Old Montana Campaign Law Blasted in the 9th

(CN) - Montana Republicans urged the 9th Circuit to strike down a 77-year-old state law prohibiting political parties from endorsing judicial candidates.

The Sanders County Republican Central Committee (SCRCC) sued Montana's attorney general and commissioner of political practice in May, challenging the state's so-called Party Censorship Statute.

Violation of the statute is publishable by six months in jail - a threat that the committee says tramples the First Amendment and prevents it from warning voters about judicial activism.

"Given the increasing intrusions by left-leaning state judges into areas of policy traditionally reserved to the Legislature, SCRCC desires to endorse judicial candidates for the primary and general elections in 2012," the group's complaint states.

After a Montana federal judge refused to grant a preliminary injunction in June, a three-judge federal appeals panel heard oral argument on the issue from Seattle.

"Under the statute that we are challenging, members of political parties can be jailed if they cause a political party to endorse a judicial candidate," committee attorney Matthew Monforton told the court. "The statute that we are challenging is a content-based, speaker-based censorship law, that criminalizes speech about candidates for public office in an election."

Judge Mary Schroeder asked whether there was "no difference between the judiciary and the other branches of government with respect to the political parties?"

Monforton answered: "We believe that is correct your honor, at least as far as First Amendment speech is concerned. The right to speak freely encompasses the right the speak collectively."

"If a state chooses to select its judges by election, then it has to accept all of the things that go with elections," he added, "First Amendment rights being the primary component that goes into a fair election."

Appearing for Montana, attorney Mike Black asked the judges to show restraint in considering the "deeply ingrained policy choice that has been made dating back at least 77 years to make these races nonpartisan."

Black argued that the statute is a "very narrow restriction on speech" that serves a compelling state interest to maintain "the perception of people who are appearing before the court that the judges are nonpartisan."

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