Whitley v. Cranford

• Decision Date: 25 September 2003
• Docket Number: No. 03-183.,03-183.
• Citation: 354 Ark. 253,119 S.W.3d 28
• Parties: Ronald WHITLEY v. James CRANFORD, Russell Cranford and Hot Spring County Board of Election Commissioners.
• Court: Arkansas Supreme Court

119 S.W.3d 28

354 Ark. 253

Ronald WHITLEY v. James CRANFORD, Russell Cranford and Hot Spring County Board of Election Commissioners.

No. 03-183.

Supreme Court of Arkansas.

September 25, 2003.

Crawford Law Firm, by: Michael H. Crawford, Hot Springs, for appellant.

Glover Law Firm, by: David W. Glover, for appellees.

JIM HANNAH, Justice.

Ronald Whitley appeals an order of the Hot Spring County Circuit Court voiding the May 21, 2002, Hot Spring County Democratic Preferential Primary for the office of Justice of the Peace, District 4. Whitley alleges that the trial court erred in voiding the election where 183 voters were presented with ballots omitting the Justice of the Peace race, where there was no fraud, and in finding that the incomplete ballots deprived the 183 voters from their right to participate in the election. Whitley also alleges error in denial of his motion for a new trial where it was only discovered after the circuit court voided the election that a new election would not be set. We hold that providing 183 voters with ballots omitting the Justice of the Peace race rendered the outcome of this election uncertain, and required that the election be voided. We find no abuse of discretion in denial of the new trial motion and affirm the circuit court.

Facts

Ronald Whitley and James Cranford opposed each other as candidates in the Democratic Preferential Primary for the position of Justice of the Peace, District 4, Hot Spring County. On election day, for reasons that are not stated by the parties, nor apparent from the record, some ballots included the District 4 Justice of the Peace race, and some did not. The parties have not argued and the record does not show that the error in the ballots was discoverable and correctable at any time prior to the election. Rather, the problem with the ballots was only apparent after the election began.

Ballots used at the Fenter-B polling site in the election on May 21, 2002, did not include the Justice of the Peace race. The record shows that seventy-six voters cast ballots at the Fenter-B polling site. Ballots used at the Ward 4 polling site in the election on May 21, 2002, did not include the Justice of the Peace race, however, voters brought the omission to the attention of polling officials, and the correct ballots were then used. Nonetheless, 107 voters had already cast ballots before the correction was made. The total number of voters who voted using ballots omitting the Justice of the Peace races is 183. Of votes cast using ballots including the Justice of the Peace race, 299 were cast for Whitley, and 244 ballots were cast for Cranford. Out of the votes cast in the Justice of the Peace race, Whitley received fifty-five more votes than Cranford.

There were 1172 ballots cast that contained no vote in the Justice of the Peace race, which includes the 183 voters who were presented with ballots that did not include the race. When the 1172 under votes are added to the 299 votes cast for Whitley and the 244 votes cast for Cranford, the total ballots presented to voters in the Justice of the Peace race is 1715. Five hundred forty-three people cast votes in the Justice of the Peace election.

Cranford filed a "Petition to Contest Certification of Nomination and Vote and for Other Relief." The circuit court held a hearing, and then voided the election, finding that the unintentional failure to include the Justice of the Peace race on the ballots presented to 183 voters deprived those voters of the right to participate in the election, rendered the result of the election uncertain, and defeated the requirement of a free election.

Election Contests

Cranford's petition seeks to have the certification of vote and the vote set aside. Cranford thus asked the circuit court to void the election. Election contests are of two types, one where a candidate seeks an order declaring himself or herself the winner, and a second where a qualified voter seeks to void the election. King v. Davis, 324 Ark. 253, 256, 920 S.W.2d 488 (1996). In the first type, an election contestant seeks possession of an office, and in the second type, a voter seeks to void the entire election because it was not fair and equal and therefore uncertain in its outcome.

