How to get Supreme Court chosen by informed voters

On March 5, Arkansans will vote to fill two positions on the Arkansas Supreme Court, including the chief justice. And let’s be honest: Most voters will decide based on limited information or by outright guessing.

Is there a better way? Maybe. Perhaps voters should be more like jurors.

This year, six candidates are running for two posts. Four are running for chief justice, including current justices Barbara Webb, Rhonda Wood and Karen Baker, and attorney and former legislator Jay Martin.

In the other race, Justice Courtney Hudson seeks to move from her current Position 3 seat to Position 2 to fill a vacancy caused by the death of Justice Robin Wynne. Her opponent is Circuit Judge Carlton Jones of Texarkana.

Judicial elections don’t make it easy for voters to make informed choices. Candidates don’t run with party labels. They are compelled by judicial ethics to avoid saying how they might rule in cases so as not to prejudice themselves. Instead, they are limited to using descriptive words like “conservative,” touting their backgrounds, and offering ideas about improving the justice system. It’s basically a billboard campaign.

Moreover, this year’s candidates, as is usually the case, have not raised enough money to wage major campaigns. What money they do raise may come from lawyers and others who could have cases come before the court. Sometimes outside groups run their own independent campaigns to smear one of the candidates, but that has not happened this election – so far.

One alternative method is to have the governor nominate judges and justices, and then the Legislature, or part of the Legislature, would confirm them. That’s how the president and Senate appoint U.S. Supreme Court justices. That process also would be problematic, especially in a small state like Arkansas, because it would result in a governor appointing justices who then would rule on cases in which the governor might have an interest.

In a state whose motto is Latin for “the people rule,” we definitely want the people to still rule. Do we have a parallel situation to voting where average citizens are entrusted with important decisions, but, unlike elections, they have good information on which to base their decisions?

Yes, we do: jury duty. Across Arkansas, randomly chosen citizens are brought to courtrooms to decide criminal cases that determine guilt or innocence, and civil cases that could involve millions of dollars.

Jurors usually are not legal experts, just as most voters are not experts regarding many of the items on the ballot. But unlike voters, jurors are focused on one very important decision instead of a long list of candidates for various races. They know their decision will matter rather than it being just one of a million votes. And they are informed. History has shown juries to be an imperfect system, to be sure. But the alternative is having a small, elite class rule over us.

What if every election cycle, a randomly selected group of Arkansans – let’s say 500 – were brought to Little Rock or another central location? Legal experts would explain to them what the courts do. Judicial candidates would make substantive, face-toface presentations where they share their philosophies, backgrounds, and ideas. And then, at the end of a day or two, the voters would decide.

I’ve tried to think of problems with such a system. It might be hard to persuade the voters to come to Little Rock, just as it is hard to get them to drive down the street to vote in an election. All I know to do is feed and lodge them well and celebrate what they are doing. Another problem might be that having a limited voter pool might make it easier to bribe or influence some of them. But the same could be said of jurors, legislators, and any other small group of decision makers. In fact, the same could be said of the Arkansas Supreme Court itself.

There is no perfect system. Any system depends on the character of the people involved. The current system depends on candidates being generally qualified, and on them not tipping the scales in favor of their supporters once they are in office. But there’s no guarantee they won’t.

I’m open to suggestions, including leaving things as they are. Ultimately, the people should rule.

But maybe in some races, particularly judicial ones, fewer voters should rule with good information, rather than all the voters ruling by guessing.