Gov. Earl Ray Tomblin’s March 25 approval of House Bill 2010 marked the end of a long battle for the West Virginia Chamber of Commerce.
With Tomblin’s signature, judicial elections in West Virginia will now be held on a nonpartisan basis, meaning candidates won’t run as members of Democratic, Republican or third parties. It’s something Chamber President Steve Roberts said his group has championed for nearly two decades.
“Our only regret is it took this long for the bill to pass,” Roberts said. “We have been strong advocates for a very long time of getting the partisanship out of our judiciary.”
Before House Bill 2010 passed through the Legislature and was signed into law, West Virginia was one of only seven states that elected its justices on a partisan basis. Alabama, Illinois, Louisiana, North Carolina, Pennsylvania and Texas remain the only states with partisan judicial elections, according to the American Bar Association.
However, all judges in Illinois and Pennsylvania run in uncontested retention elections for additional terms after winning their first terms through contested partisan elections. In Ohio and Michigan, political parties are involved in nominating candidates for Supreme Court races and those candidates frequently run with party endorsements.
Eight states grant life tenure or use some type of reappointment for their intermediate appellate courts. West Virginia doesn’t have such a court, which Roberts said is another reason removing political influence from judicial elections is important.
“We have limited appellate review in West Virginia and that means there is less discussion about cases, fewer eyes on individual cases and that makes it all the more important that the courts get it right every time, every place, which of course is a virtual impossibility,” Roberts said. “We think getting the politics out of the courts is a very important step on the way to ensuring a better legal climate in West Virginia and fairer trials for everybody.
“We think the poorest, least influential person in any community ought to be ensured a fair trial every place, every time, just as a big fish should insist on an absolutely fair trial. We think getting the partisan politics out of the judiciary is one way to accomplish that.”
But not everyone sees it that way. The West Virginia Association for Justice lobbied against passage of the bill, saying removing party affiliations from the ballots doesn’t give voters all the information they need before casting a ballot.
“There are restrictions that prohibit judicial candidates from disclosing their positions on issues to voters,” said Anthony Majestro, president of the association. “They cannot tell voters how they may or may not rule on a prospective case. Party identification provides some information to voters on where a candidate may stand on particular issues that would be unavailable to voters otherwise.”
The legislation, which passed the House 90-9 and the Senate 33-1, also doesn’t address the increasingly large amounts of money spent to elect justices, Majestro argued.
“If anything, those expenses will increase,” he said. “Other states that switched to nonpartisan elections saw increases in both the number of candidates filed and the amount of money spent.
“It will also increase the likelihood of independent expenditures, with special interests hiding behind misleading names and refusing to disclose who has funded the effort.”
Candidates running in the 2012 Supreme Court race were eligible to participate in a public campaign financing pilot program. Justice Allen Loughry, a Republican, was the only candidate to take advantage of the program. Delegate Tim Manchin, D-Marion, tried to amend House Bill 2010 to expand that program, but his amendment was shot down.
“The reason I offer this (amendment) is because quite frankly the only good reason to have nonpartisan judges, are two. No. 1, so they’re not beholden to anybody and they don’t appear to have partiality after they’ve been elected,” Manchin said. “No. 2, to cut down on the costs of an election.”
Manchin’s amendment included fees assessed from trial lawyers, class action lawsuits and other sources to contribute to the fund.
Roberts agreed that campaign financing is an evolving issue.
“This is not just a West Virginia issue,” Roberts said. “Nationally the issue of how much is going to be spent on elections, how much is spent on getting a candidate’s message out continues to be an issue.
“The Supreme Court has consistently ruled candidates can spend and candidate committees can spend to get their message out, whether it’s to drive name recognition or talk about that candidate’s beliefs.”
House Bill 2010 is part of a larger legal reform package of legislation aimed at improving the state’s judicial and business climate. House Speaker Tim Armstead, R-Kanawha, called the bill a “step in the right direction.”
“I really believe the judiciary should be above partisan politics,” he said. “Right now, we elect our school board members on a nonpartisan basis and yet we have judges (who aren’t).
“That is the one branch of government that I think above all others should be above partisan politics. It should be viewed as, and in reality be, the one branch where people feel like they can go regardless of their views, their opinions and their partisan beliefs and know they’re going to be treated fairly.”
The bill will become effective June 8 and affects candidates in Supreme Court, circuit, family and magistrate court races.