No. 07-7965

In The

Supreme Court of the United States

OCTOBER TERM, 2007

________________

Gertrude C. Chase, Chair, New Columbus Election Board, et. al.,

Petitioners,

v.

New Columbus Democratic Party, et. al.,

Respondents.

_________________

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTEENTH CIRCUIT

_________________

BRIEF FOR RESPONDENT

___________________

Team Number 3944

Counsel for Respondent

i

QUESTIONS PRESENTED

1. Whether New Columbus’ rule precluding judges and judicial

candidates from personally soliciting campaign

contributions is inconsistent with the First Amendment

insofar as it bars them from (1) signing letters requesting

campaign contributions, and (2) making personal appeals for

campaign contributions to “large groups” of individuals.

2. Whether New Columbus’ restrictions on certain partisan

political activities of judges and judicial candidates

violate the First Amendment to the extent that they bar

judges and judicial candidates from (1) attending and

speaking at political party gatherings, (2) identifying

themselves as members of a political party and (3) seeking,

accepting or using political party endorsements.

ii

TABLE OF CONTENTS

QUESTIONS PRESENTED....................................... i

TABLE OF CONTENTS........................................ ii

TABLE OF AUTHORITIES..................................... iv

OPINIONS AND ORDER........................................ 1

CONSTITUTIONAL AND STATUTORY PROVISIONS................... 1

STATEMENT OF THE CASE..................................... 1

Mr. Crandell First Runs For Justice.................. 1

Mr. Crandell Tries Again............................. 2

The Election Board’s Threatening Response............ 3

Election Board Opens An Investigation................ 4

Proceedings Below.................................... 5

SUMMARY OF ARGUMENT....................................... 6

ARGUMENT.................................................. 8

I. STRICT SCRUTINY APPLIES BECAUSE THE RESTRICTIONS

IMPLICATE FUNDAMENTAL FIRST AMENDMENT FREEDOMS OF

POLITICAL SPEECH, EXPRESSION, AND ASSOCIATION........ 8

A. The Restrictions Burden Core Political Speech

And Expression.................................. 9

B. The Restrictions Are Also Content-Based

Restrictions................................... 12

iii

II. THE SOLICITATION AND POLITICAL ACTIVITIES RESTRICTIONS

VIOLATE THE FIRST AMENDMENT BECAUSE THEY ARE NOT

NARROWLY TAILORED TO SERVE A COMPELLING STATE

INTEREST............................................ 14

A. New Columbus’ Advanced Interest Is Not

Compelling..................................... 15

B. Even If The Interest Is Compelling, The

Restrictions Are Not Narrowly Tailored Because

They Are Disproportionate To The Advanced

Interest....................................... 18

1. The restrictions are both over- and under-

inclusive to achieve New Columbus’

