Whitley v. Cranford

Annabelle Clinton Imber, Justice,

dissenting. Today the majority does that which in its entire recorded history this court has never done — it upholds the voiding of an election where there has been no allegation of fraud, intimidation, violence, or coercion. This holding thus disenfranchises those voters who freely and legally cast their votes in this election and I must strongly dissent.

The facts are largely undisputed in this case. Through error or accident, in the Hot Spring County Democratic Preferential Primary on May 21, 2002, 183 ballots were cast which should have included the District 4 Justice of the Peace contest but did not. Out of a total of 1715 ballots that were cast, 989 voters chose not to vote in the District 4 race, 299 votes were cast for appellant Ronald Whitley, 244 votes were cast for appellee James Cranford, and 183 ballots were missing from the race completely. In other words, 1532 voters were presented with proper ballots and either chose not to vote at all in the race or chose to vote for either Whitley or Cranford. The decision by the trial court to void the election thus disenfranchises this majority of 1532 voters in favor of the 183 voters who were not given the opportunity to vote in the District 4 race.

Only twice in this court’s history have the circumstances surrounding an election been egregious enough for us to hold the election should be voided. The first took place over a hundred years ago during the reconstruction period following the Civil War and the passage of the Thirteenth and Fourteenth Amendments. This was the case of Patton v. Coates, 41 Ark. 111 (1883). In Patton, elections were held in which voters were being threatened and intimidated if they attempted to vote for the candidates of their choice. In some cases, violence ensued and some voters were compelled to vote for a particular candidate or were kept from voting at all. Id. In addition to the allegations of threats, violence, and intimidation, allegations of fraud were rife in several townships and one ward. Id. A trial was held and the circuit court refused to void the election or suppress the votes from the precincts in question. Id. This court, after reviewing the evidence of the violence and fraud, reversed the circuit court:

There is a distinction, in the nature of things, between particular illegal votes which may be proven and exacdy computed, and which certainly ought to be excluded, wherever cast, and the effects of fraudulent combinations, coercion, and intimidation. It can never be precisely estimated how far the latter extend. Fraud is secret, and timidity shrinks from observation. Their effects depend on moral perversions, nervous organizations and constitutional idiosyncracies.They cannot be arithmetically computed. Awe is silent and undemonstrative. Peace may be abject as well as the result of satisfaction. Yet it cannot be said that elections are “free and equal” where fraudulent combinations for illegal voting override honest votes, or where fear deters from the exercise of free will, although there may be no turbulence____¡Wjherever such practices or influences are shown to have prevailed, not slightly and in individual cases, but generally, and to the extent of rendering the result uncertain, the whole poll must be held for naught.

Id. at 124-25 (emphasis added).

This passage is important because it sets the threshold for courts as to when an election should be voided. The majority focuses on the words “to the extent of rendering the result uncertain” and, because it is uncertain in the instant case whether Whitley or Cranford would have won had those 183 votes been cast, the majority holds for naught the 1532 voters who expressed their will in either choosing a candidate or choosing not to vote at all in the District 4 race. This is contrary to the letter and spirit of Patton. Patton tells us that when (1) practices such as fraud, violence, and intimidation have prevented voters from exercising their free will and (2) due to those practices the result has been rendered uncertain, only then should an election be voided.

The majority would have us void any election in which,, through mistake or accident, an election result is uncertain. We have consistently refused to do so in the past.1 In the case of Files v. Hill, 268 Ark. 106, 594 S.W.2d 836 (1980), there were numerous irregularities in an election, including voting machines that did not operate properly to the extent that some voters were not even allowed to vote, write-in votes that were not properly counted, and unclear or erroneous instructions by election officials. When Files challenged the election, he presented evidence of 1522 persons who had tried to vote for him but were prevented from doing so because of faulty voting machines or an inability to write-in a candidate. Id. Because Files had lost by more than 1522 votes, and because he could produce no evidence as to how many other voters would have voted for him had they been given the opportunity, the trial court refused to void the election and dismissed the claim. Id. On appeal, we affirmed the trial court, holding that even these numerous irregularities were not the “wrongs” spoken of in Patton serious enough to void an election:

... As stated in [Patton v. Coates], if the wrong be not so general and serious, the court cannot safely proceed beyond the exclusion of particular illegal votes or the supply of particular legal votes rejected. So far as the allegations in this complaint go, they would justify at most only the addition of the particular votes of the 1522 persons listed. Furthermore, the results reached in Patton would not have been reached had it not been for the elements of threats and acts of violence. Jones v. Glidewell, 53 Ark. 161, 13 S.W. 723, 7 L.R.A 831. Neither is there any allegation of coercion, which was essential in Jones.

