On December 11, the 9th circuit ruled that groups organized to pass a ballot measure may not be forced to disclose their internal campaign messages. The controversy arose over the California campaign for Proposition 8 last year. Proposition 8, an initiative, banned same-sex marriages. After the measure passed, its opponents filed a federal lawsuit, arguing that a ban on same-sex marriages violates the Equal Protection Clause of the U.S. Constitution.

As the trial proceeded in U.S. District Court, proponents of same-sex marriages asked the U.S. District Court to order the other side to produce its internal memos on campaign strategy. The District Court said the internal memos should be produced, but the 9th circuit has now countermanded that order. The 9th circuit said, “The potential chilling effect on political participation and debate is substantial”. The 38-page decision is here, and is a useful document describing earlier precedents that have ruled in favor of political privacy. The earliest federal precedents are from the 1950’s, when the U.S. Supreme Court stopped several southern states from forcing the NAACP to produce its membership lists, and lists of people who had contributed to it. Thanks to HowAppealing for the link.

The U.S. Supreme Court clerk has revealed that the Court will not issue any full opinions until January 11, 2010. Election law fans are looking forward to the Court’s campaign finance decision in Citizens United v Federal Election Commission. Thanks to ElectionLawBlog for this news.

This AP story, dated December 11, discusses the push by retired Justice of the U.S. Supreme Court Sandra Day O’Connor and many others to persuade states not to elect state court judges any longer. One reason is that when judges must be elected, they need campaign contributions. That, in turn, means that they appear indebted to the people who give them large campaign contributions, and sometimes those individuals are in court before those judges.

It does seem to be true that appointed judges do a better job than elected judges. The best state court decisions involving constitutional issues concerning the treatment of minor party and independent candidates, during the last fifteen years, have come from New Jersey state courts. All New Jersey state court judges are appointed. New Jersey trial level courts and mid-level appellate courts have struck down numerous laws that discriminated against minor parties. Laws have been struck down that banned voters from registering into unqualified parties, laws that inhibited who can circulate petitions, and laws that treated qualified parties more favorably than unqualified parties in matters of campaign finance.

By contrast, the worst state court decisions involving those issues in the last fifteen years have come from the Pennsylvania state courts. All Pennsylvania state court judges are elected on a partisan basis. Pennsylvania state courts during the period 2004 through the present have consistently upheld a unique system in which candidates who try to petition, and fail to get enough valid signatures, can be charged with up to $80,000 in court fees.

Pennsylvania state courts also removed a Reform Party candidate in 2003 from the ballot under a law that had already been declared unconstitutional by the 3rd circuit in 1999. The state court said, “Decisions of intermediate federal courts are not binding on state courts.” However, when a federal court declared a state law unconstitutional, and no appeal is taken, that law is void and cannot be enforced.

And, Pennsylvania state courts are the only courts in the nation that consistently uphold a county distribution requirement for statewide candidate petitions, even though the U.S. Supreme Court has ruled against such requirements and reiterated that decision, Moore v Ogilvie, in Bush v Gore.