Supreme Court Denies Montana Candidate’s Appeal

High court rejected judicial candidate's request to block a state rule that says he can't seek or use Republican endorsements

By Matt Volz, Associated Press

HELENA – Mark French really wants to tell Montana voters which Republican Party officials have endorsed him in next month’s election, but he won’t be getting any help from the U.S Supreme Court.

The nation’s highest court on Friday rejected the judicial candidate’s request to block a state rule that says he can’t seek or use Republican endorsements in his nonpartisan race.

What he had asked the court — specifically, Justice Anthony Kennedy — to do would disrupt Montana’s 129 judicial elections that already are underway, with early voting having begun Oct. 6, attorneys for the state argued.

French, a tea party advocate with failed campaigns for the Republican nomination for U.S. House in 2010 and GOP Party chairman in 2011, is trying to unseat Donald Strine as Sanders County justice of the peace Nov. 4.

The justice of the peace race, like all judicial elections in Montana, is nonpartisan, which means French is prohibited from labeling himself a Republican or seeking, accepting or using partisan endorsements.

French isn’t seeking to call himself a Republican in the race, but he does want to tout an endorsement from the Sanders County Republican Central Committee, which his wife leads. He also wants to solicit additional endorsements from well-known Republicans in the state.

The Sanders County Republicans committee last year won a lawsuit that allows political parties to endorse judicial candidates, but the rule still stands against the candidates using those endorsements in their campaigns.

French argues the Montana Judicial Code of Conduct preventing him from doing so is a violation of his free-speech rights. He took that argument to federal court in August, seeking an injunction to block the law.

First, he was rejected by U.S. District Judge Sam Haddon, with six of the seven Montana Supreme Court justices asking Haddon to uphold the ban on partisan endorsements.

Next, French was turned back by the 9th U.S. Circuit Court of Appeals, which said an injunction lifting the ban for this election “is not in the public interest.”

So French filed an emergency appeal Tuesday with Kennedy, the justice who wrote the majority opinion in the Supreme Court’s landmark Citizens United case in 2010.

The Citizens United decision allowed corporations and labor unions to spend unlimited amounts in federal elections on the basis that restricting their spending violated those entities’ freedom of speech.

French cited the Citizens United decision throughout his brief and tries to apply it to his own claim that the use of endorsements is a type of political speech that is entitled the highest constitutional protection.

Kennedy wanted to hear what the state had to say about the ban, and he asked the state for a response.

That response, by attorneys James Scheier and Andres Haladay, said French is seeking to turn Montana’s nonpartisan judicial election system into a partisan one while the election is already underway.

French waited too long to file his claim and he should let the legal process play out in the lower courts instead of seeking to throw the current election into turmoil, they said.

Kennedy referred the application to the full court, which denied it without comment.