Category Archives: Elections

Electing judges: Is it the people’s will, or politics?

Elections, Politics, State government

golden balanceBy Steve Brawner
© 2016 by Steve Brawner Communications, Inc.

Should judges in Arkansas be democratically elected after collecting campaign donations from the same lawyers and corporate interests that bring cases before them? Or should an appointment process be created, reducing the influence of money but also the role of the voters?

Because we already use deeply flawed process number one, we probably will not open up the can of worms that would accompany flawed-in-other-ways process number two.

The past few years have demonstrated some of the challenges with electing judges. In one case, a circuit judge reduced a jury’s verdict in a nursing home case from $5 million to $1 million after receiving campaign money from the nursing home’s owner. That judge pled guilty to bribery, was sentenced to 10 years and has since appealed. Meanwhile, the past few Supreme Court races have sunk beneath the dignity of the office because of ad campaigns run by anonymously funded, independent political action committees, otherwise known as “dark money.” One losing candidate, Tim Cullen, was dragged through the mud because he had once been appointed by a judge to represent a convicted sex offender – a distasteful assignment to be sure, but in America, unlike in some other places, we try to guarantee the right to a fair trial.

In addition to the corrupting influence of money, the other problem with electing judges is that voters have limited information. Candidates aren’t supposed to tell us how they’ll vote on cases because they should remain neutral until they hear the facts in court. Also, judicial elections are nonpartisan, so voters can’t use party labels as a guide. Ironically, the other problem with judicial campaign donations is that candidates don’t collect enough to purchase a big ad campaign that would really introduce themselves. The whole process results in many voters picking a name on a list.

But for all their messiness, elections are the way we do things in America. It’s how we imperfectly keep small groups of individuals from amassing power and acting contrary to the people’s will from behind closed doors.

The difficulty of coming up with a better system was demonstrated Friday during a meeting of the Arkansas Bar Association’s House of Delegates, the attorney group’s policymaking body. A task force had submitted a plan for electing Supreme Court justices where an appointed commission would offer three names to the governor, who would then choose one. According to the proposal, 22 states use that kind of process. If it passed, the Bar would find a legislator sponsor who would try to get it referred to the voters in 2018 as a proposed constitutional amendment.

The vote was 34-20 in favor, which was short of the required three-fourths majority, so it died. During the debate, a couple of the delegates said their lawyer constituents overwhelmingly oppose ending elections. Another delegate relayed a message from the five returning Arkansas Supreme Court justices and the two recently elected ones revealing that they unanimously support keeping elections. By voting for the proposal, the attorneys would be at odds with the justices before whom they may someday appear.

There are lots of ways to select judges. In some states, including Missouri, a commission presents nominees, the governor appoints one, and then, after a probationary period, the judge stands before voters in an up-or-down retention election with no other candidates on the ballot. But in the spirit of this glass-half-empty column, retention elections have the same issues as the current system – money and politics.

Even without the Bar’s support, some legislator next year probably will propose a constitutional amendment for appointing rather than electing judges. Gov. Asa Hutchinson favors some kind of change. However, there’s not widespread support in the Legislature – not enough to make it one of two or three issues referred to the voters. As another solution, Democrats have introduced a bill that would require dark money groups to disclose their donors. However, there aren’t many Democrats left in the Legislature, and besides, an argument can be made that people have a right to donate anonymously to groups that align with their beliefs.

So in 2018, we’ll probably be electing judges and justices pretty much like we have in the past. It’s not perfect, but, as is often the case, we’ll choose the problems of the current system over different problems that would come with a new one.

Drinking from a fire hose to set pot rules

Elections, Health care, Legislature, Politics, State government

By Steve Brawner
© 2016 by Steve Brawner Communications, Inc.

When you go to school to be a doctor or a pharmacist or a lawyer, you have to learn how to drink from a fire hose – do a lot of work and absorb a lot of information quickly while bearing important responsibilities.

Good thing that pretty much describes the Arkansas Medical Marijuana Commission, the appointees who will have a little more than a month to create rules for the growers and dispensers authorized by the Medical Marijuana Amendment, which voters passed in November.

The five members of the commission – which includes two doctors, a pharmacist and a lawyer – held their first get-to-know-each-other meeting Dec. 12. About all they otherwise accomplished was electing a chairperson, Dr. Ronda Henry-Tillman, a surgical oncologist, and agreeing to meet again on Dec. 20.

They agreed on that date remarkably fast, which is a good sign because the amendment legalizing medical marijuana doesn’t allow much time for fruitless debate. Rules must be in place 120 days from the Nov. 8 election, which would be March 9. But because a public comment and legislative review are required, the rules must actually be drafted by late January – in other words, a little more than a month from the commission’s next meeting.

