From Volume 77, Number 2 (January 2004)
Thirty-nine states use some form of popular elections to select judges in their appellate courts, general jurisdiction trial courts, or both. In June of 2002, the Supreme Court handed down its first ruling regarding judicial elections. A 5-4 majority in Republican Party of Minnesota v. White held that part of the Minnesota Code of Judicial Conduct was unconstitutional as violating the First Amendment of the U.S. Constitution. The specific clause at issue is known as the “announce clause” and states that “[a] candidate for a judicial office, including an incumbent judge,” shall not “announce his or her views on disputed legal or political issues.” In White, a judicial candidate alleged that he was forced to refrain from announcing his views on disputed issues during a campaign because of this provision, in violation of the First Amendment. A majority of the Supreme Court agreed and struck down Minnesota’s announce clause as unconstitutional.
The White decision has the potential to impact all thirty-nine states with elected judiciaries. Eight states besides Minnesota have or had the announce clause language as part of their judicial codes, and those states have either amended or most likely will need to amend their codes. The announce clause, however, is not the only statutory provision restricting judicial candidates. The majority opinion in White was clear in noting that its holding applies only to the announce clause, and the Court refused to grant certiorari to challenges of other state provisions affecting judicial speech. Nevertheless, the decision has sent the other thirty states with elected judiciaries scrambling to their codebooks to determine how this decision will affect their statutes and future judicial elections. One thing seems to be certain: Litigation is sure to follow. This Note will explore the potential fallout from the White decision by analyzing facial constitutional challenges to various state laws that limit the speech of candidates for judicial office.