What happens when the winner of a city election had withdrawn from the race before votes were counted?
Plain-English summary
Two candidates ran for an alderman seat in Hardy in November 2022. After the ballots had been certified but before election day, one candidate, Jason Creasey, filed an affidavit with the county circuit clerk announcing he was withdrawing. He stayed on the printed ballot because the ballot was already certified. He still got the most votes.
State Representative Trey Steimel asked the AG two questions. Did Creasey's withdrawal create a vacancy that the city council can fill? And can Creasey now request to "withdraw" his withdrawal and take the oath of office?
The AG said no to both.
On the first question, Arkansas law distinguishes between a "vacancy in office" and a "vacancy in election." A "vacancy in office" arises when a sitting officeholder dies, resigns, or otherwise becomes ineligible (A.C.A. § 7-1-101(38)). For a city of the second class like Hardy, the city council fills a vacancy in office under A.C.A. § 14-44-104. None of that happened here, because Creasey never held the office.
What happened instead was a "vacancy in election" under A.C.A. § 7-5-315(b). When a certified candidate withdraws, dies, or becomes ineligible after certification but before the election, the votes for that candidate are still counted, and if that candidate "wins," a vacancy in election is declared. The legal effect is twofold:
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The other candidates cannot be declared the winner. Under Rubens v. Hodges, 310 Ark. 451 (1992), votes for a withdrawn or ineligible candidate are "not void, but are effectual to prevent the opposing candidate from being chosen." The losing candidate cannot leapfrog into the seat just because more votes went to a non-eligible name.
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The incumbent holds over. Ark. Const. art. 19, § 5 says: "All officers shall continue in office after the expiration of their official terms, until their successors are elected and qualified." Phillips v. Earngey, 321 Ark. 476 (1995), confirms that art. 19, § 5 applies to aldermen. So the existing alderman keeps the seat until the next general election produces a duly-elected successor.
This means the city council has no role. There is no vacancy in office for the council to fill. The seat is occupied by the holdover incumbent, and the next opportunity for a different person to win the seat is the next general election (in this case, 2024).
On the second question, Arkansas law does not provide any procedure for a candidate who withdrew under A.C.A. § 7-5-315(b) to revive his candidacy. Once Creasey filed the withdrawal affidavit and the county election commission acted on it (creating a vacancy in election), there is no statutory mechanism to reverse course based on the vote totals. The AG framed this directly: "no."
What this means for you
City councils with a 'won by withdrawn candidate' situation
Resist the urge to step in and fill the seat. The seat is not vacant. The current alderman is legally entitled to continue serving as a holdover. Council action to "appoint" a replacement would be ultra vires and could be challenged in court. The fix waits for the next general election cycle.
If the council is unsure who the holdover incumbent is (for example, where a long-vacant ward complicates the chain), get a written legal opinion from the city attorney or, in close cases, file a declaratory judgment action.
County election commissions and county clerks
When a certified candidate files a withdrawal affidavit between certification and election:
1. Document the affidavit in the official record.
2. Continue the election as scheduled with the printed ballot.
3. Tally the votes including votes for the withdrawn candidate.
4. If the withdrawn candidate "wins," declare a vacancy in election under A.C.A. § 7-5-315(b)(2)(A). Do NOT declare the runner-up the winner.
5. Communicate the result to the affected officeholders so the holdover doctrine can be applied.
The withdrawn candidate's vote total is not a popular-acclaim mandate. It is a legally void total for purposes of installing him in office. Treat it that way.
Candidates who are considering withdrawing late
Three things to know. First, withdrawal after ballot certification does not erase your name from the ballot. Voters will see it. Second, your withdrawal is essentially irrevocable under current Arkansas law; there is no statutory un-withdraw procedure. Third, if you "win" anyway, you cannot take the seat. The incumbent holds over. So a late withdrawal effectively forces a holdover and re-fight at the next election.
Voters in municipal elections
A vote for a candidate who has filed a pre-election withdrawal does not elect that candidate. But the votes are not wasted in the sense of being void; they are "effectual to prevent the opposing candidate from being chosen." This produces a holdover until the next election, not a runner-up victory.
