## United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________
No. 09-1578

___________ Gregory Wersal, *

* Appellant, *

* v. *

* Patrick D. Sexton, in his official * capacity as Chair of the Minnesota * Board of Judicial Standards; William J. * Egan, in his official capacity as a * Member of the Minnesota Board of * Appeal from the United States Judicial Standards; Douglas A. Fuller, * District Court for the District of in his official capacity as a Member of * Minnesota. the Minnesota Board of Judicial * Standards; Jon M. Hopeman, in his * official capacity as a Member of the * Minnesota Board of Judicial Standards; * Cynthia Jepsen, in her official capacity * as a Member of the Minnesota Board of * Judicial Standards; E. Anne McKinsey, * in her official capacity as a Member of * the Minnesota Board of Judicial * Standards; Gary Pagliaccetti, in his * official capacity as a Member of the * Minnesota Board of Judicial Standards; * James Dehn, in his official capacity as a * Member of the Minnesota Board of * Judicial Standards; Kent A Gernarder, * in his official capacity as Chair of the * Minnesota Lawyers Professional * Responsibility Board; Vincent A. * Thomas, in his official capacity as Vice *Chair of the Minnesota Lawyers * Professional Responsibility Board; * Kathleen Clarke Anderson, in her * official capacity as a Member of the * Minnesota Lawyers Professional * Responsibility Board; Mark R. Anway, * in his official capacity as a Member of * the Minnesota Lawyers Professional * Responsibility Board; Robert B. Bauer, * in his official capacity as a Member of * the Minnesota Lawyers Professional * Responsibility Board; Joseph V. * Ferguson, III, in his official capacity as * a Member of the Minnesota Lawyers * Professional Responsibility Board; * Wood R. Foster, Jr., in his official * capacity as a Member of the Minnesota * Lawyers Professional Responsibility * Board; Susan C. Goldstein, in her * official capacity as a Member of the * Minnesota Lawyers Professional * Responsibility Board; Sherri D. * Hawley, in her official capacity as a * Member of the Minnesota Lawyers * Professional Responsibility Board; * Lynn J. Hummel, in her official * capacity as a Member of the Minnesota * Lawyers Professional Responsibility * Board; Geri L. Krueger, in her official * capacity as a Member of the Minnesota * Lawyers Professional Responsibility * Board; Ann E. Mass, in her official * capacity as a Member of the Minnesota * Lawyers Professional Responsibility * Board; Mary L. Medved, in her official * capacity as a Member of the Minnesota * Lawyers Professional Responsibility *

-2-Board; David A. Sasseville, in his * official capacity as a Member of the * Minnesota Lawyers Professional * Responsibility Board; Debbie * Toberman, in her official capacity as a * Member of the Minnesota Lawyers * Professional Responsibility Board; * Dianne A. Ward, in her official capacity * as a Member of the Minnesota Lawyers * Professional Responsibility Board; * Stuart T. Williams, in his official * capacity as a Member of the Minnesota * Lawyers Professional Responsibility * Board; Jan M. Zender, in her official * capacity as a Member of the Minnesota * Lawyers Professional Responsibility * Board; William P. Donohue, in his * official capacity as a Member of the * Minnesota Lawyers Professional * Responsibility Board; Marne Gibbs * Hicke, in her official capacity as a * Member of the Minnesota Lawyers * Professional Responsibility Board; * Richard H. Kyle, Jr., in his official * capacity as a Member of the Minnesota * Lawyers Professional Responsibility * Board; Michael W. Unger, in his * official capacity as a Member of the * Minnesota Lawyers Professional * Responsibility Board; Daniel R. * Wexler, in his official capacity as a * Member of the Minnesota Lawyers * Professional Responsibility Board; * Randy R. Staver, in his official capacity * as a Member of the Minnesota Board * of Judicial Standards; Honorable Terri * Stoneburner, in her official capacity as *

-3-a Member of the Minnesota Board of * Judicial Standards, *

* Appellees. *

___________ Submitted: December 16, 2009 Filed: July 29, 2010 (corrected 8/9/10)

___________ Before BYE, BEAM, and COLLOTON, Circuit Judges.

___________ BEAM, Circuit Judge.

This case presents the que stion of whether three provisions of the Minnesota
Code of Judicial Conduc t (Code) unconstitutionally in fringe upon First Amendment rights of judicial candidates. Gregory Wers al, a candidate for Justice of the Minnesota Supreme Court, asserts that the so calle d "endorsement," "personal solicitation," and "solicitation for a political organizati on or candidate" clauses of Canon 4 1 are unconstitutional on their face or as applied to him. On cross-motions for summary judgment, the district court rejected Wers al's First Amendment claims and granted summary judgment to the appellees–members of the Minnesota Board of Judicial Standards and the Minnesota Lawyers Pro fessional Responsibility Board. Wersal appeals, and we reverse.

1 When Wersal initiated this lawsuit, th ese clauses were set forth in Canon 5. Prior to this appeal, however, the Minneso ta Supreme Court revised the Code. See Order Promulgating Revised Minn. Code of Judicial Conduct, No. ADM08-8004 (Minn. Dec. 18, 2008) (effectiv e July 1, 2009), available at http://www.bjs.state.mn.us. As a result of those revisions, the challenged clauses are now located in Canon 4.

-4-I. BACKGROUND

This case has its roots in Republi can Party of Minnesota v. White , 536 U.S. 765 (2002) (White I ), and this court's prior en banc decision, Republican Party of
Minnesota v. White , 416 F.3d 738 (8th Cir. 2005) (en banc) (White II ). In those opinions, Wersal, among others, successfu lly challenged the so called "announce," "partisan-activities," and "solicitation" clauses of Canon 5 on First Amendment grounds. White I , 536 U.S. at 788 (announce clause); White II , 416 F.3d at 766 (partisan-activities and solicitation clauses). In an effort to bring the Code into compliance with the White decisions, the Minnesota Supreme Court removed the "announce" and "partisan-activities" clau ses from the Code and amended the
"solicitation clause." Wersal now maintain s that the amendments to the solicitation
clause do not cure its invasion of his First Amendment rights, and that the endorsement clause improperly restricts expression protected by the First Amendment.

The endorsement clause–Canon 4.1(A )(3)–and the solicitation clauses–Canon 4.1(A)(4) and (6)–each rein in a judicial candidate's 2speech. 3 The endorsement clause prevents a judicial candidate from "public ly endors[ing] or, except for the judge or candidate's opponent, publicly oppos[ing] another candidate for public office." 52 Minn. Stat. Ann., Code of Judicial Conduct, Canon 4.1(A)(3 ). The personal solicitation clause prohibits a judicial candidate from "personally solicit[ing] or accept[ing] campaign c ontributions," id. at 4.1(A)(6), and the solicitation for a political organization or candidate clause provides that a judicial candidate shall not

2 The Code defines "judicial candidate" as "any person, including a sitting judge, who is seeking selection for judicial office by election or appointment." 52 Minn. Stat. Ann., Code of Judicial Conduct, Terminology.

3 Notably, Canon 4 applies to both judi cial candidates and to non-candidate judges. See52 Minn. Stat. Ann., Code of Judi cial Conduct, Canon 4.1. We review the constitutionality of these clauses only as they apply to judicial candidates.

-5-"solicit funds for a political organization or a candidate for public office," id. at 4.1(A)(4)(a). 4

The facts of this case indicate the degr ee to which these particular provisions have chilled Wersal's speech. In early 2007, Wersal announced his intention to run
for the office of Chief Justice of the Minne sota Supreme Court. As part of his campaign, Wersal wanted to publicly e ndorse certain other candidates for public office. Specifically, he desired to support Tim Tinglested, candidate for Associate Justice of the Minnesota Supreme Court, Glen Jacobsen, candidate for Minnesota District Court Judge, and Michele Bachmann, candidate for United States Congress. However, the endorsement clause prevente d Wersal from engaging in any such public
endorsement of these candidates.

Moreover, Wersal wanted to personally solicit funds for his 2008 campaign from non-attorneys by going door-to-door a nd by making personal phone calls asking for financial support although he pledged (and continues to pledge) to recuse himself from any case in which a know n contributor is or becomes a party. However, the personal solicitation clause specifically barre d him from engaging in such activity, and Wersal felt that the solicitation for a political organization or candidate clause further constrained his efforts in seeking financial contributions from non-attorneys. Accordingly, Wersal believed that he coul d not wage an effective campaign as long
as the endorsement and solicitation clauses re mained in force. He, therefore, asked for injunctive and declaratory relief in the di strict court. After it became apparent that Wersal would not be able to get ade quate relief prior to the 2008 campaign, he decided not to run for the Minnesota Suprem e Court in 2008, but to instead run for the

4 These clauses are subject to certain other requirements and exceptions listed in Canons 4.2 and 4.4 of the Code. 52 Minn. Stat. Ann., Code of Judicial Conduct, Canon 4.2(A)(5), B(3) & 4.4(B)(1). We d eal with these additional requirements and exceptions in more detail below.

-6-Minnesota Supreme Court during the 2010 elections. 5 In furtherance of his 2010 campaign, Wersal wishes to engage in conduct parallel to that which he sought to engage during the 2008 campaign. However, ju st as in 2008, Wersal continues to feel limited by the contested clauses.

In granting the appellees' motion for summary judgment, the district court held (1) Wersal's challenge to the solicitation fo r political organization or candidate clause was not ripe; and (2) the endorsement and personal solicitation clauses were narrowly tailored to meet the state's legitimate inte rest in protecting judicial impartiality.

II. DISCUSSION

A. Judicial Selection and Political Speech

Minnesota chooses to elect the judges of its courts. Minn. Const. art. 6, § 7.
While we have confe ssed "some bias in favor of a system for the appointment of judges," the sovereignty of the states w ithin our federal system guarantees that "Minnesota may choose (and has repeatedly chosen) to elect its appellate judges."
White II , 416 F.3d at 746, 747. But "[i]f Minnesota sees fit to elect its judges, which it does, it must do so using a process that passes constitutional muster." Id. at 748.

Minnesota has enacte d Canon 4 of the Code in an effort to regulate judicial
elections. In White I , the Supreme Court held the announce clause, which prohibited judicial candidates from stating their view s on disputed legal issues, unconstitutional.
In White II , an en banc court of this circuit he ld the partisan-activities and solicitation

5 According to the Minnesota Secretary of State, Wersal has now filed to run in 2010 against Associate Justice Helen Meyer for the position she now occupies on the Minnesota Supreme Court. Minnesota S ecretary of State, Candidate Filings, http://candidates.sos.state.mn.us/ (follow "J udicial Offices" hyperlink) (last visited June 23, 2010).

-7-clauses unconstitutional. It now falls to this panel to determine whether the endorsement, personal solicitation, and solicitation for a political organization or candidate clauses are permissible under the First Amendment.

The First Amendment provides that "Congr ess shall make no law . . . abridging the freedom of speech." U.S. Const. amend. I. Inherent within this protection is the "corresponding right to associate with others in pursuit of a wide variety of political, social, economic, educational, religious, a nd cultural ends." Roberts v. U.S. Jaycees

, 468 U.S. 609, 622 (1984); see also Buckley v. Valeo , 424 U.S. 1, 15 (1976) ("The First Amendment protects political associati on as well as political expression."). And, the First Amendment is made applicable to the states through the Due Process Clause
of the Fourteenth Amendment. Mc Intyre v. Ohio Elections Comm'n , 514 U.S. 334, 336 n.1 (1995).

The political speech burdened by the clauses at issue in this case is "the very
stuff of the First Amendment." White II , 416 F.3d at 748. Indeed, "'the constitutional guarantee [of the freedom of speech] has its fullest and most urgent application precisely to the conduct of campaigns for political office.'" Id. (alteration in original) (quoting Buckley , 424 U.S. at 15). Our system of representative democracy relies on such a protection of political speech, "for it is the means to hold officials accountable to the people." Citizens United v. FEC , 130 S. Ct. 876, 898 (2010); see also Buckley

, 424 U.S. at 14-15 ("In a republic where the people are sovereign, the ability of the citizenry to make informed choices among ca ndidates for office is essential, for the
identities of those who are elected will inev itably shape the course that we follow as a nation."). "For these reas ons, political speech must preva il against laws that would suppress it, whether by design or inadvertence." Citizens United , 130 S. Ct. at 898.

