author: HARTZ, Circuit Judge.

text:
    ONYX PROPERTIES LLC, a Colorado limited liability company; Emerald Properties, LLC, a Colorado limited liability company; Paul Naftel; Shauna Naftel, Plaintiffs-Appellants, and Local Service Corporation, the Estate of Chapter 11 Bankruptcy in re: Simon E. Rodriquez, Trustee; Kenneth G. Rohrbach; Karen L. Rohrbach; Paul K. Rohrbach; Compost Express, Inc., a Colorado corporation, Plaintiffs, v. BOARD OF COUNTY COMMISSIONERS OF ELBERT COUNTY, in its official capacity, Defendant-Appellee. National Association of Home Builders, Amicus Curiae. Robert Quinn, an individual; Karen Quinn, an individual; Patricia Rodenz, an individual; Michael McClendon, an individual; David Aksland, an individual; Sean Mulvihill, an individual; Stephen Mulvihill, an individual; Edwin Baker, an individual; Virginia Baker, an individual; Stan Lynn, an individual; Edward Lovelace, an individual; Donna Lovelace, an individual; EJL Enterprises, Inc., a Colorado corporation; Prairie Land, LLC, a Colorado limited liability company; Craig Clausen, an individual; Kenlou, LLC, a dissolved Colorado corporation; Gary Levin, an individual; Fiddleback Ranch, LLC, a Colorado limited liability company; William Paul Summers, an individual; Eugene Erickson, an individual; Anne Erickson, an individual; Lora Krista, an individual; Rebecca Arnold, an individual; Dennis Leonard, an individual; Thomas Maroney, an individual; Station Gulch Ranch, LLC, a Colorado limited liability company; Richard O’Leary, an individual; Linda O’Leary, an individual; Morningstar Development, LLC, a Colorado limited liability company; Amanda Pines, LLC, a Colorado limited liability company; Amanda Pines North, LLC, a Colorado limited liability company; Ladero Land Development, Inc., a Colorado corporation, Plaintiffs-Appellants, v. Board of County Commissioners of Elbert County, Defendant-Appellee.
    No. 15-1141, No. 15-1197
    United States Court of Appeals, Tenth Circuit.
    FILED October 3, 2016

      ‘James D. Thorburn, The Law Office of James D. Thorburn, LLC, Greenwood Village, Colorado, for Plaintiffs-Appellants.
    Josh A. Marks (Melanie B. Lewis with him on the briefs), Berg Hill Greenleaf & Ruscitti, LLC, Boulder, Colorado; for Defendant-Appellee.
    Troy R. Rackham, Fennemore Craig, P.C., filed an Amicus Curiae brief for National Association of Home Builders, Denver, Colorado, in support of Appellants.
    Before HARTZ/EBEL, and MORITZ, Circuit Judges.
   HARTZ, Circuit Judge.

The plaintiffs in the two cases before us on appeal complain that they were denied due process when the Board of County Commissioners of Elbert County (the Board) required them to rezone their properties before they could subdivide them. They allege that after the Board lost the documents reflecting the prior comprehensive zoning ordinance, it created new documents without following proper procedures for enacting an ordinance and covered up their misconduct. Perhaps these allegations state a claim under Colorado law. We hold, however, that the plaintiffs were not deprived of their right to due process under the United States Constitution.

I. BACKGROUND

The essential facts are undisputed. The Board enacted comprehensive zoning regulations on July 5, 1983. The regulations referred to an official county zoning map. By 1997, however, the Board had discovered that its files contained only six pages of the regulations and no zoning map. It therefore authorized Planning Director Kenneth Wolf to research historical zoning information and report his findings in a series of replacement maps and zoning regulations (the Wolf Documents). Although no public proceedings were conducted to approve the Wolf Documents, county officials treated them as authoritative.

Between 1997 and 2008 a number of landowners in the county sought to subdivide their properties into parcels of 35.00 to 59.99 acres. They were informed by county officials that their properties were zoned A-Agriculture and that county regulations required such land to be rezoned as A-l to be subdivided. The landowners therefore applied to the Board for rezoning, paid the required fees, and obtained approval of their applications. Only after incurring substantial expenses did they become aware that the Board had not formally adopted the regulations and maps in the Wolf Documents that required the rezoning.

The first landowners to file suit were Onyx Properties, LLC and its coplaintiffs, who brought a putative class action in the United States District Court for the District of Colorado (the Onyx Litigation). They sought injunctive relief and damages under 42 U.S.C. § 1983, on the grounds that the Board’s actions violated their rights to substantive and procedural due process. The district court denied class certification, and this court declined to grant a petition for permission to appeal that decision. Robert Quinn and 31 other landowners who had been members of the putative class then jointly filed suit against the Board in the same court (the Quinn Litigation) raising the same claims.

The district court in Onyx dismissed the substantive-due-process claim on the pleadings and granted summary judgment in the Board’s favor on the procedural-due-process claim. See Onyx Properties v. Bd. of Cty. Comm’rs, No. 10-cv-01482-LTB-KLM (Consolidated w/ 11-cv-02321-RPM-MJW), 2015 WL 1361393, at *7 (D. Colo. Apr. 20, 2015). In Quinn another judge of the district court initially dismissed the first amended complaint without prejudice for failure to state a claim upon which relief could be granted. See Quinn v. Bd. of Cty. Comm’rs, No. 13-cv-02818-CMA-BNB, 2015 WL 3457732, at *1 (D. Colo. June 11, 2015). The plaintiffs responded with a motion to permit them to submit a second amended complaint, but the court concluded that the amendment would be futile and dismissed both the procedural- and substantive-due-process claims with prejudice. See id. at *1, *3; Jefferson Cty. Sch. Dist. No. R-1 v. Moody’s Inv’rs Servs., Inc., 175 F.3d 848, 859 (10th Cir. 1999) (leave to amend may be denied as futile if the complaint as amended would be subject to dismissal).

The Quinn plaintiffs appeal the district court’s dismissal of both their procedural- and substantive-due-process claims. The Onyx plaintiffs do not pursue their substantive-due-process claim on appeal, but argue that summary judgment was improperly granted on their procedural-due-process claim.

We have jurisdiction under 28 U.S.C. § 1291. We have consolidated the two cases for disposition on appeal and affirm both judgments. We hold that the Board’s adoption of the Wolf Documents as the official zoning regulations and maps was a legislative act, so the Due Process Clause required no hearing. And the conclusory allegations of cover-up and misrepresentation in the Quinn Litigation do not present a plausible substantive-due-process claim.

II. DISCUSSION

We review de novo a district court’s order granting summary judgment, “applying the same standards that the district court should have applied.” Schanzenbach v. Town of Opal, Wyo., 706 F.3d 1269, 1272 (10th Cir. 2013) (internal quotation marks omitted). “Summary judgment is appropriate if the pleadings and the record establish that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law.” Id. “We [likewise] review the district court’s order of dismissal de novo, accepting the complaint[’s] well-pleaded factual allegations as true.” Hyde Park Co. v. Santa Fe City Council, 226 F.3d 1207, 1209 (10th Cir. 2000). To survive a motion to dismiss under Fed. R. Civ. P. 12(b)(6), a claim for relief must plead sufficient facts to support a reasonable inference that the defendant is liable as alleged. See Jordan-Arapahoe, LLP v. Bd. of Cty. Comm’rs, 633 F.3d 1022, 1026 (10th Cir. 2011).

The Due Process Clause of the Fourteenth Amendment prohibits the state from depriving any person “of life, liberty, or property, without due process of law.” U.S. Const, amend. XIV, § 1. “Procedural due process ensures the state will not deprive a party of property without engaging fair procedures to reach a decision, while substantive due process ensures the state will not deprive a party of property for an arbitrary reason regardless of the procedures used to reach that decision.” Hyde Park, 226 F.3d at 1210. The Board argues that plaintiffs have no (institutional claim because their interest in how their land is zoned is not a “property” interest protected by the Due Process Clause. But it is unnecessary for us to decide this issue because even assuming all plaintiffs possessed a constitutionally protected property interest, they must still be denied relief.

A. Procedural Due Process

“The essence of procedural due process is the provision to the affected party of some kind of notice and ... some kind of hearing.” Moore v. Bd. of Cty. Comm’rs, 507 F.3d 1257, 1259 (10th Cir. 2007) (internal quotation marks omitted). The plaintiffs do not clearly articulate what notice or what hearing they should have received, but we understand their arguments as focusing on the failure of the Board to follow required state procedures for the enactment of a zoning ordinance before it implemented the Wolf Documents as if they were validly promulgated. Colorado law requires that “before the adoption of any zoning resolutions, the board of county commissioners shall hold a public hearing thereon, the time and place of which at least fourteen days’ notice shall be given.” Colo. Rev. Stat. § 30-28-112.

Violation of state procedural requirements, however, does not in itself deny federal constitutional due process. See Guttman v. Khalsa, 669 F.3d 1101, 1115 (10th Cir. 2012) (“A failure to comply with state .or local procedural requirements does not necessarily constitute a denial of federal due process; the alleged violation must result in a procedure which itself falls short of standards derived from the Due Process Clause.” (brackets and internal quotation marks omitted)); Rector v. City & Cty. of Denver, 348 F.3d 935, 947 (10th Cir. 2003) (“It is well established ... that a state’s violation of its own laws does not create a claim under § 1983.”); Norton v. Vill. of Corrales, 103 F.3d 928, 930 (10th Cir. 1996) (“[T]he result of error in the administration of state law [the failure to properly, publish an ordinance], though injury may result, is not a matter of federal judicial cognizance under the due process clause of the fourteenth amendment.” (internal quotation marks omitted)); see also Gryger v. Burke, 334 U.S. 728, 731, 68 S.Ct. 1256, 92 L.Ed. 1683 (1948) (“We cannot treat a mere error of state law, if one occurred, as a denial of due process; otherwise, every erroneous decision by a state court on state law would come here as a federal constitutional question.”). Hence, two cases relied on by the plaintiffs—Carter v. City of Salina, 773 F.2d 251, 255 (10th Cir. 1985), and Bd. of Cty. Comm’rs v. Rohrbaoh, 226 P.3d 1184, 1186 (Colo. App. 2009)—are irrelevant to our analysis because they decided only the requirements of state law.

We therefore turn to what the federal Constitution requires. As the following analysis shows, the plaintiffs have failed to present a federal violation because the adoption of a general zoning law is a legislative act, and the Supreme Court long ago established that the federal Constitution does not require a hearing on the adoption of legislation.

