Ark. St. Bd. of Elec. Comm'rs v. PCEC

Cite as 2014 Ark. 236

SUPREME COURT OF ARKANSAS No. CV-14-371

ARKANSAS STATE BOARD OF Opinion Delivered May 16, 2014 ELECTION COMMISSIONERS AND DOYLE WEBB, ON BEHALF OF THE APPEAL FROM THE PULASKI REPUBLICAN PARTY OF ARKANSAS COUNTY CIRCUIT COURT APPELLANTS [NO. 60CV-14-1019]

V. HONORABLE TIMOTHY DAVIS FOX, JUDGE

PULASKI COUNTY ELECTION COMMISSION; LEONARD A. BOYLE, SUBSTITUTED OPINION SR., CHRIS BURKS, AND ALEX REED, IN THEIR OFFICIAL AFFIRMED IN PART; VACATED IN CAPACITIES AS THE PART. COMMISSIONERS OF THE PULASKI TEMPORARY STAY DISSOLVED. COUNTY ELECTION COMMISSION; AND LARRY CRANE, IN HIS OFFICIAL CAPACITY AS THE PULASKI COUNTY CIRCUIT/COUNTY CLERK APPELLEES

PAUL E. DANIELSON, Associate Justice

Appellants, the Arkansas State Board of Election Commissioners (“ASBEC”) and Doyle Webb, on behalf of the Republican Party of Arkansas, appeal from the Pulaski County Circuit Court’s findings of fact and conclusions of law and order of summary judgment in favor of appellees, the Pulaski County Election Commission; Leonard A. Boyle, Sr., Chris Burks, and Alex Reed, in their official capacities as the Commissioners of the Pulaski County Election Commission; and Larry Crane, in his official capacity as the Pulaski County

Cite as 2014 Ark. 236 Circuit/County Clerk (collectively, “PCEC”). In its orders, the circuit court declared that Act 595 of 2013, which amended the Arkansas election code to require that voters provide proof of identity when voting, was unconstitutional and that certain emergency rules promulgated by the ASBEC relating specifically to absentee voters were also unconstitutional because the rules were derived from the Act and violated article 3, sections 1 and 2, of the Arkansas Constitution.1 The ASBEC asserts two points on appeal: (1) that the circuit court erred in declaring Act 595 unconstitutional and (2) that its rules relating to absentee voters did not exceed the scope of its authority. Webb also asserts two points on appeal: (1) that the ASBEC was within its authority when it adopted the rules at issue and (2) that the PCEC lacked standing to bring its declaratory-judgment action. We affirm the circuit court’s grant of summary judgment in part because the circuit court was correct that the rules relating to absentee voters promulgated by the ASBEC were unconstitutional; however, we vacate its grant of summary judgment in part because the circuit court erred in declaring Act 595

1 Those sections provide: Except as otherwise provided by this Constitution, any person may vote in an election in this state who is: (1) A citizen of the United States; (2) A resident of the State of Arkansas; (3) At least eighteen (18) years of age; and (4) Lawfully registered to vote in the election.

Elections shall be free and equal. No power, civil or military, shall ever interfere to prevent the free exercise of the right of suffrage; nor shall any law be enacted whereby such right shall be impaired or forfeited, except for the commission of a felony, upon lawful conviction thereof.

Ark. Const. art. 3, §§ 1, 2.

Cite as 2014 Ark. 236 unconstitutional, as that issue was not pled or developed before the circuit court. We further dissolve the previously entered temporary stay.

On March 12, 2014, the PCEC filed a petition for declaratory judgment in the circuit court and named the ASBEC as defendants. In its petition, the PCEC averred that it was charged with overseeing and administering the counting of absentee ballots and that Crane was the custodian of absentee ballots for the county. The PCEC asserted that, some time after the General Assembly’s enactment of Act 595 of 2013, the ASBEC approved emergency changes to its Rules for Voter Identification and its Rules on Poll Watchers, Vote Challenges, and Provisional Voting. It contended that these changes were implemented by the ASBEC to establish a method, similar to the statutory procedure for in-person voters, for an absentee voter to be notified and to be given the opportunity to cure any deficiency resulting from the failure to submit the statutorily required identification with his or her absentee ballot.2 The PCEC claimed that the ASBEC’s adopted rules conflicted with both the Arkansas Code and the opinions of the Arkansas Attorney General and that the conflict caused uncertainty for the PCEC with regard to the administration of elections, specifically, its processing of absentee ballots. The PCEC further asserted that the ASBEC did “not have the authority to extend the statutory scheme that applies solely to an in person voter to an absentee voter merely by adopting a rule allowing the voter to return the required identification that was not submitted with the ballot.” It urged that the ASBEC’s authority was “one of implementation rather

2 Due to their length, the emergency rules at issue are attached as an appendix to this opinion. The appendix is attached to the official, electronically reported opinion and the opinion on file in the Supreme Court Clerk’s Office.