Indeed, so strong is the protection of political speech that the Court recently indicated that "it might be maintained th at political speech simply cannot be banned or restricted as a categorical matter." Id. However, the Court stopped short of

-8-placing a categorical ban on political speech re strictions, choosing instead to examine laws burdening political speech under "strict scrutiny." Id. Thus, we only permit restraint of political speech where, upon stri ct scrutiny, the regulation "advances a compelling state interest and is narrowly tailored to serve that interest." White II , 416
F.3d at 749.

Canon 4's restrictions on endorsement s of candidates and solicitation of campaign funds directly limit judicial candidates' political speech. And, Canon 4's
restriction on whom a candidate may endorse limits a candi date's right to associate with others who share common political beliefs and aims. Thus, Minnesota's
endorsement and solicitation clauses burden political speech and must be examined under strict scrutiny.

B. Canon 4.1(A)(4)(a)'s Ripeness

Before we apply strict scrutiny to the clauses, we must first ask whether Wersal's challenge to the political organi zation or candidate solicitation clause–Canon 4.1(A)(4)(a)–is ripe for revie w. This clause provides that a judicial candidate shall not "solicit funds for a political organizati on or a candidate for public office." 652 Minn. Stat. Ann., Code of Judicial Conduct, Canon 4. 1(A)(4)(a). The district court held that Wersal's challenge to this restriction was notripe because the intent of this rule was to restrict candidate's from soliciting funds for political parties and other candidates. Specifically, the court held thatthe issue was not ripe because (1) the clause had never been applied to a candidate's solicitations for his or her own campaign; (2) Wersal's campaign committee was not a "political organization" as defined by the Code; (3) Wersal had not sought an advisory opinion as to whether the clause would apply to

6 Canon 4.1(A)(4)(b) also prohibits a judicial candidate from making "a contribution to a candidate for public o ffice." Wersal has not challenged the application of the "contribution clause ," and we refrain from reviewing it.

-9-solicitations for his campaign; and (4) Wersal 's interpretation was an absurd reading of the Code which was contrary to its plain meaning. We disagree.

The ripeness doctrine "prevent[s] the c ourts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements." Abbot Labs. v.
Gardner , 387 U.S. 136, 148 (1967), rev'd on other grounds , Califano v. Sanders , 430 U.S. 99, 105 (1977). Before th e federal courts may addre ss a question, "there must exist 'a real, substantial controversy between parties having advers e legal interests, a dispute definite and concrete, not hypothetical or abstract.'" Neb. Pub. Power Dist. v. MidAmerican Energy Co. , 234 F.3d 1032, 1037-38 (8th Cir. 2000) (quoting Babbitt
v. United Farm Workers Nat'l Union , 442 U.S. 289, 298 (1979)). Accordingly, to determine whether a dispute is ripe for judi cial review we consider "(1) the hardship to the plaintiff caused by delayed review; (2) the extent to which judicial intervention would interfere with administrative action; and (3) whether the court would benefit from further factual development." Nat' l Right to Life Political Action Comm. v.
Connor , 323 F.3d 684, 692-93 (8th Cir. 2003) (citi ng Ohio Forestry Ass'n v. Sierra
Club , 523 U.S. 726, 733 (1998)).

The district court's ripeness analysis is fl awed in four ways. First, the fact that the clause has never been applied to pr ohibit a candidate from soliciting contributions for his or her own campaign does not dis positively indicate that the provision would never be so applied. S econd, although Wersal's own campaign committee is not a "political organization" under the Code, 7 the clause also prohibits a candidate from soliciting "funds for . . . a candidate for public office," which includes Wersal himself in this instance. 52 Minn. Stat. Ann., C ode of Judicial Conduct, Canon 4.1(A)(4)(a)

7 "For purposes of this Code, the term [political organization] does not include a judicial candidate's campai gn committee . . . ." 52 Minn. St at. Ann., Code of Judicial Conduct, Terminology, "Political Organization."

-10-(emphasis added). 8 And, as we noted in White II , clauses which restrict a candidate from soliciting funds for his own campaign are content-based restrictions which burden core political speech. 416 F.3d at 763-64. Accordingly, a plain reading of this clause chills Wersal from engaging in speec h–solicitation of funds–which this court has already held is protected First Amendment expression.

Third, we do not rigidly require that the plaintiff seek a pre-enforcement advisory opinion where, as here, the re gulation at issue chills protected First Amendment activity. SeeMinn. Citizens Concerned for Life v. FEC , 113 F.3d 129, 132 (8th Cir. 1997); see also Virginia v. Am. Booksellers Ass'n , 484 U.S. 383, 393 (1988) (noting "self-censorship [is] a harm that can be realized without an actual prosecution"); Majors v. Abell , 317 F.3d 719, 721 (7th Cir. 2003) (stating that "[a] plaintiff who mounts a pre-enforcement challe nge to a statute that he claims violates his freedom of speech need not show that the authorities have threatened to prosecute him; the threat is latent inthe existence of the statute" (citations omitted)). Moreover, the appellees could very easily have drafte d an advisory opinion in response to this litigation indicating that the clause would not be applied to a candidate's solicitation of funds for his own campaign. That the appellees did not to do so indicates that the clause more than likely does apply to Wers al's desires to solicit funds for his own campaign.

Fourth, our reading of this clause is ne ither absurd nor contrary to any other provision in the Code. Although the clause may have been intended to prevent a judicial candidate from soliciting funds for another candidate's campaign, neither the
clause itself nor the Canon as a whole compels such a reading. We note that under our

8 Giving the term "candidate," its or dinary or natural meaning, seeCrawford v. Metropolitan Government of Nashville and Davidson County , 129 S. Ct. 846, 850 (2009), means "a person who seeks an offi ce." Random House Webster's Unabridged Dictionary 304 (2d ed. 1997). Since Wersal is seeking an elected office, he is a "candidate." Accordingly, under a plain reading of the clause, it prohibits Wersal from soliciting funds for his own candidacy. -11-reading, this clause is similar to, if not redundant with, the personal solicitation clause. But, the mere fact that a Code is redundantis not evidence of its absurdity. Morever, we decline to impart a different meani ng to language that plainly prevents the soliciting of funds for one's own campaign.

Where a regulation, such as Canon 4.1(A)(4)(a), chills protected First Amendment activity, its hardship upon the plaintiff is sufficiently substantial to justify a pre-enforcement declaratory j udgment action. Minn. Citizens , 113 F.3d at 132. Morever, we generally consideran issue to be fit for judi cial decision when the issue involved is legal rather than factual. Seeid. Here, the issue presented requires no further factual development, is largely a legal question, and chills protected First Amendment expression. Thus, to the ex tent that the solicitation for a political organization or candidate clause prevents Wersal from soliciting funds for his own campaign, there exists a real, substantial and concrete dispute, and the issue is ripe for
review.

C. Constitutional Framework

Having found that Wersal's challenge to the solicitation for a political organization or candidate clause is ripe, we now turn to the constitutional issues
before us.

1. Facial vs. As-Applied Challenges

Wersal encourages us to examine the facial constitutionality of these clauses. Alternatively, Wersal asserts that the cl auses are at least unconstitutional as-applied. Therefore, we begin our constitutional an alysis by determining whether we will examine these challenges as an as-applie d challenge or as a facial challenge.

The Supreme Court cautions against hol ding a law facially unconstitutional and encourages us to exercise "judicial restraint in a facial challenge." Wash. State
-12-Grange v. Wash. State Republican Party , 552 U.S. 442, 450 (2008). Indeed, "a plaintiff can [generally] only succeed in a f acial challenge by 'establish[ing] that no
set of circumstances exists under whic h the [law] would be valid.'" Id. at 449 (second alteration in original) (quoting United States v. Salerno , 481 U.S. 739, 745 (1987)). Accordingly, "a facial challenge must fail where the [law] has a plainly legitimate sweep." Id. (internal quotation omitted).

However, in the realm of regulations th at chill speech, the Court has relaxed this standard, recently noting that "a [regulati on] which chills [protected] speech can and
must be invalidated where its facial i nvalidity has been demonstrated." Citizens
United , 130 S. Ct. at 896. Moreover, "the va lidity of [a] regulation depends on the relation it bears to the overall problem th e government seeks to correct, not on the extent to which it furthers the government's interest in an individual case." United States v. Edge Broad. Co. , 509 U.S. 418, 430 (1993) (quotation omitted).

The endorsement clause chills speech "that is beyond all doubt protected[,] mak[ing] it necessary in this case to" review the facial validity of that regulation.
Citizens United , 130 S. Ct. at 896. As to the solicitation clauses, Wersal's averments are very limited. He asserts only that his efforts to pers onally solicit funds for his own campaign from non-attorneys are thwarted by the clauses, Compl. ¶¶ 22, 44; Appellant's Br. 15, 55, apparently recogn izing that solicitation from attorneys may well raise different issues, particularly in view of the "very specific information about campaign contributions . . . publicly available, notably on the Internet." White II , 416 F.3d at 765 n.16; see also Siefert v. Alexander , No. 09-1713, 2010 WL 2346659, at *14 (7th Cir. Jun. 14, 2010) (noting that recusal from all cases involving a broad range of attorneys from whom the candidate so licited contributions could present serious practical problems for the state judici ary). Accordingly, we review the constitutionality of the solicitation clauses only as-applied to Wersal's desire to solicit from non-attorneys for his own campaign.

-13-2. Strict Scrutiny

Any regulation which curtails political speech violates the Constitution unless it can withstand strict scrutiny review. White II , 416 F.3d at 749. To survive strict scrutiny, the state must "show that the la w that burdens the protected right advances a compelling state interest and is narrowly tailored to serve that interest." Id. This
examination "is best described as an end-and-means test th at asks whether the state's purported interest is important enough to ju stify the restriction it has placed on the speech in question in pursuit of that interest." Id. at 750.

To determine whether an interest (the e nd) is "important enough" to justify the abridgement of core constitutional rights, we examine the regulation (the means) purportedly addressing that end. Id.

A clear indicator of the degree to whic h an interest is "compelling" is the tightness of the fit between the re gulation and the purported interest: where the regulation fails to addre ss significant influences that impact the purported interest, it usually flushes out the fact that the interest does not rise to the level of being "compelling."

Id. If the interest is sufficiently compelli ng, then we ask whether the regulation (the means) used to meet that end is "narrowly tailored to serve that interest." Id. at 751. Determining whether a regulation is narro wly tailored requires an examination of
several related factors. As we stated in White II

,

A narrowly tailored regulation is one that actually advances the state's interest (is necessary), does not sweep too broadly (is not overinclusive ), does not leave significant influences bearing on the interest unregulated (is not underinclusive), and coul d be replaced by no other regulation that could advance th e interest as well with less infringement of speech (is the l east-restrictive alternative).

-14-Id. In other words, a regulation which burdens political speech will only withstand constitutional scrutiny if it is "as preciselytailored as possible" to meet a very important end. Id.

D. Minnesota's Purported Compelling State Interest: Impartiality

Minnesota maintains that its interests inmaintaining judicial impartiality and the appearance thereof are co mpelling interests worthy of supporting its regulation of judicial candidates' speech. 9 In White I , the Supreme Court defined the bounds of Minnesota's interest in judicial impartiality , providing that impartiality in the judicial context had three potential meanings.

