The race for who will lead South Carolina’s Supreme Court — a rare election set for this winter between current Chief Justice Jean Toal and Associate Justice Costa Pleicones — has the potential for an unprecedented influence of so-called dark money.

In recent years, anonymous third-party spending has fueled the use of attack ads and other shenanigans aimed at tipping the outcomes of Supreme Court races across the country. According to a June report by the Center for Public Integrity, there were at least 10 High Court races throughout the nation in the past year where outside spending was a factor. Just across the border in North Carolina, an election this year saw secret out-of-state money and TV attack ads affecting a Supreme Court race for the first time observers could recall.

The Jan. 29 election for South Carolina’s Supreme Court chief justice, however, comes with a unique tweak: it will be the 170 lawmakers in the General Assembly, not members of the public, who will be casting the votes. The Palmetto State is only one of two states — Virginia’s the other — where legislators make the call.

Denise Roth Barber, managing director of the National Institute on Money in State Politics, called it a “weird twist” to how High Court justices are traditionally elected. That twist would also affect how outside money could be used. In other states, secret groups used money to pay for media like TV ads aimed at voters in their homes. But because lawmakers will elect the chief justice here, Barber wonders that if special interest money does attempt to influence the race how it might be spent.

Both candidates don’t expect the race to suffer from the kind of third-party spending that disrupted similar races in other states.

“We have been, thankfully, very little impacted by the plague of money-driven races that you see in other states, particularly in popular election states,” Toal told City Paper. “I just don’t see that happening here … I stand to be corrected if that ends up happening.”

For his part, Pleicones says the virtue of South Carolina’s system, where elected legislators select judges, is that money shouldn’t play a role. 

“I would, frankly, be disappointed if that happened,” he says of his own race. 

At least one state lawmaker, however, is airing concerns about the prospect.

“My fear is that special interest and outside groups, even beyond the state of South Carolina, will play too large a role in this next election,” says Bamberg County Democratic Rep. Bakari Sellers, a young attorney who is running for lieutenant governor. He also wonders just how special interests, should they get involved, might try to sway the votes of lawmakers like himself.

“The expectations are boundless. We can be lobbied directly by special interest groups. There can be ad money or ad space bought. There can be legislative ratings given,” he says. “And many if not all of those things do not belong in this election process for those who are in charge of ensuring justice.”

Since the 2010 U.S. Supreme Court ruling Citizens United v. Federal Election Commission, the issue of dark money in federal and state elections throughout the country has been well documented. But South Carolina is basically the Wild West of campaign finance because of its notoriously weak laws. Here, anyone can set up a group, raise and spend money in secret, and use the money to influence a state election without having to disclose anything — including a race for state Supreme Court chief justice.

“Dark money typically refers to the source of the money that’s spent,” says election spending watchdog Roth Barber. She calls anonymous expenditures to influence elections in South Carolina particularly “super-dark money,” or “black-hole” money, because of the state’s uncharacteristically toothless regulatory rules.

Roth Barber pointed out High Court races in other states where such secret money played a role. A few years ago in Iowa, special interest cash fueled the ouster of two justices because of their position on a ruling about gay marriage, she said. In Florida, big money was used to take on two justices who were able to combat challenges by raising funds when they normally wouldn’t have to because they were merely seeking retention to the bench.

The Institute for Money in State Politics hasn’t yet focused on anything related to the race for Supreme Court chief justice in South Carolina. But, if money does start coming in to affect it, Barber says, “No matter who is spending money and how to influence the outcome of this race, the public has a right to know who that is and where their money comes from.”

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