Cite as 2014 Ark. 236 than creation” and that the ASBEC had “exceeded its authority by adopting and implementing rules that create procedures to allow the counting of absentee ballots that should not be counted pursuant to statutes.” In its subsequent amended petition, the PCEC alleged that the rules adopted by the ASBEC conflicted with the election statutes, resulting in a violation of the separation-of-powers doctrine.

Webb was granted permissive intervention, and the circuit court entered a scheduling order in which it stated that all the parties had agreed that the matter involved a question of law that was ripe for summary judgment. In accord with the circuit court’s scheduling order, each party filed a summary-judgment motion and response. In its motion for summary judgment, the PCEC contended that the rules of the ASBEC were not in accordance with the law. Specifically, the PCEC argued that, by creating a “cure period” for absentee voters who failed to submit with their absentee ballots the identification required by Arkansas Code Annotated § 7-5-201(d)(1)(B) (Supp. 2013) (effective Jan. 1, 2014), the ASBEC’s emergency rules violated the separation-of-powers doctrine because Act 595 did not provide for a cure period or procedure for absentee voters—only in-person voters. The PCEC urged that the ASBEC had attempted to legislate for the General Assembly by promulgating its emergency rules and that it had acted outside the scope of its authority by infringing on a legislative function; consequently, the PCEC sought a declaration that the rules were invalid because they violated separation of powers. It contended that, had the General Assembly intended for absentee voters to have a period in which to cure any deficiency in the provision of the requisite identification, it could have so provided, but did not. By promulgating rules that

Cite as 2014 Ark. 236 created an otherwise unprovided-for cure period for absentee voters, the PCEC claimed, the ASBEC substituted its judgment for that of the legislature and enacted rules that were contrary to law.

The ASBEC, in its motion for summary judgment, asserted that, pursuant to Ark. Code Ann. § 7-4-101(f)(5) (Supp. 2013), it was authorized to promulgate the emergency rules because the rules were necessary to assure fair and orderly election procedures. According to the ASBEC, it had merely corrected an unfair situation in which in-person voters had been given by statute the opportunity to cure any failure to provide the identification required to vote, but absentee voters had not. The ASBEC maintained that nothing in the election code prohibited it from promulgating such rules and that it was empowered “to fill the gap created by [the] legislature’s silence” in order to achieve fairness.

In Webb’s cross summary-judgment motion, he too asserted that the ASBEC had acted within its authority when it adopted the emergency rules to “assure even and consistent application” of the voter-identification laws. Webb averred that the rules furthered the intent of the General Assembly that all voters be given an equal opportunity to remedy any issues regarding their identity and that the “only thing” missing from Act 595 “was a procedure that could be used by absentee voters to ‘cure’ their ballots.” He argued that the ASBEC provided that procedure when it promulgated its rules and that the rules were necessary to remedy any disparity between in-person voters and absentee voters and to eliminate any potential constitutional problem arising from that disparity. Finally, Webb contended, the PCEC lacked standing to bring an action for declaratory relief because the rules passed by the ASBEC

Cite as 2014 Ark. 236 did not injure, or threaten to injure, the PCEC. The circuit court took the matter under advisement.

In its orders, the circuit court granted summary judgment to the PCEC and denied summary judgment to both the ASBEC and Webb, finding in relevant part:

1. All parties are in agreement that there are no material issues of fact in dispute, and the court agrees with the parties. 2. The plaintiffs’ Motion for Summary Judgment should be and is hereby granted. The subject Emergency Rules are derivative of Act 595 of 2013. Act 595 of 2013 is unconstitutional in that it violates Article 3, Section 1 and Article 3, Section 2 of the Arkansas Constitution. The Emergency Rules are also unconstitutional as violative of Article 3, Section 1 and Article 3, Section 2 of the Arkansas Constitution. Accordingly, the Emergency Rules are null and void ab initio.

Incorporated by reference were the circuit court’s findings of fact and conclusions of law, which were filed separately the same day. In that order, the circuit court found that Act 595 of 2013 was unconstitutional because it added “additional qualifications for qualified voters not stated in Article 3, Section 1 of the Arkansas Constitution” and that it unconstitutionally impaired the right of suffrage guaranteed in Ark. Const. art. 3, § 2. It further found that the “subject regulations passed by the defendant Arkansas State Board of Election Commissioners being derivative of Act 595 of 2013, are also unconstitutional, as being violative of both Section 1 and Section 2 of Article 3 of the Arkansas Constitution.” The circuit court then declared both Act 595 and the ASBEC’s emergency rules void and unenforceable.

