Sanders County Republican Cent v. Steve Bullock- Opinion ( 2012 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
SANDERS COUNTY REPUBLICAN 
CENTRAL COMMITTEE,
Plaintiff-Appellant,
v. No. 12-35543
STEVEN BULLOCK, in his official
capacity as Attorney General for  D.C. No.
CV-12-00046
the State of Montana; JAMES
OPINION
MURRY, in his official capacity as
the Commissioner for Political
Practices for the State of Montana,
Defendants-Appellees.

Appeal from the United States District Court
for the District of Montana
Charles C. Lovell, Senior U.S. District Judge, Presiding
Argued and Submitted
August 31, 2012—Seattle, Washington
Filed September 17, 2012
Before: Mary M. Schroeder and Ronald M. Gould,
Circuit Judges, and Jed S. Rakoff, Senior District Judge.*
Opinion by Judge Rakoff;
Dissent by Judge Schroeder
*The Honorable Jed S. Rakoff, Senior District Judge for the U.S. Dis-
trict Court for the Southern District of New York, sitting by designation.
11773
11776 SANDERS COUNTY REPUBLICAN v. BULLOCK
COUNSEL
Matthew G. Monforton, Bozeman, Montana, for the plaintiff-
appellant.
Steven Bullock, Montana Attorney General, Michael G. Black
(argued) and Andrew I. Huff, Montana Assistant Attorneys
General, Helena, Montana, for the defendants-appellees.
OPINION
RAKOFF, Senior District Judge:
Since 1935, Montana has selected its judges through non-
partisan popular elections. Mont. Code Ann. § 13-14-111.
Further to this end, Montana makes it a criminal offense for
any political party to “endorse, contribute to, or make an
expenditure to support or oppose a judicial candidate,” Mont.
Code Ann. § 13-35-231, and individuals who facilitate such
activities may also be held criminally liable, Mont. Code Ann.
§ 13-35-105. The voters of Montana are thus deprived of the
full and robust exchange of views to which, under our Consti-
tution, they are entitled.
Appellant Sanders County Republican Central Committee
(“the Committee”) seeks to endorse judicial candidates and to
enable the expenditures that would make those views publicly
known. The Committee argues that Montana’s ban on politi-
cal party endorsements is an unconstitutional restriction of its
First Amendment rights of free speech and association.1 On
May 29, 2012, the Committee filed suit against Montana’s
Commissioner of Political Practices James Murry and against
Montana’s Attorney General Steven Bullock seeking injunc-
tive relief and a declaration that the statute is unconstitutional.
1
Appellant does not here challenge Montana’s ban on contributions to
judicial candidates by political parties.
SANDERS COUNTY REPUBLICAN v. BULLOCK 11777
On June 26, 2012, the district court denied the Committee’s
motion for a preliminary injunction. The Committee appeals
that decision and seeks immediate injunctive relief to prevent
Montana from enforcing the statute against the Committee
and its members. We have jurisdiction under 28 U.S.C.
§ 1292(a)(1). For the following reasons, we reverse the dis-
trict court and grant immediate injunctive relief.
“A plaintiff seeking a preliminary injunction must establish
that he is likely to succeed on the merits, that he is likely to
suffer irreparable harm in the absence of preliminary relief,
that the balance of equities tips in his favor, and that an
injunction is in the public interest.” Thalheimer v. City of San
Diego, 645 F.3d 1109, 1115 (9th Cir. 2011) (quoting Winter
v. NRDC, 555 U.S. 7, 24-25 (2008)). A denial of a prelimi-
nary injunction is generally reviewed for abuse of discretion.
Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1131
(9th Cir. 2011). However, where a district court’s denial of a
preliminary injunction motion “rests solely on a premise of
law and the facts are either established or undisputed, our
review is de novo.” Sammartano v. First Judicial Dist. Ct.,
303 F.3d 959, 964-65 (9th Cir. 2002). In the instant case,
where the essential issues are matters of law, we review the
district court’s conclusions de novo.
