Siefert v. Alexander (597 F. Supp. 2d 860, 2009)

OPINION AND ORDER

BARBARA B. CRABB, District Judge.

A commitment to judicial independence and impartiality has long been viewed as one of the cornerstones of the American judiciary. Courts maintain their legitimacy only so long as those who walk through the courthouse doors believe that they are being treated fairly, that is, that the judge is deciding the case on the basis of his or her view of the law and facts and not on the basis of an outside influence or bias.

Just as central to American democracy is the belief in free expression and open government. Under the First Amendment, generally the view is that more rather than less information advances democratic values and that the government should not be the arbiter of which ideas are true or false, important or unimportant, helpful or harmful. Particularly in the context of popular elections, it is the people who decide through their votes which message resonates.

In the context of judicial elections, questions arise about the compatibility of these two fundamental values. Should a candidate’s or judge’s speech be limited to prevent him from making statements that could make him appear biased? If so, under what circumstances is such a restriction appropriate? How can the integrity of the judiciary be preserved without unduly inhibiting the conversation between a judicial candidate and the electorate? These difficult questions are at the heart of the dispute between the parties in this case.

Plaintiff John Siefert is an elected Wisconsin circuit court judge in Milwaukee County who would like to state his affiliation with the Democratic Party, endorse partisan candidates for office and personally solicit contributions for his next election campaign, but he fears violating provisions of the Wisconsin Code of Judicial Conduct that prohibit these activities. Rather than violate the provisions and subject himself to discipline, plaintiff filed this suit for declaratory and injunctive relief under 42 U.S.C. § 1983 against the members of the Wisconsin Judicial Commission responsible for enforcing the code, seeking a determination of his right to undertake the prohibited activities. Plaintiff says that the rules violate his right to free speech; defendants say that the rules are necessary to keep judges from being improperly influenced by partisan considerations, to maintain public confidence in the Wisconsin judiciary and to prevent potential donors from feeling coerced into giving money. The parties’ cross motions for summary judgment are now ripe for review. (Wisconsin’s attorney general invited the State Bar of Wisconsin to file an amicus brief, but it declined to do so. Dkt. # 47.)

Over the years, many states with elected judges and many bar associations, including the American Bar Association, have addressed what they see as factors working against the goal of maintaining an impartial judiciary. To that end, they have developed canons of judicial conduct, forbidding such activities by candidates for judicial office as announcing their views on disputed legal and political issues, making personal solicitations of funds or endorsements and engaging in partisan activities or even identifying themselves as members of a particular party. In 2002, the United States Supreme Court ruled the first of these restrictions unconstitutional, holding that the First Amendment was violated when judicial candidates were prohibited from announcing their views on disputed issues likely to come before the court. Republican Party of Minnesota v. White, 536 U.S. 765, 122 S.Ct. 2528, 153 L.Ed.2d 694 (2002). In 2005, the Court of Appeals for the Eighth Circuit ruled that the First Amendment made unconstitutional bans against direct solicitation and the partisan activities of identifying oneself as a member of a political organization, attending political gatherings or accepting endorsements from a political organization. Republican Party of Minnesota v. White, 416 F.3d 738 (8th Cir.2005). These two cases have transformed the legal perspective from which the canons of judicial conduct are viewed.

Wisconsin is one of the states that has worked to maintain a judiciary that is per-' ceived as impartial. Among the canons adopted by the Supreme Court of Wisconsin in pursuit of this goal are three that plaintiff is challenging in this suit. SCR 60.06(2)(b)(l) provides that no judge or judicial candidate may be a member of any political party. SCR 60.06(2)(b)(4) provides that no judge or judicial candidate may publicly endorse or speak on behalf of a political party’s candidates or platforms. SCR 60.06(4) provides that a judge, candidate for judicial office, or judge-elect shall not personally solicit or accept campaign contributions.

Reviewing these canons in light of the Supreme Court’s opinion in White (White I) and defendants’ failure to show that any of the rules challenged by plaintiff is narrowly tailored to promote a compelling state interest, as required under the First Amendment, I must conclude that the rules at issue do not withstand strict scrutiny. This conclusion should not be viewed as denigrating the conscientious efforts made by the state supreme court and many lawyers over many years to draft canons that they believe are necessary to maintain a non-partisan judiciary. It may be that the job is impossible. Once a state decides, as Wisconsin has, that judges are to be democratically elected along with the members of the other two branches of government, the task of legislating nonpar-tisanship and the appearance of impartiality without violating the First Amendment becomes a thicket of complexity.

From the parties’ proposed findings of fact, I find that the following facts are undisputed.

UNDISPUTED FACTS

Plaintiff John Siefert has been a judge of the Circuit Court for Milwaukee County since he was first elected in 1999. Defendant James Alexander is the executive director of the Wisconsin Judicial Commission; defendants Ginger Alden, Donald Leo Bach, John Dawson, David Hansher, Gregory Peterson, William Vander Loop, Michael Miller and James Haney are members of the commission.

The commission investigates and prosecutes potential violations of the Wisconsin Code of Judicial Conduct, which regulates the behavior of judges and judicial candidates. In Wisconsin, state court judges are selected through nonpartisan elections, meaning that a judicial candidate is not nominated by a political party and no party affiliation appears next to the candidate’s name on the ballot.

A. Plaintiff’s Background

Before plaintiff was a circuit court judge, he had been a member of the Democratic Party and participated in a number of partisan activities, including:

• serving as a delegate to the Democratic National Convention;

• twice running as a Democrat for the state legislature;

• twice running as a Democrat for county treasurer; holding that office from 1990 to 1993;

• serving as an alternate elector for President Bill Clinton in 1992.

Plaintiff would like to join the Democratic Party again, endorse partisan candidates and personally solicit campaign contributions, but he fears that doing so will subject him to discipline for violating the code of judicial conduct. In particular, with respect to becoming a member of the Democratic Party, he would like to list his party membership in response to candidate questionnaires. (He does not seek to have his party affiliation listed on the ballot; such a listing is prohibited by Wis. Stat. §§ 5.58 and 5.60 and is not the subject of this suit.) He believes membership in the Democratic Party would communicate his desire for social justice and peace. He understands that voters may use party affiliation as a “shorthand” for many of his views, but he does not wish to appeal to partisanship as a candidate or as a judge.

