Chiafalo et al v. Inslee et al

Filing 34

ORDER by Judge James L. Robart DENYING Plaintiffs' 2 Motion for TRO and preliminary injunction and RENOTING Putative Intervenors' 9 , 13 Motions to intervene for 1/6/2017. (PM)

Case 2:16-cv-01886-JLR Document 34 Filed 12/15/16 Page 1 of 15

1
2
3
4
5
6
7

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

8
9
10

P. BRET CHIAFALO, et al.,
Plaintiffs,

11

JAY INSLEE, et al.,
Defendants.

14
15
16

ORDER

v.

12
13

CASE NO. C16-1886JLR

I.

INTRODUCTION

Before the court is Plaintiffs P. Bret Chiafalo and Levi Guerra’s motion for a

17 temporary restraining order (“TRO”) and preliminary injunction (collectively,
18 “preliminary injunctive relief”). (TRO/PI Mot. (Dkt. # 2).) Defendants in this lawsuit
19 are three Washington State officials: Jay Inslee, in his official capacity as Governor; Bob
20 Ferguson, in his official capacity as Attorney General; and Kim Wyman, in her official
21 capacity as Secretary of State (collectively, “the State”). (Compl. (Dkt. # 1) ¶¶ 1.3-1.5.)
22 The State opposes Plaintiffs’ motion. (State Resp. (Dkt. # 18).)
ORDER- 1

Case 2:16-cv-01886-JLR Document 34 Filed 12/15/16 Page 2 of 15

1

In addition, there are two motions to intervene before the court: the Washington

2 State Republican Party’s (the “Republican Party”) motion to intervene (see Rep. Party
3 MTI (Dkt. # 9)), and President-elect Donald J. Trump and Donald J. Trump for President,
4 Inc.’s (collectively, “the Campaign”) motion to intervene (Campaign MTI (Dkt. # 13)).
5 Due to the rapid developments in this case, the Republican Party and the Campaign
6 (collectively, “Putative Intervenors”) filed an opposition to Plaintiffs’ motion for a TRO
7 and preliminary injunction, which they ask the court to consider if the court grants their
8 motions to intervene. (Put. Intervenors Resp. (Dkt. # 16).)
9

The court has considered the parties’ and Putative Intervenors’ written

10 submissions and oral arguments, the relevant portions of the record, and the applicable
11 law. The court held a hearing on Plaintiffs’ motion for preliminary injunctive relief on
12 December 14, 2016. (12/14/16 Min. Entry (Dkt. # 27).) Following oral argument, the
13 court DENIED Plaintiffs’ motion for preliminary injunctive relief and indicated that this
14 written order would follow to more thoroughly articulate the court’s reasoning.
15
16

II.

BACKGROUND

Plaintiffs are two presidential electors for the State of Washington who attack the

17 constitutionality of Washington’s Presidential Electors Statute, RCW 29A.56.300 et seq.
18 (Compl. ¶¶ 1.1-1.2, 2.2.) In Washington, “each major political party and each minor
19 political party or independent candidate convention that nominates candidates for
20 president and vice president” also nominates presidential electors. RCW 29A.56.320. In
21 tallying votes during the general election, the State counts each vote for president and
22 vice president as a concurrent vote for the presidential electors of that political party. Id.
ORDER- 2

Case 2:16-cv-01886-JLR Document 34 Filed 12/15/16 Page 3 of 15

1 In other words, the electors nominated by the political party that wins Washington’s
2 general election become the electors for the State. See id. Because Hillary Clinton and
3 Tim Kaine, the Democratic candidates for president and vice-president, respectively, won
4 the general election in Washington (see Augino Decl. (Dkt. # 19) ¶ 4, Ex. C at 2),
5 Plaintiffs, as the Democratic Party’s nominees for presidential electors, became
6 presidential electors (see Augino Decl. ¶ 2, Ex. A at 1; see also Compl. ¶¶ 1.1-1.2, 3.2,
7 3.4; Chiafalo Decl. (Dkt. # 1-5) ¶ 6; Guerra Decl. (Dkt. # 1-6) ¶ 6).
8

