Commonwealth of Virginia Judicial Ethics Advisory Committee Opinion 99-6

Is it proper for a judge to vote in a primary election?

Answer: No.

Political parties in the Commonwealth of Virginia generally employ four methods for selecting party nominees: (1) mass meeting; also called a "caucus;" (2) convention; (3) party canvass or unassembled caucus, also called a "firehouse primary;" and (4) primary election conducted by the State Board of Elections. The first three methods are generally restricted to party members, while the primary conducted by the State Board of Elections is open to all voters. Because local and legislative elections are scheduled for 1999 and national elections for 2000, an inquiry has been made concerning the propriety of a judge's participating in methods three and four for selecting party nominees.

In 1834 upon his return to France from a visit to America, Alexis de Tocqueville wrote:

If I were asked where I place the American aristocracy, I should reply without hesitation ... that it occupies the judicial bench and bar.

Although America is a democratic republic without an aristocracy, his words aptly reflect the great public respect accorded judges in the Commonwealth of Virginia, both 150 years ago and today. No doubt, this public respect derives partly from the willingness of judges to accept with grace and understanding numerous restrictions on their lifestyles, memberships, and associations. No doubt, it derives even more from the non-partisan and apolitical nature of Virginia's judiciary.

For these reasons the heading of Canon 5 states that

a judge shall refrain from political activity inappropriate to the judicial office.

The Canon then defines "inappropriate" activity as "attend[ing] political gatherings." Canon 5A(1)(c). By way of background, the Founding Fathers used the party caucus for selecting party nominees for elective office. In the 1830's, to secure broader participation by the party rank and file, the parties shifted to political conventions, followed in the early twentieth century by party primaries. Despite the difference in number of participants, all three methods (caucus, convention, and primary) were, and are, "political gatherings" used to select party nominees.

Consistent with these reasons, Canon 2 states that a judge

shall act at all times in a manner that promotes public confidence in the ... impartiality of the judiciary.

The commentary for this canon states that a judge must avoid not only impropriety but also the "appearance of impropriety." The test for "appearance of impropriety," the commentary continues,

is whether the conduct would create in reasonable minds a perception that the judge's ability to carry out judicial responsibilities with ... impartiality is impaired.

The Committee opines that "reasonable" people could easily perceive that a judge who votes in a party primary is unable to act with impartiality.

A dissenting argument might be made that although "firehouse primaries," which typically are restricted to party members and may contain some form of loyalty oath, are political gatherings, primary elections conducted by the State Board of Elections are not political gatherings because all voters may participate. The rejoinder is that even the well-educated average citizen does not understand the distinction between the two types of primaries. To the average citizen both methods are partisan vehicles. Voters in a primary may include not only the party faithful seeking to nominate the strongest candidate but also members of the opposition party seeking to nominate a weak opponent. Either type of voter in a primary is perceived to be partisan. Therefore, judges who vote in a party primary risk compromising the non-partisan, apolitical nature of the judiciary and eroding the public respect accorded the judiciary.

After listing what judges shall and shall not do, Canon 5 concludes with the statement that

a judge shall not engage in any other political activity except in behalf of measures to improve the law, the legal system, or the administration of justice.

"Any other political activity" would encompass voting in a party primary because the party primary is not directed toward "improv[ing] the law, the legal system, or the administration of justice."

Dissenting argument might also assert that the Committee's strict interpretation of Canon 5 should also prevent a judge from voting in a general election. This argument fails because the Canon only discourages "inappropriate" political activity. Voting in a general election would be an exercise of good citizenship incumbent upon all citizens and entirely appropriate to our form of government; voting in a primary would be, or could be perceived to be, partisan and, therefore, inappropriate.

Few other states have wrestled with this question sufficiently to offer guidance. The State of Washington's Ethics Advisory Committee Opinion 92-4 permits judges to vote in a presidential preference primary. However, unlike judges in the Commonwealth of Virginia, judges at all levels in Washington routinely enter the political arena because they are popularly elected and must face reelection every four to six years.

The Committee therefore concludes that Virginia judges should not participate in primary elections or in "firehouse primaries."

