Am. Future Fund, Inc. v. N.Y. Bd. of Elections

25-2781 Am. Future Fund, Inc. v. N.Y. Bd. of Elections United States Court of Appeals For the Second Circuit August Term 2025 Argued: March 19, 2026 Decided: November 6, 2026 No. 25-2781 AMERICAN FUTURE FUND, INC., Plaintiff-Appellant, v. NEW YORK STATE BOARD OF ELECTIONS, KATHLEEN C. HOCHUL, in her official capacity as Governor of the State of New York, LETITIA JAMES, in her official capacity as Attorney General of the State of New York, MICHAEL L. JOHNSON, in his official capacity as Chief Enforcement Counsel for the New York State Board of Elections Division of Election Law Enforcement, Defendants-Appellees. * Appeal from the United States District Court for the Southern District of New York No. 25–cv–8151, Jennifer H. Rearden, Judge. Before: WESLEY, SULLIVAN, and MENASHI, Circuit Judges. * The Clerk of the Court is respectfully directed to amend the caption as set forth above.  American Future Fund, Inc. (the “Fund”) moved below for a preliminary injunction enjoining Appellees – the New York State Board of Elections, its chief enforcement counsel, the state’s Governor, and its Attorney General (together, the “State”) – from enforcing New York’s independent expenditure disclosure law with respect to political advertisements that the Fund planned to air before the 2025 New York City Mayoral Election. The district court (Rearden, J.) denied that motion; the Fund now appeals. Upon review, we conclude that – because the Fund’s motion for a preliminary injunction sought relief for an injury related to an election that has since passed – the Fund’s appeal is moot. And because the Fund’s underlying action remains before the district court, it does not meet the mootness exception for controversies “capable of repetition, yet evading review.” FEC v. Wis. Right to Life, 551 U.S. 449, 462 (2007). We therefore DISMISS the Fund’s appeal of the denial of its request for a preliminary injunction as moot. Judge Menashi dissents in a separate opinion. KELLEN S. DWYER (Susan L. Greene, Joseph T. Burns, Holtzman Vogel Baran Torchinsky & Josefiak PLLC, Buffalo, NY; Jason B. Torchinsky, Andreas N. Episkopos, Holtzman Vogel Baran Torchinsky & Josefiak PLLC, Washington, DC, on the brief), Holtzman Vogel Baran Torchinsky & Josefiak PLLC, Washington, DC, for Plaintiff-Appellant. JUDITH N. VALE, Deputy Solicitor General (Barbara D. Underwood, Solicitor General, Daniel S. Magy, Assistant Solicitor General, on the brief), for Letitia James, Attorney General for the State of New York, New York, NY, for Defendants-Appellees. RICHARD J. SULLIVAN, Circuit Judge: American Future Fund, Inc. (the “Fund”) moved below for a preliminary injunction enjoining Appellees – the New York State Board of Elections, its chief 2 enforcement counsel, the state’s Governor, and its Attorney General (together, the “State”) – from enforcing New York’s independent expenditure disclosure law with respect to political advertisements that the Fund planned to air before the 2025 New York City Mayoral Election. The district court (Rearden, J.) denied that motion; the Fund now appeals. Upon review, we conclude that – because the Fund’s motion for a preliminary injunction sought prospective relief tethered to an election that has since passed – the Fund’s appeal is moot. And because the Fund’s underlying action remains before the district court, it does not meet the mootness exception for controversies “capable of repetition, yet evading review.” FEC v. Wis. Right to Life, 551 U.S. 449, 462 (2007). We therefore DISMISS the appeal of the district court’s denial of the preliminary injunction as moot. I. BACKGROUND New York’s independent expenditure disclosure law requires entities that spend money on political elections to register with the New York State Board of Elections and to regularly disclose certain information to the Board. See N.Y. Elec. Law § 14-107(3)–(4). The law only covers expenditures used to, among other things, advocate for or against a “clearly identified candidate,” a phrase that the law defines as a “candidate” whose “identity . . . is apparent by unambiguous 3 reference.” Id. § 14-100(12); see id. § 14-107. New York issued a regulation specifying a holistic set of factors for “determining” whether “a communication is advocating for or against a candidate.” 