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State candidate financing provision up in air

CHARLESTON, W.Va. -- In the wake of recent federal court rulings, West Virginia election officials have yet to decide whether the public-financing pilot program for Supreme Court candidates can offer additional matching funds, prompting the program's sole participant to blast the inaction Monday.

The State Election Commission voted 2-1 on Thursday to postpone addressing whether the program can provide additional money known as "rescue funds.''

The pilot program offers public funds to address concerns about judges being influenced by campaign contributions. Rescue funds are meant to aid participating candidates when they're being outspent by privately funded opponents or independent groups.

But the U.S. Supreme Court struck down Arizona's version of rescue funding for its public-financing program in June 2011. The 5-4 decision concluded that offering matching funds infringes on free speech. A federal judge in North Carolina invoked that case, known as the Bennett decision, last month to rule against a rescue-funding provision in North Carolina's program for judicial candidates.

Allen Loughry, the West Virginia program's only participant, singled out Secretary of State Natalie Tennant for blame Monday. Tennant, West Virginia's elections chief, is a member of the State Election Commission who voted to postpone a decision Thursday.

"Her unprecedented decision not to follow the law has the potential of singlehandedly destroying the pilot project in addition to negatively impacting the entire Supreme Court election,'' Loughry, a longtime Supreme Court law clerk running as a Republican, said in a statement Monday.

Tennant stood by her commission vote and her office's handling of the program while appearing before a legislative interim study subcommittee Monday. Tennant said that none of the other Supreme Court candidates had spent enough as of May 20 to bring the rescue-fund provision into play. These non-participating candidates must report updated spending totals to Tennant's office next month.

"There have been no trigger events to cause any other action other than to stay with the regulations and the deadlines,'' Tennant told the House-Senate judiciary subcommittee assigned to study election-related issues.

She added, "That was my reasoning in saying, `We don't have to make that decision yet.'''

Loughry argues that neither federal ruling applies to West Virginia. During Thursday's State Election Commission meeting, Loughry said the Arizona decision does not address judicial elections, as that state's program is for legislative and executive branch candidates. He also told the commission that the North Carolina ruling came after officials there who lost that case failed to argue their program differed from Arizona's or did not burden free speech.

"No court has decided this issue,'' Loughry said. "No court has concluded that judicial elections should be treated the same as the two political branches.''

Following the Arizona decision, Tennant sought a legal opinion from West Virginia Attorney General Darrell McGraw, who concluded that it voids the state's rescue-funds provision. Loughry questioned whether her office should rely on that advice, noting to the commission that a 2006 book he wrote about West Virginia political corruption includes a chapter about McGraw and his fellow-politician brother.

"That in and of itself creates somewhat of a conflict, given the fact that I am the only candidate participating in this program,'' Loughry told the commission.

Chief Deputy Attorney General Fran Hughes said the 2011 legal opinion had nothing to do with any candidate or personality.

"We would hope that he doesn't continue his unsubstantiated claims against the West Virginia attorney general's office,'' Hughes said Monday.

Loughry on Monday said he singled out Tennant because she announced earlier this year that she planned to follow the attorney general's advice. Loughry called on Tennant instead to petition a court for a legal conclusion on the matter.

"Irrespective of my personal feelings about the attorney general's advisory opinion, it's irrelevant to the end result,'' Loughry said. "That does not give the secretary of state the authority to ignore the law.''

Running in a two-seat Supreme Court race, Loughry said his campaign has been left in limbo. Spending during the general election season would trigger the rescue-funds provision, as Loughry and Jefferson County Circuit Judge John Yoder were unopposed in the GOP primary. But the six Democratic candidates spent $1.7 million on their primary, making it the most expensive contest on the May 8 ballot, surpassing even the race for governor. Such hefty spending has marked several recent Supreme Court elections.

Loughry said the sooner the commission reaches a decision, the sooner he can decide whether to withdraw from the pilot program and raise funds as the other candidates are.

"I'm just very frustrated with the entire situation,'' Loughry said.

 


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