With respect to endorsing partisan candidates, plaintiff wanted to endorse Barack Obama in the 2008 presidential election. In the future, plaintiff would like to endorse Jim Doyle for governor of Wisconsin in 2010 and President Obama if he decides to run for reelection in 2012.

With respect to fund raising, plaintiff would like to solicit contributions for his upcoming 2011 campaign and to pay off debts from his past campaigns by making phone calls to potential contributors, signing his name to fund-raising letters and by personally inviting potential donors to fund raising events. He does not challenge the need for a campaign committee to handle the ministerial tasks of fund-raising and take responsibility for the collection and reporting of donations.

B. Historical Background

Since Wisconsin became a state in 1848, the Wisconsin Constitution has required that state court judges be chosen by popular election. Wis. Const, art. VII, §§ 4-6. Political parties made the first supreme court nominations at party conventions, despite concerns by some that “an openly partisan jury would be subject to corrupting influences.”

In In re Booth, 3 Wis. 1, 54 (1854), the supreme court held by a 2-1 vote, with Justice Samuel Crawford dissenting, that the federal Fugitive Slave Act of 1850 was unconstitutional. Following the court’s decision, Wisconsin defied federal efforts to enforce the law. Justice Crawford was defeated for reelection in 1855 largely because of his dissent in Booth rather than any concerns about his legal abilities.

In Ableman v. Booth, 21 How. (62 U.S.) 506, 514, 16 L.Ed. 169 (1859), the United States Supreme Court reversed the Wisconsin Supreme Court’s 1854 Booth decision. The Wisconsin Supreme Court then voted not to file the United States Supreme Court’s decision, with Chief Justice Luther S. Dixon dissenting. Ableman v. Booth, 11 Wis. 498, 501 (1859). Although Dixon was a Republican and his legal abilities were highly respected, the 1860 Republican convention refused to nominate him for reelection because of his dissent. Dixon was nominated by an independent convention and was narrowly reelected.

During the late 1840s and early 1850s, many Wisconsin farmers purchased railroad stock by giving promissory notes secured by mortgages on their land in order to obtain railroad service for their communities. Following a depression in 1857, many railroads went into receivership and financiers to whom they had sold the farmers’ promissory notes attempted to foreclose on the mortgages. The Wisconsin legislature enacted a series of laws promoting debtor relief, most of which the Wisconsin Supreme Court declared unconstitutional. During the early 1860s, many farmers and their supporters formed the Grand State League to promote debtor relief. With the league’s support, the Democratic Party several times nominated supreme court candidates to oppose sitting justices up for reelection; the opposing candidates ran largely on a platform of debtor relief. No sitting justice was defeated, but the results were often quite close.

An informal tradition developed of preserving a “partisan balance” on the court. In 1878, when the size of the court was expanded from three to five justices, legislative caucuses of both parties arranged to nominate one Democrat and one Republican as consensus candidates for the new seats to achieve balance on the bench.

The last judicial election contest with “overt partisan tones” was held in 1895 when then-Justice John B. Winslow, a Democrat, narrowly won reelection over his Republican opponent. In 1909, the election of Justice John Barnes created an apparent Democratic majority on the supreme court despite the fact that voters consistently elected Republican governors and legislatures during this time and the Democratic Party was very weak. Little attention was paid to Barnes’s party affiliation or to partisan affiliations of the justices, demonstrating “the absolute disappearance of partisan considerations” by that time.

In the late 1800s, the state legislature and the voters began making a number of changes to the nomination and election process of judges and other candidates for office:

• in 1891, the legislature removed the requirement to place party designations on “ballots for school or judicial offices” in municipalities of populations less than 50,000;

• in 1898, the legislature removed the “straight party ticket” option from Wisconsin ballots (this option has since been restored, Wis. Stat. § 5.64(l)(ar)l.a);

• in 1903, the legislature passed a law replacing the caucus system of choosing candidates with open primaries; the voters ratified this decision in 1904;

• in 1911, the legislature allowed nonpartisan nominations to be made in judicial elections.

Finally, in 1913, the legislature passed a law making all judicial elections nonpartisan: “No candidate for any judicial or school office shall be nominated or elected upon any party ticket, nor shall any designation of party or principle represented be used in the nomination or election of any such candidate.” Current law continues to prohibit party designations from appearing on the ballot for judicial elections as well as a number of other offices. Wis. Stat. §§ 5.58 and 5.60.

In 1915, a committee headed by Chief Justice Winslow was formed to consider improvements to the Wisconsin judiciary. In its report to the legislature, the committee wrote:

The unwritten code which has so happily developed in this state, by which a circuit judge who shows his fitness for the office is retained in the service without regard to political considerations term after term, has been of great service in rendering our courts stable, learned and respected. It has also tended strongly to make them independent and fearless and has well nigh put an end to the judge with his ear to the ground.

In 1934, the Wisconsin Bar Association recommended that the state’s elective judicial system be replaced with one consisting of appointment by the governor followed by the voters’ option to retain the judge every six years. This recommendation was never adopted or seriously considered by the legislature. In 1938, the bar prepared another report in which it stated: “Thanks to our completely nonpartisan judicial elections, and the conscientious manner in which our governors of all parties have, in the main, made their judicial appointments in the past, the Wisconsin judicial system is not in any dire need of change.”

In 1968, the Wisconsin Supreme Court amended the judicial code of conduct to prohibit judges from joining a political party. In October 2004, the supreme court amended the code to extend a number of rules to cover judicial candidates as well as judges, including prohibitions on party membership, partisan endorsements and personal solicitation of campaign contributions. In the Matter of the Amendment of Supreme Court Rules: SCR Chapter 60, Code of Judicial Conduct—Campaigns, Elections, Political Activity, No. 00-07, 2004 WI 34 (Oct. 29, 2004).

