A federal appeals court declared an end to Montana’s 68-year history of nonpartisan judicial elections and clears the way for party endorsement of judges. The 9th U.S. Circuit Court of Appeals, 2-1 vote, said Monday that Montana’s ban on political party endorsement of judicial candidates an unconstitutional restriction of First Amendment rights of free speech and association.
By criminalizing the endorsement or political contributions to judicial candidates “the voters of Montana are thus deprived of the full and robust exchange of views to which, under our Constitution, they are entitled,” wrote Judge Jed Rakoff, a visiting judge from the Southern District of New York. He was joined by Judge Ronald Gould.
In dissent, Judge Mary Schroeder said, “This decision is a big sstep backwards for the state of Montana, which we all agree has a compelling interest in maintaining an independent and impartial judiciary.”
She said the majority ignores the practical effects of its decision.
The result will encourage a judiciary dependent on political alliances and political endorsement will put judges in the debt of powerful political organizations, she said.
A split vote on a 9th Circuit panel, in which a visiting judge casts the deciding vote on a significant issue may mean the case will be reconsidered by the entire court, known as an en banc review by 11 judges. Montana would have to ask for such a vote.
The Montana Republican party sued to overturn the 1935 law limiting endorsements in judicial elections.
Political speech – including the endorsement of candidates for office – is at the core of speech protected by the First Amendment,” Rakoff wrote.
The decision overturns the action of U.S. District Judge Charles Lovell in June upholding Montana’s law keeping political parties out of judicial races.
The decision relies on the U.S. Supreme Court’s controversial decision known as Citizens United, which opened the floodgates to unfettered financial contributions to political campaigns.
Rakoff said the Montana law is a content-based restriction on political speech and association. He pointed out 38 states not only allow party endorsements but require party nomination of judges.
Montana, he said, lacks a compelling interest in forbidding political party endorsement of judicial candidates.
The decision blocks Montana from interfering with a political party’s endorsement of candidates, expenditure of money or publicizing of endorsements.
Case: Sanders County Republican Central Committee v. Bullock, No. 12-35543
Dissent available here.