Bans on Political Party Endorsements of Judges Held Invalid

November 29, 2012 by Rob Natelson
Filed under: All Postings 

RGN Montpelier '07A federal appeals court has struck down a Montana law forbidding political parties from endorsing candidates in non-partisan judicial elections. The court order does not affect the system by which candidates for judgeships run without party designation. But it does affirm the right of political parties to speak their minds about those candidates.

Non-partisan elections tend to be popular among naive people who assume that “non-partisan” means “non-political.” They also are popular among political insiders. But they are not good for democracy.

In partisan elections, political parties disseminate information about their candidates and their opponents. As unpopular and as tiring as political ads are, they do provide voters with data they otherwise wouldn’t have.

In non-partisan elections, on the other hand, the political leanings of the candidates are often cloaked. Insiders know which candidates are Republicans and which are Democrats. They know what interest groups are backing whom. And they know the candidates’ records. But the general public hasn’t a clue to any of this. That’s a major reason why many insiders and political junkies traditionally have promoted “non-partisan” contests: In non-partisan elections, their own knowledge of the system gives them an added advantage over most voters.

The effect of “non-partisanship” is particularly marked in judicial elections, where candidates are often elected by constituents who would never vote for them if they had access to those candidates’ records and beliefs.

That’s why the Republican Party of Montana’s Sanders County sued to void the state law that forbade the party from expressing its opinion on judicial candidates. Certainly the law would seem to violate the Free Speech guarantee of the First Amendment. After all, the ability of individuals and political groups to speak out on the merits of candidates in contested elections is central to the functioning of our democratic republic. Nevertheless, the federal district court judge who heard the case ruled that the law was valid.

But on appeal, the United States Court of Appeals for the Ninth Circuit reversed. And the views of the four judges who heard the case (the district judge plus the three on the appeals panel) did not follow the party designation of the President who appointed them.

The most salient fact of judicial elections in Montana and in many other states with “non-partisan” elections is voter ignorance. The Sanders County decision may begin to change that. And what of the fear that political party involvement in judicial elections might decrease the quality of the bench? The history of states with partisan elections doesn’t suggest that will happen.

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