Does an Arkansas county convention delegate automatically become a county committee member, and how do affidavits of eligibility and candidate-eligibility challenges work?

Plain-English summary

State Senator Jon Woods asked the Arkansas AG seven questions about how Arkansas political parties interact with the Election Code. AG Leslie Rutledge answered each:

• Q1 and Q2 (delegate auto-becoming committee member): No Arkansas statute automatically makes a person elected or appointed as a county convention delegate a county committee member. But under Ark. Code Ann. § 7-3-101, a political party can lawfully prescribe its own membership rules and could adopt a rule treating delegates as automatic committee members. The AG could not opine on party rules themselves, as those are outside the scope of an AG opinion.
• Q3 (notarization of affidavits of eligibility): Likely yes. The Election Code uses the term "affidavit" without defining it, and dictionaries define "affidavit" as a sworn written declaration before a notary public or other authorized officer. A court would likely conclude a candidate's "affidavit of eligibility" must be notarized.
• Q4 (effect of an un-notarized affidavit): A court of competent jurisdiction would have to decide eligibility. The requirement of sworn signing is clear, but the consequences of a defective affidavit (after acceptance by the party and county clerk and placement on the ballot) are not addressed by any authority the AG could find. It does not matter whether the candidate was running for committee member or county office.
• Q5 and Q6 (party power to remove a candidate from ballot): No. The Arkansas Supreme Court has held in Jacobs v. Yates, Ivy v. Republican Party, and State v. Craighead County Bd. of Election Comm'rs that a political party (and the election commission) does not have judicial authority to remove a certified candidate from the ballot. The remedy is to file a petition in circuit court seeking an eligibility determination and a writ of mandamus.
• Q7 (vacancy in delegate position): No statute defines what creates a vacancy in a county convention delegate position. Ark. Code Ann. § 7-3-105(d) simply says vacancies "may be filled by the county committee." Party rules may also be relevant.

Currency note

This opinion was issued in 2016. 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.

The Arkansas Election Code has been amended several times since 2016. Anyone responding to a current dispute over delegate status or candidate eligibility should consult the current text of Ark. Code Ann. § 7-3-101 et seq.

Background and statutory framework

Party autonomy under § 7-3-101

Subject to the Election Code and other applicable laws, Arkansas political parties may (1) prescribe the qualifications of their own membership, (2) prescribe qualifications for voting in their primaries, and (3) establish rules and procedures for their own organization. This is broad authority within the constitutional limits set by federal and state law.

County committee membership under § 7-3-104

The Election Code calls for the election of county committee members and allows the county committee to appoint members to fill vacancies. Because the statute permits the committee to fill vacancies through its own action, a party rule that automatically converts delegates into committee members (effectively filling positions through delegate selection) would likely be a permissible exercise of the committee's vacancy-filling power, so long as actual vacancies exist.

Affidavits of eligibility

Candidates for county committee member and county convention delegate must file an "affidavit of eligibility" by noon on the last day of the party filing period (the week beginning at noon on the first Monday in November before the general primary). "Affidavit of eligibility" is defined in § 7-1-101(2) as "an affidavit signed by a candidate for elective office stating that the candidate is eligible to serve in the office he or she seeks." The Code does not define "affidavit" itself.

Because the term "affidavit" has a settled common-law meaning (a sworn written declaration before a notary or other authorized officer), Arkansas courts would likely require notarization. The Arkansas Supreme Court's settled approach to statutory construction in May Const. Co., Inc. v. Town Creek Const. & Dev., L.L.C., 2011 Ark. 281, supports reading clear statutory text against the plain meaning of its words.

Who can remove a candidate

Three Arkansas Supreme Court decisions form the core rule. In Jacobs v. Yates, 342 Ark. 243 (2000), the Court held that "the chairman and secretary of a political party do not have the judicial authority to determine that a candidate is ineligible to hold public office." In Hill v. Carter, 357 Ark. 597 (2004), the Court endorsed the procedure for pre-election attacks on a candidate's eligibility: file a petition in circuit court seeking an eligibility determination and mandamus relief. In State v. Craighead County Bd. of Election Comm'rs, 300 Ark. 405 (1989), the Court held that even the election board does not have authority to declare a candidate ineligible when there is a dispute concerning the facts or the law.

