Supreme Court of Arkansas.Tim A. WOMACK
v.
Phillip FOSTER.
No. 99-953.
Jan. 20, 2000.
Defeated candidate in special election to fill vacancy in office of county municipal judge brought election contest, seeking to cancel absentee votes for declared winner based on numerous instances of noncompliance with absentee voting laws. Declared winner filed counterclaim, also alleging noncompliance with absentee voting laws, and further alleging that county election commission failed to number ballots correctly. The Ouachita Circuit Court, Larry Chandler, J., invalidated 518 absentee vote for declared winner and one absentee vote for defeated candidate, resulting in victory for latter. Declared winner appealed. The Supreme Court, Imber, J., held that: (1) Court could not void election, even though election officials violated constitutional amendment prescribing how ballots shall be numbered in elections by ballot; (2) certain absentee votes were properly invalidated on ground that voters did not state reason for voting absentee on their applications for absentee ballot; (3) failure to attach medical affidavits required invalidation of certain absentee votes; (4) record showed that four absentee voters were incompetent; (5) votes by convicted felons were properly invalidated; and (6) record supported finding that certain absentee voters were nonresidents of county when they cast their votes.
Affirmed.
Robert L. Brown, J., joined by Arnold, C.J., and H.E. (Bud) Cummins, Special A.J., issued opinion concurring in result.
West Headnotes
[1] KeyCite Notes 
144 Elections
144VII Ballots
144k165 Form and Contents of Official Ballots
144k176 k. Numbering. Most Cited Cases
Election by electronic voting system, as opposed to paper ballot or election machine, was subject to constitutional amendment prescribing how ballots shall be numbered in elections by ballot. Const.Amend. No. 50, § 3; A.C.A. § 7-5-604(b).
[2] KeyCite Notes
144 Elections
144VII Ballots
144k165 Form and Contents of Official Ballots
144k176 k. Numbering. Most Cited Cases
Under constitutional amendment requiring that ballots be numbered, election officials must place voter number on upper portion of ballot, rather than on ballot stubs, so that if that vote were ever challenged it would be possible to determine how voter voted. Const.Amend. No. 50, § 3.
[3] KeyCite Notes
144 Elections
144I Right of Suffrage and Regulation Thereof in General
144k20 Power to Regulate Nominations and Ballots
144k22 k. Official Ballots. Most Cited Cases
Election officials violated constitutional amendment prescribing how ballots shall be numbered in elections by ballot, where voter numbers were recorded only on stubs and not on upper portion of ballots, thus making it impossible to trace votes in election contest. Const.Amend. No. 50, § 3.
[4] KeyCite Notes
144 Elections
144VII Ballots
144k185 Effect of Irregularities or Defects
144k186 In General
144k186(2) k. Numbering Ballots. Most Cited Cases
Supreme Court could not on appeal from election contest void special election to fill vacancy in office of county municipal judge, even though election officials violated constitutional amendment prescribing how ballots must be numbered in elections by ballot; while both parties alleged widespread fraud and misconduct with regard to absentee votes that were cast in election, such votes constituted only about 1,000 of more than 6,000 votes cast in election, no fraud or misconduct was alleged regarding over 5,000 votes cast at polls either on election day or during the early voting period, and thus, to void entire election because of misconduct of election officials would undermine freely expressed will of majority of voters. Const.Amend. No. 50, § 3.
[5] KeyCite Notes
144 Elections
144X Contests
144k283 Pleading
144k285 Complaint, Petition, Statement, or Notice
144k285(3) k. Errors and Irregularities. Most Cited Cases
Candidate failed to state claim in election contest seeking to have numerous absentee ballots voided due to election officials' failure to correctly number ballots, and due to alleged fraudulent and illegal acts on part of his opponent's campaign workers in handling of applications for absentee ballots and absentee-ballot materials; many of those allegations failed to name voters who allegedly cast invalid ballots, voters alleged to have been wrongfully disenfranchised were also not identified, and in those instances where voters were identified by name, candidate failed to allege for whom they voted in election. Const.Amend. No. 50, § 3; A.C.A. §§ 7-5-402, 7-5-801(d).
[6] KeyCite Notes
144 Elections
144X Contests
144k269 k. Nature and Form of Remedy. Most Cited Cases
Election contests are governed entirely by statute. A.C.A. § 7-5-801(d).
[7] KeyCite Notes
144 Elections
144X Contests
144k283 Pleading
144k285 Complaint, Petition, Statement, or Notice
144k285(1) k. Sufficiency in General. Most Cited Cases
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. A.C.A. § 7-5-801(d).
[8] KeyCite Notes
144 Elections
144X Contests
144k283 Pleading
144k285 Complaint, Petition, Statement, or Notice
144k285(4) k. Result of Election and Effect of Irregularities. Most Cited Cases
To state a cause of action for affirmative relief in an election contest, the pleading must do more than merely state generalities or conclusions of law to the effect that illegal votes were cast; rather, 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. A.C.A. § 7-5-801(d).
[9] KeyCite Notes
144 Elections
144VIII Conduct of Election
144k227 Effect of Irregularities or Defects
144k227(8) k. Voting by Ballot. Most Cited Cases
Absentee votes were properly invalidated where voters did not state reason for voting absentee on their applications for absentee ballot. A.C.A. § 7-5-402; § 7-5-405 (1998).
