Representative Arnell Willis v. Jack Crumbly; The St. Francis County Election Commission, Frederick Freeman, Chair; Maceo Hawkins, and Chris Oswalt, all in their official capacities as members of the St. Francis County Election Commission
Annotate this Case
Download PDF
No. 06-1147
Opinion Delivered 11-6-06
REP. ARNELL WILLIS,
APPELLANT,
VS.
JACK CRUMBLY; THE ST. FRANCIS
COUNTY ELECTION COMMISSION,
F R E D E R IC K F R E E M A N , C H A I R ;
M ACEO HAW KINS, A N D C HRIS
OSWALT, ALL IN THEIR OFFICIAL
CAPACITIES AS MEMBERS OF THE ST.
FRANCIS CO UN TY ELECTION
COMMISSION,
APPELLEES,
APPEAL FROM THE ST. FRANCIS
COUNTY
CIRCUIT COURT, NO.
CV2006-211-2, HON. L. T. SIMES, II,
JUDGE,
REVERSED AND REMANDED.
ROBERT L. BROWN, Associate Justice
Appellant, Representative Arnell Willis, appeals from an order of the St. Francis
County Circuit Court, which dismissed his complaint for failure to join necessary and
indispensable parties. On appeal, Willis raises two points: (1) the circuit court erred in
finding that the office of state senator is a “state office” and further erred in finding that
Arkansas Code Annotated § 7-5-801 (Repl. 2000), was inapplicable to this post-election
contest; (2) the circuit court erred in ruling that Willis’s complaint lacked necessary and
indispensable parties and was, therefore, nonjusticiable.
The facts are these. Willis, appellee Jack Crumbly, and Alvin Simes were candidates
for the Arkansas State Senate District 16 in the Democratic Primary election held on May 23,
2006. That senate district includes parts of Phillips, Lee, St. Francis, and Crittenden
Counties. Willis and Crumbly finished ahead of Simes, but neither received a majority vote.
After a runoff election, which was held on June 13, 2006, Crumbly received a majority of the
votes and was declared the winner.
On July 7, 2006, Willis filed a petition in the St. Francis County Circuit Court to
decertify the runoff election results, to oust Jack Crumbly, to void the runoff election, and
to hold a special runoff election. In his petition, Willis alleged, among other things, that
voter fraud had occurred, which resulted in Crumbly’s improperly and illegally winning the
runoff election. Also on July 7, 2006, Willis filed a first amendment to his cross-complaint
and third-party complaint in a lawsuit that had been filed by Alvin Simes in the Pulaski
County Circuit Court, contesting the primary election and alleging voter fraud in Phillips
County.1 Simes had named Crumbly, Willis, the Phillips County Election Commission and
its members, the Phillips County Clerk, and the Arkansas State Board of Election
Commissioners and its members as defendants in the Pulaski County action.
Willis stated in his first amendment that it served as an election contest in lieu of a
separate complaint. In both his first amendment filed in Pulaski County and his complaint
filed in St. Francis County, Willis named the St. Francis County Election Commission and
its members and Jack Crumbly as defendants. Motions to dismiss were filed by defendants
Crumbly and the St. Francis County Election Commission in both courts on the basis that
necessary and indispensable parties had not been joined.
1
Simes has appealed that order of the Pulaski County Circuit Court to this court, which
is case number 06-1121.
On August 22, 2006, the Pulaski County Circuit Court entered an order in which it
found that both Simes and Willis had failed to join the Secretary of State and the Democratic
Party of Arkansas State Committee (the “State Democratic Committee”) in their pleadings
as parties. The court found both to be necessary and indispensable parties, and the court
dismissed Willis’s first amendment to cross-complaint and third-party complaint, citing
Willis v. Circuit Court of Phillips County, Arkansas, 342 Ark. 128, 27 S.W.3d 372 (2000)
(per curiam), as authority.
Following a hearing on the dismissal motions, the St. Francis County Circuit Court
entered an order on October 4, 2006, in which it found that the office of state senator is a
“state office.” The court further relied on Willis, supra, to determine that the case was
nonjusticiable due to Willis’s failure to join the Secretary of State and the State Democratic
Committee as parties in his lawsuit. Because of this, the court dismissed Willis’s complaint.
