FILED

FOR PUBLICATION SEP 17 2012

MOLLY C. DWYER, CLERK

UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS

FOR THE NINTH CIRCUIT

SANDERS COUNTY REPUBLICAN No. 12-35543

CENTRAL COMMITTEE,

D.C. No. CV-12-00046 Plaintiff - Appellant,

v. OPINION

STEVEN BULLOCK, in his official capacity as Attorney General for the State of Montana; JAMES MURRY, in his official capacity as the Commissioner for Political Practices for the State of Montana,

Defendants - Appellees.

Appeal from the United States District Court for the District of Montana Charles C. Lovell, Senior U.S. District Judge, Presiding

Argued and Submitted August 31, 2012 Seattle, Washington Before: SCHROEDER and GOULD, Circuit Judges, and RAKOFF, Senior District Judge.*

RAKOFF, Senior District Judge:

Since 1935, Montana has selected its judges through nonpartisan popular

elections. Mont. Code Ann. § 13-14-111. Further to this end, Montana makes it a

criminal offense for any political party to “endorse, contribute to, or make an

expenditure to support or oppose a judicial candidate,” Mont. Code Ann. § 13-35-231,

and individuals who facilitate such activities may also be held criminally liable, Mont.

Code Ann. § 13-35-105. The voters of Montana are thus deprived of the full and

robust exchange of views to which, under our Constitution, they are entitled.

Appellant Sanders County Republican Central Committee (“the Committee”)

seeks to endorse judicial candidates and to enable the expenditures that would make

those views publicly known. The Committee argues that Montana’s ban on political

party endorsements is an unconstitutional restriction of its First Amendment rights of

free speech and association.1 On May 29, 2012, the Committee filed suit against

Montana’s Commissioner of Political Practices James Murry and against Montana’s

Attorney General Steven Bullock seeking injunctive relief and a declaration that the

* The Honorable Jed S. Rakoff, Senior District Judge for the U.S. District Court for the Southern District of New York, sitting by designation. 1 Appellant does not here challenge Montana’s ban on contributions to judicial candidates by political parties. statute is unconstitutional. On June 26, 2012, the district court denied the Committee’s

motion for a preliminary injunction. The Committee appeals that decision and seeks

immediate injunctive relief to prevent Montana from enforcing the statute against the

Committee and its members. We have jurisdiction under 28 U.S.C. § 1292(a)(1). For

the following reasons, we reverse the district court and grant immediate injunctive

relief.

“A plaintiff seeking a preliminary injunction must establish that he is likely to

succeed on the merits, that he is likely to suffer irreparable harm in the absence of

preliminary relief, that the balance of equities tips in his favor, and that an injunction

is in the public interest.” Thalheimer v. City of San Diego, 645 F.3d 1109, 1115 (9th

Cir. 2011) (quoting Winter v. NRDC, 555 U.S. 7, 24–25 (2008)). A denial of a

preliminary injunction is generally reviewed for abuse of discretion. Alliance for the

Wild Rockies v. Cottrell, 632 F.3d 1127, 1131 (9th Cir. 2011). However, where a

district court’s denial of a preliminary injunction motion “rests solely on a premise of

law and the facts are either established or undisputed, our review is de novo.”

Sammartano v. First Judicial Dist. Ct., 303 F.3d 959, 964-65 (9th Cir. 2002). In the

instant case, where the essential issues are matters of law, we review the district

court’s conclusions de novo.

I. LIKELIHOOD OF SUCCESS ON THE MERITS

3 A. Protected Speech

When seeking a preliminary injunction “in the First Amendment context, the

moving party bears the initial burden of making a colorable claim that its First

Amendment rights have been infringed, or are threatened with infringement, at which

point the burden shifts to the government to justify the restriction.” Thalheimer, 645

F.3d at 1116. Here, there can be no question that the Committee has carried its initial

burden.

As the Supreme Court has found, “[t]he First Amendment ‘has its fullest and

most urgent application to speech uttered during a campaign for political office.’”

Citizens United v. Fed. Election Comm’n, 130 S. Ct. 876, 898 (2010) (quoting Eu v.

S.F. Cnty. Democratic Cent. Comm., 489 U.S. 214, 223 (1989)); see also Buckley v.

Valeo, 424 U.S. 1, 48 (1976) (“Advocacy of the election or defeat of candidates for

federal office is no less entitled to protection under the First Amendment than the

discussion of political policy generally or advocacy of the passage or defeat of

legislation.”). Thus, political speech—including the endorsement of candidates for

office—is at the core of speech protected by the First Amendment.