advanced interest......................... 18

2. Alternatively, the restrictions are not

the least restrictive means to achieve

New Columbus’ ends........................ 22

CONCLUSION............................................... 25

iv

TABLE OF AUTHORITIES

UNITED STATES SUPREME COURT CASES

Anderson v. Celebrezze,

460 U.S. 780 (1983) .................................... 11

Ark. Writers’ Project, Inc. v. Ragland,

481 U.S. 221 (1987) .................................... 12

Austin v. Mich. Chamber of Commerce,

494 U.S. 652 (1990) ............................. 9, 10, 18

Bd. of Trs. of State Univ. of N.Y. v. Fox,

492 U.S. 469 (1989) .................................... 22

Brown v. Hartlage,

456 U.S. 45 (1982) ..................................... 18

Buckley v. Valeo,

424 U.S. 1 (1976) .............................. 10, 19, 24

Burson v. Freeman,

504 U.S. 191 (1992) .................................... 15

Carey v. Brown,

447 U.S. 455 (1980) ..................................... 9

Carey v. Population Servs. Int’l,

431 U.S. 678 (1977) .................................... 15

Chaplinsky v. New Hampshire,

315 U.S. 569 (1942) ..................................... 8

Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah,

508 U.S. 520 (1993) .................................... 18

Cousins v. Wigoda,

419 US 477 (1975) ....................................... 9

Democratic Party of U.S. v. Wisconsin ex rel. La Follette,

450 U.S. 107 (1981) ................................ 10, 12

Eu v. San Francisco County Democratic Cent. Comm.,

489 U.S. 214 (1989) ................................ passim

v

F.C.C. v. League of Women Voters of Ca.,

468 U.S. 364 (1984) .................................... 22

First Nat’l Bank of Boston v. Bellotti,

435 U.S. 765 (1978) .................................... 18

Florida Bar v. Went For It, Inc.,

515 U.S. 618 (1995) .................................... 15

Garrison v. Louisiana,

379 U.S. 64 (1964) ...................................... 8

Lorillard Tobacco Co. v. Reilly,

533 U.S. 525 (2001) .................................... 15

McConnell v. Fed. Election Comm’n,

540 U.S. 93 (2003) ..................................... 10

McIntyre v. Ohio Elections Comm’n,

514 U.S. 334 (1995) .................................. 8, 9

Meyers v. Grant,

486 U.S. 414 (1988) ..................................... 9

NAACP v. Button,

371 U.S. 415 (1963) .................................... 15

New York Times Co. v. Sullivan,

376 U.S. 254 (1964) ..................................... 8

Police Dep’t of Chi. v. Mosley,

408 U.S. 92 (1972) ..................................... 12

R.A.V. v. City of St. Paul,

505 U.S. 377 (1992) ................................ 10, 13

Randall v. Sorrell,

126 S.Ct. 24 (2006) .................................... 21

Renne v. Geary,

501 U.S. 312 (1991) ................................ 11, 16

Reno v. Flores,

507 U.S. 292 (1993) .................................... 15

vi

Republican Party of Minn. v. White,

536 U.S. 765 (2002) ................................ passim

Sherbert v. Verner,

374 U.S. 398 (1963) .................................... 15

Simon & Schuster v. N.Y. Crime Victims Bd.,

502 U.S. 105 (1991) ................................ 12, 19

Thompson v. W. States Med. Ctr.,

535 U.S. 357 (2002) .................................... 22

Tumey v. Ohio,

273 U.S. 510 (1927) .................................... 22

Turner Broad. Sys., Inc. v. F.C.C.,

512 U.S. 622 (1994) ..................................... 9

United States v. Playboy Entm’t Group, Inc.,

529 U.S. 803 (2000) ..................................... 8

Va. State Bd. of Pharmacy v. Va. Citizens Consumer

Council, Inc.

425 U.S. 748 (1976) .................................... 11

Wisconsin v. Yoder,

406 U.S. 205 (1972) .................................... 15

UNITED STATES COURT OF APPEALS CASES

Family Trust Foundation of Kentucky v. Kentucky Judicial

Conduct Com’n,

388 F.3d 224 (6th Cir. 2004) ........................... 22

Weaver v. Bonner,

309 F.3d 1312 (11th Cir. 2002) ......................... 13

CONSTITUTIONAL PROVISIONS

U.S. Const. amend. I...................................... 1

SECONDARY AUTHORITIES

2 Cong. Ch. 36; 1 Stat. 275.............................. 23

Alexander Hamilton, The Federalist No. 78................ 24

vii

Erwin Chemerinsky, The First Amendment: When the

Government Must Make Content-Based Choices,

42 CLEV. ST. L. REV. 199, 201 (1994)..................... 12

Mary Eileen Weicher, The Expansion of the First Amendment

in Judicial Elections: Another Cause for Reform,

38 LOY. U. CHI. L.J. 833 (2007) ......................... 23

Sandra Day O’Connor, Editorial, Justice For Sale: How

Special-Interest Money Threatens The Integrity of

the Courts,

WALL ST. J., Nov. 15, 2007 .............................. 24

1

OPINIONS AND ORDER

The opinion of the United States Court of Appeals for the

Fourteenth Circuit is reproduced at R. 6-39. The Joint Judicial

Advisory Committee Final Notes to the Supreme Court of New

Columbus is reproduced at R. 40.

CONSTITUTIONAL AND STATUTORY PROVISIONS

This case involves questions relating to the

First Amendment’s protection of political speech, expression,

and association. U.S. Const. amend. I. This case also presents

issues under the New Columbus Code of Judicial Conduct, Cannons

1-7. The full text of the First Amendment and these cannons are

set forth at Resp. App. A-B.

STATEMENT OF THE CASE

Mr. Crandell First Runs For Justice

In March 2001, Arthur Banes Crandell first declared himself

a candidate for Associate Justice of the New Columbus Supreme

Court. (R. 9.) At that time, Mr. Crandell was an active member

of the New Columbus Bar for nine years. (R. 8.) Like many

other New Columbus residents and Americans, Mr. Crandell was

also an active member of other organizations, including the New

Columbus Chapter of the National Association for the Advancement

of Colored People (NAACP) and the New Columbus Democratic Party.

(R. 8.) Mr. Crandell also engaged the community by exercising

2

his First Amendment right and civic duty in volunteering for

state and local elections. (R. 8.) Mr. Crandell’s interest in

politics even resulted in a one year part-time job in 1997 as a

media consultant and public relations director for a state

senate campaign. (R. 9.)

Shortly after Mr. Crandell declared his judicial candidacy,

his opponent filed a complaint with the New Columbus Election

Board alleging Mr. Crandell was in violation of Cannons 1-3 of

the New Columbus Code of Judicial Conduct (referred to as “the

solicitation and political activities restrictions”). (R. 9.)

Specifically, his opponent claimed that Mr. Crandell violated

the Canons by seeking public affiliation, association, and

endorsement of the New Columbus Democratic Party and personally

soliciting campaign funds. (R. 9.) The New Columbus Election

Board immediately began investigating Mr. Crandell’s activities,

and, as a result, Mr. Crandell withdrew his candidacy. (R. 9.)

The Election Board then halted its investigation, leaving the

claims unresolved and deeming the matter moot. (R. 9.)

Mr. Crandell Tries Again

Despite these previous difficulties, Mr. Crandell decided

to run a second time for Associate Justice in March 2007.