Both the ASBEC and Webb filed notices of appeal from the circuit court’s orders. After filing the record with this court, the ASBEC filed a petition for emergency stay and expedited consideration with this court, with Webb filing a joinder in that motion. We granted a temporary stay with regard to the circuit court’s declaration that Act 595 was

Cite as 2014 Ark. 236 unconstitutional, and we denied the request for stay with regard to the circuit court’s declaration that the ASBEC’s emergency rules were unconstitutional and void. We further granted the motion for expedited consideration and directed simultaneous briefing by the parties.

I. Whether the Circuit Court Erred in Finding Act 595 of 2013 Unconstitutional

We first consider the ASBEC’s argument that the circuit court erred in declaring Act 595 of 2013 unconstitutional because the Act’s unconstitutionality was neither pleaded nor developed by the parties. It contends that the PCEC was merely seeking a declaratory judgment that the ASBEC’s emergency rules were an unconstitutional violation of the separation of powers. It maintains that the PCEC never challenged the constitutionality of the Act, nor did Webb raise any of the claims relating to the Act’s constitutionality ruled on by the circuit court. The ASBEC claims that the circuit court acted sua sponte in ruling the Act unconstitutional, and for that reason, its ruling should be reversed. The PCEC disputes that the circuit court acted sua sponte and urges this court to affirm the circuit court’s ruling. It contends that Webb challenged the Act’s constitutionality in his cross-motion for summary judgment; therefore, the constitutionality of the Act was properly before the circuit court.3

Ordinarily, on appeal from a summary-judgment disposition, the evidence is viewed in the light most favorable to the party resisting the motion, and any doubts and inferences

3 We note that, while it did not so state in its brief filed with this court, the PCEC did admit in its response to the ASBEC’s petition for emergency stay and expedited consideration that the “allegations in [its] complaint did not challenge the constitutionality of Act 595 itself.”

Cite as 2014 Ark. 236 are resolved against the moving party. See Hobbs v. Jones, 2012 Ark. 293, 412 S.W.3d 844. However, in a case where the parties agree on the facts, we simply determine whether the appellee was entitled to judgment as a matter of law. See id. When parties file cross-motions for summary judgment, as was done in this case, they essentially agree that there are no material facts remaining, and summary judgment is an appropriate means of resolving the case. See id. As to issues of law presented, our review is de novo. See id. Here, the circuit court quite clearly ruled on the constitutionality of Act 595 of 2013 in granting the PCEC’s summary-judgment motion. The question then becomes whether the constitutionality of the Act was properly before the circuit court for a ruling. Based on the record before us, we must conclude that the answer to that question is no.

First, we note that a review of the PCEC’s motion for summary judgment, which was granted in part by the circuit court on the basis that the Act was unconstitutional, reveals no argument whatsoever that it was entitled to summary judgment on that basis. We have observed that a trial court cannot grant relief beyond that prayed for in the motion for summary judgment in ruling on that motion. See, e.g., Young v. Staude, 280 Ark. 298, 657 S.W.2d 542 (1983) (reversing the trial court where the relief granted was not asked for in the motion for summary judgment and could not be granted).

Further, while the PCEC contends that Webb challenged the constitutionality of the Act in his cross-motion for summary judgment, we disagree. The PCEC points specifically to two assertions among several that were made by Webb in that motion: “Unless the regulations of the State Board are permitted to stand, Voter I.D. laws in Arkansas will be in

Cite as 2014 Ark. 236 violation of the Privileges and Immunities Clause of the Arkansas Constitution”; and “Unless the challenged regulations are permitted to stand, the State of Arkansas will be in violation of the Equal Protection Clauses of both the Arkansas and Federal Constitutions.” Although Webb mentions constitutional provisions, we simply cannot construe his statements as direct challenges to the constitutionality of Act 595 itself. We have held that we will not strike down a legislative act on constitutional grounds without first having the benefit of a fully developed adversarial case. See, e.g., Williams v. Johnson Custom Homes, 374 Ark. 457, 288 S.W.3d 607 (2008). This maxim applies equally to our circuit courts.

Our review of the record reveals that the Act’s constitutionality was neither raised nor developed by any of the parties before the circuit court; it would therefore appear that the circuit court’s ruling on the Act’s constitutionality was made sua sponte. We must conclude that, by ruling sua sponte on the constitutionality of Act 595, the circuit court erred.