Willis now appeals the dismissal by the St. Francis County Circuit Court. Following a
motion by Willis to expedite the appeal, this court granted that motion and set a briefing
schedule.2
Willis contends in this appeal that the St. Francis County Circuit Court erred in
finding that the office of state senator is a state office rather than a district office. He claims
2
We note that the issue of res judicata, based on the prior Pulaski County Circuit
Court order against Willis dealing with the issues raised by Willis in the St. Francis County
Circuit Court has not been raised by the appellees in this matter. Res judicata is a defense
and not a matter of subject-matter jurisdiction. See e.g., Clemmons v. Office of Child Support
Enforcement, 345 Ark. 330, 47 S.W.3d 227 (2001). Thus, we will not raise the issue on our
own or discuss it.
that the applicable statute in this case is Arkansas Code Annotated § 7-5-801(b) (Repl. 2000),
which provides that an election contest between a winning candidate and a losing candidate
for a district office must be brought in the circuit court of the county in which the certificate
of vote was made. He points out that that statute also mandates that an election contest for
a state office must be brought in Pulaski County. See Ark. Code Ann. § 7-5-801(b). Willis
further claims that because the office of state senator is a district office and not a state office,
it was proper to bring the action in St. Francis County.
For his second point, Willis claims that the circuit court erred in ruling that his
complaint lacked necessary and indispensable parties. He acknowledges that the circuit court
based its decision not on the election-contest statute, § 7-5-801, but rather on Arkansas Code
Annotated § 7-7-401 (Supp. 2005). He maintains, nevertheless, that this court should hold
that the circuit court wrongly interpreted § 7-5-801 because by finding that Willis had to join
additional parties, the court required Willis to do more than was called for by the statute. He
further asserts that by applying the previous Willis case to the case at bar, the circuit court
required more than what the election-contest statute plainly requires.
Willis adds that Arkansas Code Annotated § 7-5-804 (Repl. 2000), mandates that
officeholders, such as the Secretary of State, obey the lawful orders of the courts of this state.
Willis poses the rhetorical question of why would § 7-5-804(b) require that a court’s order
“be obeyed by officeholders, political committees and their officers, and all election
officials,” if the Secretary of State and the political parties also had to be joined as parties.
Moreover, he asks why § 7-5-804(c) would provide the court with mandamus authority to
the Secretary of State and political parties to enforce the court’s ruling, if the Secretary of
State and the political parties were required to be defendants in the lawsuit. According to
Willis, when reading the election statutes as a whole, it is clear that there is no requirement
for these parties to be defendants in this election-contest action. Willis concludes by
requesting that this court reverse the order of the St. Francis County Circuit Court.
Crumbly simply disagrees in his response and urges that the Secretary of State and the
State Democratic Committee were necessary and indispensable parties in this case and that
the St. Francis County Circuit Court properly dismissed the case. Crumbly further asserts
that this court has previously addressed this precise issue in Willis, supra, which he deems
an election-contest case. Crumbly contends that Willis, supra, stands for the proposition that
a candidate for state representative who contests an election must join the Secretary of State
and the relevant state political party to the lawsuit for the lower court to have jurisdiction to
decide the case.
Crumbly also maintains that election contests brought post-election in Arkansas,
which involve state officers, must include the Secretary of State simply because the Secretary
of State is a critical party for obtaining post-election relief. Crumbly explains that the
Secretary of State is the state official who not only certifies the results of elections, but he
or she is also the official under state law who can, when ordered by a circuit court, “annul
the certifications made and make certifications in accordance with the judgment of the circuit
court.” Ark. Code Ann. § 7-7-401(b) (2005 Supp.). Because the Secretary of State ultimately
and officially certifies the vote totals for the office of state senator, Crumbly concludes that
the Secretary of State is a necessary and indispensable party to this lawsuit.
Finally, Crumbly argues that the office of Arkansas State Senator is a “state office”
for the purposes of Arkansas election law. According to Crumbly, this court has specifically
stated that the office of State Representative is considered to be a “state office” in Daniels
v. Weaver, ___ Ark. ___, ___ S.W.3d ___ (Sept. 25, 2006). Crumbly also relies on Willis,
supra, where he says that this court treated a failed candidate for the Arkansas House of
Representatives as seeking a “state office.”
