Republican Party of Arkansas v. Kilgore

Per Curiam.

Petitioners, the Republican Party of Arkansas and Sally Stevens, a member of the Pulaski County Election Commission, have filed an Emergency Petition for Writ of Certiorari in this court on November 6, 2002. The stated purpose of the petition for certiorari is to void the Emergency Order to Extend Voting Hours filed by Circuit Judge Collins Kilgore at 6:45 p.m. on November 5, 2002.

The Emergency Order reads as follows:

Upon consideration of the petition for an emergency order to extend voting hours and in light of exigent circumstances involved that threaten the effective disenfranchisement of voters, it is hereby ORDERED that the Pulaski County Board of Election Commissioners shall extend voting hours until 9:00 p.m. in all locations in Pulaski County, Arkansas. Any voter still in line at 9:00 p.m. shall be permitted to vote. Ballots shall be provided immediately. All polling places are to be informed of this Order immediately, and the news media are requested to publicize this extension.

That order granted the petition of plaintiffs, Gus Wingfield and Democratic Party of Arkansas, which alleged that:

• Pulaski County Circuit Clerk Carolyn Staley neglected to ensure that necessary voters lists had been distributed to the precincts.
• Sufficient voting booths, voting rolls, and other supplies and equipment were not provided for the polling places, including ballots that had been depleted at three specific polling places.
• State law requires the Board of Election Commissioners to provide sufficient voting booths, voting machines, supplies, and equipment.
• Numerous Pulaski County voters were unable to exercise their constitutional right to vote.
• Immediate action was necessary to protect the right to vote for all properly registered voters, and failure to take action would result in irreparable harm.

The plaintiffs prayed for an immediate hearing, extension of voting hours to 10:00 p.m., delivery of necessary ballots, and all other just and proper relief. As already noted, the Emergency Order entered by the judge extended the voting hours to 9:00 p.m.

The record filed in this court reveals that no testimony was taken and no evidence was presented in support of the allegations made in this petition. No parties other than Gus Wingfield and the Democratic Party of Arkansas in the form of counsel appeared before Judge Kilgore. No other parties were notified of that hearing.

The Emergency Petition for Writ of Certiorari memorializes the arguments made to six members of this court by conference call at approximately 8:00 p.m. on November 5, 2002. Justice Tom Glaze of this court did not participate. The conference call took place at the request of Leon Holmes, counsel for the Republican Party. Participating in the conference call with Mr. Holmes and the six justices of this court was Robin Carroll, counsel for Gus Wingfield and the Democratic Party of Arkansas. Both counsel made their views known to the court.

Mr. Holmes, as counsel for the Republican Party of Arkansas, argued that Judge Kilgore had no authority to extend voting hours and that to do so was an abuse of discretion and violated the Equal Protection Clause of the United States Constitution. He cited the court to a Missouri Court of Appeals’ case and Bush v. Gore, 531 U.S. 98 (2000), in support of his argument. Mr. Carroll argued that registered voters had a constitutional right to vote and they were being deprived of this right. Members of the court asked questions to counsel for both parties.

Counsel for the parties then allowed the six justices to conference the case in private. The justices discussed the case by conference call, and a vote was taken. The six justices voted to void Judge Kilgore’s Emergency Order. Counsel for the political parties were advised of this decision at approximately 9:00 p.m. Mr. Holmes was advised to file his petition for relief in the morning.

This court has jurisdiction in matters where a trial judge has plainly, manifestly, and clearly committed a gross abuse of discretion and acted in excess of his authority. See Arkansas Democrat-Gazette v. Zimmerman, 341 Ark. 771, 20 S.W.3d 301 (2000); Arkansas Public Defender Comm’n v. Burnett, 340 Ark. 233, 12 S.W.3d 191 (2000).

This court is cognizant of the fact that it cannot act officially until a pleading is filed and a record is lodged with the clerk of this court. At 9:00 p.m. on November 5, 2002, neither had been done. This court is further cognizant of our Arkansas Rule of Civil Procedure 58 which reads, in pertinent part:

Every judgment or decree shall be set forth on a separate document. A judgment or decree is effective only when so set forth and entered as provided in Administrative Order No. 2. Entry of judgment or decree shall not be delayed for the taxing of costs.

Ark. R. Civ. P. 58. See also Standridge v. Standridge, 298 Ark. 494, 769 S.W.2d 12 (1989). The same policy, as set forth in Rule 58, holds true for orders of this court for extraordinary circumstances such as confronted us in the case at hand.

During the morning of November 6, 2002, the Emergency Petition for Writ of Certiorari and a partial record were filed by petitioners. Responses from the respondents were requested by close of business on this same day. As noted above, the Emergency Petition memorializes the arguments made to six members of this court on the evening of November 5 by counsel for the Republican Party.

As requested by this court, both the Pulaski County respondents and Gus Wingfield and the Democratic Party filed responses to the Emergency Petition on the afternoon of November 6, 2002. The Pulaski County respondents, Pulaski County Circuit/ County Clerk Carolyn Staley, Pulaski County Election Commissioner Charles King, and Pulaski County Election Commissioner Elizabeth Smith, stated in their response that on November 5, 2002, at 7:21 p.m., a copy of the Emergency Order extending the voting hours was received. Election Commission staff attempted to contact all 124 polling precincts, but were unable to do so. At 9:20 p.m., the Commission received notification that this court had voided the Emergency Order. The Commission then set aside all ballots that could be identified as being cast by voters arriving after the 7:30 p.m. statutory closing time. Those ballots that could not be distinguished as “late” were counted in the ordinary course of business. The Pulaski County respondents request that this court provide clarification as to the action to be taken with the ballots set aside.

Gus Wingfield and the Democratic Party respond that this court is without jurisdiction to hear this petition in that the petitioners have failed to file a notice of appeal. Assuming jurisdiction, they assert that their ex-parte Emergency Petition was permissible without notice to the petitioners because irreparable harm might have resulted due to voters being denied the ability to vote. They further argue that the circuit court had the authority to fashion equitable relief to prevent the disenfranchisement of thousands of Pulaski County voters and that no other evidence is before this court that voters in other counties were disenfranchised.

Our election law is clear that the polls open at 7:30 a.m. on the day of the election and close at 7:30 p.m. See Ark. Code Ann. § 7-5-304 (Repl. 2000). Persons who have presented themselves for voting and who are in line at the polling place to do so when the polls close are permitted to vote. See Ark. Code Ann. § 7-5-314(c) (Repl. 2000). The legislative branch of our state government has spoken on this issue, and there is no provision in our Election Code authorizing an extension of voting times by the judiciary. No argument was made that these statutes are unconstitutional, and Judge Kilgore made no finding to that effect. The Missouri Court of Appeals has held to the same effect, when reviewing a comparable statute and factual situation in that state, and noted the lack of jurisdiction in the trial court to extend the hours of voting fixed by law. See State ex rel. Bush-Cheney 2000 v. Baker, 34 S.W.3d 410 (Mo. Ct. App. 2000).

In sum, the oral decision made the night of November 5, 2002, that Judge Kilgore’s order was void is now final as of the filing of this per curiam order today with the Supreme Court Clerk, following the filing of the Emergency Petition, the record, and the responses of respondents. Accordingly, we hold that Judge Kilgore clearly abused his discretion and exceeded his authority in extending the voting hours to 9:00 p.m. in contravention of state law. There is no need for this court to address the Equal Protection argument. Judge Kilgore’s order is void. The petition for writ of certiorari is granted.

Hannah, J., concurs. Glaze, Corbin, and Imber, JJ., dissent.