When does an Arkansas election-law violation become a felony that disqualifies someone from public office under Article III, Section 6 of the state constitution?

Plain-English summary

Representative David Kizzia asked AG Dustin McDaniel a sprawling set of questions about Article III, Section 6 of the Arkansas Constitution. That section provides that "[a]ny person who shall, while a candidate for office, be guilty of bribery, fraud, or willful violation of any election law, shall be forever disqualified from holding any office of trust or profit in this State," and that anyone convicted of "any willful and corrupt violation" of an election law is "deemed guilty of a felony" and forever disqualified.

Kizzia's eight questions, in 21 subparts, asked: what is an "election law"? Do specific listed sections of the Arkansas Code (A.C.A. §§ 5-55-601, 7-1-103, 7-1-104, 7-1-111(d), 7-1-112(c), 7-3-108(c), 7-5-403(e), 7-5-502, 7-5-616, 7-6-102(c), 7-6-105(b), 7-6-202, 7-9-102(b), 7-9-103(b), 7-9-109(d), 7-9-403) fall within the constitutional definition? What does "willful and corrupt" mean? What is a "felony" for these purposes? What is an "office of trust or profit"? Is the section self-executing, creating both a criminal offense and civil disqualification, or does it depend on existing statutory crimes? Does a "willful and corrupt" election-law violation that isn't already a criminal offense still trigger felony status and disqualification? Are the current misdemeanor election-law statutes unconstitutional because Article III, § 6 mandates felony treatment?

McDaniel's framework, set out at the opening of the opinion:

Article III, § 6 breaks into three parts:

1. Scope. The section reaches only persons who have been convicted of an election-law violation where the legislatively defined offense constitutes an "infamous crime." This is the threshold gate. Without a legislatively defined infamous-crime election violation and a conviction for it, Article III, § 6 has nothing to operate on.

2. Effects. Once a person is convicted within that scope, two effects follow by operation of law: (a) the conviction is treated as a felony (the gravest category of criminal offenses), and (b) the person cannot hold any office of trust or profit in Arkansas. These effects are mandatory, automatic consequences of qualifying convictions.

3. Operation. A judge must determine whether any particular person has been convicted of a crime falling within the scope. That is the application step. The constitution does not itself create the criminal offense or prosecute it. Existing criminal statutes do that. Article III, § 6 attaches enhanced consequences when those statutory convictions are for "willful and corrupt" election-law violations that meet the infamous-crime standard.

The practical takeaway:

• The legislature, not Article III, § 6, defines what conduct is criminal.
• Misdemeanor election-law violations are not, by themselves, unconstitutional just because Article III, § 6 mandates felony treatment for "infamous" violations. The constitutional provision applies only to the subset of violations the legislature has chosen to elevate to infamous-crime status.
• A "willful and corrupt" election-law violation that does not meet the elements of any criminal statute does not, by itself, trigger Article III, § 6 disqualification. The conviction part is essential.

The opinion then works through the individual statutes Kizzia listed, identifying which prohibit conduct that could fall within the constitutional definition of "election law" (most do) and which carry infamous-crime status (a narrower subset).

Currency note

This opinion was issued in 2014. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

What is an "infamous crime" in Arkansas?
A category of offense recognized at common law and statute that carries enhanced consequences, traditionally including treason, felony, and crimes involving moral turpitude. The Arkansas legislature defines specific offenses as infamous crimes by statute.

Does Article III, § 6 itself create a crime?
No. The AG reads it as attaching consequences to convictions under existing criminal statutes, not as itself defining a criminal offense.

Could a person be disqualified from public office without being convicted of anything?
Under Article III, § 6, no. The disqualification flows from a conviction within the section's scope. Without a conviction, the section does not operate.

Are current misdemeanor election-law statutes unconstitutional because Article III, § 6 mandates felony treatment?
No. The AG reads Article III, § 6 as applying only to infamous-crime election-law violations. The legislature can criminalize lesser election-law violations as misdemeanors without conflicting with the constitutional provision, because those lesser violations don't trigger the constitutional consequences.