This protection extends as much to political parties exercising their right of

association as to individuals. As this Court stated in Geary v. Renne, “because the

4 exercise of these basic first amendment freedoms traditionally has been through the

media of political associations, political parties as well as party adherents enjoy rights

of political expression and association.” 911 F.2d 280, 283 (9th Cir. 1990) (en banc),

rev’d on other grounds, Renne v. Geary, 501 U.S. 312 (1991). More recently, the

Supreme Court, in extending First Amendment protection of political speech to

corporations, reaffirmed that “[t]he Court has thus rejected the argument that political

speech of corporations or other associations should be treated differently under the

First Amendment simply because such associations are not ‘natural persons.’”

Citizens United, 130 S. Ct. at 900.2

The threat to infringement of such First Amendment rights is at its greatest

when, as here, the state employs its criminalizing powers. As the Supreme Court

further found in Citizens United, “[i]f the First Amendment has any force, it prohibits

Congress from fining or jailing citizens, or associations of citizens, for simply

engaging in political speech.” 130 S. Ct. at 904. Thus, the Committee has clearly

shown that section 13-35-231, on its face, restricts the Committee’s exercise of its

First Amendment rights.

2 In her dissent, our respected colleague seems to suggest that a political party has no independent First Amendment right to free speech beyond the rights of its constituent members. This position ignores the explicit recognition in Citizens United that associations have their own free speech rights, separate and independent from those of their members. See Citizens United, 130 S. Ct. at 904.

5 B. Strict Scrutiny

The burden therefore shifts to Montana to attempt to justify the restriction. See

Thalheimer, 645 F.3d at 1116. As a preliminary matter, the Court must determine

what standard it must apply to the assessment of such alleged justifications: “strict

scrutiny” or “balancing.” While the district court applied strict scrutiny, Montana

argues that this Court should apply a balancing test that weighs against the

Committee’s First Amendment rights the state’s Tenth Amendment right to structure

its judicial institutions as it deems fit.

But while the Tenth Amendment preserves to the states the power to regulate

the roles that political parties may play in the design of judicial and other institutions,

that does not imply that the states have similar leeway in placing restrictions upon a

political association’s right to speak. See Eu, 489 U.S. at 222-24 (“A State’s broad

power to regulate the time, place, and manner of elections ‘does not extinguish the

State’s responsibility to observe the limits established by the First Amendment rights

of the State’s citizens.’” (quoting Tashjian v. Republican Party of Conn., 479 U.S.

208, 217 (1986))); Geary, 911 F.2d at 288 (Reinhardt, J., concurring) (“[T]here is all

the difference in the world between refusing to delegate to political parties the

decision as to which candidates appear on the general-election ballot and prohibiting

6 political party organizations from announcing their views on the merits of candidates

seeking public office.”).

Thus, we find that because the statute here at issue is, on its face, a

content-based restriction on political speech and association, and thereby threatens to

abridge a fundamental right, it is “subject to strict scrutiny, which requires the

Government to prove that the restriction ‘furthers a compelling interest and is

narrowly tailored to achieve that interest.’” Citizens United, 130 S. Ct. at 882

(quoting Fed. Election Comm’n v. Wis. Right To Life, Inc., 551 U.S. 449, 464 (2007));

see also Geary, 911 F.2d at 283 (applying strict scrutiny in striking down California’s

ban on political party endorsements of candidates for nonpartisan office).3

C. Compelling Interest and Narrow Tailoring

The district court found, and the parties do not here dispute, that Montana has

a compelling interest in maintaining a fair and independent judiciary. Where Montana

and the district court err, however, is in supposing that preventing political parties

from endorsing judicial candidates is a necessary prerequisite to maintaining a fair and

independent judiciary. See United States v. Alvarez, 132 S. Ct. 2537, 2549 (2012)

3 For similar reasons we reject Montana’s argument that a balancing test should be applied to weigh the competing constitutional concerns of Appellants’ First Amendment rights of speech and association against potential litigants’ due process interests in a fair and impartial judiciary.

7 (“The First Amendment requires that the Government’s chosen restriction on the

speech at issue be ‘actually necessary’ to achieve its interest.”); R.A.V. v. City of St.

