Platt v. Bd. of Comm'rs on Grievances & Discipline of the Ohio Supreme Court

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 18a0120p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

JOSEPH J. PLATT; PLATT FOR JUDGE CAMPAIGN ┐

COMMITTEE; MARK W. MILLER, │

Plaintiffs-Appellants, │

│

│

v. > No. 17-3461

│

│

BOARD OF COMMISSIONERS ON GRIEVANCES AND │

DISCIPLINE OF THE OHIO SUPREME COURT, et al., │

Defendants, │

│

MAUREEN O’CONNOR; RICHARD A. DOVE; SCOTT J. │

DREXEL, │

│

Defendants-Appellees.

│

┘

Appeal from the United States District Court

for the Southern District of Ohio at Cincinnati.

No. 1:13-cv-00435—Michael R. Barrett, District Judge.

Argued: January 25, 2018

Decided and Filed: June 25, 2018

Before: ROGERS, McKEAGUE, and WHITE, Circuit Judges.

_________________

COUNSEL

ARGUED: Christopher P. Finney, FINNEY LAW FIRM LLC, Cincinnati, Ohio, for

Appellants. Drew H. Campbell, BRICKER & ECKLER LLP, Columbus, Ohio, for Appellees.

ON BRIEF: Christopher P. Finney, FINNEY LAW FIRM LLC, Cincinnati, Ohio, for

Appellants. Drew H. Campbell, Maria J. Armstrong, Gregory J. Krabacher, BRICKER &

ECKLER LLP, Columbus, Ohio, for Appellees.

No. 17-3461 Platt, et al. v. Bd. of Comm’rs on Grievances, et al. Page 2

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OPINION

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McKEAGUE, Circuit Judge. Like many states, Ohio wants the voting public to

determine who will serve as its judges. Yet Ohio, mindful of the potentially corrosive effects of

uninhibited fundraising and partisanship, also wants to protect public trust in the judiciary’s

independence. To serve these twin goals, the state fills judicial offices through elections, but

imposes fundraising and advocacy limitations on anyone who seeks them. This case requires us

to decide whether those limitations accommodate both priorities in a manner consistent with the

Constitution.

The plaintiffs in this case say they do not. They object to six limitations, arguing that

each variously violates the Constitution’s free speech, due process, and equal protection

guarantees. In two separate summary judgment orders, the district court rejected the plaintiffs’

claims. Because Ohio’s rules strike the delicate balance between the Constitution’s commands

and the state’s desire to protect judicial integrity, we AFFIRM.

I

In Ohio, judges of the supreme court, courts of appeals, courts of common pleas, and all

courts of record (including municipal courts) are selected through judicial elections. The

fundraising and political conduct of candidates for judicial office is governed by Canon 4 of the

Ohio Code of Judicial Conduct.

Plaintiff Joseph Platt, an Ohio attorney, is such a candidate. Platt formed the Platt for

Judge Campaign Committee in June of 2013, naming Mark Miller as its treasurer. The

Committee and Miller join Platt as co-plaintiffs in this case (collectively, “Platt”).1 With the

Committee formed, Platt became a “judicial candidate” within the meaning of the Ohio Code of

Judicial Conduct and thus subject to its commands.

1Notwithstanding the awkwardness of referring to multiple plaintiffs with the singular “Platt,” we do so in

lieu of the unhelpful and impersonal “Plaintiffs.”

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Platt believes that some of those commands violate his constitutional rights—to free

speech, due process, and equal protection under the law. Specifically, Platt objects to six

provisions in Canon 4:

• Rule 4.1(A)(2), which prohibits a candidate from making speeches on

behalf of a political party or another candidate for public office

• Rule 4.1(A)(3), which prohibits a candidate from publicly endorsing or

opposing a candidate for another public office

• Rule 4.4(A), which, save for three exceptions, prohibits a judicial

candidate from personally soliciting campaign contributions

• Rule 4.4(E), which creates a permissible window for soliciting and

receiving campaign contributions, starting 120 days before the primary

and ending 120 days after the general election

• Rule 4.4(F), which limits the solicitation and receipt of contributions for

candidates defeated before the general election, until the earlier of

120 days after the primary election or until the candidate pays off her

campaign-related debts

• Rule 4.4(G), which regulates the solicitation and receipt of contributions

for candidates who die or withdraw from the election, until the earlier of

120 days after death or withdrawal or until the candidate pays off her

campaign-related debts.

Wanting to engage in the sort of political advocacy and fundraising prohibited by these

rules, Platt filed suit in June of 2013 in the Southern District of Ohio. Platt named as defendants

the Board of Commissioners on Grievances and Discipline of the Ohio Supreme Court, 2 which

enforces the Code of Judicial Conduct, the Ohio Supreme Court, which promulgates the Code,

and the individual members of both entities (collectively, the “Board”).3

Platt’s complaint included three counts. Count I challenged Rules 4.4(E), (F), and (G)

(the “Fundraising Rules”). The Committee claimed those rules violated its right to receive

contributions and disseminate information on Platt’s behalf. Treasurer Miller claims they violate

2The Board is now known as the Board of Professional Conduct. https://www.bpc.gov/.

3The parties later stipulated that the only defendants who needed to remain in the litigation to afford

plaintiffs complete relief were Maureen O’Connor, the Chief Justice of the Supreme Court of Ohio; Richard Dove,

the Secretary of the Board of Commissioners on Grievances and Discipline of the Supreme Court of Ohio; and Scott

Drexel, the Board’s Disciplinary Counsel.

No. 17-3461 Platt, et al. v. Bd. of Comm’rs on Grievances, et al. Page 4

his right to “receive information and ideas from judicial candidates.” And Platt personally

alleges that the rules infringe on his rights to free speech, association, due process, and equal

protection. Count II targeted Rule 4.4(A)’s personal-solicitation provision (the “Solicitation

Rule”), under the same basic theories as Count I, but without Platt’s personal equal protection

challenge. Count III included only claims by Platt personally. He alleged that Rules 4.1(A)(2)

and 4.1(A)(3) (the “Endorsement Rules”) violate his rights to free speech, association, due

process, and equal protection.

The district court rejected all of Platt’s claims, and he now appeals. He challenges four

decisions by the district court: a protective order denying discovery, a refusal to take judicial

notice, and two summary judgment orders. First, in September 2015, the court granted the

Board’s motion for a protective order, concluding that fact discovery was not necessary to

evaluate whether Ohio had a compelling interest in maintaining its judiciary’s integrity. Then,

roughly one year later, the court granted the Board’s cross-motion for summary judgment,

concluding that the Endorsement Rules and the Solicitation Rule are not unconstitutionally

vague. In the same order, the court also declined to take judicial notice of three news reports that

Platt maintains would have aided his vagueness claim. And finally, in March 2017, the court

granted the Board’s motion for partial summary judgment, concluding that the Endorsement,

Solicitation, and Fundraising Rules do not violate the First or Fourteenth Amendments.

II

We note at the outset that mootness concerns occupied this court at the preliminary

injunction stage, Platt v. Bd. of Comm’rs on Grievances & Discipline of Ohio Supreme Court,

769 F.3d 447, 451-53 (6th Cir. 2014), and the district court at summary judgment. While

mootness remains a thorny question—Platt did not run in either the 2014 or 2016 elections, and

shows no intent to run in 2018—Platt’s claims are saved from mootness under the “capable of

repetition, yet evading review” exception. Sosna v. Iowa, 419 U.S. 393, 399-400 (1975). This

circuit, and others, have been especially hesitant to find pre-enforcement election law challenges

mooted by the passage of an election. So long as a candidate “retains the right to run for judicial

office again,” as Platt does here, they are ordinarily “sav[ed] . . . from mootness.” Carey v.

Wolnitzek, 614 F.3d 189, 197 (6th Cir. 2010); accord Wolfson v. Brammer, 616 F.3d 1045, 1055

No. 17-3461 Platt, et al. v. Bd. of Comm’rs on Grievances, et al. Page 5

(9th Cir. 2010) (holding claims not moot when candidate says he intends to run in some “future”

election). The Board, for its part, does not even bother to argue that Platt’s claims have been

mooted. It seems instead that more than four years of litigation have left both sides eager to

resolve this case. Confident that it still presents a live controversy, so are we.

A. Protective Order

The district court granted the Board’s motion for a protective order denying Platt’s

discovery requests. Platt sought to compel fact discovery probing, among other things, the

state’s claim that it has a compelling interest in regulating judicial integrity through the

challenged Code provisions and whether the provisions are under-inclusive or over-inclusive.

The Board moved for a protective order against Platt’s discovery request, based on the Supreme

Court’s decision in Williams-Yulee v. Florida Bar, 135 S. Ct. 1656 (2015), which held in part

that fact discovery was not necessary to substantiate a state’s interest in regulating judicial

integrity.

A district court may grant a protective order under Fed. R. Civ. P. 26(c) to prevent

“annoyance, embarrassment, oppression, or undue burden or expense.” While the district court

did not specifically refer to any of those reasons here, it ultimately concluded that Platt’s

discovery was simply “unnecessary” since the court could evaluate the merits of Platt’s claims

“without regard for evidentiary support.” We review the district court’s decision for abuse of

discretion. Samad v. Jenkins, 845 F.2d 660, 663 (6th Cir. 1988) (citing Davis v. Marathon Oil

Co., 528 F.2d 395 (6th Cir. 1975)). An abuse of discretion occurred only if we are “left with a

definite and firm conviction that [the district court] committed a clear error of judgment.” In re

Scrap Metal Antitrust Litig., 527 F.3d 517, 528 (6th Cir. 2008) (alteration in original) (quoting

Conwood Co., L.P. v. U.S. Tobacco Co., 290 F.3d 768, 781 (6th Cir. 2002)).

The district court committed no clear error of judgment in granting the Board’s protective

order. It determined that fact discovery was unnecessary because such discovery would not aid

the court in determining whether Ohio had a compelling interest in maintaining judicial integrity.

That reasoning came straight from the Supreme Court’s decision in Williams-Yulee:

“The concept of public confidence in judicial integrity does not easily reduce to precise

No. 17-3461 Platt, et al. v. Bd. of Comm’rs on Grievances, et al. Page 6

definition, nor does it lend itself to proof by documentary record. But no one denies that it is

genuine and compelling.” 135 S. Ct. at 1667 (emphasis added). If Williams-Yulee concluded

that a documentary record is unnecessary to substantiate a state’s interest in maintaining judicial

integrity, the district court correctly concluded that a record need not be created to undermine

that interest.

The district court also relied on Williams-Yulee to conclude that discovery would not help

Platt show that the Code was under-inclusive and thus did not advance the state’s compelling

interest. Because the Supreme Court assessed Williams-Yulee’s tailoring arguments “without

regard for evidentiary support,” the district court felt it could do the same with Platt’s. That

conclusion shows no clear error of judgment. To the contrary, the district court fairly read and

applied Williams-Yulee. The challenged provision in Williams-Yulee serves the same general

purpose of the Code provisions that Platt challenges here, and yet the Court rejected Yulee’s

under-inclusivity arguments without considering documentary evidence. 135 S. Ct. at 1668-69.

