Judges, even when popularly elected, are not representatives; they are not agents for their voters, nor should they take voter preferences into account in adjudicating cases. However, popularly elected judges are representatives for some election law purposes. Unlike other elected officials, judges are not politicians. But judges are policy-makers. Judicial elections are subject to the same constitutional doctrines that govern voting on legislators, executives, and ballot propositions. Except when they are not. The same First Amendment doctrine that protects campaign speech in legislative, executive, and ballot proposition elections applies to campaign speech in judicial elections – but not in quite the same way. Independent committees have the same right to spend in judicial elections as they do in other elections. But significant independent spending can result in the imposition of a constitutional restriction on the behavior of an elected judge who benefited from that spending. This restriction is without parallel for elected legislators or executives who benefit from similar independent spending.
Election Law | First Amendment | Law | Supreme Court of the United States
Center for Constitutional Governance
The Supreme Court, Judicial Elections, and Dark Money,
DePaul L. Rev.
Available at: https://scholarship.law.columbia.edu/faculty_scholarship/2835