LITTLE ROCK — Fred Smith was never eligible to run for the state House under the Democratic Party banner this year because he was a convicted felon when he filed for the race, a lawyer for the party told a judge Thursday.
Smith’s lawyer countered that the former state representative was never ineligible to file because he was never actually sentenced on a theft charge that forced him to leave the Legislature last year.
Pulaski County Circuit Judge Mary McGowan heard arguments but did not immediately rule Thursday in a lawsuit challenging the eligibility of the Democratic state House candidate.
Smith, a former Harlem Globetrotter from Crawfordsville, filed March 1 to seek the Democratic nomination for the District 50 House seat. He was previously elected to the seat in 2010 but resigned early in the 2011 legislative session after being found guilty in Chicot County Circuit Court of theft of property delivered by mistake.
Arkansas law states that a convicted felon is ineligible for public office in the state.
Independent reporting for Pine Bluff & Jefferson County since 1879.
On March 14, Chicot County Circuit Judge Sam Pope ordered that the case against Smith be dismissed because Smith had successfully complied with all the terms of a one-year suspended imposition of sentence.
The Democratic Party of Arkansas is suing to get Smith’s name off the ballot. Benton Smith, attorney for the party, argued during Thursday’s hearing before McGowan that Fred Smith was ineligible to run for office on March 1.
“It’s the party’s position that, based upon the statutes, one must be eligible at the time of filing. Here, Mr. Smith was not eligible at the time of filing,” Benton Smith said.
State Sen. David Burnett, D-Osceola, Fred Smith’s lawyer, argued that Smith was eligible to file for office on March 1. He argued that Pope deferred his client’s sentencing and that a deferred sentence is not a conviction.
“He was not sentenced,” Burnett said. “He was not a convicted felon and is not a convicted felon to this day. Never has been.”
Burnett told McGowan she likely will have to look at court cases in other states to find any rulings that define a deferred sentence. Rulings that address the issue are “hard to find,” he said.
Secretary of State Mark Martin is a defendant in the lawsuit along with Fred Smith. Martin denied a request from the Democratic Party to keep Fred Smith’s name off the ballot after Smith filed in the closing minutes of the filing period.
Martha Adcock, attorney for the secretary of state’s office, said the office denied the request because it believed the issue should be decided in court and did not want to deny Fred Smith his constitutional right of due process.
Adcock also told McGowan that absentee ballots for the state’s May 22 primary would be distributed Friday, with Fred Smith’s name on them. McGowan could order that those ballots not be counted if she rules in the Democratic Party’s favor, Adcock noted.
Fred Smith did not speak at the hearing and declined comment afterward.
McGowan did not indicate when she would rule in the case.
Rep. Hudson Hallum, D-Marion, was elected to the District 50 seat after Fred Smith resigned and is seeking re-election. No Republican filed for the office.