Appellate Case: 21-8058 Document: 010110939489 Date Filed: 10/23/2023 Page: 1
`FILED
`United States Court of Appeals
`Tenth Circuit
`
`October 23, 2023
`
`Christopher M. Wolpert
`Clerk of Court
`
`PUBLISH
`
`UNITED STATES COURT OF APPEALS
`
`FOR THE TENTH CIRCUIT
`_________________________________
`
`Plaintiff - Appellee/Cross-
`Appellant,
`
`
`
`
`
`Nos. 21-8058, 21-8059, and 21-8060
`
`JOHN C. FRANK,
`
`
`
`v.
`
`DEBRA LEE, Laramie County Clerk,
`in her official capacity; CHARLES
`GRAY, Wyoming Secretary of State,
`in his official capacity; SYLVIA
`HACKL, Laramie County District
`Attorney, in her official capacity,
`
`
`
`
`Defendants - Appellants/Cross-
`Appellees.
`
`_________________________________
`
`Appeal from the United States District Court
`for the District of Wyoming
`(D.C. No. 2:20-CV-00138-NDF)
`_________________________________
`
`James Peters, Senior Assistant Attorney General (Mackenzie Williams, Senior
`Assistant Attorney General, State of Wyoming, Cheyenne, Wyoming, with him
`on the briefs), for Defendants-Appellants/Cross-Appellees Charles Gray and
`Sylvia Hackl.
`
`J. Mark Stewart of Davis & Cannon, LLP, Cheyenne, Wyoming (Catherine M.
`Young, Davis & Cannon, LLP, with him on the briefs), for Defendant-
`Appellant/Cross-Appellee Debra Lee.
`
`Stephen R. Klein of Barr & Klein PLLC, Washington, District of Columbia
`(Benjamin Barr of Barr & Klein PLLC, Chicago, Illinois, with him on the briefs)
`for Plaintiff-Appellee/Cross-Appellant.
`
`
`
`
`
`

`

`Appellate Case: 21-8058 Document: 010110939489 Date Filed: 10/23/2023 Page: 2
`
`_________________________________
`
`Before HOLMES, Chief Judge, MATHESON and ROSSMAN, Circuit
`Judges.
`
`_________________________________
`
`ROSSMAN, Circuit Judge
`_________________________________
`
`Wyoming law prohibits electioneering within 300 feet of a polling
`
`place on an election day and within 100 feet of an absentee polling place
`
`during the 45-day period when absentee voting is being conducted. Wyo.
`
`Stat. Ann. § 22-26-113 (the electioneering statute); Wyo. Stat. Ann.
`
`§ 22-6-107(b). At issue is whether these prohibitions violate the First
`
`Amendment.
`
`Plaintiff John C. Frank1 sued Wyoming state and local officials2 in
`
`federal district court under 42 U.S.C. § 1983, contending the electioneering
`
`
`1 During the pendency of this appeal, Plaintiff-Appellee/Cross-
`Appellant Grassfire LLC dissolved. On September 28, 2023, counsel for
`Grassfire LLC notified the court of this development and moved for partial
`voluntary dismissal with prejudice under Federal Rule of Appellate
`Procedure 42(b)(3). The court grants the unopposed motion, dismisses
`Grassfire as a party, and dismisses the portion of the appeal related to
`Grassfire only. Grassfire had separately challenged Wyoming’s election day
`prohibition on signature gathering, Wyo. Stat. Ann. § 22-26-113, but the
`district court left this issue unaddressed without explanation. Mr. Frank
`concedes he does not have standing to pursue this claim himself.
`
` Plaintiff sued Debra Lee, the Laramie County Clerk; Ed Buchanan,
`the Wyoming Secretary of State; and Leigh Anne Manlove, the District
`Attorney of Larimer County. As of January 3, 2023, Charles Gray succeeded
`Mr. Buchanan as Wyoming Secretary of State and Sylvia Hackl succeeded
`
` 2
`
`2
`
`

