concurring. I fully agree with the result reached in the majority opinion. The questions raised in this election case have long been settled by this court. The trial court simply misconstrued and mistakenly applied Ark. Code Ann. § 7-5-801 (Repl. 2000), which clearly provides for an “Election Contest,” which has been defined as an adversarial proceeding between a successful candidate and an unsuccessful candidate. See Rubens v. Hodges McClendon v. McKeown, 230 Ark. 521, 323 S.W.2d 542 (1959). In other words, § 7-5-801, et seq., provides the statutory procedure for a losing candidate to follow after an election where wrongful acts allegedly occurred during the election. That post-election procedure is commenced by the losing candidate by filing a verified complaint within twenty days from the date the election results are certified. This § 7-5-801 procedure providing for election contests is simply not applicable in the present case. Instead, Ark. Code Ann. § 7-5-207 (Repl. 2000) is the statutory procedure which appellant was required to follow.
Section 7-5-207(b) is set out in the Arkansas Election Code and provides for a “Preelection Proceeding” and for procedures required when preparing for a scheduled election. Such preelection procedures include the providing of ballots, and, where necessary, the removal of a person’s name from the ballot if the person is not qualified or eligible at the time of filing as a candidate for the office for which he filed.
As the majority points out, this court has adopted a procedure whereby a voter may raise a preelection attack1 on a candidate’s eligibility to stand for election and for removal of the ineligible candidate’s name from the ballot. See State v. Craighead County Bd. of Election Comm’rs, 300 Ark. 405, 779 S.W.2d 169 (1989). Here, when Hutchinson was certified as a party nominee, Tumey availed herself of the preelection statutory law to remove Hutchinson’s name from the forthcoming General Election ballot.
The trial court here clearly had subject-matter jurisdiction to address Turney’s petition for mandamus and declaratory judgment in this election case, and the court’s venue was also properly in Pulaski County. See Valley v. Bogard, 342 Ark. 336, 128 S.W.3d 269 (2000). The trial court in part relied on Valley as support when dismissing this election case based on jurisdiction and venue grounds. However, the lower court failed to properly recognize the distinction between the statutory election procedures involving election contests and the provisions allowing a person to remove the name of a candidate who fails to possess the qualifications required of the office he or she seeks.
Here, the trial court and parties did their best to expedite the election case, but I suggest the parties should have moved to offer evidence on Hutchinson’s residency issue, and, if the motion were denied by the trial court, the parties could have proffered what evidence and testimony each had bearing on the fact issue. As matters now stand, this case must be reversed and remanded for a hearing with only a few days prior to the November 2 General Election. Consequently, the situation may be that a timely final decision cannot be rendered.
I respond to the dissenting opinion, which seems to say that this court waited too long to overturn the May 27, 2004, certification or the trial court’s order of August 13, 2004. The dissent submits that this matter languished in this court until this date. The dissent is seriously mistaken. The time line of this case is as follows:
8/6/04 Tumey filed her petition for mandamus and declaratory judgment, challenging Hutchinson’s residency qualifications as candidate for State Representative, District 95.
8/13/04 Hutchinson moved to dismiss, and, among other things, alleged that the trial court lacked jurisdiction and venue.
8/20/04 Tumey filed her timely notice of appeal from the trial court’s 8/13/04 order. She filed the record with this court and petitioned for an expedited appeal.
8/25/04 Hutchinson filed his response.
9/14/04 Appellees Secretary of State and State Board of Election Commissioners stated that they would not file a brief.
9/19/04 Hutchinson filed his brief.
10/5/04 Tumey filed a reply.
10/7/04 Tumey moved to substitute her brief.
10/14/04 We granted Turney’s motion.
10/21/04 This court was in Port Smith to hold court, but this case was expected and was to be submitted the next Thursday, 10/28/04.
10/26/04 Opinion was delivered. Although the case was ordinarily scheduled for decision conference on 10/28/04, this court took submission of the case and delivered its opinion this date.
If there was any serious delay in this case, it was because no record was made or proffered regarding the only factual issue in the case: whether Hutchinson, at the time of the November 2, 2004, General Election, will have been a “resident” (domicile) for one year in the State Representative District 95 to which he may be elected. See Valley, 342 Ark. at 344-345.
In sum, time is running in this matter, but the parties and this court have expeditiously worked to get the case decided. I am sure the parties and the trial court will continue to do their utmost to resolve this matter. Election cases always present time problems. It is the “nature of the beast.” Since my tenure on this court, this court has earnestly attempted to work through these time problems so that a timely decision can be made before the date of an election. On rare occasions, the court has rendered what turned out to be an advisory opinion because the election case was not decided prior to the election. This case may still be resolved before November 2, but, if not, this court made an earnest effort to conclude it.
A complainant in an eligibility challenge maybe any citizen, voter, candidate or other interested party. Jacobs v. Yates, 342 Ark. 243, 27 S.W.3d 734 (2000).