There’s something odd about next month’s ballot in Arkansas. 

Voters are filling two supreme court seats in two separate nonpartisan elections. Neither seat’s current occupant is seeking a new term, so at first glance it may look like the cycle will add two fresh faces to the court. But of the six candidates running for these two seats, four are already sitting justices on the court—they just want to shift into different seats than their own. 

If justices who already sit on the supreme court win either of those seats, they would then need to resign from their current positions. This would create vacancies that would be filled by the state’s staunchly conservative governor, Sarah Huckabee Sanders, a reshuffling that’s poised to accelerate the court’s shift toward a solidly right-wing majority. 

“Almost inevitably, the governor is going to end up with some appointments here,” said Jay Barth, a professor emeritus at Hendrix College who has long studied Arkansas politics. “And the more she gets, the more conservative the court is likely to get as well.” 

The only two candidates not already on the court face tough odds, crushed by their opponents’ name recognition and fundraising. Each told Bolts that they’re concerned about the prospect of the governor shaping the court’s membership when justices are supposed to be chosen by voters. 

Many states select justices via elections, but then stretch the spirit of that approach. Justices in other states routinely resign before their term is up, enabling governors to name a replacement; in Minnesota, for instance, all current justices owe their seat to an appointment despite the state’s election system. As Bolts has reported, a loophole in Georgia law has even allowed state justices and other officials to maneuver to outright cancel some judicial elections.

In Arkansas, the reasons for this situation are very different across the two elections. One of the two open supreme court races this year is to replace Chief Justice John Dan Kemp, who is retiring rather than seek a new term. Three of the court’s associate justices—Karen Baker, Barbara Webb, and Rhonda Wood—are running for the open chief justice position, which is akin to seeking a promotion, since the chief justice has broad responsibilities over supervising the state’s judicial system. 

It’s not unusual for an associate justice to run for chief justice, but already sitting on the court is not a necessary stepping stone. Kemp was not on the court in 2016 when he successfully ran for chief justice. This year too, there’s a candidate running from the outside: Jay Martin, an attorney and former lawmaker, argues it’s an asset that he’s not already a justice. “I just think that we need a fresh pair of eyes on the court in the role of chief justice,” Martin told Bolts. (This race will head to a November runoff if no one tops 50 percent on March 5.)

Arkansas’ other open supreme court race is a special election that was triggered by the death last summer of Associate Justice Robin Wynne. It pits another outsider to the supreme court—Carlton Jones, a lower-court judge—against another sitting associate justice, Courtney Hudson, who is attempting to switch to the open associate justice seat. (With only two candidates in this race, one of them is sure to win outright in March.)

There’s no promotion at play here; Hudson’s current seat (“Position 3”) and the seat she is running for (“Position 2”) both fill the same role. What’s different between them is the timing of their elections. 

“By running for Position 2, I can potentially serve longer as a justice on the Court and continue my work of ensuring that everyone benefits from the goodness and protection of the law,” Hudson told Bolts this week.

Switching seats would allow Hudson to spend more time on the court, circumventing the state’s retirement age by a few extra years. Arkansas rules strip justices of retirement benefits if they run for reelection past age 70 but don’t force them to resign once they hit 70; justices can finish whatever term they’re already serving without endangering their benefits, thus the exact timing of their terms determines when they must retire. 

For Hudson, these are all considerations for a very distant future since she is only 51. Even if she stayed in her current seat, the earliest she’d have to retire is 2042. But if she succeeds at moving into the new seat this election, she’d be allowed to run as late as 2038 and serve out a final eight-year term until 2046—a potential four additional years on the court.

Jones, the lower-court judge challenging Hudson for the open seat, told Bolts in an interview that Hudson’s motivation for running was a “personal want,” comparing it unfavorably to what he called her three colleagues’ “legitimate reason” to run for chief justice. He added that a vacancy created by a Hudson win would be an “artificial opening” because of how unnecessary it is, and that this would betray the selection system that allows Arkansans to “express their choice through the ballot box.”   

“These offices, they belong to the citizens of the state of Arkansas, and we should be doing those things that best serve them,” he added. 

Hudson dismissed Jones’ concerns about her decision, saying it’s wrong to litigate the fate of the Position 3 seat during the campaign for Position 2. She said her experience makes her the best option to fill the open seat, telling Bolts, “The job of a Supreme Court Justice is far too important to wait for ‘on the job training’ to occur.” 

