Jurisdictional Statement — Jernigan v. Lendall

- Supreme Cn, Court, U $.

FILE op

76-680 * NOV +=

1976

Supreme Court Of The United States

OCTOBER TERM, 1976

No.

GeorcE O. JERNIGAN, JR., INDIVIDUALLY

AND AS SECRETARY OF STATE OF THE rs

STATE OF ARKANSAS ...........00ceceseeeeeees Appellant

in : ~

UE SE % 60.55 0 0 gos po cts cee sec ce obb oe Qeecs Appellee

ON APPEAL FROM THE UNITED STATES DISTRICT

COURT FOR THE EASTERN DISTRICT OF ARKANSAS

JURISDICTIONAL STATEMENT

JAMES Guy TUCKER

Attorney General

State of Arkansas

Lonniz A. POWERS

° Deputy Attorney General

Justice Building

Little Rock, Arkansas 72201

[See

REQ. 76-14372 50 COPIES

—_—_—_—_— OE eeeEeEOOe___

INDEX

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STATEMENT OF THE CASE ....................0000: 5

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CITATIONS

Cases:

Bullock v. Carter, 405 U.S. 134, 92 S. Ct. 849, 31

SS Ff Re nee nee 2

Jenness v. Fortson, 403 U.S. 431, 91 S. Ct. 1970,

es ED ee a su chick donnendeatesee 7

Lendall v. Bryant, 387 F. Supp. 397 (1974) ....... 5, 7, 14

Moore v. Ogilvie, 394 U.S. 814, 89 S. Ct. 1493,

Se ee es OD noc eeccn edadeeeeseneesecechss 2

Salera v. Tucker, 399 F. Supp. 1258 (E.D. Pa.

1975), aff'd Mem., 424 U.S. 959, 96 S. Ct.

RR Ge a, Bk We Oe I og vcs ane ccaccccucesccccss 2

Storer v. Brown, 415 U.S. 724, 94S. Ct. 1274, 39

Ff eres: ee ene 8

Miscellaneous:

Developments In The Law — Elections, 88 Harv.

2 S fF Pr err rT eer er 9

— en

IN THE

Supreme Court Of The United States

OCTOBER TERM, 1976

No.

GeorGE O. JERNIGAN, JR., INDIVIDUALLY

AND AS SECRETARY OF STATE OF THE

EP GE ves cccicceetsicnasenenscds Appellant

VS.

Se ES Edcei cedcdsckevks conve kesueweeuss Appellee

ON APPEAL FROM THE UNITED STATES DISTRICT

COURT FOR THE EASTERN DISTRICT OF ARKANSAS

JURISDICTIONAL STATEMENT

Appellant appeals from the judgment of the United

States District Court for the Eastern District of Arkansas,

entered on August 20, 1976, declaring certain statutes of

the State of Arkansas, Ark. Stat. Ann. §§3-105(c) and 3-113

(a) (Repl. 1976), unconstitutional under the United States

Constitution, and submits this Statement to show that the

Supreme Court of the United States has jurisdiction of the

appeal and that a substantial question is presented.

2

OPINION BELOW

The opinion of the District Court for the Eastern

District of Arkansas, Western Division, is not yet reported.

Copies of the Memorandum Opinion and Order appear in

the Appendix as A and B.

JURISDICTION

This action was brought pursuant to 28 U.S.C. $1343

and 42 U.S.C. $§1981 and 1983 challenging the constituticnal

validity of Ark. Stat. Ann. §§3-105(c) and 3-113(a) (Repl.

1976). The judgment of the District Court was entered on

August 20, 1976, and notice of appeal was filed in that

Court on September 17, 1976. The jurisdiction of the

Supreme Court to review this decision by direct appeal is

conferred by 28 U.S.C. §1253. The following decisions sus-

tain the jurisdiction of the Supreme Court to review the

judgment on direct appeal in this case: Moore v. Ogilvie,

394 U.S. 814, 89 S. Ct. 1493, 23 L. Ed. 2d 1 (1969); Salera wv.

Tucker, 399 F. Supp. 1258 (E.D. Pa. 1975) aff'd mem., 424

U.S. 959, 96 S. Ct. 1451, 47 L. Ed. 2d 727 (1976); Bullock v.