`

`Appellate Case: 21-8058 Document: 010110939489 Date Filed: 10/23/2023 Page: 3
`
`statute violated the First Amendment, facially and as applied. Mr. Frank,
`
`a Wyoming citizen, alleged the statute unconstitutionally prevented him
`
`from handing out campaign literature and displaying bumper stickers on
`
`his car within the 300-foot buffer zone. Mr. Frank also claimed the statute
`
`was overbroad because it violated the First Amendment rights of third
`
`parties who could not display campaign signs on private property falling
`
`within the statutory buffer zones.
`
`The parties filed cross-motions for summary judgment. The district
`
`court granted each in part, striking down some parts of the electioneering
`
`statute and upholding the rest. Specifically, the district court held the ban
`
`on electioneering within 300 feet of polling places on election day was
`
`unconstitutional, as was the ban on bumper stickers within the election day
`
`and absentee period buffer zones. But the district court upheld the statute’s
`
`prohibition on electioneering within 100 feet of absentee polling places. It
`
`
`Ms. Manlove as Laramie County District Attorney. Under Federal Rule of
`Appellate Procedure 43(c)(2), they are automatically substituted as parties
`in this matter.
`
`
`Mr. Gray and Ms. Lee are the chief elections officers for the State and
`Laramie County, respectively. Ms. Hackl is responsible for prosecuting
`crimes in Laramie County, including violations of the electioneering
`statute. We refer to them collectively as “Defendants.”
`
`3
`
`

`

`Appellate Case: 21-8058 Document: 010110939489 Date Filed: 10/23/2023 Page: 4
`
`also concluded there was an insufficient factual basis to consider Plaintiff’s
`
`overbreadth claim. All parties timely appealed.3
`
`Exercising jurisdiction under 28 U.S.C. § 1291, we affirm in part,
`
`reverse in part, and remand for further proceedings. We uphold the
`
`electioneering statute against Mr. Frank’s First Amendment challenge to
`
`the size of, and conduct proscribed within, the 300-foot election-day buffer
`
`zone. We reverse and remand on Mr. Frank’s constitutional challenge to the
`
`absentee buffer zone, including the electioneering conduct proscribed
`
`within that zone. Finally, we remand for the district court to adjudicate in
`
`the first instance Mr. Frank’s facial overbreadth challenge.
`
`I
`
`We begin by reciting the history of the electioneering statute and its
`
`enforcement in Wyoming. We then detail the factual and procedural
`
`background of the constitutional challenges now before us.4
`
`
`3 Defendant Lee’s appeal was docketed in case number 21-8058;
`Defendants Gray and Hackl’s in 21-8059; Plaintiff cross-appealed in
`21-8060. We consolidated the appeals.
`
`
`from Plaintiff’s verified complaint and
`facts derive
`4 These
`attachments thereto as well as the parties’ summary judgment briefing.
`
`
`4
`
`

`

`Appellate Case: 21-8058 Document: 010110939489 Date Filed: 10/23/2023 Page: 5
`
`A
`
`1
`
`The polling place is where the act of voting itself takes place. Like
`
`every other state and the District of Columbia, Wyoming regulates
`
`electioneering around polling places.5 The state’s electioneering statute
`
`provides:
`
`(a) Electioneering too close to a polling place or absentee polling place
`under W.S. 22-9-125 when voting is being conducted, consists of any
`
`5 Most jurisdictions—thirty-five states and the District of Columbia—
`prohibit electioneering within 100 feet or less of the polling location. See
`Ala. Code § 17-9-50; Ariz. Rev. Stat. Ann. §§ 16-515, 16-1018(1); Ark. Code
`Ann. § 7-1-103(a)(8); Cal. Elec. Code §§ 319.5, 18370; Colo. Rev. Stat.
`§ 1-13-714(1)(a); Conn. Gen. Stat. § 9-236; Del. Code Ann., tit. 15, § 4942;
`D.C. Code § 1-1001.10(b)(2); Idaho Code § 18-2318(1); 10 Ill. Comp. Stat. §
`5/7-41(c); Ind. Stat. Ann. §§ 3-14-3-16, 3-5-2-10; Ky. Rev. Stat. Ann.
`§ 117.235(3); Md. Code Ann. Elec. Law § 16-206(b); Mich. Comp. Laws Ann.
`§ 168.931(1)(k); Minn. Stat. Ann. §§ 204C.06(1), 211B.11(b); Mo. Rev. Stat.
`§ 115.637(18); Mont. Code Ann. § 13-35-211(1); Nev. Rev. Stat. § 293.740;
`N.H. Rev. Stat. Ann. § 659:43(II); N.J. Stat. Ann. § 19:34-15; N.M. Stat.
`Ann. § 1-20-16; N.Y. Elec. Law § 8-104(1); N.C. Gen. Stat. § 163-166.4; N.D.
`Cent. Code Ann. § 16.1-10-06(1); Ohio Rev. Code Ann. §§ 3501.30(A)(4),
`3501.35(A); Or. Rev. Stat. § 260.695(3); 25 Pa. Stat. and Cons. Stat. Ann.
`§ 3060(d); 17 R.I. Gen. Laws Ann. § 17-19-49; S.D. Codified Laws § 12-18-3;
`Tenn. Code Ann. § 2-7-111(a), (b)(1); Tex. Elec. Code Ann. §§ 61.003, 85.036;
`Vt. Stat. Ann., tit. 17, § 2508(a)(1); Va. Code Ann. § 24.2-604; Wash. Rev.
`Code Ann. § 29A.84.510; W. Va. Code §§ 3-1-37, 3-9-9; Wis. Stat. § 12.03.
`
`
`The remaining fifteen states prohibit electioneering at further
`distances, from 150, 300, or even 600 feet. See Alaska Stat. §§ 15.15.170,
`15.56.016(a)(2) (200 feet); Fla. Stat. Ann. § 102.031(4)(a) (150 feet); Ga.
`Code Ann. § 21-2-414(a) (150 feet, or within 25 feet of any voter standing in
`line); Haw. Rev. Stat. § 11-132(a), (d) (200 feet); Iowa Code § 39A.4(1)(a)(1)
`(300 feet); Kan. Stat. Ann. § 25-2430(a) (250 feet); La. Stat. Ann. § 18:1462
`(600 feet); Me. Stat. tit. 21-A, § 682(2), (3) (250 feet); Mass. Gen. Laws Ann.
`
`5
`
`

