*1 124 A. FOSTER
Tim WOMACK Phillip v. 8 S.W.3d 99-953 Court of Arkansas Supreme delivered January Opinion *6 BA., Kinard; Kinard, Butler, Mike and Michael W. Crane & by: Frey, appellant. Roberts, Baramblett; Harrell, and Allen P. D. W. Searcy Jr.;
Eugene for appellee. This is an election- Imber, ANNABELLE Clinton Justice. 9,
contest case. A election was held on March special 1999, a office to fill in the of Ouachita County vacancy Municipal cast, a a No candidate received of votes so majority Judge. election was held on March between the runoff appellant, Womack, Tim A. and the Foster. On of night appellee, Phillip J. election, over 600 absentee ballots as Mr. Foster challenged were on Mr. Foster’s to the absen- counted. Based being challenge ballots, threw tee Election Commission out County Ouachita sixteen for failure of voters with absentee ballots comply laws. Mr. Womack made no absentee votes challenges any was declared the winner as the votes were counted. Mr. Womack 3,011 3,004, seven votes. Not includ- vote margin only 2,337 votes, 2,717 absentee for Mr. Foster tally vote ing The votes added 674 to Mr. Womack’s Mr. Womack. absentee Thus, the absentee votes total and 287 to Mr. Foster’s total. pro- Mr. his seven-vote These vided Womack with margin victory. were the Election Commission of Ouachita results certified by 1999. County April election, Mr. Foster had filed a before the runoff
Shortly for a against writ mandamus declaratory judgment petition Clerk, in her as Ouachita Eve Holeman capacity asking court her to with Arkansas’sabsentee trial order comply of the runoff election. laws in conduct Specifically, had Foster that the clerk absentee-ballot alleged county accepted *7 the did a which not indicate reason for applicants applications absentee, statute; as and that she had also voting required by issued ballots who and to accepted applicants desig- applications to nated to deliver their the clerk agents county applications themselves, because were unable to do so but whose medically they affidavit, medical status was not verified as statute. by by required Mr. Foster further that voter statement alleged to provided absentee voters did not with form mandated Ark. comply by Code Ann. 7-5-409 that the 1997); clerk had (b)(4) county (Supp. § failed to that identified a any absentee voter as require person by bearer, relative, authorized designated documentation agent, sign office; of absentee to her ballots and that she upon delivery had also failed to maintain record of how such had ballots been any many her identified, delivered to office each so by as person required by Ark. Code Ann. 7-5-411(a)(2) 1997). (Supp. 29, 1999,
At a on March Ms. Holeman hearing testified that she advised for absentee ballots that did not applicants have to they indicate a reason for absentee. She also told her voting clerks deputy and to this same advice to employees voters. to dispense According her the clerk’s office testimony, issued absentee ballots to readily voters had knowing not indicated a reason on their absen- tee-ballot She also admitted that she applications. failed to make sure that medical affidavitswere attached to absentee-ballot applica- tions delivered authorized for by who were medi- agents persons unable to cally deliver their own to her office. Further- applications more, Ms. Holeman confirmed that the voter statements provided to absentee voters office her were not in with compliance law. the forms did not contain Specifically, a for the voter to place a bearer to appoint designated return ballot. Nor it a did contain ballot, bearer, for the bearer either place as designated voter, relative of the or authorized his or her name. agent, sign Ms. Finally, Holeman testified that the clerk’soffice did county not maintain a document signed by absentee ballots persons delivering her office or kind of record as to how absentee any ballots many were to her office other than brought person the absentee voter. writ of man- Mr. court Foster’spetition
The trial granted 1999, clerk follow and directed county on March damus However, the trial absentee statutes voting. regarding applicable absentee ballots Foster’s Mr. request court reserved on ruling for, clerk in county or delivered to the issued not by, applied laws, null and be declared void. voting with absentee compliance mandamus, of the writ did not issuance Mr. Womack appeal action was Mr. Foster’s mandamus declaratory-judgment now at issue. the election contest consolidated with eventually filed which timely Mr. Foster’selection-contest complaint, more than 600 absentee votes to cancel sought April numerous instances of based on noncompliance Womack asked the laws. Mr. Foster the absentee with Specifically, voters who did the votes of those absentee trial court to disqualify and those absentee on their state a reason for applications but of an failed to their means agent who delivered applications *8 the to He also asked trial court submit medical affidavit. disqualify the or the ballot delivered all absentee ballots where application relative, bearer, the the voter unless bearer signed or by agent, record that identified the voters and a clerk-maintained statement borne; all and to absentee for whom the ballots were disqualify or undated showing ballots applications, applications supported date, to the altered add the March 9 election or only applications the “all elections.” March 30 election date or words Furthermore, that one voter died to the he alleged prior election; vote in runoff four were not to mentally voters competent election; the ballots of three were the absentee voters fraudulently else; stated on their marked someone seven voters fraudulendy for absentee ballots that would unavoidably applications election and that certain absent from their sites on polling day; Womack’s workers was illegal conduct on of Mr. campaign part attached to the identified and fraudulent. Exhibits complaint Foster and the votes Mr. being voters whose were challenged by he Mr. that reasons for those Foster alleged challenges. Finally, if the election returns were would be the winner of election cast Mr. Womack. On absentee ballots purged challenged 21, 1999, to the election- Mr. filed a answer Womack timely April each Mr. substantive allega- contest Foster’s complaint denying also in his answer Mr. Womack asserted tions fraud. illegality effort disen- to that Mr. Foster’s represented complaint improper and voters, laws of the constitution in violation franchise qualified and federal U.S. Constitution Arkansas, of the in violation and laws. and rights civil rights to his earlier amendment complaint filed a
Mr. Foster timely of the to allegations In addition restating many 1999. on April four voters were he that alleged in his complaint, found original vote; five voters were to and not entitled felons legally convicted vote; to not entitled and County signature residents of Ouachita voter state- were on applications forgeries irregularities voters; ments; not exist for 10 cards did voter-registration on their voter absentee to a valid reason for voting voters failed state statements; voters, indicated whose appoint- applications reasons, attach for medical failed to of an authorized agent ment statements; some to or voter affidavits their medical applications available vote at their absentee polling voters voted despite being workers inserted on election and Mr. Womack’s campaign sites day; after the of bearers on absentee-ballot appli- the names applications had signed application. already counterclaim, Mr. Womack filed a also On May he with absentee laws. Specifically, alleging noncompliance made to the that Mr. Foster’s workers changes alleged campaign after those materials ballot materials of unidentified absentee voters but before to the court had been filled out voters delivery Foster; clerk; that one identified voter was to vote for that paid cast other than of three identified voters were the ballots by persons voters, acting powers-of-attorney; thirty-one pursuant were nonresidents of Ouachita and not identified voters vote; ballots were delivered to clerk *9 entitled eight by voters, when, fact, in to be relatives of identified persons claiming relatives; voters were not that certain of unidentified they signatures to be that more than five forgeries; containing envelopes appeared address; to a certain that all ballot materials were delivered illegally returned more than five votes should be canceled where bearers clerk; in and that unidentified felons voted county ballots to Mr. also that the clerk disen- election. Womack alleged county to issue franchised certain unidentified voters when she refused for materials to them because their absentee ballot applications before the election did not with ballots tendered day comply laws; that she disenfranchised absentee and twenty-five voting voters whose ballots were counted unidentified absentee because had not been delivered to the clerk’s office until the after the election. day
Mr. Womack further the Election Commission’s challenged reasons, of certain absentee ballots for various rejection including the voter’s failure to attach a medical affidavit to his or her applica- statement; tion or voter the voter’s married name not matching card; name on the the voter’s failure to voter-registration properly statement; and tender voter and sign, ballot complete, stubs lost or Most being Womack misplaced. significantly, alleged his 3 counterclaim that the May Ouachita Election Com- mission violated Section of3 Amendment 50 to the Arkansas Con- stitution by number ballots thus failing correctly, rendering all ballots used in the election untraceable. Mr. Womack restated this in a for allegation motion filed on summary judgment June 1999, and further asserted that the failure to with the comply constitutional rendered the entire numbering requirement election void, that the results thereby election be set requiring aside. Mr. Womack 7, 1999, filed an amended counterclaim on June of his earlier restating many he allegations. Additionally, alleged various instances of and fraud Mr. illegality Foster’s campaign workers and asked that all absentee ballots handled them be set aside and canceled. Mr. Womack also rebutted of the earlier many made Mr. Foster in allegations his and amended complaint complaint.
