Arkansas: with talk of ending appellate judicial elections increasing, look at recent legislative proposals

After a costly supreme court race, several members of the Arkansas legislature as well as that state’s governor have expressed interest in ending the state’s nonpartisan elections and moving to an appointive system. I’ll be taking a look at the proposals submitted in the last several decades in Arkansas and examining what may be coming in the 2016 session.

1874 constitution

From 1874 to 2000 the state’s supreme court was elected on a statewide ballot. Art. VII, Secs. 2 & 6 of the 1874 constitution provided

The supreme court shall be composed of three judges, one of whom shall be styled chief justice, and elected as such…The judges of the supreme court shall be elected by the qualified electors of the State, and shall hold their offices during the term of eight years from the date of their commissions.

There are two key provisions with respect to these elections that continue to impact current races.

    • Amendment 29: adopted in 1928, the amendment prohibits a person appointed to fill an interim vacancy in an office from running for that office in the next election. While many states have used interim judicial vacancies to create some form of merit/commission systems (notably Minnesota) Arkansas’ provision makes such a system impossible since the person appointed would have to leave office.
    • Use of title “Judge” on ballot: For decades judges and other officials have been able to place their current office title on the ballot (“may add as a prefix to his or her name the title or an abbreviation of an elective public office the person currently holds“). Although a 2013 law (SB 694) somewhat limits the ability of interim appointed trial judges from using the title, the general rule still applies. Moreover, a person is able to use the word “Judge” even if running for a higher court. For example when she ran for the Supreme Court in 2014, Court of Appeals Judge Robin Wynne was identified on the ballot as “Court of Appeals Judge Robin Wynne.”


1980 constitution

In 1980 state voters were presented with a brand new constitution, along with an optional question on judicial selection. The optional question gave voters a choice: should appellate courts be selected by nonpartisan elections or by merit/commission based selection. 56% of voters opted for nonpartisan races, but the main question on the constitutional revision overwhelmingly failed. As a result, appellate races remained partisan for another two decades. In the years after the 1980 defeat several legislative efforts were made to move to nonpartisan and/or merit/commission based selection, but none advanced out of the legislature.

Amendment 80 (2000)

In 2000 voters approved a complete rewrite of the state’s judiciary article in the form of Amendment 80. The amendment specifically required the nonpartisan elections of appellate judges (implementing legislation was enacted as SB 789 of 2001) and allowed the legislature to refer the question of merit selection back to the voters at any time.

(A) Supreme Court Justices and Court of Appeals Judges shall be elected on a nonpartisan basis by a majority of qualified electors voting for such office. Provided, however, the General Assembly may refer the issue of merit selection of members of the Supreme Court and the Court of Appeals to a vote of the people at any general election. If the voters approve a merit selection system, the General Assembly shall enact laws to create a judicial nominating commission for the purpose of nominating candidates for merit selection to the Supreme Court and Court of Appeals.

(B) Vacancies in these offices shall be filled by appointment of the Governor, unless the voters provide otherwise in a system of merit selection.

Post-Amendment 80

Since the adoption of Amendment 80 several attempts have been made to move to a merit selection system, but none have advanced out of committee.

2011: SB 744 was limited to the Court of Appeals only and would have put the question of merit selection for that court on the 2012 ballot. I examined the bill here in 2011.

2013: HJR 1012 and HJR 1014 were placeholder bills (synopsis but not text) that were developed at a time when members of the state legislature were attempting to strip the state’s supreme court of the rule making authority given to it under Amendment 80. I examined the resolutions here. The resolutions discussed “amended the process for selecting justices of the Supreme Court” and amending Amendment 80 regarding rule making.

2015: HJR 1005 would have spelled out in detailed the creation of merit selection system for the Supreme Court only (as opposed to simply authorizing the legislature to create such a system as in SB 744 of 2011).

HJR 1015 went the opposite direction of many of these bills, reinstating partisan elections for all courts.

HJR 1016 was effectively a combination of HJR 1005 and HJR 1015: merit selection for the Supreme Court, partisan elections for all other courts.

I examined all three resolutions here and here.