What does "office of trust or profit in this State" cover?
The AG didn't fully resolve the question. Traditional readings cover both elected offices and appointed positions where the officer holds significant public responsibility or receives state compensation. The AG suggested the term is not limited to elected office, but the specific contours would require case-by-case analysis.

Background and statutory framework

Article III of the Arkansas Constitution covers the franchise and elections. Section 6 imposes special consequences on candidates and others who engage in bribery, fraud, or willful violation of election laws while running for office, and on anyone who commits a "willful and corrupt" election-law violation.

The election-law statutes Kizzia listed span Arkansas's election code:

• A.C.A. § 5-55-601: Penalties for false personation of officers or impersonation of public officials.
• A.C.A. § 7-1-103 and § 7-1-104: Election offenses including absentee-ballot fraud and tampering.
• A.C.A. § 7-1-111 and § 7-1-112: Bribery and corrupt practices in elections.
• A.C.A. §§ 7-3-108, 7-5-403, 7-5-502, 7-5-616: Ballot and election administration offenses.
• A.C.A. § 7-6-102, § 7-6-105, § 7-6-202: Campaign finance and lobbying violations.
• A.C.A. § 7-9-102, § 7-9-103, § 7-9-109, § 7-9-403: Initiative and referendum offenses.

The AG's three-part framework is the standard analytical move for self-executing-or-not constitutional provisions: identify what the provision reaches, what consequences it imposes, and who applies it. Article III, § 6 is self-executing as to consequences but depends on the legislature to define the underlying criminal offenses.

Citations

• Ark. Const. art. 3, § 6 (disqualification from public office)
• A.C.A. § 5-55-601 (false personation)
• A.C.A. § 7-1-103 (election offenses)
• A.C.A. § 7-1-104 (election offenses)
• A.C.A. § 7-1-111(d) (bribery)
• A.C.A. § 7-1-112(c) (corrupt practices)
• A.C.A. § 7-3-108(c), § 7-5-403(e), § 7-5-502, § 7-5-616 (ballot and election administration)
• A.C.A. § 7-6-102(c), § 7-6-105(b), § 7-6-202 (campaign finance and lobbying)
• A.C.A. § 7-9-102(b), § 7-9-103(b), § 7-9-109(d), § 7-9-403 (initiative and referendum)

Source

• Landing page: https://arkansasag.gov/divisions/opinions-foia/attorney-general-opinions-search/

Original opinion text

STATE OF ARKANSAS

THE ATTORNEY GENERAL
DusTIn McDANIEL

Opinion No. 2013-133

February 3, 2014

The Honorable David Kizzia
State Representative

124 West 2nd Street

Malvern, Arkansas 72104-3708

Dear Representative Kizzia:

You have requested my opinion on a number of questions concerning the meaning
and application of Article III, section 6 of the Arkansas Constitution. Specifically,
you ask for my opinion on eight enumerated questions that, taken together, have
21 subparts. In the interests of clarity and brevity, I have regrouped and, in some

cases, combined your questions into the following:

1.

What is an “election law” under Article III, section 6 of the Arkansas
Constitution?

Does the prohibited conduct encompassed by each of the following
sections of the Arkansas Code fall within that constitutional
definition of “election law”: A.C.A. §§ 5-55-601, 7-1-103, 7-1-104,
7-1-111(d), 7-1-112(c), 7-3-108(c), 7-5-403(e), 7-5-502, 7-5-616, 7-
6-102(c), 7-6-105(b), 7-6-202, 7-9-102(b), 7-9-103(b), 7-9-109(d),
and 7-9-403?

What does “willful and corrupt” mean under Article III, section 6 of
the Arkansas Constitution?

What is a “felony” under Article II, section 6 of the Arkansas
Constitution?

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The Honorable David Kizzia
State Representative
Opinion No, 2013-133

Page 2

5. What is an “office of trust or profit in this State” under Article III,
   section 6 of the Arkansas Constitution? Is this restricted to elected
   office?

6. Does Article HI, section 6 of the Ark. Const. create a criminal
   offense, a civil prohibition, or both?

7. If the conduct of a person (1) violates a provision of the election
   laws in the Arkansas Code, (2) does not meet the elements of a
   criminal violation under the Arkansas Code, and (3) is “willful and
   corrupt” under the Arkansas Constitution definition, is that conduct
   sufficient to be adjudged a felony and to disqualify the person from
   holding any office of trust or profit in this State?