Carter, 405 U.S. 134, 92 S. Ct. 849, 31 L. Ed. 2d 92 (1972).

QUESTIONS PRESENTED

1. Did the three-judge District Court correctly decide

that Ark. Stat. Ann. $§3-105 (c) and 3-113(a) (Repl. 1976),

insofar as they require an independent candidate for public

office to file nominating petitions containing a specified

number of signatures on or before the first Tuesday in

April next preceding the general election at which the

candidate wishes to have his name appear on the ballot,

are unconstitutional as depriving the oe « reasonable

access to a place on the ballot? .

3

2. Did the appellee present to the District Court

sufficient evidence upon which it could find that the filing

deadline imposed by Arkansas law unconstitutionally

impaired the appellee’s ability to qualify as an independent

candidate?

STATUTES INVOLVED

Ark. Stat. Ann. $3-105(c) (Repl. 1976):

“(c) Any person desiring to have his name placed

upon the ballot as an independent candidate without

political party affiliation for any State, county, town-

ship or district office, in any general election in this

State shall file as an independent candidate in the

manner provided herein, no later than the date fixed

by law as the deadline for filing political practice

pledges, and party pledges, if any be required by the

rules of the party, to qualify as a candidate of a

political party in a primary election, and shall furnish

at the time he files as an independent candidate, peti-

tions signed by not less than ten percent (10%) of the

qualified electors in the county, township or district

in which such person is seeking office, but in no event

shall more than 2,000 signatures be required for a

district office, or if such person is a candidate for State

office or for United States Senator, in which a State-

wide race is required, such person shall file petitions

signed by not less than ten percent (10%) of the

qualified electors of the State, or 10,000 signatures of

qualified electors, whichever is the lesser, each of

whom shall be a registered voter, and such petitions

shall be directed to the official with whom such per-

son is required by law to file nomination certificates

to qualify as a candidate, requesting that the name of

4

such person be placed on the ballot for election to the

office mentioned in the petition. Such petitions shall

be circulated not earlier than sixty (60) calendar days

prior to the deadline for filing such petitions to qualify

as an independent candidate. In determining the num-

ber of qualified electors in any county, township,

district or in the State, the total number of votes cast |

therein for all candidates in the preceding general

election for the office of Governor shall be conclusive

of the number of qualified electors therein for the

purposes hereof. The sufficiency of any petition filed

under the provisions hereof may be challenge

[challenged] in the same manner as provided by law

for the challenging of Initiative and Referendum peti-

tions. Independent candidates for municipal office may

qualify by petition of not less than ten (10) nor more

than fifty (50) electors of the ward or city in which

the election is to be held. Except in case of a vacancy

occurring in any nomination by withdrawal, death, or

otherwise, a person who has been defeated in a party

primary shall not be permitted to file as an indepen-

dent candidate in the general election for the office for

which he was defeated in the party primary.”

Ark. Stat. Ann. §3-113(a):

“(a) Party pledges, if any, and political practice

pledges, for primary elections shall be filed, and ballot

fees shall be paid during regular established business

hours between 12 o’clock noon and on the second (2nd)

Tuesday in March and 12 o’clock noon on the first

(1st) Tuesday in April before the preferential primary

election. Party pledges, if any, and political practice

pledges shall be filed, and ballot fees for special pri-

mary elections shall be paid, on or before the deadline

established by proclamation of the Governor. The filing

period shall consist of three (3) weeks prior to the

filing deadline.”

The complete texts of Ark. Stat. Ann. §$§3-105 and

3-113 (Repl. 1976) which are found at pages 56, 57 and 58;

and 68, 69 and 70 of Volume 2, Part 1, 1976 Replacement to

Arkansas Statutes, 1947 Annotated, Official Edition, are

set forth as Appendix C hereto.

