In 2015, the Legislature passed a law declaring that judicial elections will be non-partisan. Additionally, candidates would be elected on the same day as the partisan Primary Election.
The aim was to lessen the politics in judicial elections and reduce costs, since candidates would only have to run one campaign instead of a Primary and General Election campaign.
However, the change has produced what was likely an unintended consequence. Take the West Virginia Supreme Court race of 2018, for example.
There were ten candidates, each running for two seats. Evan Jenkins won one of the seats, but with only 36 percent of the vote. Tim Armstead won the other seat, but with only 26 percent of the vote.
Put another way, 64 percent of all those who cast ballots in the election preferred someone other than Jenkins while a whopping 74 percent chose one of the other nine candidates in Armstead’s race.
No offense to Jenkins or Armstead, but that’s just not healthy. It runs afoul of the “majority rule” concept that an elected representative should have the support of more than 50 percent of those voting, especially for a position as important as state Supreme Court.
Early on in this legislative session, lawmakers are considering a bill to modify judicial elections. House Bill 2008 says that if no Supreme Court candidate receives more than 40 percent of the votes cast, then the top two candidates will meet in a runoff in the General Election.
(Forty percent still isn’t a majority, but at least it is closer to a broad consensus of the electorate.)
I doubt Supreme Court candidates will like the proposed change because it almost guarantees a longer campaign if the field is crowded like it was in 2018. The bill’s lead sponsor, Delegate Daryl Cowles (R-Morgan) believes the change is necessary.
“The genesis of the bill is to try to improve public confidence that the end result of the election is someone that a good number of people have voted for and make sure that our choice for the Supreme Court of Appeals is someone who enjoys public support and is a legitimate representative of the people,” he said.
Cowles is on the right track, but there is another option—ranked choice voting. Under this method, voters rank as many candidates as they want in order of choice. If no candidate gets more than 50 percent, an “instant runoff” takes over.
The candidate with the fewest votes is dropped and the votes on those ballots are redistributed to the candidates who were ranked on the last place candidate’s ballot. The process continues until one candidate has a majority.
Either way, the goal is to ensure that the person who wins the race has the support of a majority (or at least a significant portion) of the people who voted.