Mark French v. Blair Jones

Montanans select their judges through nonpartisan

popular elections. In an effort to keep those elections

nonpartisan, Montana has restricted judicial-campaign

speech. One of those restrictions is before us—a rule that

prohibits candidates from seeking, accepting, or using

political endorsements in their campaigns. Mark French, a

judicial candidate who wishes to seek and use such

endorsements, claims that Montana’s rule violates his First

Amendment rights. Montana argues that the rule is narrowly

tailored to ensuring the impartiality and independence of

Montana’s judiciary. The district court upheld the statute,

and we agree. In light of the Supreme Court’s decision in

Williams-Yulee v. Florida Bar, 135 S. Ct. 1656 (2015), and

our decision in Wolfson v. Concannon, 811 F.3d 1176 (9th

Cir. 2016) (en banc), we affirm the judgment.

I

Montana has declared that “[a]n independent, fair, and

impartial judiciary is indispensable to [its] system of justice.”

Mont. Code of Judicial Conduct, Preamble (2009). Although

that statement of principle must be universally acknowledged,

American jurisdictions have chosen different means to secure

it. See The Federalist No. 78, at 465 (C. Rossiter ed. 1961)

(A. Hamilton) (arguing for the appointment of judges). Since

1935, Montana has decided to select its judges through

nonpartisan popular elections. See Mont. Code Ann. § 13-14-

111. Recognizing that mixing politics with judging could

lead to injustice, Montana has prohibited all judges and

candidates for judicial office from “engag[ing] in political or

6 FRENCH V. JONES

campaign activity that is inconsistent with the independence,

integrity, or impartiality of the judiciary.” Mont. Code of

Judicial Conduct Canon 4. That broad prohibition applies to

such activities as holding an office in or making speeches on

behalf of a political organization, publicly endorsing political

candidates, publicly identifying oneself as a political

candidate, and otherwise using the names of political parties

in judicial campaigns.1 Id. Rule 4.1; Mont. Code Ann. § 13-

10-602(2).

Only one restriction is at issue here. Rule 4.1(A)(7) of the

Montana Code of Judicial Conduct provides: “[A] judge or

judicial candidate shall not . . . seek, accept, or use

endorsements from a political organization, or partisan or

independent non-judicial office-holder or candidate . . . .”2

Mont. Code of Judicial Conduct Rule 4.1(A)(7). The Code

defines a “political organization” as “a political party or other

group sponsored by or affiliated with a political party or

candidate, the principal purpose of which is to further the

election or appointment of candidates for political office.” Id.

Terminology. If a judge or judicial candidate violates this

endorsement provision, the Montana Judicial Standards

Commission “shall recommend . . . the censure, suspension,

1 Montana is not alone in restricting the political speech of judges and

judicial candidates. As of 2012, “[t]hirty-nine states have judicial

elections, and nearly all have enacted laws to treat judicial elections

differently from political elections.” Sanders Cty. Republican Cent.

Comm. v. Bullock, 698 F.3d 741, 750 (9th Cir. 2012) (Schroeder, J.,

dissenting).

2 Montana does not, however, prohibit political parties or

organizations from endorsing judicial candidates. See Sanders Cty.,

698 F.3d at 749.

FRENCH V. JONES 7

removal, or disability retirement of the judicial officer.”

Mont. Code Ann. § 3-1-1106(3).

In 2014, Mark French ran as a candidate for justice of the

peace in Sanders County. The Sanders County Republican

Central Committee endorsed French’s candidacy, and two

prominent Republican officeholders were willing to consider

doing so if French had asked. Afraid of violating Rule

4.1(A)(7), French refrained from seeking or using these

endorsements in his campaign. He ultimately lost the

election, but intends to run again in 2018. Although French

would like to seek and use political endorsements during the

next election cycle, he understands that he cannot do so as

long as Rule 4.1(A)(7) remains in place.

French filed this action claiming that Rule 4.1(A)(7)

violates his First Amendment rights and asking that the court

enjoin its enforcement. The district court rejected French’s

argument and entered summary judgment against him. We

review that decision de novo. See McIndoe v. Huntington

Ingalls Inc., 817 F.3d 1170, 1173 (9th Cir. 2016).