8. Are the current misdemeanor violations of election laws under the
   Arkansas Code unconstitutional?

RESPONSE

While I will directly answer your individual questions later in this opinion, I will,
at this stage, briefly summarize the opinion’s main conclusions. As explained
more fully below, Article III, section 6 can be divided into three parts: its scope,
its effects, and its operation. In terms of its scope, art. 3, § 6 is limited to persons
who have been convicted of an election-law violation where the legislatively-
defined offense constitutes an infamous crime. Within that limited scope, art. 3, §
6 states that two effects must follow, by operation of law, from such convictions:
(a) the persons must be adjudged guilty of the gravest category of criminal
offenses (i.e. a felony) and (6) the persons cannot hold public office in Arkansas.
These two effects are put into operation by a judge who must determine whether
any particular person has been convicted of a crime within art. 3, § 6’s scope.

DISCUSSION

Article III, section 6 states: “Any persons who shall be convicted of fraud, bribery,
or other willful and corrupt violation of any election law of this State, shall be
adjudged guilty of a felony, and disqualified from holding any office of trust or
profit in this State.”

The Honorable David Kizzia
State Representative
Opinion No. 2013-133

Page 3

Many of your questions require overlapping analysis. Thus, to avoid repetition and
lend clarity to the matter, I will provide a fairly extensive general analysis of art. 3,
§ 6 before turning directly to your questions. I must, however, emphasize that
there is no authoritative guidance from Arkansas’s appellate courts on this
provision. Therefore, this opinion attempts to anticipate what a court might say if
faced with your questions.

At the most general level, Article HI, section 6 can be divided into three parts: its
scope, its effects, and its operation. In terms of its scope, art. 3, § 6 is limited to
persons who have been convicted of certain crimes, which we will examine in
more detail below. With respect to those persons, the provision states that two
effects must follow, by operation of law, from such convictions: (a) the persons
must be adjudged guilty of a felony and (4) the persons cannot hold any other
public office in Arkansas. In terms of its operation, the provision is applied to a
particular person by a judge who must “adjudge” the person guilty of the felony
and state that the person is disqualified from holding office. To pave the way for
responses to your specific questions, I will further unpack each of these three
general parts.

A. The scope of Article IM, section 6

Article III, section 6 applies to “any persons,” which indicates that persons who
fall within this provision’s scope can be any citizen, not just elected officials or
public employees. More specifically, art. 3, § 6 applies to any persons “who shall
be convicted of...violation of any election law of this State.” While the provision
does not define the term “election law,” the lack of any technical definition
indicates that the term must be given a common-sense reading, which would mean
it refers to any law that pertains to elections. Further, the term’s context limits it to
Arkansas’s criminal laws.' This is apparent because it refers to persons being
“convicted” for violating certain laws “of this State.”

Finally, it applies to persons convicted of “fraud, bribery, or other willful and
corrupt violation.” This clause, which is the most difficult clause in the whole
provision, clearly serves to further narrow art. 3, § 6’s scope. Though it is clear
that the clause functions as a limiting criterion, its meaning is less apparent. The
clause’s meaning seems to turn on an understanding of the phrase “or other willful
and corrupt violation,” which could be read in one of two general ways: (a) as

• Gatzke v. Weiss, 375 Ark. 207, 211, 289 S.W.3d 455, 458 (2008) (“The Arkansas Constitution
  must be considered as a whole, and every provision must be read in light of other provisions
  related to the same subject matter.”’).

The Honorable David Kizzia
State Representative
Opinion No, 2013-133

Page 4

indicating a certain mens rea that must accompany the violation of the particular
election law; or (6) as referring to a category of offenses. Though I hold the
following conclusion with only a modest degree of certainty, I believe that an
Arkansas court faced with interpreting this provision would probably hold that it
was intended to refer to a category of offenses.