I. LIKELIHOOD OF SUCCESS ON THE MERITS
A. Protected Speech
When seeking a preliminary injunction “in the First
Amendment context, the moving party bears the initial burden
of making a colorable claim that its First Amendment rights
have been infringed, or are threatened with infringement, at
which point the burden shifts to the government to justify the
restriction.” Thalheimer, 645 F.3d at 1116. Here, there can be
no question that the Committee has carried its initial burden.
[1] As the Supreme Court has found, “[t]he First Amend-
ment ‘has its fullest and most urgent application to speech
11778 SANDERS COUNTY REPUBLICAN v. BULLOCK
uttered during a campaign for political office.’ ” Citizens
United v. Fed. Election Comm’n, 130 S. Ct. 876, 898 (2010)
(quoting Eu v. S.F. Cnty. Democratic Cent. Comm., 489 U.S.
214, 223 (1989)); see also Buckley v. Valeo, 424 U.S. 1, 48
(1976) (“Advocacy of the election or defeat of candidates for
federal office is no less entitled to protection under the First
Amendment than the discussion of political policy generally
or advocacy of the passage or defeat of legislation.”). Thus,
political speech—including the endorsement of candidates for
office—is at the core of speech protected by the First Amend-
ment.
[2] This protection extends as much to political parties
exercising their right of association as to individuals. As this
Court stated in Geary v. Renne, “because the exercise of these
basic first amendment freedoms traditionally has been
through the media of political associations, political parties as
well as party adherents enjoy rights of political expression
and association.” 911 F.2d 280, 283 (9th Cir. 1990) (en banc),
rev’d on other grounds, Renne v. Geary, 501 U.S. 312 (1991).
More recently, the Supreme Court, in extending First Amend-
ment protection of political speech to corporations, reaffirmed
that “[t]he Court has thus rejected the argument that political
speech of corporations or other associations should be treated
differently under the First Amendment simply because such
associations are not ‘natural persons.’ ” Citizens United, 130
S. Ct. at 900.2
[3] The threat to infringement of such First Amendment
rights is at its greatest when, as here, the state employs its
criminalizing powers. As the Supreme Court further found in
2
In her dissent, our respected colleague seems to suggest that a political
party has no independent First Amendment right to free speech beyond the
rights of its constituent members. This position ignores the explicit recog-
nition in Citizens United that associations have their own free speech
rights, separate and independent from those of their members. See Citizens
United, 130 S. Ct. at 904.
SANDERS COUNTY REPUBLICAN v. BULLOCK 11779
Citizens United, “[i]f the First Amendment has any force, it
prohibits Congress from fining or jailing citizens, or associa-
tions of citizens, for simply engaging in political speech.” 130
S. Ct. at 904. Thus, the Committee has clearly shown that sec-
tion 13-35-231, on its face, restricts the Committee’s exercise
of its First Amendment rights.
B. Strict Scrutiny
The burden therefore shifts to Montana to attempt to justify
the restriction. See Thalheimer, 645 F.3d at 1116. As a pre-
liminary matter, the Court must determine what standard it
must apply to the assessment of such alleged justifications:
“strict scrutiny” or “balancing.” While the district court
applied strict scrutiny, Montana argues that this Court should
apply a balancing test that weighs against the Committee’s
First Amendment rights the state’s Tenth Amendment right to
structure its judicial institutions as it deems fit.
But while the Tenth Amendment preserves to the states the
power to regulate the roles that political parties may play in
the design of judicial and other institutions, that does not
imply that the states have similar leeway in placing restric-
tions upon a political association’s right to speak. See Eu, 489
U.S. at 222-24 (“A State’s broad power to regulate the time,
place, and manner of elections ‘does not extinguish the State’s
responsibility to observe the limits established by the First
Amendment rights of the State’s citizens.’ ” (quoting Tashjian
v. Republican Party of Conn., 479 U.S. 208, 217 (1986)));
Geary, 911 F.2d at 288 (Reinhardt, J., concurring) (“[T]here
is all the difference in the world between refusing to delegate
to political parties the decision as to which candidates appear
on the general-election ballot and prohibiting political party
organizations from announcing their views on the merits of
candidates seeking public office.”).
