concurring. The majority opinion places Womack in an untenable position in one respect. He was the certified winner of the election and had no incentive to challenge the results until after Foster filed his complaint. Then Womack filed his counterclaim. By that time the stubs had been torn from the ballots, and there was no way for him to trace the ballots to particular voters he wished to challenge, short of subpoenaing each voter into court to testify under oath. Thus, there was no way to know whether a voter he contended was involved had cast a vote for Foster or for Womack. This, as the majority accurately points out, was due to the Election Commission’s clerical foul-up and to the failure to comply with Section 3 of Amendment 50 by correctly numbering the ballots.
Despite this electoral rat’s nest, the majority still would require Womack to allege the names of invalid voters and assert in his complaint how the election results would be different without their votes. I question the logic of this. Clearly, Womack would be hard pressed to ever prove a different election result when the ability to trace a ballot to a voter has been effectively removed due to the defective ballots.
In short, it seems that Womack’s task in making a prima facie case in his counterclaim, as Ark. Code Ann. § 7-5-802 (Repl. 1993) requires, has been made immeasurably more difficult by the ballot-numbering snafu. I would not penalize him, under these circumstances, by affirming the dismissal of his counterclaim. However, I would void the entire absentee box due to the numbering error. This would mean that Foster still prevails.
Voiding the absentee box is appealing because that is exactly what the trial judge wanted to do. The judge specifically referred to widespread abuse by both candidates in connection with absentee voters and in effect pronounced “a pox on both your houses.” He begged off in voiding the absentee box because the parties did not ask for that precise relief, though both parties prayed that illegal ballots not be counted. Pervasive abuse warrants such a remedy in my judgment. For that reason, I concur in the result.
Arnold, C.J., joins. Special Associate Justice H.E. Cummins joins.