Any doubt that the Court did so is relieved by Justice Scalia’s dissent, in which he criticized the

majority for relying on its intuition rather than evidence that Florida’s judicial regulations served

their claimed purpose. Id. at 1678 (Scalia, J., dissenting) (“Neither the Court nor the State

identifies the slightest evidence that banning requests for contributions will substantially improve

public trust in judges.”). Whatever fair criticism exists of the majority’s approach in Williams-

Yulee, the district court committed no clear error of judgment by duplicating that approach in this

case.

Platt’s best argument is one he doesn’t thoroughly develop: Despite what Williams-Yulee

says about fact discovery in the context of a First Amendment challenge to judicial campaign

regulations, that case did not involve the vagueness and equal protection challenges that Platt’s

does. Therefore, Platt contends, even if discovery is unnecessary to evaluate the state’s

compelling interest in maintaining judicial integrity, it is necessary to evaluate whether the Code

violates these other constitutional prohibitions. The district court addressed Platt’s equal

protection argument, and rightly dismissed it, noting that Platt’s equal protection challenge

implicates the same sort of theory he must develop under the First Amendment—namely, that

No. 17-3461 Platt, et al. v. Bd. of Comm’rs on Grievances, et al. Page 7

the state’s regulations do not satisfy strict scrutiny. But the district court said nothing about

whether the existence of Platt’s vagueness challenge altered the discovery analysis.

Nevertheless, especially in light of the deferential abuse-of-discretion standard, we must

affirm the district court’s decision. The district court likely concluded that discovery targeted to

develop Platt’s vagueness claims was just as unnecessary as it was to develop his other claims.

Why? Platt’s vagueness claim required the district court to analyze whether the Code’s language

gave due notice of what behavior is prohibited and whether procedures exist to protect against

arbitrary enforcement. But answering the first question—whether the Code “provide[s] a person

of ordinary intelligence fair notice of what is prohibited,” Holder v. Humanitarian Law Project,

561 U.S. 1, 20 (2010) (alteration in original) (quoting United States v. Williams, 553 U.S. 285,

304 (2008))—is a matter of reading the Code’s language for its plain meaning. And the second

question could readily be answered by reference to Ohio’s publicly available enforcement

procedures, including its practice of issuing advisory opinions to clarify the Code’s enforcement.

The district court did not commit a clear error of judgment by denying Platt further discovery

related to these questions. We therefore affirm its grant of the Board’s protective order.

B. Judicial Notice

Platt next argues that the district court erred in refusing to take judicial notice of three

news reports. These reports concerned alleged political endorsements made by sitting members

of the Ohio Supreme Court that were found not to violate the Code. Platt sought judicial notice

for these reports in response to the district court’s grant of the protective order.

Under Federal Rule of Evidence 201(b), a “court may take judicial notice of at least some

documents of public record.” Passa v. City of Columbus, 123 F. App’x 694, 697 (6th Cir. 2005).

Such notice, however, is limited: a court may take notice of the documents and what they say,

but it “[cannot] consider the statements contained in the document for the truth of the matter

asserted.” In re Omnicare, Inc. Sec. Litig., 769 F.3d 455, 467 (6th Cir. 2014). This court

reviews the district court’s refusal to take judicial notice only for an abuse of discretion. Toth v.

Grand Trunk R.R., 306 F.3d 335, 349 (6th Cir. 2002).

No. 17-3461 Platt, et al. v. Bd. of Comm’rs on Grievances, et al. Page 8

The district court did not abuse its discretion. For while Platt averred in his motion that

he sought notice only of “the existence of these news reports themselves as being in the public

domain,” he in reality asked for much more. Platt in fact asked the court to consider statements

in the articles concerning the disposition of the complaint against an Ohio Supreme Court Justice

as evidence that “one must guess at the scope of what is permitted and prohibited under [the

Code].” That request runs afoul of the rule that notice of public documents is “proper only for

the fact of the documents’ existence, and not for the truth of the matters asserted therein.” Passa,

123 F. App’x at 697. As a result, the district court was well within its discretion to deny Platt’s

request.

Besides, even if Platt wanted judicial notice only of the existence of the news reports, that

would not aid his vagueness claim. The mere existence of news reports involving the Code does

not somehow substantiate his claim that the Code is unconstitutionally vague. Cf. In re

Omnicare, 769 F.3d at 468 (“Moreover, this document helps KBC only if we can consider the

contents of the agreement for the truth of the matter.”). Platt instead needs the court to accept

that the articles contain true information—that the Ohio Supreme Court Justice said what the

articles say she did, that the statements were made publicly, and that a review of those statements

found no wrongdoing. Only then might the statements, as Platt promises of them, “further

reinforce and demonstrate the lack of the requisite precision and clarity necessary” to avoid

vagueness problems with Rule 4.1(A)(3).4

We affirm the district court’s denial of Platt’s motion to take judicial notice.

C. Vagueness

Platt alleges that three provisions of the code are unconstitutionally vague. He first

targets the Endorsement Rules: 4.1(A)(2), which prohibits judicial candidates from making

speeches on behalf of a political party or another candidate for public office; and 4.1(A)(3),

4Even then, we remain uncertain whether the news reports would help Platt’s cause. The statements were

made by a Supreme Court Justice about another candidate for the Supreme Court. We know that the endorsement

rules do not prohibit a candidate from making any statement regarding his own candidacy or his opponent(s). See

R. 1-1, PID 35 (“These rules do not prohibit candidates from campaigning on their own behalf or from other

permitted conduct.”). But it is unclear whether the rule applies to any statement made about any candidate for the

same office, even if the candidate is not running for the same specific seat on the Supreme Court.

No. 17-3461 Platt, et al. v. Bd. of Comm’rs on Grievances, et al. Page 9

which prohibits judicial candidates from publicly endorsing or opposing another candidate for

public office. He then takes aim at the Solicitation Rule, 4.4(A), which prohibits judicial

candidates from personally soliciting financial contributions. The district court granted summary

judgment in favor of the Board, finding that each of the challenged provisions provided

candidates with fair notice of what conduct is prohibited.

Before reaching the merits of this claim, the Board argues that Platt did not preserve his

vagueness challenge by failing to explicitly characterize his challenge as such in his complaint.

We disagree. While it is true that Platt’s complaint did not mention the words vague or

vagueness, plaintiffs are not required to identify specific theories of relief; they need only specify

a claim. See Skinner v. Switzer, 562 U.S. 521, 530 (2011); Lebron v. Nat’l R.R. Passenger

Corp., 513 U.S. 374, 379 (1995). Platt alleged the necessary claim: an unconstitutional

deprivation of due process. See R. 1, Compl., ¶¶ 31, 35, 42, 48. He did not stipulate the legal

theory underpinning that claim—that the regulations are void for vagueness, failing to provide

fair notice and inviting arbitrary enforcement—but he is not required to do so. Platt’s pleading

was inexact, perhaps even sloppy, but it was not so inscrutable that it warrants a finding that he

forfeited any vagueness claim. Skinner, 562 U.S. at 530 (emphasizing that a complaint need not

be “a model of the careful drafter’s art” nor provide “an exposition of his legal argument”).

Platt’s vagueness challenge nevertheless fails on the merits. A district court may grant

summary judgment when “the movant shows that there is no genuine dispute as to any material

fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The

district court held that the Board was so entitled and granted summary judgment against Platt’s

vagueness claims. We review de novo, drawing all permissible inferences in favor of Platt.

Rose v. State Farm Fire & Cas. Co., 766 F.3d 532, 535 (6th Cir. 2014).

To succeed on his vagueness claims, Platt must show either that the Code provisions

(1) “fail[] to provide people of ordinary intelligence a reasonable opportunity to understand what

conduct it prohibits” or (2) “authorize[] or even encourage[] arbitrary and discriminatory

enforcement.” Hill v. Colorado, 530 U.S. 703, 732 (2000). While “a more stringent vagueness

test should apply” to laws abridging the freedom of speech, that standard is relaxed somewhat by

the fact that the Code imposes civil rather than criminal penalties and includes an implicit

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scienter requirement. Vill. of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489,

499 (1982). Platt does not show that the Code provisions fail in either Hill respect.

1. Fair Notice

When determining whether a law provides sufficient notice to a person of ordinary

intelligence, in the absence of state court guidance, we examine “the words of the ordinance

itself.” Grayned v. City of Rockford, 408 U.S. 104, 110 (1972). We are mindful that,

“[c]ondemned to the use of words, we can never expect mathematical certainty from our

language.” Id. The fact that a law is “marked by ‘flexibility and reasonable breadth, rather than

meticulous specificity’” does not render it unduly vague. Id. (quoting Esteban v. Central

Missouri State College, 415 F.2d 1077, 1088 (8th Cir. 1969)). Moreover, “[w]hen the common

meaning of a word provides adequate notice of the prohibited conduct, the statute’s failure to

define the term will not render the statute void for vagueness.” United States v. Hollern, 366 F.

App’x 609, 612 (6th Cir. 2010) (alteration in original) (quoting United States v. Namey, 364 F.3d

843, 844-45 (6th Cir. 2004)). Said another way, where the challenged language “is commonly

used in both legal and common parlance,” it often will be “sufficiently clear so that a reasonable

person can understand its meaning.” Déjà vu of Cincinnati, L.L.C. v. Union Twp. Bd. of

Trustees, 411 F.3d 777, 798 (6th Cir. 2005) (en banc).

a. Rule 4.1(A)(2)

This provision provides that a judge or judicial candidate shall not “[m]ake speeches on

behalf of a political party or another candidate for public office.”5 Platt says the words “on

behalf of” render the rule unconstitutionally vague. The district court saw it differently, and held

that “the language in Rule[] 4.1(A)(2) . . . is not difficult to understand” and would provide an

ordinary person fair notice of what conduct is prohibited. We agree.

There is no impermissible vagueness lurking in the words “on behalf of.” A common

dictionary defines the phrase as: “in the interest of; as the representative of; for the benefit of.”

5Forreference, two other states in the Sixth Circuit have similar “on behalf of” prohibitions. Michigan

prohibits any speech “on behalf of a political party or nonjudicial candidate.” Michigan Code of Judicial Conduct,

Canon 7(A)(1)(b). And Tennessee prohibits any speech “on behalf of a political organization.” Tennessee Code of

Judicial Conduct, Canon 4, Rule 4.1(A)(2).

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Webster’s Third New International Dictionary Unabridged 198 (2002). Garner’s Dictionary of

Legal Usage 106 (2011) says the phrase means “as the agent of, as representative of.” A person

of ordinary intelligence would know that this language—“commonly used in both legal and

common parlance”—bars them from speaking as a party or candidate’s representative. Déjà vu,

411 F.3d at 798.

And even if the words leave some wiggle room, the Code’s comments, advisory opinions,

and staff letters help clarify ambiguities and mitigate vagueness concerns. For example, the

comments to Rule 4.1(A)(2) incorporate Rule 4.2(C), which lists various activities—among

them, conducting joint fundraisers and stating an affiliation with a political party—that a judicial

candidate may undertake. By clarifying what a judicial candidate may do, the reach of Rule

4.1(A)(2)’s prohibitions is clarified.

