Opinion No.

Ms. Tamra Cochran, Chairman Benton County Election Commission 321 West Cherry Street Rogers, AR 72756

Dear Ms. Cochran:

This is in response to your request for an opinion on whether a second run-off election is required where no candidate received a majority of votes in the first run-off election.

As I understand the facts upon which you have based your request, three candidates ran for the position of mayor of the City of Gentry. No candidate received a majority of votes. The second highest percentage of votes went to two candidates who tied with the same number of votes. In the run-off election between the same three candidates, no candidate received a majority of votes, but the incumbent received a clear plurality. The specific question that you have posed is whether the candidate carrying the highest percentage of votes was elected mayor, or whether another run-off election should be held.

It is my opinion that the candidate carrying the highest percentage of votes was not elected mayor, and that the incumbent may continue to be mayor until a successor is elected in accordance with election laws.

Under Arkansas Code Annotated § 14-43-304(a)(1), cities of the first class must elect their mayors by majority vote. That did not happen in either the regular election or the second election. My research has yielded no statutory authority for holding another election at this point. The run-offs provisions do not apply in this instance.

In the absence of an election, the situation must be governed by Article 19, § 5 of the Arkansas Constitution. That section states:

All officers shall continue in office after the expiration of their official terms until their successors are elected and qualified.

Arkansas Constitution, Article 19, § 5.

Accordingly, based upon this constitutional authority, it is my opinion that Gentry's mayoral incumbent may "hold over" in office until a successor is officially elected and qualified. If the incumbent resigns, a vacancy will occur and will be required to be filled in accordance with the law.

The foregoing opinion, which I hereby approve, was prepared by Assistant Attorney General Suzanne Antley.

Sincerely,

WINSTON BRYANT Attorney General

WB:SA/cyh