`

`Appellate Case: 21-8058 Document: 010110939489 Date Filed: 10/23/2023 Page: 6
`
`form of campaigning, including the display of campaign signs or
`distribution of campaign literature, the soliciting of signatures to any
`petition or the canvassing or polling of voters, except exit polling by
`news media, within one hundred (100) yards on the day of a primary,
`general or special election and within one hundred (100) feet on all
`other days, of any public entrance to the building in which the polling
`place is located. This section shall not apply to bumper stickers affixed
`to a vehicle while parked within or passing through the distance
`specified in this subsection, provided that:
`(i) There is only one (1) bumper sticker per candidate affixed to
`the vehicle;
`(ii) Bumper stickers are no larger than four (4) inches high by
`sixteen (16) inches long; and
`(iii) The vehicle is parked within the distance specified in this
`subsection only during the time the elector is voting.
`Wyo. Stat. Ann. § 22-26-113.6 A knowing and willful violation of the statute
`
`is a misdemeanor. Id. § 22-26-112(a).
`
`Wyoming has regulated electioneering near the polls since statehood.
`
`In 1890, Wyoming recognized the need for “a clear space for the easy
`
`entrance and exit of all electors, to and from the polling place, without the
`
`hindrance or molestation of any one.” 1890 Wyo. Sess. Laws 399. Wyoming
`
`initially prohibited electioneering within 20 feet of a polling place on an
`
`
`ch. 54, § 65 (150 feet); Miss. Code Ann. § 23-15-895 (150 feet); Neb. Rev.
`Stat. § 32-1524(3) (200 feet); Okla. Stat. Ann. tit. 26, § 7-108 (300 feet); S.C.
`Code Ann. § 7-25-180(A) (500 feet); Utah Code Ann. § 20A-3a-501(2)(a) (150
`feet); Wyo. Stat. Ann. § 22-26-113 (300 feet).
`
` Although the statute says, “100 yards,” we use “300 feet” to
`distinguish it more readily from the 100-foot buffer zone that applies to
`absentee polling places.
`
` 6
`
`6
`
`

