The Honorable W.H. "Bill" Sanson State Representative State Capitol Little Rock, AR 72201
Dear Representative Sanson:
This is in response to your request for an opinion concerning write-in candidates. Your request is as follows:
Please advise if it is legal for a person to run in the Democratic primary as a Democrat unsuccessfully, then run as a write-in candidate in the general election the same year.
Assuming that the person is qualified to hold the particular position, it is my opinion that the subsequent write-in candidacy would be lawful.
Our research has not disclosed any statutory prohibition in this regard, nor is there any Arkansas case law authority indicating that this would be unlawful. The absence of a statutory prohibition is of particular note in light of the clear prohibition to this effect as to an independent candidacy. Arkansas Code of 1987 Annotated § 7-7-103(f) states:
A person who has been defeated in a party primary shall not be permitted to file as an independent candidate in the general election for the office for which he was defeated in the party primary.
The General Assembly could, it seems, have easily enacted such a prohibition with regard to a write-in candidacy had it so intended.
Although this precise question was not addressed, we should note that this office has previously opined that a political practices pledge filed when a candidate was running in a party's primary would in all likelihood satisfy the filing requirement under A.C.A. § 7-6-102(a)(4).1 Atty' Gen. Op. No. 88-297. The candidate will, of course, be required to give the proper notification of his or her intention to be a write-in candidate. ("[N]ot later than sixty (60) days before the opening of the polls." A.C.A. § 7-5-205.) It was concluded, however, in Opinion Number 88-297, that the filing of the pledge before the primary could form the basis for a finding of substantial compliance with § 7-6-102(a)(4).
The foregoing opinion, which I hereby approve, was prepared by Deputy Attorney General Elisabeth A. Walker.
Sincerely,
WINSTON BRYANT Attorney General
WB:arb
1 This Code section states in part: "Persons who wish to be write-in candidates shall file the political practices pledge at the time of filing the notice to be a write-in candidate." It was noted in Op. No. 88-297 that this requirement presumably stems from the assumption that a pledge has not yet been filed.