Opinion 16-150

December 8, 2016

Digest:         Two judicial candidates may send a joint mailing to voters who request an absentee ballot, provided they avoid any implication of a cross-endorsement.

Rules:          22 NYCRR 100.5(A)(1)(e); 100.5(A)(2); 100.5(A)(2)(i)-(iv); 100.5(A)(4)(a); 100.5(A)(4)(d)(iii); Opinions 12-129(A)-(G); 09-176; 08-64; 04-16; 01-99; 97-72.

Opinion:

         In a contested election to fill two judicial vacancies on the same court, an incumbent judge seeking re-election asks if he/she and another candidate may send a joint mailing to voters who request an absentee ballot. The postcard would thank the recipient for “taking the time to vote by absentee ballot” and “advise that there are two seats to fill on election day.” In addition, the candidates would “divide one side of the postcard in half,” and each separately “give a brief summary of [his/her own] credentials and ask the recipient to cast one of their votes in [his/her own] favor.”

         In general, a judge or non-judge seeking election to judicial office may participate in his/her own campaign subject to the Rules Governing Judicial Conduct during the applicable window period (see 22 NYCRR 100.5[A][2]). For example, a judicial candidate may (i) attend and speak to gatherings on his/her own behalf; (ii) appear in media advertisements and distribute promotional campaign literature supporting his or her candidacy; (iii) appear at gatherings and in media advertisements with other candidates on his/her slate; and (iv) permit his/her name to be listed on election materials along with the names of other candidates for elective public office (see 22 NYCRR 100.5[A][2][i]-[iv]). Additionally, a judicial candidate must ensure that all campaign statements are dignified and consistent with the integrity, impartiality and independence of judicial office, and that they are accurate and do not misrepresent factual information or present it in a misleading manner (see Opinions 12-129[A]-[G]; 08-64; 04-16; 97-72; 22 NYCRR 100.5[A][4][a]; 100.5[A][4][d][iii]).

         Although judicial candidates may appear with other candidates in advertisements (see 22 NYCRR 100.5[A][2][iii]), they may not publicly endorse another candidate (see 22 NYCRR 100.5[A][1][e]). Thus, the Committee has advised that two judicial candidates may participate in joint advertisements if they take care to avoid any implication of cross-endorsement (see Opinion 01-99) and may display a campaign lawn sign printed with both candidates’ names, where “it accurately reflects that both candidates are seeking a Town Justice position and does not create an appearance that the two candidates are endorsing each other” (see Opinion 09-176 [citations omitted]). However, they may not send voters a letter setting forth their qualifications on joint letterhead with joint signatures, because doing so would constitutes an impermissible indirect endorsement of each candidate by the other (see Opinion 09-176).

         Here, too the Committee sees the postcard’s described content as unobjectionable, as it thanks recipients for taking the time to vote by absentee ballot, state the number of judicial vacancies to be filled, and provide each candidate’s separate statement about his/her own qualifications, and his/her own request for the recipient’s vote, in a visually distinct manner. Accordingly, the proposed joint mailing is permissible, provided its format and language do not create the perception of a cross-endorsement.