Jury still out on whether nonpartisan changes take politics out of judicial races

Arkansas switched to nonpartisan judicial elections in 2000 in part to take politics out of the process.

Arguably, the jury is still out on whether that happened.

Some say voters know less about the candidates now than ever. Some candidates will say they have more access to voters than before. Fewer voters are participating, statistics show, and experts note the legal community and outside interests have gained influence in those races.

And voters can still determine the political leanings of most candidates if they desire, opponents say.

Nonpartisan elections for judges and prosecutors was one piece of Amendment 80 of 2000, which passed with 57% of the vote. The amendment significantly overhauled the structure of the state's court system, such as combining circuit and chancery courts.

Rather than the partisan elections of the past, when judges had to obtain a party nomination before moving on to the general election, all judges now run in a nonpartisan election at the time of the party primaries. If no candidate receives a 50% plus one vote majority, then the top two finishers face off in a run-off at the November general election.

Voters aren't required to vote in a political party's preferential primary in order to be able to vote in nonpartisan judicial elections.

Supporters of the amendment argued a shift away from partisan elections for judges and prosecutors in the state would also modernize the courts by lessening the public perception judgeships are overtly political offices.

"I think it has been a massive failure," said Rep. Robin Lundstrum, R-Elm Springs. "I think we know more about what's in our Snickers bar than we know about what we're voting on when it comes to judicial elections," she said. "I think it started out as a very noble thought, that judges could be above it all, above the fray, but I think it's been just the opposite."

Washington County Circuit Judge Mark Lindsay has seen it both ways in his career and thinks having nonpartisan judicial elections allows candidates to meet more potential voters than when candidates ran with party affiliation.

"My first election was in 2000, which was the last election that judges ran on a party ticket, and I've been elected three more times," Lindsay said. "I do think the nonpartisan is better for this reason: When you run on a party ticket, you're only going to get to visit with one party. When you run as nonpartisan, both parties welcome you and want to hear what your qualifications are and why you think you ought to be elected."

Nonpar­tisan elec­tions are used to select judges to trial courts in 15 states. Another eight states have partisan elections, according to BallotPedia. Supreme Court justices are elected in nonpartisan elections in 13 states. Twenty states and the District of Columbia have various appointment systems.

Amendment 80 also gave an option to eventually switch from nonpartisan election to merit/commission-based selection. The amendment gave the Legislature the right to place on any general election ballot the question of changing the elections from nonpartisan to merit/commission selection for the Supreme Court and the Court of Appeals. That hasn't happened even though Gov. Asa Hutchinson backed the idea.

In 2015 and 2017, constitutional amendments were proposed to create an appointment system for Supreme Court justices. They both died in legislative committee.

Back to the future

Lundstrum proposed in the last regular legislative session to amend the state Constitution and go back to partisan elections for Supreme Court justices, Court of Appeals judges, Circuit Court judges and District Court judges. The proposal was House Joint Resolution 1019 of 2021. The measure didn't get out of the House State Agencies and Governmental Affairs Committee but had 35 co-sponsors.

Canon 5A of the official Code of Judicial Conduct in Arkansas says a candidate for judicial office shall not "make pledges or promises of conduct in office other than the faithful and impartial performance of the duties of the office; [or] make statements that commit or appear to commit the candidates with respect to cases, controversies or issues that are likely to come before the court."

Lundstrum said judicial candidates often short-change voters when campaigning by hiding behind an extreme interpretation of that rule.

"I think judicial candidates can answer questions without revealing how they're going to rule on a particular issue," she said.

Janine Parry, a political scientist at the University of Arkansas, said nonpartisan elections take away one of the few remaining clues for voters in judicial races, and that hurts voter interest.

"People already have less information the further down the ballot you go," Parry said. "If you take the party label off, as we did, and you kind of consider how cloaked judicial races are in general -- they have a professional code of conduct that prevents them from speaking on almost anything substantive -- you have really very little to go on, which is why, traditionally, voters tend to take a walk on those."

A view from the bench

Lindsay said he doesn't believe the change has removed all the politics from judicial elections.

"Candidates can still use the word conservative and say, progressive," Lindsay said. "You're not prohibited from using certain terms of art that describe your philosophy, but you can't just say I'm a Republican or I'm a Democrat, the Green Party or whatever."

Lindsay said it's more important races for the higher courts in the state be nonpartisan than for the lower level courts.

"My personal belief is that district judges and circuit judges don't make law, they interpret it and enforce it," Lindsay said. "But, the Court of Appeals and the Supreme Court, in particular, can make law -- they can't make statutes but they can, in effect, change the way laws are interpreted through their opinions."

