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    Loughry v. Tennant et al. and Callaghan v. Tennant et al.

    Loughry v. Tennant et al. and Callaghan v. Tennant et al. are companion cases in and state and federal court, respectively, in which the Brennan Center is defending a West Virginia law that provides public financing for West Virginia Supreme Court elections.

    Published: August 2, 2012

    Press release available here.

    Loughry v. Tennant et al.

    Allen Loughry is one of four candidates competing for two seats on the Supreme Court of Appeals of West Virginia.  Of the four, Loughry is the only candidate who is participating in the state’s public financing program for judicial elections. Under the program Loughry received an initial disbursement of $350,000 for his general election campaign. The statute provides that Loughry is entitled to receive additional funds if any non-participating candidate surpasses a certain spending threshold during the general election season.  A non-participating candidate has exceeded this amount, and, as of the time the suit was filed, Loughry was entitled to approximately $145,000 in additional funds.  While the State Election Commission unanimously recognized that the conditions for release of additional funds had been met, it failed to release the funding.

    Mike Callaghan, the plaintiff in the federal district court action, filed a motion to intervene in the state mandamus proceeding. The motion was denied, and Callaghan was invited to participate as amicus curiae. Attorney General McGraw also moved to intervene in opposition to the petition for mandamus, and this motion was granted. Oral argument on the mandamus petition was heard on September 4, 2012.

    The Brennan Center, along with Marc E. Williams from Nelson Mullins Riley & Scarborough, LLP filed a petition in the West Virginia Supreme Court, seeking a writ of mandamus to compel the State Election Commission to release funds owed to Mr. Loughry.

    On September 7, 2012, the West Virginia Supreme Court issued a decision denying Loughry’s request for an order compelling state election officials to release supplemental public campaign funds (see documents below).   

    The West Virginia Supreme Court concluded that judicial elections are different from ordinary political elections, and that the Court agreed there are unique and important state interests in judicial elections. The court specifically held that the public financing program’s “goals — protecting the impartiality and integrity of the judiciary, and strengthening public confidence in the judiciary — are compelling state interests.” 

    However, the Court found that the use of matching funds was not narrowly tailored, and therefore struck down the provisions. The Court concluded that it was bound by the United States Supreme Court decision in Arizona Free Enterprise Club v. Bennett, in which the Supreme Court struck down a matching funds provision in legislative and executive elections. The Court explained that “[w]hile 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,” and that “[t]he Supreme Court gave no indication in Bennett that judicial elections would be excepted from its holding."

    The Court then held that, because Loughry detrimentally relied on the program’s matching funds, he should be exempted from the public financing law’s ban on raising private contributions. 

    In a separate concurrence, Judge Wilkes (sitting by designation) wrote “to explain how judicial elections are notably different than other, policy-based elections.” Judge Wilkes emphasized that “Truly, an independent, unbiased judiciary is part of, and paramount to the success of, our general system of government.” It is an “inescapable truth that elections of judicial officers present a different set of competing important interests than elections of executives or legislators.” Indeed, “The Due Process requirements” of the United States Constitution and the West Virginia Constitution “inherently require an independent, unbiased judiciary.” Judge Wilkes concluded that while judicial independence and integrity present core constitutional concerns, the challenged statute was not sufficiently narrowly tailored to further those concerns.

    Relevant Court Documents:

    Callaghan v. Tennant et al.

    Mike Callaghan, a former state official and Democratic Party chairman, sued the State Election Commission in the federal district court in the Southern District of West Virginia.  Callaghan has challenged the constitutionality of the public financing law, arguing that he wants to donate money to a Democratic candidate, but has been discouraged by the judicial public financing program. The Brennan Center, along with our local pro bono co-counsel from Nelson Mullins Riley & Scarborough, LLP, was granted leave to intervene on behalf of our client, Allen Loughry, and is defending the public financing law’s constitutonality. 

    Relevant Court Documents:

      Petitioner Loughry’s Response to Movant Callaghan’s Motion to Intervene