GOP high court win in Arkansas follows ethics complaint over partisanship
Administrative law judge Barbara Webb won an election last week for a seat on the Arkansas Supreme Court with the help of state and national Republicans, giving conservatives control of the court. Webb is now facing an ethics complaint alleging that she ran as a Republican in what is supposed to be a nonpartisan race.
In the final days of the election, the Republican State Leadership Committee (RSLC) spent at least $250,000 on a pro-Webb ad that featured U.S. House Speaker Nancy Pelosi and warned of "out of control liberals."
It was the third consecutive Arkansas Supreme Court election in which the RSLC dominated the air waves, spending much more than any of the candidates. The RSLC's spending helped unseat two justices in 2016, but failed to do so in 2018.
Local Republican groups also spent directly on ads supporting Webb, whose husband is chair of the state GOP. Her campaign received thousands of dollars in contributions from Republican sources, and Webb spoke at party events.
The RSLC's money dwarfed the five-figure advertising budget of Webb's opponent, Morgan "Chip" Welch, a judge in Little Rock. Throughout the election, Welch criticized the partisan tenor of Webb's campaign. Welch, who previously ran for state legislature as a Democrat, also called for getting secret money out of judicial elections to protect the independence of the courts.
As a 527 nonprofit, the RSLC can spend without limits but must disclose its donors. It receives big financial backing from the Judicial Crisis Network (JCN), a secret-money group that spends millions of dollars to influence who sits on state and federal courts. The Brennan Center for Justice, which tracks spending in judicial races, traced JCN's donations to the RSLC in the 2017-18 election cycle; it concluded that the money RSLC spent in judicial races likely came from JCN, which was funded that year by a single contribution of $17 million from an undisclosed source.
JCN ran controversial ads in the 2018 Arkansas high court election that attacked incumbent Justice Courtney Hudson. She filed a libel lawsuit against JCN over the ads, which a state court blocked as "misleading." Hudson kept her seat on the court.
Once Webb is sworn in, the Arkansas Supreme Court will have a 4-3 conservative majority. The current liberal majority has been under fire from Republicans and business groups for its rulings to strike down so-called "tort reform" laws that place limits on lawsuits. The court will likely review the new political district maps drawn after this year's census.
'Nonpartisan' judicial races
In mid-February, Jess Mallett — an attorney who lost a 2018 race for the Arkansas legislature as a Democrat — filed a complaint with the state Judicial Discipline & Disability Commission charging that Webb violated judicial ethics rules that prohibit candidates from identifying themselves as members of a political party or seeking party endorsements. Webb was backed by Republican U.S. Sen. Tom Cotton and Sarah Huckabee Sanders, a potential Republican candidate for governor in 2022.*
Webb argues that ethics rules allow candidates to describe themselves as "conservative," and she denies identifying as a Republican on the campaign trail.
Critics accused the commission of dragging its feet on the complaint, given that it failed to address it during the election. The commission said it's "investigating this complaint as quickly as possible. However, the Rules do not provide for the type of quick response that would give an official determination in a matter of weeks." A similar debate is unfolding in neighboring Louisiana, where the state's judicial ethics watchdog has been accused of inaction and a lack of transparency.
Given the increasingly partisan nature of Arkansas' judicial races, some legislators want to return to partisan elections for judges, but Republican Gov. Asa Hutchinson opposes the idea. Arkansas' judicial races have been nonpartisan since voters in the 2000 election ratified a constitutional amendment, which was supported by Republicans.
In his book "The People's Courts," Fordham University law professor Jed Shugerman describes why states moved from partisan to nonpartisan judicial elections in the 20th century. The public, he writes, came to believe that "partisan elections created a judiciary that was more easily captured by ideology and special interests." But Shugerman says this reform backfired, as candidates became "even more … reliant on interest groups to compensate for the removal of explicit party support."
Only six states still use partisan elections to select their high courts, and four of them are in the South: Alabama, Louisiana, North Carolina, and Texas.
The most recent states to move from partisan to nonpartisan races were Arkansas, Mississippi, North Carolina, Tennessee, and West Virginia. In 2017, North Carolina became the first state in nearly a century to switch back to partisan judicial races; the following year, a Republican justice ran a campaign ad that, like the RSLC's ad for Webb, warned of "out of control" liberals.
Texas could soon vote on ending partisan judicial elections. Reformers have long called for changing Texas' high court elections, which are dominated by large contributions from corporate law firms. But Republicans leaders began the current push for change after Democratic judicial candidates won big in Houston and other cities in the 2018 election. Their first proposal unveiled in February 2019 would have ended partisan races only in the state's largest cities.
All of the states with partisan elections have seen multimillion-dollar elections for their high courts. But in recent years, spending on nonpartisan races has exploded. This increase has been driven not by spending by the campaigns but by independent spending by outside groups like the RSLC.
*This post has been updated to reflect the fact that Sarah Huckabee Sanders is a potential candidate for governor in the next election.