Date of this Version
Editor’s Note: There are about 8,500 state general-jurisdiction trial-court judges in the United States; of those, 77% stand for some sort of contestable election and 87% stand for some form of election. There are about 1,250 state appellate judges in the United States; of those, 53% stand for some sort of contestable election and 87% stand for some form of election. (See Court Review, Summer 2004, at 21.) In addition, there are thousands of additional, limited-jurisdiction judges also subject to election. Thus, the rules governing election-campaign conduct by judges are of great significance. In 2002, in Republican Party of Minnesota v. White, the United States Supreme Court held a broadly written provision of the Minnesota Code of Judicial Conduct that prevented judicial candidates from “announcing” positions on issues violated the First Amendment. On remand in that same case in August 2005, the United States Court of Appeals for the Eighth Circuit held two more provisions of the Minnesota Code of Judicial Conduct—the partisan-activities and solicitation clauses—unconstitutional. Whether the United States Supreme Court again takes the case to provide its guidance or not (a request for review is pending), the Eighth Circuit’s opinion will have broad impact, at least for the near term. State supreme courts will continue their struggles to rewrite codes of judicial conduct to meet both the state interests perceived to apply and the limits being placed upon those codes by the federal courts. And judicial candidates will continue their efforts both to succeed in contested elections and to comply with the codes of conduct. Therefore, we reprint here substantial excerpts from the Eighth Circuit’s opinion, as well as from the dissenting opinion of three members of that court. We have deleted all of the footnotes and most of the citations. For the few Supreme Court cases cited by the court to which we have retained the reference, they are simply noted by name and year.