A trial was held on Mr. Foster’s and amended com- complaint and Mr. Womack’s counterclaim and plaint amended counterclaim over the 8, 1999, course of eleven on days, beginning and June ending 1999. Mr. July Foster first several introduced exhibits that contained separate absentee-ballot groups applications voter statements the following and voter categories: applications statements in absentee; which no reason was voter given statements where was marked as the reason “early voting” for vot- absentee; ing and voter statements in which applications medical absentee, reasons were but given with no medical affida- attached; vits undated; that were applications with applications no election date or an incorrect or crossed out election date. Mr. Foster also certificate, introduced certified of a death copies order, and circuit court guardianship records reflecting felony convictions four individuals. *10 Smith, to about his testify called Sylvester Jr., Foster then
Mr. work, Mr. Smith As of that Mr. Womack’s campaign. part work for to vot- and 200 absentee-ballot applications between 100 delivered Mr. Smith the to for Mr. Womack. gave them vote ers and urged votes: he solicited absentee of how description following to I have out and tried gotten get people last years the several [F]or that was always complaining in voting that wasn’t involved street, I it convinced a anything polls. but about at doing never to in the After process. lot them to vote involved register get election a lot of them every involved in they process, got to the street continue vote absen- wanting me down on to flagged tee, Okay. in being process. involved A lot of these work at application. people I would them a get A of leave at 6:00 lot them places. They morning. different to to a night, home until 7:00 at make trying struggle don’t get for their families. living a would sign I would then Okay. get application. They applica- — to them that I could only
tion. I would front up explain — from the Clerk’s to Clerk five ballots according pick up me, would ask “then who would be bringing my office. They “Well, bearer, I’d I a a ballot?” would have to find say, designated Do I your bearer to and obtain ballot. mind?” “No. don’t go you mind, I but to ballot back to me. don’t want you bring I want my to house or in that I any stranger coming day person my [sic] don’t know.” A lot of these are that I assistin elderly people people because cannot to the voting, get they polls. know front that that I’m not They on these
Okay. up applications bearer, that I can only Okay. be the five. I asked Ms. going get did Bevers she know some credible honest that people, people bearer, would mind they would work to to go pick up ballot. She said she she could find some bearers. No thought Okay. know, front, been, one has fooled or tricked. these Up you people have these Smith is signed They Sylvester know applications. their Sylvester them obtain ballot. know Smith going help They bring their ballot back to them. know after going They vote, are to be of them going these ballots sealed front up and either to the or mailed back to taken back bearer polls the Clerk’s office. Smith his
During testimony, produced twenty-nine envelopes that he had ballots and voter statements original original containing *11 in his on election but that had not been delivered to possession day, voters. worker,
Randall C. another Womack Ferguson, tes- campaign tified that he had vote absentee for at least helped people eight he and that also solicited in excess 100 absentee votes for years, Mr. Womack. Mr. method of absentee votes Ferguson’s soliciting Smith, was similar to that of Mr. that Mr. Ferguson was except shown on each as the voter’s authorized to deliver application agent because the voter was unable to application medically deliver However, medical affidavits were not attached application. of the or voter statements that identified Mr. Fer- any applications as the voter’s authorized Mr. guson agent. Ferguson acknowledged statements, on that some voter he was identified as a incorrectly voter’s relative the ballot to the delivering clerk’s purposes office. He also testified that he saw voters mark their ballots and sign their voter statements and that he would voters their help place ballots and voter statements in the and then appropriate envelopes seal the Mr. Finally, Ferguson after envelopes. acknowledged he had office, delivered at least five ballots to the clerk’s personally he to mail the each began absentee voter’s envelopes containing ballot and voter statement back to the clerk’s office. absentee voters and their relatives were called to
Many testify about numerous instances of in the absentee impropriety voting Several of those absentee voters testified that process. could they have voted at their on election regular polling places Some day. witnesses testified about the mental and condition of their physical or who were absentee voters in the spouses parents runoff election. Other witnesses testified about the status of their a residency relative’s in Ouachita residency on the date of the election. witnesses testified that Mr. Smith or Mr. Many assisted Ferguson them or their relatives in absentee. For Mildred example, husband, Hill, Ann Hill testified that she and her Robert allowed Mr. Smith to mark their ballots because did not have glasses at the time. Moore testified that he relied Grady Mr. Fergu- upon son’sadvice when he his wife’sname for an signed application statement, absentee ballot and to the voter as well as when he time, marked her ballot. At that his a wife was at living nursing home and could not communicate with Ford Gwen testi- anyone. fied that Mr. witnessed her for her- Ferguson sign applications Sanders, self and her Sherman Sanders and Beadie and that parents, worker, Cook, was Milton fellow present campaign Mr. Ferguson’s all three and marked three voter statements she all when signed time, at her mother was stroke patient nursing ballots. At home. saw her testified that Ferguson Sudie Similarly, Jackson herself, also Ben Davis and but materials for not only
sign mother, Several witnesses who had designated *12 Callie Murphy. her to their authorized deliver applications Mr. as their Ferguson agent so, to testified that unable do they because were medically at clerk’s office and for other absentee voters ballots up picked to Mr. Another Womack delivered them Ferguson. campaign Kendall, worker, ballots from solicited absentee nursing Nancy five of those She was a home residents. designated agent residents, attach medical affidavits to their but did not applications also solicited several other or voter statements. She applications bearer’s name was inserted. where another witness in the field of Linda R. testified as Taylor expert that examined the voter examination. She testified she handwriting statements, and, instances, the voter- in some voter applications, in the of the absentee voters who voted cards many registration As of her she offered her testimony, runoff election. expert part it that absentee voters did that was sixty-six highly probable opinion statement, both, either the voter or not sign application, voters that the on the voter statements five absentee signatures did not on their Ms. match signatures respective applications. identified absentee voters in a those Taylor seventy-one specifically report.
