A Past and Future of Judicial Elections: The Case of Montana

Abstract

Judicial elections are approaching their second century in the United States, and they are not going anywhere soon. Now, recent deregulation of campaigns and elections through successful constitutional challenges also reaches judicial campaigns and elections. Many of the legal and ethical constraints on judicial campaign speech and finance, once a realm of electoral exceptionalism respecting the distinct office of a judge, fell to these challenges alongside their political campaign analogues. The remaining exceptions, which protect a core of judicial impartiality from due process violations, are inconsequential to most modern judicial campaigns. Judicial campaigns quickly learned the political tactics of the Citizens United era, prompting a flood of attack ads financed by independent expenditures, some of which are not fully disclosed. Meanwhile, state courts in general, and state supreme courts in particular, remain important players in increasingly polarized debates in state law and politics. Case by case, issue by issue, term by term, the polarization of the political branches runs to the courts. This is the new normal in judicial elections.

Montana’s election for one of two contested seats on the state supreme court in 2014 exemplifies this new normal. In 2011, the Montana Supreme Court took a lonely and short-lived stand against this state of affairs by attempting to distinguish Montana’s campaigns, including judicial campaigns, from the Supreme Court’s decision in Citizens United. Yet the state’s concerns about financial and outside influence on judicial campaigns date back to before statehood, and continue to inflect judicial politics today. This article searches for lessons from Montana’s experience for the future of American judicial elections. Part II considers the origin of judicial elections and history of reforms in Montana, which is marked both by substantial worries about outside political intervention in state courts and by several innovative responses to it. Part III reviews the practice established by Montana’s reformed model of judicial selection over the past four decades. Part IV examines the Montana Supreme Court’s engagement with Citizens United, followed by a close analysis of an election held in its aftermath: the hard- fought 2014 campaign between incumbent Justice Mike Wheat and challenger Lawrence VanDyke. Part V suggests some preliminary conclusions about the meaning of Citizens United and other recent legal developments for judicial elections in the states, and how states might respond.

Keywords: Judicial Elections, State Politics, State Constitutions, State Courts, Citizens United v. FEC, Caperton v. Massey, Republican Party v. White