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A recent investigation by state investigators with the Arkansas State Board of Election Commissioners has concluded that members of the Baxter County Election Commission violated state election laws during 2022’s primary season.
The State Board of Election Commissioners (SBEC) opened an investigation into the Baxter County Election Commission (BCEC) after a complaint was filed by the Mountain Home Observer after it was discovered that Baxter County Election Commissioners Gary Smith and Judy Garner had opened a ballot in secret alongside Baxter County Republican Committee Chairman Rick Peglar.
The results of that ballot were then communicated to Baxter County JP Shannon Walker, who was waiting to learn if she would be going into a runoff election against Vincent Anderson or Sheila Wingard.
The complaint, which was filed by the Observer after exposing the secret ballot meeting, was signed under penalty of perjury.
When confronted about the meeting Commissioner Garner, who servers as BCEC’s Chairman, admitted to opening the ballot alongside the others, before telling the Observer to send further questions to the commission’s lawyer. Peglar was confronted about his part in the meeting but offered little more than personal insults when asked questions.
In response to the investigation, the State Board of Election Commissioners has issued letters of warning to Garner and Smith. Bodenhammer was not apart of the secret ballot canvassing and was dismissed from the investigation by the SBEC.
“This letter is to inform you that your complaint filed on June 8, 2022, has been resolved, pursuant to AC.A. § 7-4-120, by issuing Letters of Warning to Chairman Judy Garner and Commissioner Gary Smith of the Baxter County Election Commission, as well as dismissing Commissioner Bob Bodenhamer. These warning letters find that Chairman Garner and Commissioner Smith violated civil election law regarding the canvassing of an absentee ballot at a time and location not reflected in the notice of election and, therefore, not allowing the canvass to be open to the public.”
Factual Findings of the SBEC Staff Investigation
According to the SBEC Staff Investigation, the investigation found that Baxter County Board of Election Commissioners Chairman Judy Garner and Commissioner Gary did review and count a “UOCAVA ballot” outside of a public meeting and at a time and location not reflected in the Notice of Election.
Investigators said that Garner “elaborated to staff that this was originally a workday in which CBEC members were planning to prepare for the runoff election among other tasks.”
She further stated the workday, it was determined that a single UOCAVA voted had the potential to cause a tie for second in the race for the Republican nomination to seek the JP 10 seat because there was a one vote margin between second and third place.
According to the report, “the two officials present asked the County GOP Chairman, Mr. Rick Peglar to be present to serve as a witness.”
Garner, Bodenhammer and Peglar all confirmed to SBEC investigators that the ballot was canvased. From here the investigators report begins to argue over whether the law was broken.
State investigators argued, “because the canvassing of an absentee ballot was not a function which is required by the commission and the individual commissioners were filling the roll of subordinate election officials, staff does not see that the law explicitly requires that this action be done in the context of a meeting.”
Further they state, “It is the staff’s recommendation that, because CBEC members in this case were acting as absentee ballot canvassers under Ark. Code Ann. § 7-5-416(b), and the investigation showed that they did not engage in any functions which would fulfill a duty assigned to the CBEC by law, the actions in question were not clearly ‘official business’ of the CBEC.”
At the same time, staffers found issue with public access requirements for canvassing.
That portion of the report states, “staff has determined that the ultimate issue of the complaint is whether the BCBEC members who canvased the ballot complied with the notice and public access requirements for the canvassing of absentee ballots.”
Arkansas law requires the processing and counting of absentee ballots be open to the public. Ark Code § 7-5-416(a)(6).
“The investigation further found that the notice of election did not reflect any ballot canvassing or counting that day. Consequently, staff find that the SBEC has probable cause to conclude that Chairman Garner and CBEC member Smith did violate Ark. Code Ann. § 7-5-202(a)(1)(F) & 7-5-416(a)(2) & (6).
Before recommending a sanction for Garner and Smith, staff investigators stated that “the impetus to meet tight vendor deadlines and prepare for the runoff in a timely manner was the sole reason for the ballot being canvased at that time. Staff also notes the candid acknowledgement by the Chair of the error and commitment to not repeat the error in the future as relevant.”
The letters of warning for Garner and Smith can be found below.