After Foster concluded his testimony presentation he evidence the ballots was concerning challenging, parties to As the absentee ballots were facts: stipulated following being election, election officials on the of the Mr. Foster day processed ballots. The 630 of about 1000 absentee challenged approximately ballot, with the voter each absentee along envelopes containing stub, The election offi- statement and ballot were then segregated. ballots for various cials rejected twenty-six irregularities, including statement, the failure of the voter absence of a voter sign statement, or incorrect voter signatures, signatures illegible then aside ballots were set names. unchallenged Approximately counted, from those to be and the ballot stubs were separated ballots. This made it who impossible cast identify persons those ballots because the ballot numbers and the voter numbers on the ballot stubs. After a on Mr. Foster’s appeared only hearing the Ouachita Election Commission challenges, rejected ballots, seventeen more with one thrown out because the stub being and the sixteen remaining thrown out because missing being the voter statements identified the reason for as medical but no medical affidavits were attached. The Election disability, Commission then count but began challenged unrejected ballots. at It was that the back of each point ballot challenged was marked with the ballot number on that ballot’s stub so printed that each ballot could traced to voter.
When the recitation of the above facts was com- stipulated the trial court ruled that Mr. Foster had made pleted, a primafacie the ballots 546 identified absentee showing voters should be set aside as not in with the laws of Arkansas. The compliance parties then that 518 of those absentee ballots stipulated were cast for Mr. Womack.
Mr. Womack then with the of his proceeded case presentation Holeman, Clerk, and called Ms. the Ouachita as his County first witness. She testified about attending education regular continuing clerks where she programs county would receive and training information on the current status of election laws and procedures. Ms. Floleman confirmed to the issuance of the prior writ of mandamus on March her office did not that one of verify two reasons absentee had statutory been declared voting on each When the application. application author- permitted delivery by ized Ms. Floleman agent, would a medical only require affidavit if to be in applicant a going home on hospital nursing election Nor she would day. whether information verify about the election was filled out or particular whether an properly application that indicated it could be delivered aby relative or bearer designated was in fact delivered a relative or someone who knew the voter. Flowever, she did a list of the keep names of those separate persons who ballot materials for picked other voters in to up order enforce the five-ballot rule.1 She would also a list of the voters who keep (with Ballot materials included ballot a ballot number on the back of the printed detachable ballot stub and the words “List Voter’s Number” on the front of printed stub), detachable ballot ballot voter and statement, outer envelope, envelope. to avoid ballots in order sending duplicate absentee issued were the same voters. to ballots to in her office were and conveyed procedures
These policies who and workers sought gui- and to voters campaign her clerks Ms. Holeman further absentee procedures. dance regarding counted because were not ballot that twenty-five packages testified the election. office the after day received the clerk’s were they cross-examination, her earlier testi- reaffirmed Ms. Holeman On used her that the voter statement at the mandamus hearing mony also with the law. She March 29 did not before comply office on absentee that her office’s previous policies confirmed the writ of mandamus. Ms. Finally, after changed procedures Ouachita vote testified that voters in by paper Holeman machine. ballots are then tabulated by ballot and the worker, Bush, testified a Foster by deposition campaign Ray He would take the method of absentee votes. soliciting about his out, voter, it filled and then take to Mr. it get application had been filled would make sure it office where someone Foster’s one of the secretaries If corrections were necessary, out correctly. or check a box that needed fill items would missing then take the clerk’s Mr. Bush would checked. application ballot, office, take it to the voter. He would tell up pick statement, both fill out the ballot and the voter voters how to place take the back to office items in the envelope envelope, were out the envel- the ballot and voter statement where pulled had and checked to make sure been filled out properly. ope voted, voter the envel- a record of how the absentee After making then be sealed and delivered to the clerk’s office. would ope could be a ballot bearer due to the When Bush no longer rule, he to ask each voter not to fill in five-ballot began spaces *14 voter statement for the bearer’s name so on the or the application the the a bearer’s name could be inserted at office. When blank, he would the off at bearer’s name was left application drop office, the at which someone else would take application point materials, office, and return the voter’s ballot to the clerk’s pick up to the office them to the office. Mr. Bush would then and pick go voter, materials, those ballot deliver them the and return up to the office to the clerk’s ballot materials for delivery completed a of a federal another bearer. to certified According office by copy Womack, court record introduced a criminal had by judgment entered been Mr. Bush 1993. against
Andrea Easter testified that Herbert by deposition Thompson sister, $5 her to vote for Mr. Her Foster. Carla also paid Purifoy, $5, testified that Mr. her by deposition gave Thompson possibly Foster; her to vote for Mr. but she didn’t know if she encourage voted, much less who she voted for. Mr. testified Thompson by that he was hired Mr. Foster to take deposition by to the people to vote. He denied to vote for Mr. polls Foster paying anyone runoff election. He testified that also someone else his name signed on two absentee-ballot applications. 26, 1999,
On the trial court issued its written July findings fact, law, conclusions of that invalidated 518 judgment absentee Thus, votes for Mr. Womack and one absentee vote for Mr. Foster. Mr. Foster due votes trial court’s gained and was findings declared the winner 510 votes. The 518 by absentee votes for Mr. Womack were invalidated the trial court for the by rea- following sons: 495 were invalidated because the absentee-ballot applications absentee; did not indicate a reason for voting twelve were invali- dated because the voters testified that were they availableto vote at their sites on election polling fact that voted day, despite absentee; fifteen votes were invalidated because the name of the bearer was filled in someone other than the voter after the voter had signed votes were application; sixty-four invalidated because, to the witness, of Mr. Foster’s according testimony expert Linda those ballots were cast as a Taylor, result of a on either forgery statement; or the voter application 119 votes were invalidated for failure to attach a medical affidavit and because Mr. additionally Randall voters; Ferguson mailed the ballots in for the ten votes were invalidated because the either no reason for applications gave not on election was listed as a after day, bearer the voter person signed Smith Sylvester mailed the ballot in application, voter; one was invalidated because the voter died before elec- tion four votes day; were invalidated because the were voters residents of Ouachita four votes were County; invalidated because the voters were and four mentally votes were invali- incompetent; dated because the voters were convicted felons. votes were Many thrown out for reasons. The trial court reached the multiple total number of 518 votes for not invalidating reason on stating absentee, the absentee-ballot invalidat- application
141 the other reasons votes some additional twenty-three an ing listed above. the entire elec- Mr. Womack’s argument to
With regard with numbering for failure to be voided comply tion should Const, 3, 50, the trial court found amend. of Ark. requirement conducted by was in Ouachita election runoff Thus, court ruled that the trial “ballot.” rather than by “machine” no there was consti- not and did apply, numbering requirement that Mr. Womack further stated The trial court violation. tutional on the constitutional numbering based waived any argument have known knew or should because Mr. Womack requirement before the runoff election of the ballots the numbering about noted also that numbering require- The trial court conducted. election, ment, be direc- would before only while mandatory the election. after tory counterclaim and Mr. Womack’s trial court dismissed
