Balancing Nonpartisan Judicial Elections with Candidates’ First Amendment Rights in Kentucky
March 30, 2017
By: Carrie Mattingly
In Kentucky, all state court judges are elected in nonpartisan elections. Kentucky’s Code of Judicial Conduct seeks to keep candidates on nonpartisan message. But the 6th Circuit Court of Appeals recently struck down some judicial campaign restrictions on First Amendment grounds.
One sitting and two aspiring Kentucky judges brought suit to stop the enforcement of these judicial canons against them. Robert A. Winter, Jr. distributed campaign literature identifying himself as a “lifelong Republican,” and he received a letter stating that this literature may have violated the canon prohibiting campaigning “as a member of a political organization.” Judge Allison Jones asked voters to “re-elect” her, even though she was initially appointed to her seat, and pledged to provide stiff penalties for heroin dealers if elected. She also received a letter stating that her “re-elect” statement may have violated the canon prohibiting “false and misleading statements” and that her “stiff penalties” comment may have been an impermissible “commitment” inconsistent with the impartial performance of judicial duties. Finally, Judge Cameron J. Blau wished to give speeches supporting the Republican Party, to hold Republican fundraisers, to seek and receive Republican endorsements, and to donate to candidates and to the party, but he refrained in fear of sanctions.
Altogether, the plaintiffs challenged eight features of the Code, and the 6th Circuit in its opinion applied strict scrutiny to each.
First, the court found the canon prohibiting judicial candidates from campaigning as members of a political organization, interpreted to mean candidates may not portray themselves as official nominees of a political party, to be vague and unconstitutionally overbroad. “The problem with this canon,” the court stated, was that it was “unclear when candidates go from permissibly affiliating with a party to illegally implying that they are the nominee of a party.”
Second, the court found the canon banning judicial candidates from making “speeches for or against a political organization or candidate” to be facially invalid. Candidates have a free speech right to say they are Republicans or Democrats. This canon would bar speeches in which candidates say they are “for the Republican [or Democratic] party.” The canon was under-inclusive, because it did not bar candidates from giving speeches for interest groups like the NRA or Planned Parenthood. And the canon was over-inclusive, because it banned speech “functionally identical” to permitted speech—that is, speech identifying candidates as either Republican or Democrat.
Third, the court upheld the canon prohibiting judicial candidates from making contributions to political organizations or candidates. The court rejected plaintiffs’ argument that, because candidates may declare party affiliation, they must also be able to contribute to that party. Such contributions are not communications about a candidate’s qualifications or beliefs; instead, they are “an effort to affect a separate political campaign.” Therefore, the canon narrowly served Kentucky’s compelling interest in preventing the appearance that judicial candidates may fall into quid pro quo politics.
Fourth, the court upheld the canon prohibiting judicial candidates from publicly endorsing or opposing candidates for public office. Because endorsements are “exchanged between political actors on a quid pro quo basis,” the canon prohibiting endorsements “narrowly address[ed] Kentucky’s compelling interest in keeping its judges above the partisan fray of trading political favors.”
Fifth, the court upheld the canon banning judges from holding an office or leadership role in a political organization, interpreted to mean hosting a political event would be prohibited. The candidate challenging this canon wished to hold a fundraiser, and the court said the state could “comfortably ban that kind of event,” because fundraisers bring a judge’s impartiality into question and can cause the public to lose faith in apolitical judging.
Sixth, the court found the canon prohibiting judicial candidates from knowingly, or with reckless disregard for the truth, making any false statements during a campaign to be constitutional on its face. The court said that “[t]he narrowest way to keep judges honest during their campaigns is to prohibit them from consciously making false statements.” But the prohibition did not survive strict scrutiny as applied to Jones, who was found to have violated the canon when she asked for voters to re-elect her despite the fact that she had been appointed. According to the court, “re-elect” was a broad term that could be interpreted more than one way, and a ban on this particular speech would not serve Kentucky’s interest in ensuring candidates do not knowingly tell lies.
Seventh, the court struck the canon banning misleading statements as a First Amendment violation. If “misleading” adds anything to “false,” reasoned the court, it would include statements that are technically true but give rise to false inferences. Negligent misstatements must be protected to give protected speech breathing room.
Finally, the court hesitantly rejected a challenge to the canon prohibiting candidates from making commitments inconsistent with the impartial performance of judicial duties. The court stated unequivocally that “Kentucky may prohibit judges from making commitments to decide specific cases in a certain way.” If impartiality means impartiality as to the parties in a dispute, the clause may survive strict scrutiny. The court decided to “wait and see” how Kentucky interpreted the prohibition.
The 6th Circuit’s decision may serve as a guide for states that seek to enforce their decision to keep judicial races nonpartisan. The general rule seems to be that states cannot restrict communications regarding candidate qualifications and beliefs. But compelling state interests may justify restricting activities that pose a risk to judicial integrity.