Round Two in Montana Judge Campaign Law Test

Listen up Judge Charles Lovell, the 9th U.S. Circuit Court of Appeals did not say, back in 2012 that political party contributions to Montana’s nonpartisan judicial elections was constitutional, in fact, the court didn’t rule on the question.  The panel only struck down the ban on political endorsements.  So back to Helena goes the Republican Central Committee case for a second time.

Last year, Republicans prevailed in the party challenge to a Montana law making it a criminal offense for a political parties to “endorse, contribute to, or make an expenditure to support or oppose a judicial candidate.”

In a 2-1 vote, the 9th Circuit declared the state’s ban on political endorsements an unconstitutional violation of free speech in nonpartisan judicial elections.  What the court did not do, and the Republicans did not seek, was the ability to contribute to particular candidates.

But following the circuit’s decision to send the case back to Judge Lovell, he permanently enjoined state enforcement of the entire law, including the law’s ban on contributions by a political party to a judicial candidate.  That’s not what the appeals court did and they told Lovell to try again.

“The district court, apparently under the mistaken impression that this court found [the law] unconstitutional in all respects, entered a permanent injunction,” wrote Judge Jed Rakoff, a visiting judge from the Southern District of New York.  He was joined by Judges Mary Schroeder and Ronald Gould.  (Schroeder dissented in the original opinion last year.)

Rakoff pointed out, that the panel did not reach the issue of the contributions ban and the Republicans never sought it.

The panel told the judge to lift that portion of his injunction.

Case:  Sanders County Rep. Central Comm. V. Fox, No. 12-35816