The P. for failure to Ark. R. Civ. 12(b)(6) counterclaim under amended could facts which relief granted. According state sufficient upon court, and amended coun- to Mr. Womack’s counterclaim the trial of the election that the outcome sufficiently terclaim did allege if were rule in his favor on his be different the trial court would trial court found that for affirmative relief. claims Specifically, were of instances where voting irregularities alleged majority occurred, did for whom the have not allege ques- pleadings the counterclaim tioned votes were cast. Despite dismissing claim, the trial court amended counterclaim failure to state raised Mr. to rule on merits each point proceeded Mr. would victory Womack and concluded that Foster’s margin Thus, votes, even when the be reduced 37 that is 473 votes. of Mr. claims for affirma- trial court reached the merits Womack’s relief, remained the winner the election.2 tive Foster the trial court’s
Mr. Womack now this from brings appeal On and raises several of error. assignments September judgment we Mr. Womack’s motion to advance the granted appeal schedule. Womackv. the docket and establish briefing expedited Foster, curiam). Ark. (1999) S.W.2d 737 (per allegations of U.S. trial did not rule on Mr. Womack’s violations of the The court rights rights and federal civil laws. Constitution *16 142
Section 3 Amendment 50 to the Arkansas Constitution. of
For his first on Mr. Womack that the point appeal, argues Ouachita Election Commission failed to record the voter County the number on absentee ballots the on or ballots cast election any 50, 3, as Amendment section day by to the Arkansas required Constitution, which states: In electionsby ballot ballot shallbe numbered in every the order in received,
which it is the number shall be recorded the election by officers on the list of voters the name elector who opposite ballot, and the election presents officers shall be or sworn affirmed not to disclosehow any elector voted unless required do so as witnesses in a judicial or proceeding proceeding contest an election. Const, 50,
Ark. amend. added). 3 The number referred (emphasis § number,” is, into section 3 is the “voter the number assigned to each in voter the order of his or her at the appearance polling or in the case of absentee in the place, order that each outer voting, absentee-ballot and the voter’s name is read envelope opened aloud from or his her voter statement. Ark. Code Ann. §7-5-416 1997). (Supp. The trial court ruled that the runoff in election Ouachita Const, Thus, machine and by ballot. Ark. by election,
amend. did not to that and voter numbers apply § were not to be recorded on the required ballots. Mr. Womack that the election at issue was conducted argues ballot and that the by trial court erred that it was machine. The voters holding by this election marked ballots awith The printed paper pencil. ballots were then fed into a machine known as the American Information (“AIS Machine Systems for the machine”) purpose the votes. tabulating
Two methods of are established voting Arkansas by 2 Constitution. Section of Amendment 50 to the Arkansas Consti tution states “all elections shall be or by ballot people machines which insure the voting of individual votes.” secrecy As stated, section 3 of previously Amendment how bal prescribes lots Whereas, shall be numbered in elections ballot. 4 of section Amendment 50 to the General delegates Assembly power rules in elections prescribe machines: by voting machines “voting be rules as and under such may pre- extent such be used to may Assembly.” General scribed by statutes has enacted governing General Assembly
The 7-5-501 —531 Ann. See Ark. Code machines. election by §§ 7-5- to Ark. Ann. Pursuant Code 1999). Supp. (Repl. used in election any acquired machines “may or county upon adoption in a municipality conducted of the municipality body therefore by governing ordinance statutory The specifications court of county.” the quorum *17 machine must be constructed that the machines voting provide votes, must also be but the voter the tabulation of to only perform the machine.” Ark. act of “on voting able physical perform 1993). Ann. 7-5-504 Code (Repl. § ballot are also the of certain subject Elections by paper For Ark. Code Ann. 7-5-208(b) statutory example, provisions. ballot shall be that 1999) printed paper (Supp. provides “[e]ach use of detached for as the a being with perforated portion capable used, ballots are the voters elections where ballot stub.” At paper ballot, of and the votes are then calculated without the aid mark the 7-5-309, 1999). a machine. Ark. Code Ann. (Supp. §§ method of 7-5-601 —615 another Sections provide yet entitled “Electronic Section 7-5- in voting Voting.” subchapter 601 states: this to authorize the use of electronic
The of purpose subchapter of in which the voter records his votes means voting systems by cards, are so (1) or one or more vote which punching marking machines at that votes be counted data designed may by processing In the enactment of this sub- (1) counting one or more places. the General laws Assembly recognizes existing chapter, machines in elections voting authorize use of ballots or paper this and that it is not the intention of this state subchapter isIt this any subchapter of those laws. modify purpose repeal votecardsand electionresults to establish method marking tabulating be in additionand existingsystems whichshall supplemental ballotor as defined in Act 53 of by votingmachines votingbypaper 1963 [repealed]. Ark. Code Ann. 7-5-601 —615 1993 and
See (Repl. Supp. §§ 1999). added.) (emphasis
We must first determine what method of used voting the March 1999 runoff election. Ouachita voters voted a mark on a vote card with a by making printed special pencil, much like was done on ballots in the before voting paper days any of mechanical or electronic was used. type Once the equipment voters marked their vote cards with the the vote cards special pencil, were fed into the AIS machine tabulation. This was an clearly “electronic as described in section 7-5-601. voting system” 50, however, Amendment elections only recognizes ballot by elections machine and by does not voting elections recognize by Nonetheless, “electronic system.” Womack voting argues this “electronic should system” be considered voting voting ballot because the vote cards are used for actual and the voting AIS machine is used for the tabulation of only votes. We must therefore decide whether the Amendment 50 numbering require- ment to electronic such as the applies one voting systems used Ouachita County.
Electronic voting tabulate cards systems merely voting that have been filled out the voter in the same that a way paper essence, ballot would be filled out. In the voter is paper hand, machine, ballot. On the other when a voter uses a *18 voter is actually the act of on the performing physical machine, and no ballots or cards are paper involved. Addi Ark. Code tionally, Ann. 7-5-604(b) 1993) states: (Repl. § So far as applicable, procedures law provided by for voting by other than electronic voting systems] and the conduct of [means the election in officials, thereto regard election not other- wise inconsistent with this shall subchapter, apply system electronic voting and tabulation as authorized in this subchapter. We therefore hold that the electronic used in the voting system 30, March 1999 runoff election constituted an election ballot and was to Amendment subject 50 s The numbering requirement. trial court erred in otherwise. holding
We now consider whether Ouachita County’s election officials with Amendment 50’s complied In this numbering requirement. election, runoff the election officials voter numbers on the placed ballot stubs as were received. Mr. Womack they asserts that the ballots were not numbered because the properly Arkansas Constitu- tion that the voter numbers be requires on the ballots that so placed in election traced contest.3 voter bemay cast aby the vote with officials complied whether election then is The question numbers the ballot the voter on 50 when they Amendment placed 3 of ballots. Section stubs, on the than portion rather upper in ballotshall be numbered that “every states Amendment merely and does not where it received...” specify in which the order Mr. Womack that the on the ballot. argues be number must placed for the voter num- was of that constitutional clear intent provision that the voter’s vote such a way on ballot ber to be placed ever We if that vote were challenged. agree. be determined could voter numbers constitutional recording The requirement of the Arkansas Constitution with Article section ballots began stubs, however, were not Perforated ballot implemented by of 1874. until See Ark. Stat. Ann. 3-818 1949. the General Assembly § time, was the voter number Prior to that 1956). placed (Repl. ballot, in the voter number and the onto the directly resulting Ark Ann. shown on one document. Stat. 3-911 voter’s vote being election, of the voter list was After the one (1947). placed copy box, was to the Election Commis- the ballot which County given 3-1008, 3-919, Ann. and 3-1013. Under this sioners. Ark. Stat. §§ voter because Election there was no secrecy system, list, had access to the voter which contained Commissioners number, the ballots that contained the name and voter voter’s hand, were numbers. On the other election officials able to voter as for election-contest trace votes constitutionally purposes, required. Act 353 of the lower one inch of each ballot
Pursuant to
detached,
it
and the ballots
had to be
so that
could
perforated
as
were
were
be numbered
with
consecutively
printed,
on the lower
of the ballot and
same number being
portion
placed
on the
of the ballot. Ark. Stat. Ann.