[L]imiting a trial justice to consideration of those claims raised by the parties in a specific controversy enhances the prospect that any final judgment will proceed from a factual and legal analysis of the actual dispute presented to the court. [People v. Lybarger,] 700 P.2d [910,] 915 [(Colo. 1985)]. Absent such restrictions on the exercise of judicial authority, judicial pronouncements become hypothetical rulings on matters that may be extraneous to the real source of contention between the litigants. Id. Consequently, it is clear and imperative that a trial justice, in the exercise of his or her judicial authority, not resolve a constitutional issue unless and until such issue is actually raised by the parties to the controversy and a necessity for such a decision is clear and imperative. In sum, a trial justice does not have the authority to sua sponte attack the constitutionality of a statute; it must be raised by a party entitled to make such challenge.

Devane v. Devane, 581 A.2d 264, 265 (R.I. 1990) (per curiam) (citing People v. Lybarger, 700 P.2d 910 (Colo. 1985)). See also Martin v. Lowery, 912 So. 2d 461 (Miss. 2005); Istre v. Meche, 770 So. 2d 776 (La. 2000). Accordingly, we vacate in part the circuit court’s grant of

Cite as 2014 Ark. 236 summary judgment on the basis that Act 595 is unconstitutional, as that issue was not properly before the circuit court in the instant case. II. Whether the Circuit Court Erred in Finding the ASBEC’s Emergency Rules Unconstitutional

The ASBEC additionally argues that the circuit court erred in declaring its rules unconstitutional because it was authorized to promulgate its emergency rules pursuant to Ark. Code Ann. § 7-4-101(f)(5). It claims that the rules were necessary to assure that absentee voters are treated fairly and allowed to participate in an orderly election process by giving them the same post-election opportunity to provide the required identification as in-person voters. The ASBEC asserts that section 7-4-101(f)(5) empowers it to fill the gap created by the legislature’s silence to achieve this fairness and that the rules are necessary to assure orderly election procedures. It urges that Ark. Code Ann. § 7-5-321(c) (Supp. 2013), which sets forth the procedure by which an in-person voter may cure any failure to provide identification, in no way prohibits it from providing that same opportunity to absentee voters by way of its emergency rules, where the statute is silent with respect to absentee voters.

The ASBEC further contends that its rules do not violate Ark. Code Ann. § 7-5-201(d), which sets forth the requisite identification to be submitted by absentee voters with their absentee ballots. It avers that the statute’s use of the term “shall” does not preclude the provision of a cure period should an absentee voter fail to submit the required identification. In addition, it asserts that the General Assembly’s silence, by neither granting a cure period to absentee voters nor prohibiting them from having one, cannot be interpreted as the General Assembly’s opposition to such a provision; instead, the result of the General

Cite as 2014 Ark. 236 Assembly’s silence is its delegation of the decision to the ASBEC, under section 7-4-101(f)(5).

Webb likewise argues that the authority of the ASBEC under Ark. Code Ann. § 7-4-101(f)(5) encompasses the adoption of regulations governing the evaluation and counting of absentee ballots. He contends that nothing in the election code expressly prohibited the ASBEC from providing an equivalent cure period to absentee voters. Webb maintains that because the General Assembly permits an absentee voter to file a provisional ballot pursuant to Ark. Code Ann. § 7-5-412(b) (Supp. 2013), the logical inference is that the General Assembly intended to provide those voters with an opportunity to cure any identity issues associated with their ballots. He avers that the regulations provided a much-needed remedy in the election process.

The PCEC counters that the adoption of the emergency rules by the ASBEC violated the separation-of-powers doctrine because it attempted to legislate for the General Assembly by creating a cure period for absentee voters. It contends that the ASBEC’s rules are contrary to statute because there is no provision in the statutes for absentee voters to cast a provisional vote and return later with the proper identification. It further asserts that there is no authority for the ASBEC to promulgate rules that supersede statutes; instead, it contends, the rules of the ASBEC must be consistent with Arkansas law. The PCEC urges that, because the General Assembly did not extend to absentee voters the opportunity to produce identification at a later date as it did to in-person voters, it has “spoken on this issue”; in other words, the PCEC avers, the “mention of a cure period for in-person voters implies the exclusion of a cure period for absentee voters.” The PCEC additionally states that, if the ASBEC’s stance

Cite as 2014 Ark. 236 on its authority is correct, the ASBEC could rewrite the entire election code “in the interest of fairness and orderliness” any time its revisions are not specifically prohibited by statute. Finally, the PCEC maintains that if absentee ballots are to be treated provisionally and absentee voters are to be given a period of time to remedy any lack of required identification, the correction required would be of a legislative nature, not an administrative one.

