Conference Call: Judge Election Case Heads to High Court

The following column by Akin Gump associate Troy D. Cahill, featuring a selected petition up for consideration at the Justices’ conference on October 31, appears in today’s edition of Legal Times (available to subscribers here). To see the full list of “petitions to watch” for Friday’s conference, click here.

Elections may have once been solely about a candidate’s ideas. But over the past few decades, they have also been increasingly about money. Whether in search of the mayor’s office or White House, candidates with bigger war chests often seem to prevail at the ballot box.

Judicial campaigns are no different. Once tame, they now often resemble campaigns for legislative and executive positions, complete with television advertising and “Robo-calls,” often thanks to infusions of cash from outside advocacy groups.

At its private conference on Oct. 31, the Supreme Court will consider whether to enter an area that has caught the concern of no less than retired Justice Sandra Day O’Connor, now one of the nation’s leading advocates for reform of judicial elections.

Among the hundreds of petitions up for consideration is a case asking whether, in seeking to level the playing field between disproportionately funded candidates, North Carolina stepped over the First Amendment line. (The case is No. 08-120, Duke, et al. v. Leake, et al. The justices could announce their decision as soon as Nov. 3.)

In 2002, the North Carolina General Assembly enacted the Judicial Campaign Reform Act-a bill meant both “to ensure the fairness of democratic elections in North Carolina” and “to protect the constitutional rights of voters and candidates from the detrimental effects of increasingly large amounts of money being raised and spent to influence the outcome of [judicial] elections.”

The act created the North Carolina Public Campaign Financing Fund, which distributes taxpayer money to eligible candidates who choose to participate in the system. In exchange for public funds, participating candidates must agree to abide by restrictions on both campaign contributions and expenditures.

Under the law, participating candidates also are eligible to receive so-called “rescue funds” when an opposing, privately financed candidate possesses more than a specified amount of money. The act also contains various reporting provisions, designed to ensure the rescue funds scheme can be administered effectively.

In August 2005, W. Russell “Rusty” Duke, a candidate for chief justice of the North Carolina Supreme Court, and an anti-abortion advocacy group challenged several of the provisions under the First Amendment, on grounds they pose a burden to core political speech. (Duke lost the November 2006 election.) Judge W. Earl Britt of the U.S. District Court for the Eastern District of North Carolina dismissed the claim, and the U.S. Court of Appeals for the 4th Circuit affirmed.

The 4th Circuit first concluded that the incentives offered by North Carolina’s public financing system do not unconstitutionally coerce candidates to participate in the program. As for the rescue funds provision, the 4th Circuit concluded that their provision did not burden or chill the speech of nonparticipating candidates or independent entities making expenditures on their behalf.

In their petition for certiorari-filed by James Bopp of the James Madison Center for Free Speech in Indiana-the petitioners argue that the 4th Circuit’s ruling places it “on the wrong side of [a] circuit split” relating to the constitutionality of rescue funds and reporting requirements that accompany such funds.

First, relying on the U.S. Court of Appeals for the 8th Circuit’s decision in Day v. Holahan and the Supreme Court’s recent decision in Davis v. FEC, the petitioners contend that the 4th Circuit erred in concluding that the rescue funds provision does not burden the petitioners’ First Amendment rights. The petitioners also contend that Davis endorsed the rationale of Day and the 4th Circuit’s reliance on conflicting decisions from the 1st, 6th, and 8th circuits warrants a grant of certiorari.

Second, petitioners argue that the reporting requirements of the act create free speech burdens triggering strict scrutiny pursuant to Davis. Moreover, petitioners contend, when examined under strict scrutiny, the reporting requirements neither further nor serve any interest identified by the North Carolina Legislature.

Represented by Alexander Peters of the Office of the North Carolina Attorney General, the respondents contend North Carolina’s public funding program remains in line with similar programs in other states and falls outside the concerns that underlie the decision in Davis.

The respondents further contend that the rescue funds provision does not burden speech and, even if it did, the statute is appropriately tailored to further compelling state interests, such as reducing corruption, assuring the integrity of the courts, and encouraging participation in the program. As for the reporting requirements, the respondents posit that they are not subject to strict scrutiny and must only (and do) bear a substantial relation to an important state interest.

Finally, the respondents contend that petitioners overstate the conflict between the 4th Circuit’s decision and Day or Davis. For all these reasons, respondents contend, the petition does not warrant Supreme Court review. Alternatively, respondents suggest that the most the Supreme Court should do is grant the petition, vacate the 4th Circuit decision, and remand this case for further consideration in light of Davis.

–Troy D. Cahill

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