This conclusion is supported by at least two observations. First, it makes the most
sense out of the phrase when read in light of standard rules of interpretation. In my
opinion, a court faced with interpreting this clause—i.e. “of fraud, bribery, or
other willful and corrupt violation’—would employ the principle of interpretation
called ejusdem generis, which means “of the same genus” or “of the same kind.”
This rule states that when general words follow an enumeration of two or more
things, the general words only apply to things of the same genus or class referred
to by the earlier terms.” Here, ejusdem generis is triggered because the general
terms “or other willful and corrupt violation” follow the enumeration of the
specific terms “fraud” and “bribery.”

By applying ejusdem generis, we can glean two insights. First, the terms “fraud”
and “bribery” are distinct crimes in themselves. In general, criminal offenses are
composed by specifying the type of prohibited conduct (i.e. the actus reus) that
must occur together with the type of mental state (i.e. mens rea).? The terms
“fraud” and “bribery” refer to entire crimes, not merely to a particular mens rea.
Thus, these terms indicate that the genus or classification at issue here is that of an
entire criminal offense, not merely a mental state that accompanies a prohibited
act. This observation shows that the general terms “or other willful and corrupt
violation” should also be read as referring to a distinct category of criminal
offenses.

The second observation takes us a step further. The terms “fraud” and “bribery”
signify not merely a complete criminal offense, but a specific subcategory of
criminal offenses: crimes that reflect moral turpitude.’ This is not the occasion to

E.g. Edwards v. Campbell, 2010 Ark. 398, 5, 370 S.W.3d 250, 253.

3 Eg. | Wharton’s Criminal Law § 27 (15th ed.) (“Reduced to its simplest terms, a crime consists
in the concurrence of prohibited conduct and a culpable mental state.”).

• As shown below, these two offenses are considered “infamous crimes,” which means they are
  “indicative of great moral turpitude.” See generally State v. Oldner, 361 Ark. 316, 325-26, 206
  S.W.3d 818, 822 (2005), quoting State v. Irby, 190 Ark. 786, 795-96, 81 S.W.2d 419, 423 (1935)

The Honorable David Kizzia
State Representative
Opinion No, 2013-133

Page 5

attempt an exhaustive description of this category of crimes, which are sometimes
called “infamous crimes.” Nevertheless, it is clear that fraud and bribery were
considered infamous crimes.’ While the Arkansas Supreme Court has interpreted
the term “infamous crimes” (as it appears in Ark. Const. art. 5, § 9), the Court’s
interpretation is not entirely clear.® I will note, however, that the term “infamous
crime” has an extensive history in English and American common law.’ The
federal courts have recently used this history to achieve greater precision and
clarity regarding the term’s meaning.® Stated briefly, a crime is “infamous,” when
it is a felony or when it requires the prosecutor to prove—as an element of the
crime—that the defendant engaged in deceit.”

(“The presumption is, that one rendered infamous by conviction of felony, or other base offense,
indicative of great moral turpitude, is unfit to exercise the privilege of suffrage, or to hold office,
upon terms of equality with freemen who are clothed by the State with the toga of political
citizenship.”).

Bribery appears in Ark. Const. art. 5, § 9’s enumeration of infamous crimes. And fraud has long
been considered an infamous crime. See Black’s Law Dictionary 428 (Bryan A. Garner, ed., 9th
ed., West 2009) (defining “infamous crime”: “At common law, a crime for which part of the
punishment was infamy, so that one who committed it would be declared ineligible to serve on a
jury, hold public office, or testify. Examples are perjury, treason, and fraud.”).

° See Edwards, 2010 Ark. 398, 370 S.W.3d 250; State v, Oldner, 361 Ark. 316, 206 S.W.3d 818
(2005). The court in Edwards held that an infamous crime is one that “involves dishonesty.” But
the court has not clearly specified what that means. In contrast, the federal courts have
specifically addressed this issue thereby clarifying their understanding of what the term “involves
dishonesty” means. For more on the latter clarification, please see note 8, below. Neither
Edwards nor Oldner indicated an awareness of the history of the term “infamous crimes” and its
modern development in the federal rules and case law.