Early in the last century the Supreme Court held that constitutional procedural due process does not govern the enactment of legislation. See Bi-Metallic Inv. Co. v. State Bd. of Equalization, 239 U.S. 441, 445, 36 S.Ct. 141, 60 L.Ed. 372 (1915). In Bi-Metallic the Colorado Tax Commission and the State Board of Equalization had ordered a 40% increase in the valuation of all taxable property in Denver. See id. at 443, 36 S.Ct. 141. The plaintiff sued to enjoin enforcement of the order on the ground that it had been denied its due-process right to be heard. See id. at 444, 36 S.Ct. 141. The Court held that a hearing was not constitutionally required for each affected landowner before the adoption of a generally applicable tax increase. See id. at 445, 36 S.Ct. 141. It explained that such a requirement would be too burdensome, and the public had other means of influencing legislative decisions:

Where a rule of conduct applies to more than a few people, it is impracticable that everyone should have a direct voice in its adoption. The Constitution does not require all public acts to be done in town meeting or an assembly of the whole. General statutes within the state power are passed that affect the person or property of individuals, sometimes to the point of ruin, without giving them a chance to be heard. Théir rights are protected in the only way that they can be in a complex society, by their power, immediate or remote, over those who make the rule. If the result in this case had been reached, as it might have been by the state’s doubling the rate of • taxation, no one would suggest that the 14th Amendment was violated unless every person affected had been allowed an opportunity to raise his voice against it before the body intrusted by the state Constitution with the power— There must be a limit to individual argument in ■ such matters if government is to go on.

Id. As the Supreme Court wrote decades after Bi-Metallic-.

In altering substantive rights through enactment of rules of general applicability, a legislature generally provides constitutionally adequate process simply by enacting the statute, publishing it, and, to the extent the statute regulates private conduct, affording those within the statute’s reach a reasonable opportunity both to familiarize themselves with the general requirements imposed and to comply with those requirements.

United States v. Locke, 471 U.S. 84, 108, 105 S.Ct. 1785, 85 L.Ed.2d 64 (1985); see Logan v. Zimmerman Brush Co., 455 U.S. 422, 433, 102 S.Ct. 1148, 71 L.Ed.2d 265 (1982) (a “legislative determination [terminating a welfare program or granting defenses and immunities to state officials] provides all the process that is due”). “[T]he general theory of republican government is not due process through individual hearings and the application of standards of behavior, but through elective representation, partisan politics, and the ultimate sovereignty of the people to vote out of office those legislators who are unfaithful to the public will.” Rogin v. Bensalem Twp., 616 F.2d 680, 694 (3d Cir. 1980).

We recognize that not all actions by municipal boards are legislative. When the action has a limited focus (only a few people or properties are affected) and is based on grounds that are individually assessed, it may be more adjudicative than legislative and therefore subject to traditional procedural requirements of - notice and hearing. Thus, Bi-Metallic distinguished the Court’s earlier decision in Londoner v. City and Cty. of Denver, ,2Í0 U.S. 373, 28 S.Ct. 708, 52 L.Ed. 1103 .(1908), which held that constitutional due process required a hearing, because in the earlier case the “board had to determine whether, in what amount, and upon whom a tax for paving a street should be levied ... [and a] relatively small number of persons was concerned, who were exceptionally affected, in each case upon individual grounds.” Bi-Metallic, 239 U.S. at 446, 36 S.Ct. 141 (internal quotation marks omitted). In such circumstances the need for additional procedural protections is greater because political remedies are often unattainable by individuals or small groups, see Ind. Land Co., LLC v. City of Greenwood, 378 F.3d 705, 710 (7th Cir. 2004), and the grant of procedural safeguards to a few does not impose as great a burden on government. See Kaahumanu v. Cty. of Maui, 315 F.3d 1215, 1220-21 (9th Cir. 2003) (decision to grant or deny conditional-use permit was administrative action distinguishable from legislative enactment of a general zoning ordinance).

Bi-Metallic controls here because adoption of a general zoning ordinance is legislative action. In distinguishing between legislative and administrative action, some courts have considered “the nature of the decisionmaking body” as elected or appointed; the type of decision (the adoption of a “comprehensive plan” or just the grant of a variance); and whether the action involves “general policy formulations, which are considered legislative, [or] specific applications of previously formulated policy, which are considered administrative.” Developments in the Law—Zoning, 91 Harv. L, Rev. 1427, 1509 (1978). Others have focused on (1) the “particularity of the impact of the state action,” and (2) the factual basis for the action—legislation is typically based on “generalizations concerning a. policy or state of affairs” that “do not usually concern the immediate parties but.... help the tribunal decide questions of law, policy, and discretion,” whereas administrative action is typically based on adjudicative facts, that, “relate with greater specificity to individuals or particular situations.” Id. at. 1510-11; see, e.g., Hughes v. Tarrant Cty., 948 F.2d 918, 921 (5th Cir. 1991) (using these two factors to assess whether action was legislative for purposes of legislative immunity); Crymes v. DeKalb Cty., 923 F.2d 1482, 1485 (11th Cir. 1991) (same); see also L C & S, Inc. v. Warren Cty. Area Plan Comm’n, 244 F.3d 601, 604 (7th Cir. 2001) (“[T]he generality and consequences[ ] of an enactment determine whether it is really legislation or really something else.”); Harris v. Cty. of Riverside, 904 F.2d 497, 501-02 (9th Cir. 1990) (“[T]he character of the action, rather than its label, determines whether those affected by it are entitled to constitutional due process.”); Cherry Hills Resort v. Cherry Hills Vill, 757 P.2d 622, 625 (Colo. 1988) (“Legislative action is usually reflective of some public policy relating to matters of a permanent or general character, is not normally restricted to identifiable persons or groups, and is usually prospective in nature.”).

Under any of these standards, the adoption of a comprehensive zoning ordinance is a legislative act. A zoning plan is based on community-wide development goals, not on the particular facts of individual situations. See Developments, 91 Harv. L. Rev. at 1512-13. It involves the discretionary implementation of prospective policies rather than the application of an existing policy to a specific landowner. See Rogin, 616 F.2d at 693. Zoning plans are generally applicable even though their impact may be felt differently by specific landowners. See id. at 693 & n.60.

The case law in our fellow circuits reflects this view. See, e.g., Smithfield Concerned Citizens v. Toum of Smithfield, 907 F.2d 239, 245 (1st Cir. 1990) (enactment of zoning ordinance is a legislative act); Cty. Concrete Corp. v. Town of Roxbury, 442 F.3d 159, 169 (3d Cir. 2006) (municipal body’s act of recommending or voting for change in permitted uses in a zoning district is legislative in character); Jackson Court Condos., Inc. v. City of New Orleans, 874 F.2d 1070, 1072, 1076 (5th Cir. 1989) (moratorium on establishment of time-share condominiums in residential area was a legislative zoning decision of broad applicability to which no procedural-due-process rights attached); Dennis v. Vill. of Tonka Bay, 156 F.2d 672, 674 (8th Cir. 1946) (enactment of zoning ordinance is “legislative in character”); Kuzinich v. Santa Clara Cty., 689 F.2d 1345, 1349 (9th Cir. 1982) (“[T]he enactment of a general zoning ordinance is a legislative act.”); Kentner v. City of Sanibel, 750 F.3d 1274, 1280 (11th Cir. 2014) (generally applicable, prospective, . policy-making zoning ordinance restricting building of docks and piers is a legislative act); see also Calvert v. Safranek, 209 Fed.Appx. 816, 819 (10th Cir. 2006) (“In Colorado, adopting zoning ordinances is a legislative function entrusted to the boards of county commissioners.”).

To be sure, state-required enactment procedures may not have been followed when the Board endorsed the Wolf Documents. But failure to comply with these procedures does not make the Board’s action nonlegislative. When the issue is whether a hearing was constitutionally required before taking official action, the focus is on the nature of that action. A procedural failure in the approval process may render legislation invalid under state law but does not change its character as legislation. See Hoffman v. City of 'War-ivick, 909 F.2d- 608, 620-21 (1st Cir. 1990) (uniform policy decision not to enforce statute that provided seniority benefits “was a legislative-type decision for which no individual hearing was necessary” despite the failure to follow proper state procedures to repeal the statute before ceasing to provide the entitlement); Smith v. City of Picayune, 795 F.2d 482, 488 (5th Cir. 1986) (enactment of zoning ordinance without notice or héaring required by state law did not support a procedural-due-process claim). We do not read Abraham v. Pekarski, 728 F.2d 167, 174 (3d Cir. 1984), relied on by the plaintiffs, as holding to the contrary because it involved a clearly non-legislative act—the firing of an employee. See Ademo v. Cloutier, 40 F.3d 597, 614 (3d Cir. 1994) (“We reject the notion that our decision in Abraham stands for the broad proposition that a mere technical violation of the statutory procedures specified for legislative action, by itself, converts an otherwise legislative action into an administrative action.”).

The plaintiffs point to circuit-court decisions requiring notice and a hearing before a zoning change that affects only one or a few parcels. But those decisions do not cast doubt on the legislative nature of general zoning decisions, and at least one other circuit court has held that even such limited zoning changes may be legislative in nature so that no hearing is required. Compare Nasierowski Bros. Inv. Co. v. City of Sterling Heights, 949 F.2d 890, 896 (6th Cir. 1991) (notice and a hearing were required before amending a zoning map that impacted only a few landowners and was targeted at the plaintiffs property, even though a generally applicable policy-based zoning law would not warrant such protections), and Harris, 904 F.2d at 602, 504 (although a general zoning plan amendment is a legislative act that “would not ordinarily. give rise to constitutional procedural due process requirements,” individualized notice was required before a decision to rezone that affected only two landowners, was distinct from the general amendment, and specifically targeted the plaintiffs property), with L C & S, 244 F.3d at 604-05 (amendment to zoning ordinance requiring taverns to obtain permission to open in commercial district, which was enacted to prevent plaintiffs from opening a bar, was legislative because the imposition of greater regulation on taverns was a policy decision that would apply to any would-be tavern owners).

In any event Nasierowski and Harris do not assist the plaintiffs here. The plaintiffs do not argue that the Wolf Documents were targeted at them or that the documents were not generally applicable statements of county policy regarding development. On the contrary, they contend that the documents constitute a zoning ordinance subject to state requirements for the adoption of such ordinances. The zoning requirements imposed by the Wolf Documents were of the type that all courts recognize would not be subject to a dué-process hearing requirement. We hold that the Board’s adoption of the Wolf Documents was a legislative act and that the federal Constitution did not afford the plaintiffs the right to a hearing. This does not mean that they have no remedy for the alleged violation of state procedures. It is just that they, must seek that remedy under state law.