Platt does not quibble with the Board’s textual arguments, instead focusing his attack on

the Board’s response to two hypotheticals Platt posed in interrogatories. The interrogatories and

relevant portions of the accompanying responses are:

4. May a judicial candidate, without violating Rule 4.1(A)(2) of the Ohio Code of

Judicial Conduct, make a speech opposing another candidate for public office.

Response: [A] violation of the Ohio Code of Judicial Conduct would be

evaluated on a case-by-case basis, including whether the judicial candidate

engages in conduct that constitutes ‘oppos[ing] a candidate for another public

office’ in violation of 4.1(A)(3) or engages in other conduct in violation of Canon

4 that is ‘inconsistent with the independence, integrity, or impartiality of the

judiciary.’6

5. May a judicial candidate, without violating Rule 4.1(A)(2) of the Ohio Code of

Judicial Conduct, make a speech in support of another candidate for public office

so long as the judicial candidate does not make such a speech ‘on behalf of’ the

other candidate for public office. If a judicial candidate may do so without

violating Rule 4.1(A)(2) of the Ohio Code of Judicial Conduct, explain how a

judicial candidate ascertains or ensures that he or she is not making a speech ‘on

behalf of’ another candidate for public office.

Response: [Same as response to Interrogatory 4.]

6The response then directed plaintiffs-appellants to the advisory opinions, including particular ones

potentially responsive to their question.

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Platt claims those responses show Rule 4.1(A)(2) is unacceptably vague, because the

“individuals specifically responsible for the adoption, enforcement and/or interpretation of such

rules could not declare whether certain conduct is prohibited vel non under the pertinent rule.”

Not so.

First of all, the Board’s responses to Platt’s hypotheticals do not admit the provisions are

vague by responding that “a violation of the Ohio Code of Judicial Conduct would be evaluated

on a case-by-case basis.” Specific facts matter, and it would be irresponsible of the Board to

respond definitively to such blanket questions. And second, interrogatories four and five ask

whether Rule 4.1(A)(2) would prohibit conduct that is more readily addressed by Rule 4.1(A)(3),

which bars candidates from publicly endorsing or opposing candidates in races for other public

offices. As the Board notes, the clarity of Rules 4.1(A)(2) and (A)(3) “is not undermined by

interrogatories that ask whether the violation of one Rule is excused by compliance with another.

Most important, neither interrogatory has anything to do with whether one can reasonably

understand what the Rules prohibit.” Platt’s attempt to create confusion by asking the Board to

apply a rule to a factual scenario clearly covered by another rule does not render the Code

unconstitutionally vague.

In light of the plain language, clarifying comments, and advisory opinions, we hold that

Rule 4.1(A)(2) is not unconstitutionally vague.

b. Rule 4.1(A)(3)

Rule 4.1(A)(3) provides that a judge or judicial candidate shall not “[p]ublicly endorse or

oppose a candidate for another public office.”7 Platt’s vagueness claim zeroes in on the words

“publicly endorse.” The district court found these words “not difficult to understand” and thus

sufficient to put an ordinary person on notice of what conduct is prohibited. We agree.

7Forreference, every other state in the Sixth Circuit has a similar non-endorsement rule. Kentucky’s is

identical. Kentucky Code of Judicial Conduct, Canon 5(A)(1)(c). Michigan prohibits endorsements of any

“candidate for nonjudicial office.” Michigan Code of Judicial Conduct, Canon 7(A)(1)(b). Tennessee prohibits

judges and judicial candidates from “publicly endors[ing] or oppos[ing] a candidate for any public office.”

Tennessee Code of Judicial Conduct, Canon 4, Rule 4.1(A)(3).

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Start with the language itself. The phrase “publicly endorse” is not vague. The words

“publicly” and “endorse” are “commonly used in both legal and common parlance,” such that a

“reasonable person can understand [their] meaning.” Déjà vu, 411 F.3d at 798. What it means

to speak “publicly” is obvious enough: it covers communications through speeches, public

advertisements, and the like. To “endorse” someone, meanwhile, is to “‘support[] or aid[]’ the

other candidate, rather than supporting himself, ‘by or as if by signed statement.’” Winter v.

Wolnitzek, 834 F.3d 681, 691 (6th Cir. 2016) (quoting Webster’s Third New International

Dictionary 749 (3d ed. 2002)).

Those are straightforward terms, and combining them doesn’t make them any more

confounding. As the Board argues, “[a] common-sense reading of the Rule simply prohibits a

candidate from expressing approval of another candidate for public office where the expression

is visible or accessible to the community.” Though not expressly addressing itself to a vagueness

challenge, this court’s analysis in Winter is instructive: “Voters understand the difference

between a speech expressing, say, the judicial candidate’s progressive vision for the

Commonwealth and one, say, formally endorsing the Democratic nominee for Attorney General

of Kentucky or President of the United States. The former helps the candidate; the latter helps

the candidates for Attorney General and President.” 834 F.3d at 691. If voters can understand

that difference, judicial candidates can too.

And as with every provision of the Code, Rule 4.1(A)(3)’s intended reach is clarified by

comments, advisory opinions, and staff letters. Of particular importance here are four advisory

opinions cited by the Board that provide extensive clarification on the meaning of “publicly

endorse.” See, e.g., R. 55, Ex. 2, Adv. Op. 2002-013 (defining “publicly endorse” as “to give

approval or support to” and providing a non-exhaustive list of public-endorsement examples,

including going door-to-door for another candidate and placing yard signs that support another

candidate); R. 55, Ex. 3, Adv. Op. 2001-01 (concluding that wearing a campaign button

supporting another candidate would violate the rule); R. 55, Ex. 4, Adv. Op. 92-11 (concluding

that formal introductions of other candidates at political gatherings would violate the rule).

Though a person of ordinary intelligence, without the aid of these advisory opinions, should

No. 17-3461 Platt, et al. v. Bd. of Comm’rs on Grievances, et al. Page 14

understand what it means to publicly endorse another politician, interpretive guides like these

further undermine Platt’s vagueness claim.

But Platt again protests with hypotheticals. The relevant interrogatories are:

6. May a judicial candidate, without violating Rule 4.1(A)(3) of the Ohio Code of

Judicial Conduct, ‘privately’ endorse or oppose a candidate for another public

office. If a judicial candidate may do so without violating Rule 4.1(A)(3) of the

Ohio Code of Judicial Conduct, explain how a judicial candidate ascertains or

ensures that he or she is ‘privately’ (as opposed to ‘publicly’) endorsing or

opposing a candidate for another public office.

7. May a judicial candidate, without violating Rule 4.1(A)(3) of the Ohio Code of

Judicial Conduct, publicly speak in support of or favorably towards another

candidate for public office so long as the judicial candidate does not expressly

utilize the word ‘endorse’ or a variation thereon, e.g., ‘endorsement,’ ‘endorsing,’

etc.

The Board’s responses included the same “case-by-case basis” refrain as its responses to

interrogatories four and five.

These exchanges do not, as Platt wishes, establish the rules as unduly vague. They

instead only illustrate the inadvisability of trying to provide definitive answers to incomplete and

ill-defined factual scenarios. Take Platt’s sixth interrogatory. The knee-jerk answer appears to

be “yes.” Rule 4.1(A)(3) by its terms prohibits public endorsements, not private ones, and so a

judicial candidate would likely not run afoul of the Rule by, for example, pledging fealty to

another candidate around the family dinner table. But if a media member is the candidate’s

dinner guest in that instance, the Board’s analysis may well differ. The answer to Platt’s seventh

interrogatory, meanwhile, would seemingly almost always be “no.” To speak in support of a

candidate, even without using the specific word “endorse,” is nevertheless to endorse that

candidate—and so a judicial candidate likely would violate the Rule by publicly doing so. R. 55,

Ex. 2, Adv. Op. 2002-013 (describing illustrative endorsement activities as those that “show

public approval and support” for other candidates). But specific facts, including the precise

words the candidate uses and the audience to whom he or she is speaking, would determine

whether the candidate has moved from permissible discussion on contentious legal or political

subjects to prohibited advocacy for a specific candidate. See Winter, 834 F.3d at 690.

No. 17-3461 Platt, et al. v. Bd. of Comm’rs on Grievances, et al. Page 15

The Board’s refusal to answer Platt’s hypotheticals does not constitute an admission that

Rule 4.1(A)(3) is vague. On the contrary, we hold that the rule’s plain language and the Board’s

clarifying comments and advisory opinions provide candidates fair notice of what conduct the

rule prohibits.

c. Rule 4.4(A)

This provision provides that a judicial candidate, with certain limited exceptions, shall

not “personally solicit campaign contributions.”8 There is no real dispute about what constitutes

a campaign contribution, but Platt claims the meaning of “personally solicit” is

unconstitutionally elusive. The district court didn’t think so, and we once again agree.

There is little for us to add to the district court’s analysis explaining why Rule 4.4(A) is

not unduly vague. The court essentially reproduced its Rule 4.4(A)-vagueness analysis from the

companion case to this one. R. 86, PID 2186-88 (discussing O’Toole v. O’Connor, No. 2:15-

CV-1446, 2016 WL 4394135, at *16–17 (S.D. Ohio Aug. 18, 2016), reconsideration denied,

260 F. Supp. 3d 901 (S.D. Ohio 2017)). O’Toole said the Rule’s language was plenty clear:

The two words at issue are ‘personally’ and ‘solicit.’ ‘Personally’ means, ‘so as

to be personal: in a personal manner; often: as oneself: on or for one’s own part.’

Webster’s Third New International Dictionary, Unabridged (2016). ‘Solicit’

means, ‘to make petition to . . . especially: to approach with a request or plea (as

in selling or begging).’ Id. Especially in combination with the provision of a

campaign committee that may directly solicit contributions, this prohibition is not

difficult to understand: the judicial candidate cannot hold out her hand and ask

people for money—her committee can.

2016 WL 4394135 at *16. So far, so good.

But for a third time, Platt parries with his hypotheticals and the Board’s responses. Platt

points to five interrogatories; two of them, eight and eleven, are representative:

8. For purposes of this interrogatory, a ‘bundler’ is a person who solicits and/or

gathers contributions from many different individuals or entities with the goal or

purpose of raising or gathering at least a certain targeted level of accumulated

8Every other state in the Sixth Circuit has an essentially identically worded rule. Kentucky Code of

Judicial Conduct, Canon 5(B)(2); Michigan Code of Judicial Conduct, Canon 7(B)(2)(a); Tennessee Code of

Judicial Conduct, Canon 4, Rule 4.1(A)8).

No. 17-3461 Platt, et al. v. Bd. of Comm’rs on Grievances, et al. Page 16

contributions, and then presents the accumulated contributions (or ‘bundle’) to a

campaign committee in one lump sum. May a judicial candidate, without

violating Rule 4.4(A) of the Ohio Code of Judicial Conduct, personally solicit or

request a person to serve as a ‘bundler’ of campaign contributions in support of

such candidate’s judicial campaign.

