Arkansas Court of Appeals candidate Stephanie Potter Barrett filed suit this week in Pulaski County seeking to have her opponent in the race declared ineligible to run for multiple alleged violations of state election law.
The petition, filed on Barrett’s behalf Wednesday by Texarkana lawyers Josh Potter and Jacob Potter, alleges that Emily White, Barrett’s opponent, filed to run on the ballot for Court of Appeals District 4, Position 2, as “Judge Emily White,” though she is prohibited by Arkansas law from using the title judge.
Other allegations in the petition state White violated Arkansas law by using her maiden name rather than her current legal surname of Lengefeld and is ineligible to run for the position, because she does not reside in the 15-county jurisdiction the position serves. Arkansas Court of Appeals District 4, Position 2, serves Clark, Garland, Hempstead, Hot Spring, Howard, Little River, Logan, Miller, Montgomery, Pike, Polk, Scott, Sebastian, Sevier and Yell counties.
“The Secretary of State has taken every precaution to ensure that a candidate has read and complies with the applicable statutes when filing for office,” Josh Potter said. “Judicial Candidate Lengefeld either purposely violated the law in an effort to gain unfair advantage in this election, or she didn’t understand the law. Either way, it is very concerning for a candidate for Court of Appeals judge, whose duty is to interpret the law and apply it to the facts of a case. Court of Appeals candidate Stephanie Potter Barrett was forced to file this suit in an effort to ensure a fair election.”
According to the petition, “Lengefeld” was appointed May 22, 2018, to serve as district judge for the 33rd Judicial District serving Hot Spring and Grant counties by Gov. Asa Hutchinson. Arkansas law states that a candidate may use the title “judge” in an election only if the candidate has been elected, or if the candidate has served as an appointee for at least 12 months and is running for district judge or circuit judge, not if running for Court of Appeals or Supreme Court. The petition points out that a proposed bill that would have allowed an appointed district judge to use the title “judge” when running for the Court of Appeals was defeated in the House on April 24, 2019.
Candidates have the option of paying a filing fee to get on a ballot or of filing a petition, which includes a required number of signatures from eligible voters in the jurisdiction. Both Barrett, prosecuting attorney for Miller and Lafayette counties, and White chose to go the voter signature route.
Barrett’s petition takes issue with the forms voters were asked to sign in support of her opponent because the forms refer to the candidate as “Judge Emily White.” The petition alleges that the petition signed by voters to place the name “Judge Emily White” on the ballot is insufficient because Arkansas law doesn’t permit an appointed district judge running for the Court of Appeals to use the title “judge.”
“Furthermore, the extreme unfair advantage of using the title ‘Judge’ in a judicial campaign must also be considered,” the petition states.
A Facebook campaign page and a campaign website refer to Barrett’s opponent as “Judge Emily White.”
Attempts to contact White on Wednesday were unsuccessful.
Barrett’s petition argues that not only was her opponent’s use of the title “judge” a violation of Arkansas election law, but that she failed to use her legal surname, Lengefeld, as Arkansas election law requires.
The petition points to a property deed which shows Emily L. Lengefeld and her husband, David Lengefeld, are owners of a house in Poyen, which is in Grant County. Grant County is not among the 15 counties served by Court of Appeals District 4, Position 2.
A second deed attached to the petition as an exhibit shows Emily L. Lengefeld as the owner of property on Spyglass Point in Hot Springs. The petition also includes copies of affidavits of financial interest filed by Emily L. Lengefeld as evidence she used a different name — White — on paperwork to run for office than that shown on legal documents — Lengefeld — as her legal surname.
“Therefore the proper surname to be used on the ballot is Lengefeld and not White as presented in her petition to be placed on the ballot,” the petition states.
The dates for filing without paying a fee via the required number of voter signatures and for filing by paying a fee have passed.
Barrett’s petition notes that “directly under the line for printing the candidate’s name” on a “Political Practices Pledge” is a warning to refer to Arkansas election law, which is reprinted at the bottom of the page and enclosed in a box.
Barrett argues in her petition that White is trying to circumvent residency requirements by purchasing a house in Hot Springs in February and then registering to vote there, even though she actually lives with her husband and children in Poyen in Grant County.
“Respondent Lengefeld has received a homestead credit in Grant County, Ark., from 2010 until current at the address of (street address), Poyen, Grant County, Ark.,” the petition states. “The fact that respondent Lengefeld together with her husband and children, continue to reside in Poyen, Ark., pay personal property taxes in Poyen, Ark., own and maintain a house there, sleep there consistently on a regular basis, that the children attend school a couple of blocks from their home in Poyen, Ark., shows an intent to continue to reside in Grant County.”
In addition to White, the petition names the Arkansas secretary of state and the election commissioners for each of the 15 counties as defendants in their official capacities only. The suit is filed in Pulaski County because the Arkansas secretary of state’s office headed by John Thurston is based there.
The petition argues that the election officials should be compelled through a writ of mandamus to “refrain from certifying ‘Judge Emily White’ to the ballot and for the County Boards of Election Commissioners to not grant, or to annul ‘Judge Emily White’s’ certification,” the petition states.
The petition asks the court to issue a declaratory judgment that White “is an unqualified and ineligible candidate for the position of Arkansas Court of Appeals District 4, Position 2,” and “that this court issue a Writ of Mandamus to respondent Thurston and respondent county election commissioners ordering them to strike and/or remove respondent Lengefeld from the list of ballot eligible candidates.”
The petition argues that “Judge Emily White” should not appear on ballots in the March election or that if the name is printed on ballots, any votes cast for her not be counted.
The petition requests that a hearing to address the petition be set within two to seven days in accordance with Arkansas Rules of Civil Procedure.