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/ IN CLERK* OFFICE X

8UPREUE COURT. 31XIE OF Wf^SKMSTM

This opinion was

^filed for record ^

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DATE

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Susan L. Carlson

Supreme Court Clerk

IN THE SUPREME COURT OF THE STATE OF WASHINGTON

MARK FESTER and

SARAH PYNCHON

Appellants,

V.

THE CITY OF SEATTLE,

Respondent.

No. 96660-5

En Banc

Filed JUL 1 I 2019

Gonzalez, J.—Seattle voters approved the "Democracy Voucher

Program," intending to increase civic engagement. Under this program, the

city provides vouchers to registered municipal voters and qualifying

residents. Recipients can give their vouchers to qualified municipal

candidates, who then may redeem them for campaign purposes. The city

funds the program from property taxes. Mark Elster and Sarah Pynchon

sued in King County Superior Court, arguing the taxes funding the program

burden First Amendment rights and unconstitutionally compel speech. U.S.
Elster and Pynchon v. City of Seattle, No. 96660-5

Const, amend. I. The superior court dismissed the suit. Because the

program does not violate the First Amendment, we affirm.

Facts

In 2015, Seattle voters approved Initiative 122, establishing the

Democracy Voucher Program. According to the initiative, the program's

purposes are (1) to "expand the pool of candidates for city offices and to

safeguard the people's control of the elections process," (2) to "ensure the

people of Seattle have equal opportunity to participate in political campaigns

and be heard by candidates," and (3) to "prevent corruption." Clerk's Papers

at 14, 16.

The Democracy Voucher Program attempts to further these goals by

providing vouchers to eligible municipal residents for use in city elections.'

Voter registration in Seattle makes one automatically eligible to receive

vouchers; municipal residents who can donate to a political campaign under

federal law can also receive vouchers. A voter-approved, 10-year property

tax funds the program, collecting in 2016 "approximately $0.0194/$ 1000

assessed value" in additional property taxes. Id. at 57. The voucher

recipients can give their vouchers to qualified municipal candidates.

' To be eligible to receive vouchers from municipal residents, municipal candidates must

obtain a required number of signatures and contributions from qualified municipal

residents.
Elster and Pynchon v. City of Seattle, No. 96660-5

Elster and Pynchon own property in Seattle. They brought a 42 U.S.C

§ 1983 action challenging the constitutionality of the Democracy Voucher

Program, arguing it is unconstitutional to use tax dollars to underwrite

campaign contributions.

Instead of answering Elster and Pynchon's complaint, the city moved

to dismiss. The superior court granted the city's motion, upholding the

Democracy Voucher Program. It found that the city "articulated a

reasonable justification" for the program that was consistent with United

States Supreme Court precedent: "an increase in voter participation in the

electoral process." Id. at 115. Elster and Pynchon appealed, and the Court

of Appeals certified the case to us.

Standard of Scrutiny

Elster and Pynchon challenge the city's use of tax revenue to fund

political speech. "[T]he central purpose of the [First Amendment is] to

assure a society in which 'uninhibited, robust, and wide-open' public debate

concerning matters of public interest would thrive, for only in such a society

can a healthy representative democracy flourish." Buckley v. Valeo, 424

U.S. 1, 93 n.l27, 96 S. Ct. 612, 46 L. Ed. 2d 659 (1976) (quoting AT. Times

Co. V. Sullivan, 376 U.S. 254, 270, 84 S. Ct. 710, 11 L. Ed. 2d 686 (1964)).
Elster and Pynchon v. City of Seattle, No. 96660-5

If the Democracy Voucher Program does not burden fundamental

rights, the program enjoys the presumption of constitutionality and the

challengers bear the heavy burden of showing the city lacked the power to

impose the tax under rational basis scrutiny. See Forbes v. City ofSeattle,

113 Wn.2d 929, 941, 785 P.2d 431 (1990) (upholding theater ticket

admission tax against First Amendment and equal protection challenges

(citing F'm. Pac. Leasing, Inc. v. City ofTacoma, 113 Wn.2d 143, 147, 776

P.2d 136 (1989))). The power to tax is a fundamental, necessary sovereign

power of government. Love v. King County, 181 Wash. 462, 467, 44 P.2d

175 (1935). "The government, as a general rule, may support valid

programs and policies by taxes or other exactions binding on protesting

parties." Bd. of Regents v. Southworth, 529 U.S. 217, 229, 120 S. Ct. 1346,

146 L. Ed. 2d 193 (2000). If rational basis scrutiny applies, the program's

tax need only rationally relate to a legitimate government interest. See Dot

Foods, Inc. V. Dep't of Revenue, 185 Wn.2d 239, 249, 372 P.3d 747 (2016).