OPINION

The starting point for each of plaintiffs claims is Republican Party of Minnesota v. White, 536 U.S. 765, 122 S.Ct. 2528, 153 L.Ed.2d 694 (2002) (White I), in which the Supreme Court held that a judicial ethical canon violated the First Amendment by prohibiting judicial candidates from “announcing” their views on “disputed political and legal issues.” Plaintiff contends that the provisions he is challenging are legally indistinguishable from Minnesota’s announcement canon and therefore must fall under White I. He also relies on the decision by the Court of Appeals for the Eighth Circuit after White I was remanded in which the court invalidated rules prohibiting judges from engaging in partisan activity and personally soliciting campaign contributions. Republican Party of Minnesota v. White, 416 F.3d 738, 755 (8th Cir.2005) (en banc) (White II). Defendants contend that White II was wrongly decided and that White I is not instructive because that case did not involve rules limiting partisan activity or campaign solicitations and because Wisconsin’s rules do not prevent judicial candidates from effective campaigning as Minnesota’s did.

Although I disagree with plaintiff that White I is on all fours with this case, defendants cannot cabin White I to its precise facts. It provides an important framework for evaluating plaintiffs claims. A. SCR 60.06(2)(b)l: Party Membership

Wisconsin Supreme Court Rule 60.06(2)(b)l says that “[n]o judge or candidate for judicial office or judge-elect may ... [b]e a member of any political party.” The rules permit those with previous political ties to run for judicial office, SCR 60.06(2)(a), and they permit a “partisan political office holder who is seeking election or appointment to judicial office or who is a judge-elect ... to engage in partisan political activities required by his or her present position.” SCR 60.06(2)(c). Plaintiff contends that the rule prohibiting party membership prevents him from exercising his First Amendment rights to associate and express his political viewpoints, California Democratic Party v. Jones, 530 U.S. 567, 574, 120 S.Ct. 2402, 147 L.Ed.2d 502 (2000), and that the code’s restrictions on that right are subject to strict scrutiny because they prohibit speech on the basis of content. E.g., Turner Broadcasting System, Inc. v. FCC, 512 U.S. 622, 658, 114 S.Ct. 2445, 129 L.Ed.2d 497 (1994) (laws that restrict content of speech by subset of speakers “demand strict scrutiny when they reflect the Government’s preference for the substance of what the favored speakers have to say (or aversion to what the disfavored speakers have to say)”).

1. Standard of review

Under a strict scrutiny analysis, defendants have the burden of showing that SCR 60.06(2)(b)l is narrowly tailored to further a compelling state interest by the least restrictive means. Johnson v. California, 543 U.S. 499, 505, 125 S.Ct. 1141, 160 L.Ed.2d 949 (2005); United States v. Playboy Entertainment Group, Inc., 529 U.S. 803, 813, 120 S.Ct. 1878, 146 L.Ed.2d 865 (2000). Defendants do not address plaintiffs position that strict scrutiny is the proper standard of review, but seem to concede that plaintiff is correct by structuring their briefs to follow a strict scrutiny analysis. See also White II, 416 F.3d at 748-49(applying strict scrutiny to restriction on partisan activities of judges and judicial candidates); Carey v. Wolnitzek, 2008 WL 4602786, *5 (E.D.Ky.2008) (same).

On the other hand, defendants go to some length to distinguish this case from White I on the ground that, unlike the rule at issue in White I, SCR 60.06(2)(b)l “does not limit a candidate’s ability to conduct an effective campaign.” Dfts.’ Br. at 17, dkt. #49. This suggests that defendants believe that the standard of review should be something less than strict scrutiny. In particular, defendants say that Minnesota’s rule prevented candidates from talking about “issues” while the Wisconsin rule “address[es] the qualifications for serving in a position, which is an area where the government has traditionally had wide discretion.” Id. at 9 (citing Moss v. Martin, 473 F.3d 694 (7th Cir.2007)). In addition, defendants say that plaintiff has admitted that the rules do not interfere with his campaigning because he has testified that he does not want “to appeal to overheated rhetoric in a partisan nature.” Dfts.’ PFOF ¶ 53, dkt. # 58.

Despite defendants’ efforts to distinguish this case from White I, they do not explain how their observations are relevant to determining the constitutionality of SCR 60.06(2)(b)l. Any differences between this case and White I are unimportant unless those differences point to a different result. If the standard of review is strict scrutiny, as defendants appear to concede, it makes no difference whether plaintiff wishes to join a political party to further his campaign or for more personal reasons. The only relevant question would be whether defendants can show that the rule against doing so is narrowly tailored to further a compelling state interest.

I do not understand defendants to be arguing that the court should apply a more deferential standard of review because plaintiffs speech is unrelated to his campaign. Even if that is their argument, it is unlikely that they could prevail on it. First, even if party membership had no relevance to a judicial campaign, it does not follow necessarily that a different standard of review would apply. The general rule is that any content-based restriction on speech is subject to strict scrutiny. Lorillard Tobacco Co. v. Reilly, 533 U.S. 525, 574, 121 S.Ct. 2404, 150 L.Ed.2d 532 (2001) (“We have consistently applied strict scrutiny to such content-based regulations of speech.”). Second, plaintiff did not say that he would be silent about his political affiliation during campaigns; he said that he wants to identify himself as a Democrat in candidate questionnaires.

Plaintiffs personal reasons for wanting to join the Democratic Party or to announce his affiliation with the party are irrelevant under White I. Although the Court emphasized that Minnesota’s rule prohibited speech in the context of political campaigns, the issue for the Court was not whether the rule allowed the candidate “to conduct an effective campaign,” but whether Minnesota was preventing candidates from giving voters information they might find relevant in making their choice. White I, 536 U.S. at 782, 122 S.Ct. 2528 (“We have never allowed the government to prohibit candidates from communicating relevant information to voters during an election.”) (internal quotations and citations omitted). Arguably, a candidate’s political affiliation communicates as much or more information to a voter than that candidate’s stance on any one issue. Although it may be an overstatement to say that party membership is “shorthand for the views a judicial candidate holds,” White II, 416 F.3d at 754, it is certainly a piece of information that many voters would be interested in knowing, “for the obvious reason that” they believe “it reflects how the person will likely decide cases.” Erwin Chemerinsky, Restrictions on the Speech of Judicial Candidates Are Unconstitutional, 35 Ind. L.Rev. 735, 738 (2002). This is no doubt why “Presidents have always used ideology as one criteria in selecting judges.” Id.