Martin, who is challenging three sitting associate justices for the chief justice seat, says he does not fault his opponents for trying to “step up” into the role. But he echoed Jones’ assessment that these races, and the prospect of gubernatorial appointments looming over them, are in tension with the state’s commitment to judicial elections, a system that was ratified by voters in a 2000 ballot initiative. 

“Arkansans made the decision to elect our judges, and not have the governor appoint judges,” Martin told Bolts. “We value electing judges.” 

Wood, one of Martin’s opponents, does not share his concern, telling Bolts via email, “I believe the people of Arkansas would prefer an experienced Chief Justice with a proven judicial record versus risking the Chief Justice position on someone with no judicial experience only because some would prefer the Constitution provided an alternative method for filling the temporary vacancy.” Baker and Webb did not reply to requests for comment.

A vacancy in Arkansas sparks a special election in the next even-numbered year, and an appointed justice cannot run for a full term. So if Huckabee Sanders chooses one or two new justices, they’d serve for up to two and a half years; then, there’d be new open elections for those seats in 2026. 

After Wynne’s death, for instance, the governor replaced him by appointing Cody Hiland, who was thus barred from running for the seat in the special election this year. But Barth says he expects Hiland to be on the shortlist for a new appointment to fill any vacancies that may result from the 2024 elections, which would extend his term on the court without facing voters to roughly three years. Hiland dodged the question of a reappointment when asked by The Arkansas Times earlier this month.

And important cases are looming just over the next few years, such as the challenge to a state law passed in 2023 that has significantly weakened direct democracy in the state. Relatedly, transparency advocates are embroiled in a legal saga against the state’s Republican attorney general who has blocked some popular initiatives from moving forward; the court is likely to weigh in on the fate of several ballot initiatives in coming years.

The reshuffling of the court also comes at a time of quick ascendancy for Arkansas conservatives.

While the state leans firmly to the right, its judiciary is divided between a more centrist and a more conservative wing, with recent elections producing some victories for the former. In 2022, conservatives failed in their effort to oust two justices whom they deemed to be too moderate—Baker, who is now running for chief justice, and Wynne, who passed away last year. 

Those two justices, plus Hudson, formed an informal group of three moderates on the seven-member court. Barth says that Kemp, the retiring chief justice who was first elected in 2016, typically issued conservative rulings but sometimes sided with his more moderate colleagues. But Wynne’s death last year, and his temporary replacement with Hiland, a conservative, set up a more reliably conservative majority on the court made up of Hiland, as well as Webb and Wood, who are both now running for chief justice, and Shawn Womack, an associate justice who is running for reelection unopposed this year. 

Kemp’s retirement could leave Baker and Hudson as the only two justices left on the court who have a more moderate reputation. Both are sure to stay on the supreme court no matter how they fare this year in their effort to switch seats. But if they win their upcoming races, the resulting appointments by Huckabee Sanders may shift the court yet another step to the right. 

“It’s pretty clear that the governor will attempt to appoint conservatives in those positions, that’s been the nature of her appointments so far,” Barth said. 

In their respective interviews with Bolts, Jones and Martin—the would-be newcomers to the court—each downplayed having ideological commitments, highlighting their independence. WIth candidates for judge in Arkansas running without any party label, that all makes it risky to predict how the court would rule on any issue even if they were to win. 

Still, both have run for past offices as Democrats. Jones became prosecuting attorney in Lafayette and Miller counties, in southwestern Arkansas, running as a Democrat in 2010; he served until becoming a circuit judge in 2014. Martin, who says he’s now an independent, was a Democratic lawmaker and House Majority Leader in the mid-2000s, right before the state’s hard swing toward the GOP. He also ran for governor in 2022, coming in a distant third in the Democratic primary. 

As he now runs against three sitting justices at once, Martin embraces his outsider status as the thing that distinguishes his campaign, even as his opponents hold it against him. “The presumption that any necessary change is stalled because there is not an outsider on the court is wrong,” Wood, one of the justices on the ballot, told Bolts in an email. “The Chief Justice role is not one that you can learn on the job.” Wood says she has goals of improving the court system, such as setting up a “web portal for victims of domestic violence” to file their documents.

