concurring. I concur in the stice, the merits of the case and not dismiss King’s complaint based on procedural technicalities. I would affirm because King did not prove that the two mailings of absentee ballots violate state law.
Today’s opinion makes it vastly more difficult to contest an election, and that should not be. The majority does this by mandating that non-essential information be included in a complaint to state a cause of action. This runs counter to basic democracy and fairness. We have made this clear in the past in our cases. For example, in Gunter v. Fletcher, 217 Ark. 800, 802, 233 S.W.2d 242, 243 (1950); we said:
The purpose of our statutes governing election contests is to aid the democratic processes upon which our system of government is based, by providing a ready remedy whereby compliance with the election laws can be assured. The purpose is to facilitate, not to hinder by technical requirements, the quick initiation of such contests.
I see no reason to deviate from this principle in the case before us.
The essence of Durwood King’s complaint is as follows:
7. The Defendants Election commission certified Sam Whitfield as being the candidate elected in this election on November 3, 1998, which certificate is error and improper as set out herein, and the Election Commission should have certified Plaintiff as the person who was elected.
8. By mail, the County Clerk received in an envelope with the return address of Nathan Ashwood, Helena, Arkansas, 39 absentee ballots. These ballots were from individual voters and the certificate accompanying them indicated what (sic) the voter was mailing the ballot to the County Clerk and did not indicate that Nathan Ashwood was authorized to return them to the County Clerk.
9. Nathan Ashwood by mail sent to the Phillips County Clerk another envelope containing 49 absentee ballots of individual voters. The certificates accompanying these ballots in four instances were not marked as to how the ballots would be returned, and the remaining ballots indicated that the voter was returning them by mail.
10. Plaintiff challenged each ballot individually for the reason that it did not comply with and was in violation of Section 7-5-411, Arkansas Code Annotated.
11. Plaintiff states that these 88 ballots were all cast for Defendant Sam Whitfield and were illegal ballots as stated. If these ballots were not counted Plaintiff would have a majority of the valid votes cast in this election for the position of Municipal Judge of the City of Helena, Arkansas.
The facts of the complaint were verified as true by King, and the complaint was filed on November 30, 1998.
I. Timeliness of the Complaint
The majority first errs in dismissing King’s complaint because it alleged an erroneous date for certification. The complaint gave the date of certification of the election results as November 3, 1998. The correct date was November 17, 1998. This is not in dispute. Indeed, the correct date was proved to the trial court at the hearing on January 12, 1999. The point is that the complaint was clearly filed within the 20-day time limit set out in Ark. Code Ann. § 7-5-801(d) (1987).
At oral argument before this court, the attorneys for King acknowledged that the date shown in the complaint was a drafter’s error. For this court to dismiss a timely complaint for an election contest due to an error in the date, which everyone acknowledges was a mistake, runs contrary to any sense of justice and is at odds with the stated purpose in the majority opinion which is to facilitate election contests. By deciding this case on such a procedural technicality and by avoiding the merits, we are doing exactly what we said we would not do in Gunter v. Fletcher, supra.
II. Stated Cause of Action
The majority also dismisses the complaint for failure to state election totals for each candidate and to identify the names of the illegal voters. Again, that precise evidence was supplied at the January 12, 1999 hearing. But regardless of that, I believe the complaint states a prima facie case, as required by Ark. Code Ann. § 7-5-802 (1987).
King alleged in his complaint:
(1) that he should have been certified the winner of the election;
(2) that Nathan Ashwood of Helena mailed in two batches of absentee ballots — one for 39 ballots and one for 49 ballots, for a total of 88 ballots;
(3) that this mailing procedure violated § 7-5-411;
(4) that the 88 ballots were all cast for Whitfield, and if they were not counted, King would have a majority of the votes.
What else is needed to state a cause of action? It appears to me that the complaint does so in clear and cogent fashion. The majority opinion relies on four cases to dismiss on technical grounds, all of which are distinguishable and one of which clearly supports my position that the merits should be reached in this case. See Rubens v. Hodges, 310 Ark. 451, 837 S.W.2d 465 (1992); Wheeler v. Jones, 239 Ark. 455, 390 S.W.2d 129 (1965); McClendon v. McKeown, 230 Ark. 521, 323 S.W.2d 542 (1959); Gunter v. Fletcher, supra.
In Gunter v. Fletcher, supra, we came down squarely on the side of reaching the merits in election contests and avoiding decisions based on procedural technicalities. In Gunter, the plaintiff alleged recomputed vote totals for the two candidates in his complaint. The total votes actually cast in the election were not given. The defendant demurred, and the trial court sustained the demurrer for failure to state sufficient facts. We reversed the trial court and held that giving the actual vote totals was not required. As already noted, we stated that the purpose of the election laws is to facilitate, and not to hinder by technical requirements the quick initiation of election contests. We added that the purpose in pleading in election contests was to give the other side “reasonable information as to the grounds of the contest....” Gunter, 217 Ark. at 802, 233 S.W.2d at 243, citing LeFargue v. Waggoner, 189 Ark. 757, 768, 75 S.W.2d 235, 240 (1934). We concluded that what the plaintiff set out was sufficient and that no genuinely use&l purpose would be served by requiring the voting totals in the complaint. Yet, requiring voting totals is precisely what the majority opinion does in the instant case.
