By: Stephanie Wilmes
As of 2013, thirteen states used nonpartisan judicial elections to select their state Supreme Court justice, and eighteen states used nonpartisan elections to select trial court judges at all levels. On March 25, 2015, West Virginia joined their number when Governor Earl Ray Tomblin signed HB 2010 into law.
HB 2010 makes three significant changes to the process of judicial elections in the state. First, it mandates that all levels of the state judiciary be elected in nonpartisan, rather than partisan elections. West Virginia has only one appellate court, the Supreme Court of Appeals, whose five justices serve for twelve-year terms. The state also has thirty-one circuit courts, and seventy circuit judges, who serve for eight-year terms. Each circuit has at least one judge, and some have as many as seven. Judges sitting on municipal courts and family courts, and magistrates, will also be elected by nonpartisan election under HB 2010. Second, judges will be elected by division rather than in at-large elections. Third, the new law fixes the date of judicial elections on the day of the primary rather than the general election.
The original version of the bill passed the House of Delegates and the Senate with broad support. Its proponents believe that nonpartisan elections are necessary to remove the specter of politics from the judiciary. When judges are not outwardly affiliated with a particular party, explained Chairman of the House Judiciary Committee John Shott, the citizenry will know that their judges are not indebted to a particular interest. Those in the legislature who opposed the bill, like Delegate Barbara Evans Fleischauer, expressed concern that nominally nonpartisan elections would only deny voters information that is normally readily available in an election context. Anthony Majestro, President of the West Virginia Association for Justice, also pointed out that because other laws restrict judicial candidates from discussing their views on particular topics, eliminating party affiliation from the ballot seriously hinders the ability of the voters to make an informed choice.
A major concern driving the debate around HB 2010 is the role of money in West Virginia elections. As Delegate Fleischauer remarked, “[W]e’ve had some pretty bad experiences with money in judicial elections, and there have been accusations that judicial seats have been purchased by individuals.” In 2009, the U.S. Supreme Court in Caperton v. Massey even found that the campaign contributions received by a justice on the West Virginia Supreme Court of Appeals by one of the two litigants before him “had a significant and disproportionate influence in placing the judge on the case,” and that the justice was required to recuse himself from the case for that reason. Such a situation created a “serious, objective risk of actual bias.”
It is not clear that the influence of money will be limited by switching to nonpartisan elections. Some legislators believe that removing party influence will also remove the influence of money itself, while other commentators predict the new legislation will only increase the amount of money spent on judicial elections, including expenditures from special interests less visible to the electorate. Delegate Tim Manchin introduced an amendment that would have addressed the question of campaign finance directly, by extending public financing to circuit and family court and magistrate elections, but the amendment was rejected 31-67.
Three other states, Arkansas, Mississippi, and North Carolina, moved from partisan to nonpartisan judicial elections in the last twenty years, and today nonpartisan judicial elections are considerably more common than partisan elections. The debate between the two methods is far from over, however. North Carolina recently returned to the use of partisan elections to fill vacancies on its Court of Appeals, and five other states have introduced bills reconsidering the use of nonpartisan elections of judges.