CINCINNATI (CN) — The threat of foreign influence in American elections is grave enough to allow states to ban political contributions from noncitizens, the state of Ohio argued Wednesday before the Sixth Circuit.
Citing concerns about the "corrosive effects" of foreign money "pouring into campaign issues," the Buckeye State passed an election spending law in 2024 that prohibited foreign nationals and those with green cards from making campaign contributions in any election.
Several citizens of other countries and Ohio Progressive Asian Women's Leadership — Building AAPI Feminist Leadership, or OPAWL, filed suit in federal court and claimed the law violated the First Amendment.
U.S. District Judge Michael Watson, an appointee of George W. Bush, agreed and granted their motion for an injunction in September 2024 to prevent enforcement of the law against legal permanent residents.
In his opinion, Watson recognized concerns about foreign influence dating back to the Founding Fathers, but he ultimately found the Ohio law violated the constitutional rights of permanent residents.
He cited the lack of any evidence that noncitizens had ever influenced elections. He pointed out they pay taxes, which gives them a "long-term stake" in local, state and national elections.
Attorney Mathura Sridharan, deputy solicitor general from the Ohio attorney general's office, argued Wednesday on behalf of the state and told the appeals court the law draws a "bright line between citizens and noncitizens."
"This law is about campaign finance, and the U.S. Supreme Court has recognized money carries a corrupt influence," she told the panel. "In the concepts of self-governance and political community, citizenship matters."
U.S. Circuit Judge Eric Murphy, a Donald Trump appointee, asked about donors from other states.
"What if Californians wanted to participate and donate money to a ballot issue in Ohio? What's the difference?" he asked.
"Citizenship matters. Citizens of other states enjoy other rights that lawful permanent residents do not," Sridharan answered.
"Your interests are all amorphous," Murphy continued. "Lawful permanent residents can't vote. What is the harm from foreigners speaking about the elections?"
"More speech is not always better. The state of Ohio has a compelling interest in protecting the integrity of the election," the attorney said.
Sridharan said nothing prevents foreign nationals from literally speaking about elections, whether through social media, protests or other forms of advocacy.
Attorney Elisabeth Frost of the Elias Law Group in Washington D.C. argued on behalf of Ohio Progressive Asian Women's Leadership and echoed Watson's concerns about the lack of evidence produced by the state.
"There are 160,000 lawful permanent residents in the state of Ohio, and there is no evidence at all that any of their speech is a 'pernicious foreign influence,'" she told the panel.
"Do they have to come up with evidence?" U.S. Circuit Judge Raymond Kethledge asked.
"Yes. There is no record evidence except rumors mentioned in several newspaper articles. One of the authors of the law admitted the money likely had no influence on any elections," Frost said.
Kethledge, a George W. Bush appointee, proposed a hypothetical scenario.
"Imagine George Soros and Elon Musk are actually lawful permanent residents. And one of them — pick whichever you like the least — pours $200 million into an Ohio ballot issue. Shouldn't the people of Ohio be allowed to say no to that?" he asked.
"At the end of the day, the voters make the decision when they go to the ballot," Frost answered.
"That's kind of blinding yourself to the reality of the situation," Kethledge said.
In her rebuttal, Sridharan reiterated the focal point of the state's defense of the law.
"This case is about who can participate in a representative democracy. Citizens can, noncitizens cannot," she said.
Attorney Jason Walta, deputy general counsel of the National Education Association, argued on behalf of the Ohio Education Association, an amicus party, and urged the court to uphold the injunction.
He emphasized the law discriminates against unions and nonprofits because it allows money given to corporations to be spent on elections, and pointed out the Supreme Court's decision in Citizens United controls and renders the law unconstitutional.
U.S. Circuit Judge Andre Mathis, a Joe Biden appointee, rounded out the panel.
No timetable has been set for the court's decision.
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