OZARK -- A Franklin County circuit judge Friday dismissed a lawsuit brought by legislative candidate Jody Harris, saying she filed it in the wrong court.
Harris, a Republican, filed a lawsuit to throw out the primary election results that show her losing to Chad Puryear by seven votes.
The race in House District 25 took place in three counties: Crawford, Franklin and Washington. The lawsuit disputes the count by the Crawford County Election Commission. The case was filed in Franklin County, citing Arkansas Code 7-5-801(b). The suit argued an election contest of a district office may be brought in any county in the district.
Circuit Judge Dennis Sutterfield agreed Friday with Alec Gaines of Little Rock, an attorney for Puryear, who argued the law goes on to state such cases should be filed in the county where the wrongdoing is alleged to have occurred.
"That's what it says in plain and simple English," Sutterfield said from the bench at the 9 a.m. hearing in Ozark.
"There has been no wrongdoing alleged in Franklin County," Sutterfield said, adding he was frustrated in ruling without getting to the merits of the case, but "I don't have any right to play fast and loose with the law."
Harris should have filed her suit in Crawford County, he ruled.
Sutterfield announced his intention to dismiss the case within the first 10 minutes of the half-hour hearing but told Gaines and fellow defense counsel to draft a court order by the end of the day so he could review it over the weekend and file it no later than Monday. Harris and her attorney, Clint Lancaster of Benton, need the order filed as soon as possible so they can appeal, Sutterfield said.
Lancaster said after the hearing that his client will definitely and immediately appeal to the state Supreme Court.
Time is of the essence, the judge said in the hearing, because the deadline for filing a new suit in Crawford County passed. Time to try the case on its merits is running out if the state Supreme Court reverses his decision and orders a trial on the case's merits, he said.
The general election is Nov. 8.
The deadline for filing a lawsuit challenging election results is 20 days after a county certifies the result, making the deadline June 23 in Crawford County, according to arguments at Friday's hearing.
Certified results in all three counties together show Puryear winning 2,211 votes to Harris' 2,204 in the May 24 primary. Both candidates live on family farms -- Puryear near Hindsville and Harris near Fayetteville. This was the first race for both candidates.
Sutterfield allowed Lancaster to argue whether the judge could transfer the case to Crawford County without any appeal, with debate on that taking up the rest of the hearing. The hearing ended shortly after Sutterfield ruled he could not transfer the case.
"We're disappointed we didn't get to reach the merits of the case, but we believe the judge ruled in accordance with the law," said Crawford County attorney Gentry Wahlmeier, who represented the election commission and its members. The commission would have won its case at trial and shown no wrongdoing, he said. Commission Chairman Bill Coleman deferred all comment to Wahlmeier since an appeal is pending, he said
The suit disputed the counting of absentee ballots in Crawford County. By law, the suit contended, absentee ballots should have been counted first but weren't counted until other results were in and until a pro-Harris poll-watcher demanded it. Then they were mishandled while being counted, according to the suit. Those absentee ballots made the difference in the race, the suit contended.
The lawsuit noted the election commission's chairman is the brother of Rep. Bruce Coleman, R-Mountainburg, who didn't seek reelection in the district and who declared his support of Puryear. Bruce Coleman donated $1,000 to Puryear's campaign, finance records show.
Mike Moxley, another member of the three-member Crawford County Election Commission, is Bruce Coleman's son-in-law, according to the suit.
After Harris' poll-watcher demanded the counting of absentee votes, "the defendant election commissioners left the count center, went to another building and later returned," Harris' suit said.
When they returned, Bill Coleman said the commission had "found" 13 absentee ballots that had been cast, but not counted. Commissioners then counted the absentee ballots at approximately 11:15 p.m. on election night, according to the suit.
Harris requested a recount, originally set for the next day after the primary.
"Upon arrival, she found that the absentee ballots cast by the voters were not present at the recount," the suit said.
Coleman told Harris those ballots were at his home and copies had been made of those ballots that, because of being folded or other flaws, did not run through the mechanical vote tabulator.
Harris protested, and the recount was delayed until June 1. The commission certified the results, showing Puryear as the victor June 3.
Chad Puryear
Jody Harris (left) and Chad Puryear