth Circuit

UNITED STATES COURT OF APPEALS January 18, 2023

Christopher M. Wolpert FOR THE TENTH CIRCUIT Clerk of Court _________________________________

RIO GRANDE FOUNDATION; ILLINOIS OPPORTUNITY PROJECT,

Plaintiffs - Appellants,

v. No. 22-2004

MAGGIE TOULOUSE OLIVER, in her official capacity as Secretary of State of New Mexico,

Defendant - Appellee. _________________________________

Appeal from the United States District Court for the District of New Mexico (D.C. No. 1:19-CV-01174-JCH-JFR) _________________________________

Jacob Huebert, Liberty Justice Center (Daniel R. Suhr on the briefs), Chicago, Illinois, for Plaintiffs – Appellants.

Nicholas M. Sydow, Solicitor General, Office of the New Mexico Attorney General, Albuquerque, New Mexico, for Defendant – Appellee. _________________________________

Before HARTZ, McHUGH, and MORITZ, Circuit Judges. _________________________________

McHUGH, Circuit Judge. _________________________________

This appeal asks us to explore the boundaries of Article III standing for a First

Amendment challenge to state electioneering rules. Rio Grande Foundation (“RGF”) and Appellate Case: 22-2004 Document: 010110799219 Date Filed: 01/18/2023 Page: 2

Illinois Opportunity Project (“IOP”) (collectively, “Appellants”) are nonprofit advocacy

groups challenging an amendment to New Mexico’s Campaign Reporting Act (“CRA”),

which requires groups spending over designated amounts on electioneering

communications to state their identities on the materials and to disclose the identities of

their donors to New Mexico’s Secretary of State (the “Secretary”). Appellants claim

these requirements burden their First Amendment rights and chilled their planned speech

in the 2020 election cycle. The district court dismissed the case at summary judgment for

lack of standing, reasoning Appellants showed no injury-in-fact under the framework we

laid out in Initiative and Referendum Institute v. Walker, 450 F.3d 1082 (10th Cir. 2006).

Exercising jurisdiction under 28 U.S.C. § 1291, we reverse the dismissal in part,

holding that RGF had standing to pursue its First Amendment challenge to the amended

CRA’s disclosure requirement. We affirm the dismissal of IOP’s claims, but on grounds

different than those relied on by the district court.

I. BACKGROUND

A. Factual History1

On de novo review of a grant of summary judgment in a First Amendment

case, we consider the entirety of the record submitted. Citizens for Peace in Space v.

1 Because this matter comes to us on summary judgment, we first recite the undisputed facts as set forth in the parties’ briefs before the district court. Fed. R. Civ. P. 56(a); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). We then supplement those facts with the declaration and deposition testimony relevant to the disputed facts in the record to fulfill our obligation to consider the entire record in this First Amendment context. See Essence, Inc. v. City of Fed. Heights, 285 F.3d 1272, 1283 (10th Cir. 2002).

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City of Colo. Springs, 477 F.3d 1212, 1219 (10th Cir. 2007); Essence, Inc. v. City of

Fed. Heights, 285 F.3d 1272, 1283 (10th Cir. 2002).2

To begin, we set forth the factual background with respect to the change in

New Mexico’s election disclosure laws. We then provide the undisputed facts

presented to the district court in the parties’ motions for summary judgment. Turning

to the disputed facts, we include the nature of the parties’ disagreement on each point

and relevant record evidence. Finally, we provide the procedural background leading

to this appeal.

1. Senate Bill 3 (2019)

In 2019, New Mexico adopted Senate Bill 3 (2019) (“SB3”), which amended

the CRA to include disclaimer and disclosure requirements for certain electioneering

communications. Campaign Finance Reporting Act, ch. 262, 2019 N.M. Laws § 1

(codified as amended at N.M. Stat. Ann. §§ 1-19-26.4, 27.3; id. at § 2-21-1). A

violation of the CRA is a misdemeanor carrying a fine of up to $1,000 or up to one

year imprisonment or both. N.M. Stat. Ann. § 1-19-36.

2 At oral argument, the Secretary objected to Appellants’ reliance on deposition testimony beyond the portions the Secretary had highlighted for the district court, and questions arose about whether Appellants could rely in their reply brief on excerpts from the depositions they did not cite in the district court or in their opening appellate brief. All the relevant pages of deposition testimony were in the district court record and are part of the record here, so we properly consider them in their entirety as part of our review in this First Amendment context. See Essence, 285 F.3d at 1283 (holding that the appellate court’s “review of the record is more rigorous in a First Amendment context,” and we are “obligated to make an independent examination of the record in its entirety” (quotation marks omitted)).

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The amended CRA requires political committees3 to register with the Secretary

and to disclose (1) the name of the committee with any sponsoring organization and

its address; (2) a statement of purpose; (3) the names and addresses of the officers of

the committee; and (4) any bank account used for contributions or expenditures.4

N.M. Stat. § 1-19-26.1(B) and (C). The amended CRA also requires reporting the

names and addresses of donors if independent expenditures5 exceed certain amounts

(the “disclosure requirement”), as follows:

3 The CRA defines “political committees” as including “an association that consists of two or more persons whose primary purpose is to make independent expenditures and that has received more than five thousand dollars ($5,000) in contributions or made independent expenditures of more than five thousand dollars ($5,000) in the election cycle.” N.M. Stat. Ann. § 1-19-26(Q)(4). The parties do not dispute that Appellants would qualify as “political committees.” 4 An “expenditure” is “a payment, transfer or distribution or obligation or promise to pay, transfer or distribute any money or other thing of value for a political purpose.” N.M. Stat. Ann. § 1-19-26(M). 5 An “independent expenditure” is one that is (1) “made by someone other than a candidate or campaign committee,” (2) “not a coordinated expenditure as defined in the [CRA],” and (3) “made to pay for an advertisement that:”

(a) expressly advocates the election or defeat of a clearly identified candidate or the passage or defeat of a clearly identified ballot question;

(b) is susceptible to no other reasonable interpretation than as an appeal to vote for or against a clearly identified candidate or ballot question; or

(c) refers to a clearly identified candidate or ballot question and is published and disseminated to the relevant electorate in New Mexico within thirty days before the primary election or sixty days before the general election at which the candidate or ballot question is on the ballot.

