For Republicans and the Chamber of Commerce, the upcoming West Virginia Supreme Court election could look like the dog that finally caught the car it has been chasing.
Several leading business organizations and the GOP pushed for years for judicial reform, including the non-partisan election of judges. They prevailed last year—the first year the Republicans had control of the legislature—with the passage of HB 2010.
The new law changed judicial elections to non-partisan, with state Supreme Court Justices, circuit judges, family court judges and magistrates elected in the primary; there is no nominating process.
The bill received broad support and was heralded by many legal reformers who saw it as a way to take some of the partisanship out of judicial elections and reduce the amount of money in campaigns.
However, ironically, this year’s inaugural exercise of the new law gives an advantage in the state Supreme Court race to a candidate who, perhaps more than any individual, inspired reformers–Darrell McGraw.
The former state Supreme Court Justice and former Attorney General is among five candidates vying for the single seat on the five-member court. McGraw, because of his long political career, likely enjoys the highest name recognition in the field that includes current Justice Brent Benjamin, Wayne King, Beth Walker and Bill Wooten.
The Chamber of Commerce, Citizens Against Lawsuit Abuse and the GOP have been battling with McGraw for years. They have accused McGraw of being an anti-business activist who used his AG’s office as a platform to run his campaigns (McGraw lost re-election to a sixth term in 2012). McGraw has fired back that he consistently looked out for the interests of the people against big business.
With five candidates in the race, theoretically the person who gets just over 20 percent of the vote can win. Realistically, the votes won’t be divided evenly, but it’s highly unlikely any one of the five will get a majority, meaning more people will have voted for someone other than the winner.
Additionally, the non-partisan judicial races will be at the end of the Republican ballot, following a list of over 250 names for convention delegates. Some voters will likely get discouraged by the long ballot and stop before they get to the Supreme Court, circuit judge and the rest. (That will not be an issue on the Democratic ballot because it does not list delegate candidates.)
Turnout in the Primary Election is typically lower—just 24 percent in 2012. If turnout is similar this year, as few as 60,000 votes could be enough to win this crucial seat. That doesn’t feel very democratic.
Lawmakers considered a runoff election in November of the top vote getters, but circuit judges lobbied against the idea, believing it would defeat the intent of reducing the influence of money and politics in judicial elections.
Meanwhile, McGraw’s many critics are squirming at the possibility that their long-time adversary could be one of the first beneficiaries of their judicial reform.