dissenting. Once again, this court has exhibited its callous tendency to disregard the Arkansas voters’ ability to cast a knowledgeable and intelligent vote on an issue. See Christian Action Comm. v. McCuen, 318 Ark. 241, 884 S.W.2d 605 (1994) (Hays and Glaze, JJ., dissenting). The court gives no rational justification for holding the voters’ ballots cast for and against proposed amendment 2 should not be counted and certified, except that its decision in Walmsley v. McCuen, 318 Ark. 269, 885 S.W.2d 10 (1994), requires such drastic measures. Walmsley is not only wrong, it adopted a dangerous new legal principle, never previously espoused by this court, which can be easily utilized by an election official to thwart the peoples’ will at any future election. I will explain.
Relying on Walmsley, the majority court here holds that because the Secretary of State failed to publish proposed amendment 2 under the requirements of art. 19, § 22, the votes cast for and against the amendment should not be counted and canvassed. In fact, Walmsley represents the first and only Arkansas case where this court invalidated the voters’ right to cast ballots on an issue in an election merely because an election official failed to comply with the law. Since 1887, this court has adhered to the rule of law that “the voice of the people is not to be rejected for a defect or want of notice, if they have in truth been called upon and have spoken.” Wheat v. Smith, 50 Ark. 266, 7 S.W. 161 (1887).
In Wurst v. Lowery, 286 Ark. 474, 695 S.W.2d 378 (1985), this court rejected the plaintiffs’ action in circuit court, requesting the court to enjoin the holding of a wet-dry election because of technical defects in the sponsors’ petitions and a failure to publish notice of the election.1 In refusing the plaintiffs’ request to enjoin the election officials from counting the votes on the wet-dry issue because notice of the election had not been given the public, the Wurst court reasoned that there was no indication that the voters did not express themselves on the issue.
Arkansas law is well settled that our courts recognize that ordinarily election regulations are mandatory before the election and directory afterwards, and the courts do not favor disfranchising a legal voter because of the misconduct of another person. Cowger & Stewart v. Mathis, 255 Ark. 511, 501 S.W.2d 212 (1973) (emphasis added). This principle of law is best explained in Orr v. Carpenter, 222 Ark. 716, 262 S.W.2d 280 (1953), where the court stated the following:
To hold that all prescribed duties of election officers are mandatory, in the sense that their nonperformance shall vitiate the election, is to ingraft upon the law the very powers for mischief it was intended to prevent. If the mistake or inadvertence of the officer shall be fatal to the election, then his intentional wrong may so impress the ballot as to accomplish the defeat of a particular candidate or the disfranchisement of a party. And it is no answer to say that the offending officer may be punished by the criminal laws, for this punishment will not repair the injury done to those affected by his acts. It is the duty of the courts to uphold the law by sustaining elections thereunder that have resulted in full and fair expression of the public will, and, from the current of authority, tne following may be stated as the approved rule: All provisions of the election law are mandatory, if enforcement is sought before election in a direct proceeding for that purpose; but after election all should be held directory only, in support of the result, unless of a character to affect an obstruction of the free and intelligent casting of the vote or to the ascertainment of the result, or unless the provision affects an essential element of the election, or unless it is expressly declared by the statute that the particular act is essential to the validity of the election, or that its omission shall render it void.
Id. at 718 (emphasis added). See also Rogers v. Mason, 246 Ark. 1, 436 S.W.2d 827 (1969).
As mentioned previously, Walmsley is a dangerous and erroneous precedent which will permit Arkansas voters to be disfranchised merely because an election official, like the Secretary of State in this case, fails to comply with laws designed to inform them more fully on a ballot issue. If elections or ballot issues can be respectively enjoined or removed because an election officer fails to comply with election laws or ballot procedures, then political mischief by election officials can be expected from time to time. The peoples’ right to vote should not depend upon an official’s whimsey, negligence or design in failing to comply with the law. When an official does not perform his duty under the law, mandamus is available as a legal remedy to enforce his compliance. Regardless, Arkansas courts, until Walmsley, had never vitiated votes or election results in situations where voters had not been deprived of the constitutional right to express themselves in the election even though an irregularity by an election official occurred in conducting the election. See Rogers, 246 Ark. at 4, 436 S.W.2d at 829.
Here, appellee had the burden under established law to show that the Secretary of State’s failure to comply with the law in some manner thwarted Arkansas voters from expressing themselves concerning the proposed constitutional amendment 2 issue. He made no effort to meet that burden. The majority court’s decision expresses its sanctimonious opinion that Arkansas voters are unable to understand and vote on a ballot issue merely because some election official failed to publish that issue in a newspaper months in advance of the election. How preposterous! That is not, and should not be, the law. The voters’ ballots in this case should be counted, canvassed and certified, and Walmsley should be promptly overruled before that holding can be misused again to prevent Arkansas voters from expressing their will.
In conclusion, I add that Chief Justice Holt’s dissenting opinion, stating chancery court has no jurisdiction in this case, is exactly correct. There is little to add, but I would say that, until this court steadfastly requires such election matters be in one court or another, these jurisdictional issues will continue to abound. This court in Catlett v. Republican Party of Arkansas, 242 Ark. 283, 413 S.W.2d 651 (1967), intended to resolve this jurisdictional problem by making it clear that election matters were to be filed in and decided by circuit court. More recently, in Ivy v. Republican Party, 318 Ark. 50, 883 S.W.2d 805 (1994), and State v. Craighead County Bd. of Election Comm’rs, 300 Ark. 405, 779 S.W.2d 169 (1989), this court underscored that election matters must be decided in circuit court when it held a person must seek declaratory relief and mandamus (an at-law remedy) when challenging a candidate’s eligibility in having his name printed on the election ballot. See also Cummings v. Washington County Election Comm’n, 291 Ark. 354, 724 S.W.2d 486 (1987).
I point out here that, if appellee had been genuinely concerned about proposed constitutional amendment 2 being published by the Secretary of State, he could have readily sought mandamus relief to compel that publication. Under our case law, such action clearly lies within the jurisdiction of circuit court. Instead, appellee sought to invoke chancery court jurisdiction to request that the proposed amendment be omitted from the ballots, or alternatively, the votes cast for the amendment not be counted or canvassed. As this court said in the Craighead County Bd. of Election Comm’rs case, election matters must be promptly considered and mandamus is the proper remedy to obtain prompt judicial action. To allow persons, such as appellee here, to wait until the last minute before an election to enjoin the counting and canvassing of ballots and election returns is unfair to the many Arkansas voters who cast their votes on the constitutional issue.
Holt, C.J., joins this dissent.Ark. Stat. Ann. § 48-801 (1977) required the county sheriff to give the public notice of the purpose and date of such election at least ten days before the holding of the election.