N.M. Stat. Ann. § 1-19-26(N).

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A person who makes independent expenditures required to be reported under this section in an amount totaling more than three thousand dollars ($3,000) in a nonstatewide election or nine thousand dollars ($9,000) in a statewide election, in addition to reporting the information specified in Subsection C of this section, shall either:

(1) if the expenditures were made exclusively from a segregated bank account consisting only of funds contributed to the account by individuals to be used for making independent expenditures, report the name and address of, and amount of each contribution made by, each contributor who contributed more than two hundred dollars ($200) to that account in the election cycle; or

(2) if the expenditures were made in whole or part from funds other than those described in Paragraph (1) of this subsection, report the name and address of, and amount of each contribution made by, each contributor who contributed more than a total of five thousand dollars ($5,000) during the election cycle to the person making the expenditures; provided, however, that a contribution is exempt from reporting pursuant to this paragraph if the contributor requested in writing that the contribution not be used to fund independent or coordinated expenditures or to make contributions to a candidate, campaign committee or political committee.

N.M. Stat. Ann. § 1-19-27.3(D). The independent expenditure reports filed

under these laws are publicly available online in searchable format. See N.M.

Stat. Ann. § 1-19-32(C).

The amended CRA also requires a person who makes an independent

expenditure for an advertisement over $1,000 (for a single advertisement or in the

aggregate during the election cycle) to include on the advertisement the name of the

person who authorized and paid for the advertisement (the “disclaimer requirement”),

except in certain circumstances where doing so would be impracticable. N.M. Stat.

Ann. § 1-19-26.4(A), (B).

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2. Appellants

a. Undisputed facts

RGF is a charitable organization whose mission is to inform New Mexico’s

citizens “of the importance of individual freedom, limited government, and economic

opportunity.” App. at 76. To support this mission, “RGF engages in issue advocacy

[in New Mexico] around topics central to its mission and publishes the ‘Freedom

Index,’ a real-time online voting scorecard tracking legislators’ positions on free-

market issues.” Id.

IOP is a social-welfare organization whose mission is to “educat[e] the public

about policy driven by principles of liberty and free enterprise.” Id. IOP engages in

issue advocacy in Illinois and has been a plaintiff in lawsuits outside Illinois. IOP has

never sent mailers or other advertisements in New Mexico that would have been subject

to SB3.

Both RGF and IOP receive individual contributions over $5,000 during an

election cycle. All RGF’s and IOP’s expenditures are made from their general funds.

Prior to filing this lawsuit, neither organization had taken any action that

would have subjected it to the disclosure requirement. In the November 2020 election

cycle, RGF sent postcards stating whether certain candidates had signed a pledge

demanding no tax hikes through the end of the 2021 New Mexico legislative session

(the “taxpayer pledge”), but the costs of printing and mailing were under the

disclosure requirement’s threshold. IOP did not send any mailers in New Mexico

during that election cycle.

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b. Disputed facts

i. Prior advocacy

The parties dispute whether either Appellant has a history of engaging in the

type of advocacy regulated by SB3 and whether it had any effect on Appellants’

advocacy or lack thereof in the November 2020 election cycle.

RGF’s president testified that RGF has engaged in issue advocacy in New

Mexico since 2000 on many local and state issues through mailers, emails, social

media campaigns, and radio advertisements. He stated that, in the November 2020

election cycle, RGF had planned to publicize the results of its Freedom Index by

spending over $3,000 in individual legislative districts on mail campaigns. However,

instead of its planned advertising campaign, RGF sent the smaller-scale postcard with

the taxpayer pledge information and did some social media advertising at a lower

expense. RGF’s president stated that the decision to downsize the advertising was for

“a variety of practical and logistical reasons,” including the economic environment at

the time. Id. at 147–48. The mailers identified RGF as the author.

In his August 2020 declaration, IOP’s president stated IOP planned to spend

over $9,000 on mailings “to thousands of New Mexico voters within [sixty] days of

the November 2020 general election.” Id. at 30. The mailings were intended to

educate voters about an upcoming referendum on an amendment to the New Mexico

Constitution and to provide information about “the American tradition of

governmental accountability.” Id. In his subsequent deposition, IOP’s president could

not recall the precise amount IOP would have spent but confirmed it was over

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$9,000. However, IOP did not send those mailers. When asked why, IOP’s president

replied, “I think we filed a lawsuit because we don’t want our donors disclosed.” Id.

at 163. Unlike RGF, IOP did not do a smaller-scale advertisement.

ii. Concerns about SB3’s disclosure requirement

The parties dispute the extent of Appellants’ concerns about the potential risks

of donor disclosure.

Both Appellants express concern that donors might experience harassment by

“intolerant elements in society” due to the groups’ controversial positions. App. at

31, 36. At his deposition, RGF’s president discussed the experience of a Mozilla

executive who had contributed to a controversial campaign and then lost his job, a

situation in Arizona where the head of the Goldwater Institute had been subjected to

harassment and stalking, and “activists on both sides of the political aisle show[ing]

up to Tucker Carlson’s house.” Id. at 153. RGF’s president also declared he was

personally aware of instances where individuals or organizations affiliated with

certain causes or candidates in New Mexico were threatened with or experienced

retaliation, as well as harassment, boycotts, and social ostracism, although at his

deposition he could not recall any details. He further stated that one of RGF’s board

members had “a very aggressive approach taken by somebody involved in an issue

that we were dealing with” and “I’ve had politicians . . . take aggressive approaches

to expressing their displeasure with what we’re doing.” Id. at 155. RGF’s president

admitted, however, that New Mexico does not have as many “volatile issues” as some

states and RGF had no plans to make expenditures on hot-button issues that he had

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flagged as raising a risk of retaliation. Id. at 151. But he immediately qualified that

assertion, explaining “[t]hings can change quickly” and some of those issues were

potentially related to “upcoming mailings, postcards, Freedom Index-related, where

we list X, Y and Z votes, those would certainly be included in there, environmental

especially, in this session.” Id. at 154. He testified, “[W]e haven’t had anything

escalate to a point where it would become a direct threat . . ., yet it’s something that

we definitely want to try to avoid.” Id. at 155. He also expressed concern that

disclosed information is more accessible now, via the internet, than it used to be.