STATEMENT OF THE CASE

In 1974 the appellee, Mr. Jim Lendall, filed a suit in

equity challenging the qualification requirements for

independent candidates contained in the Election Code of

the State of Arkansas. More particularly, he challenged the

provisions of section 3-105, which then required an inde-

pendent candidate to file his pledge with the Secretary of

State by the first Tuesday in April preceding the general

election in November and to accompany his pledge with

nominating petitions signed by not less than 15 percent of

the qualified electors of the district. A three-judge district

court was constituted and a per curiam opinion entered

holding section 3-105(c) (as then written) to be “uncon-

stitutional as applied to independent candidates for State,

district, county and township offices, including the

plaintiff.” Declaratory relief was granted accordingly, but

injunctive relief was denied because it was too late to be

of any benefit to the plaintiff. It was there stated: “Of

course, if the Legislature does not act, and if the Secretary

of State undertakes to enforce the statute as it is now

written, it may be necessary to enjoin him from so doing,

assuming that our decision here is a correct one.” See

Lendall v. Bryant, 387 F. Supp. 397, 403 and 404 (1974).

6

By Act No. 700 of 1975, the Arkansas Legislature

amended the provisions of section 3-105(c) by reducing

the percentage of petitioners required to “not less than ten

percent of the qualified electors in the county, township or

district in which such person is seeking office, but in no

event shall more than 2,000 signatures be required for a

district office.” In Statewide races the percentage was also

reduced to ten percent, “or 10,000 signatures of qualified

electors, whichever is the lesser.” Except for the changes

relating to the number of petitioners, section 3-105(c) was

left unchanged.

On June 15, 1976, Mr. Jim Lendall filed his complaint

in the District Court in which he challenges the filing

deadline for independent candidates which, by reference,

is fixed as “12 o’clock noon on the first Tuesday in April

before the preferential primary election.” See Section 3-113

(a). That date is also the deadline for persons seeking to

qualify as candidates of political parties in primary

elections. Plaintiff here is concentrating his attack upon

the filing deadline and is not presently attacking the new

petition requirements referred to above.

The appellant and the appellee stipulated before the

District Court that appellee is a resident and qualified

elector of the State of Arkansas residing in State Senatorial

District No. 3 in Pulaski County, Arkansas and that he

meets the eligibility requirements of Article 5, §4 of the

Arkansas Constitution for election to the Arkansas Senate.

Further, it was stipulated that subsequent to the 1976

Arkansas party primaries, the appellee announced his

intention to seek nomination as an independent candidate

for State Senate District No. 3. The appellee did not

attempt to file petitions for nomination as an independent

7

candidate but if he had done so at any time subsequent to

the time established in the statute, the appellant, George

O. Jernigan, Jr., the duly appointed. and acting Secretary

of State of the State of Arkansas, would have refused to

allow the filing of the petitions.

No hearing was held and no evidence was introduced

other than the stipulation and an affidavit of the appellant.

THE QUESTIONS PRESENTED ARE SUBSTANTIAL

This case presents the Court with the opportunity for

and necessity of resolving an implicit conflict between its

decision in Jenness v. Fortson, 403 U.S. 431, 91 S. Ct. 1970,

29 L. Ed. 2d 554 (1971) and its recent affirmance without

opinion of the case of Salera v. Tucker, supra. Both of those

cases dealt with state statutory schemes which imposed

filing deadlines on independent candidates in advance of

the party primaries. This Court approved in Jenness an

independent candidate filing deadline of the second

Wednesday in June which was the same as the party

candidate deadline and disapproved in Salera an April

filing deadline which fell between the party candidate

deadline and the party primary.

The District Court in this case found the challenged

statute to be unconstitutional “generally for the same

reasons which were cited as the basis for the Court’s

decision in Lendall v. Bryant, [387 F. Supp. 397 (1975) ].”

The only reason articulated by the District Court in that

case for invalidating the filing deadline was the Court’s

statement that “serious independent candidacies generally

arise from substantial public dissatisfaction with party

nominees or with the positions taken by the organized

parties with respect to important issues. And that

dissatisfaction does not ordinarily manifest itself until

party nominees and party positions are known. It is simply

to much to require a would-be independent candidate to

obtain the signatures of 15% of the qualified electors of a

State or political subdivision thereof weeks in advance of

the primary elections and months ahead of the general

election. See in this connection the remarks of Mr. Justice

Brennan in his dissenting opinion in Storer v. Brown, supra,

415 U.S. at 755, 758, 94 S. Ct. 1274.” 387 F. Supp. at 402.

That statement is in direct conflict with the opinion of this

Court that “Georgia does not fix an unreasonably early

filing deadline for candidates not endorsed by established

parties.” Jenness, supra, 403 U.S. at 438. In spite of the

Jenness decision, both Salera v. Tucker, supra, and the

District Court in this case assume that independent candi-

dates have a constitutional right to wait until party

candidates are known before filing for office. If it is

constitutionally permissible for California to force prospec-

tive independent candidates to disaffiliate from any

political party 12 months prior to the party primaries,

how can it be unreasonable for Arkansas to demand that

independent candidates make their decisions less than two

months prior to the party primaries? Storer v. Brown, 415

U.S. 724, 94S. Ct. 1274, 39 L. Ed. 2d 714 (1974).