`

`Appellate Case: 21-8058 Document: 010110939489 Date Filed: 10/23/2023 Page: 7
`
`election day, id., which was later expanded to a 20-yard (60 feet) radius, a
`
`measure intended to combat attempts to influence voting through threats
`
`of violence, bribery, or intimidation, see Joint App. at 119 (citing 1936 Wyo.
`
`Sess. Laws 43). In 1973, Wyoming increased the size of the election-day
`
`buffer zone to 100 yards (300 feet)—where it remains today. Id. at 65 (citing
`
`1973 Wyo. Sess. Laws 87). The 1973 amendments banned “the display of
`
`signs or distribution of campaign literature” within the election-day buffer
`
`zone. Id. In 1983, the electioneering statute was amended again to ban “the
`
`soliciting of signatures to any petition” and “the canvassing or polling of
`
`voters” inside the election-day buffer zone. Id. at 70.7
`
`Wyoming also regulates electioneering around absentee polling places
`
`when voting is being conducted. Absentee voting has been available in
`
`Wyoming since the early 1900s, see Wyo. Stat. Ann., ch. 142 at 570, § 2093
`
`(1910), but absentee polling places were only implemented in 2006, see 2006
`
`Wyo. Sess. Laws ch. 108, § 1; Wyo. Stat. Ann. § 22-9-125(a)(ii). Absentee
`
`polling places are open for 45 days before an election—a time when qualified
`
`absentee voters who wish to vote in-person may do so. Wyo. Stat. Ann.
`
`§§ 22-6-107(b), 22-9-125.
`
`
`7 In 1990, the legislature carved out an exception permitting exit
`polling by the media. That exception is not relevant to this appeal.
`
`7
`
`

`

`Appellate Case: 21-8058 Document: 010110939489 Date Filed: 10/23/2023 Page: 8
`
`In 2006, Wyoming again amended the electioneering statute, creating
`
`a 300-foot buffer zone around absentee polling places that would remain in
`
`place throughout the 45 days before an election. 2006 Wyo. Sess. Laws ch.
`
`108, § 1. For about a dozen years, the election-day and absentee buffer zones
`
`around polling places remained identical—300 feet. In 2018, Wyoming
`
`reduced the size of the buffer zone around absentee polling places to 100
`
`feet. 2018 Wyo. Sess. Laws 237–38.
`
`The statutory buffer zones surrounding both election-day and
`
`absentee polling places in Wyoming are the subject of Plaintiff’s facial
`
`challenge to the electioneering statute. Plaintiff’s as-applied challenge
`
`centers specifically on absentee and election-day polling places in Laramie
`
`County, Wyoming. The county has several election-day polling places,
`
`including the Laramie County Community College (“LCCC”). Private
`
`property and public spaces (like sidewalks and parks) fall within the 300-
`
`foot election-day buffer zone. Id. The county’s sole absentee polling place is
`
`located inside the atrium of the Laramie County Government Complex
`
`(“LCGC”).8
`
`
`8 The LCGC is only an absentee polling place; it is not an election-day
`polling place.
`
`8
`
`

`

`Appellate Case: 21-8058 Document: 010110939489 Date Filed: 10/23/2023 Page: 9
`
`2
`
`Wyoming enforces the electioneering statute. Poll workers are
`
`instructed to ask violators to move out of the statutory buffer zones and to
`
`call law enforcement if the violation persists. In August 2020, for example,
`
`Wyoming law enforcement cited Jennifer Horal9 for violating the
`
`electioneering statute because she was gathering signatures on Election
`
`Day at the LCCC within the 300-foot buffer zone. Ms. Horal had a sign
`
`directing “registered voters” to come her way. According to law enforcement,
`
`she was stopping cars in the LCCC parking lot and harassing poll workers.
`
`Ms. Horal maintained she was more effective gathering signatures inside
`
`the 300-foot buffer zone and had less success contacting voters at “the 100-
`
`yard boundary.” Joint App. at 292. Similar complaints of impermissible
`
`electioneering were lodged at three other election-day polling places in
`
`Laramie County during the August 2020 primary election.
`
`During prior instances of absentee voting at the LCGC, several
`
`vehicles parked within the electioneering-free buffer zone were asked to
`
`move because the cars displayed multiple campaign bumper stickers.
`
`Signature gatherers also have been asked to leave the buffer zone around
`
`the absentee-polling place.
`
`
`9 Ms. Horal is not a party in this litigation. Plaintiff submitted Ms.
`Horal’s affidavit in support of his motion for summary judgment.
`
`9
`
`

`

`Appellate Case: 21-8058 Document: 010110939489 Date Filed: 10/23/2023 Page: 10
`
`The electioneering statute also has been enforced against individuals
`
`whose private property falls within a statutory buffer zone. Poll workers
`
`have asked property owners to remove campaign signs displayed on private
`
`property or have removed the signs themselves.
`
`3
`
`Plaintiff Frank, though, has never violated the electioneering statute.
`
`Mr. Frank has previously engaged in electioneering activities including
`
`“distributing literature, knocking on doors, soliciting and placing yard
`
`signs.” Joint App. at 303. But during the 2020 election cycle, Mr. Frank
`
`conducted no electioneering activities near a polling place. He claims he
`
`wants to distribute campaign literature and display more than one large
`
`campaign bumper sticker for a single candidate within the buffer zones.
`
`However, he has chosen not to do so out of fear he would violate the
`
`electioneering statute.
`
`B
`
`Against this backdrop, we consider the case before us. On July 24,
`
`2020, Plaintiff brought this civil-rights action in federal district court in
`
`Wyoming against Defendants in their official capacities. Plaintiff’s
`
`complaint alleged in a single count that Wyoming’s electioneering statute
`
`was “unconstitutional on its face and as applied.” Joint App. at 23.
`
`10
`
`

