No. 07-7965
IN THE
SUPREME COURT
OF THE
UNITED STATES
Gertrude C. Chase, Chair, New Columbus Election Board,
et al.,
Petitioners
v.
New Columbus Democratic Party, et al.,
Respondent.
ON WRIT OF CERTIORARI FROM THE
UNITED STATES COURT OF APPEALS
FOR THE FOURTEENTH CIRCUIT
BRIEF FOR PETITIONER
Team Number: 3654
QUESTIONS PRESENTED
1.
Under the First Amendment, do canons of judicial ethics
barring judicial candidates from (1) personally soliciting
campaign
contributions
learning
the
in-person
identities
of
or
by
individual
mail
and
campaign
(2)
donors
satisfy the “strict scrutiny” test where the state enacted
the
canons
to
maintain
the
appearance
and
actuality
of
impartiality in the judiciary?
2.
Whether the First Amendment allows New Columbus to restrict
judges
speaking
and
at
judicial
political
candidates
party
from
(1)
gatherings,
attending
(2)
and
identifying
themselves as members of a political party and (3) seeking,
accepting or using political party endorsements, to promote
judicial
impartiality
impartiality
in
its
and
the
appearance
nonpartisan
i
judicial
of
judicial
elections?
PARTIES TO THIS PROCEEDING
Pursuant to Supreme Court Rule 24.1(b), the parties to this
proceeding are as follows:
Petitioners (Defendants-Appellees below),
Gertrude C. Chase, in her capacity as the Chairperson of
the New Columbus Election Board or her successor; Neil G.
Katzen, in his capacity as Director of the New Columbus
Office of Attorney Ethics, or his successor; Dwayne F.
Pierce, in his capacity as Chair of the New Columbus Office
of Attorney Ethics,
v.
Respondents (Plaintiffs-Appellants below),
The New Columbus Democratic Party; Arthur B. Crandell; the
Democratic of the City of Troy; and the Milford City
Democratic Party.
ii
TABLE OF CONTENTS
Page
QUESTIONS PRESENTED..........................................
i.
PARTIES TO THIS PROCEEDING...................................
ii.
TABLE OF CONTENTS............................................
iii.
TABLE OF AUTHORITIES.........................................
v.
CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED.............
vii.
STATEMENT OF FACTS...........................................
1
STATEMENT OF THE CASE........................................
3
SUMMARY OF THE ARGUMENT......................................
4
ARGUMENT.....................................................
5
I.
THE CIRCUIT COURT HOLDING THAT THE SOLICITATION CLAUSE
VIOLATED THE FIRST AMENDMENT SHOULD BE REVERSED BECAUSE
THE SOLICITATION CLAUSE IS NARROWLY TAILORED TO SERVE
THE
COMPELLING
STATE
INTEREST
IN
AN
IMPARTIAL
JUDICIARY............................................... 7
A.
B.
Maintaining an impartial and uncorrupted judiciary is
a compelling state interest narrowly served by the
Solicitation Clause.................................. 8
1.
New Columbus has a compelling state interest in
guaranteeing due process to Litigants in its
courts........................................... 8
2.
New Columbus has a Compelling State Interest in
Maintaining the Appearance and Actuality of an
Impartial and Uncorrupted Judiciary.............. 12
The Solicitation Clause is narrowly tailored to serve
New
Columbus’
compelling
state
interest
in
maintaining
an
impartial
and
uncorrupted
judiciary............................................ 17
iii
II. THIS COURT SHOULD REVERSE THE CIRCUIT COURT’S HOLDING
THAT NEW COLUMBUS’ PARTISAN-ACTIVITIES RESTRICTIONS WERE
UNCONSTITUTIONAL BECAUSE NEW COLUMBUS NARROWLY TAILORED
THE RESTRICTIONS TO SERVE THE COMPELLING INTEREST OF
JUDICIAL IMPARTIALITY, THE APPEARANCE OF IMPARTIALITY,
AND PREVENTING CORRUPTION............................... 20
A.
New
Columbus
narrowly
tailored
its
PartisanActivities
Restrictions
to
preserve
judicial
impartiality
in
terms
of
bias
and
openmindedness........................................... 21
B.
New
Columbus
narrowly
tailored
its
PartisanActivities Restrictions to serve the compelling state
interest
of
the
appearance
of
judicial
impartiality......................................... 25
C.
New
Columbus’
Judicial
Canons
constitutionally
restrict
judges’
partisan
activities
to
limit
corruption........................................... 27
CONCLUSION...................................................
iv
30
TABLE OF AUTHORITIES
Supreme Court Cases
Aetna Life Ins. Co v. Lavoie, 475 U.S. 813 (1986)............8,9
Austin v. Michigan Chamber of Commerce,
494 U.S. 652 (1990)........................................28,29
Brown v. Hartlage, 456 U.S. 45 (1982).........................18
Buckley v. Valeo, 424 U.S. 1 (1976)......................5,16,28
Cox v. Louisiana, 379 U.S. 559 (1965)....................8,13,14
FEC v. Nat’l Conservative Political Action Comm.,
470 U.S. 480 (1985)...........................................16
First Nat’l Bank of Boston v. Bellotti, 435 U.S. 765 (1978)...16
Grutter v. Bollinger, 539 U.S. 306 (2003)......................6
Johnson v. Mississippi, 403 U.S. 212 (1971).................8,21
Marshall v. Jerrico, Inc., 446 U.S. 238 (1980)................21
McConnell v. FEC, 540 U.S. 93 (2003).................16,27,28,29
McIntyre v. Ohio Elections Comm’n, 514 U.S. 334 (1995).........5
Mistretta v. United States, 488 U.S. 361 (1989)............13,25
Nixon v. Shrink Missouri Gov’t PAC, 528 U.S. 377 (2000).......17
Republican Party of Minnesota v. White,
536 U.S. 765 (2002).......................................passim
Tumey v. Ohio, 273 U.S. 510 (1927).............................9
United States Civil Serv. Comm’n v. Nat’l Ass’n of Letter
Carriers, 413 U.S. 548 (1973)..............................27,28
Ward v. Village of Monroeville, 409 U.S. 57 (1972)..........9,21
v
Circuit Court Cases
Buckley v. Illinois Judicial Inquiry Bd.,
997 F.2d 224 (7th Cir. 1993)...............................14,15
State Court Cases
In re Kinsey, 842 So.2d 77 (Fla. 2003)..................22,23,26
In re Raab, 793 N.E.2d 1287 (N.Y. 2003)..............13,22,23,26
In re Watson, 100 N.Y.2d 290 (N.Y. 2003)...................22,23
Constitutional Provisions
U.S. CONST. amend. I.......................................passim
U.S. CONST. amend. XIV, § 1................................passim
Statutory Provisions
New Columbus Code of Judicial Conduct.....................passim
Other Legal Sources
Rachel Paine Caufield, In the Wake of White: How States
are Responding to Republican Party of Minnesota v. White
and How Judicial Elections are Changing,
38 AKRON L. REV. 625 (2005).................................
20
Steven Zeidman, Judicial Politics: Making the Case for
Merit Selection,
68 ALB. L. REV. 713 (2005)..................................
26,29
J. Jud. Advisory Comm. To the S.Ct. of N.Col., Final Notes
of the Comm. Secretary on Canons 1-7 of the Code of J.
