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Susan L. Carlson

Supreme Court Clerk
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IN THE SUPREME COURT OF THE STATE OF WASHINGTON

MARK FESTER and
SARAH PYNCHON

Appellants,

No. 96660-5

V.

En Banc

THE CITY OF SEATTLE,

Respondent.

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 ofSeattle, 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 ofSeattle, 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 ofSeattle, 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. ofRegents 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 ofRevenue, 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. Ifthe 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 ofSeattle, 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 ofSeattle, 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 oftax 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 ofSeattle, 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 ofSeattle, 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 ofSeattle, 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 ofState,
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 ofSeattle, 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.

11

 Elster and v. City ofSeattle, N0. 96660-5

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