9 N.Y. Comp. Codes R. & Regs. § 6200.10(b)(1)(ii)(c). Concerned that these factors would cover implicit references to a candidate, and thus sweep in generic issue advocacy, the Fund challenged the regulation’s interpretation of the independent expenditure law. See App’x at 28. In particular, the Fund sought (i) a declaratory judgment holding the regulation unconstitutional both on its face and as applied to the content of five proposed advertisements, and (ii) an injunction “permanently enjoining” the State from enforcing that law against the Fund’s proposed advertisements. Id. at 34. Those five advertisements – which the Fund had planned to run across New York City, id. at 11 – criticize socialism and the Democratic Socialists of America (“DSA”). Fund Br. at 8–10. The State threatened to enforce its independent expenditure law against those ads, claiming that they referenced a “clearly identified candidate” because the only citywide candidate affiliated with the DSA in the 2025 election was Zohran Mamdani, who ran in (and eventually won) the race for Mayor. Id. at 15; State Br. at 24–25. 4  The day after filing its complaint, the Fund also moved for a preliminary injunction on an as-applied basis, arguing that the Fund should temporarily be allowed to run its proposed advertisements while it litigated the merits of its challenges to New York’s law. App’x at 43–44; see also Dist. Ct. Doc. No. 8 at 1 (“Pl.’s Mot. Prelim. Inj.”). In that motion, the Fund urged the district court to speedily enter a preliminary injunction because it planned “to speak on these political issues in the coming weeks.” Dist. Ct. Doc. No. 9 at 3 (emphasis added) (“Pl.’s Mem. L. Supp. Pl.’s Mot. Prelim. Inj.”); see also id. at 4 (similar). The Fund then emailed the district court, stating that a failure to rule before the election would constitute “a constructive denial of the motion.” State’s Addendum at 1. The district court denied the Fund’s emergency motion, and the Fund then timely appealed the denial of that motion to our Court. While we considered this appeal, the State moved to dismiss the Fund’s complaint, prompting the Fund to file a motion to stay all proceedings related to its underlying complaint. The district court granted the Fund’s motion. II. DISCUSSION Before addressing the merits of an appeal, “we have an independent duty to consider . . . subject-matter jurisdiction, including mootness.” Doe v. McDonald, 5 128 F.4th 379, 384 (2d Cir. 2025) (internal quotation marks omitted). “[S]ubject[-]matter jurisdiction ceases when an event occurs during the course of the proceedings or on appeal that makes it impossible for the court to grant any effectual relief whatever to a prevailing party.” County of Suffolk v. Sebelius, 605 F.3d 135, 140 (2d Cir. 2010) (internal quotation marks omitted). When that happens, the appeal becomes moot and “we must dismiss [it], rather than issue an advisory opinion.” Indep. Party of Richmond Cnty. v. Graham, 413 F.3d 252, 255 (2d Cir. 2005) (internal quotation marks omitted). A. The Fund’s Appeal Is Moot. This appeal is moot because the only harms the Fund alleged in its motion for a preliminary injunction concerned its ability to run the proposed advertisements in the lead up to the 2025 Mayoral Election, an event which has since transpired. As such, we are unable to grant effectual relief. The Fund urged the district court to speedily enter a preliminary injunction precisely because it planned “to speak on these political issues in the coming weeks.” Pl.’s Mem. L. Supp. Pl.’s Mot. Prelim. Inj. at 3; see also id. at 4 (similar). At no point in its preliminary injunction request did it express an intention to run these ads or materially similar ones after the election. In fact, understanding that it would soon suffer the harm 6 for which it sought the preliminary injunction, the Fund went so far as to email the district court to state that a failure to rule before the election would constitute “a constructive denial of the motion.” State’s Addendum at 1. The implication of this email is that the Fund (and the district court) understood that the injury asserted in the motion was tethered to an event, then imminent, which has now transpired: the 2025 Mayoral Election. Given the facts, we are left with no choice but to hold this appeal moot. The dissent’s arguments (echoing the Fund’s) are unpersuasive. First, it asserts that because the Fund now tells us that it plans to run similar ads in the future, we “can grant effectual relief” to the Fund. Dissent at 8. But ours is not a court of first resort. The question is not whether we could grant the Fund any relief, but whether we can grant the Fund relief from the injury it asserted in its motion, the denial of which we are reviewing on a limited, interlocutory basis, see 28 U.S.C. § 1292. We cannot. “[T]he preliminary injunction aspect of the case— the springboard for and sole