(R. 9.) In preparation for any similar opponent challenges,

Mr. Crandell sought an Election Board advisory opinion on the

enforceability of certain Judicial Code provisions relating to

3

campaign activities he wished to engage in as a judicial

candidate including: 1) speaking at political organization

gatherings; 2) pursuing and using endorsements from political

party organizations; 3) soliciting contributions from

individuals at political organization events; and 4) personally

pursuing campaign contributions by letter or in person from

groups of 50 or more individuals hosted by state and local

political parties. (R. 10.) Mr. Crandell also maintained that

the solicitation and political activities restrictions

constituted impermissible abridgments to his freedom of speech.

(R. 9-10.)

The Election Board’s Threatening Response

In response to Mr. Crandell’s request, the Election Board

issued an advisory opinion on April 16, 2007, declaring the

solicitation and political activities restrictions remain in

effect and are enforceable. (R. 10) The Election Board further

delineated that the activities described by Mr. Crandell would

likely violate the New Columbus State Code.1 (R. 10) In

relevant part, the Election Board stated:

“[A]lso, in light of the nature of your request

affirmatively notifying this Board that you plan

to seek election to the open seat on the New

Columbus Supreme Court, we further advise that

this office closely monitors the election-related

activities of all candidates for state judicial

1 See Appendix B for the full text New Columbus Code of Judicial Conduct.

4

office in order to ensure compliance with

applicable state law.” (R. 10)

While taking heed of this warning, Mr. Crandell pressed on,

assembling the requisite campaign committee composed of a former

State Senator and two prominent lawyers. (R. 10.) This

committee managed most of the fundraising, communications and

other campaign functions as required by the New Columbus Code of

Judicial Conduct. (R. 11.) During this nascent campaign

period, Mr. Crandell sought and received an endorsement from the

New Columbus Democratic Party. (R. 11) Although Mr. Crandell

signed solicitation letters to numerous individuals, the

Committee maintained the responsibility for mailing these

letters. (R. 11.) Moreover, the Committee further insulated

Mr. Crandell from viewing donor lists and learning the identity

of contributors in accordance with Cannon 3. (R. 11.) While at

“meet-the-candidate” events organized by the local and state

Democratic Party, Mr. Crandell made appeals for campaign

contributions to the entire audience, but refrained from

directly soliciting any individuals one-on-one. (R. 11.)

Election Board Opens An Investigation

On August 1, 2007, the Election Board informed Mr. Crandell

of another investigation into his 2007 campaign-related

activities. (R. 11.) The Election Board indicated an anonymous

source alleged Mr. Crandell had violated of Canons 1-3 by

5

engaging in prohibited solicitation and political activities.

(R. 11.) The letter provided Mr. Crandell only two weeks to

produce copies of all fundraising letters and a summary report

of all endorsements received. (R. 11.) Mr. Crandell complied

with the request; however, shortly thereafter, Mr. Crandell,

along with the New Columbus Democratic Party, filed suit against

the New Columbus Election Board challenging the

constitutionality of the Judicial Code of Conduct. (R. 11-12.)

The suit specifically named Gertrude C. Chase in her

capacity as Chair of the Election Board, Neil G. Katzen in his

capacity as Director of the New Columbus Office of Attorney

Ethics, and Dwayne F. Pierce in his capacity as Chair of the New

Columbus Office of Attorney Ethics. (R. 12.) The Democratic

Party and Mr. Crandell sought a declaratory and injunctive

relief against the enforcement of the solicitation and political

activities restrictions in Judicial Canons 1-3 claiming that

such restrictions violated judicial candidate’s First Amendment

right of freedom of political speech, association, and

expression. (R. 12.)

Proceedings Below

After an expedited briefing and hearing, on September 1,

2007, the district court issued a declaratory judgment upholding

the speech restrictions as satisfying strict scrutiny analysis.

(R. 12.) The district court determined the restrictions were

6

narrowly tailored to New Columbus’ compelling interest of an

independent and impartial judiciary. (R. 12-13.) The district

court then granted Mr. Crandell’s motion for a stay pending an

appeal. (R. 13.)

The Democratic Party and Mr. Crandell appealed their case

to the United States Court of Appeals for the Fourteenth

Circuit. (R. 13.) The court reversed the district court and

held that the solicitation and political activities restrictions

failed strict scrutiny. (R. 26.) While the court determined

that impartiality and judicial independence is a compelling

interest, the court deemed the solicitation and political

activities restrictions were not narrowly tailored. (R. 23,

26.) The court found that the political activities and

solicitation restrictions are under-inclusive, causing them to

fail the narrow tailoring test. (R. 23, 26.) The court further

reasoned that judicial recusal is a less restriction means

accomplishing impartiality and judicial independence. (R. 26.)

SUMMARY OF ARGUMENT

The court of appeals correctly held that the political

activities and solicitation restrictions are unconstitutional

under the First Amendment. Since the restrictions implicate

core political speech and are content-based restrictions, the

strictest scrutiny must apply. (Part I.) The restrictions fail

7

to survive strict scrutiny because they are not narrowly

tailored to serve a compelling state interest. (Part II.)

First, the court of appeals properly applied strict

scrutiny because the restrictions involved core political speech

directly affecting campaign and election activities. (Part

I.A.) Strict Scrutiny is also appropriate because the

restrictions are content-based by prohibiting speech based on

subject matter and viewpoint. (Part I.B.)

