Gavel Grab

In the wake of federal court rulings that have struck down some matching-funds provisions in public financing programs, a similar provision in West Virginia’s pilot program for public financing of judicial candidates is up in the air.

The sole candidate in upcoming state Supreme Court elections who is participating in West Virginia’s public financing program, meanwhile, contends that these federal court rulings don’t apply there. No federal court has ruled that judicial elections should be treated the same way as executive or legislative branch elections in this regard, he maintains.

West Virginia’s program includes an offer of “rescue funds” to help participating candidates when privately funded opponents or independent groups are outspending them. The State Election Commission recently voted 2-1 to put off deciding whether these matching funds can be provided under the program, according to an Associated Press article.

Last year, the U.S. Supreme Court threw out a matching funds mechanism in an Arizona statute with its Arizona Free Enterprise Club v. Bennett ruling (see Gavel Grab). This year, a federal court invalidated a similar provision in North Carolina’s public financing program for judicial elections (see Gavel Grab).

The lone candidate in West Virginia Supreme Court elections who is participating in the public financing program is Allen Loughry, a Republican. He points out that the U.S. Supreme Court ruled on an Arizona statute that did not involve judicial elections, and he says state officials on the losing side of the North Carolina case failed to argue that their program differed from Arizona’s.

“No court has decided this issue,” Loughry said. “No court has concluded that judicial elections should be treated the same as the two political branches.”

West Virginia’s public financing law was adopted in part because of public revulsion over the state’s 2004 Supreme Court election, in which a coal executive spent $3 million to elect a new justice while the executive’s company appealed a $50 million jury award.

That episode ultimately led to the U.S. Supreme Court’s 2009 ruling in Caperton v. Massey that there was a risk of bias when the Mountain State justice voted on a case involving the executive’s company.

In West Virginia’s Supreme Court primary this year, eight candidates competed for two seats, and the six Democratic candidates spent $1.47 million. By contrast, total spending by candidates for secretary of state, treasurer, commissioner of agriculture, auditor, attorney general and governor added up to about $510,000.

Tags: West Virginia