1 The Honorable Barbara J. Rothstein
5 IN THE UNITED STATES DISTRICT COURT 6 FOR THE WESTERN DISTRICT OF WASHINGTON 7 AT SEATTLE
8 AMBER KRABACH,
9 Plaintiff, Civil Action No. 2:22-cv-1252-BJR v. 10 ORDER DENYING PLAINTIFF’S 11 KING COUNTY et al., MOTION FOR PRELIMINARY INJUNCTION 12 Defendant.
15 I. INTRODUCTION 16 Plaintiff Amber Krabach (“Plaintiff”) filed this complaint for declaratory and injunctive 17 relief against King County, Julie Wise in her individual capacity and in her capacity as the 18 Director of King County Elections, Steve Hobbs in his official capacity as Secretary of State of 19 Washington, and Jay Inslee in his official capacity as Governor of the State of Washington 20 (collectively “Defendants”). Dkt. No. 1. Plaintiff alleges that Defendants violated her state and 21 federal constitutional rights by removing signs she caused to be placed near ballot collection 22 23 boxes in King County during the August 2022 Washington State primary election. Plaintiff 24 alleges that Defendants removed the signs pursuant to Washington election laws RCW 25 29A.84.510(1) and RCW 29A.84.520 and corresponding administrative regulation W.A.C. 434- 26 250-100(6). She asserts that these statutes and regulation both facially, and as applied to her 27 1 activities, violate her right to free speech as secured by the First Amendment to the United States 2 Constitution and/or Washington’s Constitution. 3 Plaintiff wishes to repost the signs near the ballot drop boxes during the upcoming 4 midterm election but fears criminal retribution by Defendants; therefore, she filed the instant 5 motion for a preliminary injunction prohibiting: (1) Defendants from removing the signs and/or 6 7 otherwise discriminate against Plaintiff’s First Amendment activities, (2) “prohibiting Defendants 8 from enforce[ing] RCW 29A.84.510(1)(a), RCW 29A.84.520, and/or W.A.C. 434-250-100(6), 9 and (3) “prohibiting Defendants from maintaining and/or implementing RCW 29A.84.510(1)(a), 10 RCW 29A.84.520, and/or W.A.C. 434-250-100(6), in any capacity, as those provisions are 11 facially overbroad, and/or void-for-vagueness.” Dkt. No. 1 at Relief Requested ¶ 9. Defendants 12 oppose the motion. Dkt. Nos. 19 & 22. Having reviewed the motion, the oppositions thereto, the 13 record of the case, and the relevant legal authority, the Court will deny the motion. The reasoning 14 15 for the Court’s decision follows. 16 II. BACKGROUND 17 Plaintiff is a resident of King County who unsuccessfully ran for the Washington State 18 Legislature in the August 2022 Washington State primary election. Prior to the August 2022 19 election, Plaintiff printed and distributed signs containing the following message: “This Ballot 20 Dropbox is Under Surveillance – Accepting compensation for harvesting or depositing ballots 21 may be a violation of federal law. 52 U.S. Code § 20511; 18 U.S. Code § 594. Please report 22 23 suspicious activity here [to a URL code].” She caused the signs to be placed near ballot drop 24 boxes located in King County starting on July 15, 2022. She alleges that the signs were placed “at 25 least 50-100 feet away from the ballot drop boxes themselves, in public rights of way and other 26 areas where campaign signs by various candidates were permitted and appeared.” Dkt. No. 1 ¶ 25. 27 1 Plaintiff alleges that “[w]ithin days of the signs going up”, she received a “cease-and- 2 desist letter penned by Mathew Patrick Thomas, Chairman of the [King County] GOP, demanding 3 that [she] ‘…immediately cease and desist in the publication, distribution and use of these signs 4 and any reference to the KCGOP or the KCGOP EIC in any form.’” Id. at ¶ 29, quoting Exhibit 2 5 to Complaint. She further alleges that the letter threatened legal action if the signs were not 6 7 “immediately removed and destroyed.” Id. Plaintiff asserts that the foregoing letter was sent at the 8 urging of Defendant Julie Wise, Director of King County Elections, who claimed that the signs 9 constituted illegal voter intimidation in violation of Washington and federal laws. Plaintiff further 10 claims that the signs were removed by Defendants’ agents and Defendants referred the matter to 11 the King County Sheriff’s Office for criminal investigation, as well as issued several press 12 releases condemning the placement of the signs as an attempt to intimidate voters. 13 Plaintiff alleges that Defendants removed the signs based on their interpretation and 14 15 implementation of RCW 29A.84.510(1), which in relevant part provides: 16 During the voting period that begins eighteen days before and ends the day of a special election, general election, or primary, no person may: (a) Within…any public 17 street or room in any public manner within…25 feet measured radially from a ballot drop box as described in RCW 29A.40.170: (i) Suggest or persuade or attempt to 18 suggest or persuade any voter to vote for or against any candidate or ballot measure; 19 … (iv) Engage in any practice which interferes with the freedom of voters to exercise their franchise or disrupts the administration of the voting center. 