Second, the court of appeals rightly held that the

restrictions are not narrowly tailored to serve New Columbus’

interest of impartiality and maintaining judicial independence.

Even though the court of appeals reached the proper holding, New

Columbus’ fails to present a compelling state interest because

the means adopted by New Columbus do not necessarily accomplish

the desired ends. (Part II.A.)

Third, the court of appeals accurately determined that the

restrictions are not narrow tailored because they are under-

inclusive, failing to regulate all activities that jeopardize

New Columbus’ advanced interest. (Part II.B.1.) Such

restrictions are even over-inclusive to the extent that ill-

defined terms, such as political organizations and

contributions, could over-regulate activities beyond a state

interest. (Part II.B.1.) Finally, the court of appeals

appropriately determined that less restrictive means of

8

maintaining impartiality and judicial independence exist, such

as judicial recusal. (Part II.B.2.)

ARGUMENT

I. STRICT SCRUTINY APPLIES BECAUSE THE RESTRICTIONS IMPLICATE FUNDAMENTAL FIRST AMENDMENT FREEDOMS OF POLITICAL SPEECH,

EXPRESSION, AND POLITICAL ASSOCIATION.

Political speech, expression, and association are inherent

to our First Amendment freedoms because they “embody our

‘profound national commitment to the principle that debate on

public issues should be uninhibited, robust, and wide-open....’”

Garrison v. Louisiana, 379 U.S. 64, 75 (1964) (quoting New York

Times Co. v. Sullivan, 376 U.S. 254, 270 (1964)).2 As Justice

Brennan stated, “speech concerning public affairs is more than

self-expression; it is the essence of self-government.”

Garrison, 379 U.S. at 74-75. Only in very limited circumstances

may a state restrict these fundamental freedoms. Chaplinsky v.

New Hampshire, 315 U.S. 569, 572 (1942). Even then, a state

bears the burden of proving that its actions are constitutional.

United States v. Playboy Entm’t Group, Inc., 529 U.S. 803, 816

(2000).

To determine whether such acts are constitutional, this

Court has consistently applied strict scrutiny to content-based

restrictions or burdens to core political speech. See, e.g.,

2 It is well recognized that First Amendment protections apply to the states

through the Fourteenth Amendment. See, e.g., McIntyre v. Ohio Elections

Com’n, 514 U.S. 334, 336 (1995).

9

Republican Party of Minn. v. White, 536 U.S. 765, 774, 781

(2002); McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 347

(1995); Turner Broad. Sys., Inc. v. F.C.C., 512 U.S. 622 (1994);

Carey v. Brown, 447 U.S. 455, 462 (1980). Strict scrutiny

requires that a restriction be: 1) narrowly tailored, to serve

2) a compelling state interest. White, 536 U.S. at 755; Eu v.

San Francisco County Democratic Cent. Comm., 489 U.S. 214, 222

(1989). Since New Columbus’ restrictions implicate core

political speech and are content-based, any argument that a

lesser standard of scrutiny should apply is without merit.

A. The Restrictions Burden Core Political Speech And Expression.

New Columbus’ solicitation and political activities

restrictions directly affect campaign and election activities

that are core political speech. This Court has defined core

political speech as “…interactive communication concerning

political change.” Meyers v. Grant, 486 U.S. 414, 422 (1988).

It includes both conduct and words intended to demonstrate

support for a candidate or an issue. White, 536 U.S. at 774, 781

(finding speech and debate as core speech); Cousins v. Wigoda,

419 US 477, 487 (1975) (finding association as core speech);

Austin v. Mich. Chamber of Commerce, 494 U.S. 652, 657 (1990)

(finding campaign contributions as core speech); Eu, 489 U.S. at

222 (finding endorsements as core speech.); Democratic Party of

10

U.S. v. Wisconsin ex rel. La Follette, 450 U.S. 107, 122 (1981)

(finding identification with organizations as core speech). Core

political speech is the “highest, most protected” form of

speech. R.A.V. v. City of St. Paul, 505 U.S. 377, 422 (1992).

As such, the proper test for restrictions to core political

speech is strict scrutiny. White, 536 U.S. at 774.

The solicitation and political activities restrictions both

implicate core political speech. In reviewing a prohibition on

corporate campaign expenditures, the Austin Court recognized

that funds expended for a candidate’s campaign are core

political speech and, thus, applied strict scrutiny. 494 U.S.

at 657. Like Austin’s corporate campaign contribution

restriction, New Columbus’ solicitation restrictions directly

affect voter campaign contributions triggering strict scrutiny.

Even the Buckley and McConnell Courts recognize that campaign

contributions are core political speech. Buckley v. Valeo, 424

U.S. 1, 15 (1976); McConnell v. Fed. Election Comm’n, 540 U.S.

93, 102-103 (2003). Although these courts arguably applied a

less than strict scrutiny standard, these cases are

distinguishable because Buckley and McConnell addressed

contribution limits instead of a judicial candidate’s ability to

make personal appeals for campaign contributions. See generally

Buckley, 424 U.S. 1; McConnell, 540 U.S. 93.