The reasoning: only courts can resolve disputed eligibility questions, and the proper remedy is a writ of mandamus coupled with a declaratory judgment.

Vacancies in delegate positions

The Election Code defines "vacancy in election," "vacancy in nomination," and "vacancy in office" in § 7-1-101(36)-(38), but none of those covers a county convention delegate vacancy. Section 7-3-105(d) simply states that delegate vacancies "may be filled by the county committee." Party rules may need to be consulted to determine what events create such a vacancy.

Common questions

Q: Our state party assumes delegates automatically become county committee members. Is that legal?
A: Under this opinion, yes, very likely, as a permissible exercise of the party's authority under § 7-3-101 and the committee's vacancy-filling authority under § 7-3-104(a)(4), as long as actual vacancies exist on the committee.

Q: My affidavit of eligibility wasn't notarized but my paperwork was accepted. Am I still eligible?
A: The AG could not give a definitive answer. The "affidavit" requirement strongly suggests notarization is needed, but the consequences of a defective affidavit (after acceptance and ballot placement) would have to be litigated. A challenger would need to take the case to circuit court.

Q: Can the state party remove my name from the ballot?
A: No. Per Jacobs v. Yates and related cases, only a court can do that. The proper procedure is to file a petition in circuit court for an eligibility determination and a writ of mandamus.

Q: What if I miss the filing deadline by an hour?
A: That is a different question (statutory filing deadlines) and is not addressed in this opinion. The party filing period under § 7-7-203(c)(1) is strict.

Q: Who decides what counts as a vacancy in a delegate position?
A: No statute defines it. The county committee can fill the position once one exists, but determining whether one exists may require consulting party rules.

Citations and references

Statutes:

• Ark. Code Ann. § 7-3-101, party autonomy in membership and rules
• Ark. Code Ann. § 7-3-104, county committee elections and vacancy filling
• Ark. Code Ann. § 7-3-105(d), filling vacancies in delegate positions
• Ark. Code Ann. § 7-1-101(2), definition of "affidavit of eligibility"
• Ark. Code Ann. § 7-5-207(b), candidate must be qualified and eligible at the time of filing
• Ark. Code Ann. § 7-7-203(c), party filing period
• Ark. Code Ann. § 7-7-301(a)(3), filing deadline for affidavits

Cases:

• Jacobs v. Yates, 342 Ark. 243, 27 S.W.3d 734 (2000), party officers cannot adjudicate eligibility
• Hill v. Carter, 357 Ark. 597, 184 S.W.3d 431 (2004), proper procedure for pre-election challenges
• State v. Craighead County Bd. of Election Comm'rs, 300 Ark. 405, 779 S.W.2d 169 (1989), election board cannot declare candidate ineligible when facts/law are disputed
• May Const. Co., Inc. v. Town Creek Const. & Dev., L.L.C., 2011 Ark. 281, 383 S.W.3d 389, plain-meaning statutory construction

Source

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

Original opinion text

Opinion No. 2016-026
September 23, 2016
The Honorable Jon Woods
State Senator
P. O. Box 8082
Springdale, AR 72766-8082
Dear Senator Woods:
STATE OF ARKANSAS
ATTORNEY GENERAL
LESLIE RUTLEDGE

You have requested my opinion on the following questions concerning county
political party committee members and county convention delegates:

1) Does a delegate to the county convention automatically become a member of the county committee?
2) As an example, if a delegate to the county convention is appointed as a delegate per the procedure outlined in Ark. Code Ann. § 7-3-105(d), will that individual automatically become a county committee member even though they were not elected per Ark. Code Ann. § 7-3-104?
3) Does an affidavit of eligibility have to be notarized?
4) What happens if the affidavit of eligibility was not notarized, but was accepted by the party, correct paperwork filed and accepted with the county clerk, and the person is placed on the ballot by the county election commission? Is the person no longer eligible? Does it make a difference if the person was filing for county committee member or candidate for a county office?
5) Can a county committee, state party or other entity remove a candidate from the election ballot?
6) If an individual has properly filed, was accepted by the appropriate parties as described in Ark. Code Ann. § 7-3-104(2)(b), and the candidate is placed on the ballot by the county election commission, can a county committee or state party unilaterally remove that candidate from the ballot, render them ineligible, or as being elected as if they were on the ballot per Ark. Code Ann. § 7-3-104(2)(b)?
7) What constitutes a vacancy for a delegate, and what are the conditions under which a vacancy may be realized? Is there a procedure outlined in the statutes that governs how these vacancies are filled?