`

`Appellate Case: 21-8058 Document: 010110939489 Date Filed: 10/23/2023 Page: 11
`
`Mr. Frank claimed the statute violated his First Amendment right to
`
`distribute campaign literature and display large bumper stickers on his
`
`vehicle within the 300-foot buffer zone at the LCCC on election days. He
`
`also asserted the electioneering statute swept too broadly, violating the
`
`First Amendment rights of third parties who own private property within
`
`the statutory buffer zones. The complaint sought declaratory and injunctive
`
`relief under 42 U.S.C. § 1983 and costs and attorneys’ fees under 42 U.S.C.
`
`§ 1988.
`
`The parties filed cross-motions for summary judgment. Plaintiff
`
`contended Wyoming’s election-day and absentee polling place buffer zones
`
`“abridged [his] rights to political speech” and “should be declared
`
`unconstitutional.” Pl. Mot. Summ. J. 10. Specifically, he argued the
`
`undisputed facts established the breadth of the electioneering restrictions,
`
`including the geographic size and temporal scope of the buffer zones, was
`
`excessive; Defendants failed to prove the necessity of such restrictions; and
`
`the impingement on First Amendment rights was “significant.” Id. at 16–
`
`25. Defendants contended Plaintiff’s § 1983 claims were barred by Eleventh
`
`Amendment immunity; he lacked Article III standing to challenge the
`
`constitutionality of Wyoming’s electioneering statute; and Defendants were
`
`entitled to summary
`
`judgment on Plaintiff’s as-applied and facial
`
`11
`
`

`

`Appellate Case: 21-8058 Document: 010110939489 Date Filed: 10/23/2023 Page: 12
`
`challenges based on controlling precedent from the Supreme Court. The
`
`district court heard oral argument on the motions.
`
`On July 22, 2021, the district court granted each motion in part. The
`
`district court determined Plaintiff had standing and rejected Defendants’
`
`sovereign immunity defense. On the merits, the district court agreed with
`
`Plaintiff that the 300-foot election-day buffer zone was unconstitutional, as
`
`was the prohibition against displaying campaign bumper stickers within
`
`both buffer zones. The district court agreed with Defendants that the 100-
`
`foot buffer zone surrounding the absentee-polling place was constitutional.
`
`As to the overbreadth challenge, the district court determined “there is an
`
`absence of factual record in the case to consider this issue.” Joint App. at
`
`419.
`
`These timely appeals followed.
`
`II
`
`We begin by considering whether Plaintiff’s claims are barred by
`
`Eleventh Amendment sovereign immunity and whether Plaintiff has Article
`
`III standing. As we explain, we agree with the district court’s
`
`determinations on both fronts and thus proceed to the merits.
`
`A
`
`Under the doctrine of sovereign immunity, “a federal court generally
`
`may not hear a suit brought by any person against a nonconsenting State.”
`
`12
`
`

`

`Appellate Case: 21-8058 Document: 010110939489 Date Filed: 10/23/2023 Page: 13
`
`Allen v. Cooper, 140 S. Ct. 994, 1000 (2020). This immunity “extends to
`
`‘suit[s] against a state official in his or her official capacity’ because such
`
`suits are ‘no different from a suit against the State itself.’” Hendrickson v.
`
`AFSCME Council 18, 992 F.3d 950, 965 (10th Cir. 2021) (alteration in
`
`original) (quoting Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989)).
`
`“However, there are three exceptions to the Eleventh Amendment’s
`
`guarantee of sovereign immunity to states.” Levy v. Kan. Dep’t of Soc. &
`
`Rehab. Servs., 789 F.3d 1164, 1168 (10th Cir. 2015).
`
`First, a state may consent to suit in federal court. Second, Congress
`may abrogate a state’s sovereign immunity by appropriate
`legislation when it acts under Section 5 of the Fourteenth
`Amendment. Finally, under Ex parte Young, a plaintiff may bring
`suit against individual state officers acting in their official
`capacities if the complaint alleges an ongoing violation of federal
`law and the plaintiff seeks prospective relief.
`Id. at 1169 (citations omitted). The parties and district court analyzed only
`
`Ex parte Young; however, the second exception—involving express
`
`congressional abrogation of a state’s Eleventh Amendment immunity, here,
`
`under § 1983—also comes into play.
`
`Defendants Gray and Hackl contend sovereign immunity bars
`
`Plaintiff’s claims against them.10 The district court rejected this assertion,
`
`
`10 Defendant Lee, the Laramie County Clerk, did not join this
`argument in district court or on appeal.
`
`13
`
`