11

Each of the political activities restrictions also targets

core political speech. For instance, the “speak and attend

restriction” prohibits interactive communication with certain

voters. In fact, it restricts a judicial candidate from

speaking on legal and political issues to certain organizations,

the type of activity protected in White. Moreover, in

application, this restriction burdens political organization

members in engaging judicial candidates on those same issues.

See generally, Va. State Bd. of Pharmacy v. Va. Citizens

Consumer Council, Inc., 425 U.S. 748 (1976) (finding that First

Amendment rights are reciprocal between the speaker and the

recipient); Anderson v. Celebrezze, 460 U.S. 780 (1983)

(recognizing laws affecting candidates have a correlative effect

on voters).

This Court has also found that endorsement restrictions

implicate core political speech. See Eu, 489 U.S. at 222; Renne

v. Geary, 501 U.S. 312, 122 (1991). Like the “speak and attend

restriction,” the “endorsement restriction” also prohibits

political organizations from interactively communicating their

support for and association with judicial candidates.

As identification with an organization is a necessary

corollary to association, the “identification restriction”

necessarily burdens a judicial candidate’s ability to associate

with political organizations. La Follette, 450 U.S. 107, 122

12

(1981) (“the freedom to associate for the advancement of

political beliefs necessarily presupposes the freedom to

identify the people who constitute the association.”). As a

result, this restriction effectively bans communicating views

through association with such organizations.

B. The Restrictions Are Also Content-Based Restrictions.

Additionally, New Columbus’ solicitation and political

activities restrictions trigger strict scrutiny because they

prohibit speech based on content and viewpoint. With few

exceptions, a state “has no power to restrict expression because

of its message, its ideas, its subject matter or its content.”

Police Dep’t of Chi. v. Mosley, 408 U.S. 92, 95 (1972). If a

restriction is enacted on the basis of subject matter or

viewpoint, it is a content-based restriction. See Ark. Writers’

Project, Inc. v. Ragland, 481 U.S. 221, 230 (1987); see also

Erwin Chemerinsky, The First Amendment: When the Government Must

Make Content-Based Choices, 42 CLEV. ST. L. REV. 199, 201 (1994).

To measure whether a restriction is content-based, this Court

has employed a compelling interest test derived from equal

protection analysis. Ragland, 481 U.S. at 231; Simon & Schuster

v. N.Y. Crime Victims Bd., 502 U.S. 105, 118 (1991). In

application, differential treatment of speech based on the

speaker or wholesale bans on subject matter are highly suspect

13

and strict scrutiny must apply. See White, 536 U.S. at 774;

R.A.V., 505 U.S. at 383-84.

The solicitation restrictions prohibit judicial candidates

from 1) signing letters requesting campaign contributions and 2)

making personal appeals for campaign contributions to “large

groups” of individuals. Candidates are consequently prevented

from speaking to donors or endorsers concerning a particular

subject matter: their contributions. See Weaver v. Bonner, 309

F.3d 1312,1322 (11th Cir. 2002)( recognizing that "candidates

are completely chilled from speaking to potential contributors

and endorsers about their potential contributions and

endorsements" and is, thus, a content-based restriction.) As

former Justice O'Connor acknowledged, even judicial election

campaigns "can require substantial funds." White, 536 U.S. at

789 (O’Connor, J., concurring). As such, the solicitation

restrictions mandate strict scrutiny because they stifle

judicial candidates' speech on the subject of campaign

contributions.

Although New Columbus allows a campaign committee to

solicit funds on behalf of a candidate, it expressly forbids a

candidate from the same activity. Under the present rules, a

situation may occur in which a candidate and a committee member

are in the same room with a donor; and while the committee

member may solicit a contribution, the candidate can only remain

14

a silent observer. To this extent, a restriction that allows

another to speak on his or her behalf is still a content-based

restriction because it forbids the individual to speak their

viewpoint freely and uninhibited on a subject matter.

The political activities restrictions are also content-

based prior restraints because they prohibit speech based on

subject matter. As drafted, the “identification” restriction

bans candidates from speaking on the subject of personal

political organization affiliation. Similarly, the

“endorsement” restriction bans organizations from speaking on

the subject of judicial candidate support. The “speak and

attend” restriction also bans organization members from hearing

and engaging judicial candidates directly at meetings. In

preemptively restricting such speech, the political activities

restrictions are all content-based prior restraints requiring

the strictest scrutiny.

In short, as the solicitation and political organization

restrictions are content-based and impact core political speech

strict scrutiny must be applied.

II. THE SOLICITATION AND POLITICAL ACTIVITIES RESTRICTIONS VIOLATE THE FIRST AMENDMENT BECAUSE THEY ARE NOT NARROWLY

TAILORED TO SERVE A COMPELLING STATE INTEREST.

New Columbus both fails to present a compelling interest

and to demonstrate its solicitation and political activities

restrictions are narrowly tailored to survive strict scrutiny.

15

Under strict scrutiny, New Columbus has the burden of proving

that the solicitation and political activities restrictions are

narrowly tailored to serve a compelling state interest. See,

e.g., White, 536 U.S. at 775; Eu, 489 U.S. at 22. “It is a rare

case in which a law survives strict scrutiny.” Burson v.

Freeman, 504 U.S. 191, 211 (1992).