I. District Office
We turn then to the first issue raised by Willis in this case. He asserts that the St.
Francis County Circuit Court erred in finding that the office of state senator is a state office
for purposes of § 7-5-801. We agree.
The Arkansas Constitution provides that “[t]he Senate shall consist of members to be
chosen every four years by the qualified electors of the several districts.” Ark. Const. art. 5,
§ 3. The Arkansas Constitution further provides that no person shall be a state senator who
has not been a resident for one year “of the county or district whence he may be chosen.”
Ark. Const. art. 5, §4. Based no doubt on these constitutional provisions, the publication
entitled Running for Public Office published by the State Board of Election Commissioners
in conjunction with the Office of the Secretary of State and the Arkansas Ethics Commission
distinguishes state offices where candidates are elected by the entire state and district offices
where candidates are elected by only a portion of the state. In addition, the Election Code
distinguishes between “state” candidates and “district” candidates for certification purposes.
See Ark. Code Ann. § 7-7-401(a) (Supp. 2005). We conclude that the St. Francis County
Circuit Court erred in ruling that the office of state senator is a state office.3
II. Indispensable Parties
Willis next asserts that the circuit court erred in finding that the Secretary of State and
the State Democratic Party are necessary and indispensable parties to this lawsuit. We agree
with Willis that he was not required to name either party as a party defendant in order to
withstand a motion to dismiss.
We begin by noting that the right to contest an election is purely statutory. See, e.g.,
Pederson v. Stracener, 354 Ark. 716, 128 S.W.3d 818 (2003). This court has previously
recognized a distinction between two types of election cases provided for by statute: preelection, eligibility challenges and post-election, election contests.
The pre-election
challenges typically involve a question of a candidate’s eligibility, such as residency in the
district for the office sought, which must be raised prior to an election, but which involves
a candidate’s eligibility to be included on the ballot. See, e.g., Valley v. Bogard, 342 Ark.
336, 28 S.W.3d 269 (2000). Post-election contests typically involve issues like voter fraud,
which are raised after the election due to something that occurred during the election itself.
See, e.g., Womack v. Foster, 340 Ark. 124, 8 S.W.3d 854 (2000).
3
Crumbly’s reliance on obiter dicta in Weaver, supra, is not persuasive. There, we
noted that venue would have been appropriate only in Pulaski County when a “state office”
is involved. We did not hold that the office of state representative is a state office. We did
cite Arkansas Code Annotated § 16-60-103(3) (Repl. 2005), for the proposition that actions
against state officers respecting their official acts must be brought in Pulaski County.
a. Pre-election Eligibility Challenge.
In State v. Craighead County Board of Election Commissioners, 300 Ark. 405, 779
S.W.2d 169 (1989), this court explained the procedure for challenging a candidate’s
eligibility to be on the ballot. That cause of action, we said, derives from Arkansas Code
Annotated § 7-5-207(b). In Craighead County Board of Election Commissioners, the
challenge was to a candidate’s residency, and we held that before the election “an action for
mandamus and declaratory relief is the proper method of enforcing the right set out in Ark.
Code Ann. § 7-5-207(b) which prohibits the inclusion of an ineligible candidate on an
election ballot.” 300 Ark. at 412, 779 S.W.2d at 173; see also Tumey v. Daniels, 359 Ark.
256, 260, 196 S.W.3d 479, 482 (2004) (stating that “[s]ection 7-5-107(b) provides a means
for a voter to raise a pre-election attack on a candidate’s eligibility to stand for election and
for removal of that ineligible candidate’s name from the ballot.”).
b. Post-Election Election Contest.
Additionally, an election contest brought post-election is specifically recognized in
the Election Code pertaining to matters like voter fraud. See Ark. Code Ann. § 7-5-801(a)
(Repl. 2000) (stating that “[a] right of action is conferred on any candidate to contest the
certification of nomination or the certificate of vote as made by the appropriate officials in
any election.”); see also Valley v. Bogard, supra (stating that § 7-5-801 sets out the
procedure that pertains to election contests “after the election,” though that was not what was
involved in the Valley case); Tumey, 359 Ark. at 260, 196 S.W.3d at 482 (noting that “[a]n
election contest under section 7-5-801 may be instituted by a competing candidate after either
a primary or general election.”).