subject of this appeal—no longer presents a live controversy and is therefore moot.” Knaust v. City of Kingston, 157 F.3d 86, 88 (2d Cir. 1998). In the Fund’s own words, its injury became complete upon the passage of the 2025 Mayoral Election. See State’s Addendum at 1. If the Fund faces a 7 different imminent harm, arising from a different election, see Dissent at 18–19, the required course is a new motion addressing that harm, not appellate resuscitation of an old one. Perhaps recognizing the problems with these post-hoc representations, the dissent also asserts – relying on boilerplate language in the Fund’s proposed order – that the controversy is live because the Fund initially “sought relief for the pendency of the lawsuit rather than only for the 2025 election.” Dissent at 9 (emphasis added). But the scope of relief requested is irrelevant: just because a party requests a certain amount of relief does not mean their actual injury is commensurate with that relief. And to the extent the dissent is suggesting that we should construe the request for relief as evincing an intent to run the ads beyond the 2025 race, such a construction is belied by the plain language of the motion and by the Fund’s email to the district court suggesting otherwise. See Pl.’s Mem. L. Supp. Pl.’s Mot. Prelim. Inj. at 3, 4; State’s Addendum at 1. Having sought a preliminary injunction to remedy a threatened injury tied to its plan to run the proposed advertisements before the then-impending 2025 New York City Mayoral Election, which has now occurred, the Fund’s appeal of the denial of that injunction is now moot. 8 B. No Exception to Mootness Applies. Because the underlying action remains pending in the district court, the mootness exception for disputes “capable of repetition, yet evading review,” Wis. Right to Life, 551 U.S. at 462, is inapplicable here. That exception applies only when “(1) the challenged action is in its duration too short to be fully litigated prior to cessation or expiration, and (2) there is a reasonable expectation that the same complaining party will be subject to the same action again.” Id. (internal quotation marks omitted). Where a claim “remains to be litigated in” an underlying suit, “in no sense does that claim ‘evade’ review.” City of Los Angeles v. Lyons, 461 U.S. 95, 109 (1983); accord Graham, 413 F.3d at 256. Rather, the evading-review exception exists to preserve a controversy when the alternative is that no court will reach the controversy. Here the district court will reach it, in the ordinary course, as it would have had we never heard this appeal. See Robins v. Rarback, 325 F.2d 929, 929–30 (2d Cir. 1963) (holding appeal of preliminary injunction moot while addressing merits of parallel, non-time-bound complaint). We are bound by Graham, which held that the injuries asserted in a preliminary injunction request do not evade review when the “questions [that] remain pending before the district court” “raise the same underlying legal 9 questions that are being argued [on] appeal.” 413 F.3d at 256. The dissent argues that if our logic moots the preliminary-injunction motion it also moots the complaint, Dissent at 5, 11, and that Graham can only apply if we decide the complaint is not moot. Id. at 25–26. But the salient question in Graham is not whether the underlying complaint is live but whether there is “reason to believe that the issues raised by the [Fund’s] request for permanent relief [can] be fully litigated” before the district court and, “following the entry of final judgment[,] . . . be reviewed on appeal in this court.” Graham, 413 F.3d at 256. Here, there is “reason to believe” that the issues raised by the Fund will be “fully litigated” before the district court. Id. Should the Fund move to lift the stay of the proceedings below, the district court is likely to do one of two things. It may conclude that the Fund’s as-applied challenge remains live – and indeed, it seems clear that the Fund asserted broader injuries for its as-applied challenge in its complaint than it did in its preliminary-injunction motion, see, e.g., State’s Addendum at 1. Or the district court may find the Fund’s as-applied challenge moot, at which point the controversy would evade review; if the district court also finds the controversy capable-of-repetition (which it seems to be), it would have reason to then apply the exception to mootness and “fully litigate[]” the merits of 10 the Fund’s claims. Graham, 413 F.3d at 256. From the vantage point of this appeal, the controversy is under “review” either way. The dissent likens the case before us to National Organization for Marriage v. Walsh and Wisconsin Right to Life, see Dissent at 16–17, but elides the differences between the procedural postures of those cases and this one. In National Organization for Marriage, the district court had “dismissed the case for lack of jurisdiction.” 