Ever since 2002 when the U.S. Supreme Court decided Republican Party v. White, the campaign activities of judges and judicial candidates have been under strict scrutiny. And ever since 2002, the campaigns have seen candidates throw down, but partisanship has been relatively contained. Leaving the sui generis candidacy of Republican Michelle MacDonald aside, this year’s election is no different. The key word is relatively.
There has been some talk about partisanship in the race between Beverly Aho and Amy Dawson for Seat 61 in Hennepin County, occasioned by a meeting of the 3rd District DFL on Sept. 17. Most of the candidates were invited to the meeting by Chair Cheryl Poling. Aho was not invited because she is closely identified with the Republican Party, Poling told Minnesota Lawyer. In fact, Aho received the recommendation of the 3rd District Republicans on June 23.
Not inviting Aho was a bad decision, Poling said.
“It was my decision not to ask Bev Aho,” Poling said. “In retrospect, I should have invited her. We were not doing it as a political meeting. It was open to everyone. There was no endorsement, nothing coming out of this.”
“[If Aho had attended] I would have let her speak. She would have been as welcome to speak as anyone. If anybody gives somebody an endorsement it will be a personal endorsement and not coming from the group,” she said.
The candidates who attended the meeting on Sept. 17 all told Minnesota Lawyer that they made it very clear that they didn’t want an endorsement or recommendation from the DFL. But the email invitation could be interpreted differently. It states: “Please feel free to come, bring lawn signs, sign-up sheets for volunteers and literature to our meeting. We are interested in hearing from you regarding your run for judge.
“We will be providing recommendations to our members for voting in this election.”
The only recommendation that was made to the audience was to check out the candidates’ websites, Poling said.
But Aho’s campaign has said it has received several reports of false and disparaging statements made by Dawson at organized DFL activities, which Dawson denies. David Johnson, the communications chair of Aho’s committee, sent Dawson a “cease and desist request” to stop making false statements about Aho. Aho declined to identify the persons who made the reports.
The matter is complicated by the “Affirmation Regarding Responsible Judicial Campaign Conduct” that the Hennepin County Bar Association asks candidates to sign. Paragraph 7 states that candidates agreed not to attend political organization gatherings. Both Aho and Dawson edited their affirmations, as they are entitled to do. Aho crossed out the language about attending political gatherings and wrote in, “I will not engage in partisan campaign activities before any gathering, including political organizations. I reserve the right to speak to gatherings of all political organizations — Republicans, DFL, IP and others — to speak about my qualifications for judge.”
Dawson amended the document to say that “I agree that I will not identify myself or my opponent as a member of a political organization, except as necessary to vote in an election, and will not seek or use endorsements from any political party. I understand that I may speak to gatherings on my own behalf.” The document does not at first glance appear that it has been amended, but it removes all language about attending political organization gatherings.
Dawson told Minnesota Lawyer that she is not holding herself out as a Democrat.
“I’m the former chair of the 5th District of the DFL Party. I can’t pretend that I’m not. I’ve been very clear to say that I am running as a nonpartisan candidate,” Dawson said.
She also told Minnesota Lawyer that she discussed amending the affirmation with Tom Nelson, HCBA president, and Duane Stanley, HCBA assistant executive director, and that when she sent the document in, she reminded them in her email that she had changed it.
In an email to Minnesota Lawyer, Dawson wrote, “My opponent is grasping at straws. I am running a nonpartisan campaign focused on the facts. Of the two us, only my opponent has accepted the ‘recommendation’ of a political party unit. My candidacy is picking up speed — thanks to supporters who value my extensive experience and my commitment to justice.”
Aho said that she did not seek the Republican recommendation and wasn’t at the meeting when it was tendered. She said she didn’t know about it until after it was done and wasn’t invited to bring literature and lawn signs to the meeting. “I have been an outspoken advocate for nonpartisan judicial elections for many years,” she told Minnesota Lawyer.
Candidates Paul Scoggin and Bridget Sullivan, running for seat 43; and Chris Ritts and Beverly Benson, running for seat 53, also attended the Sept. 17 meeting. Sullivan said she viewed it as any other meet and greet event and was clear that she could not accept any recommendation or endorsement. Similarly, Scoggin said he did not want any endorsement and attended for the sole purpose of talking to people about his own campaign.
Ritts and Benson said essentially the same thing. Benson said she went because Ritts was there. “I consulted with a number of different attorneys and candidates. We understood there was no endorsement. That’s why I agreed to go. I was assured I was in compliance. They did not recommend any of us. They just gave an opportunity to speak,” she said.
Judge James Moore, running for re-election to Seat 16, was invited but did not attend because he thought it violated the affirmation. He has not been invited or agreed to participate in any other DFL activities, he said, preferring to rely on the tried-and-true methods of door knocking and lawn signs.
Rivers could not be reached for comment. Neither Ritts nor Rivers signed the affirmation.
In his president’s column in the September issue of Hennepin Lawyer, Nelson wrote that the bar association was not interested in enforcing candidates’ compliance with the affirmation. “We figure that, given the freewheeling nature of elections, those sorts of things are best left to the marketplace of ideas,” he said. But he also told Minnesota Lawyer he is uncomfortable with the “subtle entanglement” of politics and judicial elections.