Sanders County Republican Cent v. Steve Bullock, et al
FILED OPINION (MARY M. SCHROEDER, RONALD M. GOULD and JED S. RAKOFF) For the foregoing reasons, we conclude that, because section 13-35-231 is unconstitutional on its face, Montana must be enjoined forthwith from enforcing it or otherwise interfering with a political party s right to endorse judicial candidates and to expend monies to publicize such endorsements. The mandate will issue forthwith, and the case is otherwise remitted to the district court for further proceedings consistent with this Opinion. REVERSED AND REMANDED. . Judge: MMS Dissenting, Judge: RMG , Judge: JSR Authoring. FILED AND ENTERED JUDGMENT. 
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UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
SANDERS COUNTY REPUBLICAN
D.C. No. CV-12-00046
Plaintiff - Appellant,
STEVEN BULLOCK, in his official
capacity as Attorney General for the State
of Montana; JAMES MURRY, in his
official capacity as the Commissioner for
Political Practices for the State of
Defendants - Appellees.
Appeal from the United States District Court
for the District of Montana
Charles C. Lovell, Senior U.S. District Judge, Presiding
Argued and Submitted August 31, 2012
SEP 17 2012
MOLLY C. DWYER, CLERK
U .S. C O U R T OF APPE ALS
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Before: SCHROEDER and GOULD, Circuit Judges, and RAKOFF, Senior District
RAKOFF, Senior District Judge:
Since 1935, Montana has selected its judges through nonpartisan popular
elections. Mont. Code Ann. § 13-14-111. Further to this end, Montana makes it a
criminal offense for any political party to “endorse, contribute to, or make an
expenditure to support or oppose a judicial candidate,” Mont. Code Ann. § 13-35-231,
and individuals who facilitate such activities may also be held criminally liable, Mont.
Code Ann. § 13-35-105. The voters of Montana are thus deprived of the full and
robust exchange of views to which, under our Constitution, they are entitled.
Appellant Sanders County Republican Central Committee (“the Committee”)
seeks to endorse judicial candidates and to enable the expenditures that would make
those views publicly known. The Committee argues that Montana’s ban on political
party endorsements is an unconstitutional restriction of its First Amendment rights of
free speech and association.1 On May 29, 2012, the Committee filed suit against
Montana’s Commissioner of Political Practices James Murry and against Montana’s
Attorney General Steven Bullock seeking injunctive relief and a declaration that the
The Honorable Jed S. Rakoff, Senior District Judge for the U.S.
District Court for the Southern District of New York, sitting by designation.
Appellant does not here challenge Montana’s ban on contributions to
judicial candidates by political parties.
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statute is unconstitutional. On June 26, 2012, the district court denied the Committee’s
motion for a preliminary injunction. The Committee appeals that decision and seeks
immediate injunctive relief to prevent Montana from enforcing the statute against the
Committee and its members. We have jurisdiction under 28 U.S.C. § 1292(a)(1). For
the following reasons, we reverse the district court and grant immediate injunctive
“A plaintiff seeking a preliminary injunction must establish that he is likely to
succeed on the merits, that he is likely to suffer irreparable harm in the absence of
preliminary relief, that the balance of equities tips in his favor, and that an injunction
is in the public interest.” Thalheimer v. City of San Diego, 645 F.3d 1109, 1115 (9th
Cir. 2011) (quoting Winter v. NRDC, 555 U.S. 7, 24–25 (2008)). A denial of a
preliminary injunction is generally reviewed for abuse of discretion. Alliance for the
Wild Rockies v. Cottrell, 632 F.3d 1127, 1131 (9th Cir. 2011). However, where a
district court’s denial of a preliminary injunction motion “rests solely on a premise of
law and the facts are either established or undisputed, our review is de novo.”
Sammartano v. First Judicial Dist. Ct., 303 F.3d 959, 964-65 (9th Cir. 2002). In the
instant case, where the essential issues are matters of law, we review the district
court’s conclusions de novo.
I. LIKELIHOOD OF SUCCESS ON THE MERITS
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When seeking a preliminary injunction “in the First Amendment context, the
moving party bears the initial burden of making a colorable claim that its First
Amendment rights have been infringed, or are threatened with infringement, at which
point the burden shifts to the government to justify the restriction.” Thalheimer, 645
F.3d at 1116. Here, there can be no question that the Committee has carried its initial
As the Supreme Court has found, “[t]he First Amendment ‘has its fullest and
most urgent application to speech uttered during a campaign for political office.’”
Citizens United v. Fed. Election Comm’n, 130 S. Ct. 876, 898 (2010) (quoting Eu v.