3-818 —3-
portion
upper
§§
This
referred to as
num-
number is
the “ballot
1956).
(Repl.
the words “List of
Number”
ber.” Act 353 also
Voters
required
*19
blank,
a
be
on the lower
of the ballot.
followed by
printed
portion
3
ruling,
argument
this
to the trial court’s alternative
was not waived
Contrary
by
to the election. Until
election officials
the voter numbers on
Mr. ‘Womack
placed
prior
polling
when
either at the
the absentee-ballot
the ballots on election day,
places
envelopes
numbering
not have known
of the ballots
being
were
Mr. Womack could
opened,
12,
v.
336 Ark.
S.W.2d
might
Henrickson,
with Amendment 50. See Pearson
983
comply
(1999).
419
Ann.
Under
Ark. Stat.
3-821.
this
election officials
system,
were
§
able to determine how a voter
first
voted
at the voter fist
looking
number,
to find the voter’s number.
that voter
With
could
locate the ballot stub.
ballot number
The
on the
stub would
ballot
then lead them to the
of a ballot which contained the
upper portion
Therefore,
same ballot number and the voter’s vote.
the statutory
scheme
for
allowed
but
remained
tracing,
secrecy
questionable.
432,
Little
In
Rock v.
233 Ark.
The General amended the Assembly election laws of this state in 1969 because “the election laws are ancient and present outdated and have caused and are part much confusion and causing con- Clause of Act troversy....” Emergency 465 of Act 1969. 465 again that the lower one inch of provided each ballot be so that perforated it could be detached Number,” and that the words “List of Voters blank, followed be on the lower printed the ballot portion with the along ballot number. Ark. printed Stat. Ann. 3-613 (b), § (c), (f) The 1969). ballot number (Supp. on the printed ballot, but it upper was to be covered portion with black sticker that could be removed on the only order of a court. proper Ark. Stat. Ann. 3-613 (c) and This (d). system provided § contest, in the case of an complete tracing election and also allowed due to the use of a greater secrecy blackout sticker. Ballots were to be Board of Election kept County Commissioners after election, and the stub boxes were to be kept by Treasurer. Ark. Stat. Ann. 3-718. While each of these officialsalso list, had a voter the stubs and the ballots were so that separated was maintained. secrecy
147
in 1969
the General Assembly
established by
The system
the subse-
Act
of 1995 amended
until 1995.
461
in effect
remained
3-613,
Ann. 7-
Ark. Code
Ark.
Ann.
of
Stat.
codification
§
quent
§
on the
be
5-208,
that the ballot number
printed only
to provide
Ark.
of the ballot.
Code
the
portion
ballot stub
upper
Furthermore,
the
Act 461 deleted
1999).
Ann.
7-5-208 (Supp.
§
number,”
of
followed
the
“List Voters
words
printing
provision
the
were
place
Election officials
only required
Id.
blank.
by
Ark.
absentee ballots. See
Code
the stub end of
number on
voter
7-5-208,
Act
as amended
Section
1997).
by
Ann.
7-5-416 (Supp.
§
be held
the
that the ballots
by
County
also
461 of
provided
Officials,
the
Trea-
the stubs be held
County
by
of Election
Board
surer,
the
Ark. Code
fist be filed with
Clerk.
and the voter
Under this
total
1999).
system,
secrecy
7-5-317
Ann.
(Supp.
assured,
in the event
an
to trace votes
of
be
but
ability
would
be
This
would no
available.
statutory
election contest
longer
time
the runoff election in this case.
was in effect at the
of
scheme
Act
1995
General
enacted
461 of
Although
Assembly
votes,
of
Amend
and foreclose
to ensure total secrecy
tracing
still
the numbering
ment
to the Arkansas Constitution
requires
50
In
Little Rock v.
in elections
ballot. City
Henry, supra,
of ballots
of
it
constitutional
albeit while
we addressed that particular
provision,
it
section
to the 1874 Constitution and before
was still Article
court’s
as section of Amendment 50. This
was
interpre
readopted
the constitutional
was succinctly
tation of
numbering requirement
in
v.
Rose Smith
Little Rock
George
City
expressed
Justice
Henry, supra:
that the
of the
did
It is
clear
draftsmen
constitution
perfecdy
to be a mere
numbering
not consider the
ballots
gesture
To
contrary,
no
the matter
practical significance.
having
it
as a
deemed so
that was written into
constitution
important
election,
not to be
fundamental requirement
every
dispensed
the courts.
with by
legislature
as a
the reason
Section
of Article 3
studied
whole
When
for the
of the ballots cannot
mandatory numbering
open
alongside
If the number of each ballot is recorded
doubt.
election contest to open
voter’s name it becomes
possible
voted.
if an
ballot box and determine how each
Thus
person
ten votes and
should
be decided
apparently
by margin
election
voted, the
numbering
it is shown that twenty ineligible persons
*21
the ballots enables the
to declare the
courts
winner with certainty.
Obviously this clause in the
is
constitution
an effective precaution
fraud and a valuable
to the
against
safeguard
purity of elections.
436,
Thus,
With the abolition in 1995 of the framework statutory established Act 465 of 1969 that the by of a ballot required printing number on the and lower of the ballot and the upper portions stub, insertion of the voter number on the ballot there is no longer scheme that statutory Moreover, allows for the of votes. tracing the absence of a ballot number on the of the ballot upper portion also forecloses when voter number tracing on the stub placed ballots, end of absentee as Ark. Code Ann. required 7-5-416. by that, We therefore hold in the absence of scheme that statutory votes, allows for the of tracing with Amendment 50’s compliance in numbering requirement elections ballot by mandates that the voter number be on the of the placed portion ballot so that upper is, of that amendment purpose that may so accomplished; that in an election contest it will be to determine how a possible voter voted.
With to the regard this we impact holding secrecy, as we did in acknowledge again, Little Rock v. City Henry, supra, “that the of the ballot secrecy is better by protected machine than our traditional by method of since the use balloting, of the machine else from prevents ever anyone how an discovering elector voted. But this circumstance is offset the fact that the constitution, draftsmen of the with the available to them knowledge 1874, chose subordinate the of the ballot secrecy purity Likewise, of the election.” Id. 50, the drafters of Amendment with available to them in knowledge chose to continue to subordinate the of the ballot to the secrecy the election in purity the case of elections ballot. case,
In this the ballots for the March 1999 runoff election for Ouachita County were Municipal Judge printed accordance with the that foreclose the statutory provisions tracing is, ballot That numbers were on the ballot of votes. printed only election, On the voter numbers were stubs. day only ballots, on the stubs and not on of the recorded upper portion it to trace votes in election thus contest. impossible making circumstances, these we must Under conclude Amendment violated Ouachita 50’s requirement numbering officials.
