On September 24, 2024, the U.S. Court of Appeals for the Sixth Circuit temporarily stayed a preliminary injunction, previously issued by the U.S. District Court for the Southern District of Ohio, against a portion of Ohio’s new ban on foreign nationals (including lawful permanent residents) making contributions and expenditures in the state.
The Sixth Circuit instituted the administrative stay, which lasts until October 8, 2024, to consider the merits of the state’s motion to stay the injunction pending appeal.
As we noted when the ban was signed into law, the ban goes well beyond the foreign national ban under federal law, in particular by covering contributions and expenditures by lawful permanent residents and ballot measure contributions and expenditures.
On August 31, 2024, the day before the law’s effective date, the Southern District of Ohio issued a partial preliminary injunction against the law on First Amendment grounds, blocking enforcement of the law’s provisions pertaining to lawful permanent residents and other foreign national individuals (but not the law’s provisions pertaining to foreign entities).
As a result of the Sixth Circuit’s decision, the preliminary injunction is stayed and Ohio can pursue civil or criminal liability for any alleged violations of the law, including provisions pertaining to foreign national individuals, at least until October 8, 2024. If this ban is ultimately found to be constitutional, it is an open question as to whether the state could successfully enforce the law for alleged violations that took place while the preliminary injunction was in effect.
The scope of this law, however, is not entirely clear, and the state has not issued any guidance. As we noted in prior updates (see here and here), the application of this law to lawful permanent residents could have implications for, among others, federal political action committees (PACs) seeking to contribute in Ohio elections.
Please contact us with any questions or to discuss possible arguments about the scope of the law, including its application to federal PACs.
This memorandum is provided by Skadden, Arps, Slate, Meagher & Flom LLP and its affiliates for educational and informational purposes only and is not intended and should not be construed as legal advice. This memorandum is considered advertising under applicable state laws.