LOUISVILLE (LN) — The Sixth Circuit on Tuesday issued a narrow ruling in favor of two former Kentucky judicial candidates, holding that state rules banning party affiliations and specific endorsements violate the First Amendment as applied to their 2022 campaign speech. However, the court reversed the district court’s grant of facial relief against the Endorsement Rule, declining to invalidate the rule broadly.
In an opinion by Judge Thapar, the panel held that the Nominee Rule and Endorsement Rule of the Kentucky Code of Judicial Conduct were unconstitutional as applied to Joseph Fischer and Robert Winter. The candidates had identified themselves as "conservative Republicans" and used endorsements from pro-life groups during their campaigns.
Fischer and Winter faced complaints from individuals who alleged they undermined judicial integrity by publicly identifying as Republican nominees and seeking partisan endorsements. The Commission sent warning letters shortly, citing Rules 4.1(A)(6) and 4.1(A)(7), which prohibit candidates from holding themselves out as party nominees or using endorsements from political organizations.
The candidates sued for declaratory and injunctive relief, arguing the rules chilled their protected speech. The district court granted summary judgment to the candidates on most claims, enjoining enforcement of the Nominee and Commitment Rules as applied, and the Endorsement Rule facially. The Commission appealed.
The Sixth Circuit affirmed the district court’s ruling that the candidates had standing and that the case was not moot, rejecting the Commission’s argument that it had disavowed enforcement. The court noted the Commission retained jurisdiction to punish the candidates for their 2022 conduct and had not dismissed the underlying complaints.
On the merits, the court found that Fischer’s use of the phrase "the conservative Republican" and a generic elephant logo did not constitute a claim of formal party nomination. Thapar wrote that such terms are "shorthand" for conveying general ideological positions, not assertions of official party endorsement.
"The same goes for Winter’s statements that he was also 'conservative' and a 'Republican,'" Thapar wrote. "So both Winter’s and Fischer’s statements about their personal political affiliations were protected by the First Amendment."
The court also ruled that the Commitment Rule, which bans pledges on issues likely to come before the court, did not prohibit the candidates from using endorsements from Kentucky Right to Life and Northern Kentucky Right to Life. The court determined that "Choose Life" signs and associated endorsements communicated a position on abortion but did not amount to a pledge to rule a certain way in future cases.
"The candidates’ as-applied challenges succeed, so we don’t address their facial challenges," Thapar wrote. "The Commission is permanently enjoined from taking any action against the candidates for... Fischer’s use of an elephant that is not the official logo of the Republican Party... and Fischer’s and Winter’s use of Kentucky Right to Life’s and Northern Kentucky Right to Life’s endorsements."
The court explicitly reversed the district court’s grant of facial relief against the Endorsement Rule, declining to invalidate the rule broadly because the as-applied injunction provided sufficient relief to the candidates. The court also affirmed the denial of facial relief against the Nominee Rule.
Judge Jeffrey Griffin concurred in part and dissented in part, arguing the candidates lacked standing because they did not face a "credible threat of enforcement." Griffin contended the Commission’s warning letters were not enforcement actions and that the candidates’ fear of sanction was speculative.
The Commission is now barred from sanctioning Fischer and Winter for their specific 2022 campaign conduct, including their party identification and use of pro-life group endorsements, but the rules themselves remain on the books.