This Court should take jurisdiction of this appeal in

order to determine whether, as the District Court has

implicitly found, a filing deadline for independent candi-

dates which is the same as the filing deadline for party

candidates is per se unconstitutional or whether, as this

Court found in the Jenness case, supra, that a court may

constitutionally establish a filing deadline for independent

candidates which is the same as the filing deadline for

party candidates.

A decision on this question is especially crucial since

one of the compelling state interests urged upon the

District Court in an attempt to justify this filing deadline

was the State’s interest in preserving a viable party

system. The above-quoted passage from Lendall v. Bryant,

supra, ignores the State’s compelling interest in promoting

and strengthening the party system. The State can, by

keeping down independent candidacies which tend to

fragment political parties, promote the strengthening of

parties.

“It seems undeniable that the political stability that a

two party system fosters, by encouraging ‘a politics of

coalition and accommodation rather than. . . ideological

and charismatic fragmentation,’ is a compelling state

interest.” Developments In The Law — Elections, 88 Harv.

L. Rev. 1111, 1138 (1975) (footnote omitted).

The State’s compelling interest in protecting a viable

party system and guarding it from the inroads of ad hoc

independent candidacies may be promoted by requiring

independent candidates to file at the same time as party

candidates. By making it easier for one to become a party

candidate than an independent candidate, the State en-

courages the process of accommodation and compromise

so vital to a strong two party system.

Arkansas imposes no undue restrictions on the forma-

tion of new political parties. A new party may be formed

by filing with the Secretary of State petitions bearing the

signatures of qualified electors equal to seven percent

(7%) of the total vote cast for Governor or Presidential

electors at the last general election. Ark. Stat. Ann. §3-101

(a) (Repl. 1976). Any qualified elector may sign such

petitions. Ne restrictions are imposed because of past

affiliation with any other political party.

10

This compelling state interest requires that the filing

deadline stay at the first Tuesday in April unless the

Legislature should choose a later time for the filing of all

candidates. Such a legitimate state interest is implicitly

recognized in Jenness, supra, which approved a filing

deadline for all candidates, party as well as independent,

on the same day.

The other substantial question presented by this

appeal is whether the District Court had sufficient

evidence before it on which it could find that the filing

deadline imposed by Arkansas law unconstitutionally

impaired the appellee’s ability to qualify as an independent

candidate.

All the record in this case contains in the way of

evidence is the stipulation of the parties and the affidavit

of the appellant. There was no evidence before the District

Court that the filing deadline established by Arkansas law

had in any way adversely affected the plaintiff's ability to

qualify as an independent candidate. The District Court

can not be allowed to presume on the basis of no evidence

whatsoever, that a validly enacted statute of the Arkansas

General Assembly unconstitutionally impairs the appellee’s

ability to run for political office.

This Court has many times recognized a state’s ability

to reasonably restrict access to the ballot. There must

therefore be evidence presented to the District Court

which will show that the restrictions imposed by state law

are unreasonable before a District Court can declare them

unconstitutional. The District Court in this case did not

have such evidence before it because the appellee made

no attempt to present such evidence. See, Salera v. Tucker,

supra, 399 F. Supp. at 1266 and 1267. It denies the State of

11

Arkansas due process of law for the District Court to decide

that a State statute is unconstitutional when the District

Court has been presented with no evidence upon which it

can make such a determination.

CONCLUSION

It is submitted that the District Court erred in holding

that the filing deadline imposed by Ark. Stat. Ann. §3-105

(c) (Repl. 1976) is unconstitutional and that the Court

erred in making that determination when it did not have

sufficient evidence presented to it to enable it to reach

such a conclusion. Appellant believes that the questions

presented by this appeal are substantial and that they are

of public importance.

