The U.S. Court of Appeals for the Sixth Circuit recently rejected a challenge to allow party designations for judges on the general election ballot in Ohio. The case is Ohio Council 8 v. Husted, 16a0034p.06.
Ohio judicial elections have always been weird in that judicial candidates are first selected in partisan primaries, and then have to run on the nonpartisan ballot, which by statute follows all of the partisan offices, including things like the sheriff, and the coroner. Ohio has used this two-tiered system for electing judges since 1851, but now only two other states use this kind of hybrid system. In 2013, Ohio’s Chief Justice Maureen O’Connor floated a proposal to eliminate party affiliation from judicial primaries, but that got no traction. The plaintiffs in Ohio Council 8 sought the opposite remedy-adding party affiliation to the general election ballot.
R.C. 3505.04 creates the nonpartisan ballot for judicial elections (and others not pertinent to this appeal.) In July of 2010, a statewide labor union, the Ohio Democratic Party, and several Democratic candidates for election or re-election to judgeships filed a lawsuit in Federal District Court in Cincinnati alleging that R.C. 3505.04 violated their First and Fourteenth Amendment rights to freedom of expression and association. The trial court ruled against the plaintiffs, who then appealed to the U.S. Court of Appeals for the Sixth Circuit, which covers federal appeals from Ohio, Kentucky, Michigan and Tennessee. In a unanimous opinion written by Judge John Rogers of Kentucky, and joined by Judges Danny Boggs of Kentucky and Gil Merritt of Tennessee, the appeals court upheld the statute. The court found that any burden on plaintiffs’ rights is minimal and outweighed by Ohio’s interest in minimizing partisanship in judicial elections.
Let’s back up a bit. Judicial elections are supposed to be different from elections for executive and legislative offices. Judges are not representatives, and are not supposed to make election pledges and promises. But in June of 2002, in Republican Party of Minnesota v. White, a decision authored by Justice Scalia, those differences began to blur. In that case, the U.S. Supreme Court struck down, on First Amendment grounds, a provision in Minnesota’s code of judicial conduct that prohibited candidates for judicial office from discussing their views on disputed legal or political issues. That decision threw a lot of the special rules about judicial elections into uncertainty or into the trash bin. Like most states, Ohio revised a lot of its judicial election rules as a result of that decision.
The plaintiffs in Ohio Council 8 contended that R.C. 3505.04 burdens the rights of political parties to back their chosen candidates, leads to voter drop-off on the ballot, (data has consistently shown that voting definitely falls off by the time voters get to the non-partisan ballot) and unconstitutionally impinges on the right of judicial candidates to express their qualification and associate with their political parties, and, in turn, burden the voters’ rights to associate, receive information, and cast meaningful votes. The appeals court rejected all of these arguments for the following reasons.
After the partisan primaries are over, political parties can still be involved in judicial elections. They can (and do) endorse judicial candidates, give them money, campaign on their behalf, and include their names on sample ballots that voters can take with them into the voting booth. Furthermore, although this has not always been true, judicial candidates can now publicly express their affiliation with a particular political party everywhere but on the general election ballot. They can tell voters they have been endorsed by a particular political party, and include such endorsement in campaign literature and ads if they want to.
The appeals court had an interesting take on the voter drop-off argument. It concluded that if voter drop off is because voters aren’t voting strictly for partisan reasons, then the non-partisan ballot is working to advance Ohio’s important interest in minimizing partisanship in judicial races.
So, in short, the appeals court found any burden on judicial candidates’ First and Fourteenth Amendment rights to be minimal, and outweighed by the important state interests of reducing partisanship in judicial elections and maintaining public perception of judicial integrity and impartiality. The court found that R.C. 3505.04 advances those interests in several ways. It discourages straight ticket voting and sends the message that judges are responsible to the law, not to any political party. It helps keep clear the line between judges and those elected to the political branches. So the federal appeals court upheld the state statute.
This decision by the federal appeals court is really a modest one; the underlying problem is with electing judges in the first place.