Narrowing down the field of candidates

House bill creating run-offs for state Supreme Court races approved by committee

CHARLESTON -- A bill approved by the House Judiciary Committee Wednesday could help narrow down crowded fields of candidates running for the West Virginia Supreme Court of Appeals.

A committee substitute for House Bill 2008 would create a run-off system where the top two candidates in a state Supreme Court division would face off in another election to determine the winner, but only under certain circumstances.

The bill states "If no candidate for justice of the Supreme Court of Appeals receives more than 40 percent of the votes cast in the primary election, a runoff election shall be conducted within 30 days after the results of the election are certified."

Brian Casto, counsel for the House Judiciary Committee, said the changes between the original bill and the committee substitute came after discussions with the Secretary of State's Office.

"It establishes something that has been long contemplated in regard to judicial elections for Supreme Court justices," Casto said.

Motivation for the legislation came from the two special elections for Supreme Court caused by the resignations of two Supreme Court justices -- one who later pleaded guilty to a federal charge of wire fraud and another who resigned after being impeached by the House in August.

Those two elections had 10 candidates each, but no candidate won clear majorities. In the Division 1 race to fill the remaining term of former justice Menis Ketchum, former House Speaker Tim Armstead won with 26 percent of the vote. The next highest vote-getter, Kanawha County Circuit Court Judge Joanna Tabit, received 22 percent of the vote. Ketchum is awaiting sentencing, which was re-scheduled this week for Feb. 27.

In the Division 2 race to fill the remaining term of former justice Robin Davis, former 3rd District U.S. Rep. Evan Jenkins won with 36 percent of the vote, followed by Charleston attorney Dennise Smith with 14 percent. Davis was one of four justices impeached after a summer-long investigation by the House Judiciary Committee. Her impeachment trial in the Senate was halted by a court decision.

"It is mathematically possible that a candidate could have won election to the Supreme Court in that instance with 11 percent of the vote," Casto said. "We do not want there to be any questions of legitimacy of the persons who are elected to our Supreme Court. That, I believe, is the theory behind this bill."

Casto pointed out that while low vote thresholds are not common, they do happen. In 1984, Clyde See, a Democratic candidate for governor, won the nomination with 39 percent of the vote in a seven-candidate race.

One concern raised by Delegate Rodney Miller, D-Boone, was whether the bill applied to special elections. The bill language said if a run-off were to occur, it would occur 30 days after the primary when non-partisan judicial elections occur. But the two resignations that happened last year happened after the primary, causing the special elections to be placed on the November general election ballot. Miller said he might bring an amendment after the bill makes it to the floor to address that issue.

"Maybe that is something we can look at for the floor," Miller said.

If passed, the bill would go into effect in time for the 2020 elections. There will be three Supreme Court seats up, including a special election to fill the remaining term of former justice Allen Loughry, who resigned a month after being convicted of 11 federal charges. Former Raleigh County Circuit Judge John Hutchison was appointed by Gov. Jim Justice to fill the seat until the 2020 special election. The seats held by Armstead and Justice Margaret Workman will also be before voters in 2020.

(Adams can be contacted at sadams@newsandsentinel.com)