II

The First Amendment, applicable to the states through the

Fourteenth Amendment, prohibits the government from

“abridging the freedom of speech.” U.S. Const. amend. I;

Stromberg v. California, 283 U.S. 359, 368 (1931)

(incorporating “the right of free speech” into the Due Process

Clause of the Fourteenth Amendment). Content-based

restrictions on judicial-campaign speech are subject to strict

scrutiny under the First Amendment. See Republican Party

of Minn. v. White (“White I”), 536 U.S. 765, 774 (2002)

(assuming strict scrutiny applies); Wolfson, 811 F.3d at 1180

8 FRENCH V. JONES

(holding that strict scrutiny applies). To survive strict

scrutiny, the government must show that “the restriction

‘furthers a compelling interest and is narrowly tailored to

achieve that interest.’” Citizens United v. Fed. Election

Comm’n, 558 U.S. 310, 340 (2010) (citation omitted). “‘[I]t

is the rare case’ in which a State demonstrates that a speech

restriction is narrowly tailored to serve a compelling interest

. . . . But those cases do arise.” Williams-Yulee, 135 S. Ct. at

1665–66 (citations omitted); see also Adarand Constructors,

Inc. v. Pena, 515 U.S. 200, 237 (1995) (“[W]e wish to dispel

the notion that strict scrutiny is ‘strict in theory, but fatal in

fact.’” (citation omitted)).

Before determining whether Rule 4.1(A)(7) is narrowly

tailored to achieve a compelling state interest, we must

examine the development of First Amendment law in this

murky area of judicial-campaign speech. The Supreme Court

has addressed restrictions similar to Rule 4.1(A)(7) on two

occasions—in White I and Williams-Yulee—providing mixed

guidance on the proper analytical framework and producing

some tension among the lower courts. We have addressed

that tension in our en banc decision in Wolfson. Despite the

confusion, we discern a clear shift in favor of state

regulation—a shift that renders many of French’s and his

amicus curiae’s arguments no longer persuasive.

A

1

We begin our survey with White I. The Supreme Court

there reviewed a Minnesota restriction on judicial elections

that prohibited a candidate from “announc[ing] his or her

views on disputed legal or political issues,” a prohibition that

FRENCH V. JONES 9

at the very least precluded “a judicial candidate from stating

his views on any specific nonfanciful legal question within

the province of the court for which he [was] running.” White

I, 536 U.S. at 768, 773 (citation omitted). The majority began

by identifying a potential compelling interest Minnesota

might have had in imposing the restriction: preserving both

the actual and perceived impartiality of the state judiciary.

Id. at 775–76. The Court warned, however, that speaking of

the need for an impartial judiciary in general terms would not

do; instead, it was necessary to pinpoint the precise meaning

of the term “impartial.” Id. at 775. The majority offered

three definitions. Id. at 775–84.

First, the term could mean a “lack of bias for or against

either party to the proceeding.” Id. at 775. But if that is what

impartiality meant, the majority reasoned, the restriction was

not narrowly tailored because it “[did] not restrict speech for

or against particular parties, but rather speech for or against

particular issues.” Id. at 776. Second, impartiality could

mean a “lack of preconception in favor of or against a

particular legal view.” Id. at 777. The Court held, however,

that preserving such impartiality was not a compelling state

interest because “[p]roof that a Justice’s mind at the time he

joined the Court was a complete tabula rasa in the area of

constitutional adjudication would be evidence of lack of

qualification, not lack of bias.” Id. at 778 (citation omitted).

Finally, “[a] third possible meaning of ‘impartiality’ . . .

might be described as open-mindedness.” Id. “This sort of

impartiality seeks to guarantee each litigant, not an equal

chance to win the legal points in the case, but at least some

chance of doing so.” Id. While recognizing that the state’s

desire to ensure the open-mindedness of its judges might be

compelling, the Court could not accept that Minnesota’s

restriction was tailored to address this concern because it was

10 FRENCH V. JONES

“so woefully underinclusive.” Id. at 780. Indeed,

“statements in election campaigns are . . . an infinitesimal

portion of the public commitments to legal positions that

judges (or judges-to-be) undertake,” for example, in legal

opinions, public lectures, law review articles, and books. Id.

at 779. Because the restriction did not address such other

public commitments, the Court concluded that the purpose

behind the restriction was “not openmindedness in the

judiciary, but the undermining of judicial elections.” Id. at

782.

In the aftermath of White I, few regulations of judicialcampaign

speech withstood strict scrutiny. One of the most

important decisions of that period, for our purposes, is the

Eighth Circuit’s decision on remand from White I regarding

the validity of a Minnesota restriction that was almost

identical to Montana’s Rule 4.1(A)(7). See Republican Party

of Minn. v. White (“White II”), 416 F.3d 738, 745 (8th Cir.

2005) (en banc). Minnesota prohibited judges or judicial

candidates from “identify[ing] themselves as members of a

political organization,” “attend[ing] political gatherings,” or

“seek[ing], accept[ing] or us[ing] endorsements from a

political organization.” Id. (quoting 52 Minn. Stat. Ann.,

Code of Judicial Conduct, Canon 5, subd. (A)(1)). The court

referred to the restriction as the “partisan-activities” clause.

Id.