[4] Thus, we find that because the statute here at issue is,
on its face, a content-based restriction on political speech and
11780 SANDERS COUNTY REPUBLICAN v. BULLOCK
association, and thereby threatens to abridge a fundamental
right, it is “subject to strict scrutiny, which requires the Gov-
ernment to prove that the restriction ‘furthers a compelling
interest and is narrowly tailored to achieve that interest.’ ”
Citizens United, 130 S. Ct. at 882 (quoting Fed. Election
Comm’n v. Wis. Right To Life, Inc., 551 U.S. 449, 464
(2007)); see also Geary, 911 F.2d at 283 (applying strict scru-
tiny in striking down California’s ban on political party
endorsements of candidates for nonpartisan office).3
C. Compelling Interest and Narrow Tailoring
[5] The district court found, and the parties do not here dis-
pute, that Montana has a compelling interest in maintaining a
fair and independent judiciary. Where Montana and the dis-
trict court err, however, is in supposing that preventing politi-
cal parties from endorsing judicial candidates is a necessary
prerequisite to maintaining a fair and independent judiciary.
See United States v. Alvarez, 132 S. Ct. 2537, 2549 (2012)
(“The First Amendment requires that the Government’s cho-
sen restriction on the speech at issue be ‘actually necessary’
to achieve its interest.”); R.A.V. v. City of St. Paul, 505 U.S.
377, 395 (1992) (“[T]he danger of censorship presented by a
facially content-based statute requires that that weapon be
employed only where it is necessary to serve the asserted
compelling interest.” (internal quotation marks and citations
omitted)). Montana offers no evidence to support this facially
doubtful proposition, and it flies in the face of the fact that
many of the other 38 states that elect their judges not only
allow party endorsements but require party nominations.4 Nor
3
For similar reasons we reject Montana’s argument that a balancing test
should be applied to weigh the competing constitutional concerns of
Appellants’ First Amendment rights of speech and association against
potential litigants’ due process interests in a fair and impartial judiciary.
4
For a summary of which states require partisan elections, see Roy A.
Schotland, New Challenges to States’ Judicial Selection, 95 Geo. L.J.
1077, 1085 (2007).
SANDERS COUNTY REPUBLICAN v. BULLOCK 11781
does Montana suggest that, as a result, the judiciaries of these
other states lack fairness or integrity. See Republican Party of
Minn. v. White, 536 U.S. 765, 796 (2002) (Kennedy, J., con-
curring) (“Many [elected state judges], despite the difficulties
imposed by the election system, have discovered in the law
the enlightenment, instruction, and inspiration that make them
independent-minded and faithful jurists of real integrity.”). It
may be, of course, that Montana reasonably believes that
restricting political endorsements of judicial candidates
enhances the independence of its judiciary; but such supposed
“best practices” are not remotely sufficient to survive strict
scrutiny.
Under a strict scrutiny standard, therefore, Montana lacks
a compelling interest in forbidding political parties from
endorsing judicial candidates. Moreover, even if it were other-
wise, section 13-35-231 is not narrowly tailored to this end.
To begin with, the existence of content-neutral alternatives
“ ‘undercut[s] significantly’ any defense of such a statute.”
R.A.V., 505 U.S. at 395 (quoting Boos v. Barry, 485 U.S. 312,
329 (1988)) (alteration in original). If Montana were con-
cerned that party endorsements might undermine elected
judges’ independence, Montana could appoint its judges, with
a bipartisan and expert panel making nominations—a less
restrictive alternative currently practiced by several states.
This is not to say, obviously, that Montana’s decision to
elect its judges is impermissible.5 But if Montana “chooses to
5
We disagree with the dissent’s suggestion that affording political par-
ties their full First Amendment rights inevitably requires that judicial elec-
tions be treated no differently than elections for the political branches.
