CINCINNATI (CN) – An Ohio Appeals Court judge argued before the Sixth Circuit that state election laws regarding judicial candidates are unconstitutional and violate candidates’ free-speech rights.
Colleen O’Toole, a judge on Ohio’s 11th District Court of Appeals, says Rule 4.4(E) of the Ohio Code of Judicial Conduct infringes free speech.
The rule “contemplates a 16-month fundraising window for the general election: 12 months before the election and four months after,” but O’Toole claims that because primaries are held eight months before the general election, the fundraising period is effectively minimized to four months.
Early voting, she claimed, shrank the window even further.
O’Toole and her campaign committee sued Ohio Supreme Court Chief Justice Maureen O’Connor, the Ohio Supreme Court disciplinary counsel Scott Drexel, and Richard Dove, secretary to the Board of Commissioners on Grievances and Discipline of the Ohio Supreme Court, in federal court.
U.S. District Judge James L. Graham granted the defendants’ motion for judgment on the pleadings regarding rule 4.4(E), and then denied O’Toole’s motion for reconsideration.
Graham cited the Sixth Circuit decision in Williams-Yulee, a case that allowed for narrowly tailored restrictions on the speech of judicial candidates.
“The court noted,” he wrote, “that rule 4.4(E) ‘prohibits the solicitation and receipt of funds only during the period of time that most implicates the government’s stated interests.’
“And judicial candidates may participate in a host of other activities; they may ‘contribute and spend their own funds, marshal volunteers and supporters and engage in campaign activities other than soliciting funds, such as attending political functions, marching in parades and making speeches about their candidacy.’”
Graham refused to “redraw the line Ohio has selected” regarding the time frame for judicial candidates fundraising.
Chris Finney argued on behalf of O’Toole and made comparisons between Ohio judicial elections and other political races throughout his argument.
“There is no doubt,” the attorney said, “that the type of restrictions set forth in 4.4(E) would be stricken if applied to a U.S. Senate race.”
He blasted the fact that the Ohio Supreme Court was able to enact the rules that govern judicial elections with minimal oversight by a federal court and disagreed with Judge Graham’s decision to make a judgment on the pleadings “without any factual development” of the case.
Finney argued that 4.4(E) gives incumbents a distinct advantage, and that the “rule-writers” – in this case, the Ohio Supreme Court – are the same people who benefit from the rules.
Sixth Circuit Judge Eric L. Clay noted, and Finney conceded, that O’Toole is a repeat candidate who could have amassed a “war chest” during her campaigns, and is perhaps not the best candidate to make that argument.
Attorney Drew Campbell argued on behalf of the Ohio Supreme Court and said the current rules do not prevent candidates from raising sufficient campaign funds.
He countered Finney’s argument that Judge Graham should have developed the factual record, and told the court that when O’Toole had the chance to pursue discovery she requested information about questions of law and not questions of fact.
Campbell also cited Williams-Yulee, stressing that the court in that case did not rely on discovery to come to its decision.
He argued that Ohio’s current rules pass strict scrutiny because they are narrowly tailored and serve the state’s interest in promoting judicial integrity.
No timetable has been set for the court’s opinion.
Circuit Judges Danny J. Boggs and Joan L. Larsen rounded out the panel.
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