Sitting en banc, a majority of the Eighth Circuit hewed

closely to White I’s framework, identifying the three

meanings of judicial impartiality discussed in the Supreme

Court’s decision and then analyzing whether any of these

interests justified the restriction. Id. at 751–66. As to the

first two meanings of impartiality—lack of party bias and

preconception toward a particular legal view—the court

FRENCH V. JONES 11

adopted the Supreme Court’s analysis, reasoning that the

restriction involved in White I was not all that different from

a restriction on associating with a particular political group.

Id. at 753–56. And as to the third type of impartiality—

judicial open-mindedness—the court thought that, like the

restriction in White I, the partisan-activities clause was

“woefully underinclusive.” Id. at 756. The clause prohibited

“associative activities with a political party during a

campaign,” but not at any time before that. Id. at 758. More

important still, the court continued, “it ma[de] little sense for

the state to restrict [associational] activity only with political

parties,” but not with interest groups such as the National

Rifle Association, the National Organization for Women, and

the Christian Coalition, which could potentially harm judicial

open-mindedness to the same extent. Id. at 759. And

although the court acknowledged that treating political parties

differently might be “justified given political parties’

‘powerful machinery,’ including a large membership, to

enforce adherence to their views,” it countered that some

Minnesota parties—such as the Constitution Party, the

Natural Law Party, and the Green party—have “a more

limited membership” and focus on “only a few issues.” Id. at

760–61 n.12 (citation omitted). The court struck the partisanactivities

clause under the First Amendment. Id. at 766.

Other courts, including ours, followed the lead of White

I and II and invalidated similar speech restrictions. In

Sanders County, we ruled unconstitutional a Montana statute

that made it a criminal offense for any political party to

“endorse, contribute to, or make an expenditure to support or

oppose a judicial candidate.” 698 F.3d at 744 (citing Mont.

Code Ann. § 13-35-23). We accepted as true that “Montana

has a compelling interest in maintaining a fair and

independent judiciary,” but held that the statute was

12 FRENCH V. JONES

underinclusive because it forbade “judicial endorsements by

political parties but not by other associations, individuals,

corporations, special interest groups and the like.” Id. at

746–47 (quoting and relying on White II’s discussion of

underinclusivity). The panel majority also found no evidence

that “preventing political parties from endorsing judicial

candidates is a necessary prerequisite to maintaining a fair

and independent judiciary,” especially given that many states

“not only allow party endorsements but require party

nominations.” Id. at 746. “If Montana were concerned that

party endorsements might undermine elected judges’

independence,” the court concluded, “Montana could appoint

its judges, with a bipartisan and expert panel making

nominations—a less restrictive alternative currently practiced

by several states.” Id. at 747.3

2

The strict First Amendment framework of White I

underwent significant changes with the Supreme Court’s

decision in Williams-Yulee. Before the Court was a challenge

to Florida’s solicitation restriction, which prohibited judicial

candidates from personally soliciting funds but allowed them

to establish committees to do so for them. Williams-Yulee,

135 S. Ct. at 1663. The restriction was very similar to those

invalidated by the Eighth Circuit in White II and the Sixth

3 Other circuits used analogous reasoning to strike various restrictions

on judicial-campaign speech under White I. See Carey v. Wolnitzek,

614 F.3d 189, 201–07 (6th Cir. 2010) (invalidating Kentucky’s regulations

prohibiting judicial candidates from personally soliciting campaign funds

and identifying themselves as members of political parties); Siefert v.

Alexander, 608 F.3d 974, 981–83, 990 (7th Cir. 2010) (striking

Wisconsin’s statute prohibiting judicial candidates from being members

of political parties).

FRENCH V. JONES 13

Circuit in Carey v. Wolnitzek, 614 F.3d 189, 201–07 (6th Cir.

2010). Employing reasoning that contrasted sharply with

White I, the Supreme Court upheld the regulation.

The Court began by “hold[ing] . . . what [it] assumed in

White: A State may restrict the speech of a judicial candidate

only if the restriction is narrowly tailored to serve a

compelling interest.” Id. at 1665 (plurality opinion).4 The

Court then found that Florida had a compelling interest in

“protecting the integrity” of its judiciary and “maintaining the

public’s confidence in an impartial judiciary.” Id. at 1666

(citation omitted). In contrast to White I, however, the Court

did not attempt to define precisely what judicial integrity or

impartiality means. Instead, it emphasized that “[t]he concept

of public confidence in judicial integrity does not easily

reduce to precise definition, nor does it lend itself to proof by

documentary record. But no one denies that it is genuine and

compelling.” Id. at 1667. “Unlike the executive or the

legislature, the judiciary ‘has no influence over either the

sword or the purse . . . .’ The judiciary’s authority therefore

depends in large measure on the public’s willingness to

respect and follow its decisions.” Id. at 1666 (quoting The

Federalist No. 78, at 465).