One might argue that even if a candidate’s political affiliation is informative, it is not a “relevant” consideration for voters in a judicial election because party preference is not something that should have any bearing on how a judge decides a case. Defendants hint at this view when they say that the difference between SCR 60.06(2)(b)l and Minnesota’s rule is that the Wisconsin rule is aimed at the qualifications for service. In other words, the government should have the authority to decide the proper qualifications for a judge and, concomitantly, what information about the candidate that the voters may consider.

Such a view cannot prevail in light of White I, 536 U.S. at 774, 122 S.Ct. 2528, which holds that the government does not have discretion to restrict “speech about the qualifications of candidates for public office,” because ‘“[i]t is simply not the function of government to select which issues are worth discussing or debating in the course of a political campaign.’ ” Id. at 782, 122 S.Ct. 2528 (quoting Brown v. Hartlage, 456 U.S. 45, 60, 102 S.Ct. 1523, 71 L.Ed.2d 732 (1982)). In other words, in an election, it is the voters, not the government, who determine whether particular information about a candidate is a relevant consideration in casting their votes; the government does not have unrestrained authority to restrict candidates’ speech in order to insure that voters consider only the “correct” criteria. Buckley v. Valeo, 424 U.S. 1, 57, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976) (“In the free society ordained by our Constitution it is not the government but the people ... who must retain control over the quantity and range of debate on public issues in a political campaign.”); Mills v. Alabama, 384 U.S. 214, 218, 86 S.Ct. 1434, 16 L.Ed.2d 484 (1966) (“Whatever differences may exist about interpretations of the First Amendment, there is practically universal agreement that a major purpose of that Amendment was to protect the free discussion of governmental affairs. This, of course, includes discussions of candidates.”) In this respect, it is difficult to see how Wisconsin’s rule of prohibiting judges and candidates from identifying themselves as a member of a political party is any different from Minnesota’s rule of prohibiting candidates from announcing their views on “disputed ...political issues.” Id. at 770, 122 S.Ct. 2528 (quoting Minn.Code of Judicial Conduct, Canon 5(A)(3)(d)(i) (2002)).

In another attempt to show that strict scrutiny is not the applicable standard of review, defendants cite Garcetti v. Ceballos, 547 U.S. 410, 418, 126 S.Ct. 1951, 164 L.Ed.2d 689 (2006), for the proposition that “[w]hen a citizen enters government service, the citizen by necessity must accept certain limitations on his or her freedoms.” They also cite United States Civil Service Commission v. National Association of Letter Carriers, AFL-CIO, 413 U.S. 548, 579, 93 S.Ct. 2880, 37 L.Ed.2d 796 (1973), in which the Court upheld provisions in the Hatch Act that restricted the political activity of certain public employees. Defendants may mean to suggest that the court should apply a test similar to the one in Pickering v. Board of Education of Township High School District 205, Will County, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968), which provided the standard of review for both Letter Carriers and Garcetti. Under Pickering, courts do not apply strict scrutiny but a more straightforward balancing of a public employee’s right to speak out on matters of public concern against the government’s interest in “promoting the efficiency of the public services it performs through its employees.” Letter Carriers, 413 U.S. at 564, 93 S.Ct. 2880 (quoting Pickering, 391 U.S. at 568, 88 S.Ct. 1731).

The Pickering standard does not provide a good fit in the context of this case. The reason for the more limited review in Pickering relates to the government’s status as an employer and the traditional control that employers have over their employees. The government would be unable to provide services effectively and efficiently if federal courts routinely questioned “the wisdom of a personnel decision taken by a public agency allegedly in reaction to the employee’s behavior.” Connick v. Myers, 461 U.S. 138, 147, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983). However, it is difficult to characterize an elected judge as a mere “employee” of the government or any discipline of that judge as a “personnel decision.” It is the people rather than the government who decide ultimately whether any judge’s performance is satisfactory.

Further, the Court has stated that the Hatch Act and the decision in Letter Carriers were targeted not at restricting but “'protecting] employees’ rights, notably their right to free expression,” United States v. National Treasury Employees Union, 513 U.S. 454, 471, 115 S.Ct. 1003, 130 L.Ed.2d 964 (1995) (emphasis added), by keeping higher ranking officials from making “advancement in the Government service ... depend on political performance.” Letter Carriers, 413 U.S. at 566, 93 S.Ct. 2880. See also Elrod v. Burns, 427 U.S. 347, 366-67, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976) (“Legislative restraints on political management and campaigning were also upheld in Letter Carriers ... because they served to protect individual belief and association and, thereby, the political process.”) Thus, it would appear that the rationale of Letter Carriers is largely inapplicable in cases in which the government’s purpose is solely to limit speech rather than preserve it.

In a concurring opinion in White I, 536 U.S. at 796, 122 S.Ct. 2528, Justice Kennedy left open the question “[wjhether the rationale of [Pickering ] could be extended to allow a general speech restriction on sitting judges — regardless of whether they are campaigning — in order to promote the efficient administration of justice.” The majority did not distinguish between candidates and sitting judges; its focus was whether the speech was made in the context of a campaign. In any event, to the extent such a distinction may be relevant, Justice Kennedy’s question will have to remain open because SCR 60.06(2)(b)l is not limited to sitting judges. To the extent any distinction between “campaigning judges” and “noncampaigning judges” is appropriate, such a distinction may have little meaning in a state like Wisconsin, which does not impose term limits on judges. Thus, in a sense, state judges in Wisconsin are always campaigning, at least until they decide to retire.

Finally, defendants raise the question whether SCR 60.06(2)(b)l is entitled to “a strong presumption” that it is constitutional because it is part of a “universal and long-established tradition.” White I, 536 U.S. at 785, 122 S.Ct. 2528 (citing McIntyre v. Ohio Elections Commission, 514 U.S. 334, 375-77, 115 S.Ct. 1511, 131 L.Ed.2d 426 (1995)). See also Letter Carriers, 413 U.S. at 557, 93 S.Ct. 2880 (upholding political restrictions on public employees in part because of tradition extending back to Thomas Jefferson that such employees should not be involved in politics). I cannot conclude that such a presumption is applicable in this case. It is true that at the turn of the century, the Wisconsin legislature changed the nomination process and the ballots in judicial elections from partisan to nonpartisan. However, that is not the “tradition” implicated by this case. Plaintiff is not trying to force the state of Wisconsin to place his political party next to his name on the ballot or change anything else about the way the state structures judicial elections. He wants to join a political party, a practice the legislature has never prohibited and that Wisconsin’s judicial code of conduct did not prohibit until 1968.

