A First Amendment Victory: Allowing Political Parties to Endorse Judicial Candidates

Posted by on Sep 19, 2012 in Updates

In a victory for free speech in political campaigns earlier this week, the Ninth Circuit in Sanders County Republican Central Committee v. Bullock enjoined Montana from enforcing a Montana statute that prohibits political parties from endorsing judicial candidates. The court ruled that the law violates the First Amendment’s protection of speech.
The Sanders County Republican Central Committee sought a preliminary injunction against the law, in order that the Committee be able to endorse judicial candidates. Quoting the Supreme Court in Citizens United, Judge Jed Rakoff, sitting by designation, wrote, “[t]he First Amendment ‘has its fullest and most urgent application to speech uttered during a campaign for political office.’” He then argued that the protection of speech applies not just to individuals, but to political parties as well. Citizens United, he noted, rejected the notion that “political speech of corporations or other associations should be treated differently” than that of individuals.

After finding that the statute on its face restricted the Committee’s First Amendment rights, the court then found that the Montana law was subject to strict scrutiny. The court found that the statute could not survive strict scrutiny because it did not further a compelling interest and was not narrowly tailored. Although Montana has a compelling interest in having fair judicial elections, the state was wrong to assume that “preventing political parties from endorsing judicial candidates is a necessary prerequisite to maintaining a fair and independent judiciary.” After all, many other states have elected judges but do not prohibit political parties from endorsing judicial candidates. There was no evidence that these states have unfair elections. Judge Rakoff also pointed out that Montana could appoint its judges if it were concerned about corrupting effects resulting from permitting political parties to endorse judicial candidates. Such a process, unlike the one challenged in this case, would not violate the First Amendment.

Noting that “[t]he loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury,” the court found the irreparable injury requirement for a preliminary injunction satisfied. Since the restriction on First Amendment rights outweighed the hardship to Montana, the balance of hardships favored the committee. The public interest also pointed in favor of granting the injunction.

Judge Mary Schroeder dissented. Schroeder ignored what Citizens United and other Supreme Court cases had to say about the First Amendment outside of an indirect reference that the state in White I “violated the First Amendment when it prohibited ‘candidates for judicial election from announcing their views on disputed legal and political issues,’” something that she thought played no role in this case because Sanders County dealt with whether a political party, rather than a candidate, had rights under the First Amendment. Her opinion focused instead on how the decision would lead to what she called “disruptions and distortions in the non-partisan processes states have developed in order to prevent judicial elections from turning on promises to decide cases in ways that will get votes.” Assuming such “distortions” would actually result from the court’s decision, it is doubtful that preventing them trumps upholding the First Amendment.

After all, although it may have already been the right decision anyhow, after Citizens United, it is obvious that the First Amendment protects the rights of political parties to endorse judicial candidates (the lawsuit dealt merely with endorsements, not the state’s ban on contributions to judicial candidates). Protecting political speech is, if not the primary purpose of the First Amendment, one of the top reasons for it. We may not want to elect judges in exactly the same ways as we elect other elected officials, but it is hard to square the First Amendment with prohibiting an organization from endorsing a candidate.

Read the opinion and dissent: