Article 5, § 1 Controls: Arkansas Supreme Court Invalidates County Initiative Filing Statutes and Bars “Carryover” Certification of Untimely Petitions

Introduction

This commentary examines the Arkansas Supreme Court’s decision in Rachelle Evans, in her official capacity as County Clerk of Cleburne County, Arkansas v. Raymond Jay Harrison, 2025 Ark. 164 (Oct. 30, 2025). The case arises from a local initiative titled the “Hand Marked, Hand Counted Paper Ballot Ordinance of 2024.” After the Cleburne County Clerk rejected the petition as insufficient—primarily due to questions about canvasser residency—the sponsor, Raymond Harrison, obtained a circuit court order compelling the Clerk to count certain signatures, certify the petition as sufficient, and forward it for ballot placement.

On appeal, the Arkansas Supreme Court reversed, holding that the petition was untimely under Article 5, § 1 of the Arkansas Constitution and that the circuit court could not order certification for either the 2024 or the 2026 general election. Crucially, the Court declared portions of Arkansas Code Annotated § 14-14-915(b)(1) and (b)(3) unconstitutional where they conflict with Article 5, § 1, and expressly overruled longstanding precedent that had permitted a different timing regime for local initiative filings.

The questions presented include: whether a circuit court may compel certification of a local initiative petition that was not filed within the constitutional filing window; whether statutory provisions that set different filing windows or allow “carryover” certification to a later election can stand; and, procedurally, the extent to which an appellate court may raise and decide issues not fully litigated below.

Summary of the Opinion

The controlling filing window for municipal and county initiatives is mandated by Article 5, § 1 of the Arkansas Constitution: the time for filing “shall not be fixed at less than sixty days nor more than ninety days before the election at which it is to be voted upon.”
The initiative at issue was filed outside that constitutional 60–90-day window for the 2024 general election; therefore, the circuit court could not lawfully compel certification for the 2024 ballot.
Ark. Code Ann. § 14-14-915(b)(1), which requires county initiative petitions to be filed 90–120 days before the next regular election, is unconstitutional because it is in “clear and unmistakable conflict” with Article 5, § 1.
Ark. Code Ann. § 14-14-915(b)(3), which purports to “delay” certification to the following regular election if certification occurs fewer than 70 days before a general election, is unconstitutional to the extent it allows certification for an election more than 90 days after the petition was filed. No “carryover” certification is permissible if the petition was not timely filed for the later election under Article 5, § 1.
The Court expressly overruled Armstrong v. Sturch, 235 Ark. 571 (1962), Fine v. City of Van Buren, 237 Ark. 29 (1963), and Robie v. Bolton, 260 Ark. 429 (1976), which the Court said misinterpreted a nearly identical but now-repealed constitutional provision.
Because the petition was untimely for both 2024 and 2026, the sponsor had no established legal right to certification, making mandamus and injunctive relief improper.
The majority defended addressing the timeliness issue—raised during oral argument and briefed in supplemental rounds—as consistent with its constitutional duty; a dissent criticized this approach as a departure from party-presentation and preservation principles and as lacking Attorney General notice on constitutional questions.

Analysis

Precedents Cited and Their Influence

Article 5, § 1 (Arkansas Constitution): Sets the constitutional bounds for local initiative filings: petitions must be filed no earlier than 90 days and no later than 60 days before the election in which they will be voted on. The Court treats this as the controlling, self-limiting timeline that supersedes conflicting statutes.
Armstrong v. Thurston, 2022 Ark. 167: Provides the “clear and unmistakable conflict” standard used to evaluate whether a statute must yield to the Constitution. The Court found such a conflict here and therefore invalidated the statutory provisions to the extent of inconsistency.
Rogers v. Arkansas Department of Correction, 2022 Ark. 19: Reaffirms that mandamus is available to enforce an established right or the performance of a duty. Since untimely petitions cannot lawfully be certified, no established right existed to support mandamus.
Cherokee Nation Businesses, LLC v. Gulfside Casino Partnership, 2021 Ark. 183: Establishes that constitutional interpretation is reviewed de novo. The Court engaged in a fresh, independent reading of Article 5, § 1.
Apprentice Information Systems, Inc. v. DataScout, LLC, 2018 Ark. 146 and City of Dover v. City of Russellville, 363 Ark. 458 (2005): Outline the elements and standards for permanent injunctive relief. Because a clerk cannot lawfully certify an untimely initiative, the sponsor could not demonstrate actual success on the merits or liability.
Foote’s Dixie Dandy, Inc. v. McHenry, 270 Ark. 816 (1980): Discusses equitable estoppel against the government. The Court rejected estoppel here, concluding that reliance on a later-enacted statute that conflicts with the Constitution is a risk borne by the proponent.
Overruled: Armstrong v. Sturch (1962); Fine v. City of Van Buren (1963); Robie v. Bolton (1976): These decisions, interpreting a similar constitutional regime, had permitted timelines or practices inconsistent with the Article 5, § 1 filing window. The Court now rejects those frameworks to the extent they are inconsistent with the Constitution’s 60–90-day requirement.
Procedural, party-presentation authorities (dissent’s view): The dissent relies on Carducci v. Regan, 714 F.2d 171 (D.C. Cir. 1983), and Jefferson v. Upton, 560 U.S. 284 (2010) (Scalia, J., dissenting), to argue that courts should not decide unpreserved or unbriefed issues. The majority replies that appellate courts may supplement parties’ contentions, particularly where the record reveals a clear constitutional violation, and notes that the parties had additional briefing opportunities.