Conduct (May 21, 1920)(on file at N.Col.S.Ct. Archives)...
24
vi
CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED
Constitutional Provisions
U.S. Const. amend. I.
Congress shall make no law respecting an establishment of
religion, or prohibiting the free exercise thereof; or abridging
the freedom of speech, or of the press; or the right of the
people peaceably to assemble, and to petition the Government for
a redress of grievances.
U.S. Const. amend. XIV., § 1.
All persons born or naturalized in the United States, and
subject to the jurisdiction thereof, are citizens of the United
States and of the State wherein they reside. No State shall make
or enforce any law which shall abridge the privileges or
immunities of citizens of the United States; nor shall any State
deprive any person of life, liberty, or property, without due
process of law; nor deny to any person within its jurisdiction
the equal protection of the laws.
New Columbus Code of Judicial Conduct
Canon 1: Except as authorized below, a judge or a candidate for
election to judicial office shall not:
(a) act as a leader or hold any office in a political
organization; identify him- or herself as a member of a
political organization, except as necessary to vote in an
election;
(b)
publicly
endorse
or,
except
for
the
judge
or
candidate’s opponent, publicly oppose another candidate for
public office;
(c) make speeches on behalf of a political organization;
(d) attend political gatherings; or seek, accept, or use
endorsements from a political organization; or
(e) solicit funds for or pay an assessment to or make a
contribution to a political organization or candidate, or
purchase tickets for political party dinners or other
functions.
Canon 2: A judge or a candidate for election to judicial office
may, except as prohibited by law,
(a) speak to gatherings, other than political organization
gatherings, on his or her own behalf;
(b) appear in newspaper, television and other media
advertisements supporting his or her candidacy; and
vii
(c) distribute pamphlets and other promotional
literature supporting his or her candidacy.
campaign
Canon 3: A judge or a candidate for election to judicial office
shall not personally solicit or accept campaign contributions to
conduct
campaigns
for
the
candidate
through
media
advertisements, brochures, mailings, candidate forums, and other
means not prohibited by law. Such committees may solicit and
accept campaign contributions, manage the expenditure of funds
for the candidate’s campaign, and obtain public statements of
support for his or her candidacy. Such committees are not
prohibited from soliciting and accepting campaign contributions
and public support from lawyers, but shall not seek, accept or
use political organization endorsements. Such committees shall
not disclose to the candidate the identity of campaign
contributors nor shall the committee disclose to the candidate
the identity of those who were solicited for contribution or
stated public support and refused such solicitation. A candidate
shall not use or permit the use of campaign contributions for
the private benefits of the candidate or others.
Canon 4: Political Organization. For purposes of Canons 1-5, the
term political organization denotes a partisan organization.
Canon 5: Each justice of the New Columbus Supreme Court and each
court of appeals and district court judge is deemed to hold a
separate nonpartisan office.
Canon 6: Canons 1-7 apply to all judicial candidates. A
successful candidate, whether or not an incumbent, is subject to
judicial discipline for his or her campaign conduct; an
unsuccessful candidate who is a lawyer is subject to lawyer
discipline under the New Columbus Rules of Professional for his
or her campaign conduct.
Canon 7:
The New Columbus Election Board [charged generally
with responsibility for ensuring compliance of non-judicial
candidates for state-level office] shall have authority to
monitor the campaign activities of candidates for judicial
office; investigate allegations of violations of Canons 1-5 by
candidates for judicial office; make recommendations to the New
Columbus Supreme Court regarding judicial discipline consistent
with the state code, up to and including disbarment; and
generally oversee the compliance of candidates for judicial
office with these Canons. The Board shall provide timely reports
on the activities of candidates for judicial office to the New
Columbus Supreme Court, no less than annually in a non-election
viii
year and quarterly in an election year during which candidates
are seeking judicial office. The New Columbus Supreme Court
shall retain ultimate authority over the election of candidates
for judicial office.
ix
STATEMENT OF FACTS
This case arises out of Petitioners’ Gertrude Chase, et al.
(collectively, “New Columbus”) enforcement of the state of New
Columbus’ Judicial Canons (“Canons”) regulating the conduct of
candidates in nonpartisan judicial elections. (R. at 1-29). In
order to ensure an impartial judiciary, New Columbus has enacted
Canons governing judicial candidates’ campaign fundraising and
partisan political activities. (R. at 7-8). Canons 1-2 prohibit
affiliation with or endorsement by political parties (“PartisanActivities
Restrictions”).
solicitation
disclosure
of
of
campaign
the
Canon
funds
identity
of
3
by
restricts
judicial
campaign
personal
candidates
contributors
to
or
the
judicial candidate (“Solicitation Clause”). The Canons do allow
fundraising through campaign committees, so long as the identity
of
individual
contributors
is
not
disclosed
to
the
judicial
candidate. (See Canon 3). No limit is placed upon the amount of
money that may be raised by a judicial candidate. (See id.).
Violations
of
discipline,
candidates
the
Canons
including
who
violate
can
removal
the
subject
from
Canons
discipline, including disbarment.
a
the
are
sitting
judge
bench;
subject
to
judicial
to
lawyer
(R. at 8).
In March 2001 Respondent Arthur Crandell (“Crandell”), an
attorney
in
New
Columbus,
declared
his
candidacy
for
the
position of New Columbus Supreme Court Associate Justice. (R. at
1
8). Crandell is a member of the National Association for the
Advancement of Colored People (“NAACP”) and is also active in
the New Columbus Democratic Party. (R. at 8). A fellow candidate
filed
a
complaint
against
Crandell
alleging
that
Crandell
violated the Canons; as a result, Crandell ended his candidacy
in August 2001.
(Id.).
In March 2007, in preparation for a second candidacy for
the
New
Columbus
Supreme
Court,
Crandell
sought
an
advisory
opinion from the New Columbus Election Board (“Board”). (R. at
9).
