Brennan Center for Justice

In this lawsuit in the Ninth Circuit, we partnered with Lawrence A. Anderson, a Montana attorney, in submitting an amicus curiae brief supporting Montana’s petition for en banc review of a decision by a 3-judge panel of appellate judges.  That panel, by a 2-1 vote, struck down a Montana statute prohibiting political parties from endorsing candidates in the state’s nonpartisan judicial elections, holding that the statute violated the first amendment rights of political parties. Judge Schroeder authored the dissent, arguing political party endorsements could affect the impartiality of the courts. 

Our brief did not take a position on the ultimate constitutionality of the law, but argued that en banc consideration is warranted because the case presents an issue of exceptional importance.  In doing so, we presented empirical evidence conducted by the Brennan Center and others regarding the impact of partisan involvement in judicial elections, including our empirical research suggesting that political party involvement in judicial elections can have a transformative and negative effect on those races.  We explained that party involvement in judicial elections is correlated with increased campaign spending, which may threaten the impartiality and appearance of impartiality of elected judges.  We presented data demonstrating that party involvement in judicial elections is also characterized by increased partisanship and negativity in campaign advertising, which threatens judicial independence and weakens public confidence in the judicial branch.

The Ninth Circuit panel subsequently affirmed the unconstitutionality of the endorsement and expenditure ban, but reinstated the ban on contributions, finding that no challenge to that provision had been raised.  On July 5, 2013, Montana again petitioned for rehearing en banc.

On August 16, 2013, the Ninth Circuit declined to hear the case en banc, allowing the panel’s decision to stand.  In Montana, political parties will now be permitted to endorse candidates and make expenditures in the state’s nonpartisan judicial elections.

Click here to read the Brennan Center's brief.