One such meaning of "impartiality" is a "lack of preconception in favor of or against a particular legal view ." White I , 536 U.S. at 777. Acco rding to the Court,
Minnesota does not have a co mpelling interest in seeking judges who "lack . . . predisposition regarding the relevant legal issues in a case." Id. This is because "[p]roof that a Justice's mind at the tim e he joined the Court was a complete tabula

rasa in the area of constitutional adjudi cation would be evidence of lack of qualification, not lack of bias." Id. at 778 (quotation omitted) . Thus, Minnesota has no compelling interest in preventing judicial preconceptions on legal issues. Id.

A second meaning of "impartiality" is "l ack of bias for or against either party to [a] proceeding." Id. at 775. This notion "assures equal application of the law" because it "guarantees a party that the j udge who hears his case will apply the law to him in the same way he applie s it to any other party." Id. at 776. The Supreme Court implied, and we have expressly held "that this meaning of impartiality describes a

9 As Justice O'Connor aptly notes, "If th e State has a problem with judicial impartiality [or its appearance], it is largely one the State brought upon itself by continuing the practice of popularly electing judges." White I , 536 U.S. at 792 (O'Connor, J., concurring). -15-state interest that is compelling." White II , 416 F.3d at 753. Because protecting litigants from biased judges presents a co mpelling state interest, the only question remaining is whether each or any of the challenged clauses is narrowly tailored to meet this compelling interest. We a ddress this question in Part E below.

The third meaning of "impartiality" is "described as openmindedness," meaning "not that [the judge has] no preconceptions on legal issues, but that he be willing to consider views that oppose his preconcepti ons, and remain open to persuasion, when
the issues arise in a pending case." White I , 536 U.S. at 778. In other words, it is impartiality that "seeks to guarantee each litigant, not an equal chance to win the legal points in the case, but at least some chance of doing so." Id. The Court refrained from determining whether impartiality articul ated as "openmindedness" constitutes a compelling state interest, finding instead that even if it were a compelling interest, the announce clause was "woefully underinclusive " to meet such an interest. Id. at 780.
In White II , we determined that the clauses at issue were similarly "woefully underinclusive" to serve an interest in openmindedness. 416 F.3d at 758, 766. 10 Likewise, the underinclusiveness of Canon 4's endorsement and solicitation clauses illustrates that they are, as well, woefully underinclusive inserving any such interest, whether it is compelling or not. We address this underinclusiveness below.

10 In White II , we noted that "the underinc lusiveness of Canon 5's partisan activities clause clearly establishe[d]" that judicial openmindedness was not "sufficiently compelling to abridge core First Amendment rights." 416 F.3d at 759. Specifically, we held that "the partisan-ac tivities clause [left] appreciable damage to the supposedly vital interest of judi cial openmindedness unprohibited, and thus Minnesota's argument that it protects an inte rest of the highest order fails." Id. at 760. While the same may be said of the clauses at issue in this case, we pass on the question of whether openmi ndedness constitutes a compe lling interest, focusing our analysis instead on the narrow tailoring of the clauses. -16-E. Narrow Tailoring

Although Minnesota has a compelling intere st in promoting impartiality defined as a lack of bias against parties and possi bly has a compelling in terest in promoting impartiality defined as openmindedness, the constitutionality of the challenged regulations turns on whether the regulations are narrowly tailored to meet either of these interests. As noted above, a regul ation is narrowly tailored only where it is necessary, not overinclusive, notunderinclusive, and is the l east restrictive alternative to address the purported state interest. Id. at 751. Each of the three clauses must independently meet this analysis. We hold that all three fail.

1. The Endorsement Clause

The endorsement clause of Canon 4.1(A)(3 ) prohibits a judicial candidate from "publicly endors[ing] or, except for th e judge or candidate's opponent, publicly oppos[ing] another candidate for public office. " 52 Minn. Stat. Ann., Code of Judicial Conduct, Canon 4.1(A)(3). 11 This restriction depends wholly upon the subject matter of the speech for its invocation. Candidates are not barred from talking about other candidates for any purpose other than endorsing or opposing them. "Restricting speech based on its subject matter triggers th e same strict scruti ny as does restricting core political speech." White II , 416 F.3d at 763-64. This is because "[t]he First Amendment's hostility to content-based regulation extends not only to restrictions on particular viewpoints, but also to prohibiti on of public discussion of an entire topic." Carey v. Brown , 447 U.S. 455, 462 n.6 (1980) (quotation omitted).

11 Wersal only challenges the "endorsement" provision of the clause. -17-Additionally, the endorsement clause burdens core political speech. 12As we
noted in White II

"[A] candidate, no less than any other person, has a First Amendment right to engage in the discussion of public issues and vigorously and tirelessly to advocate his own el ection and the el ection of other candidates. Indeed, it is of particul ar importance that candidates have the unfettered opportunity to make th eir views known [and associate with like-minded persons] so that the elect orate may intelligently evaluate the candidates' personal qualities and their positions on vital public issues before choosing among them on election day. Mr. Justice Brandeis' observation that in our country pub lic discussion is a political duty, applies with special force to candidate s for public office. . . . [T]he First Amendment simply cannot tolerate [a] restriction upon the freedom of a candidate to speak [or associate] without legislative limit on behalf of his own candidacy."

416 F.3d at 757 n.8 (alterations in original) (quoting Buckley , 424 U.S. at 52-54). Thus, the endorsement clause burdens political expression because it impairs a candidate's ability to vigorously advocate th e election of other candidates, associate with like-minded candidates, and, thus, vi gorously advocate his or her own campaign. Such a burden on core political speech trigge rs strict scrutiny. Citizens United , 130 S. Ct. at 898; see also White II , 416 F.3d at 748-49. Accordingly, the endorsement clause, which is a content-ba sed restriction on core political speech, is subject to strict scrutiny review.

12 Appellees argue that endorsements are not necessary to run an effective campaign. Such an inquiry, however, is irrelevant as to whether restricting endorsements burdens core political speech. Instead, the inquiry is whether the infringed expression would communicate relevant information to the electorate. See White I , 536 U.S. at 782 ("We have never allowed the government to prohibit candidates from communicating relevant info rmation to voters during an election."). -18-a. Unbiased Judges

The appellees contend that the endorsement clause is narrowly tailored to serve Minnesota's compelling interest in impartiality articulated as a lack of bias for or against parties to a case. According to th e appellees, endorsements pose a particularly acute danger to impartiality defined in this manner because a public endorsement for a candidate indicates a judicial candidate's bias towards the endorsed party. Thus, argue the appellees, the endorsement clause is a necessary evil to protect from such a display of favoritism towards potential litigants. We disagree.

To be sure, the endorsement clause app ears more narrowly tailored to serve the state's interest in preserving a bench of judges who are unbiased towards parties than
was the announce clause at issue in White I . In particular, in White I the Court noted
that the announce clause was not directed to restrict "speech for or against particular parties , but rather speech for or against particular issues ." 536 U.S. at 776. The endorsement clause, on the other hand, appears aimed at restricting speech for or against particular parties . But, "[t]he question under our strict scrutiny test . . . is not whether the [endorsement] clau se serves this interest at all , but whether it is narrowly
tailored to serve this interest." Id. at 777 n.7. The endorse ment clause fails this analysis.

The endorsement clause is overinclusiveto meet this end, restricting more speech than is necessary to prevent a public display of favoritism. Although endorsements do indicate a particular conn ection between endorse r and endorsee, a candidate may also use an endorsement as a proxy for expressing his or her views. Indeed, in some instances, endorsing a well- known candidate is a highly effective and efficient means of expressing one's own views on issues. For example, in 1984, much of the country was aware of Ronald Reagan's platform in his bid to serve a second term as President. A judicial candidate who agreed with President Reagan's wellestablished views on, for instance, a strictinterpretation of the Constitution or the need for judicial restraint, might have be tter and more effectively publicized his own -19-subjective views by endorsing Mr. Reagan's candidacy, even though it was for a nonjudicial office. The same would likely havebeen true if it had involved President Bill Clinton's campaign for re-election in 1996. Thus, whether it may be wise or necessary
for one candidate to endorse another, from one simple stat ement the judicial candidate can announce his or her own views on a myriadof matters. And, it is highly unlikely that any such similar endorsee would beco me a party in a state judge's court. Therefore, though the endorsement clause is aimed more narrowly at restricting speech dealing with potential parties , its reach tends to prevent candidates from expressing views on issues as well.

The district court agreed that "endorse ment of a particular candidate might serve as a proxy for a position on an issue" but distinguished the clause from our partisan-activities clause analysis in White IIby concluding that such a "connection lacks the force and immediacy society applies to the political organization–political
issue link." Wersal v. Sexton , 607 F. Supp. 2d 1012, 1022-23 (D. Minn. 2009). We think this analysis is flawed. As we noted in White II , engaging in partisan activities served to link a judicial candidate to th e views espoused by the political party with which he aligns. White II , 416 F.3d at 754-55. In some respects, the association with another candidate is stronger indicia of the beliefs of the endorser than is an association with a political party. Particularly, a statemen t that one is a "Republican"
or a "Democrat" or an "Inde pendent" might tip the electorate off as to the type of policies that the candidate w ould support or reject. But, endorsing a well-established candidate denotes a particular subset of issues and policies with which the endorsing candidate may subscribe. Accordingly, we ascribe the same, if not greater, "force and immediacy" to the link between endorser a nd endorsee as we do between a candidate and a political party. Thus, the endorsementclause clearly restricts more speech than is necessary to serve an inte rest in impartiality articulated as a lack of bias for or against parties to a proceeding.

The overinclusiveness of the endorsementclause is further illustrated by the appellees' suggestion that the endorsement of certain candidates poses an acute risk
-20-of a showing of bias for or against partic ular litigants. Specifically, the appellees are troubled by the notion that a judicial candi date could endorse candidates for sheriff and county attorney–persons who are likely to repeatedly app ear as litigants or representatives of litigants in Minnesota courts. We understand this concern. But, the clause is not so cabined. It prohibits endorsements regardless of the likelihood that the endorsee will ever appear as a party inthe state's courts. Indeed, the clause prohibits a judicial candidate from endor sing numerous candidates who are unlikely to ever personally appear as parties in Minnesota litigation, for instance the President of the United States or any Governor, Congr essman or Senator from a state other than Minnesota. Given that the state's compelli ng interest in preserving a lack of bias extends only to preventing bias for or against a party to a proceeding , White I , 536 U.S. at 775, the endorsement clause easily restricts more speech than necessary to
serve that asserted interest.

The endorsement clause is also underi nclusive in purporting to serve the compelling interest of electing unbiased judges. In particular, the clause only prevents a candidate from endorsing other candidates for public office. Thus, a judicial candidate may endorse a public official or a potential candidate for office so long as the endorsee has not yet officially filed fo r office. Moreover, the endorsement clause would permit a candidate to endorse the acts and policies of non-candidates no matter the likelihood of their becoming litigants in a case before the court–that is businesses, labor unions, the ACLU or any public offi cials not running for office. Thus, the clause's underinclusiveness belies its purported purpose of preserving impartiality defined as a lack of bias for parties.

Finally, a categorical ban on endorsements is not the least restrictive nor the most effective means of limiting party bias or its appearance. Instead, where a person who received the judge's endorsement appears before that judge, "recusal is the least restrictive means of accomplishing the state's interest in impartiality articulated as a lack of bias for or against parties to the case." White II , 416 F.3d at 755. In fact, "[t]hrough recusal, the same concerns of bias or the appearance of bias that Minnesota
-21-seeks to alleviate through the [endorsement ] clause are thoroughly addressed without 'burn[ing] the house to roast the pig.'" Id. (third alternation in original) (quoting Butler v. Michigan , 352 U.S. 380, 383 (1957)). Indeed, that Canon 2 requires a judge to recuse "himself or herself in any proceed ing in which the judge's impartiality might reasonably be questioned," is evidence of that fact. 52 Minn. Stat. Ann., Code of Judicial Conduct, Canon 2.11(A). And, "[c]oncern about the mere appearance of bias is also addressed by recusal." White II , 416 F.3d at 755 (second alteration in original). This is because in Minnesota, "[t]he controlling [recusal] principle is that no judge . . . ought ever to [hear] the cause of any citizen, even though he be entirely free from bias in fact , if circumstances have arisen which give a bona fide appearance of bias to litigants." In re Collection of Delinquent Real Prop. Taxes , 530 N.W.2d 200, 206 (Minn. 1995) (emphasis in original).

