Concurrent voting poses potential for loopholes

CHARLESTON — Anyone running for West Virginia’s newly opened state Supreme Court seat will need to sprint.
The filing period for the seat vacated by retiring Justice Menis Ketchum begins Aug. 6 and ends Aug. 21. Candidates will be on the ballot for the Nov. 6 election.
But there’s another catch: Because it will be a special election happening concurrently with the regular election, it opens a possible loophole for candidates to be on the ballot more than once.
That provides a potential free shot for officeholders who may want to remain on the ballot for their current positions while testing the waters for a Supreme Court candidacy.
That would not apply to those who already hold judicial offices because of codes of conduct.
“But it’s not clear in code right now — we haven’t made an official determination — whether or not a currently sitting member or current candidate for another office can actually run for the judicial vacancy at the same time,” said Donald “Deak” Kersey, elections director and deputy general counsel for the Secretary of State.
“Some people on one aisle say, ‘Well, code looks like it says you have one election — that’s the November general election — but because of this vacancy, you have to have a concurrent election to fill the judicial vacancy.’ So some people interpret that concurrent provision to mean it’s a separate election, just held at the same time.
“Others look at code and say ‘It’s pretty clear here. You can’t run for more than one office during the same election.’ So we will have to make an administrative decision here to officially determine whether or not someone can do that, but we haven’t done that yet.”
That’s one reason there was a long conversation about recusals as the House of Delegates voted to begin impeachment proceedings against one or more justices.
Ketchum, who was in trouble over accusations that he used state vehicles to commute from his home and to golf trips, announced his retirement July 11, the day before impeachment proceedings began in the Legislature.
His announcement made certain there would be at least one open Supreme Court seat on the November ballot. Justice Allen Loughry is facing impeachment after being charged with 22 federal counts involving fraud and misuse of funds.
House Speaker Tim Armstead, R-Kanawha, announced in January he would not run again for his seat in the House of Delegates. At the time, Armstead acknowledged consideration of a future run for Supreme Court.
On June 26, as the House of Delegates voted on whether to enter into impeachment hearings for the Supreme Court after a series of controversies, Armstead asked if he should recuse himself from that vote. He was ruled a member of a group in a similar situation and told he should.
“I believe it’s pertinent for me to ask as one who has indicated a possible interest in running for the Supreme Court but also as an attorney who would be qualified to run for that office — to ask for a ruling from the chair as to whether I should vote on this matter,” Armstead said from the House floor.
He wasn’t the only one who wound up asking whether a possible interest in running for the court should prevent voting on the start of impeachment.
House Minority Tim Miley, D-Marion, submitted a written letter asking about whether any delegates who are attorneys should also recuse themselves. Many of the lawyers in the House asked to participate in that recusal question.
Delegate Larry Rowe, a lawyer, asked if there might be an additional constitutional bar to take out a sitting justice and then run for that seat.
Less clear is how many Supreme Court seats will be vacant. The key date is considered August 14 for an open seat to be on the ballot.
Loughry, facing the most pressure of all the justices, gave no indication he plans to resign.
Impeachment proceedings are moving at a deliberate pace and won’t necessarily conclude by Aug. 14.
After that date, Gov. Jim Justice, with the guidance of the Judicial Vacancy Advisory Commission, would likely name someone to fill any additional vacancies.
Whether elected or appointed, the new justice would serve until the next judicial election.