Judicial Districts

I’ve always wondered why our circuit and chancery districts were not similar.

Chancery Court Districts:

Chancery Court District map

Circuit Court Districts:

Circuit Court District map

I believe there are three districts that have identical Circuit and Chancery Court Districts:

  1.  Hinds
  2.  Hancock, Harrison and Stone
  3.  Jackson, George and Greene.

This doesn’t bother me.  I’ve just always wondered why we don’t strive for uniformity and consistency where ever possible.  And, none of the Circuit and Chancery Court Districts have any relation to the Supreme Court or Court of Appeals Districts.

Supreme Court:

supremecourtdistrictsmap - SCT website

Court of Appeals:

coadistrictmap

 

Judicial Campaigns – Special Committee Opinions

Special Committee Reports and Opinions

2014 OPINION 2014-001
Canon 5A(3)(d)(iii) of the Mississippi Code of Judicial Conduct prohibits a candidate for judicial office from knowingly misrepresenting his/her “qualifications, present position, or other fact concerning the candidate … .” The Special Committee has previously opined that a candidate who holds another judicial office may use the title “judge” in campaign literature if the material clearly identifies the circumstances justifying the use of the title and identifies the judgeship currently held. See Special Committee Opinion 2006-002. This opinion also provides that phrases and logos must contain such phrases as “elect” before a candidate’s name and “for” between the candidate’s name and position sought, in an easily readable size and form, in those circumstances in which the candidate does not hold the judicial office sought. Id.

All candidates for judicial office are held to a high standard of accuracy in their campaign advertisements. Judicial robes, often used by candidates in judicial campaign materials, are a widely recognized symbol of judicial office. Like the use of the term”judge,”the depiction of a candidate wearing a judicial robe may be misleading in certain circumstances. For example, the depiction of a candidate wearing a robe when he/she currently holds no judicial office and has never held judicial office misrepresents the candidate’s present position and violates Canon 5A(3)(d)(iii). Furthermore, in those instances in which a sitting judge seeks a different judicial office or a former judge seeks judicial office, the depiction of the candidate wearing a judicial robe may also imply that the candidate currently holds the office sought. Therefore, the Special Committee is of the opinion that while a candidate who presently holds or previously held a judicial office may be depicted in campaign materials wearing a judicial robe, the advertisements must also clearly identify the office currently or previously held in an easily readable size and form, such that the materials will not mislead the voter as to the candidate’s present position.

From Minutes of Special Committee Meetings

PUBLIC STATEMENT
October 31, 2014

The Special Committee on Judicial Election Campaign Intervention issued a public statement today regarding advertising material circulated by S0\1th Forward IE PAC which attempts to impact the race for Circuit Court Judge of Hinds County, Mississippi.

The Special Committee said:

Print material circulated by an organization calling itself South Forward IEPAC in support of a candidate for Circuit Court Judge of Hinds County has been brought to the attention of the Special Committee. Mississippi law prohibits a candidate for Judge of the Supreme Court, Court of Appeals, Circuit Court or Chancery Court Judge from aligning 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.

Mississippi law requires that campaigns for judicial office shall be nonpartisan and without any connection to a political party, political parties and any committee or political committee affiliated with a political party. The Committee finds that the materials in question improperly align a candidate for Circuit Court Judge with a candidate for another political office and violate the intention that judicial campaigns for Circuit Court Judge shall be nonpartisan.

The Mississippi Supreme Court created the Special Committee on Judicial Election
Campaign Intervention in its 2002 revisions to the Code of Judicial Conduct. The five member Special Committee investigates allegations of campaign misconduct. Members are appointed by the Chief Justice of the Supreme Court, the Governor, the Lieutenant Governor, the Speaker of the House of Representatives and the Chair of the Commission on Judicial Performance.

Public Statement

Ali ShamsidDeen, a candidate for Circuit Court Judge of Hinds County, Mississippi, has, in the view of the Special Committee, violated Canon 5A(3)(d)(iii) of the Code of Judicial Conduct by the use of campaign material which is misleading and implies that he is
the incumbent Circuit Court Judge.

ShamsidDeen currently serves as a municipal court judge. Some of his campaign materials use the terms “Judge” without identification that the position held is municipal judge. This candidate also presents himself in a judicial robe without identifying what judgship he holds. This candidate was previously sent a copy of Opinion 2006-002 issued by the Special Committee on Judicial Election Campaign Intervention which provides that any campaign material “must clearly identify the circumstances justifying use of the title, including identifying the judgeship currently held. The use of the title cannot be misleading, cannot misrepresent the candidate’s present position, and must make it clear to the voting public that the candidate is not a judge of the court for which the candidate is currently seeking election.” The same prohibition applies to a candidate pictured in a judicial robe without identification of the judicial office held.
The Special Committee found the campaign materials to be misleading and sent Mr. ShamsidDeen a cease and desist request pursuant to Canon 5F(3)(c). It is the opinion of the Special Committee that this candidate has continued to utilize misleading campaign materials following receipt of the cease and desist request, resulting in the issuance of this public statement.
The Special Committee received a complaint concerning the propriety of Paula S. Yancey’s campaign materials posted on her Facebook account and published on her campaign website. Ms. Yancey is a candidate for Mississippi District 16 Chancery Court Judge. The complaint asserted that Ms. Yancey’s campaign materials were misleading and implied that Ms. Yancey was the incumbent chancellor. After reviewing the campaign materials at issue, and following deliberation of the matter, the Special Committee unanimously found that Ms. Yancey’s Facebook account and her campaign website violated Formal Opinion 2006-002 as her materials were misleading and implied that she was the incumbent Chancery Court Judge. The Special Committee determined that the matter warranted speedy intervention and, pursuant to Canon 5F(3), issued a confidential cease and desist request requiring Ms. Yancey to cease and desist from any use of campaign materials on her Facebook account, website or other locations which do not accurately reflect her curent status as a candidate as opposed to an incumbent.
The Special Committee considered the Mississippi Secretary of State’s refetral of a self-report by Abe Hudson, campaign manager for Alecia Thomas, of a potential infraction by Ms. Thomas of Canon 5C(2) of the Code of Judicial Conduct of Mississippi Judges. The Special Committee received and reviewed a copy of a letter mailed by Ms. Thomas and/or her campaign committee wherein she personally solicited financial support for her campaign. Following discussion, the Special Committee found that the solicitation letter violated Canon 5C(2), and, furthermore, the matter warranted speedy intervention. The Members unanimously resolved to issue Ms. Thomas a confidential cease and desist notice at peril of fmther action pursuant to Canon 5F(3)(d). Ms. Ballard agreed to draft the notice (for review by the Members) to Ms. Thomas.
Judge Charlie Brett, a candidate for the office of County Court Judge for Lee County, inquired of the Special Committee, via email, as to the propriety of his attendance at a public reception and fund-raiser for the incumbent district attorney who was aligned with the Republican party. The fund-miser was not being sponsored by a political party, there was no price of admission, and all attorneys in a multi-county area were invited to attend. The Special Committee, finding the question to be of limited significance, provided Judge Brett with an informal opinion under Canon 5F(2), advising that he could attend the fund-raiser and speak on his own behalf at it, if desired; however, he was prohibited from and must refrain from publicly endorsing or aligning himself with a political party as a candidate for judicial office.
The Special Committee received and considered a complaint by Theresa Jones against Takiyah Perkins concerning Ms. Perkins’ use of a photograph in her campaign materials which depicted her standing with representatives of the District Attorney’s office for the Fom1h Judicial District. Ms. Perkins is a candidate for office of Circuit Com1 Judge, Fourth Judicial District, and the complaint asserted that since the representatives of the District Attorney’s office would regularly appear before her court, if elected, the use of the photograph constituted a violation of Canon 5.

Following review of the photographs at issue and discussion of the matter, the Special Committee did not find a facial violation of the Code of Judicial Conduct and declined to intervene or take any action against Ms. Perkins.

 

2008 Report and Materials

Ali M. ShamsidDeen
The Special Co1mnittee considered a complaint by the Honorable Jeff Weill, Sr., Hinds County Circuit Comt Judge, against Ali M. ShamsidDeen, asserting three allegations of campaign conduct: (1) the publication of misleading campaign materials; (2) misrepresentations concerning his opponent; and (3) unethical campaign finance conduct.

(A) The Special Committee first addressed the allegations regarding Mr. SamsidDeen’s campaign materials including, but not limited to, billboards, media sites, banners and push cards. The photos embedded in the materials show Mr. ShamsidDeen in a judicial robe without clearly establishing the judicial office which he currently holds as a municipal judge. The members unanimously agreed that the campaign materials reviewed by it violated Formal Opinion 2006-002 as they were misleading and implied that Mr. ShamsidDeen is the incumbent circuit court judge. The Special Committee further determined, pursuant to Canon 5F(3) of the Code of Judicial Conduct of Mississippi Judges, that the matter wa1rnnted speedy intervention and that a confidential letter should issue directing Mr. ShamsidDeen to cease and desist from any use of his current campaign materials, billboards, website or other locations as they do not accurately reflect that he is a municipal judge seeking the office of circuit court judge.

B) The Special Committee then considered the allegations that Mr. ShamsidDeen, during a recent campaign speech, stated that his opponent had been reversed many tunes because he had been unfair” in the courtroom by trying to help the prosecution. The Special Committee unanimously agreed to write Mr. ShamsidDeen, calling his attention to Canon 5A(3)(d)(iii) and directing him to carefully review facts and information concerning his opponent and to remove from his speeches any false or untruthful statements.

C) The Special Committee next considered the allegations that Mr. ShamsidDeen had committed unethical campaign finance conduct regarding the financing of campaign billboards erected by or on behalf of Mr. ShamsidDeen. Following discussion, the Special Committee unanimously agreed that additional investigation was needed and it resolved to issue a letter to Ms. Kathy Sykes, the treasurer of Mr. ShamsidDeen ‘s campaign committee, requesting infonnation concerning the billboards and the financing of them. Mr. ShamsidDeen ‘s committee wi1t be given ten days to respond.

 

The Special Committee on Judicial Election Campaign Intervention issued a public statement today regarding advertising material circulated by Mississippians for Economic Progress which attempt to impact the race for the Supreme Court in the Southern District of Mississippi.

The Special Committee said:

Print material circulated by an organization calling itself, Mississippians for Economic Progress, in support of the candidacy of Judge Pierce in his race against Justice Diaz, has been brought to the attention of the Special Committee. The material in question singles out “trial lawyers” which is a common reference to lawyers who represent individual plaintiffs in lawsuits for damages. It is the view of the Special Committee that this material is inappropriate to judicial elections in that in urges partiality rather than impartiality in the judicial function. Accordingly, the use of material which speaks of “trial lawyers” pejoratively and which seeks to impact the election of judges is condemned.

Committee member Michael Wallace would not have found that these materials violate the Code of Judicial Conduct.

 

 

OPINION 2006-002

The Special Committee has been asked by candidates to render an advisory opinion on the use of the word ‘judge” in campaign literature if the candidate currently holds a judicial office other than the office for which he/she is a candidate. The Special Committee has further received inquiries about the use of the word “judge” in campaign materials by candidates who do not hold a judicial office without the use of clarifying words such as “elect” or “for”.

The questions posed are paraphrased below:

1. May a candidate who holds a judicial office other than the office for which he/she is a candidate use the title “judge”?

Canon 5A(3)(d)(iii) prohibits a candidate from knowingly misrepresenting their qualifications or present position. The Special Committee is of the opinion that a candidate who holds another judicial office may use the title “Judge” in campaign materials subject to certain limitations. The campaign material must clearly identify the circumstances justifying use of the title, including identifying the judgeship currently held. The use of the title cannot be misleading, cannot misrepresent the candidate’s present position, and must make it clear to the voting public that the candidate is not a judge of the court for which the candidate is currently seeking election.

2. May a candidate use his/her name together with the title of the office the candidate is currently seeking?

The Special Committee has received inquiries and copies of m::iterial with phrases or logos such as “John Doe, Circuit Judge” or “Jane Doe, Chancery Judge” when the candidate does not hold judicial office. This again raises the issue of misrepresentation of qualifications or present position as cited in Canon 5A(3)(d)(iii) above. The Special Committee is of the opinion that such material may be misleading and may imply that the candidate currently holds the judicial office. It is, therefore, the Committee’s opinion that a non-judge candidate may not use these phrases without including language such as “elect” before the candidate’s name and position sought or “for” between the candidate’s name and the position sought. The terms “elect” or “for” should be in an easily readable size and form such that they may not be easily overlooked.

OPINION 2006-001

We have been asked by a candidate to render an advisory opinion. The request for opinion poses two different but related questions concerning the interpretation of the words “donor” and “major donor” as used in the Code of Judicial Conduct. These words are defined in the Code and the term “major donor” takes on significance only in the context of litigation before a sitting judge whose candidacy has received contributions from a person or entity so designated. The significance is that a party may filed a motion to compel recusal of a judge where the “opposing party or counsel of record for that party is a major donor to the election campaign of such judge.  Code of Judicial Conduct, Canon 3E(2). The Code does not require recusal in that· instance. All that can be said is that having a “major donor” in the case is an appropriate circumstance in which to raise the recusal issue. The judge and, ultimately, the Supreme Court will determine whether recusal is required.
The questions put are paraphrased below:

I. Whether individual contributions of several lawyers associated with the same firm are aggregated for purposes of determining whether the firm is a major donor; and

2. Where the firm is also a contributor, whether the individual contributions made by members of the firm are aggregated with the firm’s contribution for that purpose.

The first question to be answered is whether this a request that falls within the purview of this committee. Canon 5F(2) empowers this committee to render opinions “as to the propriety of any act of conduct by a judicial candidate [or those acting on behalf of the candidate] … and as to the construction or application of Canon 5 ….

Opinions issued by this committee are advisory only but “all … regulatory and enforcement authorities shall consider reliance by a judicial candidate upon the Special
Committee opinion in any disciplinary or enforcement proceeding.”

In 2002 this committee issued the following opinion:

We have been asked for an opinion by a candidate in the following circumstances:

The candidate is seeking an office in which all candidates run at large for unnumbered posts. Those receiving the highest votes fill the number of posts available. The candidate proposes to file a motion to recuse all of the incumbent judges from matters in which he represents clients before them because they are all his FILED opponents in the race.