With
to a
for this constitutional viola
regard
remedy
tion,
asks
Mr. Womack
this court to void the entire
It is
election.
election,
well
to an
of the
settled
election
prior
provisions
Bettis,
laws are
v.
329 Ark.
to render the doubtful. Put in other we have said that officers, the failure to with the letter of the comply law election by control, in matters over which the voter has no especially which no fraud will not perpetrated, general as a rule render an void, sum, election unless the statute makes it so. In expressly courts favor do not voter of the disenfranchising legal because misconduct of another person. 434, at
310 Ark.
election voided.4
undermine the freely expressed
would
election officials
duct of the
Bettis,
v.
cannot do.
This we
Doty
of the voters.
will of majority
Serio,
S.W.2d 847 (1992).
Ark.
830
v.
Reichenbach
supra;
and amended
Failure
counterclaim
action.
to state a cause
counterclaim
that the
Mr. Womack argues
second
For his
appeal,
point
and amended coun-
his counterclaim
trial court erred
dismissing
counterclaim
Mr. Womack’s
The trial court dismissed
terclaim.5
12(b)(6)
R. Civ. P.
to Ark.
amended counterclaim pursuant
The trial
relief can
state facts
which
granted.
failure to
upon
that
invalidating
that Mr. Womack did not
court ruled
allege
in the
the voters named or referenced
pleadings
votes of
occur;
in a
and that
majority
election result would
different
occurred,
to have
were
instances where voting irregularities
alleged
voter voted.
did not
for whom the
allege
pleading
v.
statute. Reed
are
Election contests
governed entirely
such,
are
Baker,
As
Ark.
In
Ark. Code
construing
held that a claim
this court has
its
1993) (and
predecessor provision),
relief in an election contest must state
for affirmative
prima facie
reasonable
facts to
the other
case and
sufficient
give
party
plead
McKe
v.
as to the
of the contest. McClendon
information
grounds
521,
must do
own,
The
Ark.
151 contest, in one name the relief an election must voters who alleg ballots, that voted for cast invalid the other candi they edly allege date, the of invalid that total votes is sufficient to allege Id.; Hill, 106, outcome of the election. Files v. 268 Ark. change 836 We reaffirmed these (1980). 594 S.W.2d recently requirements a claim for affirmative in relief election-contest cases. stating minimum, Ark. v. At Whitfield, (1999). S.W.3d King for affirmative relief must include the number complaint candidate, votes received each so that it after appears, subtracting votes, invalid claimant has more votes his than alleged Id. opponent. case,
In this Mr. Womack’s counterclaim and amended coun- terclaim made several for affirmative relief. he requests Specifically, the trial court to asked invalidate all absentee ballots unchallenged that were not marked in election officials accordance with Amendment section to the Arkansas Constitution.6 He also the trial asked court invalidate numerous absentee ballots because fraudulent and on the acts of Mr. alleged illegal Foster’s part workers in for absentee campaign handling bal- applications lots and absentee-ballot materials. of these Many failed allegations to name the who voters cast the invalid ballots. allegedly Voters to have been alleged disenfranchised were also not iden- wrongfully Moreover, tified. in those instances where voters were identified by name, Mr. Womack failed whom voted for allege information, runoff election. Without we cannot conclude from the face of the counterclaim and amended counterclaim whether Mr. Womack would have had more votes than his oppo- nent. Finally, relief both the concluding request counter- claim and the amended counterclaim stated as follows: cause,
Upon competent evidence in this hearing the Court will come to the conclusion that more qualified, votes were proper cast for Womack than were cast for Foster.
This statement fails to state a conclusory cause action. clearly *24 6 argues Mr. Womack that the violation of Amendment 50 it made for impossible allege him to for whom the voters at he voted the time filed the counterclaim and amended challenged. argument, counterclaim unless the votes were ignores This however, the fact pleading stage the at of an election a contest, contestant will not have access the ballots. after the trial court hears the evidence and makes a Only determination that the ballots are invalid will the votes on those ballots be disclosed. 152 in Wheelerv. 239 our decision Jones,
This case is controlled by from where the omitted (1965), 390 S.W.2d plaintiff Ark. from the votes. benefited his which candidate illegal complaint and then Instead, total votes candidate the set out the per complaint in an absentee box and were that 52 named voted asserted persons and named voted in electors that 196 precincts persons qualified demurrer, reside. The trial court sustained in which did not did not a cause of and held that the state we affirmed. We complaint whether the contested did not because the allege action plaintiff the cast the candidate or that election results were for other votes Likewise, if were set aside. Mr. would be different those votes and did not counterclaim amended counterclaim allege Womack’s were cast for whether all of the contested votes his opponent votes, that, invalid would have had after he subtracting alleged more votes than his opponent. Mr. counterclaim and amended Womack’s
Although and counterclaim asserted numerous conclusory allegations general of Mr. cam of misconduct and fraud on Foster’s serious part workers, cause we conclude that neither stated a pleading paign Thus, relief an election contest. we affirm action for affirmative Womack’s and the trial court’s dismissal of Mr. counterclaim amended counterclaim. votes Invalidation 495 failure for
to state reason absentee. voting Based on the set forth in Fowler’s allegations complaint and and amended evidence testimony complaint, presented trial, votes, at court invalidated a total of 518 trial absentee which votes cast for Mr. Womack. 495 of those were absentee votes invalidated because the voters did not state a were their reason for absentee on absentee applications for Mr. Womack make ballot. Because these votes up court, trial votes invalidated we consider majority them first. section 7-5-402 1999)
Arkansas Code Annotated (Supp. cast absentee ballots: may provides only following persons will absent from his who be “(1) unavoidably Any person election; will on the of the who (2) Any place day person
153 on to attend the election because of illness or unable polls day The absentee-ballot form disability.” physical application provided clerk used the voters in this case and was substan- county to the form out in Ark. Code Ann. similar set 7-5-405 tially form, that each asked to one On voter was check 1997). (Supp. in section that a voter cast an two reasons listed 7-5-402 qualify absentee ballot: I
Because _ will absent from unavoidably on my voting place
election OR day, _ will be unable to attend the on polls election day
because of illness or physical disability,
I am
me with the
requesting
you provide
absentee
appropriate
ballot(s)
elections.
following
The trial court did not err when it threw out 495 votes
for Mr. Womack because the
who
voters
cast those votes failed to
indicate a
reason for
absentee on their
statutory
absentee-
voting
Kirk,
958,
ballot
In Roach v.
228 Ark.
application.
Mr. Womack
that even
these
argues
voters
though
may
have violated our election laws by not
a reason
indicating
for voting
absentee on their absentee-ballot
their votes should
applications,
not be invalidated for such “technical failures.” We
We
disagree.
have held that there must be strict
with
compliance
statutory provi
sions
regarding
ballots,
application
absentee
casting
even if the
after the
challenge
brought
election has occurred.
v.
