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Wednesday, December 6, 2023
Courthouse News Service
Wednesday, December 6, 2023 | Back issues
Courthouse News Service Courthouse News Service

KY Judicial Candidates Can Declare Parties

(CN) — Kentucky judges and judicial candidates are free to identify with a political party, the Sixth Circuit ruled, noting the fine line between nonpartisan elections and free-speech rights.

The Kentucky Judicial Conduct Commission used to enforce rules that prevented judges and judicial candidates from identifying with political parties in the state's "nonpartisan" elections.

Kentucky's judicial elections process begins with a single nonparty affiliated primary and ends with the two candidates with the highest votes advancing to the general election.

The challenge to state law originated from a 2014 lawsuit brought by three judicial candidates, including Robert Winter Jr., who had been told by the judicial commission that his campaign materials violated the law by identifying him as a "lifelong Republican."

In May of this year, U.S. District Judge Amul Thapar ruled against the Kentucky Judicial Conduct Commission, finding that it cannot prevent judges or judicial candidates from campaigning with or against political parties and issues.

A unanimous three-judge panel of the Sixth Circuit mostly agreed Wednesday with Thapar's ruling that such restrictions violated free-speech rights.

The Cincinnati-based appeals court found that a clause banning a candidate's intent to campaign as a member of political party was "too vague" and gave "judicial candidates little confidence about when they exercise their right to affiliate with a party."

Judge Jeffrey Sutton, who authored the 16-page opinion, also wrote that a "speeches clause" in Kentucky law wrongfully infringed upon free-speech rights by preventing the expression of simple views, such as a candidate saying they are "for the Republican party."

In addition, the Sixth Circuit disposed of a clause regarding the use of "misleading statements," finding that it was too ambiguous and did not help to prevent statements that were knowingly false, as truly false statements by judges and judicial candidates are already prohibited by another clause.

"Regulating campaign speech is not easy. It's not supposed to be. But treating elections for the courts just like elections for the political branches does not make sense either," Sutton wrote.

A few provisions of state law survived the ruling. The Sixth Circuit found that clauses preventing judges from making political campaign donations and endorsing political candidates helped in "preventing the appearance that judicial candidates are no different from other elected officials when it comes to quid pro quo politics."

In addition, a provision preventing a judge from acting as a leader or holding an office in a political organization was upheld, as the panel ruled that allowing such activities would undermine Kentucky's policy choice to hold nonpartisan elections for judges.

With some of the law still intact, Sutton offered the Kentucky Judicial Conduct Commission some guidance.

"Navigating these cross-currents is no simple task—and for that we have considerable sympathy for the efforts of the commission," the judge wrote. "At the same time Kentucky has the right to elect its judges on a nonpartisan basis, however, it has no right to suspend the First Amendment in the process. If the commission wishes to impose mandatory sanctions on the speech of judicial candidates for office, as opposed to nonenforceable guidelines or best practices, it must satisfy the rigors of the First Amendment in doing so."

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