B. Substantive Due Process

The Due Process Clause contains a substantive component that bars “certain governmental actions regardless of the fairness of the procedures used to implement them.” Daniels v. Williams, 474 U.S. 827, 331, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986). The plaintiffs allege that the Board’s misrepresentation of the Wolf Documents as the official zoning regulations and its cover-up of the manner of their adoption were violations of substantive due process. They are not complaining that a properly enacted zoning ordinance identical to what appears in the Wolf Documents would violate substantive due process. Cf. Lingle v. Chevron, 544 U.S. 528, 540-41, 125 S.Ct. 2074, 161 L.Ed.2d 876 (2005) (“[A] municipal zoning ordinance [will] survive a substantive due process challenge so long as it [is] not clearly arbitrary and unreasonable, having no substantial relation to the public health, safety, morals, or general welfare.” (emphasis and internal quotations marks omitted)). Rather, they focus on the alleged misrepresentations and cover-up that the Board employed to enforce the Wolf Documents. These alleged acts were clearly executive, so we apply principles of substantive due process that govern executive action.

When analyzing executive action, “only the most egregious official conduct can be said to be arbitrary in the constitutional sense.” Cty. of Sacramento v. Lewis, 523 U.S. 833, 846, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998) (internal quotation marks omitted). Intentionally or recklessly causing injury through the abuse or misuse of governmental power is not enough. See Klen v. City of Loveland, Colo., 661 F.3d 498, 513 (10th Cir. 2011). The actions “must demonstrate a degree of outra-geousness and a magnitude of potential or actual harm that is truly conscience shocking.” Id. (internal quotation marks omitted).

The restricted scope of substantive-due-process claims reflects “the concern that § 1983 not replace state tort law” and “the need to give deference to local policymak-ing bodies’ decisions.” Id. This restricted scope is readily apparent in cases involving land use. The plaintiffs in Klen, who were developers attempting to obtain building permits, see id. at 501-02, alleged “that the defendants ‘engaged in a continuous campaign of harassment, deceit,- and delay ... intended to injure [the plaintiffs] ... in a way unjustifiable by any government interest,’ ” id.' at 511. They claimed that they had suffered malicious delay in the issuance of building permits, the imposition of conditions and fees not authorized by law, and retaliatory citations and further delay after they complained. See id. at 511-12 & n.6. We acknowledged that arbitrary deprivation of a property right may viólate substantive due process if the arbitrariness is extreme, but we concluded that the alleged misconduct was ■ not conscience shocking, noting that “[m]any of their complaints are examples of the kind of disagreement that is frequent in planning disputes.” Id. at 512-13 (internal quotation marks omitted).

Other circuits have made clear how high the substantive-due-process bar is in this context. The First Circuit .has “consistently held that the due process clause may not ordinarily be used to involve federal courts in the rights and wrongs of local planning disputes” and has limited relief to “truly horrendous situations.” Nestor Colon Medina & Sucesores, Inc. v. Custodio, 964 F.2d 32, 45 (1st Cir. 1992) (political manipulation of the permitting process did not violate substantive due process); see also Mongeau v. City of Marlborough, 492 F.3d 14, 19-20 (1st Cir. 2007) (allegations of hostility and animus motivating the denial of a building permit were not conscience shocking); cf. Nestor Colon, 964 F.2d at 47 (suggesting that bribery, or threats may violate substantive due process).

Eichenlaub v. Township of Indiana, 385 F.3d 274, 286 (3d Cir. 2004), affirmed the dismissal of a substantive-due-process claim based on allegations of unnecessary inspections and enforcement actions, unequal application of subdivision requirements, delayed permits and approvals, and improperly increased tax assessments. The court said that the described misconduct did not “rise sufficiently 'above that at issue in a normal zoning dispute to pass the ‘shocks the conscience test.’” Id. It noted that there were no' allegations of corruption or self-dealing, interference with constitutionally protected activity on the property, bias against an ethnic group, or a virtual taking of property rights. See id.

Two circuits have set especially strict standards. The Sixth Circuit has held that in the zoning context even allegations of corruption are insufficient. See EJS Props, LLC v. City of Toledo, 698 F.3d 845, 851, 862 (6th Cir. 2012) (denial of rezoning because plaintiff refused to give large donation to local retirement fund did not shock the conscience). And in Chesterfield Development Corp. v. City of Chesterfield, 963 F.2d 1102, 1103-05 (8th Cir. 1992), the Eighth Circuit held that there was no violation of substantive due process when the city enforced a comprehensive zoning ordinance that was invalid under state law because the city had failed to provide proper notice before adopting it and had failed to properly file the plan. Although the city did not know the ordinance was invalid at the time, the court stated that “[o]ur decision would be the same even if the City had knowingly enforced the invalid zoning ordinance in bad faith.... A bad-faith violation of state law remains only a violation of state law.” Id. at 1105.

We need not go so far. There is no allegation here of corruption, self-dealing, or bias against any protected group or activity. The proposed second amended complaint conclusorily alleges clandestine activity and a cover-up, but quotes a transcript of a public Board meeting in August 1997 where the loss of the zoning map is disclosed.

The Quinn plaintiffs assert that, at a minimum, the question of whether the Board’s conduct was sufficiently arbitrary to violate substantive due process was a factual issue that should have gone to a jury. But “[t]he ultimate standard for determining whether there has been a substantive due process violation is whether the challenged government action shocks the conscience of federal judges.” Kim, 661 F.3d at 513. The district court properly dismissed the substantive-due-process claim and refused to permit the second amended complaint.

III. CONCLUSION

We AFFIRM the judgments of the district court.

      . In light of this disposition, we need not address the Onyx plaintiffs' arguments concerning denial of class certification or the prudential standing of a coplaintiff because any potential claims based on the same alleged due-process violations must also fail. See In re Krause, 637 F.3d 1160, 1168 (10th Cir. 2011) (“Unlike certain other statutory or constitutional jurisdictional questions, the resolution of a sticky prudential standing question may be bypassed in favor of deciding the case on the merits when it’s clear that the appellant will lose there anyway.”); Wiesmueller v. Kosobucki, 513 F.3d 784, 787 (7th Cir. 2008) (the question of class certification is moot when the claim is resolved on grounds that would be equally applicable to any other class member).

      . Federal Lands Legal Consortium v. United States, 195 F.3d 1190, 1195 (10th Cir. 1999), suggested that American Manufacturers Mutual Insurance Co. v. Sullivan, 526 U.S. 40, 59, 119 S.Ct. 977, 143 L.Ed.2d 130 (1999), requires us always to address the existence of a protected property interest when considering a due-process claim. "We are bound by the precedent of prior panels absent en banc reconsideration of a superseding contrary decision by the Supreme Court.” United States v. Killion, 7 F.3d 927, 930 (10th Cir. 1993). But there is now contrary Supreme Court authority. See City of Cuyahoga Falls v. Buckeye Cmty. Hope Found., 538 U.S. 188, 198, 123 S.Ct. 1389, 155 L.Ed.2d 349 (2003) (declining to decide whether respondents possessed a property interest in building permits because their substantive-due-process claim would fail anyway). Therefore, neither Federal Lands nor Nichols v. Board of Cty. Comm’rs, 506 F.3d 962, 969 n.2 (10th Cir. 2007), which relied on Federal Lands without discussing City of Cuy-ahoga Falls, remains binding on this point.

      . The Onyx plaintiffs argue, "Since the Wolf Maps and Wolf Regulations were adopted without any process, and these documents were enforced against the [plaintiffs], the doc- ' uments took away the [plaintiffs'] property rights to develop their properties in violation of the due process clause.” Onyx Properties, et al v. Board of County Commissioners of Elbert County,' No. 15-1141, Aplt. Br. at 8. The Quinn plaintiffs’ proposed second amended complaint alleges: “Rather than taking the constitutional route in holding a due process hearing to adopt the maps..., the [Board] implemented a clandestine policy that [Wolf] would create zoning maps and then sign them himself.... The County then represented that the Wolf Maps were the 'official' 1983 maps of the County’s 1983 zoning regulations.” Robert Quinn, et al. v. Board of County Commissioners of Elbert County, No. 15-1197, Proposed Second Am. CompL, Aplt. App. Vol. II at 365 ¶¶ 30-31.

      . The following sentence in Bi-Metallic may be misleading if read out of context: "In considering this case in this court we must assume that the proper state machinery has been used, and the question is whether, if the state Constitution had declared that Denver had been undervalued as compared with the rest of the state, and had decreed that for the current year the valuation should be 40 per cent higher, the objection now urged could prevail." 239 U.S. at 445, 36 S.Ct. 141 (emphasis added). This might be taken as a sug-gestión that there could have been a due-process violation had the tax assessment been promulgated contrary to state law. But earlier in the opinion the Court had said, "With these suggestions [based on state law] we have nothing to do. They are matters purely of state law.” Id. at 444, 36 S.Ct, 141. Thus, the "we must assume” language appears to be no more than a statement that the Court assumes that state law was followed because compliance with state law was not pertinent to its analysis. We are aware of no authority that has interpreted the Bi-Metallic sentence as stating that a violation of state law constitutes a denial of due process.


source: Caselaw Access Project

author: WILSON, Circuit Judge:

license: Public Domain

text:
    John DOE #1, John Doe #2, John Doe #3, Florida Action Committee, Inc., Plaintiffs-Appellants, v. MIAMI-DADE COUNTY, Florida Department of Corrections, Sunny Ukenye, Circuit Administrator for the Miami Circuit Office, Florida Department of Corrections, in his full official capacity, Defendants-Appellees.
    No. 15-14336
    Non-Argument Calendar
    United States Court of Appeals, Eleventh Circuit.
    (September 23, 2016)

      Brandon Buskey, Ezekiel Edwards, American Civil Liberties Union of New York State (NYCLU), New York, NY, Nancy Ghana Abudu, Daniel Boaz Tilley, ACLU Foundation of Florida, Inc., Miami, FL, for Plaintiffs-Appellants.
    Michael B. Valdes, Miami-Dade County Attorney’s Office, Miami, FL, for Defendant-Appellee Miami,-Dade County.
    John Bajger, Attorney General’s Office, West Palm Beach, FL, Carrol Y. Cherry Eaton, Attorney General’s Office, Ft Laud-erdale, FL, for Defendant-Appellee Florida Department of Corrections.
    John Bajger, Attorney General’s Office, West Palm Beach, FL, for Defendant-Ap-pellee Sunny Ukenye.
    Before TJOFLAT, WILSON, and JILL PRYOR, Circuit Judges. ■
   WILSON, Circuit Judge:

Plaintiffs-Appellants John Doe #1, John Doe #2, John Doe #3, and the Florida Action Committee, Inc. (FAC) (collectively, the Plaintiffs), appeal the district court’s dismissal of their ex post facto challenges to the residency restriction in Miami-Dade County’s Lauren Book Child Safety Ordinance (the Ordinance). On appeal, the Plaintiffs argue that they pleaded sufficient facts to state a claim that the residency restriction is so punitive in effect as to violate the ex post facto clauses of the federal and Florida Constitutions. At this stage, we conclude that Doe #1 and Doe #3 have alleged plausible ex post facto challenges to the residency restriction. Therefore, we affirm in part, reverse in part, and remand for proceedings consistent with this opinion.

