In Rule 4.1A(3), the American Bar Association Model Code of Judicial Conduct prohibits judges and judicial candidates from publicly endorsing or opposing a candidate for any public office. Almost all states have a version of this prohibition, and federal and state courts have held that it does not violate the First Amendment. Winter v. Wolnitzek, 834 F.3d 681 (6th Circuit 2016); Platt v. Board of Commissioners on Grievances and Discipline, 894 F.3d 235 (6th Circuit 2018); Siefert v. Alexander, 608 F.3d 974 (7th Circuit 2010); Wersal v. Sexton, 674 F.3d 1010 (8th Circuit); Wolfson v. Concannon, 811 F.3d 1176 (9th Circuit en banc 2016); Inquiry Concerning Vincent, 172 P.3d 605 (New Mexico 2007); In the Matter of Raab, 793 N.E.2d 1287 (New York 2003).
As with all of the code, the prohibition on judges’ endorsing or opposing candidates applies on-line and on social media. Liking or sharing a candidate’s social media posts is considered an endorsement, and liking or sharing others’ support or opposition to a candidate is considered support or opposition by the judge or candidate.
Examples of conduct in support of or in opposition to political candidates for which judges have been disciplined:
A judge publicly opposed President Barack Obama’s re-election, for example, signing letters from an organization called the United States Justice Foundation that stated, “our effort may be all that stands between four more years of Barack Obama in the White House”; and “[w]e sit back and hope that he is defeated in November at our own peril!” Inquiry Concerning Kreep, Decision and order (California Commission on Judicial Performance August 7, 2017).
A judge wore a baseball cap endorsing a judicial candidate. In re Klein, Order (Illinois Courts Commission June 16, 2005).
A judge personally opposed a candidate for township trustee, for example, frequently declaring in newspaper interviews that he would run for township trustee against the candidate if no one else did, saying, “Every potentially good candidate has dropped the ball, and I’m the only one who has picked up the ball. And I will not pass the ball unless it’s to someone who can slam dunk the ball.” In the Matter of Katic, 549 N.E.2d 1039 (Indiana 1990).
A judge gave permission for a campaign sign supporting the sheriff’s re-election to be placed in the yard of his home. In the Matter of McCormick, 639 P.3d 735 (Iowa 2002).
A judge authorized the use of his name in an endorsement for a mayor’s re-election campaign that was published in the local newspaper. Inquiry Concerning Vincent, 172 P.3d 605 (New Mexico 2007).
A judge participated in a party’s phone bank, making calls on behalf of a candidate for the county legislature. In the Matter of Raab, 793 N.E.2d 1287 (New York 2003).
A judge recorded a radio advertisement endorsing a candidate for town justice, authorized the candidate to print the statement in an ad, and sent a letter to the editor of the local newspaper repeating the text of his radio statement. In the Matter of Crnkovich, Determination (New York State Commission on Judicial Conduct November 18, 2002).
A judge signed and issued letters endorsing two candidates for the nomination for the town board in the primary election, praising their abilities and qualifications, asking local residents to “support our entire ticket,” and opposing the nomination and criticizing the campaign of a third candidate. In the Matter of Campbell, Determination (New York State Commission on Judicial Conduct November 12, 2004).
A judge referred to his judicial position in a telephone message requesting voters to support a candidate for lieutenant governor. In the Matter of Koon, 580 S.E.2d 147 (South Carolina 2003).
A judge attended a fund-raising event in support of the county tax assessor’s re-election campaign, introduced the assessor, and urged attendees to vote for her, saying, for example, “She’s the best damn tax assessor collector that we have in this country. And so you’d be making a huge mistake — you’d be making a huge mistake – if you even give any attention to anybody else that runs for that office.” Public Warning of Cox (Texas State Commission on Judicial Conduct December 4, 2020).
A judge authorized the use of his name, title, and likeness on a campaign mailer for a state senate candidate. Public Warning of Cano (Texas State Commission on Judicial Conduct December 13, 2018).
A judge sat in the campaign tent of candidates for mayor and city commissioners. Public Reprimand of Lopez (Texas State Commission on Judicial Conduct June 6, 2018).
A judge wrote a letter to the editor expressing support for a candidate for sheriff. In the Matter of Votendahl, Stipulation, agreement, and order (Washington State Commission on Judicial Conduct April 22, 2011).