Canons of Judicial Conduct for the Commonwealth of Virginia: Canons 2, 5, and 5A(1)(c).

State of Washington Ethics Advisory Committee, Opinion 92-4.

de Tocqueville, Alexis, Democracy in America.

Sam W. Coleman III dissents as follows:

Although a majority of the Advisory Committee is of the opinion that a judge who votes in a party primary, including a presidential primary, violates Canons 5 and 2, I am of the view that merely voting in a primary is not "inappropriate" "political activity" within the contemplation of the Canons. To the contrary, I am of the view that voting in a primary, in particular a presidential primary, is a duty and obligation of responsible citizenship and that neither Canon 5 nor 2 should be applied so expansively as to deprive a judge of that civic right or responsibility.

Canon 5 provides that "a judge shall refrain from political activity inappropriate to the judicial office" (emphasis added). In defining "inappropriate" political activity, Canon 5A(1)(c) provides that a judge shall not "attend political gatherings" (emphasis added) or "other political functions." In construing the Canons, we are not bound by the judicial principle of statutory construction of ejusdem generis, which provides that when a particular class of things is enumerated in a statute and general words follow, the general words are to be restricted in their meaning to a sense analogous to the less general, particular words. Nevertheless, such a principled approach for determining the intent of the framers of a document is based on sound reasoning and, in my view, a similar rationale is appropriate for us in construing Canon 5. Thus, the approach that the committee should take in order to determine whether "political gatherings" are to be deemed "inappropriate" within the contemplation of Canon 5 requires, in my opinion, that we look to the specific prohibitions contained in Canon 5 in construing what the framers contemplated by the general prohibition against "attend[ing] political gatherings" (emphasis added).

Applying an approach similar to the doctrine of ejusdem generis to determine the scope of Canon 5's prohibitions, I note that Canon 5A(1)(a), (b), and (c) expressly prohibit judges from serving as political leaders or holding office in political organizations, making speeches for political organizations or candidates, endorsing or opposing candidates, or soliciting funds for or paying assessments or making contributions to political organizations or candidates, or purchasing tickets for political party dinners. All of the enumerated activities proscribed by Canon 5 involve an individual's providing personal and/or financial support for or against a particular political party or candidate. In contrast, merely casting a vote in a public primary conducted under the auspices of the State Board of Elections does not, in my opinion, fall within the types of partisan political activities specifically proscribed by Canon 5A(1)(a), (b), or (c).

Furthermore, I am of the view that because a primary in Virginia is open to all voters, whether or not affiliated with a political party, and because participation in a party primary requires no partisan loyalty oath, and because the primary is conducted by the State Board of Elections rather than party officials, voting in a party primary is not "inappropriate[ly]" attending a "political gathering" as contemplated by Canon 5. In my opinion, the majority has extended the prohibition of Canon 5 far beyond the contemplated activities.

Additionally, the committee relies upon the directive from Canon 2 that a judge

shall act at all times in a manner that promotes public confidence in the ... impartiality of the judiciary
and should avoid conduct that creates in reasonable minds a perception that a judge's impartiality is impaired. I fail to appreciate that Canon 2 adds support to the committee's opinion. Casting a vote in a political primary for a candidate of one's choice does not, in my opinion, create a perception that a judge cannot act impartially. Rarely do cases involve political issues, and cases are not decided based on partisan considerations. The extent to which the committee would require a judge to go under such similar circumstances to avoid the appearance of impropriety would require judges to avoid participation in many activities, such as religious activities, civic clubs, and other organizations that foster or support many worthwhile causes, merely because some citizens would perceive that a judge's decision might be compromised by his or her religious affiliation, civic or other club membership, or participation or membership in many other organizations. I do not believe that Canons 5 or 2 are that restrictive. 1

FOOTNOTE IN THE DISSENT
1 Canon 6B and C require that Canons 5 and 2 apply to retired and substitute judges and justices. Thus, to the extent that the committee's advisory opinion applies to active full-time judges and justices, the opinion equally applies to retired and substitute judges and justices.

Canons of Judicial Conduct for the Commonwealth of Virginia: Canons 2; 5; and 5A(1)(a), (b), and (c); 6B and C.