concurring. I agree that the appellant’s claim must fail for the reasons given by the majority. In an election contest one must be able to demonstrate that the results will be different; in the suit filed by Jack Files, admittedly there are not enough alleged votes for him to make a difference. It could only be that Files’ suit, added with the suit of Arnold, alleging generally other votes for Files, that a valid contest would exist, and the complaint of Arnold must fail for the reasons given by the majority.
However, the majority opinion in my judgment fails to answer certain questions raised in this case which ought to be answered. Quite often in matters of public interest we rule on issues even though they may have become moot. Cain v. CarlLee, 171 Ark. 155, 283 S.W. 365 (1926).
The first issue is how do you make a case in an election contest where voting machines are used. Specifically, since the people who attempt to write in a name are unable to do so, is an affidavit signed by those people sufficient under the Arkansas law to set up an election contest? Usually election contests present a question of a voter’s ballot being voided; there exists a ballot, evidence of a vote, to count or not count. The appellee argues that Files’ complaint should be dismissed because there is no evidence of votes cast. If the appellee is correct, then a person qualifying as a write-in candidate in a county that uses voting machines might never be able to successfully challenge an election; there are no paper ballots when machines are used and usually all you may have is a statement by voters that they tried to vote. I am of the view that, in terms of procedure, the appellant did file a proper complaint for an election contest.
The second question that we should answer is regarding the use of voting machines and the failure of those machines in an election like that before us. This election was very close. There is too much evidence of the failure of the machines or irregularities in the election process to ignore. In some instances tape was placed over the slot in the machines where Files’ name was supposed to have been written in; in other instances there is evidence that the machines were jammed in some way, voters being unable to write in Files’ name. The evidence of these irregularities is sufficient in my judgment to justifying our defining the rights of a write-in candidate in a county that uses voting machines.
I am one of those people who are suspicious of most all machines. It has been my experience machines tend to fail you when you need them most. I realize such an attitude is anathema to engineers and such people, however, this case is a good example of just such a failure. The voting machines used were not designed with a write-in candidate in mind and they failed in this instance to provide the write-in candidate a fair chance. It is our duty to see that the state’s valid and compelling interest in the fairness, efficiency and the orderly operation of its election machinery, as well as the integrity of the electoral process is protected. Walker v. Jackson, 391 F. Supp. 1395 (E.D. Ark. 1975).
A write-in candidate does not have much of a chance anyway, as everyone in politics knows. In a case such as this where the election is close, it is especially frustrating to the loser who happens to be a write-in candidate. I do not expect the voting machines to function any better in future elections. Consequently, the question we should answer is, what remedy, if any, should be available to future candidates? I have concluded there must be an alternative to the machines. Paper ballots ought to be furnished. I know of no other satisfactory alternative. Although the proponents of voting macines would probably disagree, there is enough evidence of failure by people, the process, or the machines in this case to convince me that an alternative should exist to preserve the integrity of our electoral process.
I do not mean to say write-in candidates are entitled to anything special. They are not. In fact, the law is pretty well designed to discourage write-in candidates but the law should not make it virtually impossible for a write-in candidate to get elected.
While I agree with the results the majority reaches, I respectfully suggest that it has failed to address the most important issues in this case so far as the law is concerned.