Bister and Pynchon ask us to apply strict scrutiny, alleging the

Democracy Voucher Program burdens fundamental rights. If the program

burdens fundamental rights, strict scrutiny applies; to survive strict scrutiny,

the city needs to show the program furthers a compelling interest and is

narrowly tailored to achieve that interest. Citizens United v. Fed. Election
Elster and Pynchon v. City of Seattle, No. 96660-5

Comin'n, 558 U.S. 310, 340, 130 S. Ct. 876, 175 L. Ed. 2d 753 (2010)

("Premised on mistrust of governmental power, the First Amendment stands

against attempts to disfavor certain subjects or viewpoints."); see also

Rosenberger V. Rector & Visitors of Univ. ofVa., 515 U.S. 819, 829, 115 S.

Ct. 2510, 132 L. Ed. 2d 700 (1995) (viewpoint neutrality requires the

government to "abstain from regulating speech when the specific motivating

ideology or the opinion or perspective of the speaker is the rationale for the

restriction"). As will be discussed below in the context of Elster and

Pynchon's substantive arguments, heightened scrutiny does not apply.

Accordingly, we apply rational basis review.

Analysis

Elster and Pynchon assert the Democracy Voucher Program, through

its tax, unconstitutionally compels them to support the program's message.

Neither this court nor the United States Supreme Court has squarely

addressed the issue before us; whether a tax used to fund a public financing

system violates First Amendment rights. Elster and Pynchon do not assert a

violation of the state constitution. Most related cases have addressed

challenges to the public financing systems themselves, not the potential

injury to the taxpayers funding those systems. See, e.g., Buckley, 424 U.S. at
Elster and Pynchon v. City of Seattle, No. 96660-5

92-93; Ariz. Free Enter. Club's Freedom Club PAC v. Bennett, 564 U.S.

721, 755, 131 S. Ct. 2806, 180 L. Ed. 2d 664 (2011).

In Buckley, the Court upheld the public financing of elections, in the

context of a system where taxpayers elect to authorize payment from their

taxes to the Presidential Election Campaign Fund. The Court held public

financing of elections "is a congressional effort, not to abridge, restrict, or

censor speech, but rather to use public money to facilitate and enlarge public

discussion and participation in the electoral process, goals vital to a selfgoverning people." 424 U.S. at 92-93. The Court concluded that the public

financing system was constitutional despite the fact it amounted to the

disbursement of tax revenue to political parties; the Court found that "every

appropriation made by Congress uses public money in a manner to which

some taxpayers object." Id. at 92.

Public financing schemes must not burden freedom of speech and they

are presumptively unconstitutional if they do. For example, in Bennett, the

Court declared unconstitutional an Arizona system that provided matching

funds to publicly financed candidates, if those candidates agreed to certain

campaign restrictions, after their opponents privately raised or spent funds

beyond a threshold amount. 564 U.S. at 747. The Arizona system operated

in a way that burdened the speech of both privately financed candidates and
Elster and Pynchon v. City of Seattle, No. 96660-5

groups independently advocating for those candidates. The matching funds

penalized privately financed candidates who '"robustly"' exercised their

First Amendment rights, by providing funds to their political rivals. Id. at

736 (quotingDavA v. Fed. Election Comm'n, 554 U.S. 724, 739, 128 S. Ct.

2759, 171 L. Ed. 2d 737 (2008)). The Court found the matching funds

"particularly burdensome" on independent groups because their choices

were to "trigger matching funds, change your message, or do not speak." Id.

at 739. The Court distinguished its holding in Buckley—^that public

financing systems are constitutional—from cases in which the speech of

some is increased "at the expense of impermissibly burdening (and thus

reducing) the speech" of others. Id. at 741.

Elster and Pynchon argue the Democracy Voucher Program is not

viewpoint neutral because the vouchers will be distributed among qualified

municipal candidates unevenly and according to majoritarian preferences.

"The whole theory of viewpoint neutrality is that minority views are treated

with the same respect as are majority views." Southworth, 529 U.S. at 235.

Here, the decision of who receives vouchers is left to the individual

municipal resident and is not dictated by the city or subject to referendum.

Elster and Pynchon do not dispute that the city imposes neutral criteria on

who can receive vouchers and who can redeem them, making the program's
Elster and Pynchon v. City of Seattle, No. 96660-5

administration viewpoint neutral. That some candidates will receive more

vouchers reflects the inherently majoritarian nature of democracy and

elections, not the city's intent to subvert minority views.

The tax at issue here does not alter, abridge, restrict, censor, or burden

speech. On the contrary, the Democracy Voucher Program "facilitate[s] and

enlarge[s] public discussion and participation in the electoral process."

