The opinion
Mr. Ron Oliver, Chairman Pulaski County Election Commission 201 South Broadway, Suite 360 Little Rock, AR 72201
Dear Mr. Oliver:
This is in response to your request for an opinion concerning several complaints received by the Pulaski County Board of Election Commissioners subsequent to the November 8, 1994, general election. You have attached two letters 1 and have asked whether the complaints are sufficient for the board to refuse to certify the results of the elections involved.
It is my opinion that the answer to this question is "no." A decision to, in effect, void these elections will in my opinion have to be made by a court in an election challenge.
As stated by the Arkansas Supreme Court, it is a "serious matter" to void an election. Files v. Hill, 268 Ark. 106 , 117 , 594 S.W.2d 836 (1980). This will only be done where the alleged irregularities are "sufficient to render the outcome of the election really uncertain. . . ." Id. According to Files ,
"the wrong must be clear and flagrant, diffusive in its influences, calculated to effect more than can be traced and sufficiently potent to render the result clearly uncertain." Id. Otherwise, a court will not proceed beyond excluding particular illegal votes or supplying particular legal votes that were rejected. Id.
While it is possible that an election challenge would result in the setting aside of the elections, my research has yielded no authority for a board of election commissioners to refuse to certify the vote in these circumstances. There is simply no statutory procedure for such action. Resort to the post-election remedy of an election challenge will, in my opinion, be necessary.
The foregoing opinion, which I hereby approve, was prepared by Assistant Attorney General Elisabeth A. Walker.
Sincerely,
WINSTON BRYANT Attorney General
WB:EAW/cyh
1 One letter is addressed to Susan Inman from Erma Fingers Hendrix, dated November 8, 1994. The other is from Roy C. Lewellen to Ron Oliver, dated November 10, 1994.