Crandell
inquired
whether
certain
activities
were
permissible under the Canons, including speaking as a candidate
to political organization gatherings; pursuing, publicizing, or
accepting
endorsements;
and
personally
soliciting
campaign
contributions, both in-person and through signed letters. (R. at
10).
The
Board
issued
an
advisory
opinion
stating
Canons barred all of the foregoing activities.
(Id.).
that
the
On May 1, 2007, Crandell officially commenced his second
campaign
for
Associate
Justice.
(Id.).
Crandell’s
campaign
committee consists of several New Columbus Democrats including
an ex-governor, former state Democratic Party Chair, and former
long-term senator. (R. at 10). Crandell engaged in activities
proscribed by the Canons, including participation in prohibited
partisan activities and personal solicitation of campaign funds.
(R. at 11). On August 1, 2007 the Board dispatched a letter to
2
Crandell apprising him that the Board had received information
that Crandell had engaged in impermissible campaign activities.
(Id.). The letter further stated that the Board had commenced an
investigation
into
Crandell’s
activities
and
requested
the
production of certain campaign documents. (Id.). Crandell timely
complied with the document production request and Respondents
Crandell
and
the
(collectively,
New
Columbus
“Respondents”)
Democratic
commenced
the
Party,
et
al.
instant
lawsuit
Columbus
in
thereafter. (Id.).
STATEMENT OF THE CASE
The
United
Respondents
States
filed
District
suit
Court
against
for
New
New
Columbus
the
seeking
declaratory and injunctive relief against the enforcement of the
Solicitation Clause and Partisan-Activities Restrictions. (R. at
11-12).
The
Respondents
claimed
the
at-issue
Canons
violated
their First Amendment rights of free speech and association.
(Id.).
Following expedited briefing and a hearing, the District
Court
issued
a
constitutionality
of
Partisan-Activities
declaratory
both
the
Restrictions.
judgment
upholding
Solicitation
(Id.).
The
Clause
and
District
the
the
Court
ruled that New Columbus narrowly tailored the Canons to serve
the
compelling
interest
of
ensuring
the
impartiality of the state judiciary. (Id.).
3
independence
and
The District Court
granted Respondent’s motion for a stay of the decision, and the
Board
suspended
disciplinary
action,
subsequently
appealed
pending
an
expedited
appeal. (Id.).
Respondents
the
District
Court’s
decision to the Fourteenth Circuit Court of Appeals (“Circuit
Court”).
(R.
at
6).
The
Circuit
Court
held
that
while
New
Columbus had a compelling state interest in ensuring judicial
impartiality,
the
Solicitation
Clause
and
Partisan-Activities
Restrictions were not narrowly tailored to serve that purpose,
violating
dissented,
the
First
finding
Amendment.
that
New
(R.
Columbus
at
26).
narrowly
Judge
Weber
tailored
the
Solicitation Clause and the Partisan-Activities Restrictions to
serve a compelling interest in judicial impartiality. (R. at
30).
New Columbus then timely filed a writ of certiorari that
this Court granted. (R. at 2).
SUMMARY OF THE ARGUMENT
Applying strict scrutiny, this Court should find that both
the Solicitation Clause and the Partisan-Activities Restrictions
are narrowly tailored to serve New Columbus’ compelling interest
in judicial impartiality. The Solicitation Clause ensures (1)
due process to litigants and (2) preserves both the appearance
and actuality of judicial impartiality by prohibiting judicial
4
candidates from personally soliciting funds and from knowing the
identity of campaign contributors.
To
promote
mindedness
judicial
and
Restrictions
a
lack
prevent
impartiality
of
bias,
judicial
political
party
gatherings,
political
party
members,
in
the
candidates
(2)
or
terms
open-
Partisan-Activities
from
identifying
(3)
of
seeking
(1)
attending
themselves
political
as
party
endorsements. Through these restrictions, New Columbus protects
litigants’ due process rights and prevents judicial corruption.
The
Partisan-Activities
recognize
the
threat
Restrictions
of
are
political
narrowly
parties
tailored
corrupting
to
its
judiciary. Accordingly, this Court should reverse the Circuit
Court’s decision holding that the Solicitation Clause and the
Partisan-Activities Restrictions violated the First Amendment.
ARGUMENT
The United States Supreme Court should reverse the Circuit
Court’s incorrect holding that New Columbus’ Canons violate the
First
Amendment.
The
First
Amendment
provides
in
part
that
“Congress shall make no law . . . abridging the freedom of
speech.” U.S. CONST. amend. I. The Due Process Clause makes the
First
Amendment
applicable
to
the
states.
McIntyre
v.
Ohio
Elections Comm’n, 514 U.S. 334, 336 n.1 (1995).
The First Amendment protects both political expression and
association.
Buckley v. Valeo, 424 U.S. 1, 15 (1976).
5
As a
threshold matter, it is undisputed that the Solicitation Clause
and
Partisan-Activities
Restrictions
are
restraints
of
speech
and association and must be analyzed under this Court’s “strict
scrutiny” test. Under strict scrutiny, the state has the burden
of showing that the Solicitation Clause and Partisan-Activities
Restrictions (1) serve a compelling state interest and (2) are
narrowly
tailored
to
serve
that
compelling
state
interest.
Republican Party of Minnesota v. White, 536 U.S. 765, 774-75
(2002) (citation omitted). While the strict scrutiny test is
exacting, the Circuit Court below overstated the breadth and
harshness of the test.
As this Court recently noted in the
context
to
of
a
challenge
a
law
school
affirmative
action
admission program, “strict scrutiny is not ‘strict in theory but
fatal in fact.’”
(citation
Grutter v. Bollinger, 539 U.S. 306, 326 (2003)
omitted).
convenience
for
Strict
scrutiny
judicial
is
not
merely
invalidation
of
a
tool
of
challenged
restrictions; laws such as the Solicitation Clause and PartisanActivities Restrictions that satisfy the two-part test must not
be invalidated.
The proper starting point for the analysis of
these issues
is White, 536 U.S. at 765, where a lawyer ran as a candidate for
the
were
Minnesota
critical
Supreme
of
Court
prior
and
Minnesota
disseminated
Supreme
materials
Court
which
decisions
on
crime, welfare, and abortion. Based on this campaign material,
6
the lawyer was accused of violating Minnesota's judicial code
which prohibited a judicial candidate from “announc[ing] his or
her views on disputed legal or political issues.” Id. at 768.
Fearing further action, the lawyer withdrew from the election.
Id. at 769. Two years later, the lawyer ran for the same office
and
attempted
to
discover
whether
the
Lawyers
Board
would
enforce the “announce clause” and, if so, what was prohibited.
