Intrastate Judicial Endorsement Clauses: How States Can Protect Impartiality Without Violating the First Amendment

Abstract

Currently, thirty-nine states select members of their judiciary through elections. Judicial campaigns present a unique set of challenges to state legislatures tasked with enacting canons of judicial conduct. While states have a clear interest in preserving  the impartiality of the judiciary, particularly where the candidate for judicial office is a sitting judge, they also must not violate the constitutional protections traditionally afforded to judicial  speech. This task has become even more difficult in the wake of the Supreme Court's 2002 in Republican Party of Minnesota v White ("White I"), which struck down a law barring judicial candidates from announcing their views on controversial issues.

Since White I, courts have rendered mixed opinions concerning the constitutionality of other limits on conduct in judicial campaigns. This Comment will examine the controversy regarding one type of restriction on judicial campaigns: endorsement clauses. These clauses prohibit candidates for judicial office from endorsing other political candidates. Two circuits are currently split over whether it is constitutional for states to enact endorsement clauses. In Wersal v Sexton, the Eighth Circuit held that such laws are unconstitutional restrictions of political speech, while the Seventh Circuit held that the endorsement clause in question was constitutional under a "balancing of interests test in Siefert v Alexander. This Comment defends the Eighth Circuit's determination that strict scrutiny is the applicable standard of review for endorsement clauses, but disagrees with that court's conclusion that recusal is the least restrictive means of accomplishing the state's interest in judicial impartiality. It proposes that the optimal way for the state to achieve its interest in impartiality while satisfying strict scrutiny review is to enact an "intrastate endorsement clause": a law that prohibits judicial candidates from endorsing other candidates in elections within the same state.

Keywords: Endorsement clause, state judicial elections, Wersal, Siefert, Republican Party of Minnesota v. White