After accepting Florida’s general interest in judicial

impartiality, the Court considered the argument made in

every case discussed above: the restriction was fatally

4 Chief Justice Roberts’s opinion on the point commanded only a

plurality of the Court. See id. at 1673 (Ginsburg, J., concurring in part and

concurring in the judgment). The dissenting justices, however, agreed

with the plurality on this point. Id. at 1676 (Scalia, J., dissenting); see id.

at 1682 (Kennedy, J., dissenting) (largely agreeing with Justice Scalia’s

analysis); id. at 1685 (Alito, J., dissenting) (same).

14 FRENCH V. JONES

underinclusive. Id. at 1668. The challenger argued that

underinclusivity arose because Florida permitted indirect

solicitations through committees and the writing of thank-you

notes, which ensured that candidates knew the identity of

donors. Id. In the pre-Williams-Yulee world, these arguments

successfully convinced courts to invalidate similar

solicitation clauses. See Carey, 614 F.3d at 205 (“Although

the candidate himself may not solicit donations, his campaign

committee may. . . . That leaves a rule preventing a candidate

from sending a signed mass mailing to every voter in the

district but permitting the candidate’s best friend to ask for a

donation directly from an attorney who frequently practices

before the court. Are not the risks of coercion and undue

appearance far less with the first (prohibited) solicitation than

the second (permitted) one?”); White II, 416 F.3d at 765–66.

But the Court flatly rejected these arguments. Williams-

Yulee, 135 S. Ct. at 1668. “It is always somewhat

counterintuitive to argue,” the Court reasoned, “that a law

violates the First Amendment by abridging too little speech.”

Id. And although underinclusivity might indicate that the law

does not advance a compelling state interest, “the First

Amendment imposes no freestanding ‘underinclusiveness

limitation.’” Id. (citation omitted). “A State need not address

all aspects of a problem in one fell swoop; policymakers may

focus on their most pressing concerns.” Id. Florida’s

prohibition on only personal solicitations did precisely that.

Despite the fact that a candidate’s campaign committee could

solicit funds on behalf of the candidate, “Florida . . . ha[d]

reasonably concluded that solicitation by the candidate

personally creates a categorically different and more severe

risk of undermining public confidence.” Id. at 1669.

Similarly, while permitting candidates to write thank you

notes might “heighten[] the likelihood of actual bias by

FRENCH V. JONES 15

ensuring that judicial candidates know who supported their

campaigns, and ensuring that the supporter knows that the

candidate knows,” the compelling interest in an impartial

judiciary “is implicated most directly by the candidate’s

personal solicitation itself.” Id.

Having dispensed with the argument that Florida

prohibited too little speech, the Court turned to whether the

solicitation provision restricted too much. Id. at 1670–71.

The challenger argued that her method of soliciting

funds—mass mailing—presented such a small threat to the

public confidence in the judiciary that Florida’s provision was

unconstitutionally overinclusive. Id. at 1671. Concluding it

was not, the Court emphasized that the restriction must be

only narrowly tailored, not “perfectly tailored,” because “the

First Amendment does not confine a State to addressing evils

in their most acute form.” Id. (citation omitted). The Court

declined to “wade into [the] swamp” of unworkable line

drawing, respecting Florida’s conclusion “that all personal

solicitations by judicial candidates”—no matter what form

they take—“create a public appearance that undermines

confidence in the integrity of the judiciary.” Id.

Accordingly, the Court ruled the solicitation provision a

16 FRENCH V. JONES

permissible restriction under the First Amendment.5 Id. at

1673.

Williams-Yulee marked a palpable change in the approach

to state regulations of judicial-campaign speech—a change

perhaps best exemplified by our unanimous en banc decision

in Wolfson. Wolfson involved two Arizona restrictions on

judicial speech similar to that before us: a prohibition on

public endorsements of political candidates, via monetary

contributions or otherwise, and a restriction on political

campaigning generally. Wolfson, 811 F.3d at 1178–79 &

nn.2–3. In upholding these provisions, we relied almost

exclusively on Williams-Yulee. Id. at 1180–86. We first

identified a broad compelling interest in preserving public

confidence in the judiciary’s integrity without going through

the interest analysis conducted in White I. Id. at 1182. We

then addressed and rejected the challenger’s contention that

the restrictions were both under- and overinclusive.

The challenger’s underinclusivity argument was the same

one accepted by the Eighth Circuit in White II and our court

in Sanders County: the restriction was not narrowly tailored

because, among other things, it permitted judicial candidates

to endorse persons and entities other than political candidates.