In White I, 536 U.S. at 786, 122 S.Ct. 2528, the Court declined to apply the presumption of constitutionality in the face of a showing that not only did the first model code of conduct published by the American Bar Association in 1924 contain a provision similar to Minnesota’s rules restricting judicial candidates from taking positions on legal and political issues, but at the time White I was decided, all but four states holding judicial elections had a similar provision. Id. (stating that practice of prohibiting announcement of positions on legal issues was “relatively new to judicial elections”). Thus, Wisconsin’s even more recently adopted prohibition on party affiliation cannot be deemed a “long-standing tradition” under White I. Id. at 786, 122 S.Ct. 2528 (noting that until later part of 20th century, “not only were judicial candidates (including judges) discussing disputed legal and political issues on the campaign trail, but they were touting party affiliations and angling for party nominations all the while”).

Finally, nothing in the record shows that any state other than Wisconsin prohibits judges and judicial candidates from becoming members of political parties, making it impossible to argue that the restriction is “universal.” It is unlikely that most states impose such a limitation on judges. None is included in the ABA’s model code, which contains a number of rules regarding political activities, but no flat prohibition on party membership. American Bar Association, Model Code of Judicial Conduct, Canon 4 (2007). See also C. Scott Peters, Canons, Cost and Competition in State Supreme Court Elections, 91 Judicature 27 (listing six states other than Wisconsin that prohibit partisan political activities for judicial candidates). Accordingly, I conclude that SCR 60.06(2)(b)l is not entitled to a presumption of constitutionality and that the appropriate standard of review is strict scrutiny.

Once it is determined that strict scrutiny is the proper standard of review, it becomes difficult for defendants to show that SCR 60.06(2)(b)l is constitutional. It “is the rare case in which ... a law survives strict scrutiny.” Burson v. Freeman, 504 U.S. 191, 211, 112 S.Ct. 1846, 119 L.Ed.2d 5 (1992); see also North Dakota Family Alliance, Inc. v. Bader, 361 F.Supp.2d 1021, 1041 (D.N.D.2005) (questioning “[wjhether the decision in White [I] left any room for the regulation of the speech of judicial candidates”).

2. Identifying a compelling state interest

As White I showed, it is not easy to determine the contours of the compelling state interest that the restrictions on judicial candidates and judges are intended to advance. It is not enough to say that “nonpartisan elections” are the goal; it is necessary to focus on what values nonpartisan elections advance. Even saying that the ultimate goal is an impartial judiciary is not enough, as White I made clear. As the Court pointed out in that case, impartiality can refer to at least three different concepts: (1) the lack of bias for or against any party to a proceeding, which “guarantees a party that the judge who hears his case will apply the law to him in the same way it applies it to any other party,” White I, 536 U.S. at 776, 122 S.Ct. 2528; (2) the lack of preconception in favor of or against a particular legal view, id. at 777, 122 S.Ct. 2528(a kind of “impartiality” that is neither likely to be found in persons capable of being judges nor necessary to the administration of justice, id. at 777-78, 122 S.Ct. 2528); and (3) openmindedness in the sense of being willing to consider views that oppose one’s own preconceptions and remain open to persuasion. Id. The Supreme Court was willing to concede that the third type of impartiality might be desirable, but it was persuaded that the Minnesota canon was not adopted to further that kind of impartiality, given the small number of public statements judicial candidates make in the course of a political campaign compared to those they make in their careers as judges or as lawyers or law professors before becoming judges.

In the context of this case, the interests advanced by Wisconsin’s prohibition on announcing one’s political party can be defined as (1) the. absence of bias toward particular political parties that appear before the court or toward litigants who are members of a political party; and (2) the absence of improper influence by a political party or a political party’s ideology. Added to these is the public’s perception that judges are not biased or influenced by these improper influences. Shirley S. Abrahamson, Thorny Issues and Slippery Slopes, Ohio St. L.J. 3, 3 (2003) (“Although the phrase is hard to define, the term ‘judicial independence’ embodies the concept that a judge decides cases fairly, impartially, and according to the facts and law, not according to whim, prejudice, or fear, the dictates of the legislature or executive, or the latest opinion poll.”)

3. Determining whether any compelling interests are furthered by SCR 60.06(2)(b)l

No one can doubt that states have a compelling interest in trying to insure that judges decide cases on the basis of the law and not because of a relationship with an outside influence. As defendants observe, “[t]he impartial judge is the essence of due process and the keystone of our concept of justice.” Dfts.’ Reply Br. at 1, dkt. # 61. See also White I, 536 U.S. at 793, 122 S.Ct. 2528 (Kennedy J., concurring) (“Judicial integrity is ... a state interest of the highest order.”); Buckley v. Illinois Judicial Inquiry Board, 997 F.2d 224, 227 (7th Cir.1993) (“Justice under law is as fundamental a part of the Western political tradition as democratic self-government.”) Acknowledgment of the importance of that interest in this country goes back at least as far as the Declaration of Independence, in which Jefferson condemned the British king because he “made judges dependent on his will alone, for the tenure of their offices, and the amount and payment of their salaries.”

To acknowledge the great importance of an interest is not to give the government a free pass on showing that the interest is implicated by the restriction. Nixon v. Shrink Missouri Government PAC, 528 U.S. 377, 392, 120 S.Ct. 897, 145 L.Ed.2d 886 (2000) (‘We have never accepted mere conjecture as adequate to carry a First Amendment burden.”). The question in this case is whether “partisan” is a fair proxy for “partial,” or “biased” or, stated another way, whether allowing judges and judicial candidates to join a political party will make it more likely that in fact or as perceived by the public, judges will decide cases on the basis of their political affiliation rather than their view of the law.

a. Bias toward particular litigants

At first look, it might appear that SCR 60.06(2)(b)l furthers the state’s interest in preventing bias or its appearance when a political party or closely associated person or entity appears as a litigant in a judge’s court. After all, it has long been recognized that “no man is permitted to try cases where he has an interest in the outcome.” In re Murchison, 349 U.S. 133, 136, 75 S.Ct. 623, 99 L.Ed. 942 (1955).

