Womack v Foster

• Citation: 8 S.W.3d 854
• Decision Date: 20 January 2000
• Docket Number: 99-953
• Parties: Tim A. WOMACK v. Phillip FOSTER 99-953 ___ S.W.3d ___ Opinion delivered
• Court: Supreme Court of Arkansas

Tim A. WOMACK v Phillip FOSTER

99-953 ___ S.W.3d ___

Opinion delivered January 20, 2000

Supreme Court of Arkansas

Appeal from Ouachita Circuit Court; Larry Chandler, Judge; affirmed.

1. Elections -- numbering & recording of ballots -- exception to prohibition of disclosure of vote. -- Under Ark. Const. amend 50, § 3, "[i]n elections by ballot every ballot shall be numbered in the order in which it is received, the number shall be recorded by the election officers on the list of voters opposite the name of the elector who presents the ballot, and the election officers shall be sworn or affirmed not to disclose how any elector voted unless required to do so as witnesses in a judicial proceeding or a proceeding to contest an election."

2. Elections -- two methods of voting -- ballot or voting machine. -- Two methods of voting are established by Ark. Const. amend. 50, § 2, which states that "all elections by the people shall be by ballot or by voting machines which insure the secrecy of individual votes."

3. Elections -- voting machines -- statutory specifications. -- Pursuant to Ark. Code Ann. § 7-5-501 (Supp. 1999), voting machines "may be acquired and used in any election conducted in a municipality or county upon the adoption of an ordinance therefore by the governing body of the municipality or the quorum court of the county"; under Ark. Code Ann. § 7-5-504 (Repl 1993), the machine must be constructed not only to perform the tabulation of votes, but the voter must also be able to perform the physical act of voting "on the machine."

4. Elections -- paper ballots -- statutory specifications. -- Regarding elections by paper ballot, Ark. Code Ann. § 7-5-208(b) (Supp. 1999) provides that "[e]ach ballot shall be printed on paper with a perforated portion capable of being detached for use as the ballot stub"; at elections where paper ballots are used, the voters mark the ballot and the votes are then calculated without the aid of a machine [Ark. Code Ann. §§ 7-5-309, 315 (Supp. 1999)].

5. Elections -- electronic voting -- supplemental method. -- Arkansas Code Annotated sections 7-5-601--615 (Repl. 1993 and Supp. 1999) provide for the use of electronic voting systems in which the voter records his votes by marking or punching one or more vote cards, which are so designed that votes may be counted by data processing machines; with the introduction of electronic voting, the legislature did not intend to repeal or modify the laws authorizing the use of paper ballots or voting machines; rather, it was the purpose of the legislation to establish an additional and supplemental method of marking vote cards and tabulating election results.

6. Elections -- electronic voting -- equivalent to voting by paper ballot. --Electronic voting systems merely tabulate voting cards that have been filled out by the voter in the same way that a paper ballot would be filled out; in essence, the voter is voting by paper ballot; on the other hand, when a voter uses a voting machine, the voter is actually performing the physical act of voting on the machine, and no paper ballots or voting cards are involved.

7. Elections -- electronic voting system in runoff constituted election by ballot -- subject to constitutional numbering requirement. -- The supreme court held that the electronic voting system used in the runoff election at issue constituted an election by ballot and was subject to the numbering requirement of Ark. Const. amend 50, § 3; the trial court erred in finding otherwise.

8. Elections -- numbering & recording of ballots -- constitutional requirement allows for tracing of voted in event of contest. -- Although the General Assembly enacted Act 461 of 1995 to ensure total secrecy and foreclose the tracing of votes, Amendment 50 to the Arkansas Constitution still requires the numbering of ballots in elections by ballot; Ark. Const. amend. 50, § 3, does not merely require that voter numbers be placed on the ballots or ballot stubs in a manner that would have no practical significance; rather, the purpose of the constitution's numbering requirement in elections by ballot is to allow for the tracing of votes in the event of an election contest.

9. Elections -- numbering & recording of ballots -- voter number must be placed on upper portion of ballot. -- The supreme court held that, in the absence of a statutory scheme that allows for the tracing of votes, compliance with Ark. Const. amend. 50's numbering requirement for elections by ballot mandates that the voter number be placed on the upper portion of the ballot so that the purpose of that amendment may be accomplished, i.e., so that in an election contest it will be possible to determine how a voter voted.