Meanwhile, the Department of Health and the Department of Finance and Administration are drinking from their own fire hoses while crafting their own rules and regulations. And when legislators go into session early next year, they’ll be reviewing those rules and passing their own laws to alter the amendment, which they can do with a two-thirds vote. One pre-filed bill by Rep. Doug House, R-North Little Rock, would add 60 days to the timeline. But the Legislature doesn’t go into session until mid-January, and the commission and the affected agencies can’t assume House’s bill will pass.

There’s never been an issue like this in state history. As Gov. Asa Hutchinson’s spokesperson, J.R. Davis, often says, Arkansas is in the process of creating a miniature Food and Drug Administration. And let’s not forget that while marijuana is legal at least medically in 29 states and the District of Columbia, it’s still illegal in the United States of America. The only reason states are passing these laws is the Obama administration made it clear it would look the other way, but President Obama is leaving office next month. President-elect Donald Trump has said he favors medical marijuana, but his pick for attorney general, Sen. Jeff Sessions of Alabama, is a staunch opponent.

So that means that Hutchinson, at one time the head of the federal Drug Enforcement Administration, is leading a state government trying to quickly legalize a drug that’s still completely illegal under federal laws – laws that soon may be enforced again. He’s also trying to administer a program he campaigned and voted against. At least two of the Medical Marijuana Commission members also are known to have voted no.

Eighty-four of the state’s then-135 legislators publicly expressed their opposition prior to the election, though some of them won’t be returning to office. That’s almost two-thirds, and with a two-thirds vote the Legislature can change the amendment so much as to make it virtually meaningless – for example, by tacking on such high fees that few could afford the drug. But that probably won’t happen because there’s another number that will be hard to ignore: 68,505, which is how many more Arkansans voted for the Medical Marijuana Amendment than voted against it.

One other thing that’s kind of interesting about Arkansas’ passage of the amendment: If you look at the map, the states that have legalized marijuana for medical or recreational purposes mostly are on the coasts and along the country’s northern and southern borders. Arkansas is the first Bible Belt state to say yes unless you count Louisiana and Florida, which probably would be a stretch in both cases.

If a conservative state like Arkansas will vote to legalize medical marijuana, then perhaps any state will next. Well, perhaps any state except Utah, home to a large Mormon population, and maybe Alabama, home of Sen. Sessions. He’s soon to be attorney general of the United States, the nation’s top law enforcement official. Did I mention he’s really opposed to marijuana?

Steve Brawner is an independent journalist in Arkansas. Email him at brawnersteve@mac.com. Follow him on Twitter at @stevebrawner.

Every county is purple

Elections, Politics

Hand with ballot and boxBy Steve Brawner
© 2016 by Steve Brawner Communications, Inc.

For the second time in five elections, the winner of the popular vote was not elected president, and that’s OK, we’re told, because look at this map showing the United States is a sea of red counties with a few blue islands. What would happen if those blue people’s votes in California counted as much as everyone else’s?

No chart or graph ever tells the whole story. The problem with these maps is that they perpetuate this binary view of the world that dominates our political discourse these days. They imply that everyone in a blue county is blue, and everyone in a red county is red. The truth is that there are red voters even in the bluest of the blue counties, and vice versa, as well as yellow voters and green voters, too. Every county is purple, just in different shades.

So now we know that a million fewer Americans voted for President-elect Donald Trump than for Hillary Clinton, just as Al Gore won 540,000 more popular votes than President George W. Bush in 2000. After two centuries where it usually worked out that the winner was the one preferred by the most Americans, the opposite has happened twice in the last five elections.

If you’re OK with that, it may be because you’re just glad it’s over and because Trump won fair and square playing by the rules. Football games are won not by the team gaining the most yards but by the team scoring the most points. His victory is entirely legitimate.

But if you’re OK with it simply because your team has benefitted by those rules two out of the last five elections, remember this: What goes around can come around, and it easily could be the other team that benefits next time.

Defenders of the Electoral College say it protects small states, but in reality, it favors larger swing states where the most votes are. The Electoral College’s winner-take-all format in all states except Maine and Nebraska means many states are so safely red or blue that candidates ignore them. A candidate can win by one vote each in 11 big states and not even be on the ballot in the other 39 and still be elected. After the primaries, the two major party candidates never came to Arkansas because they knew Trump would win it. The outcome was a foregone conclusion. Moreover, the Electoral College herds voters into that binary red-blue mindset, marginalizing third party and independent candidates who might have something important to say.

Now there are calls to abolish it, mostly by Democrats, and replace it with a popular vote. If that were the case, in a very close election, the entire country would look like Florida in 2000. We’d all be picking through ballots one by one looking for hanging chads, or filing lawsuits saying electronic ballots were hacked.

