FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ROBIN FARRIS; RECALL DALE 

WASHAM, a Washington political

committee; OLDFIELD & HELSDON,

PLLC, a Washington professional

limited liability company,

Plaintiffs-Appellees,

v.

No. 11-35620

DAVE SEABROOK, Chair; BARRY

D.C. No. SEHLIN, Vice Chair; JENNIFER JOLY;  3:11-cv-05431-RJB JIM CLEMENTS, in their Official

Capacities as Officers and OPINION

Members of the Washington State

Public Disclosure Commission;

DOUG ELLIS, in His Official

Capacity as Interim Executive

Director of the Washington State

Public Disclosure Commission,

Defendants-Appellants. 

Appeal from the United States District Court

for the Western District of Washington

Robert J. Bryan, District Judge, Presiding

Argued and Submitted

November 16, 2011—Portland, Oregon

Filed January 19, 2012

Before: Raymond C. Fisher, Richard A. Paez and

Richard R. Clifton, Circuit Judges.

Opinion by Judge Fisher

495
COUNSEL

Robert M. McKenna, Attorney General; Linda A. Dalton,

Senior Assistant Attorney General (argued), Olympia, Washington, for the appellants.

Jeffrey P. Helsdon, Oldfield & Helsdon, PLLC, Firecrest,

Washington; William Maurer (argued) and Jeanette Petersen,

FARRIS v. SEABROOK 497
Institute for Justice, Seattle, Washington; Paul Avelar,

Tempe, Arizona, for the appellees. 

Theodore J. Angelis and Taki V. Flevaris (argued), K&L

Gates, Seattle, Washington, for amici curiae Wisconsin

Democracy Campaign and Washington Public Campaigns. 

Allen Dickerson, Alexandria, Virginia, for amicus curiae Center for Competitive Politics. 

OPINION

FISHER, Circuit Judge:

The district court granted a preliminary injunction prohibiting the State of Washington from enforcing its limitation on

contributions to political committees supporting the recall of

a state or county official. We conclude that the plaintiffs satisfied their burden under Winter v. Natural Resources Defense

Council, Inc., 555 U.S. 7 (2008), to demonstrate that the contribution limit is likely an unconstitutional and harmful burden on the plaintiffs’ rights of free speech under the First

Amendment. Accordingly, the district court did not err in

granting the injunction, and we affirm.

I. Background

A. Washington’s Recall Procedure

Washington provides its electorate with an elaborate procedure for recalling elected officials. According to Washington’s constitution, elected officials may be recalled for

malfeasance, misfeasance or a violation of their oaths of

office. See Wash. Const. art. I, §§ 33, 34. A voter who wishes

to recall an elected official must prepare a typewritten charge

naming the official and providing a detailed description of the

498 FARRIS v. SEABROOK
grounds for recall. See Wash. Rev. Code § 29A.56.110.

Recall charges are filed with the county auditor, and the county’s prosecuting attorney then prepares a ballot synopsis,

which sets forth the name of the person charged, the title of

the office and the elements of the charge. See id.

§§ 29A.56.120, 29A.56.130. Within 15 days thereafter, the

superior court conducts a hearing to decide “(1) whether or

not the acts stated in the charge satisfy the criteria for which

a recall petition may be filed [i.e., the sufficiency of the

charges], and (2) the adequacy of the ballot synopsis.” Id.

§ 29A.56.140. The person demanding recall and the person

subject to the recall may appear before the court with counsel

and may appeal an adverse decision to the Washington

Supreme Court. See id. 

If the charges are held to be sufficient, the recall proponents begin to collect signatures from registered voters who

support the petition. To recall a county official whose county

has a population of 40,000 or more, proponents must collect

a number of signatures “equal to twenty-five percent of the

total number of votes cast for all candidates for the office to

which the officer whose recall is demanded was elected at the

preceding election.” Id. § 29A.56.180(1). They have 180 days

to collect these signatures following court approval of the ballot synopsis. See id. § 29A.56.150(2). If proponents collect

the required number of signatures, the auditor must “fix a date

for a special election to determine whether or not the officer

charged shall be recalled and discharged from office.” Id.

