Ivy v. Republican Party

883 S.W.2d 805, 318 Ark. 50, 1994 Ark. LEXIS 497

• Court: Supreme Court of Arkansas
• Decided: September 23, 1994
• Docket: 94-1006
• Status: Published

Opinions

Per Curiam.

The pertinent facts appear undisputed. Dan Ivy duly filed with the State Republican Party as a candidate to be that party’s nominee for Attorney General. He ran unopposed at the Republican Party Primary elections and, under Ark. Code Ann. § 7-7-304(c), he was entitled to be certified as the Republican Party nominee for the office of Attorney General. See also Ark. Code Ann. § § 7-7-203(k)(l) and'7-7-403 (Repl. 1993).

After the primary elections, Mr. Ivy apparently was arrested for the criminal offense of battery in the third degree and was determined guilty by the Fayetteville Municipal Court on September 7, 1994. He appealed. On September 10, 1994, the State Republican Convention convened, and at that convention the membership voted not to certify Ivy as its nominee for Attorney General. On September 12, 1994, Ivy promptly filed a petition for writ of mandamus, in the Pulaski County Circuit Court, naming the Republican Party of Arkansas and its Chairman and Executive Secretary, and, among other things, requested the court to issue its writ and declaratory judgment directing the Republican Party officials to certify Ivy as the party’s nominee for Attorney General. On September 19, 1994, the circuit court denied Ivy’s request.

In reaching its ruling, the trial court construed Ark. Code Ann. § 7-1-104(4) which defines “vacancy in nomination” as the following:

“Vacancy in nomination” means the circumstances in which the nominee of a political party selected at a primary election shall not be certified as the nominee due to death, resignation, withdrawal, or other good and legal cause arising subsequent to nomination and preceding the final date for certification of nominations (emphasis added).

The lower court also cited Ark. Code Ann. § 7-3-101 (Repl. 1993) as providing that organized political parties shall have the right to prescribe the qualifications of their own membership and for voting and they can establish rules and procedures for their own organization. The court concluded that, under § 7-1-104(4), the General Assembly recognized that a vacancy in nomination might occur for “other good and legal cause,” and further concluded Ivy had been found guilty of battery in the third degree, a misdemeanor, and the Republican Convention could appropriately withdraw Ivy’s nomination.

Arkansas law is well-settled that the party chairman and secretary do not have the judicial authority to determine that a candidate is ineligible to hold public office, nor can they refuse to place the candidate’s name upon the ballot. Ridgeway v. Catlett, Chairman, 238 Ark. 323, 379 S.W.2d 277 (1964); Irby v. Barrett, 204 Ark. 682, 163 S.W.2d 512 (1942). In Ridgeway, E. T. Ridgeway qualified as a candidate for the nomination for the office of Governor in the Democratic Primary. The Democratic Committee learned Ridgeway had been convicted of a felony and notified him that his name would not appear on the ballot. Ridge-way filed suit for a writ of mandamus to compel the party officials to perform the ministerial duty of certifying his name for inclusion on the ballot. The trial court denied Ridgeway relief, but this court reversed.

In reversing, the Ridgeway court conceded that Ridgeway was ineligible to hold public office under the Arkansas Constitution. Nonetheless, the court held the procedure followed by the Democratic Party officials was improper in preventing his candidacy. The Ridgeway court relied in part upon the earlier holding in Irby which concluded the party chairman and secretary do not have the judicial authority to determine that a candidate is ineligible to hold office and for that reason to refuse to place the candidate’s name on the ballot. (Our emphasis.)

The Ridgeway court quoted from the Irby decision as follows:

If the chairman and secretary of the committee have the right to say that because of the decision of this court petitioner is ineligible to be a candidate for office, they may also say, in any case, that for some other reason a candidate is ineligible. For instance, it has been held by this court in many election contests that one must pay his poll tax; that he must do so after proper assessment in the time and manner required by law, and that otherwise he is not eligible even to vote, and unless he were a voter he could not hold office. So with other qualifications, such as residence. May this question be considered or decided by the chairman and secretary of the committee? It may be that such power can be conferred upon them by laws of this state or the rules of the party; but it is certain that this has not yet been done. If this can be done, and should be done, the door would be opened wide for corrupt and partisan action. It might be certified that a prospective candidate has sufficiently complied with the laws of the state and the rules of a political party to become a candidate, and, upon further consideration, that holding might be recalled; and this might be done before that action could be reviewed in a court of competent jurisdiction and reversed in time for the candidate to have his name placed on the ticket. It would afford small satisfaction if, after the ticket had been printed with the name of the candidate omitted, he have a holding by the court that the name should not have been omitted. (Emphasis added.)