714 F.3d 682, 687 (2d Cir. 2013) (emphasis added). A holding of mootness therefore would have left the plaintiff’s election challenge extinguished and unreviewed in toto. In Wisconsin Right to Life, the plaintiff did not appeal the denial of its first preliminary injunction but rather litigated its as-applied substantive claim in the district court, which “subsequently dismissed [the plaintiff]’s complaint.” 551 U.S. at 460. After securing a remand from the Supreme Court, the plaintiff prevailed on summary judgment, and the Court heard the case again on appeal. Id. at 460–61 (citing Wis. Right to Life v. FEC, 546 U.S. 410, 412 (2006)). Only then did the Court employ “the ‘capable of repetition, yet evading review’ doctrine.” Id. at 463–64 (internal citation omitted). The course we describe 11 today is no different from that undertaken by the plaintiff – and expressly countenanced by the Supreme Court – in Wisconsin Right to Life. 1 The dissent next argues that emergency situations themselves can evade review, even if the underlying merits actions remain pending. Dissent at 26, 30. But the dissent’s authorities, unlike the case before us, review grants of preliminary injunctions. Id. at 26, 27 & n.34 (citing, inter alia, Brown v. Chote, 411 U.S. 452, 457 n.4 (1973)). In that scenario, the defendants would suffer injuries that might evade review because the choice to pursue permanent relief in the underlying actions lies with the plaintiffs, who could voluntarily dismiss their complaints to avoid the risk of unfavorable appellate resolution. 2 Here, the Fund is the plaintiff and can move to lift the stay and continue pursuing its claims in the district court at any time. See Dist. Ct. Doc. Nos. 46–47. 1The dissent’s claim that we are creating a circuit split is even more far-fetched. See Dissent at 29–32. The Ninth Circuit’s opinion in Smith v. Helzer – which, it should be noted, came after our Court’s decision in Graham – does not even identify the relevant issue, relying instead on a precedent that reviewed not a preliminary injunction but a grant of summary judgment. 95 F.4th 1207, 1213 (9th Cir. 2024) (citing Alaska Right to Life Comm. v. Miles, 441 F.3d 773, 779–80 (9th Cir. 2006)). 2The one case cited by the dissent involving review of a denial of a preliminary injunction makes clear the action was not actually moot in the first instance. See Stewart v. Taylor, 104 F.3d 965, 969– 70 (7th Cir. 1997) (explaining it could order a new election as a remedy). 12  Finally, the dissent expresses concern that the Fund will not have time to get a judgment from the district court and appellate review of these issues before the next election. Dissent at 28–29. But it bears noting that the Fund could have requested an injunction pending appeal pursuant to Federal Rule of Appellate Procedure 8 prior to the 2025 election and did not. It also had ample opportunity to file another preliminary-injunction motion in the district court with respect to the 2026 election and declined to do so. And the Fund was free at any time to lift the stay on the merits proceedings that it requested in the district court, but again did nothing. See Dist. Ct. Doc. Nos. 46–47. So the crisis of timing highlighted by the dissent was within the Fund’s power to control. Since the 2025 election is now long over, we lack jurisdiction to consider this appeal at this time. See Knaust, 157 F.3d at 88–89. C. Appeals of Future Preliminary Injunctions Will Return to This Panel. Although we lack jurisdiction to hear this appeal, we recognize the possibility that the Fund may seek a new preliminary injunction with respect to a future election. In the event that the Fund were to make such a motion, we would be free to review a decision on that motion on an expedited basis. See Doc. No. 21. Indeed, to ensure that such review will be conducted quickly and efficiently, we 13 now direct that any appeal of a ruling on a preliminary-injunction motion – or request for emergency relief pending such appeal – be returned to this panel, which will have the benefit of the briefing submitted in connection with this appeal. Panels of this Court may direct future proceedings to themselves only in narrow and compelling circumstances. See United States v. Jacobson, 15 F.3d 19, 21– 22 (2d Cir. 1994). Given the nature of this case, we believe