concurring. I concur in the conclusion that our law is clear that there is no provision in our election code for the judiciary to extend the time the polls are open. On this basis, Judge Kilgore’s order is void. Therefore, the writ of certiorari is properly granted.
However, when this matter was taken up on November 5, 2002, I had and expressed concerns that this matter should be heard post-election. Nonetheless, this matter was presented as an emergency petition and has been decided. I write separately to express my concern about the precedent this case may set.
Nothing in this decision declares any votes illegal. However, the issue in this case was whether votes were being cast that were unlawful. By the time this court reached a decision, it was too late to get word to the polls before they closed under Judge Kilgore’s order. Therefore, this case might have been heard after the election.
I also write to express my concern that the dissenting opinions appear to argue that without the lodging of a transcript and the filing of the proper pleading in this court during business hours, this court is without jurisdiction to act.
Amendment 80 of the Arkansas Constitution provides in part:
§ 2. Supreme Court.
* * *
(D) The Supreme Court shall have:
(1) Statewide appellate jurisdiction;
(5) Only such other original jurisdiction as provided by this Constitution.
(E) The Supreme Court shall have power to issue and determine any and all writs necessary in aid of its jurisdiction and to delegate to its several justices the power to issue such writs.
§ 3. Rules of pleading, practice and procedure.
The Supreme Court shall prescribe the rules of pleading, practice and procedure for all courts; provided these rules shall not abridge, enlarge or modify any substantive right and shall preserve the right of trial by jury as declared in this Constitution.
§ 4. Superintending control.
The Supreme Court shall exercise general superintending control over all courts of the state. . . .
Ark. Const, amend. 80, §§ 2-4.
The dissents argue that we, by rule, have limited our jurisdiction to such matters as may be filed during business hours. In Ex Parte Dame, 162 Ark. 382, 385, 259 S.W. 754 (1923), this court stated, “The jurisdiction of each of the courts in our system is a matter of constitutional control, as each derives its several powers from the Constitution, or at least, is controlled by constitutional limitations.” While the rules cited by the dissents clearly provide procedure that those seeking redress before this court are expected and required to follow, I think it is a dangerous thing to assert that this court is without jurisdiction. If the unusual case requires consideration in the night to avoid irreparable injury or wrong that will be inflicted before the next business day opens, this court should hear the matter. The case before us may not have presented such an impending injury or wrong, but a future case may. As the dissents pointed out, this is a deliberative body and the matter should have been considered as an election contest. It is not difficult to envision events that might require hearing a matter after it is too late to file or lodge anything with this court. A case in which a person is about to be executed might well present such a case. Other similar cases could be easily envisioned.
The trial judge was presented with an emergency situation where people were trying to vote, but were unable because of a lack of ballots. The trial judge acted as he should have in trying to fashion a remedy on very short notice. The problem is the trial judge was without jurisdiction to extend the closing time of the polls. Ark. Code Ann. § 7-5-314(a) (Repl. 2000). Clearly the polls could have remained open until those present to vote at 7:30 p.m. cast ballots, even if they had to wait for additional ballots to be delivered to the polls. See Ark. Code Ann. § 7-5-314(c) (Repl. 2000).