…

11. May a judge or a judicial candidate, without violating the Ohio Code of

Judicial Conduct, personally encourage or lobby individuals or organizations not

to make a financial contribution to the campaign committee of a judicial

candidate. If such action constitutes or may constitute a violation of the Ohio

Code of Judicial Conduct, identify the specific rule which is or may be violated

by such conduct.

The Board gave its same “case-by-case basis” response, and Platt again contends that is

tantamount to conceding that Rule 4.4(A) is unconstitutionally vague. We—again—disagree.

The “bundler” question posed in the eighth interrogatory presents the toughest puzzle yet.

But we stress, like the district court in O’Toole, that we need not come up with confident

answers to Platt’s hypotheticals to uphold the Code as constitutional:

To start, a rule is not unconstitutionally vague because a plaintiff presents a tough

hypothetical. See Grayned, 408 U.S. at 112 n.15 (“It will always be true that the

fertile legal ‘imagination can conjure up hypothetical cases in which the meaning

of (disputed) terms will be in nice question.’” (quoting Am. Commc’ns Assn. v.

Douds, 339 U.S. 382, 412 (1950))). “Close cases can be imagined under virtually

any statute.” United States v. Williams, 553 U.S. 285, 306 (2008). The Court

could uphold the rule even under pressure from Plaintiffs’ hypotheticals . . . .

2016 WL 4394135 at *17. Hypotheticals are a favorite tool of those bringing vagueness

challenges, but we must, like O’Toole, point out the obvious: almost any criminal or civil

prohibition is susceptible to clever hypotheticals testing its reach. Any law student, intimately

familiar with the classic “issue-spotter” exam, knows this well. The very point of a well-crafted

exam is to test the student’s ability to apply a given law or set of laws to novel facts, and the very

sharpest students will often come to different bottom-line conclusions: Did Terry TaxEvader

violate the Internal Revenue Code? Maybe so. But then again—maybe not.

The O’Toole court nevertheless charged forward and concluded that soliciting a bundler’s

help in gathering contributions would be prohibited by Rule 4.4(A). 2016 WL 4394135 at *17.

Because in Platt’s hypothetical “the bundler acts at the personal request of the judicial

No. 17-3461 Platt, et al. v. Bd. of Comm’rs on Grievances, et al. Page 17

candidate,” O’Toole reasoned that the candidate would be “personally soliciting a larger

contribution from the bundler” and thus violating Rule 4.4(A). Id. That may well be correct.

Then again, the rationale that motivates Rule 4.4(A) is not as clearly implicated in the bundler

situation as it would be, say, where a judicial candidate personally solicited a large contribution

from a local lawyer. That much is clear from the first comment to Rule 4, which defends the

personal solicitation ban as necessary to “avoid[] the appearance of coercion or quid pro quo,

especially when a judicial candidate engages in a one-on-one solicitation of a lawyer or party

who appears before the court.” Though the candidate in Platt’s hypothetical personally solicits

the bundler’s assistance in collecting contributions, the candidate is not asking for the bundler’s

money; indeed, the bundler has the happy effect of screening the candidate from his benefactors.

Because this is a close question, we leave it to the Board to decide—if it is ever confronted with

it—on a complete factual picture. But we will not say that the difficulty of answering it in the

abstract renders the rule vague. One difficult scenario does not make the words “personally

solicit” constitutionally infirm.

As for Interrogatory 11—the counter-solicitation question—the O’Toole court said Rule

4.4(A) would not prohibit this conduct. O’Toole reasoned that a candidate saying “‘Please don’t

give any money to my opponent’” is not soliciting a contribution; he is, rather, soliciting a

“promise not to give money to the other side.” Id. And a promise not to contribute to one’s

opponent does not qualify as a “contribution” within the meaning of the Code, which defines

“contribution” in the same way Ohio’s Revised Code, 3517.01 does: a “loan, gift, deposit,

forgiveness of indebtedness, donation, advance, payment, or transfer of funds or anything of

value.” But we again decline to answer Platt’s hypothetical ourselves. Though it seems unlikely

that a judicial candidate would violate Rule 4.4(A) through counter-solicitation, that is a question

for the Board to decide with a complete set of facts before it. That the answer the Board reaches

might depend on certain factual nuances does not compel the conclusion that the rule is

unconstitutionally vague.

In sum, we conclude that the Code’s plain language and clarifying comments, and the

Board’s elaboration through staff letters and advisory opinions, provide fair notice to judicial

candidates of what conduct is prohibited.

No. 17-3461 Platt, et al. v. Bd. of Comm’rs on Grievances, et al. Page 18

2. Arbitrary Enforcement

To the extent Platt argues the challenged Code provisions are unconstitutionally vague

because they invite arbitrary and inconsistent enforcement, Hill, 530 U.S. at 732, we can analyze

the provisions collectively. The key question here is whether the Code “provide[s] explicit

standards guiding [its] enforcement.” United Food & Commercial Workers Union, Local 1099

v. Sw. Ohio Reg’l Transit Auth., 163 F.3d 341, 359 (6th Cir. 1998). The district court held that

the Code did so, referring to the Board’s use of advisory opinions to add further detail to the

Code’s prohibitions and prevent abuse. We agree.

The analysis under the second vagueness prong is necessarily duplicative of the first. For

example, Platt complains that the Code “allows for ad hoc standards for enforcement,” but that

argument flows from his hypothetical-based argument that the Code’s prohibitions are too

vaguely framed. Appellants’ Br. at 19. The Board’s first response to the charge that the Code

invites arbitrary enforcement, meanwhile, is a reference to “the standards embedded in the Rules

themselves.” Appellees’ Br. at 50. But beyond these two points—which are fully explored

above—the Board offers additional evidence that the Code’s enforcement procedures contain

“clear standards to guide the discretion” of the Board. Leonardson v. City of E. Lansing,

896 F.2d 190, 198 (6th Cir. 1990).

Specifically, the Board directs us to “the multi-step process mandated before a candidate

can[] be deemed to have violated any Rule; the requirement of proof by clear and convincing

evidence before a five-member panel may address sanctions; and appeal to the Ohio Supreme

Court.” These safeguards are extensive. Once the Board receives a grievance alleging a

violation of the Code, the Board’s Director conducts an initial screening. If it passes this initial

screen, a three-member panel of the Board then determines whether there is probable cause to

believe that a violation occurred. Probable cause exists only when there is “substantial, credible

evidence that misconduct has been committed.” If that three-member panel finds probable

cause, the case proceeds to a hearing before a three-member panel of the Board. And critically,

the panel must find a violation by clear and convincing evidence. That requirement alone

undermines any argument that the Code can be arbitrarily and abusively enforced. Cf. Williams,

No. 17-3461 Platt, et al. v. Bd. of Comm’rs on Grievances, et al. Page 19

553 U.S. at 306 (2008) (noting the “problem” of close cases “is addressed, not by the doctrine of

vagueness, but by the requirement of proof beyond a reasonable doubt.”)

And that’s not the end of it: A clear-and-convincing finding leads only to yet another

Board review, this time by a five-member panel of judges, to determine appropriate sanctions.

Any sanctions imposed are appealable to the Ohio Supreme Court, whose decision is informed

by “the duties violated, respondent’s mental state, the injury caused, the existence of aggravating

or mitigating circumstances, and applicable precedent.” Disciplinary Counsel v. Kaup,

806 N.E.2d 513, 516 (Ohio 2004). This enforcement process does not afford unrestrained

discretion that can be put to pernicious purposes.

Unable to show that the Code fails to provide fair notice of what conduct is prohibited or

that the Code is arbitrarily enforced, Platt’s vagueness challenge fails.

D. First Amendment

Platt alleges that Rules 4.1(A)(2), 4.1(A)(3), 4.4(A), 4.4(E), 4.4(F), and 4.4(G) all impose

impermissible content-based restrictions on core political speech in violation of the First

Amendment. The regulations limit the fundraising and political activity of judges and judicial

candidates; both parties agree that such limitations must survive strict scrutiny to pass

constitutional muster.9 This means the Code’s rules must be “narrowly tailored to serve a

compelling interest.” Williams-Yulee, 135 S. Ct. at 1664.

Before addressing whether that is true of the Rules at issue here, we first address an

argument permeating Platt’s entire First Amendment challenge: that he should win simply

because the Board failed to present sufficient evidence to satisfy its summary judgment burden.

For the reasons stated in our discussion of the protective order, this argument fails. The Supreme

9Despite the parties’ consensus, we note that there remains some question whether the Fundraising rules—

which establish the timeframe in which campaign committees may receive contributions—should receive strict

scrutiny or instead be reviewed under the more deferential “closely drawn” rubric applied to contribution limitations

in Buckley v. Valeo, 424 U.S. 1, 25 (1976), and later in Randall v. Sorrell, 548 U.S. 230, 247 (2006) (plurality

opinion). While those cases involved regulations on the amount of a given contribution, and this case deals with

limitations on the timing of contributions, there is a good argument the same more-relaxed standard should apply to

each. At least one court of appeals has concluded as much. Thalheimer v. City of San Diego, 645 F.3d 1109, 1117-

18, 1122-23 (9th Cir. 2011). Nevertheless, because the parties do not brief this question, and because the result we

reach today would be the same under either standard, we do not express a view one way or another on the issue.

No. 17-3461 Platt, et al. v. Bd. of Comm’rs on Grievances, et al. Page 20

Court in Williams-Yulee already decided that states’ interest in maintaining judicial integrity

need not be substantiated by documentary evidence. 135 S. Ct. at 1667. That is why, as the

district court here noted, the Court was able to apply strict scrutiny to Florida’s judicial election

rules “without regard for evidentiary support.” R. 49, Op. and Order, PID 1237-38 (discussing

Williams-Yulee). If the Supreme Court was satisfied it could conduct the constitutional analysis

required in cases like these without a developed documentary record, it was proper for the

district court to do the same.

Turning now to that analysis, we proceed as follows: first, we assess the state’s claimed

interest for the rules collectively, since the same interests—preserving judicial integrity and

protecting public trust in the judiciary—are invoked for each Rule; second, we evaluate whether

each Rule individually is narrowly tailored to serve that interest.

1. Compelling Interest

The Board identifies two distinct compelling interests served by the Rules: maintaining

judges’ actual independence and impartiality, and maintaining the public’s trust in the judiciary’s

independence and impartiality. These claimed interests are not litigation-driven concoctions; the

preamble to the Code says as much in its first sentence. The preamble states that an

“independent, fair and impartial judiciary is indispensable to our system of justice” and that the

Code’s rules are premised on the idea that judges must “strive to maintain and enhance

confidence in the legal system.” Code of Judicial Conduct Preamble ¶ 1

These twin interests are compelling and thus clear the first strict scrutiny hurdle. The

first, actual impartiality, is self-evidently crucial: “Litigants have a due process right to a trial

before a judge with no ‘direct, personal, substantial pecuniary interest’ in the outcome.” Carey

v. Wolnitzek, 614 F.3d 189, 204 (6th Cir. 2010) (quoting Tumey v. Ohio, 273 U.S. 510, 523

(1927)). This goes hand-in-hand with the second interest, for “the legitimacy of the judiciary

rests on delivering on that promise and in furthering the public’s trust in the integrity of its

judges.” Id. A scrupulously independent judiciary means little, after all, if the public does not

view it as such.

