Tyler Henderson of Mountain View promises a report shortly on the Stone County Election Commission meeting today over the dead heat in the Democratic primary for sheriff that's been through several recounts and plenty of controversy. No decision on certifying the vote until Friday. If a tie is certified, it could be up to the Democratic Party to choose the candidate.
UPDATE: His report follows.
In an ongoing saga that could change election law statewide, the question of who will be named the Democratic candidate for sheriff of Stone County remains unanswered. The Stone County Election Commission met again Monday in a nearly-packed courtroom to discuss the continuing confusion about how to proceed after the recent Democratic runoff election ended in a tie. In the runoff, both candidates, Sheriff Todd Hudspeth and challenger Lance Bonds, received 1,383 votes. An initial recount declared Hudspeth the winner by 5 votes, but after the discovery of ballots that were not included in the runoff the total was corrected to reflect another tie. At a meeting last Friday, it was determined that all parties needed a chance to research the relevant law and possibly retain legal counsel. While it was hoped that this morning's meeting would produce a solution, questions remain about what will happen next.
Bob Turner, chairman of the election commission, began the meeting by introducing Lance A. Wright, deputy Prosecutor for the 16th Judicial District. Wright then introduced Daniel Brightwell, the Stone County attorney, and apologized for the absence of Don McSpadden, prosecuting attorney. Wright explained that, over the weekend, the men and others had researched the issue carefully. Still, he said, the law left many gray areas, and that any decision made by the election commission would likely be open to a court challenge. Brightwell agreed with Wright, saying that the most important thing to remember is that state election law is not clear on what to do . Brightwell noted that whatever the commission's decision, it would set a precedent. Turner told the crowd that any decision made would probably face a legal challenge, to which Wright and Brightwell agreed.
Vernon Humphreys, Republican election commissioner, noted that the initial count and the recount had both matched up, after the discovery of the misplaced 31 ballots that weren't included in the initial recount. Humphreys said hehas decided the commission has no choice but to certify the election as a tie, except that two issues remain: 1.) How to address the issue of "crossover" voting in one precinct (where voters who first participated in the Republican primary later voted in the Democratic runoff), and 2.) The 2 overseas ballots that have yet to be received. Humphreys explained that the law requires the commission to wait 10 days to receive overseas ballots before certifying any results. Betty Allred, Democratic election commissioner, verified that the end of the 10-day period would be Friday, June 18. Allred agreed that the certification must be done as soon as possible, but that the election commission is not an investigative body and therefore isn't capable of investigating allegations of crossover voting. Allred said that the commission's job is to certify, or refuse to certify, the vote, and then responsibility for what to do next will be shifted to the Democratic Party. Turner suggested that the commission wait until 3pm on Friday to certify the vote, to which Humphreys and Allred agreed. Allred clarified that certification means the commission only certifies the number of votes each candidate received, but it does not declare a winner.
Turner then opened up the meeting for questions from the audience. First it was asked how the commission could certify the vote with the knowledge that there were crossover votes. Turner explained that before any other action could be taken, the vote had to be certified, and that if a court found problems with the crossover votes, a recertification might be necessary. Humphreys added that there is no legal method by which the prosecutor or commission could discover which candidate received illegal votes, but that other parties might be able to obtain that information through a civil case. However, he said, neither candidate can take legal action without certification.
Next, it was asked whether the poll workers who allowed crossover voting would be subject to any penalties. Turner replied that the prosecuting attorney, through the Arkansas State Police, was investigating that matter and would decided how to proceed. Allred said that she felt it was merely a mistake on the part of the poll workers. Humphreys stated that the commission has no punitive powers, and so the prosecutor would have to take action. However, the commission will have to determine whether to retrain those poll workers or replace them.
One person asked whether the list of crossover voters was public domain? Humphreys replied that it was, and that the Stone County Leader had a copy of that list. The public may obtain a copy of the list from the Stone County Clerk's office. Another audience member asked if the 31 votes were included in the recount, or were they ineligible. Turner replied that they were included in the recount; the 31 votes that were initially missing are not the same as the alleged crossover and other irregular votes being investigated by the prosecuting attorney.
It was asked whether the commission could contact the two persons who had overseas ballots to determine whether they had returned those ballots in the mail. Humphreys explained that the commission could not accept an answer from the overseas voters, only the ballots themselves. Several people in the audience claimed they had spoken to the voters in question (a couple working in Nigeria), and even the mother of one of the voters said that she had spoken to her son this morning, and that he indicated neither of the overseas ballots were returned.
Next, someone asked if no Democratic candidate was declared, could either candidate be declared a write-in candidate? Turner indicated he wasn't sure about the state of the law on this, but that he didn't believe no candidate would be declared. After an extensive line of questioning regarding the training of poll workers, it was asked what choices the election commission had to proceed. Turner replied that they could certify a tie, but that he believed the option to have the candidates "draw lots" still existed. He also noted the possibility of a special convention by the county Democratic party to choose a candidate or holding another special runoff election, but that the latter option would be very expensive and he did not prefer it.
William G. Almand, attorney for Lance Bonds, asked for a clarification of the election commission's duty regarding what exactly would be certified. Almand also asked whether the commission agreed that their choices were to either certify a candidate with a majority of votes or declare a vacancy. Turner replied that he believed the commission could certify a candidate with a majority or by drawing lots. Almand replied that his understanding of Ark. Code §7-7-102 says the commission must have a majority to certify, and that §7-7-104(b) says, without a majority, the commission must declare a vacancy (§7-1-101 Definition 30 defines a vacancy in nomination).
Another audience member asked why there couldn't be another special election. Turner replied he wasn't sure that was a perfect fix. Wright stated that while a special election seems to be the fairest choice, the commission is bound by law, and the secretary of state's office has made it clear that if the commission certifies a tie vote, a vacancy must be declared. Almand stated that the commission's job is fairly simple: they can certify the vote and a vacancy will exist. Then, the Democratic party must petition the Governor for a special election or a party convention to choose the candidate. The Governor has 25 days to respond to this request. Brightwell noted that either candidate may also concede the election prior to certification of the vote, and that would resolve the situation. Almand stated that it was unlikely the state legislature would have meant for election law to disenfranchise voters. Brightwell said that the problem is there is no test case, and that the current election could be voidable because of problems with illegal voting, such that a circuit court might order a new election. Almand noted that in either case, the result was the same: a new special election would need to be held at least 70 days before the general election. Sheriff Hudspeth commented, saying that he thought it was unwise for the county and the candidates to incur the extra expense of a new election that might be challenged and found illegal. Brightwell stated that he though the Secretary of States office was reading the election law statutes differently than either he or Almand were, and that a special election was the likely intent of the legislature.
Turner then made closing comments, telling the crowd that the election commission would meet at 3pm on Friday to certify the vote, and that they would likely have to certify a tie. After that, he said, the situation would be handed over to the Democratic Party and the governor. Turner said that although this had been a long process, it was important that the commission move carefully. Turner reiterated that he still believes the "drawing lots" option is on the table, and that it is unlikely either candidate will concede.
The Stone County Election Commission will meet at 3pm on Friday, June 18, in the courtroom of the Stone County Courthouse to make a decision. I have also learned that the State Election Commission intends to introduce legislation, largely based on the outcome of this situation, in the upcoming legislative session that will address this issue.