§ 29A.56.210. The election must be held “not less than fortyfive nor more than sixty days” from the time that the signatures are verified. Id. If the recall is successful, the recalled

official must vacate his or her office and the appropriate state

legislative body will appoint a successor to fill the position

until the next general election. See id. §§ 29A.56.260,

36.16.110. 

The statutory provision challenged here prohibits contributions of more than $800 to a political committee making

FARRIS v. SEABROOK 499
expenditures in a recall campaign. See id. § 42.17A.405(3).1,2

This limit applies to monetary and in-kind contributions alike.

See id. § 42.17A.005(15)(c) (“Contributions other than money

or its equivalent are deemed to have a monetary value equivalent to the fair market value of the contribution . . . and

count[ ] towards any applicable contribution limit of the provider.”).3

B. Plaintiffs’ Efforts to Recall Dale Washam

Plaintiff Robin Farris began an effort to recall Pierce

County Assessor-Treasurer Dale Washam in 2010, after

becoming aware of allegations that Washam had engaged in

malfeasance while in office. Farris formed a political committee, Recall Dale Washam (“the Recall Committee”), which

she registered with the Washington Public Disclosure Commission (PDC), and filed charges against Washam under

§ 29A.56.110.

After proceedings in the superior court and an appeal, the

Washington Supreme Court found several of Farris’ charges

sufficient and approved a ballot synopsis. See In re Recall of

Washam, 257 P.3d 513 (Wash. 2011). The recall proponents

1Formerly codified as Washington Revised Code § 42.17.640(3). 

2Section 42.17A.405(3) states: 

No person, other than a bona fide political party or a caucus political committee, may make contributions to a state official, a

county official, a city official, or a public official in a special purpose district against whom recall charges have been filed, or to

a political committee having the expectation of making expenditures in support of the recall of the state official, county official,

city official, or public official in a special purpose district during

a recall campaign that in the aggregate exceed eight hundred dollars if for a legislative office, county office, or city office, or one

thousand six hundred dollars if for a special purpose district

office or a state office other than a legislative office. 

Wash. Rev. Code § 42.17A.405(3). 

3Formerly codified as Washington Revised Code § 42.17.020(15)(c). 

500 FARRIS v. SEABROOK
then had until August 31, 2011 to collect signatures from

65,495 registered Pierce County voters to qualify the

approved synopsis for the November ballot.

Meanwhile, shortly before the Washington Supreme Court

issued its decision, the PDC issued the Recall Committee a

“Notice of Administrative Charges,” alleging that the committee violated Washington Revised Code § 42.17A.405 by

accepting more than $800 in in-kind contributions from Oldfield & Helsdon, a law firm that had represented the committee in the state superior court and supreme court proceedings

on a pro bono basis. The PDC ultimately withdrew the

charges, but stated:

The fact that PDC staff does not intend to allege a

violation of [§ 42.17A.405] should not be construed

to mean that the contribution limits of

[§ 42.17A.405] are not applicable to the recall election. The statute, as written, is to be followed during

the recall campaign.

C. Proceedings Before the District Court

In June 2011, Farris, the Recall Committee and Oldfield &

Helsdon filed a complaint challenging the constitutionality of

§ 42.17A.405(3)’s $800 contribution limit. Two weeks later,

the plaintiffs moved for a preliminary injunction enjoining the

State from enforcing the contribution limit, arguing that the

limit violated their First Amendment rights. In July 2011, the

district court granted the motion, preliminarily enjoining the

State from enforcing § 42.17A.405(3) against the plaintiffs

during the 2011 recall campaign.

II. Jurisdiction

We have jurisdiction to review a district court’s order

granting a preliminary injunction under 28 U.S.C.

§ 1292(a)(1). Before we can exercise our jurisdiction under

FARRIS v. SEABROOK 501
§ 1292(a)(1), however, we must ensure that this appeal continues to present a live controversy. 

[1] While this appeal was pending, the plaintiffs’ August

31, 2011 deadline to collect signatures passed. The plaintiffs

did not collect the required number of signatures to qualify

the recall question for the November 2011 ballot. Because the

district court’s injunction applied only to the plaintiffs’ campaign for the November 2011 ballot, we must consider

whether this appeal is now moot. We hold that it is not moot,

because this situation is capable of repetition, yet evading

review. 

