Opaque National Group Dominates Arkansas Supreme Court Election

Tomorrow, May 22, Arkansas will vote in a nonpartisan election to decide whether Justice Courtney Goodson will keep her seat on the state’s Supreme Court. The candidates themselves have raised only small sums — and spent nothing on television ads — but nontransparent outside groups have spent an estimated $1.3 million on TV ads alone.

The Brennan Center for Justice at NYU School of Law is tracking television ad spending in the race, using data provided by Kantor Media/CMAG as of May 21.

The group spending the most money so far, the Washington, D.C.-based Judicial Crisis Network (JCN), has a history, both nationally and in Arkansas, of spending huge sums to influence judicial elections and federal judicial nominations:  

• JCN in Arkansas: This cycle, Judicial Crisis Network has spent more than $850,000 on ads attacking Courtney Goodson and another candidate, Kenneth Hixson. This is not the dark money group’s first foray into Arkansas’ judicial politics — in 2016 they spent $554,000 on similar attacks ads to defeat Justice Goodson in her campaign to be Arkansas’ Chief Justice.
   
• JCN and federal courts: The group spent $10 million to support the nomination of Supreme Court Justice Neil Gorsuch, after spending $7 million to block Merrick Garland, Pres. Obama’s choice for the same seat. The group is now spending millions on ads to push forward Pres. Trump’s lower court nominees. News broke this week that JCN may also be connected to a shadowy $1 million donation to the Trump inaugural committee.
   
• Goodson successfully sued TV stations running JCN’s ads for defamation: According to the Arkansas Judicial Campaign Conduct and Education Committee, a nonprofit founded by former judges in 2016 to educate voters about judicial candidates, JCN’s attack ads falsely accuse Goodson of requesting a pay raise and hearing cases involving major campaign contributors. Goodson sued to block TV stations from airing the ads, and one judge granted her request, while another said the ads could continue to air. This litigation is ongoing.  
   
• Litigation could prompt judicial ethics questions for judges who benefited from JCN support: Depending on how far litigation over the ads goes, the sitting Arkansas Chief Justice who benefited from JCN’s spending in his own election, and possibly even Justice Gorsuch, may have to address whether they can fairly hear the case. Recusal rules generally do not address the six- and seven-figure independent expenditure campaigns supporting some judges’ elections and appointments.

“Across the country, groups with no connection to states are increasingly drowning out the voices of even the candidates themselves, and refusing to tell the public where their money comes from,” said Douglas Keith, Counsel at the Brennan Center for Justice at NYU School of Law. “Eighteen years ago, Arkansas voters made their judicial elections nonpartisan to insulate them from politics, not to pave the way for national dark money groups and misleading attack ads.”

Running against Goodson are attorney David Sterling and Arkansas Court of Appeals Judge Kenneth Hixson. If no candidate receives more than 50 percent of the vote, the top two candidates will advance to a runoff election in November.

Detailed ad data for individual candidates and groups, including spending estimates, ads, and storyboards provided by Kantar Media/CMAG, are available on the Brennan Center’s Buying Time: Arkansas 2018 webpage.

For national trends, read Who Pays for Judicial Races?, the latest in the Brennan Center and National Institute on Money in State Politics’ Politics of Judicial Elections series.

For more information or to speak with an expert, contact Naren Daniel at (646) 292–8381 or naren.daniel@nyu.edu.

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