JOHN R. GIBSON, Circuit Judge.
In Republican Party of Minnesota v. White, 536 U.S. 765, 122 S.Ct. 2528, 153 L.Ed.2d 694 (2002), the Supreme Court reversed the grant of summary judgment against Gregory Wersal and the other plaintiffs in this suit on their claim that the “announce” clause of Canon 5 of the Minnesota Code of Judicial Conduct violated their First Amendment rights. The Supreme Court remanded to us for further proceedings consistent with its opinion. Id. at 788, 122 S.Ct. 2528. We conclude that the Supreme Court’s opinion requires us to remand to the district court for entry of judgment in favor of Wersal and the other plaintiffs on their “announce” clause claim. We remand to the district court for consideration of whether its disposition of the plaintiffs’ claims based on restriction of partisan activities is consistent with the Supreme Court’s opinion. Finally, we remand to the district court for entry of judgment in favor of Suzanne White and the other defendants on plaintiffs’ personal solicitation clause claim.
We stated the facts of this case in our earlier opinion, Republican Party of Minnesota v. Kelly, 247 F.3d 854 (8th Cir.2001), and need not belabor them here, except to say that Wersal was a candidate for election to the Minnesota Supreme Court, who challenged several provisions of Canon 5. Canon 5 prohibits candidates for judicial office from announcing their views on disputed legal and political issues, from engaging in specific partisan political activities, and from personally soliciting campaign contributions. Wersal, together with other plaintiffs associated with his campaign 1 and" the state Republican party and affiliated organizations,2 filed this suit against the Minnesota Lawyers Professional Responsibility Board3 and the Minnesota Board of Judicial Standards4 to enjoin enforcement of Canon 5. The district court granted summary judgment to the Lawyers Board and the Judicial Board, holding that each challenged provision of Canon 5 survived First Amendment scrutiny. Republican Party of Minn. v. Kelly, 63 F.Supp.2d 967 (D.Minn.1999). Wersal and the other plaintiffs appealed.
We affirmed the district court with regard to each of the challenged provisions of Canon 5. 247 F.3d at 885. We subjected the provisions of Canon 5 to strict seruti-[1040]*1040ny, asking whether the restrictions were narrowly tailored to serve a compelling state interest. Id. at 864. We held that the state had compelling interests in protecting the independence and quality of its judiciary, and in preserving public confidence in the judiciary’s independence. Id. at 864-68. We held that the state had shown the required quantum of evidence that each of those interests was threatened by the practices that Canon 5 regulated. Id. at 868-72 (partisan activity restrictions); 876-81 (announce clause); 883-84 (solicitation restrictions). We then held that each of the challenged restrictions was narrowly tailored to serve the interests of judicial independence and quality. Id. at 872-76 (partisan activity restrictions); 881-83 (announce clause); 884-85 (solicitation restrictions).
Wersal and the other plaintiffs filed a petition for certiorari presenting three questions:
1. Whether the provision of the Minnesota Code of Judicial Conduct that prohibits a candidate for elective judicial office from “announcing] his or her views on disputed legal or political issues” unconstitutionally impinges on the freedom of speech as guaranteed by the First and Fourteenth Amendments to the United States Constitution.
2. Whether the severe burdens imposed by various provisions of the Minnesota Code of Judicial Conduct unconstitutionally impinge on the right of political parties to endorse candidates for elective judicial office in violation of the freedom of speech, freedom of association, and equal protection of law as guaranteed by the First and Fourteenth Amendments to the United States Constitution.
3. Whether the provision of the Minnesota Code of Judicial Conduct that forbids a candidate for elective judicial office from attending or speaking at any political party gathering-while permitting such a candidate to attend or speak at gatherings of all other organizations-unconstitutionally impinges on the freedom of speech, freedom of association, and equal protection of the law as guaranteed by the First and Fourteenth Amendments to the United States Constitution.
The petition did not include a question relating to the solicitation restrictions. The Supreme Court granted certiorari, limited to the first question presented, the challenge to the announce clause.