This exception to mootness applies 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.” Enyart v. Nat’l Conference of Bar

Exam’rs, 630 F.3d 1153, 1159 (9th Cir. 2011) (quoting FEC

v. Wis. Right to Life, Inc., 551 U.S. 449, 462 (2007)) (internal

quotation marks omitted). “[T]he exception frequently arises

in election cases ‘because the inherently brief duration of an

election is almost invariably too short to enable full litigation

on the merits.’ ” Human Life of Wash. Inc. v. Brumsickle, 624

F.3d 990, 1002 (9th Cir. 2010) (quoting Porter v. Jones, 319

F.3d 483, 490 (9th Cir. 2003)).

[2] Both elements are present here. The district court

issued the injunction on July 15, 2011. Given its limited

scope, the injunction was “fully and irrevocably carried out”

as of August 31, 2011, when the plaintiffs failed to obtain

enough signatures to qualify for the November ballot. Enyart,

630 F.3d at 1160. The parties “could not practically obtain

appellate review of the district court order[ ]” within this time.

Id. Furthermore, if the plaintiffs attempt another recall, they

will be subject to the same $800 contribution limit. See Citizens for Clean Gov’t v. City of San Diego, 474 F.3d 647, 650

(9th Cir. 2007) (holding that a challenge to a contribution

502 FARRIS v. SEABROOK
limit applicable to the signature-gathering phase of a recall

election was not rendered moot by the recall effort’s failure

to obtain sufficient signatures to place the recall question on

the ballot because the controversy was capable of repetition,

yet evading review); Enyart, 630 F.3d at 1159-60 (holding

that the appeal of a “fully and irrevocably carried out” preliminary injunction was not moot because there was a reasonable

expectation that the defendant would be subject to a preliminary injunction again in the future).4,5

III. Discussion

A. Standard of Review

We review an order granting a preliminary injunction for

an abuse of discretion. See Katie A. ex rel. Ludin v. L.A. Cnty.,

481 F.3d 1150, 1155 (9th Cir. 2007). “Under this standard,

[a]s long as the district court got the law right, it will not be

reversed simply because the appellate court would have

arrived at a different result if it had applied the law to the

facts of the case.” Thalheimer v. City of San Diego, 645 F.3d

1109, 1115 (9th Cir. 2011) (alteration in original) (quoting

Dominguez v. Schwarzenegger, 596 F.3d 1087, 1092 (9th Cir.

2010)) (internal quotation marks omitted). “This review is

limited and deferential, and it does not extend to the underlying merits of the case.” Id. (quoting Johnson v. Couturier, 572

F.3d 1067, 1078 (9th Cir. 2009)) (internal quotation marks

omitted). “The district court, however, necessarily abuses its

discretion when it bases its decision on an erroneous legal

4The recall effort incurred debt that remains outstanding. We acknowledge the possibility that plaintiffs’ ability to retire that debt may be hampered if the injunction is lifted and the $800 contribution limit imposed by

the challenged statute is applied to plaintiffs. This is another reason why

the appeal is not moot. 

5Considering the matter sua sponte, we are also satisfied that the plaintiffs’ suit is ripe. See Wolfson v. Brammer, 616 F.3d 1045, 1058 (9th Cir.

2010) (describing the standard for determining whether a pre-enforcement

challenge is ripe). 

FARRIS v. SEABROOK 503
standard or on clearly erroneous findings of fact.” Flexible

Lifeline Sys., Inc. v. Precision Lift, Inc., 654 F.3d 989, 994

(9th Cir. 2011) (per curiam) (quoting Earth Island Inst. v.

U.S. Forest Serv., 351 F.3d 1291, 1298 (9th Cir. 2003)) (internal quotation marks omitted). When the district court bases its

decision on an erroneous legal standard, we review the underlying issues of law de novo. See id.

B. Analysis

A plaintiff seeking a preliminary injunction must show that:

(1) she is likely to succeed on the merits, (2) she is likely to

suffer irreparable harm in the absence of preliminary relief,

(3) the balance of equities tips in her favor and (4) an injunction is in the public interest. See Winter v. Natural Res. Def.