In a later case, we made it clear that a contestant must allege in the complaint that he would win if the disputed votes were eliminated. See McClendon v. McKeown, supra. In McClendon, the plaintiff refused to give the names of the contested voters and never expressly alleged that he would win if the illegal votes were not counted. The complaint only alleged how many votes had been certified for each candidate and that 23 votes had been illegally cast. We pointed out that the plaintiff failed to give the names of those purported to have cast the 23 illegal ballots. Plus, he simply said if the votes are not counted, he “verily believes he will have received more votes” than his opponent. McClendon, 230 Ark. at 523, 323 S.W.2d at 545. From what I can tell he never alleged why those 23 votes were illegal. We held that these lapses in his complaint combined to show that he did not raise a prima facie case, and we agreed with the trial court that the complaint smacked of a fishing expedition to try to make a case by later discovery.
The McClendon facts are a far cry from the facts we have before us in the instant case. Here, King tells us what disputed votes are involved by referring to all of the votes in Nathan Ashwood’s two absentee bulk mailings. He tells us the disputed votes total 88, and he cites statutory authority for why the votes are illegal. In short, he alleges definitely and with precision that without these votes, he would win.
In Wheeler v. Jones, supra, the plaintiff omitted from his complaint which candidate benefitted from the illegal votes. Instead, the complaint set out the total votes per candidate and then asserted that 52 named persons voted in an absentee box and were not qualified electors and that 196 named persons voted in precincts in which they did not reside. The trial court sustained a demurrer, and we affirmed. We held, for obvious reasons, that the complaint did not state a cause of action because the plaintiff did not allege whether the contested votes were cast for the winner or that the election results would be different if the votes were set aside. King’s complaint is different. He states that without the contested absentee votes, he would win. The decision in Wheeler v. Jones, supra, does not control the instant case.
Finally, there is Rubens v. Hodges, supra, a case that is obviously inapposite. In Rubens, the complaint did not tell us for whom the disenfranchised voters would have voted. In that case, the victorious candidate for justice of the peace died before the election. Her opponent filed an election contest and alleged that the voters of one ward were entitled to vote for the JP position, but the ballots did not include that election. She asserted that of the 23 people voting in that ward, 9 wanted to vote for her. In another ward, voters were directed to a machine where the race was omitted from the ballot. She alleged that 7 people wanted to vote for her in that ward. She claimed that with these 16 votes, she should be declared the winner. We refused to do so. We pointed out in our opinion that she did not allege how the other 14 people would have voted in the ward where 23 people could not vote. She also faded to allege how many other voters were directed to the wrong voting machine and how they would have voted. We concluded that she had not alleged sufficient facts to show the election results would have been different.
Here, King alleges that the total illegal absentee votes are 88, and that not counting them would make him the winner. Our fact situation is categorically different from Rubens v. Hodges, supra, and when all is said and done, there is no case which is on all fours with the facts of the case at hand.
III. Bulk Mailing
Nevertheless, I would affirm the trial court’s decision on the merits. The applicable statute at the time of the election read:
(a) Absentee voting may be accomplished in one (1) of the two (2) following methods, and in no other manner:
(1) By ballot cast my mail which must be received in the office of the county clerk of the county of residence of the voter not later than 7:30 p.m. on election day. However, absentee ballots applied for not later than thirty (30) days before the election, by qualified electors outside the United States on election day which are signed and dated by the voters no later than the day of the election and received by the county clerk no later than 5:00 p.m. ten (10) calendar days after the date of the election;
Ark. Code Ann. § 7-5-411 (1987). By its plain terms, there is no prohibition against bulk mailing of absentee ballots. King relies heavily on the case of Roach v. Kirk, 228 Ark. 958, 311 S.W.2d 525 (1958), which by dictum indicates that absentee ballots must be personally mailed. That was clearly not the holding in Roach. Moreover, that case predates Act 465 of 1969, which provides for casting ballots by mail and which does not require personal mailing.
If the General Assembly had wanted to do so, it could easily have required personal mailing by each absentee voter. It did not do so by Act 465 of 1969. In fact, the General Assembly did not amend § 7-5-411(a)(1) to require personal mailing until 1999 when it added this language: “The qualified elector shall personally mail his ballot, except that an administrator may mail the absentee ballots of a long-term care or residential care facility’s residents in a single mailing.” 1999 Ark. ACTS 1586 § 1. A personal mailing component cannot be read into the statute by the courts for elections that occurred prior to Act 1586 of 1999.
For that reason alone I would affirm.
Smith, J., joins.