In the case before us, no one is seeking possession of the office. Rather, it is a suit to void the election because the result is uncertain. Cranford alleged that it was not possible to determine the outcome of the election. Under that assertion, leaving the election certification as it stood would mean that the possessor of the office would not occupy that position based on a free and equal election as guaranteed by the Constitution. The 183 voters who received the incomplete ballots could not vote. Thus, those 183 voters did not cast a ballot in the justice of the peace race, and there are therefore no legal votes to be added or illegal votes that could be excluded. There are no votes by the 183 voters to consider, and no way to determine how they would have voted short of calling the 183 voters in to court to declare how they would have voted. Such an endeavor would be fraught with intimidation and contrary to the well-founded principle of secret ballots. On this subject in Rubens v. Hodges, 310 Ark. 451, 837 S.W.2d 465 (1992), this court stated:

Lillian Hodges argued that the trial court could count votes for her that were never cast at the election and her argument was based upon an inference, not the holding, in Files v. Hill, 268 Ark. 106, 594 S.W.2d 836 (1980). If this case had been fully contested on an adversarial basis, it might have been developed that we have no statute providing for such a remedy, and in Watson v. Gattis, 188 Ark. 376, 65 S.W.2d 911 (1933), in discussing the language of an earlier, but comparable, constitutional provision, we wrote, "The elector himself would not be permitted to testify that, having failed to vote specifically for any candidate for any particular term, he nevertheless intended that his ballot should express his assent...." Many other jurisdictions have addressed the issue, and the general rule is that while the elector may testify that he was wrongfully prevented from voting, and such testimony may be used to void the entire election, the elector may not testify that he intended to vote for a particular candidate. 29 Elections, C.J.S. 281 (1965).

Rubens, 310 Ark. at 455, 837 S.W.2d 465. Votes that were never cast may not be counted.

The term "election contest" is used in Arkansas to refer both to an action challenging the certification of who won the election as well as an action challenging the validity of the election. King, supra; see also Rich v. Walker, 237 Ark. 586, 374 S.W.2d 476 (1964); Curry v. Dawson, 238 Ark. 310, 379 S.W.2d 287 (1964). However, the two actions are distinct. Rubens v. Hodges, supra; see also Phillips v. Earngey, 321 Ark. 476, 902 S.W.2d 782 (1995). The case before us involves an assertion that the validity of the conduct of the election is uncertain and should be voided.

Voiding Elections

Article 3, section 2, of the Arkansas Constitution, provides that "[e]lections shall be free and equal." This has been characterized as a guaranty that "[e]lections shall be free and equal." Henderson v. Gladish, 198 Ark. 217, 224, 128 S.W.2d 257 (1939). This guarantee must exist because "[i]t is of the utmost importance that the public should have confidence in the administration of the election laws, and to know that the will of the majority, when fairly expressed, will be respected." Wheat v. Smith, 50 Ark. 266, 280, 7 S.W. 161 (1888). Where an election is not free and equal as required under the Constitution, this court has voided elections. The first instance in the cases is where the result was rendered uncertain by fraud and intimidation. The oft-cited case of Patton v. Coates, 41 Ark. 111 (1883), interprets article 3, section 2, of the Constitution in voiding an election because fraud and intimidation rendered the result uncertain. In another cases where the voters have received insufficient notice, elections have also been voided. Phillips v. Mathews, 203 Ark. 100, 155 S.W.2d 716 (1941); see also Phillips v. Rothrock, 194 Ark. 945, 110 S.W.2d 26 (1937). It must also be noted that although the election in the case was not voided, in Swanberg v. Tart, 300 Ark. 304, 778 S.W.2d 931 (1989), this court discussed the alleged failure to comply with absentee voting laws, but declined to void the election, noting that elections will not be voided where the wrong does not render the result uncertain. See also Wheat, supra, where this court affirmed a finding by the trial court that there was sufficient notice.

In the case before us, of the 1715 voters that received ballots, 543 people cast votes in the Justice of the Peace race. Eleven hundred seventy-two voters received ballots, but did not cast a vote in the Justice of the Peace race. Of these 1172 voters, 183 received ballots that did not include the Justice of the Peace race.

In voiding the election, the 543 votes of those who cast a vote in the Justice of the Peace race were held for naught. The wrong or error that caused the trial court to conclude that the 543 votes were void was a failure by election officials to provide accurate and correct ballots to all polling sites.

This court has a long history of plainly expressing its reluctance to void an election. In Alexander v. Davis, 346 Ark. 310, 58 S.W.3d 330 (2001), this court recently noted that there are narrow limits that must be followed in exercising the power to void an election. Id.; see also, Henard v. St. Francis Election Comm., 301 Ark. 459, 784 S.W.2d 598 (1990). In Jones v. Glidewell, 53 Ark. 161, 13 S.W. 723 (1890), this court stated:

It is a serious thing to cast out the votes of innocent electors for acts done by others, and it is the province of the courts to see that every legal vote cast is counted when the possibility exists.

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