As the federal government removes immigrants’ access to services and protections,1 municipalities have taken the lead in seeking to increase protections for the rights of these immigrants,2 including access to democratic participation.3 Municipalities including, most notably, Chicago and San Francisco have extended various levels of voting rights to noncitizens, while Boston has considered a similar measure.4 Seattle’s Democracy Voucher Program, which allows adult Seattle residents who are U.S. citizens or lawful permanent residents to donate to candidates for local office with publicly funded vouchers, fits within this broader trend.5 Recently, in Elster v. City of Seattle,6 the Washington Supreme Court upheld the constitutionality of the program over a challenge by two Seattle property owners who argued the program violated their First Amendment rights as a “compelled subsidy of political speech.”7 The court’s decision not only left the door open to programs for expanding civic engagement and encouraging political speech from immigrants, but also implicitly endorsed a more community-oriented vision of democracy, providing a further example of the power of local governments to give noncitizens the political voice they often lack at the federal level.
In 2015, Seattle voters passed an initiative to raise property taxes to fund a program that periodically distributes “Democracy Vouchers,” totaling $100 each, to Seattle residents.8 All Seattle residents who are U.S. citizens or permanent residents9 can obtain vouchers and assign them to eligible campaigns.10 The vouchers may then be redeemed by qualifying candidates for mayor, city attorney, or city council.11 To qualify, candidates must collect a minimum number of campaign contributions, agree to participate in six public debates, and commit to individual contribution and total spending limits.12 The program is funded through a small increase in local property taxes.13
Plaintiffs Mark Elster and Sarah Pynchon owned property in Seattle that had been taxed in order to fund the Democracy Voucher Program.14 The two filed suit in King County Superior Court in June of 2017 under 42 U.S.C § 1983, challenging the program’s constitutionality on First Amendment grounds.15 Rather than answering their complaint, the City responded with a motion to dismiss.16
The King County Superior Court granted the city’s motion to dismiss.17 Judge Andrus found that the program did implicate the First Amendment by “conditioning property owners’ rights . . . on the payment of a tax used to support speech [they] may find objectionable.”18 However, adopting the city’s position, she analogized the program to the Federal Election Campaign Act’s19 Presidential Election Campaign Fund, which the U.S. Supreme Court concluded was constitutionally valid in Buckley v. Valeo,20 as it “use[d] public money to facilitate and enlarge public discussion and participation in the electoral process, goals vital to a self-governing people.”21 Judge Andrus found that the voucher program promoted the same goals, which were “reasonable justification” for its existence.22 The plaintiffs argued the plan was not viewpoint neutral because it allocated “voucher funds through the majoritarian preferences of Seattle residents.”23 Judge Andrus rejected this claim, reasoning instead that “[a]ny voter can assign a $25 voucher to any eligible candidate, even if that candidate’s viewpoint is unpopular with the majority.”24 Further, as residents could assign the vouchers to any candidate regardless of their political leanings, she found the program viewpoint neutral, rendering it constitutional.25 The plaintiffs appealed.26
The Washington Supreme Court affirmed. Writing for the unanimous nine-justice panel, Justice González27 first reaffirmed the purpose of the First Amendment as ensuring “a society in which uninhibited, robust, and wide-open public debate concerning matters of public interest [can] thrive.”28 He then turned to the government’s power to tax, which he characterized as a fundamental sovereign right.29
Considering the standard of scrutiny, Justice González explained that because of the government’s broad power to tax, if the program did not burden fundamental rights, it would enjoy the presumption of constitutionality and the government would need only show that the tax “rationally relate[d] to a legitimate government interest.”30 The court declined to apply strict scrutiny, characterizing the program as viewpoint neutral and finding it did not burden freedom of speech.31 In making this determination, it observed that the fact “[t]hat some candidates will receive more vouchers reflects the inherently majoritarian nature of democracy and elections, not the city’s intent to subvert minority views.”32 Justice González distinguished the case at hand from Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett,33 in which the U.S. Supreme Court struck down an Arizona public financing system that provided candidates who opted in with initial public funds and additional funds to match those of their privately financed opponents.34 The Elster court distinguished Bennett on the basis that “[t]he Arizona system operated in a way that burdened the speech of both privately financed candidates and groups independently advocating for those candidates,” while the voucher program increased speech.35
The court then held that the program survived rational basis scrutiny.36 It echoed the superior court in tying the government’s “legitimate interest in its public financing of elections,”37 established in Buckley, to the voucher program’s intent to “giv[e] more people an opportunity to have their voices heard in democracy.”38 Justice González also discussed the First Amendment’s relation to “associational freedoms”39 to distinguish the voucher program from Janus v. AFSCME, Council 31.40 Janus involved a mandatory fee from public sector employees to fund collective bargaining processes, which the Court found unconstitutional because it individually associated plaintiffs with a political message against their will.41 Unlike the mandatory union fee, Justice González reasoned, the Democracy Voucher tax would not serve to publicly associate the plaintiffs with any particular message conveyed by the program.42 He therefore affirmed the superior court’s ruling, finding that rather than “alter[ing], abridg[ing], restrict[ing], censor[ing], or burden[ing] speech,” the program related to the legitimate government interest of expanding democracy.43
Both the superior and the supreme courts cited Buckley for its proposition that to “facilitate and enlarge public discussion and participation in the electoral process” is a legitimate goal for a program using public funds.44 Neither explicitly addressed the fact that Seattle’s program is open to noncitizens. But by endorsing this use of public funds to promote speech from permanent residents as well as citizens, the court in Elster recognized the legitimate value of noncitizens’ civic engagement. In an era in which state and local governments are increasingly taking initiative to define their own political communities, Elster affirms a more inclusive vision of political community. This case may thus contribute another wedge opening the door to noncitizen civic engagement and improving American democracy.