Justice Scalia’s opinion for the Supreme Court asked first whether the Boards had identified a compelling state interest to be served by the announce clause. 536 U.S. at 775-84, 122 S.Ct. 2528. Justice Sealia considered the terms “judicial independence” and “impartiality” to be insufficiently refined, and he divined three distinct meanings for “impartiality.” First, the “root meaning” of impartiality “is the lack of bias for or against either party to the proceeding.” Id. at 775, 122 S.Ct. 2528 (emphasis in original). Although Justice Sealia implicitly approved this meaning of impartiality as a compelling state interest, he concluded that the announce clause was not narrowly tailored to serve that interest and in fact was “barely tailored to serve that interest at all, inasmuch as it does not restrict speech for or against particular parties, but rather speech for or against particular issues.” Id. at 776, 122 S.Ct. 2528 (emphasis in original)
The second possible meaning of impartiality was “lack of preconception in favor of or against a particular legal view.” Id. at 777, 122 S.Ct. 2528 (emphasis in original). Justice Sealia not only rejected this concept as a compelling state interest, but he considered this sort of impartiality undesirable in a judge. Id. (“avoiding judicial preconceptions on legal issues is nei[1041]*1041ther possible nor desirable”). As defined by Justice Scalia, this second meaning of impartiality refers not to a candidate’s public actions, but to his or her thoughts. An important point that is not explicit in the Supreme Court opinion is that a restriction on a judicial candidate’s speech would be patently ineffective in regulating the candidate’s thoughts, even if the state wanted to do so.
The third possible meaning of impartiality was “open-mindedness” or willingness to consider all arguments. “This sort of impartiality seeks to guarantee each litigant, not an equal chance to win the legal points in the case, but at least some chance of doing so.” Id. (emphasis in original). This “open-mindedness” meaning of impartiality appears to be intimately related to the second meaning, lack of preconceptions; whereas the second meaning refers to the judge’s view of the substantive issue, the third meaning refers to the judge’s attitude toward reconsidering his or her view of the substantive issue. Justice Scalia reserved judgment on whether this third sort of impartiality in a judicial candidate was desirable (not to mention compelling) because he considered the announce clause to be so ineffective a way to achieve “open-mindedness” that this could not have been the state’s purpose in adopting the clause. Id. at 780, 122 S.Ct. 2528 (“As a means of pursuing the objective of open-mindedness that respondents now articulate, the announce clause is so woefully undeiinelusive as to render belief in that purpose a challenge to the credulous.”).
Having rejected the state interests offered by the Boards to justify Canon 5, the Court held: “The Minnesota Supreme Court’s canon of judicial conduct prohibiting candidates for judicial election from announcing their views on disputed legal and political issues violates the First Amendment. Accordingly, we reverse the grant of summary judgment to respondents and remand the case for proceedings consistent with this opinion.” Id. at 788, 122 S.Ct. 2528.
The first issue we must decide is what instructions to issue with regard to the announce clause. Then, we must decide whether to instruct the district court to reconsider its grant of summary judgment with regard to the partisan activity and solicitation clauses.
I.
The Supreme Court’s reversal of the grant of summary judgment for the defendants on the announce clause issue technically leaves open the question of what to do with the plaintiffs’ cross-motion for summary judgment. The plaintiffs ask us to remand with instructions to enter judgment for them, and the Boards do not dispute the propriety of this request. Therefore, the district court should enter judgment for the plaintiffs on Count II of their Second Amended Complaint.
II.
Wersal and the other plaintiffs also ask us to reverse the entiy of judgment for the Boards and to order entry of judgment in favor of the plaintiffs on the other four counts of their complaint, none of which were before the Supreme Court. The Boards argue that we do not have jurisdiction over the issues as to which the plaintiffs did not seek certiorari (solicitation clause) or as to which the Supreme Court denied certiorari (partisan activity clauses).
When the Supreme Court remands a case to us, we must determine whether the law of the case doctrine applies to issues the Supreme Court did not decide. See Madison v. IBP, Inc., 330 F.3d 1051, 1059 (8th Cir.2003). The law of the case doctrine dictates that “when a court decides upon a rule of law, that [1042]*1042decision should continue to govern the same issues in subsequent stages in the same case.” Kinman v. Omaha Pub. Sch. Dist., 171 F.3d 607, 610 (8th Cir.1999) (quotation marks omitted). The doctrine does not apply “when an intervening decision from a superior tribunal clearly demonstrates the law of the case is wrong.” Id. (quotation marks omitted); Madison, 330 F.3d at 1059; Morris v. American Nat'l Can Corp., 988 F.2d 50, 52 (8th Cir.1993). Where the Supreme Court’s reasoning in disposing of one issue in a case affects the validity of our earlier disposition of other issues in the same case, we will reconsider those issues on remand.5 See Shrink Missouri Gov’t PAC v. Adams, 204 F.3d 838, 840 (8th Cir.2000). The law of the case doctrine is discretionary, not jurisdictional. Arizona v. California, 460 U.S. 605, 618, 103 S.Ct. 1382, 75 L.Ed.2d 318 (1983) (“Law of the case directs a court’s discretion, it does not limit the tribunal’s power.”); Conrod v. Davis, 120 F.3d 92, 95 (8th Cir.1997).