I

On November 15, 2005, Miami-Dade County (the County) adopted the Ordinance, which imposes, inter alia, a residency restriction on “sexual offenders” and “sexual predators.” See Miami-Dade Cty., Fla., Code of Ordinances ch. 21, art. XVII. The Ordinance prohibits a person who has been convicted of any one of several enumerated sexual offenses involving a victim under sixteen years of age from “residing] within 2,500 feet of any school.” Id. § 21-281(a). The 2,500-foot distance is “measured in a straight line from the outer boundary of the real property that comprises a sexual offender’s or sexual predator’s residence to the nearest boundary line of the real property that comprises a school,” rather than “by a pedestrian route or automobile route.” Id. § 21-281(b). There are three exceptions to the County’s residency restriction: (1) “[t]he sexual offender or sexual predator established a residence prior -to the effective date of th[e] [0]rdinance”; (2) ■“[t]he sexual offender or sexual predator was a minor when he or she committed the sexual offense and was not convicted as an adult”; and (3) “[t]he -school -was opened after the sexual offender or sexual predator established the residence.” Id. § 21-282(1). Violations of the Ordinance are punishable by a fine up to $1,000, imprisonment for up to 364 days, or both. Id. § 21-281(c).

On December 20, 2014, the Plaintiffs filed a complaint against the County, the Florida Department of Corrections, and the Florida Department of Corrections Miami Circuit Administrator, Sunny Uken-ye, in his official capacity (collectively, the Defendants), challenging the constitutionality of the County’s residency restriction. Specifically, the Plaintiffs, challenged the County’s residency restriction (1) as void for vagueness under the Fourteenth Amendment and the Florida Constitution; (2) as a violation of their substantive due process rights to personal security and to acquire residential property under the Fourteenth Amendment and - the Florida Constitution; and (3) as an unconstitutional ex post facto law under the federal and Florida Constitutions. The Defendants moved to dismiss, and the district court dismissed all the claims with prejudice under Federal Rule of Procedure 12(b)(6). The Plaintiffs properly appealed only the dismissal of their ex post facto challenges against the County.

II

“We review de novo the district court’s grant of a motion to dismiss under 12(b)(6) for failure to state a claim, accepting the allegations in the complaint as true and construing them in the light most favorable to the plaintiff.” Hill v. White, 321 F.3d 1334, 1335 (11th Cir. 2003) (per cu-riam).

III

Both the federal and Florida Constitutions prohibit the passage of ex post facto laws. See U.S. Const, art. I, § 9, cl. 3; id. art. I, § 10, cl. 1; Fla. Const, art. I, § 10. An ex post facto law is a law that “applies] to events occurring before its enactment” and that “disadvantage^] the offender affected by it, by altering the definition of criminal conduct or increasing the punishment for the crime.” Lynce v. Mathis, 519 U.S. 433, 441, 117 S.Ct. 891, 896, 137 L.Ed.2d 63 (1997) (internal quotation marks and citation omitted). In Smith v. Doe, the Supreme Court outlined a framework for determining whether Alaska’s sex offender registration and notification requirements violated the federal Ex Post Facto Clause. See 538 U.S. 84, 92-93, 97, 123 S.Ct. 1140, 1146-47, 1149, 155 L.Ed.2d 164 (2003). We join our sister circuits in applying the Smith framework to evaluate an ex post facto challenge to a residency restriction on sexual offenders. See Doe v. Snyder, Nos. 15-1536, 15-2346, 15-2486, 834 F.3d 696, 2016 WL 4473231 (6th Cir. Aug. 25, 2016) (consolidated); Shaw v. Patton, 823 F.3d 556, 561-62 (10th Cir. 2016); Doe v. Miller, 405 F.3d 700, 718 (8th Cir. 2005).

The Smith Court noted that Alaska’s statute was retroactive and applied the following framework to determine whether the statute violated the Ex Post Facto Clause:

We must ascertain whether the legislature meant the statute to establish civil proceedings. If the intention of the legislature was to impose punishment, that ends the inquiry. If, however, the intention was to enact a regulatory scheme that is civil and nonpunitive, we must further examine whether the statutory scheme is so punitive either in purpose or.effect as to negate the State’s intention to deem it civil.

538 U.S. at 92, 123 S.Ct. at 1146-47 (alteration adopted) (internal quotation marks and citations omitted). After determining that the Alaska legislature intended to “create a civil, nonpunitive regime,” the Court explained that several factors guide the second part of the analysis:

whether, in its necessary operation, the regulatory scheme: [1] has been regarded in our history and traditions as a punishment; [2] imposes an affirmative disability or restraint; [3] promotes the traditional aims of punishment; [4] has a rational connection to a nonpunitive purpose; or [5] is excessive with respect to this purpose.

See id. at 96-97, 123 S.Ct. at 1149. Ultimately, the Court concluded that the Alaska statute was not punitive and, therefore, did not violate the Ex Post Facto Clause. See id. at 105-06,123 S.Ct. at 1154.

IV

The County does not contest that its residency restriction applies to individuals “convicted” of relevant sexual offenses before the passage of the ■ Ordinance. See Ordinance § 21-281(a); Lynce, 519 U.S. at 441, 117 S.Ct/ -at 896 (a statute is only retroactive if it “applfies] to events occurring before its enactment” (internal quotation mark omitted)). Therefore, we accept for purposes of this appeal that the residency restriction applies retroactively. Additionally, the Plaintiffs do not contest the County’s assertion that the County intended the Ordinance to be civil and non-punitive. Therefore, we also accept for purposes of this appeal that the County intended to “create a civil, nonpunitive regime” under the first step of the Smith analysis. See Smith, 538 U.S. at 96, 123 S.Ct: at 1149.

Finally, only Doe #i and Doe #3 have properly alleged that the County’s residency restriction applied retroactively to them—that the restriction applied to their pre-enactment convictions for qualifying sexual offenses. Accordingly, we need only decide whether Doe #1 and Doe #3 alleged sufficient facts to state a plausible claim that the County’s residency restriction is- so punitive in effect as to violate the federal and Florida ex post facto clauses under. Smith. See Ashcroft v. Iqbal, 556 U.S. 662, 677-79,129 S.Ct. 1937, 1949-50, 173 L.Ed.2d 868 (2009). We conclude they have done so.

The complaint sufficiently alleged that the County’s residency restriction imposes a direct restraint on Doe #l’s and Doe #3’s freedom to select or change residences. Under the “affirmative disability or restraint” factor, “we inquire how the effects of the [Ordinance] are felt by those subject to it.” See Smith, 538 U.S. at 99-100, 123 S.Ct. at 1151 (internal quotation marks omitted). The Plaintiffs alleged in their complaint that the County’s residency restriction severely limits housing options for individuals subject to the restriction, “drastically exacetbat[ing] transience and homelessness.” See Amended Complaint at ¶74. Doe #1 and Doe #3 have specifically alleged that they are homeless and that their homelessness resulted directly from the County’s residency restriction “severely restricting available, affordable housing- options.” Id. at ¶ 54; accord id. at ¶ 28. Doe #1 was twice instructed by probation officers to live at homeless encampments after the County’s residency restriction made him unable to live with his sister and he could not find other housing compliant with the restriction. See id. at ¶¶ 18-28. He currently lives at a makeshift homeless encampment near “an active railroad track” (the Encampment). See id. at ¶¶5, 25. Similarly, Doe #3 sleeps in his car at the .Encampment because, “despite repeated attempts, he has been unable to obtain available, affordable rental housing in compliance with the Ordinance.” See id. at ¶¶ 52-53.

Doe #1 and Doe #3 also sufficiently alleged that the County’s residency restriction is excessive in comparison to its public safety goal of addressing recidivism. See Smith, 538 U.S. at 105, 123 S.Ct. at 1154 (regulation is excessive if “[un]reasonable in light of [its] nonpunitive objective”). Accepting the facts alleged in the complaint as true, the County’s residency restriction is “among the strictest in the nation.” See Amended Complaint at ¶ 74. An individual becomes subject to the restriction based solely on the fact of his or her prior conviction for a listed sexual offense, without regard to his or her individual “risk of recidivism over time.” See id. at ¶¶ 72-73. This is so despite the fact that “[rjesearch has consistently shown that sexual offender recidivism rates are among the lowest for any category of offenses, and that this lower risk of sexual offense recidivism steadily declines over time.” See id. at ¶ 136. Nonetheless, the County’s residency restriction applies for life, even after an individual no longer has to register as a sexual offender under Florida law and is no longer subject to the state law 1,000-foot residency restriction. See id. at ¶72. The County’s residency restriction also applies “even if there is no viable route to reach the school within 2500 feet.” Id. at ¶ 141.

The Plaintiffs further argue that the County’s residency restriction not only fails to advance, but also directly undermines, the goal of public safety. The complaint stated that “[t]he only demonstrated means of effectively managing reentry and recidivism [of former sexual offenders] are targeted treatment, along with maintaining supportive, stable environments that provide access to housing, employment, and transportation,” rather than by “[making] categorical assumptions about groups of former sexual offenders.” See id. at ¶¶ 137, 143. The complaint also alleged that the transience and. homelessness that the residency restriction causes undermine sexual offenders’ abilities to successfully re-enter society and increase the risk of recidivism by “mak[ing] it more difficult for Plaintiffs and others to secure residences, receive treatment, and obtain and maintain employment.” See id. at ¶¶ 146, 149. In light of the foregoing, we conclude that Doe #1 and Doe #3 have stated a plausible claim that the County’s residency restriction is so punitive in effect as to violate the ex post facto clauses of the federal and Florida Constitutions.

V-

Our role in reviewing the grant of a 12(b)(6) motion merely is to determine whether the plaintiffs stated a plausible claim, such that they should be permitted to proceed to discovery. See Chaparro v. Carnival Corp., 693 F.3d 1333, 1337 (11th Cir, 2012) (per curiam). Here, Doe #1 and Doe #3 alleged sufficient facts to raise plausible claims that the County’s residency restriction is so punitive in effect that it violates the ex post facto clauses of the federal and Florida Constitutions. Whether Doe #1 and Doe #3 ultimately prevail is a determination for a future stage of this litigation. Thus, we reverse the district court’s grant of the County’s motion to dismiss as to Doe #1 and Doe #3’s ex post facto challenges and remand for further proceedings.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

Appendix

ARTICLE XVII.—THE LAUREN BOOK CHILD SAFETY ORDINANCE

Sec. 21-277.—Title.

