The Grab for the Gavel: Are Judicial Races in Kentucky Headed Down the Road of Party Politics?

by: Chris Stewart

On Wednesday, October 29, 2014, federal Judge Amul R. Thapar upheld the right of two Kentucky judicial candidates to associate with political parties in their campaigns. In doing so, Judge Thapar overruled three sections of the Kentucky Code of Judicial Conduct. The opinion is not clear as to whether this ruling applies to all judicial races, or only those of the named plaintiffs, Robert Winter and Cameron Blau. One thing is clear, however: since 2010, the federal courts have set into motion a process which will likely result in a head-on collision between right to free speech and the Kentucky State Constitution’s requirement of nonpartisan judicial elections.

The Supreme Court of Kentucky prescribes rules for judicial elections – which are nonpartisan positions – in its Code of Judicial Conduct. The canons Winter and Blau challenged prohibit candidates from campaigning as partisan party members or advertising their party affiliation in a way which might mislead voters.

Challenges to the judicial canon's ban on partisan campaigning date back to the 2010 case of Carey v. Wolnitzek. In Carey, a federal appellate court struck down a similar canon which prohibited judicial candidates from disclosing their party affiliation in any form of advertising as well as when speaking to a gathering. The court held that, while Kentucky has a compelling interest in preserving an unbiased judiciary both in fact and appearance, those exact canons were too broad under the First Amendment's guarantee of the right to free speech.

The Kentucky Supreme Court changed the rules to allow candidates to associate with political parties, but still prohibited candidates from campaigning as a party member. The distinction is subtle, and Judge Thapar noted it would be difficult for a candidate to know which potential statements were prohibited without first making the statements and potentially subjecting the speaker to sanction.

In this most recent challenge, Robert Winter, a candidate for circuit court judge in Kenton County, sent out mailers identifying himself as a Republican candidate and his opponent as a Democratic candidate. Afterward, the Judicial Conduct Commission received three complaints that Winter violated the new canon because his mailer made it appear that the election was partisan.  Judge Thaper then issued a ruling stopping the enforcement of the party affiliation rules in this election cycle. 

Given Judge Thapar’s opinion, and the clash between First Amendment rights and the goal of a nonpartisan judiciary, it seems that judicial elections in Kentucky are becoming more and more partisan.

(Special thanks to Courtney Bourne for invaluable assistance in the research phase)