The appellees contend that recusal is not the most effective means to address the bias allegedly created by endorsements. They fear that if the state required a judge
to recuse from all cases wher e a party to the litigation wa s previously endorsed by that judge, they would be forced to recuse th emselves from a great number of cases, or at least from a great number of important cases. We disagree.

First, even if a judge felt compelled to recuse himself from those cases in which he had previously endorsed a party to a laws uit, it would seemingly be an ineffective campaign strategy for a judicial candidate to endorse persons almost certain to be future litigants. That is to say, to the extent the state is concerned about a judge endorsing the local sheriff and then having to recuse from all cases in which the sheriff is involved (whether as a party or material witne ss), it would be foolish as a matter of campaign strategy for a judicial candi date to follow such a course of action. It is almost certain that the electorate, especially if notified by a campaign opponent, would reject this tactic. Thus, we belie ve the electoral marketplace will adequately guard against the "parade of ho rribles" the appellees advance.

-22-Second, and perhaps most importantly , contrary to the appellees' views, Caperton v. A.T. Massey Coal Co. , 129 S. Ct. 2252 (2009), is not inapposite. In Caperton , while a case was pending before the Supreme Court of Appeals of West Virginia, the CEO of an appealing corporation spent over $3 million supporting Brent Benjamin's campaign for a seat on the court of appeals. Id. at 2257. Once Benjamin won the seat, the appellee requested that Ben jamin recuse himself. Benjamin refused.
Id.

In the present case, the appellees conte nd that Benjamin's refusal to recuse in
the face of enormous financial contributions evidences that recusal is an ineffective means of addressing potential bias. However, this argument ignores the fact that the Court remedied the due pr ocess harm in Capertonby requiring recusal. Id. at 2263- 65. And, as the Supreme Court has recently noted "Caperton 's holding was limited to the rule that the judge mu st be recused, not that th e litigant's political speech could
be banned." Citizen's United , 130 S. Ct. at 910. The harm in Caperton was that the judge refused to recuse himself, not that he originally accepted the $3 million in contributions. Accordingly, Caperton 's holding does not require that a judge refuse to speak during his or her campaign, only that due process demands that certain actions which occur during a judicial campaign may later require recusal. And, to the extent a judge remains reluctant to recuse from cases post-Caperton , Minnesota "remain[s] free to impose more rigorous sta ndards for judicial disqualification" than due process requires. Caperton , 129 S. Ct. at 2267 (quotation omitted).

Accordingly, the endorsement clause is not narrowly tailored to serve any interest in electing unbiased judges and it is clearly not the least restrictive means of doing so. Thus, the clause fails strict scrutiny.

b. Openmindedness

To the extent that openmindedness cons titutes a compelling state interest, the endorsement clause is woefully underinclusi ve. As with the announce clause in White -23-I and the partisan-activities clause in White II , the endorsement clause was not adopted for the purpose of preserving the openness of a judge to differing legal arguments. See White I , 536 U.S. at 778; White II , 416 F.3d at 756. And, we do not believe that a judicial candidate's endorseme nt of another candidate indicates that as a judge he or she will be any less open to alternate legal conceptions of a case. Moreover, while the endorsement clause may be an indicat or of views on issues, "an
affirmative enunciation of views duri ng an election campaign more directly
communicates a candidate's beliefs." White II , 416 F.3d at 758. "If, as the Supreme Court has declared, a candidate may speak about her views on disputed issues, what appearance of 'impartiality' is protected by keeping a candidate from simply associating with a party that espouses the same or similar positions on the subjects about which she has spoken?" Id. Finally, if, as this court has determined, a candidate may associate with a political party without affecting the judge's openness to legal views, then what actual or apparent impartiality is protected by keeping the candidate from associating with one or more individuals on the basis of their stated views?
Given this "woeful underinclusiveness" of th e endorsement clause, "it is apparent that advancing judicial open-mindedness is not th e purpose that 'lies behind the prohibition
at issue here.'" Id. (quoting White I , 536 U.S. at 779).

c. Other Purported Interests

The appellees contend that the endorseme nt clause is narrowly tailored to two
other interests not a ddressed in either of the previous Whitedecisions. The first such interest is the matter of preventing a judi cial candidate from "abusing the prestige of
office." To the extent that this interest is compelling, the e ndorsement clause is not narrowly tailored to address such an in terest because it prevents both judicial candidates who are currently judges–those who could abuse the office–and candidates who are not currently judges–persons w ho cannot abuse any office because they currently hold no office–from making endorse ments. Accordingly, the clause is overinclusive in meeting such an interest and fails strict scrutiny.

-24-The second interest proffere d by the appellees is an interest in "protecting the political independence of the judiciary." 13 The very fact that Minnesota has chosen to elects its judges is indicative of its de sire to promote an electorally accountable judiciary. Accordingly, Minnesota, by its current system, has itself created a politically motivated judiciary, bedevili ng any claim it has in removing politics from the process. Moreover, how an interest in "protecting the political independence of the judiciary" is any different from an in terest in preserving impartiality eludes us.
SeeWhite I , 536 U.S. at 775 n.6 (collapsing a purported interest in an "independent judiciary" with an interest in impartiality ). Thus, if impartiality cannot save the clauses, neither can an interest in "p rotecting the political independence of the judiciary."

13 Relying on a notion of separati on of powers, the White II dissent crafted a similar independence interest noting that "[ t]he separation of powers interest is a concern for institutional independence that is distinct from concern for impartiality in any of the senses identified by [White I ]." White II , 416 F.3d at 773 (Gibson, J., dissenting). The White II court, however, rejected such a "separation of powers" interest as a compelling interest. Id. at 752 n.7. In particular, we noted two reasons why judicial independence is not a compe lling interest: (1) no other court "has ever determined that a state's interest in main taining a separation of powers is sufficiently compelling to abridge core First Ame ndment freedoms;" and (2) "nothing in our opinion . . . serve[d] to further blur any existing lines between the judicial, legislative and executive branches of Minnesota state government." Id. Today, appellees continue to rely on the separation of pow ers to support the endorsement clause, yet they only cite one unreported district court case in which such an interest was even discussed: Carey v. Wolnitzek , No. 3:06-36-KKC, 2008 WL 4602786, at *9 n.10 (E.D. Ky. Oct. 15, 2008), aff'd in part, vacated in part , Nos. 08-6468/6538, 2010 WL 2771866 (6th Cir. July 13, 2010). However, undermining their assertions is the fact that the Wolnitzek court itself refused to identify a separate interest in judicial independence, noting that any such intere st was "subsumed within the compelling state interests in prohibiting judicial bias against parties and preserving judicial openmindedness." Id. Thus, we still find no court which finds the interest in maintaining a separation of powers sufficient to abridgecore First Amendmen t expression. And, just as was the case in White II , nothing in our opinion today serves to blur the lines between the three branches of government. -25-2. Personal Solicitation Clause

The personal solicitation clause of Canon 4. 1 provides, in relevant part, that a judicial candidate shall not "personally solicit or accept campaign contributions other than as authorized by Rules 4.2 and 4.4." 52 Minn. Stat. Ann., Code of Judicial Conduct, Canon 4.1(A)(6). Canons 4.2 and 4.4 permit a candidate to solicit
contributions under certain circumstances. First, the candidate's campaign committee may solicit funds on behalf of the candidate but may not disclose to the candidate the
names of contributors. Id. at Canon 4.2(B)(1) & 4.4(B)(3). Second, in response to
White II , Canon 4.2(B)(3) permits a candidate to

(a) make a general request for campaign contributions when speaking to an audience of 20 or more people;

(b) sign letters, for distribution by the candidate's campaign committee, soliciting campaign contributions, if the letters direct contributions to be sent to the address of the candidate's campaign committee and not that of the candidate; and

(c) personally solicit campaign contributions from members of the judge's family, from a person with whom the judge has an intimate relationship, or from judges over whom the judge does not exercise supervisory or appellate authority.

Id. at Canon 4.2(B)(3). As stated previously , we review the valid ity of these clauses only as-applied to Wersal's desire to solicit contributions from non-attorneys.

In White II , we held the solicitation clause subj ect to strict scrutiny because (1) it restricted speech based wholly upon th e subject matter of the speech and (2) it restricted the amount of funds a judicial ca ndidate is able to raise, burdening political speech. 416 F.3d at 763-64. Although Minneso ta has amended the solicitation clause
in an effort to more narrowl y tailor it to the state's interest in preserving judicial impartiality, the clause still serves as a c ontent-based restriction which burdens core

-26-political speech. Under strict scrutiny, th e appellees must prove that applying the personal solicitation clause to Wersal's e fforts to solicit from non-attorneys furthers a compelling interest and is narrowly tailored to achieve that interest. SeeFEC v. Wis. Right to Life, Inc. , 551 U.S. 449, 464 (2007).

a. Unbiased Judges

"Keeping candidates, who may be elect ed judges, from directly soliciting money from individuals who may come beforethem certainly addresses a compelling state interest in impartiality as to parties to a particular case." Id. at 416 F.3d at 765. Moreover, the solicitation of funds may in fact create the app earance of impropriety in terms of the appearance of a quid pro quo . And, pursuant to Caperton , "there is a
serious risk of actual bias . . . when a person with a persona l stake in a particular case ha[s] a significant and disproportionate in fluence in placing the judge on the case by raising funds [for the judge's campaign] . . . when the case was pending or imminent." 129 S. Ct. at 2263-64. Accordingly, when judicial candidates fundraise, there is a risk
that the candidate will be biased toward s contributors and against non-contributors. Such a risk, however, inheres in the very practice of judicial elections. See White I

, 536 U.S. at 789-90 (O'Connor, J., concurring) ("[T]he cost of campaigning requires judicial candidates to engage in fundrai sing. Yet relying on campaign donations may leave judges feeling indebted to certain parties or interest groups." ). In other words, as long as Minnesota chooses to elect its judges using a system of private financing,
it will be faced with the concern that contri butions may impair at least the appearance of a judge's impartiality.

We note that the personal solicitation clause, as amended, is certainly more narrowly tailored to an interest in impartiality than was its predecessor. Yet, "[i]t seems unlikely . . . that a judicial candidate , if elected, would be a 'judge [who] has a direct, personal, substantial, pecuniary interest in reaching a conclusion [for or] against [a litigant in a case],'" based on wh ether the judicial candidate had solicited that litigant for a contribution. White II , 416 F.3d at 765 (third, fourth and fifth
-27-alterations in original) (quoting Tumey v. Ohio , 273 U.S. 510, 523 (1927)). This is
because such a risk comes not in the mere solicitation–the "ask"–but rather in the resulting contribution. As we noted in White II , the real due process harm comes not from the fundraising itself, but rather from a judicial candidate being able to trace
contributions back to individual donors. White II , 416 F.3d at 765; see also Weaver
v. Bonner , 309 F.3d 1312, 1323 (11th Cir. 2002) ("Successful candidates will feel beholden to the people who helped them get elected regardless of who did the soliciting of support."). Accordingly, restricting a candidate from personally soliciting funds does not address the state's interest in a non-biased judiciary. Indeed, the personal solicitation clause is underinclusivein addressing such an interest because the Canon permits the candidate's agent–th e committee–to solicit funds, but prohibits the candidate from personally soliciting the same funds. Since the identity of the
solicitor is irrelevant to the candidate's ultimate bias toward a party, Minnesota's rules on personal solicitation are not narrowly tailored to serve this interest. See Weaver
, 309 F.3d at 1322-23 (noting that the risk th at a judge "will be tempted to rule a particular way because of contributions . . . is not significantly reduced by allowing the candidate's agent to seek these contribu tions . . . on the candi date's behalf rather than the candidate seeking them himself").