Article XVII shall be known and may be cited as “The Lauren Book Child Safety Ordinance.”

Sec. 21-278.—Findings and Intent.

(a) Repeat sexual offenders, sexual offenders who use physical violence and sexual offenders who prey on children are sexual predators who present an extreme threat to the public safety. Sexual offenders are extremely likely to use physical violence and to repeat their offenses. Most sexual offenders' commit many offenses, have many more victims than are ever reported, and are prosecuted for only a fraction of their crimes. This makes the cost of sexual offender victimization to society at large, while incalculable, clearly exorbitant.

(b) The intent of this article is to serve the County’s compelling interest to promote, protect and improve the health, safety and welfare of the citizens of the County, particularly children, by prohibiting sexual offenders and sexual predators from establishing temporary or permanent residence in certain areas where children are known to regularly congregate, to prohibit renting or leasing certain property to sexual offenders or sexual predators if such property is located where children are known to regularly congregate and to restrict sexual offenders’ and sexual predators’ access to -parks and child care facilities,

Sec. 21-280.—Definitions.

The following terms and phrases when used in this article shall have the meanings ascribed to them in this section unless the context otherwise requires:

(4) “Convicted” or “conviction” means a determination of guilt which is the result of a trial or the entry of a plea of guilty or nolo contendere, regardless of whether adjudication is withheld. A conviction for a similar offense includes, but is not limited to: a conviction by a federal or military tribunal, including courts-martial conduct^ ed by the Armed Forces of the United States, and includes a conviction or entry of a plea of guilty or nolo contendere resulting in a sanction in any state of the United States or other jurisdiction, A sanction includes, but is not limited to, a fíne, probation, community control, parole, conditional release, control release, or incarceration in a state prison, federal prison, private correctional facility, or local detention facility.

(7) “Permanent residence” means a place where a person abides, lodges, or resides for fourteen (14) or more consecutive days.

(8) “Reside” or “residence” means to have a place of permanent residence or temporary residence,

(9) “School” means a public or private kindergarten, elementary, middle or secondary (high) school.

(1Ó) “Sexual offender” shall have the meaning ascribed to: such term in Section 943.0435, Florida Statutes.

(11) “Sexual offense” means a conviction under Section 794.011, 800.04, 827.071, 847.0135(5) or 847.0145, Florida Statutes, or a similar law of another jurisdiction in which the victim or apparent victim of the sexual offense was less than sixteen (16) years of age, excluding Section 794.011(10), Florida Statutes.

(12) “Sexual predator” shall have the meaning ascribed to such term in Section 775.21, Florida Statutes,

(13) “Temporary residence” means a place where the person abides, lodges, or resides for a period of fourteen (14) or more days in the aggregate during any calendar year and which is not the person’s permanent address, or a place where the person routinely abides, lodges, or resides for a period of four (4) or more consecutive or nonconsecutive days in any month and which is not the person’s permanent residence.

Sec. 21-281.—Sexual Offender and Sexual Predator Residence Prohibition; Penalties.

(a) It is unlawful for any person who has been convicted of a violation of Section

794.011 (sexual battery), 800.04 (lewd and lascivious acts on/in presence of persons under age 16), 827.071 (sexual performance by a child), 847.0135(5) (sexual acts transmitted over computer) or 847.0145 (selling or buying of minors for portrayal in sexually explicit conduct), Florida Statutes, or a similar law of another jurisdiction, in which the victim or apparent victim of the offense was less than sixteen (16) years of age, to reside within 2,500 feet of any school.

(b) The 2,500-foot distance shall be measured in a straight line from the outer boundary of the real property that comprises a sexual offender’s or sexual predator’s residence to the nearest boundary line of the real property that comprises a school. The distance may not be measured by a pedestrian route or automobile route, but instead as the shortest straight line distance between the two points.

(c) Penalties. A person who violates section 21-281(a) herein shall be punished by a fine not to exceed $1,000.00 or imprisonment in the County jail for not more than 364 days or by both such fine and imprisonment.

Sec. 21-282.—Exceptions.

(1) A sexual offender or sexual predator residing within 2,500 feet of any school does not commit a violation of this section if any of the following apply:

(a)The sexual offender or sexual predator established a residence prior to the effective date of this ordinance. The sexual offender or sexual predator shall not be deemed to have established a residence or registered said residence for purposes of this section,.if the residence is an illegal multifamily apartment unit within a neighborhood zoned for single-family residential use.

(b) The sexual offender or sexual predator was a minor when he or she committed the sexual offense and was not convicted as an adult.

(c) The school was opened after the sexual offender or sexual predator established the residence.

(2) Section 21-282(l)(a) and .(l)(c) herein shall not apply to a' sexual offender or sexual predator who is convicted of a subsequent sexual offense as an adult after residing at a registered residence within 2,500 feet of a school.

      . The present text of the Ordinance is reproduced in the Appendix in relevant part. Any differences between the 2005 version, which went into effect on November 25, 2005, and the present version of the Ordinance are immaterial to this appeal.

      . We evaluate both the federal and state ex post facto challenges under Smith. See Houston v. Williams, 547 F.3d 1357, 1364 (11th Cir. 2008).

      . None of the factors is dispositive and two other factors may be considered in- the second step of the Smith framework: whether the regulatory scheme "comes into play only on a finding of scienter”-and whether "the behavior to which it applies is already a crime.” See , Smith, 538 U.S. at 97, 105, 123 S.Ct. at 1149, 1154. However, the Court explained, these two factors carried little weight in the Court’s analysis of the Alaska statute. See id. at 105, 123 S.Ct. at 1154.

      .Construing the complaint in the light most favorable to the Plaintiffs, Doe #1 was convicted of his relevant sexual offense in 1992, and Doe #3 was convicted of his relevant sexual offense in 1999—both before the County’s residency restriction was enacted in 2005. See Amended Complaint at ¶¶ 17, 48, Doe v. Miami-Dade Cty., No. l:14-cv-23933-PCH, 2015 WL 3886841 (S.D. Fla. June 23, ,2015) [hereinafter Amended Complaint]. Both are also “sexual offenders” under the.Ordinance because they are residents of Miami-Dade County and are registered as sexual offeriders. Id. at ¶¶ 14, 45; see Ordinance § 21-280(10) (citing Fla. Stat-. § 943.0435).
      However, Doe #2 only alleged that he was convicted of his relevant sexual offense in 2006. See Amended Complaint at ¶ 32. Thus, Doe #2 failed to allege that the County’s residency restriction retroactively increased his punishment. Similarly, FAC—a non-profit corporation that works to reform the sexual offender laws in Florida—failed to allege that any of its members were convicted of, or even committed, a relevant sexual offense before November 15, 2005. See id. at ¶¶ 55-63.

      . There are no restroom facilities, sanitary water, of designated-.shelter at the Encampment, which is technically on private property. See id. at ¶¶ 120-23.

      . The stated intent of the Ordinance "is to serve the County's compelling interest to promote, protect and improve the health, safety and welfare of the citizens of the County, particularly children, by prohibiting sexual offenders and sexual predators from establishing temporary or permanent residence in certain areas where children are known to regularly congregate." The County made findings that, inter alia, "[s]exual offenders are extremely likely to use physical violence and to repeat their-offenses.'' See Ordinance § 21- ' 278.'


author: MARTIN, Circuit Judge:

text:
    The ALABAMA DEMOCRATIC CONFERENCE, Dr. Eddie Greene, James Griffin, Bob Harrison, Emmitt E. Jimmar, Jimmie Payne, Plaintiffs-Appellants, v. ATTORNEY GENERAL, State OF ALABAMA, Robert L. Broussard, in his official capacity as District Attorney for the 23rd Judicial Circuit, Bryce U. Graham, Jr., in his official capacity as District Attorney for the 31st Judicial Circuit, Defendants-Appellees.
    No. 15-13920
    United States Court of Appeals, Eleventh Circuit.
    Date Filed: 09/27/2016

      Edward Still, Edward Still Law Firm, LLC, Birmingham, AL, Norman 0. Grubbs, Joe M. Reed & Associates, LLC, Montgomery, AL, John Tanner, John Tanner Law Office, Washington, DC, for Plaintiffs-Appellants.
    Andrew Lynn Brasher, James W. Davis, William Glenn Parker, Jr., Winfield J. Sinclair, Alabama Attorney General’s Office, Montgomery, AL, for Defendants-Appel-lees.
    Before WILSON, MARTIN and HIGGINBOTHAM, Circuit Judges.

       Honorable Patrick E. Higginbotham, United States Circuit Judge for the Fifth Circuit, sitting by designation.

   MARTIN, Circuit Judge:

For over fifty years, the Alabama Democratic Conference (“ADC”) has been dedicated to communicating with black voters in. Alabama and encouraging them to support candidates for public office that the organization believes would best represent their interests. The ADC has grown.to become the largest grassroots political organization in Alabama, and it is active throughout the state. As part of the effort to build support for its endorsed candidates, the ADC is actively involved ,in elections in Alabama and regularly raises and spends money in connection with state elections.

In 2010, Alabama made changes to its election law that impacted the'ADC’s ability to raise and spend money in state elections. One of these changes prevented the ADC from continuing to raise money from political action committees (“PACs”), which had been an important source of funding for the ADC’s election activity. The organization brought a legal challenge to Alabama Code § 17—5—15(b), which limited the ADC’s fundraising abilities. This statute is known as the “PAC-to-PAC transfer ban.” The District Court upheld this ban against the ADC’s constitutional challenge. In this appeal, the ADC challenges the District Court’s final judgment in favor of the • State of Alabama (“the State”). The ADC argues that the PAC-to-PAC transfer ban is unconstitutional as applied because the ban violates the ADC’s First Amendment right to make independent expenditures. After careful review, and with the benefit of oral argument, we affirm the judgment of the District Court.

I.

A.

In Alabama, the Fair Campaign Practices Act (“FCPA”) governs campaign finance requirements for state elections. See Ala. Code §§ 17-5-1 to -21. Under the FCPA, it is “unlawful for any political action committee ... to make a contribution, expenditure, or any other transfer of funds to any other political action committee.” Id. § 17-5-15(b). A “political action committee” is defined as “[a]ny committee, club, association, political party, or other group of' one or more persons ... which receives or anticipates receiving contributions and makes or anticipates making expenditures to or on behalf of any Alabama state or local elected official, proposition, candidate, principal campaign committee or other political action committee.” Id. § 17—5—2(a)(13).