Id.
at
769.
Although
the
Lawyers
Board
stated
that
it
had
constitutional concerns about the clause, it did not answer what
specifically was prohibited. Id. When the lawyer filed suit in
federal court, Minnesota argued that the announce clause served
a compelling interest in judicial impartiality in practice and
perception. Id. at 775. This case is distinguishable from White
because the Canons are narrowly tailored, as set forth below.
I.
THE CIRCUIT COURT HOLDING THAT THE SOLICITATION CLAUSE
VIOLATED THE FIRST AMENDMENT SHOULD BE REVERSED BECAUSE THE
SOLICITATION CLAUSE IS NARROWLY TAILORED TO SERVE THE
COMPELLING STATE INTEREST IN AN IMPARTIAL JUDICIARY.
The
Amendment
Solicitation
and
is
Clause
instead
does
a
not
narrowly
violate
tailored
the
First
restriction
designed to protect the compelling interests of New Columbus in
an impartial, uncorrupted judiciary.
Clause
protects
compelling
state
First, the Solicitation
interests
impartial and uncorrupted judiciary.
in
maintaining
an
Second, the Solicitation
Clause is narrowly tailored to serve these compelling interests.
7
A.
Maintaining an impartial and uncorrupted judiciary is
a compelling state interest narrowly served by the
Solicitation Clause.
The
Solicitation
state
interests
guaranteeing
the
Clause
related
due
narrowly
to
serves
judicial
process
rights
of
two
compelling
impartiality:
litigants
(1)
appearing
before the courts; and (2) the actuality and appearance of an
impartial and uncorrupted judiciary. As a general matter, “since
we are committed to a government of laws and not of men, it is
of
utmost
importance
that
the
administration
of
justice
be
absolutely fair and orderly.” Cox v. Louisiana, 379 U.S. 559,
565 (1965)(citations omitted). The White court recognized that
lack of bias in the judiciary is a compelling state interest
because litigants appearing before a judge are entitled to due
process.
536
actuality
and
U.S.
at
775.
appearance
Additionally,
of
impartiality
maintaining
is
a
the
compelling
interest. See Cox, 379 U.S. at 565.
1.
New Columbus has a compelling state interest in
guaranteeing due process to litigants in its courts.
The Solicitation Clause guarantees due process of litigants
appearing before the courts of New Columbus and is therefore a
permissible restriction on speech. It is well-established that a
“trial before an unbiased judge is essential to due process.”
Johnson v. Mississippi, 403 U.S. 212, 216 (1971).
Aetna
Life
Ins.
Co
v.
Lavoie,
8
475
U.S.
813,
See also
823-25
(1986)
(vacating judgment that enhanced the legal claim of the justice
who
authored
the
state
court’s
opinion);
Ward
v.
Village
of
Monroeville, 409 U.S. 57, 58-62 (1972) (holding that even an
indirect interest in the city’s finances was sufficient to bar
mayor from serving as judge with power to impose fines). Due
process guarantees a party that “the judge hearing his case will
apply the law to him in the same way he applies it to any other
party.”
this
White, 536 U.S. at 776.
equal
campaign
application
of
contributors,
The Solicitation Clause allows
the
law
thereby
by
shielding
ensuring
that
data
judges
about
in
New
Columbus will not consciously or unconsciously be biased.
The compelling state interest in due process was recognized
in Tumey v. Ohio, 273 U.S. 510, 531-35 (1927), where the Court
held
that
judges
may
not
share
defendants in their courts.
should
not
hear
substantial,
subsequent
cases
[and]
in
Id.
where
relying
fines
would
interest.”
on
collected
from
The Court found that judges
they
pecuniary
decisions
the
Tumey,
have
Id.
the
a
“direct,
at
Court
523.
has
In
noted
whether a judge was actually biased is not relevant to the due
process
inquiry,
but
only
whether
the
case
“would
offer
a
possible temptation to the average...judge...to lead him not to
hold the balance nice, clear and true.”
(internal
Process
quotation
Clause
has
marks
a
high
and
Lavoie, 475 U.S. at 25
citations
function
9
and
omitted).
The
thus
exacting
is
an
Due
standard; indeed, even the mere appearance of justice must be
satisfied to protect due process.
Id. (citations omitted).
Conversely, in White, 536 U.S. at 775, this Court rejected
the
argument
against
that
judicial
Minnesota’s
bias
“announce
because
the
clause”
announce
clause
restrict speech for or against particular parties.
announce
clause
restricted
speech
for
or
protected
did
not
Rather, the
against
specific
issues. Id. The Court recognized that when a case turns on a
legal
issue
when
the
judge
(as
a
candidate)
had
taken
a
particular stand, the party taking the opposite stand is likely
to
lose.
Id.
Nevertheless,
the
losing
party
would
be
unsuccessful not because of bias, but because any party taking
that position is just as likely to lose; the announce clause
thus did not actually prevent bias. Id. at 776-77.
The Solicitation Clause is distinguishable from White and
very
similar
contributions
to
Tumey
implicate
and
a
its
progeny
judicial
because
candidate’s
campaign
personal
and
direct interest in gaining and retaining judicial employment.
More specifically, without the Solicitation Clause, a judge in
New Columbus may consciously or unconsciously use his or her
position on the bench to improperly repay campaign contributors.
Whether
actual
irrelevant
to
judge
act
to
bias
the
due
existed
in
process
anything
any
given
inquiry;
less
10
than
a
case
would
be
for
the
would
be
temptation
impartiality
inconsistent with the Due Process Clause.
The Court in Lavoie
recognized that the Due Process Clause may bar a trial by a
judge who harbored no actual bias and would do his or her “very
best to weigh the scales of justice equally between contending
parties.” 475 U.S. at 25. It is not difficult to conceive of
scenarios whereby judges would favor known campaign contributors
in the courtroom, even if such favoritism was unconscious.
What
is less obvious is that judges could be accused of bias in cases
involving
two
non-contributors.
Under
this
Court’s
precedent,
myriad decisions could be appealed on the grounds of nothing
more than an appearance of bias.
New Columbus has a compelling
interest in ensuring that its judiciary guarantees due process
to
serve
the
broad
interest
of
equitable
administration
of
justice and maintenance of public faith in the judicial branch;
New Columbus also has a compelling interest in ensuring that
decisions of its courts withstand judicial scrutiny.