`

`Appellate Case: 21-8058 Document: 010110939489 Date Filed: 10/23/2023 Page: 14
`
`ruling the Ex parte Young exception applied. We review a district court’s
`
`determination of state sovereign immunity de novo. Arbogast v. Kan. Dep’t
`
`of Lab., 789 F.3d 1174, 1181 (10th Cir. 2015). Like the district court, we
`
`conclude Defendants are not entitled to sovereign immunity against
`
`Plaintiff’s claims.11
`
`First, Defendants make a puzzling argument that Ex parte Young
`
`does not apply because Mr. Frank brought only a § 1983 claim. According
`
`to Defendants, injunctive relief is not available under § 1983, and therefore
`
`“§ 1983 is not the proper vehicle to bring an Ex parte Young action.”
`
`Opening Br. at 15. Defendants insist § 1983 and Ex parte Young are distinct
`
`causes of action and merging them “would require this Court to find that
`
`the named government officials were ‘persons’ subject to suit under § 1983,”
`
`contrary to the Supreme Court’s holding in Will v. Michigan Department of
`
`State Police. Reply Br. at 7. Defendants’ argument lacks merit. While Will
`
`did hold state officials were not “persons” under § 1983 for purposes of
`
`
`11 None of the parties have suggested Defendant Hackl, the Laramie
`County District Attorney, is a county official to whom state sovereign
`immunity would not apply. See Couser v. Gay, 959 F.3d 1018, 1023 & n.4
`(10th Cir. 2020). We assume she is a state official but need not decide the
`issue because we conclude sovereign immunity does not bar Plaintiff’s
`claims. See Wyo. Stat. Ann. § 9-1-804(a) (“[E]ach district attorney has
`exclusive jurisdiction to . . . [a]ct as prosecutor for the state in all felony,
`misdemeanor and juvenile court proceedings arising in the counties in his
`[or her] district . . . .”) (emphasis and second alteration added).
`
`14
`
`

`

`Appellate Case: 21-8058 Document: 010110939489 Date Filed: 10/23/2023 Page: 15
`
`damages claims, it expressly recognized, “Of course a state official in his or
`
`her official capacity, when sued for injunctive relief, would be a person under
`
`§ 1983 because ‘official-capacity actions for prospective relief are not
`
`treated as actions against the State.’” 491 U.S. at 71 n.10 (emphasis added)
`
`(citation omitted). Defendants seem to ignore this aspect of Will. In any
`
`case, as Plaintiff correctly observes, federal courts routinely consider the Ex
`
`parte Young doctrine in the context of § 1983 claims. See, e.g., Collins v.
`
`Daniels, 916 F.3d 1302, 1315 (10th Cir. 2019).
`
`Next, Defendants contend Ex parte Young does not apply because
`
`Plaintiff Frank seeks retroactive relief, including attorneys’ fees under 42
`
`U.S.C. § 1988. According to Defendants, attorneys’ fees are akin to money
`
`damages, and thus Plaintiff is not seeking “only prospective relief,” as Ex
`
`parte Young requires. We are not persuaded. The Supreme Court has
`
`generally held that attorneys’ fees associated with prospective relief are
`
`authorized under § 1988 notwithstanding the Eleventh Amendment:
`
`Congress has plenary power to set aside the States’ immunity
`from retroactive relief in order to enforce the Fourteenth
`Amendment. When it passed the [Civil Rights Attorney’s Fees
`Awards] Act [of 1976, 42 U.S.C. § 1988], Congress undoubtedly
`intended to exercise that power and to authorize fee awards
`payable by the States when their officials are sued in their
`official capacities.
`
`15
`
`