Martin insists that his experience is relevant to the position. A volunteer pastor in Little Rock, he points to past activities like his involvement in an expungement clinic through his church as an example of the outsider’s perspective he’d want to bring. “I think that community involvement is very important to break up the status quo,” he told Bolts, denouncing the fact that many Arkansans lack access to legal help and end up unsuccessfully representing themselves in expungement proceedings or civil disputes with landlords. 

Martin also told Bolts that his background as a former legislator would prime him to talk to lawmakers and identify funding sources in budget negotiations. He vowed to be “the chief advocate for more pro bono work for attorneys and law students” to improve the legal representation people receive. 

“We can do a better job of providing services,” he said. Of his opponents who are already on the court, Martin added, “I think that it’s just easy to maintain the status quo after a number of years.”

The post Judges Play Musical Chairs on Arkansas’ Highest Court appeared first on Bolts.

But that didn’t stop Arkansas Republicans, who this month pushed through those same stricter ballot measure rules that voters rebuffed in 2020. This time, lawmakers simply packaged their proposal into a regular bill, which sidesteps another referendum to amend the state constitution, and Republican Governor Sarah Huckabee Sanders signed it into law on March 7.

“I think the ultimate goal is to make it harder for citizens to challenge what their government does,” Senator Bryan King, who opposed House Bill 1419, told Bolts. 

King is a Republican, one of three GOP lawmakers (out of 111) who joined Democrats in voting against the bill. Days later, King filed a lawsuit to block it alongside the League of Women Voters of Arkansas, an organization that defends voting rights in the state. Their complaint argues that HB 1419 violates the rules for the ballot initiative process that are laid out in detail in the state constitution. 

“We see this bill as an attack on direct democracy in Arkansas,” says Bonnie Miller, the league’s president. “To have them go into session, pass this bill because they lost, and just say, ‘We know that you didn’t want this, that you don’t want us to restrict the process, but we’re just gonna do it anyway’—it’s ridiculous,” she added.

Currently, organizers must collect signatures from no less than 15 of the state’s 75 counties, a requirement embedded in the state constitution. The 2020 proposal that voters rejected would have increased that threshold to 45 counties. HB 1419 increases it to 50 counties. This will require organizers to set up robust signature gathering operations across most of the state, significantly raising the amount of money and resources that citizen groups need to get an initiative on the ballot. 

“Even collecting signatures in 15 counties is wildly expensive, and so for them to increase the number of counties to 50, it’s going to shut out groups like ours,” says Miller. “We’re not going to be able to afford to do this.” 

David Crouch, an Arkansas attorney who helped jumpstart several initiatives like the successful 2014 medical marijuana measure, and who is now the lead counsel in the lawsuit against HB 1419, agrees. “The grassroots people are going to be screwed,” he said.

HB 1419 is part of a broader nationwide effort by Republican politicians to undercut ballot initiatives. The Ballot Initiative Strategy Center has identified many such bills in recent years; when submitted to voters, like in South Dakota last spring, these changes are often defeated by dramatic margins. But the GOP has also pushed through bills to make the process of qualifying initiatives far more impractical, including imposing more onerous requirements for the geographic distribution of signatures gathered, which is the template that HB 1419 emulates. 

Most recently, Oklahoma’s governor chose to schedule a citizen-initiated referendum to legalize recreational weed in an unusual standalone special election, dampening turnout. The day after the measure lost, on March 8, Oklahoma’s GOP-run state Senate passed a bill that would make it easier to invalidate signatures in the future by mandating that voters use their full legal name when signing a petition (any misspellings, nicknames, or other deviations from a government ID could nullify their signatures). The bill now sits in the Oklahoma House. 

Even in this national context, the law Arkansas Republicans passed this month stands out for recycling a proposal that voters just recently rejected. But crafting HB 1419 as a regular bill to sidestep voter opposition only works as a legal maneuver if its changes to the ballot initiative process don’t require revising the constitution. 

To the bill’s critics, the fact that the state GOP first tried to change the signature requirements for ballot measures with a constitutional amendment in 2020 was acknowledgment that their proposal required one, and that an ordinary statute wouldn’t do. In fact, Republicans initially rebounded from their 2020 failure by drafting yet another constitutional amendment, one that would have forced future initiatives to receive 60 percent of the vote at the polls, rather than 50. Arkansans again rejected that measure overwhelmingly in November 2022, by 18 percentage points. 