A. New Columbus’ Advanced Interests Is Not Compelling.

While the appellate court reached the proper holding, the

interests advanced by New Columbus are not compelling. “Only a

compelling state interest ... can justify limiting First

Amendment freedoms.” NAACP v. Button, 371 U.S. 415, 438 (1963).

This Court has described a compelling state interest as a

“paramount interest” and an “interest of the highest order.”

Sherbert v. Verner, 374 U.S. 398, 406 (1963); Wisconsin v.

Yoder, 406 U.S. 205, 215 (1972). The proper inquiry as to

whether an interest is compelling involves the tightness of the

fit between the restriction and the alleged interest. Florida

Bar v. Went For It, Inc., 515 U.S. 618, 632 (1995). An interest

is not compelling when a restriction falls short of addressing

significant factors that impact the alleged interest. Id.;

Lorillard Tobacco Co. v. Reilly, 533 U.S. 525, 555 (2001); Reno

v. Flores, 507 U.S. 292, 302 (1993); Carey v. Population Servs.

Int’l, 431 U.S. 678, 686 (1977).

16

In the present case, New Columbus made an affirmative

decision to elect judges. In both Renne and White, this Court

recognized that “if the State chooses to tap the energy and

legitimizing power of the democratic process [to select its

judges], it must accord the participants in that process the

First Amendment rights that attached to their roles.” Renne,

501 U.S. at 349; White, 536 U.S. at 788. Nonetheless, New

Columbus opted to adopt several prophylactic restrictions that

curtail First Amendment freedoms to allegedly ward off

impartiality and uphold judicial independence. (R. 40.)

Certainly, impartiality and judicial independence are

important to the judicial process. However, the means adopted

by New Columbus do not necessarily accomplish these ends.

First, New Columbus fails to define what it means by

impartiality and judicial independence. (R. 40.) If by

impartiality and judicial independence New Columbus means to

prevent “a lack of bias for or against either party,” there are

already judicial ethics rules in place to prevent such

impropriety. The record contains no evidence that the current

judicial ethics rules are ineffective in preventing such bias.

Considering this, New Columbus’ need to adopt additional

restrictions to achieve this goal does not give rise to the

level of a compelling interest.

17

Similarly, if by impartiality and judicial independence New

Columbus means to prevent corruptive influences on elected

judges, judicial ethics rules and even criminal laws govern and

prevent such activities, like bribery. Once again, New Columbus

does not maintain that the judicial ethics rules have been

ineffective. Thus, it is hard to reason that this advanced

interest is compelling.

Finally, if by impartiality and judicial independence New

Columbus wants to ensure judges remain “open-minded” on legal

issues, then this reasoning fails to take into account that

virtually every judge has preconceived notions about the law.

In fact, the most qualified judicial candidates have previously

written, taught, spoken, and posited their positions on various

legal issues. Moreover, judges running for re-election,

typically have presented their views on issues through their

legal opinions detailed in public records. As the White Court

duly noted, “avoiding judicial preconception on legal issues is

neither possible nor desirable, [and] pretending otherwise by

attempting to preserve the ‘appearance’ of that type of

impartiality can hardly be a compelling state interest....” 536

U.S. at 778. In the present case, while New Columbus may have

an interest in a judicial candidate’s qualifications, it may not

have a compelling interest in a judicial candidate free of all

legal preconceptions.

18

B. Even If The Interest Is Compelling, The Restrictions Are Not Narrowly Tailored Because They Are

Disproportionate To The Advanced Interest.

New Columbus’ restrictions are not narrowly tailored

because they are both over-inclusive and under-inclusive to

achieve the advanced interest. Additionally, there are less

restrictive means to achieve the desired ends. As this Court

made clear in White, restrictions that "’unnecessarily

circumscrib[e] protected expression’" are not narrowly tailored.

536 U.S. at 775 (quoting Brown v. Hartlage, 456 U.S. 45, 54

(1982)). With rare exception, a regulation is not narrowly

tailored if it is either over-inclusive or under-inclusive in

achieving a compelling state interest. Austin, 494 U.S. at 666.

Furthermore, in order to be narrowly tailored, a restriction

should reflect the least restrictive means to achieve the

advanced interest. White, 536 U.S. at 751; Eu, 489 U.S. at 222.

1. The restrictions are both over- and under- inclusive to achieve New Columbus’ advanced

interest.

Over-inclusive restrictions regulate activities that are

beyond a state interest while under-inclusive restrictions fail

to regulate all activities that jeopardize a state interest.

Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508

U.S. 520, 547 (1993) (noting a law fails strict scrutiny when

leaving “appreciable damage to that supposedly vital interest

unprohibited.”); First Nat’l Bank of Boston v. Bellotti, 435

19

U.S. 765, 794 (1978); Simon & Schuster, 502 U.S. at 119-20.

Over-inclusive and under-inclusive restrictions rarely withstand

strict scrutiny because they highlight inconsistencies between

the purported state’s interest and its real agenda to further

some less than compelling interest. Buckley, 424 U.S. at 1;

Bellotti, 435 U.S. at 792-94; White, 536 U.S. at 780.

