Four years ago, West Virginia passed a law making judicial elections nonpartisan. Starting in 2016, judges were chosen in nonpartisan elections that coincided with the state’s Primary Election.
However, the law created an unintended consequence, which came to light in 2018 because of the controversy on the State Supreme Court that led to two justices resigning and a third retiring.
The timing of the departures prompted two of the vacancies to be filled in the 2018 General Election, while the third was filled by appointment to serve until the next statewide election in 2020.
The two seats open in 2018 drew significant interest with 10 candidates for each position. Evan Jenkins and Tim Armstead won, but neither received anywhere near a majority. Armstead got only 26 percent, while Jenkins received 36 percent.
That means in each case more voters preferred someone other than the winner.
The Legislature recognizes that as a problem and it is considering a bill to change it. HB 2008 says that if no candidate for Justice of the Supreme Court of Appeals receives more than 40 percent of the votes cast in the Primary Election, the two top vote getters will face each other in a runoff election in November.
The upside of this bill is that it guarantees that the winner will have received a majority of the votes. The downside is that it lengthens the campaign and increases the chances of the race becoming more political—exactly what the judiciary wanted to avoid.
George Carenbauer, the former state Democratic Party Chairman and longtime political observer in West Virginia, proposes an alternative: Ranked-choice voting where voters rank the candidates on the ballot—first, second, third, etc.
If no candidate gets 50 percent or more, the bottom candidate is dropped and the second choice of those voters is added in. The process continues until a candidate gets a majority.
Carenbauer argues that in a two-person runoff it’s still possible that the candidates “most acceptable” to the largest number of voters are left out. “With ranked choice voting, this problem is eliminated, and the candidate who has the broadest appeal to the most people is elected. And this is accomplished without a second election,” Carenbauer said.
Well, maybe. That might work when there are three or four people in the race, but could voters be realistically expected to rank 20 Supreme Court candidates?
The state’s decision to make judicial elections nonpartisan with shorter campaign periods was a good move. However, the oddity of last year’s Supreme Court races does suggest the law needs to be tweaked, and there are options to make it better.