[EL] AZ judicial candidate speech case

[Douglas Carver]

Justice O'Connor's brilliant concurrence in *Republican Party of Minnesota
v. White* (2002) -- a case Jim Bopp knows well -- stated that if you want
to have elected judges, you are going to have to deal with the mess it
creates. I have been fascinated to see that of all of the high profile
issues with which she dealt while a Justice, it has been the problems
inherent in electing judges that has been her post-SCOTUS cause.

Douglas Carver
Albuquerque, NM


On Fri, May 9, 2014 at 1:15 PM, Rick Hasen <rhasen at law.uci.edu> wrote:

>    Ninth Circuit Issues Split Decision on AZ Judicial Candidate Speech
> Code <http://electionlawblog.org/?p=61384>
>  Posted on May 9, 2014 12:11 pm <http://electionlawblog.org/?p=61384> by Rick
> Hasen <http://electionlawblog.org/?author=3>
>
> Via Mike Sacks<https://twitter.com/MikeSacksEsq/status/464826256606134272>comes news of this new
> decision <http://t.co/1C4ZsGw7PO>. Majority by Judge Paez; concurrence by
> Judge Berzon, and dissent by Judge Tallman.
>
> The majority opinion begins:
>
> A state sets itself on a collision course with the First Amendment when it
> chooses to popularly elect its judges but restricts a candidate’s campaign
> speech. The conflict arises from the fundamental tension between the ideal
> of apolitical judicial independence and the critical nature of unfettered
> speech in the electoral political process. Here we must decide whether
> several provisions in the Arizona Code of Judicial Conduct restricting
> judicial candidate speech run afoul of First Amendment protections. Because
> we are concerned with content-based restrictions on electioneering-related
> speech, those protections are at their apex. Arizona, like
> every other state, has a compelling interest in the reality and appearance
> of an impartial judiciary, but speech restrictions must be narrowly
> tailored to serve that interest. We hold that several provisions of the
> Arizona Code of Judicial Conduct
> unconstitutionally restrict the speech of non-judge candidates because the
> restrictions are not sufficiently narrowly tailored to survive strict
> scrutiny. Accordingly, we reverse the district court’s grant of summary
> judgment in favor of Defendants.
>
> Mike asks <https://twitter.com/MikeSacksEsq/status/464828286254592000>the important question: “So…what happens when a sitting judge running for a
> judgeship complains his non-judge opponent has a campaign advantage?”
>  [image: Share]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D61384&title=Ninth%20Circuit%20Issues%20Split%20Decision%20on%20AZ%20Judicial%20Candidate%20Speech%20Code&description=>
>    Posted in campaigns <http://electionlawblog.org/?cat=59>, judicial
> elections <http://electionlawblog.org/?cat=19>
>
> --
> Rick Hasen
> Chancellor's Professor of Law and Political Science
> UC Irvine School of Law
> 401 E. Peltason Dr., Suite 1000
> Irvine, CA 92697-8000949.824.3072 - office949.824.0495 - faxrhasen at law.uci.eduhttp://www.law.uci.edu/faculty/full-time/hasen/http://electionlawblog.org
>
>
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-- 
Dilexi iustitiam et odivi iniquitatem, propterea morior in exilio.

(I have loved justice and hated iniquity, therefore I die in exile.)

    -- the last words of Saint Pope Gregory VII (d. 1085)
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