Much has been said during the Supreme Court impeachment proceedings about the importance of filling vacancies by election. The argument has merit since West Virginia entrusts and empowers the voters to choose the five members of the powerful court of last resort in the state.
The timetable of the resignations (or retirements) of Robin Davis and Menis Ketchum means West Virginia voters will fill those two vacancies during a special election that will coincide with the November General Election.
The three remaining Justices—Chief Justice Margaret Workman, Beth Walker and suspended Justice Allen Loughry—have all been impeached and face trial in the Senate. If the Senate votes to remove any or all of the Justices, the Governor will fill the vacancies by appointment.
West Virginia is one of 38 states that either elects Supreme Court Justices directly or has retention elections after appointment. Elections are the preferable route because in a democracy the people should decide who holds the offices of power. However, elections are not infallible.
After all, each current and former member of the West Virginia Supreme Court embroiled in the impeachment process was chosen by the people. Allen Loughry, who faces a 25-count federal indictment for personal use of state vehicles, lying to investigators and trying to influence a potential witness, received enough support from the voters in 2012 to win a 12-year term.
It is also worth noting that in a four-way race for two positions on the court in 2012, neither one of the two winners—Loughry nor Robin Davis—received a majority of the votes. Loughry got 26 percent, while Davis received 27 percent.
The percentage of the vote by the winning candidates in November could well be even smaller given the size of the field. Twenty candidates have filed to run—ten for the remaining two years left on Menis Ketchum’s term (Division 1) and ten for the six years left on Robin Davis’s term (Division 2).
The turnout for the last state Supreme Court election in an off year (2010) was 39 percent. If the turnout is similar this November, about 481,000 voters will cast ballots in each of the two Supreme Court races.
In theory, if the vote among the ten were split evenly, a candidate could win with only a little over 48,000 votes, or just four percent of registered voters. But let’s say one of the ten gets as many as 100,000 votes. That’s still just eight percent of all those eligible to vote.
Elections are about determining the will of the people, and they are essential to public confidence in governance. However, the traditionally low voter turnout in off-year elections and the high number of candidates in the Supreme Court races means a small minority will decide who will occupy those two seats.