Appeals court judge testifies in vote lawsuit

LITTLE ROCK — Testimony continued Wednesday in federal court about the impacts of judicial elections on Black voters, in a judicial districting lawsuit brought by a coalition of ministers, community activists and voters against the state’s Board of Apportionment members.

Wednesday marked the third day of the trial, which could force the creation of a single majority-minority district for electing justices of the Arkansas Supreme Court and two majority-minority districts for electing state Court of Appeals judges. Currently all Supreme Court justices are elected at-large and one Court of Appeals district is designated a majority-minority district.

Defendants in the lawsuit are Arkansas Gov. Asa Hutchinson, Secretary of State John Thurston and Attorney General Leslie Rutledge. They comprise the state Board of Apportionment and are represented by attorneys from Rutledge’s office.

The plaintiffs are represented by attorneys for the NAACP Legal Defense & Education Fund as well as private attorneys from New York, Washington, D.C., and Little Rock.

Testimony began Wednesday with Arkansas Court of Appeals Judge Waymond Brown, the first Black jurist elected to the state Court of Appeals. Brown, who lives in Pine Bluff and was elected to the Court of Appeals in 2008, said his first campaign was in 2000 when he ran for Pine Bluff municipal judge after working as chief counsel in the Arkansas Employment Security Division, the forerunner to the Division of Workforce Services.

Asked if there were any Black municipal judges in Pine Bluff at the time he ran, Brown said no.

“There’d never been one,” he said.

Campaigning proved tricky, Brown said, as he was confronted almost immediately with racism — both subtle and overt — regarding his candidacy. He said the Black population in Pine Bluff at that time was slightly larger than the white population but “you couldn’t win a race without some white votes as a Black candidate.”

Brown said he began his campaign by going door to door to meet people and ask for their votes. That effort, he said, ended quickly.

“The second or third door I knocked on a white guy says, ‘What?’” Brown related. “I said, ‘I’m Waymond Brown, and I’m running for municipal judge and I’d like your vote,’ and I tried to hand him my card. He said, ‘I ain’t voting for no n****r.’”

After a pause, Brown continued.

“I’d never been called n****r to my face and I was 30 years old,” he said. “He slammed the door, and I turned around and went back home. I thought, ‘What have I done?’”

Brown said he continued in his campaign, but the incident shook him.

“I had white friends,” he said. “I knew white people. I said I can do this, right? But it was generational. All my friends were my age.”

After that, Brown said, he didn’t go out knocking on doors in white neighborhoods but instead found other ways to garner white support, especially in fundraising.

He said for Black candidates in any race it was crucial to pick up some white support in order to win, but to get that support required giving those supporters cover.

Many white people, he said, didn’t want to appear on the campaign finance reports of Black candidates, so white supporters would contribute by buying tickets to fish fry events or by putting cash in a jar at fundraisers to avoid having their contributions show up on campaign finance reports.

“They didn’t want to be seen supporting a Black candidate over a white candidate,” he said.

Asked why that was, Brown said, “You’d have to ask them.”

After he won that race, Brown said, he estimated that he had garnered roughly 25% of the votes cast by white voters in the election and 90% or more of the votes cast by Black voters.

After running unopposed for reelection in 2004, Brown ran for one of two at-large circuit judge positions in Jefferson and Lincoln counties in 2006 against Jodi Raines Dennis, a race he lost.

“I wasn’t expected to win, so there was no pressure. I went down to Star City in Lincoln County and bought a billboard and put my face on it,” Brown said. “I got calls immediately telling me to take that down. Black people said they’re going to know you’re Black. White people said they’re going to know you’re Black.

“I said my name is Waymond,” Brown continued, as laughter engulfed the courtroom. “They’re going to know I’m Black.”

Brown said the main task for Black candidates running against white opponents was how to find voters willing to cross over and cast their ballot for a Black candidate.

“You can’t be too angry. You can’t be too Black,” he said. “You have to find a way to be nonthreatening to gain that crossover vote.”

In 2008, Brown, frustrated with the working conditions he had to deal with as a municipal court judge with his courtroom in the basement of the flood-prone Pine Bluff library, said he decided to run for an open seat on the Court of Appeals.

Evidence of racism, Brown said, didn’t stop after he was elected to the Court of Appeals. His first observation, he said, was that almost no Black people worked there.

“I made the comment there ain’t nothing Black in this building but our robes and me,” he said. “I was trying to push to get more Black people hired, an odd Black lawyer here and there. If you were a Black lawyer, you worked for me.”

Declining to name the judge, Brown said one of his colleagues once parked in his parking spot, so Brown said he blocked the car in and went to find the judge and find out why his spot was taken.

“The judge said, ‘ Your parking space?’” Brown said. “‘Don’t you know you’re threefifths of a person?’”

As a result, he said, the chief judge arranged for sensitivity training for the judges and staff.

“The judges said, ‘We’re offended,’” he said. “They said ‘I’m not racist; I’m not insensitive; why am I here?’”

Even after 14 years on the Court of Appeals, Brown said, he is still not fully accepted.

“The best way to describe it is I’m tolerated, not appreciated,” he said.

To him, he said, relief would mean a better work environment.

“Now, I’m not complaining,” he said. “I asked for the job. You asked for my experiences, and I love the job, but it can be trying. I’m not complaining; I’m not bitching and moaning. It is what it is.”

Following Brown’s testimony, two expert witnesses, Baodong Liu, a professor of political science at the University of Utah, and Peyton McCrary, a voting rights consultant, both testified to their findings that judicial races in Arkansas have historically been structured in a way that precludes Black judicial candidates from running successful campaigns.

During several hours of cross-examination by Dylan Jacobs, an attorney for the defendants, Liu steadfastly defended his findings, which he said showed the effects of racism in the way Arkansas judicial elections, especially at the Supreme Court and Court of Appeals level, have affected Black candidates.

The trial continues today at 9 a.m. as attorneys for the defendants begin their cross-examination of McCrary. Plaintiff attorneys said they expect to finish their case today after calling two final witnesses: former Appeals Court Judge Eugene Hunt and Arkansas state Sen. Joyce Elliott.

U.S. District Judge James M. Moody Jr. said he expects to rule on the matter sometime after the conclusion of the trial. He said he doesn’t expect to issue a ruling from the bench.