Election 2016: Arkansas Issue 1 – why does Arkansas elect Circuit Court Clerks anyway?

On the ballot this November in Arkansas is Issue 1, a constitutional amendment that would make several changes to the terms, election, and eligibility of elected officials. Among other things, it defines what is an “infamous crime” that would prohibit someone from holding elected office.

For court purposes, however, there is one key element: Clerks of the Circuit Court will see their terms in office extended from 2 years to 4 years.

The Arkansas Circuit Court is the court of general jurisdiction for the state and the Clerk of the Court is elected as a separate office that handles not only the records of that court but is also the county recorder of deeds and other instruments. Most states continue to elect their general jurisdiction clerks, as will be discussed in a future post.

The history of elected clerks of court is a rich one and reflective of the movement in the early 1800s towards “Jacksonian democracy.”  Prior to the Revolution, court clerks tended to be appointed either by the Crown or, in some instances, by the judges of the particular court. The U.S. Constitution, for example, hedged on this question in terms of the President, providing the President shall have the power to make appointments generally

but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

And thus the clerks of the federal courts are appointed by the judges of their respective courts, starting with the Judiciary Act of 1787.

That the Supreme Court, and the district courts shall have power to appoint clerks for their respective courts, and that the clerk for each district court shall be clerk also of the circuit court in such district…

Many if not most state constitutions adopted in the immediate aftermath of the Revolution maintained a similar pattern of having the clerks of court appointed by the Governor or judges.

In the period from roughly 1828 to 1854, traditionally referred to as the period of “Jacksonian democracy”, there was a push to provide that all or almost all positions of government authority should be vested in elected officials, not in appointed “elites”. The result was that many offices which were appointive became elective and with short terms.

In the case of Arkansas, the state’s first constitution (1836) reflected this duality. The Clerk of the Chancery Court would be appointed by the chancellors of that court. However, the office of Clerk of the Circuit Court would be an elective one with only a 2 year term (Art. VI, Sec. 7)

The qualified voters of each county shall elect a clerk of the circuit court for their respective counties, who shall hold his office for the term of two years; and courts of chan­cery, if any be established, shall appoint their own clerks.

The Second or Secession Constitution (1861) kept similar language (Art. VI, Sec. 9) that was then adopted verbatim into the Third Constitution (1864) also as Art. VI, Sec. 9

and the qualified voters of each county, shall elect a clerk of the circuit court for their respective counties, who shall hold his office for the term of two years, and until his successor is elected and qualified-the first election of circuit clerks, under this constitution, to be held at the general election next before the expiration of the commissions of the present incumbents. Courts of chancery, when established, shall appoint their own clerks.

Interestingly, the Fourth Constitution (1868) makes no mention of Circuit Clerks or their selection. There are indications the office may have converted at this time to an appointive one as many offices were required to become appointive under Reconstruction; judges in the state who had been elected under the 1864 constitution were now in 1868 appointed by the Governor.

The fifth and current constitution (1874) one again provided for elected Circuit Clerks (Art. VII, Sec. 19) and even moved to make the clerk of the chancery court elected (Art. VII, Sec. 44). Chancery courts were eventually abolished and merged into the Circuit Courts (Amendment 80). It is this 1874 provision of “two years” that is subject to amendment this year.

The clerks of the circuit court shall be elected by the qualified electors of the several counties, for the term of two years…

The judge and clerk of said [Pulaski chancery court] shall hold office for the term of two years, and shall be elected by the qualified voters of the State…

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