A spokesman for the party said the legal effort will go on because Smith was ineligible to run when he filed.
This is the correct decision. Fred Smith was ineligible to run when he filed and when the deadline for filing tolled. Subsequent court developments, which may or may not affect that eligibility, are properly a matter for the court to consider.
Smith is in the position of the bass fisherman who caught the prize-winning bass near Wynne, but didn't get a fishing license until after it was caught. Sorry, Charlie, too late to set things right this year.
1) Smith was convicted of a felony Jan. 25, 2011 and resigned from the legislature as a result. His sentence was suspended Feb. 14, 2011 for one year, based on restitution of $29,685 he'd taken improperly from the Dermott school district four years before. When he asked for the charge to be dismissed, the state objected because Smith had contested his guilt. The state may yet object to the judge's dismissal of the case.
2) Smith filed for office March 1, swearing to both the Democratic Party and the secretary of state that he was eligible to hold office. At that moment, he was officially convicted of a felony.
3) Thursday, March 15, Circuit Judge Sam Pope filed an order issued the day before dismissing the felony charge against Smith. He did NOT expunge his record of arrest. He did NOT sentence him under a first offender statute. As you'll see in the judge's order, he dismissed the "proceedings and charges" against Smith.
Secretary of State Mark Martin has said he couldn't deny Smith the ballot because the Democratic Party had certified him (conditionally the party says depending on the status of his felony record). Martin says the part of the statute that requires a felon to present a certificate of "expunction" to file applied to the party, not to his office. The statute is silent on the point, however.
Rules are rules and deadlines are deadlines. Smith wasn't eligible when he filed. He didn't obtain his fishing license — a clean record — until after he'd landed the tainted fish.
The Democratic Party will suffer some blowback from Smith's supporters, undoubtedly. I wouldn't begin to predict where the case winds up, but it could contribute to the growing body of precedent on ballot eligibilty. When a sentence is suspended, is it a conviction? Can a party raise an eligibility objection after a party filing but before the ballot is certified? Doesn't payment of restitution of $29,000 constitute a sentence?
Finally, even if a court says Smith is ballot eligible and he wins, the House will remain the final arbiter of his eligibility to serve. A guy who makes off with $29,000 from a public school district — successful completion or no successful completion of a probationary sentence — seems guilty of an infamous crime and should be barred from service.
Rep. Hudson Hallum is the only other candidate for the seat at the moment.