It is clear that where a candidate files a pre-election, eligibility case, the offices of
Secretary of State and the state political party are necessary and indispensable parties and
must be joined pursuant to Rule 19 of the Arkansas Rules of Civil Procedure. That is
because complete relief cannot be afforded to the parties in a pre-election, eligibility case
without the inclusion of those parties. The Secretary of State’s and the state political party’s
involvement in the certification-of-nominations process is explained by the relevant statute:
(a) The county board of election commissioners shall certify the
nomination of all county, township, and municipal offices to the county
committee of the political party, state committee of the political party, and
county clerk. It shall further certify the vote of all candidates for United States,
state, and district office to the state committee and the Secretary of State.
(b) The Secretary of State shall receive the returns from the county
board of election commissioners and canvass and certify the result thereof as
provided by law. The boards or their officers shall, when ordered by a circuit
court as provided by law, annul the certifications made and make certifications
in accordance with the judgment of the circuit court.
Ark. Code Ann. § 7-7-401(a)-(b) (Supp. 2005).4
4
The issue in Willis v. Circuit Court of Phillips County, 342 Ark. 128, 27 S.W.3d 372
(2000) (per curiam), which was relied on by the St. Francis County Circuit Court, was
whether Valley was eligible to run for the House of Representatives when he had not
satisfied the residency requirements. The Pulaski County Circuit Court determined he was
ineligible before the primary election, and we affirmed. See Valley v. Bogard, supra. Valley
then petitioned for a declaratory judgment and mandamus in Phillips County after the
primary election. We granted Willis’s petition for a writ of prohibition because the Secretary
of State had not been joined as a party and was indispensable. The proper venue, we said,
was Pulaski County. Willis was an eligibility case and not an election-contest case based on
voter fraud.
After the nominations are certified by the Secretary of State and the election is held,
candidates may bring lawsuits to contest the election based on voter fraud, among other
grounds, pursuant to § 7-5-801. That statute provides, in pertinent part:
(a) A right of action is conferred on any candidate to contest the
certification of nomination or the certificate of vote as made by the appropriate
officials in any election.
(b) The action shall be brought in the circuit court of the county in
which the certification of nomination or certificate of vote is made when a
county or city or township office, including the office of county delegate or
county committeeman, is involved, and, except as provided in this subchapter,
within any county in the circuit or district wherein any of the wrongful acts
occurred when any circuit or district office is involved, and, except as provided
in this subchapter, in the Pulaski County Circuit Court when the Office of
United States Senator or any state office is involved.
Ark. Code Ann. § 7-5-801(a)-(b) (Repl. 2000).
Thus, the proper venue for a post-election, election contest depends, in part, on the
type of office for which the candidate bringing the action is seeking. For example, if the
plaintiff in an election-contest case is a candidate for a district office, then he or she would
bring the lawsuit “in any county in the circuit or district wherein any of the wrongful acts
occurred.” Ark. Code Ann. § 7-5-801(b) (Repl. 2000). A plaintiff in an election-contest case
who is, however, a candidate for a state office is required to bring the lawsuit in the Pulaski
County Circuit Court. See id. Section 7-5-801(b) does not require that the plaintiff in an
election-contest case include the Secretary of State or state political parties as parties to the
action. See, e.g., Tate-Smith v. Cupples, 355 Ark. 230, 134 S.W.3d 535 (2003); Womack v.
Foster, supra. Rather, § 7-5-804(c) of the Election Code empowers the circuit court to issue
a writ of mandamus in an election-contest case “to the officers of political parties and
election officials, or both, or the Secretary of State” in order to “enforce the proper
certification and proper ballot in accordance with the judgment of the court[.]” Ark. Code
Ann. § 7-5-804(c) (Repl. 2000). Thus, this mandamus authority eliminates the need to join
the Secretary of State or state political parties as parties to a post-election contest.
