Judge OKs fill-in House nominee

Ozark’s Capp won’t be on ballot but votes for Gossage hers

OZARK -- A judge dismissed a lawsuit Thursday that sought to challenge the constitutionality of a convention held last week to replace Bill Gossage as the GOP nominee in House District 82 after Gossage, R-Ozark, gave up the seat to take a job in the governor's office.

Franklin County Circuit Judge Dennis Sutterfield listened to arguments from attorneys for an hour before ruling that filling a vacancy in nomination by convention, and not by a special election, was not unconstitutional because filling such vacancies are not addressed in the Arkansas Constitution.

Ozark attorney Lonnie Turner, on behalf of Franklin County resident J.D. Rice, filed suit last week against Gov. Asa Hutchinson, the Democratic and Republican parties of Arkansas and the county clerks and election commissions of Franklin, Madison and Crawford counties on the grounds that Article 5, Section 6, of the Arkansas Constitution required a special election to fill vacancies in the state House and Senate.

The Republican Party of Arkansas held a convention in Ozark last week during which Ozark attorney Sarah Capp was elected over Bobby Ballinger by a vote of 25-10 to replace Gossage as the party's nominee.

Gossage, the only candidate for the District 82 seat -- no other party fielded a candidate -- on the Nov. 8 ballot, resigned Aug. 30 so he could become Hutchinson's deputy chief of staff for external operations.

During the convention, state GOP Chairman Doyle Webb said Gossage's name would remain on the ballot but that votes cast for him would be counted for Capp. Notices would be placed at polling places to alert voters that a vote for Gossage would be counted for Capp, he said.

At the outset of the hearing Thursday, Sutterfield addressed a motion by Assistant Attorney General Colin Jorgensen to dismiss for improper venue Turner's request that Hutchinson be served with a writ of mandamus requiring him to call, under Article 5, Section 6, a special election to the fill the vacant House seat.

A writ of mandamus is a court order for a government official to fulfill his official duties.

Sutterfield said he agreed with Jorgensen's argument that any legal action against the governor had to be filed in Pulaski County, where the governor resides. He dismissed Hutchinson from the portion of the lawsuit requesting the writ of mandamus.

The rest of the hearing concerned whether there was a distinction between filling a vacancy in office and filling a vacancy in nomination and, if so, whether the Arkansas Constitution required a special election to fill a vacancy in nomination.

Turner argued that a special election was required. He said there was no distinction between vacancies in office and nomination. Gossage was a state representative who resigned, creating a vacancy in his office for which an election would be needed to fill.

He quoted Article 5, Section 6, of the Arkansas Constitution: "The governor shall issue writs of election to fill such vacancies as shall occur in either house of the General Assembly."

Democratic Party attorney Chris Burks took Turner's side and argued a vacancy in nomination was a "legal fiction" created by the Legislature, and that the Arkansas Constitution did not provide for a vacancy in nomination.

The statute governing the filling of vacancies in nomination, Arkansas Code Annotated 7-7-104, was politics, he said. The Arkansas Constitution was the law.

He also said the Democratic Party always favored elections over a small group of people meeting in a room and naming a nominee.

George Ritter, attorney for the state Republican Party, said voters will be able to vote in the District 82 race in November because Gossage's name will be on the ballot even if the votes will be counted for Capp.

Ritter also said there was nothing in the Arkansas Constitution that required an election to fill a vacancy in nomination, and that there was no dispute the nominating process in the convention last week followed procedures set out in the law.

Jorgensen argued that there is a distinction between vacancies in office and nomination. He said while the Arkansas Constitution provides a procedure for vacancies in office, it is silent on vacancies in nomination. ACA 7-7-104 fills that void, he said.

The statute says the governor has the option to call for a convention to fill vacancies in nomination or a special election if it can be completed at least 70 days before the general election. There are 39 days before the election as of today.

Jorgensen wrote in a motion filed Wednesday to dismiss the lawsuit that if a special election was held, the only lawful date for it would be Dec. 13. The election would be difficult, burdensome and costly and the winner would serve only a few days before the term expired.

State Desk on 09/30/2016

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