The Ridgeway court cited other compelling language, quoting from a Kentucky decision, Young v. Beckham, 115 Ky. 246, 72 S.W. 1092, as follows:

If the committee can say who is not eligible to be nominated as party’s candidate for office, they can, on the very last day before the ballots are printed, refuse to allow a person’s name to go on the ballot upon the pretext that he is ineligible, and thus prevent his name from' appearing upon the official ballot. They could thus destroy one’s prospect to be nominated, for the rules of procedure in courts are necessarily such that no adequate relief could be afforded the party complaining, if at all, until after the primary election had been held. If the committee or governing authority has the authority to decide the question as to who is eligible to hold an office or be a candidate before a primary election, then they would have a discretion and judgment to exercise that could not be exercised by a mandamus. The most that could be done by such a writ would be to compel them to act upon the question. (Emphasis added.)

In our more recent case of State v. Craighead County Bd. of Election Comm’rs, 300 Ark. 405, 779 S.W.2d 169 (1989), we reviewed the earlier Ridgeway and Irby decisions and fully recognized the dangers posed by permitting party committees the discretion to determine if a candidate’s name should go on the ballot. This court declared that an action for mandamus and declaratory relief is the proper method of enforcing the right set out in Ark. Code Ann. § 7-5-207(b) which specifically prohibits the inclusion of an ineligible candidate on an election ballot.¹

The foregoing decisions and underlying rationale apply to the situation before us now. The General Assembly has provided no procedure for state and county party committees or conventions to make a judicial determination concerning whether a party nominee should be certified. To do so in the case here means the party officials would investigate, make factual determinations and determine whether those factual findings constitute “other good and legal cause” under § 7-1-101(4). Such undertaking requires a judicial tribunal, not a political one. Besides, to reiterate, § 7-1-101(4) only defines the term “vacancy in nomination” — it in no way empowered political committees with a procedure to cause or create a vacancy. Here, the lower court incorrectly deferred to the state party convention’s actions and discretion, exercised under § 7-1-101(4), in permitting the convention to decide Ivy was ineligible. In conclusion, we mention the trial court’s reliance on the cases of Tashjian v. Republican Party of Connecticut, 479 U.S. 208 (1986), and Duke v. Cleland, 954 F.2d 1526 (11th Cir. 1992). The trial court cited these two cases as ones that addressed the First Amendment right of association and the proposition that a political party has a right to identify with and select those candidates that best reflect political party preferences. The lower court concluded that the General Assembly intended to follow this right of association proposition when it passed the “vacancy in nomination” provision set forth in § 7-1-101(4), thereby allowing a party to vote not to certify a party nominee for “good and legal cause.”

While we agree with the federal decisions cited and the First Amendment tenets expressed in those holdings, we disagree they are applicable here.² Under Arkansas’s election laws, a political party can remove a nominee for good and legal cause, but the party is merely required to petition the circuit court in so doing. We set out the reasons for such a procedure in the Craig-head County case mentioned above. Because the reason (good and legal cause) for vacating a nomination is defined by state law, it is compelling that a judicial, rather than a political, determination be made as to whether the facts correctly invoke § 7-1-104(4) and its definitional standard. The primary difference between these federal cases, however, is that the Republican Party is not deprived of its right of association since state law provides a means to exercise that right.

For the reasons above, we hold the trial court was in error, and should enter a writ of mandamus forthwith compelling the respondents to certify Dan Ivy the party’s nominee for the November 8, 1994 General Election.³

Writ granted.

1 Section 7-5-207 (b) reads as follows:

(b) No person’s name shall be printed upon the ballot as a candidate for any public office in this state at any election unless the person is qualified and eligible at the time of filing as a candidate for the office to hold the public office for which he is a candidate, except if a person is not qualified to hold the office at the time of filing because of age alone, the name of the person shall be printed on the ballot as a candidate for the office if the person will qualify to hold the office at the time prescribed by law for taking office.

2 Other distinguishing points can be made concerning the two federal cases cited. For example, the Tashjian holding involved the fundamental right to vote and a state law prohibited the Connecticut Republican Party by party rule from allowing independent voters to vote in its primaries. In the case here, no party rule is in conflict with statutory law. The Duke case, on the other hand, upheld the right of the Republican members of the Georgia Presidential Candidate Selection Committee to exclude Duke’s name from the ballot. There, however, Georgia’s state law plainly allowed the party’s committee members to agree to delete a candidate’s name from the ballot. As discussed in the body of our opinion here, Arkansas’s statutory law is quite different.

3 We note that, in their motion to dismiss below, respondents alleged that Ivy failed to join the secretary of the Republican Party as a party in this matter. This point seemed to fade at the hearing, and the trial court did not mention the issue in its order. Nor is it pursued on appeal since respondents fail to mention the point in their responsive briefs or cite any authority to support the point. Thus, we do not address it in this per curiam decision.