Judge orders special election, but governor appeals

Steve Brawner

A judge ruled Wednesday, Oct. 22, that Gov. Sarah Huckabee Sanders must call a special election to fill the vacant state Senate District 26 seat before next year’s fiscal session.

Sanders filed an appeal with the Arkansas Supreme Court that night, which leads to two questions. First, how does the ruling affect another more recent vacancy? More importantly, will either election actually happen before the session occurs?

Pulaski County Circuit Judge Patricia James wrote that failing to fill the seat before the state Legislature meets in fiscal session starting April 8 amounts to “taxation without representation.” It would violate the U.S. Constitution’s prohibition against states depriving individuals of “life, liberty, or property, without due process of law.” It also would violate the Arkansas Constitution’s prohibition against any power interfering with citizens’ right to vote.

“There would be far-reaching ramifications if the Governor were allowed to deny duly elected representation for the citizens of the State of Arkansas,” James wrote.

The Arkansas Constitution requires the governor to set a special election date when a vacancy occurs, as happened Sept. 2 with the death of Sen. Gary Stubblefield, R-Branch. State law further says the election should happen “as soon as possible” and within no more than 150 days. However, it allows the governor to set the date later if that 150-day mark is “impracticable or unduly burdensome.”

Sanders initially set the special election date to coincide with the next general election on Nov. 3, 2026, which would be 436 days after the vacancy occurred. Later that day, she moved the date to June 9, which would be 279 days afterward.

That would be far longer than other recent vacancies, according to an unpublished memo from the Senate legal counsel to Sen. Bryan King, R-Green Forest, which I accessed on the Arkansas Advocate news outlet. Out of 17 legislative special elections called since 2011, nine occurred within 150 days. The rest ranged between 158 and 189 days.

In a press release, Sanders said her initial reasoning was “to save taxpayer money, streamline the process for election officials, and allow for as much voter participation as possible.” She said she shortened the vacancy in response to community feedback.

It’s noteworthy that the vacant district includes the part of Franklin County where Sanders has proposed building a 3,000-bed prison. There is significant local opposition, and Stubblefield was an outspoken opponent. He was one of the no votes who prevented the prison funding appropriation from achieving the required 75 percent majority in this year’s legislative session. Lawmakers will vote on appropriations again in the fiscal session next year.

Franklin County resident Colt Shelby brought the lawsuit.

In her eight-page ruling, James wrote that the law gives the governor discretion to set the special election dates, including after the 150-day timeframe. At the same time, that power is not “absolute.”

She wrote that local election officials from Franklin and Logan counties said it would be possible to coincide a special election with the already scheduled primary elections March 3, “although it would be difficult.” She did not specifically order Sanders to call a special election for that date. But it would seem to make the most sense.

This is not the only vacant seat. House District 70 in central Arkansas came open Sept. 30 when Rep. Carlton Wing, R-North Little Rock, resigned to become executive director of Arkansas PBS. Sanders set the same special election dates as she did for Senate District 26. In response, the Democratic Party of Arkansas and four individuals sued last week in the same Pulaski County Circuit Court.

It would require its own court order, but James has recused from that case. The Arkansas Times reported that she lives in that district and may want to avoid a conflict of interest.

Democratic Party of Arkansas chairman Marcus Jones said in an interview that District 70 is a swing district that Democrats can win. Wing won in 2024 by only a 51-49 margin.

Meanwhile, the governor and Attorney General Tim Griffin have appealed the decision regarding Senate District 26 to the Arkansas Supreme Court.

A ruling will be needed in time not only to have the election but also the party primaries beforehand. If it takes too long, holding the special election before the Legislature meets next April will go from difficult to impracticable to impossible.

We’ll see how quickly the wheels of justice turn. Regardless, the fiscal session definitely starts April 8. And prison space is going to be built — somewhere.

•••

Steve Brawner’s column is syndicated to 21 outlets in Arkansas. Email him at brawnersteve@mac.com.