David McAvoy, a progressive advocate who chaired the group Protect AR Voices when it helped fight off the 2020 amendment, is livid that the state is ignoring those repeat election results and calls the new law an unconstitutional “power grab.”

“They tried amending the constitution,” McAvoy says, “and now that the voters have rejected those attempts, they’re just saying, ‘Well, we’re just going to forget what the constitution says and just do whatever we want.’” 

The lawsuit against HB 1419 argues specifically that its requirements contradict those in the state constitution’s Article 5, which is the section that regulates the initiative process, and that lawmakers therefore needed to craft their proposal as a constitutional amendment like they did in 2020.

Article 5 states that an initiative must gather signatures “in at least 15 counties.” The lawsuit argues that this constitutional stipulation bars the legislature from passing a law requiring a higher threshold. The bill’s proponents have said this language merely sets “a floor” that lawmakers can raise. Crouch said in an interview that the words “at least” do not authorize lawmakers to  raise the threshold because those words needed to be there to clarify that organizers don’t need to pursue signatures from exactly 15 counties. (Case in point: Republicans deployed the same phrasing in HB 1419, which requires signatures from “at least 50 counties.”)

Crouch also points to Article 5’s final clause, which lays out what the legislature is allowed to do when it comes to toying with the rules: “All its provisions shall be treated as mandatory, but laws may be enacted to facilitate its operation. No legislation shall be enacted to restrict, hamper or impair the exercise of the rights herein reserved to the people.” For Crouch, HB 1419 plainly violates these bounds because raising the county threshold from 15 to 50 restricts the ballot initiative process.

“You can’t change the constitution with a bill,” Crouch said. “Facilitate means facilitate, and 15 means 15 and not 50.”

The chief sponsor of HB 1419, Representative Kendon Underwood, did not reply to a request for comment. 

Other Republicans who supported the change say the law will ensure that rural voters are heard. A spokesperson for the governor said Sanders signed the bill because she “wants to ensure all Arkansans, especially rural residents, have a voice in this process.” But King, who represents a Northwest Arkansas district, rejects that argument. “I’m a rural guy through and through, I represent rural counties,” he told Bolts. “This is making it harder for the citizens.”

HB 1419 poses a particular challenge to progressive proposals because Democratic-leaning counties tend to be more populous. Until now, progressive organizers needed to spread their work across 15 counties, and Joe Biden received 35 percent in Arkansas’s 15th bluest county in 2020; that’s nearly identical to his statewide result. But once they need 50 counties, they’ll have to find allies in far more conservative territory than even the state as a whole; Biden received just 20 percent of the vote in the state’s 50th bluest county.

The legislature added an “emergency” clause in HB 1419, so the changes take effect immediately. If upheld, it will affect several efforts that state advocates say are already in the works for 2024, such as the rerun of a 2020 proposal to implement an all-party primary coupled with ranked-choice voting—an initiative akin to what Alaska implemented last year. The proposal was set to make the ballot in 2020 but the Arkansas supreme court blocked it over its strict interpretation of a background-check requirement for canvassers gathering signatures. 

The fate of HB 1419 will also eventually come down to the state supreme court. In last year’s election, conservatives in Arkansas tried to push the state supreme court further to the right by targeting two justices who have a moderate reputation. Both incumbents secured re-election, though, and are likely to be on the court if it hears the case against the new law or any other restrictions, as the legislature could still escalate its war on direct democracy in the remainder of the session. 

On March 10, three days after HB 1419 was signed into law, Republican Representative David Ray filed HB 1601, a new proposal that would require that the canvassers who are hired by organizations to collect signatures first obtain a special license. The bill would ratchet up the costs and bureaucracy associated with the process, just as HB 1419 has required organizations to hire significantly more canvassers given they’ll need to spread in many more counties.

Crouch expects even more attacks on ballot initiatives. “They just feel like they are in power to do whatever they want to do,” he said. “They don’t care anything about the constitution, unless it’s a gun.”

The post “An Attack on Direct Democracy in Arkansas”  appeared first on Bolts.

DeLay lost handily on Tuesday. Justice Karen Baker, an incumbent who has been on the court since 2011 prevailed 64 percent to 36 percent against DeLay, who is a lower-court judge.

