September 10, 2020
Digest: 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.
Rules: 22 NYCRR 100.2; 100.2(A); 100.4(A)(1)-(3); 100.5(A)(1); 100.5(A)(1)(ii); 100.5(A)(1)(e); Opinions 19-149; 19-29; 16-63; 16-52; 10-19; 96-38.
A full-time judge asks if he/she may volunteer to drive members of a religious congregation in another state to their local polling sites on election day. The religious congregation has no connection to any political party, club or other organization nor is the task of providing transportation to the polls sponsored or promoted by any political entity.
A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always act in a manner that promotes public confidence in the judiciary’s integrity and independence (see 22 NYCRR 100.2[A]). A judge may engage in extra-judicial activities that do not cast reasonable doubt on the judge’s capacity to act impartially as a judge, do not detract from the dignity of judicial office, do not interfere with the proper performance of judicial duties, and are not incompatible with judicial office (see 22 NYCRR 100.4[A]-). A judge also must not “directly or indirectly engage in any political activity” unless an exception applies (see 22 NYCRR 100.5[A]). Thus, although a judge may vote and identify him/herself as a member of a political party (see 22 NYCRR 100.5[A][ii]), he/she may not, for example, publicly endorse a candidate for election (see 22 NYCRR 100.5[A][e]).
We have said a court attorney-referee may participate in a census education drive organized by a not-for-profit fraternal organization, provided he/she acts in a strictly neutral, non-partisan and informational manner (see Opinion 19-149); a judge may publicly display a non-partisan banner stating “Your vote counts in ____ county” (see Opinion 16-63); 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 any involvement in partisan political activity (see Opinion 96-38); and if controlling law permits voter registration forms to be made available at court facilities, it is permissible to do so in a strictly neutral, non-partisan and informational manner (see Opinion 16-52). However, a judge may not participate as an election observer in a local election, where he/she would be “actively assisting a governmental entity to enforce the fairness of the voting process by identifying eligible voters, challenging voters and ballots for good cause, and reporting apparent irregularities to the Board’s agent” (Opinion 10-19).
While the proposed activity here, driving members of a religious congregation in another state to their polling sites, involves a far more active role than merely making voter registration forms available or displaying a banner reminding the public to vote, we believe it is likewise permissible, provided it is entirely non-partisan. Here, critically, no political organization is involved in sponsoring or promoting this extra-judicial activity. Merely providing transportation to the polls in another state on a non-partisan basis in conjunction with a religious organization is not likely to involve the judge in matters of “substantial public controversy” that may reasonably cast doubt on his/her ability to act impartially in performing his/her judicial functions.1 We note, however, that the judge must not engage in any impermissible political activity when providing transportation to the polls. For example, he/she should not comment on the candidates or otherwise enter into political discussions with his/her passengers.
1 We thus distinguish Opinion 19-29 (judge may not volunteer as an escort for individuals unknown to the judge who are visiting an abortion clinic in the presence of pro-life protesters).