Although the issue is subject to debate, one might argue that even when no money or personal relationship is involved, a judge may appear to have an “interest” in a case in which one of the litigants is a group to which he belongs. American Bar Association, Model Code of Judicial Conduct, Rule 2.11(A) (2007) (“A judge shall disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned.”) But see White II, 416 F.3d at 755 (“[T]he fact that the matter comes before a judge who is associated with the Republican or Democratic Party would not implicate concerns of bias for or against that party unless the judge were in some way involved in the case beyond simply having an “R” or “D,” or “DFL” (denoting Minnesota’s Democratic-Farmer-Labor Party) after his or her name.”); Florence County Democratic Party by Moore v. Johnson, 281 S.C. 218, 314 S.E.2d 335 (1984) (recusal not required just because judge had been affiliated with litigant political party before becoming judge).

Assuming that the government has a compelling interest in keeping judges from deciding cases in which their own political party is a litigant, a closer inspection of SCR 60.06(2)(b)l reveals that it does nothing to further that interest. In fact, the rule may actually hinder the interest in preventing bias.

An assumption that SCR 60.06(2)(b)l prevents potential bias in favor of a political party rests on another assumption: that invalidating the rule will create political preferences where none existed before. This would be true only if invalidation meant that judges and candidates were required to join a political party. In fact, it would merely permit those who already have a political preference to acknowledge it formally. I am not prepared to make the next assumption, which is that any judge like plaintiff who has stated his desire to join a party will become any more partisan-minded simply because he registers as a Democrat.

The current rule does not eliminate potential bias, but only hides it. One could argue that abolishing the rule furthers an interest in preventing biased judges from hearing cases. If those judges revealed their political affiliation, parties who thought the affiliation would make the judge biased against them could move for recusal. (An increase in motions for recu-sal can present many administrative difficulties, particularly in judicial districts with only one judge, but that is not a reason for upholding a ban against the provision of arguably relevant information.) As it stands now, there may be any number of state court judges who have strong political preferences in fact, but litigants are unable to learn this information because it is banned by the rule.

It is hard to argue that withholding the truth about a judge’s or candidate’s political preferences furthers a compelling interest in reducing the appearance of bias for or against particular litigants or that adopting a policy of “ignorance is bliss” is a compelling or even legitimate way to maintain public confidence in the judiciary. The state has no interest in making judges appear open minded when in fact they are not. Jerome Frank, Courts on Trial: Myth and Reality in American Justice 3 (1949) (“It is a mistake ... to try to establish and maintain, through ignorance, public esteem for our courts.”).

b. Improper influence

In determining whether SCR 60.06(2)(b)l furthers an interest in preventing judges from deciding cases for partisan reasons or appearing to do so, the first step is to properly identify the scope of the rule and plaintiffs challenge to it. Defendants says that plaintiff is “at-taek[ing] the entire nonpartisan structure of the Wisconsin judiciary,” Dfts.’ Br. at 8, dkt. #49, but that is a significant overstatement. It is important to note that plaintiff is not trying to force the state to place his party affiliation on the ballot; he is not asking to become a party leader or even become involved in party affairs; and he is not challenging the rule against “appealing] to partisanship” in the context of an election. SCR 60.06(2)(a). Rather, he is simply asking to be able to tell the truth about his political preference. Thus, I need not decide whether any of those other activities might be prohibited without violating the First Amendment. The issue in this case is whether defendants’ interests in a fair judiciary are implicated by allowing plaintiff to “be a member of [a] political party.” SCR 60.60(2)(b)l. This is another distinction between Wisconsin’s rule and the law at issue in Letter Carriers, 413 U.S. at 576, 579 n. 21, 93 S.Ct. 2880, which restricted the political activities of federal employees but permitted them to be party members and “express [an] opinion on political subjects and candidates.”

Defendants have little evidence to support their contention that their interest in preventing improper influence is furthered by SCR 60.06(2)(b)l. Spargo v. New York State Commission on Judicial Conduct, 244 F.Supp.2d 72, 88 (N.D.N.Y.2003) (noting “attenuated connection” between absolute prohibitions on political activity and need to prevent judicial bias). In fact, what little evidence defendants have may support plaintiffs position rather than their own.

1) Wisconsin’s history of judicial elections

Defendants rely primarily on Wisconsin’s own judicial history as evidence of the danger of partisan elections. This line of argument misses the mark. Plaintiff is not trying to change the ballot or give parties control over nominations. Defendants predict that party membership will lead to party control, but they have neither produced any evidence nor developed an argument in support of that prediction.

Even if I consider Wisconsin’s history of judicial elections, it does not help defendants’ case. Defendants argue that the danger of a partisan judiciary is shown by several controversial Wisconsin judicial elections held in the 1800s when candidates still ran under a partisan label. For example, defendants say that Justice Crawford was not re-elected in 1855 because of a dissent in a case about the Fugitive Slave Act and that Chief Justice Dixon almost lost his campaign for reelection a few years later after a dissent in a related case. These incidents do not support a conclusion that improper party influence led to a particular outcome in a case or even to a perception of such influence. In the case of Chief Justice Dixon, he voted against what appears to have been his party’s view at the time. Rather, what these incidents suggest is that whether elected judges are partisan or nonpartisan, they may face retribution from the voters when they take unpopular stances on legal issues. E.g., Gerald F. Uelmen, Crocodiles in the Bathtub: Maintaining the Independence of State Supreme Courts in an Era of Judicial Politicization, 72 Notre Dame L.Rev. 1133, 1133 (1997) (discussing defeat of Tennessee Supreme Court Justice Penny White in nonpartisan retention election after she joined controversial decision reversing death penalty conviction). See also White I, 536 U.S. at 782, 122 S.Ct. 2528 (noting that “elected judges ... always face the pressure of an electorate who might disagree with their rulings and therefore vote them off the bench”).

Defendants point to the “informal tradition” that developed in legislative caucuses in the latter part of the 19th century to obtain a partisan balance on the court. It is unclear how that practice could be viewed as showing the corrupting power of political parties on the court. If anything, it suggests that when party affiliation is out in the open, efforts are made to insure that the court represents different viewpoints, which many would consider to be a positive development that would have a moderating effect on the court. Richard A. Posner, Law, Pragmatism and Democracy 120 (2003) (acknowledging that “[v]al-ues ... influence judicial decisions” and arguing that “diverse judiciary” is important to prevent ideological hegemony on courts); Stephen J. Choi and G. Mitu Gulati, Trading Votes for Reasoning, 81 S. Cal. L.Rev. 735, 739 (2008) (“[Jjudges appear to moderate their voting in settings where there is potential diversity in political views.”).