Similarly, IOP’s president expressed apprehension about “the cancel culture

that we’re currently at today” and gave an example of Major League Baseball leaving

Georgia due to harassment and criticism because it disagreed with a policy decision

by the Georgia legislature. Id. at 165.

Although they are not aware of any past harassment of or retaliation against

anyone affiliated with their own organizations, both Appellants’ presidents testified

that donors have expressed fear of disclosing their identities. Both presidents

admitted donors have not explicitly said they would not donate if their identities were

made public, but both declared their belief that donor disclosure would make donors

less likely to contribute and fundraising more difficult, saying they knew donors who

would cease donating if their identities were made public. At his deposition, RGF’s

president testified he has heard people say, “I can’t donate to you because I’m afraid

my donation will be made public.” Id. at 151. He stated, “[I]t is something that comes

up in conversations with donors on a fairly regular basis. . . . It’s an issue that people

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want to know about.” Id. at 154. IOP’s president stated that, based on “general

conversations,” he thinks donors “look at examples . . . that are happening currently

like the All-Star game moving, and they think about their own well-being,” and he

believes privacy is “the reason why they support our organization.” Id. at 165.

In their declarations, both organizations’ presidents also expressed concern

that if their members, supporters, and donors were disclosed, their target audiences

might focus on who is paying for the messages rather than the ideas presented in

them.

iii. Future plans

The parties dispute whether either organization has plans to engage in the type

of speech regulated by SB3 in the future.

In his declaration, RGF’s president stated, “RGF intends to engage in

substantially similar issue speech in future New Mexico elections.” App. at 35. At his

deposition, he testified that RGF was considering a mailing about a federal

congressional election happening less than two months after his deposition, stating,

“this is all very rapid-fire stuff that is happening.” Id. at 152. He said RGF did not

have any plans to make expenditures on hot-button issues, but that things can change

quickly. RGF’s president explained that although RGF believed the taxpayer pledge

information was more important than the Freedom Index scores in the November

2020 election cycle, “I don’t know if we would do something like that again.” Id. at

148. He also testified, “[T]he donor disclosure thing is a very serious issue for us,

and barring some legal change or a victory in court, we probably will withhold

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spending above the $3,000 threshold for the foreseeable future.” Id. at 152. When

asked, “If you were victorious in this lawsuit or did not have the legal restrictions

you discussed, would you spend more than $3,000 in any legislative district to make

these kind of mail communications?” he replied, “It’s quite possible, yes.” Id.

IOP’s president declared IOP intends to engage in similar issue speech in

future New Mexico elections. However, at his deposition, he testified he was unsure

if IOP would make independent expenditures in New Mexico in the future. He

admitted IOP had not engaged in any other advocacy in New Mexico and stated IOP

had no immediate plans to do so, although “we look at policy across the country” and

“[t]here may be” issues about which IOP would like to speak. Id. at 165. IOP’s

president affirmed that “depending on what policies might arise in New Mexico,

[IOP] may engage in issue advocacy.” Id. He further explained, “We look at policy

across the country, and if we feel like we want to engage, then we will do that.” Id. at

163. When asked if there were any particular policies about which IOP intended to

engage in substantially similar speech in New Mexico in the future, he replied, “I

don’t know what policies are going to happen in the future, so I can’t answer that.”

Id. He stated, “I don’t know what policy where at [sic], but I’m constantly looking all

over the country and working all over the country.” Id.

B. Procedural History

Appellants filed a complaint in December 2019, and an amended complaint in

February 2020, challenging SB3. In their amended complaint, Appellants asserted

they wished to send advertisements that would be subject to the amended CRA in the

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November 2020 election cycle. They requested injunctive and declaratory relief,

claiming that requiring them to disclose their members and supporters violated their

rights to free association and speech and that requiring them to register and disclose

their sponsorship of issue advocacy also violated their free speech rights.6

In August 2020, Appellants moved for a preliminary injunction, attaching

declarations from their organizations’ presidents. The district court denied the

motion, determining Appellants could not show a substantial likelihood of success on

the merits because New Mexico had “an interest in informing the electorate of the

sources of significant funding” for advertisements shortly before an election, which

the district court believed outweighed Appellants’ concerns.7 Id. at 50. The district

court acknowledged that the disclaimer requirement compels speech and infringes on

Appellants’ right to privacy and anonymity, but determined the interests of the state

outweigh those burdens.

After the district court denied the preliminary injunction, the parties proceeded

to discovery and both organizations’ presidents sat for depositions in April 2021. The

parties then filed cross-motions for summary judgment. Making a facial challenge to

SB3, Appellants argued the disclosure and disclaimer requirements were

6 Count III asserted the Secretary lacked constitutional authority to promulgate SB3. Appellants voluntarily dismissed Count III prior to the district court’s summary judgment ruling. 7 After the district court denied the preliminary injunction, the Supreme Court issued Americans for Prosperity Foundation v. Bonta, 141 S. Ct. 2373 (2021), which held California’s donor disclosure requirements unconstitutional.

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unconstitutional. Appellants relied exclusively on the declarations they had

previously submitted with their preliminary injunction motion without mentioning

the depositions. The Secretary’s response and cross-motion argued Appellants lacked

standing to bring a facial challenge to SB3 because they were not injured by the

challenged laws.8 The Secretary submitted relevant pages of the depositions,

highlighting the portions cited in its brief. In their reply/response, Appellants again

relied almost exclusively on the declarations.

The district court granted the Secretary’s motion for summary judgment,

determining the court lacked subject matter jurisdiction due to lack of Article III

standing. Applying Walker, 450 F.3d 1082, the district court held Appellants lacked

standing because they could not show an injury-in-fact. Specifically, the district court

concluded Appellants had not presented evidence that they had previously engaged in

speech that would be affected by SB3 or that they had a plausible claim their speech

was presently chilled by a credible threat SB3 would be enforced against them.