The committee has considered the matter and concludes that the request involves matters outside of the scope of this committee’s authority. The issue put by the motion to recuse is one of judicial conduct in on going judicial proceedings not candidate campaign conduct. The determination whether a judge should recuse in a case should be made in accordance with the rules promulgated by the Mississippi Supreme Court to wit: Rule I6A, Mississippi Rules of Civil Procedure; Rule I. I 5, Uniform Rules of Circuit and Chancery Court Practice; Rule I. I I Uniform Chancery Court Rules; and Rule 48B Mississippi Rules of Appellate Procedure.

Similarly, the questions presently put to us may be viewed as not involving the propriety of campaign conduct. Rather they involve conduct which may have a bearing upon subsequent judicial conduct. They involve campaign policies which may have consequences quite aside from whether they are deemed proper or improper. This is not unlike other campaign choices.

The choice of a campaign manager or treasurer or finance chair, for example, may engender a later request for recusal in matter involving that person. The present circumstance is that the decision to accept or not accept contributions from individuals associated with a particular firm and/or the firm may result in a similar request for recusal. Viewed in this way, the questions are beyond our purview.

Another consideration is the ultimate consequence of a decision by this committee. Its function is to provide some measure of comfort to the candidate contemplating conduct which, if viewed in a particular way, might subject the candidate to sanctions .. Recusal, however, is not a sanction. It should have no impact upon the candidate who becomes a judge. Its only impact, if any at all, would be felt by the parties. Those most in need of an answer to the questions posed then, are not so much the candidates but the prospective contributors to the candidate.

Contributors may be viewed as “independent person[s] … conducting activities which impact on the election…. As such we may issue opinions upon the propriety of their acts. But still , recusal of a judge should not be viewed as a sanction for misconduct. While recusal may be a consequence of their acts that consequence does not tum on a question of “propriety.” Recusal will only be required if, in the overall context of the circumstances presented, including whether a party is a major donor, it appears that the judge’s impartiality might objectively be questioned by a reasonable observer. Given that the issue involves the rights of more than one party it is difficult to see how this Committee’s opinion might be given any effect.

Based upon the foregoing, we conclude that the answers to these questions are beyond the purview of this committee. We are the only body empowered to answer this question on an advisory basis. But, any person may petition the Supreme Court for an order clarifying the rule.

In recognition of the fact that these are important questions, the answers to which are unclear, we will send a copy of this opinion to the Supreme Court and urge that it consider clarifying the Code on this issue.

 

2006 Public Statement

Pursuant to Canon 5F(3)(d) of the Code of Judicial Conduct, the Special Committee on Judicial Election Campaign Intervention herein releases the following public statement:

Richard Redfern, a candidate for Chancery Court Judge in the 20th Chancery Court District (Rankin County) has, in the view of the Special Committee, violated Canon 5A(3)( d)(iii) of the Code of Judicial Conduct by the use of campaign material which is misleading and implies that he is the incumbent Chancery Court Judge.

Redfern currently serves as a Rankin County Justice Court Judge and as Special Master in the Chancery Court. His campaign materials use the terms “Judge Richard Redfern Chancery Court” and “Elect Judge Richard Redfern Chancery Court Judge”.

Redfern was previously sent a copy of Opinion 2006-002 issued by the Special Committee on Judicial Election Campaign Intervention which provides that any campaign material “must clearly identify the circumstances justifying use of the title, including identifying the judgeship currently held. The use of the title cannot be misleading, cannot misrepresent the candidate’s present position, and must make it clear to the voting public that the candidate is not a judge of the court for which the candidate is currently seeking election.”

The Special Committee found Redfern’ s campaign materials to be misleading and on September 12, 2006 sent Redfern a cease and desist request pursuant to Canon 5F(3)(c). It is the opinion of the Special Committee that Redfern has continued to distribute misleading campaign materials following receipt of the cease and desist request, resulting in the issuance of this public statement.

 

2004 Report

The Special Committee on Judicial Election Campaign Intervention (“Special Committee’) has been asked to advise whether soliciting donations on a campaign website are permitted where the solicitations are made by the campaign committee chair(s).

The Special Committee concluded that website solicitation in the name of the campaign committee chair(s) does not violate the prohibitions against personal solicitation of contributions by the candidate.

Judicial Campaign – Code of Judicial Conduct – Special Committee

Mississippi is now one of two states that has what is called a “Special Committee”.  There were three but Georgia voters did away with their judicial performance committee.

Rule 5F

F. Special Committee–Proceedings and Authority. In every year in which an election is held for Supreme Court, Court of Appeals, chancery court, circuit court or county court judge in this state and at such other times as the Supreme Court may deem appropriate, a Special Committee on Judicial Election Campaign Intervention (“Special Committee”) shall be created whose responsibility shall be to issue advisory opinions and to deal expeditiously with allegations of ethical misconduct in campaigns for judicial office. The committee shall consist of five (5) members. The Chief Justice of the Supreme Court, the Governor, the Lieutenant Governor, the Speaker of the House of Representatives of the Mississippi Legislature and the chair of the Commission on Judicial Performance (Commission) shall each appoint one member. Those appointed by the Chief Justice, the Governor and the chair of the Commission shall be attorneys licensed to practice in the state. No person shall be appointed to serve as a member of a Special Committee for the year in which such person is a candidate for judicial office. Should the Chief Justice expect to be a candidate for judicial office during the year for which a Special Committee is to be appointed the Chief Justice shall declare such expectation, and in such event, the appointment which otherwise would have been made by the Chief Justice shall be made by the next senior justice of the Supreme Court not seeking judicial office in such year. Likewise, should the Governor, Lieutenant Governor, Speaker of the House of Representatives or chair of the Commission expect to seek judicial office during such year, that official shall declare such expectation, and the appointment which otherwise would have been made by such appointing authority shall be made, respectively: by the Lieutenant Governor if the Governor expects to seek such an office; by the President Pro Tem of the Senate if the Lieutenant Governor expects to seek such an office; by the Speaker Pro Tem of the House of Representatives if the Speaker expects to seek such an office; and by the vice-chair of the Commission if the chair expects to seek such an office. Any action taken by the Special Committee shall require a majority vote. Each Special Committee shall be appointed no later March 1 in the year of their service, and it shall continue in existence for ninety (90) days following such judicial elections or for so long thereafter as is necessary to consider matters submitted to it within such time. The Commission shall provide administrative support to the Special Committee. Should any appointing authority fail to make an appointment, three members shall constitute a sufficient number to conduct the business of the Special Committee. The objective of the Special Committee shall be to alleviate unethical and unfair campaign practices in judicial elections, and to that end, the Special Committee shall have the following authority:

(1) Within ten (10) days of the effective date of this rule or within the ten (10) days after formally announcing and/or officially qualifying for election or re-election to any judicial office in this state, whichever is later, all candidates, including incumbent judges, shall forward written notice of such candidacy, together with an appropriate mailing address and telephone number, to the Commission. Upon receipt of such notice, the Special Committee shall, through the Commission, cause to be distributed to all such candidates by certified mail-return receipt requested copies of the following: Canon 5 of the Code of Judicial Conduct; summaries of any previous opinions issued by the Special Committee, Special Committees organized for prior elections, or the Supreme Court of Mississippi, which relate in any way to campaign conduct and practices; and a form acknowledgment, which each candidate shall promptly return to the Commission and therein certify that the candidate has read and understands the materials forwarded and agrees to be bound by such standards during the course of the campaign. A failure to comply with this section shall constitute a per se violation of this Section authorizing the Committee to immediately publicize such failure to all candidates in such race and to all appropriate media outlets. In the event of a question relating to conduct during a judicial campaign, judicial candidates, their campaign organizations, and all independent persons, committees and organizations are encouraged to seek an opinion from the Special Committee before such conduct occurs.

(2)  Opinions as to the propriety of any act or conduct by a judicial candidate, a candidate’s campaign organization or an independent person, committee or organization conducting activities which impact on the election and as to the construction or application of Canon 5 may be provided by the Special Committee upon request from any judicial candidate, campaign organization or an independent person, committee or organization. If the Special Committee finds the question of limited significance, it may provide an informal opinion to the questioner. If, however, it finds the questions of sufficient general interest and importance, it may render a formal opinion, in which event it shall cause the opinion to be published in complete or synopsis form. Furthermore, the Special Committee may issue formal opinions on its own motion under such circumstances, as it finds appropriate. The Special Committee may decline to issue an opinion when a majority of the Special Committee members determine that it would be inadvisable to respond to the request and to have so confirmed in writing their reasoning to the person who requested the opinion. All formal opinions of the Special Committee shall be filed with the Supreme Court and shall be a matter of public record except for the names of the persons involved, which shall be excised. Both formal and informal opinions shall be advisory only; however,the Commission on Judicial Performance, the Supreme Court and all other regulatory and enforcement authorities shall consider reliance by a judicial candidate upon the Special Committee opinion in any disciplinary or enforcement proceeding.

(3)  Upon receipt of information facially indicating a violation by a judicial candidate of any provision of Canon 5 during the course of a campaign for judicial office, or indicating actions by an independent person, committee or organization which are contrary to the limitations placed upon candidates by Canon 5, the Commission staff shall immediately forward a copy of the same by e-mail or facsimile, if available, and U.S. mail to the Special Committee members and said Committee shall:

(a)  seek, from the informing party and/or the subject of the information, such further information on the allegations as it deems necessary;

(b) conduct such additional investigation as the Committee may deem necessary;

(c) determine whether the allegations warrant speedy intervention and, if so, immediately issue a confidential cease-and-desist request to the candidate and/or organization or independent committee or organization believed to be engaging in unethical and/or unfair campaign practices. If the Committee determines that the unethical and/or unfair campaign practice is of a serious and damaging nature, the Committee may, in its discretion, disregard the issuance of a cease-and-desist request and immediately take action authorized by the provisions of paragraph (3)(d)(i) and (ii), hereafter described. If the allegations of the complaint do not warrant intervention, the Committee shall dismiss the same and so notify the complaining party.

(d) If a cease-and-desist request is disregarded or if the unethical or unfair campaign practices otherwise continue, the Committee is further authorized:

(i) to immediately release to all appropriate media outlets, as well as the reporting party and the person and/or organization against whom the information is submitted, a public statement setting out the violations believed to exist, or, in the case of independent persons, committees or organizations, the actions by an independent person, committee or organization which are contrary to the limitations placed upon candidates by Canon 5. In the event that the violations or actions have continued after theimposition of the cease and desist request, the media release shall also include a statement that the candidate and/or organization or independent person, committee or organization has failed to honor the cease-and-desist request, and
(ii)  to refer the matter to the Commission on Judicial Performance or to any other appropriate regulatory or enforcement authority for such action as may be appropriate under the applicable rules.

(4) All proceedings under this Rule shall be informal and non-adversarial, and the Special Committee shall act on all requests within ten (10) days of receipt, either in person, by facsimile, by U.S. mail, or by telephone. In any event, the Special Committee shall act as soon as possible taking into consideration the exigencies of the circumstances and, as to requests received during the last ten (10) days of the campaign, shall act within thirty-six (36) hours.

(5) Except as herein specifically authorized, the proceedings of the Special Committee shall remain confidential, and in no event shall the Special Committee have the authority to institute disciplinary action against any candidate for judicial office, which power is specifically reserved to the Commission on Judicial Performance under applicable rules.

(6)  The Committee shall after conclusion of the election distribute to the Commission on Judicial Performance copies of all information and all proceedings relating thereto.

(7) This Canon 5F shall apply to all candidates for judicial offices of the Supreme Court, Court of Appeals, chancery courts, circuit courts and county courts, be they incumbent judges or not, and to the families and campaign/solicitation committees of all such candidates. Persons who seek to have their name placed on the ballot as candidates for such judicial offices and the judicial candidates’ election committee chairpersons, or the chairperson’s designee, shall no later than 20 days after the qualifying date for candidates in the year in which they seek to run complete a two-hour course on campaign practices, finance, and ethics sponsored and approved by the Committee. Within ten days of completing the course, candidates shall certify to Committee that they have completed the course and understand fully the requirements of Mississippi law and the Code of Judicial Conduct concerning campaign practices for judicial office. Candidates without opposition are exempt from attending the course.

Commentary

This Section 5F does not appear in the ABA Model Code and was added with the adoption of this Section 5. Similar provisions have been adopted for South Dakota and Georgia. See South Dakota Rules of Commission on Judicial Qualifications, Rule IV and Rules of Georgia Judicial Qualification Commission, Rule 27. In Weaver v. Bonner, 114 F. Supp. 2d 1337 (N.D. Ga. 2000), a constitutional challenge to the Georgia rule was rejected, the court saying the government may “participate in the marketplace of ideas” and “contribute its own views to those of the other speakers. Weaver at 1345, quoting Muir v. Ala. Educ. Television Comm’n, 688 F. 2d 1033, 1037 (5th Cir. 1982). In Weaver, the court also specifically found the procedures adequate to satisfy due process requirement.
Provision is made for the Special Committee to issue opinions to judicial candidates. Ordinarily, absent extraordinary circumstances or statutory authority to the contrary, when a judge or candidate, relying on the opinion of the Special Committee, acts in accordance with the opinion and the opinion is based on a full disclosure of facts and circumstances, the judge or candidate will not be subject to disciplinary or enforcement action or liability.

Judicial Campaign – Code of Judicial Conduct

The Mississippi Code of Judicial Conduct includes the following rules on judicial campaigns:

CANON 5
A Judge or Judicial Candidate Shall Refrain From Inappropriate Political Activity
A. All Judges and Candidates

(1) Except as authorized in Sections 5B(2), 5C(1) and 5C(2), a judge or a candidate for election to judicial office shall not:

(a) act as a leader or hold an office in a political organization;

(b) make speeches for a political organization or candidate or publicly endorse a candidate for public office;

(c) solicit funds for or pay an assessment or make a contribution to a political  organization or candidate, attend political gatherings, or purchase tickets for political party dinners, or other political functions.

Commentary
A judge or candidate for judicial office retains the right to participate in the political process as a voter.

Where false information concerning a judicial candidate is made public, a judge or another judicial candidate having knowledge of the facts is not prohibited by Section 5A(1) from making the facts public.