No. 17-3461 Platt, et al. v. Bd. of Comm’rs on Grievances, et al. Page 21

The Supreme Court has time and again affirmed states’ powerful interest in ensuring

impartiality in practice and in perception. Caperton v. A.T. Massey Coal Co., 556 U.S. 868, 889

(2009) (stating that judicial conduct codes “serve to maintain the integrity of the judiciary and

the rule of law,” a “vital state interest”); Republican Party of Minnesota v. White, 536 U.S. 765,

793 (2002) (Kennedy, J., concurring) (“The citizen’s respect for judgments depends in turn upon

the issuing court’s absolute probity. Judicial integrity is, in consequence, a state interest of the

highest order.”). And in Williams-Yulee, the Court, informed by these prior judgments, expressly

held that Florida’s interest in safeguarding the public’s confidence in the judiciary was a

compelling interest that justified limitations on judicial candidate speech. 135 S. Ct. 1666.

Platt, however, argues that while Williams-Yulee and other prior cases recognized the

compelling interest states have in maintaining judicial integrity (and the appearance of it), no

case has done so with respect to “each rule being challenged herein” and “in the particular

context of such rules being applied against non-sitting judicial candidate[s] and/or their

campaign committees.” Platt’s arguments miss the mark.

Take first Platt’s argument that Williams-Yulee cannot be applied to any rule in this case

that differs from the solicitation rule at issue there. Platt finds no support for such a cramped

interpretation of Williams-Yulee. Courts have instead read and applied its lessons broadly. For

instance, the Ninth Circuit’s decision in Wolfson v. Concannon, 811 F.3d 1176 (9th Cir. 2016)

(en banc), reasoned from Williams-Yulee that Arizona had a compelling interest in limiting

endorsements by judicial candidates. Id. at 1183. It made no difference to the Ninth Circuit that

it was evaluating an endorsement (rather than solicitation) limitation, because Williams-Yulee

“addressed not just a prohibition on personal requests for campaign contributions, but state

restrictions on judicial candidate speech generally.” Id. at 1181.

This court, though less explicitly, embraced the same expansive reading of Williams-

Yulee in Winter v. Wolnitzek, 834 F.3d 681 (6th Cir. 2016). In analyzing several Kentucky

judicial-election regulations, we said that the same compelling interests—maintaining judicial

impartiality in practice and perception—justified various restrictions. Assessing Kentucky’s

endorsement rule, we said the state had a “compelling interest in preventing judges from

becoming (or being perceived as becoming) part of partisan political machines” and in “keeping

No. 17-3461 Platt, et al. v. Bd. of Comm’rs on Grievances, et al. Page 22

its judges above the partisan fray of trading political favors.” Id. at 691. And addressing

Kentucky’s rule prohibiting judges from acting as a leader of a political organization, we said

such a rule “targets an admirable goal (preserving public confidence in its judges),” and cited to

Williams-Yulee in doing so. Id. at 692. Winter is thus good authority for the proposition that the

broad interest in judicial impartiality recognized in Williams-Yulee is applicable to the

solicitation, fundraising, and endorsement rules challenged by Platt. So, too, is our preliminary

injunction decision in the companion case to this one. O’Toole, 802 F.3d at 789-90. When

O’Toole argued that the Williams-Yulee interest “applies only to the direct solicitation of

contributions by a judge,” not to Rule 4.4(E)’s temporal limitations on receiving campaign

contributions, we answered that the timing rule “implicates many of the same concerns regarding

judicial integrity and propriety.” Id.

Winter also dispenses with Platt’s second charge—that however compelling the state’s

interest might be in regulating sitting judges’ campaigning, that interest recedes as applied to

non-sitting judicial candidates. Winter indicates otherwise. The challengers in that case

comprised one sitting judge and two non-sitting judicial candidates, and there is nothing in the

opinion that indicates the compelling interest analysis varied according to the challenger’s status.

Winter, 834 F.3d at 686. It would be odd if there were—the state’s interest applies equally to

each, since the state’s objective is to ensure actual impartiality and the perception of it by

keeping any candidate for judicial office insulated from “quid pro quo politics.” Id. at 691. The

candidate who may become a judge must be policed just as the sitting judge is; if not, the

public’s trust in the former would be diminished. Furthermore, as explained below in our

discussion of Platt’s equal protection claim, adopting two different sets of rules for sitting judges

and non-sitting candidates would create more constitutional problems than it would solve. See

Wolfson, 811 F.3d at 1190 (Berzon, J., concurring).

And finally, in O’Toole, we decisively rejected Platt’s argument that Williams-Yulee does

not bear on our analysis of the rules regulating campaign committees as opposed to individual

candidates. While it is true that Williams-Yulee dealt only with a judicial candidate’s personal

solicitation, “the close connection between judicial candidates and their campaign committees

under Ohio law implicates many of the same concerns regarding judicial integrity and propriety.”

No. 17-3461 Platt, et al. v. Bd. of Comm’rs on Grievances, et al. Page 23

O’Toole, 802 F.3d at 789-90. Indeed, judicial campaign committees are products of, and may

include, the candidate herself. See Ohio Rev. Code § 3517.01(C)(1) (defining “campaign

committee” as “a candidate or a combination of two or more persons authorized by a candidate .

. .to receive contributions and make expenditures”); Ohio Jud. Cond. R. 4.4(A) (“A judicial

candidate may establish a campaign committee to manage and conduct a campaign for the

candidate . . . .”). “Moreover, in addition to the actual or apparent authority judicial candidates

wield over their campaign committees, Ohio law requires that ‘[t]he name of a campaign

committee shall include at least the last name of the campaign committee’s candidate,’ further

aligning the committee with the candidate in the eyes of the public.” O’Toole, 802 F.3d at 790

(alteration in original) (quoting Ohio Rev. Code § 3517.10(D)(1)).

We therefore have no trouble relying on Williams-Yulee for the proposition that a

compelling interest justifies Ohio’s restrictions on judicial candidates—whether sitting judges or

not—and their campaign committees.

2. Narrow Tailoring

For Ohio’s rules to clear the second strict scrutiny hurdle, they must advance the state’s

interests, and they must do so without being either too over-inclusive or under-inclusive. A rule

guilty of the former infringes on protected speech beyond the degree necessary to achieve the

state’s compelling interest, Republican Party of Minnesota v. White, 536 U.S. 765, 775 (2002),

while a rule guilty of the latter may “reveal that a law does not actually advance a compelling

interest,” Williams-Yulee, 135 S. Ct. at 1668. This does not mean, however, that we must find

the challenged Rules are “perfectly drawn.” Winter, 834 F.3d at 692 (holding that Kentucky

judicial election law survived strict scrutiny despite a “modest under-inclusivity problem”).

On the contrary, “[t]he impossibility of perfect tailoring is especially apparent when the State’s

compelling interest is as intangible as public confidence in the integrity of the judiciary.”

Williams-Yulee, 135 S. Ct. at 1671. Thus, rather than second-guess every close constitutional

shave in this context, the Court has insisted that states’ “considered judgments deserve [a

reviewing court’s] respect, especially because they reflect sensitive choices by States in an area

central to their own governance—how to select those who sit as their judges.” Id. (internal

quotation marks omitted).

No. 17-3461 Platt, et al. v. Bd. of Comm’rs on Grievances, et al. Page 24

The district court, for its part, found it unnecessary to conduct tailoring analysis anew,

relying instead on the Sixth Circuit’s preliminary injunction ruling in this case, Platt, 769 F.3d at

451, and its preliminary injunction ruling in a companion case, O’Toole, 802 F.3d at 783. R. 87,

Op. and Order, PID 2200-01 (noting it was “unnecessary to re-visit the decisions of law made by

this Court and affirmed by the Sixth Circuit” in preliminary injunction cases). The problem with

that approach is that a court’s preliminary injunction decision is a limited one—a point the

earlier panel in Platt’s case made explicitly:

Our opinion does not guarantee the State a win on the merits. Far from it: We,

like the Supreme Court, do not intimate [a] view on the merits one way or the

other. The ultimate issue—whether Ohio’s narrower Code provisions satisfy the

First Amendment principles discussed in Carey—remains an open question . . . .

But now is not the time for us to answer that question. Here, we conclude only

that, upon de novo review, Platt has not established a strong likelihood of success

on the merits, and that the district court did not abuse its discretion in balancing

the four preliminary-injunction factors.

Platt, 769 F.3d at 455 (internal quotation marks and citations omitted). At summary judgment,

however, rather than reviewing a district court decision evaluating whether the movant had

demonstrated a likelihood of success on the merits, we must decide whether the district court

correctly concluded that the Board in fact succeeds on the merits. And our review is de novo,

not the deferential abuse-of-discretion standard used at the preliminary injunction stage.

Nevertheless, as the tailoring analysis for each Rule below yields, the district court

arrived at the correct ultimate conclusion for each Rule—they are all narrowly tailored to serve

Ohio’s compelling interest in maintaining the judiciary’s integrity.

a. Rules 4.4(E), (F) and (G)

The Fundraising Rules together establish the permissible time-periods for contributions.10

Rule 4.4(E) permits candidates to receive contributions beginning 120 days before the pertinent

primary election, while Rule 4.4(F) permits that fundraising to continue through 120 days after

10Every state in the Sixth Circuit establishes fundraising windows, though Ohio’s 120-day rule appears to

allow the shortest amount of time before the primary. Kentucky allows the next shortest amount, allowing

fundraising to begin 180 days before the primary. Kentucky Code of Judicial Conduct, Canon 5(B)(2). On the other

hand, Michigan permits no fundraising after the date of the election. Michigan Code of Judicial Conduct, Canon

7(B)(2)(d).

No. 17-3461 Platt, et al. v. Bd. of Comm’rs on Grievances, et al. Page 25

the primary, or the general election if the candidate wins his or her primary. Rule 4.4(G),

meanwhile, permits fundraising for 120 days after a candidate’s death or withdrawal from a

campaign.

The Board contends these Rules, by allowing fundraising only “within reasonable

proximity to an election, . . . advance the State’s interests in the perception and reality of judicial

independence, integrity, and impartiality.” The Board also maintains that the fundraising rules

are neither over-inclusive—since they do not proscribe self-funding, campaign spending, and

other campaign activities—nor under-inclusive—since they apply “evenhandedly to all judges

and judicial candidates,” Williams-Yulee, 135 S. Ct. at 1669. The district court agreed, though

without much of its own analysis. For the reasons set forth below, we affirm.

