CHARLESTON — With the general election just weeks away, West Virginia voters have yet to hear much from third parties seeking to influence how they cast their ballots in the state Supreme Court race.
The virtual absence of independent groups in the two-seat contest contrasts the hefty spending seen during the primary phase.
Non-candidates poured at least $800,000 into ad campaigns before May 13. That’s more than was spent by the candidates in any other statewide primary race, including the one for governor.
But the latest postings by the secretary of state’s office show no reports from groups or individuals required to disclose spending on broadcast ads that cost at least $5,000 and run within 60 days of the general election.
As the chief elections officer, the secretary of state also reports no filings required by a law that took effect Oct. 1 governing an array of non-broadcast ads with a similar price tag.
The silence appears to be part of a trend seen in at least a half-dozen other states electing judicial officials this year.
“I think that for reasons that are never really knowable, the pattern thus far is that the third-party groups are being relatively quiet at this stage of the general election cycle,” said James Sample, counsel for the Brennan Center for Justice.
But it’s also a trend that could change suddenly, Sample said. His nonpartisan group, part of New York University School of Law, has been tracking advertising by both candidates and outside groups in state judicial races across the country.
The Brennan Center’s “Buying Time” project last week noted that an Ohio group aligned with its state Chamber of Commerce nearly doubled its to-date spending in the Supreme Court race there. Sample said the advertising trend may soon give way to “massive spending late in the game, late in the cycle when voters are paying attention.”
“In judicial elections and down-ballot races, voters tend not to pay attention until the very last stretch,” he said. “It remains to be seen whether the groups will appear at the last minute, so to speak.”
At least two groups say they want to weigh in on West Virginia’s race, but object to filing disclosures. The Center for Individual Freedom and West Virginians for Life each allege that the law goes too far in requiring reports for ads that don’t literally say to “vote for” or “vote against” a candidate.
The provisions, including the Oct. 1 law, regulate ads that “expressly advocate the election or defeat of clearly identified candidates, or perform its functional equivalent.” The latter phrase applies to ad messages that “can have no other reasonable meaning than to urge the election or defeat” of a candidate, or when taken in the whole “can only be interpreted by a reasonable person as advocating the election or defeat.”
The Virginia-based center has challenged disclosure with a federal lawsuit that yielded a temporary ruling blocked reporting for all such ads except those on radio and TV. But the Oct. 1 provisions, passed by the Legislature to address that challenge, have since prompted the withdrawal of that April court order.
Rebuffed by the Fourth U.S. Circuit Court of Appeals, the center has asked for a new injunction. A judge has consolidated their pending lawsuit with one filed by West Virginians for Life also targeting disclosure.
That group wants to run a radio ad, a mass mailing and a petition drive in the race. While it considers them to fall under “issue advocacy,” not covered by the reporting provisions, the group argues in court filings that it “believes it will be subject to an investigation and an enforcement action by the West Virginia State Election Commission, and possible prosecution.”
U.S. District Judge Thomas E. Johnston has set a Tuesday hearing in the combined case. A Brennan Center official questions whether the lack of third-party ads before the general election can be attributed to the legal challenge.
“There are well-recognized state interests and the public’s right to know when it comes to knowing who is running election ads,” said Laura MacCleery, deputy director of the center’s campaign finance program. “All across the country, groups spend money on races, and they do so knowing all the while that they have to disclose.”
West Virginia
So far, third parties mostly silent in Supco race
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