Montana’s decision to exclude parties from the nomination and balloting
process for judicial candidates remains a valid choice to limit party
involvement in judicial institutions. See Mont. Code Ann. § 13-14-111.
Contrary to the dissent, we do not see how a political party, in the absence
of a role in the nomination and balloting process, is materially different
from any other interest group that is permitted under Montana law to
endorse a judicial candidate.
11782 SANDERS COUNTY REPUBLICAN v. BULLOCK
tap the energy and the legitimizing power of the democratic
process, it must accord the participants in that process . . . the
First Amendment rights that attach to their roles.” White, 536
U.S. at 788 (quoting Renne, 501 U.S. at 349 (Marshall, J., dis-
senting)) (alteration in original); see also Renne, 501 U.S. at
349 (Marshall, J., dissenting) (“[T]he prospect that voters
might be persuaded by party endorsements is not a corruption
of the democratic process; it is the democratic process.”). To
hold otherwise would turn “First Amendment jurisprudence
on its head.” White, 536 U.S. at 781.6
Furthermore, section 13-35-231, while not narrowly tai-
lored to achieve its ends, is at the same time under-inclusive,
in that it forbids judicial endorsements by political parties but
not by other associations, individuals, corporations, special
interest groups, and the like. As noted by the Eighth Circuit
in Republican Party of Minn. v. White (White II),
There are numerous other organizations whose pur-
pose is to work at advancing any number of similar
goals, often in a more determined way than a politi-
cal party. Minnesota worries that a judicial candi-
date’s consorting with a political party will damage
that individual’s impartiality or appearance of impar-
tiality as a judge, apparently because she is seen as
aligning herself with that party’s policies or proce-
dural goals. But that would be no less so when a
judge as a judicial candidate aligns herself with the
constitutional, legislative, public policy and proce-
dural beliefs of organizations such as the National
Rifle Association (NRA), the National Organization
6
While, as the dissent notes, White concerned the unconstitutionality of
limits on a judge’s speech during a judicial election, nothing in the major-
ity opinion in White suggests that laws limiting speech by parties differ
from laws limiting speech by candidates. In both cases, the First Amend-
ment requires strict scrutiny of such limitations, and for the reasons here
explained the challenged statute criminalizing party political speech does
not withstand strict scrutiny.
SANDERS COUNTY REPUBLICAN v. BULLOCK 11783
for Women (NOW), the Christian Coalition, the
NAACP, the AFL-CIO, or any number of other
political interest groups.
416 F.3d 738, 759 (8th Cir. 2005). Such under-inclusivity
“diminish[es] the credibility of the government’s rationale for
restricting speech.” City of Ladue v. Gilleo, 512 U.S. 43, 52
(1994).
[6] In short, Montana has shown neither that section 13-
35-231 is necessary to achieve a compelling state interest nor
that it is narrowly and rationally tailored to that purpose.
II. IRREPARABLE HARM
[7] With judicial elections imminent in Montana, and the
candidates already selected and announced, the need for
immediate injunctive relief enjoining Montana from prohibit-
ing and penalizing political parties’ endorsements of judicial
candidates is apparent. Nevertheless, the district court, in
denying preliminary relief, pointed to the dearth of evidence
before it and held that it ought not decide issues of such “fun-
damental and far-reaching import” without a complete record.
True, the matter is of great importance, but as noted, the stat-
ute here is facially unconstitutional, and the burden then shifts
to the state to try to justify the statute, either by evidence or
argument, which, as shown above, it has failed to do. In such
circumstances, and with the Committee’s First Amendment
rights being chilled daily, the need for immediate injunctive
relief without further delay is, in fact, a direct corollary of the
matter’s great importance. Indeed, the fact that the Committee
will otherwise suffer irreparable harm is demonstrated by “a
long line of precedent establishing that ‘[t]he loss of First
Amendment freedoms, for even minimal periods of time,
unquestionably constitutes irreparable injury.’ ” Thalheimer,
645 F.3d at 1128 (quoting Klein v. City of San Clemente, 584
F.3d 1196, 1208 (9th Cir. 2009)). When, as here, a party seeks
to engage in political speech in an impending election, a
11784 SANDERS COUNTY REPUBLICAN v. BULLOCK
“delay of even a day or two may be intolerable.” Klein, 584
F.3d at 1208 (citation omitted). We conclude that the Com-
mittee would suffer irreparable injury if a preliminary injunc-
tion were not granted.