It appears that in the late 19th and early 20th centuries, party labels lost any significance they may have had for Wisconsin judicial candidates, even before the legislature made the elections officially nonpartisan in 1913. In 1909, the state supreme court had a Democratic majority, “despite the fact that voters consistently elected Republican governors and legislatures during this time and the Democratic party was very weak. Little attention was paid to ... partisan affiliations of the justices, demonstrating the absolute disappearance of partisan considerations by that time.” DPFOFT31,dkt#50.

Even after judicial elections became nonpartisan in 1913, party membership was permitted until 1968. During that time, two special committees prepared reports regarding the Wisconsin judiciary. The 1915 report stated that Wisconsin judges are “retained in the service without regard to political considerations term after term” and the 1938 report stated that Wisconsin judicial elections remained “completely nonpartisan” and that “the Wisconsin judicial system is not in any dire need of change.” Far from showing that party membership would doom the Wisconsin judiciary to corruption and bias, Wisconsin history suggests that a judicial candidate’s political affiliation had little effect on voters’ choices or judges’ decision making.

The only other evidence defendants offer on the subject is the opinion of their expert, who says that Wisconsin’s “judges should maintain a nonpartisan appearance and should take care not [to] be perceived as advocates of a particular party.” Ran-ney Aff. ¶ 19, dkt. # 54. Although defendants’ expert may be highly qualified to testify about Wisconsin legal history, he is not an expert on public opinion or the effect on public opinion that a particular rule might have. (It is unlikely that anyone could be recognized as such an expert in the context of a lawsuit.) The sole basis for the expert’s opinion is Wisconsin’s judicial history, which I have concluded does not support defendants’ position.

2) experience of other states

A dozen states employ officially partisan elections with respect to at least some judgeships. American Judicature Society, “Methods of Judicial Selection” available at http:// www.judicialselection.us/judicial_ selection/methods/selection_of_judges.cfm? state = (last visited Feb. 6, 2009) (identifying the following states as employing partisan elections for at least some judicial offices: Alabama, Illinois, Kansas, Louisiana, Michigan, New Mexico, New York, Ohio, Pennsylvania, Tennessee, Texas and West Virginia). Other states have nonpartisan elections but do not have Wisconsin’s prohibition on party membership. One would think that if partisan behavior in judicial elections were as detrimental to the integrity of the judiciary as defendants say, so many states would not continue to maintain that system for so long, sometimes more than 150 years. F. Andrew Hanssen, Learning about Judicial Independence: Institutional Change in the State Courts, 33 J. Legal Stud. 431, 435 (“New York became the first state to use partisan judicial elections to select its high-court justices in 1847”) Whatever the experience of these states and the probability of data about that experience, neither side has made it a part of the record.

The only information on this issue was provided by plaintiff, who cited a survey of Minnesota residents published in January 2008, more than two years after Minnesota judges were permitted to join political parties. Of those surveyed, 76% said they had “confidence” in Minnesota judges, compared to 66% for the governor, 58% for the state legislature, 55% for lawyers and 48% for political parties. In addition, 78% said that the word “impartial” described Minnesota judges “very well” or “well,” even though 65% said the same with respect to the word “political,” suggesting that many believe the two ideas are not mutually exclusive. Justice at Stake, “2008 Minnesota Public Opinion Poll on Judicial Selections,” available at http:// www.justiceatstake.org/node/15 (last visited Feb. 6, 2009). Although defendants question the survey results, they do not point to any contrary data.

It is true that some states holding partisan judicial elections have been criticized for especially contentious elections or controversial decisions that some view as harming the judiciary’s reputation. E.g., Ferris K. Nesheiwat, Judicial Restraint, 24 Quinnipiac L.Rev. 757, 790-91 (2006) (discussing partisan Ohio Supreme Court race in 2002 involving “huge sums of money” donated by interest groups, numerous attack ads and charges of unethical behavior by the candidates). However, there is no indication that the problems are peculiarly related to having a partisan election rather than to the election process itself or the way the campaigns were funded. James Sample, David Pozen and Michael Young, Brennan Center for Justice, Fair Courts: Setting Recusal Standards (2008) (noting that fund raising for judicial elections between 2000 and 2004 had increased 67% from previous four years to $123 million and concluding that, “[o]f the emerging threats to judicial impartiality and the appearance of impartiality, perhaps most fundamental is the influence of money.”); Brian Troutman, Party Over? The Politics of North Carolina’s “Nonpartisan” Elections, 86 N.C. L.Rev. 1762, 1781 (2008) (discussing North Carolina’s recent change from partisan to nonpartisan judicial elections and concluding same problems remained while voter turnout decreased); see also White I, 536 U.S. at 789-90, 122 S.Ct. 2528 (O’Connor, J., concurring) (describing threats to judicial impartiality created by “the very practice of electing judges,” including “potential electoral consequences of ... decisions” and “feeling indebted to certain parties or interest groups”).

3) Wisconsin’s recent experiences with judicial elections

Wisconsin’s own recent history demonstrates that a nonpartisan judiciary is no panacea for the problems of contentious elections or perceptions of bias. E.g., Ryan J. Foley, “New panel named to hear case against Wisconsin Justice,” AP Alert (October 28, 2008) (panel formed to determine whether state supreme court justice ran ad that was “deliberately misleading” by “suggest[ing his opponent] helped free a child rapist”); Dee J. Hall, “Supreme Court’s newest member reprimanded over conflicts of interest,” Wisconsin State Journal (May 29, 2008) (state supreme court justice reprimanded for sitting on cases involving bank for which her husband served as director); Marie A. Failinger, Can a Good Judge Be a Good Politician?, 70 Mo. L.Rev. 433, 447 (Spring 2005) (noting that 75% of all cases coming before Wisconsin Supreme Court in 1990s involved lawyer, firm or company that had contributed to one or more of its justices).

