Bloomberg News

Montana Rule Banning Party Endorsements of Judges Blocked

September 17, 2012

Montana’s law making it a crime for political parties to endorse candidates in state judicial races was blocked by a federal appeals court that said it’s an unconstitutional ban on free speech.

A three-judge panel of the U.S. Court of Appeals in San Francisco ruled 2-1 today in a lawsuit brought by a county Republican committee against the state. A federal judge in June denied the committee’s request for an order stopping Montana from enforcing its judicial endorsement ban.

“Montana has a compelling interest in maintaining a fair and independent judiciary,” said U.S. District Judge Jed Rakoff, a Manhattan trial judge assigned to the appellate panel.

“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.”

Montana offered no support for that position, Rakoff said, noting that many of the 38 states that elect judges allow endorsements. The law is “unconstitutional on its face,” he said.

U.S. Circuit Judge Mary Schroeder dissented, calling the ruling a “a big step backward for the state of Montana.”

“This is the first opinion to hold that even though a state has chosen a nonpartisan judicial selection process, political parties have a right to endorse candidates,’” she said. “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.”

Montana Assistant Attorney Michael Black didn’t immediately respond to an email message sent after regular business hours seeking comment about the ruling.

The case is Sanders County Republican Central Committee v. Bullock, 12-35543, U.S. Court of Appeals for the Ninth Circuit (San Francisco).

To contact the reporter on this story: Karen Gullo in San Francisco at

To contact the editor responsible for this story: Michael Hytha at

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