III. BALANCE OF HARDSHIPS
Given the foregoing, it is patent that the hardships to the
Committee from not issuing the injunction outweigh the cog-
nizable hardship (if any) to the state from issuing the injunc-
tion. The Committee seeks to publicly endorse two judicial
candidates in this year’s election, and, if prohibited by law
from doing so, its free speech rights will be lost forever. Nor
is the harm from this ban on speech limited to the political
parties it explicitly addresses. In Alvarez, Justice Breyer
warned that “the threat of criminal prosecution . . . can inhibit
the speaker from making [protected] statements, thereby
‘chilling’ a kind of speech that lies at the First Amendment’s
heart.” 132 S. Ct. at 2553 (Breyer, J., concurring) (citing
Gertz v. Welch, 418 U.S. 323, 340-341 (1974)). Here, the
Committee’s “members have often been afraid to even discuss
at its meetings topics relating to judicial candidates so as to
avoid even the appearance of endorsing any of them.” Mon-
tana’s threat of prosecution has thus had a “chilling” effect,
radiating from the disfavored speaker to untargeted individu-
als and plainly protected speech.
[8] If Montana is preliminarily enjoined from enforcing the
statute, it would suffer if there were any way to save the stat-
ute from being declared unconstitutional. But, as we have
already shown, there is none, for the statute is unconstitu-
tional on its face, and the state’s proffered justifications, even
if construed most favorably to the state, cannot survive strict
scrutiny. Montana, in short, can derive no legally cognizable
benefit from being permitted to further enforce an unconstitu-
tional limit on political speech. Cf. Allee v. Medrano, 416
U.S. 802, 814 (1974) (upholding injunction preventing police
harassment as doing no more than “requir[ing] the police to
SANDERS COUNTY REPUBLICAN v. BULLOCK 11785
abide by constitutional requirements”). Because we find that
Montana’s ban on party endorsements of judicial candidates
offends the First Amendment, we conclude that the balance of
hardships favors the Appellant.
IV. PUBLIC INTEREST
[9] The Winter test also asks us to consider the public
interest. See Winter, 555 U.S. at 24. But here we view public
interest factors as subsumed within our analysis of likelihood
of success on the merits, irreparable injury, and balance of
hardships. See, e.g., Klein, 584 F.3d at 1207-08 (addressing
irreparable injury, balance of hardships, and public interest
elements in tandem). We conclude that the public interest here
favors the requested injunction.
V. CONCLUSION
[10] For the foregoing reasons, we conclude that, because
section 13-35-231 is unconstitutional on its face, Montana
must be enjoined forthwith from enforcing it or otherwise
interfering with a political party’s right to endorse judicial
candidates and to expend monies to publicize such endorse-
ments. The mandate will issue forthwith, and the case is oth-
erwise remitted to the district court for further proceedings
consistent with this Opinion.
REVERSED AND REMANDED.
SCHROEDER, Circuit Judge, dissenting:
This decision is a big step backwards for the state of Mon-
tana, which we all agree has a compelling interest in main-
taining an independent and impartial judiciary. The majority
ignores the practical effects of its decision on that interest
when it takes a formulaic approach to First Amendment doc-
11786 SANDERS COUNTY REPUBLICAN v. BULLOCK
trine. This is the first opinion to hold that even though a state
has chosen a non-partisan judicial selection process, political
parties have a right to endorse candidates. This means parties
can work to secure judges’ commitments to the parties’ agen-
das in contravention of the non-partisan goal the state has
chosen for its selection process.