Plaintiffs believe that President-elect Donald Trump and Vice President-elect

9 Michael Pence are unfit for office (Compl. ¶¶ 3.7-3.8; Chiafalo Decl. ¶ 9; Guerra Decl.
10 ¶ 8), and that it is therefore “in the best interests of Washington and the United States to
11 prevent Trump/Pence from taking office.” (Chiafalo Decl. ¶ 10; Guerra Decl. ¶ 9). To
12 attain that end, Plaintiffs seek “the freedom to vote for any person whom [they] feel is the
13 most viable, fit, and qualified.” (Chiafalo Decl. ¶ 10; Guerra Decl. ¶ 9.) With this
14 “freedom,” Plaintiffs—in consultation with other presidential electors around the
15 nation—intend to either vote for a president and vice-president who will obtain a
16 majority of electoral votes or, at a minimum, block the current candidates from obtaining
17 a majority of electoral votes. (Chiafalo Decl. ¶ 11, Guerra Decl. ¶ 10); see also U.S.
18 Const. amend. XVII.
19

Plaintiffs challenge two provisions of the Presidential Electors Statute. (See

20 generally Compl.) First, the Statute requires each presidential elector to “execute and file
21 with the secretary of state a pledge that, as an elector, he or she will vote for the
22 candidates nominated by that party.” RCW 29A.56.320. Plaintiffs signed such a pledge,
ORDER- 3

Case 2:16-cv-01886-JLR Document 34 Filed 12/15/16 Page 4 of 15

1 which reads, “I, [name of elector], do hereby pledge that I will vote for the candidates
2 nominated by the Democratic Party for President of the United States and Vice President
3 of the United States.” (Augino Decl. ¶ 3, Ex. B (“Elector Pledges”) at 2, 4; see also
4 Chiafalo Decl. ¶ 4, Guerra Decl. ¶ 4.) Second, the Statute authorizes the State to impose
5 a “civil penalty of up to” $1,000.00 on “[a]ny elector who votes for a person or persons
6 not nominated by the party of which he or she is an elector.” RCW 29A.56.340. Ms.
7 Guerra attests that neither she nor her family can afford to pay such a penalty. (Guerra
8 Decl. ¶ 12.) Plaintiffs contend that these restrictions violate Article II and the First,
9 Twelfth, and Fourteenth Amendments to the United States Constitution. (See Compl.
10 ¶¶ 2.2, 3.17-3.18.)
Plaintiffs move for preliminary injunctive relief that precludes the State “from

11

12 enforcing RCW 29A.56.340, removing or replacing any electors for any reason other
13 than death or physical absence of the elector, or otherwise influencing or interfering with
14 the electors [sic] votes on December 19, 2016, including threatening to or actually
15 imposing any civil penalty against Plaintiffs based on the vote they cast or say they are
16 going to cast.” (Prop. Order (Dkt. # 2-1) at 5.) That motion is now before the court.
17

III.

ANALYSIS

18 A.

Legal Standard

19

A plaintiff seeking a TRO in federal court must meet the standards for issuing a

20 preliminary injunction. See Stuhlbarg Int’l Sales Co. v. John D. Brush & Co., 240 F.3d
21 832, 839 n.7 (9th Cir. 2001); Fed. R. Civ. P. 65. To obtain either form of preliminary
22 injunctive relief, Plaintiffs must establish that (1) they are likely to succeed on the merits,
ORDER- 4

Case 2:16-cv-01886-JLR Document 34 Filed 12/15/16 Page 5 of 15

1 (2) they are likely to suffer irreparable harm in the absence of preliminary relief, (3) the
2 balance of equities tips in their favor, and (4) an injunction is in the public interest.
3 Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). Preliminary injunctive
4 relief is also “appropriate when a plaintiff demonstrates that serious questions going to
5 the merits were raised and the balance of hardships tips sharply in the plaintiff’s favor,”
6 provided the plaintiff also demonstrates that irreparable harm is likely and that the
7 injunction is in the public interest. All. for the Wild Rockies v. Cottrell, 632 F.3d 1127,
8 1134-35 (9th Cir. 2011).
9 B.
10

Plaintiffs’ Motion for Preliminary Injunctive Relief
Plaintiffs fail to show serious questions going to the merits of their claims or

11 irreparable injury, both of which are necessary to warrant preliminary injunctive relief.
12

1. Merits

13

Plaintiffs have demonstrated neither a likelihood of success on the merits, Winter,