The Appellants filed a timely appeal.

II. DISCUSSION

On appeal, Appellants argue the district court erred in determining they lacked

standing. They contend the district court (1) wrongly evaluated the facts at the time

of the summary judgment motions rather than at the time the complaint was filed, and

8 In the alternative, on the merits the Secretary contended the laws served important informational interests for voters and were narrowly tailored.

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(2) failed to make inferences in their favor as required at the summary judgment

stage. They also argue that (3) the district court should have applied the doctrine of

mootness instead of standing, and concluded their case is not moot.

We first set forth the appropriate standard of review. We then address our

power to hear this appeal, beginning with the doctrine of standing and proceeding to

the doctrine of mootness. Ultimately, we hold the district court correctly concluded

Appellants lacked standing to challenge the disclaimer requirement because they

showed no injury-in-fact. With respect to the disclosure requirement, however, we

conclude the district court erred in finding RGF lacked standing, and RGF’s claim is

not moot. Thus, we reverse the dismissal as to that claim. As for IOP, we need not

determine whether it had standing to challenge the disclosure requirement because its

claim is moot. Accordingly, we affirm the decision of the district court as to IOP.

A. Standard of Review

We review a grant of summary judgment de novo, “applying the same standard

for summary judgment that applied in the district court.” Sandoval v. Unum Life Ins.

Co. of Am., 952 F.3d 1233, 1236 (10th Cir. 2020). Summary judgment is warranted if

“the movant shows that there is no genuine dispute as to any material fact and the

movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The court

views the evidence and makes reasonable inferences in the non-movant’s favor.

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). We “need not defer to

factual findings rendered by the district court.” Lincoln v. BNSF Ry. Co., 900 F.3d

1166, 1180 (10th Cir. 2018) (citation and internal quotation marks omitted). On a

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free speech claim, the court must make “an independent examination of the whole

record” to ensure the decision does not “constitute a forbidden intrusion on the field

of free expression.” Citizens for Peace in Space, 477 F.3d at 1219 (quoting Bose, 466

U.S. at 499).

Standing and mootness are questions of law reviewed de novo. Brown v.

Buhman, 822 F.3d 1151, 1168 (10th Cir. 2016). To survive a summary judgment

challenge to standing, “the plaintiff must set forth by affidavit or other evidence

specific facts that, if taken as true, establish each of the elements of standing.” Nova

Health Sys. v. Gandy, 416 F.3d 1149, 1154 (10th Cir. 2005) (citing Lujan v.

Defenders of Wildlife, 504 U.S. 555, 561 (1992)). “A federal court is powerless to

create its own jurisdiction by embellishing otherwise deficient allegations of

standing.” Id. (quoting Whitmore v. Arkansas, 495 U.S. 149, 155–56 (1990)).

B. Legal Standard: Justiciability

Article III of the Constitution permits federal courts to decide only “Cases” or

“Controversies.” U.S. Const. art. III, § 2. This requires “a genuine, live dispute

between adverse parties, thereby preventing the federal courts from issuing advisory

opinions.” Carney v. Adams, 141 S. Ct. 493, 498 (2020). The “case-or-controversy”

requirement “is built on separation-of-powers principles and serves to prevent the

judicial process from being used to usurp the powers of the political branches.”

Clapper v. Amnesty Int’l USA, 568 U.S. 398, 408 (2013). Although the primary

concern is jurisdictional, the case-or-controversy requirement also protects judicial

economy, ensuring “the scarce resources of the federal courts are devoted to those

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disputes in which the parties have a concrete stake.” Friends of the Earth, Inc. v.

Laidlaw Env’t Servs. (TOC), Inc., 528 U.S. 167, 191 (2000).

The doctrines of standing and mootness aim to ensure federal courts stay

within Article III’s bounds throughout the litigation.9 See id. at 189 (“The requisite

personal interest that must exist at the commencement of the litigation (standing)

must continue throughout its existence (mootness).” (quoting Arizonans for Official

English v. Arizona, 520 U.S. 43, 68 n.22 (1997))). “Standing concerns whether a

plaintiff’s action qualifies as a case or controversy when it is filed; mootness ensures

it remains one at the time a court renders its decision.” Brown, 822 F.3d at 1163. The

party invoking federal jurisdiction “bears the burden of establishing standing as of

the time it brought [the] lawsuit and maintaining it thereafter.” Carney, 141 S. Ct. at

499 (citing Lujan, 504 U.S. at 561). “Failure to satisfy the requirements of either

doctrine places a dispute outside the reach of the federal courts.” Brown, 822 F.3d at

1164.

C. Application

1. Standing

“A party facing prospective injury has standing to sue where the threatened

injury is real, immediate, and direct.” Davis v. Fed. Election Comm., 554 U.S. 724,

9 A third doctrine, ripeness, “aims to prevent courts from entangling themselves in abstract disagreements by avoiding premature adjudication.” Cellport Sys., Inc. v. Peiker Acustic GMBH & Co. KG, 762 F.3d 1016, 1029 (10th Cir. 2014) (quotation marks omitted).

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734 (2008). The doctrine of standing requires a litigant to “prove [1] he has suffered

a concrete and particularized injury [2] that is fairly traceable to the challenged

conduct, [3] and is likely to be redressed by a favorable judicial decision.” Carney,

141 S. Ct. at 498 (quoting Hollingsworth v. Perry, 570 U.S. 693, 704 (2013); Lujan,

504 U.S. at 560–61).

In the First Amendment context, the Supreme Court has recognized a

“lessening of prudential limitations on standing” due to the difficulty of showing an

injury-in-fact for certain First Amendment claims, Sec’y of State of Md. v. Joseph H.

Munson Co., 467 U.S. 947, 956 (1984), such as chilled speech or pre-enforcement

challenges, see Peck v. McCann, 43 F.4th 1116, 1133 (10th Cir. 2022) (explaining

the bar to show standing “is not supposed to be a difficult bar for plaintiffs to clear in

the First Amendment pre-enforcement context”); see also Wright & Miller, 13A Fed.