Section 5A(1)(a) does not prohibit a candidate for elective judicial office from retaining during candidacy a public office such as county prosecutor, which is not “an office in a political organization.”

Section 5A(1)(b) does not prohibit judges or judicial candidate from privately expressing their views on judicial candidates or other candidates for public office.
A candidate does not publicly endorse another candidate for public office by having that candidate’s name on the same ticket. However, Sections 23-15-973 et seq., Miss. Code Ann. (1972) impose 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.
(2) A judge shall resign from judicial office upon becoming a candidate either in a party primary or in a general election for a non-judicial office, except that the judge may continue to hold judicial office while being a candidate for election to or serving as a delegate in a state constitutional convention if the judge is otherwise permitted by law to do so.

(3) A candidate for a judicial office:

(a)  shall maintain the dignity appropriate to judicial office and act in a manner consistent with the integrity and independence of the judiciary, and shall encourage members of the candidate’s family to adhere to the same standards of political conduct in support of the candidate as apply to the candidate;

Commentary

Although judicial candidates must encourage members of their families to adhere to the same standards of political conduct in support of the candidates that apply to the candidates, family members are free to participate in other political activity. Family members are not prohibited by this subsection from serving on the candidates’ campaign committees and otherwise actively involving themselves in the campaigns.

(b) shall prohibit employees and officials who serve at the pleasure of the candidate, and shall discourage other employees and officials subject to the candidate’s direction and control, from doing on the candidate’s behalf what the candidate is prohibited from doing under the Sections of this Canon;

(c) except to the extent permitted by Section 5C(2), shall not authorize or knowingly permit any other person to do for the candidate what the candidate is prohibited from doing under the Sections of this Canon;

(d) shall not:

(i) make pledges or promises of conduct in office other than the faithful and impartial performance of the duties of the office;

(ii) make statements that commit or appear to commit the candidate with respect to cases, controversies or issues that are likely to come before the court; or

(iii) knowingly misrepresent the identity, qualifications, present position or other fact concerning the candidate or an opponent;

Commentary

Section 5A(3)(d)(i) prohibits a candidate for judicial office making pledges or promises to decide cases in any particular way and statements committing the candidate with respect to cases, controversies or issues likely to come before the court on which the candidate will serve if elected. This section does not prohibit or limit a candidate’s freedom to announce the candidate’s current views on issues so long as the announcement does not bind the candidate to maintain those views after election. See Republican Party of Minn. v. White, 536 U.S. 765 (2002) (declaring unconstitutional restrictions in the Minnesota Code of Judicial Conduct on the announcement of views on legal and political issues.) The comparable offending language, referred to as the “announce clause”, formerly appeared in our Code of Judicial Conduct, but was removed with the revision of the code on April 4, 2002. This Section does not prohibit an incumbent judge from making private statements to other judges or court personnel in the performance of judicial duties.
Section 5A(3)(d)(ii) prohibits a candidate for judicial office making statements that appear to commit the candidate regarding cases, controversies or issues likely to come before the court. As a corollary, a candidate should emphasize in any public statement the candidate’s duty to uphold the law regardless of the candidate’s personal views. See also Section 3B(9), the general rule on public comment by judges. Section 5A(3)(d) does not prohibit a candidate from making pledges and promises respecting improvements in court administration.
Section 5A(3)(d) applies to any statement made in the process of securing judicial office, such as statements to commissions charged with judicial selection and tenure and legislative bodies confirming appointment. See also Rule 8.2 of the Mississippi Rules of Professional Conduct. Phrases such as “tough on crime,” “soft on crime,” “pro-business,” “anti-business,” “pro-life,” “pro-choice,” or in any similar characterizations suggesting personal views on issues which may come before the courts, when applied to the candidate or an opponent, may be considered to be prohibited by Section 5A(3)(d) only when used in a context which contain a pledge or promise to decide cases in a particular manner.
[Commentary amended effective February 26, 2004.]

(e) may respond to personal attacks or attacks on the candidate’s record as long as the response does not violate Section 5A(3)(d).

B.  Candidates Seeking Appointment to Judicial or Other Governmental Office.

. . .
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 nonpartisan 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.

(2) A candidate shall not personally solicit or accept campaign contributions or personally solicit publicly stated support. A candidate may, however, establish committees of responsible persons 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 reasonable campaign contributions, manage the expenditure of funds for the candidate’s campaign and obtain public statements of support for the candidacy. Such committees are not prohibited from soliciting and accepting reasonable campaign contributions and public support from lawyers. A candidate’s committees shall not solicit or accept contributions and public support for the candidate’s campaign earlier than 60 days before the qualifying deadline or later than 120 days after the last election in which the candidate participates during the election year. A candidate shall not use or permit the use of campaign contributions for the private benefit of the candidate or others.

Commentary

There is legitimate concern about a judge’s impartiality when parties whose interests may come before a judge, or the lawyers who represent such parties, are known to have made contributions to the election campaigns of judicial candidates. Section 5C(2) recognizes that in many jurisdictions judicial candidates must raise funds to support their candidacies for election to judicial office. It therefore permits a candidate, other than a candidate for appointment, to establish campaign committees to solicit and accept public support and financial contributions. Though not prohibited, campaign contributions of which a judge has knowledge, made by lawyers or others who appear before the judge, may, by virtue of their size or source, raise questions about a judge’s impartiality and be cause for disqualification as provided under Section 3E.
Campaign committees established under Section 5C(2) should manage campaign finances responsibly, avoiding deficits that might necessitate post-election fund-raising, to the extent possible. Such committees must at all times comply with applicable statutory provisions governing their conduct.
Section 5C(2) does not prohibit a candidate from initiating an evaluation by a judicial selection commission or bar association, or, subject to the requirements of this Code, from responding to a request for information from any organization.

(3) Candidates shall instruct their campaign committees at the start of the campaign not to accept campaign contributions for any election that exceed those limitations placed on contributions by individuals, political action committees and corporations by law.

Commentary
The ABA Model Code of Judicial Conduct is drafted for the insertion of specific limits on contributions for judicial campaigns. As adopted for Mississippi, this section simply makes references to limits established by the Legislature by statutes which limit contributions to $5,000 in appellate court races, to $2,500 in chancery, circuit or county court races, and generally limits corporate contributions to $1,000. See Miss. Code Ann. § 23-15-1021 (2000 Supp.) (judicial races) and Miss. Code Ann. § 97-13-15 (1999 Supp.) (corporate contributions.)

(4) A candidate and the candidate’s committee shall timely comply with all provisions of law requiring the disclosure and reporting of contributions, loans and extensions of credit.

Commentary
Section 5C(4) of the ABA Model Code of Judicial Conduct which makes special provision for reporting campaign contributions is replaced by the foregoing Section 5C(4) which requires compliance with all provisions of law. See Miss. Code Ann. §§ 23-15-805 and 23-15-1023 (2000 Supp.)
The ABA Model Code includes a Section 5C(5) which approves, under some circumstances, a judicial candidate’s name being listed on election materials along with the names of other candidates. This has not been incorporated in the revision of the Mississippi canons.

D. Incumbent Judges. A judge shall not engage in any political activity except as authorized under any other Section of this Code, on behalf of measures to improve the law, the legal system or the administration of justice, or as expressly authorized by law.

Commentary
Neither Section 5D nor any other section of the Code prohibits a judge in the exercise of administrative functions from engaging in planning and other official activities with members of the executive and legislative branches of government. With respect to a judge’s activity on behalf of measures to improve the law, the legal system and the administration of justice, see Commentary to Section 4B and Section 4C(1) and its Commentary.
Sections 5A through 5D limit the participation of judges and candidates in political activities. Section 5D expressly prohibits judges from engaging “in any political activity” not expressly authorized by the Code of Judicial Conduct or by law. These provisions do not prohibit voting in party primaries and general elections, which is not “political activity” as the phrase is used in Canon 5. The statute governing non-partisan judicial elections, while prohibiting candidates for judicial offices covered by the statute from campaigning or qualifying for the offices based on party affiliation, does not preclude the candidates from voting in party primaries. Miss. Code Ann. § 23-25-973 (Supp. 2000.)

E. Applicability. Canon 5 generally applies to all incumbent judges and judicial candidates. Successful candidates, whether or not incumbents, are subject to judicial discipline for their campaign conduct; unsuccessful candidates who are lawyers are subject to lawyer discipline for their campaign conduct. Lawyers who are candidates for judicial office are subject to Rule 8.2(b) of the Mississippi Rules of Professional Conduct. However, the provisions of Canon 5F below shall not apply to elections for the offices of justice court judge and municipal judge.

F. Special Committee–Proceedings and Authority. [Next Post]

 

Judicial Campaigns – Code of Judicial Conduct – Campaign Finance

Campaign Finance.

§ 23-15-1021. Limitations on contributions. “It shall be unlawful for any individual or political action committee not affiliated with a political party to give, donate, appropriate or furnish directly or indirectly, any money, security, funds or property. . . in excess of Five Thousand Dollars ($ 5,000.00) for the purpose of aiding any candidate or candidate’s political committee for judge of the Court of Appeals or justice of the Supreme Court, or to give, donate, appropriate or furnish directly or indirectly, any money, security, funds or property . . . in excess of Five Thousand Dollars ($ 5,000.00) for the purpose of aiding any candidate or candidate’s political committee for judge of the Court of Appeals or justice of the Supreme Court, as a contribution to the expense of a candidate for judicial office.”

§ 23-15-1023. Disclosure of campaign finances “Judicial candidates shall disclose the identity of any individual or entity from which the candidate or the candidate’s committee receives a loan or other extension of credit for use in his campaign and any cosigners for a loan or extension of credit. The candidate or the candidate’s committee shall disclose how the loan or other extension of credit was used, and how and when the loan or other extension of credit is to be repaid and the method of repayment. The candidate or the candidate’s committee shall disclose all loan documents related to such loans or extensions of credit.”

§ 97-13-15. Limitations on corporate contributions to political party or candidate. “It shall be unlawful for any corporation, incorporated company or incorporated association, by whatever name it may be known, incorporated or organized under the laws of this state, or doing business in this state, or for any servant, agent, employee or officer thereof, to give, donate, appropriate or furnish directly or indirectly, any money, security, funds or property of said corporation, incorporated company or incorporated association, in excess of One Thousand Dollars ($ 1,000.00) per calendar year for the purpose of aiding any political party or any candidate for any public office, or any candidate for any nomination for any public office of any political party, or to give, donate, appropriate or furnish, directly or indirectly, any money, security, funds or property of said corporation, incorporated company or association in excess of One Thousand Dollars ($ 1,000.00) to any committee or person as a contribution to the expense of any political party or any candidate, representative or committee of any political party or candidate for nomination by any political party, or any committee or other person acting in behalf of such candidate. The limit of One Thousand Dollars ($ 1,000.00) for contributions to political parties, candidates and committees or other persons acting in behalf of such candidates shall be an annual limitation applicable to each calendar year.

The Code of Judicial Conduct also includes some restrictions on what is called a “Major Donor”.

Code of Judicial Conduct Terminology.

“Major donor”, for the purposes of Section 3E(2), shall be defined as follows:

(a) If the donor is an individual, “donor” means that individual, the individual’s spouse, or the individual’s or the individual’s spouse’s child, mother, father, grandmother, grandfather, grandchild, employee and employee’s spouse.

(b) If the donor is an entity other than an individual, “donor” means the entity, its employees, officers, directors, shareholders, partners members, and contributors and the spouse of any of them.

(c) A “major donor” is a donor who or which has, in the judge’s most recent election campaign, made a contribution to the judge’s campaign of (a) more than $2,000 if the judge is a justice of the Supreme Court or judge of the Court of Appeals, or (b) more than $1,000 if the judge is a judge of a court other than the Supreme Court or the Court of Appeals.

(d) The term “contribution to the judge’s campaign” shall be the total of all contributions to a judge’s campaign and shall be deemed to include all contributions of every kind and type whatsoever, whether in the form of cash, goods, services, or other form of contribution, and whether donated directly to the judge’s campaign or donated to any other person or entity for the purpose of supporting the judge’s campaign and/or opposing the campaign of the judge’s opponent(s). The term “contribution to a judge’s campaign” shall also be deemed to include any publication, advertisement or other release of information, or payment therefor, other than a bona fide news item published by existing news media, which contains favorable information about the judge or which contains unfavorable information about the judge’s opponent(s).

Canon 3(C) – Administrative Responsibilities

(5) A judge shall not appoint a major donor to the judge’s election campaign to a position if the judge knows or learns by means of a timely motion that the major donor has contributed to the judge’s election campaign unless

(a) the position is substantially uncompensated;
(b) the person has been selected in rotation from a list of qualified and available persons compiled without regard to their having made political contributions; or
(c) the judge or another presiding or administrative judge affirmatively finds that no other person is willing, competent and able to accept the position.

Canon 3(E) – Disqualification/recusal

(2) Recusal of Judges from Lawsuits Involving Major Donors. A party may file a motion to recuse a judge based on the fact that an opposing party or counsel of record for that party is a major donor to the election campaign of such judge. Such motions will be filed, considered and subject to appellate review as provided for other motions for recusal.

Commentary

Section 3E(2) recognizes that political donations may but do not necessarily raise concerns about a judge’s impartiality. The filing, consideration and appellate review of motions for recusal based on such donations are subject to rules governing all recusal motions. For procedures concerning motions for recusal and review by the Supreme Court of denial of motions for recusal as to trial court judges, see M.R.C.P. 16A, URCCC 1.15, Unif. Chanc. R. 1.11, and M.R.A.P. 48B. For procedures concerning motions for recusal of judges of the Court of Appeals or Supreme Court justices, see M.R.A.P. 27(a). This provision does not appear in the ABA Model Code of Judicial Conduct; however, see Section 3E(1)(e) of the ABA model.

Canon 5(C)- Prohibition against Personal Solicitation

(2) A candidate shall not personally solicit or accept campaign contributions or personally solicit publicly stated support. A candidate may, however, establish committees of responsible persons 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 reasonable campaign contributions, manage the expenditure of funds for the candidate’s campaign and obtain public statements of support for the candidacy. Such committees are not prohibited from soliciting and accepting reasonable campaign contributions and public support from lawyers. A candidate’s committees shall not solicit or accept contributions and public support for the candidate’s campaign earlier than 60 days before the qualifying deadline or later than 120 days after the last election in which the candidate participates during the election year. A candidate shall not use or permit the use of campaign contributions for the private benefit of the candidate or others.

