By Nate Raymond 

Montana knows Citizens United v. Federal Election Commission. Its state Supreme Court refused to follow the landmark U.S. Supreme Court ruling on corporate spending in elections, only to watch the U.S. Supreme Court reverse the state law in June.

Now Montana has suffered another election-law defeat at the hands of Citizens United, this one removing the state's restrictions on endorsements by political parties in non-partisan judicial elections. In a 2-1 decision on Monday, the 9th Circuit Court of Appeals held that the Montana law violated the First Amendment by criminalizing free speech. U.S. Senior District Judge Jed Rakoff of New York, sitting by designation, said Montana "can derive no legally cognizable benefit from being permitted to further enforce an unconstitutional limit on political speech."

Montana is one of 14 states that hold non-partisan elections for judicial candidates, according to the American Judicature Society. On its face, the 9th Circuit's decision doesn't change the principle of non-partisanship in Montana; according to footnotes in the ruling, the state may still restrict parties from nominating judges or listing their affiliation on the ballot. Nor did the Sanders County Republican Central Committee, which brought the case, challenge Montana's ban on direct contributions to judicial candidates, leaving that law in place as well.

But Matthew Monforton, who represented the Republican group at the 9th Circuit, said the ruling is a game changer. Montana was one of only two states to restrict party endorsements. (South Dakota is the other, Monforton said.) Until now, that bar, enacted in 1935, impeded parties like the Sanders County Republicans from getting involved publicly in races for the Montana Supreme Court, where six of the seven judges "can fairly be considered as liberal," Monforton said. The Sanders County Republicans plan to issue an endorsement by Friday on the most competitive of those contests, he said, between criminal defense lawyer Ed Sheehy and Judge Laurie McKinnon.

Monforton declined to say which candidate the party would endorse. But it's clear the 9th Circuit ruling coupled with the U.S. Supreme Court decision in June is having an impact on the Montana Supreme Court race. On Sheehy's website, he states that before a primary election in June, a Montana company took advantage of the U.S. Supreme Court's recent ruling reversing the state Supreme Court on independent political spending by corporations, mailing literature against him and another candidate and in favor of McKinnon. (Sheehy didn't respond to requests for comment.)

McKinnon said in an email that, as a sitting judge, she's prevented from accepting partisan endorsements. "Personally, I have never given a penny to either side of the political aisle," she said. "I have maintained a long history of neutrality, this decision won't change that."

This type of politicization of judicial elections is exactly what 9th Circuit Judge Mary Schroeder warns about in her dissent from the appeals court's ruling on Monday. Calling the opinion a "big step backwards" for Montana, Schroeder said the majority decision marked the first time a court has permitted political parties to endorse judicial candidates in a state that holds non-partisan elections. "This means parties can work to secure judges' commitments to the parties' agendas in contravention of the non-partisan goal the state has chosen for its selection process," she said.

This is not the first time that federal courts have looked at how state judicial elections are conducted. In 2002, the Supreme Court knocked down a Minnesota law that barred judicial candidates from discussing their views on legal and political issues. In her dissent on Monday, Schroeder contended that the Montana decision would amount to an "unwarranted extension" of that 2002 ruling, and would lead to "political indebtedness."

Some election lawyers said they were not surprised by the 9th Circuit decision, calling it a natural extension of Citizens United and the 2002 Minnesota case. "(Judges) think they're special, and we do too, but not in First Amendment context," said Jan Baran, an election-law specialist at Wiley Rein.

Nevertheless, the Montana ruling continued a slide backwards in attempts to protect the judiciary from political influence, said Bert Brandenburg, the executive director of the Justice at Stake Campaign, a Washington group that is critical of the judicial election process. "It brings Montana another step closer to an environment where judges are pressured to decide cases based on big money and party politics," he said.

In a statement, Montana Attorney General Steve Bullock said he was "extremely disappointed" by the 9th Circuit ruling. "Without a truly independent and nonpartisan judiciary, Montanans may no longer continue to trust the integrity of the legal system they rely on to see that justice is done," he said. A spokeswoman said Bullock's office was reviewing its options for further appellate review.

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