There is an exception to this ban on PAC-to-PAC transfers: a PAC that is not designated as a “principal campaign committee” may “make contributions, expenditures, or other transfers of funds to a principal campaign committee.” Id. § 17-5-15(b). Thus, if a PAC is set up to give money to several candidates, that PAC cannot make a contribution or expenditure to another PAC that is doing the same thing. It can contribute to or spend for only a specific type of PAC set up by a candidate for the benefit of that particular candidate. The PAC-to-PAC transfer ban is a major feature of the FCPA.

Unlike many other states, Alabama’s campaign finance law does not limit the amount of money that a person, business, or PAC may contribute directly to a candidate’s campaign. See generally id. §§ 17-5-1 to -21. The FCPA instead relies on a system of disclosure that requires regular reporting of campaign contributions and spending by candidates, corporations, and PACs. See id. § 17-5-8. It also creates an electronic searchable database of those reports. See id. § 17-5-8.1.

B.

The ADC is an Alabama-based “grassroots political organization” that was founded in 1960. Its mission is “to communicate with, educate, organize, and unify black voters,” which it carries out mostly through its ' sixty-plus local branches throughout the state. The organization endorses candidates for office, all Democrats, and attempts to get out the vote for its endorsed candidates in various ways, including a “well-known ADC yellow sample ballot distributed to voters at polling places and other locations across the state.” Its activities are “intertwined with,” but the organization is “independent of,” the state Democratic Party.

The ADC also routinely spends money in state elections to support its endorsed candidates. For this reason, the ADC is registered as a PAC- with the Alabama Secretary of State. The ADC gets the money it uses for this spending from contributions, including contributions from the Alabama Democratic Party, other PACs, and candidates. The ADC’s decision about whether to endorse a candidate is not dependent on whether a candidate contributes to the ADC. Some, but not all, of the candidates the ADC endorses contribute to the ADC through their own candidate committees.

' The Alabama legislature adopted the PAC-to-PAC transfer ban during a special session in December 2010. The ban made it illegal for the ADC’s organizational PAC to receive contributions from the Alabama Democratic Party and other PACs. Before the 2010 enactment'of the ban, the ADC raised about half its funds from these sources. In light of the new law, the ADC restructured its contribution system by establishing separate' bank accounts for candidate contributions and independent expenditures. The idea was that the funds ADC raised from other PACs would go only to the account for independent expenditures.

C.

In July 2011, the ADC sued the State to stop enforcement of § 17-5-15(b). It argued that the new law violated its First and Fourteenth Amendment rights. Specifically, the ADC asserted that because a state could not regulate independent expenditures of PACs after Citizens United v. FEC, 558 U.S. 310, 130 S.Ct. 876, 175 L.Ed.2d 753 (2010), it followed that neither could a state, regulate contributions to PACs used solely for independent expenditures. Ala. Democratic Conference v. Broussard (“ADC I”), 541 Fed.Appx. 931, 932 (11th Cir. 2013) (per curiam) (unpublished). The ADC challenge thus went to funds it got from other PACs and then placed into a separate bank account that was used only for independent expenditures. Id.

The District Court granted summary judgment in favor of the ADC. Id The District Court found the PAC-to-PAC transfer ban unconstitutional as it applied to the ADC because the law infringed the organization’s First Amendment rights. Id. It enjoined the State from enforcing the law against contributions that the ADC intended to deposit directly into the separate account used only for independent expenditures. Id

The State appealed this ruling, and this Court reversed the District Court, stating that “Citizens United d[id] not render § 17-5-15(b) unconstitutional as applied” to the ADC, at least on the record then before it. Id. at 935. This Court’s, ruling observed that “[i]n prohibiting limits on independent expenditures, Citizens United heavily emphasized the independent, uncoordinated nature of those expenditures, which alleviates concerns about corruption.” Id But the independence of ,an organization like the ADC, which both makes independent expenditures and contributes directly to candidates, “may be called into question and concerns of corruption may reappear.” Id. The concern is about the appearance of corruption. Even if there is no actual corruption, “the public may believe that corruption continues to exist, despite the use of separate bank accounts, because both accounts are controlled and can be coordinated by the same entity.” Id. (emphasis added).

This Court decided that the question of “whether thé ‘ establishment of separate bank accounts by ADC ... eliminates all corruption concerns is a question of fact.” Id. at 936. In doing so, we refused to “hold as a matter of law that the State’s interest in preventing corruption or- the appearance of corruption is insufficient to justify contribution limits on funds used for independent expenditures when the receiving organization also makes campaign contributions.” Id at 935. Because “the State presented ample evidence of possible corruption” to create a disputed issue of material fact, this Court concluded that summary judgment was inappropriate and remanded the case to the District Court. Id. at, 936. We instructed the District Court to further develop the facts about “[w]hether the [state’s] anti-corruption interest is sufficient in light of the evidence in the record in this case, and whether the transfer ban is a closely drawn means of furthering that interest..” Id. .

On remand, the ADC and the State each sought summary judgment after discovery. The District Court denied both motions, but ruled on the merits that § 17—5—15(b) is constitutional as applied to the ADC. The court observed that under Supreme Court precedent, “the only sufficiently important interest that will support the PAC-to-PAC transfer ban is preventing quid pro quo corruption or the appearance thereof.” It found that the ADC’s organizational structure triggered this concern. Although the ADC operated two bank accounts- to keep its candidate contributions separate from its independent' expenditures, “these two accounts are controlled by the same entity and people.” Neither was there any “evidence to indicate there is any organizational separation with respect to the two accounts to-alleviate any potential appearance of corruption” or “any other internal controls to safeguard against the risk that contributions, even if formally earmarked for independent expenditures, could be funnelled to a candidate.” On this record, the District Court found that the State had a valid corruption concern with respect to the ADC.

: The District Court went on to find that the PAC-to-PAC transfer ban was sufficiently closely drawn to further the State’s anti-corruption interest. It found the tailoring sufficient because there was no evidence. “that a more narrowly tailored solution, such [as] a limit on the amount another PAC could contribute to [the] ADC,- would adequately protect the State’s interest” in preventing corruption “[i]n light' of [the] lack of evidence of organizational separation or other safeguards” in the ADC’s structure. The District Court also found that “the impact of the PAC-to-PAC transfer ban on the ADC’s associational rights is minimal” given that the ADC can still receive unlimited contributions from individuals and make both unlimited contributions to candidates as well as unlimited independent expenditures. It "is the ADC’s appeal of this decision we consider here.

II.

We review .the District Court’s legal rulings de novo, and its findings of fact for clear error. Tartell v. S. Fla. Sinus & Allergy Ctr., Inc., 790 F.3d 1253, 1257 (11th Cir. 2015). We will not disturb findings of fact unless “after viewing all the evidence, we are left with the definite and firm conviction that a mistake has been committed.”. Id. (quotation omitted). Because we are the second Eleventh Circuit panel to review this case, we are bound by the legal conclusions from the earlier decision under the law of the case doctrine. This That & the Other Gift & Tobacco, Inc, v. Cobb Cty., 439 F.3d 1275, 1283 (11th Cir. 2006) (per curiam).

Political contributions and spending “both fall within the First Amendment’s protection of speech and political association.” FEC v. Colo. Republican Fed. Campaign Comm., 533 U.S. 431, 440, 121 S.Ct. 2351, 2358, 150 L.Ed.2d 461 (2001). Limitations on political expenditures “impose significantly more severe restrictions on protected freedoms of political expression and association than do [ ] limitations on financial contributions.” Buckley v. Valeo, 424 U.S. 1, 23, 96 S.Ct. 612, 636, 46 L.Ed.2d 659 (1976) (per curiam). Compared to restrictions on spending, which receive a higher level of scrutiny, “restrictions on political contributions have been treated as merely ‘marginal’ speech restrictions subject to relatively complaisant review under the First Amendment, because contributions lie closer to the edges than to the core of political expression.” FEC v. Beaumont, 539 U.S. 146, 161, 123 S.Ct. 2200, 2210, 156 L.Ed.2d 179 (2003). This is because “the transformation of contributions into political debate involves speech by someone other than the contributor.” Buckley, 424 U.S. at 21, 96 S.Ct. at 636. Expenditures by a PAC that are coordinated with a candidate are treated as contributions to that candidate. See id. at 46-47, 96 S.Ct. at 647-48.

A law limiting contributions is valid “if the State demonstrates a sufficiently important interest” and the law is “closely drawn” to serve that state interest, even if there is a “significant interference” with political association. Id. at 25, 96 S.Ct. at 638 (quotation omitted). This standard is a “lesser demand” than strict scrutiny. Beaumont, 539 U.S. at 162, 123 S.Ct. at 2210; see also McCutcheon v. FEC, — U.S. -, 134 S.Ct. 1434, 1444, 188 L.Ed.2d 468 (2014) (plurality opinion) (noting that strict scrutiny would require that the “regulation promote[ ] a compelling interest and is the least restrictive means to further the articulated interest”). The goal of this “less rigorous standard of review” is to give the legislature “sufficient room to anticipate and respond to concerns about circumvention of regulations designed to protect the integrity of the political process.” McConnell v. FEC, 540 U.S. 93, 137, 124 S.Ct. 619, 656-57, 157 L.Ed.2d 491 (2003), overruled on other grounds by Citizens United, 558 U.S. 310, 130 S.Ct. 876, 175 L.Ed.2d 753; see also Beaumont, 539 U.S. at 155, 123 S.Ct. at 2207 (“Reference to legislative choice is warranted particularly when Congress regulates campaign contributions, carrying as they do a plain threat to political integrity and a plain warrant to counter the appearance and reality of corruption.”).

III.

The ADC argues here that the PAC-to-PAC transfer ban is unconstitutional as it applies to the ADC’s separate account used only for independent expenditures. The ADC makes its challenge based on each prong of the test in Buckley for upholding a law that limits contributions. See 424 U.S. at 25, 96 S.Ct. at 638. First, the ADC argues that the District Court erred by placing the burden on' the ADC to prove that the law was not sufficiently closely drawn to serve an important state interest. Second, it argues that the State does not have a sufficiently important interest in banning PAC-to-PAC transfers used only for independent expenditures. Third, it argues that the PAC-to-PAC transfer bah does' not actually promote any state interest. Finally, it argues that the law is not sufficiently closely drawn to protect the State’s purported interests. We will address each argument in turn.

A.

The ADC first argues that the District Court wrongly placed the burden of proof, requiring ADC to prove that the law was not sufficiently closely drawn to serve an important state interest rather than requiring the State to justify its law. We find no merit in this argument.

