Defending the First Amendment in Judicial Elections
July 21, 2010
Kentucky can no longer restrict the First Amendment rights of judicial candidates by forbidding them from disclosing their party affiliations or barring them from soliciting campaign funds, according to a recent ruling by the 6th U.S. Circuit Court of Appeals. Judge Jeffrey Sutton wrote for the majority:
“While we do not question Kentucky’s right to select judges through popular elections, the Commonwealth cannot exempt itself from the demands of the First Amendment in the process.”
“There is room for debate about whether the election of state court judges is a good idea or a bad one. Yet this is no room for debate that, if a State opts to select its judges through popular elections, it must comply with the First Amendment in doing so.”
In striking down Kentucky’s “party affiliation clause,” Judge Sutton noted that “informational bans premised on the fear that voters cannot handle the disclosure have a long history of being legislatively tried and judicially struck …”
“The canon … prohibits only disclosure of a candidate’s party membership, not party membership itself…. A party’s undisclosed potential influence on candidates is far worse than is disclosed influence, as the one allows a full airing of the issue before the voters, while the other helps shield it from public view.”
“Voters often resort to a variety of proxies in selecting judges and other office holders, some good, some bad. And while political identification may be an unhelpful way to pick judges, it assuredly beats other grounds, such as the all-too-familiar formula of running candidates with familiar or popular last names. As the district court correctly concluded, this clause violates the First Amendment on its face.”
Kentucky’s “solicitation clause” unfairly tips the scales toward certain candidates while failing to mitigate appearances of undue influence:
“Prohibiting candidates from asking for money suppresses speech in the most conspicuous of ways and, in the process, favors some candidates over others – incumbent judges (who benefit from their current status) over non-judicial candidates, the well-to-to (who may not need to raise any money at all) over lower-income candidates, and the well-connected (who have an army of potential fundraisers) over outsiders.”
Kentucky’s solicitation clause “leaves a rule preventing a candidate from sending a signed mass mailing to every voter in the district but permitting the candidate’s best friend to ask for a donation directly from an attorney who frequently practices before the court. Are not the risks of coercion and undue appearance far less with the first (prohibited) solicitation than the second (permitted) one?”
The decision promises to have broad implications for states which similarly attempt to control speech and prevent voters from learning relevant facts about judicial candidates. A Columbus Dispatch editorial, for example, predicts the ruling will force Ohio to scrap similar First Amendment prohibitions and rekindle the debate over “merit” selection. Ohioans have twice rejected proposed constitutional amendments to abolish democratic judicial elections, but well-funded special interest groups, like Justice at Stake, are spending millions lobbying for a “merit” system.