The Dobbins Dilemma, Part 1

Can the Arkansas Democratic Party Block Dwayne Dobbins’ Candidacy?

In the days ahead, I’m going to try to explain the legal issues involved in Dwayne Dobbins’ attempt to serve in the state legislature again—and the attempts of the Arkansas Democratic Party and the House of Representatives to stop him from doing so. I hope I will be able to convey what’s really going on in plain English without doing violence to the complex legal issues involved.

The background: On July 19, the Democratic Party of Arkansas passed new rules to block Dobbins from running for the state legislature (House District 39) as a Democrat. At its convention, the state Democratic party certified all winners of the Democratic primary as general election candidates, with the sole exception of Dobbins.

The party also changed its rules to ban anyone from running as a Democrat who had resigned from public office as part of a plea agreement to avoid felony prosecution. Dobbins had done just that: in 2005, he resigned as part of a plea bargain that enabled him to avoid trial for a charge of felony sexual assault against a 16-year-old girl. He was then given a fine, probation and a listing on the state’s Child Maltreatment Central Registry.

The question: Will the state Democratic Party’s actions have any effect on Dobbins’ political future?

The answer: Probably not.

It is always dangerous for lawyers to predict legal outcomes. Too often, they are wrong. Nonetheless, as Oliver Wendell Holmes famously wrote, predicting what courts will do is a big part of the lawyer’s job.

My reading of Arkansas state law is that it requires all candidates to be certified who obey the filing rules (e.g., filling out the filing forms and paying the filing fee), subject to certain very limited exceptions. Arkansas Supreme Court cases in 1989 and 1994, most famously Ivy v. Republican Party of Arkansas (1994), reproduced here, suggest that the law permits only courts, not party officials, to determine candidate eligibility.

In my opinion, the ability of party officials to declare a nomination vacant is even more limited now than it was in the 1994 Ivy case, because subsequent changes in state law now allow parties to declare vacancies only when a candidate cannot accept due to death or illness, moves out of the district or files for another office. Dobbins’ situation doesn’t fit any of these categories.

In short, courts will find that only courts, not party officials, can yank a candidate off the ballot. This makes sense if you think about it: in Irby v. Barrett (1942), the court suggested that it would be unfair to permit a party on its accord to strip a candidate from the ballot, because (I’m paraphrasing here) the party could do it at the last minute and leave the candidate no way to appeal the decision.

If you want to get technical about it, the right way for a party to get a candidate off the ballot is to file a motion for declaratory judgment and writ of mandamus, complaining to a court that the candidate has not followed party rules and asking the court to take action.

Even this might not work in Dobbins’ case: he’s already paid his money and followed the party’s rules, and courts would be loath to go back and rewrite the deal he struck with the party. In short, the party alone likely can’t knock Dobbins off the ballot.

Next: OK, so now we know that the Democratic Party of Arkansas can’t block Dobbins from being a candidate. Assume he wins: Can the Arkansas House of Representatives block Dobbins from being a legislator?

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