Respectfully submitted,

JAMES Guy TUCKER

Attorney General

State of Arkansas

LONNIE A. POWERS

Deputy Attorney General

Justice Building

Little Rock, Arkansas 72201

12

Appendix “A”

IN THE UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF ARKANSAS

WESTERN DIVISION

Se Ds. cc adere ae kensbndeueesnas saueeedes Plaintiff

vs. No. LR-76-C-184

GeorcE O. JERNIGAN, JR.,

Individually and as Secretary

of State of the State of Arkansas .............. Defendant

ORDER

Pursuant to the Memorandum Opinion filed this day,

it is Ordered that the defendant permit the plaintiff to file

proper petitions as an independent candidate for State

Senate in District 3 if said petitions are tendered on or

before 12 o’clock noon, August 31, 1976. If petitioner’s

filings are otherwise adequate and if he complies with all

other pertinent state laws, defendant is further ordered to

permit plaintiff to qualify as an independent candidate and

have his name placed on the November 2 General Election

Ballot as such.

Dated this 20th day of August, 1976.

/s/ J. Smith Henley

United States Circuit Judge

/s/ Garnett Thomas Eisele

United States District Judge

/s/ Terry L. Shell

United States District Judge

FILED: US. District Court, Eastern District Arkansas,

August 20, 1975, W. H. McClellan, Clerk.

13

Appendix “B”

IN THE UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF ARKANSAS

WESTERN DIVISION

ee CD kc evnvenccudawdcdeecbasduewenses Plaintiff

vs. No. LR-76-C-184

GeorGE O. JERNIGAN, JR.,

Individually and as Secretary

of State of the State of Arkansas ............. Defendant

PER CURIAM:

MEMORANDUM OPINION

In 1974 the plaintiff here, Mr. Jim Lendall, filed a suit

in equity challenging the qualification requirements for

independent candidates contained in the Election Code of

the State of Arkansas. More particularly, he challenged the

provisions of section 3-105, which then required that an

independent candidate must file his pledge with the Secre-

tary of State by the first Tuesday in April preceding the

general election in November and that he accompany his

pledge with nominating petitions signed by not less than

15 percent of the qualified electors of the district. A

three-judge district court was constituted and a per

curiam opinion entered holding that section 3-105(c) (as

then written) to be “unconstitutional as applied to inde-

pendent candidates for State, district, county and township

offices, including the plaintiff.” Declaratory relief was

granted accordingly, but injunctive relief was denied be-

cause it was too late to be of any benefit to the plaintiff. It

was there stated, “Of course, if the Legislature does

nct act, and if the Secretary of State undertakes to enforce

the statute as it is now written, it may be necessary to

enjoin him from so doing, assuming that our decision here

14

is a correct one.” See Lendall v. Bryant, 387 F. Supp. 397

(1974).

By Act No. 700 of 1975, the Arkansas Legislature

amended the provisions of section 3-105(c) by reducing

the percentage of petitioners required to “not less than ten

percent of the qualified electors in the county, township or

district in which such person is seeking office, but in no

event shall more than 2,000 signatures be required for a

district office.” In statewide races the percentage was also

reduced to ten percent, “or 10,000 signatures of qualified

electors, whichever is the lesser.” Except for the changes

relating to the number of petitioners, section 3-105(c) was

left unchanged.

On June 15, 1976, Mr. Jim Lendall filed the complaint

in this action in which he challenges the filing deadline for

independent candidates which, by reference, is fixed as

“12 o’clock noon on the first Tuesday in April before the

preferential primary election.” See Section 3-113(a). That

date is also the deadline in which persons might seek to

qualify as candidates of political parties in primary

elections. Plaintiff here is concentrating his attack upon

the filing deadline and is not presently attacking the new

petition requirements referred to above.

The facts were stipulated by the parties, and briefs

were filed. Oral argument was heard this day before the

full three-judge court.

After considering the evidence, the law and the

arguments of the attorneys, the Court concludes that the

filing deadline for independent candidates for district

offices, found in section 3-113, Ark. Stats., is unconstitu-

tional, generally for the same reasons which were cited as

the basis for the Court’s decision in Lendall v. Bryant,

supra.