that such a directive is warranted here. As in Jacobson, there is reason to believe that “expedition [will be] necessary” in the event the Fund seeks a new preliminary injunction. Id. at 22. And given the tight timeframes before elections, we fear that it would be “a waste of resources and perhaps unjust as well” to require a new panel to decide a subsequent preliminary-injunction appeal substantially similar to the one now before us. Id. Though review of a new preliminary-injunction decision would involve a new appeal – as opposed to the restoration of an existing one, as was the case in Jacobson – we have not limited the practice to existing appeals. “Sometimes the panel wants a subsequent appeal in the litigation to come before it, regardless of what prompted the remand.” Jon O. Newman, Decretal Language, 70 Brook. L. Rev. 727, 734 (2005) (emphases added); see also United States v. Stillwell, 986 F.3d 196, 202 14 (2d Cir. 2021) (“In the interest of judicial economy, any further appeal in these cases shall be directed to this panel.”) (emphasis added); Rodriguez v. Gusman, 974 F.3d 108, 116–17 (2d Cir. 2020) (directing that a future appeal return to the panel); United States v. Bolin, 976 F.3d 202, 217 (2d Cir. 2020) (same). Indeed, the assignment of a subsequent appeal is even more warranted here than in these past cases, given the nature of the preliminary-injunction request in this matter. Additionally, we have not limited the procedure to instances where action must be taken by the district court in the first instance, as in Jacobson. See Time Warner Cable of N.Y.C. v. M.D. Elecs., 101 F.3d 278, 282 (2d Cir. 1996) (Feinberg, J.) (directing a future appellate proceeding to return to the panel contingent on a party filing for specific relief below); Stillwell, 986 F.3d at 201 (same). Finally, we stress the limited nature of the direction to assign future appeals to this panel. Unlike in Bolin and Stillwell, where the panels assigned themselves review of subsequent merits decisions, here the only appeals that will come back to us are those involving future preliminary-injunction motions, or related emergency motions pending such appeals. Any appeal of the district court’s final judgment will be assigned to a new panel, as in the ordinary course. See Newman, Decretal Language, supra, at 735 (“In the Second Circuit, if . . . an appeal is taken that 15 relates to a prior appeal, the clerk’s office will assign the appeal to the next panel that includes one judge of the Second Circuit who was a member of the prior panel.”). III. CONCLUSION We recognize that the Fund raises important issues of First Amendment law, and we believe those arguments deserve full consideration on the merits. But a preliminary injunction is an extraordinary remedy designed to address emergency situations that cannot wait until the full adjudication of the dispute. Grand River Enter. Six Nations, Ltd. v. Pryor, 481 F.3d 60, 66 (2d Cir. 2007). It is a scalpel to be used surgically, not a Swiss Army knife that can be switched up and altered to suit the shifting legal strategies of litigants. A cautious approach is warranted here, lest we “unnecessarily and inappropriately preempt the district court’s resolution of the controversy before it.” Graham, 413 F.3d at 257. Because the event giving rise to the emergency has passed but the Fund’s underlying claims remain before the district court, the Fund’s emergency motion presents neither a live controversy requiring immediate attention nor a moot one evading review. We therefore DISMISS the Fund’s appeal of the district court’s denial of its motion for a preliminary injunction as moot. Should either party appeal from 16 a future decision by the district court on a motion to preliminarily enjoin New York’s campaign-finance law as applied to the Fund’s proposed advertisements (or substantially similar ones) – or should either party request interim relief pending such appeal – “we respectfully direct the Clerk of this Court to return the matter to this panel for further review and adjudication.” Gusman, 974 F.3d, at 116–17. 