The Colorado Supreme Court’s ethics panel advised members of the judiciary last month that they cannot serve as temporary election workers.

The Colorado Judicial Ethics Advisory Board, which consists of judges, lawyers and a non-attorney, cited two reasons why appointed judges should refrain from serving as elections judges. First, with the exception of nonpartisan elections, temporary workers would have to publicly disclose their political affiliation at the outset. Second, the Code of Judicial Conduct limits the types of appointments state judges can take.

“The judicial ethics committees of other jurisdictions have also determined that judges may not accept appointments or serve as election judges because the position is not one that concerns the law, the legal system, or the administration of justice,” the advisory board wrote on Oct. 29.

The advisory opinion responded to a question from an unnamed judge who previously served as an election worker in their county prior to joining the bench. The judge wondered if they could continue their service during a partisan election.

Election judges are paid positions that assist with ballot intake and tabulation. They must take an oath before beginning their service, which, in partisan elections, means stating their political affiliation.

The ethics panel noted state judges may not engage in political activity that is “inconsistent with the independence, integrity, or impartiality of the judiciary.” While judges may register with political parties and vote in partisan primary elections, the rules prohibit participation in public caucuses of the parties.

Caucuses are “partisan and publicly acknowledged a judge’s political affiliation, whereas the primary election did not reveal a judge’s political affiliation,” the board wrote. “By making the self-affirming oath necessary for the requesting judge to serve as an election judge, the judge would be expressing a preference for a political party.”

Even if the disclosure of a judge’s party were not required to become an elections worker, the panel believed such positions did not concern the law, the legal system or the administration of justice, which are acceptable activities for judges. Although the rules note those classifications “should be construed broadly,” they also warn against participating in activities that “might lead to the judge’s frequent disqualification or that might call into question the judge’s impartiality.”

The panel did not perform a detailed analysis, but instead cited ethics opinions from three other states:

• a 2020 opinion from New York, which reached the same conclusion based on a rule similar to Colorado’s, but did not explain its reasoning

• a 2016 opinion from Maryland, which determined judges could not serve as elections workers because their powers would include ordering the arrest of disruptors, which is “an executive function”

• a 2008 opinion from Wisconsin, which rejected a judge’s request to be a “greeter” at a polling place because it was unrelated to the law, the legal system or the administration of justice

In response to an inquiry from Colorado Politics, the Colorado Secretary of State’s Office clarified that any voter’s profile, including their party affiliation, is already a matter of public record. The office declined to comment further on the ethics panel’s opinion.