Commentary
There is legitimate concern about a judge’s impartiality when parties whose interests may come before a judge, or the lawyers who represent such parties, are known to have made contributions to the election campaigns of judicial candidates. Section 5C(2) recognizes that in many jurisdictions judicial candidates must raise funds to support their candidacies for election to judicial office. It therefore permits a candidate, other than a candidate for appointment, to establish campaign committees to solicit and accept public support and financial contributions. Though not prohibited, campaign contributions of which a judge has knowledge, made by lawyers or others who appear before the judge, may, by virtue of their size or source, raise questions about a judge’s impartiality and be cause for disqualification as provided under Section 3E.

Campaign committees established under Section 5C(2) should manage campaign finances responsibly, avoiding deficits that might necessitate post-election fund-raising, to the extent possible. Such committees must at all times comply with applicable statutory provisions governing their conduct.

Section 5C(2) does not prohibit a candidate from initiating an evaluation by a judicial selection commission or bar association, or, subject to the requirements of this Code, from responding to a request for information from any organization.

(3) Candidates shall instruct their campaign committees at the start of the campaign not to accept campaign contributions for any election that exceed those limitations placed on contributions by individuals, political action committees and corporations by law.

Commentary

The ABA Model Code of Judicial Conduct is drafted for the insertion of specific limits on contributions for judicial campaigns. As adopted for Mississippi, this section simply makes references to limits established by the Legislature by statutes which limit contributions to $5,000 in appellate court races, to $2,500 in chancery, circuit or county court races, and generally limits corporate contributions to $1,000. See Miss. Code Ann. § 23-15-1021 (2000 Supp.) (judicial races) and Miss. Code Ann. § 97-13-15 (1999 Supp.) (corporate contributions.)

(4) A candidate and the candidate’s committee shall timely comply with all provisions of law requiring the disclosure and reporting of contributions, loans and extensions of credit.

Commentary

Section 5C(4) of the ABA Model Code of Judicial Conduct which makes special provision for reporting campaign contributions is replaced by the foregoing Section 5C(4) which requires compliance with all provisions of law. See Miss. Code Ann. §§ 23-15-805 and 23-15-1023 (2000 Supp.)

The ABA Model Code includes a Section 5C(5) which approves, under some circumstances, a judicial candidate’s name being listed on election materials along with the names of other candidates. This has not been incorporated in the revision of the Mississippi canons.

 

Judicial Campaign – Relevant Statutes

The following are some statutes that relate to judicial elections.

The Mississippi “general laws for the election of state officers shall apply to and govern the election of judges of the Supreme Court.” MCA § 23-15-995 (See 23-15-974 through 23-15-985).

§ 23-15-973. Opportunities for candidates to address people during court terms; restrictions with respect to political affiliations; penalties for violations

It shall be the duty of the judges of the circuit court to give a reasonable time and opportunity to the candidates for the office of judge of the Supreme Court, judges of the Court of Appeals, circuit judge and chancellor to address the people during court terms. 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. Likewise it shall be unlawful for any candidate for any other office nominated or to be nominated at any primary election, wherein any candidate for any of the judicial offices in this section mentioned, is or are to be nominated, to align himself with any one or more of the candidates for said offices or to take any part whatever in any nomination for any one or more of said judicial offices, except to cast his individual vote. Any candidate for any office, whether nominated with or without opposition, at any primary wherein a candidate for any one of the judicial offices herein mentioned is to be nominated who shall deliberately, knowingly and willfully violate the provisions of this section shall forfeit his nomination, or if elected at the following general election by virtue of said nomination, his election shall be void.

HISTORY: SOURCES: Derived from § 23-3-63 Codes, 1942, § 3191; Laws, 1935, ch. 19; repealed by Laws, 1986, ch. 495, § 333; en, Laws, 1986, ch. 495, § 296; Laws, 1994, ch 564, § 93, eff from and after September 6, 1994 (the date the United States Attorney General interposed no objection to the amendment of this section).

§ 23-15-975. “Judicial office” defined; positions deemed positions as full-time positions; prohibition against practice of law

As used in Sections 23-15-974 through 23-15-985 of this subarticle, the term “judicial office” includes the office of justice of the Supreme Court, judge of the Court of Appeals, circuit judge, chancellor, county court judge and family court judge. All such justices and judges shall be full-time positions and such justices and judges shall not engage in the practice of law before any court, administrative agency or other judicial or quasi-judicial forum except as provided by law for finalizing pending cases after election to judicial office.

§ 23-15-976. 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.

HISTORY: SOURCES: Laws, 1994, ch 564, § 78; Laws, 1999, ch. 301, § 16, eff from and after January 15, 1999 (the date the United States Attorney General interposed no objection under Section 5 of the Voting Rights Act of 1965, to the amendment of this section.)

§ 23-15-977. Filing of intent to be candidate and fees by candidates for judicial office; notification of county commissioners of filings; procedures to be followed if there is only one candidate who becomes disqualified from holding judicial office after filing deadline

(1) Except as otherwise provided in this section, all candidates for judicial office as defined in Section 23-15-975 of this subarticle shall file their intent to be a candidate with the proper officials not later than 5:00 p.m. on the first Friday after the first Monday in May prior to the general election for judicial office and shall pay to the proper officials the following amounts:

   (a) Candidates for Supreme Court judge and Court of Appeals, the sum of Two Hundred Dollars ($ 200.00).

   (b) Candidates for circuit judge and chancellor, the sum of One Hundred Dollars ($ 100.00).

   (c) Candidates for county judge and family court judge, the sum of Fifteen Dollars ($ 15.00).

Candidates for judicial office may not file their intent to be a candidate and pay the proper assessment before January 1 of the year in which the election for the judicial office is held.

(2) Candidates for judicial offices listed in paragraphs (a) and (b) of subsection (1) of this section shall file their intent to be a candidate with, and pay the proper assessment made pursuant to subsection (1) of this section to, the State Board of Election Commissioners.

(3) Candidates for judicial offices listed in paragraph (c) of subsection (1) of this section shall file their intent to be a candidate with, and pay the proper assessment made pursuant to subsection (1) of this section to, the circuit clerk of the proper county. The circuit clerk shall notify the county commissioners of election of all persons who have filed their intent to be a candidate with, and paid the proper assessment to, such clerk. Such notification shall occur within two (2) business days and shall contain all necessary information.

(4) If only one (1) person files his intent to be a candidate for a judicial office and that person subsequently dies, resigns or is otherwise disqualified from holding the judicial office after the deadline provided for in subsection (1) of this section but more than seventy (70) days before the date of the general election, the Governor, upon notification of the death, resignation or disqualification of the person, shall issue a proclamation authorizing candidates to file their intent to be a candidate for that judicial office for a period of not less than seven (7) nor more than ten (10) days from the date of the proclamation.

(5) If only one (1) person qualifies as a candidate for a judicial office and that person subsequently dies, resigns or is otherwise disqualified from holding the judicial office within seventy (70) days before the date of the general election, the judicial office shall be considered vacant for the new term and the vacancy shall be filled as provided in by law.

HISTORY: SOURCES: Laws, 1994, ch 564, § 79; Laws, 2000, ch. 592, § 15; Laws, 2010, ch. 379, § 1; Laws, 2011, ch. 509, § 1, eff July 26, 2011 (the date the United States Attorney General interposed no objection under Section 5 of the Voting Rights Act of 1965, to the amendment of this section.)

§ 23-15-977.1. Signing oath to abide by election laws

   Simultaneously with filing the required documents to seek election for a judicial office, the candidate shall sign the following pledge under oath and under penalty of perjury:
   “State of Mississippi
   County of     
   I, (name of candidate) , do solemnly swear or affirm under penalty of 
perjury that I will faithfully abide by all laws, canons and regulations 
applicable to elections for judicial office, understanding that a campaign for 
a judicial office should reflect the dignity, responsibility and professional 
character that a person chosen for a judicial office should possess.
                                                    (signature of candidate)   
                                                         (name of candidate)   
   Sworn to and subscribed before me, this the day          of     ,     .
                                                                                
                                                Notary Public or other official
                                                authorized to administer oaths”

HISTORY: SOURCES: Laws, 1999, ch. 301, § 3, eff from and after January 15, 1999 (the date the United States Attorney General interposed no objection under Section 5 of the Voting Rights Act of 1965, to the addition of this section.)

 

§ 23-15-979. Order for listing on ballot of names of candidates for judicial office; references to political party affiliation

   The names of all candidates for judicial office shall be listed in alphabetical order on any ballot and no reference to political party affiliation shall appear on any ballot with respect to any nonpartisan judicial office or candidate.

HISTORY: SOURCES: Laws, 1994, ch 564, § 81, eff from and after September 6, 1994 (the date the United States Attorney General interposed no objection to the addition of this section).


§ 23-15-981. Two or more candidates qualify for judicial office; majority vote wins; runoff election
 If two (2) or more candidates qualify for judicial office, the names of those candidates shall be placed on the general election ballot. If any candidate for such an office receives a majority of the votes cast for such office in the general election, he shall be declared elected. If no candidate for such office receives a majority of the votes cast for such office in the general election, the names of the two (2) candidates receiving the highest number of votes for such office shall be placed on the ballot for a second election to be held three (3) weeks later in accordance with appropriate procedures followed in other elections involving runoff candidates.

HISTORY: SOURCES: Laws, 1994, ch 564, § 83; Laws, 2007, ch. 434, § 3, eff June 15, 2007 (the date the United States Attorney General interposed no objection under Section 5 of the Voting Rights Act of 1965, to the amendment of this section.)

§ 23-15-985. Electors qualified to vote for candidates for nomination for judicial office

  In any election for judicial office, all qualified electors, regardless of party affiliation or lack thereof, shall be qualified to vote for candidates for nomination for judicial office.

HISTORY: SOURCES: Laws, 1994, ch 564, § 87, eff from and after September 6, 1994 (the date the United States Attorney General interposed no objection to the addition of this section).

§ 23-15-1025. Distribution of campaign materials.

If any material is distributed by a judicial candidate or his campaign committee or any other person or entity, or at the request of the candidate, his campaign committee or any other person or entity distributing the material shall state that it is distributed by the candidate or that it is being distributed with the candidate’s approval. All such material shall conspicuously identify who has prepared the material and who is distributing the material. The identifying language shall state whether or not the material has been submitted to and approved by the candidate. If the candidate has not approved the material, the material shall so state. The identity of organizations or committees shall state the names of all officers of the organizations or committees. Any person, who violates the provisions of this section, shall be guilty of a misdemeanor and upon conviction shall be punished by a fine of One Thousand Dollars ($ 1,000.00) or by imprisonment for six (6) months or both fine and imprisonment.”

 

Constitutional Challenges – Siefert v. Alexander

The Seventh Circuit rendered a decision on a constitutional challenge in Siefert v. Alexander, 608 F.3d 974, 977–96 (7th Cir. 2010),