Unlike
the
Solicitation
insulating
announce
Clause
judges
activities.
contributors’
The
clause
guarantees
and
judicial
prohibition
identities
to
considered
due
candidates
of
the
process
in
for
or
litigants
from
disclosure
judge
White,
the
by
fundraising
of
campaign
judicial
candidate
means that judges do not know which litigants contributed. The
Circuit Court suggests that the Solicitation Clause does not
achieve its purpose because campaign contributors may disclose
11
to a judge that they contributed to the judge’s campaign, or the
judge himself may use public records to discover the identity of
contributors.
completely
Undoubtedly,
safeguard
influences.
disregards
no
judges
Nevertheless,
the
set
from
the
potential
of
regulations
a
variety
Circuit
effectiveness
will
of
improper
Court’s
of
the
ever
decision
Solicitation
Clause in preventing judicial candidates from discovering the
identity
of
campaign
contributors.
As
a
practical
matter,
judicial candidates and judges would have to go to some length
to
discover
violating
the
Solicitation
judges
the
identity
of
Solicitation
Clause
from
does
campaign
constitutionally
invalid
campaign
Clause.
not
go
Also,
simply
the
extreme
to
contributors
under
contributors
strict
does
scrutiny
without
because
to
not
or
the
insulate
make
any
it
other
standard. At minimum, the Solicitation Clause is effective to
some degree in preventing judges from discovering the identities
of campaign contributors. Consequently, the Solicitation Clause
prevents judicial bias and serves the compelling state interest
of guaranteeing due process.
2.
New Columbus has a compelling state interest
maintaining
the
appearance
and
actuality
of
impartial and uncorrupted judiciary.
Ensuring
the
impartiality
of
the
judiciary,
both
in
an
in
actuality and appearance, is unquestionably a compelling state
interest that justifies regulation of speech. It has long been
12
the
rule
that
a
“State
may...properly
protect
the
judicial
process from being misjudged in the minds of the public.”
379
U.S.
at
effectively,
565.
the
Indeed,
appearance
for
of
the
judiciary
impartiality
and
Cox,
to
function
the
public’s
confidence in courts’ fairness is nearly as important as the
reality of fairness. Mistretta v. United States, 488 U.S. 361,
407
(1989)
(holding
that
“[t]he
legitimacy
of
the
Judicial
Branch depends on its reputation for impartiality”). One state
court has succinctly and plainly held what decisions of this
Court
have
judicial
1287,
clearly
branch
1292
implied:
could
(N.Y.
not
2003)
“without
function.”
(emphasis
public
In
re
added).
confidence,
Raab,
The
793
the
N.E.2d
Solicitation
Clause is narrowly tailored to ensure public confidence in the
judiciary by guaranteeing that the public will have no reason to
believe that judicial decisions are being rendered on the basis
of campaign contributions.
Cox highlights the importance of a judiciary free from even
the appearance of improper influence and a state’s compelling
interest in the same. In Cox, 379 U.S. at 560, a demonstrator
convicted under a Louisiana statute prohibiting picketing near
courthouses
challenged
his
conviction
on
First
Amendment
grounds. The Court upheld the statute because its proscriptions
were narrowly tailored and served the compelling state interest
in
maintaining
judicial
impartiality.
13
Id.
The
Court
reasoned
that while it “is true that most judges will be influenced only
by what they see and hear in court...judges are human...and the
legislature
has
judges...will
be
demonstrations
hypothetical
the
right
to
consciously
near
recognize
or
of
danger
unconsciously
courthouses.
example
the
Id.
The
demonstrators
that
some
influenced”
Court
picketing
by
gave
the
outside
the
courthouse for certain criminal indictments to be dismissed; if
the judge dismissed the indictments, even if the decision was
not actually influenced by the demonstrators, the appearance of
impartiality would be lost. Id. The Court held that a state may
protect against the “possibility of a conclusion by the public
that the judge’s action was in part a product of intimidation
and
did
not
flow
from
the
fair
and
orderly
working
of
the
judicial process.” Id. (emphasis added).
Under the Cox holding, New Columbus should be permitted to
protect against the possibility of a conclusion by the public
that a judge’s decision is a product of campaign contributions.
Respondents
elected
funds
assert
officials
in
the
same
principle
of
our
different
from
that
bear
on
that
and
judges
must
manner.
state’s
no
different
permitted
This
democracy
legislators
the
be
are
view
that
and
solicit
ignores
“[elected]
executive
interest
to
in
from
the
other
campaign
fundamental
judges
remain
officials...in
restricting
ways
freedom
of
speech.” Buckley v. Illinois Judicial Inquiry Bd., 997 F.2d 224,
14
228 (7th Cir. 1993). The Solicitation Clause reflects the unique
role that judges play in the American system of government while
also
recognizing
that
public
confidence
in
the
judiciary
is
imperative. The Circuit Court discounts the ban on personally
signed fundraising letters, concluding that letters on campaign
letter
head
(permitted
by
the
Canons)
are
no
different
from
those personally signed by the candidate. The ban on personal
solicitation of campaign funds is important to public confidence
in the judiciary; recipients of letters personally signed by the
judge
could
mistakenly
contributions
would
and
curry
improperly
favor
with
believe
the
that
judge.
campaign
Even
those
members of the public not receiving personally signed letters
could become aware of their existence and conclude that judicial
decisions
are
premised
on
campaign
contributions
to
judges.
Also, the Circuit Court’s opinion does not recognize the role
that the proscription on personal solicitation plays in ensuring
that
judicial
candidates
do
not
become
aware
of
campaign
contributors’ identities. For example, if a judicial candidate
were
to
personally
solicit
funds
before
a
gathering
of
an
interest group, the judicial candidate would almost certainly
know that some campaign contributions came from members of that
group. The Solicitation Clause allows judges to raise funds but
guarantees that the public does not ascribe unsavory motives to
those fundraising activities.
15
A second compelling state interest is the prevention of
corruption, both actual and in appearance.
Buckley, 424 U.S. at
26-27. Corruption is a sufficiently serious threat to democracy
that the state may act to prevent it before it happens and act
against it when it takes forms that are more subtle than bribery
or
explicit
agreements.
(2003)(finding
that
appearance
undue
of
contributions
importance
to
of
McConnell
Congress
influence
candidates
the
has
for
v.
FEC,
the
in
power
the
federal
“governmental
540
U.S.
to
93,
144
regulate
the
context
of
office).
Indeed,
interest
in
campaign
the
preventing
[corruption] has never been doubted.” First Nat’l Bank of Boston
v. Bellotti, 435 U.S. 765, 788, n. 26 (1978). This Court has
defined corruption as the subversion of the political process.