`

`Appellate Case: 21-8058 Document: 010110939489 Date Filed: 10/23/2023 Page: 16
`
`Hutto v. Finney, 437 U.S. 678, 693–94 (1978). Thus, Plaintiff’s request for
`
`attorneys’ fees under § 1988 does not implicate sovereign immunity, and
`
`Defendants have offered no contrary availing argument.
`
`Finally, Defendants contend Plaintiff Frank failed to allege an
`
`ongoing violation of federal law, as Ex parte Young requires, “because no
`
`government official has threatened to or taken any action against [him].”
`
`Opening Br. at 17. Neither Defendant Gray, the Wyoming Secretary of
`
`State, nor Defendant Lee, the Laramie County Clerk, have the requisite
`
`connection to the enforcement of the statute, according to Defendants,
`
`because they lack the authority to issue citations or prosecute Mr. Frank.12
`
`However, Plaintiff maintains these defendants do “‘have some connection
`
`with the enforcement’ of the challenged statute,” Hendrickson, 992 F.3d at
`
`965, because they are the chief elections officers with statutory duties to
`
`administer elections consistent with Wyoming’s elections laws. According
`
`to Plaintiff, claims against these officials are proper under Ex parte Young.
`
`We agree.
`
`“Under the Ex parte Young exception, a plaintiff may sue individual
`
`state officers acting in their official capacities if the complaint alleges an
`
`
`12 Defendants concede Defendant Hackl, the Laramie County District
`Attorney, has a duty to enforce the challenged statute and this argument
`does not apply to her. In any event, as we will explain, Plaintiff has
`demonstrated a credible threat of prosecution for purposes of standing.
`
`16
`
`

`

`Appellate Case: 21-8058 Document: 010110939489 Date Filed: 10/23/2023 Page: 17
`
`ongoing violation of federal law and the plaintiff seeks only prospective
`
`relief.” Id. (citing Ex parte Young, 209 U.S. 123, 159-60 (1908)). “To satisfy
`
`this exception, the named state official ‘must have some connection with the
`
`enforcement’ of the challenged statute,” id. (quoting Ex parte Young, 209
`
`U.S. at 157)—“a particular duty to ‘enforce’ the statute in question and a
`
`demonstrated willingness to exercise that duty,” id. (quoting Prairie Band
`
`Potawatomi Nation v. Wagnon, 476 F.3d 818, 828 (10th Cir. 2007)).
`
`“The secretary of state is the chief election officer for the state and
`
`shall maintain uniformity in the applications and operations of the election
`
`laws of Wyoming.” Wyo. Stat. Ann. § 22-2-103. To that end, the “secretary
`
`of state shall promulgate such rules as are necessary to maintain . . . orderly
`
`voting.” Wyo. Stat. Ann. § 22-2-121(b). The Secretary of State also has the
`
`authority to “refer any suspected violation of the Election Code to the
`
`appropriate prosecuting authority.” Wyo. Stat. Ann. § 22-26-121(d); see also
`
`id. § 22-9-125(c) (“[T]he secretary of state is authorized to adopt rules and
`
`regulations to guard against abuses of the elective franchise to include such
`
`matters as contained in W.S. 22-26-113 . . . .”). Because the Secretary of
`
`State has statutory duties and obligations to maintain uniformity in
`
`elections, ensure orderly voting, and refer election code violations for
`
`prosecution, the Secretary of State certainly has “some connection with the
`
`17
`
`

`

`Appellate Case: 21-8058 Document: 010110939489 Date Filed: 10/23/2023 Page: 18
`
`enforcement” of Wyoming’s prohibition on electioneering too close to a
`
`polling place.
`
`Though they acknowledge some of these statutory duties, Defendants
`
`insist they are nonetheless immune from suit because “those duties do not
`
`include overseeing criminal prosecutions.” Reply Br. at 11. Defendants offer
`
`no authority for their assertion that overseeing criminal prosecutions is
`
`required, and it is clearly inconsistent with applicable law that demands a
`
`state official need only have “some connection with the enforcement” of the
`
`challenged statute. Hendrickson, 992 F.3d at 965. Here, in addition to
`
`Defendant Gray’s statutory duties, there is evidence that the Secretary of
`
`State’s office has specifically fielded calls for advice related to enforcement
`
`of the statute. See Joint App. at 150. And there is no dispute Laramie
`
`County Clerk officials have asked signature gatherers to leave buffer zones
`
`and have entered private property to remove campaign signs. Thus,
`
`according to applicable law and the record developed on summary
`
`judgment, the Secretary of State and Laramie County Clerk are responsible
`
`for enforcing Wyoming’s electioneering statute. We agree with the district
`
`court: Defendants Gray and Lee may be sued under Ex parte Young.
`
`Accordingly, we affirm the district court’s ruling that Defendants are
`
`not shielded by sovereign immunity.
`
`18
`
`