20 Plaintiff also claims that Defendants acted pursuant to RCW 29A.84.520 which states, in 21 relevant part, that [“a]ny election officer who does any electioneering at a voting center or 22 23 ballot drop location during the voting period that begins eighteen days before and ends the 24 day of a special election, general election, or primary election is guilty of a misdemeanor 25 …” Lastly, Plaintiff asserts that Defendants acted pursuant to W.A.C. 434-250-100(6) 26 which provides that “[w]ithin twenty-five feet of a ballot deposit site that is not located 27 1 within a voting center, no person may electioneer, circulate campaign material, solicit 2 petition signatures, or interfere with or impede the voting process. Whenever it is 3 necessary to maintain order around a ballot deposit site, the county auditor may contact a 4 law enforcement agency for assistance.” 5 Plaintiff contends that the foregoing statutes and regulation are overbroad and 6 7 therefore unconstitutional on their face; she also contends that they are unconstitutional as 8 applied to her activities. She further claims that she wishes to “continue speaking upon 9 ballot box surveillance and similar matters concerning the [upcoming] 2022 general 10 elections in Washington state, but has presently been chilled in her speech by the 11 enforcement efforts of [Defendants].” Dkt. No. 12 at 14. Therefore, with the instant 12 motion, she seeks an injection from this Court barring Defendants from enforcing the 13 foregoing statutes and regulation against her. 14 15 III. DISCUSSION 16 A. Legal Standard 17 “A preliminary injunction is an extraordinary and drastic remedy; it is never 18 awarded as of right.” Munaf v. Geren, 553 U.S. 674, 689-90 (2008) (internal citations 19 omitted).
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1 The Honorable Barbara J. Rothstein
5 IN THE UNITED STATES DISTRICT COURT 6 FOR THE WESTERN DISTRICT OF WASHINGTON 7 AT SEATTLE
8 AMBER KRABACH,
9 Plaintiff, Civil Action No. 2:22-cv-1252-BJR v. 10 ORDER DENYING PLAINTIFF’S 11 KING COUNTY et al., MOTION FOR PRELIMINARY INJUNCTION 12 Defendant.
15 I. INTRODUCTION 16 Plaintiff Amber Krabach (“Plaintiff”) filed this complaint for declaratory and injunctive 17 relief against King County, Julie Wise in her individual capacity and in her capacity as the 18 Director of King County Elections, Steve Hobbs in his official capacity as Secretary of State of 19 Washington, and Jay Inslee in his official capacity as Governor of the State of Washington 20 (collectively “Defendants”). Dkt. No. 1. Plaintiff alleges that Defendants violated her state and 21 federal constitutional rights by removing signs she caused to be placed near ballot collection 22 23 boxes in King County during the August 2022 Washington State primary election. Plaintiff 24 alleges that Defendants removed the signs pursuant to Washington election laws RCW 25 29A.84.510(1) and RCW 29A.84.520 and corresponding administrative regulation W.A.C. 434- 26 250-100(6). She asserts that these statutes and regulation both facially, and as applied to her 27 1 activities, violate her right to free speech as secured by the First Amendment to the United States 2 Constitution and/or Washington’s Constitution. 3 Plaintiff wishes to repost the signs near the ballot drop boxes during the upcoming 4 midterm election but fears criminal retribution by Defendants; therefore, she filed the instant 5 motion for a preliminary injunction prohibiting: (1) Defendants from removing the signs and/or 6 7 otherwise discriminate against Plaintiff’s First Amendment activities, (2) “prohibiting Defendants 8 from enforce[ing] RCW 29A.84.510(1)(a), RCW 29A.84.520, and/or W.A.C. 434-250-100(6), 9 and (3) “prohibiting Defendants from maintaining and/or implementing RCW 29A.84.510(1)(a), 10 RCW 29A.84.520, and/or W.A.C. 434-250-100(6), in any capacity, as those provisions are 11 facially overbroad, and/or void-for-vagueness.” Dkt. No. 1 at Relief Requested ¶ 9. Defendants 12 oppose the motion. Dkt. Nos. 19 & 22. Having reviewed the motion, the oppositions thereto, the 13 record of the case, and the relevant legal authority, the Court will deny the motion. The reasoning 14 15 for the Court’s decision follows. 