14 555 U.S. at 20, nor “serious questions going to the merits” of their claims, Cottrell, 632
15 F.3d at 1135. As a threshold matter, Plaintiffs’ merits-based argument relies heavily on
16 the false premise that Plaintiffs’ electoral votes will be disallowed or not counted if
1
17 Plaintiffs fail to vote for the Democratic nominees. (See TRO/PI Mot. at 4-10.) For

18
1

Putative Intervenors likewise base the majority of their argument on the premise that the
State can remove Plaintiffs or decline to count their votes if they fail to vote for their party’s
20 nominees. (See generally Put. Intervenors Resp.) Those inaccuracies appear to be relics of
similar proceedings in United States District Court for the District of Colorado. (Compare
21 Compl.; TRO/PI Mot.), with Baca v. Hickenlooper Jr., No. 1:16-cv-2986-WYD-NYW (D.
Colo.), Dkt. ## 1-2. Colorado’s presidential elector statute, unlike Washington’s comparable
law, mandates that “[e]ach presidential elector . . . vote for the presidential candidate and, by
22 separate ballot, vice-presidential candidate who received the highest number of votes at the

19

ORDER- 5

Case 2:16-cv-01886-JLR Document 34 Filed 12/15/16 Page 6 of 15

1 instance, Plaintiffs acknowledge that the Supreme Court has held that “requiring electors
2 to sign a pledge to certain candidates was valid and constitutional” (id. at 4 (citing Ray v.
3 Blair, 343 U.S. 214, 220-21 (1952))), but they contend that Ray supports the conclusion
4 that Washington’s law exceeds constitutional bounds by violating “‘an assumed
5 constitutional freedom of the elector under the Constitution, Art. II, § 1, to vote as he may
6 choose in the [E]lectoral [C]ollege’” (id. at 5 (quoting Ray, 343 U.S. at 229); see also
7 TRO/PI Mot. at 9 (arguing that “Washington’s binding statute . . . violate[s] the Equal
8 Protection Clause of the Fourteenth Amendment because [it] unconstitutionally dilute[s]
9 and debase[s] the weight of Washington’s electors’ votes”)). Washington has no law
10 precluding Plaintiffs from voting as they choose—and having those votes counted—in
11 the Electoral College. See RCW 29A.56.320, .340. The only potential State-imposed
12 repercussion before the court is the discretionary civil penalty of up to $1,000.00. See
13 RCW 29A.56.340; (see also TRO/PI Reply at 5 (“If Defendants are conceding they will
14 not impose the civil penalty if Plaintiffs chose to vote for a candidate other than the
15 Democratic Presidential Nominees, they are stipulating to the relief requested by
16 Plaintiffs.”).)
17
18 preceding general election in [Colorado].” Colo. Rev. Stat. § 1-4-304(5). Washington law lacks
19
20
21
22

this mandatory language, see RCW 29A.56.340, and therefore the court finds inapplicable and
unpersuasive Plaintiffs’ and Putative Intervenors’ arguments that posit statutorily compelled
electoral votes.
The court notes that the Honorable Wiley Y. Daniel denied a request to preliminarily
enjoin Colorado’s law, which is considerably more coercive than Washington’s. Baca, No.
1:16-cv-2986-WYD-NYW, Dkt. # 19. Analogous proceedings challenging California law are
ongoing before the Honorable Edward J. Davila in the Northern District of California, but Judge
Davila has not yet ruled on the motion for preliminary injunctive relief. Koller v. Brown, No.
5:16-cv-07069-EJD (N.D. Cal.); see also Cal. Elec. Code. §§ 6906, 18002.
ORDER- 6

Case 2:16-cv-01886-JLR Document 34 Filed 12/15/16 Page 7 of 15

1

Having clarified Washington’s law, the court finds their argument based on Article

2 II and the Twelfth Amendment and their argument based on the Fourteenth Amendment
3 to warrant minimal discussion. Although it does not squarely address the issue, Ray
4 implies that the Supreme Court does not consider Article II and the Twelfth Amendment
5 to “demand[] absolute freedom for the elector to vote his own choice.” 343 U.S. at 228;
6 see also id. at 226-29 nn.14-16 (discussing the history of electors serving merely to
7 register the will of the voters of their state as expressed through the general election).
8 Plaintiffs have made no showing that the coercive impact of a potential civil penalty is so
9 coercive that it offends the electoral system. Plaintiffs’ Fourteenth Amendment argument
10 is based exclusively on the impact of Washington’s “binding” statute (TRO/PI Mot. at
11 8-10), but Washington’s statute does not bind its voters, see RCW 29A.56.320, .340. The
12 court concludes that both arguments are unlikely to succeed on the merits.
13

Plaintiffs’ First Amendment argument warrants deeper analysis (see TRO/PI Mot.