10. Elections -- numbering & recording of ballots -- secrecy of ballot subordinated to purity of election. -- The secrecy of the ballot is better protected by the voting machine than by the traditional method of balloting because the use of the machine prevents anyone else from ever discovering how an elector voted; but this circumstance is offset by the fact that the draftsmen of the Arkansas Constitution, with the knowledge available to them in 1874, chose to subordinate the secrecy of the ballot to the purity of the election; likewise, the drafters of Amendment 50, with the knowledge available to them in 1962, chose to continue to subordinate the secrecy of the ballot to the purity of the election in the case of elections by ballot.

11. Elections -- numbering & recording of ballots -- constitutional numbering requirement violated by election officials. -- Where ballots for a runoff election were printed in accordance with the statutory provisions that foreclosed the tracing of votes, with ballot numbers printed only on the ballot stubs, and where, on the day of the election, voter numbers were only recorded on the stubs and not on the upper portion of the ballots, thus making it impossible to trace votes in an election contest, the supreme court concluded that Ark. Const. amend. 50's numbering requirement was violated by county election officials.

12. Elections -- challenge -- mandatory or directory status of election-law provisions. -- Prior to an election, the provisions of the election laws are mandatory; in contrast, after the election has occurred, the provisions of the election laws are directory only.

13. Elections -- challenges -- disenfranchisement of legal voter for misconduct of another not favored. -- The courts do not favor disenfranchising a legal voter because of the misconduct of another person, such as an election official; elections will not be invalidated for alleged wrongs committed unless those wrongs were such to render the result doubtful; the failure to comply with the letter of the law by election officers, especially in matters over which the voter has no control, and in which no fraud is perpetrated, will not as a general rule render an election void, unless the statute expressly makes it so.

14. Elections -- remedies -- request for voiding of election denied. -- Where, in this case, to have voided the entire runoff election because of the misconduct of election officials would have undermined the freely expressed will of the majority of the voters, the supreme court refused to grant appellant the requested remedy.

15. Elections -- contests -- governed entirely by statute. -- Election contests are governed entirely by statute; as such, they are statutory or special proceedings under Ark. R. Civ. P. 81; thus, the rules of civil procedure do not apply where a statute specifically creates a right, remedy, or proceeding that provides a different procedure.

16. Elections -- contests -- required pleadings. -- A claim for affirmative relief in an election contest must state a prima facie case and plead sufficient facts to give the other party reasonable information as to the grounds of the contest; the pleading must do more than merely state generalities or conclusions of law to the effect that illegal votes were cast; to state a cause of action for affirmative relief in an election contest, one must name the voters who allegedly cast invalid ballots, allege that they voted for the other candidate, and allege that the total of the invalid votes is sufficient to change the outcome of the election.

17. Elections -- contests -- complaint must include number of votes received by each candidate. -- At a minimum, the complaint for affirmative relief must include the number of votes received by each candidate, so that it appears, after subtracting the alleged invalid votes, that the claimant has more votes than his opponent.

18. Elections -- contests -- dismissal of appellant's counterclaim & amended counterclaim affirmed where pleading failed to state cause of action. --Where appellant's counterclaim and amended counterclaim did not allege whether all of the contested votes were cast for his opponent or whether, after subtracting the alleged invalid votes, he would have had more votes than his opponent; and where, although appellant's counterclaim and amended counterclaim asserted numerous general and conclusory allegations of serious misconduct and fraud on the part of appellee's campaign workers, the supreme court concluded that neither pleading stated a cause of action for affirmative relief in an election contest and affirmed the trial court's dismissal of appellant's counterclaim and amended counterclaim.

19. Elections -- absentee voting -- voter qualification. -- Arkansas Code Annotated section 7-5-402 (Supp. 1999) provides that only the following persons may cast absentee ballots: (1) any person who will be unavoidably absent from his voting place on the day of the election; and (2) any person who will be unable to attend the polls on election day because of illness or physical disability.

20. Elections -- absentee voting -- voters correctly disqualified for failure to indicate statutory reason for voting absentee. -- The...