6th Cir., in Thoughtful J. Sutton Opinion, Upholds Ban on Endorsements by Judicial Candidates

This strikes me as an exceptionally thoughtful opinion, upholding some judicial campaign regulations and striking down others.

It also shows how the Supreme Court’s Williams-Yulee decision has changed the calculus on which judicial campaign regulations can survive First Amendment attack.

Here’s a bit from the opinion upholding the ban on endorsements in other races:

Because endorsements often are “exchanged between political actors on a quid pro quo basis,” id., the endorsements clause is narrowly tailored to Kentucky’s compelling interest in preventing judges from becoming (or being perceived as becoming) part of partisan political machines. As long as Kentucky “does not regulate speech with regard to any underlying issues,” it may target “the act of endorsement itself, which . . . is a direct expression of bias in favor of or against potential parties to a case, or at the very least, damages the appearance of impartiality.” Wersal v. Sexton, 674 F.3d 1010, 1026 (8th Cir. 2012). A ban on such endorsements also guards against the risk that, once a judge is elected, he will not be able to (and he will not be perceived as being able to) referee disputes involving elected officials he did or did not endorse. The clause does not suffer from the too-much and too-little coverage problems that the speeches and contributions clauses do. The plaintiffs have not identified any protected speech banned by the endorsements clause that makes it over-inclusive. It does not prohibit speech in opposition to one’s own opponent any more than it prohibits “endorsing” oneself. Yet it does ban the endorsement of a candidate in a different race, an act that, like the personal solicitations in Williams-Yulee, signals the judicial candidate’s “active[] engage[ment] in political campaigns.” Wolfson, 811 F.3d at 1184 (upholding Arizona’s endorsement clause). While the clause is narrowly drawn, it is not perfectly drawn. It has a modest underinclusivity problem because, as the plaintiffs point out, and the Commentary to Canon 5 confirms, a judicial candidate may “privately express[] his or her views on judicial candidates or other candidates for public office.” True enough. But private expressions of approval or disapproval create far fewer quid pro quo appearance problems than the candidate formally putting his name and reputation behind another. The endorsements clause “aims squarely at the conduct most likely to undermine” non-partisanship in judicial elections and is thus narrowly tailored to that interest. Williams-Yulee, 135 S. Ct. at 1668.


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