CHARLESTON — When West Virginia Supreme Court Justices Evan Jenkins and Tim Armstead showed up at a Kanawha County GOP Executive Committee event to promote voter participation Monday, community members questioned how the justices, who also are seeking election to the court, could be present at the event when judicial elections in the state, by law, are nonpartisan.

The West Virginia Legislature in 2015 passed a law making judicial elections, from magistrates all the way to the state's highest court, nonpartisan on voters' ballots.

But nonpartisan judicial races on a ballot haven't translated to nonpartisan campaigning for a judicial position, said Patrick McGinley, Charles H. Haden II Professor of Law at the West Virginia University College of Law.

"The biggest problem in calling the election a nonpartisan election communicates an erroneous impression to the public," McGinley said. "There's no change. The judicial candidates continue to get money from a variety of sources, including support from dark money (political action committees) that they are not supposed to be coordinating with, and they'll likely get campaign contributions and support from partisan sources from political parties."

The 2015 law passed by the Legislature effectively removed the requirement for judicial candidates' parties to be listed on the ballot, and it broke up judicial elections for more than one judicial position into divisions based on how many terms are up for election in a given election cycle.

The law also established that judicial elections would be decided during the May primary election in a regular election cycle. Otherwise, the way judicial candidates in the state campaign for office largely remains the same, McGinley said.

"It doesn't change the ethical obligations or the political expediency of a judicial candidate saying they can't comment on an issue," McGinley said.

Special state court election

The current special elections for two West Virginia Supreme Court of Appeals seats came to be after former justices Menis Ketchum and Robin Davis resigned from the court this summer amid impeachment proceedings in the state Legislature focused on the five justices on the court at the time.

Ketchum pleaded guilty to one count of wire fraud in U.S. District Court for the Southern District of West Virginia. He is scheduled to be sentenced Jan. 30, 2019.

Davis has challenged the articles of impeachment against her in federal court, claiming the Republican-led Legislature impeached her and the other justices in an effort to create a conservative and male-majority Supreme Court.

The Brennan Center for Justice at New York University Law School released a report last week showing that outside groups account for a near-record 54 percent of all television spending on high court races throughout the country for October. The report showed the biggest outside spender to date is the Republican State Leadership Committee's Judicial Fairness Initiative, which has invested an estimated $420,170 into the Supreme Court special election, according to the Brennan Center's Buying Time project.

The rules for people campaigning to become a magistrate, judge or justice exist outside of state law and in the West Virginia Judicial Code of Conduct, the ethical code for judges. The code is applicable to those who are candidates for judicial office.

Canon 4 of the Judicial Code of Conduct specifically defines the limits of candidates' actions while they're campaigning. The code doesn't prevent the judicial candidates from being registered to a political party or from making appearances at partisan events, as Jenkins and Armstead did Monday.

However, judicial candidates most notably are prohibited from making statements on behalf of, and fundraising for, candidates in partisan races, whether it's a town council, county commission or a state-level partisan position, including becoming members of the state Senate and House of Delegates.

While judicial candidates cannot coordinate with super PACs involved in their respective races, there is nothing preventing the PACs from running ads in judicial races.

Neither Jenkins nor Armstead gave any statements on behalf of any candidates during the voter event Monday.

Jenkins and Armstead left elected positions to accept their appointments to temporarily serve on the Supreme Court last summer. Both men are Republicans, and both are seeking to be elected to serve the remainder of the terms for which Gov. Jim Justice appointed them.

In total, 20 people are seeking election to the two vacancies on the Supreme Court.

Jenkins previously represented West Virginia's 3rd Congressional District in the U.S. House of Representatives, and Armstead was speaker of the West Virginia House of Delegates.

Armstead noted that he was speaker when the 2015 bill to make judicial elections nonpartisan passed. He said that ensuring justice in a fair and ethical manner was not a partisan issue.

"As I have traveled throughout the state, I have attended many events and candidates' forums, meeting and talking with Republicans, Democrats, independents, members of third parties and citizens with no party affiliation," Armstead said. "I have welcomed the opportunity to talk with West Virginians regardless of their political persuasion, about how together we can restore confidence in the integrity and fiscal responsibility of our court. I plan to continue traveling across our great state throughout the remaining days of the campaign."

Jenkins, likewise, said he has traveled throughout the state talking with partisan and nonpartisan groups during the campaign.

"Cleaning up the mess on the court is not a partisan issue; it's a West Virginia issue," Jenkins said. "But I've always worked hard to be accessible to the public, always have and always will. Look at the spending problems that got us into this mess. Maybe the justices need to do a better job listening to real West Virginians."

Separating judicial process and political process

The rise of judicial elections across the United States started in the late 19th century as a remedy to a system in which, until that time, justices took office purely through appointment, either by a governor or Legislature, said Alicia Bannon, deputy director for program management in the Democracy Program at the Brennan Center.

"It was a response to concerns that judges were too closely tied to the political branches who were appointing them," Bannon said, "so electing them was seen as a way of enhancing their independence."

By the early 20th century, Bannon said it became apparent that moving to elections didn't completely eliminate the influence of the party-boss system, and more states moved to make their elections nonpartisan in an attempt to remove judicial candidates from the party system altogether.

There are advantages and disadvantages to nonpartisan races, Bannon said.

"I do think, on one hand, a party label is a piece of information for voters," Bannon said. "These are generally low-information races, so the advantage of partisan elections is that it does provide an additional piece of information to voters. The disadvantage is, I think, it can contribute to a perception that judicial candidates are kind of aligned with a particular party interest so they can take that alliance with them onto the bench when they're hearing cases."

Bannon said the Brennan Center recommends states adopt "a transparent, publicly accountable appointment process" and limit high court terms to a single term, among other reforms.

Even with reforms, Bannon said, the circumstances leading up to the special Supreme Court elections in West Virginia would be challenging in any state.

"This partisan impeachment process and the circumstances leading up to this election right now, I think rightly, does seem likely to leave a bad taste in voters' mouths," Bannon said. "Public confidence in the courts is really essential, and courts can't perform the role that they're supposed to perform in our constitutional system if people don't trust that judges are going to put aside political agendas in hearing cases. So, I think there's a real risk that the lines between politics and judging can become blurred, at least in the eyes of the public, when you have a selection process that is so highly politicized and takes on this highly partisan bent."

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