14 at 6-8; see also TRO/PI Reply (Dkt. # 22) at 3-4), especially in light of the Ninth
15 Circuit’s permissive case law regarding preliminary injunctive relief to protect First
16 Amendment rights, see Sammartano v. First Judicial Dist. Court, 303 F.3d 959, 973 (9th
17 Cir. 2002), abrogated on other grounds by Winter, 555 U.S. 7. In their briefing and at
18 oral argument, Plaintiffs identified no authority for the proposition that their electoral
19 vote implicates their First Amendment rights. (See TRO/PI Mot. at 6-8.) Relevant legal
20 authority characterizes electors’ role as “ministerial,” Thomas v. Cohen, 262 N.Y.S. 320,
21 326 (Sup. Ct. 1933), limits the context in which the First Amendment protects individuals
22 performing their official, governmental duties, see Garcetti v. Ceballos, 547 U.S. 410,
ORDER- 7

Case 2:16-cv-01886-JLR Document 34 Filed 12/15/16 Page 8 of 15

1 421-22 (2006); Ray, 343 U.S. at 224-25 (“[Electors] act by authority of the state that in
2 turn receives its authority from the federal constitution.”); id. at 226-29 nn.14-16, and
3 confers immense discretion to the states in the appointment of electors, see U.S. Const.
4 art. II, § 1, cl. 2 (“Each State shall appoint, in such Manner as the Legislature thereof may
5 direct, a Number of Electors . . . .”); Bush v. Gore, 531 U.S. 98, 104 (2000) (citing
6 McPherson v. Blacker, 146 U.S. 1 (1892)) (discussing the “plenary” nature of “the state
7 legislature’s power to select the manner for appointing electors”); Williams v. Rhodes,
8 393 U.S. 23, 34 (1968) (“[T]he State is left with broad powers to regulate voting, which
9 may include laws relating to the qualification and functions of electors.”). Furthermore,
10 Plaintiffs chose to stand for nomination as an elector for their party, subject to the rules
11 and limitations that attend the position. (Chiafalo Decl. ¶ 3; Guerra Decl. ¶ 3.) They also
12 retain the ability to step down as electors without penalty. See RCW 29A.56.340
13 (contemplating filling vacancies caused by “refusal to act” or “neglect to attend”). The
14 court therefore concludes that it is unlikely that casting electoral ballots implicates
15 Plaintiffs’ First Amendment rights.
16

Finally, even assuming the First Amendment extends to electoral balloting, the

17 only State-imposed deterrent to electors voting as they choose is a potential $1,000.00
18 civil penalty. See RCW 29A.56.340. Several compelling State interests likely justify the
19 minimal burden imposed by a discretionary civil penalty of up to $1,000.00. See Burdick
20 v. Takushi, 504 U.S. 428, 434 (1992) (quoting Anderson v. Celebrezze, 460 U.S. 780, 788
21 (1983)) (directing courts “considering a challenge to a state election law” to perform a
22 balancing inquiry that weighs “‘the character and magnitude of the asserted injury to the
ORDER- 8

Case 2:16-cv-01886-JLR Document 34 Filed 12/15/16 Page 9 of 15

1 rights protected by the First and Fourteenth Amendments that the plaintiff seeks to
2 vindicate’ against ‘the precise interests put forward by the State as justifications for the
3 burden imposed by its rule,’ taking into consideration ‘the extent to which those interests
4 make it necessary to burden the plaintiff’s rights’”); Williams, 393 U.S. at 32 (“[T]he
5 State does have an interest in attempting to see that the election winner be the choice of a
6 majority of its voters.”).2
7

The court concludes that Plaintiffs have failed to show “serious questions going to

8 the merits” of their claims. Cottrell, 632 F.3d at 1135. This conclusion warrants denial
9 of Plaintiffs’ request for preliminary injunctive relief. See id.
10

2. Irreparable Harm

11

Plaintiffs also fail to demonstrate that they are likely to suffer irreparable harm,