Council, 555 U.S. 7, 20 (2008). We have also articulated an

alternate formulation of the Winter test, under which “ ‘serious questions going to the merits’ and a balance of hardships

that tips sharply towards the plaintiff can support issuance of

a preliminary injunction, so long as the plaintiff also shows

that there is a likelihood of irreparable injury and that the

injunction is in the public interest.” Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1135 (9th Cir. 2011). 

Here, the district court determined that preliminary injunctive relief was appropriate by applying the first Cottrell factor

(serious questions going to the merits) and the last three Winter factors (irreparable harm, the balance of equities and the

public interest). The court did not find that the balance of

hardships tipped sharply in the plaintiffs’ favor, as the Cottrell

test requires, or a likelihood of success on the merits, as the

Winter test requires. The district court’s analysis was therefore incomplete. As we explain below, however, the district

court’s error was harmless because plaintiffs’ showing satisfies all four prongs of the Winter standard. Because the district court did not apply the first Winter factor (likelihood of

success on the merits), we review that factor de novo. Given

that the district court applied the final three Winter factors, we

504 FARRIS v. SEABROOK
review the court’s evaluation of those factors for an abuse of

discretion.

1. Likelihood of Success on the Merits

The plaintiffs contend the $800 limit on contributions to

recall committees violates the First Amendment’s guarantee

of freedom of speech. 

[3] Under the First Amendment, “contribution limitations

are permissible as long as the Government demonstrates that

the limits are ‘closely drawn’ to match a ‘sufficiently important interest.’ ” Randall v. Sorrell, 548 U.S. 230, 247 (2006)

(plurality opinion) (quoting Buckley v. Valeo, 424 U.S. 1, 25

(1976)); see also Citizens for Clean Gov’t, 474 F.3d at 652

(applying this level of scrutiny to a contribution limit imposed

during the signature phase of a recall effort).6 The State contends the $800 contribution limit passes muster because it is

closely drawn to match an important interest in the prevention

of corruption or the appearance of corruption. 

[4] The State is certainly correct that states have an important governmental interest in preventing the actuality or

appearance of quid pro quo corruption. See Thalheimer, 645

F.3d at 1118 (“The Supreme Court has concluded that preventing corruption or the appearance of corruption are the

only legitimate and compelling government interests thus far

identified for restricting campaign finances.” (quoting Long

Beach Area Chamber of Commerce v. City of Long Beach

(“Long Beach”), 603 F.3d 684, 694 (9th Cir. 2010)) (internal

quotation marks omitted)); id. at 1119 (“[T]he Citizens United

6We speculated in Long Beach Area Chamber of Commerce v. City of

Long Beach, 603 F.3d 684, 691-92 n.4 (9th Cir. 2010), that after Citizens

United v. FEC, 130 S. Ct. 876, 898 (2010), all campaign funding restrictions may be subject to strict scrutiny. The Supreme Court has since reaffirmed, however, that “closely drawn” scrutiny applies to contribution

limits. See Ariz. Free Enter. Club’s Freedom Club PAC v. Bennett, 131

S. Ct. 2806, 2817 (2011). 

FARRIS v. SEABROOK 505
decision . . . narrowed the scope of the anti-corruption rationale to cover quid pro quo corruption only, as opposed to

money spent to obtain influence over or access to elected officials.” (quoting Long Beach, 603 F.3d at 694 n.5)(internal

quotation marks omitted)).

[5] This anticorruption interest justifies limits on contributions to political committees operated by candidates themselves. See, e.g., Buckley, 424 U.S. at 26-27 (holding that the

governmental interest in preventing the actuality and appearance of corruption was sufficient justification for a federal

law limiting candidate contributions to $1,000). It also justifies limits on contributions to committees that, although formally separate from the candidate, are sufficiently close to the

candidate to present a risk of actual or apparent corruption.

