Zielasko v. Ohio

NATHANIEL R. JONES, Circuit Judge,

concurring in part and dissenting in part.

I agree with the majority’s decision to dismiss Zielasko’s equal protection claim. However, I would reverse the district court’s order dismissing Bowman’s first amendment claim because section 6(C) places an impermissible burden on her right to support a qualified candidate of her choice.

The majority determines that, based on the balancing test articulated in Anderson, the scales tip in favor of the state’s alleged interests, in part because Bowman has not asserted any “fundamental right” which section 6(C) has abridged. I strongly disagree with the majority’s evaluation of Bowman’s asserted rights. Although it is true that “no one is guaranteed the right to vote for a specific individual,” ante at 961, section 6(C) denies Bowman the right to vote not only for Zielasko but also for any qualified judicial candidate over 70 years of age who seeks re-election. In addition, although candidates for judicial office are prohibited from announcing their views on political issues, I disagree with the majority’s claim that Bowman’s “first amendment right to associate ... with a candidate professing certain political views is not curtailed by section 6(C).” Id. While a judge who is seeking re-election may not explicitly state his political views, by examining the judge's past decisions, a voter may very well support him based on her perception that his future rulings will advance her political views.

The Supreme Court has held that states have the right to impose reasonable election requirements which may prevent individuals from seeking elected office. However, while requirements concerning minimum age, residency or general filing deadlines are constitutionally permissible, these requirements temporarily burden a voter’s right to support an individual candidate. The candidate eventually can satisfy these requirements by waiting until she reaches the minimum age, by establishing residency or by timely filing her petition. In contrast, Bowman can never vote for Zielasko because he can never reverse the permanent and inevitable process of aging.

There is no dispute that the State of Ohio has a compelling interest in maintaining a competent judiciary and in avoiding the spectacle of having hearings for allegedly incompetent judges. However, because Ohio state court judges are elected, Ohio voters can always “mandatorily retire” an incompetent judicial candidate by not voting him into office or by voting him out of office. The State’s interest in maintaining a competent judiciary is therefore ensured by the democratic elective process. Therefore, because of the “character and magnitude” of the injury to Bowman’s first amendment rights, because Ohio has a built-in mechanism for maintaining a competent judiciary and because Ohio could have enacted legislation which was considerably less burdensome to Bowman’s protected rights, the Anderson balancing test tips decidedly in favor of the injury to Bowman and other voters’ first amendment rights. Thus, pursuant to Anderson, the district court and the majority should have applied a strict scrutiny test to Ohio’s age restriction for judicial candidates.

The Supreme Court held in Illinois Elections Bd. v. Socialist Workers Party, 440 U.S. 173, 183 , 99 S.Ct. 983, 989 , 59 L.Ed.2d 230 (1979), that, in applying a strict scrutiny test to determine whether an election requirement significantly interferes with a voter’s access to the ballot, courts “must first examine the character of the classification in question, the importance of the individual interest at stake, and the state interests asserted in support of the classifi *963 cation.” The Court stressed that “[Restrictions on access to the ballot burden two distinct and fundamental rights, ‘the right of individuals to associate for the advancement of political beliefs, and the right of qualified voters, regardless of their political persuasion, to cast their votes effectively.’ ” Id. at 184 , 99 S.Ct. at 990 (citing Williams v. Rhodes, 393 U.S. 23, 30 , 89 S.Ct. 5, 10 , 21 L.Ed.2d 24 (1968)). Examining the “character” of the election requirement, section 6(C) disqualifies all judges who are over 70 years of age — not only incompetent judges. With respect to the individual interest at stake, Bowman has a constitutionally protected interest in associating with other voters to support judicial candidates of her choice. Finally, the State of Ohio has offered no reasons which justify the mandatory retirement of judges. While the reasons assumed by the Ohio Supreme Court, the district court and the majority in this case may “arguably provide a rational basis for the mandatory retirement of judges,” ante at 961, under a strict scrutiny analysis the State must provide justifications in support of the challenged legislation. See Illinois Elections Bd., 440 U.S. at 183 , 99 S.Ct. at 989-90 . Since Ohio has failed to articulate any persuasive justification for this burdensome legislation, I see no grounds upon which to uphold section 6(C).

Applying the test articulated in Illinois Elections Bd., I would strike a considerably different balance than the majority has struck. Because the majority applied a rational basis level of scrutiny and holds that section 6(C) does not violate “any fundamental right belonging to ... Bowman,” I respectfully dissent.