Opinion No. ( 2002 )

The Honorable Robert Ryall, Chair Lincoln County Election Committee P.O. Box 118 Yorktown, AR 71678

Dear Chairman Ryall:

I am writing in response to your request for my opinion on a question I will paraphrase as follows:

Given the provisions of A.C.A. § 7-6-102 and the conclusion reached in Ark. Op. Att'y Gen. No. 94-097, is a candidate who files for office at party headquarters but fails to complete his filing requirements at the county clerk's office before the noon deadline on April 2, 2002 eligible to have his name printed on the ballot?

You indicate that the subject of your request is Charlie Cole, a prospective candidate for Lincoln County Judge. You report that he filed certain required documents at Lincoln County Democratic Committee Headquarters on April 1, 2002 and was advised to complete his filing at the Lincoln County Clerk's Office by noon on April 2, 2002. Mr. Cole reportedly called Lincoln County Clerk Phyllis Knight at approximately 12:20 p.m. on April 2, 2002 seeking an additional 30 minutes to file, only to be advised that he had missed the noon filing deadline.

RESPONSE

Subsection 7-6-102(a)(1) of the Code (Repl. 2000) provides that a candidate for county office shall file his required political practices pledge "with the county clerk of the county not later than 12:00 noon fourteen (14) days after the third Tuesday in March, before the preferential primary election. . . ." Subsection 7-7-203(c)(1) sets this same deadline for" party pledges" and "political practice pledges"¹ but fails to specify whether a candidate should make these filings with the county clerk or the party headquarters. Subsection 7-7-301(a) provides that any political party may require a party pledge and impose a party filing fee for candidates to be paid by the same date. Subsection7-7-301(a)(3) provides that candidates "shall file the pledge and pay the party filing fees with the secretary of the county committee of the political party." Subsection 7-7-301(b)(2) further provides that "[t]he secretary of the county committee or of the state committee, as the case may be, shall require an affidavit of eligibility from the candidate. . . ." Subsection 7-7-301(c) provides that the county clerk cannot accept for filing a political practices pledge unless the candidate furnishes written evidence that he has paid all party filing fees and filed any required party pledges. Although the ambiguous A.C.A. § 7-7-203(c)(1) might be read as suggesting that the political practices pledge may be filed with the county committee of the political party in lieu of the clerk, this reading is inconsistent with A.C.A. §§ 7-6-102(a)(1) and7-7-301(c), which clearly contemplate that a candidate will file the political practices pledge with the county clerk upon establishing that he has paid his filing fees and filed any required party pledges.

As the county clerk and the Lincoln County Democratic Committee Headquarters apparently advised Mr. Cole, the deadline for all filings pursuant to the above referenced statutes was noon, April 2, 2002. I gather from your factual account that Mr. Cole met that deadline with respect to his party filings but missed it with respect to the filing of his political practices pledge with the county clerk. However, as my predecessor pointed out in the attached Ark. Op. Att'y Gen. No. 94-097, A.C.A. § 7-6-102(e) as amended by Act 912 of 1989 provides that a candidate who has failed to file a timely political practices pledge shall receive notice of this failure, return receipt required, within five days of the deadline and shall have a period of twenty days from receipt of the notice to file the pledge.²

Applying the foregoing to the facts as you have described them, I do not believe Mr. Cole can be precluded from filing to run for county judge merely because he failed to file his political practices pledge by noon, April 2, 2002. Pursuant to A.C.A. § 7-6-102(e)(2)(A), the county clerk is obligated to notify him by certified mail of his failure to meet this deadline, including with the notice a copy of the required written pledge. Assuming Mr. Cole executes and returns this pledge, and further assuming he fully complied on April 1, 2002 with all the requirements for party filings and payment of filing fees, I believe he will be entitled to have his name appear on the preferential primary ballot as a Democratic candidate for the position of Lincoln County Judge. However, only a finder of fact will be able to determine whether Mr. Cole has met all of these factual predicates. Having offered this opinion, I will note that I fully subscribe to the general discussion set forth by my predecessor, adding only that since the issuance of that opinion, the Arkansas Supreme Court has once again held that the failure to file a political practice pledge in accordance with the above discussed statutes in itself constitutes sufficient reason to prevent a candidate's name from appearing on the ballot. Lewis v. West, 318 Ark. 334, 340, 885 S.W.2d 663 (1994).

Assistant Attorney General Jack Druff prepared the foregoing, which I hereby approve.

Sincerely,

MARK PRYOR Attorney General

MP:JD/cyh

Enclosure

¹ In Ark. Op. Att'y Gen. No. 94-097, my immediate predecessor discussed a then existing conflict between the announced deadlines for filing political practice pledges set forth in A.C.A. §§ 7-6-102(a)(1) and7-7-203(c)(1). However, this tension was resolved by Act 886 of 1997, which substituted "fourteen (14) days after the third Tuesday in March" for "on the first Tuesday of April" in A.C.A. § 7-6-102(a)(1).

² As codified, A.C.A. § 7-6-102 contains two subsections (e). The first provides only a five-day grace period following notice of failure to file a political practices pledge. This subsection was enacted pursuant to Act 755 of 1989, which was approved on March 21, 1989. The second version of subsection (e) contains the provisions discussed in the text of this opinion. It was enacted pursuant to Act 912 of 1989, what was approved on March 23, 1989. In my opinion, the last approved of these acts repealed the earlier enactment. A.C.A. § 1-2-207.