17 25-2781 American Future Fund v. New York State Board of Elections MENASHI, Circuit Judge, dissenting: American Future Fund, Inc. (“AFF”) wants to broadcast several advertisements urging New Yorkers to oppose socialist policies. The proposed advertisements mention the Democratic Socialists of America, a political organization that regularly endorses candidates for political office. AFF has not aired its proposed advertisements, however, because it reasonably fears that the New York State Board of Elections will conclude that the advertisements reference a “clearly identified candidate,” and the Board will deem the advertisements “independent expenditures” under New York Election Law § 14-107. Such a determination by the Board would render AFF an “independent expenditure committee” and require AFF to register with the Board and to make regular disclosures. AFF brought a pre-enforcement action challenging the disclosure requirements as unconstitutional both facially and as applied to the proposed advertisements, and it sought a preliminary injunction barring the Board from enforcing the disclosure requirements against AFF for broadcasting the proposed advertisements. AFF argued (1) that § 14-107 and its implementing regulations are unconstitutionally vague as applied to the proposed advertisements because those provisions do not provide fair notice of what constitutes a reference to a “clearly identified candidate” and (2) that application of § 14-107 and its implementing regulations to the proposed advertisements violates the First Amendment because the advertisements reflect pure issue advocacy rather than electioneering or express advocacy. The district court denied AFF’s motion for a preliminary injunction because it concluded that AFF had not shown a substantial likelihood of success on the merits of its as-applied vagueness and First Amendment challenges. See Am. Future Fund, Inc. v. N.Y. State Bd. of Elections, 809 F. Supp. 3d 146, 155 (S.D.N.Y. 2025). AFF sought an expedited appeal. In its appellate briefing, the state recognizes that “[t]his appeal concerns solely plaintiff’s motion for a preliminary injunction based on its as-applied claims.” Appellees’ Br. 2. But the state argues that “both the as-applied claims and the preliminary injunction motion sought an injunction to allow plaintiff to run advertisements before an election that has now passed,” so this appeal is “moot.” Id. The state contends that “any as-applied challenge to the applicability of the disclosure requirements to plaintiff’s proposed advertisements in the future would be a different claim relating to a different election with different candidates,” so to receive an adjudication of such a claim, AFF must “bring a new as-applied challenge.” Id. at 3. 1 AFF responds that its as-applied claims and preliminary injunction motion sought relief extending beyond the 2025 election, so the appeal is “not moot.” Reply Br. 3. And even if it were, according to AFF, it would involve a controversy “capable of repetition, yet evading review.” Id. at 9 n.2. 1 See also Appellees’ Br. 30 (“Plaintiff’s preliminary injunction motion was based solely on its as-applied claims—which specifically sought to run the proposed advertisements before the 2025 election.”); id. at 22 (“The text of the proposed advertisements further confirms that the purpose of plaintiffs as-applied claims, and its preliminary injunction motion based on those claims, was solely to obtain relief for the 2025 election.”); id. at 25 (“Any as- applied challenge to the applicability of the disclosure requirements to the proposed advertisements in 2026 would therefore be a different claim relating to a different election with different candidates.”); id. at 26 (“[I]f plaintiff wants to raise a new as-applied challenge to the enforcement of the disclosure requirements to the proposed advertisements for a different election in 2026, it has ample time to do so and fully litigate such a challenge.”). 2  The majority dismisses AFF’s appeal as moot based on an argument that the state never made and to which AFF never had the opportunity to respond. According to the majority, AFF’s “motion for a preliminary injunction concerned its ability to run the proposed advertisements in the lead up to the 2025 Mayoral Election, an event which has since transpired,” rendering an appeal from the denial of that motion moot. Ante at 6. The majority agrees that if the underlying as-applied challenge is also moot, then this controversy “would evade review.” Id. at 10. But the majority refuses to consider the parties’ arguments about the mootness of the underlying as-applied challenge, insisting that those arguments must be directed to the district court. So the majority does not know whether AFF will be able to obtain review of its as-applied claims based on the complaint. Instead, the majority announces a new rule that the exception to mootness for a controversy capable of repetition yet evading review is “inapplicable” to an appeal involving a motion for a preliminary injunction because “the underlying action,” moot or not, “remains pending in the district court.” Id. at 9. This new rule lacks a basis in the case law and conflicts with the law of other circuits that apply the exception to appeals involving preliminary injunctions. Those circuits have the better view. “[T]he preliminary injunction sought is usually of the same character as that of the final injunction.” 