The plaintiff, John Siefert, is an elected Wisconsin circuit court judge in Milwaukee County. He would like to state his affiliation with the Democratic Party, endorse partisan candidates for office, and personally solicit contributions for his next election campaign, but is concerned because these activities are prohibited by the Wisconsin Code of Judicial Conduct. Rather than violate the code and face discipline, Siefert filed suit under 42 U.S.C. § 1983 for declaratory and injunctive relief against the members of the Wisconsin Judicial Commission, the body that enforces the Code of Judicial Conduct. After considering the parties’ cross-motions for summary judgment, the district court granted Siefert’s motion, declared the rules prohibiting a judge or judicial candidate from announcing a partisan affiliation, endorsing partisan candidates, and personally soliciting contributions unconstitutional, and enjoined the defendants from enforcing these rules against Siefert. The Commission appeals. We affirm the district court’s holding on the partisan affiliation ban but reverse the district court’s ruling that the bans on endorsing partisan candidates and personally soliciting contributions are unconstitutional.
I. Background
Plaintiff John Siefert was first elected to the circuit court for Milwaukee County in 1999 and has served as a judge since. Prior to being elected a circuit court judge, he was a member of the Democratic Party and participated in a number of partisan activities. He served as a delegate to the Democratic National Convention, twice ran as a Democrat for the state legislature, twice ran as a Democrat for county treasurer (holding that office from 1990 to 1993), and served as an alternate elector for President Bill Clinton in 1992. He would like to once again join the Democratic Party and list his party membership in response to candidate questionnaires. He believes membership in the Democratic Party would communicate his desire for social justice and peace, but does not wish to appeal to partisanship as a candidate or as a judge. Siefert would also like to endorse partisan candidates for office. At the time he initiated this suit, he sought to endorse now-President Barack Obama; he expressed a desire to endorse Jim Doyle for governor of Wisconsin in 20101 and President Obama if he decides to run for reelection in 2012. Finally, Siefert would like to solicit contributions for his upcoming 2011 campaign by making phone calls to potential contributors, signing his name to fundraising letters, and by personally inviting potential donors to fundraising events. He would continue to use a campaign committee to handle the ministerial tasks of fundraising and to collect and report donations.
The defendants are the executive director and members of the Wisconsin Judicial Commission (the “Commission”). The Commission investigates and prosecutes potential violations of the Wisconsin Code of Judicial Conduct. The Commission also issues, from time to time, advisory opinions on the interpretation of the Code of Judicial Conduct.
 Wisconsin conducts two sets of elections; one set (i.e., a primary and then general election) is held in the spring for positions filled through nonpartisan elections and the other is held in the fall for the partisan elected positions. Nonpartisan officeholders include judges of the circuit courts, court of appeals, and supreme court, as well as the state superintendent of public instruction, county board members, county executives, and municipal and school district officers. The election for these positions is nonpartisan in the sense that all candidates (who meet the eligibility requirements) appear on the ballot without party identification. Similarly, political parties have no power to slate candidates in the nonpartisan election. Wis. Const. art. VII, § 9; Wis. Stat. §§ 5.58, 5.60. A spring primary is necessary if more than two candidates meet the nomination requirements for a nonpartisan position. The top two vote-getters in the primary proceed to the nonpartisan April election, which is, in essence, a runoff. Wis. Stat. § 8.11; Wis. Blue Book 884 (2009-10). If only one or two candidates meet the nomination requirements, no primary is necessary. (Practically, it appears that incumbent judges, at least recently, are rarely challenged, and if so, are challenged by one opponent only and thus subject to only one election in April. See Laurel Walker, Judicial Selections Not Quite Non-Partisan, Milwaukee Journal Sentinel, Dec. 25, 2009. Voting for offices filled through partisan elections, including sheriff and district attorney, takes place in the fall with a primary election to choose a single candidate for each of the two major parties, followed shortly thereafter by a head-to-head partisan general election. Wis. Blue Book 884; see Wis. Stat. §§ 5.64, 8.16.
Party affiliation has been absent from the ballot in Wisconsin’s judicial elections since 1913, and the district court found, based on the work of a historian employed by the Commission, that a tradition of nonpartisanship had taken hold among judicial candidates even earlier. However, Wisconsin did not expressly prohibit judges from joining a political party until 1968, when it adopted a comprehensive code of judicial conduct. See Charles D. Clausen, The Long and Winding Road: Political and Campaign Ethics Rules for Wisconsin Judges, 83 Marq. L.Rev. 1, 2-3 (1999). In October 2004, the supreme court amended the code to extend a number of rules to cover judicial candidates in addition to sitting judges, including the prohibitions on party membership, partisan endorsements, and personal solicitation of campaign contributions. See Wisconsin Supreme Court Order 00-07, 2004 WI 134 (Oct. 29, 2004).
The plaintiff challenges three distinct provisions of the rules adopted in 2004. The challenged provisions are all contained in Wisconsin Supreme Court Rule 60.06:
SCR 60.06 A judge or judicial candidate shall refrain from inappropriate political activity.
(2) Party membership and activities.
(a) Individuals who seek election or appointment to the judiciary may have aligned themselves with a particular political party and may have engaged in partisan political activities. Wisconsin adheres to the concept of a nonpartisan judiciary. A candidate for judicial office shall not appeal to partisanship and shall avoid partisan activity in the spirit of a nonpartisan judiciary.
(b) No judge or candidate for judicial office or judge-elect may do any of the following:
1. Be a member of any political party.
2. Participate in the affairs, caucuses, promotions, platforms, endorsements, conventions, or activities of a political party or of a candidate for partisan office.
3. Make or solicit financial or other contributions in support of a political party’s causes or candidates.
4. Publicly endorse or speak on behalf of its candidates or platforms.
(c) A partisan political office holder who is seeking election or appointment to judicial office or who is a judge-elect may continue to engage in partisan political activities required by his or her present position.
(4) Solicitation and Acceptance of Campaign Contributions. A judge, candidate for judicial office, or judge-elect shall not personally solicit or accept campaign contributions. A candidate may, however, establish a committee to solicit and accept lawful campaign contributions. The committee is not prohibited from soliciting and accepting lawful campaign contributions from lawyers. A judge or candidate for judicial office or judge-elect may serve on the committee but should avoid direct involvement with the committee’s fundraising efforts. A judge or candidate for judicial office or judge-elect may appear at his or her own fundraising events. When the committee solicits or accepts a contribution, a judge or candidate for judicial office should also be mindful of the requirements of SCR 60.03 and 60.04(4).
Siefert challenges the ban on party membership in SCR 60.06(2)(b) 1, the ban on partisan endorsements in SCR 60.06(2)(b) 4, and the ban on personal solicitation of campaign contributions in SCR 60.06(4). He does not challenge the ban on “appeal[s] to partisanship and … partisan activity” in SCR 60.06(2)(a) or the balance of SCR 60.06(2)(b). Nor does he challenge SCR 60.05, which directs judges to conduct their extra-judicial activities in a manner that does not cast doubt on the judge’s capacity to act impartially, demean the judicial office, or interfere with the proper performance of judicial duties.
II. Discussion
A little background on the law surrounding the First Amendment rights of elected judges and judicial candidates is helpful to understanding what follows. In 2002, the Supreme Court decided Republican Party of Minn. v. White (White I), 536 U.S. 765, 122 S.Ct. 2528, 153 L.Ed.2d 694 (2002). White I struck down a Minnesota canon of judicial conduct that prohibited judges and judicial candidates from announcing their views on disputed legal and political issues. Id. at 788, 122 S.Ct. 2528. The Court, applying a strict scrutiny approach, recognized a compelling state interest in preventing bias for or against particular litigants, but held that the state did not have a compelling interest in preventing a judge from having a preconception for or against particular views. Id. at 776-77, 122 S.Ct. 2528.
At the same time, White I left open some of the questions we deal with today. Justice Kennedy, a member of the five-vote majority and author of a separate concurrence, noted specifically that states are obligated to regulate the behavior of their judges to protect the integrity of their courts. “To strive for judicial integrity is the work of a lifetime. That should not dissuade the profession. The difficulty of the undertaking does not mean we should refrain from the attempt.” Id. at 794, 122 S.Ct. 2528 (Kennedy, J., concurring). Justice Kennedy noted that elected judges “have discovered in the law the enlightenment, instruction, and inspiration that make them independent-minded and faithful jurists of real integrity.” Id. at 796, 122 S.Ct. 2528. We think it beyond doubt that states have a compelling interest *980 in developing, and indeed are required by the Fourteenth Amendment to develop, these independent-minded and faithful jurists. See Caperton v. A.T. Massey Coal Co., Inc., — U.S. —-, 129 S.Ct. 2252, 2259, 173 L.Ed.2d 1208 (2009); In re Murchison, 349 U.S. 133, 136, 75 S.Ct. 623, 99 L.Ed. 942 (1955). State rules are the means of their development. White I, 536 U.S. at 794, 122 S.Ct. 2528 (Kennedy, J., concurring).
But White I makes clear that there are boundaries to the state’s regulation of judicial elections. On remand, the Eighth Circuit, adopting the Supreme Court’s strict scrutiny approach from White I, invalidated Minnesota’s ban on partisan activities by judges and the portion of Minnesota’s ban on direct solicitation of contributions that prohibited judges from signing fundraising letters or speaking to large groups of potential donors at fundraisers. Republican Party of Minnesota v. White (White II), 416 F.3d 738, 754, 765-66 (8th Cir.2005) (en banc). Siefert relies heavily on these cases to challenge Wisconsin’s code of judicial conduct, which contains provisions that are similar but not identical to those at issue in White II.
The Commission relies on two government employment cases, U.S. Civil Serv. Comm’n v. Nat’l Assoc. of Letter Carriers, 413 U.S. 548, 93 S.Ct. 2880, 37 L.Ed.2d 796 (1973) and Garcetti v. Ceballos, 547 U.S. 410, 126 S.Ct. 1951, 164 L.Ed.2d 689 (2006), to argue that a less stringent standard applies. Letter Carriers upheld the constitutionality of Section 9(a) of the Hatch Act, which prohibited federal employees from taking “an active part in political management or in political campaigns.” Garcetti dismissed a § 1983 claim brought by a deputy district attorney who claimed that his employer, a county, took adverse employment action against him after he wrote a memorandum in which he recommended dismissal of a criminal case based on government misconduct, and that this action amounted to retaliation for exercising his First Amendment right to free speech. Both of these cases in turn relied on the deferential standard of review articulated in Pickering v. Bd. of Ed. of Twp. High Sch. Dist. 205, Will County, Ill., 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968), which balances the public employee’s right to speak out on matters of public concern against the government’s interest in “promoting the efficiency of the public services it performs through its employees.” Id. at 568, 88 S.Ct. 1731. In White I, the Supreme Court reserved the question of whether this line of cases could justify restrictions on the speech “of judges because they are judges.” 536 U.S. at 796, 122 S.Ct. 2528 (Kennedy, J., concurring) (“Whether the rationale of Pickering v. Board of Ed. of Township High School Dist. 205, Will Cty., and Connick v. Myers could be extended to allow a general speech restriction on sitting judges-regardless of whether they are campaigning-in order to promote the efficient administration of justice, is not an issue raised here.” (internal citations omitted)).
The Commission is correct that, ordinarily, governmental entities have some leeway to proscribe certain categories of speech among citizens to promote the efficient performance of governmental functions. See Citizens United v. Fed. Election Comm’n, — U.S. —-, 130 S.Ct. 876, 899, —L.Ed.2d —- (2010) (collecting cases). “[T]here are certain governmental functions that cannot operate without some restrictions on particular kinds of speech.” Id. The First Amendment allows, for instance, certain prohibitions on students’ use of vulgar terms at school, Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675, 683, 106 S.Ct. 3159, 92 L.Ed.2d 549 (1986), state employees’ speech about working *981 conditions, Connick v. Myers, 461 U.S. 138, 146, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983), prisoners’ union-organizing activity, Jones v. N.C. Prisoners’ Labor Union, 433 U.S. 119, 131-32, 97 S.Ct. 2532, 53 L.Ed.2d 629 (1977), military members’ dissent, Parker v. Levy, 417 U.S. 733, 758, 94 S.Ct. 2547, 41 L.Ed.2d 439 (1974), federal employees’ political activity, Letter Carriers, 413 U.S. at 564, 93 S.Ct. 2880, state employees’ political activity, Broadrick v. Oklahoma, 413 U.S. 601, 616, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973), and public school teachers’ speech, Pickering, 391 U.S. at 568, 88 S.Ct. 1731. But White I is clear that in the context of elections, judges are free to communicate their ideas to voters. Much of our discussion involves our attempt to harmonize these two strains of First Amendment law.
A. SCR 60.06(2)(b) 1: Party Membership
SCR 60.06(2)(b) 1 states that “No judge or candidate for judicial office or judge-elect may … [b]e a member of any political party.” We think this rule falls squarely within the ambit of the Supreme Court’s analysis in White I. Just as in White I, the party affiliation ban forbids “speech on the basis of its content and burdens a category of speech that is ‘at the core of our First Amendment freedoms’-speech about the qualifications of candidates for public office.” White I, 536 U.S. at 774, 122 S.Ct. 2528. We agree with Judge Siefert that the partisan affiliation ban acts to prohibit his speech on both his political views and his qualifications for office. Therefore, the clause is a content-based restriction on speech subject to strict scrutiny. Id.; United States. v. Playboy Entm’t Group, Inc., 529 U.S. 803, 813, 120 S.Ct. 1878, 146 L.Ed.2d 865 (2000).
To survive strict scrutiny, SCR 60.06(2)(b) 1 must be narrowly tailored to serve a compelling state interest. White I, 536 U.S. at 774-75, 122 S.Ct. 2528. To show that a restriction on speech is narrowly tailored, the state must show that it “does not ‘unnecessarily circumscrib[e] protected expression.’ ” Id. at 775, 122 S.Ct. 2528 (citing
Brown v. Hartlage, 456 U.S. 45, 54, 102 S.Ct. 1523, 71 L.Ed.2d 732 (1982)).
The Commission argues that the ban is necessary to preserve both “impartiality,” defined as the “absence of bias or prejudice in favor of, or against, particular parties, or classes of parties, as well as maintaining an open mind in considering issues that may come before the judge,” SCR 60.01(7m), and the appearance of impartiality.2
In White I, the Supreme Court cautioned against vague invocations of “impartiality.” 536 U.S. at 775, 122 S.Ct. 2528. Insofar as impartiality refers to “the lack of bias for or against either party to the proceeding,” it is a compelling state interest. Id. (emphasis in original). This is consistent with the constitutional guarantee of due process, which requires recusal in cases where there is a strong probability of “actual bias.” See, e.g., Caperton, 129 S.Ct. at 2265 (holding that due process required a justice of the West Virginia Supreme Court of Appeals to recuse himself from a case involving a company whose president spent approximately $3 million to elect the justice while the company’s appeal was pending). On the other hand, the White I Court squarely rejected the argument that a state has a compelling *982 interest in guaranteeing that judges do not have a “preconception in favor of or against a particular legal view.” 536 U.S. at 777, 122 S.Ct. 2528 (emphasis in original). We not only allow, but expect, judges to have preconceived views on legal issues. See Laird v. Tatum, 409 U.S. 824, 835, 93 S.Ct. 7, 34 L.Ed.2d 50 (1972) (mem. of Rehnquist, J.) (“Proof that a Justice’s mind at the time he joined the Court was a complete tabula rasa in the area of constitutional adjudication would be evidence of lack of qualification, not lack of bias.”). Finally, the White I Court left open the possibility that “openmindedness”-the willingness to consider opposing views and remain open to persuasion-is a compelling state interest. 536 U.S. at 778, 122 S.Ct. 2528. Because the Court found that the canon at issue did not serve the interest of open-mindedness, it did not decide whether such an interest was in fact compelling. Id.
The crux of the state’s concern here seems to be that a judge who publicly affiliates with a political party has indicated that he is more inclined toward that party’s stance on the variety of legal issues on which that party has a position. But that is the purported compelling state interest that White I squarely rejected. 536 U.S. at 777-78, 122 S.Ct. 2528. The state does not have a compelling interest in preventing candidates from announcing their views on legal or political issues, let alone prohibiting them from announcing those views by proxy.3 Nor can casting the argument in terms of the “appearance of bias” save it-because “avoiding judicial preconceptions on legal issues is neither possible nor desirable, pretending otherwise by attempting to preserve the ‘appearance’ of that type of impartiality can hardly be a compelling state interest either.” Id. at 778, 122 S.Ct. 2528.
The Commission also argues that the ban on party affiliation is designed to prevent bias for or against parties to a particular case, or the appearance of that bias. While this interest was certainly recognized in White I, this rule is not tailored to it.4 Arguably, party membership is an association that could call into question the impartiality of a judge when sitting on a case involving that party, or perhaps that party’s main rival. But see White II, 416 F.3d at 755 (“[T]he fact that the matter comes before a judge who is associated with the Republican or Democratic Party would not implicate concerns of bias for or against that party unless the judge were in some way involved in the case beyond simply having an ‘R’ or ‘D’ … after his or her name.”) However, nothing in the record suggests that political parties themselves are such frequent litigants that it would be unworkable for a judge who chooses to affiliate with a political party to recuse himself when necessary.
The Commission attacks the practicality of recusal by arguing that a judge who declared a partisan affiliation would have to recuse himself in every case where a party member was a litigant, or where the political party was supporting a particular outcome, making recusal impractical. But this significantly overstates the likelihood of bias toward particular litigants. Membership in a political party is not the same as membership in a smaller, more cohesive organization. Furthermore, mere membership does not connote the type of intricate relationship with party politics that would create the appearance of bias. Without some specific, individualized relationship, the affiliation between a judge who is a member of a political party and other members of that political party is simply too diffuse to make it reasonable to assume that the judge will exhibit bias in favor of his fellow party members. Indeed, twelve states employ partisan elections with respect to at least some judgeships. See American Judicature Society, Methods of Judicial Selection, http://www.judicialselection.us/judicialselection/methods/selection _dof_ judges.cfm?state= (last visited June 9, 2010) (identifying Alabama, Illinois, Indiana, Kansas, Louisiana, New Mexico, New York, Ohio, Pennsylvania, Tennessee, Texas and West Virginia as states that employ partisan judicial elections). There is no evidence to suggest that these states have faced an unworkable number of recusals as a result of their partisan judicial elections, nor that their partisan system of elections works a denial of due process. Cf. White I, 536 U.S. at 776, 122 S.Ct. 2528 (noting that due process requires an “impartial” judge in the sense of a judge lacking a bias for or against either party to a proceeding). In short, defendants have failed to show why recusal, which does not restrict speech, is an unworkable alternative to Wisconsin’s ban on judges and judicial candidates announcing a party affiliation.
B. SCR 60.06(2)(b) 4: Endorsement of Partisan Candidates
