This article originally provided by The Herald-Dispatch

April 8, 2008

Candidates, unions seek dismissal of W.Va. electioneering law challenge

By LAWRENCE MESSINA
The Associated Press

CHARLESTON, W.Va. -- Three of the four Democratic candidates for state Supreme Court want a federal judge to dismiss a pending challenge to West Virginia electioneering disclosure laws.

Bob Bastress, Menis Ketchum and Margaret Workman have jointly intervened in the lawsuit filed by the Center for Individual Freedom.

U.S. District Judge David A. Faber granted their request Tuesday, and did the same for the West Virginia Education Association and the state's AFL-CIO. The two labor groups also sought to become parties in the case.

Based in Alexandria, Va., the center wants to air radio and television ads targeting that race before the May 13 primary. But it objects to state laws that would require it to disclose its spending and donors, and that curtail direct political spending by corporations.

The group has secured a Wednesday hearing in its bid for a preliminary order blocking public officials from enforcing the reporting requirements. With the primary five weeks away, the candidates argued they have "unique claims of prejudice that no other party in the litigation is advancing."

"This election, which will select two of the five justices, will shape both the Court's direction and the Candidates' careers for over a decade," the candidates' Monday court filings said, while noting the posts' 12-year terms.

The sole incumbent running, Chief Justice Elliott "Spike" Maynard, did not join in, saying the matter could end up before the court.

"We also don't know who the parties are and these might be people who already have cases pending in the court," Maynard said in a statement. "I would have to disqualify myself in any case they may have before the court if I became a party in this lawsuit."

Maynard has been buffeted by conflict-of-interest concerns since vacation photos surfaced in January showing him with the chief executive of a coal company with cases before the court. Acknowledging his friendship and denying any wrongdoing, Maynard has since recused himself from several cases involving Massey Energy Co.

The center has sued Secretary of State Betty Ireland, as the state's chief elections officer, and a representative of the 55 elected county prosecutors. Urging rejection of the preliminary injunction request, these defendants also seek the lawsuit's dismissal.

Challenging the merits of the center's case, lawyers for Ireland argue in filings that "the injunction would injure other very interested parties nor would the public's interests be served."

Ireland's filing further contends that the group failed to ask the Legislature to address the 2005 electioneering law during the recent session, which ended less than two weeks before the group sued.

With reporting already required of candidates, political action committees and political parties, the targeted disclosure rules apply to most anyone else who "refers to a clearly identified candidate." The center argues the law is unconstitutional because it extends beyond ads that "expressly advocate" a candidate's election or defeat.

The center has waged similar battles in Louisiana and Pennsylvania, claiming at least partial victories in each. The intervening parties' filings said a preliminary ruling was denied in the Louisiana case, and that the Pennsylvania case is pending.

The filing also said that Pennsylvania had reached a settlement with the center, until it "placed $1.2 million dollars in advertisements specifically referencing one of the candidates running in the November 2007 election for the Pennsylvania Supreme Court."

The group's preferred candidate lost that race. The center has declined to comment beyond its court filings in the West Virginia case. Among other issues, it advocates limits on lawsuits and jury awards.

Before making them parties in the case, Faber had earlier allowed friend-of-the-court filings from the AFL-CIO and the WVEA. Faber has also permitted such filings from the Ohio Valley Environmental Coalition and West Virginia's Council of Churches, Citizens Action Group and Association for Justice. The latter was formerly the state trial lawyers' group.