From the Arkansas Statehouse...

Elections and the judiciary.

In Dan Greenberg, Elections, Steve Harrelson on 20 February 2009 at 6:10 pm

The House State Agencies committee this morning approved, by an 11-9 vote, a bill to make elections of prosecuting attorneys non-partisan.

As the close vote indicates, this is a fairly divisive issue. That’s mainly for political reasons. According to Mariah Hatta, Arkansas Democratic Party Executive Director, 24 of 26 elected prosecutors in Arkansas are Democrats. Making the elections non-partisan will rob the Democratic Party of the $7,500 filing fee each candidate must pay to run for prosecutor. (Last election cycle the party returned to candidates the maximum political contribution, said Hatta.) Presumably Republicans charge fees, too, but the high number of incumbent Democratic prosecutors ensures the Democratic Party of steady fee collections every four years.

Rep. Steve Harrelson, a Democrat who voted against the change this morning, stressed that the measure is motivated by partisan politics. (He had some of the same concerns when a similar bill came up in the 2007 session.) He added that making prosecutor elections non-partisan might lead to the same change for sheriff, county clerk and other offices.

Both the 2007 bill and this year’s bill were introduced by Republicans, which has furthered Democratic suspicion.

“Our concern is that there doesn’t appear to any need to change the election process,” Hatta said.

But Republicans contend they are working in the best interest of the judicial system. Rep. Andrea Lea, who introduced this year’s bill, brought a letter of support this morning from Thomas Deen, an independent prosecutor in Monticello. Rep. Dan Greenberg, a Republican House State Agencies Committee member who voted for the bill, has posted a brief essay on why he thinks politics should stay out of prosecutor elections.

Beyond the parochial concerns of Arkansas politics there has been a wider conversation about whether prosecutors should be politically aligned. Like Rep. Greenberg, some think prosecutors should be focused on justice, not elections. But another school of thought says prosecutorial priorities should not be divorced from the will of the electorate. In essence, it argues that justice is a dynamic rather than a static concept. If the public thinks fewer drug convictions are warranted, for example, they have the option of voting for a prosecutor from the Democratic Party, which tends to support such policies. (For a concise look at the pros and cons of elected prosecutors refer to this slightly dated essay.)

Three Democrats voted for the bill today, which suggests that some representatives see this as a non-political issue. It will be worth watching to see how closely the vote in the House follows party lines.

A second elections bill touching on the judiciary is still awaiting a hearing: Rep. Harrelson’s proposal to repeal sections of state law that ban judges from soliciting on behalf of a political candidate. Rep. Harrelson said he is still talking with members of the Arkansas Judicial Council about the bill, which is on the active calendar in the House Judiciary Committee. Even if the bill passes, it would have little practical impact without changes to portions of the Judicial Canons that bar judges from political activity.

UPDATE 24 FEBRUARY: I asked Howard Brill, a professor at Arkansas Law School and an expert on legal ethics, about Sen. Harrelson’s bill. He said it might come into conflict with Amendment 28 to the Arkansas constitution, which arguably gives the State Supreme Court sole authority to regulate judges and lawyers. “Legislative involvement in this issue would present interesting issues of state constitutional law concerning the separation of powers doctrine,” Professor Brill wrote in an email.

The bill is currently on the deferred calendar of the House Judiciary Committee.

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