S.F. Cnty. Democratic Cent. Comm., 489 U.S. 214, 223 (1989)); see also Buckley v.
Valeo, 424 U.S. 1, 48 (1976) (“Advocacy of the election or defeat of candidates for
federal office is no less entitled to protection under the First Amendment than the
discussion of political policy generally or advocacy of the passage or defeat of
legislation.”). Thus, political speech—including the endorsement of candidates for
office—is at the core of speech protected by the First Amendment.
This protection extends as much to political parties exercising their right of
association as to individuals. As this Court stated in Geary v. Renne, “because the
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exercise of these basic first amendment freedoms traditionally has been through the
media of political associations, political parties as well as party adherents enjoy rights
of political expression and association.” 911 F.2d 280, 283 (9th Cir. 1990) (en banc),
rev’d on other grounds, Renne v. Geary, 501 U.S. 312 (1991). More recently, the
Supreme Court, in extending First Amendment protection of political speech to
corporations, reaffirmed that “[t]he Court has thus rejected the argument that political
speech of corporations or other associations should be treated differently under the
First Amendment simply because such associations are not ‘natural persons.’”
Citizens United, 130 S. Ct. at 900.2
The threat to infringement of such First Amendment rights is at its greatest
when, as here, the state employs its criminalizing powers. As the Supreme Court
further found in Citizens United, “[i]f the First Amendment has any force, it prohibits
Congress from fining or jailing citizens, or associations of citizens, for simply
engaging in political speech.” 130 S. Ct. at 904. Thus, the Committee has clearly
shown that section 13-35-231, on its face, restricts the Committee’s exercise of its
First Amendment rights.
In her dissent, our respected colleague seems to suggest that a political
party has no independent First Amendment right to free speech beyond the rights
of its constituent members. This position ignores the explicit recognition in
Citizens United that associations have their own free speech rights, separate and
independent from those of their members. See Citizens United, 130 S. Ct. at 904.
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The burden therefore shifts to Montana to attempt to justify the restriction. See
Thalheimer, 645 F.3d at 1116. As a preliminary matter, the Court must determine
what standard it must apply to the assessment of such alleged justifications: “strict
scrutiny” or “balancing.” While the district court applied strict scrutiny, Montana
argues that this Court should apply a balancing test that weighs against the
Committee’s First Amendment rights the state’s Tenth Amendment right to structure
its judicial institutions as it deems fit.
But while the Tenth Amendment preserves to the states the power to regulate
the roles that political parties may play in the design of judicial and other institutions,
that does not imply that the states have similar leeway in placing restrictions upon a
political association’s right to speak. See Eu, 489 U.S. at 222-24 (“A State’s broad
power to regulate the time, place, and manner of elections ‘does not extinguish the
State’s responsibility to observe the limits established by the First Amendment rights
of the State’s citizens.’” (quoting Tashjian v. Republican Party of Conn., 479 U.S.
208, 217 (1986))); Geary, 911 F.2d at 288 (Reinhardt, J., concurring) (“[T]here is all
the difference in the world between refusing to delegate to political parties the
decision as to which candidates appear on the general-election ballot and prohibiting
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political party organizations from announcing their views on the merits of candidates
seeking public office.”).
Thus, we find that because the statute here at issue is, on its face, a
content-based restriction on political speech and association, and thereby threatens to
abridge a fundamental right, it is “subject to strict scrutiny, which requires the
Government to prove that the restriction ‘furthers a compelling interest and is
narrowly tailored to achieve that interest.’” Citizens United, 130 S. Ct. at 882
(quoting Fed. Election Comm’n v. Wis. Right To Life, Inc., 551 U.S. 449, 464 (2007));
see also Geary, 911 F.2d at 283 (applying strict scrutiny in striking down California’s
ban on political party endorsements of candidates for nonpartisan office).3
Compelling Interest and Narrow Tailoring
The district court found, and the parties do not here dispute, that Montana has
a compelling interest in maintaining a fair and independent judiciary. Where Montana
and the district court err, however, is in supposing that preventing political parties
from endorsing judicial candidates is a necessary prerequisite to maintaining a fair and
independent judiciary. See United States v. Alvarez, 132 S. Ct. 2537, 2549 (2012)
For similar reasons we reject Montana’s argument that a balancing test
should be applied to weigh the competing constitutional concerns of Appellants’
First Amendment rights of speech and association against potential litigants’ due
process interests in a fair and impartial judiciary.