Sitting incumbents who think they are being replaced after losing the count
Read the holdover clause and the vacancy-in-election statute carefully before vacating the seat. If the elected "winner" filed a pre-election withdrawal, you may be entitled to remain in office as a holdover. Get advice from the city attorney before turning over keys, transitioning files, or canceling your salary.
Municipal law attorneys advising city councils
Use this opinion as a quick reference when a Section 7-5-315(b) situation arises. The path is: (1) was the withdrawal filed after ballot certification, (2) did the withdrawn candidate "win," (3) is there an existing incumbent who can hold over under art. 19, § 5? If yes to all three, the seat is not vacant and the council is bystander.
Edge case: what if there is no eligible incumbent (for example, a brand-new seat created by reapportionment)? The opinion does not directly address this. The holdover analysis breaks down, and the council may indeed have a vacancy in office. Check with the AG or seek a declaratory judgment.
Common questions
Why don't the runner-up's votes count enough to win?
Arkansas case law (Rubens v. Hodges) treats votes for an ineligible or withdrawn candidate as "effectual to prevent" the opposing candidate from winning. The rationale is that voters expressed a preference for the withdrawn candidate over the runner-up, even knowing of the withdrawal in some cases. Allowing the runner-up to win would override that preference. The remedy is a re-election, not a runner-up takeover.
What is the difference between a vacancy in office and a vacancy in election?
A vacancy in office arises when a sitting officeholder leaves the seat (death, resignation, ineligibility). The city council fills it by appointment in second-class cities under A.C.A. § 14-44-104. A vacancy in election arises when a certified candidate cannot serve and the election still produces no eligible winner. The remedy is the holdover doctrine, not council appointment.
Can the city council appoint anyway?
No. The seat is not vacant. The incumbent holds over under Ark. Const. art. 19, § 5.
Can I revoke a withdrawal affidavit before the election?
The opinion does not directly address this. The opinion's "no" applies to attempts to revoke after the election results are known. A pre-election revocation may be a different question depending on timing and the county election commission's procedures. Check with the commission and an election-law attorney.
What if both candidates withdraw before the election?
Not addressed in this opinion. The vacancy-in-election statute would still apply to both names; if neither candidate is eligible to take office, the holdover doctrine again keeps the incumbent in place.
What if there is no incumbent because the seat was newly created?
Not addressed. The holdover doctrine assumes an existing officeholder. Without one, the legal path is unclear and would likely require a declaratory judgment.
When does the next opportunity for a real election happen?
The next general election. For Hardy alderman seats, that was 2024. The holdover serves until the next duly-elected successor takes office.
Background and statutory framework
Constitutional and statutory rules:
- Ark. Const. art. 19, § 5: "All officers shall continue in office after the expiration of their official terms, until their successors are elected and qualified." Phillips v. Earngey, 321 Ark. 476, 902 S.W.2d 782 (1995), confirms it applies to aldermen.
- A.C.A. § 7-1-101(38): defines "vacancy in office" to include death, resignation, or ineligibility of a sitting officeholder.
- A.C.A. § 14-44-104: in cities of the second class, the city council fills a vacancy in office.
- A.C.A. § 7-5-315(b)(1)-(2): when a certified candidate withdraws, dies, or becomes ineligible after certification but before the election, votes for that candidate are still counted; if the candidate wins, a vacancy in election is declared.
Case law:
- Rubens v. Hodges, 310 Ark. 451, 837 S.W.2d 465 (1992): votes for a withdrawn or ineligible candidate are not void; they prevent the opposing candidate from being declared the winner.
- Phillips v. Earngey, 321 Ark. 476, 902 S.W.2d 782 (1995): Ark. Const. art. 19, § 5 (the holdover clause) applies to aldermen.
Definitional aid:
- Black's Law Dictionary defines "holding over" as "[a]n officer's continued tenure beyond the term for which he or she was elected, usu. because a successor has not been elected or cannot yet assume office."
City classification:
- Hardy is a city of the second class for purposes of A.C.A. § 14-44-104.