16 II. BACKGROUND 17 Plaintiff is a resident of King County who unsuccessfully ran for the Washington State 18 Legislature in the August 2022 Washington State primary election. Prior to the August 2022 19 election, Plaintiff printed and distributed signs containing the following message: “This Ballot 20 Dropbox is Under Surveillance – Accepting compensation for harvesting or depositing ballots 21 may be a violation of federal law. 52 U.S. Code § 20511; 18 U.S. Code § 594. Please report 22 23 suspicious activity here [to a URL code].” She caused the signs to be placed near ballot drop 24 boxes located in King County starting on July 15, 2022. She alleges that the signs were placed “at 25 least 50-100 feet away from the ballot drop boxes themselves, in public rights of way and other 26 areas where campaign signs by various candidates were permitted and appeared.” Dkt. No. 1 ¶ 25. 27 1 Plaintiff alleges that “[w]ithin days of the signs going up”, she received a “cease-and- 2 desist letter penned by Mathew Patrick Thomas, Chairman of the [King County] GOP, demanding 3 that [she] ‘…immediately cease and desist in the publication, distribution and use of these signs 4 and any reference to the KCGOP or the KCGOP EIC in any form.’” Id. at ¶ 29, quoting Exhibit 2 5 to Complaint. She further alleges that the letter threatened legal action if the signs were not 6 7 “immediately removed and destroyed.” Id. Plaintiff asserts that the foregoing letter was sent at the 8 urging of Defendant Julie Wise, Director of King County Elections, who claimed that the signs 9 constituted illegal voter intimidation in violation of Washington and federal laws. Plaintiff further 10 claims that the signs were removed by Defendants’ agents and Defendants referred the matter to 11 the King County Sheriff’s Office for criminal investigation, as well as issued several press 12 releases condemning the placement of the signs as an attempt to intimidate voters. 13 Plaintiff alleges that Defendants removed the signs based on their interpretation and 14 15 implementation of RCW 29A.84.510(1), which in relevant part provides: 16 During the voting period that begins eighteen days before and ends the day of a special election, general election, or primary, no person may: (a) Within…any public 17 street or room in any public manner within…25 feet measured radially from a ballot drop box as described in RCW 29A.40.170: (i) Suggest or persuade or attempt to 18 suggest or persuade any voter to vote for or against any candidate or ballot measure; 19 … (iv) Engage in any practice which interferes with the freedom of voters to exercise their franchise or disrupts the administration of the voting center. 20 Plaintiff also claims that Defendants acted pursuant to RCW 29A.84.520 which states, in 21 relevant part, that [“a]ny election officer who does any electioneering at a voting center or 22 23 ballot drop location during the voting period that begins eighteen days before and ends the 24 day of a special election, general election, or primary election is guilty of a misdemeanor 25 …” Lastly, Plaintiff asserts that Defendants acted pursuant to W.A.C. 434-250-100(6) 26 which provides that “[w]ithin twenty-five feet of a ballot deposit site that is not located 27 1 within a voting center, no person may electioneer, circulate campaign material, solicit 2 petition signatures, or interfere with or impede the voting process. Whenever it is 3 necessary to maintain order around a ballot deposit site, the county auditor may contact a 4 law enforcement agency for assistance.” 5 Plaintiff contends that the foregoing statutes and regulation are overbroad and 6 7 therefore unconstitutional on their face; she also contends that they are unconstitutional as 8 applied to her activities. She further claims that she wishes to “continue speaking upon 9 ballot box surveillance and similar matters concerning the [upcoming] 2022 general 10 elections in Washington state, but has presently been chilled in her speech by the 11 enforcement efforts of [Defendants].” Dkt. No. 12 at 14. Therefore, with the instant 12 motion, she seeks an injection from this Court barring Defendants from enforcing the 13 foregoing statutes and regulation against her. 14 15 III. DISCUSSION 16 A. Legal Standard 17 “A preliminary injunction is an extraordinary and drastic remedy; it is never 18 awarded as of right.” Munaf v. Geren, 553 U.S. 674, 689-90 (2008) (internal citations 19 omitted). Plaintiff must make a “clear showing” that: (1) she is likely to succeed on the 20 merits; (2) in the absence of an injunction, she would likely suffer irreparable harm; (3) 21 the balance of equities tips in her favor; and (4) an injunction is in the public interest. 22 23 Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). The Ninth Circuit follows a 24 “‘sliding scale’ approach to evaluating the first and third Winter elements, [where] a 25 preliminary injunction may be granted when there are ‘serious questions going to the 26 merits and a hardship balance that tips sharply toward the plaintiff,’ so long as ‘the other 27 1 two elements of the Winter test are also met.’” Ass’n des Eleveurs de Canards et d'Oies du 2 Quebec v. Harris, 729 F.3d 937, 944 (9th Cir. 2013) (quoting Alliance for the Wild 3 Rockies v. Cottrell, 632 F.3d 1127, 1131–32 (9th Cir. 2011)). 