Montana Nonpartisan Judicial Elections System Struck Down By Appeals Court

In this Jan. 20, 2012 photo, people hold signs during a gathering on the anniversary of the Citizens United decision in Montp
In this Jan. 20, 2012 photo, people hold signs during a gathering on the anniversary of the Citizens United decision in Montpelier, Vt. First, it was the Vermont senator with socialist leanings. Then it was Jerry of Ben & Jerry's ice cream fame. Now there are about 50 Vermont communities ready to chime in on a proposal to pass a Constitutional amendment to clarify that corporations do not have the same rights as human beings., (AP Photo/Toby Talbot)

WASHINGTON -- A federal appeals court struck down Montana's nonpartisan system of electing state judges on Monday, opening the door to party endorsements of judicial candidates for the first time in 77 years.

Montana currently makes it illegal for any political party to "endorse, contribute to, or make an expenditure to support or oppose a judicial candidate." This system has been in place since 1935.

The Sanders County Republican Central Committee, however, wants to make endorsements in two judicial races and sued the state, arguing that its free speech rights were being violated.

On Monday, a three-judge panel of the 9th U.S. Circuit Court of Appeals agreed with the Sanders County group, ruling that Montana's system is unconstitutional.

"The voters of Montana are thus deprived of the full and robust exchange of views to which, under our Constitution, they are entitled," wrote Judge Jed Rakoff in the case of Sanders County Republican Central Committee v Bullock.

To back up its opinion, the court's majority cited the U.S. Supreme Court's Citizens United decision, which progressives and campaign finance reformers would like to see overturned because it allowed unlimited corporate spending in the U.S. electoral system.

Rakoff noted in his ruling that in Citizens United, the Supreme Court "rejected the argument that political speech of corporations or other associations should be treated differently under the First Amendment simply because such associations are not 'natural persons.'"

The appeals court's 2-1 majority further ruled that the ban on political endorsements should be lifted immediately. Rakoff and Judge Ronald Gould were appointed by President Bill Clinton, while Judge Mary Schroeder -- the dissenting vote on the panel -- was appointed by President Jimmy Carter.

In June, Montana endured another defeat defending its elections system, when the U.S. Supreme Court ruled that the state's ban on corporate political money was unconstitutional.

"The question presented in this case is whether the holding of Citizens United applies to the Montana state law,” the 5-4 Supreme Court majority wrote. "There can be no serious doubt that it does."

Matthew Monforton, the attorney representing the Sanders County Republicans, told the Missoulian that the group was pleased “two Clinton-appointed judges agree with us on basic First Amendment rights."

"Montana has a conservative electorate, but a Massachusetts judiciary, in large part because of state censorship laws enabling left-wing judicial candidates to masquerade as moderate," Monforton said. "With this decision, that game is now over."

The Ninth Circuit rejected the state of Montana's argument that nonpartisan elections are necessary for a "fair and independent" judiciary.

"Montana offers no evidence to support this facially doubtful proposition, and it flies in the face of the fact that many of the other 38 states that elect their judges not only allow party endorsements but require party nominations," wrote Rakoff. "Nor does Montana suggest that, as a result, the judiciaries of these other states lack fairness or integrity."

Rakoff added that if Montana were concerned about this new system, it could "appoint its judges, with a bipartisan and expert panel making nominations -- a less restrictive alternative currently practiced by several states."

Schroeder came to a different conclusion in her dissent.

“The result [of the ruling] is to encourage a judiciary dependent upon political alliances,” Schroeder wrote. “Political endorsements, much more than judges’ discussion of issues, lead to political indebtedness, which in turn has a corrosive impact on the public’s perception of the judicial system.”

According to a recent analysis by the progressive Center for American Progress, spending on judicial elections has skyrocketed in the past two decades, fueled in large part by donations from corporate interests such as the U.S. Chamber of Commerce. In 1990, candidates for state supreme courts raised around $3 million. In the 2000 race, they raised more than $45 million.

Montana Justice Department spokeswoman Mary Beck told the Missoulian that she was unsure whether the state would appeal.

Read the majority opinion in Sanders County Republican Central Committee v Bullock:



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