BACKGROUND

You relate the following information as background for the above questions:

Arkansas Code Annotated § 7-3-105 discusses the election of
delegates to the county convention. Typically, the election of
delegates and the election of county committee members are treated
the same and the application and fillings are one and the same. This
means normally those who are delegates will be the new county
committee members. This should be true regardless of party
affiliation.

Ark. Code Ann. § 7-3-105(d) allows for the filling of vacancies
"existing or occurring in any of the positions of delegates after the
primary elections have been held may be filled by the county
committee." The Executive Committee of the Republican Party of
Arkansas recently approved procedures for how to fill these
vacancies as delegates. The current county committee (current
meaning the one existing now and not the one elected in the
primary) will, by a majority vote, fill vacancies as delegates.

It appears, per Ark. Code Ann. § 7-3-104(4), the only proper way to
fill a vacancy on a county committee is for that county committee to
do so as described in Ark. Code Ann. § 7-3-104(4). Additionally,
the current county committee cannot fill vacancies on a yet to be
formed committee nor can there be vacancies unless the county
committee is in effect.

RESPONSE

In response to Questions 1 and 2, no statute specifies that a person elected as a
county convention delegate automatically becomes a member of the county
committee of the political party, or that a person appointed to fill a vacancy in a
delegate position automatically becomes a county committee member. But the
party plainly has the right to govern its own membership and organization
consistent with the statutory scheme in Ark. Code. Ann. § 7-3-101 et seq., and
such a party rule would likely not violate the governing statutory scheme. The
answers to these questions may therefore turn on party rules and procedures. I
cannot opine further in this regard because the review of party directives is outside
the scope of an opinion from this office.

The answer to Question 3 is likely "yes," in my opinion. With regard to Question
4, the person's eligibility would have to be decided by a court of competent
jurisdiction, regardless of whether the person was filing for the county committee
or as a candidate for county office. The answer to both Questions 5 and 6 is "no."
In response to Question 7, there is no statute defining what constitutes a vacancy
in a county convention delegate position. The Election Code simply states that
vacancies in a county convention delegate position "may be filled by the county
committee." It may be necessary to consult party rules for a definitive answer to
this question.

Question 1: Does a delegate to the county convention automatically become a member of the county committee?
Question 2: As an example, if a delegate to the county convention is appointed as a delegate per the procedure outlined in Ark. Code Ann. § 7-3-105(d), will that individual automatically become a county committee member even though they were not elected per Ark. Code Ann. § 7-3-104?

No state statute automatically makes an elected or appointed delegate to a county
convention a member of the county committee. But this is not the end of the
inquiry. It is very likely that a party rule, policy, procedure, or custom may
lawfully make an elected or appointed delegate to a county convention a member
of the county committee.

Arkansas Code Annotated § 7-3-101 provides that subject to the provisions of the
Election Code and other applicable laws, organized political parties shall:

(1) Have the right to prescribe the qualifications of their own membership;
(2) Prescribe the qualifications for voting in their party primaries; and
(3) Establish rules and procedures for their own organization.

You state in your background information that "[t]ypically, the election of
delegates and the election of county committee members are treated the same" and
that "those who are delegates will be the new county committee members."
Because there is no state statute to this effect, I presume the party has acted
pursuant to the above authority and automatically makes delegates into members
of the county committee. It can lawfully do so as long as doing so is not
inconsistent with the relevant laws.

Arkansas Code Annotated § 7-3-104 addresses the election or appointment of
members of the county committee. It calls for the election of county committee
members, but allows for the appointment of county committee members (by the
county committee) in the case of vacancies. Because the county committee may
fill vacancies, a party rule, procedure, policy, or custom that lets the county
committee automatically turn delegates into committee members would likely not
run afoul of section § 7-3-104. This is true as long as there are vacancies on the
county committee to fill.