Minnesota has already provided a less re strictive alternative to prevent the candidate from tracing funds. Specifically, Canon 4 provides that a judicial candidate
shall "take reasonable measures to ensurethat the candidate will not obtain any information identifying those who contribute or refuse to contribut e to the candidate's campaign." 52 Minn. Stat. Ann., Code of Judicial Conduct, Canon 4.2(A)(5). Canon 4 also specifically provides that a candidate may not "personally . . . accept campaign contributions," id. at Canon 4.1(A)(6), and prohibits the campaign committee from disclosing the identity of contributors to the candidate, id. at Canon 4.4(B)(3). And, Wersal does not challenge these requirement s and prohibitions. We believe that a candidate could be allowed to make one-on-one solicitations without learning the identity of contributors. This would effectively insulate the candidate from biasproducing knowledge and would bea less restrictive alternative than a total ban on all
-28-face-to-face fund requests. Accordingly, th e solicitation clause's categorical ban on solicitations is not narrowly tailored to serve the end of unbiased judges.

Nonetheless, the appellees maintain that soliciting door-to-door poses an acute risk because through such on-the-spot canvassi ng, a judicial candidate will be able to tell whether an individual is likely to cont ribute or not. We think not. While it may be possible that a judicial candidate through direct contact may be able to tell whether a person is likely to contribute or not, Canon 4 requires that the candidate take
reasonable measures to ensure that the candidate will not learn whether the person actually contributed. In any event, we thi nk it highly unlikely that after such a fleeting encounter, a candidate will remember wh ich solicited person indicated a likelihood of contributing to the campaign or indicated a refusal to do so.

Finally, to the extent that Minnesotais rightly concerned with personal solicitations and campaign contributions that affect the public's confidence in an unbiased judiciary, the least restrictive mean s of preventing such harm is recusal under the standards of Canon 2.11 should the judge become aware of r eceipt of a litigant's campaign contribution (or of his or her refu sal to do so). Indeed, Wersal represents that he would recuse himself from any pro ceeding in which a contributor is a party. As with the endorsement clause, recusal se rves both to protect a litigant's due process rights and a candidate's right of speech through receipt of campaign contributions.
Since "it is our law and our tradition that more speech, not less, is the governing rule,"
Citizens United , 130 S. Ct. at 911, we think the Constitution favors stricter recusal standards and fewer speech restrictions. Moreover, just as in Citizens United , the personal solicitation clause is a "categorical ban[] on speech that [is] asymmetrical to preventing quid pro quo corruption." Id. Accordingly, the application of the solicitation clause to Wersal's desire to solicit from non-attorneys simply is not narrowly tailored to address Mi nnesota's interest in impartiality defined as a lack of bias for or against parties to a proceeding.

-29-b. Openmindedness

We next address whether allowing a j udicial candidate to personally solicit face-to-face or to groups of smaller than twenty people would "in some way damage that judge's 'willing[ness] to consider views that oppose his preconceptions, and remain open to persuasion, when the issu es arise in a pending case.'" White II , 416 F.3d at 766 (alteration in original) (quoting White I , 536 U.S. at 778). Since the provisions in Canon 4 prohibit the judge fro m knowing the identity of contributors or being able to trace funds back to contribut ors, we find that it stretches credulity to
believe that solicitations will in some way affect a judge's willingness to consider differing legal views. Ac cordingly, applying the pe rsonal solicitation clause to solicitations addressed to non-attorneys is bare ly tailored, if at all, to affect the openmindedness of a judge, and fails strict scrutiny.

3. Solicitation for a Political Organization or Candidate Clause

The solicitation for a political organization or candidate clause provides, in relevant part, that a judge or candidate shall not "solicit funds for a political organization or a candidate for public office. " 52 Minn. Stat. Ann., Code of Judicial Conduct, Canon 4.1(A)(4)(a ). As we noted in the ripe ness discussion above, Wersal's challenge to this provision is only ripe to the extent that the clause restricts him from soliciting money from non-attorneys for his ow n candidacy. Accordingly, we review this clause only to that extent. Because we have already addressed the fact that restricting a candidate from soliciting contributions from non- attorneys for his or her own campaign does not meet the strictures of strict scrutiny, we simply incorporate our earlier analysis here. A nd, we hold that the solicitati on for a political organization or candidate clause, to the extent it prohi bits Wersal from soliciting funds for his own campaign from non-attorneys, fails strict scrutiny review.

-30-III. CONCLUSION

In White I , the Supreme Court struck down th e announce clause as violating a judicial candidate's free speech ri ghts. Similarly, in White II , we held that the partisan-activities and solicitation clauses did not survive strict scrutiny and thus violated the First Amendment. Today, after once again considering Minnesota's Code of Conduct, we find that the endorsement , personal solicitation, and solicitation for a political organization clauses similarly fail st rict scrutiny. We therefore reverse the district court, and remand with instruc tions to enter summary judgment for the appellant.

BYE, Circuit Judge, dissenting.

I respectfully dissent. The Court today invalidates provisions of the Minnesota Code of Judicial Conduct prohibiting judici al candidates, including sitting judges, from publicly endorsing other candidates fo r public office and personally soliciting campaign contributions. Broadly speaking, the Court makes two fundamental errors in its analysis. First, the majority c onsistently undervalues Minnesota’s compelling interest in promoting impartiality and the appearance of impartiality in the Minnesota judicial system. Second, the majority misapprehends the extent to which the provisions of the Code of Judicial Conduc t at issue today are both necessary and narrowly tailored to Minnesota’s critical interests. In striking down Minnesota’s judicial endorsement and solicitation restrictions, the Court today has unnecessarily weakened our courts–and ultimately, I fear, weakened our democracy.

I

As a preliminary matter, I disagree with the majority’s conclusion that appellant Gregory Wersal’s challenge to Rule 4.1( A)(4) of the Minnesota Code of Judicial Conduct (Code) is ripe for di sposition. “Ripeness is demonstrated by a showing that a live controversy exists such that the plaintiffs will sustain immediate injury from the -31-operation of the challenged [action], and th at the injury would be redressed by the relief requested.” Employers Ass’ n, Inc. v. United Steelworkers , 32 F.3d 1297, 1299 (8th Cir. 1994).

At the district court, Wersal argued Ru le 4.1(A)(4), which, in part, bars a judicial candidate from “solicit[ing] funds for a political organization or a candidate for public office,” prevented him from solic iting funds for his own campaign, because his own campaign is a “political organization” within the meaning of the rule. The district court held that by reading Rule4.1(A)(4) in context with the surrounding rules, nothing in Rule 4.1(A)(4) prevente d Wersal from soliciting funds (as allowed by the remaining rules) for his own campaign committee. Wersal v. Sexton , 607 F.Supp.2d 1012, 1018 (D. Minn. 2009).

After the district court ruled, but befo re we heard this appeal, the Minnesota Supreme Court amended the Code to state that “[f]or purposes of this Code, the term [political organization] does not include a judicial candidate’s campaign committee created as authorized by Rule 4.4.” SeeCode Terminology Sec tion. Thus, without a colorable argument that his campaign co mmittee qualifies as a political organization, Wersal modified his argument on appeal; Wersal now argues that Rule 4.1(A)(4)’s ban on solicitation for “a candidate for pub lic office” operates to prevent him from soliciting funds for his own campaign. I agree with the majority that Wersal is a candidate for public office under the plain meaning of the phrase, but this point should not end our analysis. While Wersal hims elf is a candidate for public office, his campaign committee is surely not. As illustrated by Rule 4.4, the campaign committee is an entity separate and distinct from the judicial candidate himself, often serving as a buffer between the judicial candidate and some of the day-to-day campaign activities. For example, Rule 4.4( B)(3) states that “[a] judicial candidate . . . shall direct his or her campaign committee . . . not to disclose to the candidate the identity of campaign contributors . . . .”

-32-To be sure, if Wersal were seeking to solicit contributions and operate his campaign without a campaign committee, then we would have no choice but to confront the constitutionality of Rule 4.1(A )(4). But, as the majority acknowledges, Wersal does not challenge the provisions of the Code involving the use of a campaign committee. Therefore, I would conclude that Wersal’s challenge to Rule 4.1(A)(4) is not ripe. Nothing in the Rule–neither the ban on soliciting funds for “a political organization” nor the ban on soliciti ng funds for “a candidate for public office”–operates to prevent Wersal from soliciting funds for his campaign committee, which is all Wersal seeks to do. By reaching out to partially invalidate Rule 4.1(A)(4), the majority today unnecessarily strikes down a provision of the Code which is simply not impli cated in this case. Cf. Edward J. DeBartolo Corp. v. Florida Gulf Coast Bldg. & Constr. Trades Council , 485 U.S. 568, 575 (1988) (“[W]here an otherwise acceptable construction of a st atute would raise serious constitutional problems, the Court will construe the statute to avoid such problems unless such construction is plainly contrary to the intent of Congress.”). Because Wersal’s challenge to Rule 4.1(A)(4) is not ripe, I would leave review of Rule 4.1(A)(4) for another day.

II

Although Wersal’s challenge to Rule 4. 1(A)(4) is not ripe, the constitutionality of the endorsement clause (Rule 4.1(A)(3)) and the solicitation clause (Rule 4.1(A)(6), 4.2(B)(3)(a)) is squarely beforethis Court. We review denovo a district court’s grant of summary judgment, viewing the eviden ce in the light most favorable to the nonmoving party. Dunning v. Bush , 536 F.3d 879, 885 (8th Cir. 2008).

A

Because I am in basic agreement with the majority’s identification of the governing constitutional framework , I will not repeat it at length here. In brief, Wersal argues the prohibitions Minnesota has placed on judicial candidates, barring
-33-them from endorsing other candidates for public office and from personally soliciting campaign contributions, violate the Fi rst Amendment to the United States Constitution. The First Amendment, ma de applicable to the states, see McIntyre v.
Ohio Elections Comm’n , 514 U.S. 334, 336 n. 1 (1995), pr ovides that “Congress shall make no law . . . abridging the freedom of speech . . . .” U.S. Const. amend. I. Because the Code’s prohibitions on endorseme nt and solicitation restrict speech by reference to the content of the targetedspeech, we must ex amine the challenged provisions using an analytical framework commonly known as strict scrutiny. Republican Party of Minn. v. White , 536 U.S. 765, 774-75 (2002) (White I ). Under the strict scrutiny analysis, the state bear s the burden of proving that the challenged provisions are (1) narrowly tailored, to se rve (2) a compelling state interest. Id.

B

Like the majority, I begin my analysis with an examination of the interests served by Minnesota’s Code of Judicial Conduct.

Minnesota 14asserts several inte rests which it argues are compelling: (1) maintaining judicial impartiality, defined as th e lack of bias for or against either party to a proceeding; (2) maintain ing the appearance of judicial impartiality; (3) promoting open-mindedness, defined as a willingne ss to consider views that oppose preconceptions, and remain open to pers uasion; (4) preventing candidates from abusing the prestige of office; and (5) protecting the political independence of the judiciary.

