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Balancing Nonpartisan Judicial Elections with Candidates’ First Amendment Rights in Kentucky


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.

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Exercise of Democracy or Destruction of Impartiality: Election of Judges in Ohio

By Chris Keslar:

States select their judges in a couple different ways, but in thirty-nine states most or all judges are elected. Supporters of competitive elections for judges say that it is “the most democratic way to make judges accountable to the public.” Ohio is one such state, through constitutional mandate, to hold elections for judges. But do we really want courts to be accountable to the public? Or is the integrity of the law and its effective application of greater concern for the judiciary, and if so, is it incompatible with the interest of public accountability. Continue reading

Politics and courts in Oklahoma: Recipe for Accountability? Or Corruption?

by Grant McLoughlin

Oklahoma Judicial elections have long been afterthoughts. Oklahoma has a two tiered system for selecting judges. Voters elect local trial judges directly through a non-partisan Top Two primary. Every four years local trial judges must run for re-election. Statewide appellate judges are nominated through a nonpartisan judicial nominating commission. The commission is made up of fifteen members, six lawyers and nine non lawyers. The commission sends a list of candidates to the governor, who then appoints those individuals she thinks best to serve. Appellate judges, whether recently appointed or not, then face voters on a nonpartisan retention ballot every four years. Voters have two options: they can either keep the judge; or remove the judge, causing the nominating process to begin anew to fill the vacancy.  Prior to this system judges ran in partisan races and were forced to commit a great deal of time to campaigning and raising funds.  Since the retention system has been in place in Oklahoma, no judge has ever been removed through a vote of the people. Continue reading

New Mexico Supreme Court candidate disqualified

New Mexico Supreme Court Says Judicial Candidate was Properly Disqualified from Election and Fined for Violations of Public Campaign Financing Law

On April 12, 2012, the New Mexico Supreme Court found that candidate for a seat on the New Mexico Court of Appeals was properly disqualified from the election and fined. The case, Montoya v. Herrera concerned Dennis Montoya’s 2010 bid for a seat on the state appeals court. Judge Linda Vanzi was running to confirm the seat to which the governor had appointed her three years earlier and continue her job with the approval of voters. Montoya ran against her, and applied for public funding under the New Mexico Voter Action Act.

Then-secretary of state, Mary Herrera, “informed Appellant by letter that he was not qualified to receive public funding because he had violated the Act’s contribution limits and reporting requirements.” After a hearing, the action was upheld because Montoya was found to have exceeded the seed money limits of the New Mexico Voter Action Act and failed to comply with the secretary’s reporting requirements. Herrera imposed a $2,000 fine on Montoya for his violations.

Montoya appealed the disqualification and fine, which went straight to the highest court because he was running for a seat on the intermediate appellate court. The state supreme court considered whether he had violated the seed money regulations of the act, which impose a $5,000 limit on a candidate’s contributions to his own campaign. Montoya contributed over $8,000 to his own campaign, but argued they were for general expenses rather than seed money. The state high court rejected that argument, saying there is no such distinction in the wording of the law.


The New Mexico Supreme Court explained that, “when [Montoya] contributed more than $8,000 of his own money to the campaign, while simultaneously applying for public funds, he violated the Act.  Under the law, the Secretary had no choice but to disqualify him from public financing, and she did so.” It also dismissed Montoya’s First-Amendment claim because he choose to apply for public financing, when self-financing campaigns is allowed. This is a somewhat surprising outcome, as First Amendment claims have done well elsewhere.

The court upheld the fine as well, because the secretary of state was required by law to impose a civil penalty on anyone who violates the Act, regardless of his or her intent or knowledge of the violation.

New Mexico Supreme Court opinion

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U.S. Court of Appeals for the Eighth Circuit Validates Iowa Judicial Nominating Commission’s Makeup

by Nick Mueller

On April 9, 2012 the Eighth Circuit dismissed a case brought by four Iowa voters challenging the constitutionality of the process for the selection of members of the State Judicial Nominating Commission, the commission that selects candidates for the Governor to nominate to the Iowa Supreme Court.  The issue in contention was that seven of the commission’s 15 members are required to be Iowa attorneys and that these attorneys are voted on not by the general public but by members of the Iowa bar.  The voters bringing the suit claimed that allowing only attorneys to vote, as opposed to the general public, violates the equal protection clause of the U.S. Constitution’s Fourteenth Amendment.

