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High court nixes limits on judicial candidates' speech

By The Associated Press


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WASHINGTON — The Supreme Court today struck down limits on what some judicial candidates may tell voters, a landmark free-speech ruling that could heat up court campaigns around the country.

Nearly 40 states elect some judges and also restrict what they say or do while campaigning to promote an image of fairness and independence for courts.

The Supreme Court, in throwing out strict limits in Minnesota on a 5-4 vote, said the rules, while well-intended, impose an unconstitutional gag order.

Minnesota is one of nine states that had banned would-be judges from announcing views on "disputed legal or political issues." Most other states keep candidates from divulging their positions on issues that might come before their court.

Justice Antonin Scalia, writing for the majority, said "there is an obvious tension" between the state's popular elections for judges and the limit "which places most subjects of interest to the voters off limits."

"We have never allowed the government to prohibit candidates from communicating relevant information to voters during an election," he wrote.

The case, Republican Party of Minnesota v. Kelly, presented a tricky free-speech question at a time when races for state courts have become expensive and often partisan battles. This year 33 states are holding high court elections, potentially the most costly ever.

The ruling should affect the eight states that have similar provisions: Arizona, Colorado, Iowa, Maryland, Mississippi, Missouri, New Mexico and Pennsylvania. Other states may also have to change their rules.

Justice Ruth Bader Ginsburg took the unusual step of reading a long, strongly worded statement critical of the decision.

"I do not agree with the court's 'an election is an election' approach," she said. "Judges are not political actors, and the First Amendment does not require that they be treated as politicians simply because they are elected."

The Minnesota restrictions had been challenged by Republicans and a three-time candidate for the state high court who contends that state rules leave voters with little useful information about candidates.

Lawyers in the case are also involved in one of the legal challenges to the nation's new campaign-finance law. That fight is also headed to the Supreme Court.

Greg Wersal, the candidate who contested the rules, said the lifting of the restrictions will improve elections. "When people go to vote, they will have a reason to vote," he said. "I think it's fantastic."

This case pitted the First Amendment guarantee of free speech against the sanctity of the judiciary. It put justices in the uneasy position of deciding if states have a compelling interest in controlling elections for court.

Justice Sandra Day O'Connor is the only Supreme Court member who has been elected to a judgeship, as a superior court judge. The justices are appointed to lifetime terms.

O'Connor joined Scalia in overturning the rules, along with the high court's other conservative members: Chief Justice William H. Rehnquist and Justices Anthony M. Kennedy and Clarence Thomas.

In a dissent, Justice John Paul Stevens said the ruling would allow more politics in judicial elections. Stevens was joined by Ginsburg and Justices David H. Souter and Stephen Breyer.

"The judicial reputation for impartiality and open-mindedness is comprised by electioneering that emphasizes the candidate's personal predilections rather than his qualifications for judicial office," Stevens wrote.

The Minnesota judicial rules were opposed by an assembly of groups, including the U.S. Chamber of Commerce, the conservative American Center for Law and Justice and the liberal American Civil Liberties Union.

They were backed by a heavyweight group of lawyers and judges, who argue that elections for judges are different than traditional political races.

Steven Lubet, a law professor at Northwestern University, said the high court was saying "there is no difference between running for judge and running for alderman."

Kennedy, in a separate opinion, said states like Minnesota may choose to have elections but they may not "censor what the people hear as they undertake to decide for themselves which candidate is most likely to be an exemplary judicial officer."

In 2000, state Supreme Court candidates raised $45.6 million, a 61% increase over 1998, according to Justice at Stake, a coalition of legal and citizens' groups that advocates reform of state judicial elections.

The money is used in part for advertisements like those for politicians. Special interest groups are behind many of the ads, and in 2000, 80% of those were negative attack ads, according to a report by the group.

The 8th U.S. Circuit Court of Appeals had sided with Minnesota. Today's high court ruling overturned that decision.


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Analysis Decision may signal turning point — the beginning of era in which judges are less special, more exposed to the popularizing glare of the First Amendment.  07.01.02

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By Ken Paulson Supreme Court wisely lets judicial candidates speak out on issues in election campaigns, but states may want to rethink whether electing judges or appointing them will best preserve court impartiality.  07.14.02

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