The Sixth U.S. Circuit Court of Appeals struck down the rules used in Kentucky for electing judges, stating the current rules violate the candidates’ First Amendment right to freedom of speech.
Currently in Kentucky, judicial candidates can’t identify themselves as a member of a political party, directly raise money for their campaign or take a public stand on a specific issue.
“The court ruling makes clear that they feel candidates have a right to say what party they (belong to) during their campaigns and that it is inappropriate to restrict them from doing so,” says Caleb Faux, executive director of the Hamilton County Democratic Party.
The court ruled that candidates could list their political affiliations as well as directly seek contributions for their campaigns. But the appellate court ordered a lower court to examine whether candidates should be allowed to take a public stand on political issues.
Both critics and supporters of the ruling say a decision on this point could take years because of its complex nature and implications.
“There are pros and cons to allowing judicial candidates to express their opinions on issues,” says Tim Burke, Hamilton County Democratic Party chairman. “It is permissible to allow a candidate to express their opinion on a broad issue not related to a specific case. However, it would be inappropriate for a candidate to make a commitment on how they will rule on a specific pending matter.”
This is potentially dangerous territory, critics allege, because if candidates are allowed to say how he or she feels about a specific issue it could affect their rulings on future cases and make them biased.
“It’s hard to find a difference between a candidate expressing an opinion and making a commitment to rule a certain way,” says Howard Tolley, a professor of political science at the University of Cincinnati. “When someone is running, they’re not going to say, ‘When this issue goes to court I will rule this way.’ However, when they make a general comment about a specific issue it’s pretty clear how they’re going to vote later on.”
Also, critics argue that allowing candidates to identify themselves as a member of a specific political party and directly raise cash could result in judges being influenced to rule in a particular way.
“The role of a judge is to maintain the interpretation of law and this ought to be insulated from political influence,” says Gene Beaupre, political science professor at Xavier University. “With this ruling, a judge's role could be compromised by partisan politics and organizations that have given them money.”
Before this ruling, though, an organization still could publicly endorse a judicial candidate, which essentially made it obvious what party the candidate preferred.
Supporters say candidates were already only an arms-length away from being part of the fundraising efforts for their campaigns prior to this ruling.
While candidates in Kentucky could not directly solicit money, they could establish committees to raise the money for them.
“While a candidate can not directly fundraise, they can make a telephone call to a supporter to be on a committee for an event,” Burke says. “Basically, they’re involved in the fundraising without flat-out being involved in it.”
So how does all of this affect Ohio?
The Sixth U.S. Circuit Court of Appeals is a federal court with jurisdiction over Kentucky, Ohio, Tennessee and Michigan, and thus its ruling will set precedence in all of those states.
“Courts in Ohio will now be obligated to follow this decision.” Beaupre says. “A lot of laws are based off of precedence and now there is a precedence doing away with the limitations on judicial races.”
Currently, Ohio judicial candidates can’t identify a party affiliation after the primary or directly raise money. Beaupre believes the rules that surround Ohio judicial elections won't change overnight and someone will have to file a lawsuit against the current rules in order for them to be challenged here.
“Someone will have to be harmed by the current rules for this to be challenged,” Beaupre says. “But eventually some legal case will work its way through the lower court and go to the federal court and then the precedence will help decide if Ohio judicial campaign rules should be changed.”
Both sides of the debate say they're keeping a close eye on the issue.
“Hopefully, in the future, candidates will be allowed to speak more freely,” Burke says. “If this happens, then we’ll be able to learn more about the candidates before we elect them and make a more educated decision when we vote.”