The recent Supreme Court decision striking down the 2003 tort reform law has people who approve and disapprove of the ruling talking about judicial elections and their implications in Arkansas politics. With that in mind, I wanted to take a moment to discuss judicial elections.
Having been involved in numerous judicial elections over the years, I believe there are two facets in the way we elect Arkansas judges that should be changed.
Under the Arkansas Code of Judicial Conduct, Canon 4, judicial candidates can begin their campaigns one year before the May non-partisan judicial primary. That means candidates can hire staff, consultants, print handout cards, create websites, etc.
However, judicial candidates cannot start fundraising until 180 days before the May primary, which is right around Thanksgiving. Judicial candidates are prohibited from personally soliciting funds, so they form finance committees to help with fundraising.
While they can’t raise money for six months, judicial candidates are allowed to use personal funds to pay for any campaign expenses. This quirk in the judicial canons gives candidates who can afford to self-fund their campaign a significant, and unfair, advantage in the early stage of the campaign. Candidates who can’t afford to self-fund their campaigns often must wait until November to hire staff, print materials, etc., since that is when they can legally raise money and then use campaign funds to pay for expenses.
The current system gives wealthier judicial candidates a six-month head start in beginning their campaigns, and less wealthy candidates must struggle and play catch-up. Our judicial system is supposed to be fair and impartial, but Arkansas judicial elections are not in this regard.
The actual election dates of electing judges are also in need of reform. The non-partisan judicial primary is in May, and if one candidate gets 50.1% or more of the vote, the election is over and they’re a Judge-elect. However, if it’s a multiple candidate race and no one gets a majority of the vote then there is a run-off, but not the typical three weeks later run-off. Judicial run-off elections are not until the November General Election.
This is not a run-off system, but rather a whole new election. Since a General Election has a significantly larger turnout than a May primary, judicial candidates must raise and spend dramatically more funds than they did in the primary. Some might argue that partisan candidates also face a larger electorate in November; however, partisan candidates enjoy the significant advantage of their respective party structures supporting them. Non-partisan judges do not.
Our judicial election system in Arkansas needs two reforms.
First, allow all judicial candidates to begin raising money one year before the May non-partisan judicial primary. This levels the playing field and allows all candidates to begin their campaign at the same time and removes the unfair advantage wealthier candidates have in early organizing.
Some might complain that this is too long for judicial candidates to be raising money, and that it’s unseemly for judges or potential judges to passing around the tin cup. However, they miss a major point: Since a judicial candidate begins raising funds in November of the off-year, and if they are eventually involved in a judicial run-off, they’ll spend almost a year raising money anyway.
As an alternative, we could change the judicial canons so that all judicial candidates cannot begin their campaigns until 180 days before the May election. Either way, the financial playing field must be leveled so judicial candidates have an opportunity to spend resources at the same time.
Second, move all judicial run-offs to the same date as all other June run-offs. This is more keeping in the spirit of the run-off system and reduces the funds judicial candidates must raise and spend.
Hopefully, these needed reforms will be enacted one day and preferably before the looming judicial election battles begin.