With respect to the problem of campaign contributions in particular, a recent survey of 600 Wisconsin residents showed that 78% of those polled believe that such contributions have “a great deal” or “some” influence on Wisconsin judges’ decisions and that 65% support public financing in judicial elections. Justice at Stake, “2008 Wisconsin Public Opinion Poll on Judicial Selections,” available at http:// www.justiceatstake.org/node/15 (last visited Feb. 6, 2009). In light of the perceived influence of campaign donors, it seems almost disingenuous to say that mere party membership is the real threat. After all, joining a party is simply a statement of belief; in itself, it does not suggest that a candidate is beholden to the party in the way that accepting a contribution does.

This brings up a related question, which is whether the gag order imposed by SCR 60.06(2)(b)l is fooling anyone. Many if not most judicial candidates have political lives before their judicial campaigns and often are easily identified as “Republican” or “Democrat” even if they do not explicitly run as such. Certainly, the political parties themselves have had no difficulty picking “their” candidate in recent Wisconsin judicial elections. Dee J. Hall, “Judicial Races More Partisan,” Wisconsin State Journal (Nov. 18, 2008) available at 2008 WLNR 22059128(noting that candidates Linda Clifford and former Justice Louis Butler received substantial assistance from Democratic organizations in their campaigns while Republican Party supported now-Justices Annette Ziegler and Michael Gableman and former Justice Diane Sykes). The voters should be given at least as much credit for their ability to figure things out for themselves. Once that reality is acknowledged, it is difficult to argue that the government has a compelling interest in stopping judges and candidates from saying out loud what everyone already knows.

4) other considerations

Whatever the cause of the problems confronting the judicial election process, it is likely that it is not because there are too few speech restrictions. In fact, after the Supreme Court held in White I that “announce” clauses are unconstitutional, “the general report on judicial campaign activity was that the rhetoric and ‘attacks’ were less frequent and more restrained — even though largely voluntary — than in the 2000 judicial campaign season.” Ferris K. Nesheiwat, Judicial Restraint, 24 Quinni-piac L.Rev. 757, 789 (2006). The same is true regarding the public’s perception of the judiciary. A recent study concluded that “the strictness of a state’s code of judicial conduct does not significantly affect how impartially that state’s judges are perceived,” suggesting that little is to be gained from severely curtailing the First Amendment rights of judicial candidates. Benjamin B. Strawn, Do Judicial Ethics Canons Affect Perceptions of Judicial Impartiality?, 88 B.U.L.Rev. 781, 785 (2008). By limiting the information available to voters, the primary contribution of expansive speech restrictions may be nothing more than “reducing competition and protecting incumbents.” C. Scott Peters, Canons, Cost and Competition in State Supreme Court Elections, 91 Judicature 27 (Jul.-Aug. 2007) (“[I]ncumbents would likely benefit from less competitive elections if ethical restrictions make it more difficult for campaigns to communicate their views to voters.”)

Of course, it would be unrealistic to say that a judge’s political affiliation has no effect on his decision making process. For example, a Republican may be more likely to view himself as a “strict constructionist” while a Democrat may be more likely to believe in a “Living Constitution.” But to say that a judge comes to the bench with certain beliefs about the proper functioning of government does not necessarily make him unfit to serve. As Oliver Wendell Holmes, Jr., recognized, “the life of the law” is not cold logic, but “experience,” including “the felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, even the prejudices which judges share with them fellow men.” Oliver Wendell Holmes, Jr., Common Law 1 (1881) (emphasis added). It is simply not possible, or even desirable, to stamp out all the views a judge had before he took the bench and little to be gained from pretending that we can.

Many groups to which a judge belongs may have an influence on his judicial philosophy and interpretation of the laws. For example, in a recent book Judge Pos-ner noted a study finding that Roman Catholic judges are 11% more likely to rule against gay rights than Protestant judges and 25% more likely to do so than Jewish judges. Richard A. Posner, Law, Pragmatism and Democracy 120 (2003) (citing Daniel R. Pinello, Gay Rights and American Law 203). Does this mean that Catholics (or Protestants or Jews) should be forced to recuse themselves in cases in which gay rights are at issue? Or to make the question even more similar to this case, that judges should be prohibited from religious affiliation because of the effect it might have on their decisions? The answers to these questions are obvious. We expect that judges will do their best to set aside their religious beliefs when deciding legal questions even if we understand that their personal experiences may inform their judgment.

As with potential bias toward particular litigants, even if one believes that a judge with a partisan preference is more likely to decide cases for partisan reasons, prohibiting him from publicly acknowledging that preference does nothing to make him more open minded. It only allows him to pretend that he is. The best way to eliminate potential bias is to shine a light on it, not cover it up.

Similarly, any argument that a policy of openness will undermine public confidence in the judiciary is unpersuasive. Again, it is dubious that the state has a legitimate interest in maintaining public confidence in the judiciary by concealing information. In the context of a democratic election, “you can’t handle the truth,” is rarely an adequate justification for a restriction on speech.

Further, in Wisconsin, the voters, not the government, have the final say regarding which judges keep their jobs. If the voters believe that a candidate who declares his party preference will erode their confidence in the judiciary, they may quickly send that message by refusing to elect him. As Justice Stevens wrote in White I, 536 U.S. at 797, 122 S.Ct. 2528 (Stevens, J., dissenting), those who believe that judicial candidates are acting improperly are free to exercise their own First Amendment rights by attempting to persuade the voters of their view.

By limiting the speech available to voters, the government is taking the paternalistic view that the voters cannot be trusted to exercise their rights wisely. If that is indeed what the government believes, it has a duty to educate voters about the qualifications for judges or change its system of judicial selection. Marie Hojnacki & Lawrence Baum, Choosing Judicial Candidates: How Voters Explain Their Decisions, 75 Judicature 300, 300-02 (1992) (concluding that voting behavior depends on kind of information voters receive). The problem of an uninformed public should not be solved by depriving them of even more information than they otherwise might have. Eu v. San Francisco County Democratic Central Committee, 489 U.S. 214, 228, 109 S.Ct. 1013, 103 L.Ed.2d 271 (1989) (any argument that government is “enhancing the ability of its citizenry to make wise decisions by restricting the flow of information to them must be viewed with some skepticism”).

4. Narrow tailoring: underinclusiveness

Even if I assumed that SCR 60.06(2)(b)l furthered inter