15

Mr. Jim Lendall has been diligent in attempting to

qualify as an independent candidate for State Senate in

District 3 and in pursuing his legal remedies in an effort to

challenge the law with respect to the filing deadline for

independent candidates for such positions. Through no

fault of his own, the Court has only been able to reach the

issues this date.

The Court is of the view, under all the circumstances,

that Mr. Lendall is entitled to injunctive relief requiring

the defendant to accept the petition filings of the plaintiff,

Mr. Lendall, which are tendered by the plaintiff on or

before 12 o’clock noon on August 31, 1976. However, our

decision in this respect should not be deemed as requiring

the General Assembly of the State of Arkansas to establish

a deadline so near the general election or, indeed, to

establish any particular deadline. It is clear that the

Legislature has certain discretion with respect to such

matters, and that that discretion should not be interfered

with so long as it is exercised within constitutionally

acceptable limits.

It is the view of the Court that the General Assembly

may wish, in the light of this Court’s and other courts’

decisions, to reexamine the filing deadlines not only for

independent candidates but perhaps also for those who

wish to be candidates of political parties. In any event, the

Court is here holding only that the presently established

filing deadline for independent candidates for district

office is unconstitutional. However, we do not wish to

indicate by our opinion that we believe the petition require-

ments enacted by the General Assembly in 1975 would

withstand a constitutional attack. See Lendall v. Bryant,

supra.

16

Appendix “C”

3-105. Method of selection of nominees. — The name

of no person shall be printed on the ballot in any general

or special election in this State as a candidate for election

to any office unless such person shall have been certified

as a nominee selected as follows:

(a) Nominees of any political party for United States

Senate, United States House of Representatives, State,

District or County office to be voted upon at a general

election shall be certified as having received a majority of

the votes cast for said office, or as an unopposed candidate,

at a primary election held by such political party in the

manner provided by law.

(b) Nominees of any political party for township or

municipal office shall be declared by certification of a

primary election as provided in subsection (a) of this

Section.

(c) Any person desiring to have his name placed

upon the ballot as an independent candidate without

political party affiliation for any State, county, township

or district office, in any general election in this State shall

file as an independent candidate in the manner provided

herein, no later than the date fixed by law as the deadline

for filing political practice pledges, and party pledges, if

any be required by the rules of the party, to qualify as a

candidate of a political party in a primary election, and

shall furnish at the time he files as an independent candi-

date, petitions signed by not less than ten percent (10%)

of the qualified electors in the county, township or district

in which such person is seeking office, but in no event shall

more than 2,000 signatures be required for a district office,

17

or if such person is a candidate for State office or for United

States Senator, in which a Statewide race is required, such

person shall file petitions signed by not less than ten percent

(10%) of the qualified electors of the State, or 10,000

signatures of qualified electors, whichever is the lesser,

each of whom shall be a registered voter, and such petitions

shall be directed to the official with whom such person is

required by law to file nomination certificates to qualify as

a candidate, requesting that the name of such person be

placed on the ballot for election to the office mentioned in

the petition. Such petitions shall be circulated not earlier

than sixty (60) calendar days prior to the deadline for

filing such petitions to qualify as an independent candidate.

In determining the number of qualified electors in any

county, township, district or in the State, the total number

of votes cast therein for all candidates in the preceding

general election for the office of Governor shall be con-

clusive of the number of qualified electors therein for the

purposes hereof. The sufficiency of any petition filed under

the provisions hereof may be challenge [challenged] in the

same manner as provided by law for the challenging

of Initiative and Referendum petitions. Independent

candidates for municipal office may qualify by petition

of not less than ten (10) nor more than fifty (50) electors

of the ward or city in which the election is to be held.

Except in case of a vacancy occurring in any nomination

by withdrawal, death, or otherwise, a person who has

been defeated in a party primary shall not be permitted to

file as an independent candidate in the general election for

the office for which he was defeated in the party primary.

(d) Nominees of a political party to fill a vacancy

in nomination, as defined herein, shall be declared by:

18

(1) Certificate of the chairman and secretary of any

convention of delegates; or

(2) By a special primary election called, held and

conducted in accordance with the rules of the party; or

(3) By petition of not less than fifty (50) nor more

than one thousand (1,000) electors from the State, or dis-

trict or county in which the vacancy in nomination exists.