Thus, the Supreme Court has sustained contribution limits as

applied to political parties, because “the close relationship

between federal officeholders and the national parties, as well

as the means by which parties have traded on that relationship, . . . have made all large soft-money contributions to

national parties suspect.” McConnell v. FEC, 540 U.S. 93,

154-55 (2003), overruled on other grounds by Citizens

United, 130 S. Ct. 876. The Court similarly sustained contribution limits as applied to “multicandidate political committees.” See Cal. Med. Ass’n v. FEC, 453 U.S. 182, 197-98

(1981). The Court upheld these limits because multicandidate

political committees “by definition . . . contribute directly to

five or more candidates for federal office,” and “this direct

donor relationship presented a risk of actual or apparent quid

pro quo corruption.” Thalheimer, 645 F.3d at 1120 (citing

Cal. Med. Ass’n, 453 U.S. at 185 n.1, 197); see also Cal. Med.

Ass’n, 453 U.S. at 203 (Blackmun, J., concurring)

(“Multicandidate political committees are therefore essentially conduits for contributions to candidates, and as such

they pose a perceived threat of actual or potential corruption.”).

[6] On the other hand, both this court and the Supreme

Court have rejected contribution limits as applied to commit506 FARRIS v. SEABROOK
tees having only a tenuous connection to political candidates.

In Citizens United, the Court held that a federal law restricting

corporate and union spending on electioneering communications that support or oppose a political candidate could not be

sustained by the anticorruption interest. The Court reasoned

that the “absence of prearrangement and coordination of an

expenditure with the candidate or his agent not only undermines the value of the expenditure to the candidate, but also

alleviates the danger that expenditures will be given as a quid

pro quo for improper commitments from the candidate.” 130

S. Ct. at 908 (quoting Buckley, 424 U.S. at 47) (internal quotation marks omitted).

Similarly, in Long Beach, we invalidated contribution limits as applied to political action committees making independent expenditures to support or oppose candidates for office.

We explained that: 

the strength of the state’s interest in preventing corruption is highly correlated to the nature of the contribution’s recipient. Thus, the state’s interest in the

prevention of corruption — and, therefore, its power

to impose contribution limits — is strongest when

the state limits contributions made directly to political candidates. . . . As one moves away from the case

in which a donor gives money directly to a candidate, however, the state’s interest in preventing corruption necessarily decreases.

Long Beach, 603 F.3d at 696 (quoting N.C. Right to Life, Inc.

v. Leake, 525 F.3d 274, 291 (4th Cir. 2008)). We observed

that “[t]he Supreme Court has upheld limitations on contributions to entities whose relationships with candidates are sufficiently close to justify concerns about corruption or the

appearance thereof.” Id. Because the political action committees made independent expenditures and were “several significant steps removed from ‘the case in which a donor gives

money directly to a candidate,’ ” we held that the state’s antiFARRIS v. SEABROOK 507
corruption interest was insufficient to uphold the contribution

limits. Id. at 696-99 (quoting Leake, 525 F.3d at 291). 

[7] Like independent expenditure committees, recall committees in Washington have at most a tenuous relationship

with candidates. The contribution limit here is thus materially

indistinguishable from the limit we invalidated in Long

Beach. Under Washington’s recall system, political committees seeking to recall officials do not coordinate their spending with candidates for office. In the event a recall is

successful, the successor to office is appointed by a governmental entity designated by state law — in this case, the

Pierce County Council. See Wash. Rev. Code § 36.16.110;

Pierce County, Wash., Charter art. 4, § 4.70. Thus, as Washington law is structured, expenditures by recall committees

are similar to independent expenditures. See Citizens United,

130 S. Ct. at 910 (defining independent expenditures as “political speech presented to the electorate that is not coordinated with a candidate”). Given that recall committees “do not

coordinate or prearrange their independent expenditures with

candidates, and they do not take direction from candidates on

how their dollars will be spent,” they do not have the sort of

close relationship with candidates that supports a threat of

actual or apparent corruption. Long Beach, 603 F.3d at 696.

