By Lisa Soronen

Susan B. Anthony List v. Driehaus is a standing case, meaning that it should be of more interest to first year law students than state legislators.

The case involves suing to determine the constitutionality of a common state statute: a campaign false statement statute. Unfortunately, because it is a standing case, it sheds no light on the constitutionality of false statement statutes.

The Supreme Court held unanimously that Susan B. Anthony List (SBA) had alleged a “sufficiently imminent injury” to bring a preenforcement challenge to the constitutionality of Ohio’s campaign “false statements” statute. 

During the 2010 election cycle SBA intended to run a billboard criticizing then-U.S. Representative Steve Driehaus for supporting taxpayer funded abortion by voting in favor of the Affordable Care Act. Driehaus filed a complaint with the Ohio Elections Commission claiming that SBA violated Ohio’s “false statements” statute that prevents making a false statement concerning the voting record of a candidate.

A panel of the commission found probable cause a violation had occurred, but Driehaus lost the election before the full commission could decide the issue. Even though the commission proceedings were then dropped, SBA brought a lawsuit alleging the “false statements” statute is unconstitutional. 

The question in this case is whether SBA had an injury-in-fact, which is one of the requirements to have “standing” to bring a lawsuit, even though SBA faced no current enforcement action. The court concluded SBA alleged a credible threat of enforcement because (1) it intended to make similar statements in future elections, (2) based on the commission panel findings it was arguable SBA’s speech was proscribed by the statute, and (3) given that SBA was just the subject of a complaint, the threat of future enforcement is substantial.

So even though we don’t know from this case whether Ohio’s false statements statute is unconstitutional we should know soon. Because one thing is clear from this case: SBA still has one (winnable or not). 

Lisa Soronen is executive director of the State and Local Legal Center. She writes frequently on U.S. Supreme Court cases for the NCSL Blog.