The Supreme Court in Republican Party of Minn. v. White
(White I), 536 U.S. 765 (2010) recognized that judges have a
life beyond the bench and make statements throughout their
legal careers on political and legal issues. “[J]udges often
state their views on disputed legal issues outside the context
of adjudication—in classes that they conduct, and in books
and speeches.” Id. at 778. Such activity differs from partisan
endorsements. Judges’ public discussion of their legal and
political values therefore poses less of a threat to judicial
open-mindedness than do endorsements by political parties.
Partisan endorsements do not protect the candidate’s right
to speak that was at the core of White I. Nor is endorsement
necessary to protect the rights of the members and leaders of
political parties to express judicial candidate preferences since
they can lawfully endorse in their individual capacities.
This is thus an unwarranted extension of White I. This and
other such extensions of White I lead to disruptions and dis-
tortions in the non-partisan processes states have developed in
order to prevent judicial elections from turning on promises
to decide cases in ways that will get votes. Thirty-nine states
have judicial elections, and nearly all have enacted laws to
treat judicial elections differently from political elections.
American Judicature Society, Judicial Campaigns and
Elections: Campaign Conduct, available at http://
www.judicialselection.us/judicial_selection/campaigns_and_
elections/campaign_conduct.cfm?state=. The Conference of
Chief Justices has decried the trend toward eliminating these
distinctions. Conference of Chief Justices, Declaration: Judi-
SANDERS COUNTY REPUBLICAN v. BULLOCK 11787
cial Elections are Different than Other Elections
(2007), available at http://ccj.ncsc.dni.us/JudicialSelection
Resolutions/DeclarationJudicialElections.html. The Confer-
ence’s Declaration, quoting Chief Justice Roberts in his con-
firmation hearing, states, “[j]udges are not politicians. They
cannot promise to do certain things in exchange for votes.”
The Supreme Court in White I held only that the state vio-
lated the First Amendment when it prohibited “candidates for
judicial election from announcing their views on disputed
legal and political issues.” 536 U.S. at 788. Today’s decision
extends this protection to political parties’ endorsements in
previously non-partisan elections. The result is to encourage
a judiciary dependent upon political alliances. Political
endorsements place judges in a position of indebtedness to
“powerful and wide-reaching political organizations that can
make or break them in each election cycle.” Republican Party
of Minn. v. White (White II), 416 F.3d 738, 768 (8th Cir.
2005) (Gibson, J., dissenting). Partisan politics are particu-
larly pernicious because parties serve as “natural bundling
agents that coordinate sprawling political coalitions across all
types of policy domains and venues.” See Michael S. Kang &
Joanna M. Sheperd, The Partisan Price of Justice: An Empiri-
cal Analysis of Campaign Contributions and Judicial Deci-
sionmaking, 86 N.Y.U. L. Rev. 69, 107 (2011). Failing to
recognize this, the majority and the Eighth Circuit in White II
err in concluding that political parties are just another interest
group. See 416 F.3d at 755.
Political endorsements, much more than judges’ discussion
of issues, lead to political indebtedness, which in turn has a
corrosive impact on the public’s perception of the judicial
system. See Wolfson v. Brammer, 822 F. Supp. 2d 925, 931
(D. Ariz. 2011) (“Public confidence in the independence and
impartiality of the judiciary is eroded if judges or candidates
are perceived to be subject to political influence.”); Siefert v.