Neither the State nor amici, moreover, has presented any

evidence showing that contributions to recall committees in

Washington raise the specter of corruption, and certainly not

in this case. The Wisconsin Democracy Campaign and Washington Public Campaigns, as amici curiae, attempt to bolster

the State’s anticorruption rationale with several newspaper

articles that describe alleged corruption in connection with

recall efforts in states other than Washington. Most of the outof-state recall efforts involve systems different from Washington’s, in which a recall campaign is accompanied by an

election to select the successor — a structure that does not

exist in Washington. None of the articles describes a circumstance where, in a recall system like Washington’s, in which

508 FARRIS v. SEABROOK
successors are appointed, a recall committee or its members

had a relationship with the state entity charged with appointing a successor that would raise the specter of corruption.7

The only evidence of an interaction between the Recall Committee and the Pierce County Council, the appointing body, is

the State’s allegation that one Council member posted on the

Recall Committee’s Facebook page a description of the procedures that would take place if the recall campaign were successful. There is no evidence that the Recall Committee

would have any influence on the Council’s appointment decision upon a successful recall. For this reason, “[o]n this

record, . . . an exchange of political favors for uncoordinated

expenditures remains a hypothetical possibility and nothing

more.” FEC v. Nat’l Conservative Political Action Comm.,

470 U.S. 480, 498 (1985).

[8] In sum, the State did not identify a sufficiently important interest to justify the $800 limit on contributions to recall

committees. The first Winter factor — likelihood of success

on the merits — thus supports issuance of the preliminary

injunction.8

7The State contends the district court abused its discretion by ruling on

the plaintiffs’ motion for summary judgment without giving the State a

greater opportunity to conduct discovery and develop the record, relying

on Citizens for Clean Government. This argument is without merit. Citizens for Clean Government does not limit a district court’s authority to

rule on a preliminary injunction, a decision that is necessarily based on an

incomplete record. Here, the State never filed a request for specific, expedited discovery and, therefore, we cannot conclude that the district court

abused its discretion by ruling on the injunction based on the evidence that

was before it. 

8Plaintiffs’ likelihood of success might be different if recall elections in

Washington were accompanied by an election for the successor, as is the

case in many states, and a recall committee coordinated its expenditures

with one of the candidates for office. That circumstance would be similar

to cases in which contribution limits have been upheld. See, e.g., McConnell v. FEC, 540 U.S. 93 (2003); Cal. Med. Ass’n v. FEC, 453 U.S. 182

(1981). 

Furthermore, as our analysis implies, the outcome might be different if

there were evidence that contributions were being made with a “wink and

a nod” from Council members indicating that a particular candidate would

be appointed. Long Beach, 603 F.3d at 697 n.7. 

FARRIS v. SEABROOK 509
In so concluding, we recognize that the State has a strong

interest in “help[ing] citizens make informed choices in the

political marketplace.” Citizens United, 130 S. Ct. at 914

(quoting McConnell, 540 U.S. at 197) (internal quotation

marks omitted). One important method of doing so is requiring disclosure of who is financing a ballot campaign. See

Family PAC v. McKenna, Nos. 10-35832, 10-35893, 2011

WL 6826338, at *5-6 (9th Cir. Dec. 29, 2011). Disclosure

enables the electorate to “give proper weight to different

speakers and messages.” Citizens United, 130 S. Ct. at 916.

In the context of a recall initiative, therefore, the State’s additional, specific interest in preventing corruption can at least in

part be addressed through disclosure requirements.

2. Irreparable Harm, Balance of the Equities and

the Public Interest

The district court properly exercised its discretion in concluding that the remaining Winter factors also support issuance of the injunction. 

[9] With respect to the second factor, irreparable harm, the

district court correctly noted that “[t]he loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury” and that “harm is

particularly irreparable where, as here, a plaintiff seeks to

engage in political speech, as timing is of the essence in politics and [a] delay of even a day or two may be intolerable.”

Thalheimer, 645 F.3d at 1128 (alterations in original) (quoting

Klein v. City of San Clemente, 584 F.3d 1196, 1208 (9th Cir.

2009)) (internal quotation marks omitted). The district court’s

conclusion that the plaintiffs would suffer irreparable harm

from the contribution limit due to the limited time they had

to gather signatures thus was not an abuse of discretion.

[10] Nor did the court err in concluding that the balance of

equities and public interest favor an injunction. It was within

the district court’s discretion to conclude that the “public

510 FARRIS v. SEABROOK
interest in upholding free speech and association rights outweighed the interest in continued enforcement of these campaign finance provisions” after weighing the relevant

considerations. Id. at 1128-29.

IV. Conclusion

The district court properly granted the preliminary injunction prohibiting enforcement of the $800 contribution limit. 

AFFIRMED.

FARRIS v. SEABROOK 511