Fewer than 10 undecided votes stand between state Rep. Mickey Gates staying in office or becoming the first member of the Arkansas House of Representatives to be expelled from the body in more than a century, according to an Arkansas Democrat-Gazette survey of the 100-member body.
Gates, a Republican from Hot Springs, has so far refused calls from a wide spectrum of Republican leaders to step down over his July "no contest" plea related to a charge that he failed to pay state income taxes.
On Friday, before the House votes on whether to remove him, Gates plans to make his case to colleagues for why he should remain in his seat.
At least 59 House members told the newspaper publicly or anonymously that they planned to vote to expel Gates. According to the Arkansas Constitution, it takes 67 votes to remove him.
The Democrat-Gazette began polling the House membership in mid-September after House Speaker Matthew Shepherd, R-El Dorado, filed a resolution to expel Gates and then set the date for a caucus of the whole to consider the matter.
An initial poll, published Sept. 22, showed that 54 members planned to vote to expel Gates, while 33 representatives said they were undecided. Two refused to say how they planned to vote, and nine could not be reached. (The House has a vacancy.) Only Gates said he planned to oppose his expulsion.
In follow-up conversations last week, five members who had previously been undecided said they planned to vote to remove Gates. Others said they would wait and listen to Gates' defense before making up their minds.
"Just personally, I needed more time," said Rep. Danny Watson, R-Hope, explaining his decision to support expulsion after having previously been undecided. "I had no one coerce me at all. I'm not going to do that. I'm not a kid. But we have to follow the law."
In explaining their decision-making, many representatives said they were studying the legal process of removal, which is mostly untested. The last member expelled from the House, in 1837, was removed under a constitution predating the current one, which was adopted in 1874.
Gates has already threatened a legal challenge if he is expelled. He also plans to seek re-election for a fourth term next year, in defiance of a 2019 law prohibiting those who plead no contest to certain crimes from running for office. Gates and his attorney say the law is unconstitutional. The candidate filing period is Nov. 4-12. The party primaries are March 3, and the general election is Nov. 3, 2020.
The Arkansas Constitution's Article 5, Section 12 bars the Legislature from expelling a member twice for the same reason.
In anticipation of those questions, Shepherd, who is an attorney, said he has gone over the matter with House Parliamentarian Buddy Johnson and with House and Bureau of Legislative Research legal counsel "to make sure we are handling it the right way."
One set of questions came last month from Reps. Joe Jett, R-Success, and John Payton, R-Wilburn, who raised concerns that state law requires the Arkansas Claims Commission to make a nonbinding recommendation about the matter before the House considers it. After going over the matter with Johnson and the legal staff, Shepherd said the law did not apply to the situation.
The constitution, Shepherd noted, gives the Legislature the sole authority to expel members.
Several members, including Jett, said they were relying on the speaker's legal conclusions in supporting Gates' removal.
"As it stands now, I am prepared to vote for the resolution," Jett said in an interview Wednesday. Payton said he was still undecided.
Reps. Stephen Meeks, R-Greenbrier, and David Fielding, D-Magnolia, described their constituents as largely opposed to Gates remaining in the House.
Meeks, who had previously told the newspaper that he was undecided, said Thursday that he would vote to expel Gates based on that feedback.
Fielding said he is leaning toward a "yes" vote on the resolution, though he remained officially undecided. Fielding said his office was flooded with constituents urging him to remove Gates.
"I haven't had one phone call telling me not to," he said Wednesday.
Alternatively, Rep. Gayla McKenzie, R-Gravette, said questions from her constituents had left her seeking more answers about the process and the charge against Gates. She said she was undecided.
"I've found people are very thoughtful," McKenzie said. "A lot of people don't know much about it. They ask good questions."
In an interview Thursday, Gates said he had yet to begin asking colleagues for support, estimating that he had spoken to fewer than a dozen members.
"Politically, I should be doing that," he said.
Much of Gates' defense rests on the fact that his no contest plea to a single felony charge of failing to file a state income tax -- his first offense -- will not result in a conviction if he completes the terms of his probation and pays the state $74,789 in back taxes. Gates had originally been charged with failing to pay state income taxes from 2003-17, and he was alleged to have owed more than $250,000.
The three-term lawmaker has said his prosecution is a form of payback for filing legislation to limit the Department of Finance and Administration's ability to audit taxpayers more than seven years in the past.
A number of Gates' colleagues said they were willing to entertain Gates' defense, while also reviewing the facts of his case for themselves.
"I'll let Mr. Gates give his explanation before I make up my mind," said Rep. Douglas House, R-North Little Rock.
Rep. Denise Garner, D-Fayetteville, echoed other members in expressing the sentiment that "no one is above the law." She said she would hold off passing judgment, however, until hearing from Gates.
"I want to see what happens in the meeting. I want to make sure we hear both sides," Garner said. "If he didn't pay his taxes, then he needs to be removed from office."
Although Gates will be allowed to present his defense from the well Friday, Shepherd said that Gates' attorney, Jeff Rosenzweig, will not be allowed to speak on the House floor.
The caucus meeting will begin at noon Friday in the House chamber. Shepherd said he was not sure how long debate on the resolution would last.
Neither Gates nor Shepherd would offer a prediction on how the vote will go. Gates added that he had no ill will for Shepherd or members who vote to remove him, saying he understood the pressure that many colleagues feel after his plea.
"Politics is a dirty business," he said Thursday. "A lot of times, people don't have a stomach for it because it just gets nasty."
If the House votes to expel Gates, Shepherd said, there will be some process to inform Gov. Asa Hutchinson of the House's action.
The governor then would have to set a special election to fill the vacancy in the House.
Hutchinson, Attorney General Leslie Rutledge and Lt. Gov. Tim Griffin have urged Gates to resign.
Gates' tax issues came at a time when the Legislature has been grappling with several ethics scandals and federal corruption investigations that ensnared six former state lawmakers. Two of the legislators resigned when they were charged.
A Section on 10/07/2019