UPDATED: SEC won't appeal state Supreme Court ruling

Loughry

CHARLESTON – The State Elections Commission on Tuesday voted not to appeal the state Supreme Court's recent ruling on the public financing pilot project for the current Court race.

The four current members of the SEC voted unanimously Tuesday to not appeal the Sept. 7 ruling that releasing matching funds to Court candidate Allen Loughry would violate the free speech rights of other candidates who are financing their own campaigns.

During the Tuesday morning SEC meeting, Chairman Robert Rupp quickly sent the meeting to executive session to discuss the idea of an appeal. After it was over, the four members voted unanimously to not appeal based on the advice of counsel.

Loughry said he has asked his attorneys not to appeal the Supreme Court decision on his behalf. But, surprisingly, he wishes the SEC would have done so.

"I would have hoped that the State Elections Commission would have decided to appeal the public financing case to the U.S. Supreme Court," Loughry said Tuesday afternoon. "Obviously an appeal wouldn't impact my campaign since a decision would most likely come after the Nov. 6 election.

"However, an appeal to the U.S. Supreme Court would provide West Virginia and any other states considering public financing for judicial races final guidance on what is constitutional and what isn't."

Loughry said his campaign is moving forward.

"We are spending our time implementing our communications strategy and meeting with voters all over the state," he said. "My hope is that after the election, we can sit down and come up with a positive, non-political solution for selecting members of our judiciary."

In a concurring opinion issued last week, 23rd Circuit Judge Christopher C. Wilkes wrote that judicial elections are "notably different" than elections for legislative or executive offices. Wilkes was one of three judges appointed to hear the case after Justices Robin Jean Davis, Brent Benjamin and Margaret Workman recused themselves. Judge James P. Mazzone of the First Judicial Circuit and Judge J. Lewis Marks Jr. of the Fifteenth Judicial Circuit heard the case along with Chief Justice Menis Ketchum and Justice Thomas McHugh.

The ruling denied Loughry's writ seeking to force the State Election Commission to provide his campaign with matching funds.

In his opinion, Wilkes added that he only "reluctantly" agrees with the use of strict scrutiny in the context of judicial elections, "where First Amendment free speech will often necessarily be opposed to maintenance of an independent, unbiased judiciary."

The judge noted that judicial elections are "notably different" than other, "policy-based" elections.

"The majority notes that it is sympathetic with and agrees that judicial elections raise a number of compelling interests," he wrote. "I agree with this view, and believe it needs further elaboration."

Most elections require a candidate to state what he or she will do while in office, Wilkes explained.

"In this way, a candidate is espousing his or her policy beliefs, and the electorate is choosing him or her based, at least in part, upon what policy they think is best," he wrote. "A candidate's conduct in a judicial election is, and must be, different."

Loughry, a Republican, is the only candidate in this year's Court race to opt into the pilot program, which state lawmakers passed in an attempt to reduce the influence of special interest money.

In its 5-0 ruling, the state Supreme Court explained that the question is not only whether the SEC has a statutory duty to authorize the release of the matching funds to Loughry but whether the funds provisions violate the free speech clause of the First Amendment.

The Court concluded that the U.S. Supreme Court's holding in Arizona Free Enterprise Club's Freedom Club PAC v. Bennett -- the ruling Charleston attorney Michael Callaghan points to in a separate but related federal lawsuit over the pilot program -- applies to all elections to public office.

"The Supreme Court gave no indication in Bennett that judicial elections would be excepted from its holding. Nor are we persuaded that a majority of the U.S. Supreme Court is inclined to adopt a less rigorous standard than strict scrutiny to First Amendment issues involving political speech in judicial elections," Chief Justice Menis Ketchum wrote for the Court.

"While we are sympathetic to petitioner Loughry's position and agree with his assertion that judicial elections raise a number of compelling interests, we are bound to apply the Supreme Court's interpretation of the United States Constitution."

In its ruling, the Court said Loughry may retain the initial $350,000 disbursed under the pilot program.

"There is no constitutional problem with West Virginia providing a fixed contribution amount to publicly financed candidates. However, political speech rights are violated when West Virginia provides matching funds to publicly financed candidates based on the amount spent by privately financed candidates," Ketchum wrote.

Noting that the case presents a "unique set of circumstances" -- a publicly financed candidate has "detrimentally" relied on matching funds provisions that are found to be unconstitutional two months before the election -- the Court said Loughry may now seek private campaign contributions.

"The campaign financing project has never been about my campaign, but about the ability of the state to hold fair judicial elections," Loughry said after ruling. "My opponent, a millionaire, (Chafin) would rather continue the practice of electing only candidates that can buy a seat on the state's high court.

"I strongly believe that we can win in November. A recent statewide poll indicates that we are in a statistical dead heat for the second seat on the court. Today's ruling will allow me to raise additional funds to match the $400,000 our campaign already has in the bank and we plan an aggressive effort over the next two months."

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