Buckley, 424 U.S. at 92-93. The program resembles other content neutral

ways the government facilitates political speech, for example, when the

government distributes voters' pamphlets. See, e.g., RCW 29A.32.010

(concerning distribution of voters' pamphlets for the general election); see

also Laws of 2013, chs. 143, 195 (ensuring contested judicial races and

other nonpartisan races are not decided at the primary).^ Thus, wholly

distinct from cases involving unconstitutional campaign finance laws and

^ The lack of a primary voter's pamphlet for statewide races in most counties was one of

the concerns that drove the legislature to move these races to the general election. See

S.B. Rep. on H.B. 1474, at 2, 63d Leg., Reg. Sess. (Wash. 2013).

Another recent example of governmental facilitation of political speech is when

the State allocated funds for prepaid postage election expenses. Letter from Jay Inslee,

Governor of Washington State, to Kim Wyman, Washington Secretary of State (May 14,

2018), http://www.govemor.wa.gov/sites/default/files/SOS%20Efund%201etter%20for%

20elections.pdf [https://perma.ee/A2P5-TDPU]; of. Burdickv. Takushi, 504 U.S. 428,

438, 112 S. Ct. 2059,119 L. Ed. 2d 245 (1992) (the Court has "repeatedly upheld

reasonable, politically neutral regulations that have the effect of channeling expressive

activity at the polls" (citing Mi/nro v. Socialist Workers Party, 479 U.S. 189, 199, 107 S.

Ct. 533, 93 L. Ed. 2d 499 (1986))).

8
Elster and Pynchon v. City of Seattle, No. 96660-5

laws that discriminate based on content or viewpoint, the program does not

burden freedom of speech, and strict scrutiny does not appiy.^

Eister and Pynchon argue Janus v. American Federation of State,

County & Municipal Employees, Council 31, U.S. , 138 S. Ct. 2448,

201 L. Ed. 2d 924 (2018), renders the Democracy Voucher Program

unconstitutional because they disagree with the program's message. In

Janus, the Court held that the funding of the collective bargaining process

through an agency fee of nonmember public sector employees "seriously

impinges on First Amendment rights." Id. at 2464. The collective

bargaining process compelled the nonmembers to "provide financial support

for a union" that adopts powerful political positions the nonmembers

oppose. Id.] see also United States v. United Foods, 533 U.S. 405, 415-16,

121 S. Ct. 2334, 150 L. Ed. 2d 438 (2001) (finding unconstitutional an

assessment on mushroom handlers that funds the promotion of mushroom

advertisements created by a council of industry representatives).

Janus involved an agency fee that directly subsidized the union's

collective bargaining activities, which burdened "'associational freedoms.'"

^ We disagree with Elster and Pynchon's contention in the alternative that Buckley

requires heightened scrutiny under these facts. Compare 424 U.S. at 17-84 (applying

heightened scrutiny to various campaign restrictions), with id. at 92-93 (not applying

heightened scrutiny to the public financing scheme).
Elster and Pynchon v. City ofSeattle, No. 96660-5

138 S. Ct. at 2466, 2468 (quoting//arm v. Quinn, 573 U.S. 616, 649, 134 S.

Ct. 2618, 189 L. Ed. 2d 620 (2014)). Unlike the employees in Janus, Bister

and Pynchon cannot show the tax individually associated them with any

message conveyed by the Democracy Voucher Program."^ Without such a

showing, Janus has no bearing on this case and the program is not subject to

heightened scrutiny. See PruneYard Shopping Ctr. v. Robins, 447 U.S. 74,

87, 100 S. Ct. 2035, 64 L. Ed. 2d 741 (1980) (noting the First Amendment

was not violated where "views expressed by members of the public . . . will

not likely be identified with those of the owner"); accord Southworth, 529

U.S. at 233 (university's viewpoint neutral funding of student groups

ensured student groups' activities did not burden objecting students'

associational freedoms).

The Democracy Voucher Program's puipose is to, among other

things, "giv[e] more people an opportunity to have their voices heard in

democracy." Seattle Municipal Code 2.04.600. The government has a

legitimate interest in its public financing of elections, as Buckley held. See

424 U.S. at 92-93. The program's tax directly supports this interest. The

program, therefore, survives rational basis scrutiny.

The Democracy Voucher Program funds the speech of municipal residents and

candidates. It does not fund government speech. See Johanns v. Livestock Mktg. Ass 'n,

544 U.S. 550, 559, 125 S. Ct. 2055, 161 L. Ed. 2d 896 (2005).

10
Elster and Pynchon v. City of Seattle, No. 96660-5

Conclusion

The Democracy Voucher Program docs not alter, abridge, restrict,

censor, or burden speech. Nor does it force association between taxpayers

and any message conveyed by the program. Thus, the program does not

violate First Amendment rights. We affirm.

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Elster and Pynchon v. City of Seattle, No. 96660-5

WE CONCUR:

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