14 Wersal sued every member of the Minnesota Board of Judicial Standards and Minnesota Lawyers Professional Responsibility Bo ard in his or her official capacity. For ease of reading, I will refer to the defendants–appellees here–in this case as “Minnesota.” -34-As we observed in Republican Party of Minnesota v. White , 416 F.3d 738, 749 (8th Cir. 2005) (e n banc) (White II ), precisely what constitu tes a “compelling interest” is not easily defined. The Supreme Court has alternatively desc ribed the concept as an: “interest[] of the highest order,” “ overriding state interest ,” “unusually important
interest.” Wisconsin v. Yoder , 406 U.S. 205, 215 (1972); McIntyre , 514 U.S. at 347; Goldman v. Weinberger , 475 U.S. 503, 530 (1986) (O’Connor, J., dissenting). Some cases have found an interest compelling ba sed on policy grounds. For example, courts have recognized compelling interests inapprehending highly mobile criminal suspects, deterring murder, avoiding the harms of illicit drugs, realizing consumer benefits in licensing requirements for pr ofessionals, and upholding the administration of justice. SeeStephen E. Gottlieb , Compelling Governmental Interests: An Essential But Unanalyzed Term in Constitutional Adjudication , 68 B.U. L.Rev. 917, 935 n. 85 (1988) (collecting cases). Other exampl es of compelling government interests recognized by the Supreme Court include “[p]ressing public necessity” during wartime, seeKorematsu v. United States , 323 U.S. 214, 216 (1944), combating terrorism, see Holder v. Humanitarian Law Project , --- S.Ct. ----, 2010 WL 2471055, at *23 (June 21, 2010), the need to remedy sp ecific instances of past discrimination,

see Wygant v. Jackson Bd. of Ed. , 476 U.S. 267, 277 (1986), attaining “student body diversity” in higher education, see Grutter v. Bollinger , 539 U.S. 306, 325 (2003), and maintaining “prison security and discipline,” seeJohnson v. California , 543 U.S. 499, 512 (2005). Other cases have found a basis for recognizing a compelling interest in
“the realization of constitu tional guarantees .” White II , 416 F. 3d at 750 (citations omitted).

There is broad agreement that states have a compelling interest in employing judges who are actually impartial. Ind eed, due process requires that judges be impartial. See, e.g. , Tumey v. Ohio , 273 U.S. 510, 512 (1927). Actual impartiality means a judge’s lack of bias for or agains t either party to a proceeding. White I , 536
U.S. at 775.

-35-With respect to Minnesota’s asse rted interest in promoting the appearance of impartiality, we have thus far provided little–too little–examination of the subject. During oral argument in this case, I asked Wersal’s counsel whether the state of Minnesota has “a compelli ng interest here in maintaining the appearance of impartiality set apart from the state’s in terest in promoting actual impartiality?” Counsel responded, “Yes, I think they ha ve both.” Notwithstanding the parties’ agreement on the subject, I want to takea moment to explore the meaning and potential importance of Minnesota’s interest in promoting the appearance of impartiality in the state’s judiciary.

Drawing from the “core” definition of impartiality recognized in White I , the appearance of impartiality, as the phrase is used in this dissent, means the perception of a judiciary made up of judges who lack bi as for or against a particular party (or parties) to a given proceeding. To be sure, the concepts of actual and perceived impartiality are related, but they are notentirely coextensive. For example, a hypothetical judge who harbors a bias towards Catholics but shows no outward manifestations of her bias lacks impartia lity (at least in a case where one party is Catholic), but may not create the appearance of impartiality. Likewise, a judge who uses disrespectful language when addr essing criminal defendants will likely be perceived as lacking impartiality, even if the judge lacks an actual bias against any particular party. Cf. Inquiry into Conduct of Blakely , 772 N.W.2d 516, 523-26 (Minn. 2009) (per curiam) (discussing the difference between actual and perceived impropriety by a judge, and the appropriate sanction for each necessary “to protect the public by preserving the integrity of the judicial system”); Buckley v. Valeo , 424 U.S. 1, 26-27 (1976) (discussing the differences between actual and perceived corruption in our political system). Two features se rve to distinguish the concepts of actual impartiality and the appearance of impartiality . First, while the existence of actual impartiality turns on a particular judge’s me ntal state, the appearance of impartiality springs from the perceptions of people who s ee, hear, read about, or otherwise interact with one or more judges in the judicial system. Second, while an examination of actual impartiality will use a narrow le ns, usually focusing on an individual
-36-assessment of one particular judge, an inquiry into the appearance of impartiality will often focus on the aggregate: how the judi ciary is perceived by the people it serves. 15

Turning to the relative importance of maintaining the appearance of impartiality, several sources help illuminate the compelling nature of Minnesota’s interest in fostering the appearance of impartiality. There is no question that maintaining the appearance of impartiality is a central pillar to the Minnesota Code of Judicial Conduct, reflecting the Minnesota Supreme Court’s empirical judgment on the relative importance of maintaining the appearance of impartiality in the state judiciary. The Code states that “[i]nherent in all the Rules contained in this Code are the precepts that judges, individually and collectively, must respect and honor the judicial office as a public trust and strive to maintain and enhance confidence in the legal system.” Code Preamble. In add ition, judges are admonished to “avoid both impropriety and the appearance of impropriety ” and “aspire at all times to conduct that ensures the greatest possible public confid ence in their independence, impartiality, integrity, and competence.” Id. The Constitution itself points in the same direction.
Our law dictates that a mereappearance of bias, without a showing of actual bias, is
sufficient in some circumstances to violat e the due process rights of litigants. See Caperton v. A.T. Massey Coal Co., Inc. , 129 S. Ct. 2252, 2257 (2009) (holding that a party’s due process rights are violated when “the probability of actual bias on the part of the judge or decisionmaker is too high.”). Finally, relevant historical sources evince a long-held view on the importa nce of maintaining the appearance of impartiality in the judiciary. Writing insupport of ratifying the newly-written United States Constitution, Alexander Hamilton wrote:

15 In this sense, the interest in maintain ing the appearance of judicial impartiality is a close cousin to the “weighty inte rest[]” in preventing the “appearance of corruption,” which the Supreme Court described in Buckley as “stemming from public awareness of the opportunities for abuse inhe rent in a regime of large individual financial contributions.” Buckley , 424 U.S. at 27, 29. -37-The benefits of the integrity and mode ration of the judiciary have already been felt in more States than one ; and though they may have displeased those whose sinister expectations th ey may have disappointed, they must have commanded the esteem and applause of all the virtuous and disinterested. Considerate men, of every description, ought to prize whatever will tend to beget or fortify that temper in the courts: as no man can be sure that he may not be to-morrow the victim of a spirit of injustice, by which he may be a gain er to-day. And every man must now feel, that the inevitable tendency of such a spirit is to sap the foundations of public and private confidence, and to introduce in its stead universal distrust and distress.

The Federalist No. 78 (Alexander Hamilton).

The “universal distrust and distress” Hamilton described can take hold in an atmosphere where the public has lost conf idence–rightfully or not–in the impartiality of its judiciary. A perception of system ic bias can cause a chilling effect on the exercise of legal rights: parties or poten tial parties “may be re luctant to expend time and resources in a judicial system percep tibly stacked against them on account of who they are.” Tobin A. Sparling, Keeping Up Appearances: the Constitutionality of the Model Code of Judicial Conduct’s Prohibition of Extrajudicial Speech Creating the Appearance of Bias, 19 Geo. J. Legal Ethi cs 441, 472 (2006). More broadly, it is not an overstatement to say that public confid ence in the judiciary is necessary to a functioning democracy and civil society. One need not look very far beyond our borders to see the consequences where judi ciaries–rightfully or not–have lost their reputation for delivering justice. Judici al institutions are replaced by less refined methods of problem solving. Gangs, warlords, militias, and vigilante justice can easily become de facto judges and juries.

For the foregoing reasons, I would conc lude, independent of the parties’ agreement, that Minnesota has met its bur den of demonstrating a compelling state interest in (1) maintaining actual judici al impartiality and (2) maintaining the

-38-appearance of judicial impartiality. 16Cf. Swift & Co. v. Hocking Valley Ry. Co. , 243 U.S. 281, 290 (1917) (“[T]he court cannot be controlled by agreement of counsel on a subsidiary question of law.”).

The mere identification of Minnesota’s compelling state interests, however, does not, standing alone, justify the provisions of the Code Wersal challenges. Where a state seeks to protect its interests th rough content-based sp eech restrictions, as Minnesota does here, courts mu st engage in an exacting review, examining the extent to which the challenged provisions are “narro wly tailored” to the identified interests.
White I , 536 U.S. at 774-75. It is to that review I now turn.

C

As we stated in White II , “whether or not a regula tion is narrowly tailored is evidenced by factors of relatedness be tween the regulation and the stated governmental interest.” 416 F. 3d at 751.

A narrowly tailored regulation is one that actually advances the state’s interest (is necessary), does not sweep too broadly (is not overinclusive), does not leave significant influences bearing on the interest unregulated (is not underinclusive), and could be replaced by no other regulation that could advance the interest as well with less infringement of speech (is the least-restrictive alternative).

Id.

16 Because I ultimately conclude that the provisions of the Code challenged in this litigation are narrowly tailored to these two interests, I need not confront today whether the remaining interests pr offered by Minnesota are compelling. -39-1

I turn first to the endorsement clause. Rule 4.1(A)(3) provides that a judge or judicial candidate shall not “publicly endorse or, except for the judge or candidate’s opponent, publicly oppose another ca ndidate for public office.”

The endorsement clause advances the st ate’s interest in maintaining actual judicial impartiality and the appearance of impartiality. When a judge or judicial candidate endorses another candidate, the act of endorsement creates a risk that the judge will not be impartial. There is a risk the judge will harbor a bias in favor of the
endorsed candidate and those who associate with or support that candidate. Equally important, there is a risk the judge will harbor a bias against other candidates in the same race as the endorsed candidate, and those who associate with or support the
candidates who did not receive the endorse ment. Even more fundamentally, the act of endorsement directly undercuts the state’ s interest in maintaining the appearance or impartiality. By moving past the role of mere participant in the political system to the role of political power broker trading on the currency of his position, a judge who gives political endorsements creates th e perception of a judicial branch beholden to political interests. Indeed, in a recent survey of Minnesotans, ninetyone percent thought “the courts are supposedto play a unique role in our democratic system and should be free of political pr essures;” only five percent believed “the Minnesota State Courts are just like the Executive and Legislative branches of government and should not be free of political pressures.” SeeThe Minnesota Difference: The Minnesota Court Syst em and the Public (2007), available at http://www.courts.state.mn.us/documents /0/Public/Court_Information_Office/Min nesota_Courts_Final_Report_FINAL.doc. By placing political pressures on the endorsing judge, the endorsement effectively erodes the appearance of judicial impartiality.

In addition, the endorsement clause doe s not sweep too broadly. The majority first attempts to analogize the endorseme nt clause to the much broader announce
-40-clause struck down in White I . But the majority’s analysis on this point is seriously flawed. The Supreme Court held that the announce clause, which stated that a candidate for judicial office shall not “announce his or her views on disputed legal or political issues,” was not narrowly tailored to the state’s interest in maintaining actual impartiality or the appearance of impartiality. White I , 536 U.S. at 770. The Court reasoned that the announce clause “d[id] not restrict speech for or against particular parties , but rather speech for oragainst particular issues .” Id. at 776 (emphasis in original). It seems plain enough that this case presents precisely the opposite scenario: the endorsement clause restricts speech for or against parties, not issues.

The majority attempts to circumvent the clear hurdle presented by White I by positing that the endorsement clause is really just another announce clause in disguise. To illustrate its point, the majority explains that an endorsement of Ronald Reagan for President could convey a judicial candidate’s support for strict interpretation of the Constitution. The majority’s point that sp eech can and does serve as a proxy for other, underlying ideas is well taken. But, under th e lens of strict scrutiny, our focus must remain on the speech that is regulated by reference to its content . See Eu , 489 U. S.
at 222. To be sure , the endorsement clause is content-based, because the clause prohibits judicial candidates from expre ssing the idea of endorsement itself, while leaving unregulated speech on every other subject matter. But the endorsement clause, unlike the announce clause, does not regulate underlying ideas conveyed by the endorsement by reference to their content. With resp ect to a judicial candidate’s views on strict interpretation of the Constitu tion, or abortion, or same-sex marriage, or any other idea the judicial candidate wi shes to convey, the endorsement clause is entirely content-neutral. The candidate is fr ee to state: “I support (or oppose) a strict interpretation of the Constitution.” The ca ndidate could even say “I support strict interpretation, as articulated by RonaldReagan.” The only idea the candidate is barred from expressing is the idea of endorse ment itself–an idea that does not burden any other ideas or viewpoints on an unequal basis. The announce clause, by contrast, directly regulated a large class of ideas according to their content, forbidding speech on disputed legal or political issues, but leaving unregulated speech on all undisputed
-41-issues, as well as disputed issues not of a political or legal nature. SeeWhite I , 536
U.S. at 768.