Accordingly, an election contest need not be filed in Pulaski County Circuit Court unless the
disputed election is one for a state office.
We hold that this action is an election contest based on alleged irregularities that
occurred during the election itself in St. Francis County. It is not a pre-election, eligibility
case. It is clear to this court that Willis challenged the election based on voter fraud, among
other things. As explained above, it is not required that Willis join the Secretary of State or
the State Democratic Party as parties defendant. See Ark. Code Ann. § 7-5-801. Further, the
venue for this case is proper in St. Francis County, as that is the county within the circuit or
district where the alleged wrongful acts occurred. See id. We reverse the St. Francis County
Circuit Court’s order that the Secretary of State and the State Democratic Committee are
necessary and indispensable parties and remand this case to that court for further
proceedings.
Reversed and remanded.
G LAZE and D ICKEY, JJ., concur.
T OM G LAZE, Justice, concurring. This case, Willis v. Crumbly, et al., 06-1147, from
St. Francis County, and Simes v. Crumbly, et. al., 06-1121, from Pulaski County, also
06-1147
handed down today, raise the same two overarching issues: (1) Does Ark. Code Ann. § 7-5801 apply in these cases? And, (2) if so, is the state senate position a state office or a district
office (which in turn determines which venue is proper)? For clarity’s sake, I write
separately because the conclusion reached by this court is more logically addressed in one
opinion, rather than two. I also write because these two election-contest cases are the first
this court has reached where the court actually explained the procedure to follow when an
election has been riddled with allegations of voter fraud and irregularities. Most postelection-contest appeals have been dismissed because parties have failed to follow statutory
procedures and were untimely in following those restrictive measures. The Willis case, in
particular, sets out a road map on how a candidate shall proceed where election fraud or
“wrongful acts” have occurred. While election-contest actions may be difficult because
election deadlines are hard to meet, such cases are not impossible. In these two appeals
handed down today, this court has taken a bold step in explaining how attorneys and parties
should proceed to purge elections that may be tainted with fraud and unlawful acts.
These two appeals concern three men who ran as candidates for the office of State
Senate, District 16. That Senate District has four counties (Phillips, Lee, St. Francis &
Crittenden). At the preferential primary held on May 23, 2006, no candidate received a
majority of the votes cast, so Willis and Crumbly were declared the top two winners,
pursuant to Ark. Code Ann. § 7-7-304(a)(2) (Supp. 2005). These two candidates’ names
were printed on the general primary election ballots, for the June 13, 2006 election. Simes
06-1147
contested the election results and filed his complaint in Pulaski County, challenging only the
vote tally in Phillips County. Crumbly was declared the winner in the general primary (run
off) election by 78 votes. Willis then filed an election contest in the St. Francis County
Circuit Court of the June 13 general primary (run off) election. He challenged the results
from only one county, St. Francis.
In the Simes election-contest suit in Pulaski County, Crumbly filed a motion to
dismiss, claiming the Pulaski County Circuit Court did not have authority to hear and decide
Simes’s suit challenging the Phillips County votes under Ark. Code Ann. § 7-5-801 (Repl.
2000). The Defendants State Board of Election Commissioners and the Secretary of State
also moved to dismiss for the same reason. The Pulaski County Circuit Court held that
actions needed to be taken by the Secretary of State and the Democratic Party under Ark.
Code Ann. § 7-7-401 (Supp. 2005), claiming they were necessary and indispensable parties.
Because Simes’s complaint did not name those parties, the Pulaski County Circuit Court
concluded that it did not have a justiciable cause of action before it. This ruling also went
against Willis because he also was a party in Simes’s suit. On August 17, 2006, the Pulaski
County Circuit Court heard the matter and dismissed the suit and denied Simes’s motion for
default judgment, which alleged the defendants had filed a motion to dismiss but failed to
file a timely answer. An order was entered August 22, 2006, and Simes filed a notice of
appeal on August 28, 2006.
06-1147
The Willis election contest in Judge L.T. Simes’s court in St. Francis County was
heard on September 19, 2006. The judge dismissed Willis’s suit, relying on the case of
Willis v. Circuit Court of Phillips County, 342 Ark. 128, 27 S.W.3d 372 (2000) (per
curiam). On September 22, 2006, the judge entered another order ruling on an issue of law.
