Could Arkansas get merit selection for its appellate courts? State constitution has an opt-in provision in place.

The last several weeks have seen an increased interest in merit selection for Arkansas’ judges, with the state’s Attorney General backing merit selection for at the very least the state’s supreme court (h/t Gavel Grab). Interestingly, Arkansas’ constitution has a provision contemplating such a move already in place.

Prior to 2000, virtually all Arkansas judges were elected on partisan ballots (some City Court and Police Court judgeships were either nonpartisan or by appointment of the local municipal governing body). However all that changed with the adoption of Amendment 80 which effectively rewrote the state constitution’s judiciary article in its entirety and required nonpartisan elections for the Circuit and District Courts (Amend. 80, Sec. 17) and the appellate courts (Sec. 18); City Courts weren’t discussed.

Section 18 of Amendment 80, however, included a proviso that would allow for the shift for appellate court races to a merit selection system without the need for another constitutional amendment. Instead under Section 18

[T]he 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

One such effort was launched in 2011 as SB 744 (prior coverage here). That bill would have put the question of merit selection for the Court of Appeals only at the next general election. It was never heard in committee.

The prospect of merit selection also came up in 2013 when members of the legislature attempted to curtail or repeal the Supreme Court’s rule making power after that court struck down a tort reform law as infringing on the rule making power of the court (prior coverage here). HJR 1005 would have been a constitutional amendment that covered the Supreme Court only and explicitly prohibited the justices of that court from engaging in partisan/party activity. That plan went nowhere.