2 In other words, a preliminary injunction is 2 11A Charles Alan Wright & Arthur R. Miller, Federal Practice & Procedure § 2947 (3d ed. 2026); see also Univ. of Texas v. Camenisch, 451 U.S. 390, 395 (1981) (“The purpose of a preliminary injunction is merely to preserve the relative positions of the parties until a trial on the merits can be held.”); De Beers Consol. Mines v. United States, 325 U.S. 212, 220 (1945) (“A preliminary injunction is always appropriate to grant intermediate relief of the same character as that which may be granted finally.”); Siskina (Owners of Cargo Lately Laden on Board) v. Distos Compania Naviera S.A. [1979] 3 typically an interim version of the permanent injunction sought on the “ultimate legal claim.” Winter v. NRDC, 555 U.S. 7, 32 (2008). That is why “[t]he standard for a preliminary injunction is essentially the same as for a permanent injunction with the exception that the plaintiff must show a likelihood of success on the merits rather than actual success.” Id. (quoting Amoco Prod. Co. v. Village of Gambell, 480 U.S. 531, 546 n.12 (1987)). So it makes sense that when a controversy is capable of repetition yet evading review, the recurring controversy will generally involve the requests for both interim and permanent relief. Even if in some cases a request for interim relief might be based on a more particularized emergency situation, it is also possible for emergency situations to recur, making the request for interim relief itself capable of repetition yet evading review. In either scenario, there is no justification for the majority’s novel rule that, whenever there is an underlying complaint, the exception is inapplicable. The understanding of the parties implicates the first scenario, and the approach of the majority implicates the second. But either way the exception applies. First, the motion for a preliminary injunction in this case sought the same relief, on an interim basis, as the complaint sought for the as-applied claims. So even if the as- applied claims were understood to relate only to the 2025 election— as the state contends—the same controversy, involving a need for both interim and permanent relief, will repeat for each election cycle and evade review if the exception does not apply. Second, given the AC 210 (HL) 256 (Lord Diplock) (appeal taken from Eng.) (“The right to obtain an interlocutory injunction is merely ancillary and incidental to the pre-existing cause of action. It is granted to preserve the status quo pending the ascertainment by the court of the rights of the parties and the grant to the plaintiff of the relief to which his cause of action entitles him, which may or may not include a final injunction.”). 4 frequency of primary and general elections, even if a court were to consider the request for interim relief to be independent of the underlying claims—as the majority apparently does—the controversy over interim relief will itself repeat and evade review. It is unsurprising that the parties have treated the motion for a preliminary injunction and the as-applied claims as seeking the same relief on interim and permanent bases. The majority emphasizes that in justifying the motion for a preliminary injunction, AFF said that it wanted “to speak on these political issues in the coming weeks.” 3 But AFF said the same thing in the underlying complaint. 4 If the as- applied claims alleged in the complaint are not moot, 5 then the preliminary injunction motion—which was based on those claims— is not moot either. And if the preliminary injunction motion is moot, then so are the underlying claims, and the whole controversy is capable of repetition yet evading review. In fact, this appeal is not moot. In its motion for a preliminary injunction, AFF did not limit its requested relief to the 2025 mayoral election. It sought a preliminary injunction barring the Board from 3 Memorandum of Law in Support of Plaintiff’s Motion for a Preliminary Injunction at 3, Am. Future Fund, Inc. v. N.Y.C. Campaign Fin. Bd., No. 25- CV-8151 (S.D.N.Y. Oct. 3, 2025), ECF No. 9 (emphasis added). 4 See App’x 11 (¶ 5) (“AFF would like to speak to New Yorkers on these important issues in the coming weeks.”); id. at 22 (¶ 44) (“As soon as possible, AFF would like a determination of its legal obligations with respect to specific communications so that it is able to plan and implement its constitutionally protected political speech for the next month.”). 