dissenting. I would conclude that the Benton County Election Commission, the Secretary of State, and the Republican Party have a right to have their certified candidate appear on the general election ballot. I also note that in the event Mr. Hutchinson is the winner of that election, his qualification to serve District 95 as its representative becomes a matter for determination by the House of Representatives. See Ark. Const. Art. 5, § 11, cl. 1. The trial court found that Ms. Tumey has not brought an appropriate pre-election or post-election challenge to the right of a political party to certify a candidate to the general election ballot.
This appeal presents two issues. First, does Timothy Chad Hutchinson qualify as a resident of District 95 eligible for election to serve in the Arkansas House of Representatives? My answer to this question is that there is no evidence before us to resolve this issue, and that there is not enough time before the November 2nd election for this question to be scheduled for hearing, decided by the trial court, and reviewed by this court on appeal.
Secondly, do the Benton County Election Commission, the State Election Commissions, and the Secretary of State have an interest in causing the elected and certified candidate of the Republican Party to be included on the ballot of next week’s general election when the certification of that candidate was not challenged within twenty days of certification, as provided by Ark. Code Ann. § 7-5-801 (d) (Supp. 2003). My answer is yes. The Republican Party has a right to have its certified candidate appear on the general election ballot. In my opinion, the clock has already run on the timely exercise of judicial authority to deprive the citizens of District 95 from the opportunity to choose between the Democratic and Republican candidates.
Hutchinson was certified as the winner of the May 18, 2004, preferential primary by the Board of Election Commissioners on May 27, 2004, and by the Secretary of State on July 2, 2004. Ms. Tumey filed her complaint challenging Hutchinson’s qualifications on August 6, 2004. The responsive pleadings by Hutchinson, the Secretary of State, and the Board of Election Commissioners were filed on or before August 12, 2004, and various motions were filed on August 13, 2004. The trial court also held a hearing on August 13, 2004, and entered an order dismissing the case pursuant to a motion under the Arkansas Rules of Civil Procedure 12(b)(6) on the grounds, inter alia, that the Complaint was not verified. A timely notice of appeal was filed on August 20, 2004, and the matter languished in this court until this date.
I believe this court waited too long to overturn the May 27, 2004, certification or the trial court’s order of August 13, 2004. For that reason, I respectfully dissent.