A judge made two donations, totaling $350, to the campaign of a candidate for mayor and introduced the candidate at a campaign kick-off rally. In re Bennett, Stipulation, agreement, and order (Washington State Commission on Judicial Conduct April 22, 2022).
A judge attended a political function for a congressional candidate where he personally contributed $75 to the campaign. In re Krouse, Stipulation, agreement, and order of reprimand (Washington State Commission on Judicial Conduct May 5, 2005).
A judicial candidate contributed to a candidate for public office. In the Matter of Cohen, Agreed order of public reprimand (Kentucky Judicial Conduct Commission July 21, 2014).
A judge contributed $525 to the campaign of a candidate for the state house of representatives. Letter of Informal Adjustment to Bourne (Arkansas Commission on Judicial Discipline and Disability September 19, 2014).
A judge conveyed a city council candidate’s request for a contribution to her husband, delivered the campaign literature to him, and personally delivered a check written by her husband on their joint account to the candidate. In the Matter of Prochaska, Reprimand (Nebraska Commission on Judicial Qualifications October 7, 2002).
A judge wrote “on behalf” of his wife on a check he gave to the campaign manager for a candidate for secretary of state at the state party office after stating, “Hi. I’m Dick Sallee. I want to give you $100, but, I want you to put it in my wife’s name because I’m a sitting judge and I’m not supposed to be doing this.” In the Matter of Sallee, 579 N.E.2d 75 (Indiana 1991).
A judge made contributions from his excess campaign funds to seven candidates for public office. In re Shea, 815 So. 2d 813 (Louisiana 2002).
Examples of conduct on social media in support of or in opposition to political candidates for which judges have been disciplined:
A judicial candidate “liked” a Facebook post that endorsed a candidate for public office. In the Matter of Cohen, Agreed order of public reprimand (Kentucky Judicial Conduct Commission July 21, 2014).
On his Facebook page, a judge, for example, liked Donald J. Trump’s Facebook page and posts on the page, posted screenshots of newspaper photos of himself piloting a boat in the Trump Boat Parade, and liked a post regarding a newspaper endorsement of a candidate for U.S. Senate and commented on another post regarding the endorsement. In the Matter of Quinn, Public reprimand (Minnesota Board on Judicial Standards March 9, 2021).
A judge posted on her Facebook page: “Cast your vote in the Senate District 16 Special Election. I will be voting for Angela Turner Lairy! . . . Let’s not lose this seat!” Commission on Judicial Performance v. Clinkscales, 191 So. 3d 1211 (Mississippi 2016).
On her personal Facebook page, a judge publicly endorsed a candidate for county commissioner and the incumbent candidate for the county attorney. Inquiry Concerning Harada, 461 P.3d 869 (Montana 2020).
During his campaign, a judge on his personal Facebook page posted a link to the Facebook page for the campaign of a town council candidate and “liked” a comment to the post by another Facebook user that stated that the candidate “is a good man.” In the Matter of Schmidt, Determination (New York State Commission on Judicial Conduct November 3, 2020).
A judge appeared to endorse a presidential candidate on a Facebook page that identified him as a judge. In the Matter of Johns, 793 S.E.2d 296 (South Carolina 2016).
A judge shared posts on Facebook in support of or opposition to presidential candidates. Lammey (Tennessee Board of Judicial Conduct November 15, 2019).
A judge posted campaign advertisements for candidates for district attorney, mayor, and city commissioner on his Facebook page. Public Reprimand of Lopez (Texas State Commission on Judicial Conduct June 6, 2018).
A judge allowed a photo constituting an endorsement of a candidate for county commissioner to be posted on his Facebook page. Public Warning of Madrid (Texas State Commission on Judicial Conduct April 3, 2019).
A judge publicly endorsed a candidate for director of an electric cooperative and authorized the use of his name, title, and likeness on materials supporting her candidacy in mailings and on social media. In re Oakley, Opinion (Texas Special Court of Review October 25, 2019).
In a Facebook post about then-candidate Donald Trump, a judge asked: “Is the fact that the IRS has audited you almost every year when your peers hardly ever or never have been, something to be proud of? What does that say . . . about your business practices?” In re Kwan, 443 P.3d 1228 (Utah 2019).