5 The majority suggests that the underlying as-applied claims remain live. See ante at 10 (“[I]t seems clear that the Fund asserted broader injuries for its as-applied challenge in its complaint than it did in its preliminary- injunction motion.”). 5 subjecting AFF to § 14-107 and its implementing regulations if AFF broadcasts the proposed advertisements during the course of this litigation, which remains pending. The relief that AFF requested was not specific to any candidate or election. Indeed, AFF maintains that it wanted to run the proposed advertisements in 2026 and in future elections—and it could do so without modifying the advertisements because none of the advertisements mention a particular candidate or election. I would hold that there remains a live dispute between the parties, so the appeal is not moot. But even if it were moot, this appeal would fall within the exception to mootness for a controversy capable of repetition yet evading review. The exception would apply either based on the understanding of the parties that the preliminary injunction motion and the as-applied challenge involve the same controversy, and therefore stand or fall together, or based on the approach of the majority to consider the request for interim relief in isolation. Because the case is not moot, I would reach the merits of AFF’s appeal and hold that the district court abused its discretion in denying the motion for a preliminary injunction. The district court erred in holding that AFF was unlikely to succeed on the merits of its as- applied First Amendment claim. Section 14-107 and its implementing regulations cannot constitutionally be applied to the proposed advertisements because the advertisements do not explicitly and unambiguously reference a candidate and so reflect issue advocacy rather than electioneering communications. While the Supreme Court has upheld compelled disclosure requirements for advertisements that expressly advocate the election or defeat of a clearly identified candidate, it has never embraced a disclosure regime applicable to communications designed to influence public opinion on a particular issue without reference to a specific candidate. And our court has held 6 that such government regulation of issue advocacy violates the First Amendment. See Vt. Right to Life Comm., Inc. v. Sorrell (VRLC II), 758 F.3d 118, 131 n.11 (2d Cir. 2014). I would hold that AFF is likely to succeed on its as-applied First Amendment challenge and that the district court abused its discretion in denying AFF’s motion for a preliminary injunction. I dissent from the decision of the majority to dismiss this appeal as moot rather than provide that relief. I AFF’s appeal is not moot. AFF still intends to broadcast its proposed advertisements, so this court can provide the relief that AFF seeks: a preliminary injunction barring the state from treating the proposed advertisements as “independent expenditures.” There remains a live dispute between the parties. And even if the controversy over the proposed advertisements were no longer live, an exception to mootness would apply because the dispute between AFF and the state is capable of repetition yet evading review. The exception would apply either based on the understanding of the parties that the preliminary injunction motion and the as-applied claims sought parallel relief or based on the approach of the majority that the controversy over preliminary relief must be considered standing alone. A This case is not moot because AFF remains engaged in a live dispute with the state over the status of the proposed advertisements under New York law. Although the 2025 mayoral election has passed, AFF maintains that it “still wishes to run its Proposed Advertisements, which relate to an ideology and a set of policy proposals that are still very relevant in New York.” Appellant’s Br. 56. And AFF confirmed at oral argument that if it were to receive relief 7 from this court, it would have broadcasted the proposed advertisements during the then-current election cycle. 6 “A case becomes moot only when it is impossible for a court to grant ‘any effectual relief whatever to the prevailing party.’” Knox v. Serv. Emps. Int’l Union, Loc. 1000, 567 U.S. 298, 307 (2012) (quoting Erie v. Pap’s A.M., 529 U.S. 277, 287 (2000)). This court can grant effectual relief to AFF by preliminarily enjoining the state from enforcing registration and disclosure requirements against AFF for airing the proposed