Arkansas Attorney General Tim Griffin said he will not appoint a member of a racial minority to the Arkansas Ethics Commission because doing so would be illegal and wrong.
Griffin put out a press release Tuesday about his decision to defy a state law requiring that at least one member of the five-member commission is not white. He said he’s choosing to simply appoint no one at all rather than meet a requirement about race.
“This requirement is racial discrimination, which is both wrong and unconstitutional,” Griffin said, citing a 2023 decision from the U.S. Supreme Court that struck down affirmative action in college admissions.
“I took an oath to uphold both the Arkansas and United States Constitutions, which promise equality under the law, regardless of race. Because the Arkansas statute mandates unconstitutional racial discrimination, I am unable to comply with it while upholding that oath. Therefore, I must decline to make this appointment to the Ethics Commission,” Griffin said. You can read his full release here.
One might take issue with Griffin’s argument, though. State Rep. Andrew Collinsa Little Rock Democrat, said interpreting the law is not in Griffin’s job description. That’s work for the courts.
“Unless and until a court holds it to be unconstitutional, the statute should be followed by everybody, including the attorney general,” Collins said.
The Supreme Court’s decision on college admissions rules may or may not apply here, Collins said. That’s up for a judge to decide. But the state law about minority representation on the Ethics Commission remains on the books.
“The law is still the law until the court holds otherwise,” Collins said.
A vacancy was left on the commission in November with the resignation of Little Rock dentist John Pitts, who had been appointed by former Gov. Asa Hutchinson. Blake Flemister, Gov. Sarah Sanders’ first pick for Pitts’ vacated seat, declined the appointment, according to reporting by the Arkansas Democrat-Gazette.
Griffin’s announcement on Tuesday left two glaring questions unanswered.
First: Ethics Commission members are appointed to five-year terms, with the governor, the lieutenant governor, the attorney general, the Senate president and the speaker of the House each getting to pick a representative. The seat that’s currently vacant has been the governor’s vacancy to fill, so why is Griffin stepping in to make the pick?
Second: When then-Attorney General Leslie Rutledge appointed Miguel Lopez to the commission in 2022, she was seemingly required — by the same state law Griffin is now challenging — to appoint a minority and a Democrat, since there would be none on the board with the departure of Denese Fletchera Black woman. Lopez, whose bio on the Ethics Commission webpage touts his Latino identity, ostensibly met those requirements.
“By law, the attorney general had to fill the position with a minority and a Democrat, because neither category is currently represented on the commission,” Arkansas Times Editor Emeritus Max Brantley wrote at the time. “Rutledge said Lopez immigrated to the U.S. as a child and ‘epitomizes the American dream.’ She didn’t mention the requirement of appointing a Democrat and a minority person.”
And reporting by Mike Wickline at the Arkansas Democrat-Gazette drew the same conclusion. “Fletcher’s replacement on the commission was required to be a Democrat and a member of a minority race under state law,” Wickline wrote in November. “In July of 2022, then-Rutledge spokeswoman Amanda Priest said that Lopez “checks all the boxes” required for him to be placed on the commission. Rutledge, a Republican, now serves as the state’s lieutenant governor.
Definitions of race and ethnicity are fluid and up to interpretation, so whether Lopez fits the racial minority requirement laid out in Arkansas code is debatable. But if he doesn’t, that means there’s been no minority representation on the Arkansas Ethics Commission since 2022.
On the other hand, if Lopez does check the box for minority representation, then what is Griffin going on about?
This is a developing story, with more holes to fill. Stay tuned.