5 Justice Scalia—the author of White I—wrote the principal dissent.

He faulted the majority for failing to follow White I by permitting Florida

“to invoke hazy concerns about judicial impartiality,” which he thought

were too malleable for a strict scrutiny analysis. Id. at 1677–78 (Scalia,

J., dissenting). He then questioned whether “allowing personal

solicitations would imperil public faith in judges,” given the “coexistence

of judicial elections and personal solicitations for most of our history.” Id.

at 1678. And even if Florida’s prohibition did improve the public

reputation of judges, Justice Scalia reasoned that it would still fail strict

scrutiny because of its under- and overinclusivity. Id. at 1679–82.

FRENCH V. JONES 17

Id. at 1183. But that argument, we held, was no longer

persuasive in light of Williams-Yulee. Id. Although

“Williams-Yulee may have been about a prohibition on direct

candidate solicitations of campaign contributions, . . . the

Supreme Court’s reasoning was broad enough to encompass

underinclusivity arguments aimed at other types of judicial

candidate speech prohibitions such as [the endorsement and

campaign prohibitions].” Id. There was no need to “question

whether Arizona could have . . . prohibited more types of

endorsements or campaign participation” because Arizona

was entitled to focus on only the most pressing concerns

associated with “a judicial candidate actively engag[ing] in

political campaigns.” Id. at 1184.

As to overinclusivity, we acknowledged that Arizona’s

restrictions reached actions that were unlikely to have any

effect on judicial impartiality, such as a judicial candidate’s

endorsement of the President of the United States. Id. But

yet again, “Williams-Yulee forclose[d] [this] argument[].” Id.

Following the lead of the Supreme Court, we declined to

draw “unworkable and unnecessary line[s].” Id. at 1185. It

was simply not “our proper role to second-guess Arizona’s

decision[]” to prohibit judicial candidates from engaging in

political campaigns, even if that prohibition encompassed

“political acts [that] present different levels of impropriety in

different situations.” Id. We therefore held that Arizona’s

restrictions were narrowly tailored to achieve Arizona’s

interest in upholding public confidence in the judiciary. Id.

at 1186.

3

This summary evidences a change in the courts’ approach

to state regulation of nonpartisan judicial elections. Although

18 FRENCH V. JONES

there are several important differences between the cases we

have described, perhaps the most important one of all, at least

for our purposes, is the way in which White I, White II, and

Sanders County, on the one hand, and Williams-Yulee and

Wolfson, on the other, approached the challengers’

underinclusivity arguments. And that difference might be

more fundamental than it seems. According to White I, the

underinclusivity of Minnesota’s restriction revealed that its

underlying purpose was not judicial impartiality, “but the

undermining of judicial elections.” 536 U.S. at 782; see also

Williams-Yulee, 135 S. Ct. at 1681 (Scalia, J., dissenting)

(“[The Florida restriction’s] scope suggests that it has nothing

to do with the appearances created by judges’ asking for

money, and everything to do with hostility toward judicial

campaigning.”). That is, the problem Minnesota faced

stemmed from the very scheme of judicial elections, which

threatened judicial impartiality in and of itself. White I,

536 U.S. at 782 (“[E]lected judges—regardless of whether

they have announced any views beforehand—always face the

pressure of an electorate who might disagree with their

rulings and therefore vote them off the bench.”). Minnesota’s

attempts to address the problem without abandoning its

election scheme served only to deprive voters of relevant

information while failing to eliminate the underlying source

of actual or perceived judicial bias. Id. at 788 (“[T]he greater

power to dispense with elections altogether does not include

the lesser power to conduct elections under conditions of

state-imposed voter ignorance.” (alteration in original)).

Consequently, after White I, a state was left with limited

options in regulating its judicial elections because such

FRENCH V. JONES 19

regulations would be almost always underinclusive.6 That is

why in Sanders County, we considered appointment of judges

a “less restrictive alternative” able to accomplish the state’s

goal of judicial impartiality. 698 F.3d at 747.

But the Williams-Yulee majority viewed things

differently. It saw a middle ground where “policymakers

[could] focus on their most pressing concerns” without

completely eliminating the judicial bias (or perception

thereof) associated with judicial elections generally.

Williams-Yulee, 135 S. Ct. at 1668. In other words, a state

could both abridge some judicial-campaign speech and

preserve its election system—“[t]he First Amendment does

not put a State to [an] all-or-nothing choice.” Id. at 1670.

The Court thus sustained Florida’s prohibition on personal

solicitations, despite the fact that other methods of solicitation

might also undermine judicial impartiality, because a

complete ban would put an end to judicial elections

altogether. Id.; see also id. at 1681 (Scalia, J., dissenting)

(“One cannot have judicial elections without judicial

campaigns, and judicial campaigns without funds for

campaigning, and funds for campaigning without asking for

them.”). As our court in Wolfson held, moreover, this view

of underinclusivity extends not just to restrictions on

campaign contributions but also “encompass[es]

6 We note that White I “neither assert[ed] nor impl[ied] that the First

Amendment requires campaigns for judicial office to sound the same as

those for legislative office.” Id. at 783. But we think it is nonetheless

clear that White I envisioned as permissible only those regulations that

targeted threats to impartiality more salient and direct than those inherent

in a system of judicial elections. For instance, White I thought it plausible

that campaign promises in particular might pose a “special threat to openmindedness”

that could be potentially redressible through regulation. Id.

at 780–81.