Citations
- Ark. Const. art. 19, § 5 (holdover doctrine)
- A.C.A. § 7-1-101(38) (vacancy in office definition)
- A.C.A. § 7-5-315(b)(1)-(2) (vacancy in election procedures)
- A.C.A. § 14-44-104 (council fills vacancy in office in second-class cities)
- Rubens v. Hodges, 310 Ark. 451, 837 S.W.2d 465 (1992)
- Phillips v. Earngey, 321 Ark. 476, 902 S.W.2d 782 (1995)
Source
Original opinion text
Opinion No. 2023-006
February 15, 2023
The Honorable Trey Steimel
State Representative
1173 Highway 62 W.
Pocahontas, Arkansas 72455-3787
Dear Representative Steimel:
You have requested my opinion on an issue regarding the recent municipal elections in the City of Hardy. You report that in the November 2022 general election, two candidates ran for election to the same seat on the city council for the City of Hardy. After the ballots had been certified, but before the election, one of the candidates, Jason Creasey, filed an affidavit with the Sharp County Circuit Clerk. The affidavit, which was addressed to the Sharp County Election Commission, stated that Mr. Creasey wanted to withdraw from the race. But he remained on the ballot because it had already been certified. He ultimately received the most votes and was certified as the winner.
Given the foregoing, you have asked the following questions:
- Does the "vacancy in election" for Alderman, Ward 2, Position 1, City of Hardy result in a "vacancy in office" allowing the city council to fill the vacant position or would the "holdover" provision under Ark. Const. Article 19, Section 5, apply allowing the incumbent Alderman to continue to serve until the next general election in 2024?
- Can Creasey request to withdraw his resignation and if so, would that allow him to be sworn in as Alderman, Ward 2, Position 1, City of Hardy?
RESPONSE
The answer to your first question is that because the state constitution provides for the incumbent to remain in the position, there is no vacancy for the city council to fill. The answer to your second question is "no."
DISCUSSION
Question 1: Does the "vacancy in election" for Alderman, Ward 2, Position 1, City of Hardy result in a "vacancy in office" allowing the city council to fill the vacant position or would the "holdover" provision under Ark. Const. Article 19, Section 5, apply allowing the incumbent Alderman to continue to serve until the next general election in 2024?
A "vacancy in office" occurs when a duly elected officeholder dies, resigns, or is otherwise rendered ineligible to continue in the elected office. When such a vacancy arises in a city of the second class (such as the City of Hardy), the city council appoints someone to fill the remainder of the term. Your question does not describe a vacancy in office because the candidate who withdrew but later received the most votes never held the office.
Instead, your question describes a "vacancy in election." Under Arkansas law, when a candidate for elected office withdraws from the race, dies, or is otherwise rendered ineligible after the ballot is certified but before the election, all votes for that candidate are still counted. If that candidate wins the race, a "vacancy in election" is declared. The purpose of such a declaration is to prevent other candidates for that seat from being declared the winner.
A vacancy in election does not, by itself, create a vacancy in office. This is partly because the Arkansas Constitution provides that the incumbent is legally entitled to continue serving in the seat to which he or she was elected until the next person is duly elected: "All officers shall continue in office after the expiration of their official terms, until their successors are elected and qualified." This continued service is called "holding over."
Therefore, since Mr. Creasey withdrew from the race after the ballot was certified but before the election, and since he received the most votes, a vacancy in election should have been declared. That declaration has two consequences: (1) the other candidate for the position is barred from winning; and (2) the incumbent is entitled to hold over until a successor is duly elected at the next general election.
Question 2: Can Creasey request to withdraw his resignation and if so, would that allow him to be sworn in as Alderman, Ward 2, Position 1, City of Hardy?
No. Arkansas law does not provide any right or procedure for candidates who have withdrawn their candidacies and created vacancies in election under A.C.A. § 7-5-315(b) to attempt to revive their candidacies after learning they received the most votes.
Deputy Attorney General Ryan Owsley prepared this opinion, which I hereby approve.
Sincerely,
TIM GRIFFIN
Attorney General