12 and this conclusion constitutes an independently sufficient reason to deny their request
13 for preliminary injunctive relief. See Dex Media W., Inc. v. City of Seattle, 790
14 F. Supp. 2d 1276, 1280 (W.D. Wash. 2011) (“[U]nder either the four-part test in Winter
15 or the sliding scale test formulated in Cottrell, Plaintiffs are required to demonstrate a
16 likelihood of irreparable injury and that the injunction is in the public interest.” (italics
17 added)); Kotok v. Homecomings Fin., LLC, No. C09-0662RSM, 2009 WL 1652151, at *2
18
2

19
20
21
22

Plaintiffs assert that strict scrutiny applies to voting-related restrictions (see TRO/PI
Mot. at 7), but “not every voting regulation is subject to strict scrutiny,” Pub. Integrity All., Inc.
v. City of Tucson, 836 F.3d 1019, 1024 (9th Cir. 2016). Rather, the court employs a balancing
test, and strict scrutiny only applies when the burden on First or Fourteenth Amendment rights is
“severe.” Id. The court rejects Plaintiffs’ argument that strict scrutiny would apply to RCW
29A.56.340. See Dudum v. Arntz, 640 F.3d 1098, 1106 (9th Cir. 2011) (“We have repeatedly
upheld as ‘not severe’ restrictions that are generally applicable, even-handed, politically neutral,
and . . . protect the reliability and integrity of the election process.” (internal quotations omitted)
(alteration in original)).
ORDER- 9

Case 2:16-cv-01886-JLR Document 34 Filed 12/15/16 Page 10 of 15

1 (W.D. Wash. June 12, 2009) (quoting Dominion Video Satellite, Inc. v. Echostar Satellite
2 Corp., 356 F.3d 1256, 1260 (10th Cir. 2004)) (“The showing of irreparable harm is
3 considered ‘the single most important prerequisite for the issuance of a preliminary
4 injunction.’”). In support of the irreparable harm element, Plaintiffs make the following
5 argument:
6
7
8
9
10
11
12

Plaintiffs will suffer irreparable injury if a preliminary injunction [or TRO]
is not issued because they will be forced to vote for Hillary Clinton and
Tim Kaine in violation of their right to vote for whomever they choose. If
they do not do so, they can be removed by their own party pursuant to
RCW 26A.56.340 [sic] and not allowed to vote and will be fined $1,000.
They will not be allowed to vote as electors again in this election and will
be permanently deprived of their ability to cast a vote for the candidate of
their choice. No monetary damages can compensate such a deprivation.
The Plaintiffs spent myriad hours, expended great personal effort, and
incurred personal expense to attend the various caucuses, assemblies, and
conventions to become electors. Their fellow citizens voted for them as
electors, in part, because they could be trusted to do what was right and
vote not just for default candidates, but for someone whom Plaintiffs
believe to be the best suited to run the country.

13
(TRO/PI Mot. at 10; see also TRO/PI Reply at 4-7.)
14
Most of the potential repercussions that Plaintiffs avowedly fear and seek to avoid
15
are either unsupported or contradicted by the law or the record. See RCW
16
29A.56.320, .340. Contrary to Plaintiffs’ citation, RCW 29A.56.340 does not allow a
17
“party”—or the State—to remove presidential electors for being unfaithful to the
18
statewide results of the general election. See RCW 29A.56.340. Furthermore, although
19
Plaintiffs have each signed pledges to vote for the Democratic Party’s nominees (Elector
20
Pledges at 2, 4), “no matter how Plaintiffs cast their electoral ballots on December 19,
21
[2016,] their ballots will be submitted to Congress, along with the rest of Washington’s
22
ORDER- 10

Case 2:16-cv-01886-JLR Document 34 Filed 12/15/16 Page 11 of 15

1 electoral votes, for determination of the next President” (State Resp. at 2). Indeed,
2 Washington law expressly contemplates that an elector may “vote[] for a person or
3 persons not nominated by the party of which he or she is an elector.” RCW 29A.56.340.
4 Plaintiffs are therefore capable of opting not to “be permanently deprived of their ability
5 to cast a vote for the candidate of their choice.” (TRO/PI Mot. at 10.) Similarly, they
6 may “do what [they feel is] right and vote not just for default candidates, but for someone
7 whom Plaintiffs believe to be the best suited to run the country.” (Id.; see also TRO/PI
8 Reply at 5.)
9

