A past and future of judicial elections: the case of Montana.

AuthorJohnstone, Anthony
PositionI. Introduction into IV. A Judicial Election in the Aftermath of Citizens United: Partisanship, Outside Organizations, and Dark Money A. The Setting, p. 47-88

    Judicial elections are approaching their second century in the United States, and they are not going away anytime soon. After the rise of Jacksonian Democracy in the early nineteenth century, and popular calls for increased judicial independence from the political branches, most states hard-wired the election of judges into state constitutions. (1) Despite reform efforts that emerged in the twentieth century and continue today, states that hold judicial elections reliably reject alternative selection methods. Nearly ninety percent of state judges in the United States are subject to election. (2)

    Recent deregulation of campaigns and elections through successful constitutional challenges now has reached 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. These 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. (3)

    Meanwhile, state courts in general, and state supreme courts in particular, remain important players in increasingly polarized debates concerning state law and politics. One-party state legislatures and executive branches, encouraged by historically large legislative margins, (4) test state courts with contentious laws and constitutional questions. In states where a balance of power once encouraged political compromise, the losing party now may resort to litigation. The same moneyed interests that help set the legislative agenda also loom over state courts. Those judges and justices must decide the high-stakes and politically charged cases that follow, knowing their decisions may set the course for their next election campaigns. A moderate judge who does not line up neatly with moneyed interests on one side or the other risks electoral defeat. 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. It follows the new normal in political elections of the Citizens United era. Judicial candidates seeking to interpret the laws are nearly as free to speak on legal and political issues as are the legislative candidates seeking to write the laws. Even in traditionally non partisan judicial elections, political parties may be as free to endorse judicial candidates as they are to endorse political candidates. Campaign-contribution laws limit donations to candidates' campaigns, judicial or political, but face renewed challenges. Corporations and unions are as free to spend unlimited amounts of shareholder and member funds on independent expenditures in judicial campaigns, just as they may in political campaigns. Contributors are free to choose their preferred levels of disclosure by selecting among candidate campaigns, super PACs, or less transparent vehicles. Careful contributors may enjoy significant influence in candidate campaigns--judicial or political--without triggering either a disqualifying conflict or even the obligation to identify themselves.

    Montana's 2014 election for one of two contested seats on the state supreme court exemplifies this new normal. In 2011, the Montana Supreme Court took a lonely stand against this state of affairs by attempting to distinguish Montana's campaigns, including judicial campaigns, from the presidential campaign addressed by the Supreme Court's decision in Citizens United. But that principled stand was short-lived, drawing a quick and brief rebuke from the Supreme Court. Despite state concerns about financial and outside influence on judicial campaigns that date back a century and a half, and their continued relevance to judicial politics today, the Supreme Court so far has refused to grapple with the implications of Citizens United for elected judges.

    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.


    Judicial selection in Montana is both distinct from and representative of its practice across the states. Montana's 150-year-old judiciary began in territorial days, when outside judges appointed in Washington, D.C., produced resentment among Montanans even as these territorial judges helped the new territory develop toward statehood. The state's first constitution responded to this popular resentment by providing for judicial elections. In the Progressive Era, the state adopted typical campaign-finance and nonpartisan election reforms, but only after exceptional agonies of corporate corruption. By the second half of the twentieth century, Montana had joined many other states in reconsidering judicial elections, though it did so through the extraordinary means of popular deliberation through a constitutional convention. Montana, in short, is a microcosm of judicial election reform in the American states.

    1. The Territorial Origins of Montana's Elected Judiciary

      Twenty-five years of territorial status forged Montana's attitude toward its courts. In the gold rush that opened Montana's territorial history, customary miners' courts and the storied vigilantes dispensed civil and criminal justice. (5) Territorial justices, appointed by the President, "owed allegiance to the federal government and to political parties, yet at the same time were not insensitive to pressures within the territory itself." (6) These tensions played out when Territorial Secretary Thomas Meagher, a Union Democrat serving as acting governor, pushed for statehood in 1866 with a constitutional convention and two extraordinary legislative sessions. When a two-member majority of the territorial court, both Republicans, declared the acts of the extraordinary sessions null and void, the state legislature redistricted those justices to the wilderness. Congress responded with a rare nullification of all laws enacted in the extraordinary sessions. To make clear its "irritation toward the Democratic populace of this ill-mannered western province," the Republican Congress also revoked the legislature's judicial districting power and raised the territorial judges' salaries by $1000. (7)

      Once the territorial government settled in, "Montana gained recognition as having one of the most efficient court systems among western territories." (8) Yet territorial justices were "[h]ampered ... by an unfamiliarity with mining law, and by resentment stemming from local political cleavages and the dislike of 'foreign' officials." (9) Despite the quality of some territorial justices, residents chafed at their lack of democratic legitimacy. (10) Montanans complained about "'breaking in' pilgrim Judges from Eastern States who have known nothing of our people, laws and customs." (11) On the eve of the second Montana constitutional convention in 1884, one newspaper editorial captured the popular complaint that

      [t]he President has nominated another carpetbagger for Associate Justice of the Supreme Court of Montana. Seventy-five thousand people in the Territory to make laws for themselves, and a Hoosier sent out from Indiana to tell us what we have done. How long, oh Lord; how long! (12) The proposed 1884 Constitution, the unsuccessful predecessor of the 1889 Constitution that secured statehood, reflected this suspicion of outside influence. In its memorial to Congress, the convention sought statehood to redress "the policy which has so long prevailed of sending strangers to rule over us and fill our offices." (13) The convention's address to voters detailed the grievances. Notably, the address devoted more lines to the Judicial Department than it devoted to the legislative and executive branches combined. The proposed judicial system responded to popular distrust of outsider territorial justices:

      The present system is manifestly wrong again; by it the people have no voice in selecting the judges. They are sent to us from the far off East, probably in deference to the traditional idea that it was from thence all of the "wise men" came.... The character of our litigation is such that, however learned in the law our eastern judge may be, he will find himself much embarrassed in his new field. (14) Under the proposed state constitution, justices would be "elected by the people" for six-year terms, and would be "required to have resided in the State or Territory at least two years prior to their election." (15)

      When Montana finally attained statehood in 1889, the convention's address to voters (16) was shorter, as the Constitution proposed was similar in all its fundamental provisions to the Constitution of 1884, which had been ratified by a large majority. (17) Still, the judicial provisions retained primary importance as the only article specifically recommended in the address: "yet we think in this the judiciary system...

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