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More Citizens United Fallout: Ninth Circuit Says MT Must Allow Parties to Endorse Judicial Candidates

The majority opinion sets the stage:

Since 1935, Montana has selected its judges through nonpartisan popular elections. Mont. Code Ann. § 13-14-111. Further to this end, Montana makes it a criminal offense for any political party to “endorse, contribute to, or make an expenditure to support or oppose a judicial candidate,” Mont. Code Ann. § 13-35-231, and individuals who facilitate such activities may also be held criminally liable, Mont. Code Ann. § 13-35-105.

The Sanders County Republican Central Committee sought a preliminary injunction against enforcement of these 80-year-old Montana statutes, arguing that Citizens United had invalidated them. District Judge Charles Lovell refused to issue an injunction. Such decisions are immediately appealable.

The Ninth Circuit held that the Montana statutes do not survive strict scrutiny under Citizens United. Specifically, the Ninth Circuit found no compelling evidence that permitting political parties to endorse judicial candidates would threaten the integrity and independence of the Montana judiciary. The Court noted that 38 other states permit political parties to endorse judicial candidates.

In a footnote, the Court said the non-partisan nature of the elections is valid (at least for the time being): "Montana’s decision to exclude parties from the nomination and balloting process for judicial candidates remains a valid choice to limit party involvement in judicial institutions."

The lack of a complete trial record did not stop the Ninth Circuit. It held that these statutes, which have been on the books for almost 80 years, are so obviously unconstitutional that a preliminary injunction must issue immediately to prevent their enforcement.

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