Legal Reasoning

The Court’s reasoning proceeds in three steps.

Constitutional Text Controls the Filing Window
Article 5, § 1 prohibits setting a filing time that is “less than sixty days nor more than ninety days before the election at which it is to be voted upon.” For the 2024 general election, the window was August 7 through September 6, 2024. The record established that the petition was filed on or before June 18, 2024, and in any event no later than August 5, 2024—outside the constitutionally permissible window. The Court therefore deemed the petition untimely for 2024.
Statutory Conflict and Partial Invalidation
Ark. Code Ann. § 14-14-915(b)(1) requires county initiative petitions to be filed between 90 and 120 days before an election. Because any filing earlier than 90 days is constitutionally forbidden, the statute’s 120-day ceiling directly conflicts with Article 5, § 1. Applying the “clear and unmistakable conflict” standard from Armstrong v. Thurston, the Court held § 14-14-915(b)(1) unconstitutional.

The Court also addressed § 14-14-915(b)(3), which “delays” certification to the following regular election when certification occurs within 70 days of a general election. The Court held this provision unconstitutional to the extent it permits a petition filed before the next election’s 90–60 day window to be certified for that later election. “Carryover” certification cannot evade Article 5, § 1’s temporal limits. Thus, the petition was also untimely for the 2026 election because it had not been filed within the 60–90-day window for that election.
Relief: No Mandamus or Injunction Where Certification Would Be Unlawful
Mandamus enforces an established legal right or duty. Because the Constitution forbids certification of untimely petitions, the sponsor had no right to compel the clerk to certify. Similarly, a permanent injunction requires actual success on the merits and a legal duty—both absent here, as the clerk cannot lawfully perform the requested act. The circuit court’s rulings were therefore reversed and the case dismissed.

The Dissent’s Concerns and the Majority’s Response

Party-Presentation and Preservation
Dissent: The Court raised timeliness sua sponte, resolved factual gaps (the exact filing date), and decided constitutional issues not litigated below, contrary to standard preservation rules.

Majority: The Court can supplement parties’ arguments, particularly to vindicate constitutional constraints with statewide implications. The timeliness issue surfaced during oral argument; the Court ordered additional briefing; both sides had an opportunity to be heard.
Attorney General Notice
Dissent: Statutes carry a presumption of constitutionality, and the Attorney General should be notified before a court invalidates a statute. The Court recently declined to reach such issues without AG notice in Lewallen v. Progress for Cane Hill (2024).

Majority: The opinion does not separately analyze AG-notice doctrine in this context; rather, it emphasizes the Court’s constitutional duty and the clear conflict between statute and constitution. Practitioners should note the tension flagged by the dissent.
Advisory Opinions and Unnecessary Holdings
Dissent: Declaring § 14-14-915(b)(3) unconstitutional was unnecessary once the 2024 untimeliness was decided; this is advisory.

Majority: The circuit court’s order, by invoking § 14-14-915(b)(3), effectively required 2026 certification. Addressing the statute’s validity and the 2026 timeline was necessary to resolve the relief ordered below.
Record Sufficiency and Fairness
Dissent: The record is silent on the date a “cured” petition was filed; the sponsor may have refiled within the constitutional window. The appellant bears the burden to bring up a record supporting reversal.

Majority: The record shows that the petition was filed on or before June 18, 2024, and in any event no later than August 5, 2024—both dates precede the 90-day mark—and the circuit court’s order was premised on counting signatures from affidavits filed August 5. On this record, the petition was untimely.