Instead, let’s make the Electoral College better – to more accurately reflect the fact that the entire country is composed of different shades of purple instead of only red or blue. Instead of assigning electoral votes on a winner-take-all basis, the number of votes should be increased in each state and then assigned proportionally.

Instead of Arkansas awarding six Electoral College votes, it could award 60 and divide them according to the results. Under that scenario, Trump would have won 37 votes, Clinton would have won 20, the Libertarian Gary Johnson would have won 2, and Evan McMullin would have won 1. Meanwhile, Trump would have won Electoral College votes in California and New York instead of those big states automatically going to Clinton. Maybe the two would have had to visit all of these places instead of camping out in the swing states.

I voted for McMullin, but give credit where credit’s due. Trump did what this column is all about: He saw purple where everyone else saw blue. Pennsylvania and Michigan had voted for the Democrat in six straight elections, while Wisconsin had voted Democrat seven elections in a row. Trump went up there and grabbed those votes – 107,000 more than Clinton between those three states, and that was enough to win him the presidency.

I just think the system would be better if it encouraged candidates to seek votes in reddish-purple Arkansas, too.

Related: A better Electoral College.

Arkansas Democrats get small win in tough week

Elections, Legislature, Politics, State government

By Steve Brawner
© 2016 by Steve Brawner Communications, Inc.

Arkansas Democrats had a terrible week and then a good couple of hours.

The week was terrible for them for a lot of obvious reasons. On Tuesday, Republicans easily won all five of the contested congressional races, only two of which featured a Democratic challenger. At the State Capitol, Republicans increased their majorities by two in the Senate and seven in the House – then by another in the House on Wednesday when third term Rep. Jeff Wardlaw of Hermitage switched parties from Democrat to Republican.

The election’s one bright spot was supposed to be the presidential race. So much for that.

Republicans now occupy 100 of the Legislature’s 135 seats – 74 in the 100-member House and 26 in the 35-member Senate. In 2008, Democrats controlled 102 of the 135 seats.

At the state and national levels, Arkansas Democrats are fast becoming less a minority than a remnant. After a century and a half of one-party Democratic rule, Arkansas looks poised to be dominated by Republicans for decades, if not longer.

Then last Thursday, Democrats won a satisfying little victory when House members selected their committee assignments. There are 10 committees in the House – five more important “A” committees and five “B” committees – and Democrats thought they might could gain a majority on one of the A committees if they played their cards right. They did.

The way it works is that the members divide up by the four congressional districts and meet at the same time in different locations, Republicans and Democrats together, and choose their committees one at a time based on seniority. Early in the process, Democrats saw an opportunity to gain a majority on the Revenue and Taxation Committee. Texting each other across the different meeting rooms, they began selecting that committee. Before Republicans could organize to stop them, they had gained an 11-9 majority.

The move meant that Democrats are virtually nonexistent in the other committees, where the partisan breakdown is 17-3 in Education; 16-4 in Judiciary; 16-4 in Public Health; and 16-4 in Public Transportation. But they now have a majority in the committee through which tax cuts travel, or are supposed to travel.

And that might be kind of important, considering one of Gov. Asa Hutchinson’s stated goals is a $50 million tax cut. By controlling that committee, Democrats at least have a seat at the table in deciding who benefits most from that tax cut – lower-income working families, perhaps, instead of higher-income earners. Or perhaps they can use their majority as a bargaining chip for one of their other priorities, such as expanding access to pre-kindergarten classes.

Time will tell how much of an effect their gambit accomplishes. There’s only so much you can accomplish when you’re outnumbered 74-26. Speaker of the House Jeremy Gillam, R-Judsonia, names committee chairs and can select a Republican to chair Revenue and Tax, just as he selected a Democrat, Rep. Joe Jett, D-Success, to chair it when Republicans had a majority. If Republicans want to play hardball, they can change the rules or just ram a tax cut through a different committee. Or they could just let the Democrats have this one. Some Republicans aren’t so sure the state needs much of a tax cut, anyway.

For the foreseeable future, this is the kind of thing Democrats will have to do if they want to remain relevant because it’s going to be tough for them to win at the state level outside of the Delta, Little Rock and Fayetteville. In many parts of the state, Democratic-leaning candidates will have to do what Republican-leaning candidates used to do, which is run for office as a member of the other party. Or they can run as Democrats and lose in hopes of building the party to fight another day – perhaps one a long way off.

Regardless, they’ll have to content themselves with the notion that there are more important things than numerical majorities. They’ll have to use their position to advance their favored legislation knowing many voters probably won’t give their party’s candidates a chance as long as they have a “D” by their names.

It’s not necessarily fair, but it’s how Republicans had to operate for 150 years, and it wasn’t fair then, either.