Supreme Court Ruling Could Spur Partisan Judicial Campaigns

Times Staff Writer

The Supreme Court took another step Monday toward transforming state elections for judges from nonpartisan, low-key affairs into big-money contests.

The justices let stand a lower court ruling in a Minnesota case that voids rules forbidding judicial candidates from personally soliciting money or from identifying themselves as Republicans or Democrats.

The rules were voided using the rationale that they deprive candidates of free speech. About 30 states with similar provisions could be affected if the ruling spreads beyond the U.S. 8th Circuit Court of Appeals.


Monday’s decision “could open the floodgates of money into America’s courtrooms,” said the Washington-based group Justice at Stake. It will “ratchet up special-interest pressure on courts that are supposed to be fair and impartial.”

Minnesota sought to preserve the rules against such spending, contending they are “critical to ensuring that the state’s judiciary is -- and is seen to be -- above party politics and the corrupting influences of money.”

Thirty states are set to elect justices to their supreme courts this year. The court ruling comes against a backdrop of increased spending for judicial races by 45% between 2002 and 2004.

The Supreme Court decision will not necessarily have any immediate consequences in California, said Richard L. Hasen, an election law expert at Loyola Law School.

He said the decision, which left in place a ruling by the 8th Circuit, is not binding on the 9th Circuit, which handles appeals from California and eight other western states.

California’s Supreme Court justices are appointed by the governor for set terms, but must run to retain their seats. Judges of the state’s superior courts are elected in nonpartisan races. Some legal experts said Monday’s action by the high court suggested judges and judicial candidates were now free to run partisan campaigns.


“The implication for California is that the trial court judges could run as a Democrat or as a Republican. Before, they could be disciplined for doing that,” said Georgetown University law professor Roy A. Schotland, who had urged the Supreme Court to preserve the current rules for judges.

Hasen said there was nothing in the Supreme Court decision that would require California to elect judges through a partisan election.

But he said it was possible that a candidate might run a partisan campaign with the hope that the existing state law eventually would be overturned.

The high court triggered the move toward more expensive and partisan state judicial races four years ago, in Minnesota. It struck down the state’s code of conduct that barred judges and judicial candidates from announcing their views on issues that might come before the courts.

In a 5-4 ruling, the justices said the 1st Amendment’s guarantee of freedom of speech gave judges a right to speak out on controversies, even if their pronouncements might undercut their appearance of impartiality.

Since then, a series of other rules that restrict judicial candidates have been challenged in the lower courts, and nearly all of them have been struck down on free-speech grounds.


“This means we are moving toward no-holds-barred elections for judges. It also means the public will view judges like other pols and probably have less respect for courts,” said Schotland.

James Bopp Jr., who successfully challenged the rules on behalf of the Republican Party of Minnesota, agreed the high court’s action would probably have a wide impact.

“It’s becoming clear the 1st Amendment has a broad application to judicial elections and that the original foundation for the regulation of judicial elections has been pretty well destroyed,” he said.

Federal judges, including justices of the Supreme Court, are appointed by the president and confirmed by the Senate for life terms on the bench.

Though most other judges are elected, nearly all the states enforce judicial codes of conduct that limit the partisan political activity of sitting judges. Minnesota forbids its judges and judicial candidates from speaking at a political party’s meeting or from seeking a party’s endorsement.

In August, the full U.S. 8th Circuit Court of Appeals declared unconstitutional Minnesota’s rules forbidding judges from engaging in partisan activity and from personally seeking campaign funds.


The state appealed to the high court.

Minnesota was supported by the American Bar Assn., the Conference of (state) Chief Justices and 39 of the nation’s largest corporations. They included Dow Chemical, General Electric, General Motors, Johnson & Johnson, Time Warner and Wal-Mart.

These companies voiced concern at “the prospect of increasingly costly, divisive and partisan judicial elections.” Its officials also said they “often find themselves between a rock and a hard place” when a judge asks for campaign money. Giving “to even the most promising candidate has the potential to create an appearance of seeking favor in any future litigation,” the company lawyers said. “That potential is only compounded when the judge himself makes the request.”

Unswayed, the Supreme Court, without comment, turned down the appeal Monday in the case of Dimick vs. Republican Party of Minnesota, leaving the lower court’s decision intact.

In another election-related case, the justices said political activists may be able to air some broadcast ads that mention federal candidates, despite the McCain-Feingold Act and its ban on corporate-funded attack ads within 60 days of an election.

Two years ago, the Supreme Court upheld this law and said its limited ban on pre-election broadcast ads did not, in principle, violate the 1st Amendment. But that decision did not necessarily forbid specific challenges, the justices said in a brief 9-0 ruling on Monday.


Times staff writers Henry Weinstein and Jill Leovy contributed to this report.