SCR 60.06(2)(b) 4 prohibits judges and judicial candidates from “[p]ublicly endors[ing] or speak[ing] on behalf” of any partisan candidate or platform. Judge Siefert argues that, like the choice to identify as a member of the Democratic Party, the choice to endorse another candidate is simply a means of expressing his political views. We disagree. An endorsement is a different form of speech that serves a purpose distinct from the speech at issue in White I and in the party identification rule discussed above. Accordingly, we believe that it should be subject to a distinct analysis. In keeping with a long line of Supreme Court precedent determining the rights of government employees going back to at least Ex Parte Curtis, 106 U.S. 371, 1 S.Ct. 381, 27 L.Ed. 232 (1882), a balancing approach, not strict scrutiny, is the appropriate method of evaluating the endorsement rule.
While the First Amendment “has its fullest and most urgent application to speech uttered during a campaign for political office,” Citizens United, 130 S.Ct. at 898 (citing Eu v. San Francisco County Democratic Cent. Comm., 489 U.S. 214, 223, 109 S.Ct. 1013, 103 L.Ed.2d 271 (1989) (internal quotation omitted)); see also White I, 536 U.S. at 774, 122 S.Ct. 2528 (noting that “speech about the qualifications of candidates for public office” is “at the core of our First Amendment freedoms”), a public endorsement does not fit neatly in that category. Endorsements are not simply a mode of announcing a judge’s views on an issue, or a shorthand for that view. In fact, the American Bar Association model code from which the rule is derived justifies the restriction on endorsement based on the danger of “abusing the prestige of judicial office to advance the interests of others.” Model *984 Code of Judicial Conduct R. 4.1 cmt. [4] (2007). The Commission identifies its interest in the rule as an attempt to preserve the appearance of impartiality in the judiciary. Appellant’s Br. at 36.
While an interest in the impartiality and perceived impartiality of the judiciary does not justify forbidding judges from identifying as members of political parties, a public endorsement is not the same type of campaign speech targeted by the impermissible rule against party affiliation in this case or the impermissible rule against talking about legal issues the Supreme Court struck down in White I. As Judge Siefert notes, “[e]ndorsements primarily benefit the endorsee, not the endorser” and endorsements may be exchanged between political actors on a quid pro quo basis. Appellee’s Br. at 37 & n. 11. This amounts to a concession that offering an endorsement is less a judge’s communication about his qualifications and beliefs than an effort to affect a separate political campaign, or even more problematically, assume a role as political powerbroker.
This distance between an endorsement and speech about a judge’s own campaign justifies a more deferential approach to government prohibition of these endorsements. See Letter Carriers, 413 U.S. at 556, 93 S.Ct. 2880; United Pub. Workers of Am. v. Mitchell, 330 U.S. 75, 99, 67 S.Ct. 556, 91 L.Ed. 754 (1947); see also Biller v. U.S. Merit Sys. Prot. Bd., 863 F.2d 1079, 1089 (2d Cir.1988) (noting that the Supreme Court has drawn a careful line between “partisan political activities” and “mere expressions of views”). When judges are speaking as judges, and trading on the prestige of their office to advance other political ends, a state has an obligation to regulate their behavior. We thus see a dividing line between the party affiliation rule, which impermissibly bars protected speech about the judge’s own campaign, and the public endorsement rule, which addresses a judge’s entry into the political arena on behalf of his partisan comrades. See Citizens United, 130 S.Ct. at 899 (noting that while political speech restrictions are subject to strict scrutiny, “a narrow class of speech restrictions” are constitutionally permissible if “based on an interest in allowing governmental entities to perform their functions.”). We note that Citizens United, even as it broadly prohibited restrictions on “political speech,” reconfirmed the validity of the Letter Carriers line of cases, which specifically targeted political activity by government employees. Id. And we reiterate that the Supreme Court’s holding in White I does not necessarily forbid any regulation of a judge’s speech. In fact, Justice Kennedy’s concurrence indicates just the opposite. Furthermore, unlike restrictions designed, for example, to regulate federal employees’ political activity, restrictions on judicial speech may, in some circumstances, be required by the Due Process Clause. This provides a state with a sufficient basis for restricting certain suspect categories of judicial speech, even political speech. The only question is whether a ban on public endorsements serves this state interest.
Judge Siefert argues that judges are different from “employees” because they are more akin to legislative actors who are “ultimately accountable to the voters.” See Jenevein v. Willing, 493 F.3d 551, 558 (5th Cir.2007). However, this conception of a judge’s role is improperly limited. The Hatch Act, as considered in Letter Carriers, was not confined to low-level bureaucrats, but covered the entire executive branch of the federal government, with specific exemptions for the President, Vice President, and “specified officials in policy-making positions.” Letter Carriers, 413 U.S. at 561, 93 S.Ct. 2880. While Wisconsin judges receive job evaluations from the voting public, they are employed in the *985 essential day-to-day task of operating a judicial system that must not only be fair and impartial, but must also appear to the public to be fair and impartial. To the extent that Wisconsin chooses to restrict those employed to perform important judicial functions from being in the business of trading political endorsements, important due process interests are served.
Furthermore, while Garcetti, Connick, Letter Carriers, and Pickering all concern public employees, the ability of the government to regulate the speech of the employees in those cases is not solely dependent on its authority as an employer. See Connick, 461 U.S. at 143-44, 103 S.Ct. 1684 (tracing the development of the law in this area). Instead, by the time it decided Pickering, the Supreme Court had recognized that the doctrine that the government was allowed to subject its employees “to any conditions, regardless of how unreasonable” had been “uniformly rejected.” Pickering, 391 U.S. at 568, 88 S.Ct. 1731 (citation omitted). “At the same time it cannot be gainsaid that the State has interests as an employer in regulating the speech of its employees that differ significantly from those it possesses in connection with regulation of the speech of the citizenry in general. The problem in any case is to arrive at a balance between the interests of the [employee], as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.” Id.; see also Mitchell, 330 U.S. at 96, 67 S.Ct. 556 (“Again this Court must balance the extent of the guarantees of freedom against a congressional enactment to protect a democratic society against the supposed evil of political partisanship by classified employees of the government.”). The rationale behind government restriction identified in Pickering, therefore, is related both to the government’s power as an employer and its duty to promote the efficiency of the public services it performs. Here, we emphasize again, we are not concerned merely with the efficiency of those services, but that the work of the judiciary conforms with the due process requirements of the Constitution; this tips the balance even more firmly in favor of the government regulation.
The observation that elected judges are “ultimately accountable to the voters” seems irrelevant to the due process issue. A judge must also be accountable to her responsibilities under the Fourteenth Amendment. It is small comfort for a litigant who takes her case to state court to know that while her trial was unfair, the judge would eventually lose an election, especially if that litigant were unable to muster the resources to combat a well-financed, corrupt judge around election time. As Justice Kennedy pointed out in his concurrence in White I, state rules fill the gap between elections in order to develop the fair jurists to whom each litigant is entitled. White I, 536 U.S. at 794, 122 S.Ct. 2528 (Kennedy, J., concurring).
So, as in Pickering, we have to find the balance between the state’s interest and the judge’s. Under the Pickering approach, narrow tailoring is not the requirement; the fit between state interest and regulation need not be so exact. Instead, the state’s interest must be weighed against the employee’s interest in speaking. Pickering, 391 U.S. at 568, 88 S.Ct. 1731; Bridges v. Gilbert, 557 F.3d 541, 549 (7th Cir.2009). And the state’s interest in the endorsement regulation is a weighty one. Due process requires both fairness and the appearance of fairness in the tribunal. “[T]o perform its high function in the best way, ‘justice must satisfy the appearance of justice.’ ” Murchison, 349 U.S. at 136, 75 S.Ct. 623 (citing Offutt v. United States, 348 U.S. 11, 14, 75 S.Ct. 11, 99 L.Ed. 11 (1954)). The Commission’s concern is that judges who “publicly endorse or speak on behalf of [a party’s] candidates or platforms” undermine this appearance of impartiality.
At the same time, the constitutional protection in a political endorsement is tempered by the limited communicative value of such an endorsement. Judge Siefert concedes that endorsements may be less about communicating one’s qualifications for office than bolstering another politician’s chances for office. Appellee’s Br. at 37 & n. 11. While White I teaches us that a judge who takes no side on legal issues is not desirable, a judge who takes no part in political machinations is.
The Conference of Chief Justices, as amicus, points to the same quid pro quo concerns conceded by Judge Siefert to justify the endorsement ban. “Without this rule, judicial candidates and judges-elect could elicit promises from elected officials, including local prosecutors and attorneys general, in exchange for their endorsement.” Br. of Conf. of Chief Justices, amicus, at 23. The Commission justifies its interest in the ban based on the danger that parties whom the judge has endorsed may appear in the judge’s court, and argues that the risk of bias is not mitigated by the remedy of recusal, due to both the volume of litigation involving the government in Wisconsin and the number of small circuit courts in Wisconsin, where recusal would be impracticable. Both the Commission’s and the Chief Justices’ concerns are valid. Any suggestion that the rule should only forbid Judge Siefert from making endorsements while identifying himself as “Judge” is dubious (he would be prohibited from using his title anyway by SCR 60.03(2)); the Commission is entitled to believe that simply removing the honorific “judge” will not conceal Siefert’s true identity from the public.
Judge Siefert, arguing for a strict scrutiny standard, suggests that the availability of recusal, a less restrictive alternative to the ban on endorsements, dooms the prohibition. The example Judge Siefert uses to dispute the Commission’s argument that recusal is too onerous for some of its courts-his endorsement of President Obama-is a particularly good example of why strict scrutiny is the inappropriate inquiry. The value of that endorsement to the President would be directly congruent to Judge Siefert’s status in the community, the publicity his endorsement would engender, and the narrowness of the margin in public support for the President. While all of these factors enhance the value of the endorsement, they similarly enhance its problematic nature. A local judge who tips the outcome of a close election in a politician’s favor would necessarily be a powerful political actor, and thus call into question the impartiality of the court. Conversely, if Judge Siefert’s public endorsement carried no weight, why preserve his right to make this public endorsement by jeopardizing the efficiency of Wisconsin’s courts? See Broadrick, 413 U.S. at 613, 93 S.Ct. 2908 (“Application of the overbreadth doctrine in this manner is, manifestly, strong medicine. It has been employed by the Court sparingly and only as a last resort.”). Once we accept that public endorsements are not the type of speech contemplated in White I, our task is to balance the value of the rule against the value of the communication. The concerns the Commission and its amici articulated also speak to a broader concern that freely traded public endorsements have the potential to put judges at the fulcrum of local party politics, blessing and disposing of candidates’ political futures. Given that Wisconsin’s interest in preventing its judges’ participation in politics unrelated to their campaigns is justified based on its obligations  under the Due Process Clause, as well on its obligation to prevent the appearance of bias from creeping into its judiciary, and that the endorsement restriction does not infringe on a judge’s ability to inform the electorate of his qualifications and beliefs, the regulation is permissible.
We note that the rule only bans endorsements in partisan elections. Wisconsin also holds nonpartisan elections for judges, as well as the state superintendent of public education, county board members, county executives, and municipal and school district officers. Wis. Blue Book 884; see Wis. Stat. §§ 5.58, 5.60. According to the text of the rule (“No judge or candidate for judicial office … may publicly endorse or speak on behalf of [a political party’s] candidates or platforms”), endorsements in these nonpartisan elections may be freely given. Were we to consider this provision under strict scrutiny, this underinclusiveness could be fatal to the rule’s constitutionality.
But, because we are applying a balancing test, the question we ask is whether the exception for nonpartisan elections so weakens the ban (and therefore the state’s asserted interest in enforcing it) that the scales tip in favor of the plaintiff’s right to speak. See SEIU, Local 3 v. Municipality of Mt. Lebanon, 446 F.3d 419, 425 (3d Cir.2006) (“[T]o the extent that the [regulation] is not tailored to the [state’s] stated interest, there is a commensurate reduction in the [state’s] interest in its enforcement.” (quotation omitted)). We think it does not for two reasons.
First, the Commission justifies the ban based on the onerous nature of recusal in the case where a judge endorses a prosecutor or sheriff who frequently appears in front of the court. None of the nonpartisan officials appear as frequently before the court as law enforcement officials. Of these nonpartisan officials, only judges are necessarily lawyers, and the frequency with which a private practitioner appears before a court pales in comparison with prosecutors and sheriffs who are involved in litigation nearly every day. Even nonpartisan candidates that may come before the court as part of a suit against their institution (for instance, school board members) will not appear as frequently before the court as the partisan law enforcement officials that the ban reaches.
Second, the difficulty of recusal is but one factor in favor of the ban; the other is Wisconsin’s interest in preventing judges from becoming party bosses or power-brokers. Wisconsin has a justified interest in having its judges act and appear judicial rather than as political authorities. This interest is directly implicated by endorsements in partisan elections and much less so, if at all, in nonpartisan elections. In a nonpartisan election, an endorsement connotes the quality of one candidate among several. In a partisan election, an endorsement can still mean an assessment of the quality of the endorsed candidate, but it also carries implications that the endorsement is given because of party affiliation; in other words, it suggests that the political party of the endorsing judge is behind the candidate. In that sense, the judge becomes a spokesperson for the party. The state’s interest in preventing partisan endorsements, then, is appropriately given more weight than nonpartisan endorsements.
Our treatment of the endorsement prohibition is based on the claims that Judge Siefert, an incumbent, brings. This is not the appropriate case to address the issue of regulations for judicial candidates who are not judges. Their potential role on a court or the impact that such endorsements could have on a judicial election as a whole may justify the type of regulation we have here, but that is for another day. *988 United States v. Wurzbach, 280 U.S. 396, 399, 50 S.Ct. 167, 74 L.Ed. 508 (1930) (“[I]f there is any difficulty, which we are far from intimating, it will be time enough to consider it when raised by some one whom it concerns.”). Wisconsin has an interest in regulating the non-campaign political activities of its judges, and prohibiting public endorsements serves this interest.
C. SCR 60.06(4): Personal Solicitation
The final portion of the Wisconsin Judicial Code of Conduct at issue here is the ban on the personal solicitation of contributions by judges or judicial candidates. SCR 60.06(4) allows a judge to set up a finance committee to raise campaign contributions, serve on that committee, and appear at fundraising events. The canon prohibits judges from directly soliciting or accepting contributions. Finally, judges are admonished to avoid “direct involvement” in their campaign’s fundraising efforts, although no particular level of involvement is expressly forbidden.
At heart, the solicitation ban is a campaign finance regulation. As such, it is reviewed under the framework set forth in Buckley v. Valeo, 424 U.S. 1, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976) (per curiam). See also Stretton v. Disciplinary Bd. of Supreme Ct. of Penn., 944 F.2d 137, 145-46 (3d Cir.1991) (a pre-White I case upholding Pennsylvania’s personal solicitation ban under a deferential standard). In Buckley, the Supreme Court recognized a compelling state interest in preventing corruption or the appearance of corruption in elections through some campaign finance regulation. Id. at 26-27, 96 S.Ct. 612; see also Citizens United, 130 S.Ct. at 908. The Court reasoned that restrictions on raising funds were typically less burdensome to speech than restrictions on spending funds, and thus created a two-tiered scheme of review for campaign finance regulation. Buckley, 424 U.S. at 20-21, 96 S.Ct. 612. Under Buckley, restrictions on spending by candidates and parties is reviewed with strict scrutiny, while restrictions on contributions are reviewed under less rigorous “closely drawn” scrutiny. Id. at 25, 96 S.Ct. 612. We note that Citizens United, rather than overruling Buckley, noted and reinforced the distinction between independent expenditures on behalf of candidates and direct contributions to candidates. Citizens United, 130 S.Ct. at 909-11; see also Richard M. Esenberg, The Lonely Death of Public Campaign Financing, 33 Harv. J.L. & Pub. Pol’y 283, 290-92 (2010). Since we are dealing with regulation of campaign contributions, we therefore proceed with the analysis under Buckley.
Because the direct solicitation ban does not restrict the amount or manner in which a judicial candidate can spend money on his or her campaign, we apply closely drawn scrutiny. This is consistent with the approach the Supreme Court took in analyzing the various solicitation bans in the Bipartisan Campaign Finance Reform Act. See McConnell v. Fed. Election Comm’n, 540 U.S. 93, 136-38 & n. 40, 124 S.Ct. 619, 157 L.Ed.2d 491 (2003), overruled in part on other grounds by Citizens United, 130 S.Ct. at 913; see also id. at 177, 181-82, 124 S.Ct. 619. But see id. at 314, 124 S.Ct. 619 (Kennedy, J., concurring in part in the judgment and dissenting in part) (applying strict scrutiny to solicitation ban); White II, 416 F.3d at 765-66 (applying strict scrutiny to solicitation ban without discussion of McConnell). We note, however, that even if strict scrutiny applied, a solicitation ban may still survive if it is narrowly tailored to prevent corruption or the appearance of corruption. See McConnell, 540 U.S. at 314, 124 S.Ct. 619 (Kennedy, J., concurring in part in the judgment and dissenting in part) (concluding that the Federal Election Campaign Act § 323(e), which prohibits federal candidates from soliciting soft-money contributions,  survives strict scrutiny); White II, 416 F.3d at 765-66 (suggesting that portion of Minnesota’s solicitation ban that prohibits judges from knowing the identity of contributors or non-contributors would survive strict scrutiny). We believe it survives under either standard. But see Weaver v. Bonner, 309 F.3d 1312, 1322-23 (11th Cir.2002) (striking down personal solicitation ban after applying strict scrutiny).
The Commission suggests that this ban ensures that “no person feel directly or indirectly coerced by the presence of judges to contribute funds to judicial campaigns,” Order No. 00-07 at 11 (Abrahamson, C.J., concurring), and eliminates the potential bias or appearance of bias that would accompany lawyers who frequently appear before a judge being personally solicited for campaign contributions. Siefert argues that the solicitation ban does not serve the impartiality interest as defined in White I and that the interest advanced by the state in protecting potential donors from coercion is not one that we should recognize as compelling.
Wisconsin’s personal solicitation ban serves the anticorruption rationale articulated in Buckley and acts to preserve judicial impartiality.5 A contribution given directly to a judge, in response to a judge’s personal solicitation of that contribution, carries with it both a greater potential for a quid pro quo and a greater appearance of a quid pro quo than a contribution given to the judge’s campaign committee at the request of someone other than the judge, or in response to a mass mailing sent above the judge’s signature. In White II, for example, the Eighth Circuit recognized that a ban prohibiting “candidates, who may be elected judges, from directly soliciting money from individuals who may come before them certainly addresses a compelling state interest in impartiality as to parties to a particular case,” 416 F.3d at 765, but concluded that prohibiting a candidate from personally signing a solicitation letter or making a blanket address to a large group does not advance that interest, id. at 765-66. Similarly, while we decline to recognize here a compelling state interest in protecting potential contributors from feeling “coerced,” we note that the perceived coerciveness of direct solicitations is closely related to their potential impact on impartiality.6 A direct solicitation closely links the quid-avoiding the judge’s future disfavor-to the quo-the contribution. We do not mean to suggest that judges who directly solicit contributions are necessarily behaving inappropriately, but the appearance of and potential for impropriety is significantly greater when judges directly solicit contributions *990 than when they raise money by other means.