FEC v. Nat’l Conservative Political Action Comm., 470 U.S. 480,
497 (1985). Elected officials are influenced to “act contrary to
their obligations of office by the prospect of financial gain to
themselves
or
infusions
of
money
into
their
campaigns.”
Id.
(emphasis added).
The Solicitation Clause clearly implicates the compelling
state interest in preventing corruption within the judiciary.
The
fact
that
judges,
unlike
other
elected
officials,
are
charged with acting impartially only makes the state interest in
preventing
judicial
corruption
more
compelling.
In
certain
cases, campaign contributions can be tantamount to bribery, and
16
the Solicitation Clause is an important bulwark against such
blatant impropriety. The critical importance of the Solicitation
Clause lies in preventing the subtle corruption this Court has
been
so
concerned
about
in
its
lineage
of
campaign
finance
cases. This Court has explicitly recognized that beyond outright
bribery, there is a “broader threat” posed by elected officials
“too compliant with the wishes of large contributors.” Nixon v.
Shrink Missouri Gov’t PAC, 528 U.S. 377, 389 (U.S. 2000). The
Solicitation Clause ensures that New Columbus judges will not be
overly compliant with the wishes of campaign contributors by
shielding campaign contributor data from judges.
The ban on
personal solicitation of campaign funds further serves the goal
of
preventing
even
the
appearance
of
corruption;
campaign
contributors as well as non-contributing members of the public
recognize that making a contribution to a judge will not curry
favor
in
his
or
her
courtroom,
thereby
maintaining
public
confidence that the judiciary is free from corruption.
B.
The Solicitation Clause is narrowly tailored to serve
New Columbus’ compelling state interest in maintaining
an impartial and uncorrupted judiciary.
The Solicitation Clause is narrowly tailored to serve New
Columbus’
compelling
state
interests
because
it
restricts
campaign fund-raising activities only to the extent necessary to
achieve New Columbus’ objective of maintaining an impartial and
uncorrupted judiciary. Generally, narrow tailoring can be shown
17
if
the
restriction
on
speech
does
not
“unnecessarily
circumscribe protected expression.” Brown v. Hartlage, 456 U.S.
45,
54
(1982).
The
Solicitation
Clause
accomplishes
its
objective without being overbroad and is distinguishable from
the announce clause invalidated in White.
In the flurry of commentary published in the wake of the
White
decision,
impartiality
overlooked;
the
as
a
the
White
Court’s
compelling
problem
recognition
state
with
the
interest
announce
of
has
clause
judicial
often
been
before
the
Court in White was that it was not narrowly tailored. White, 536
U.S. at 776-77. The announce clause was ineffective because it
banned only statements against issues, not against parties, and
was
also
deemed
“underinclusive”
because
judicial
candidates
could make prohibited statements up until the day they became a
candidate for judicial office. Id. at 798.
The
announce
Solicitation
clause
in
Clause
White
is
because
distinguishable
it
is
narrowly
from
the
tailored
to
serve New Columbus’ compelling state interest in maintaining an
impartial
and
tangential
suggested
that
permissible
O’Connor
in
uncorrupted
White,
a
the
Justice
balancing
restriction
noted
judiciary.
on
tension
While
O’Connor
of
in
interests
judicial
between
the
the
her
could
issue
was
concurrence
achieve
a
fundraising.
Justice
realities
modern
of
judicial elections that require millions of dollars in campaign
18
funds and the actuality and appearance of impropriety that can
result from the requisite campaign contributions. Id. at 789-90
(O’Connor,
J.,
concurring).
Justice
O’Connor
highlighted
the
fact that a complete ban on campaign fundraising in a judicial
election
would
have
the
undesirable
effect
of
allowing
only
wealthy candidates to run for judicial office. Id. Conversely,
unfettered fundraising would ultimately have dire consequences
for the judiciary and public confidence in the judicial branch.
Id. The Solicitation Clause follows this approach by balancing
the need of judicial candidates to raise campaign funds with the
need to maintain the actuality and appearance of an impartial
judiciary. Specifically, the Solicitation Clause does not place
any limits on campaign fundraising or the source of donations.
Without the campaign committee as a shield, this system would be
troubling,
to
confidentiality
say
of
the
campaign
least.
However,
contributor
data
by
maintaining
insofar
as
the
judicial candidate is concerned, the Solicitation Clause serves
the compelling state interest in maintaining an impartial and
uncorrupted
judiciary.
New
Columbus
has
achieved
exactly
the
sort of balance of constitutionally protected interests that is
permissible
under
this
Court’s
strict
scrutiny
jurisprudence.
The New Columbus campaign fundraising structure thus addresses
the concern expressed by Justice O’Connor in White that campaign
contribution limits would allow only wealthy individuals to run
19
for judicial office. Judicial candidates in New Columbus are
free to raise as much money as they want through their campaign
committee
and
spend
those
funds
on
any
campaign-related
activities. Judicial candidates are merely barred from learning
the
identity
of
campaign
donors,
thereby
protecting
the
impartiality and integrity of courts in New Columbus.
II.
THIS COURT SHOULD REVERSE THE CIRCUIT COURT’S HOLDING THAT
NEW
COLUMBUS’
PARTISAN-ACTIVITIES
RESTRICTIONS
WERE
UNCONSTITUTIONAL BECAUSE NEW COLUMBUS NARROWLY TAILORED THE
RESTRICTIONS TO SERVE THE COMPELLING INTEREST OF JUDICIAL
IMPARTIALITY,
THE
APPEARANCE
OF
IMPARTIALITY,
AND
PREVENTING CORRUPTION.
New
Columbus
Restrictions
narrowly
to
tailored
restrict
the
judicial
Partisan-Activities
candidates’
partisan
activities to protect judicial impartiality, the appearance of
impartiality,
and
to
prevent
corruption.
New
Columbus,
along
with thirty-nine other states, has chosen to allow its citizens
to
elect
White:
its
How
judges.
States
Rachel
are
Paine
Caufield,
Responding
to
In
the
Republican
Wake
Party
of
of
Minnesota v. White and How Judicial Elections are Changing, 38
AKRON
L.
thirteen
REV.
625
other
(2005).
states,
Nevertheless,
has
chosen
New
to
Columbus,
protect
like
judicial
impartiality through nonpartisan judicial elections. Id. at 628.
To further legitimize its nonpartisan judicial elections, New
Columbus
speaking
restricts
at
judicial
political
candidates
party
20
from:
gatherings,
(1)attending
and
(2)identifying
themselves
as
members
of
a
political
party,
and
(3)seeking,
accepting or using party endorsements.