Paul, 505 U.S. 377, 395 (1992) (“[T]he danger of censorship presented by a facially

content-based statute requires that that weapon be employed only where it is

necessary to serve the asserted compelling interest.” (internal quotation marks and

citations omitted)). Montana offers no evidence to support this facially doubtful

proposition, and it flies in the face of the fact that many of the other 38 states that elect

their judges not only allow party endorsements but require party nominations.4 Nor

does Montana suggest that, as a result, the judiciaries of these other states lack fairness

or integrity. See Republican Party of Minn. v. White, 536 U.S. 765, 796 (2002)

(Kennedy, J., concurring) (“Many [elected state judges], despite the difficulties

imposed by the election system, have discovered in the law the enlightenment,

instruction, and inspiration that make them independent-minded and faithful jurists

of real integrity.”). It may be, of course, that Montana reasonably believes that

restricting political endorsements of judicial candidates enhances the independence

of its judiciary; but such supposed “best practices” are not remotely sufficient to

survive strict scrutiny.

4 For a summary of which states require partisan elections, see Roy A. Schotland, New Challenges to States’ Judicial Selection, 95 Geo. L.J. 1077, 1085 (2007).

8 Under a strict scrutiny standard, therefore, Montana lacks a compelling interest

in forbidding political parties from endorsing judicial candidates. Moreover, even if

it were otherwise, section 13-35-231 is not narrowly tailored to this end.

To begin with, the existence of content-neutral alternatives “‘undercut[s]

significantly’ any defense of such a statute.” R.A.V., 505 U.S. at 395 (quoting Boos

v. Barry, 485 U.S. 312, 329 (1988)) (alteration in original). If Montana were

concerned that party endorsements might undermine elected judges’ independence,

Montana could appoint its judges, with a bipartisan and expert panel making

nominations—a less restrictive alternative currently practiced by several states.

This is not to say, obviously, that Montana’s decision to elect its judges is

impermissible.5 But if Montana “chooses to tap the energy and the legitimizing power

of the democratic process, it must accord the participants in that process . . . the First

Amendment rights that attach to their roles.” White, 536 U.S. at 788 (quoting Renne,

501 U.S. at 349 (Marshall, J., dissenting)) (alteration in original); see also Renne, 501

5 We disagree with the dissent’s suggestion that affording political parties their full First Amendment rights inevitably requires that judicial elections be treated no differently than elections for the political branches. Montana’s decision to exclude parties from the nomination and balloting process for judicial candidates remains a valid choice to limit party involvement in judicial institutions. See Mont. Code Ann. § 13-14-111. Contrary to the dissent, we do not see how a political party, in the absence of a role in the nomination and balloting process, is materially different from any other interest group that is permitted under Montana law to endorse a judicial candidate.

9 U.S. at 349 (Marshall, J., dissenting) (“[T]he prospect that voters might be persuaded

by party endorsements is not a corruption of the democratic process; it is the

democratic process.”). To hold otherwise would turn “First Amendment jurisprudence

on its head.” White, 536 U.S. at 781.6

Furthermore, section 13-35-231, while not narrowly tailored to achieve its ends,

is at the same time under-inclusive, in that it forbids judicial endorsements by political

parties but not by other associations, individuals, corporations, special interest groups,

and the like. As noted by the Eighth Circuit in Republican Party of Minn. v. White

(White II),

There are numerous other organizations whose purpose is to work at advancing any number of similar goals, often in a more determined way than a political party. Minnesota worries that a judicial candidate’s consorting with a political party will damage that individual’s impartiality or appearance of impartiality as a judge, apparently because she is seen as aligning herself with that party’s policies or procedural goals. But that would be no less so when a judge as a judicial candidate aligns herself with the constitutional, legislative, public policy and procedural beliefs of organizations such as the National Rifle Association (NRA), the National Organization for Women (NOW), the Christian Coalition, the NAACP, the AFL-CIO, or any number of other political interest groups.

6 While, as the dissent notes, White concerned the unconstitutionality of limits on a judge’s speech during a judicial election, nothing in the majority opinion in White suggests that laws limiting speech by parties differ from laws limiting speech by candidates. In both cases, the First Amendment requires strict scrutiny of such limitations, and for the reasons here explained the challenged statute criminalizing party political speech does not withstand strict scrutiny.

10 416 F.3d 738, 759 (8th Cir. 2005). Such under-inclusivity “diminish[es] the credibility

of the government’s rationale for restricting speech.” City of Ladue v. Gilleo, 512

U.S. 43, 52 (1994).

In short, Montana has shown neither that section 13-35-231 is necessary to

achieve a compelling state interest nor that it is narrowly and rationally tailored to that

purpose.

