What was intended to be a non-partisan election turned out to be one of the most political Supreme Court races in years, one of the candidates concluded Wednesday.
“Four of the five candidates scrupulously adhered to being non-partisan,” said Beckley lawyer and former legislator Bill Wooton. “I’m not sure the candidate who won approached it that way.”
Wooton noted that Morgantown lawyer Beth Walker, who won election to a 12-year term on the high court with 40 percent of the vote Tuesday, sought and received endorsements from Republican politicians and from pro-business political action committees, and was the beneficiary of at least $3 million and perhaps as much as $5 million in independent expenditure ads from groups including the Republican State Leadership Committee.
Wooton said the onslaught of attack ads from RSLC, directed at himself and former attorney general Darrell McGraw, some alleging ties to unpopular President Barack Obama, had a profound effect on the election.
“It seems to me the bulk of the money, 80 to 90 percent, was spent in the last two weeks,” Wooton said, adding, “You’ve got to have some faith in the electorate, but it’s difficult to understand the source of the money, and what’s going on, just watching the ads.”
Wooton countered with an ad denouncing the RSLC spots as an effort by out-of-state interests to buy a seat on the court, and by sending a letter to Walker, calling on her to demand that the independent expenditure ads cease.
However, as one of two candidates participating in public campaign financing of the Supreme Court campaign, Wooton had nearly exhausted his campaign funds by the time the RSLC attacks ramped up.
“I personally think public financing is good for Supreme Court candidates. It helps restore public confidence in the integrity of the judges,” he said.
However, he questioned whether it is feasible to run a campaign with a maximum budget of $525,000 against millions of dollars of attack ads.
“Given the handling of this election, you’d have to take a long, hard look at whether you should accept public financing in the future,” he said.
The 2016 election was also a rare state Supreme Court race where outside spending by independent expenditure organizations apparently exceeded total spending by the candidates, a researcher with the National Institute on Money in State Politics concluded.
“The sheer amount of outside money is quite a lot and unusual, but I’d also say it’s part of a trend,” said JT Stepleton with the institute, which tracks spending in state political campaigns on its followthemoney.org website.
Going into Election Day, independent expenditures in the race had topped $3.5 million, while candidate spending through April 24 totaled $1.63 million.
Stepleton said he’s aware of only two other state Supreme Court campaigns where outside expenditures exceeded candidate spending, and both were in head-to-head races, in North Carolina in 2012, and Illinois in 2014.
“Especially after Citizens United, a lot of states are seeing a proliferation of independent spending,” he said, referring to the 2010 U.S. Supreme Court decision that held that the First Amendment prohibits restrictions on independent expenditures in political campaigns.
The institute collaborated on a report, “The New Politics of Judicial Elections,” which found that in 2014, the RSLC spent a total of $3.4 million on judicial elections in five states, including North Carolina, an amount likely to be surpassed in West Virginia alone.
Charleston lawyer Lonnie Simmons, representing the McGraw campaign, on Saturday sent a cease and desist letter to state television stations airing the RSLC ads, saying the ads made “false, misleading and deceptive” claims about McGraw.
Among the false claims, according to the letter, was that as attorney general, McGraw had used the state plane for personal flight to Washington, D.C., to make connections for a vacation to Europe. The ad, however, failed to disclose that McGraw had reimbursed the state for the cost of the flight.
Asked if any stations pulled the ads, Simmons commented, “Yes, at 7:30 on election night.”
Simmons said he believes the RSLC ads had a major impact on the election.
“When there’s such a constant flow of negativity in one direction, and positivity in the other, I’ve got to believe it had a huge impact,” he said.
Walker, in an election night interview, downplayed the independent expenditure ads, stating, “All I know is we had a plan, and we spent 11 months traveling all over the state talking to as many voters as we could about my conservative vision for the court.”
Wooton, meanwhile, said the Legislature should revisit the 2015 law making judicial elections non-partisan.
“I would hope the Legislature would take a hard look at whether they accomplished what they intended to accomplish by making it non-partisan,” he said.
Attempts to reach Supreme Court Justice Brent Benjamin for comment on the election were unsuccessful.
Reach Phil Kabler at firstname.lastname@example.org, 304-348-1220, or follow @PhilKabler on Twitter.