20 FRENCH V. JONES

underinclusivity arguments aimed at other types of judicial

candidate speech prohibitions.” 811 F.3d at 1183.

B

Against this background, we turn to Montana’s Rule

4.1(A)(7). As we have already mentioned, it prohibits

judicial candidates like French from “seek[ing], accept[ing],

or us[ing] endorsements from a political organization, or

partisan or independent non-judicial office-holder or

candidate . . . .” Mont. Code of Judicial Conduct Rule

4.1(A)(7). Because Rule 4.1(A)(7) is a content-based

restriction on speech, we may uphold it only if it is narrowlytailored

to achieve some compelling state interest. Wolfson,

811 F.3d at 1180–81.

We discern two such interests here. The first is an interest

in both actual and perceived judicial impartiality. In

Williams-Yulee, the Court noted “the regrettable but

unavoidable appearance that judges who personally ask for

money may diminish their integrity.” 135 S. Ct. at 1667.

Likewise, we note here the regrettable but unavoidable

consequence that judges who personally ask for political

endorsements may diminish the public’s faith in the

impartiality of the judiciary, whether a judge’s actual

impartiality is affected or not. Seeking and using political

endorsements may create the appearance that a judge will

favor certain politicians or political parties and thereby

“undermine the public’s confidence that judges base rulings

on law, and not on party affiliation.” Wolfson, 811 F.3d at

1183, 1186. We need not define Montana’s interest in terms

more specific than these, for “no one denies that [this interest]

is genuine and compelling.” Williams-Yulee, 135 S. Ct. at

1667.

FRENCH V. JONES 21

Rule 4.1(A)(7) furthers a second interest that might be

more compelling still: a related but distinct interest in a

structurally independent judiciary. See Wolfson, 811 F.3d at

1186–88 (Berzon, J., concurring). If judicial candidates,

including sitting judges running for reelection, regularly

solicit and use endorsements from political parties, the public

might view the judiciary as indebted to, dependent on, and in

the end not different from the political branches. One way to

preserve the distance between the judiciary and the political

branches is to place the judiciary on a different footing and do

so in a way that is visible to the public. The federal system

insulates the third branch from partisan activities by

separating judges from the direct-election process. Some

states have followed the federal model; others have adopted

an appointment-and-retention-election model; and still others

have decided on elections.7 These systems have their critics

and their defenders. It is not for us to choose among these

systems because the U.S. Constitution does not prescribe any

particular form for state judicial elections. What is sufficient

for our purposes is to observe that these various models all

treat the selection of judges differently from the processes for

choosing our other public officials. That fact alone separates

the judicial branch from the political branches. Montana has

chosen to structure its third branch differently from the

political branches, and we cannot fault its efforts to reinforce

that choice in the manner in which it elects its judges. The

Federalist No. 78 at 466 (“‘[T]here is no liberty, if the power

of judging be not separated from the legislative and executive

powers.’” (citation omitted)).

7 See Methods of Judicial Selection, NAT’L CTR. FOR ST. CTS.,

http://www.judicialselection.us/judicial_selection/methods/selection_of

_judges.cfm?state= (last visited Oct. 17, 2017).

22 FRENCH V. JONES

French and his amicus curiae nonetheless contend that

Rule 4.1(A)(7) cannot survive strict scrutiny because is

underinclusive, overinclusive, and otherwise insufficiently

tailored to any interests Montana might have. Although these

arguments might have been persuasive in the pre-Williams-

Yulee era, they no longer carry the day. As we explain below,

Rule 4.1(A)(7)’s scope is sufficiently narrowly tailored to

pass muster under the First Amendment.

1

French’s primary claim is that Rule 4.1(A)(7) is fatally

underinclusive. To begin with, French correctly points out

that the rule prohibits candidates from seeking and using

endorsements from political organizations but does not forbid

any interest groups, corporations, and other entities from

making such endorsements. This same argument persuaded

the court in White II to invalidate a provision almost identical

to Rule 4.1(A)(7), 416 F.3d at 758, and was successful in

convincing our court in Sanders County to strike down a

different Montana restriction, 698 F.3d at 747. But White II

and Sanders County were decided before Williams-Yulee

clarified that “the First Amendment imposes no freestanding

‘underinclusiveness limitation’” and that “policymakers may

focus on their most pressing concerns.” 135 S. Ct. at 1668

(citation omitted). Relying on these pronouncements,

Wolfson held that an endorsement provision—one that

prohibited judicial candidates from endorsing individuals

running for a political office—was not invalid simply because

it “allow[ed] judicial candidates to endorse public officials

and non-candidates.” 811 F.3d at 1183. We reached this

conclusion despite the possibility that “Arizona could have

. . . prohibited more types of endorsements or campaign

participation.” Id. at 1184.