The question remains whether the solicitation ban hews closely enough to the anti-corruption rationale that purportedly justifies it. Wisconsin allows judges to serve on their own finance committees, and while it directs them to avoid involvement with the committee’s fundraising efforts, it does not specifically prohibit them from reviewing lists of contributors. Cf. White II, 416 F.3d at 766 (concluding that where judicial canon prohibited judges from knowing the identities of contributors and non-contributors, additional restrictions on blanket solicitations to large groups were unconstitutional). Wisconsin also allows judges to appear at their own fundraising events, where they will come into contact with people who they will likely presume are contributors. Finally, the ban reaches solicitations that do not implicate the risk of a quid pro quo, such as solicitations directed at family members.
We conclude that the solicitation ban is drawn closely enough to the state’s interest in preserving impartiality and preventing corruption to be constitutional. The fact that a judge might become aware of who has or has not contributed to his campaign does not fatally undercut the state’s interest in the ban. As discussed earlier, the personal solicitation itself presents the greatest danger to impartiality and its appearance. Like SCR 60.06(4), the solicitation ban at issue in McConnell did not prohibit officeholders from becoming aware of soft-money contributions and contained an exception for fundraising events. See 2 U.S.C. § 441i(e) (codifying FECA § 323(e)). Finally, to the extent that the ban affects, at the margins, some solicitations that do not pose a risk to impartiality, that impact is not fatal to the ban. Just as the state may enact a contribution limit, rather than ask of each individual contribution whether it poses the risk of corruption, the state may enact a ban on direct solicitations, a ban tailored to the specific behavior that poses the greatest risk. Cf. Buckley, 424 U.S. at 26-28, 96 S.Ct. 612. Moreover, the ban’s effect on innocuous contributions is small because the judge’s campaign committee remains free to solicit those individuals. And unlike the partisan affiliation and endorsement bans, there is no reasonable, less restrictive means available here. It is an unfortunate reality of judicial elections that judicial campaigns are often largely funded by lawyers, many of whom will appear before the candidate who wins. It would be unworkable for judges to recuse themselves in every case that involved a lawyer whom they had previously solicited for a contribution. Because the ban on direct solicitation of contributions by judicial candidates prevents corruption and preserves impartiality without impairing more speech than is necessary, we reverse the district court’s decision on SCR 60.06(4).
III. Conclusion
For the foregoing reasons, we Affirm the district court’s judgment in favor of Siefert with respect to the party affiliation ban, SCR 60.06(2)(b) 1, but Reverse the district court’s judgment with respect to the public endorsement and personal solicitation bans, SCR 60.06(2)(b) 4 and SCR 60.06(4).
ROVNER, Circuit Judge, dissenting in part.
Protecting judicial integrity is a government interest of highest magnitude, as is protecting the rights guaranteed by the First Amendment. Reconciling these two competing interests is no small feat, and when evaluating the party membership restrictions in Section II.A and the personal solicitation restriction in Section II.C, I *991 believe the majority successfully navigates the competing concerns. As for the ban on endorsements of partisan candidates, the majority and I begin at the same starting point-with the notion that endorsements of candidates in political elections are troubling and have the potential to compromise judicial impartiality. I part ways with the majority, however, where it applies the balancing test from Pickering and Connick to the endorsement ban. Pickering v. Bd. of Ed. of Twp. High Sch. Dist. 205, Will County, Ill., 391 U.S. 563, 568, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968); Connick v. Myers, 461 U.S. 138, 142, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983). Because I believe this is the wrong test to apply, I respectfully dissent.
Laws and regulations that restrict speech on the basis of content are subject to the high hurdle of the strict scrutiny test. United States v. Playboy Entm’t Group, Inc., 529 U.S. 803, 813, 120 S.Ct. 1878, 146 L.Ed.2d 865 (2000). Such laws are “presumptively invalid, and the Government bears the burden to rebut that presumption.” United States v. Stevens, — U.S. —-, 130 S.Ct. 1577, 1584, 176 L.Ed.2d 435 (2010) (internal citations omitted); Playboy Entm’t Group, 529 U.S. at 813, 817, 120 S.Ct. 1878. In addition, speech about the qualifications of candidates for public office is at the core of First Amendment freedoms and is thus also strictly scrutinized. Republican Party of Minn. v. White, 536 U.S. 765, 774, 781, 122 S.Ct. 2528, 153 L.Ed.2d 694 (2002); Eu v. San Francisco County Democratic Cent. Comm., 489 U.S. 214, 222-23, 109 S.Ct. 1013, 103 L.Ed.2d 271 (1989). The law presumes that these intrusions on First Amendment rights are invalid and shifts the burden of proof to the government to demonstrate that these regulations are narrowly tailored to serve a compelling government interest. Stevens, 130 S.Ct. at 1584; Eu, 489 U.S. at 222, 109 S.Ct. 1013. There could be no clearer example of a restriction that is both content-based and that burdens speech regarding qualifications for office than the one at issue here: Wisconsin Supreme Court Rule 60.06(2)(b) 4 states that no judge or candidate for judicial office may “[p]ublicly endorse or speak on behalf of [a party’s] candidates or platforms.” SCR 60.06(2)(b) 4. The majority concedes that under a strict scrutiny analysis, the regulation at issue here would fail. Supra at 987. Rather than reach that unpalatable result, however, it has manufactured a new balancing test not heretofore applied to the First Amendment rights of elected judges.
It is true, of course, that some forms of speech fall outside the protections of the First Amendment, including obscenity, defamation, fraud, incitement, and speech integral to criminal conduct. See Stevens, 130 S.Ct. at 1584. And in the case of public employees, the Supreme Court has relaxed the scrutiny it applies to regulation of government employee speech, holding that a public employee’s right to speak on matters of public concern must be balanced against the government’s need for efficient operation of government functions. Garcetti v. Ceballos, 547 U.S. 410, 418-19, 126 S.Ct. 1951, 164 L.Ed.2d 689 (2006); Connick, 461 U.S. at 142, 103 S.Ct. 1684; Pickering, 391 U.S. at 568, 88 S.Ct. 1731. Neither this court nor the Supreme Court, however, has ever held that these decisions limiting the speech of public employees can be applied to elected officials’ speech, including the speech of elected judges.
In the seminal case on free speech and judicial codes of conduct, the Supreme Court applied strict scrutiny in evaluating the challenged provisions of Minnesota’s Code of Judicial Conduct. White, 536 U.S. at 774, 122 S.Ct. 2528. Although the White decision considered the rights of *992 candidates seeking judicial office as opposed to those already holding office, the language of the decision reflects two important principles that apply to the case before us today-the Court’s recognition that political speech is highly protected and that content-based restrictions must be viewed most skeptically. Id. The court in White stated,
the notion that the special context of electioneering justifies an abridgement of the right to speak out on disputed issues sets our First Amendment jurisprudence on its head. Debate on the qualifications of candidates is at the core of our electoral process and of the First Amendment freedoms, not at the edges. The role that elected officials play in our society makes it all the more imperative that they be allowed freely to express themselves on matters of current public importance.
Id. at 781, 122 S.Ct. 2528 (internal citations omitted) (emphasis in original).
In White, it was undisputed and uncontroversial that the court should apply strict scrutiny in evaluating the content-based restrictions of the canons of judicial conduct. Id. at 774, 122 S.Ct. 2528. Even the two dissenting opinions, which vigorously defended the particular speech restrictions on judges, did so while applying strict scrutiny. See White, 536 U.S. at 800, 122 S.Ct. 2528 (Stevens, J., dissenting) (“Minnesota has a compelling interest in sanctioning such statements.”); Id. at 817, 122 S.Ct. 2528 (Ginsburg, J., dissenting) (“In addition to protecting litigants’ due process rights, the parties in this case further agree, the pledges or promises clause advances another compelling state interest: preserving the public’s confidence in the integrity and impartiality of its judiciary.”). In short, both the majority and dissent in White applied strict scrutiny to a content-based speech prohibition for judicial candidates.1
Nevertheless, as Justice Kennedy noted in his concurrence, the White decision left open the question as to whether “the rationale of Pickering and Connick could be extended to allow a general speech restriction on sitting judges-regardless of whether they are campaigning-in order to promote the efficient administration of justice….” White, 536 U.S. at 796, 122 S.Ct. 2528 (internal citations omitted).
Although the White court left the question unanswered, that opinion and others provide compelling support for the proposition that strict scrutiny is the proper test for evaluating restraints on an elected judge’s speech. The Supreme Court has long found the speech of elected officials to be as protected as that of ordinary citizens. In Bond, the Supreme Court held that the State of Georgia could not exclude a state representative from membership in the legislature based on his criticism of the Vietnam War. Bond v. Floyd, 385 U.S. 116, 133, 87 S.Ct. 339, 17 L.Ed.2d 235 (1966). The Court specifically noted that the interest of the public in hearing all sides of a public issue is advanced by extending the *993 same First Amendment protections to legislators as to ordinary citizens. Id. at 136, 87 S.Ct. 339. The Court later held the same for a sheriff who questioned the motivations of a judge’s charge to a grand jury. The Court reasoned that “the role that elected officials play in our society makes it all the more imperative that they be allowed freely to express themselves on matters of current public importance.” Wood v. Georgia, 370 U.S. 375, 395, 82 S.Ct. 1364, 8 L.Ed.2d 569 (1962). Forty years later, a majority of the Supreme Court repeated this same statement in evaluating the restrictions imposed by a canon of judicial conduct. White, 536 U.S. at 781-82, 122 S.Ct. 2528. After reviewing White, and its analyses of these earlier cases, the Fifth Circuit concluded that strict scrutiny was the appropriate test for evaluating a state’s interest in suppressing a sitting judge’s speech. Jenevein v. Willing, 493 F.3d 551, 557-58 (5th Cir.2007).
In contrast, non-elected employees, like those covered by the Hatch Act, are subject to a test which balances the interests of the employee as a citizen, in commenting upon matters of public concern, against the interest of the government, as an employer, in promoting the efficiency of the public services it performs through its employees. See U.S. Civil Serv. Comm’n v. Nat’l Assoc. of Letter Carriers, 413 U.S. 548, 561, 93 S.Ct. 2880, 37 L.Ed.2d 796 (1973). The Hatch Act restricts the speech of government employees by prohibiting them from taking an active part in political management or political campaigns, but notably exempts the two elected executive branch employees, the president and vice president, from coverage. 5 U.S.C. § 7322(1); See also Letter Carriers, 413 U.S. at 561, 93 S.Ct. 2880. In sum, no Supreme Court decision or Seventh Circuit case has applied a balancing test to the speech of elected officials.
It would be folly, of course, to ignore the reality that elected judges are different from elected legislators and executives. “Legislative and executive officials act on behalf of the voters who placed them in office; judges represent the Law.” White, 536 U.S. at 803, 122 S.Ct. 2528 (Ginsburg, J., dissenting) (internal citations omitted). See also Buckley v. Ill. Judicial Inquiry Bd., 997 F.2d 224, 228 (7th Cir.1993) (“Judges remain different from legislators and executive officials, even when all are elected, in ways that bear on the strength of the state’s interest in restricting their freedom of speech.”).
This distinction, however, does not warrant abandoning a strict scrutiny analysis of content-based regulations of speech about the political qualifications of candidates for elected office. Content-based regulations are, after all, some of the most reviled by the First Amendment and election speech among the most protected. There is no doubt that the due process rights guaranteed by the Fourteenth Amendment are equally compelling, but we need not abandon well-settled First Amendment jurisprudence and set aside strict scrutiny to protect due process, as the majority claims. Rather, the solution is to apply strict scrutiny but give proper weight to the exceedingly compelling interest the state has in ensuring an impartial and fair judiciary. See id. at 228 (noting that the fact that elected judges are different from elected legislators and executive officials bears on the strength of the state’s interest in restricting their freedom.). See also White, 536 U.S. at 783, 122 S.Ct. 2528 (“we neither assert nor imply that the First Amendment requires campaigns for judicial office to sound the same as those for legislative office.”). In evaluating a restraint on judge’s speech under a strict scrutiny analysis, a court must consider its hefty obligation to provide litigants with a fair adjudicative proceeding *994 by an impartial and disinterested tribunal-a right guaranteed by the Due Process Clause of the Fourteenth Amendment, as well as its obligation to preserve public confidence in the integrity and impartiality of the judiciary. See White, 536 U.S. at 813, 817, 122 S.Ct. 2528 (Ginsburg, J., dissenting).
Furthermore, although elected judges are not the same as elected legislators and executives, they are also not entirely like judges appointed for life or for fixed terms-immune from the influence of popular opinion. As Justice Scalia pointed out in White, a judge contemplating releasing a notorious terrorist is well aware that she faces the pressure of being voted out of office come the next election cycle. Id. at 782, 122 S.Ct. 2528. Thus, in some limited sense, elected judges, for better or for worse, know that they serve at the pleasure of the public. And although a state is free to establish any constitutional system it wishes to populate its benches, states that choose to elect judges have made a particular decision about the role of the public in the selection of judges.
Our federal Constitution, of course, provides for appointment of judges for life. As Justice O’Connor recounted in White, the first twenty-nine states did not use elections for selecting judges. White, 536 U.S. at 791, 122 S.Ct. 2528 (O’Connor, J., concurring). In the 1830’s and 1850’s as part of the Jacksonian movement toward greater popular control of public office, many states turned from appointing judges to popular elections. Id. Thirty-one states have turned from non-electoral systems to popular elections. Id. at 792, 122 S.Ct. 2528. There may be many reasons why a state opts to elect judges, but such a decision reflects, at least in part, a policy decision that to the extent that judges have any discretion to mold the law-and of course they do-the people should be able to have some say in how that discretion will be used. For example, in the area of sentencing where discretion can be large, the public may choose to elect candidates who are “tough on crime” or who “judge with compassion.” The choice to elect judges may also represent an attempt to allow the people to choose among the populace the person they see as most fit to judge, but embedded in this choice is most certainly some consideration about how that candidate understands and would apply the law. The decision to hold judicial elections, therefore, may negatively impact the integrity of the judiciary in ways that are unavoidable, see White, 536 U.S. at 782, 122 S.Ct. 2528; see also id. at 789, 122 S.Ct. 2528 (O’Connor, J., concurring) (explaining why the very practice of electing judges undermines the interest in an impartial judiciary), but it is, nevertheless, a legitimate choice by a state.
Having made a policy decision allowing the public to shape the bench, a state must permit judges greater leeway to communicate their opinions. Thus, although elected judges are not like other elected officials, they are also not like public employees subject to Pickering-that is, employees who answer only to the government as employer and not to the public at large. As the majority in White pointed out, “if the State chooses to tap the energy and the legitimizing power of the democratic process [in the election of judges], it must accord the participants in that process the First Amendment rights that attach to their roles.” White, 536 U.S. at 788, 122 S.Ct. 2528. “Opposition [to electing judges] may be well taken (it certainly had the support of the Founders of the Federal Government), but the First Amendment does not permit it to achieve its goal by leaving the principle of elections in place while preventing candidates from discussing what the elections are about.” Id. at 787-88, 122 S.Ct. 2528. Endorsements are part of that discussion *995 in much the same way that announcing one’s views on the legal issues of the day are-the issue before the court in White. We are, after all, often judged by the company we keep. There is much to say about the utility and harm of endorsements, but because my disagreement with the majority is over the level of scrutiny to be applied to the regulation, I need not spill ink evaluating the benefits and harms of endorsements. Most importantly, it is important to note that applying strict scrutiny will not mean that the speech of sitting judges cannot be regulated more restrictively than the speech of other elected officials; it most certainly can. The state, after all, has an exceptionally compelling interest in protecting the integrity of the judiciary and the due process rights of litigants.
In short, I would apply a strict scrutiny test to the announce clause at issue in this case. Whatever the result may be in an ordinary case where a state passes a blanket prohibition on endorsements by sitting judges, the result here is made simple by the fact that Wisconsin allows endorsements for non-partisan but not partisan elections. As even the majority concedes, the under-inclusiveness of the provision is fatal to the rule’s constitutionality when applying strict scrutiny. See supra at 967; see also White, 536 U.S. at 780, 122 S.Ct. 2528.
Wisconsin has opted to allow judges to endorse candidates in non-partisan elections. Such endorsements threaten judicial fairness and the appearance of fairness no less than endorsements in partisan elections. Lawyers and judges who lose non-partisan judicial elections, for example, go right back to practicing (and perhaps appearing as litigants) in the same small circuits in Wisconsin in which they ran and were endorsed by sitting judges. A criminal defendant prosecuted by such an endorsed attorney will not question the fairness of his trial any less because the prosecuting attorney ran in a non-partisan rather than a partisan election. And a judge who makes or breaks a non-partisan candidate’s career is no less of a power broker than one who endorses a partisan candidate. It may be true that party-affiliated sheriffs and prosecutors appear frequently in courtrooms, but it is also true that frequent litigators, who are the very same lawyers who are most qualified and most likely to run for judge, should they lose, will go right back to litigating before those same judges who endorsed them.
By allowing endorsements in non-partisan elections, Wisconsin has largely eviscerated the force of any asserted concern. A regulation that is so under-inclusive diminishes the credibility of the government’s rationale for restricting speech. White, 536 U.S. at 780, 122 S.Ct. 2528.
Perhaps the endorsement provision causes us such unease because we expect a judge not to use her office for personal gain-either her own or others’. In fact, Wisconsin Supreme Court Rule 60.03(2) prohibits improper use of the visibility and prestige of the judicial office. Endorsements arguably use the visibility and prestige of the judicial office in an improper manner. Wisconsin, however, has not articulated this as its interest and indeed cannot, as it allows endorsements in non-partisan races.
Although I disagree with the majority about the proper test to apply, it is likely that under different circumstances our outcome would nevertheless be the same and I would find myself concurring in the result. My dissent stems entirely from the unique situation presented here. Wisconsin has opted to elect judges in popular elections and has further mired those judges in that political process by allowing them to make nonpartisan endorsements. Endorsements undermine the integrity of *996 the judiciary regardless of whether they focus on partisan or non-partisan races. Once Wisconsin greased the slope for non-partisan endorsements, it should not have been surprised that partisan endorsements could come sliding after. Wisconsin has failed to demonstrate that its endorsement ban is narrowly tailored to prevent the harm it asserts.