477,
Eureka
241 Ark.
Bingham City
Springs,
S.W.2d 607
See
(1966).
also Martin v.
259 Ark.
Hefley,
Because have determined correctly Womack, votes cast for Mr. votes only twenty-three invalidated 495 invalidated the trial remain of those votes were by at issue. Many address other reasons court for reasons. We will now various several cast Mr. the trial court to invalidate votes for Womack. by given 119 absentee votes Invalidation failure to attach medical affidavits. trial court also declared 119 votes cast in favor of Mr.
The failed to to be invalid because absentee voters attach Womack to forms. The medical affidavits their absentee-ballot application trial relied on Ark. Code Ann. 7-5-405 1997) court (Supp. § attachment of affidavits that the medical to absentee-ballot ruling certain forms was circumstances. mandatory application were that medical affidavits We Womack contends required. disagree. stated,
As form absentee-ballot application pro- previously vided clerk and used the voters in this case county by in Ark. Ann. similar to the form set out Code 7-5- substantially § form, On that voter indicate 1997). each must one (Supp. five listed methods in section 7-5-405 absentee- delivering to ballot clerk: county application I which delivering am this check application by: [please one]
_ this personally delivering application.
_ this mailing application.
_ bearer, or designated relative authorizing my (please name)_, to this
insert deliver application.
_ to my insert authorizing (please agent, name)_as I deliver this as am unable deliver application, medically
it. medical status as unable to my An verifying affidavit is day deliver the vote on the election application
attached. I am facsimile of this transmitting signed application
by facsimile machine transmission over telephone lines to the office county of the clerk. added.)
(Emphasis
The of section 7-5-405 plain language absentee-ballot form indicate that an affidavit application verifying the voter’s medical status is when the absentee voter autho required rizes deliver his or her to the clerk. agent application county hand, if On the other the absentee voter chooses of the other any four methods for the absentee-ballot delivering medi application, cal affidavit is not section required 7-5-405. This interpretation Ark. Code Ann. 7-5-403 supported (a)(2)(A) 1997), (Supp. *27 which lists the that an specifically for absentee only ways application ballot be delivered to the clerk when may the form county pre scribed in section 7-5-405 is used:
(2) Delivery of the request for an absentee ballot to the clerk county may made in one of (1) the in following ways, and no other manner: For (A) applications submitted the form using prescribed §
7-5-405: In (i) at the office person of the clerk . county . . (ii) mail . Applications by . .
A(iii) designated bearer deliver the may completed applica- tion to the office of the . county clerk . . (iv)(a) A declared as person the authorized of agent the appli- may
cant
deliver the
application to
office of the county clerk
An
(b)
authorized agent must submit
to the
clerk an
county
affidavit
the administrative head
a hospital or
home located in this state
nursing
of
of
that the
is a
applicant
patient
or
home
is
hospital
nursing
thereby
unable
vote
to
on the election day at his or
regular
her
site.
polling
A
(c)
copy
shall be retained
by
clerk as
county
affidavit
ballot;
attachment
the application
an absentee
ballot
bemay
by
An
for absentee
requested
(v)(a)
application
.
. .
machine transmission
facsimile
must
completed
application
The
facsimile-transmitted
(b)(1)
clerk ....
in the officeof the county
be received
Thus,
when the voter delivers
only
medical affidavit is
required
Furthermore, in
means of an authorized agent.
application
must be in a
that manner of
voter
delivery,
order to utilize
7-5-403 (a)(2)(A)(iv).
home. Ark. Code Ann.
or nursing
hospital
all
absentee
case indicates that for
The record
this
court,
the voters indicated
their
votes invalidated
trial
would be deliv
absentee-ballot
their applications
applications
However, each of those
ered
the clerk
authorized
agents.
affidavit,
attach the
medical
notwithstand
voters failed to
required
stated on the
fact that such
clearly
ing
requirement
once
that strict
form.
reiterate
again
absentee-ballot
We
application
under these cir
absentee
laws
with
required
compliance
Therefore,
v.
Eureka
we
cumstances. Bingham City
Springs,supra.
invalidated
absentee votes cast
hold that
trial court correctly
because the voters failed to attach medical
in favor of Mr. Womack
forms.
affidavits
their absentee-ballot application
votesbasedon mental
Invalidation
incompetency.
four
The trial court found that four absentee voters were
that their
were invalid. Article
and declared
votes
incompetent
idiot
of the Arkansas Constitution states that
section
“[n]o
*28
Also,
entitled to
of an elector.”
insane
shall be
the
person
privileges
51,
the
of
section
states that
vot
Amendment
11(a)(6),
registration
ers
have been
a court of
who
adjudged mentally incompetent
shall be canceled. Mr. Womack
that
jurisdiction
argues
competent
of
the trial
there was insufficient evidence
incompetence
support
a
is
of these four votes.
case
tried
a
court’s invalidation
When
is
without a
our
circuit court sitting
jury,
inquiry
appeal
the
whether
is substantial evidence to
factual
there
support
findings
erroneous,
court,
the
are
or
of the
but whether
findings
clearly
the
of
evidence.
Win
against
preponderance
Springdale
clearly
Rakes,
154,
690 (1999);
nelson
v.
337 Ark.
987 S.W.2d
Arkansas
Co.
96,
311
Mr. Womack first of a argues appointment does not mean guardian that Annie is Inca Dempsey incompetent. for whom a is pacitated persons are not guardian appointed pre sumed to be However, Ark. Code Ann. 28-65-106. incompetent. court made probate that Ms. specific findings Dempsey Thus, the trial incompetent. court’s in this finding incompetency case was not based on a Mr. Womack also cites presumption. Sparks Bank, v. First National 242 Ark. 413 S.W.2d (1967), evidence is proposition professional order for the required court to find that someone is The in that incompetent. case holding because it dealt with a inapposite statutory requirement guardi above, Based anship proceedings. evidence noted upon we conclude that of the trial findings court are not clearly erroneous.
Invalidation votesbasedon convictions. felony offour The trial court invalidated the votes of four absentee voters because were convicted felons. Amendment section Constitution, of the 11(a)(4), Arkansas it states that is the duty registrar cancel the of voters registration “who have been *29 convicted of felonies and have not their sentence or discharged that con had the burden of Mr. Foster proving been pardoned.” Smith, 236 v. the election. City in Newport felons voted victed mentioned, he 626, As S.W.2d 742 (1963). Ark. previously commit the criminal and judgments certified introduced copies individuals, four thereby disqualifying entered ment orders against as voters. them no that there was contends on proof
Mr. Womack appeal introduced actu criminal records were the individuals whose that However, Mr. as Foster in election absentee ballot. voted ally For out, and it was sufficient. such evidence was introduced points individuals, Foster evidence showing these Mr. introduced each of on the individual’s absentee-ballot birth date or address that the date address on matched the birth or or voter statement application each individual’s absentee-ballot criminal records. The name on the name his or her also matched or voter statement application criminal record. court as a a case is tried a circuit
Once when sitting again, are is whether the findings clearly our on appeal jury, inquiry erroneous, evidence. of the or against clearly preponderance Raker, evi- v. There was abundant Winnelson Co. supra. Springdale find that these four felons from which the trial court could dence in that that the trial court’s findings voted absentee. We conclude erroneous. are regard clearly
Next,
that
of a
convic
Mr. Womack argues
felony
proof
51,
is not sufficient to invalidate the votes. Amendment
tion alone
clerk,
the conviction of
the circuit
any
section
requires
upon
then has a
The
felony,
notify
registrar.
registrar
person
Mr.
voter.
to cancel
voter’s registration
notify
duty
these four
this
was not followed for
Womack asserts that
process
voters,
result,
were still
to vote
being
and as a
despite
qualified
individual
felons.
he argues
“any
permitted
Specifically,
rolls
until his name is removed from the registration
continue voting
However,
action.”
he is notified
clerk of such
We have
no
of this
Womack cites
argument.
authority
support
the merits of
that we will not consider
said on numerous occasions
if the
fads
cite
convincing legal
any
argument
appellant
Price,
Ellis v.