(e) Nominees for election at a special election called

for the purpose of filling a vacancy in office for member

of the House of Representatives of the Congress of the

United States, for Lieutenant Governor, or as a member of

the Senate or House of Representatives of the General

Assembly shall be chosen as follows:

(1) Whenever a vacancy shall exist in either of the

aforementioned offices, the Governor shall certify in

writing to the State Committee of the respective political

parties the fact of such vacancy and shall request the

respective State Committee to make a determination and

notify him in writing within ten (10) days with respect to

whether the political party desires to hold a special primary

election to choose a nominee of such party as a candidate

for election to the office in which the vacancy exists. If

the State Committee of any political party shall notify the

Governor, within the time provided above, of their request

to hold a special primary election, it shall be mandatory

that any political party desiring to choose a nominee for

election to the office in which the vacancy exists to choose

such nominee at a special primary election. In issuing the

proclamation calling for a special election to fill the vacancy

in office, the Governor shall also specify the date on which

the special primary elections shall be held, and the date

on which a run-off primary election shall be held in the

19

event a candidate does not receive a majority vote. The

proclamation of the Governor shall also establish the dead-

line for filing as a candidate for nomination, which deadline

shall allow at least ten (10) days in which candidates may

file for nomination. The date of the special primary election

shall be at least thirty (30) days, but no more than sixty

(60) days, subsequent to the date fixed as a deadline for

qualifying as a candidate for nomination, and shall be at

least ten (10) days prior to the date fixed in the proclama-

tion for holding the special election to fill the vacancy in

office. Certificates of nomination of persons nominated at

a special primary election shall be filed, and the filing fees

therefor paid, to the appropriate official at least seven (7)

days prior to the date for holding the special election to fill

the vacancy in office.

(2) In the event nominee [nominees] of political

parties as candidates for election to fill a vacancy in office

are to be chosen by special primary election, any person

desiring to be a candidate for such office as an independent

candidate without political party affiliation, may file

nomination petitions signed by not less than fifteen percent

(15%) of the qualified electors of the district or of the

State, as the case may be, as determined by the total num-

ber of votes cast in the last preceding general election for

all candidates for the office of Governor. Such petitions

shall be filed on or before the deadline fixed in the procla-

mation of the Governor to file and qualify as a candidate

for nomination at the special primary elections to be held

by the respective political parties to choose party nominees

as candidates for election to fill the vacancy in office.

(3) If the State Committee of neither of the political

parties shall notify the Governor, within the time provided

hereinabove, of the desire to hold a special primary election

20

to choose a nominee of such political party as a candidate

for election to fill the vacancy in office, the Governor shall,

in issuing his proclamation calling for the special election,

fix a deadline for filing as a nominee for election at such

special election. In such event, nominations may be made

either upon certification of the chairman or secretary of a

convention of delegates of a political party called and held

in accordance with the rules of the party, or upon petition

of electors of the district or the state, as the case may be,

in which the vacancy exists, signed by not less than one

hundred (100) qualified electors of the district in which

a vacancy in the Senate or House of Representatives of the

General Assembly shall exist or by not less than five

hundred (500) qualified electors of the district in which

the vacancy exists with respect to a member of the House

of Representatives of the Congress of the United States,

or of the State of Arkansas with respect to the office of

Lieutenant Governor. [Acts 1969, No. 465, Art. 1, $5, p.

1195; 1971, No. 261, §3, p. 599; 1972 (Ex. Sess.), No. 42, $1,

p. 2368; 1975, No. 1700, §1, p. —.]

3-113. Schedule of dates applicable to primary

elections. — (a) Party pledges, if any, and political practice

pledges for primary elections shall be filed, and ballot fees

shali be paid during regular established business hours

between 12 o’clock noon and on the second (2nd) Tuesday

in March and 12 o’clock noon on the first (1st) Tuesday in

April before the preferential primary election. Party

pledges, if any, and political practice pledges shall be filed,

and ballot fees for special primary elections shall be paid,

on or before the deadline established by proclamation of

the Governor. The filing period shall consist of the three

(3) weeks prior to the filing deadline.

21

(b) No later than forty (40) days before the

preferential primary election the Chairman and Secretary

of State Committee of the political party shall certify to

the various county committees the names of all candidates

who have qualified with said State Committee for election

by filing the party pledge and paying the ballot fee within

the time required by law.