Prac. & Proc. § 3531.4 (3d ed.) (“The nature of First Amendment rights readily

supports recognition of injury; the importance of these rights supports recognition of

rather attenuated injury.”).

We have acknowledged the inherent difficulty of showing an injury-in-fact on

a chilled speech claim, because such injuries are, by definition, inchoate: the speech

“has not yet occurred and might never occur, yet the government may have taken no

formal enforcement action.” Walker, 450 F.3d at 1088. Accordingly, an injury-in-fact

exists where a chilling effect “arise[s] from an objectively justified fear of real

consequences, which can be satisfied by showing a credible threat of prosecution or

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other consequences following from the statute’s enforcement.” D.L.S. v. Utah, 374

F.3d 971, 975 (10th Cir. 2004).

In Walker, we evaluated the standing of advocacy groups making a First

Amendment challenge to a state constitutional provision requiring a supermajority to

pass wildlife-related initiatives. 450 F.3d at 1085. We determined the groups had

standing because they “provide[d] sufficiently concrete manifestations of desire to

pursue a wildlife initiative,” including “past and current conduct in preparation or

support for such initiatives in Utah and surrounding states, their allegations regarding

their desire to use the initiative process (but for the effect of [the challenged

provision]), and their claims that the supermajority requirement is the reason they are

not currently pursuing initiatives.” Id. at 1090. Walker formalized a three-part

framework as follows:

We hold that plaintiffs in a suit for prospective relief based on a “chilling effect” on speech can satisfy the requirement that their claim of injury be “concrete and particularized” by (1) evidence that in the past they have engaged in the type of speech affected by the challenged government action; (2) affidavits or testimony stating a present desire, though no specific plans, to engage in such speech; and (3) a plausible claim that they presently have no intention to do so because of a credible threat that the statute will be enforced.

Id. at 1089. “If the plaintiffs satisfy these three criteria, it is not necessary to show

that they have specific plans or intentions to engage in the type of speech affected by

the challenged government action.” Id.

Walker provides an example of circumstances giving rise to standing on a

chilled speech claim; where those factors exist, standing exists. Id. However, Walker

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acknowledged circumstances might satisfy the relatively relaxed standard for an

injury-in-fact on a chilled speech claim without meeting all the Walker factors. Id.

For example, the first Walker factor—evidence of past relevant speech—is not

essential because “people have a right to speak for the first time.”10 Id. While past

relevant speech can lend “concreteness and specificity” to the claimed injury, it

“obviously cannot be an indispensable element” of standing. Id. (explaining plaintiffs

“can” show injury-in-fact on a chilled speech claim by satisfying the three Walker

factors); cf. Peck, 43 F.4th at 1131 (explaining that the fact certain aspects of a

particular case suffice to show an element of standing does not mean those elements

are necessary to show that element of standing). The fundamental inquiry remains the

one that pre-dates Walker: “The chilling effect, to amount to an injury, must arise

from an objectively justified fear of real consequences, which can be satisfied by

showing a credible threat of prosecution or other consequences following from the

statute’s enforcement.” D.L.S., 374 F.3d at 975; see Walker, 450 F.3d at 1088.

It is axiomatic that standing is evaluated as of the time a case is filed. See

Friends of the Earth, 528 U.S. at 180; Brown, 822 F.3d at 1163; see also S. Utah

Wilderness All. v. Palma, 707 F.3d 1143, 1152–53 (10th Cir. 2013) (explaining that,

where an amended complaint supersedes an original complaint, standing is

determined as of the time the first complaint was filed). However, “an initial

10 Additionally, we note that past relevant speech might have been chilled, in which case lack of past speech would not show lack of injury.

19 Appellate Case: 22-2004 Document: 010110799219 Date Filed: 01/18/2023 Page: 20

conclusion that plaintiffs have standing is subject to reexamination, particularly if

later evidence proves inconsistent with that conclusion.” Friends of the Earth, 528

U.S. at 201 (Scalia, J. & Thomas, J., dissenting) (citing Gladstone Realtors v. Vill. of

Bellwood, 441 U.S. 91, 115, 115 n.31 (1979) (“[I]t sometimes remains to be seen

whether the factual allegations of the complaint necessary for standing will be

supported adequately by the evidence.”)); see also Wyoming v. Oklahoma, 502 U.S.

437, 446 (1992) (“[I]f convinced . . . that we were clearly wrong in accepting

jurisdiction of this case, we would not hesitate to depart from our prior rulings.”).

Furthermore, “the proof required to establish standing increases as the suit proceeds.”

Davis, 554 U.S. at 734. “At the pleading stage, general factual allegations of injury

resulting from the defendant’s conduct may suffice,” while on summary judgment,

the plaintiff “must ‘set forth’ by affidavit or other evidence ‘specific facts,’ . . .

which for purposes of the summary judgment motion will be taken to be true.” Lujan,

504 U.S. at 561 (quoting Fed. R. Civ. P. 56(e)).

Regardless of the stage of litigation at which the court evaluates standing, the

standing inquiry remains focused on whether the party invoking jurisdiction had a

sufficient stake in the outcome when the suit was filed. Davis, 554 U.S. at 734;

Friends of the Earth, 528 U.S. at 180; Arizonans for Official English, 520 U.S. at 68

n.22. Thus, the inquiry before the district court was—and our question is—whether

Appellants had a personal stake in a case or controversy at the time they filed their

complaint, in light of all the evidence we now have, construed in the light most

favorable to Appellants and making reasonable inferences in their favor.

20 Appellate Case: 22-2004 Document: 010110799219 Date Filed: 01/18/2023 Page: 21

a. The disclaimer requirement

The district court rightly determined Appellants lacked standing to challenge

the requirement that they identify themselves on their electioneering materials

because there is no evidence suggesting this disclaimer requirement ever affected

Appellants’ speech or conceivably would affect their speech. Cf. Rio Grande Found.

v. City of Santa Fe, 7 F.4th 956, 960–61 (10th Cir. 2021), cert. denied, 142 S. Ct.

