New State Law Could Prevent Political Participation by Immigrants, Lawsuit Says

by Ben Adlin

The state's largest immigrant rights organization is suing to overturn a new state law the group says could prevent hundreds of thousands of Washington residents from exercising their rights to free speech and assembly.

If allowed to stand, says Seattle-based immigrant and refugee rights nonprofit OneAmerica, the law could prevent even the most basic political participation by residents who aren't U.S. citizens, such as donating money to advocacy organizations or weighing in on issues that affect their lives.

"If enforced, SB 6152 will have a dramatic and disastrous effect on the political discourse in Washington," says the lawsuit, filed last week in King County Superior Court.

The law's Democratic backers have described the legislation as a way to combat foreign meddling in U.S. elections and the influence of corporate spending after the Citizens United ruling, which lifted restrictions on corporate political spending.

Plaintiffs in the case, however, including OneAmerica, a local union group and three individuals, claim the law's language is so vague and overbroad that it will stifle even legal political activity by non-citizen residents of the state. They're asking the court to declare the law unconstitutional and unenforceable.

"Well-meaning people in Olympia were trying to keep Vladimir Putin out of our elections, but instead what they did is keep refugees, Dreamers, and people on temporary visas from being able to participate," said Dmitri Iglitzin, lead attorney for the plaintiffs.

He said the complaint was filed Oct. 7 and has been assigned to Judge Douglass A. North.

Federal election law already prevents people who aren't U.S. citizens from giving directly to candidates or campaigns, but backers of the state legislation said SB 6152 was necessary because the Trump Administration was "no longer enforcing election laws."

"Due to the federal government's abdication of its duties, it falls to the states to fight effectively against foreign political influence," the bill's lead sponsor, state Sen. Jesse Salomon (D-Shoreline) said in a statement in March, after the legislation passed the House on a unanimous vote. "Washington state has strong campaign finance disclosure and transparency laws, but without this bill those laws lack meaningful restrictions and enforcement mechanisms against foreign political influence."

"This legislation is a step toward empowering Washington state to enforce laws which are not effectively being enforced at the state level," added state Rep. Mike Pellicciotti (D-Federal Way), who led the bill in the House. "We must do everything allowable under the Constitution to remove foreign corporate influence in our government, including stopping the flow of foreign money or involvement in our elections."

The law added to state campaign finance and spending disclosure rules by requiring contributors to certify, among other things, that "foreign nationals are not involved in making decisions regarding the contribution in any way."

In their complaint, OneAmerica and the other plaintiffs say that language is so potentially broad that it could infringe on rights guaranteed to "every person" under the state Constitution.

Roughly half a million current Washington residents would be classified as "foreign nationals" under the law, the complaint says. "Each of them is subject to state and local laws and has a legitimate interest in influencing public policy through the electoral process. They do this by making financial contributions where allowed under federal law and by assisting political organizations in determining what candidates and ballot measures to support or oppose."

One of the three individual plaintiffs in the case is Mudit Kakar, a member of OneAmerica's board of directors. A citizen of India, Kakar has lived in Washington since 2003. He graduated from the University of Washington School of Law in 2011 and is a practicing attorney in the state.

The lawsuit alleges that because OneAmerica's board helps steer what positions the organization should take on matters of public importance, SB 6152 would require Kakar to either resign his position or recuse himself from matters involving any sort of political advocacy.

"I don't get to decide who gets money for what, but as a board, we routinely vote on motions like whether to support a ballot initiative or not," Kakar told the Emerald. "This law as it's written, it creates this whole issue of I don't know if I'm unknowingly breaking the law."

Kakar also chairs the OneAmerica board's development and fundraising committee. "It's sort of my job to raise funds for OneAmerica," he said. "Now with this law, can I even do that? I don't know."

Like thousands of other Washington residents who aren't U.S. citizens, Kakar also gives to local organizations that themselves take positions on political issues. Many of those groups work on immigrant issues and other matters that directly affect Kakar's life and his treatment under the law. He says he's worried that if SB 6152 is upheld, immigrants, refugees, and other non-U.S. citizens will be barred from advocating for their own well-being.

"You can't participate in civic engagement that is actually meant for your own rights," he said.

Two other Washington residents are named as plaintiffs in the suit. One, a citizen of Mexico and undocumented immigrant, is a member of OneAmerica's Grassroots Leadership Council. The other is a citizen of South Korea and U.S. visa holder who serves as a local union steward.

Kakar said he understands and supports the need to prevent foreign governments from interfering in U.S. elections, but he called the law "tone deaf." He said SB 6152 unfairly lumps him and other Washington residents in with nefarious government actors.

"You're not thinking that, hey, this could go beyond what you're trying to do," he said. "The intent could be good, but what about the actual impacts of it?"

OneAmerica's communications director, Robin Engle, called the law "a perfect example of why we need to have refugees and immigrants involved in lawmaking."

"It's the result of well-meaning lawmakers who don't have the lived experience of being an immigrant or refugee" as well as "not bringing in those voices, not hearing those unintended consequences or understanding them" during the legislative process, she said. "By not consulting folks, by not reaching out, by not thinking through the unintended consequences, we've now created a problem that we need to undo."

Reached via email on Friday, Sen. Salomon, the bill's sponsor, said he was eager to discuss the issue but could not provide a comment before the end of the day. Rep. Pellicciotti did not reply to a request for comment.

After this story was published, Salomon sent the Emerald an additional statement through a spokesperson for the state Senate Democrats.

"It was never my intent to stifle lawful political activity of non-citizen residents of Washington," he said. "This bill was passed in response to the lack of action at the federal level to confront foreign government interference in our elections.

"My feelings were and still are that if the feds weren't going to act to prevent foreign government and corporate money pouring into elections, at least we can do it in Washington," he added. "This bill adopts the same prohibition as existing federal law and is in no way intended to dissuade legal permanent residents and citizens from legal participation in the democratic process."

In addition to suing the state, the complaint names the state Attorney General's Office and the state Public Disclosure Commission (PDC) as well as Attorney General Bob Ferguson and PDC Executive Director Peter Lavallee in their official capacities. Either the PDC or the Attorney General's Office are able to enforce the new law.

A spokesperson for Ferguson declined to answer specific questions about the lawsuit, instead directing the Emerald to the PDC.

A PDC spokesperson told the Emerald: "The Public Disclosure Commission implements the law as passed by the Legislature. It is our understanding that the Attorney General's Office defends any challenge to state laws, and we will work in support of that office's effort."

Iglitzin, the attorney for the plaintiffs, said while he's not particularly worried about Ferguson's office trying to enforce the law against individuals like Kakar, he's concerned that other groups could use the law to hamper participation by immigrants.

"Am I worried that Bob Ferguson is going to start enforcing this law against board members of groups like One America? No," he said. Rather, he's concerned that just about anyone can bring a claim under the law. "Unusually," he explained, "Washington state's campaign finance law has a provision that it can be enforced by any person."

Engle at OneAmerica described the law as a disappointing setback in a state that has often led the push against Trump administration efforts to exclude immigrants. She noted, for instance, Washington's statewide sanctuary status and a state fund to extend COVID-19 relief to undocumented immigrants. Washington also led a successful multistate challenge of President Trump's travel ban aimed squarely at majority-Muslim countries.

"At One America, we really care about increasing the civic and political participation of immigrants and refugees," said Engle. "This problem, this misreading of the law, takes us a step backwards when we really need to be moving forward.

Ben Adlin is a Seattle-based journalist.

Featured image is attributed to Molly Sims under a Creative Commons 2.0 License.

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