FRENCH V. JONES 23

Wolfson’s repudiation of French’s argument aside,

political parties are simply not the same as interest groups

and private individuals. Parties have comprehensive

platforms, take firm positions on a multitude of issues, and

are capable of exerting more influence in an election than

most (if not any) interest groups. The Supreme Court

described the “salient” and “real-world differences between

political parties and interest groups” in McConnell v. Federal

Election Commission:

Interest groups do not select slates of

candidates for elections. Interest groups do

not determine who will serve on legislative

committees, elect congressional leadership, or

organize legislative caucuses. Political parties

have influence and power in the Legislature

that vastly exceeds that of any interest group.

As a result, it is hardly surprising that party

affiliation is the primary way by which voters

identify candidates, or that parties in turn have

special access to and relationships with

federal officeholders.

540 U.S. 93, 188 (2003), overruled on other grounds by

Citizens United, 558 U.S. 310.

Once we turn to Montana’s interest in judicial

independence (as opposed to mere judicial impartiality) the

differences between political parties and interest groups grow

starker. An endorsement from a political party threatens the

public perception of judicial independence to a greater degree

than an endorsement from an interest group. In all cases, an

endorsement suggests the possibility of a quid-pro-quo

exchange in which a judge may rule favorably for the

24 FRENCH V. JONES

endorsing entity. But whereas a judge may only infrequently

encounter litigation implicating an endorsing interest group,

he or she is likely to often face legislation an endorsing

political party has either supported or opposed. Dependence

on an endorsing political party brings into question whether

a judge will be able to independently interpret and review a

given piece of legislation and thus goes to the core of the

separation of powers. For all these reasons, Montana is well

within its authority to focus its immediate concern on

endorsements from political parties.

French next suggests that Rule 4.1(A)(7) is impermissibly

underinclusive because Montana permits candidates to solicit

and use political parties’ money but not their endorsements.

We are not persuaded. Endorsements and campaign

contributions are different kinds of support. An endorsement

is a public and easily communicable show of solidarity.

Although most campaign contributions are also public

information, see Mont. Code Ann. § 13-37-229, they are less

forceful and less easily communicable. Unlike endorsements,

information on campaign contributions typically requires

extra work for voters to access. It would therefore not be

surprising for judicial candidates to derive more value from

endorsements from political parties and popular politicians

(including politicians outside Montana) than from even

sizeable donations. Montana could reasonably conclude that

endorsements are more suggestive of a quid-pro-quo

exchange and pose a greater risk to the public perception of

its judiciary than donations. Thus, we decline to disturb

Montana’s determination that monetary donations “present

markedly different appearance to the public,” Williams-Yulee,

135 S. Ct. at 1669, than a candidate’s use of a political

endorsement.

FRENCH V. JONES 25

French’s remaining reasons for deeming Rule 4.1(A)(7)

unconstitutionally underinclusive are the weakest. French

complains that the rule applies only during campaigns and

only to endorsements from “non-judicial office-holders.” But

in order to create an impartial and independent judiciary, it

makes perfect sense for Montana to prohibit the solicitation

and use of endorsements during (as opposed to before) a

judicial candidate’s campaign and limit those endorsements

to political office holders and entities (as opposed to

nonpartisan judges). It is almost self-evident that the dangers

of actual and perceived bias and dependence are not nearly as

great when the candidate is not yet running for office or when

she uses endorsements from nonpartisan judges. According

to French, Montana may ban the use of endorsements only if

it bans the use of all endorsements from any individuals or

entities at any time. But “[t]he First Amendment does not put

a State to that all-or-nothing choice.” Williams-Yulee, 135 S.

Ct. at 1670.

French’s amicus appears to make an additional

argument—one that was accepted in White II. It goes like

this: A candidate’s discussion of her endorsements with the

public is not all that different from a discussion of other

important issues because a party label is just a “shorthand for

the [numerous] views the candidate holds.” White II,

416 F.3d at 754. And because White I made clear that a

restriction on the candidates’ announcement of views is

woefully underinclusive, a restriction on the use of political

endorsements must be as well. We cannot accept this

argument. The seeking and using of political endorsements

is nothing like announcing one’s views on certain issues. An

endorsement is a thing of value: it may attract voters’

attention, jumpstart a campaign, give assurance that the

candidate has been vetted, or provide legitimacy to an

26 FRENCH V. JONES

unknown candidate and indicate that he or she is capable of

mounting a successful campaign. Such things of value are

usually not given out for free, and even when they are, the

mere perception of quid pro quo in judicial campaigns might

undermine the public’s trust in the impartiality and

independence of its judiciary.