The majority’s analysis thus effectively renders pointless the idea/party
distinction drawn in White I . Under the majority’s analys is, even a speech restriction on statements showing bias against a party to a proceeding would fail strict scrutiny. Following the majority’s reasoning, such a re striction would also necessarily limit the expression of secondary ideas conveyed by th e statement of bias. For example, the statement “I am biased against plaintiff Smith” could also theoretically convey a judicial candidate’s view that the court system is overburdened by frivolous lawsuits. If, as the majority suggests, we must take account in our strict scrutiny analysis of all possible secondary meanings of the statem ent of bias–even those not regulated by
reference to their content–then even a ban on speech showing bias towards a party would be overinclusive with respect to a state’s compelling interest in judicial impartiality. This is so because the ban on biased statements would impermissibly limit, according to the majority ’s analysis, the judicial candidate from expressing his
views on frivolous lawsuits. In contrast to the majority’s incorrect analytical approach, the Supreme Court has consis tently confined its strict scrutiny overinclusiveness analysis to speech regulated by its content by the terms of the speech restriction itself. For example, in Simon & Schuster, Inc. v. Members of New
York State Crime Victims Board , 502 U.S. 105 (1991) the Supreme Court struck down a New York law preventing criminals from profiting by selling books describing
their crimes. Id. at 123. The Court held the law overinclusive with respect to New York’s compelling interest in preventing criminals from profiting from their crimes, as the law would apply to “such works as the Autobiography of Malcolm X,” Civil Disobedience by Henry David Thoreau, as we ll as works by Martin Luther King, Jr.
Id. at 121. The Court concluded that the law “clearly reaches a wide range of
literature that does not enable a criminal to profit from his crime.” Id. at 122.

Our focus, therefore, wh en asking whether the endorsement clause sweeps too broadly, should not extend beyond the ideas regulated by the endorsement clause
-42-because of their content. With the prope r legal standard in mind, I would conclude the endorsement clause does not sweep too br oadly. Because, as previously discussed, every endorsement of a person carries the risk of bias, or the appearance of bias, the endorsement clause targets precisely the speech most likely to implicate Minnesota’s compelling interests. 17

Nor is the endorsement clause underinc lusive. The endorsement clause must
be read in concert with Rule4.1(A)(10) of the Code, wh ich states that “a judge or judicial candidate shall not . . . make any statement that would reasonably be expected to affect the outcome or impair the fairness of a matter pending or impending in any court . . . .” By its plain terms, Rule 4.1( A)(10) prevents a judge or judicial candidate from making any statement showing bias for or against any party, in either a pending or impending proceeding, as such a statemen t would “impair the fairness” of the case. Rule 4.1(A)(10), together with the endorse ment clause, ensures that no speech directly bearing on a judicial candidate’s bias towards a party is left unregulated.

17 The majority finds fault with the e ndorsement clause for the independent reason that not all persons who receiveendorsements will become parties in Minnesota courts. The majority’s reasoning misses the mark in three respects. First, any candidate for public office could become a party to a proceeding in Minnesota, and it is impossible to determine beforehand who will appear in court as a party and with what frequency. More importantly, the majority makes the faulty assumption that a judge who makes an endorsement w ould only potentially be biased in favor of the recipient of the endorsement herself. As previously discussed, such bias could easily extend to the endorsee’s supporters and associates, as well as other candidates who did not receive the judicial candidate’s endorsement, along with their friends and supporters. Therefore, the risk of actual bias is much greater than the majority lets on, even in cases where the endorsed candidate never appears as a party in court before the judicial candidate. Finally, the majo rity, as it does throughout its opinion, ignores the extent to which each and every endorsement creates the appearance of bias irrespective of whether the endorsed candidate ever appears in court. -43-The majority attempts to illustrate th e endorsement clause’s underinclusiveness by asserting that “a judicial candidate may endorse a public official or a potential candidate for office so long as the endorsee has not yet officially filed for office.” Ante at 21. But the majority’s assertion is incorrect in two important respects. First, in the vast run of cases, Rule 4.1(A)( 10) will prevent a judicial candidate from endorsing a public official. For example, a judicial candidate would be prevented from “endorsing” 18 a lame duck county sheriff or county attorney because doing so would “impair the fairness of a matter pendi ng or impending in any court,” as sheriffs and county attorneys continually appear incourt. Second, the majority assumes, wrongly, that a potential recipient of an endorsement is not a “candidate for public office” within the meaning of the endorsementclause until she “officially file[s] for
office.” Ante at 21. In the case of judicial candidates endorsing other judicial candidates, the majority’s assertion is demonstrably false:

A person becomes a candidate for judicial office as soon as he or she makes a public announcement of candi dacy, declares or files as a candidate with the election or appointment authority, authorizes or, where permitted, engage s in solicitation or acceptance of contributions or support, or is nominated for election or appointment to office.

Code Terminology Section. Although the C ode is silent on precisely when a nonjudicial candidate becomes a “candidate for public office,” I would construe the endorsement clause’s “candidate for public office” language consistently with the
Code’s definition of a candidatefor judicial office. In other words, a person becomes a candidate for public office when he (1 ) makes a public announcement of candidacy, (2) files, (3) authorizes or engages in solic itation, or (4) is nominated for office. Such a construction helps alleviat e the underinclusiveness identif ied by the majority. See Edward J. DeBartolo Corp. , 485 U.S. at 575 (avoidance canon of statutory

18 Obviously the concept of endorsement here would mean something different than an endorsement for office, as the public official, by hypothesis, is not a candidate for public office. -44-interpretation). In the narrow subset of cases where an “endorsement” of a person would not be barred by either the endorseme nt clause or Rule 4.1(A)(10), the speech is left unregulated precisely because these cases do not implicate Minnesota’s interests in promoting impartiality or its appearan ce. Endorsing persons who are not involved in current or impending litigation before any court and who are not running for public office presents little risk of creating actual bias, and does not raise the same quid pro quo and political independence concerns th at would lead a reasonable person to perceive a decreased appearan ce of judicial impartiality.

The majority also finds the endorsementclause underinclusive because, in the majority’s words, “the endorsement clause would permit a candidate to endorse the acts and policies of non-candidates [such as ] businesses, labor unions, the ACLU or any public officials not running for offi ce.” But the absen ce of the hypothetical speech restrictions outlined by the majority cannot be evidence of the endorsement
clause’s underinclusiveness because the speech restrictions described by the majority would be unconstitutional . As an illustration, the American Civil Liberties Union lists “free speech” as one of the organization’s “key issues,” stating that “[s]ince 1920, the ACLU has worked to pr eserve our freedom of speech.” See http://www.aclu.org/key-issues. If Minnesota attempted to prohibit judicial candidates from echoing the AC LU and announcing their views that, for example, they “work to preserve our freedom of speech,” it is beyond dispute that the prohibition would violate judicial candi dates’ First Amendment rights. SeeWhite I

,536 U.S. at 770. Indeed, the speech restrictions on “acts and policies of noncandidates” suggested by the majority woul d be woefully overinclusive according to the majority’s own analysis contained just one page earlier in its opinion! I would not require Minnesota to violate the Constitution in order to craft a constitutional
endorsement clause.

Finally, I disagree with the majority’s conclusion that recusal would adequately
address Minnesota’s interests in maintaini ng judicial impartiality and the appearance of judicial impartiality. In White II , we relied, in part, on th e availability of recusal -45-as a less-restrictive alternative in stri king down the prior Code’s partisan activities clause and parts of the solicitation clause. White II , 416 F. 3d at 754, 765-66. Implicit in our conclusion in White IIwas our understanding th at recusals would not be so frequent as to serious ly disrupt the proper functioni ng of the judicial system.
In contrast to White II , however, recusal is an inadequate remedy in a judicial system where judges and judicial candidates are permitted to endorse each other and other candidates for public office. As the distri ct court observed, recusal is unworkable “when a judge endorses an individual who is elected to a position where he or she is frequently a litigant.” Wersal , 607 F. Supp. 2d at 1023. For example, if a district court judge in a rural area endorsed the county sheriff and county attorney for reelection, the judge would be required to recuse himself in almost every criminal case–and few, if any, other judges would beavailable to take over the case load. Similarly, if an appellate court judge endorsed a slate of district court judges, the appellate court judge would have to recuse himself in every appeal reviewing the judgment of any of the endorsed district court judges. The same is true of a judicial candidate who endorsed prominent political figures in Minnesota, who are frequently parties to judicial proceedings. See, e.g. , Coleman v. Franken , 767 N.W.2d 453 (Minn. 2009); Brayton v. Pawlenty , 781 N.W.2d 357 (Minn. 2010).

In short, a system of open endorsement s would create a tangled web of conflicts that could not be solved by recusals. Pe rhaps more fundamentally, even if judges managed to recuse themselves whenever an endorsee was a party (or witness) to a proceeding, the recusals would do little to ch ange the perception that the judiciary as a whole lacks impartiality. Perceptions of bias would be justified in cases involving not just endorsees, but also their frie nds, family, associates, supporters, opposing candidates, and their supporters. Some citi zens might conclude, reasonably, that the judicial system is simply too compromised by partisan politics, and resolve their disputes through alternative means. Although recusals would undoubtably mitigate bias in some instances, they would not–in a climate of pervasive endorsements by judges and judicial candidates–protect Minnesota’s interests in maintaining impartiality and the appearance of impartiality at even a tolerable level.
-46-For the forgoing reasons, I would concl ude that Minnesota has met its heavy burden in demonstrating that the endorsement clause is narrowly tailored to the state’s compelling interests. In so concluding, I would join what was, before today, the unanimous judgment of state and federal courts affirming the constitutionality of judicial endorsement prohibitions. SeeSiefert v. Alexander , --- F.3d ----, No. 09-1713, 2010 WL 2346659, at *7 (7th Cir. J une 14, 2010); In re Matter of William A. Vincent, Jr. , 172 P.3d 605, 606, 608-09 (N.M. 2007) (upholding a judicial canon that prohibited a judge or judicial candidate from “publicly endors[ing] or publicly oppos[ing] a candidate for public office th rough the news media or in campaign literature” finding that the clause was “n arrowly tailored to serve the State’s compelling interest in a judiciary that is both impartial in fact and in appearance”); In
re Matter of Ira J. Raab , 793 N.E.2d 1287, 1292 (N.Y. 2003); Yost v. Stout , No. 06-4122-JAR, slip op. at 12 (D. Kan. N ov. 16, 2008) (upholding endorsement clause because provision “restricts a judge or judicial candidate from publicly endorsing other candidates for public office; it does not restrict speech concerning disputed political issues.”).

2

I turn next to the solicitation clause. Rule 4.1(A)(6) of th e Code bars judges and judicial candidates from “personally solicit[ing] or accept[ing] campaign
contributions other than as authorized by Rules 4.2 and 4.4.” Rule 4.2(B)(3)(a) permits a judge or judicial candidate to “make a general request for campaign contributions when speaking to an audience of 20 or more people.” In addition, Rule 4.2(B)(3)(c) permits a judge or judicial candidate to “personally solicit campaign contributions from members of the judge’s family, from a person with whom the judge has an intimate relationship, or from judges over whom the judge does not exercise supervisory or appellate authority.” However, as previously discussed, the
Code does not allow what Wersal seek s to do: personally solicit campaign contributions by walking door-to-door and making phone calls.

