You might have already heard this through the grapevine, but, earlier this week, Craighead County Judge Marvin Day announced that he was running for Mayor of Jonesboro following the announcement that current Mayor Harold Perrin would not seek reelection in 2020 due to health reasons. Day already has his Facebook campaign page changed over to “Marvin Day for Mayor,” albeit with all of the old “Marvin Day for County Judge” pictures and signs on it. The Jonesboro Sun also ran a story on his announcement in the past few days.
Considering Day is Perrin’s hand-picked successor, it would seem that he has a great shot of winning that race and becoming Jonesboro’s next mayor. So…that’s that, I guess.
/looks at KAIT story a second time
Wait…what’s this?
Oh. OH!
Look, I realize that a lot has happened since November 2016. Honestly, depending on where you come down on racist clownshows masquerading as a presidential administration, about the only thing that people remember from that election is that this state and this country either (a) lost their collective minds and selected the least-qualified human being to ever run for President on a major party ticket or (b) mAdE AmeRiCa gReAT aGaiN.
In that kind of environment, you might be forgiven if you forgot that Arkansans also passed Amendment 95 in November 2016. That amendment, which passed by a more-than-two-to-one margin1 and took effect on January 1, 2017, did a few things related to county-level elected offices.
Most notably, it said that anyone elected to one of ten enumerated county offices in 2016 would serve the traditional two-year term, but anyone elected to those positions in 2018 or later would serve four-year terms. That first four-year term in 2018 is what Day ran for and was elected to.
Additionally, however–and much more importantly for our purposes in this post–Amendment 95 also created Article 7, section 53, to the Arkansas Constitution, which states:
A person elected or appointed to any of the following county offices shall not, during the term for which he or she has been elected, be appointed or elected to any civil office in this state:
(1) County judge;
(2) Justice of the peace;
(3) Sheriff;
(4) Circuit clerk;
(5) County clerk;
(6) Assessor;
(7) Coroner;
(8) Treasurer;
(9) County surveyor; or
(10) Collector of taxes.
Now, a couple things. First, the language here in unequivocal. Where a person has been “elected [as] county judge,” he is covered by the strictures of this provision. So this applies to Marvin Day without question.
Second, the use of “shall” here is important. As the Arkansas Supreme Court has explained, when interpreting provisions of the Arkansas Constitution, “we have interpreted the word ‘shall,’ to mean mandatory and require mandatory compliance.”2 Which means that, under this provision, there is no wiggle room, and a person who is elected as county judge literally cannot be elected or appointed to a different civil office3 “during the term for which he or she has been elected.”
That last quoted bit–“during the term for which he or she has been elected”–is also important here. The “term for which he…has been elected” is January 1, 2019, through December 31, 2022. That would remain the “term for which he…has been elected” even if he resigned as county judge, meaning that there is simply no scenario wherein Day, as the duly elected Craighead County Judge since January 1, 2019, could run for any other civil office in 2020.
On the surface, it may seem odd to prevent someone from running for a new position while already in an elected office.4 Heck, maybe it is odd. But a constitutional provision can be “odd” and still be perfectly valid and enforceable.
The people of Arkansas overwhelmingly approved Amendment 95 in 2016. That amendment, including this restriction, took effect in January 2017. It was, therefore, already on the books when Marvin Day said let’s get it on and filed to run for Craighead County Judge. If he was unaware of the provision, that is on him. He certainly knew that the law had changed to make his 2018 election one of the first four-year terms for county judges in Arkansas, and he could (or at least should) have been aware of the other changes that Amendment 95 made to the county judge position.
How this will play out is unclear. I have reached out to Mr. Day for comment on this, and I will update if I get a response. In the long run, I would expect that someone up in Jonesboro will file suit to have Day removed from the ballot if he does not choose to withdraw from the race, and that hypothetical plaintiff is almost certain to win given the language of Article 7, section 53.
The only real question will be whether Day fights against this apparently inevitable outcome or if he sees that it’s time to get it together and puts his focus back on the county judge position that he wanted so badly just a few years back.
747,856 for; 317,093 against↩
Smith v. Wright, 2015 Ark. 189, at 13, 461 S.W.3d 687, 695.↩
At least a state/county/city-level civil office; a federal office likely presents different questions that are outside the scope of this post.↩
Off the top of my head, the only place I can recall that we see that in Arkansas is prohibiting sitting judges from running for a non-judicial office without first resigning the judgeship.↩