CHARLESTON – A federal judge has granted West Virginia Supreme Court candidate Allen Loughry’s motion to intervene in a lawsuit challenging the constitutionality of the state’s Public Campaign Financing Pilot Program.
The program was established in 2010 for candidates seeking a seat on the state’s high court.
Loughry, a Republican, is the only candidate in this year’s Supreme Court race to opt into the program, which state lawmakers passed in an attempt to reduce the influence of special interest money.
In his order dated Wednesday, Judge Joseph R. Goodwin of the U.S. District Court for the Southern District of West Virginia said the current Supreme Court law clerk has a “direct, personal interest in upholding the law.”
“Although the (State Election) Commission voted yesterday to defend the constitutionality of the pilot program, the Secretary of State had previously announced that she would not implement the matching funds provision of the act, relying on an opinion rendered by the West Virginia Attorney General,” Goodwin wrote in his three-page order.
“In contrast, Mr. Loughry has a direct, personal interest in upholding the law so that he can receive campaign funds.”
The judge continued, “In light of the changing position of the defendants, Mr. Loughry has sustained his burden of showing that the defendants may not adequately represent his interests.”
On Tuesday, Loughry asked to intervene in the lawsuit filed by Charleston attorney Michael Callaghan.
Callaghan, also the former chairman of the state Democratic Party, filed a 17-page complaint in the federal court July 18.
In it, he claims that the pilot program violates the First and Fourteenth amendments of the U.S. Constitution by “unduly impinging upon protected political speech and association” as set forth in the U.S. Supreme Court’s holding in Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett.
Specifically, he argues that the matching funds provision of the act is unconstitutional.
West Virginia Secretary of State Natalie Tennant, who serves as a member of the election commission, along with Gary A. Collias, William N. Renzelli and Robert Rupp, were named as defendants.
Following the Court’s 2011 decision in Bennett, the SEC sought an opinion by Attorney General Darrell McGraw regarding the constitutionality of the matching funds provision.
In his July 28, 2011 response, the attorney general concluded that the provision could not survive the strict scrutiny analysis mandated by Bennett.
Soon after, Tennant announced she intended to follow McGraw’s opinion and not implement the matching funds provision.
But at an emergency meeting Tuesday morning, the SEC voted to “actively defend” the constitutionality of the matching funds law passed by the Legislature and to defend the action in state and federal court.
The SEC also made a motion stating that it encourages its attorneys to expedite resolution of the questions about the matching funds in court as soon as possible.
Loughry noted Thursday that despite the commission’s 4-0 vote to defend the law, it still refuses to release the additional funds as the law requires.
However, he thanked the federal court for moving expeditiously.
“I am thankful that the federal court granted my motion to intervene and pleased with how rapidly the court responded to the motion,” he said.
This week, Loughry filed a separate legal action in the West Virginia Supreme Court of Appeals, seeking to force the SEC to follow the existing laws and provide his campaign with the additional funding.
He is represented in both suits by The Brennan Center for Justice at New York University’s School of Law and West Virginia attorney Marc Williams.
The Brennan Center is a non-partisan public policy and law institute that focuses on the fundamental issues of democracy and justice. Williams is a managing partner at the Huntington law firm of Nelson Mullins Riley and Scarborough LLP.