It is easier to show why the Fundraising Rules pass constitutional muster by explaining

why Platt’s arguments to the contrary are unconvincing. Let’s begin with Rule 4.4(E). Platt

alleges it suffers from two fatal flaws: first, it creates disparities by allowing incumbents to hold

onto previously raised funds for use in their reelection battles, giving them an edge over first-

time candidates who must rely only on the funds raised in the permitted period; and second, the

Board has produced no evidence showing a “nexus” between the “prohibition . . . and the interest

supposedly being advanced.” The first argument sounds in equal protection rather than the First

Amendment, and we address it more completely in Section E. of this opinion.11 The second can

be readily dismissed here.

While Platt urges the court to not “cavalierly accept the ipse dixit of Defendants-

Appellees sans actual proof,” Appellants’ Br. at 41, Williams-Yulee made clear that, for better or

for worse, the Board need not produce documentary evidence to substantiate precisely how

11Moreover, to the extent Platt suggests the alleged inequalities caused by the rule constitute a First

Amendment violation, his argument is in some tension with two principles announced by the Supreme Court. First,

such an argument ignores the Supreme Court’s admonition that legislative rules may not be crafted to “level the

playing field, or to level electoral opportunities, or to equaliz[e] the financial resources of candidates.” McCutcheon

v. Fed. Election Comm’n, 134 S. Ct. 1434, 1450 (2014) (alteration in original) (internal quotation and citation

omitted). And second, he cannot show any intent by Ohio to harm first-time judicial candidates, as is usually

required to strike down a law that is facially neutral. See Buckley v. Valeo, 424 U.S. 1, 31 (1976) (“Absent record

evidence of invidious discrimination against challengers as a class, a court should generally be hesitant to invalidate

legislation which on its face imposes evenhanded restrictions.”); see also Thalheimer v. City of San Diego, 645 F.3d

1109, 1121-22 (9th Cir. 2011) (noting that this Buckley principle “undercut” challenger’s argument that law treating

judicial candidates and incumbents the same nevertheless favored incumbents.).

No. 17-3461 Platt, et al. v. Bd. of Comm’rs on Grievances, et al. Page 26

(or how well) these Rules serve its claimed interests, 135 S. Ct. at 1667 (“The concept of public

confidence in judicial integrity does not easily reduce to precise definition, nor does it lend itself

to proof by documentary record.”). Rather, speech limitations may survive strict scrutiny when

the manner in which they serve a state’s interest are “intuitive.” Id. at 1666. And because it

makes intuitive sense that campaign contributions tightly cabined to the election date will

minimize the “quid pro quo appearance problems” the state is worried about, Winter, 834 F.3d at

692, Platt’s argument fails.

We explained the intuition underpinning Rule 4.4(E) in O’Toole. Because “contributions

that are not proximate in time to an election can increase the appearance of impropriety and the

risk of actual bias,” the rule wisely “prohibits the solicitation and receipt of funds only during the

period of time that most implicates the government’s stated interests.” O’Toole, 802 F.3d at 790.

And we aren’t the only court to make this point. Thalheimer v. City of San Diego, 645 F.3d

1109, 1121 (9th Cir. 2011) (recognizing that a temporal contribution limit “reduces actual and

perceived corruption because those contributions made near an election are clearer expressions

of political speech, whereas off-year contributions are more likely linked to business the donor

has before the city, thus creating the appearance of quid pro quo corruption by the sale of

influence.”); Caperton, 556 U.S. at 886 (emphasizing that the “temporal relationship between the

campaign contributions, the justice’s election, and the pendency of the case is . . . critical” in

due-process bias analysis).

The Sixth Circuit has even approved of temporal limits on campaign fundraising beyond

judicial elections. In Gable v. Patton, 142 F.3d 940 (6th Cir. 1998), we considered the

constitutionality of a Kentucky law prohibiting any gubernatorial candidate from receiving

contributions during the twenty-eight days preceding a primary or general election. We upheld

the restriction, relying heavily on Buckley v. Valeo, 424 U.S. 1, 21-22 (1976), in which the

Supreme Court sanctioned limitations on the size of individual contributions to candidates.

Gable, 142 F.3d at 950-51. We reasoned: If Buckley said limitations on the size of contributions

were permissible, then it followed that limitations on the timing of contributions were similarly

above board. While both limitations may “force candidates to rearrange their fundraising”—the

size cap means candidates must solicit a greater number of smaller donations, while the timing

No. 17-3461 Platt, et al. v. Bd. of Comm’rs on Grievances, et al. Page 27

rules compel candidates to concentrate fundraising efforts to the prescribed timeframe—they are

justified by the state’s “interest in combating corruption.” Id. at 951.

As in Gable, so in this case. The fact that the rule in Gable regulated gubernatorial

candidates in partisan elections and imposed somewhat different timing restrictions does not

make it less persuasive here. Just the opposite is true. Corruption in the judiciary, or even the

appearance of it, is an anathema: the state’s interest in regulating elections to guard against those

evils is at its peak. Common sense tells us this, and good authority does too. Williams-Yulee,

135 S. Ct. at 1667 (“[A] State’s interest in preserving public confidence in the integrity of its

judiciary extends beyond its interest in preventing the appearance of corruption in legislative and

executive elections.”); Winter, 834 F.3d at 695 (“[T]reating elections for the courts just like

elections for the political branches does not make sense” because judges “are supposed to follow

the rule of law—no matter current public opinion, no matter the views other political branches,

no matter the views of the parties that support them.”). What is good enough for the goose is

still better for the gander: If temporal contribution limits are tolerable in partisan executive

elections, it follows that they are also permissible in judicial races.

We recognized the basic legitimacy of temporal limitations in our decision denying a

preliminary injunction in the companion to this case. O’Toole, 802 F.3d at 790. Mindful that the

decision evaluated only the plaintiff’s likelihood of success, its reasoning is still instructive. In a

vein similar to Gable, the O’Toole court said that if the Supreme Court permitted Florida’s

absolute prohibition on candidate solicitation in Williams-Yulee, it made sense to think a rule

constraining only the timing of campaign contributions was also constitutional. Id. (“The

regulation at issue in this case restricts an even narrower slice of speech . . . .”). And again, that

Rule 4.4(E) “prohibits the solicitation and receipt of funds only during the period of time that

most implicates the government’s stated interests, recognizing that contributions that are not

proximate in time to an election can increase the appearance of impropriety and the risk of

actual bias,” further reinforced the Rule’s constitutionality. Id. (emphasis added).

Even so, Platt argues that the rule bars too much speech because it effectively silences

non-sitting judicial candidates. But the rule does not mean—as Platt says it does—that non-

sitting candidates “cannot engage in any political speech” until 120 days before the primary.

No. 17-3461 Platt, et al. v. Bd. of Comm’rs on Grievances, et al. Page 28

Rather, Rule 4.4(E) means what it says: candidates may not engage in fundraising outside the

prescribed period. Candidates are otherwise free to engage in a wide range of political activity,

including contributing and spending their own money, attending political functions, public

speaking, door-to-door campaigning, and marshalling volunteers who can do all those things on

their behalf. O’Toole, 802 F.3d at 790. In other words, candidates can do everything they need

to do—short of soliciting and receiving financial contributions—to cultivate a base of support

that can propel them to victory at the polls.

And though fundraising is of course important to effective speech, the limits here are not

nearly as onerous as Platt makes them out to be. A candidate who loses in the primary still

enjoys eight months (four before, four after the election) for fundraising. A candidate who wins

in the primary, meanwhile, can continue raising funds from the four months before his primary

all the way through four months after the general election. As the Board demonstrates in its

brief, Platt’s campaign committee could have received contributions for as long as nineteen

months during the 2016 election cycle. Viewing this fundraising window more

comprehensively, and keeping in mind that other means of campaigning remain open to

candidates, Rule 4.4(E) is not as suffocating as Platt suggests.

That leaves only an argument that Rule 4.4(E) is under-inclusive, an argument Platt does

not appear to develop, if he makes it at all. But Platt’s emphasis on the need for a no-carryover-

funds rule in the context of his equal protection claim could be taken as an under-inclusivity

argument under the First Amendment. The fact that Rule 4.4(E)’s contribution rule is not

coupled with a rule requiring candidates to disgorge campaign finances after the election may

“raise doubts about whether the government is in fact pursuing the interest it invokes, rather than

disfavoring a particular speaker or viewpoint.” Williams-Yulee, 135 S. Ct. at 1668 (citation and

quotation marks omitted). The theory would be that, if the state is so concerned about

minimizing the appearance of quid pro quo impropriety that it needs to cabin the solicitation and

receipt of contributions close to the election, then it should also require candidates to surrender

campaign funds that are not necessary to success in that election. To cure this First Amendment

defect, the argument goes, the state would have to curb more speech. But we don’t think the

absence of a no-carryover-funds rule renders Rule 4.4(E) under-inclusive. First, Ohio already

No. 17-3461 Platt, et al. v. Bd. of Comm’rs on Grievances, et al. Page 29

places limits on how candidates can speak with the money they raise—only those limits focus on

the character of the speech (e.g., bans on endorsements, speaking as a party spokesperson), not

the quantity of speech (what a disgorgement rule would target). And second, Rule 4.4(E) limits

the solicitation and receipt of contributions, actions that inevitably jeopardize the public trust in a

judge’s independence; a no-carryover-funds rules, by contrast, would prevent judicial candidates

from engaging even in benign political speech and thus lacks a similarly powerful justification.

We grant, as we did in O’Toole, that the “specific time limit . . . may appear arbitrary.”

802 F.3d at 791. But, so too, it seems, would any other line Ohio or this court could draw.

Consider the timing rules used in other states within this Circuit. Kentucky, for instance, allows

judicial candidates’ committees to solicit funds starting 180 days before the primary. Kentucky

Code of Judicial Conduct, Rule 5(B)(2). If we hold today that Ohio’s rule is too restrictive, how

would the next court decide whether Kentucky’s 60 additional days make a constitutional

difference? “[I]t is exactly this type of line drawing that the Supreme Court sought to avoid

‘wading into’ in explaining that narrow tailoring does not mean ‘perfectly’ tailoring.” O’Toole,

802 F.3d at 791 (quoting Williams-Yulee, 135 S. Ct. at 1671) (brackets omitted). We will not

make the very mistake the Supreme Court cautioned against by wading into that morass today.

Instead, we reject Platt’s challenge to Rule 4.4(E) and conclude that it is narrowly tailored to

advance Ohio’s compelling interest in maintaining judicial integrity.

As for Rules 4.4(F) and (G), Platt says those simply are not tethered to the state’s claimed

interest in preserving judicial impartiality, since candidates who lose, withdraw, or die will not

become judges. Platt takes particular aim at Rule 4.4(G), which prohibits a campaign committee

from soliciting or accepting contributions 120 days after her death. How, Platt asks, can such a

rule further the state’s interest in preserving judicial integrity when that one-time candidate—

now dead—can never become a sitting judge?