All Citations

608 F.3d 974

Footnotes

1
Jim Doyle has since announced that he will not run for another term as governor. See Lee Bergquist, Stacy Forster & Patrick Marley, Doyle Won’t Seek Reelection in 2010, Milwaukee Journal Sentinel, Aug. 15, 2009, available at http://www.jsonline.com/news/statepolitics/53302852.html.
2
The Commission also argues that “nothing in the Constitution requires Wisconsin to establish a partisan judiciary.” However, this is not a case about whether partisan affiliation will appear on the ballot, whether parties will play a formal role in nominating judicial candidates for the general election, or any of the other mechanics of the electoral process.
3
Wisconsin’s politics, like our nation’s, are dominated by two large parties which are by no means ideologically homogenous. Even on the most polarizing issues, party membership is a significantly less accurate proxy for a candidate’s views on contested issues than membership in special interest or advocacy groups, which the Wisconsin Code of Judicial Conduct does not expressly prohibit. Relying on an advisory opinion issued by the Commission, the defendants argue that the Code prohibits judges and judicial candidates from taking a leadership role in groups such as the Sierra Club or Mothers Against Drunk Driving, which advocate “social goals through litigation and legislative action.” Regardless of whether Wisconsin courts eventually adopt the Commission’s interpretation of the Code, the flat ban in SCR 60.06(2)(b) 1 treats party membership more harshly than any other affiliation.
4
The Commission does not articulate an argument that SCR 60.06(2)(b) 1 furthers impartiality in the sense of open-mindedness, so we need not decide to what extent, if any, this interest is compelling.
5
These two interests are closely linked and may be best understood as different ways of stating the same concern. Cf. White II, 416 F.3d at 769 (Gibson, J., dissenting) (“ ‘Open-mindedness,’ in Justice Scalia’s terminology, is in reality simply a facet of the anti-corruption interest that was recognized in Buckley v. Valeo and subsequent campaign finance cases.” (citations omitted)).
6
Because we do not adopt the “coercion” rationale to support SCR 60.06(4), we need not reach Siefert’s argument that the direct solicitation ban is significantly underinclusive because it does not apply to candidates for legislative office. In any event, this argument misapprehends the respective roles of legislators and judges. Legislators are not expected to be impartial; indeed, they are elected to advance the policies advocated by particular political parties, interest groups, or individuals. Judges, on the other hand, must be impartial toward the parties and lawyers who appear before them. In addition, legislators can only act with the support of their colleagues. Judges-particularly trial court judges-exercise wide and largely unreviewable discretion over discrete cases involving specific parties and lawyers.
1
In his concurrence, Justice Kennedy noted that he would go further and hold that “content-based speech restrictions that do not fall within any traditional exception should be invalidated without inquiry into narrow tailoring or compelling government interests. The speech at issue here does not come within any of the exceptions to the First Amendment recognized by the Court. Here, a law is directed to speech alone where the speech in question is not obscene, not defamatory, not words tantamount to an act otherwise criminal, not an impairment of some other constitutional right, not an incitement to lawless action, and not calculated or likely to bring about imminent harm the State has the substantive power to prevent. No further inquiry is necessary to reject the State’s argument that the statute should be upheld.” White, 536 U.S. at 792-93, 122 S.Ct. 2528 (Kennedy, J., concurring).
Siefert v. Alexander, 608 F.3d 974, 977–96 (7th Cir. 2010)