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(“The First Amendment requires that the Government’s chosen restriction on the
speech at issue be ‘actually necessary’ to achieve its interest.”); R.A.V. v. City of St.
Paul, 505 U.S. 377, 395 (1992) (“[T]he danger of censorship presented by a facially
content-based statute requires that that weapon be employed only where it is
necessary to serve the asserted compelling interest.” (internal quotation marks and
citations omitted)). Montana offers no evidence to support this facially doubtful
proposition, and it flies in the face of the fact that many of the other 38 states that elect
their judges not only allow party endorsements but require party nominations.4 Nor
does Montana suggest that, as a result, the judiciaries of these other states lack fairness
or integrity. See Republican Party of Minn. v. White, 536 U.S. 765, 796 (2002)
(Kennedy, J., concurring) (“Many [elected state judges], despite the difficulties
imposed by the election system, have discovered in the law the enlightenment,
instruction, and inspiration that make them independent-minded and faithful jurists
of real integrity.”). It may be, of course, that Montana reasonably believes that
restricting political endorsements of judicial candidates enhances the independence
of its judiciary; but such supposed “best practices” are not remotely sufficient to
survive strict scrutiny.
For a summary of which states require partisan elections, see Roy A.
Schotland, New Challenges to States’ Judicial Selection, 95 Geo. L.J. 1077, 1085
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Under a strict scrutiny standard, therefore, Montana lacks a compelling interest
in forbidding political parties from endorsing judicial candidates. Moreover, even if
it were otherwise, section 13-35-231 is not narrowly tailored to this end.
To begin with, the existence of content-neutral alternatives “‘undercut[s]
significantly’ any defense of such a statute.” R.A.V., 505 U.S. at 395 (quoting Boos
v. Barry, 485 U.S. 312, 329 (1988)) (alteration in original). If Montana were
concerned that party endorsements might undermine elected judges’ independence,
Montana could appoint its judges, with a bipartisan and expert panel making
nominations—a less restrictive alternative currently practiced by several states.
This is not to say, obviously, that Montana’s decision to elect its judges is
impermissible.5 But if Montana “chooses to tap the energy and the legitimizing power
of the democratic process, it must accord the participants in that process . . . the First
Amendment rights that attach to their roles.” White, 536 U.S. at 788 (quoting Renne,
501 U.S. at 349 (Marshall, J., dissenting)) (alteration in original); see also Renne, 501
We disagree with the dissent’s suggestion that affording political parties
their full First Amendment rights inevitably requires that judicial elections be
treated no differently than elections for the political branches. Montana’s decision
to exclude parties from the nomination and balloting process for judicial candidates
remains a valid choice to limit party involvement in judicial institutions. See Mont.
Code Ann. § 13-14-111. Contrary to the dissent, we do not see how a political
party, in the absence of a role in the nomination and balloting process, is materially
different from any other interest group that is permitted under Montana law to
endorse a judicial candidate.
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U.S. at 349 (Marshall, J., dissenting) (“[T]he prospect that voters might be persuaded
by party endorsements is not a corruption of the democratic process; it is the
democratic process.”). To hold otherwise would turn “First Amendment jurisprudence
on its head.” White, 536 U.S. at 781.6
Furthermore, section 13-35-231, while not narrowly tailored to achieve its ends,
is at the same time under-inclusive, in that it forbids judicial endorsements by political
parties but not by other associations, individuals, corporations, special interest groups,
and the like. As noted by the Eighth Circuit in Republican Party of Minn. v. White
There are numerous other organizations whose purpose is to work at
advancing any number of similar goals, often in a more determined way
than a political party. Minnesota worries that a judicial candidate’s
consorting with a political party will damage that individual’s
impartiality or appearance of impartiality as a judge, apparently because
she is seen as aligning herself with that party’s policies or procedural
goals. But that would be no less so when a judge as a judicial candidate
aligns herself with the constitutional, legislative, public policy and
procedural beliefs of organizations such as the National Rifle
Association (NRA), the National Organization for Women (NOW), the
Christian Coalition, the NAACP, the AFL-CIO, or any number of other
political interest groups.
While, as the dissent notes, White concerned the unconstitutionality of
limits on a judge’s speech during a judicial election, nothing in the majority
opinion in White suggests that laws limiting speech by parties differ from laws
limiting speech by candidates. In both cases, the First Amendment requires strict
scrutiny of such limitations, and for the reasons here explained the challenged
statute criminalizing party political speech does not withstand strict scrutiny.
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416 F.3d 738, 759 (8th Cir. 2005). Such under-inclusivity “diminish[es] the credibility
of the government’s rationale for restricting speech.” City of Ladue v. Gilleo, 512
U.S. 43, 52 (1994).