A clever blow by Platt, it still fails to score a knockout. As an initial matter, the

argument has purchase only with respect to dead candidates, not those who lose or withdraw,

since if mere election-losers (rather than life-losers) were permitted to continue fundraising

longer than the victor, the Rules could create an unfair fight the next time around. But even as

No. 17-3461 Platt, et al. v. Bd. of Comm’rs on Grievances, et al. Page 30

applied to the campaign committees of deceased one-time candidates, Rule 4.4(G) raises no

constitutional red flags.

For starters, it is hard to fathom how limiting a dead candidate’s ability to fundraise

implicates the First Amendment at all. Fundraising at that point is no longer political speech,

given that the individual running for office can no longer speak, yet alone run for office. Indeed,

what legitimate interest (aside from paying down campaign debts) would a dead candidate’s

committee have in continuing to fundraise long after they have lost their horse in the race? Thus,

even if Platt were right that the government has a less compelling interest in regulating the

fundraising activities of dead candidates, surely it must also be true that such fundraising enjoys

less constitutional protection. But even accepting the dubious proposition that a dead candidate’s

ability to fundraise implicates core First Amendment concerns, Ohio still has a powerful interest

in maintaining the appearance of judicial impartiality, and Rule 4.4(G) is appropriately tailored

to that interest. While the dead candidate will never serve as a judge, if his committee were

permitted to continue fundraising, long before and long after an election has passed, the public

could be left with the impression that judges campaign like any other Ohio politician. The

candidate-turned-decedent’s personal interest may be extinguished, but the state’s interest in

tightly limiting the campaigning activities of candidates’ committees has not.

For these reasons, we affirm the district court’s determination that Ohio’s Fundraising

Rules are narrowly tailored and thus survive strict scrutiny.

b. Rule 4.4(A)

The Solicitation Rule prohibits a judicial candidate from personally soliciting campaign

contributions with three limited exceptions: A candidate may do so (1) when speaking to an

audience of 20 or more people; (2) by letter form if sent by the campaign committee and

contributions are directed to the committee; and (3) by email if contributions are directed to the

committee.

The Board maintains that Rule 4.4(A) is narrowly tailored to serve the state’s compelling

interest in maintaining actual and perceived judicial impartiality. It does so, the Board says, by

targeting “the aspect of fund raising that is most apt to raise eyebrows and hackles,” while still

No. 17-3461 Platt, et al. v. Bd. of Comm’rs on Grievances, et al. Page 31

“allow[ing] [candidates] adequate opportunity to fund their campaigns.” See Ohio Council 8

Am. Fed’n of State, Cty., & Mun. Employees, AFL-CIO v. Brunner, 912 F. Supp. 2d 556, 568-69

(S.D. Ohio 2012). The Board further claims that the Supreme Court’s decision in Williams-

Yulee confirms Rule 4.4(A)’s constitutionality, since Williams-Yulee held that a personal

solicitation ban with no exclusions was narrowly tailored and satisfied strict scrutiny. 135 S. Ct.

1669. The district court agreed, and for good reason.

Williams-Yulee considered whether a provision in Florida’s judicial conduct code

banning judicial candidates from personal solicitation with “zero exceptions” satisfied strict

scrutiny. 135 S. Ct. 1669. If that comparatively broader prohibition was properly tailored, then,

Rule 4.4(A)—which does admit three limited exceptions—cannot be over-inclusive. Nor is Rule

4.4(A) under-inclusive in a manner that suggests it “does not actually advance a compelling

interest.” Id. at 1668. The exceptions allow only personal solicitation that is more

depersonalized and distant; they do not allow for the “face-to-face” and “one-on-one” solicitation

that poses the greatest threat to actual and perceived impartiality. Brunner, 912 F. Supp. 2d at

565, 568.

Platt objects that Williams-Yulee, involving a facial challenge, cannot answer the

questions posed by this case, since Platt challenges only the application of the personal

solicitation ban to non-sitting judicial candidates. But Williams-Yulee opined on the wisdom (or

lack thereof) of election regulations that treat incumbents and aspiring judges differently.

Indeed, one of the reasons the Court upheld Florida’s ban was that it “applie[d] evenhandedly to

all judges and judicial candidates.” Williams-Yulee, 135 S. Ct. 1668. Were it otherwise, the

Court intimated, it might raise “fatal underinclusivity concerns.” Id. This suggests that

exempting non-sitting judicial candidates from Rule 4.4(A)’s solicitation prohibition would raise

constitutional questions, not resolve them.

But even considering Platt’s as-applied argument on its merits, it fails. Platt’s theory is

that applying the ban to non-sitting judicial candidates does not serve Ohio’s interest in

maintaining judicial integrity since the Ohio Supreme Court has declared that it “presume[s] . . .

that judges are able to set aside any partisan interests once they have assumed judicial office and

have taken an oath to decide cases on the facts and the law before them.” In re Disqualification

No. 17-3461 Platt, et al. v. Bd. of Comm’rs on Grievances, et al. Page 32

of Bryant, 885 N.E.2d 246, 246 (Ohio 2006). In light of that presumption, Platt’s theory goes,

judicial candidates need not be regulated, since they can easily cast aside any biases they

incurred while seeking election. This cannot be right. For one thing, the argument overlooks the

possibility that, as the Board argues, the Ohio Supreme Court can indulge such a presumption

“precisely because Ohio reasonably regulates the solicitation of money and other campaign

activities.” And for another, Platt’s theory calls into question only whether the Rule’s

application to aspiring judges serves the state’s interest in actual impartiality rather than the

public’s perception of impartiality. Applying the personal solicitation ban to anyone who may

become a judge serves that latter interest.

Ohio’s Solicitation Rule is thus narrowly tailored to serve a compelling state interest.

c. Rules 4.1(A)(2) and 4.1(A)(3)

The Endorsement Rules12 prohibit judicial candidates from two forms of partisan

political speech: “mak[ing] speeches on behalf of a political party or another candidate for public

office,” Rule 4.1(A)(2), and “publicly endors[ing] or oppos[ing] a candidate for another public

office,” Rule 4.1(A)(3).13

The Board maintains that Rule 4.1(A)(2) serves the state’s interest in protecting judicial

integrity by preventing judicial candidates from “effectively assum[ing] the role of party

spokesperson or representative,” which would erode “the reality and appearance of judicial

independence and impartiality.” Rule 4.1(A)(3), meanwhile, prevents judicial candidates from

engaging in the quid pro quo trading of endorsements that might compromise (or appear to

12Again, we note that rules like these are common throughout the Sixth Circuit. All other states have very

similar non-endorsement rules. Kentucky’s is identical. Kentucky Code of Judicial Conduct, Canon 5(A)(1)(c).

Michigan prohibits endorsements of any “candidate for nonjudicial office.” Michigan Code of Judicial Conduct,

Canon 7(A)(1)(b). Tennessee prohibits endorsement of “candidate[s] for any public office.” Tennessee Code of

Judicial Conduct, Canon 4, Rule 4.1(A)(3). Michigan and Tennessee also have analogous “on behalf of”

prohibitions. Michigan prohibits any speech “on behalf of a political party or nonjudicial candidate.” Michigan

Code of Judicial Conduct, Canon 7(A)(1)(b). And Tennessee prohibits any speech “on behalf of a political

organization.” Tennessee Code of Judicial Conduct, Canon 4, Rule 4.1(A)(2). That such rules are common does not

mean they are constitutional, but it does show broad consensus among the states that they pass muster—and that

Ohio is not picking on judicial candidates any differently than other states.

13Importantly, the words “another public office” mean that judicial candidates are barred only from

endorsing or opposing candidates in other election battles, not their own—they remain free to “endorse” themselves

and to campaign against their opponent(s).

No. 17-3461 Platt, et al. v. Bd. of Comm’rs on Grievances, et al. Page 33

compromise) their independence on the bench. The district court upheld the Endorsement Rules

without much analysis. For the reasons that follow, we affirm.

Platt’s challenge to Rule 4.1(A)(3) is foreclosed by our decision in Winter. In that case,

we assessed whether Kentucky’s judicial conduct code prohibiting judicial candidates from

“publicly endorsing or opposing a candidate for public office” was constitutional. 834 F.3d at

691 (alteration and citation omitted). The answer was yes. “Because endorsements often are

exchanged between political actors on a quid pro quo basis, the endorsements clause is narrowly

tailored to Kentucky’s compelling interest in preventing judges from becoming (or being

perceived as becoming) part of partisan political machines.” Id. We held that Kentucky’s ban

“keep[s] its judges above the partisan fray of trading political favors” and prevents “a judge’s

entry into the political arena on behalf of his partisan comrades.” Id. (internal quotation and

citation omitted). Because Rule 4.1(A)(3)’s ban on endorsements is no different from

Kentucky’s, the same result obtains: it is constitutional. And though Winter said little about the

rule’s prohibition on “opposing” a candidate (versus endorsing one), the same logic applies:

acting as a political comrade’s attack dog implicates a judicial candidate in partisan horse-trading

every bit as much as does endorsing her.

Platt’s challenge to Rule 4.1(A)(2) presents a closer question. While Winter did not

address the precise prohibition in Rule 4.1(A)(2)—speeches on behalf of parties or candidates—

its reasoning is just as applicable. For if the concern served by the prohibition on endorsements

is “preventing judges from becoming (or being perceived as becoming) part of partisan political

machines,” id., it is hard to imagine what might create that perception more than serving as a

party’s or candidate’s spokesperson. Garner’s Dictionary of Legal Usage 106 (2011)

(explaining that “on behalf of” means “as the agent of, as representative of”). That is why the

Ninth Circuit upheld Arizona’s ban on endorsements and speeches on behalf of political parties

or candidates. Wolfson, 811 F.3d at 1179. Considering both prohibitions together, the court

said: “When a judicial candidate actively engages in political campaigns, a judge’s impartiality

can be put into question, and the public can lose faith in the judiciary’s ability to abide by the law

and not make decisions along political lines.” Id. at 1184. Wolfson is persuasive. It is premised

on the “intuitive” understanding that a judicial candidate who assumes the role of a partisan

No. 17-3461 Platt, et al. v. Bd. of Comm’rs on Grievances, et al. Page 34

cheerleader risks betraying public trust just as much as one who endorses another candidate for

public office. See Williams-Yulee, 135 S. Ct. at 1666.

Nor does 4.1(A)(2) proscribe too much: candidates still enjoy their “First Amendment

right to speak in support of their campaigns,” id. at 1673, including by “explaining what makes

them qualified for that office,” Winter, 834 F.3d at 690. And it is different from the Kentucky

provision struck down in Winter prohibiting “speeches for or against a political organization or

candidate” because it bars only speeches made “on behalf of” political parties or candidates. Id.

While this may strike some as a thin distinction, it is the same one we drew in Winter when

explaining why we reached a different result than the Ninth Circuit did in Wolfson or the Seventh

Circuit did in Bauer v. Shepard, 620 F.3d 704, 711 (7th Cir. 2010), both of which upheld an

identical “on behalf of” provision. Critically, the court in Winter believed the Kentucky for-or-

against rule might impermissibly “prevent judicial candidates from announcing their views on

disputed legal and political subjects,” 834 F.3d 681 (quoting Wolfson, 811 F.3d at 1185), while a

rule prohibiting only speeches made on behalf of a party or candidate—like that at issue in

Bauer, Wolfson, and this case—would not. That distinction makes a difference. Ohio’s rule,

unlike Kentucky’s, explicitly addresses itself to endorsement-type behavior, the sort of speech

that makes one look like “part of partisan political machines.” Winter, 834 F.3d at 691. As such,

it is narrowly drawn to advance Ohio’s compelling interest in protecting judicial independence in

practice and perception.

