A recent story about the circuit judge-elect for two southeastern Arkansas counties underlined a problem with the state’s nonpartisan judicial election system. It’s not the only one, of course, but this one has a simple legislative remedy.
Mac Norton, a Pine Bluff attorney for more than 40 years, described in a story for the Pine Bluff Commercial section of the Arkansas Democrat-Gazette his dilemma in running for a judicial position that serves Jefferson and Lincoln counties.
Norton was one of three candidates seeking that seat, and he led the balloting, held at the same time as the March preferential primaries. But he fell 578 votes short of a majority, leaving him in a runoff with another Pine Bluff attorney, Therese Free.
The complication is that the runoff was not held until eight months later, Nov. 3, the general election. In this year of the pandemic that seems like a lifetime.
Unfortunately, that’s the law in Arkansas.
Amendment 80 to the state’s Constitution, passed by the voters in 2000, changed all judicial positions to nonpartisan and also made the circuit court the unified court of original jurisdiction, eliminating chancery and probate courts. That in itself was a major undertaking to implement, which was mostly left to the Arkansas Supreme Court.
However, the General Assembly provided for the election of judges through Act 789 of 2001. That legislation set the nonpartisan judicial elections at the same time as the very partisan party primaries, ordinarily held in May. It also decreed that in case a runoff was necessary, it would not be held until the November general election.
Mike Beebe, then-Senate president pro tempore, was one of the principal advocates for that system, reasoning that because the primary runoffs generally draw a sparse turnout, a small number of people would decide judicial races. The same thing would be true if the judicial election coincided with the general election and any runoffs were held two weeks later (now four).
That system means voters get separate ballots for the party election and the judicial election.
The gap was more reasonable until Arkansas started moving its primary elections up in presidential election years, a ploy to give the state a little more clout in choosing nominees and attract national candidates. For the most part it hasn’t worked.
But it has created complications for judicial elections, for which the candidates, by law, must avoid discussing issues of importance and public interest. They don’t get much attention during the campaign, and then if there is a runoff, you have a gap of six to eight months before the campaign resumes.
Even the best signs won’t remain standing that long – not that we’d want them to.
An opinion by then-Attorney General Mark Pryor that questioned the validity of having a judicial election at the same time as party primaries was never used to challenge the system. A legislative effort to rethink the plan fizzled in 2002, which left us with the present system.
This year the 2nd Judicial District had four vacant judicial positions, but those vacancies drew only eight candidates, two for each seat. The fact that fewer candidates would seek a judgeship than, say, the city clerk’s office could be considered a problem, but at least it meant we had no runoffs. A state Supreme Court vacancy also attracted only two candidates.
Statewide, there were 10 circuit judge runoffs this year, including one for the 3rd District.
Norton, an attorney with a substantial practice, had to start handing off cases and turning down new ones down well before Nov. 3. Most litigation takes months to proceed through the court system. No one wants to hire a lawyer who will have to step down in the middle of a case.
For Norton, giving those cases away meant a loss of income, both present and future. That’s income he couldn’t recover if he lost the runoff.
Arkansas has improved the salaries of circuit court judges in recent years. The Independent Citizens Commission, which has the authority to set the salaries of public officials, recently recommended that circuit judges get a raise to $174,882 next year. That’s not chicken feed, but it’s also short of what many of the best attorneys earn in a year.
Norton won the runoff so he will cut his losses, but presumably his opponent had a similar issue. In some cases one or more candidates already have taxpayer-funded salaries, such as that of a sitting judge or prosecuting attorney.
There are already enough reasons why many good attorneys won’t consider running for judges – for example, the growing problem of dark money involvement. We don’t need the calendar to be a deterrent.
Changing the judicial elections to November, with runoffs four weeks later, would just make the problem worse for candidates with an active law practice. Therefore, the argument for electing judges at the same time as party primaries, whether in March or May, is a strong one. But the Legislature should change the judicial runoffs to coincide with the primary runoffs.
Maybe that would help the turnout.
Roy Ockert is a former editor of The Jonesboro Sun, The Courier at Russellville and The Batesville Guard. He can be reached at email@example.com.