’ See Stuart P. Green, Deceit and the Classification of Crimes: Federal Rule of Evidence
609(A)(2) and the Origins of Crimen Falsi, 90 J. Crim. L. & Criminology 1087 (2000); Joel
Prentiss Bishop, Commentaries on the Criminal Law vol. 1, §§ 640-648 (1858); John Henry
Wigmore, A Treatise on the System in Trials at Common Law, vol. 1, §§ 519-521 (1904); Mirjan
R. Damaska, Adverse Legal Consequences of Conviction and Their Removal: A Comparative
Study, 59 J. Crim. L.C. & P.S. 347, 350 (1968); Walter Matthews Grant et al., Special Project:
The Collateral Consequences of a Criminal Conviction, 23 Vand. L. Rev. 931, 943 (1970),

8 See Fed. R. Evid. 609, “Committee Notes on Rules—2006 Amendment.” See also Charles Alan
Wright, Victor James Gold, Michael H. Graham, Federal Practice and Procedure vol. 28, § 6135
(2d ed., West 2013); Christopher B. Mueller & Laird C. Kirkpatrick, Federal Evidence, § 6:42
(3d ed., West 2007). For some of the history of infamous crimes, see Green, supra n.7.

” See Fed. R, Evid. 609(a)(2); see generally Green, supra n.7.

The Honorable David Kizzia
State Representative
Opinion No. 2013-133

Page 6

In summary, given that fraud and bribery are infamous crimes, ejusdem generis
requires us to read the phrase “or other willful and corrupt violation” as referring
to the subcategory of criminal offenses known as infamous crimes. In my opinion,
therefore, art. 3, § 6’s scope is probably limited to persons who have been
convicted of an infamous crime in the area of election law.

B. The effects of Article III, section 6
When a person falls within the art. 3, § 6’s scope as explained above, art. 3, § 6
imposes two consequences, or effects. The person “shall be adjudged guilty of a
felony.” And the person is “disqualified from holding any office of trust or profit
in this State.” I will discuss the phrase “shall be adjudged” in the subsequent
section on art. 3, § 6’s operation. Here, I will focus on the two effects: being guilty
of a felony and being disqualified from subsequent offices.

Article IJ, section 6’s requirement that persons convicted of the foregoing crimes
be declared “guilty of a felony” seems designed to accomplish two goals. First, the
requirement “constitutionalizes” a particular view about the significance of the
foregoing crimes. In 1874 (and still today), a felony was the gravest category of
criminal offenses. By requiring that persons convicted of the foregoing crimes be
declared guilty of a felony, the provision serves as a public statement of the
drafter’s view of how serious these convictions were.

In addition, the requirement ensures that the convict is subjected to a range of
disabling effects accompanying felony convictions, regardless of the specific
punishment enforced upon the defendant. For example, as of 1874, those
convicted of a felony were ineligible to serve as jurors,'” disqualified from serving
as witnesses in a court proceeding, ’' and barred from voting in any election.’

'° Gant’s Digest of 1874, § 1908 (“Causes [i.e. reasons] of general challenge [to an individual
juror’s qualifications to serve] are: First. A want of the qualifications prescribed by law. Second.
A conviction of a felony. Third. Unsoundness of mind, or such defect in the faculties of the mind,
or organs of the body, as render him incapable of properly performing the duties of a juror.”),

"' See generally St. Louis, LM. & S. Ry. Co. y. Harper, 50 Ark. 157, 159, 6 S.W. 720, 720-21
(1888) (“If Casat had been offered as a witness after his conviction, his testimony could not have
been received. The conviction rendered him infamous, and disqualified him to testify. Mansf.
Dig. § 2859; Werner v. State, 44 Ark. 122 [1884].”). This statement from Harper reflects the
common-law rule that one convicted of an infamous crime is unable to testify, But by the mid-
20th century, most states (including Arkansas) changed this rule to its modern form under which
the convicted stopped being the grounds for disqualifying a witness but could be used to impeach
him. The modern rule is found in Rule 609 of both the Arkansas and federal rules of evidence.