By including immigrant permanent residents in its Democracy Voucher Program, Seattle takes an implicit stance in the larger debate of how society should delineate the boundaries of its political community.45 How to identify, define, and delineate political community are questions that philosophers, academics, and policymakers have grappled with for centuries, if not millennia.46 And indeed, the question of who may speak and contribute to this public debate is fundamental.
Some argue that we should strive to create a global political community in the name of justice.47 In practice, however, states have broad discretion to limit the scope of their own political communities.48 The United States Congress maintains discretionary “plenary power” to regulate immigration and exclude immigrants from entering the country, “beyond constitutional norms and judicial review.”49 This “plenary power” logic has also been extended to allow governments to discriminate against noncitizens for the purpose of defining a political community.50 As a result, bans on noncitizen contributions to political candidates and parties,51 and on noncitizens pursuing careers as public school teachers, state troopers, and probation officers, have all been upheld by the Supreme Court.52 And the Department of Justice has interpreted the Court’s jurisprudence to mean that undocumented immigrants have no right to challenge First Amendment violations at all.53
At the same time, however, municipalities are increasingly attempting to define their own local political communities for themselves.54 And in the realm of political speech and engagement, there are few constitutional limits on what municipalities can grant to immigrants55 — the U.S. Constitution contains no absolute restriction on noncitizen voting, and while the Federal Election Campaign Act prohibits foreign nationals from contributing to any federal, state, or local election, there is an exception carved out for lawful permanent residents.56
To the extent that such localization can strengthen immigrant rights, this trend should be seen as good for democracy from the perspective of citizens, as well as noncitizens, for a number of reasons. First, the de jure status of immigrants should reflect their de facto contributions to U.S. communities. Immigrants are essential to the U.S. labor force,57 and they both engage with and are affected by U.S. politics as stakeholders. They make lives in the United States and send their children to American schools.58 This logic rings even more true when viewed at a local level, where the topics of discussion are “police protection and crime and parks and potholes and schools.”59 Second, greater inclusion of immigrants furthers the ultimate purposes of the First Amendment. The First Amendment is not only about the right to speak; it also implicates the right to listen.60 Professor Michael Kagan argues, for example, that American voters should have the right to hear immigrants speak from their own experiences to inform collective decisions about immigration policy.61 Along a similar line of logic, Professor James Gardner counters traditional anti-immigrant sentiment by arguing that underinclusion of members in a political community is just as worrisome as overinclusion.62 The Elster court’s emphasis on promoting “‘uninhibited, robust, and wide-open’ public debate” makes clear that this concern should be central to any understanding of the First Amendment.63
The Democracy Voucher Program and the decision upholding it reflect these concerns by explicitly valuing (at a rate of $100 per person) civic engagement from citizens and permanent residents.64 The program has made a splash nationwide for its innovative and inclusive principles.65 And indeed, Seattle’s investment has resulted in a return in the form of increased political speech: although the majority of the vouchers distributed in the first year of the program were not returned, the vouchers tripled the number of contributors to municipal election campaigns,66 and promise to increase participation even more as time goes on.67 This increase means a political community that is more invested in its government, whose voice has been heard more clearly, and whose representatives will more accurately reflect its political preferences.