The cases the Boards cite to show we lack power to reconsider the partisan activity and solicitation clauses are inappo-site. In Patterson v. City of Newport News, 364 F.2d 816, 817-18 (4th Cir.1966), plaintiffs sought to relitigate in federal court a condemnation that had been litigated to final judgment in state court. This was barred as a matter of issue preclusion, not law of the case. In Fleming v. Lake Delton Dev. Co., 267 F.2d 254, 256 (7th Cir.1959), the court did not decide whether res judicata or law of the case applied, but declined to reconsider the same arguments and the same issues the appellant had already fully litigated. There was no suggestion that the law had changed between the first disposition and the later appeal, as the plaintiffs argue happened in this case.
The Boards also argue that the Supreme Court’s remand limited our jurisdiction, citing Hermann v. Brownell, 274 F.2d 842, 843 (9th Cir.1960). Hei’mann “stands only for the proposition that upon remand the jurisdiction of an appellate court is limited to those particularized points which were assigned for consideration, if the mandate was in that form.” Sanders v. John Nuveen & Co., 554 F.2d 790, 793-94 (7th Cir.1977) (emphasis added). When a remand does not contain such a limitation, “[o]ther issues not within the compass of the mandate are thereby not precluded from consideration.” Id. at 794. The remand in this case stated:
The Minnesota Supreme Court’s canon of judicial conduct prohibiting candidates for judicial election from announcing their views on disputed legal and political issues violates the First Amendment. Accordingly, we reverse the grant of summary judgment to respon[1043]*1043dents and remand the case for proceedings consistent with this opinion.
536 U.S. at 788, 122 S.Ct. 2528. This is the language of a general remand, Field v. Mans, 157 F.3d 35, 42 (1st Cir.1998), and it does not contain an express or implicit limitation on our jurisdiction of issues that were before us prior to the grant of certio-rari, id.
The question before us, then, is whether the Supreme Court’s decision demonstrates that the law applied by this court or by the district court in deciding the partisan activity or solicitation clause issues was wrong.
III.
In our examination of the partisan activity restrictions, we did not suppose that the restrictions were meant to avoid judicial bias for or against particular parties to the suit, as for instance, if the Republican Party were an actual party to litigation before a judge who was endorsed by the Party or who had announced membership in the Party during his election campaign. Recusal of the judge in such a situation is an obvious less restrictive alternative. Therefore, it does not appear that the partisan activity restrictions would be narrowly tailored to avoid impartiality in Justice Scalia’s first sense of the word.
Nor did we, in our earlier opinion, consider whether the partisan activity restrictions tended to avoid election of judges who harbored preconceptions about legal issues and to encourage election of judges whose brains were a tabula rasa devoid of experience or opinion. Therefore, we did not base our decision upon vindication of the state’s interest in impartiality in Justice Scalia’s second sense of the word.