The Honorable David Kizzia
State Representative
Opinion No. 2013-133

Page 7

These additional effects of a felony conviction were not viewed as further
punishments.!? Rather, they were designed to protect the administration of justice
from persons who were, aS a consequence of the conviction, considered
untrustworthy.'* The specific disabling effects that attend felony convictions today
will vary depending on the statutes in force. While this is not the occasion to list
the various disabling effects that exist today, it is sufficient to note that those
effects would be applied to a person who was adjudged guilty of a felony pursuant
to art. 3, § 6.

An additional observation seems to bolster the view that the art. 3, § 6 is mainly
concerned with the significance and disabling effects of a felony conviction. The
constitution does not prescribe any specific range of punishments for being
convicted of such a felony. This silence suggests that this constitutional provision
is primarily aimed at ensuring the application of a felony’s disabling effects, not in
ratcheting up the statutory punishments associated with the criminal offense.

The second effect of art. 3, § 6 is to render the person “disqualified from any
office of trust or profit in this State.” This phrase has been interpreted by the
Arkansas Supreme Court as it appears in Article V, section 9 of Arkansas
Constitution. Given that art. 5, § 9 and art. 3, § 6 deal with the same subject
matter—namely, how certain convictions affect one’s ability to hold public
office—a court would probably give this clause the same interpretation in both

The reasons for the shift are explained in Green, supra n.7; Simon Greenleaf, A Treatise on the
Law of Evidence 3d., vol. 1, §§ 372-78 (1846); John Appleton, The Rules of Evidence: Stated and
Discussed (T.& J. Johnson & Co. 1860), Chap. 3.

"? Gant’s Digest of 1874, § 1997 (“Every person convicted of bribery or felony shal! be excluded
from every office of trust or profit, and from the right of suffrage in this state.”).

'3 Irby, 190 Ark. at 794, 81 S.W.2d at 422 (holding that the resulting prohibition on serving in
public office “is no more a part of the punishment inflicted for the commission of a crime
than...[are the constitutional requirements] that no person shall be eligible to the office of
Governor unless a citizen of the United States, thirty years of age, and a resident of this state for
seven years.”’).

'" Id. at 796, 81 S.W.2d at 423 (agreeing with another court that the resulting prohibition on
holding public office must be seen as “a mere disqualification, imposed for protection [of the
State] and not for punishment....”).

The Honorable David Kizzia
State Representative
Opinion No. 2013-133

Page 8

constitutional provisions.'° This means that the term would be read to exclude the
convicted person from holding any publicly elected office at any level of
government in Arkansas.'°

C. The operation of Article ITI, section 6

Article III, section 6 says that a person who falls within its scope “shall be
adjudged guilty of a felony....” The phrase “shall be adjudged” sheds some light
on how the provision is supposed to operate or be applied to any particular person.
The term “adjudged” refers to a judicial procedure (i.e. adjudication) in which a
judge pronounces a verdict.'’ Thus, Article III, section 6 is directed toward the
adjudicatory process, not toward the legislative process. The provision is simply
saying that, when a given crime falls within art. 3, § 6’s scope, a judge must
declare the defendant guilty of a felony regardless of whether the General
Assembly has classified the crime as a felony or a misdemeanor. Accordingly, we
could say that the provision “constitutionalizes” the requirement that certain
election-related crimes be classified as felonies. This has important implications
(which I will discuss below) for your questions regarding the constitutionality of
certain statutes.

I. Application to Specific Questions

Now that we have a general understanding of art. 3, § 6’s scope, effects, and
operation, we can turn to your specific questions,

'S Fg. Central Okla. Pipeline, Inc., v. Hawk Field Srvs., LLC, 2012 Ark. 157, 19, 400 S.W.3d
701, 712 (reiterating the ancient rule that “[s]tatutes relating to the same subject matter are said to
be in pari materia and should be read in a harmonious manner....”). This rule applies when
construing constitutional provisions. Gatzke v. Weiss, 375 Ark. 207, 211, 289 S.W.3d 455, 458
(2008) (“The Arkansas Constitution must be considered as a whole, and every provision must be
read in light of other provisions related to the same subject matter.”).

