Court-district case under judge’s review

A federal judge is reviewing the state’s request to throw out a lawsuit alleging the way judges are elected to the state Court of Appeals and the state Supreme Court is racially discriminatory.

Filed in June by a group of civil-rights advocates and attorneys, the lawsuit seeks to force the creation of a single majority-minority district for the Supreme Court and two majority-minority districts for the Court of Appeals.

Arkansas’ seven Supreme Court justices are elected statewide to eight-year terms. No black person has ever been elected to the high court, although some were appointed to complete the terms of justices who left the court before their terms expired.

The 12 Court of Appeals judges are elected from seven districts, five of which elect two members. The only black judge on that court, Waymond Brown, was elected by the single-member 7th District, which the lawsuit says is 49 percent black. According to the U.S. census, Arkansas’ population is 15% black.

The lawsuit challenges the state’s method of electing appellate judges, which it alleges dilutes the voting strength of black voters, which in turn inhibits their ability to elect their judicial candidates of choice, in violation of Section 2 of the federal Voting Rights Act of 1965.

In a motion filed Aug. 19, Deputy Solicitor General Vincent Wagner complained

the plaintiffs want U.S. District Judge James Moody Jr. “to fashion a new judicial system for Arkansas,” abandoning statewide elections for the Arkansas Supreme Court that have been in place for 145 years, “and to become just the fifth state to elect its supreme court by geographic districts.”

Wagner added, “Worse still, they ask this court to draw one of those districts on the basis of race. And they seek two race-based districts in the case of the Arkansas Court of Appeals. But justice should not be administered on the basis of race, and Section 2 does not require this court to fundamentally reshape the Arkansas judiciary.”

SPOTLIGHT ON GRIFFEN

The state asks Moody to dismiss the lawsuit, saying the plaintiffs don’t allege that across all appellate judicial elections the candidates preferred by black voters generally lose to the candidates white voters prefer.

The plaintiffs, Wagner said, “focus exclusively on three appellate judicial elections. Each of these elections involve the same candidate: Judge Wendell Griffen, a judge with a checkered ethical history.”

Griffen, a Pulaski County Circuit judge who has served on the Court of Appeals and has run unsuccessfully for seats on the Supreme Court, has regularly challenged allegations he violated canons of the Arkansas Rules of Judicial Conduct by speaking out publicly on controversial issues. In 2017, the Supreme Court disqualified him from hearing criminal and civil cases involving the death penalty after he participated in a demonstration against the death penalty on the same day he issued a ruling in a case over lethal-injection drugs.

The high court refused Thursday to reconsider the disqualification. And on Wednesday, Attorney General Leslie Rutledge’s office — for which Wagner works — asked the state high court to remove all cases involving her attorneys from Griffen’s courtroom, accusing him of bias and belligerent behavior.

Wagner also argued sovereign immunity bars claims against the state, the Board of Election Commissioners and the Board of Apportionment, who are defendants. And, he said, Section 2 of the Voting Rights Act doesn’t allow federal courts to order geographic redistricting of state courts elected on a statewide basis.

DISMISSAL OPPOSED

The plaintiffs — the Christian Ministerial Alliance, the Arkansas Community Institute, attorneys Marion Humphrey and Olly Neal, and Jefferson County resident Kymara Hill Seals — filed a brief Sept. 13 opposing the dismissal request, calling the state’s arguments “merit-less.”

Through attorneys with the NAACP Legal Defense & Educational Fund, Little Rock attorney Arkie Byrd and three attorneys in Washington, D.C., the plaintiffs said the Voting Rights Act was enacted “for the broad remedial purpose of ridding the country of racial discrimination in voting,” including state judicial elections, giving them a proper forum for bringing the suit.

Section 2, the attorneys noted, outlaws voting practices, “such as those for the Arkansas Supreme Court and Court of Appeals,” that “interact with social and historical conditions to impair the ability of black voters to elect their candidates of choice on an equal basis with their fellow voters.”

To succeed on a Section 2 complaint, they said, they must show the population of black voters is “sufficiently large and geographically compact to constitute a majority

in a single-member district,” black voters are “politically cohesive,” and nonblack voters typically vote as a bloc to defeat the preferred candidates of black voters.

They said they also must present evidence the “totality of circumstances” demonstrates a violation of the section, and went on to explain how they believe their lawsuit meets those requirements.

The arguments echo those made in 1989 by another group of plaintiffs that included Neal and the Alliance against the state’s then-system of electing trial court judges. In 1991, the federal lawsuit resulted in a settlement, known as the Hunt Decree, which led to the establishment of majority-minority “sub-districts” within five judicial circuits in central and eastern Arkansas.

Humphrey, a former Pulaski County Circuit judge, was elected from one of those sub-districts.

Moody has tentatively scheduled a nonjury trial in the case for the week of Aug. 24, 2020. He hasn’t set a timetable for deciding whether to dismiss the case or allow it to proceed to trial.