Along these same lines, French’s amicus suggests that

Wolfson is distinguishable because the restriction there

prohibited candidates from speaking about others but not

themselves. While Wolfson did state that “Arizona’s

prohibitions do not prevent judicial candidates from

announcing their views on disputed legal and political

subjects,” Rule 4.1(A)(7) here does not prohibit candidates

from “announcing their views on disputed legal and political

subjects.” 811 F.3d at 1185. Candidates in Montana are still

free to discuss political issues with their electorate. They can

speak on abortion, criminal sentencing, healthcare, gun

control, and dozens of other matters of controversy. What

they cannot do is tell their electorate that a political party has

given their candidacy a valuable stamp of approval. That

restriction is not unconstitutionally underinclusive because it

addresses a very specific concern present whenever a

candidate for a nonpartisan office receives something of value

from a partisan organization.

2

French and his amicus next argue that Rule 4.1(A)(7) is

overinclusive because, unlike the solicitation restriction in

Williams-Yulee, Montana does not allow even the candidates’

campaign committees to seek and use political endorsements.

Mont. Code of Judicial Conduct Rule 4.1(B) (providing that

“[a] judge or judicial candidate shall take reasonable

FRENCH V. JONES 27

measures to ensure that other persons do not undertake, on

behalf of the judge or judicial candidate, any activities

prohibited in paragraph (A)”). But that is hardly a fair

criticism of Rule 4.1(A)(7). Montana’s interests in an

impartial and independent judiciary do not diminish simply

because it is the candidate’s affiliates who go around telling

voters about the political endorsements the candidate has

received. The danger lies in the public losing trust in its

judges from hearing political endorsements; it is irrelevant

whether the candidate or the candidate’s committee delivers

the message.

But even accepting that a committee engaging in

prohibited conduct threatens judicial impartiality and

independence to a lesser degree, the Supreme Court has told

us that “the First Amendment does not confine a State to

addressing evils in their most acute form.” Williams-Yulee,

135 S. Ct. at 1671. Following the lead of Williams-Yulee and

Wolfson, we decline to draw such arbitrary and unnecessary

lines. Id.; Wolfson, 811 F.3d at 1185. Montana has

reasonably determined that both candidates and their

committees pose a threat to its judiciary when they seek,

accept, or use political endorsements in their campaigns.

This “considered judgement[] deserve[s] our respect.”

Williams-Yulee, 135 S. Ct. at 1671.

3

Finally, French asserts that Rule 4.1(A)(7) is generally not

narrowly tailored because Montana has presented no evidence

showing that political endorsements cause harm. Indeed, as

French rightly notes, several states not only allow but require

political endorsements because their judicial elections are

partisan. But neither of these two points defeats Rule

28 FRENCH V. JONES

4.1(A)(7); the Court has not treated judicial elections as an

either/or proposition, requiring any state that chooses to have

judicial elections to conduct them like all other elections. As

to the lack of evidence, the Supreme Court has flatly stated

that “[t]he concept of public confidence in judicial integrity

. . . does [not] lend itself to proof by documentary record.”

Id. at 1667. Montana need not present empirical evidence of

something as abstract as a decrease in actual or perceived

judicial impartiality and independence for its rule to survive

strict scrutiny. And as to the point regarding states with

partisan judicial elections, neither Williams-Yulee nor

Wolfson so much as thought about invalidating restrictions

designed to preserve nonpartisanship in judicial elections

simply because there are some states that have partisan

elections and appear to be doing just fine. If that fact alone

were sufficient to invalidate a restriction on judicialcampaign

speech, then nonpartisan judicial elections could be

themselves deemed unconstitutional. We decline to reach

such a result.

Although French suggests that eliminating judicial

elections altogether would be a less restrictive means to

accomplishing Montana’s stated goals, Williams-Yulee and

Wolfson foreclose that suggestion. Those cases confirm that

the states have every right to devise and regulate a system of

nonpartisan judicial elections. Williams-Yulee, 135 S. Ct. at

1671; Wolfson, 811 F.3d at 1185. The Constitution does not

demand that the states follow the federal model and appoint

their judges, and if it permits the states to hold partisan

judicial elections, we see no impediment to the states

adopting nonpartisan judicial elections, as Montana has done.

* * *

FRENCH V. JONES 29

We hold that Montana has compelling interests in an

impartial and independent judiciary. Rule 4.1(A)(7) is

narrowly tailored to those interests because it strikes an

appropriate balance between a candidate’s speech and

Montana’s interest in an independent and impartial judiciary.

French’s arguments to the contrary are foreclosed by the

Supreme Court’s decision in Williams-Yulee and our decision

in Wolfson.

AFFIRMED.