In some ways, it does not matter.
Everyone except for perhaps former State Rep. Fred Smith knows he is not eligible to run for state representative due to a felony theft by receiving conviction. His attorney, State Sen. David Burnett, filed a motion to get the conviction expunged, but the prosecutor opposes it, and the judge has not yet ruled.
The question is what to do about it.
After Smith pulled a fast one by surprising state Democrats with a last minute filing, they allowed it as they were unsure of his status. He paid his fee, filled out the paperwork with the party and then the Secretary of State, and was officially a candidate.
Now, however, the Democratic Party has had time to research further and they are asking the Secretary of State to not certify Smith as a candidate. But the Secretary of State’s office does not think it has the authority.
A letter from the DPA to the Secretary of State’s office today points to a 2004 case as well as Arkansas law (ACA 7-7-201(b)(4)) as their basis for asking for Smith’s name to be removed.
“The Arkansas Supreme Court in Hill v. Carter, 357 Ark 597 (2004) provides the Secretary of State with support and the Party the authority to determine the qualifications of its prospective candidates,” wrote DPA legal counsel Benton Smith.
However, the Secretary of State’s office disagrees, saying they have relied on the certification of the DPA that Smith has met all their requirements to file and it is too late to change their mind without a chance for Fred Smith to respond.
“On March 1, 2012, you personally, certified to the Office that Mr. Smith had completed all the necessary requirements to file as a candidate for the Office of State Representative in the Democrat Preferential Primary,” wrote Secretary of State Director of Elections Martha Adcock to DPA Chairman Will Bond. “In reliance upon your certification, Mr. Smith completed the filing process, twice signed a Political Practices Pledge, and received the Candidate Information Form and Receipt for the 2012 Election Year from this Office, as filed on March 1, 2012. Consequently, Mr. Smith has a constitutionally protected interest in his own filing for office. He – and this Office – detrimentally relied upon your March 1 certification when completing the filing process within the statutory deadline.”
There is much more in the letters linked below, but for now, it appears Fred Smith’s name will appear on the ballot. However, this one is almost certain to end up in court before it’s all over.
Letter from DPA general counsel Benton Smith to Secretary of State asking them to not certify Fred Smith as a candidate.
Letter from Secretary of State Director of Elections Martha Adcock to DPA Chairman Will Bond declining to do so.