Here, New Columbus narrowly tailored its Partisan-Activities
Restrictions
to
fulfill
the
compelling
interests
of:(1)
preserving judicial impartiality, (2)preserving the appearance
of judicial impartiality, and (3)preventing judicial corruption.
A.
New Columbus narrowly tailored its Partisan-Activities
Restrictions to preserve judicial impartiality in
terms of bias and open-mindedness.
This Court should find that New Columbus narrowly tailored
its
Partisan-Activities
Restrictions
to
serve
the
compelling
interest of judicial impartiality to protect all litigants’ due
process rights. All litigants have a due process right to “an
impartial and disinterested tribunal in both civil and criminal
cases.” Marshall v. Jerrico, Inc., 446 U.S. 238, 242 (1980). Due
process violations are not limited to those circumstances where
judges have a pecuniary interest. See Ward 409 U.S. at 58-62;
Johnson, 403 U.S. at 215-16 (holding judge violated due process
by
sitting
previously
in
a
case
successful
in
which
litigant
one
against
of
the
him).
parties
To
was
a
sufficiently
protect litigants’ due process rights, one must examine what is
meant by judicial impartiality.
In White, this Court defined impartiality as “a lack of bias
for or against either party to the proceeding.” 536 U.S. 775-76
(emphasis
in
original).
The
21
White
Court
also
defined
impartiality
as
“open-mindedness,”
which
“seeks
to
guarantee
each litigant, not an equal chance to win the legal points in
the
case,
but
at
least
some
chance.”
Id.
(emphasis
in
original).
In applying impartiality in terms of bias, this Court found
that Minnesota had not narrowly tailored the announce clause to
prevent
bias
issues,
rather
Court
because
than
analyzed
the
clause
parties.
impartiality
Id.
in
restricted
at
776.
terms
of
speech
against
Additionally,
this
open-mindedness,
and
found that while impartiality in this sense might be desirable
in the judiciary, it did not believe that Minnesota had adopted
the announce clause for that purpose.
was
“woefully
underinclusive”
Id.
because
Moreover, the clause
a
candidate
could
not
express her views on legal issues while that same person could
state
her
views
up
until
the
very
day
before
she
declared
herself a candidate. Id. at 780.
Since White, several other courts have specifically found
judicial impartiality to represent a compelling interest. See In
re Raab, 793 N.E.2d at 1292 (upholding prohibition on judges
contributing
to
political
campaigns
as
essential
to
prevent
political bias); In re Watson, 100 N.Y.2d 290, 302 (N.Y. 2003)
(upholding New York’s restriction preventing judicial candidates
from
making
“pledges
or
promises”
to
prevent
Kinsey, 842 So.2d 77, 87 (Fla. 2003) (same).
22
bias);
In
re
Here, this Court should find judicial impartiality in terms
of bias and open-mindedness to be a compelling interest, as the
courts did in Watson, Raab, and Kinsey, because New Columbus’
narrowly
tailored
Partisan-Activities
Restrictions
avoid
the
problems in White. In contrast to the broad speech restrictions
in White that prevented a candidate from stating his views on
legal issues, in New Columbus, a judicial candidate may state
his views on any legal issue. The only thing a candidate cannot
state
is
a
political
party
affiliation
or
a
political
party
endorsement. Unlike Minnesota’s announce clause, New Columbus’
restrictions permit a “robust communication of ideas and views
from judicial candidate to voter,” that is essential to informed
voter decision-making and democracy. White, 536 U.S. at 783, n9.
Moreover,
announce
New
clause,
Columbus’
restrictions,
actually
prevent
unlike
bias
“for
Minnesota’s
or
against
particular parties.” Id. at 776. In New Columbus, a judge is
less likely to be biased towards a political party because the
restrictions
endorsement
prevent
that
she
her
might
from
later
seeking
have
to
a
political
repay
if
party
elected.
Additionally, New Columbus’ restrictions limit bias in cases in
which a judge must make a ruling for or against a party, or its
members, that did not, or would not, endorse her campaign.
Third, this Court should believe that New Columbus passed its
Partisan-Activities
Restrictions
23
to
protect
judicial
open-
mindedness
Minnesota,
and
has
prevent
a
bias
statement
because
of
New
original
Columbus,
intent.
New
unlike
Columbus
passed its restrictions so that judicial impartiality was not
undermined through “bias for or against particular parties,” or
“the potential to constrain open-mindedness.” J. Jud. Advisory
Comm. To the S.Ct. of N.Col., Final Notes of the Comm. Secretary
on Canons 1-7 of the Code of J. Conduct (May 21, 1920)(on file
at N.Col.S.Ct. Archives). This Court should protect this intent.
Fourth, unlike the announce clause in White, New Columbus’
restrictions are not temporally underinclusive because they only
restrict partisan activities while the judge is a candidate or
on the bench. New Columbus recognizes that the candidacy period
poses the greatest threat to impartiality because a candidate
may
undertake
obligations
to
a
party
that
affect
her
later
performance in office. New Columbus’ restrictions also take into
account the fact that a lawyer who supports a political party
stance in a written article does not commit to that position in
the same way that a candidate commits to a political party. See
White, 536 U.S. at 801 (Stevens, J. dissenting).
Moreover,
New
Columbus’
restrictions
are
more
inclusive
than the restrictions in White, because the White restrictions
only limited a “candidate for a judicial office, including an
incumbent judge,” from stating legal views. 536 U.S. at 768.
Here, New Columbus limits the partisan activities of a “judge or
24
candidate for election.” By preventing a judge from identifying
with a party or receiving its endorsement while the judge is in
office but not campaigning, New Columbus prevents judicial bias
even outside the context of elections. Therefore, New Columbus’
Canons
are
not
temporally
underinclusive;
rather,
the
Canons
recognize that the candidacy period poses the greatest threat to
impartiality.
B.
New Columbus narrowly tailored its Partisan-Activities
Restrictions to serve the compelling state interest of
the appearance of judicial impartiality.
New Columbus has a compelling interest in preserving the
appearance of judicial impartiality to protect public confidence
in
the
rule
ultimately
of
law.
depends
on
“The
legitimacy
its
reputation
of
the
for
Judicial
Branch
impartiality
and
nonpartisanship.” Mistretta, 488 U.S. at 407.
In White, this Court also analyzed the appearance of judicial
impartiality in terms of bias and open-mindedness. 536 U.S. at
775-79.
This Court did not state whether the appearance of
impartiality in terms of bias was a compelling interest because
Minnesota’s
announce
clause
was
only
“barely
tailored”
to
prevent the appearance of impartiality. Id. at 776. The announce
clause may have prohibited speech that “may well exhibit bias
against parties,” such as statements “stressing the candidate’s
unbroken
record
of
affirming
convictions
for
rape,”
but
Minnesota needed to do more to narrowly tailor the clause. Id.