Plaintiffs have, however, identified one provision of Washington law that has a

10 coercive impact on electors: RCW 29A.56.340 provides for a civil penalty of up to
11 $1000.00 if Plaintiffs vote for anyone other than their party’s nominees. (See TRO/PI
12 Mot. at 10.) However, “economic injury alone does not support a finding of irreparable
13 harm, because such injury can be remedied by a damage award.” Rent-A-Center, Inc. v.
14 Canyon Television & Appliance Rental, Inc., 944 F.2d 597, 603 (9th Cir. 1991).
15 Furthermore, the prospect of a civil penalty is speculative at this juncture. See Caribbean
16 Marine Servs. Co. v. Baldrige, 844 F.2d 668, 674 (9th Cir. 1988) (“[A] plaintiff must
17 demonstrate immediate threatened injury as a prerequisite to preliminary injunctive
18 relief.”). Plaintiffs have not yet decided for whom they will cast their electoral votes.
19 (See Chiafalo Decl. ¶ 10; Guerra Decl. ¶ 9.) Even if Plaintiffs vote for candidates other
20 than Hillary Clinton and Tim Kaine, the State may elect to pursue a nominal civil penalty
21 //
22 //
ORDER- 11

Case 2:16-cv-01886-JLR Document 34 Filed 12/15/16 Page 12 of 15

1 or no civil penalty.3 See 29A.56.340 (subjecting an elector who declines to vote for her
2 party’s nominee to a civil penalty of “up to one thousand dollars”). Accordingly, the
3 court cannot conclude that Plaintiffs are “likely to suffer irreparable harm in the absence
4 of preliminary relief.” Winter, 555 U.S. at 20.
5

Plaintiffs also argue that the mere potential of a monetary penalty has a chilling

6 impact on Plaintiffs’ ability to exercise their First Amendment rights. (See TRO/PI Reply
7 at 4); Nelson v. Nat’l Aeronautics & Space Admin., 530 F.3d 865, 882 (9th Cir. 2008)
8 (“Unlike monetary injuries, constitutional violations cannot be adequately remedied
9 through damages and therefore generally constitute irreparable harm.”), rev’d on other
10 grounds sub nom. Nat’l Aeronautics & Space Admin. v. Nelson, 562 U.S. 134 (2011);
11 Elrod v. Burns, 427 U.S. 347, 373 (1976) (“The loss of First Amendment freedoms, for
12 even minimal periods of time, unquestionably constitutes irreparable injury.”); (see also
13 Guerra Supp. Decl. (Dkt. # 25) ¶¶ 3-6 (professing an inability to pay a $1,000.00 fine and
14 stating that the threat of such a fine has intimidated Ms. Guerra and “originally made
15 [her] seriously consider whether I should vote according to my conscience, rights[,] and
16 duties”).) In the Ninth Circuit, “‘a party seeking preliminary injunctive relief in a First
17 Amendment context can establish irreparable injury sufficient to merit the grant of relief
18 by demonstrating the existence of a colorable First Amendment claim.’” Sammartano,
19
20
The speculative nature of Plaintiffs’ alleged injury does not, however, call into question
Plaintiffs’ constitutional standing. See Ariz. Right to Life Political Action Comm. v. Bayless, 320
F.3d 1002, 1006-07 (9th Cir. 2003) (discussing the permissive gloss applied to constitutional
22 standing doctrine in First Amendment challenges).

21

3

ORDER- 12

Case 2:16-cv-01886-JLR Document 34 Filed 12/15/16 Page 13 of 15

1 303 F.3d at 973 (quoting Viacom Int’l, Inc. v. F.C.C., 828 F. Supp. 741 (N.D. Cal.
2 1993)).
3