Instead, we focused on what we can now recognize as impartiality in Justice Scalia’s third sense of the word: open-mindedness. Moreover, we focused not on lack of open-mindedness in the sense of obstinacy or dogmatism, which are subjective states of mind, but rather on the objectively ascertainable threat to open-mindedness that results from having incurred obligations to entities who, while not actually parties to a case, have made known their desire to see certain cases decided in certain ways. Throughout our discussion of the restrictions on partisan activities, we stressed the possibility that candidates who became indebted to political parties could be or seem to be bound to rule in accord with those parties’ platforms, rather than in accord with the record and the law.6 See, e.g., 247 F.3d at 870 [1044]*1044(citing concurrence in Moon v. Halverson, 206 Minn. 331, 288 N.W. 579, 581 (Minn.1939), deploring “accusations of party treason which have been heaped upon some judges in the recent past because of decisions thought to be contrary to the interests of an indorsing party”); 247 F.3d at 872 (“The Minnesota Supreme Court has attempted to prevent judicial candidates from incurring, or seeming to incur, debts to political parties that could compromise them independence.... ”); id. at 876 (“If the judiciary is then expected to review ... legislation neutrally, a State may conclude that it is crucial that the judges not be beholden to a party responsible for enactment of the legislation, or to one that opposed it.”); id. (Political parties “are simply in a better position than other organizations to hold a candidate in thrall.”). In its most extreme form, this kind of threat to open-mindedness goes by the name “bribery,” which, of course, is forbidden by laws other than Canon 5, and is unquestionably within the state’s power to proscribe. We do not mean to suggest that political endorsements are comparable to the payment of money or could be regulated in the same way. However, the underlying problem of candidates for public office incurring obligations which interfere with their performance in office has been recognized as an urgent threat that governments can remedy, even when the problem takes more subtle forms than bribery. See McConnell v. FEC, — U.S. —, —, 124 S.Ct. 619, 660-61, 157 L.Ed.2d 491 (2003) (corruption and appearance of corruption extend beyond bribery to other arrangements which create “sense of obligation” in officeholders); Nixon v. Shrink Missouri Gov’t PAC, 528 U.S. 377, 389, 120 S.Ct. 897, 145 L.Ed.2d 886 (2000) (“In speaking of ‘improper influence’ and ‘opportunities for abuse’ in addition to ‘quid pro quo arrangements,’ we recognized a concern not confined to bribery of public officials, but extending to the broader threat from politicians too compliant with the wishes of large contributors. These were the obvious points behind our recognition that the Congress could constitutionally address the power of money to ‘influence governmental action’ in ways less ‘blatant and specific’ than bribery.”); see also United States Civil Serv. Comm’n v. National Ass’n of Letter Carriers, 413 U.S. 548, 565, 93 S.Ct. 2880, 37 L.Ed.2d 796 (1973) (upholding restraints on executive branch employees’ political activities because such activities posed “hazards to fair and effective government.”). The partisan activity restrictions of Canon 5 are aimed at forms of obligation which are more subtle than outright corruption, but which the state still has a compelling interest in avoiding in its judiciary.
The Supreme Court left open the possibility that open-mindedness in judicial candidates might be a compelling state interest, so a decision premised upon such an interest has not been shown to be wrong, see Kinman, 171 F.3d at 610. After the decision in White, the New York Court of Appeals entertained a First Amendment challenge to a section of its Rules Governing Judicial Conduct that prohibited judicial candidates from making certain pledges and promises about their future conduct in office. The New York court applied strict scrutiny and upheld the sec[1045]*1045tion based, in part, on New York’s compelling interest in open-mindedness. In re Watson, 100 N.Y.2d 290, 763 N.Y.S.2d 219, 794 N.E.2d 1, 7 (N.Y.2003) (per curiam) (“[Ojpenmindedness is central to the judicial function for it ensures that each litigant appearing in court has a genuine-as opposed to illusory-opportunity to be heard.”)
Although an analysis based on the compelling interest in judicial open-mindedness is not contrary to White, another aspect of our analysis of the partisan activity clauses must be reexamined carefully. The Supreme Court held that the announce clause would have been a “woefully underinclusive” method of achieving the goal of electing open-minded judges, and so the announce clause could not be said to be narrowly tailored to serve this goal. 536 U.S. at 780, 122 S.Ct. 2528. It therefore behooves us to look closely at whether the partisan activity clauses are similarly underinclusive.
Our earlier opinion’s discussion of the partisan activity clauses, unlike our discussion of the announce clause, specifically addressed the issue of underinclusiveness in a dialogue with the dissent. Compare 247 F.3d at 871-72 with 247 F.3d at 899-902. The dissent contended that, because Canon 5 prohibited a candidate from participating in the three specified activities with political parties, but not with other organizations that took an interest in how a candidate would decide certain cases if elected, Canon 5 was fatally underinclu-sive. 247 F.3d at 900-01. We responded that underinclusiveness is not a ground in its own right for invalidating a law, but that it frequently points to two other defects that are fatal: underinclusiveness may show that the government’s interest is not truly compelling, since the government has chosen to leave unchecked a threat to that interest; or else it may show that the government is discriminating on the basis of content, suppressing disfavored speech, while allowing other, favored speech even though it ought to be subject to the same objection as the prohibited speech. 247 F.3d at 871 (citing City of Ladue v. Gilleo, 512 U.S. 43, 51-53, 114 S.Ct. 2038, 129 L.Ed.2d 36 (1994)). To disprove the existence of this first defect, the government defending a law must “establish the empirical reality of the problems it purports to be addressing.” 247 F.3d at 871 (quoting Glickman v. Wileman Bros. & Elliott, Inc., 521 U.S. 457, 493, 117 S.Ct. 2130, 138 L.Ed.2d 585 (1997) (Souter, J., dissenting)); see generally Interactive Digital Software v. St. Louis County, 329 F.3d 954, 959 (8th Cir.2003) (For measure to pass strict scrutiny, government defending measure must present substantial supporting evidence of harm.).
