The NAACP Legal Defense Fund has filed a federal lawsuit attacking Arkansas’s scheme for Supreme Court and Court of Appeals judicial elections as racially discriminatory. The state argues that the case should be dismissed. Friday, two days before the International Day of Democracy, the plaintiffs forcefully argued in response that the state is wrong. The case will go to trial before Judge James Moody if he doesn’t grant the state’s motion to dismiss.
In support of the idea that change is needed, I turn the stage over to retired Judge Olly Neal of Marianna, a civil rights legend and a plaintiff in the lawsuit
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Judges Matter & Every Voice Should be Heard
By Olly Neal
Arkansas state courts matter. Admittedly, it is easy to focus on federal courts given the breakneck speed with which this President is appointing federal judges. But we would be wrong to ignore the importance of our state courts. Each year, both the Arkansas Court of Appeals and Supreme Court make decisions in thousands of cases on a wide-range of issues that affect the lives of each and every Arkansan.
State court decisions have tangible, direct effects on your daily life.
Imagine you’re facing eviction as a tenant or you’re badly injured in a car accident, appellate judges can decide whether the trial court properly threw your case out of court or whether it was wrong in deciding that your insurance company didn’t have to cover any medical costs.
These judges hold a lot of decision-making power, but the power to decide who gets on the judicial bench lies in the hands of voters. Therein lies the balance of power that was baked into our governmental structures to prevent any one voice or community of voices from being muted.
Unfortunately, Arkansas is far from a state of perfect checks and balances because who becomes an appellate judge is not currently up to all Arkansans. Black voters don’t have an equal say in who becomes a judge on these important courts.
The election of judges by diverse communities helps to legitimize our system of justice and make clear that it is intended to treat all Arkansans fairly, not just certain communities. With the voices of Black voters being drowned out, we are facing an alarming lack of diversity on the bench.
As a former circuit court and Court of Appeals judge for a total of 15 years, I know without a doubt that judges, just like any other person, bring their background, set of experiences, and perspectives to the bench.
When I entered my courtrooms, I did not leave behind my background as a Black kid growing up on an Arkansas farm. I carried with me my experiences as a Black college student organizing sit-ins to protest state-sanctioned segregation in Tennessee. I wore with pride every day my experiences as the first Black prosecuting attorney in Arkansas. But regardless of my background, my responsibility was to bring these experiences with me to the bench, while never allowing them to make me predisposed in favor of any particular party. In fact, my lived experiences equipped me to fulfill my duties as an impartial decisionmaker, applying the law to the facts in the cases before me no matter who the parties were in my courtrooms.
In a state that is about 16% Black and because diversity on the bench matters, it is alarming that there has never been a Black Arkansan elected to the Arkansas Supreme Court.
It also is alarming that Black voters are denied election after election of their right to elect a judge of their choice regardless of their race. This is not because of a lack of highly-qualified Black candidates or lack of voter participation in Arkansas. The main culprit for this shameful reality is the racially discriminatory method of electing justices to the appellate courts: at-large voting and unfair electoral boundaries.
At-large voting is a method of electoral engagement where all voters cast their ballots for the judicial position up for election that year. But unfair electoral boundaries can be drawn to minimize the voice of community members. Because the state uses these tactics, the votes of Black Arkansans are often drowned out by the votes of white voters. This is especially detrimental to Black voting opportunity since election results have shown that white voters often do not support the candidates preferred by Black voters. What this means is that even with overwhelming support, the candidates preferred by the Black community cannot win if they are not also supported substantially by white voters.
How judges are elected in Arkansas is not set in stone. It can be changed.
Black voters challenged the discriminatory method of election for Louisiana Supreme Court justices. Some justices were elected at-large, submerging Black voters (while in Arkansas, all of our justices are elected at-large). As a result of the challenge to this method, the Supreme Court was restructured, and a single-member district was created that ensured Black voters had an opportunity to elect a candidate of their choice to Louisiana’s highest court.
Decades ago, Black Arkansan voters fought to change the method of electing trial court judges and the composition of the courts immediately changed. For the first time, Black trial court judges were elected. But that did not come without us pushing for it and the same can happen now.
This is why I’m now in the fight to change the method of electing appellate judges in our state. The Voting Rights Act forbids the use of any electoral scheme, such as at-large voting, that submerges the votes of Black people in elections that a white majority of voters control.
Our federal lawsuit, Christian Ministerial Alliance, et al. v. Arkansas, et. al, seeks to create a system to ensure all voters’ voices are heard.
In our lawsuit, we propose other non-discriminatory methods of election, such as single-member districts and cumulative voting, which have all been used for decades across the country including right here in Arkansas. Ultimately, this lawsuit seeks to ensure the process for electing judges is fair and every voter has a voice, and to solidify the legitimacy of our court system—something that all Arkansans should and can get behind. The time is now for Black Arkansans’ voices to be heard when it comes to electing appellate judges.
NOTE: The Supreme Court has seven members, all white. There are 12 judges on the Court of Appeals. One is black, elected from a district drawn to have a high percentage of minority voters.
ALSO NOTE: The administrative office of the courts coincidentally announced that in observance of Constitution Day Tuesday appellate judges would be making appearances in four Arkansas high schools, including two with majority black student populations — J.A. Fair and historic Central High. All four speakers will be white judges, but two will be women, so there is that outreach to the overall student population.