1670 (2022) (determining RGF lacked standing to make a chilled speech claim where

it averred intent to speak despite challenged municipal ordinance, negating the

claimed chill). Appellants’ past mailers and advertisements voluntarily included the

identity of the senders and both organizations’ presidents stated they preferred to

identify themselves on their materials. See App. at 155 (explaining if RGF is “going

to spend money on something, [it is] going to put [its] name on it”); id. at 162

(expressing IOP’s belief it was “best practice” to identify itself on its materials).

Where both organizations are already committed to identifying themselves on their

materials, neither will be deterred from speaking by a requirement that they continue

to do so.

Appellants suggest they do not need to show the disclaimer requirement would

chill their speech, only that it would deprive them of their right to choose whether to

identify themselves. This is little more than a statement that Appellants disagree with

the requirement, and disagreement is not an injury-in-fact. See Laird v. Tatum, 408

U.S. 1, 13 (1972) (explaining mere disagreement with government policy was not

enough for standing; there must be a direct injury). Because Appellants cannot show

21 Appellate Case: 22-2004 Document: 010110799219 Date Filed: 01/18/2023 Page: 22

any past, present, or future injury from the disclaimer requirement, they lack standing

to challenge it.

b. The disclosure requirement

The district court concluded RGF lacked standing to challenge the disclosure

requirement because it could not satisfy the first and third Walker factors. We

disagree with that conclusion and the district court’s interpretation of Walker. Put

simply, Walker intended to reflect the low bar for showing standing on a chilled

speech claim, not raise that bar.

i. Past relevant speech

In concluding RGF failed to satisfy the first Walker factor, the district court

focused on the fact RGF has not historically spent the amount of money on political

advertisements that would trigger SB3.11 But RGF was not required to make such a

showing. In Walker, we noted that past speech was not necessary at all, 450 F.3d at

1089, let alone past speech of the precise scale as would trigger the challenged law.

Past relevant speech, where it exists, simply helps to differentiate the plaintiff’s

specific, concrete alleged injury from the general, hypothetical interest of the public.

Id; see generally O’Rourke v. Dominion Voting Sys., Inc., No. 21-1161, 2022 WL

11 The parties do not dispute that RGF’s prior expenditures were below the amount that would have triggered the disclosure requirement, so we assume that fact for purposes of this appeal. However, we do not express an opinion on the correctness of that conclusion. It appears to be based on an underlying assumption that the only costs to advertising considered “expenditures” under the CRA are the costs of dissemination, e.g., printing and mailing costs, an assumption that may not be warranted given the lack of limiting language in the statute or regulations.

22 Appellate Case: 22-2004 Document: 010110799219 Date Filed: 01/18/2023 Page: 23

1699425, at *2 (10th Cir. May 27, 2022) (explaining injury-in-fact cannot be harm

identical to “every citizen’s interest in proper application of the Constitution and

laws” or seek “relief that no more directly and tangibly benefits [them] than it does

the public at large” (quoting Lance v. Coffman, 549 U.S. 437, 439 (2007) (per

curiam))). Even advertisements of a smaller scale may help to define the contours of

the alleged injury to distinguish it from the generalized interest everyone has in free

speech.

RGF’s past advocacy does just that. It is undisputed that RGF’s mission since

2000 has been to inform New Mexico’s citizens of its views and it engages in issue

advocacy in pursuit of that mission. RGF’s president testified that, in addition to

publishing the online Freedom Index, RGF has engaged in issue advocacy in New

Mexico on many local and state issues through mailers, emails, social media

campaigns, and radio advertisements. Furthermore, RGF made plans to publicize the

results of its Freedom Index by spending over $3,000 in individual legislative

districts on mail campaigns within sixty days of the November 2020 election. These

past actions lend ample “concreteness and specificity” to what would otherwise be an

“inchoate” injury, satisfying the first Walker factor. See 450 F.3d at 1088.

The district court determined that RGF’s failure to send its planned 2020

mailers weighed against standing. But the fact that RGF planned the mailers in the

first place supports that they had a concrete interest in challenging SB3 at the time

they filed the lawsuit. Cf. id. at 1090–91 (concluding the first Walker factor satisfied

by “past and current conduct in preparation or support for such initiatives in Utah

23 Appellate Case: 22-2004 Document: 010110799219 Date Filed: 01/18/2023 Page: 24

and surrounding states” (emphasis added)). Furthermore, their eventual failure to

send the mailers weighed in favor of standing, not against it, because it suggested the

speech was chilled. Cf. Aptive Env’t, LLC v. Town of Castle Rock, 959 F.3d 961, 976

(10th Cir. 2020) (explaining acquiescence to a law does not defeat standing to

challenge it). It is true RGF’s president did not explicitly blame SB3 for abandoning

the original mailers and cited other factors as relevant to the decision. But he also

testified about his organization’s practice of tailoring its advertisements to avoid

triggering disclosure requirements, making it reasonable to infer that the disclosure

requirement played at least some part.

ii. Evidence showing a present desire to engage in affected speech

Walker’s second factor is not meant to be difficult to satisfy; affidavits stating

a general desire suffice. Peck, 43 F.4th at 1130–32; Rio Grande, 7 F.4th at 960

(stating affidavit averring a “desire to continue speaking about municipal ballot

measures in the future” sufficed because “[n]othing more concrete than this general

aspiration is needed to meet [Walker’s] second prong”). Even in the absence of direct

evidence, circumstances from which a court can infer a present desire also suffice.

See Walker, 450 F.3d at 1091. A plaintiff need not show the specific content or likely

timing of their desired speech. Peck, 43 F.4th at 1131–32 (“Such a barrier would be

so daunting as to obviate the leniency we generally apply to First Amendment

standing inquiries.”).