To disprove the possibility of content discrimination, the government must show that the speech it has burdened poses a different, more serious threat to its asserted interest than the speech it chose not to regulate. See Erznoznik v. City of Jacksonville, 422 U.S. 205, 215, 95 S.Ct. 2268, 45 L.Ed.2d 125 (1975) (“[E]ven a traffic regulation cannot discriminate on the basis of content unless there are clear reasons for the distinctions.”). For instance, in Austin v. Michigan Chamber of Commerce, 494 U.S. 652, 110 S.Ct. 1391, 108 L.Ed.2d 652 (1990), Michigan restricted the political expenditures of corporations in support of or opposition to candidates for state office. The compelling interest for such regulation was the concern that entities that amassed wealth in the economic marketplace would parlay that wealth into “unfair advantage in the political marketplace,” 494 U.S. at 670, 110 S.Ct. 1391 (Brennan, J., concurring) because their ability to spend corporate money bore no relation to political support for [1046]*1046the ideas the corporations spent their money to promote, id. at 659-60, 670, 672, 110 S.Ct. 1391. The Chamber of Commerce attacked the Michigan law as underinclusive because it did not regulate expenditures by unincorporated labor unions, which also amassed political war chests. Id. at 665, 110 S.Ct. 1391. The Court noted that federal law restricted expenditures by unions, as well as by corporations, id. at 665 n. 4, 110 S.Ct. 1391.7
Austin rejected the underinclusiveness challenge, reasoning that the corporations enjoyed greater government-conferred legal advantages enhancing their ability to accumulate wealth. 494 U.S. at 665, 110 S.Ct. 1391. These legal advantages of corporate form made a crucial distinction between corporations and unions. Additionally, case law permitted union members to opt out of contributing to the union’s political activities, which meant that “the funds available for a union’s political activities more accurately reflects members’ support for the organization’s political views than does a corporation’s general treasury.” Id. at 666, 110 S.Ct. 1391. The Michigan law therefore passed strict scrutiny. Cf. Burson v. Freeman, 504 U.S. 191, 207, 112 S.Ct. 1846, 119 L.Ed.2d 5 (1992) (also upholding law on strict scrutiny review against underinclusiveness challenge that law failed to regulate all speech posing same threat; Court reasoned that only the type of speech subject to regulation had been shown to pose threat to compelling interest: “The First Amendment does not require States to regulate for problems that do not exist.”); Florida Star v. B.J.F., 491 U.S. 524, 541-42, 109 S.Ct. 2603, 105 L.Ed.2d 443 (1989) (Sealia, J., concurring in judgment) (underinclusiveness fatal where unregulated speech would cause victim discomfort “at least as great” as that caused by speech that was banned).
Our analysis of the problem of underinclusiveness in applying strict scrutiny finds strong support in the Supreme Court’s most recent campaign finance ease, McConnell v. FEC, — U.S. —, —, 124 S.Ct. 619, 694-98, 157 L.Ed.2d 491 (2003). In McConnell, the Court considered a challenge to section 203 of the Bipartisan Campaign Reform Act of 2002, which in turn amended section 316(b)(2) of the Federal Election Campaign Act of 1971, to prohibit use of corporations’ and unions’ treasury funds to pay for election advertising. — U.S. at — & n. 87, 124 S.Ct. at 695 & n. 87. Because the provision restricted campaign expenditures, it had to be tested by strict scrutiny. Id. at 695 (asking whether “compelling governmental interest justifies” measure); id. at 766 (Kennedy, J., dissenting)(“All parties agree strict scrutiny applies [to section 203].”). 'The plaintiffs contended that the section was underinclusive because it did not apply to election advertising in the print media or on the Internet. Id. at 697. The Court held that the evidence in the case supported the conclusion that television advertising posed the greater threat, and therefore the “record amply justifie[d] Congress’ line drawing.” Id. The Court said that “reform may take one step at a time, addressing itself to the phase of the [1047]*1047problem which seems most acute to the legislative mind.” Id. (quoting Buckley v. Valeo, 424 U.S. 1, 105, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976)). McConnell thus confirms our earlier reasoning that the sort of underinclusiveness that is fatal in strict scrutiny is irrational underinclusiveness, not underinclusiveness that results from attempting to focus the restriction on only the severest form of the threat to a compelling governmental interest.
