Opinion 24-147
September 12, 2024
Digest: (1) A judge may participate in a strictly neutral, non-partisan, and informational voter registration drive organized by a bar association or collegiate fraternity/sorority.
(2) While a judge may not sit at a voter registration table accompanied by the NAACP’s banners or promotional materials, the judge may otherwise participate in a voter registration drive organized by the NAACP, provided that he/she does so without reference to the organization.
Rules: 22 NYCRR 100.2; 100.2(A); 100.3(A); 100.4(A)(1)-(3); 100.5(A)(1); 100.5(A)(1)(ii); 100.5(A)(1)(e); Opinions 24-134; 23-118; 23-102; 22-142; 22-15(B); 20-168; 20-145; 19-149; 19-30; 16-63; 16-52; 15-229; 15-171; 00-15; 96-38; 89-116/89-121.
Opinion:
The inquiring judge would like to participate in voter registration drives organized by a bar association, a collegiate fraternity/sorority, and the NAACP, all of which are not-for-profit organizations.
A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and act in a manner that promotes public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). A judge’s judicial duties must “take precedence” over all the judge’s other activities (22 NYCRR 100.3[A]). However, a judge may engage in extra-judicial activities that are compatible with judicial office and do not cast reasonable doubt on the judge’s impartiality, do not detract from the dignity of judicial office, and do not interfere with the proper performance of judicial duties (see 22 NYCRR 100.4[A][1]-[3]). A judge also must not “directly or indirectly engage in any political activity” unless an exception applies (22 NYCRR 100.5[A][1]). Thus, although a judge may vote and identify him/herself as a member of a political party (see 22 NYCRR 100.5[A][1][ii]), the judge may not, for example, publicly endorse a candidate for election (see 22 NYCRR 100.5[A][1][e]).
We have said a judge may engage in some non-partisan efforts to encourage members of the public to exercise their right to vote. For example, we have advised that: “[a] judge may drive members of a religious congregation in another state to their local polling sites, provided this effort is completely independent of any political organization or candidate and the judge avoids impermissible political activity” (Opinion 20-145); a court attorney-referee may be involved in a census education drive organized by a not-for-profit fraternal organization, as long as he/she acts “in a strictly neutral, non-partisan, and informational manner” (Opinion 19-149); a judge may publicly display a non-partisan banner stating “Your vote counts in ___ county” (see Opinion 16-63); and “[a] judge may be a member of the League of Women Voters and accept a leadership position in the local chapter provided that such participation does not result in an involvement in partisan political activity” (Opinion 96-38). Indeed, we have even said that, if controlling law allows voter registration forms to be made available in court facilities and any applicable legal requirements are met, the court may make them available “in a strictly neutral, non-partisan and informational manner” (Opinion 16-52). Relying on these precedents, we have also advised that a judge may sit at a non-partisan voter registration table which is unaffiliated with any organization and provide voter registration forms to potential voters (see Opinion 24-134 [discussing prior opinions]).
1. Bar Association
In general, a judge may be a member or officer of a bar association and participate in bar association activities (see e.g. Opinions 22-142; 22-15[B]; 20-168), although a judge may not participate in the bar association’s political activities, such as rating candidates (see Opinions 15-229; 00-15; 89-116/89-121).
In our view, participating in a bar association’s voter registration drive does not, in and of itself, require the judge to engage in impermissible political activity. Thus, the judge may participate in the proposed voter registration drive, provided he/she does so in a strictly neutral, non-partisan, and informational manner. Of course, should other potentially relevant factors arise, the judge may seek guidance on those issues.
2. Fraternity/Sorority
We have said that a judge may serve as an officer of a not-for-profit fraternal organization (see Opinion 15-171) and that a court attorney-referee may participate in a fraternity/sorority’s non-partisan census education drive, where the purpose was to educate community members about the importance of being counted (see Opinion 19-149).
Here, too, we conclude that participating in a fraternity/sorority’s voter registration drive does not, in and of itself, require the judge to engage in impermissible political activity. Thus, the judge may participate in the proposed voter registration drive, provided he/she does so in a strictly neutral, non-partisan, and informational manner. Of course, should other potentially relevant factors arise, the judge may seek guidance on those issues.
3. NAACP
“Because the NAACP engages in some activities clearly permissible for judges as well as some potentially controversial lobbying, advocacy and litigation activities,” we have said a judge may be a regular member of the organization but may not serve as an officer (Opinion 23-118). Indeed, we previously advised that a judge may not sit at the NAACP’s voter registration table (Opinion 23-102). On the facts presented in that inquiry, we explained (id.):
[T]he judge would sit at the NAACP’s table, accompanied by the NAACP’s promotional literature and posters of civil rights heroes, and hand out voter registration forms to the public. In light of the NAACP’s specific advocacy for voting rights by means of litigation, we readily conclude that participating prominently and publicly in the NAACP’s voter registration drive could “publicly associate the judge with organizational positions on matters of public controversy, in a way that simple membership does not” (Opinion 19-30).
In light of our decision in Opinion 24-134 that a judge may sit at a non-partisan voter registration table which is unaffiliated with any organization and provide voter registration forms to potential voters, we now conclude that the digest of Opinion 23-102 was too broadly stated. While the judge may not sit at a voter registration table accompanied by the NAACP’s banners or promotional materials, the otherwise permissible act of distributing voter registration forms to the public in a strictly neutral, non-partisan, and informational manner does not become impermissible merely because it was suggested or organized by a non-partisan, not-for-profit civil rights organization (cf. Opinion 23-118 [judge may be regular member of the NAACP]).
Accordingly, we conclude this judge may participate in a voter registration drive organized by the NAACP, provided that he/she does so without reference to the NAACP, including banners, promotional literature or other public association with the organization. Opinion 23-102 is hereby modified to the extent inconsistent with this view.