RGF’s president declared his organization wished to send mailers in the 2020

election cycle and “intends to engage in substantially similar issue speech in future

24 Appellate Case: 22-2004 Document: 010110799219 Date Filed: 01/18/2023 Page: 25

New Mexico elections.” App. at 35. The district court properly determined this met

the low bar for standing purposes. The Secretary’s arguments to the contrary are

primarily challenges to the strength of the evidence, arguing the deposition testimony

contradicted this statement and was vague. At the summary judgment stage, however,

the court must view the evidence in the light most favorable to RGF and make

reasonable inferences in its favor. Thus, the district court properly found RGF

adequately showed a desire to engage in future speech affected by SB3.

iii. A plausible chill

The district court found that RGF did not show a “plausible claim” because the

district court believed evidence cast doubt on whether RGF would engage in speech

regulated by SB3 in the future. Id. at 229 (quoting Rio Grande, 7 F.4th at 959). But

the third Walker factor is not an invitation for the district court to evaluate the

strength of the plaintiff’s evidence that it will, in fact, be chilled.12 See Day v. Bond,

500 F.3d 1127, 1137 (10th Cir. 2007) (“Practically speaking, Walker mandates that

we assume, during the evaluation of the plaintiff’s standing, that the plaintiff will

prevail on his merits argument.”). And it certainly does not require the plaintiff to

prove he will actually engage in speech affected by the law in the future; a plaintiff

on a chilled-speech claim “by definition does not—indeed, should not—have a

present intention to engage in that speech at a specific time in the future.” Walker,

12 We admit our use of the word “plausible” in Walker and Rio Grande may have injected confusion into the district court’s analysis of the third Walker factor.

25 Appellate Case: 22-2004 Document: 010110799219 Date Filed: 01/18/2023 Page: 26

450 F.3d at 1089; accord Susan B. Anthony List v. Driehaus, 573 U.S. 149, 163

(2014) (“Nothing in this Court’s decisions requires a plaintiff who wishes to

challenge the constitutionality of a law to confess that he will in fact violate that

law.”).

Rather, the third Walker factor asks whether the alleged chill “arise[s] from an

objectively justified fear of real consequences.” D.L.S., 374 F.3d at 975. Put another

way, standing on a chilled-speech claim requires both subjective and objective

deterrence—i.e., not just that the plaintiff claims to be deterred by the challenged law

but that the challenged law would plausibly deter a reasonable person in the

plaintiff’s position. Rio Grande, 7 F.4th at 960. The subjective chill here is obvious:

evidence shows that donor privacy is important to RGF and it tailors its speech to

avoid triggering donor disclosure requirements. The objective chill is equally

obvious: the law punishes violations with penalties including a fine or imprisonment.

N.M. Stat. Ann. § 1-19-36; see Peck, 43 F.4th at 1133 (assuming a state will enforce

its own laws in the absence of evidence to the contrary). A reasonable organization

would refrain from desired speech—here, larger-scale and therefore costlier

advertisements—where speaking without disclosing donors would subject it to

statutory penalties but disclosing donors would alienate them.

In sum, RGF showed an injury-in-fact because it did far more than claim harm

identical to “every citizen’s interest in proper application of the Constitution and

laws” or seek “relief that no more directly and tangibly benefits [them] than it does

the public at large.” O’Rourke, 2022 WL 1699425, at *2 (quoting Lance, 549 U.S. at

26 Appellate Case: 22-2004 Document: 010110799219 Date Filed: 01/18/2023 Page: 27

439). At the time it filed its complaint, RGF had a specific interest in challenging the

disclosure requirement because there was an objective risk the law would affect

RGF’s ability to engage in desired speech, and relief from the court would have

eliminated the potential chilling effect of the law. Thus, RGF had standing to

challenge the disclosure requirement.

Because we now conclude IOP’s challenge to the disclosure requirement is

moot, we do not address whether it had standing to bring its claim.

2. Mootness

The district court did not address mootness because it determined Appellants

lacked standing. Because we have an independent duty to ensure ourselves of our

own jurisdiction, Amazon, Inc. v. Dirt Camp, Inc., 273 F.3d 1271, 1274 (10th Cir.

2001), we evaluate whether the passing of the November 2020 election mooted

Appellants’ challenges to the disclosure requirement. We conclude RGF’s claim is

not moot. In contrast, IOP’s claim is moot and ineligible for the claimed exception.

The doctrine of mootness ensures that a case or controversy exists throughout

the proceedings. See Genesis Healthcare Corp. v. Symczyk, 569 U.S. 66, 71 (2013)

(explaining that an “actual controversy must be extant at all stages of review, not

merely at the time the complaint is filed” (quoting Arizonans for Official English,

520 U.S. at 67)). Mootness is often described as “standing set in a time frame”;

although the comparison is not a perfect one, with rare exceptions “[t]he requisite

personal interest that must exist at the commencement of the litigation (standing)

must continue throughout its existence (mootness).” Ajaj v. Fed. Bureau of Prisons,

27 Appellate Case: 22-2004 Document: 010110799219 Date Filed: 01/18/2023 Page: 28

25 F.4th 805, 811 (10th Cir. 2022) (internal quotation marks omitted). The defendant

generally has the “stringent” burden of persuasion on mootness by showing that

“subsequent events ma[k]e it absolutely clear that the allegedly wrongful behavior

could not reasonably be expected to recur.” Friends of the Earth, 528 U.S. at 189

(quoting United States v. Concentrated Phosphate Export Ass’n, 393 U.S. 199, 203

(1968)).

In deciding whether a case is moot, “[t]he crucial question is whether granting

a present determination of the issues offered . . . will have some effect in the real

world.” Kan. Jud. Rev. v. Stout, 562 F.3d 1240, 1246 (10th Cir. 2009) (quotation

marks omitted). “When it becomes impossible for a court to grant effective relief, a

live controversy ceases to exist, and the case becomes moot.” Id.; see also Ind v.

Colo. Dep’t of Corr., 801 F.3d 1209, 1213 (10th Cir. 2015) (“[A] case becomes moot

when a plaintiff no longer suffers actual injury that can be redressed by a favorable

judicial decision.” (internal quotation marks omitted)).