(c) The general primary election shall be held on the

second Tuesday in June preceding the general election.

(d) The preferential primary election shall be held

on the Tuesday two (2) weeks prior to the general primary

election.

(e) Judges and Clerks of primary elections shall be

selected by the County Committee at an open public meet-

ing held not later than thirty-five (35) days before the

preferential primary election, and notice of said meeting

shall be in the manner as provided in Section 12 [§$3-112]

of this Article.

(f) The order in which the names of the respective

candidates shall appear on the primary election ballot shall

be determined by lot at the meeting of the County Commit-

tee held for the selection of election judges and clerks at

the time provided in subsection (e) above.

(g) The County Committee shall convene, at the time

specified in the notice to the members given by the Secre-

tary of the County Committee, on the Friday following

each primary held on the preceding Tuesday for the

purpose of canvassing the returns and certifying the

election results. If no time be specified for the meeting of

the County Committee, such meeting shall be at 2:00 p.m.

22

(h) The County Convention of a political party

holding a primary election shall be held on the first Mon-

day following the date of the general primary.

(i) Immediately following the County Convention,

the newly elected County Committee shall certify to the

County Board of Election Commissioners and the County

Clerk a list of all duly nominated candidates for county,

township and municipal offices. At the same time, the

County Committee shall certify to the Secretary of the

State Committee the results of the contests for all United

States, State and District offices. Immediately after ascer-

taining the results for all United States, State and District

offices, the State Committee shall certify to the Secretary

of State a list of all duly nominated candidates for said

offices.

(j) (1.) The Secretary of State shall, at least sixty

(60) days prior to the date of the General Election, notify

by registered mail the Chairman and Secretary of the State

Committee of the respective political parties that a certifi-

cate of nomination is due for all duly nominated candidates

for United States, State and District offices in order that

the candidate’s name be placed on the ballot of the General

Election. The State Committee shall issue said certificates

of nomination to all duly nominated candidates for United

States, State and District offices, who shall file said

certificates with the Secretary of State at least forty-five

(45) days but not more than fifty-five (55) days prior to

the General Election. However, if the Chairman and

Secretary of the State Committee of the respective political

parties are not properly notified as directed by this Section,

the failure of a candidate to file a certificate of nomination

23

shall not prevent that candidate’s name from being placed

on the ballot of the General Election.

(2.) Each County Clerk shall, at least sixty (60) days

prior to the date of the General Election, notify by register-

ed mail the Chairman and Secretary of the County Com-

mittee of the respective political parties that a certified list

of all duly nominated candidates for county, township and

municipal offices is due and shall be filed with the County

Board of Election Commissioners and the County Clerk in

order that the candidates’ names be placed on the ballot for

the General Election. The County Committee shall issue

said certified list on behalf of those duly nominated candi-

dates and submit the certified list to the County Board of

Election Commissioners and the County Clerk at least

forty-five (45) days but not more than fifty-five (55) days

prior to the General Election. However, if the Chairman

and Secretary of the County Committee of the respective

political parties are not properly notified as directed by

this Section, the failure of a certified list to be filed shall

not prevent any candidate’s name from being placed on the

ballot of the General Election.

(k) The boundaries of voting precincts in primary

elections, and the voting places therein, shall be established

at least thirty (30) days preceding any primary election,

and any alternation or change therein made subsequent to

said date shall be void.

(1) Any group of voters desiring to file a petition with

the Secretary of State signed by qualified electors equal in

number to at least seven percent [7% ] of the total vote cast

for the office of Governor or nominees for Presidential

Electors, at the last preceding election, so as to establish a

24

Political Party shall file said petition at least thirty [30]

days prior to the date established for the filing of party

pledges, if any, and political practice pledges for primary

elections. Said petition shall be filed at least five [5] days

prior to any deadline established by proclamation of the

Governor for the filing of party pledges, if any, and political

practice pledges and ballot fees for special primary elec-

tions. [Acts 1969, No. 465, Art. 1, $13, p. 1195; 1971, No. 261,

$23, p. 599; 1971, No. 347, $§5-7, p. 846; 1971, No. 829,

§$1-3, p. 1475; 1972 (Ex. Sess.), No. 37, §§1, 2, p. 2358;

1975, No. 601, §§$1, 2, p. —.]