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Elster v. The City of Seattle

Supreme Court of Washington, En Banc

July 11, 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. Const, amend. I. The superior court dismissed the suit. Because the program does not violate the First Amendment, we affirm.


         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.[1]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.

         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.127, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976) (quotingN.Y. Times Co. v. Sullivan, 376 U.S. 254, 270, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964)).

         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 of Seattle, 113 Wn.2d 929, 941, 785 P.2d 431 (1990) (upholding theater ticket admission tax against First Amendment and equal protection challenges (citing Fin. Pac. Leasing, Inc. v. City of Tacoma, 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).

         Elster 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 Comm'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. of Va., 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.


         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 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 self-governing 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 ...

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