Courts recognize various “exceptions” to mootness that allow jurisdiction

despite an apparent lack of any live case or controversy. See Brown, 822 F.3d at

1166–67. As relevant here, these exceptions include where an alleged injury is

“capable of repetition, yet evading review,” which applies where (1) “the challenged

action ended too quickly to be fully litigated” and (2) “a reasonable expectation

exists for [the plaintiff] to again experience the same injury.” Marks v. Colo. Dep’t of

Corr., 976 F.3d 1087, 1093–94 (10th Cir. 2020) (internal quotation marks omitted).

Challenges to election laws may readily satisfy the first element, as injuries from

28 Appellate Case: 22-2004 Document: 010110799219 Date Filed: 01/18/2023 Page: 29

such laws are capable of repetition every election cycle yet the short time frame of an

election cycle is usually insufficient for litigation in federal court. See, e.g., Fed.

Election Comm’n v. Wis. Right to Life, Inc., 551 U.S. 449, 462 (2007). The second

element may be more difficult to show, although the bar is not meant to be high. See

Honig v. Doe, 484 U.S. 305, 318 n.6 (1988) (explaining that, to avail itself of this

exception to mootness, a plaintiff need not show that “a recurrence of the dispute [is]

more probable than not”). Even a statement expressing intent to engage in the

relevant speech might suffice. See Davis, 554 U.S. at 736; see also First Nat. Bank of

Bos. v. Bellotti, 435 U.S. 765, 775 (1978) (applying the exception where

“[a]ppellants insist that they will continue to oppose the constitutional amendment”).

a. RGF

RGF’s challenge to the disclosure requirement is not moot because

determining the law’s constitutionality would have a real effect on RGF. See Kan.

Jud. Rev., 562 F.3d at 1246. RGF’s president testified that donor disclosure laws

continue to shape RGF’s advocacy. He testified, “[T]he donor disclosure thing is a

very serious issue for us, and barring some legal change or a victory in court, we

probably will withhold spending above the $3,000 threshold for the foreseeable

future.” Id. at 152. When asked, “If you were victorious in this lawsuit or did not

have the legal restrictions you discussed, would you spend more than $3,000 in any

legislative district to make these kind of mail communications?” he replied, “It’s

quite possible, yes.” Id. If the disclosure requirement were invalidated, RGF could

29 Appellate Case: 22-2004 Document: 010110799219 Date Filed: 01/18/2023 Page: 30

cease tailoring its advocacy to avoid triggering the law. Accordingly, RGF’s

challenge to the disclosure requirement is not moot.

b. IOP

In contrast, IOP’s challenge is moot because invalidating the disclosure

requirement would not affect IOP. There is no evidence from which to infer IOP has

any reasonable probability of engaging in speech in New Mexico in the future, let

alone speech that would be subject to the disclosure requirement. IOP’s president

stated that the organization “look[s] at policy across the country, and if we feel like

we want to engage, then we will do that.” Id. at 163. The vague possibility IOP might

someday be interested in speaking in New Mexico on some unidentified topic hardly

shows that invalidation of the law would redress any potential injury to IOP.

IOP is not eligible for the exception for injuries “capable of repetition yet

evading review” because IOP has not shown any reasonable probability the

controversy will reoccur. Although IOP’s president stated in his declaration that “IOP

intends to engage in substantially similar issue speech in future New Mexico

elections,” App. at 30, his deposition testimony revealed that any such intent is

entirely conditional and speculative. Cf. Kan. Jud. Rev., 562 F.3d at 1248 (explaining

a claim was “so imbued with speculation and remoteness that [it] cannot serve as a

foundation for our circumspect jurisdictional inquiry”). Evidence that IOP will scour

the entire country for issues that pique its interest, and engage if it is so inclined,

does not show intent to engage in speech subject to New Mexico’s disclosure

requirement. There is not even any basis to infer such intent. IOP has never spoken or

30 Appellate Case: 22-2004 Document: 010110799219 Date Filed: 01/18/2023 Page: 31

wanted to speak in New Mexico other than during the November 2020 election cycle.

IOP’s one-time attempt to advertise in New Mexico differed materially from its past

advocacy, which has either been in Illinois or taken the form of lawsuits, not

advertising.

The conclusion that IOP is ineligible for the exception does not run afoul of

the Supreme Court’s caution that a plaintiff need not identify specific future speech

that will be affected by the challenged rule to benefit from this mootness exception.

In Wisconsin Right to Life, the Court explained:

We have recognized that the “capable of repetition, yet evading review” doctrine, in the context of election cases, is appropriate when there are “as applied” challenges as well as in the more typical case involving only facial attacks. Requiring repetition of every “legally relevant” characteristic of an as-applied challenge—down to the last detail— would effectively overrule this statement by making this exception unavailable for virtually all as-applied challenges. History repeats itself, but not at the level of specificity demanded by the [party asserting mootness].

551 U.S. at 463. The Court explained that, where the speaker (1) credibly claimed

that it planned “materially similar” future advertisements and (2) there was no reason

to believe the government would not prosecute violations, there was “a reasonable

expectation that the same controversy involving the same party will recur.” Id. at

463–64. Here, there is insufficient evidence that IOP has a credible plan to make any

materially similar future advertisement, and thus no reasonable expectation of

recurrence.

Appellants assert the exception should apply because of the future risk to

others even if not to Appellants, citing Storer v. Brown, 415 U.S. 724, 737 n.8

31 Appellate Case: 22-2004 Document: 010110799219 Date Filed: 01/18/2023 Page: 32

(1974). We generally disfavor this argument. See Hendrickson v. AFSCME Council

18, 992 F.3d 958 n.10 (10th Cir. 2021) (“[O]ur cases prevent us from applying the

mootness exception based on a risk to others.” (quotation marks omitted), cert.

denied, 142 S. Ct. 423 (2021)). Even if we endorsed it, we would decline to apply it

to IOP because those other interests would be adequately represented by RGF. Thus,

IOP is ineligible for this mootness exception.

III. CONCLUSION

The evidence construed in the light most favorable to RGF shows that RGF

had a personal stake in a case or controversy about the disclosure requirement at the

time it filed its complaint and maintained that interest thereafter. We accordingly

REVERSE the dismissal of RGF’s challenge to the disclosure requirement and

REMAND to the district court. We otherwise AFFIRM the decision of the district

court.