AP reports on denial of rehearing. Here’s a description of the case from the 2013 Supplement to Election Law: Cases and Materials (5th ed. 2012).
In Sanders County Republican Central Committee v. Bullock, 698 F.3d 741 (9th Cir. 2012), the Ninth Circuit held on a 2-1 vote that Montana’s law barring political parties from endorsing candidates in Montana’s nonpartisan judicial elections likely violated the First Amendment. The majority judged the law under strict scrutiny:
The district court found, and the parties do not here dispute, that Montana has a compelling interest in maintaining a fair and independent judiciary. Where Montana and the district court err, however, is in supposing that preventing political parties from endorsing judicial candidates is a necessary prerequisite to maintaining a fair and independent judiciary. See U.S. v. Alvarez [supra this Supplement at p. 40—Eds.] (“The First Amendment requires that the Government’s chosen restriction on the speech at issue be ‘actually necessary’ to achieve its interest.”); R.A.V. v. City of St. Paul, 505 U.S. 377, 395 (1992) (“[T]he danger of censorship presented by a facially content-based statute requires that that weapon be employed only where it is necessary to serve the asserted compelling interest.” (internal quotation marks and citations omitted)). Montana offers no evidence to support this facially doubtful proposition, and it flies in the face of the fact that many of the other 38 states that elect their judges not only allow party endorsements but require party nominations. Nor does Montana suggest that, as a result, the judiciaries of these other states lack fairness or integrity. See White (Kennedy, J., concurring). It may be, of course, that Montana reasonably believes that restricting political endorsements of judicial candidates enhances the independence of its judiciary; but such supposed “best practices” are not remotely sufficient to survive strict scrutiny. [The majority further held the law banning party endorsements was not narrowly tailored because Montana could switch to a system of appointed judges and the law was underinclusive because it did not bar endorsement by other political associations.]
The dissenting judge responded: “This decision is a big step backwards for the state of Montana, which we all agree has a compelling interest in maintaining an independent and impartial judiciary. The majority ignores the practical effects of its decision on that interest when it takes a formulaic approach to First Amendment doctrine. This is the first opinion to hold that even though a state has chosen a non-partisan judicial selection process, political parties have a right to endorse candidates. This means parties can work to secure judges’ commitments to the parties’ agendas in contravention of the non-partisan goal the state has chosen for its selection process.”
Who’s right?