The ultimate answer to your questions may therefore be "yes," pursuant to party
rules and procedures. I cannot opine further in this regard, however, as the review
of party rules and procedures is outside the scope of an Attorney General opinion.

Question 3: Does an affidavit of eligibility have to be notarized?

Candidates for county committee member and convention delegate are required to
file an "affidavit of eligibility" on or before noon of the last day of the party filing
period. "Affidavit of eligibility" is defined as "an affidavit signed by a candidate
for elective office stating that the candidate is eligible to serve in the office he or
she seeks." The statute does not define "affidavit." But it is well established that
Arkansas courts construe unambiguous statutes according to the plain meaning of
the words used. In this regard, an "affidavit" is commonly defined as a "written
declaration made under oath before a notary public or other authorized officer . . . ."

I believe a court faced with the question would therefore likely conclude that an
affidavit of eligibility must be notarized, that is, signed under oath, based on the
plain meaning of "affidavit."

Question 4: What happens if the affidavit of eligibility was not notarized, but was accepted by the party, correct paperwork filed and accepted with the county clerk, and the person is placed on the ballot by the county election commission? Is the person no longer eligible? Does it make a difference if the person was filing for county committee member or as a candidate for a county office?

I have found no authority on point regarding the effect, under these circumstances,
of a candidate's failure to sign the affidavit of eligibility under oath. The
requirement of a sworn statement seems clear, both as to a county committee
candidate and a candidate for county office, based on the plain meaning of
"affidavit." So the failure to satisfy the requirement could conceivably give rise to
a challenge to the candidate's eligibility for either of these positions.

But I believe it is equally clear that any such challenge could only be decided by a
court of competent jurisdiction. The Arkansas Supreme Court has made it clear
that when contesting an eligibility determination, a judicial remedy is the proper
route: "When the eligibility of a person to appear on the ballot is controverted, it
becomes a matter for the courts."

Persons wishing to challenge a certified candidate's eligibility based on the failure
to sign the affidavit of eligibility under oath would therefore have to place the
issue before an Arkansas court. Having found no authority on point, I am unable
to predict the outcome of such a challenge.

Question 5: Can a county committee, state party or other entity remove a candidate from the election ballot?

No. The Arkansas Supreme Court has specifically held that "the chairman and
secretary of a political party do not have the judicial authority to determine that a
candidate is ineligible to hold public office." The Court has explained that such
a determination must be made by a trial court:

At this stage of the election process, it would appear to this court
that the appropriate procedure to be followed by the political party,
should the party wish to remove a certified candidate's name from
the ballot pre-election, is to file a petition in circuit court for an
eligibility determination and mandamus relief under the Craighead
County procedures.

In the Craighead County case, the Court endorsed the procedure for pre-election
attacks on a candidate's eligibility to stand for election. The Court stated that "the
board [of election commissioners] does not have the authority to declare a
candidate ineligible and remove his name from the ballot when there is a dispute
concerning the facts or the law." The Court concluded that only a court can
determine the eligibility of candidates to run, and that the proper remedy for the
enforcement of that right is a writ of mandamus coupled with a request for a
declaratory judgment concerning the candidate's eligibility.

Question 6: If an individual has properly filed, was accepted by the appropriate parties as described in Ark. Code Ann. § 7-3-104(2)(b), and the candidate is placed on the ballot by the county election commission, can a county committee or state party unilaterally remove that candidate from the ballot, render them ineligible, or as being elected as if they were on the ballot per Ark. Code Ann. § 7-3-104(2)(b)?

No. See response to Question 5 above.

Question 7: What constitutes a vacancy for a delegate, and what are the conditions under which a vacancy may be realized? Is there a procedure outlined in the state statutes that governs how these vacancies are filled?

There is no statute defining what constitutes a vacancy in a county convention
delegate position. The Election Code defines "vacancy in election," "vacancy in
nomination," and "vacancy in office," but none of these definitions can be read
to cover a vacancy among the delegates to the party's county convention who are
selected at the party primary.

Section 7-3-105(d) (see response to Question 2 above) simply states that vacancies
in a county convention delegate position "may be filled by the county committee."
Any rules adopted by the party for its own membership and organization may also
need to be considered in this regard.

Sincerely,

LESLIE RUTLEDGE
Attorney General