9th Circuit Considering Case Arguing Federal Foreign Contribution Ban Cannot Apply to Actions in State or Local Elections

Josh Gerstein for Politico:

Singh is appealing a 2016 federal conviction on charges a Mexican real estate developer secretly footed the bill for a quarter million dollars-worth of digital campaign consulting that Singh provided two San Diego mayoral candidates.

The source of the funds for Singh’s campaign work, businessman Jose Azano, has homes in San Diego and Miami and spent much of his time in the U.S., but is not an American citizen or green card holder. He was allegedly hoping to gain influence in a bid to redevelop San Diego’s waterfront.

Singh’s lawyers have leaned on the Tenth Amendment to support their appeal. The clause gives states and the people the powers that the Constitution does not expressly delegate to Congress.

“Congress’s effort to trample on the states’ ability to structure their political processes as they see fit violates the Tenth Amendment,” Singh attorneys Harold Krent and Todd Burns wrote in a recent brief.

Singh’s defense team notes that enforcing a ban on foreigners donating to virtually any U.S. electoral campaign has had some bizarre results. For instance, various localities including Takoma Park, Maryland, San Francisco and Chicago allow non-citizens to vote in local elections of some sort. However, under the broad federal ban, it is illegal for at least some of those foreigners to donate to candidates in those same races.

“If the eligibility of foreign nationals to vote in state and local elections is exclusively a state/local matter, it stands to reason that the eligibility of foreign nationals to make contributions related to such elections is also exclusively a state/local matter,” Singh’s defense wrote.

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