As previously mentioned, the White Court struck down a

clause prohibiting judicial candidates from announcing their

views on disputed legal or political issues. The majority

reasoned, in part, that the Minnesota “announce” clause failed

strict scrutiny because it was “woefully under-inclusive, [in]

prohibiting announcements by judges (and would-be judges) only

at certain times and in certain forms." White, 536 U.S. at 783.

Similar to White, New Columbus’ restrictions are under-inclusive

because they fail to address all of the activities that could

undermine the purported interest.

Under New Columbus' solicitation restrictions, only

judicial candidate committees may solicit and accept campaign

contribution funds. These committees are not allowed to

disclose to the judicial candidate the identity of campaign

donors or even those who refused to contribute. Such a

restriction is under-inclusive because it does nothing to

prevent judicial candidates or judges from learning donor names

via public campaign contribution records. Today, campaign

20

contribution records are easily accessible on many Internet

websites free of charge. Moreover, nothing in the solicitation

restrictions prohibit a donor from telling the judicial

candidate directly that he or she contributed. Therefore,

judges are not fully insulated from knowing a donor's identity.

As this fails to regulate all activities that necessarily and

obviously endanger the advanced interest, New Columbus'

solicitation restrictions are under-inclusive.

Similarly, the political activities restrictions are

woefully under-inclusive to the same extent as White’s “announce

clause.” No true meaningful effect can be achieved since the

restrictions only temporarily ban such activities for a few

months prior to an election. Mr. Crandell’s long association

with the New Democratic Party casts doubt that temporarily

restraining his First Amendment rights does little to prevent

public knowledge of his political associations. Rather, the

restrictions give the opposite effect in paternalistically

denying voters candidate information necessary to make an

informed choice.

The restrictions are also over-inclusive because: 1) the

term “political organization” is overly vague and could

encompass organizations never meant for prohibition; and 2) the

term “contributions” is ill-defined and could be construed to

include volunteer time and resources. With regard to the first,

21

the Election Board could use Cannon 4’s broad definition to

stifle particular views by selectively finding that

organizations whose views they dislike are “partisan

organizations” for ban purposes. Since the term political

organization is defined as partisan, this definition could

conceivably include groups like the NAACP, AARP, and even the

local ladies church auxiliary. Additionally, judicial

candidates are barred from speaking to organizations regardless

of whether they share similar views. By prohibiting candidates

from speaking to groups with differing opinions, the state’s

advanced interest may actually be undermined.

As for the latter, the solicitation restriction fails to

specify whether the term “contributions” include in-kind

contributions, such as volunteer time or resources. As such,

the solicitation clause is over-inclusive to the extent it could

prevent judicial candidates from directly asking for volunteers

even to serve on their own campaign committees. See Randall v.

Sorrell, 126 S.Ct. 24 79 (2006)(noting the Vermont campaign

finance act explicitly defined contribution as not including

voluntary services).

Therefore, as written, the restrictions are

disproportionate because they over proscribe and under regulate

activities directly concerning impartiality and independence.

22

2. Alternatively, the restrictions are not the least restrictive means to achieve New Columbus’

ends.

The solicitation and political activities restrictions are

not narrowly tailored because there are less restrictive means

to achieve New Columbus’ interest. As previously mentioned, a

state must employ a regulation that restricts the least speech

possible in achieving their purported interest. See also

Thompson v. W. States Med. Ctr., 535 U.S. 357, 371 (2002);

F.C.C. v. League of Women Voters of Ca., 468 U.S. 364, 395

(1984); Tumey v. Ohio, 273 U.S. 510, 523 (1927). While a

regulation need not be the least burdensome, “if there are

numerous and obvious less-burdensome alternatives to the

restriction...,” then the restriction will be an unreasonable

restraint. Bd. of Trs. of State Univ. of N.Y. v. Fox, 492 U.S.

469, 480 (1989).

In the present case, an obvious and less restrictive means

for achieving New Columbus’ interest is recusal. See Family

Trust Foundation of Kentucky v. Kentucky Judicial Conduct Com’n,

388 F.3d 224, 228 (6th Cir. 2004) (noting that recusal is a less

restrictive means). For those matters where a judges has a

“direct, personal, substantial, or pecuniary interest" or even

the appearance of impropriety, judges may recuse themselves as a

less restrictive means of maintaining impartiality. Tumey, 273

U.S. at 523.

23

Recusal is a practice dating back to 1792 when the Second

Congress enacted legislation ordering judges to recuse

themselves in cases where they had a self interest. 2 Cong. Ch.

36; 1 Stat. 275. As the state has not proffered any evidence

that recusal is ineffective, vigorous public enforcement of

recusal statutes would be a very effective and less restrictive

means of achieving New Columbus’ goals.

Additionally, abandoning judicial elections would also be

an obvious and less restrictive means for achieving New

Columbus’ interest. The decision to have judicial elections is

in the state’s hands; and in so choosing, a state accepts an

inevitable amount of impartiality which is inherent to any

election system. White, 536 U.S. at 792 (O’Connor, J.,

concurring) (“If the State has a problem with judicial

impartiality, it is largely one the State brought upon itself by

continuing the practice of popularly electing judges.”).