Alexander, 608 F.3d 974, 985-86 (7th Cir. 2010) (“Due pro-
cess requires both fairness and the appearance of fairness in
11788 SANDERS COUNTY REPUBLICAN v. BULLOCK
the tribunal.”); see also Cox v. Louisiana, 379 U.S. 559, 565
(1965) (upholding state statute prohibiting picketing outside
a courthouse because of the state’s interest in protecting
“against the possibility of a conclusion by the public under
these circumstances that the judge’s action was in part a prod-
uct of intimidation and did not flow only from the fair and
orderly working of the judicial process”); United States Civil
Service Commission v. National Association of Letter Carri-
ers, 413 U.S. 548, 565 (1973) (upholding the Hatch Act’s ban
on partisan activity by federal civil servants because “it is not
only important that the Government and its employees in fact
avoid practicing political justice, but it is also critical that they
appear to the public to be avoiding it . . . .”). Recognizing this,
the Seventh Circuit has held that a ban on judges’ endorse-
ments of political candidates is not subject to strict scrutiny
and is constitutional. Siefert, 608 F.3d at 986 (“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 machina-
tions is.”).
The detrimental effects of the parties’ ability to endorse in
judicial elections is multiplied by their ability to engage in
expenditures on behalf of or in opposition to judicial candi-
dates. See Citizens United v. Fed. Elec. Comm’n., 130 S. Ct.
876 (2010). The fact that political parties can back up their
endorsements with significant sums of money threatens to fur-
ther erode state judges’ ability to act independently and
impartially. See Brennan Center for Justice, The New Politics
of Judicial Elections 2009-10 (2011), available at
http://newpoliticsreport.org/site/wp-content/uploads/2011/10/
JAS-NewPolitics2010-Online-Imaged.pdf.
In holding that Montana has a less restrictive means of
structuring its judicial selection process, the majority fails to
comprehend that this would take more than a simple tweak of
the system. The majority presents judicial appointment as a
less restrictive means of achieving the state’s admittedly com-
pelling interest in an impartial judiciary and one that does not
SANDERS COUNTY REPUBLICAN v. BULLOCK 11789
implicate the First Amendment. See White I, 536 U.S. at
788-92 (O’Connor, J., concurring). This alternative, however,
is more theoretical than realistic. Despite dramatic changes in
judicial election processes, states have been reluctant to shift
to judicial appointments. See Roy A. Schotland, New Chal-
lenges to States’ Judicial Selection, 95 Geo. L. J. 1077,
1081-82 (2007). As the American Judicature Society has
noted, no state in the past decade, since the Court’s decision
in White I, has used its democratic process to shift away from
judicial elections. See American Judicature Society, Chronol-
ogy of Successful and Unsuccessful Merit Selection Ballot
Measures, available at http://judicialselection.us/uploads/
documents/Merit_selection_chronology_1C233B5DD2692
.pdf. “[A] generation of experience . . . makes it clear that
elections will stay in many and perhaps all of the states that
have that system.” Conference of Chief Justices, supra. In
sum, a shift away from judicial elections is not a realistic
alternative in states that have chosen judicial elections.
Today’s decision is another step in the unfortunate slide
toward erasing the fundamental distinctions that states have
created between their selection processes for judicial offices
and political offices. These distinctions are foundational to
states’ abilities to maintain separation of powers between the
branches of government. White I, 536 U.S. at 803-04 (Gins-
burg, J., dissenting) (“Whether state or federal, elected or
appointed, judges perform a function fundamentally different
from that of the people’s elected representatives. . . . The abil-
ity of the judiciary to discharge its unique role rests to a large
degree on the manner in which judges are selected.”). The
Supreme Court’s decision in White I was not intended to col-
lapse these differences. The Court said, “[w]e neither assert
nor imply that the First Amendment requires campaigns for
judicial office to sound the same as those for legislative
office.” Id. at 783.
The inevitable impact of increasing partisanship, coupled
with the potential for increasing volumes of monetary contri-
11790 SANDERS COUNTY REPUBLICAN v. BULLOCK
butions, serves only to erode the perceived and actual fairness
of litigation in the state courts. These are the unfortunate and
unforeseen consequences of the majority’s unwarranted
extension of White I, especially when viewed in the light of
Citizens United.
In my view, the Republican Central Committee should not
succeed on the merits of its argument that the ban on political
parties’ endorsements is unconstitutional. I therefore respect-
fully dissent and would affirm the denial of a preliminary
injunction.