This case, Willis v. Crumbly, 368 Ark. 5, 242 S.W.3d 600 (2006), from St. Francis County, and Simes v. Crumbly, 368 Ark. 1, 242 S.W.3d 610 (2006), from Pulaski County, also handed down today, raise the same two overarching issues: (1) Does Ark. Code Ann. § 7-5-801 apply in these cases? And, (2) if so, is the state senate position a state office or a district office (which in turn determines which venue is proper)? For clarity’s sake, I write separately because the conclusion reached by this court is more logically addressed in one opinion, rather than two. I also write because these two election-contest cases are the first this court has reached where the court actually explained the procedure to follow when an election has been riddled with allegations of voter fraud and irregularities. Most post-election-contest appeals have been dismissed because parties have faded to follow statutory procedures and were untimely in following those restrictive measures. The Willis case, in particular, sets out a road map on how a candidate shall proceed where election fraud or “wrongful acts” have occurred. While election-contest actions may be difficult because election deadlines are hard to meet, such cases are not impossible. In these two appeals handed down today, this court has taken a bold step in explaining how attorneys and parties should proceed to purge elections that may be tainted with fraud and unlawful acts.
These two appeals concern three men who ran as candidates for the office of State Senate, District 16. That Senate District has four counties (Phillips, Lee, St. Francis and Crittenden). At the preferential primary held on May 23, 2006, no candidate received a majority of the votes cast, so Willis and Crumbly were declared the top two winners, pursuant to Ark. Code Ann. § 7-7-304(a)(2) (Supp. 2005). These two candidates’ names were printed on the general primary election ballots for the June 13, 2006 election. Simes contested the election results and filed his complaint in Pulaski County, challenging only the vote tally in Phillips County. Crumbly was declared the winner in the general primary (run-off) election by seventy-eight votes. Willis then filed an election contest in the St. Francis County Circuit Court of the June 13 general primary (ran-oñ) election. Fie challenged the results from only one county, St. Francis.
In the Simes election-contest suit in Pulaski County, Crumbly filed a motion to dismiss, claiming the Pulaski County Circuit Court did not have authority to hear and decide Simes’s suit challenging the Phillips County votes under Ark. Code Ann. § 7-5-801 (Repl. 2000). The defendants, State Board of Election Commissioners and the Secretary of State, also moved to dismiss for the same reason. The Pulaski County Circuit Court held that actions needed to be taken by the Secretary of State and the Democratic Party under Ark. Code Ann. § 7-7-401 (Supp. 2005), claiming they were necessary and indispensable parties. Because Simes’s complaint did not name those parties, the Pulaski County Circuit Court concluded that it did not have a justiciable cause of action before it. This ruling also went against Willis because he also was a party in Simes’s suit. On August 17, 2006, the Pulaski County Circuit Court heard the matter and dismissed the suit and denied Simes’s motion for default judgment, which alleged the defendants had filed a motion to dismiss but failed to file a timely answer. An order was entered August 22, 2006, and Simes filed a notice of appeal on August 28, 2006.
The Willis election contest in Judge L.T. Simes’s court in St. Francis County was heard on September 19, 2006. The judge dismissed Willis’s suit, relying on the case of Willis v. Circuit Court of Phillips County, 342 Ark. 128, 27 S.W.3d 372 (2000) (per curiam). On September 22, 2006, the judge entered another order ruling on an issue of law. For purposes of§ 7-5-801, he found that a “district office is a state office.” On October 4, 2006, the judge entered a third order, adding that he also relied on § 7-7-401(a). Willis filed his notice of appeal on October 4, 2006, the same day that Judge L.T. Simes entered his third order.
As stated earlier, two overarching issues are presented in these two appeals: (1) Does § 7-5-801 apply in these cases? And, (2) if so, is the state senate position a state office or a district office (which in turn determines which venue is proper)? We begin with the first issue: Does § 7-5-801 apply? The issues relevant in these appeals can best be understood and resolved by reviewing the two different procedures by which candidates can contest an election: (1) pre-election challenges (eligibility challenges) that are brought pursuant to Ark. Code Ann. § 7-5-207 (Repl. 2000) (see State v. Craighead County Bd. of Election Comm’rs, 300 Ark. 405, 779 S.W.2d 169 (1989)), and (2) post-election challenges (fraud or wrongful-acts challenges) that are brought pursuant to Ark. Code Ann. § 7-5-801.
In § 7-5-207 (eligibility) challenges, our case law clearly mandates that the Secretary of State be included as a necessary party because, under § 7-7-401, the Secretary of State must certify the results. See § 7-7-401(b); see also Willis v. Circuit Court of Phillips County, supra, and Valley v. Bogard, 342 Ark. 336, 28 S.W.3d 269 (2000). Thus, in §§ 7-5-207/ 7-7-401 challenges, the Secretary of State is an indispensable party. Further, because a state officer is being sued in such cases, the election contest must be brought in Pulaski County Circuit Court. Ark. Code Ann. § 16-60-103(3) (Repl. 2005); Willis v. Circuit Court of Phillips County, supra.1
However, in § 7-5-801 (post-election fraud) challenges, the Secretary of State is not a necessary party because, under Ark. Code Ann. § 7-5-801(d), the Secretary of State’s role in a “post-election challenge” has already been completed. Specifically, § 7-5-801 (d) states, “The complaint shall be verified by the affidavit of the contestant to the effect that he believes the statements to be true and shall be filed within twenty (20) days of the certification complained of.” (Emphasis added.) From the plain language of this section, it is clear that the Secretary of State’s certification process has already been completed at the time the post-election challenge is made. That is, the certification has already occurred, and it is not necessary to include the Secretary of State as a party in order to afford the plaintiff relief. If there were any doubt concerning this point, § 7-5-804(c) is actually premised on the assumption that the Secretary of State is not a party in the election contest; that section establishes mandamus as the procedure to enforce the proper certification in accordance with the circuit court’s judgment. Stated simply, in the two instant cases, filed under § 7-5-801, the Secretary of State is not a necessary party.
