Ark. Code Ann. § 7-5-804 (2020)
Trial — Appeal — Enforcement — Other laws superseded
- The election contest shall be tried by the circuit judge in open court without a jury.
- An appeal may be taken from the judgment. However, the appeal shall not operate as a supersedeas by judicial order or otherwise and the judgment of the circuit court shall be obeyed by officeholders, political committees and their officers, and all election officials, until reversed. It shall be the duty of the Supreme Court to advance the hearing of any such appeal.
- The circuit court or, when necessary, the circuit judge in vacation shall enforce by mandamus to the officers of political parties and election officials, or both, or the Secretary of State the proper certification and proper ballot in accordance with the judgment of the court and shall punish the failure of any such officers to obey the mandamus by imprisonment in the county jail.
- Except as provided in this subchapter, all laws pertaining to general and special elections or rules of political organizations regarding primary elections providing for contest before political conventions or committees, other than the proceedings provided in this subchapter, shall be of no further force or effect.
History. Acts 1969, No. 465, Art. 10, § 4; A.S.A. 1947, § 3-1004; Acts 1997, No. 446, § 36.
Case Notes
Applicability.
Former statute applied not to the first trial only, but to a subsequent trial after appeal and reversal. Cain v. Robertson, 168 Ark. 751, 271 S.W. 336 (1925) (decision under prior law).
Candidate's post-election challenge to a state senate runoff election was properly brought within the circuit or district in which alleged voter fraud occurred; further, the Secretary of State and the State Democratic Committee were not indispensable parties for complete relief under Ark. R. Civ. P. 19 because the office of state senator was not a “state office” as that term had been differentiated in §§ 7-7-401 and 7-5-804, and Ark. Const. art. 5, §§ 3 and 4. Willis v. Crumbly, 368 Ark. 5, 242 S.W.3d 600 (2006).
Admissions.
Contestant's admission at the trial that another candidate who was not a party received more votes according to the returns than contestant warranted dismissal of his complaint. Stewart v. Hunnicutt, 178 Ark. 829, 12 S.W.2d 418 (1929) (decision under prior law).
Dismissal.
Because an election contest is a special proceeding where the legislature has expressly provided for expedited proceedings, it cannot be dismissed voluntarily or without prejudice; for if it was, it would seriously disrupt the administration of government and would effectively subvert the time limitations established by the legislature. McCastlain v. Elmore, 340 Ark. 365, 10 S.W.3d 835 (2000).
Evidence.
The rules of evidence in election contests are the same as those in suits over property rights. Condren v. Gibbs, 94 Ark. 478, 127 S.W. 731 (1910) (decision under prior law).
—Burden of Proof.
The burden of proof is upon the party who seeks to set aside the returns. Powell v. Holman, 50 Ark. 85, 6 S.W. 505 (1887) (decision under prior law).
Where the voter is registered and his name accepted by the election officers and the evidence is of equal weight as to the time he became of age, there is a presumption that he is a legally qualified voter and the burden is on the contestant to rebut this presumption. Letchworth v. Flinn, 108 Ark. 301, 157 S.W. 402 (1913) (decision under prior law).
—Proving Election Results.
Pollbooks and certificates of the election officers are prima facie evidence of results of an election. Patton v. Coates, 41 Ark. 111 (1883) (decision under prior law).
If the ballots, tally sheets, and pollbooks are destroyed, lost, or stolen, secondary evidence is admissible, and spectators who were present at the count are competent witnesses in such a case. Dixon v. Orr, 49 Ark. 238, 4 S.W. 774 (1887) (decision under prior law).
If the election returns are discredited, other proof must be furnished as to how the votes were cast. Rhodes v. Driver, 69 Ark. 501, 64 S.W. 272 (1901) (decision under prior law).
Though the official returns of an election are not conclusive, they are prima facie evidence of the result and will stand until they are discredited by satisfactory evidence showing that they have not been preserved in the manner prescribed by law or have been tampered with or falsified. Condren v. Gibbs, 94 Ark. 478, 127 S.W. 731 (1910) (decision under prior law).
