Judicial Campaign Reforms – Part 2

The most controversial proposal that I offer relates to the non-partisan election of judges.  I favor that we keep the ballot from reflecting a party, that we not have party primaries, and that the candidate does not have to qualify as a candidate from a particular party.

My problem is with the current law that prohibits a candidate from revealing his or her party affiliation when asked by a voter.  This is the first question that I was asked by most people while I was on the campaign trail.

In Republican Party of Minn. v. White, the United States Supreme Court held that the statute that prohibits political parties from endorsing candidates was unconstitutional. Likewise, other courts have determined that it is unconstitutional to prohibit a candidate from making statements about his or her political affiliation.  This year, in Winter v. Wolnitzek, 834 F.3d 681 (6th Cir. 2016), the Sixth Circuit ruled this type of provision unconstitutional.

Mississippi Code Annotated section 23-15-973 provides:

In order to give further and every possible emphasis to the fact that the said judicial offices are not political but are to be held without favor and with absolute impartiality as to all persons, and because of the jurisdiction conferred upon the courts by this chapter, the judges thereof should be as far removed as possible from any political affiliations or obligations. It shall be unlawful for any candidate for any of the offices mentioned in this section to align himself with any candidate or candidates for any other office or with any political faction or any political party at any time during any primary or general election campaign. . . .

Further, Mississippi Code Annotated section 23-15-976 provides:

Judicial office deemed nonpartisan office; candidate for judicial office prohibited from campaigning or qualifying for office based on party affiliation; prohibition on political party fund-raising, campaigning, or contributions on behalf of candidate for judicial office.

A judicial office is a nonpartisan office and a candidate for election thereto is prohibited from campaigning or qualifying for such an office based on party affiliation. The Legislature finds that in order to ensure that campaigns for nonpartisan judicial office remain nonpartisan and without any connection to a political party, political parties and any committee or political committee affiliated with a political party shall not engage in fund-raising on behalf of a candidate or officeholder of a nonpartisan judicial office, nor shall a political party or any committee or political committee affiliated with a political party make any contribution to a candidate for nonpartisan judicial office or the political committee of a candidate for nonpartisan judicial office, nor shall a political party or any committee or political committee affiliated with a political party publicly endorse any candidate for nonpartisan judicial office. No candidate or candidate’s political committee for nonpartisan judicial office shall accept a contribution from a political party or any committee or political committee affiliated with a political party.

The Code of Judicial Conduct adds:

C. Judges and Candidates Subject to Public Election.

(1) Judges holding an office filled by public election between competing candidates, or candidates for such office, may, only insofar as permitted by law, attend political gatherings, speak to such gatherings in their own behalf while candidates for election or re-election, identify themselves as members of political parties, and contribute to political parties or organizations.

Commentary

Section 5C recognizes the distinction between appropriate political activities by judges and candidates subject to non-partisan election and those subject to partisan elections. The language of Section 5C differs from that of corresponding provisions in the ABA Model Code, Sections C(1)(a)(ii) and (iii), in recognition of Mississippi’s non-partisan elections for certain positions. Furthermore, Section 23-15-973 et seq., Miss. Code Ann. (1972) imposes restrictions on candidates and political organizations to assure the non-partisan quality of judicial elections for Supreme Court, Court of Appeals, Chancery Court, Circuit Court and County Court justices and judges. Section 5C(1) permits judges subject to election at any time to be involved in limited political activity. Section 5D, applicable solely to incumbent judges, would otherwise bar this activity. Section 5C(1)(b)(iv) of the ABA Mode Code has not been incorporated. Attending or speaking at a political party gathering in the judge’s own behalf while a candidate does not constitute alignments or affiliation with the party sponsoring the gathering.

In light of Republican Party of Minn. v. White, I think we need to reconsider whether it is bad for a judicial candidate to be able to reveal whether he or she is a Democrat or a Republican.

As an example, in this year’s election, the Republican Party endorsed several candidates and the Democrat Party handed out a “Sample Official Democratic Election Ballot.”

I believe the rules and statutes should allow both a party and the candidate to identify with a party, but not require it.  You could always say I’m an independent.

 

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