In the state’s other contested supreme court election, though, Justice Robin Wynne fell just short of the 50 percent threshold that would have won him an additional term outright and avoided a runoff election. With 99 percent of precincts reporting, he received 49.6 percent, with Chris Carnahan, the former longtime chair of the Republican Party, at 29 percent, and David Sterling, another right-wing candidate, at 22 percent.

Wynne, a former Democratic lawmaker, and Carnahan will now move to runoff, giving conservatives another shot at picking-up a seat.

Judicial races are technically nonpartisan in Arkansas. But conservatives pushed to oust Baker and Wynne this year and lock in right-wing dominance on the court with challengers who have close GOP ties. Many supreme courts are seeing similar tussles for power this year.

The Arkansas supreme court is already no refuge for civil rights. In April, it dismissed a lower-court ruling that had stayed a series of new Republican restrictions on voting rights. Weeks later, in a 4-3 ruling, the court’s most conservative justices eroded the rights of plaintiffs to seek tort remedies. But the court occasionally issues opinions that anger state conservatives, who have come to dominate all other state institutions.

In April, the court enabled a school district to impose a mask requirement, reversing a lower court’s restraining order that had blocked it. DeLay used the ruling as part of his arsenal of attacks against Baker.

DeLay also attacked Baker for a vote that she took in 2019 to vacate a murder conviction; the court had decided, in a 4-3 opinion written by Baker, that a charge had been filed in the wrong jurisdiction. Carnahan also used the issue of capital punishment to attack his opponent. In one campaign mailer, he named “the implementation of the death penalty” as one of the issues that has “suffered in Arkansas because of Justices that don’t stay in their lane.” In 2018, the court issued two narrow 4-3 rulings that overturned the state law that governed how Arkansas decides whether a defendant is mentally competent to be executed, holding that it violated the due process of two death-row prisoners. 

“There is no consistent progressive voice on the court,” said Jay Barth, a professor emeritus at Hendrix College who was recently appointed director of the Clinton Presidential Library and Museum. “It is a battle between moderates and conservatives.” 

Over the past decade, conservative candidates shifted the court rightward by winning court seats after ideologically-charged campaigns, fueled by dark money from right-wing groups.

Baker and Wynne, Barth said, are now part of an inconsistently moderate three-person wing that a fourth justice sometimes joins. The court still has “a little bit of swing,” he quipped, meaning that it is still prone to side with plaintiffs on somes cases that touch on civil rights or criminal defense. 

That would end if  Baker and Wynne were ousted, Barth told Bolts before the election, and “the court would not be seen as a real option” for such litigation.

Carnahan, DeLay, and Sterling all promised to steer the court further to the right—and Carnahan will still have his shot in the June runoff. In candidate questionnaires for the Family Council, an Arkansas-based conservative group, they all named former President Donald Trump and U.S. Supreme Court Justice Clarence Thomas as their political and judicial models. 

DeLay’s campaign material highlighted a conservative Who’s Who, including former Governor Mike Huckabee, whose daughter is the favorite to become the state’s next governor, and Gun Owners of Arkansas. He told the press that Baker was part of a “liberal, left wing of the court.” His Facebook page features a video promising to protect the “right to bear arms.” 

It also displays a picture of him posing next to a logo of the organization Arkansans for Life.

A former Republican lawmaker, DeLay introduced a bill soon after he arrived at the state House in 1995 to restrict abortion righs. “I think we should drop the pretense,” he told the Associated Press. “My history is what it is.” 

The court has issued few decisions pertaining to abortion rights in recent years, and Arkansas already adopted a near-total ban on abortions last year that would take effect if the U.S. Supreme Court overturns Roe vs. Wade.  But in 2020, in a case involving the murder of a pregnant woman, the court struck down prosecutors’ effort to use the death of an “unborn child” as an aggravating factor in sentencing. The ruling drew a vigorous dissent from conservative Justice Rhonda Wood, who argued that Arkansas law enabled the defendant to be sentenced for “the death of more than one person.”

In a state otherwise dominated by Republicans, who are heavily favored to retain control of the state government in November, a supreme court that conservatives have tried to push even further to the right could face new questions around pregnancy-related state crimes if Roe falls. A redistricting lawsuit also looms for the court to consider in the future. DeLay’s defeat dampens the chances that the right seizes unmitigated control on the court, but the November runoff between Wynne and Carnahan could still remove one of the few checks on the state’s most conservative forces.

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