LITTLE ROCK, Ark. - Prosecuting Attorney Stephanie Potter Barrett filed suit this week in Pulaski County seeking to have her opponent in the race for a seat on the Arkansas Court of Appeals declared ineligible to run for multiple alleged violations of state election law.
The petition was filed on Barrett's behalf Wednesday by Texarkana lawyers Josh Potter and Jacob Potter. It alleges that Barrett's opponent, who filed to run on the ballot for Court of Appeals District 4, Position 2, as "Judge Emily White," is prohibited by Arkansas law from using the title judge.
Lengefeld (White) was immediately unavailable for comment early Wednesday afternoon because she was on the bench, according to a staff member in her office.
Other allegations in the petition state Barrett's opponent 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 the following 15 counties: Clark, Garland, Hempstead, Hot Spring, Howard, Little River, Logan, Miller, Montgomery, Pike, Polk, Scott, Sebastian, Sevier and Yell.
"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."
The title of "judge"
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. The petition points out that a proposed bill which 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 and her opponent 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."
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.
Legal surname
The petition points to a property deed which shows Emily L. Lengefeld and her husband, David Lengefeld, are owners of a house in Poyen, Ark., which is in Grant County. Grant County is not among the 15 counties served by Court of Appeals District 4, Position 2, for which Barrett and her opponent are running.
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, Arkansas. The petition also includes copies of affidavits of financial interest filed by Emily L. Lengefeld as evidence Barrett's opponent 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.
Barret'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 encased in a box.
"The Secretary of State has taken every precaution to ensure that a candidate has read and complies with the statute governing names as they are to appear on the ballot, even going so far as to reprint the statute on the same page, direct the candidate's attention to it, and encapsulate the statute in a bolded border," the petition states. "To violate this statute is a knowing and willful violation and cannot be attributed to ignorance or mistake."
Barrett complains that the alleged violations by Lengefeld, who filed as "Judge Emily White," have led Barrett to "redirect campaign funds and valuable time away from the campaign to an election suit."
Residency
Barrett argues in her petition that her opponent is trying to circumvent residency requirements by purchasing a house in Hot Springs, Arkansas, Hot Spring County, in February and then registering to vote there even though she actually lives with her husband and children in Poyen in Grant County, which is not among the 15 counties served by the position for which she is running.
"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 Lenegefeld 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."
Relief Sought
Barrett currently serves as the elected prosecuting attorney for the 8th Judicial District South serving Miller and Lafayette Counties and is a resident of Texarkana, Arkansas, Miller County.
In addition to Lengefeld (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 Lengefeld "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.