'° City level: State v. Oldner, 361 Ark. 316, 206 S.W.3d 818 (2005); county level: Campbell v.
State, 300 Ark. 570, 781 S.W.2d 14 (1989); state level: Ridgeway v. Catlett, 238 Ark. 323, 379
S.W.2d 277 (1964), Irby v. Barnett, 204 Ark. 682, 163 S.W.2d 512 (1942).

'7 Henry Campbell Black, 4 Dictionary of Law 37 (West 1891): “To pass upon judicially; to
decide, settle, or decree; to sentence or condemn.” Alexander M. Burrill, 4 New Law Dictionary
and Glossary (1850) defines “adjudication” as “the act of giving judgment, or pronouncing a
sentence or decree.” Vol. 1, p. 39.

The Honorable David Kizzia
State Representative
Opinion No. 2013-133

Page 9

Question 1: What is an “election law” under Article III, section 6 of the
Arkansas Constitution?

Because this term is undefined, it should be understood in the nontechnical,
general sense of any law relating to elections. But as explained above (pp.. 2-5),
art. 3, § 6’s scope is more limited. To fall within that scope, the election law must
be criminal in nature and the offense must qualify as an infamous crime.

Question 2: Does the prohibited conduct encompassed by each of the
following sections of the Arkansas Code fall within that constitutional
definition of “election law”: A.C.A. §§ 5-55-601, 7-1-103, 7-1-104, 7-1-111(d),
7-1-112(c), 7-3-108(c), 7-5-403(e), 7-5-502, 7-5-616, 7-6-102(c), 7-6-105(b), 7-6-
202, 7-9-102(b), 7-9-103(b), 7-9-109(d), and 7-9-403

Before directly addressing the statutes you cite, I need to address two preliminary
matters. First, to reiterate, when art. 3, § 6 refers to “fraud, bribery, or other willful
and corrupt violation of any election law of this State,” it is not merely referring to
certain “prohibited conduct” as your question states. Rather, as discussed above, it
seems that the provision is referring to certain crimes (as defined by the General
Assembly) that constitute “infamous crimes.” As noted in footnotes 4—9 and their
accompanying text, while there may be some difficulty in determining the precise
boundaries of the term “infamous crimes,” the term does have a clear core
meaning. It refers to all felonies and all misdemeanors that require the prosecutor
to prove (or the defendant to admit)—as an element of the offense—that the
defendant engaged in deceit.

The second preliminary matter flows out of the first. In what follows, I will not
address the statutes that classify the criminal offense as a felony, for two reasons.
First, such statutes describe criminal offenses that already fall within another
constitutional provision—Ark. Const. art. 5, § 9. Thus, a person convicted of a
felony is already disqualified from holding public office. So any further discussion
of whether those statutes fall within the election-specific context of art. 3, § 6
would be, for all practical purposes, superfluous. Second, your questions are
mostly focused on how art. 3, § 6 applies to statutes that classify conduct as
misdemeanors. Therefore, I will not address the following statutes: A.C.A. §§ 7-1-
104, 7-1-112(c), 7-5-403(e), 7-6-102(c), 7-9-109(d). In addition, the lengthiness of
A.C.A. § 7-1-103—which continues for four pages listing offense after offense—
makes it impracticable for me to address each of its subsections in this opinion. If,

The Honorable David Kizzia
State Representative
Opinion No, 2013-133

Page 10

after reading this opinion, you still have a question about a specific subsection, I
am happy to respond.

Turning to the specific statutes you cite, we can apply the foregoing framework to
determine whether they fall within the scope of art. 3, § 6. As noted above, a
statute falls within that scope if it (1) pertains to an election law, and (2)
establishes a criminal offense that, (3) qualifies as an infamous crime. Section 5-
55-601 clearly meets these criteria. In contrast, A.C.A. §§ 7-1-111 and 7-6-105
clearly do not fall within art. 3, § 6’s scope because they are not infamous crimes
(thus lacking criterion (3)).

One group of statutes you cite falls outside the scope of art. 3, § 6 because they all
lack criterion (2), which is to say that they do not establish a criminal offense. For
example, section 7-5-502 states that “[a]ll laws of this state applicable to elections
where voting is done in any manner other than by machines and all penalties
prescribed for violation of these laws shall apply to elections and precincts where
voting machines are used insofar as they are applicable.” This is more of a
“housekeeping statute” than one that establishes a criminal offense. Several other
statutes that you cite fall into this category: A.C.A. §§ 7-5-616, 7-6-202, 7-9-403.

