The NAACP Legal Defense and Education Fund filed a federal lawsuit in Little Rock today that says the method of electing judges to the Arkansas Court of Appeals and Arkansas Supreme Court discriminates against black voters.
The Arkansas Supreme Court has seven members elected statewide. The Court of Appeals has 12 judges, with 10 elected from five two-judge districts and two single-member districts. No black person has ever been elected to the Supreme Court, though some have served by appointments. The Court of Appeals has one black judge, Waymond Brown in District 7, a one-judge district drawn with a high percentage of minority voters.
A Defense Fund release says the election processes have “denied black voters an equal opportunity to participate in the political process and elect candidates of their choice, in violation of Section 2 of the Voting Rights Act.” The population of Arkansas is about 16 percent black, a bit more than one-seventh of the total.
The plaintiffs are retired Circuit Judge Marion Humphrey of Little Rock, retired Court of Appeals Judge Olly Neal of Marianna, Ryan Davis of Little Rock, a director of a UA Little Rock program for children, and two organizations dedicated to racial justice, the Christian Ministerial Alliance and Arkansas Community Institute.
Arkie Byrd of Little Rock and Shearman and Sterling, a global law firm based in New York, are the plaintiffs’ lawyers.
Natasha Merle, senior counsel at the Defense Fund, says the method of election dilutes black votes. Said the release:
Black residents comprise nearly 16 percent of Arkansas’ population, are geographically concentrated within the state, and consistently vote together in contested elections. But the methods for electing judges to the state’s two highest courts deprive Black voters from a fair opportunity to elect their candidates of choice. As a result, no Black candidate has ever been elected to the Arkansas Supreme Court.
“This case is about finally providing an opportunity for Black voters in Arkansas to elect our preferred judges,” said Marion Humphrey, a Plaintiff in the lawsuit. “We simply have not had that opportunity and changes to the process of electing the state’s highest judges will contribute significantly to providing justice and fairness under the law.”
LDF has for decades advocated on behalf of Black voters in Arkansas. In the 1990s, LDF successfully challenged Arkansas’s method of election for trial court judges in Hunt v. Arkansas. That case resulted in the creation of fair electoral methods for trial court judges. It also led to the election of eight Black trial level judges. In 2017, LDF won a similar lawsuit against Louisiana state officials, where an at-large voting model has prevented Black voters from having a fair opportunity to elect candidates of their choice to a state court.
Read the full complaint here.
The Court of Appeals was established in 1978 after adoption of a constitutional amendment. It originally had six judges and has been doubled since. A 2003 law established the seven districts. The Supreme Court had three justices when established by the 1874 Constitution, but has grown with the state’s population, reaching seven in 1927.
A touch of irony: A number of people in the state have chafed at the terms of the Hunt decree that opened the door to election of more black judges. There’s been talk, but no action, of someone going to court to seek to have the Hunt decree no longer operative. The theory is that the world, according to some recent U.S. Supreme Court law, is “post-racial” and affirmative steps taken in support of equalizing opportunity for blacks amount to reverse racial discrimination. There’s a strong thread of this in school law today, with, for example, the state of Arkansas arguing in court that segregation may no longer be considered in school assignment.
I’ve asked the attorney general for comment. That office will defend existing Arkansas law. (Presumably.)
UPDATE from her office:
The Attorney General is reviewing the complaint and considering next steps.