Arkansas has also seen hyper-polarization and a 180-degree flip-flop, politically speaking, in the two decades since the change to nonpartisan judicial elections, Parry said. That has led to some judicial campaigns making not-so-subtle political appeals to voters.

"In those state Supreme Court races that are higher profile, you do see some thinly veiled appeals to partisanship," Parry said.

The Arkansas Democratic Party opposed the change to nonpartisan judicial elections because it had a political advantage at the time, according to Parry.

Holding the nonpartisan general election in conjunction with the primaries was a nod to Democrats at the time to get them to support Amendment 80, according to Jay Barth, emeritus professor of political science at Hendrix College.

"So, it's really just a very odd system, all tied back to some compromise that had to be created to get everybody on board, put it on the ballot and then get it passed," Barth said.

Democrats, the dominant party at the time, were looking at losing status and substantial filing fees from judicial candidates, who mostly ran as Democrats, Barth said. Having the election at the time of the primary allowed them to maintain some advantage because many more people then voted in the Democratic primary than the Republican.

"I think there was some need to create what was, at that time, an ongoing benefit to Democrats but now, because of the change in the state, we're in a very different spot," Barth said. "Now, 20-plus years later, the state's done a 180 and it's actually advantageous to candidates who have ties to the Republican Party because the participation in primaries is skewed in such a Republican direction because of the change in the state."

The academic take

Parry said the changes have resulted in judges being elected by fewer voters than when they were on the general election ballot because voter turnout goes down with nonpartisan elections, according to most scholarship on the subject.

Prior to the change to nonpartisan, more people, 45,871 (66.4%), voted in a chancery judge's race in Washington County at the 1998 General Election than in the presidential race that year, 43,927 (63.5%). After the change and moving the election to the spring, the percentage of registered voters participating in electing judges in 2012 was about 19% in Washington County and 21% in Benton County.

In 2016, the percentage of registered voters participating in electing the chief justice of the Arkansas Supreme Court was 35.9% in Benton County and 33.3% in Washington County.

The race for chief justice in 2020 saw 25.3% of registered voters participating in Benton County and 26.9% in Washington County. The same year, a runoff for a circuit judge seat in Washington County, during the November general election, saw 60% of eligible voters participate.

Fewer voters increases the influence of those who have an interest in judicial elections, such as bar associations, Parry said. It's not necessarily negative if they're the people with the most information, she said.

Lower turnout occurs with school board races and city council races where there are no party labels. Parry pointed as an example to a recent special election in Fayetteville for a vacant alderman position in which fewer than 1,000 people voted.

"This wasn't the stated purpose of taking party labels off the ballot, but I believe strongly it was the intention of those who pushed for it, which was to increase the influence of the legal community in deciding who judges were, and it had that effect."

Parry said the legal community's influence has been diminished in recent years because the growth of out-of-state money, particularly in state Supreme Court races. That's taken it out of the hands of the Arkansas Bar Association and put it in the hands of people who are interested in judicial races from around the country, she said.

"The explosion of unregulated money into American politics including to judicial elections was something I doubt that the Arkansas Bar Association anticipated back in 2000," Parry said.

States with nonpartisan elections see less campaign spending than states with partisan elections, historically. But, since campaign finance law changes, a higher portion of that money has come from out-of-state, Parry said. So, nonpartisan elections tend to attract less money overall, but a higher proportion of money is coming from outside the state's borders. That's the national trend, and it happened in the Arkansas Supreme Court races last time around.

Voters were bombarded with attack ads paid for by out-of-state groups in the 2020 Supreme Court race between Barbara Webb and Morgan "Chip" Welch. Supreme Court Justice Courtney Goodson was hit with numerous attack ads paid for by outside groups in her 2018 reelection campaign.

A proposed bill to require the disclosure and reporting of noncandidate expenditures in appellate judicial races died in the state House in the 2021 regular session.

In 2018, two Arkansas Supreme Court races saw more than $1 million in outside spending flow into the state; much of it was used for attack ads.

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Switching to nonpartisan

In 2000, Arkansas passed Amendment 80 with 57% of the vote, and the state’s system of selecting prosecutors and judges changed in a variety of ways:

Judicial elections were changed from partisan to nonpartisan

Circuit, chancery, probate and juvenile courts were merged into the circuit court system

All limited jurisdiction courts were merged into the district court system

Term lengths of circuit court judges increased to six years, and terms of district court judges and prosecutors were set at four years.

Source: NWA Democrat-Gazette