For purposes of § 7-5-801, he found that a “district office is a state office.” On October 4,
2006, the judge entered a third order, adding that he also relied on § 7-7-401(a). Willis filed
his notice of appeal on October 4, 2006, the same day that Judge L.T. Simes entered his third
order.
As stated earlier, two overarching issues are presented in these two appeals: (1) Does
§ 7-5-801 apply in these cases? And, (2) if so, is the state senate position a state office or a
district office (which in turn determines which venue is proper)? We begin with the first
issue: Does § 7-5-801 apply? The issues relevant in these appeals can best be understood
and resolved by reviewing the two different procedures by which candidates can contest an
election: (1) pre-election challenges (eligibility challenges) that are brought pursuant to Ark.
Code Ann. § 7-5-207 (Repl. 2000) (See State v. Craighead County Board of Election
Commissioners, 300 Ark. 405, 779 S.W.2d 169 (1989)), and (2) post-election challenges
(fraud or wrongful-acts challenges) that are brought pursuant to Ark. Code Ann. § 7-5-801.
In § 7-5-207 (eligibility) challenges, our case law clearly mandates that the Secretary
of State be included as a necessary party because, under § 7-7-401, the Secretary of State
06-1147
must certify the results. See § 7-7-401(b). See also Willis v. Circuit Court of Phillips
County, supra, and Valley v. Bogard, 342 Ark. 336, 28 S.W.3d 269 (2000). Thus, in §§ 7-5207/ 7-7-401 challenges, the Secretary of State is an indispensable party. Further, because
a state officer is being sued in such cases, the election contest must be brought in Pulaski
County Circuit Court. Willis v. Circuit Court of Phillips County, supra; Ark. Code Ann. §
16-60-103(3) (Repl. 2005).5
However, in § 7-5-801 (post-election fraud) challenges, the Secretary of State is not
a necessary party because, under Ark. Code Ann. § 7-5-801(d), the Secretary of State’s role
in a “post-election challenge” has already been completed. Specifically, § 7-5-801(d) states,
“The complaint shall be verified by the affidavit of the contestant to the effect that he
believes the statements to be true and shall be filed within twenty (20) days of the
certification complained of.” (Emphasis added.) From the plain language of this section,
it is clear that the Secretary of State’s certification process has already been completed at the
time the post-election challenge is made. That is, the certification has already occurred, and
5
Notably, the Willis case is confusing. At first glance, it appears to be a post-election
case because the original action (J.F. Valley’s filing a declaratory judgment and writ of
mandamus with this court) was filed after the primary election. However, upon examining
the nature of the action, it is clear that the challenge in that case was to Valley’s eligibility
to run for that office – an issue which is a pre-election issue (i.e. Valley requested that we
declare him the winner because he was eligible to hold the office, and he received a majority
of the votes.) While it is arguable that we should have held in that case that Valley untimely
filed the declaratory judgment and mandamus action (because he filed after the primary
election), it is undisputable that the nature of the action in that case presented a “pre-election
issue,” making the Willis case and its holding inapposite in the present “post-election”
challenges now before us.
06-1147
it is not necessary to include the Secretary of State as a party in order to afford the plaintiff
relief. If there were any doubt concerning this point, § 7-5-804(c) is actually premised on
the assumption that the Secretary of State is not a party in the election contest; that section
establishes mandamus as the procedure to enforce the proper certification in accordance with
the circuit court’s judgment. Stated simply, in the two instant cases, filed under § 7-5-801,
the Secretary of State is not a necessary party.
The Willis and Simes appeals are post-election actions challenging the final vote
tallies; such actions are authorized under § 7-5-801, which allows a candidate to contest
wrongful acts that occurred during the election. Thus, in the Simes/Pulaski County case, the
Pulaski County Circuit Court erred when it dismissed the action on the grounds that the
Secretary of State had not been named a party. In other words, Willis’s and Simes’s election
challenges were post-election cases, which do not call for the Secretary of State to be a
party.6
Having determined that § 7-5-801 applies, the next question to be addressed involves
the St. Francis County Circuit Court’s determination as to where the action should be filed.
