• Washington arbitrarily caps contributions to most campaigns to recall elected officials at $950.
• Recall efforts are difficult, expensive and often require extensive legal services, but Washington considers pro-bono legal services an “in-kind” campaign contribution, which is also capped at $950.
• The 9th Circuit declined to consider whether the cap is unconstitutional, leaving the law in place and severely restricting all future Washington recall efforts.

SEATTLE—

In a decision that leaves the free speech rights of Washingtonians in limbo, late on Friday, July 11, the 9th U.S. Circuit Court of Appeals announced it would not consider whether Washington laws that protect incumbents from recall elections by arbitrarily limiting how much money and time citizens may contribute to recall campaigns violates the U.S. Constitution.

The ruling comes three years after Robin Farris and the Recall Dale Washam campaign, which Farris headed, first filed their lawsuit challenging the Washington restrictions. Farris began her campaign after watching with dismay how Pierce County Assessor-Treasurer Dale Washam was running his office.

“This law is plainly unconstitutional under uniform decisions from courts across the country and we will pursue every avenue available to strike it down,” said Bill Maurer, a director with the Institute for Justice, which represents the plaintiffs in the case. “The 9th Circuit’s decision to abdicate its responsibility to uphold constitutional rights cannot stand.”

Washington allows citizens to vote on whether an elected official should remain in office. To limit this power to only those officials who have created serious questions about their fitness for office, Washington law forces recall campaigns to go through a difficult and expensive legal process before a campaign can even begin to collect signatures.

But because Washington law limits contributions to most recall campaigns to $950, campaigns to recall elected officials are hobbled from the very beginning. Worse yet, the Washington Public Disclosure Commission—the unelected officials in charge of regulating political speech in Washington—views free legal services as a campaign contribution, even though significant litigation is required before a recall campaign can start.

When the Tacoma law firm of Oldfield & Helsdon, PLLC, volunteered to help the Recall Dale Washam campaign navigate the recall process, the PDC told them their volunteer efforts were a campaign contribution limited by the law.

Represented by the Institute for Justice, the campaign and Oldfield & Helsdon sued to challenge the restrictions and the U.S. District Court for the Western District of Washington prevented the PDC from applying the law against the campaign. This decision was upheld by the Ninth Circuit. The ruling came too late for the campaign, however, which was unable to collect enough signatures to bring the recall question to the ballot.

Unfortunately, the District Court declined to consider whether the law is unconstitutional on its face, meaning that other Washingtonians wishing to recall public officials must continue to abide by the restrictions. Farris and the others appealed the District Court’s decision to the 9th Circuit. On Friday, the 9th Circuit concluded that the District Court was correct to not reach the question because the District Court’s injunction provided all the relief the plaintiffs could obtain.

“It’s unfortunate that after three years of litigation, the 9th Circuit didn’t do their job and decide this issue,” said Ferris. “Recall proponents already face a steep hill and this kind of uncertainty leaves the door open to future abuse by those who wish to silence people seeking to recall public officials.”

To learn more about this case, visit ij.org/washington-recall. Founded in 1991, the Institute for Justice is the national law firm for liberty.