Although our method of analysing the underinclusiveness issue remains valid, we must examine whether the actual application was affected by anything in the White decision. The Supreme Court’s discussion of the announce clause affected both the necessity and narrow tailoring aspects of our determination that the partisan activity clauses passed strict scrutiny. First, our determination that the Boards had shown the necessity of the restrictions depended partly on our view of the history of Minnesota’s effort to extricate its judiciary from partisan pressures, initially by designating judicial elections as non-partisan, and later by adopting Codes of Judicial Conduct restricting partisan activities. 247 F.3d at 869-70. We concluded that “ ‘a long history, a substantial consensus, and simple common sense’ combine to show that regulation is necessary to protect the institution of the judiciary from the dangers of partisanship and corruption.” Id. at 870-71 (quoting Burson, 504 U.S. at 211, 112 S.Ct. 1846). However, the Supreme Court rejected our reliance on similar considerations supporting the announce clause. 536 U.S. at 785, 122 S.Ct. 2528 (“The practice of prohibiting speech by judicial candidates on disputed issues, however, is neither long nor universal.”). Moreover, the Court’s discussion included language that has obvious relevance to the history of the partisan activity clauses. Id. at 786, 122 S.Ct. 2528 (“Thus, not only were judicial candidates (including judges) discussing disputed legal and political issues on the campaign trail [throughout the 19th and first quarter of the 20th centuries], but they were touting party affiliations and angling for party nominations all the while.”). Therefore, it is necessary to reconsider whether the partisan activities clauses are supported by sufficient evidence of necessity, without the reliance we placed on the history of Minnesota’s efforts to protect its judiciary from partisan pressures.
Second, our conclusion that the Minnesota Supreme Court was justified in regulating candidate speech concerning political parties, while leaving unregulated comparable speech concerning single issue groups depended in part on the existence of the announce clause. 247 F.3d at 876 (“At the Minnesota Supreme Court’s 1997 hearing on amending Canon 5, DePaul Willette, Executive Secretary of the Judicial Board, testified that the danger of judicial candidates affiliating with single-issue interest groups was adequately addressed by the provision of Canon 5 prohibiting announcement of the candidate’s views on disputed legal or political issues.”). Therefore, the evidence supporting Minnesota’s distinction between political and other organizations must be reevaluated in light of the demise of the announce clause.
Third, our original underinclusiveness analysis discussed only whether the partisan activity restrictions were underin-clusive because they reached speech pertaining to political parties, but not other organizations. We concluded the distinction between burdened speech and non-burdened speech was justified because political parties posed a more pervasive threat to judicial independence than did other types of organizations. 247 F.3d at 872, 875-76. Cf. McConnell, — U.S. at —, 124 S.Ct. at 686 (“Congress is fully entitled to consider the real-world differ-[1048]*1048enees between political parties and interest groups when crafting a system of campaign finance regulation. Interest groups do not select slates of candidates for elections. Interest groups do not determine who will serve on legislative committees, elect congressional leadership, or organize legislative caucuses. Political parties have influence and power in the legislature that vastly exceeds that of any interest group.”) (citation omitted).
The Supreme Court’s opinion raised an entirely different underinclusiveness objection:
The short of the matter is this: In Minnesota, a candidate for judicial office may not say “I think it is constitutional for the legislature to prohibit same-sex marriages.” He may say the very same thing, however, up until the very day before he declares himself a candidate, and may say it repeatedly (until litigation is pending) after he is elected. As a means of pursuing the objective of open-mindedness that respondents now articulate, the announce clause is so woefully underinclusive as to render belief in that purpose a challenge to the credulous.
