LITTLE ROCK, Ark. (AP) — Election officials said Wednesday that they won't block a former Arkansas lawmaker who resigned after a felony theft conviction from running for his old seat.
Secretary of State Mark Martin's office denied the state Democrats' request to withdraw former state Rep. Fred Smith's candidacy for the Democratic nomination for an east Arkansas House seat and said a court order would be the only way to keep him off the May 22 primary ballot. State Democrats said Smith was ineligible to run because of the conviction and asked Martin's office to withdraw his candidacy.
"The remedy for your political party — if it wishes to challenge Mr. Smith's certification — is to proceed in circuit court, present the evidence, provide Mr. Smith his constitutional rights to due process and equal protection to challenge such evidence, and have a court of competent jurisdiction determine the outcome," Martha Adcock, director of elections and associate counsel, wrote in a letter to the party's chairman.
Smith, a former Harlem Globetrotter, resigned from the House last year after a judge found him guilty of theft of property delivered by mistake. His attorneys told the party last week that he was in the process of getting his conviction cleared, but officials say they can't find any record of an expungement.
Democratic Party spokeswoman Candace Martin said the party was reviewing the letter and would determine what its next step would be, but said earlier that a court order was likely the only option remaining if election officials kept Smith on the ballot.
Election officials had initially said they didn't believe either they or the party had legal authority to block Smith from the ballot without a lawsuit. Democrats had argued that state law and a 2004 Arkansas Supreme Court case gave the party authority to determine its candidates' qualifications.
"After all, this is the party's primary and its ballot," Benton Smith, an attorney for the party, wrote in a letter earlier Wednesday.
Sen. David Burnett, an attorney representing Smith, said the ex-lawmaker had expected the matter to go to court when he refused to withdraw his candidacy at the party's request this week. Burnett declined to comment on the secretary of state's decision since he had not seen the letter.
"He feels like this is a way to restore his good name," said Burnett, D-Osceola.
Smith's cellphone voicemail was full when contacted by The Associated Press on Wednesday.
Prosecutors had charged Smith after an audit found that a school district issued a duplicate payment of $29,250 to a nonprofit group run by Smith and that both payments were cashed. He resigned from his seat the day he was convicted.
Burnett sent a proposed order on Feb. 22 to a Chicot County Circuit Judge Sam Pope and the local prosecutor that would effectively clear Smith's record.
Prosecutors have opposed the effort to expunge Smith's conviction. Pope's office said Wednesday the judge had not issued any ruling on that request.
The party on Monday told Smith he was ineligible to file and gave him until Tuesday afternoon to voluntarily withdraw his candidacy. The party also gave back Smith the $3,000 filing fee.
Smith filed to run in the primary against Rep. Hudson Hallum, who won the seat in a special election after Smith resigned last year. No Republican filed to run for the seat.
Hallum said he was disappointed with the decision to allow Smith on the ballot. Hallum said his district was hurt because it didn't have a representation last year after Smith resigned.
"It's cost us once and to let him to potentially have the opportunity to come back and do it again is disappointing," Hallum said.
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