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Published: Tuesday, November 09, 2010
Page: 1A

Both of the candidates in this year’s state Supreme Court race said that while their race was civil, the coming 2012 court race may not be so polite.
Democrat incumbent Justice Thomas McHugh narrowly defeated Republican challenger John Yoder by a 51-49 percent margin in a race that was overshadowed this year by the special election for U.S. Senate.
A surprising factor in the race was that Yoder came close to unseating the incumbent Supreme Court justice, who was appointed to the bench following the death of Justice Joseph Albright, having spent less than $6,000 on his statewide campaign.
McHugh had spent nearly $230,000 on the race according to the most recent campaign finance filings.
And even with his small amount of expenditures, Yoder actually received more votes, at 229,941, than well-financed Republican Senate candidate John Raese, who totaled 228,326.
“Even though I did not win I was very pleased with the outcome,” Yoder said. “I kind of consider this race to be a warm up for 2012 race.”
He said he thought the outcome of his narrow race may have been affected by the competitive race waged between Raese and Gov. Joe Manchin.
“Quite frankly, had there not been a special election, I might have won this,” Yoder said.
“I think what you see from that is that Democrats turned out heavily to vote for Joe Manchin and in the process of doing so voted straight party ticket.
“If it had not been for that race the straight party voters may have not had a reason to turn out because they were disenfranchised with President Obama and there just were not that many races that drew anybody’s interest.”
McHugh, who said he would not run again when his current unexpired term ends in 2012, also said the race was challenging and overshadowed by the senate contest.
“It was a difficult election,” McHugh said. “Ours was just different because nobody was paying attention to it.”
But while McHugh has said he will not run again, Yoder says he will be on the ballot again in 2012.
“I’m definitely planning to run again in 2012,” Yoder said. “Of course I was hoping to win this race but I knew it was an uphill battle against a popular incumbent candidate who’d been elected before.”
Yoder has also said he plans to take advantage of the public financing that will be available to Supreme Court candidates in 2012.
“My weakness in running in judicial races has always been raising money,” Yoder said, “because I find it repugnant to try to raise money from attorneys who practice in front of me.”
The statute requires that candidates wishing to use public financing in 2012 must first come up with $50,000 in individual contributions of $100 or less in order to get the state funding.
Yoder said that the close race from this year will help him in getting those contributions.
“I think that people are not happy with the state Supreme Court and if I’d gotten my message out a little more I’d clearly won.”
Yoder said that he thought voters responded well to his position against the current partisan system of electing judges. He favors either a non-partisan vote or merit selection system as a means to keep politics away from judicial races.
“I think that resonated very much,” he said, “and I think that voters view the Supreme Court as being one of the problems with our poorer business climate and the lack of jobs in West Virginia because of the anti-business rating of the court.”
McHugh was not convinced that merit selection or non-partisan elections would be a way to solve the dilemma surrounding judicial elections.
He pointed out that in the recent election, Nevada voters turned down a merit selection system in their state, and three other judges in Kansas were not reelected in retention elections.
“The difficulty for any judicial race is how are you going to structure it?” McHugh said.
“Nobody’s going to give up their right to vote for a judge,” McHugh said. “But when you say that it’s also a tough situation because you’re not going to run like other candidates. You’re not going to promise things.”
McHugh says the nature of a judge’s job keeps them from issuing promises to voters.
“It really makes it tough because you don’t want judges making decisions based upon popularity of the decision, you want a judge to make a decision based upon the wisdom of the decision,” McHugh said.
But both men said they received positive feedback from voters regarding the tenor of their race, which was a contrast to the more divisive races around the state and previous Supreme Court elections.
“I had a lot of people comment on how civil the race was,” Yoder said. “Quite frankly I think I’ll get a lot of support because of that.”
“We kept to what we had indicated,” McHugh said. “I had people tell me, yes, they did appreciate that.”
However, both agreed the coming election, which will have both McHugh’s seat on the court as well as Justice Robin Davis’ seat up for election, will most likely not be as civil.
“It’s not going to be the same type of race,” McHugh said.
Davis has yet to indicate whether she’ll seek an additional 12-year term on the court or perhaps another office.
That could open up a race for two seats on the state Supreme Court in which no incumbents are running.
“I’m afraid that this coming race will not be as civil as the one between Justice McHugh and I, because we both agreed to keep it civil,” Yoder said. “I will do my part to keep it civil. Justice McHugh and I got along fine but I think it may be more difficult in 2012.”
McHugh said he urges any candidates considering running in 2012 to do their best to keep it a clean race.
“I think you come out of it, regardless of whether you win or lose, with a semblance of sanity.”
Contact writer Jared Hunt at or 304-348-5148.

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