Id. at 113, 594 S.W.2d at 840 (emphasis added).

Contrary to the majority’s assertion, the Files court does require some extreme “wrong,” such as fraud, violence, intimidation, or coercion, before it will render an election void. If no such circumstances exist, the only remedy is to add any legal votes that were rejected or subtract any illegal votes that were cast, if those votes can be traced. Flere, Cranford presented only one person, his brother Russell Cranford, to say that he would have voted for Cranford had he been given the opportunity.2 Under the Files analysis, the most these allegations justify is adding that one vote to the total, which would riot change the result of the election. The majority’s holding renders our precedent in Files questionable at best.

The case of Jones v. Glidewell, cited in Files, supra, was an 1890 case in which Glidewell was certified as the winner of an election for Pulaski County treasurer. Jones contested the election, and the trial court found that, while Jones did indeed win the majority of votes, those votes were obtained through illegal practices “of such character, and so wide spread, as to avoid the election.” Jones v. Glidewell, 53 Ark. 161, 166, 13 S.W. 723, 724 (1890). During the voting, many voters were required to open their ballots to show whether they had voted for the Democratic or Republican candidate. Id. This had followed a period of widespread threats of “social ostracism, of expulsion from the community, of personal violence, and of persecutions from Republican candidates for township offices [if the Democrats won].” Id. at 168, 13 S.W. at 724.

We affirmed the trial court’s voiding of the election — notably, the only time we have done so — because the coercive act of requiring voters to open their ballots was of such a nature as to render the election one that was not free and equal. Id. In discussing the coercion that was perpetrated on the voters, we said, “No course which in itself violates the law and tends to prevent a free election, can be justified.” Id. at 175, 13 S.W. at 727 (emphasis added). Obviously, the act of requiring a voter to disclose his secret ballot is one which in itself violates the law, and because it is such a coercive act, it prevents a free election.

In a very recent case in which constitutional violations were present, we refused to void an election even though fraud and misconduct were alleged regarding approximately 1,000 votes of the total 6,000 votes cast, because no fraud or misconduct was alleged in regard to the other 5,000 votes. See Womack v. Foster, 340 Ark. 124, 8 S.W.3d 854 (2000). We stated in Womack that “the courts do not favor disenfranchising a legal voter because of the misconduct of another person, such as an election official.” Id. at 149, 8 S.W.3d at 869. In the instant case, the majority is willing to disenfranchise the legal votes of 543 voters who cast ballots in the District 4 race, and another 989 voters who cast legal ballots and chose not to vote in the election at all. To disenfranchise these 1532 voters in favor of 183 who were not allowed to vote flies in the face of our precedent, both recent and ancient.

None of the elements spoken of in Patton or Jones, and reiterated in Files, are present in this case. There has been no allegation of fraud, no threats, no violence, and no coercion. A • mistake resulted in the District 4 race being left off of 183 ballots that were cast — certainly a much less egregious wrong than those present in Files v. Hill, supra, where well over a thousand voters wanted to vote in an election and attempted to do so, but were prevented by faulty voting machines. Yet we did not void the election in Files and we should not affirm the trial court’s voiding of the District 4 race in this case.

We have consistently held, for over a century, that the voiding of an election is an extreme measure to which we have resorted only in cases where fraud, threats of intimidation, violence, or coercion cause an election result to be uncertain. Because the majority breaks from our long line of precedent, I must respectfully dissent.

The majority cites to three cases, Phillips v. Mathews, 203 Ark. 100, 155 S.W.2d 716 (1941), Phillips v. Rothrock, 194 Ark. 945, 110 S.W.2d 26 (1937), and Swanberg v. Tart, 300 Ark. 304, 778 S.W.2d 931 (1989), to show that this court has voided, or is willing to void, elections when the result is uncertain but there is no allegation of fraud, intimidation, violence, or coercion. None of these cases is on point. Mathews and Rothrock both involved elections that were unauthorized — not elections that were legally authorized, as was the election in the instant case. Swanberg involved an unsuccessful election challenge in which the appellants could not even prove that any voters were disenfranchised. There is nothing in the Swanberg decision to indicate that we would have voided that election on an uncertain result alone. To the contrary, in no case have we ever held a legally-authorized election void — even if the results were uncertain — without proof of fraud, intimidation, violence, or coercion.

Cranford made no attempt to trace any other votes, although there existed a numbered list of voters who could have easily been traced.