In deciding this case the court made a number of important legal findings.  It found that the commission served a “special and limited purpose” as opposed to performing “general governmental functions” such as taxing or issuing bonds.  It also found that, while the decisions of these members will affect all Iowans, they particularly affect attorneys in unique and amplified ways.  Having made these two findings they deem this election a “special interest election,” and under U.S. Supreme Court precedent, participation in such elections are reviewed with a lower level of scrutiny.  Instead of invoking the familiar “one person, one vote” standard, they ruled that as long as the selection process for commission members had a rational relationship to a legitimate government interest, then the process was constitutional. Continue reading

When judges take money: Campaign contributions in judicial elections

by Kevin Elliker

On March 29, 2012, the William & Mary Election Law Society and Election Law Program held a symposium entitled, “More Money, More Problems: Money in Judicial Elections” in Williamsburg, Virginia. The afternoon symposium featured two panels of distinguished speakers moderated by SCOTUSblog reporter Lyle Denniston.

The first panel focused on the financial issues surrounding judicial elections, specifically whether campaign contributions work differently in judicial elections than in legislative elections and if campaign donations result in some form of civic harm even when they do not reach the level of outright bribery. The panelists included: James Bopp, election mega-lawyer and litigator of Citizens United; Justice Thomas R. Phillips, former Chief Justice of the Supreme Court of Texas; and former Federal Elections Commission Chairman Bradley Smith, who currently serves as Josiah H. Blackmore/Shirley M. Nault Professor of Law at Capital University Law School and Chairman of the Center for Competitive Politics, an organization he founded. Continue reading

Attempts to shine light on the dark side of politics

by Jamel Rowe

Corruption—the dark side of politics— is a problem that legislatures and the general public have been battling since the creation of the United States government. Recently, Pennsylvania made the eradication of corruption in judicial elections its primary goal by introducing House Bill 1815 and House Bill 1816 to the General Assembly.

In Pennsylvania, candidates for the appellate and trial court must run in partisan elections and, consequently, must affiliate themselves with a particular party. Then they must be elected by popular vote. Proponents of judicial elections support the system because they believe it promotes accountability. They argue that judges, who routinely make policy decisions, are in essence legislators.  As a result, judges should be held accountable to the public just like legislators; if they fail to live up to their campaign promises, the public should have the ability to oust them from office. Continue reading

Interview with Joan Mandle, Executive Director of Democracy Matters

Joan Mandle, executive director of Democracy Matters, was kind enough to share with us her thoughts on some of the important issues confronting the American election process at this time. Democracy Matters is a national nonpartisan organization dedicated to getting private money out of elections.  It is the student branch of Common Cause, and in partnership these groups seek to remove the corruptive influence of money in politics, and ensure the accountability of elected officials, by establishing a viable system of publicly financed (or “clean”) elections on the state and national levels.

Democracy Matters’ staff and student organizers have been at work since 2001, when NBA player Adonal Foyle founded the organization.  Six states and two localities already have clean elections, and Democracy Matters hopes to expand that list in its campaign to deepen democracy. Continue reading

Weekly Wrap Up

No more automatic restoration of rights: Governor Rick Scott and the Florida Cabinet have recently attempted to change how released felon regain the right to vote. Their proposal, which the NAACP Legal Defense and Educational Fund suggests must get preclearance under Section 5 of the Voting Rights Act, would prevent people who committed non-violent felonies from regaining the right to vote for 5 years and the 5 year clock would restart if that person were arrested during that period, even if no charges are filed. Some have called these requirements a return to Jim Crow-style voting laws.

Campaign finance again in front of the Supreme Court: As mentioned on Tuesday, the U.S. Supreme Court heard oral arguments in McComish v. Bennett on Monday morning. The case is a constitutional challenge to Arizona’s Clean Elections Act, which includes a trigger fund provision for publicly-funded candidates. This is one a several such cases that have been heard in federal courts in the last year; several other challenges have come out of Florida, Connecticut, and most recently Wisconsin in the ongoing judicial elections.

“Fair Districts” Amendments go to the Justice Department: Three months after Governor Rick Scott quietly withdrew the preclearance request for the “Fair Districts” amendments (Amendments 5 and 6 to the Florida constitution), the legislature has renewed the request, after reviewing the amendments and deciding they were the proper body to make the request, as opposed to the governor. This, however, will likely not end the battle over these amendments as a lawsuit to block these amendments is still pending.

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Weekly Wrap Up

Voter fraud by the Chief Election Official?: Charlie White, the Indiana Secretary of State, is being investigated by a grand jury to determine if he committed voter fraud during the May 2010 primary. White is accused of intentionally voting at the wrong precinct, a potential felony.

Misspellings can count: The Alaska Senate unanimously passed a bill on February 14 clarifying procedures for counting write-in ballots. The bill, a response to the highly-contested 2010 election of write-in candidate Lisa Murkowski, allows votes that misspell the candidates name to count. The bill now moves to the Alaska House.

$2,500 recuses a judge: Elected judges in New York will no longer be allowed to hear cases where a lawyer or party has made contributions to his/her campaign in excess of $2,500 in the last two years. The decision, a new rule announced by the state’s chief judge, is designed to curtail the effects of money in judicial politics and will take effect after a 60-day comment period.

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