[10] KeyCite Notes
144 Elections
144VIII Conduct of Election
144k215 Voting by Ballot
144k216.1 k. Absentee Ballots. Most Cited Cases
There must be strict compliance with statutory provisions regarding the application for and casting of absentee ballots, even if the challenge to those votes is brought after the election has occurred. A.C.A. §§ 7-5-402, 7-5-801(d).
[11] KeyCite Notes
144 Elections
144VIII Conduct of Election
144k215 Voting by Ballot
144k216.1 k. Absentee Ballots. Most Cited Cases
Even if county clerk's office incorrectly advised voters that they need not indicate reason for voting absentee on their applications for absentee ballot, their failure to do so warranted invalidation of their votes; absentee-ballot application form provided to each voter was clear and accurate, and nothing on that form prevented voter from knowing what information was being requested, or from properly inserting requested information on form. A.C.A. § 7-5-402; § 7-5-405 (1998).
[12] KeyCite Notes
144 Elections
144VIII Conduct of Election
144k215 Voting by Ballot
144k216.1 k. Absentee Ballots. Most Cited Cases
Medical affidavits must be attached to absentee-ballot application forms when absentee voter authorizes agent to deliver his or her application to county clerk. A.C.A. § 7-5-403(a)(2)(A)(iv); § 7-5-405 (1998).
[13] KeyCite Notes
144 Elections
144VIII Conduct of Election
144k215 Voting by Ballot
144k216.1 k. Absentee Ballots. Most Cited Cases
Absentee voter may authorize agent to deliver voter's application to county clerk only when voter is in hospital or nursing home. A.C.A. § 7-5-403(a)(2)(A)(iv).
[14] KeyCite Notes
144 Elections
144X Contests
144k290 Evidence
144k295 Weight and Sufficiency
144k295(1) k. In General. Most Cited Cases
Evidence supported invalidation of four absentee votes on ground that voters were incompetent; evidence showed that first voter suffered from Alzheimer's disease and dementia and had no short-term memory, that second voter was severe stroke victim who could not walk or talk, was unaware of her surroundings, and had no awareness of election, that third voter was afflicted with Alzheimer's disease and was unable to communicate or mark her own ballot, and that disqualification of fourth voter was based not on presumption of incompetency arising from appointment of guardian, but on trial court's specific findings of incompetency. Const. Art. 3, § 5; Amend. No. 51, § 11(a)(6); A.C.A. § 28-65-106.
[15] KeyCite Notes
30 Appeal and Error
30XVI Review
30XVI(I) Questions of Fact, Verdicts, and Findings
30XVI(I)3 Findings of Court
30k1008 Conclusiveness in General
30k1008.1 In General
30k1008.1(5) k. Clearly Erroneous Findings. Most Cited Cases
30 Appeal and Error KeyCite Notes
30XVI Review
30XVI(I) Questions of Fact, Verdicts, and Findings
30XVI(I)3 Findings of Court
30k1012 Against Weight of Evidence
30k1012.1 In General
30k1012.1(3) k. Preponderance of Evidence. Most Cited Cases
When a case is tried by a circuit court sitting without a jury, the inquiry on appeal is not whether there is substantial evidence to support the trial court's factual findings, but whether the findings are clearly erroneous, or clearly against the preponderance of the evidence.
[16] KeyCite Notes
30 Appeal and Error
30XVI Review
30XVI(G) Presumptions
30k931 Findings of Court or Referee
30k931(1) k. In General. Most Cited Cases
In reviewing the findings of fact by a trial court, the Supreme Court considers the evidence and all reasonable inferences therefrom in a light most favorable to the appellee.
[17] KeyCite Notes
144 Elections
144X Contests
144k290 Evidence
144k291 k. Presumptions and Burden of Proof in General. Most Cited Cases
Candidate who challenged four absentee ballots cast in favor of his opponent met his burden of proving that such votes were cast by convicted felons; candidate introduced certified copies of criminal judgments and commitment orders entered against four individuals, evidence showed that birth date or address on each individual's absentee-ballot application or voter statement matched birth date or address on criminal records, and name on each individual's absentee-ballot application or voter statement also matched name on his or her criminal record. Const.Amend. No. 51, § 11(a)(4).
[18] KeyCite Notes
144 Elections
144VIII Conduct of Election
144k227 Effect of Irregularities or Defects
144k227(8) k. Voting by Ballot. Most Cited Cases
Absentee votes cast by four convicted felons were properly invalidated, as candidate who received those votes failed to cite any convincing legal authority in support of his claim that such felons were qualified to vote due to county's noncompliance with procedure under which circuit clerk, upon conviction of any person of felony, was to notify registrar, who was then to cancel that voter's registration and notify voter. Const.Amend. No. 51, § 11(a)(4).
[19] KeyCite Notes
30 Appeal and Error
30XII Briefs
30k756 k. Form and Requisites in General. Most Cited Cases
The Supreme Court will not consider the merits of an argument if the appellant fails to cite any convincing legal authority in support of that argument.
[20] KeyCite Notes
144 Elections
144IV Qualifications of Voters
144k87 Forfeiture of Citizenship and Disfranchisement
144k94 k. Restoration to Citizenship. Most Cited Cases
Supreme Court could not conclude on appeal in election contest that voter had discharged her sentence at time of election, i.e., March 9, 1999; judgment and commitment order reflected that she was sentenced to Department of Correction on July 29, 1992, and that circuit court suspended imposition of any additional sentence for period of five years. Const.Amend. No. 51, § 11.
[21] KeyCite Notes
144 Elections
144IV Qualifications of Voters
144k71 Residence
144k71.1 k. In General. Most Cited Cases
144 Elections
