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Clearly, nonpartisan judicial elections remain partisan

November 12, 2018

Tim Armstead, left, shakes hands with Evan Jenkins in Gov. Jim Justice's office after both were appointed to fill vacancies on the West Virginia Supreme Court of Appeals.

The notion that judicial races in West Virginia — particularly for positions on the Supreme Court of Appeals — are nonpartisan and have minimal political party influence is nonsense.

Just look at what happened leading up to the election of two people to the Supreme Court in Tuesday’s voting — a highly unusual set of circumstances that resulted in a situation where politics was front and center.

Presumably, that was not the intent in 2015 when legislation was passed to minimize politics in the Mountain State’s judicial elections. No longer would candidates seek a party nomination, nor would they be labeled by party. The candidates would have to declare for a specific position, if there was more than one. And they would be elected during a primary election, rather than during a general election.

During the first so-called nonpartisan cycle, in 2016, one seat on the Supreme Court was at stake. Beth Walker, who had run previously for the court as a Republican, won against several other candidates. In less than a month during that campaign, outside groups spent almost $3 million in advertising, including S2 million from the Republican State Leadership Committee, which attacked two of Walker’s opponents who were Democrats and supported Walker. Clearly, partisan politics remained in play.

Fast forward to this year. The stage was set about a year ago, when a news reporter told about lavish spending on offices and furniture by the five members of the state’s Supreme Court. That led to audits, ethics investigations and criminal investigations. Ultimately, the House of Delegates moved to impeach all the justices but one, Menis Ketchum, who resigned before those proceedings were complete.

Early on there were charges from Democrats that the Republican majority wanted to stall any actions long enough to allow the Republican governor to appoint replacements for any justices who might be removed rather have elections.

As it turned out, the timing was such that Gov. Jim Justice did get to appoint two temporary justices to the Supreme Court. They were two Republican politicians, former U.S. Rep. Evan Jenkins, who would be out of a job after losing a bid for the U.S. Senate in this year’s primary, and former House of Delegates Speaker Tim Armstead, who resigned from the House to run for the Supreme Court. They were chosen despite lacking any judicial experience. And the people they replaced on the bench, Ketchum and Robin Davis, who also resigned, were Democrats.

With their name recognition and their short-term incumbency, Jenkins and Armstead won their respective elections on Tuesday to fill out the unexpired terms, even though there were a few other candidates with considerable bench experience.

Meanwhile, outside money continued to pour in during elections. The Brennan Center for Justice at New York University Law School estimated that nearly $900,000 was spent on TV political ads in the two Supreme Court races, and about three-fourths of it was by the Republican State Leadership Committee’s Judicial Fairness Initiative.

Nonpartisan? Hardly.

It’s clear that the attempt at non-partisan elections is not working. Rather than continue this charade, it would be more honest if judicial elections reverted to the old, partisan ways. Then there would no pretense about what is happening.

Better yet, the state probably should pursue some sort of system allowing for appointment of judges. The Brennan Center for Justice recommends states adopt “a transparent, publicly accountable appointment process” and limit high court terms to a single term, among other reforms. An appointment system may not be completely devoid of political influence, but if enough checks and balances were provided, it could certainly be better than the current one in West Virginia.

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