-47-As a preliminary matter, I disagree with the majority’s decision to analyze Wersal’s challenge to the C ode’s solicitation clause as an as-applied, rather than facial, challenge. In White II , we sustained a facial cha llenge to the solicitation clause (as then written) despite the fact that the challenge was limited to the clause’s prohibition on soliciting cont ributions from large groups and using a candidate’s signature on campaign committee literature. White II , 416 F. 3d at 765-66. Further, the majority predicates its decision to analyze the solicitation clause as-applied on the alleged fact that Wersal wishes to solic it funds only from non-attorneys. Ante at 13,
26. Nowhere in the record doe s Wersal state, or even imply, that he would limit his solicitation entirely to non-attorneys. On th e contrary, Wersal states he wishes to “personally solicit contributions from potential donors both by going door-to-door [and] making personal phone calls.” Wersal does state that he “does not wish to
solicit funds from those he knows to be attorneys,” but Wersal would undoubtably encounter persons whom he does not know to be attorneys in the course of his proposed solicitation. Without any suggestion to the contrary from Wersal, it is
unreasonable to infer from the f acts in the record before us that Wersal only intends to solicit funds from non-attorneys. See Dunning , 536 F.3d at 885 (in reviewing summary judgment orders, appellate court mu st view the evidence in the light most favorable to the nonmoving party). 19

Turning to the merits, I would conclude the solicitation clause furthers Minnesota’s compelling interest in maintain ing the appearance of judicial impartiality.
As Justice O’Connor observed in White I , “the mere possibility that judges’ decisions may be motivated by the desire to repay campaign contributors is likely to undermine

19 Wersal does state once in his brief that he wishes to personally solicit campaign contributions only from non-attorneys. App. Br. at 55. It is axiomatic, however, that appellate courts will “not take[] into consideration matters included in the [a party’s] brief which were not beforethe trial court and are no[t] part of the record on appeal.” Nelson v. Swing-A-Way Mfg. Co. , 266 F.2d 184, 189 (8th Cir. 1959).

-48-the public’s confidence in the judiciary.” White I , 536 U.S. at 790 (O’Connor, J., concurring). Indeed, “there is no aspect of the electoral system of choosing judges that has drawn more vehement and justifia ble criticism than the raising of campaign funds, particularly from lawyers and litigants likely to appear before the court.” Stretton v. Disciplinary Bd. of Supreme Court of Penn. , 944 F.2d 137, 145 (3d Cir. 1991) (footnote omitted) (upholding prohibition on personal solicitation). And as the Oregon Supreme Court observed:

The stake of the public in a judiciar y that is both honest in fact and honest in appearance is profound. . . . A judge’s direct request for campaign contributions offers a quid pro quo or, at least, can be perceived by the public to do so. In sulating the judge from such direct solicitation eliminates the appearance (at least) of impropriety and, to that extent, preserves the judiciary’s reputation for integrity.

In re Fadeley , 802 P.2d 31, 40 (Or. 1990) (upholding prohibition on personal solicitation of funds).

Whether personal solicitation by judici al candidates impacts the appearance of impartiality is an empirical question. Cf. Holder v. Humanitarian Law Project , --- S.Ct. ----, Nos. 08-1498, 09-89, 2010 WL 2471055, at *19 (June 21, 2010) (“Whether foreign terrorist organizations meaningfully segregate support of their legitimate activities from support of terrorism is an em pirical question.”). Recent polls found that seventy percent of the public thinks raising money for their elections affects judges’ rulings to a moderate or great ex tent. Kathleen Hall Jamieson and Michael Hennessy, Public Understanding and Support for the Courts: Survey Results, 95 Geo. L.J. 899, 901 (2007). According to a 2002 written survey, forty-eight percent of state supreme court judges believe that campaign contributions to judges have “a great deal” or “some” influence on judge s’ decisions. Greenberg Quinlan Rosner Research & American Viewpoint, Jus tice At Stake State Judges Frequency Questionnaire, Q.12 at 5 (2002). Turning th e focus to Minnesota, a 2008 poll found that fifty-nine percent of Minnesotans said that contributions have “a great deal”

-49-or “some” influence on judges. Decision Resources Ltd., Justice at Stake Study, Minnesota Statewide, Q. 35 (January 2008) . And forty-nine percent of Minnesotans thought that “individuals or groups who give money to judicial candidates in Minnesota get favorable treatment.” SeeThe Minnesota Difference: The Minnesota Court System and the Public (2007), available at http://www.courts.state.mn.us/documents /0/Public/Court_Information_Office/Min nesota_Courts_Final_Report_FINAL.doc.

The majority skips past this data and finds the solicitation clause overinclusive
because the risk of bias “comes not in the mere solicitation–the ‘ask’–but rather in the resulting contribution.” Ante at28. I disagree. At the out set, the majority’s statement
runs counter to our statement in White II that “[k]eeping candidates, who may be elected judges, from directly soliciting m oney from individuals who may come before them certainly addresses a compelling state in terest in impartiality . . . .” 416 F.3d at 765. Additionally, when a judge or judicial candidate asks for money, one-on-one, the potential donor is presented with an uns eemly choice: contribute, and perpetuate the appearance of impartiality, or decline to contribute, and risk retribution. As the Supreme Judicial Court of Maine stated:

It is exactly this activity that potentially creates a bias, or at least the appearance of bias, for or agains t a party to a proceeding. If a contribution is made, a judge might subsequently be accused of favoring the contributor in court. If a contribution is declined, a judge might be accused of punishing a contributor in court.

In re Dunleavy , 838 A.2d 338, 351 (Me. 2003) . Contrary to the majority’s assertion, it is precisely the act of asking for mone y one-on-one that creates the appearance of impartiality. And no matter what course of action the potential donor chooses, the appearance of judicial impartiality is dimini shed. As the Seventh Circuit aptly stated, “[a] direct solicitation closely links the quid–avoiding the judge’s future disfavor–to the quo–the contribution.” Siefert , 2010 WL 2346659, at *30-31.

-50-Such a result inheres in the Supreme C ourt’s decision in M cConnell v. Federal
Election Commission , 540 U.S. 93 (2003), overruled in part on other grounds

, Citizens United v. FEC , 130 S. Ct. 876, 886 (2010). There, the Supreme Court upheld against a First Amendment ch allenge a provision of the Bipartisan Campaign Reform Act of 2002 prohibiting (with limited excepti ons) federal candidate s and officeholders from soliciting soft money contributions. Id. at 183-84; id. at 314 (Kennedy, J., concurring). Directly contrary to what the court holds today, the Supreme Court stated that “soft-money donations at a candi date’s or officeholder’s behest give rise to all of the same corruption concerns pos ed by contributions made directly to the candidate or officeholder,” and “the value of the donation to the candidate or
officeholder is evident from the fact of the solicitation itself .” Id. at 182 (emphasis added). See also Siefert , 2010 WL 2346659, at *31.

I also disagree with the majority’s asse rtion that less restrictive means exist to protect Minnesota’s compelling interests. In Minnesota, judicial candidates are required to “take reasonable measures to en sure that the candidate will not obtain any information identifying those who contribute or refuse to contribute to the candidate’s campaign.” Code Rule 4.2(A)(5). Although the rule banning judicial candidates from learning the identity of donors certainly help s maintain the appearance of impartiality, the efficacy of the rule is greatly undermin ed without an operative solicitation clause. As anyone familiar with re tail politics can attest, poten tial donors will often interrupt the pitch for money with an answer, or a door in the face. In other cases, verbal cues and body language by the potential donor will l eave the judicial candidate with a strong impression of the potential donor’s lik elihood of making a contribution. Thus, the act of solicitation itself will, in many cases, significantly undermine Minnesota’s goal of preventing the judici al candidate from learning the identity of those who
contribute or refuse to contribute.

Neither is recusal an adequate alternative to the solicitation clause. The recent Capertoncase illustrates why. In Caperton , a West Virginia jury returned a verdict that found the defendants, A.T. Massey Coal Co. and its affiliates, liable for $50
-51-million in damages. Caperton , 129 S. Ct. at 2257 (2009). While the coal company’s appeal was pending, Don Blankenship, Ma ssey’s chairman and chief executive officer spent over $2.5 million in support of a candi date running against an incumbent for a seat on the Supreme Court of Appeals of West Virginia. Id. The candidate, Brent Benjamin, won the election. Id. Later, when Massey’s appeal was heard by the Supreme Court of Appeals of West Virgin ia, then-Justice Benjamin refused to recuse himself and cast the deciding vote in the court’s decision reversing the $50 million
verdict. Id. at 2257-58. The United States Supreme Court ultimately held that the Due Process Clause required Justice Ben jamin to recuse himself. Id. at 2265. I cite Capertonnot for its legal holding, but rather as a cautionary tale illustrating two points. First, judges whose contributions gi ve rise to the appearance of partiality may
be reluctant to recuse them selves. Second, and most fundamentally, by the time a case rises to the level of egregiousness wher e the Due Process Clause, by its own force, requires recusal, the judiciary’s appearance of impartiality has already been severely
undermined. I would not force Minnesota to follow West Virginia’s path. The state’s interest in maintaining the appearance of impartiality inits judiciary goes far beyond protecting the absolute baseline of funda mental fairness required by due process. Having recognized Minnesota’s interest in maintaining the appearance of impartiality as compelling, I would conclude that th e solicitation clause is narrowly tailored to
serve this interest.

I would conclude, therefore, that the solicitation clause does not violate the First
Amendment. 20

20 Although I concluded that Wersal’s challe nge to Rule 4.1(A )(4) was not ripe, the majority reached the issue. If required to confront the merits, I would similarly uphold Rule 4.1(A)(4) for the same reasons I would sustain the solicitation clause. -52-III

Although not essential to the legal conclusions I reach today, I wish to comment briefly on the development of our caselaw in this area.

Underlying today’s decision, as well as our prior decisions, are somewhat competing philosophies with respect to j udicial elections. These differences were
most evident in White I . In White I ’s majority opinion, written by Justice Scalia, the Court made clear that judicial elections should be played out under the same rules as any other election for public office. By c ontrast, Justice Ginsburg, in her dissenting opinion, presented a competing philosophy, wh ich would “differen tiate elections for political offices, in which the First Amendment holds full sway, from elections designed to select those whose office it is to administer justice without respect to persons.” White I , 536 U.S. at 805 (Ginsburg, J. dissenting). Although White I may not have provided the final word on the larger philosophical debate, it did provide us with the appropriate framework for decidi ng constitutional challenges arising in the context of judicial elections. Once the C ourt made the threshold choice to apply the strict scrutiny framework to speech restric tions governing judicial elections, the result
in White I was clear: the suppression of views on disputed legal and political issues is, as the Court noted, only tenuously related to any interest in maintaining an impartial judiciary.

White II was this court’s first opportunity to apply the strict scrutiny framework
announced in White I to a relatively more difficult se t of provisions in the Minnesota Code of Judicial Conduct. I joined this court’s opinion in White II because I
concluded that Minnesota’s ban on partisan activities and solicitation from large groups, although perhaps important, were not essential to the state’s interests in maintaining judicial impartiality or its appearance.

In parting ways with the court today, I note my increasing discomfort with the court’s analytical approach. As I see it, th e court’s analysis, at the most basic level, -53-amounts to an examination of whether a given speech restriction placed on judges is essential–in every case–to fully realize the protections of due process. Without prejudicing the outcome of future challe nges, no speech restriction, whether it is imposed on judicial candidates or simply judge s, is essential to due process in every case. The majority’s approach, in my vie w, significantly discounts the role states play in maintaining a judicial system that se rves its people with a higher standard of fairness and impartiality. Although the C onstitution guarantees a minimum standard of fundamental fairness, Minne sota has endeavored to hold itself to a higher standard. Implicit in the majority’s opinion is the notion that any effort to maintain judicial impartiality or its appearance beyond what the Constitution requires is nonessential and expendable. To be sure, White I counsels us to review restrictions on speech with exacting scrutiny. But where a state has crafted its restri ctions carefully to maintain a fair and impartial judiciary, in both pr actice and appearance, as Minnesota has done here, the First Amendment must yield.

IV

For the foregoing reasons, I respectfully dissent.

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