Election of Arkansas Supreme Court justices has roots for now

Legislator: Merit-selection bid idle

Arkansas Supreme Court Chief Justice Howard Brill (second from left) listens Wednesday during a hearing on judicial campaigns held by the Senate Judiciary Committee in Little Rock.
Arkansas Supreme Court Chief Justice Howard Brill (second from left) listens Wednesday during a hearing on judicial campaigns held by the Senate Judiciary Committee in Little Rock.

Renewed efforts at altering the dynamic -- or existence -- of the state's Supreme Court electoral races are likely on life support for now, according to a state Senate committee chairman.

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Justice Karen Baker speaks against ending elections for the Supreme Court during her testimony Wednesday in the Senate Judiciary Committee hearing.

After an hourslong hearing on Wednesday where state justices, judges, attorneys, activists and lawmakers weighed in on the merits of proposals that would eliminate campaigns for the state Supreme Court and require independent "dark money" groups to report their finances, Sen. Jeremy Hutchinson said it was clear that neither legislative proposal would make either of the coming legislative sessions.

"It's the beginning of a process ... but unless consensus develops quickly, I doubt it'll be put on the call [for the special sessions]," Hutchinson said. "It's good that there's consensus that there's a problem. ... At least most people acknowledge that."

Hutchinson, R-Little Rock, heads the Senate Judiciary Committee and called the meeting to discuss, among other things, a proposal for a constitutional amendment that would end election of the state's top judges in favor of a merit selection system.

Arkansas is one of 21 states that elects its Supreme Court justices, according to the American Bar Association.

Also debated was a proposal from Rep. Clarke Tucker, D-Little Rock, that he brought back after its defeat during the 2015 legislative session, after watching out-of-state groups flood the March 1 Supreme Court races with negative advertising.

The proposal concerns so-called dark-money groups, which can spend unlimited amounts on election ads but do not have to disclose the sources of their money.

Both Hutchinson and Tucker wanted to see Gov. Asa Hutchinson include the proposals in one of the special sessions. The governor has not ruled out including either and supports a merit-based selection system for state justices.

During Wednesday's meeting, both proposals had goodly amounts of support and opposition from a range of interests.

Justice Karen Baker, Pulaski County Circuit Judge Wendell Griffen and the head of the Arkansas Trial Lawyers Association, Bob Edwards, all spoke against ending Supreme Court elections, which have been nonpartisan since the passage of Amendment 80 to the state constitution in 2000.

The governor and others have argued that such races are "low information" ones in which judicial-candidate rules restrict how a campaign can be conducted, the result being that races come down to name identification and are subject to undue influence to outside groups with big advertising budgets.

Griffen -- who has campaigned to be a judge at the circuit and appellate level -- said voters, and not some committee appointed to pick judges, have "merit" in voting.

"'Merit selection' is a misnomer," Griffen said. "It does not make sense to have the people with the longest terms have the least amount of democratic input." Justices serve eight-year terms.

Edwards said that if a jury of peers can weigh in on key legal disputes, surely they should weigh in on their own judges.

Comparing the Senate meeting to a courtroom, the attorney pointed to the seal of Arkansas as evidence.

"'Regnat Populus' is Latin for 'The People Rule,'" Edwards said.

Sen. Terry Rice, R-Waldron, also voiced opposition to idea of merit selection, saying that the last thing voters he's talked to want is to concede their right to vote to a committee of lawyers to pick a judge among themselves.

"I don't see an appetite for this," Rice said. "I look at the appointment process, and there may be fewer people to influence. ... Voters get it right more than they get it wrong."

Another committee member, Sen. Linda Chesterfield, D-North Little Rock, said she would find it difficult to take away a voter's right but that the last few election cycles have demonstrated clearly something has to change.

Tucker's campaign-disclosure proposal would require groups engaged in "electioneering" ads or mailers to register with the secretary of state's office much as candidate committees and other groups do.

It also would require the groups to disclose the source of their funding. Tucker pointed to an ad run against Justice Courtney Goodson -- one that a group called the Judicial Crisis Network spent more than $600,000 on during the March 1 election -- as the type of advertising that would be subject to reporting.

"What is at stake is the integrity of our democracy, not just judicial elections," Tucker said. "This is a low form of communication. ... Our political debate does not need to devolve to this level."

Edwards of the trial lawyers group agreed, saying that electing judges isn't the problem. The problem, he said, was allowing outside groups to step in and anonymously spend as much as they want to influence an election where voters have little information about the candidates. He called the increasingly common campaign practice a "threat to our freedom."

"There is no accountability," Edwards said. "In the last two election cycles ... three [Supreme Court] races ... unreported money is 3-0. They're undefeated."

Several activists took issue with Clarke's measure, arguing that such legislation would impinge on a citizen's right to free speech.

David Ray, director of the Arkansas chapter of Americans for Prosperity -- a conservative group that advocates for limited government -- said private citizens could be subject to threats, or worse, if their financial support of a political or social group became subject to public scrutiny.

"This is a proposal that would stifle the right to associate," Ray said. "People use terms like 'transparency' and 'sunshine.' These terms exist ... so citizens can know what government is doing. ... Transparency is for the government. ... Privacy is for its citizens."

After the meeting, Sen. David Burnett, D-Osceola, said that he is sponsoring Clarke's legislation. The former judge said he doubted any change to judicial elections would have enough support to make Hutchinson's call.

"I don't think it's got a prayer to get out of [our] committee," Burnett said.

Metro on 03/31/2016

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