4 B. Discussion 5 “Courts asked to issue preliminary injunctions based on First Amendment grounds 6 7 face an inherent tension: the moving party bears the burden of showing likely success on 8 the merits ... and yet within that merits determination the government bears the burden of 9 justifying its speech-restrictive law.” California Chamber of Com. v. Council for Educ. & 10 Rsch. on Toxics, 29 F.4th 468, 477 (9th Cir. 2022) (quoting Thalheimer v. City of San 11 Diego, 645 F.3d 1109, 1115 (9th Cir. 2011), overruled on other grounds by Bd. of Trs. of 12 Glazing Health & Welfare Tr. v. Chambers, 941 F.3d 1195, 1199 (9th Cir. 2019) (en 13 banc)). “Therefore, in the First Amendment context, the moving party bears the initial 14 15 burden of making a colorable claim that its First Amendment rights have been infringed, 16 or are threatened with infringement, at which point the burden shifts to the government to 17 justify the restriction” on speech. Id. at 478. 18 The parties do not dispute that Defendants ordered the removal of Plaintiff’s signs 19 because, in Defendants’ view, the signs constituted voter intimidation in violation of state 20 and federal law. See e.g. Dkt. No. 1 ¶ 34 (citing a press release in which Director Wise 21 states that the signs constitute illegal voter intimidation); ¶ 37 (King County Executive 22 23 Dow Constantine characterizing the signs as voter intimidation); ¶ 38 (King County 24 Prosecutor Satterberg describing the signs as illegal voter intimidation); ¶ 41 (Governor 25 Inslee describing the signs as attempted voter suppression). However, rather than address 26 the relevant state and federal voter intimidation statutes—RCW 29A.84.620, RCW 27 1 29A.84.630, and 52 U.S.C. § 10307(b)—Plaintiff focuses her challenge to Defendants’ 2 actions on RCW 29A.84.510(1) (prohibiting certain actions within 25 feet of a ballot drop 3 box) and RCW 29A.84.520 (prohibiting certain actions by an “election officer”) and a 4 supporting regulation. See Dkt. Nos. 1 & 12 (identifying the challenged statutes). Not only 5 are Defendants clear that these statutes played no role in their decision to remove the 6 7 signs, see Dkt. No. 22 at 1 (“[t]hese statutes and regulations are irrelevant” and “did not 8 cause Director Wise’s actions”), but the complaint itself demonstrates that the statutes are 9 not relevant to this lawsuit. For instance, the complaint alleges that the signs were placed 10 well-outside the 25-foot limitation imposed by RCW 29A.84.510(1). See Dkt. No. 1 ¶ 25 11 (“Plaintiff instructed the individuals who received signs to place them at least 50-100 feet 12 away from the ballot boxes themselves…”). Likewise, the complaint is careful to allege 13 that Plaintiff’s actions were not that of an “election officer”, but rather undertaken in her 14 15 individual capacity, thus rendering RCW 29A.84.520 inapplicable. Id. ¶ 15 (“All of 16 Plaintiff’s First Amendment activities and other activities as alleged infra were undertaken 17 in her individual capacity, as a resident of Washington and of King County, and were not 18 financed by, nor affiliated with, the KC GOP in any way.”). Plaintiff wishes to post her 19 signs at ballot drop boxes during the upcoming Washington State midterm election; 20 however, even if this Court were to award her the relief she seeks and determine that 21 RCW 29A.84.510(1) and RCW 29A.84.520 and the corresponding regulation are 22 23 constitutionally infirm, such relief would not prohibit Defendants from removing the signs 24 during the upcoming election because they would do so pursuant to entirely different 25 statutes. 26 27 1 In short, Plaintiff asks this Court to opine on the constitutionality of certain state 2 statutes that are wholly irrelevant to the matter at hand, something the Court is prohibited 3 from doing. Thomas v. Anchorage Equal Rights Com’n, 220 F.3d 1134, 1138 (9th Cir. 4 2000) (“[The court’s] role is neither to issue advisory opinions nor to declare rights in 5 hypothetical cases, but to adjudicate live cases or controversies consistent with the powers 6 7 granted the judiciary in Article III of the Constitution.”). Therefore, Plaintiff’s motion for 8 a preliminary injunction must be denied. 9 IV. CONCLUSION 10 For the foregoing reasons, Plaintiff’s motion for preliminary injunction is 11 HEREBY DENIED. 12 Dated this 19th day of October 2022. 13 A 14 15 B arbara Jacobs Rothstein 16 U.S. District Court Judge
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