II. IRREPARABLE HARM

With judicial elections imminent in Montana, and the candidates already

selected and announced, the need for immediate injunctive relief enjoining Montana

from prohibiting and penalizing political parties’ endorsements of judicial candidates

is apparent. Nevertheless, the district court, in denying preliminary relief, pointed to

the dearth of evidence before it and held that it ought not decide issues of such

“fundamental and far-reaching import” without a complete record. True, the matter

is of great importance, but as noted, the statute here is facially unconstitutional, and

the burden then shifts to the state to try to justify the statute, either by evidence or

argument, which, as shown above, it has failed to do. In such circumstances, and with

the Committee’s First Amendment rights being chilled daily, the need for immediate

injunctive relief without further delay is, in fact, a direct corollary of the matter’s great

11 importance. Indeed, the fact that the Committee will otherwise suffer irreparable harm

is demonstrated by “a long line of precedent establishing that ‘[t]he loss of First

Amendment freedoms, for even minimal periods of time, unquestionably constitutes

irreparable injury.’” Thalheimer, 645 F.3d at 1128 (quoting Klein v. City of San

Clemente, 584 F.3d 1196, 1208 (9th Cir. 2009)). When, as here, a party seeks to

engage in political speech in an impending election, a “delay of even a day or two may

be intolerable.” Klein, 584 F.3d at 1208 (citation omitted). We conclude that the

Committee would suffer irreparable injury if a preliminary injunction were not

granted.

III. BALANCE OF HARDSHIPS

Given the foregoing, it is patent that the hardships to the Committee from not

issuing the injunction outweigh the cognizable hardship (if any) to the state from

issuing the injunction. The Committee seeks to publicly endorse two judicial

candidates in this year’s election, and, if prohibited by law from doing so, its free

speech rights will be lost forever. Nor is the harm from this ban on speech limited to

the political parties it explicitly addresses. In Alvarez, Justice Breyer warned that “the

threat of criminal prosecution . . . can inhibit the speaker from making [protected]

statements, thereby ‘chilling’ a kind of speech that lies at the First Amendment’s

heart.” 132 S. Ct. at 2553 (Breyer, J., concurring) (citing Gertz v. Welch, 418 U.S.

12 323, 340-341 (1974)). Here, the Committee’s “members have often been afraid to

even discuss at its meetings topics relating to judicial candidates so as to avoid even

the appearance of endorsing any of them.” Montana’s threat of prosecution has thus

had a “chilling” effect, radiating from the disfavored speaker to untargeted individuals

and plainly protected speech.

If Montana is preliminarily enjoined from enforcing the statute, it would suffer

if there were any way to save the statute from being declared unconstitutional. But,

as we have already shown, there is none, for the statute is unconstitutional on its face,

and the state’s proffered justifications, even if construed most favorably to the state,

cannot survive strict scrutiny. Montana, in short, can derive no legally cognizable

benefit from being permitted to further enforce an unconstitutional limit on political

speech. Cf. Allee v. Medrano, 416 U.S. 802, 814 (1974) (upholding injunction

preventing police harassment as doing no more than “requir[ing] the police to abide

by constitutional requirements”). Because we find that Montana’s ban on party

endorsements of judicial candidates offends the First Amendment, we conclude that

the balance of hardships favors the Appellant.

IV. PUBLIC INTEREST

The Winter test also asks us also to consider the public interest. See Winter,

555 U.S. at 24. But here we view public interest factors as subsumed within our

13 analysis of likelihood of success on the merits, irreparable injury, and balance of

hardships. See, e.g., Klein, 584 F.3d at 1207-08 (addressing irreparable injury,

balance of hardships, and public interest elements in tandem). We conclude that the

public interest here favors the requested injunction.

V. CONCLUSION

For the foregoing reasons, we conclude that, because section 13-35-231 is

unconstitutional on its face, Montana must be enjoined forthwith from enforcing it or

otherwise interfering with a political party’s right to endorse judicial candidates and

to expend monies to publicize such endorsements. The mandate will issue forthwith,

and the case is otherwise remitted to the district court for further proceedings

consistent with this Opinion.

REVERSED AND REMANDED.

14

COUNSEL

Matthew G. Monforton, Bozeman, Montana, for Plaintiff-Appellant.

Steven Bullock, Montana Attorney General, Michael G. Black (argued) and Andrew

I. Huff, Montana Assistant Attorneys General, Helena, Montana, for Defendants-

Appellees.

15