Opinion No. ( 1995 )

Mr. Ron Oliver, Chairman Pulaski County Election Commission 201 South Broadway, Suite 360 Little Rock, Arkansas 72201

Dear Mr. Oliver:

This is in response to your request for an opinion on two questions regarding A.C.A. § 7-5-315(7) (Repl. 1993), which provides as follows:

The votes received by any person whose name appeared on the ballot and who withdrew or died after the certification of the ballot shall be counted. If the person received enough votes to win nomination or election, a vacancy in nomination or election shall be declared. If the person received enough votes to qualify for a runoff, the person's name shall appear on the runoff ballot and if enough votes are cast for the person to win the runoff then a vacancy in nomination or election shall exist.

You first ask that I "clarify" this statute, indicating that it "could cause a runoff for the other candidates." You also ask at what point the ballot is "certified": 1) when the candidates names are certified from the county clerk (city/municipal races); 2) when the commission formally certifies all candidates; or 3) when the ballot is printed and delivered to the county clerk for voting.

It is my opinion, in response to your first question, that the statute is not in need of clarification. The fact that counting the votes for withdrawn or deceased candidates could cause a runoff is apparent from the statute. The votes cast for the withdrawn or deceased candidate, whose name appears on the ballot, are to be counted and the candidate treated, for all purposes except for taking office, as if he or she had not withdrawn or died. See Op. Att'y Gen. 90-181 (copy enclosed); Rubensv. Hodges, 310 Ark. 451, 837 S.W.2d 465 (1992); and Davis v. Holt,304 Ark. 619, 804 S.W.2d 362 (1991). If the withdrawn or deceased candidate wins the election, a vacancy in nomination or election occurs. If the withdrawn or deceased candidate gets enough votes to be placed in a runoff, his or her name appears on the runoff ballot with other candidates. If the withdrawn or deceased candidate wins the runoff, again, a vacancy in nomination or election occurs.

In response to your second question, it is my opinion that the answer is none of the above. In my opinion "certification of the ballot" refers, with regard to general elections, to the certification by the Secretary of State, not less than forty-five days before each election, of the lists of candidates to the county boards of election commissioners. See A.C.A. § 7-5-203 and A.C.A. § 7-5-207(a). For primary elections, the certification is made by the state party committees no later than forty days prior to the preferential primary election. See A.C.A. § 7-7-203 (d). It must be noted however that A.C.A. § 7-5-315(7) applies to candidates who withdrew or died after "certification of the ballot" and whose names appeared on the ballot. The votes of these candidates are to be counted. Certification of their name as a candidate under A.C.A. §7-5-203 is not always dispositive of whether their name will appear on the ballot and their votes thus counted. Even after certification of the ballot (meaning certification of the candidate's name under 7-5-203), a candidate may withdraw in a general or special election prior to theballots being printed. See A.C.A. § 7-5-207(a), which provides as follows:

(a) All election ballots provided by the county board of election commissioners of any county in this state for any election shall contain in the proper place the name of every candidate whose nomination for any office to be filled at that election has been certified to the commissioners and shall not contain the name of any candidate or person who has not been certified. If any candidate shall, prior to the printing of the ballots, notify the secretary of the state committee in the case of a United States, state, or district office, or the secretary of the county committee in the case of a county, city, or township office, in writing, signed by the candidate, and acknowledged before an officer authorized to take acknowledgments, of his desire to withdraw as a candidate for the office or position, the name of the person shall not be printed on the ballot at the general or special election. [Emphasis added.]

Thus even a candidate whose name has been certified forty-five days prior to the election under A.C.A. § 7-5-203 may withdraw before the ballots are printed according to the procedure of A.C.A. § 7-5-207(a), and his or her name will not then appear on the ballot.

The foregoing opinion, which I hereby approve, was prepared by Deputy Attorney General Elana C. Wills.

Sincerely,

WINSTON BRYANT Attorney General

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