Although “demonstrating the existence of a colorable First Amendment claim” is

4 less exacting than the Winter and Cottrell standards applied above, see supra § III.B.1.,
5 the court finds that Plaintiffs fail to demonstrate the existence of a colorable First
6 Amendment claim for the same reasons as it concluded that Plaintiffs are unlikely to
7 succeed on the merits, see Sammartano, 303 F.3d at 973; see also Hohe v. Casey, 868
8 F.2d 69, 72-73 (3d Cir. 1989) (“[T]he assertion of First Amendment rights does not
9 automatically require a finding of irreparable injury . . . .”); see also Dex Media, 790
10 F. Supp. 2d at 1280 (acknowledging that in the First Amendment context, the
11 “determination of whether Plaintiffs have demonstrated a likelihood of irreparable
12 harm . . . hinges in part on whether Plaintiffs have demonstrated a likelihood of success
13 on the merits of their First Amendment claim”). Moreover, because the only potential
14 harm to Plaintiffs is pecuniary, preliminary injunctive relief would have no impact on
15 Plaintiffs’ decision-making calculus. Whether or not the court preliminarily enjoins the
16 State from enforcing the $1,000.00 civil penalty, Plaintiffs will have to (1) decide for
17 whom to cast their electoral vote on December 19, 2016, and subsequently (2) pay the
18 penalty if (a) Plaintiffs do not vote for their party’s nominees, (b) the State imposes and
19 seeks to collect a penalty, and (c) the court ultimately concludes that RCW 29A.56.340 is
20 constitutional. See RCW 29A.56.340. In other words, even assuming that casting an
21 electoral vote is an exercise of First Amendment freedoms, preliminary injunctive relief
22 would not mitigate the chilling effect of the discretionary statutory penalty. This
ORDER- 13

Case 2:16-cv-01886-JLR Document 34 Filed 12/15/16 Page 14 of 15

1 reasoning tracks the rationale for concluding that monetary losses typically do not
2 constitute irreparable harm.4 See Sampson v. Murray, 415 U.S. 61, 90 (1974).
3

Based on the foregoing analysis, the court concludes that preliminary injunctive

4 relief would not prevent likely irreparable harm because the potential $1,000.00 civil
5 penalty is economic and speculative, and does not chill Plaintiffs’ First Amendment
6 rights. See RCW 29A.56.340. This conclusion alone warrants denial of Plaintiffs’
7 request for a TRO and preliminary injunction. See Winter, 555 U.S. at 20; Cottrell, 632
8 F.3d at 1134-35; Dex Media, 790 F. Supp. 2d at 1280; Kotok, 2009 WL 1652151, at *2.
9 Because Plaintiffs have shown neither a likelihood of success on the merits nor a
10 likelihood of irreparable harm, the court denies their motion for preliminary injunctive
11 relief.5
12 C.

Putative Intervenors’ Motions to Intervene

13

At oral argument, Plaintiffs indicated that they do not oppose Putative Intervenors’

14 intervention for the limited purpose of deciding this motion. The State does not oppose
15 the motions to intervene. (See Rep. Party MTI at 1 n.1; Campaign MTI at 1 n.1.)
16
17

4

21

5

“[F]inancial losses that would be unrecoverable due to [the State’s] Eleventh
Amendment sovereign immunity do constitute irreparable injury.” A Woman’s Friend
18 Pregnancy Res. Clinic v. Harris, 153 F. Supp. 3d 1168, 1215 (E.D. Cal. 2015). However,
Plaintiffs have not yet cast their electoral ballots, the State has not determined whether to impose
19 a civil penalty, and there is no way to tell when such a civil penalty might be due, particularly
because there is no precedent for such a civil penalty since Washington enacted the provision of
20 RCW 29A.56.340 that authorizes the State to impose a fine. Accordingly, this potentiality is too
speculative to be considered “likely,” or “immediate.” Caribbean Marine, 844 F.2d at 674.
The court expresses no opinion regarding the other elements that apply to Plaintiffs’
request for preliminary injunctive relief. See Winter, 555 U.S. at 20; Cottrell, 632 F.3d at
22 1134-35.
ORDER- 14

Case 2:16-cv-01886-JLR Document 34 Filed 12/15/16 Page 15 of 15

1 Accordingly, the court has considered Putative Intervenors’ joint response herein. (See
2 Put. Intervenors Resp.)
3

However, the court has not ruled on Putative Intervenors’ motions to intervene,

4 which are not fully briefed, or on the merits of Plaintiffs’ constitutional challenge. The
5 court RENOTES the motions to intervene for January 6, 2017. Any responses are due on
6 January 2, 2017, and Putative Intervenors’ reply briefs, if any, are due on January 6,
7 2017.
8
9

IV.

CONCLUSION

Based on the foregoing analysis, the court DENIES Plaintiffs’ motion for a TRO

10 and preliminary injunction (Dkt. # 2) and RENOTES Putative Intervenors’ motions to
11 intervene (Dkt. ## 9, 13) for January 6, 2017.
12

Dated this 15th day of December, 2016.

13

15

A

16

JAMES L. ROBART
United States District Judge

14

17
18
19
20
21
22
ORDER- 15