In short, Montana has shown neither that section 13-35-231 is necessary to
achieve a compelling state interest nor that it is narrowly and rationally tailored to that
With judicial elections imminent in Montana, and the candidates already
selected and announced, the need for immediate injunctive relief enjoining Montana
from prohibiting and penalizing political parties’ endorsements of judicial candidates
is apparent. Nevertheless, the district court, in denying preliminary relief, pointed to
the dearth of evidence before it and held that it ought not decide issues of such
“fundamental and far-reaching import” without a complete record. True, the matter
is of great importance, but as noted, the statute here is facially unconstitutional, and
the burden then shifts to the state to try to justify the statute, either by evidence or
argument, which, as shown above, it has failed to do. In such circumstances, and with
the Committee’s First Amendment rights being chilled daily, the need for immediate
injunctive relief without further delay is, in fact, a direct corollary of the matter’s great
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importance. Indeed, the fact that the Committee will otherwise suffer irreparable harm
is demonstrated by “a long line of precedent establishing that ‘[t]he loss of First
Amendment freedoms, for even minimal periods of time, unquestionably constitutes
irreparable injury.’” Thalheimer, 645 F.3d at 1128 (quoting Klein v. City of San
Clemente, 584 F.3d 1196, 1208 (9th Cir. 2009)). When, as here, a party seeks to
engage in political speech in an impending election, a “delay of even a day or two may
be intolerable.” Klein, 584 F.3d at 1208 (citation omitted). We conclude that the
Committee would suffer irreparable injury if a preliminary injunction were not
III. BALANCE OF HARDSHIPS
Given the foregoing, it is patent that the hardships to the Committee from not
issuing the injunction outweigh the cognizable hardship (if any) to the state from
issuing the injunction. The Committee seeks to publicly endorse two judicial
candidates in this year’s election, and, if prohibited by law from doing so, its free
speech rights will be lost forever. Nor is the harm from this ban on speech limited to
the political parties it explicitly addresses. In Alvarez, Justice Breyer warned that “the
threat of criminal prosecution . . . can inhibit the speaker from making [protected]
statements, thereby ‘chilling’ a kind of speech that lies at the First Amendment’s
heart.” 132 S. Ct. at 2553 (Breyer, J., concurring) (citing Gertz v. Welch, 418 U.S.
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323, 340-341 (1974)). Here, the Committee’s “members have often been afraid to
even discuss at its meetings topics relating to judicial candidates so as to avoid even
the appearance of endorsing any of them.” Montana’s threat of prosecution has thus
had a “chilling” effect, radiating from the disfavored speaker to untargeted individuals
and plainly protected speech.
If Montana is preliminarily enjoined from enforcing the statute, it would suffer
if there were any way to save the statute from being declared unconstitutional. But,
as we have already shown, there is none, for the statute is unconstitutional on its face,
and the state’s proffered justifications, even if construed most favorably to the state,
cannot survive strict scrutiny. Montana, in short, can derive no legally cognizable
benefit from being permitted to further enforce an unconstitutional limit on political
speech. Cf. Allee v. Medrano, 416 U.S. 802, 814 (1974) (upholding injunction
preventing police harassment as doing no more than “requir[ing] the police to abide
by constitutional requirements”). Because we find that Montana’s ban on party
endorsements of judicial candidates offends the First Amendment, we conclude that
the balance of hardships favors the Appellant.
IV. PUBLIC INTEREST
The Winter test also asks us also to consider the public interest. See Winter,
555 U.S. at 24. But here we view public interest factors as subsumed within our
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analysis of likelihood of success on the merits, irreparable injury, and balance of
hardships. See, e.g., Klein, 584 F.3d at 1207-08 (addressing irreparable injury,
balance of hardships, and public interest elements in tandem). We conclude that the
public interest here favors the requested injunction.
For the foregoing reasons, we conclude that, because section 13-35-231 is
unconstitutional on its face, Montana must be enjoined forthwith from enforcing it or
otherwise interfering with a political party’s right to endorse judicial candidates and
to expend monies to publicize such endorsements. The mandate will issue forthwith,
and the case is otherwise remitted to the district court for further proceedings
consistent with this Opinion.
REVERSED AND REMANDED.
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Matthew G. Monforton, Bozeman, Montana, for Plaintiff-Appellant.
Steven Bullock, Montana Attorney General, Michael G. Black (argued) and Andrew
I. Huff, Montana Assistant Attorneys General, Helena, Montana, for DefendantsAppellees.
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