`

`Appellate Case: 21-8058 Document: 010110939489 Date Filed: 10/23/2023 Page: 19
`
`B
`
`Defendants contend the district court erred in concluding Plaintiff
`
`Frank had Article III standing to bring his First Amendment challenge.13
`
`We review the district court’s rulings on standing de novo. Aptive Env’t, LLC
`
`v. Town of Castle Rock, 959 F.3d 961, 973 (10th Cir. 2020).
`
`“‘The party invoking federal jurisdiction bears the burden of
`
`establishing’ standing.” Susan B. Anthony List v. Driehaus, 573 U.S. 149,
`
`159 (2014) (citation omitted). “[S]tanding generally has three requirements:
`
`(1) an injury in fact; (2) causation; and (3) redressability.” Colo. Outfitters
`
`Ass’n v. Hickenlooper, 823 F.3d 537, 544 (10th Cir. 2016); see also Lujan v.
`
`Defs. of Wildlife, 504 U.S. 555, 560–61 (1992) (To establish Article III
`
`standing, a plaintiff must show (1) an “injury in fact,” (2) a sufficient
`
`“causal connection between the injury and the conduct complained of,” and
`
`(3) a “likel[ihood]” that the injury “will be redressed by a favorable
`
`decision.”). Addressing each in turn, we conclude Mr. Frank has standing.
`
`1
`
`“To establish . . . an injury [in fact] in the context of a pre-enforcement
`
`challenge to a criminal statute, a plaintiff must typically demonstrate
`
`(1) ‘an intention to engage in a course of conduct arguably affected with a
`
`
`13 We separately address Defendants’ argument that Plaintiff lacks
`third-party standing to bring a facial overbreadth challenge. See Part VI.
`
`19
`
`

`

`Appellate Case: 21-8058 Document: 010110939489 Date Filed: 10/23/2023 Page: 20
`
`constitutional interest, but proscribed by [the challenged] statute,’ and
`
`(2) that ‘there exists a credible threat of prosecution thereunder.’” Colo.
`
`Outfitters Ass’n, 823 F.3d at 545 (footnote omitted) (third alteration in
`
`original) (quoting Susan B. Anthony List, 573 U.S. at 159). “The threat of
`
`prosecution is generally credible where a challenged ‘provision on its face
`
`proscribes’ the conduct in which a plaintiff wishes to engage, and the state
`
`‘has not disavowed any intention of invoking the . . . provision’ against the
`
`plaintiff.” United States v. Sup. Ct. of N.M., 839 F.3d 888, 901 (10th Cir.
`
`2016) (quoting Babbitt v. United Farm Workers Nat’l Union, 442 U.S. 289,
`
`302 (1979)).
`
`The district court found Plaintiff had alleged more than a vague desire
`
`to engage in proscribed activity—Mr. Frank specifically alleged the actions
`
`he would perform but for the electioneering statute. The court also found a
`
`credible threat of prosecution because Wyoming had not disavowed
`
`enforcing the statute as applied to Plaintiff’s proposed conduct, and
`
`Ms. Horal had been cited for similar signature-gathering activities.
`
`On appeal, Defendants argue Plaintiff lacks standing because he has
`
`not met the first and third requirements we set out in Initiative and
`
`Referendum Institute v. Walker: “(1) evidence that in the past they have
`
`engaged in the type of speech affected by the challenged government action;
`
`(2) affidavits or testimony stating a present desire, though no specific plans,
`
`20
`
`

`

`Appellate Case: 21-8058 Document: 010110939489 Date Filed: 10/23/2023 Page: 21
`
`to engage in such speech; and (3) a plausible claim that they presently have
`
`no intention to do so because of a credible threat that the statute will be
`
`enforced.” 450 F.3d 1082, 1089 (10th Cir. 2006) (en banc).
`
`But as Plaintiff Frank correctly observes, a plaintiff need not
`
`establish all three elements to demonstrate an injury in fact. Walker held a
`
`plaintiff “can” satisfy the injury requ