337 Ark.
of that argument.
authority
support
Smith,
v.
335 Ark.
Fort
(1999);
Invalidation three votesbased on nonresidency. of The trial court invalidated the votes of four absentee voters because were nonresidents of Ouachita at the time County their votes were cast. Mr. Womack that the trial court argues erred in three of these votes. canceling he asserts that Frank- Specifically, Gaston, Gaston, lin A. Neva Jr., Kendall intended to Kelly Jo claim Ouachita as their residence.
Arkansas Code Annotated 7-5-201 1997) (Supp. pro § vides that: (a) ... The person shall be eligible to vote only in in county which he resides on the date thirty-one calendar (31) election, days prior to unless specifically under 7- exempted
5-406. (b) shall Residency be that generally where one place lives time, works for period that there notwithstanding bemay an intent to move or return at some future date to another place. Persons who are temporarily in living particular because place a temporary work-related or assignment duty post, as a result of their duties in performing connection with their status as military students, holders, or office personnel, shall be deemed residents where place they establish their home prior such beginning assignments or duties. (1) than one to vote more No
(c) may qualified person time. (1) at one county any of any precinct are two to consider that there factors stated We have previously Dist. v. Pike residence. Pike Co. Sch. validity resolving First, Bd., we look at the 72 (1969). Co. Ed. 247 Ark. S.W.2d Second, the con- Id. the voter with residency. intent of respect *31 his or her consistent with the voter must be reasonably duct of we of fact. Accordingly, Id. This is question asserted residency. are errone- court’s unless clearly will affirm the trial findings they to ous, of the trial court judge due to giving regard opportunity Rakes, v. WinnelsonCo. of witnesses. supra. the credibility Springdale Gaston, at Franklin A. the trial that There was testimony and house in sold their Ouachita County and Neva Gaston Jr., Jo had no in 1998. They plans moved to Garland County August However, continued Ouachita Mr. Gaston move back to County. in He also owned four each month Ouachita County. to work days in There was also testimony Kelly Ouachita County. property in where she maintained moved to Little Rock Kendall June a week. Her her own and worked five days employment apartment basis, until such time as she to be on a trial proved was considered continued to She her worth and was awarded permanent position. there, receive mail in Ouachita assessher County, personal property we there. In view of this testimony, and maintain service phone are the trial court on that the findings residency cannot say in can that the trial court erred erroneous. Nor we clearly say of their four absentee voters because non- votes of invalidating at in the time of election. Ouachita residency County case, we also In the trial court’s in this affirming judgment our with the conclusions by note agreement following expressed law, fact, and its conclusions of the trial court findings judgment: a very absentee have obvious dealing voting pur-
The laws with ignored by campaign and cannot be pose, unscrupulous office, worker, It of State. Secretary Clerk’s voting on the to assume that absentee anyone borders absurd for rules. “Early” should be the same “early” voting governed does more than offer the voter the opportunity nothing Go do on election day: do what he or she would otherwise early for fraud. On It offers no additional opportunity vote in person. hand, other all absentee offers sorts of opportunity fraud, as so seen in this election. can vividly This be no better illustrated than Sylvester Smith around 30 carrying unmarked ballots, absentee for the looking whom persons they were intended. Both election laws and criminal laws were violated in election, this none which would have been had a strict possible adherence to the clear requirements of the statute been demanded. it, the law those Ignoring chosen to enforce or even slack enforcement those persons, invariably brings increased viola- — the tions innocent voter suffers. fairness, all
In had the entire absentee box been challenged by contestants, the two as offered to do on election plaintiff but night do, which defendant was unwilling vast of all the majority absentee voters would have been invalidated. That’s how wide- the abuse of the spread was. While process Sylvester Smith and abusers, Randall were the Ferguson most obvious and most active sense, both sides are if guilty, a criminal in a certainly sense. Both sides took practical of the fact that advantage the law enforced, wasn’t the defendant being far more than the plaintiff. *32 doubt, Without had the entire box been the ultimate challenged, same, result would won, have been the Foster would have but at least each voter could have been told his why or her ballot was Nevertheless, invalid. it is this court’s that the next hope election will see every voter to the go polls on election person vote day, or cast a early, valid absentee ballot which expresses the choice of voter, hustler; not some vote that those with charged enforcing so; the election will rules do that those intent on abusing the rules will know that will not succeed and that there a to price pay for those trying. Affirmed. Special Arnold, Brown, Bud Cum- C.J., J., Justice
mins concur. Special Walter Skelton joins majority. Justice Thornton, Corbin and not participating. JJ., Brown,
ROBERT L. The Justice, concurring. majority Womack in an opinion places untenable in one position He was the certified respect. winner of the election and had no incentive to challenge results until after Foster filed his com- Then Womack plaint. filed his counterclaim. that time the stubs By ballots, had been torn from the and there was no for him to way to short of he wished challenge, voters trace the ballots to particular Thus, there court to under oath. testify each voter into subpoenaing he was involved a voter contended to know whether was no way This, as the or Womack. majority a Foster had cast vote for clerical out, the Election Commission’s due to accurately points Amendment with Section 3 of to the failure to comply foul-up the ballots. correctly numbering nest, would still this electoral rat’s majority require Despite his invalid voters and assert in the names of Womack to allege without their results would be different how the election complaint would be hard of this. Womack I Clearly, votes. logic question a election result when ability to ever different prove pressed due to the has been removed trace a ballot a voter effectively defective ballots. short, it Womack’s task in making
In seems that prima facie counterclaim, as Ann. 7-5-802 case in his Ark. Code (Repl. difficult been made more has 1993) immeasurably requires, him, under these snafu. I would not ballot-numbering penalize circumstances, the dismissalof his counterclaim. How- by affirming ever, absentee box due to the numbering I would void entire This would mean that Foster still prevails. error. that is the absentee box is because exactly appealing
Voiding to do. The referred what the trial wanted judge specifically judge in connection with absentee abuse both candidates widespread “a on both houses.” He and in effect pox your voters pronounced did absentee box because the off in voiding parties begged relief, ask both illegal though parties prayed precise ballots not be counted. Pervasive abuse warrants such remedy *33 reason, I concur in the For that result. my judgment.
Arnold, C.J., joins.
Special H.E. Cummins joins. Associate Justice