Commission hears about N.C. 'voter-owned' elections

By Lawrence Smith | Sep 2, 2009


HUNTINGTON - Should West Virginia implement public financing for judicial elections, North Carolina might serve as a model.

Campaign finance was the main topic of discussion during the first public hearing of the Independent Commission on Judicial Reform held Aug. 28 at Marshall University. Included as speakers was one of the architects of North Carolina's "voter-owned" elections law, and one of the appellate court judges who says she benefited from it.

Before going into detail about the state's Judicial Campaign Reform Act, Damon Circosta, executive director of the North Carolina Center for Voter Education, said "What's good from the goose, may not be good for the gander." However, since JCRA was passed in 2002, despite some grumblings, and legal challenges, it has been accepted as "mainstream" by judicial candidates.

According to Circosta, JCRA did three things - made elections for the North Carolina Court of Appeals, and Supreme Court non-partisan, provide all registered voters with a guide to the candidates' experiences and qualifications and create a public campaign fund. Much like the Presidential campaign fund, Circosta said the JCRA fund is something a candidate must opt into.

"We wanted to make sure it was an option not an obligation," he said.

Money that goes into the fund comes mostly from two sources, a $3 check-off on state tax returns, and a surcharge assessed on members of the North Carolina Bar. Some additional funds come from donations made by individuals and foundations.

One of the early legal challenges to JCRA was on the attorney surcharge. Though it was upheld, the judge ruled the individual attorney could designate whether he or she wanted to money to go to either the fund or toward publication of the voter guide.

To qualify for public funds, Circosta said a candidate must meet certain thresholds. Among those are raising an amount determined by the state Board of Elections before the primary in which a portion must come from 350 registered North Carolina voters contributing between $10 to $500.

JCRA, Circosta said, does not speak to independent political expenditures including whether a candidate who's benefiting from one has an affirmative duty to disavow it. Nevertheless, in the seven years it's been in place, JCRA has achieved its purpose of reducing the amount of money spent on judicial elections each cycle

"It protects your judges," Circosta said.

Following Circosta was Wanda Bryant, a judge on the North Carolina Court of Appeals. The Court of Appeals is the state's only intermediate appellate court consisting of 15 judges who serve for eight-year terms.

Bryant compared and contrasted the two elections in which she ran for Court of Appeals both before and after JRA. She said "The difference between the two is amazing."

Following a vacancy on the court, Bryant was appointed by then-Gov. Mike Easley in 2001. Though she ran to retain the seat in the 2002 election, she lost.

The campaign was a grueling one, she said, mostly due to the time spent raising money. According to Bryant, she was soliciting money up to election day.

"It's one of the most distasteful things we have to do in running for office," Bryant said.

Following another vacancy, Bryant was again appointed by Easley. When she ran for retention in 2004 she decided to opt into the public campaign fund, and, in fact, was the first judicial candidate to do so.

After meeting all the thresholds and surviving the primary, Bryant said since her campaign had more than sufficient resources, she could focus on going to all of North Carolina's 100 counties, and tell people about they should elect her without expecting a check in return.

Admittedly, Bryant said prior to JCRA she did some of her fundraising in the Washington, D.C.-area where she previously worked as an assistant U.S. Attorney. However, because under JRCRA judicial candidates have to draw a base of support from residents, Bryant says voters feel empowered.

"It has really helped to dispel the big-money influence," Bryant said. "Voters do not identify you as a Democrat or a Republican, but as an independent judge."

Prior to Circosta and Bryant, the Commission heard from Sen. Jeff Kessler (D-Marshall), chairman of the state Senate Judiciary Committee, about a pilot project for the two state Supreme Court up for election in 2012 that would've been a test-run for publicly financed judicial elections. According to Kessler, SB 311 passed the Senate, and was referred out of the House Judiciary Committee, but later pulled at the request of Gov. Minchin who wanted to wait until the had time Commission to study it.

Under the bill, the money used to finance the fund would come from multiple sources. Among them would be, like North Carolina, an attorney surcharge, money from the state's unclaimed property account and a fee on cases filed in the Supreme Court. Depending on the structure of the filing fees and surcharges, Kessler estimated between $2 and $4 million could be raised by 2012.

Though Kessler said "You can't take the politics out of politics," he said confidence can be restored to the judiciary by taking the money out it.

Toward the end of the hearing, the Commission heard from Steve Canterbury, the Supreme Court administrator. He said, at this point, the Court takes no position on financing of judicial elections.

However, he noted that a filing fee would be a first, as West Virginia's is the only state high court not to charge one. As an aside, Canterbury said the appointment of at least one non-lawyer to the Commission would have been nice, "just for appearances sake."

During the public comment section of the hearing, representatives of the West Virginia League of Women Voters, West Virginia Citizens Action Group and the West Virginia Coalition for Clean Elections voiced their support for some sort of publicly financed elections.

The Commission will hold its next hearing on Monday, Sept. 21 at the WVU College of Law. The topic will center on judicial selection, and former U.S. Supreme Court Justice Sandra Day O'Connor, the Commission's honorary chairwoman, is expected to speak.

The Commission will hold its last hearing on Tuesday, Sept. 29 at the State Capitol, and focus on judicial organization.

It is expected to release its final report and recommendations to Minchin by Nov. 15.

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