Impact and Practical Consequences

This decision resets the legal landscape for local (county and municipal) initiative petitions in Arkansas:

Exclusive Constitutional Window: Petitioners must file their local initiative petitions within the 60–90-day window before the election in which the measure will appear. Earlier filings are invalid for that election. For example:
- 2024 General Election: August 7, 2024, through September 6, 2024.
- 2026 General Election (November 3, 2026): August 5, 2026, through September 4, 2026.
No “Carryover” Certification: A petition filed outside the later election’s 60–90-day window cannot be certified for that later election based on a statutory delay mechanism. Sponsors must refile within the next election’s window.
County Clerks’ Duties: Clerks must reject filings that occur outside the constitutional window and should not rely on statutory provisions that allow earlier or “carryover” filings. Certification orders inconsistent with Article 5, § 1 cannot stand.
Statutory Revisions: The General Assembly should revisit statutes governing local initiative timing. Any filing regime must conform to the 60–90-day constitutional bracket; statutes purporting to extend beyond those limits are unenforceable.
Reliance Interests: Prior practice or Attorney General opinions suggesting compatibility of 90–120-day windows with the Constitution can no longer be relied upon. The Court expressly overruled contrary judicial precedent and rejected equitable estoppel based on reliance on the statute.
Litigation Strategy: Timeliness is now a threshold issue. Opponents of a measure may challenge a petition solely on timeliness grounds; proponents must be meticulous about the filing date as distinct from signature-gathering and sufficiency issues.
Unresolved Issues: This decision leaves open two important questions the parties originally litigated but the Court did not reach:
- Who bears the burden of proof in local initiative sufficiency challenges?
- What constitutes “residency” for paid canvassers under Ark. Code Ann. § 7-9-126(b)(3)?
Future cases will need to address these, but they will matter only if the petition is first timely filed.
Procedural Caution: The dissent’s emphasis on preservation, party-presentation, and Attorney General notice underscores a live procedural debate. Litigants should timely raise constitutional issues below and consider AG notice in any proceeding where a statute’s validity is implicated.

Complex Concepts Simplified

Filing window (60–90 days): The Constitution requires that local initiative petitions be filed not earlier than 90 days and not later than 60 days before the election in which they will appear. Filing too early or too late makes the petition ineligible for that election.
“Certification” vs. “Filing”: Filing is submitting the petition to the clerk. Certification is the clerk’s determination (and communication to election officials) that the petition is sufficient and should go on the ballot. A lawful certification presupposes a timely filing.
“Carryover” certification: A mechanism allowing a petition insufficiently timely for one election to be rolled to a later election. The Court says the Constitution forbids this if the petition was not filed within the later election’s 60–90-day window.
Mandamus: A court order compelling an official to perform a clear legal duty. It is available only when the right is “established.” If certifying the petition would violate the Constitution, there is no duty and no right to enforce.
Permanent injunction: A final court order preventing a party from doing something unlawful or compelling lawful action. It requires actual success on the merits. If the requested action (certification) is unconstitutional, success on the merits is impossible.
Clear and unmistakable conflict: The standard used to decide whether a statute must yield to the Constitution. When a statute contradicts a constitutional command, courts must apply the Constitution.
Equitable estoppel against the government: A narrow doctrine. Reliance on a statute later held unconstitutional typically does not estop the government from enforcing the Constitution.
Party-presentation doctrine: Courts generally decide the issues the parties present. Appellate courts may sometimes address issues not fully developed below, especially constitutional ones with broad consequences, but this can be controversial.

Conclusion

Evans v. Harrison establishes a clear rule for Arkansas local initiatives: Article 5, § 1’s 60–90-day filing window is controlling, exclusive, and cannot be expanded or circumvented by statute or by judicial “carryover” certification orders. The Court invalidated conflicting portions of Ark. Code Ann. § 14-14-915(b)(1) and (b)(3), reversed the circuit court’s mandamus and injunction, and expressly overruled decades-old precedent to the contrary.

Practically, petition sponsors must now time filings with precision; county clerks must measure filings strictly against the constitutional window; and the General Assembly will need to align statutory frameworks with this decision. While the dissent raises serious concerns about preservation, process, and Attorney General notice—matters practitioners should heed—the majority’s holding is a watershed clarification: timeliness under Article 5, § 1 is a non-negotiable prerequisite for local initiative certification in Arkansas.