“When the Government restricts speech, the Government bears the burden of proving the constitutionality of its actions.” McCutcheon, 134 S.Ct. at 1452 (plurality opinion) (quoting United States v. Playboy Entm’t Grp., Inc., 529 U.S. 803, 816, 120 S.Ct. 1878, 1888, 146 L.Ed.2d 865 (2000)). A state can meet its burden of proof by showing that its law. furthers a sufficient state interest, such as preventing quid pro quo corruption or its appearance. See McCutcheon, 134 S.Ct. at 1444, 1452. To meet this burden, a state must provide evidence that is “enough to show [] the substantiation of the [legislative] concerns” driving its enactment. Nixon v. Shrink Mo. Gov’t PAC, 528 U.S. 377, 393, 120 S.Ct. 897, 907, 145 L,Ed.2d 886 (2000). This substantiation may be made through pieces of evidence such as newspaper ac: counts, reports, and affidavits. See id.

In upholding § 17-5-15(b), the District Court found that:

[T]he ADC operates two bank accounts for purposes of keeping its funds for contributions to candidates separate from its funds to be used for independent expenditures. It is undisputed that these two accounts are controlled by the same entity and people. These two facts are all the court knows about how the ADC runs these separate accounts, The ADC did not present any evidence to indicate there is any organizational separation with respect to the two accounts to alleviate any potential appearance of corruption. Additionally, aside from the creation of two accounts, the ADC has not offered any evidence to indicate that it has implemented any other internal controls to safeguard against the risk that contributions, even if formally earmarked for independent expenditures, could be funneled to a candidate.

This emphasized language does not demonstrate an improper shift of the burden to the ADC.

The District Court found that the State provided newspaper and other evidence that the appearance of corruption was an issue in Alabama before § 17-5-15(b) was enacted. The court specifically referenced two incidents in which there was at least an appearance that PAC-to-PAC transfers were operating to disguise the true source of contributions in just the way the law was intended to prevent. The District Court then engaged in a lengthy analysis of the ADC’s organizational structure in an effort to identify any features that might address the State’s anticorruption concern. The District Court properly allocated the burden of proof as between these parties. Although- the District Court observed that the ADC presented no evidence to rebut the' State’s justification for regulating transfers between PACs, we conclude it did not improperly shift the burden of proof to the ADC.

B.

The State advances two interests to justify its decision to regulate contributions through the PAC-to-PAC transfer ban: anti-corruption and transparency. The ADC argues in turn that these interests are not sufficient to justify the law.

The Supreme Court has recognized that “preventing corruption or the appearance of corruption are the only legitimate and compelling government interests thus far identified for restricting campaign finances.” FEC v. Nat’l Conservative Political Action Comm.-, 470 U.S. 480, 496-97, 105 S.Ct. 1459, 1468, 84 L.Ed.2d 455 (1985). In Citizens United, the Supreme Court announced that “independent expenditures ... do not give rise to corruption or the appearance of corruption” so the state’s anti-corruption interest was no longer sufficient to justify certain regulations of independent expenditures. 558 U.S. at 357, 130 S.Ct. at 909. In contrast, anti-corruption concerns are a well-established justification for a state’s decision to regulate political contributions. See Buckley, 424 U.S. at 26-27, 96 S.Ct. at 638-39. Citizens United did not alter this longstanding rule. See 558 U.S. at 357, 130 S.Ct. at 908; see also McCutcheon, 134 S.Ct. at 1441 (stating, after Citizens United, that “Congress may regulate campaign contributions to protect against corruption or the appearance of corruption”). It is a matter of law, therefore, that the State’s interest in preventing corruption or its appearance is sufficiently important to justify its decision to regulate political contributions and those transactions, including donations to PACs, that relate to or appear to relate to such contributions.

The first time this case came to our Court, the panel decided that, because the ADC brought an as-applied challenge to the PAC-to-PAC transfer ban, the issue of whether anti-corruption concerns were a sufficient state interest was a question of fact. See ADC I, 541 Fed.Appx. at 936. The panel observed that “the State presented ample evidence of possible corruption through PAC-to-PAC transfers to withstand summary judgment” and remanded to the District Court to decide “[w]hether the anti-corruption interest is sufficient in light of the evidence in the record in this case.” Id On remand, the District Court found sufficient evidence that appearance-of-corruption concerns justified the State’s decision to regulate in this area. This finding was not clearly erroneous.

We need not address the issue of whether transparency is alone a sufficient legal justification for a state to regulate campaign contributions, because the District Court rightly found that “transparency plainly is related to and furthers the State’s interest in preventing corruption and the appearance of corruption insofar as one can only assess whether there has been a quid pro quo exchange if one is able to identify the party making the payment,” This finding is in keeping with the Supreme Court’s conclusion that “disclosure requirements deter actual corruption and avoid the appearance of corruption by exposing large contributions and expenditures to the light of publicity,” because “[a] public armed with information about a candidate’s most generous supporters is better able to detect any post-election special favors that may be given in return.” Buckley, 424 U.S. at 67, 96 S.Ct. at 657. The State’s proffered interest in transparency thus ties into its interest in preventing corruption to justify regulating transfers between PACs.

C.

The ADC next argues that the PAC-to-PAC transfer ban does not sufficiently serve the State’s interest in preventing quid pro quo corruption or the appearance of quid pro quo corruption. It reasons that, in the wake of the Supreme Court’s decision in Citizens United, the State no longer has a cognizable corruption-based interest in restricting independent expenditures. Because the ADC has separate bank accounts for candidate contributions and independent expenditures, it argues that the State has no anti-corruption interest in regulating contributions into the account that the ADC uses only for independent expenditures.

It is true that in Citizens United, the Supreme Court recognized that “independent expenditures do not lead to, or create the appearance of, quid pro quo corruption.” 558 U.S. at 360,130 S.Ct. at 910. The Court said, “[b]y definition, an independent expenditure is political speech presented to the electorate that is not coordinated with a candidate.” Id. This means a state’s interest in preventing corruption may no longer justify regulating independent expenditures when there is no other form of contribution to or coordination with a candidate involved.

Other Circuits, applying the logic of Citr izens United, have uniformly invalidated laws limiting contributions to PACs that made only independent expenditures. See, e.g., Republican Party of N.M. v. King, 741 F.3d 1089, 1097 (10th Cir. 2013); N.Y. Progress & Prot. PAC v. Walsh, 733 F.3d 483, 487 (2d Cir. 2013); Texans for Free Enter, v. Tex. Ethics Comm’n, 732 F.3d 535, 538 (5th Cir. 2013); Wis, Right to Life State Political Action Comm, v. Barland, 664 F.3d 139, 154 (7th Cir. 2011); Thal-heimer v. City of San Diego, 645 F.3d 1109, 1121 (9th Cir. 2011); SpeechNow.org v. FEC, 599 F.3d 686, 696 (D.C. Cir. 2010) (en banc). These opinions generally reason as follows: “In light of the Court’s holding as a matter of law that independent expenditures do not corrupt or- create the appearance of quid pro quo corruption, contributions to groups that make only independent expenditures also cannot corrupt or create the appearance of corruption. The Court has effectively held that there is no corrupting ‘quid’ for which a candidate might in exchange offer a corrupt ‘quo.’” SpeechNow.org, 599 F.3d at 694-95; see also, e.g., Republican Party of N.M., 741 F.3d at 1096-97 (“If an entity can fund unlimited political speech on its own without raising the threat of corruption, no threat arises from contributions that create the fund.”).

This reasoning does not extend to contributions made to an organization like the ADC that makes both independent expenditures and candidate contributions. Three of our sister Circuits have addressed the question we face here. That is, how to treat contribution limitations when the contribution will be put into a separate bank account used only for independent expenditures. They have split in answering the question of whether keeping separate bank accounts for independent expenditures and campaign contributions is sufficient to eliminate the possibility of corruption or its appearance so as to render contribution limits unconstitutional for the independent expenditure-only accounts.

On one side of the debate, the Tenth Circuit concluded that, where an organization makes both candidate contributions and independent expenditures, separate bank accounts are sufficient to alleviate corruption concerns. See Republican Party of N.M., 741 F.3d at 1097. In upholding a preliminary injunction, the court examined the facts of the case to conclude that “under the record we have, [the organization at issue] adheres to contribution limits for donations to its candidate account.” Id. It determined that “no anti-corruption interest is furthered as long as the [organization] maintains an account segregated from its candidate contributions” for the purpose of making independent expenditures. Id. The Tenth Circuit observed that the organization could “not pass along the donors’ funds to candidates or coordinate with candidates in making expenditures” if it accepted “unlimited contributions for independent expenditures” into a separate account. Id. at 1102. And “[b]ecause [the organization] maintains such a segregated account,” as evidenced by the record before the court, the Tenth Circuit concluded that the challenged state contribution limits were unconstitutional as applied to the independent expenditure-only account. Id. at 1097.

Conversely, the Second and Fifth Circuits both concluded that a state’s interest in preventing corruption and the appearance of corruption was a permissible justification for regulating hybrid organizations, even where they had separate bank accounts. The Second Circuit established that having a separate bank account intended for independent expenditures was not sufficient to alleviate a state’s corruption concern when the organization also maintained an “otherwise indistinguishable” candidate contribution account. Vt. Right to Life Comm,, Inc, v. Sorrell, 758 F.3d 118, 143 (2d Cir. 2014). Two organizations were at issue in the Second Circuit’s case: a nonprofit entity and a PAC formed by that entity, which purported to exist only to make independent expenditures. Id. at 122. The PAC brought an as-applied challenge to the state’s contribution limits, arguing that those limits could not be imposed on it when the PAC made only independent expenditures. Id. at 125.

The Second Circuit concluded that the state contribution limit was properly applied to the PAC. Although the PAC was intended to make only independent expenditures, it was in fact “enmeshed financially and organizationally” with another PAC controlled by the same organization that made direct contributions to candidates. Id. at 141. The court ruled that the creation of separate bank accounts for the two PACs was not by itself sufficient, because—though “[a] separate bank account may be relevant”—the separate account was not “enough to ensure there is a lack of ‘prearrangement and coordination’ ” with candidates standing alone. Id. The court concluded that “[s]ome actual organizational separation between the groups must exist to assure that the expenditures are in fact uncoordinated.” Id. It suggested that, in deciding whether the independent expenditure-only entity was “functionally distinct” from an entity that made direct or coordinated contributions, that court would look to factors such as “the overlap of staff and resources, the lack of financial independence, the coordination of activities, and the flow of information between the entities.” Id. at 142.