—Self-Incrimination.
In trials of contested elections and in proceedings for the investigation of elections, no person shall be permitted to withhold his testimony on the ground that it may incriminate him, or subject him to public infamy. However, the testimony shall not be used against him in any judicial proceeding, except for perjury in giving the testimony. Ark. Const., Art. 3, § 9. Freeman v. Lazarus, 61 Ark. 247, 32 S.W. 680 (1895); Aven v. Wilson, 61 Ark. 287, 32 S.W. 1074 (1895); Payne v. Rittman, 66 Ark. 201, 49 S.W. 814 (1899); Whittaker v. Watson, 68 Ark. 555, 60 S.W. 652 (1901); Rhodes v. Driver, 69 Ark. 501, 64 S.W. 272 (1901) (decisions under prior law).
—Sufficiency.
Evidence sufficient to show fraudulent conduct by election judges. Williams v. Buchanan, 86 Ark. 259, 110 S.W. 1024 (1908) (decision under prior law).
Where the contestant failed to prove for whom a single challenged voter cast his vote, judgment was properly rendered for the contestee. Black v. Jones, 208 Ark. 1011, 188 S.W.2d 626 (1945) (decision under prior law).
—Voter Testimony.
Declarations of voters are not competent to show that by reason of age or residence they were not qualified voters. Rucks v. Renfrow, 54 Ark. 409, 16 S.W. 6 (1891) (decision under prior law).
In an election contest, a voter may contradict his ballot if he did not prepare it himself and it was prepared contrary to the statute authorizing judges of an election to prepare ballots for illiterate voters. Freeman v. Lazarus, 61 Ark. 247, 32 S.W. 680 (1895) (decision under prior law).
Where question arose as to the meaning of the stipulation concerning testimony of student voters, trial court erred in refusing to allow the plaintiff to examine any of the balance of the students, since parties differed as to meaning of stipulation. Ptak v. Jameson, 215 Ark. 292, 220 S.W.2d 592 (1949) (decision under prior law).
Findings.
When the conclusion of the trial court is inconsistent with its special findings, the cause on appeal will be remanded for entry of judgment according to special findings. Powell v. Holman, 50 Ark. 85, 6 S.W. 505 (1887) (decision under prior law).
The findings of fact of the trial judge in an election contest are conclusive on appeal. Jones v. Glidewell, 53 Ark. 161, 13 S.W. 723 (1890) (decision under prior law).
Where contestee on appeal assigned as error the admission of certain pollbooks in evidence, the trial would not be reversed in the absence of a showing in the record that the exclusion would have changed the result. Merritt v. Hinton, 55 Ark. 12, 17 S.W. 270 (1891) (decision under prior law).
In election contests, the finding of the trial judge upon conflicting evidence are as conclusive as the verdict of the jury. Schuman v. Sanderson, 73 Ark. 187, 83 S.W. 940 (1904) (decision under prior law); Williams v. Buchanan, 86 Ark. 259, 110 S.W. 1024 (1908) (decision under prior law).
Laws Superseded.
Local option election statute, which does not involve candidates or officials, was not repealed by the comprehensive election code. Garrett v. Andrews, 294 Ark. 160, 741 S.W.2d 257 (1987), cert. denied, 487 U.S. 1219, 108 S. Ct. 2873, 101 L. Ed. 2d 908 (1988).
Cited: Henderson v. Anderson, 251 Ark. 724, 475 S.W.2d 508 (1972); Loyd v. Keathley, 284 Ark. 391, 682 S.W.2d 739 (1985); Womack v. Foster, 338 Ark. 514, 998 S.W.2d 737 (1999); Stilley v. Henson, 342 Ark. 123, 26 S.W.3d 786 (2000); Willis v. King, 352 Ark. 55, 98 S.W.3d 427 (2003); Hill v. Carter, 357 Ark. 597, 184 S.W.3d 431 (2004).