## Facts

- Ronald Whitley and James Cranford were opposing candidates in the May 21, 2002 Democratic preferential primary for Justice of the Peace, District 4, Hot Spring County.
- At two polling sites, some voters received ballots that omitted the Justice of the Peace race.
- At the Fenter-B polling site, all ballots omitted the race; 76 voters cast those ballots.
- At the Ward 4 polling site, ballots initially omitted the race; 107 voters voted before corrected ballots were provided.
- In total, 183 voters cast ballots that did not include the contested race and therefore could not vote in it.
- Among ballots that included the race, Whitley received 299 votes and Cranford received 244 votes, a 55-vote margin.
- Cranford brought an election contest seeking to void the election; the circuit court voided the primary for that office, finding the omissions deprived voters of participation and made the result uncertain.
- Whitley appealed and also challenged the denial of his postjudgment motion for a new trial after learning that no new election would be called.

## Issues

1. Whether the circuit court properly voided the primary election for Justice of the Peace, District 4, where 183 voters received ballots omitting the race, despite the absence of fraud and the inability to determine how those voters would have voted.
2. Whether the circuit court abused its discretion in denying Whitley’s motion for a new trial based on the later-discovered fact that no new election would be set.

## Decision

- The Arkansas Supreme Court affirmed the order voiding the election.
- The court held that omitting the race from 183 ballots disenfranchised those voters and rendered the outcome uncertain because the number affected exceeded the 55-vote margin.
- The court rejected the argument that fraud is required to void an election; the controlling inquiry is whether the election was “free and equal” and whether the irregularity made the result uncertain.
- The court affirmed denial of the motion for a new trial, finding no abuse of discretion; the absence of a subsequent election did not alter the correctness of voiding the tainted election.

## Legal Principles

- Arkansas election contests include (1) actions to declare a candidate the winner and (2) actions by a qualified voter to void an election as not free and equal and therefore uncertain in outcome.
- Under Ark. Const. art. 3, § 2, elections must be “free and equal”; a court may void an election when irregularities deprive voters of equal participation and render the result uncertain.
- An election need not involve fraud to be voided; unintentional administrative errors can justify voiding if they create outcome uncertainty.
- Uncast votes cannot be reconstructed: voters may testify that they were prevented from voting, but may not supply how they would have voted to alter totals; “votes that were never cast may not be counted.”
- Courts are reluctant to void elections and do so within narrow limits, but will intervene when the constitutional guarantee is violated and the result cannot be reliably determined.

## Conclusion

Because 183 voters were deprived of the opportunity to vote in the contested race and that number exceeded the margin of victory, the election’s outcome was uncertain and the free-and-equal elections guarantee required voiding the primary; the denial of a new trial was affirmed under abuse-of-discretion review.


Whitley v. Cranford, 119 S.W.3d 28 (Ark. 2003)