On Friday, the Ninth Circuit federal appellate court ruled that Arizona judicial canons that restrict the ability of judicial candidates to engage in ordinary political activities as part of their campaigns are unconstitutional. The plaintiff in the case, Randolph Wolfson, is a resident of Golden Valley, Arizona, and was a candidate for Superior Court Judge in Mohave County in the 2008 election.
Elections for state court judges in Arizona are partisan. Yet under Arizona law, judicial candidates are significantly limited in their ability to engage in many political activities typical of election campaigns. The Arizona Code of Judicial Conduct bans candidates from personally soliciting campaign contributions, limits a judicial candidate's ability to speak on disputed legal or political issues, and prohibits candidates from supporting other candidates or ballot initiatives.
The court held these restrictions on political speech to the strictest scrutiny, ruling that prohibiting candidates that are not sitting judges from personally asking for financial support for their campaigns is unjustified. Such speech, the court ruled, presents little or no risk of corruption or bias and prohibiting it does not narrowly address any legitimate concern. The court observed that Arizona's prohibitions on “speechifying, endorsements, and fundraising” are really aimed at curbing political speech, and any legitimate concern would be addressed by requiring a successful candidate to recuse himself from any case in which he was involved in a party's campaign or gave an endorsement. Finally, the court ruled that Arizona's broad restriction on a judicial candidate taking part in any political campaign other than his own simply restricts too much speech.
“I am pleased to see the court protecting the free speech of judicial candidates,” says attorney James Bopp, Jr., lead counsel for the plaintiffs. “These canons are in direct violation of the First Amendment, restricting both judicial candidates' free speech and depriving voters of their right to cast an informed vote.” He continues, “if a state chooses to elect its judges, it has to allow judicial candidates to engage in the sorts of political activities that are a normal part of any political campaign.” In 2002, Mr. Bopp successfully argued Republican Party of Minnesota v. White, the watershed case governing restrictions on judicial candidates' political speech.
The case is Wolfson v. Brammer, et al. The action was brought by attorneys from the James Madison Center for Free Speech, with the assistance of attorneys from the Alliance Defense Fund. A copy of the decision is available here. Bopp, Jr. has a national federal and state election law practice. He is General Counsel for the James Madison Center for Free Speech and Co-Chairman of the Election Law Subcommittee of the Federalist Society.