A Black candidate has never been elected to the Arkansas Supreme Court. A group of plaintiffs hopes to change that with a federal lawsuit.
In late April, U.S. District Judge James M. Moody Jr. heard five days of testimony from a group of Arkansans who say election procedures for filing state Supreme Court and Arkansas Court of Appeals seats dilute Black voting power, a violation of the Voting Rights Act of 1965.
The plaintiffs, including the Christian Ministerial Alliance of Little Rock and the Arkansas Community Institute, also note that no Black candidate has been elected to the state Court of Appeals when facing a white challenger.
Arkansas isn’t the only state without a Black justice on its highest court. There are no Black justices in 28 states, according to a May report from the Brennan Center for Justice at New York University School of Law.
“It’s essential for our justice system that courts better reflect the public they are supposed to serve,” said Douglas Keith, counsel at the Brennan Center. “It builds public confidence in the courts when the judges that people are coming before actually resemble that public.”
Keith is not part of the plaintiffs’ lawsuit.
The suit argues that Black Arkansans, who total about 15% of the population, have less opportunity than white voters to elect their candidates of choice.
The plaintiffs have sued Gov. Asa Hutchinson, Attorney General Leslie Rutledge and Arkansas Secretary of State John Thurston in an attempt to change how appellate court judges are elected.
The Arkansas attorney general’s office is representing the defendants and said in court filings that the Voting Rights Act hasn’t been violated and the method for electing judges to appellate court positions should remain in place.
Moody isn’t expected to make a ruling until at least next month. But if he agrees with the plaintiffs that the Voting Rights Act has been violated, the next step would be to decide on a remedy. The plaintiffs have suggested changing the elections for the seven state Supreme Court positions from statewide to districts. And they would draw district lines to ensure that two of the 12 Court of Appeals judges come from areas with a majority of Black voters.
Stephanie Malone, CEO of the Arkansas Trial Lawyers Association, isn’t a part of the lawsuit but said in a statement to Arkansas Business that Arkansas judicial elections are nonpartisan and held statewide, “ensuring every Arkansan has an equal opportunity to participate.”
She said that the constitutional system “created by our founders trusts citizens to serve as jurors for their peers, without government restrictions, and it trusts them to select our judges, without manipulative restrictions from the government. Judicial elections must remain free, fair, and without interference.”
The Hunt Decree
Former Pulaski County Circuit Judge Marion Humphrey Sr. of Little Rock is a plaintiff in the case and said in a deposition taken in August that he was at a meeting of the Christian Ministerial Alliance at which the issue of the Supreme Court and Court of Appeals was being discussed. He couldn’t remember when the meeting took place, but it was before 2019, when the lawsuit was filed in U.S. District Court in Little Rock. The plaintiffs are represented by the NAACP Legal Defense & Education Fund Inc. of New York and attorneys in Washington, D.C., and Little Rock.
The Christian Ministerial Alliance was troubled that there weren’t any Blacks on the state Supreme Court, Humphrey said.
Humphrey is a member and past president of the organization, a community activist group of clergy who are concerned about issues of justice and civil rights.
The Christian Ministerial Alliance has been previously involved in lawsuits connected to minority voting rights, including the case of attorney Eugene Hunt against the state of Arkansas. In that case, Hunt sued Arkansas, challenging the system for elections of state-level trial judges through at-large elections in multimember districts.
Arkansas admitted liability in the case, resulting in what became known as the Hunt Decree about 30 years ago that created majority-minority districts. “This resulted in eight new Black trial judges being elected,” the plaintiffs’ complaint said. “The decree remains in effect today.”
Humphrey, a University of Arkansas School of Law graduate, said in the deposition that he won an election to be a Pulaski County Circuit judge in 1992 because of the decree.
He was reelected in 1996, 2000 and in 2004.
Humphrey said that in his experience Arkansans vote along racial lines. And others agreed.
During the bench trial before Judge Moody, plaintiff Kymara Hill Seals of Jefferson County, a Black campaign strategist, testified that “the difference in the vote is like white people are not going to vote for us. They’re just not going to do it,” according to the plaintiffs’ post-trial brief filed May 27.
Court of Appeals Judge Waymond Brown, who is Black, also testified that he declined to run for a seat on the Court of Appeals in a mainly white district. “I couldn’t win in that district. It was too white,” Brown said, according to the brief. “I knew that.”
Brown won in a district in which nearly half of the voters were Black, and he beat a Black opponent.
Lack of Diversity
Humphrey said in the deposition that the lack of diversity at the state Supreme Court raises concerns for Blacks who have a case before the justices.
He said the average person who sees a panel composed entirely of white justices would think they wouldn’t have a chance to win. “And that’s the attitude that folks have, that it’s a setup, that my position is not going to be heard,” he said.
Few Blacks have run for seats on the state Supreme Court. Pulaski County Circuit Court Judge Wendell Griffen ran in 2004 and 2006 and lost. He was appointed to the Court of Appeals in 1996 and elected without opposition in 2000. But he was unsuccessful in his race for the position in 2008.
Little Rock lawyer Evelyn Moorehead ran for a seat on the state’s high court in 2010, but lost, making her the last Black candidate to run for a position on the state Supreme Court.
Humphrey said that candidates have been discouraged from running because funding and voting patterns aren’t favorable to Black candidates.
“We’re at that stage right now where we don’t see an African American and an African American has never been elected to the Arkansas Supreme Court,” Humphrey said. “And I think that people feel that something’s wrong with that.”
He said creating voting districts for state Supreme Court Justices positions to include a majority Black district would help change that situation.
“It would give a voice to people who do not feel that we have a voice on the Supreme Court at present and that our votes cannot impact the outcome of who’s chosen,” Humphrey said. “And choice is really what we’re trying to get at.”