25
at
777,
n.7.
Additionally,
this
Court
found
that
while
the
appearance of judicial open-mindedness might be desirable, it
did not believe that Minnesota had adopted the announce clause
for that purpose and therefore did not pursue this inquiry.
Id.
Subsequently, several courts have recognized the appearance
of judicial impartiality as a compelling interest. See In re
Raab, 793 N.E.2d at 1292 (“the State's interest in ensuring that
judgeships are not--and do not appear to be—‘for sale’ is beyond
compelling”); In re Kinsey, 842 So.2d at 87 (finding compelling
interest in public confidence in impartial judiciary).
Here, New Columbus narrowly tailored its Partisan-Activities
Restrictions to prevent the appearance of judicial impartiality.
The public already believes that political party leaders unduly
influence judicial elections, and New Columbus wants to keep
this
sentiment
from
spreading.
See
Steven
Zeidman,
Judicial
Politics: Making the Case for Merit Selection, 68 ALB. L. REV.
713, 718 (2005). To accomplish this, New Columbus seeks to avoid
the
appearance
that
judges
are
“for
sale”
by
preventing
its
judges from speaking at political gatherings or shopping for
political party endorsements. For example, Crandell’s campaign
committee lawfully consists of powerful New Columbus Democrats
including an ex-governor, former state Democratic Party Chair,
and
former
Crandell
may
long-term
not
use
senator.
these
However,
party
26
under
leaders’
Canon
1(d),
endorsements
in
speeches
or
in
campaign
literature
to
ride
these
leaders’
coattails and win the votes of people who only know of the
leaders and not him. In this way, New Columbus protects its
democratic
leaders
processes
chose
the
and
prevents
Associate
the
Justice
perception
rather
than
that
the
the
voters.
Additionally, when a judge uses a political party endorsement by
repeatedly
mentioning
it
during
a
campaign,
the
public
will
likely suspect that the judge is biased when she hears a case
involving that party or its members.
C.
New
Columbus’
Judicial
Canons
constitutionally
restrict
judges’
partisan
activities
to
limit
corruption.
New
Columbus’
compelling
Partisan-Activities
interest
of
limiting
Restrictions
corruption.
serve
Corruption
the
is
a
sufficiently serious threat that the government may (1) seek to
prevent
it
before
intermediate
it
forms
happens
that
are
and
more
(2)
act
subtle
against
than
it
bribery
in
and
explicit agreements. See McConnell, 540 U.S. at 144.
This Court has found political-activities restrictions to be
constitutional
under
the
First
Amendment.
See
e.g.,
United
States Civil Serv. Comm’n v. Nat’l Ass’n of Letter Carriers, 413
U.S.
548,
federal
564-65
employees
(1973)(upholding
from
holding
restrictions
party
office,
preventing
fundraising,
campaigning, etc.). In Letter Carriers, this Court recognized
the danger that bribery is not the only corrupting influence,
27
but that partisan allegiances also posed a threat to the neutral
administration of justice. 413 U.S. 548. Federal agents “should
administer
the
law
in
accordance
with
the
will
of
Congress,
rather than in accordance with their own will or the will of a
political party,” and “without bias . . . for or against any
political party . . .” Id. at 564-65.
Even without actual
corruption, states have a compelling interest in limiting the
“appearance of corruption stemming from public awareness of the
opportunities for abuse.” Buckley, 424 U.S. at 27.
Like Congress’s restrictions on federal employees’ partisan
activities, New Columbus should be permitted to ensure that its
judges neutrally administer its laws without corruption.
The Circuit Court found that New Columbus’ restrictions are
underinclusive because Crandell cannot identify himself with a
political party, in this case as a Democrat, but he can identify
himself as an interest group member, here, the NAACP.
However,
this Court has twice upheld speech restrictions under strict
scrutiny
address
analysis
the
most
where
the
critical
state
threat
tailored
to
the
the
law
only
compelling
to
state
interest. See Austin v. Michigan Chamber of Commerce, 494 U.S.
at
665
(1990)(upholding
restrictions
on
corporate
political
contributions because of the compelling interest of preventing
unfair advantage in political marketplace); McConnell, 540 U.S.
93. In Austin, the restrictions were not underinclusive even
28
though
labor
they
did
unions
not
address
because
the
contributions
ability
to
by
unincorporated
incorporate
conferred
enhanced wealth accumulation which was the greatest threat. 494
U.S. at 665.
This
Court
political
has
parties
also
and
recognized
interest
that
groups
differences
can
lead
to
between
different
regulations for each. See McConnell, 540 U.S. at 187-88.
crafting
campaign
entitled
to
political
parties
finance
consider
regulations,
the
and
“Congress
real-world
interest
groups.”
[was]
In
fully
differences
between
Id.
(noting
at
188
parties’ power to choose candidates).
Like Congress, New Columbus needs this same power to craft
restrictions that prevent its nonpartisan elections from being
undermined.
Disparate
treatment
groups
not
the
did
violative
of
restrictions
Austin,
make
the
here
political
First
of
regulations
Amendment,
underinclusive.
parties
labor
in
New
in
and
Like
unions
and
Austin
or
does
not
it
the
Columbus,
interest
McConnell
make
corporations
unlike
the
in
interest
groups, have amassed political capital through the traditional
two-party
system,
advantages
of
incumbency,
and
institutional
infrastructure that represents a greater threat. Next, political
parties, rather than interest groups, choose the candidates and
quite often party leaders determine the outcome of the judicial
election. See Zeidman, supra, at 718.
29
Finally, in contrast to many interest groups that concentrate
on one issue, such as the NRA’s focus on gun owners’ rights,
political
parties
take
stances
Political
parties
also
have
on
a
control
broad
of
array
more
of
issues.
decisions,
like
congressional redistricting. Therefore, a judge is more likely
to hear a case involving a political party and the threat to the
appearance
of
judicial
impartiality
is
more
pervasive.
New
Columbus narrowly tailored its Partisan-Activities Restrictions
to recognize that political parties pose the greatest threat to
the compelling state interest of preventing corruption.
CONCLUSION
The
Solicitation
Restrictions
are
Clause
narrowly
and
tailored
the
to
Partisan-Activities
achieve
New
Columbus’
compelling state interest in maintaining an impartial judiciary.
Accordingly,
this
Court
should
reverse
the
Circuit
Court’s
decision holding that the Canons violated the First Amendment.
Respectfully submitted this 18th day of January, 2008.
Team: 3654
30