Section 7-5-801(b) provides:
The action shall be brought in the circuit court . . . within any county in the
circuit or district wherein any of the wrongful acts occurred when any circuit
or district office is involved, and, except as provided in this subchapter, in the
6
As suggested by Willis, any such interpretation requiring the Secretary of State in all
election contests could be burdensome on that state office.
06-1147
Pulaski County Circuit Court when the Office of United States Senator or any
state office is involved.
Ark. Code Ann. § 7-5-801(b) (emphasis added). As a general rule, § 7-5-801 fixes the venue
for 801-post-election contests in the circuit or district where the wrongful election acts
occurred. Certainly, this makes sense, because it is that district and county where the
witnesses and election materials are largely located. As an express exception in the abovecited statute, an 801-post-election challenge must be made in the county where the wrongful
acts occurred unless a state office is involved.
Here, the St. Francis County Circuit Court ruled that a State Senate office is a “state
office” rather than a “district office.” The St. Francis County Circuit Court’s ruling was
wrong. While the St. Francis County Circuit Court suggests that a state senator is a state
office, it was clearly mistaken, and therefore a state senate race is not excepted from § 7-5801 under paragraph (b). Article 5 § 4 of the Arkansas Constitution clearly provides that
no person shall be a state senator unless he is a resident of the district from which he is
chosen. Also, § 7-7-401(a) recognizes the difference between state officeholders elected at
large and officeholders elected by state senators district-wide (noting that the county board
of election commissioners is to certify the vote of all candidates “for United States, state,
and district office”).
Finally, as a last point, Ark. Code Ann. § 7-5-801(c) (Repl. 2000) provides that“if
there are two (2) or more counties in the district where the action is brought and when fraud
is alleged . . . the circuit court may hear testimony in any county in the district.” § 7-5-801(c)
06-1147
(emphasis added). Here, Willis contested only votes cast and counted in St. Francis County,
so he properly filed his complaint in that county. Of course, if Willis and Simes had selected
any one of the other three counties in senate district 16 to file their election contest, another
circuit court could have been involved in finding venue in the case. In any set of
circumstances, however, venue must be established in the district where the wrongful
election acts are alleged to have occurred. See § 7-5-802(b).
In sum, the two appeals here involve post-election actions; such actions are
authorized under § 7-5-801, which allows a candidate to contest wrongful acts that occurred
during the election in the district where those alleged wrongful acts occurred, which is what
happened in these cases. Consequently, in Simes v. Crumbly, 06-1121, the Pulaski County
Circuit Court erred in concluding that the Secretary of State and Democratic Party were
indispensable parties in this post-election challenge. However, Pulaski County was not the
proper venue for this post-election contest. It should have been filed in the venue where the
wrongful acts alleged occurred. Because candidate Simes filed his post-election contest in
Pulaski County Circuit Court, rather than Phillips County Circuit Court, we reverse and
dismiss his suit. However, in this case, Willis v. Crumbly, 06-1147, the St. Francis Circuit
Court erred in relying on Willis v. Phillips County Election Commission, supra, to dismiss
the suit, as that opinion’s holding does not apply in a post-election challenge. Moreover, the
St. Francis County Circuit Court also erred in concluding that the suit should have been filed
in Pulaski County Circuit Court, as the state senate position is a district office and not a state
06-1147
office. Thus, we reverse and remand Willis v. Crumbly, 06-1147.7 Notably, if Crumbly
should prevail in the St. Francis suit, he should be certified by the St. Francis Board of
Election Commissioners as the district office holder of Senate Position No. 16. The circuit
court should enter a mandamus to the Secretary of State pursuant to § 7-5-804(c). If Willis
fails in his suit, no further action is necessary.
DICKEY, J., joins.
7
I note that Chief Justice Hannah’s concurring opinion appears to affirm the Pulaski
County Circuit Court, but it seems clear to me that the Pulaski County Circuit Court erred
in holding that the Secretary of State and Democratic Party were necessary parties. However,
Sims should have filed his election contest in Phillips County where venue was appropriate.
He failed to file a timely complaint in that county.
06-1147
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.