Finally, the other statutes you cite fall into a category that depends on the nature of
the charge. For example, A.C.A. § 7-9-102 makes it a misdemeanor for an election
official to “knowingly and willfully fail or refuse to perform his or her duty” or to
“knowingly and willfully commit a fraud in evading the performance of his or her
duty.” The knowing and willful failure to perform one’s duty does not rise to the
level of an infamous crime. But the knowing and willful commission of fraud in
order to evade one’s duty would rise to the level of an infamous crime because it
requires deceit, So whether a person convicted under this statute would fall within
art. 3, § 6’s scope depends on the nature of the conviction. Another statute you
cite, section 7-3-108(c), might also fall into this category.

Question 3: What does “willful and corrupt” mean under Article III, section
6 of the Arkansas Constitution?

As explained more fully above, when this phrase is read in context, it seems to
refer to a category of criminal offenses that reflect moral turpitude in the person
convicted thereof. This category of criminal offenses—sometimes referred to as
“infamous crimes”—is somewhat amorphous, though it has a clear core: crimes
that require the prosecutor to prove that the defendant engaged in deceit.

The Honorable David Kizzia
State Representative
Opinion No. 2013-133

Page 11

Question 4; What is a “felony” under Article III, section 6 of the Arkansas
Constitution?

As noted above, the term “felony” refers to the gravest category of criminal
offenses. In 1874, a person convicted thereof was subject to several ancillary
effects, including being disqualified from jury service, barred from being a witness
in a trial, and prohibited from voting. The ancillary effects of felony convictions at
any given time will always be dependent on the state of the law at that time.

Question 5: What is an “office of trust or profit in this State” under Article
III, section 6 of the Arkansas Constitution? Is this restricted to elected office?

As noted above, this phrase has been interpreted by the Arkansas Supreme Court
in a slightly different context. For reasons explained above, that interpretation
would probably also apply here. Thus, the phrase is best read as being restricted to
elected office.

Question 6: Does Article III, section 6 of the Ark. Const. create a criminal
offense, a civil prohibition, or both?

None of the above. As noted above, art. 3, § 6 has two effects. First, it heightens
the classification (from misdemeanor to felony) of certain convictions. Thus, far
from “creating” a criminal offense, this first effect depends on one having already
been convicted under a statute that defines a criminal offense. The second effect
disqualifies a person from holding any publically elected office in Arkansas. This
places into the constitution the longtime effect of a felony conviction.

Question 7: If the conduct of a person (1) violates a provision of the election
laws in the Arkansas Code, (2) does not meet the elements of a criminal
violation under the Arkansas Code, and (3) is “willful and corrupt” under the
Arkansas Constitution definition, is that conduct sufficient to be adjudged a
felony and to disqualify the person from holding any office of trust or profit
in this State?

No, because your second criterion takes the violation out of art. 3, §, 6’s scope. As
explained, the constitutional provision only contemplates violations of election
laws that are criminal in nature. Your second criterion specifically states that the
person did not violate a criminal statute: “does not meet the elements of a criminal

The Honorable David Kizzia

State Representative
Opinion No. 2013-133
Page 12

violation under the Arkansas Code.” Thus, the person does not fall within art. 3, §
6’s scope.

Question 8; Are the current misdemeanor violations of election laws under
the Arkansas Code unconstitutional?

No, because—as noted in the foregoing section on art. 3, § 6’s operation—the
provision is directed toward judges, not toward the legislature. The kind of statute
envisioned in your question—i.e. a misdemeanor election-law violation —would
still be the basis for the conviction. It would still establish the mental state (mens
rea) that must occur together with the prohibited conduct (actus reus). But the
constitutional requirement that the conviction be classified as a felony would
supplant the statutory classification.

Assistant Attorney General Ryan Owsley prepared this opinion, which I hereby
approve.

Sincerely,

Y

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  Ken McDA owe

Attorney General

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