Therefore, in abandoning a popular voting system, a state could

opt for a different selection process (i.e., appointment or

merit-based) that would impose less restrictions on a judicial

candidate’s First Amendment freedoms. See Mary Eileen Weicher,

The Expansion of the First Amendment in Judicial Elections:

Another Cause for Reform, 38 LOY. U. CHI. L.J. 833 (2007)(arguing

the best means of preserving judicial impartiality is the

abandonment of popular elections in favor of a merit-based

24

selection system); Sandra Day O’Connor, Editorial, Justice For

Sale: How Special-Interest Money Threatens The Integrity of the

Courts, WALL ST. J., Nov. 15, 2007 (arguing in part for a merit-

based selection system); Alexander Hamilton, The Federalist No.

78 (arguing for an appointment system).

Moreover, as aptly stated by former Justice O’Connor, “a

commitment to judicial independence will only come from robust

civics education, starting at a very young age.” See O’Connor,

supra. To ensure judicial independence, especially in a state

choosing to popularly elect its judges, the state should foster,

not restrict, more political debate and candidate disclosure.

Id.; cf. Buckley, 424 U.S. at 15-14 (“In a republic where the

people are sovereign, the ability of the citizenry to make

informed choices among candidates for office is essential, for

the identities of those who are elected will inevitably shape

the course that we follow as a nation.”).

Consequently, judicial recusal, abandonment of popular

elections or rules mandating complete candidate disclosures are

all less restrictive means of achieving independence and

impartiality.

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CONCLUSION

For the foregoing reasons, this Court should affirm the

judgment of the United States Court of Appeals for the

Fourteenth Circuit.

Respectfully submitted,

Counsel for Respondent

Dated: January 18, 2008

APPENDIX A

First Amendment

“Congress shall make no law respecting an establishment of

religion, or prohibiting the free exercise thereof; or abridging

the freedom of speech, or of the press; or the right of the

people peaceably to assemble, and to petition the government for

a redress of grievances.” U.S. Const. amend. I.

APPENDIX B

New Columbus (N. Col.) Code of Judicial Conduct, Canons 1-7

[NOTE: Additional, Non-Relevant Canons Have Been Omitted]

Canon 1: Except as authorized below, a judge or a candidate for

election to judicial office shall not:

(a) act as a leader or hold any office in a political

organization; identify him- or herself as a member of a

political organization, except as necessary to vote in an

election;

(b) publicly endorse or, except for the judge or

candidate's opponent, publicly oppose another candidate for

public office;

(c) make speeches on behalf of a political organization;

(d) attend political gatherings; or seek, accept, or use

endorsements from a political organization; or

(e) solicit funds for or pay an assessment to or make a

contribution to a political organization or candidate, or

purchase tickets for political party dinners or other

functions.

Canon 2: A judge or a candidate for election to judicial office

may, except as prohibited by law,

(a) speak to gatherings, other than political organization

gatherings, on his or her own behalf;

(b) appear in newspaper, television and other media

advertisements supporting his or her candidacy; and

(c) distribute pamphlets and other promotional campaign

literature supporting his or her candidacy.

Canon 3: A judge or a candidate for election to judicial office

shall not personally solicit or accept campaign contributions or

solicit publicly stated support. A candidate may, however,

establish committees to conduct campaigns for the candidate

through media advertisements, brochures, mailings, candidate

forums, and other means not prohibited by law. Such committees

may solicit and accept campaign contributions, manage the

expenditure of funds for the candidate's campaign, and obtain

public statements of support for his or her candidacy. Such

committees are not prohibited from soliciting and accepting

campaign contributions and public support from lawyers, but

shall not seek, accept, or use political organization

endorsements. Such committees shall not disclose to the

candidate the identity of campaign contributors nor shall the

committee disclose to the candidate the identity of those who

were solicited for contribution or stated public support and

refused such solicitation. A candidate shall not use or permit

the use of campaign contributions for the private benefits of

the candidate or others.

Canon 4: Political Organization. For purposes of Canons 1-5, the

term political organization denotes a partisan organization.

Canon 5: Each justice of the New Columbus Supreme Court and each

court of appeals and district court judge is deemed to hold a

separate nonpartisan office.

Canon 6: Canons 1-7 apply to all judicial candidates. A

successful candidate, whether or not an incumbent, is subject to

judicial discipline for his or her campaign conduct; an

unsuccessful candidate who is a lawyer is subject to lawyer

discipline under the New Columbus Rules of Professional for his

or her campaign conduct.

Canon 7: The New Columbus Election Board [charged generally with

responsibility for ensuring compliance of non-judicial

candidates for state-level office] shall have authority to

monitor the campaign activities of candidates for judicial

office; investigate allegations of violations of Canons

1-5 by candidates for judicial office; make recommendations to

the New Columbus Supreme Court regarding judicial discipline

consistent with the state code, up to and including removal from

the bench and/or lawyer discipline consistent with the state

code, up to and including disbarment; and generally oversee the

compliance of candidates for judicial office with these Canons.

The Board shall provide timely reports on the activities of

candidates for judicial office to the New Columbus Supreme

Court, no less than annually in a non-election year and

quarterly in an election year during which candidates are

seeking judicial office. The New Columbus Supreme Court shall

retain ultimate authority over the election of candidates for

judicial office.

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