The Willis and Simes appeals are post-election actions challenging the final vote tallies; such actions are authorized under § 7-5-801, which allows a candidate to contest wrongful acts that occurred during the election. Thus, in the Simes/Pulaski County case, the Pulaski County Circuit Court erred when it dismissed the action on the grounds that the Secretary of State had not been named a party. In other words, Willis’s and Simes’s election challenges were post-election cases, which do not call for the Secretary of State to be a party.2
Having determined that § 7-5-801 applies, the next question to be addressed involves the St. Francis County Circuit Court’s determination as to where the action should be filed. Section 7-5-801 (b) provides:
The action shall be brought in the circuit court... within any county in the circuit or district wherein any of the wrongful acts occurred when any circuit or district office is involved, and, except as provided in this subchapter, in the Pulaski County Circuit Court when the Office of United States Senator or any state office is involved.
Ark. Code Ann. § 7-5-801(b) (emphasis added). As a general rule, § 7-5-80 Í fixes the venue for 801-post-election contests in the circuit or district where the wrongful election acts occurred. Certainly, this makes sense, because it is that district and county where the witnesses and election materials are largely located. As an express exception in the above-cited statute, an 801-post-election challenge must be made in the county where the wrongful acts occurred unless a state office is involved.
Here, the St. Francis County Circuit Court ruled that a state Senate office is a “state office” rather than a “district office.” The St. Francis County Circuit Court’s ruling was wrong. While the St. Francis County Circuit Court suggests that a state senator is a state office, it was clearly mistaken, and therefore a state senate race is not excepted from § 7-5-801 under paragraph (b). Article 5 § 4 of the Arkansas Constitution clearly provides that no person shall be a state senator unless he is a resident of the district from which he is chosen. Also, § 7-7-401 (a) recognizes the difference between state officeholders elected at large and officeholders elected by state senators district-wide (noting that the county board of election commissioners is to certify the vote of all candidates “for United States, state, and district office”).
Finally, as a last point, Ark. Code Ann. § 7-5-801 (c) (Repl. 2000) provides that “if there are two (2) or more counties in the district where the action is brought and when fraud is alleged . . . the circuit court may hear testimony in any county in the district.” Ark. Code Ann. § 7-5-801(c) (emphasis added). Flere, Willis contested only votes cast and counted in St. Francis County, so he properly filed his complaint in that county. Of course, if Willis and Simes had selected any one of the other three counties in senate district 16 to file their election contest, another circuit court could have been involved in finding venue in the case. In any set of circumstances, however, venue must be established in the district where the wrongful election acts are alleged to have occurred. See Ark. Code Ann. § 7-5-802(b).
In sum, the two appeals here involve post-election actions; such actions are authorized under § 7-5-801, which allows a candidate to contest wrongful acts that occurred during the election in the district where those alleged wrongful acts occurred, which is what happened in these cases. Consequently, in Simes v. Crumbly, supra, the Pulaski County Circuit Court erred in concluding that the Secretary of State and Democratic Party were indispensable parties in this post-election challenge. However, Pulaski County was not the proper venue for this post-election contest. It should have been filed in the venue where the wrongful acts alleged occurred. Because candidate Simes filed his post-election contest in Pulaski County Circuit Court, rather than Phillips County Circuit Court, we reverse and dismiss his suit. However, in this case, Willis v. Crumbly, supra, the St. Francis Circuit Court erred in relying on Willis v. Phillips County Election Commission, supra, to dismiss the suit, as that opinion’s holding does not apply in a post-election challenge. Moreover, the St. Francis County Circuit Court also erred in concluding that the suit should have been filed in Pulaski County Circuit Court, as the state senate position is a district office and not a state office. Thus, we reverse and remand Willis v. Crumbly, supra.3 Notably, if Crumbly should prevail in the St. Francis suit, he should be certified by the St. Francis Board of Election Commissioners as the district officeholder of Senate Position No. 16. The circuit court should enter a mandamus to the Secretary of State pursuant to § 7-5-804(c). If Willis fails in his suit, no further action is necessary.
Dickey, J., joins.Notably, the Willis case is confusing. At first glance, it appears to be a post-election case because the original action (J.F. Valley’s filing a declaratory judgment and writ of mandamus with this court) was filed after the primary election. However, upon examining the nature of the action, it is clear that the challenge in that case was to Valley’s eligibility to run for that office — an issue which is a pre-election issue (i.e., Valley requested that we declare him the winner because he was eligible to hold the office, and he received a majority of the votes.). While it is arguable that we should have held in that case thatValley untimely filed the declaratory judgment and mandamus action (because he filed after the primary election), it is undisputable that the nature of the action in that case presented a “pre-election issue,” making the Willis case and its holding inapposite in the present “post-election” challenges now before us.
As suggested by Willis, any such interpretation requiring the Secretary of State in all election contests could be burdensome on that state office.
I note that Chiefjustice Hannah’s concurring opinion appears to affirm the Pulaski County Circuit Court, but it seems clear to me that the Pulaski County Circuit Court erred in holding that the Secretary of State and Democratic Party were necessary parties. However, Simes should have filed his election contest in Phillips County where venue was appropriate. He failed to file a timely complaint in that county.