Examining those factors, the Second Circuit observed that the only proof of separation provided by the organization were the facts that two separate committees existed within its organizational documents, and that the PAC maintained a separate bank account intended only for independent expenditures. Id. at 143. The court said, “the fact that there are two separate bank accounts does not mean the funds were actually treated as separate” where there was evidence that funds had been transferred between the related PACs and that fundraising efforts were performed jointly between the PACs. Id. The court examined “the organizational structure of the groups,” observing that: the same organization maintained control over both PACs’ “structure and finances”; they “sharefd] a substantial overlap in membership”; and they engaged in joint organizational activities. Id. at 143-44. Based on this substantial “overlap of staff and resources, the fluidity of funds, and the lack of any informational barrier between the, entities,” the court found that the independent expenditure-only entity was not sufficiently distinct from other parts of the hybrid organization, so the state had an anti-corruption interest in imposing its contribution limits on that entity. Id. at 145.

The Fifth Circuit also concluded that a state had a valid anti-corruption interest in ensuring that a contribution was used only for independent expenditure purposes, when that contribution would have otherwise violated state contribution limits. See Catholic Leadership Coal, of Tex, v. Reis-man, 764 F.3d 409, 443 (5th Cir. 2014). In the Fifth Circuit case, a nonprofit organization formed a separate general-purpose PAC to engage in direct political advocacy-ahead of an election, and that PAC purported to make only independent expenditures. Id. at 418-19. The nonprofit sought to make an in-kind contribution of its email list of supporters to the PAC so the PAC could use the email list in support of its independent expenditures. Id. at 419. State law prevented this in-kind contribution, however, because the PAC was not registered as an independent expenditure-only entity. Id. The organization and PAC challenged the state law as applied to their attempt to transfer the email list. See id. at 442.

The Fifth Circuit concluded that, while the state “does not have an anticorruption interest in limiting contributions intended to support independent expenditures,” it “does have an anti-corruption interest in ensuring those donations facilitate only independent expenditures.” Id. at 443. Even though the organizations said the list would be used only for independent expenditures, the "court determined that “the state is permitted to undertake some reasonable measures to ensure that any contribution limitations are not circumvented.” Id. at 444. It observed that the organizations “seem[ed] almost willful in not explaining what safeguards are in place to ensure the donated email mailing list will only be used in support o'f independent expenditures other than the [PAC’s] own good intentions.” Id. The court determined this “failure to so explain any actual safeguards beyond potentially opening a separate bank account to deposit contributions raised with the email list [wa]s dispositive of their as-applied challenge.” Id. While the Fifth Circuit declined to “weigh in on the precise safeguards that must be present,” it held that “the state’s interest in preventing quid pro quo corruption and its appearance permits the state to insist, at the very least, that there is some safeguard before permitting the contribution[ ].” Id.

The well-reasoned approach of the Second and Fifth Circuits provides guidance here. The question of whether a state has a sufficient anti-corruption interest in setting contribution limits like Alabama’s PAC-to-PAC transfer ban to regulate contributions made to a hybrid organization but intended only for independent expenditures, can be answered by an examination of the facts about the structure and operations of the hybrid organization. An account set up for independent expenditures can pass muster under a state’s interest in anti-corruption only when it is truly independent from any coordination with a candidate.

To create the necessary independence, an organization must do more than merely establish separate bank accounts for candidate contributions and independent expenditures. There must be safeguards to be sure that the funds raised for making independent expenditures are really used only for that purpose. There must be adequate account-management procedures to guarantee that no money contributed to the organization for the purpose of independent expenditures will ever be placed in the wrong account or used to contribute to a candidate. We will not undertake to make an exhaustive list of necessary safeguards here, but we will join the Second Circuit in considering factors such as “the overlap of staff and resources, the lack of financial independence, the coordination of activities, and the flow of information between the entities” in deciding whether sufficient safeguards exist. Vt. Right to Life Comm.,- 758 F.3d at 142. We also find guidance from the Fifth Circuit admonition that the safeguards must involve more than the organization’s “own good intentions.” Catholic Leadership Coal, of Tex., 764 F.3d at 444.

Beyond sufficient structural separations within the organization, it is also necessary that the same people controlling the contributions to candidates are not also dictating how the independent expenditure money is spent. And there must be more than simply naming different treasurers for different accounts. Different people must functionally control the spending decisions for the different accounts. See Vt. Right to Life Comm., 758 F.3d at 143-44. Having the same person in control of both accounts threatens the perceived “independence” of the independent expenditure-only account. How could a person simply “forget,” for example, everything she knows about coordinated spending efforts or contributions .to candidates when turning her focus to the independent expenditure-only account?

We now examine how the District Court applied this framework. The District Court found that the ADC’s separate accounts were not sufficient to alleviate the State’s valid corruption concern. The court found that “these two accounts are controlled by the same entity and people” and observed that the ADC “did not present any evidence to indicate there is any organizational separation with respect to the two accounts to alleviate any potential appearance of corruption.” It also noted that the ADC did hot “offer[ ] any evidence to indicate that it has implemented any other internal controls to safeguard against the risk that contributions, even if formally earmarked for independent expenditures, could be funneled to a candidate.” The record supports the findings of the District Court, which were not clearly erroneous. The District Court properly recognized that the PAG-to-PAC transfer ban served the State’s anti-corruption interest as applied to the ADC’s account for independent expenditures.

D.

The ADC finally argues that the PAC-to-PAC transfer ban is not sufficiently closely drawn to the State’s interest in preventing corruption. In deciding whether a law is sufficiently “closely drawn,” we “assess the fit between the stated governmental objective and the means selected to achieve that objective.” McCutcheon, 134 S.Ct. at 1445 (plurality opinion) (citing Nat’l Conservative Political Action Comm., 470 U.S. at 496-501, 105 S.Ct. at 1468-70). There must be “a fit that is not necessarily perfect, but reasonable; that represents not necessarily the single best disposition but one whose scope is in proportion to the interest served, that employs not necessarily the least restrictive means but a means narrowly tailored to achieve the desired objective.” Id. at 1456-57 (quoting Bd. of Trs, of State Univ. of N.Y. v. Fox, 492 U.S. 469, 480, 109 S.Ct. 3028, 3035, 106 L.Ed.2d 388 (1989)) (alterations adopted). A law can survive this review if it “avoid[s] unnecessary abridgment”, of First Amendment rights. Buckley, 424 U.S. at 25, 96 S.Ct. at 638.

In determining whether a contribution limit is “closely drawn,” the Supreme Court has suggested that “the amount, or level, of that limit could make a difference.” Randall v. Sorrell, 548 U.S. 230,247, 126 S.Ct.' 2479, 2491, 165 L.Ed.2d 482 (2006). A restriction will generally not be overturned when it does not “have a severe impact on political dialogue.” Id. (quotation omitted). Restrictions with such an impact are suspect because they “prevent ] candidates and political committees from amassing the resources necessary for effective advocacy.”. Id. (quotation omitted). Courts approach a legislature’s decision about the scope of a law, and whether it is precise enough to carry out a state’s objectives with deference. Typically courts exercise independent judgment on the proper fit only “as a statute reaches th[e] outer limits” of reasonable tailoring. Id. at 249,126 S.Ct. at 2492.

In light of the record developed by the District Court, the limit imposed on the ADC by Alabama’s PAC-to-PAC transfer ban is “closely drawn” to the State’s interest in preventing corruption. The evidence shows that, as applied to the ADC, the ban serves an important anti-corruption interest while only marginally impacting political dialogue.

The District Court noted ample evidence that, before the law’s passage, PAC-to-PAC transfers were viewed by Alabama citizens as a tool for concealing donor identity, thus creating the appearance that PAC-to-PAC transfers hide corrupt behavior. The Alabama legislature acted to prevent this' specific category of behavior when it enacted the PAC-to-PAC transfer ban. And,' as discussed above, the ban serves this narrow purpose as applied to the ADC. Because of the ADC’s organizational structure, PAC donations to the ADC give rise to concerns about shadowy campaign contribution activity. Under the PAC-to-PAC transfer ban, contributions to the ADC can no longer pass through PACs in a way that could obscure the true source of the funds. See Buckley, 424 U.S. at 67, 96 S.Ct. at 657; Sorrell, 548 U.S. at 265, 126 S.Ct. at 2501 (Kennedy, J., concurring) (PACs “can manipulate the system and attract their own elite power brokers, who operate in ways obscure to the ordinary citizen.”).

As applied to the ADC, the ban serves this important anti-corruption purpose without “severely] impact[ing] ... political dialogué.” Sorrell, 548 U.S. at 247, 126 S.Ct. at 2491 (quotation omitted). Under the ban, the' ADC can still “amass[ ] the resources necessary for effective advocacy.” Id. The ban does not limit the amount of money the ADC can raise; it only limits the ADC’s ability to raise money through a specific type of donation—PAC-to-PAC transfers. Moreover, the ban does not directly affect the ADC’s campaign contributions or independent expenditures. The ADC can continue to make unlimited contributions and independent expenditures. While the ban does bar the ADC from contributing to other PACs, the ADC has offered no evidence that it contributed to other PACs prior to the ban or that it seeks to now.

For these reasons, we conclude that the PAC-to-PAC transfer ban as applied to the ADC is sufficiently “closely drawn to avoid unnecessary abridgement of associational freedoms.” McCutcheon, 134 S.Ct. at 1444 (quotation omitted). In light of the ADC’s organizational structure, it is difficult to imagine a less restrictive means of regulation that would still address the corruption concerns arising from PAC contributions to the ADC. Of course, the PAC-to-PAC transfer ban does not even have to be the least restrictive means of furthering Alabama’s anti-corruption interest in order to survive constitutional scrutiny. Under the less rigorous “closely drawn” standard, the ban need only be “narrowly tailored to achieve [Alabama’s] desired objective.” Id. at 1456-57 (quotation omitted). This standard has been met.

The PAC-to-PAC transfer ban is closely drawn to meet Alabama’s interest in preventing quid pro quo corruption (or its appearance) as applied to the ADC here. We affirm the District Court’s finding on the merits that § 17-5-15(b) is constitutional as applied to the ADC.

AFFIRMED.

      . The District Court noted a series of newspaper articles and testimony by the State highlighting that, before the PAC-to-PAC transfer ban, “the appearance in Alabama was that donors were attempting to conceal donations to candidates and other groups by laundering said donations through multiple PACs.” Donors were able to conceal these donations by making “a contribution to one PAC, which in turn made a contribution to another PAC, which then made a contribution to yet another PAC and so on, such that by the time the money was delivered to a candidate there was no way to effectively trace the contribution from the original donor to the ultimate recipient." Because Alabama does not limit the number of PACs any individual may create, “a single campaign operative could control all of the PACs in a contribution chain and carry out a scheme to conceal the source of a campaign contribution by simply moving money from one PAC to another.”