536 U.S. at 779, 122 S.Ct. 2528. This type of underinclusiveness analysis looks at whether banning certain communications within one time-frame but not another is arbitrary. The same analysis could be applied to other clauses of Canon 5, such as the party identification and attendance at party gatherings clauses. (The endorsement clause only makes sense during the time-frame of an election.) This particular underinclusiveness question was not briefed either before the district court or before us when we decided this case the first time. The plaintiffs ought not to be barred from making a new argument based on the intervening Supreme Court decision, see Morris v. Am. Nat’l Can Corp., 988 F.2d at 52 (litigant who did not raise argument on first appeal “got lucky” when Supreme Court case changed law before its case became final), but neither should the Boards be prevented from marshaling whatever evidence they choose to present on this issue, as they asked to do at oral argument on remand from the Supreme Court. We therefore remand to the district court to receive new evidence and to determine whether the partisan activity clauses can survive strict scrutiny in light of the Supreme Court’s opinion.
IV.
The plaintiffs contended that the solicitation clause of Canon 5 was not narrowly tailored in that it unnecessarily prohibited candidates from soliciting contributions from large groups and sending out fund-raising letters over their own signatures. 247 F.3d at 883-84. We held that personal solicitation by candidates could create the impression that justice is for sale and Canon 5 left a candidate sufficient means by which to raise funds. Id. at 884-85. Plaintiffs did not seek certiorari on this issue. We conclude, however, that failure to seek certiorari on the issue does not now preclude the plaintiffs from asking for reconsideration of the issue in light of the Supreme Court’s opinion. See Morris v. American Nat’l Can Corp., 988 F.2d 50, 52 (8th Cir.1993).
As with the partisan activities clauses, our consideration of Canon 5’s restriction on personal solicitation was also premised on the state’s interest in a kind of open-mindedness'—keeping candidates free from obligations that would hamper their ability to decide the law according to their own judgment, rather than in accordance with implicit obligations to their financial benefactors. We said: “When judges obtain funds from a group that has an interest in the outcome of litigation, such as the plaintiffs’ or defendants’ bar, judges can appear beholden to that group [1049]*1049for their accession to office, creating the expectation that the judges will favor their benefactors accordingly.” 247 F.3d at 883. We cannot, then, say that our opinion was wrong in discerning a compelling state interest served by the personal solicitation restriction.
We considered whether the personal solicitation restriction was narrowly tailored in our original opinion. Id. at 884-85. Nothing in the Supreme Court’s opinion discredits our analysis of this issue. Cf. In re Dunleavy, 838 A.2d 338, 350-51 (Me.2003) (upholding restriction on judges’ solicitation of support for political candidates after White as narrowly tailored), pet’n for ceH. filed (Jan. 20, 2004) (No. 03-1132). Our holding on the issue is therefore not wrong. The plaintiffs cite the Eleventh Circuit’s opinion in Weaver v. Bonner, 309 F.3d 1312, 1322-23 (11th Cir.2002), invalidating Georgia Canon of Judicial Conduct 7(B)(2), which prohibited judicial candidates from personally soliciting campaign contributions. The Canon did allow the candidate’s election committee to solicit funds. Id. at 1322. The Eleventh Circuit’s holding on this issue was based on the fact that the Canon would not prevent the candidate from learning who had contributed to his campaign and consequently from feeling beholden to those contributors. Accordingly, it was ineffective in protecting the state’s asserted compelling interest. Minnesota’s Canon 5B(2), on the other hand, prohibits a candidate’s campaign committee from disclosing to the candidate either the identity of campaign contributors or the identity of those who were solicited for contributions but declined to contribute. The Weaver rationale is therefore inapplicable to the Minnesota Canon.8 We need not comment on the conclusion expressed in Weaver that the distinction between judicial elections and other types of elections “if there truly is one,” 309 F.3d at 1321, does not justify “greater restrictions on speech during judicial campaigns than during other types of campaigns.” Id. Cf. White, 536 U.S. at 783, 122 S.Ct. 2528 (“[W]e neither assert nor imply that the First Amendment requires campaigns for judicial office to sound the same as those for legislative office.”) We have no need to revisit our consideration of the personal solicitation clause.
******
We remand with instructions to the district court to enter judgment for the plaintiffs on Count II of the Second Amended Complaint (announce clause), to enter judgment for the defendants on Counts V (solicitation clause), and to reconsider its ruling on Counts I, III and IV (partisan activities clauses) in light of the Supreme Court’s decision in this case and such further evidence as the parties may offer.