Platt’s remaining argument against the Endorsement Rules is unpersuasive. Platt

contends that whatever interest the Endorsement Rules might serve with respect to sitting judges,

they do not serve the same interest when applied to aspiring judges. This argument is again

premised on the Ohio Supreme Court’s presumption that judges, once elected, are able to

adjudicate cases impartially, free of any biases that partisan campaigning may have engendered.

See, e.g., In re Disqualification of Bryant, 885 N.E.2d at 246. If that is the case, Platt says, then

Ohio need not worry about the degree to which non-sitting candidates enter the partisan fray.

But Winter included a non-sitting judge challenger, and its analysis of Kentucky’s endorsement

rules did not distinguish between judges and aspiring judges. 834 F.3d at 686. And even

without reference to Winter, we would reject Platt’s argument for the same reasons outlined

No. 17-3461 Platt, et al. v. Bd. of Comm’rs on Grievances, et al. Page 35

earlier: the application of the Endorsement Rules to all judicial candidates—incumbents or not—

serves to maintain the appearance of impartiality and makes possible the presumption discussed

in Bryant that Ohio judges can set aside partisan influences and decide cases without bias.

Therefore, Ohio’s Endorsement Rules are constitutional. While Platt’s challenges are not

without some force, the Board has carried its burden to show the rules are narrowly tailored to

advance a compelling interest. And even if Platt has done enough at times to suggest a more

desirable alternative—and even if we three judges might craft certain rules differently—Ohio’s

“considered judgments deserve our respect, especially because they reflect sensitive choices by

States in an area central to their own governance—how to select those who sit as their judges.”

Williams-Yulee, 135 S. Ct. 1671 (internal quotation marks omitted).

E. Equal Protection

Platt contends that Rule 4.4(E) violates the Fourteenth Amendment’s equal protection

clause because it “favors and allows political speech on behalf of a sitting member of the

judiciary while the committee supporting the non-sitting judicial candidate must remain silent.”

He argues that because an incumbent can hold onto money raised during any of his previous

campaigns, a first-time challenger without those carry-over funds is at a disadvantage—he is

limited only to those funds he can raise during Rule 4.4(E)’s prescribed timeframe, from

120 days before the primary until 120 days after the general election. 14 The district court

disagreed, relying on the Sixth Circuit’s O’Toole decision denying the plaintiffs’ request for a

preliminary injunction, which held that candidates’ actions, not the rule itself, accounted for

fundraising advantages or disadvantages. O’Toole, 802 F.3d at 791. We agree and affirm.

As O’Toole held and the Board insists, any fundraising advantage an incumbent enjoys

over a first-time challenger is not caused by Rule 4.4(E). Those limitations, which govern only

when a candidate may permissibly solicit and receive contributions, do not inexorably advantage

14Platt is an odd person to complain about the hardship Rule 4.4(E) allegedly imposes on first-time

candidates, given that he has had three full election cycles since he filed this lawsuit, during each of which he could

have been raising and retaining funds. Instead, Platt has raised no money to date. In 2013, when Platt first filed suit,

he truly was a first-time candidate facing a potential fundraising disparity beyond his control; now, the calculus is

different—any financial disparity is largely of his own making.

No. 17-3461 Platt, et al. v. Bd. of Comm’rs on Grievances, et al. Page 36

incumbents over first-time candidates. Rather, “the complained-of differential effect arises . . .

from how different candidates have acquired, used, and husbanded their resources in previous

campaigns.” Id. For instance, an incumbent seeking re-election who spent all money raised

during his first campaign on his campaign expenses would be in no better financial position than

a hypothetical first-time challenger. And though the rule may afford incumbents the opportunity

to gain a fundraising edge over those who have not waged prior campaigns, this hardship should

not be overstated: there is nothing to prevent candidates like Platt from raising money in

successive election cycles, saving much of it, and concentrating their resources in one particular

race.

Even assuming some prudent incumbents will save wisely and leverage their prior-

campaign war-chests in seeking re-election, amending Rule 4.4(E) to level the playing field

would actually tilt it in the opposite direction. Considering a related argument—that the political

activity of judicial candidates should be less restricted than that of sitting judges to “level the

playing field”— the Ninth Circuit wisely rejected it:

[S]tricter restrictions during judicial campaigns on nonjudicial endorsement and

campaigning for sitting judges than for nonincumbent candidates for judicial

positions would create the disparity, not level it. . . . The inequity of allowing

some candidates for judicial office but not others those opportunities . . . seem

sufficiently compelling to justify parallel restrictions for sitting judges and

nonjudges, when both are running for the same judicial office.

Wolfson, 811 F.3d at 1191 (Berzon, J., concurring).

The same is true here. If Rule 4.4(E) allowed first-time challengers to solicit

contributions more freely during the campaign cycle than incumbents, especially where the

incumbent exhausted his prior fundraising in getting himself elected in the first place, then Rule

4.4(E) would actually cause fundraising inequalities. And rather than raising the challenge that

Platt does today, incumbents would bring one claiming Ohio has impermissibly infringed on

their right to equal protection under the law. What is more, exempting non-sitting judicial

candidates from the rules would give rise to serious under-inclusivity concerns in the First

Amendment context. It would be difficult indeed to justify the rules’ application to incumbent

candidates as being necessary to advance the state’s interest in protecting judicial impartiality

No. 17-3461 Platt, et al. v. Bd. of Comm’rs on Grievances, et al. Page 37

while allowing non-sitting candidates to solicit, fundraise, and campaign unencumbered. Either

the state’s interest justifies limitations on every judicial candidate, or it justifies restrictions on no

candidate. It becomes obvious, then, that the logical conclusion of Platt’s so-called “as-applied”

theory would be the gutting of the Code altogether.15 We decline Platt’s invitation to start that

chain reaction today.

Finally, there remains Platt’s suggestion that Rule 4.4(E)’s equal protection problems

would vanish if the state “tied [the rule] to the requirement that all judicial candidates—those

currently sitting judges and their challengers, start this fundraising period on an even keel with

no carry over funds.” If the state did this, Platt seems to suggest, the fundraising limitations

would be aboveboard.

Two problems with Platt’s theory arise. First, we have some doubt whether a state can

constitutionally require all judicial candidates to disgorge the fruits of their fundraising—thereby

severely limiting their ability to speak—in the name of leveling the playing field.16 See Buckley,

424 U.S. at 19 (noting that spending campaign funds equates to political speech). Such overt

“equalizing” attempts run headlong into the Supreme Court’s rule that speech cannot be

suppressed to ensure that candidates start at the same place. “No matter how desirable it may

seem, it is not an acceptable governmental objective to level the playing field, or to level

electoral opportunities, or to equalize the financial resources of candidates. The First

Amendment prohibits such legislative attempts to fine-tune the electoral process, no matter how

well intentioned.” McCutcheon v. Fed. Election Comm’n, 134 S. Ct. 1434, 1450 (2014) (internal

citations and quotation marks omitted); see Davis v. Fed. Election Comm’n, 554 U.S. 724, 741

(2008) (desire to “level electoral opportunities for candidates of different personal wealth” is not

a “legitimate governmental objective” that justifies speech restrictions). Yet that is exactly what

15Indeed, Platt’s counsel believes the timing limitations are unconstitutional, regardless of whom they are

applied to. Asked at oral argument whether there are constitutionally adequate justifications for applying the timing

limitations to sitting judges, Platt’s counsel responded: “Personally, I don’t believe that there are.” Moreover, he is

the same counsel in the companion to this case, O’Toole, in which an incumbent brings a facial challenge to Rule

4.4(E).

16Whether a state might impose such a disgorgement requirement in service of other objectives—such as

maintaining judicial integrity, preventing corruption, and preserving the public’s trust in judicial independence—is

another matter entirely.

No. 17-3461 Platt, et al. v. Bd. of Comm’rs on Grievances, et al. Page 38

Platt’s no-carryover, or “disgorgement,” rule would do. “[B]y prohibiting candidates from

spending money raised in one election cycle on speech in the next, [such a] disgorgement

provision [would] act[] as an indirect burden on expenditures and thus implicate[] First

Amendment rights.” Zimmerman v. City of Austin, Texas, 881 F.3d 378, 395 (5th Cir. 2018).

The upshot of cases like McCutcheon, Davis, and Zimmerman is clear: States should be hesitant

to tread on the First Amendment in order to honor the Fourteenth.

And second, even if Ohio prohibited the use of carryover funds in the hope of mitigating

Rule 4.4(E)’s alleged equal protection problem, why would that be enough? If Ohio’s election

laws must be reformed to foster a fair fight, shouldn’t the state also forbid candidates from using

their personal wealth to fund campaigns? And even once financing disparities are eliminated,

oughtn’t Ohio enact rules to eliminate the other natural advantages of incumbency—say,

perhaps, a rule barring sitting judges from campaign speech throughout their tenure, thereby

limiting their ability to capitalize on their name-recognition, service record, and reputation?

Such rules might further level the playing field between incumbents and challengers, but in so

doing would spawn fresh First Amendment quandaries. Already wary of beginning a game of

constitutional whack-a-mole, our inability to discern a limiting principle in Platt’s position

provides another reason to reject it.

Therefore, we affirm the district court’s grant of summary judgment against Platt’s equal

protection claim. Rule 4.4(E) is constitutional.

III

Our decision to uphold Ohio’s regulations may strike some as antithetical to core First

Amendment principles. And indeed, if the strictures of Canon 4 were imported into the

legislative election context, we have little doubt they would engender far graver constitutional

concerns. But judicial elections fundamentally alter the constitutional calculus. We demand

independence from our judges; we may expect just the opposite from our politicians. Williams-

Yulee, 135 S. Ct. at 1667. If judicial candidates were permitted to fundraise and campaign

unfettered, the specter of actual corruption would loom large, and the erosion of public trust in

the judiciary larger still.

No. 17-3461 Platt, et al. v. Bd. of Comm’rs on Grievances, et al. Page 39

This is not to suggest, however, that states can regulate judicial elections however they

like. We recognize that a state cannot constitutionally force its judges to submit to the crucible

of public elections while at the same time prohibiting them from running an effective campaign.

The “First Amendment does not permit” states to “leav[e] the principle of elections in place

while preventing candidates from discussing what the elections are about.” White, 536 U.S. at

788. Rather, in their efforts to insulate the judiciary from the most corrosive elements of partisan

politics, states must find the permissible space between those two poles.

All we hold today is that Ohio’s rules toe that constitutional tightrope. The district

court’s grant of summary judgment in favor of the Board is therefore AFFIRMED.