Here, the ASBEC and Webb challenge the circuit court’s rulings that its emergency rules were unconstitutional and void. As an initial matter, we are cognizant of the circuit court’s basis for its ruling that the ASBEC’s emergency rules were unconstitutional—because they were derived from Act 595 and violated Ark. Const. art. 3, §§ 1 and 2. While that basis for the circuit court’s declaration of unconstitutionality was not raised or developed by the PCEC in its petition for declaratory judgment or its motion for summary judgment, the PCEC did challenge the constitutionality of the rules on the basis that they had been promulgated in violation of the separation-of-powers doctrine, which was argued and well-developed by all parties below. This court may affirm a circuit court where it has reached the right decision, albeit for the wrong reason, so long as the issue was raised and a record was developed below. See Yanmar Co., Ltd. v. Slater, 2012 Ark. 36, 386 S.W.3d 439; Sluder v. Steak & Ale of Little Rock, Inc., 368 Ark. 293, 245 S.W.3d 115 (2006); In re Estate of Gordon v. Ford Motor Co., 320 Ark. 699, 898 S.W.2d 471 (1995).

Pursuant to Ark. Code Ann. § 7-5-201(d)(1) (effective Jan. 1, 2014), as amended by Act 595 of 2013, with limited exceptions,

any person desiring to vote in this state shall: (A) Present proof of identity to the election official when appearing to vote in

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person either early or at the polls on election day; or (B) When voting by absentee ballot, submit with the ballot a copy of a current and valid photo identification or a copy of a current utility bill, bank statement, government check, paycheck, or other government document that shows the name and address of the voter unless the voter is: (i) A member of the uniformed services on active duty who is absent from the county on election day because of active duty; (ii) A member of the merchant marine who is absent from the county on election day because of his or her service in the merchant marine; or (iii) The spouse or dependent of a member identified in (d)(1)(B)(i) or (d)(1)(B)(ii) who is absent from the county on election day because of the active duty or service of the member.

“A voter who desires to cast an absentee ballot but who does not meet the identification requirements . . . may cast his or her absentee ballot by mail, and the absentee ballot shall be considered as a provisional ballot.” Ark. Code Ann. § 7-5-412(b). At issue in the present case are certain rules promulgated by the ASBEC that establish an entire procedure by which an absentee voter, who fails to submit the identification or documentation with his or her ballot as required under section 7-5-201(d)(1)(B), shall be notified of the deficiency and can remedy the deficiency in order to have his or her ballot counted. See 167 Ark. Gov’t Reg. 64 (LexisNexis Apr. 2014); 167 Ark. Gov’t Reg. 54 (LexisNexis Apr. 2014). The procedure established by the ASBEC for absentee voters is similar to that established by the General Assembly in Ark. Code Ann. § 7-5-321 (Supp. 2013), for in-person voters who fail to present proof of identity. We must determine whether the ASBEC lacked the authority to create a procedure that had not been provided by the General Assembly so as to violate separation of powers.

The separation-of-powers doctrine is a “basic principle upon which our government is founded, and should not be violated or abridged.” Federal Express Corp. v. Skelton, 265 Ark.

Cite as 2014 Ark. 236 187, 198, 578 S.W.2d 1, 7 (1979). The doctrine is embodied in the provisions of our state constitution:

The powers of the government of the State of Arkansas shall be divided into three distinct departments, each of them to be confided to a separate body of magistracy, to-wit: Those which are legislative, to one, those which are executive, to another, and those which are judicial, to another.

No person or collection of persons, being of one of these departments, shall exercise any power belonging to either of the others, except in the instances hereinafter expressly directed or permitted.

Ark. Const. art. 4, §§ 1, 2.

We have previously observed that our government is composed of three separate, independent branches: legislative, executive, and judicial. See Skelton, 265 Ark. 187, 578 S.W.2d 1. Each branch has certain specified powers delegated to it. See id. The legislative branch of our state government has the power and the responsibility to proclaim the law through statutory enactments. See id. The judicial branch has the power and the responsibility to interpret the legislative enactments. See id. The executive branch has the power and the responsibility to enforce the laws as enacted and interpreted by the other two branches. See id.

The State Board of Election Commissioners has the authority to “[f]ormulate, adopt, and promulgate all necessary rules to assure even and consistent application of voter registration laws and fair and orderly election procedure.” Ark. Code Ann. § 7-4-101(f)(5). The ASBEC and Webb claim that the ASBEC had the authority to promulgate the rules at issue because the General Assembly was silent on the matter and because nothing in the election code prohibited it from doing so. To that end, the ASBEC contends, the General

Cite as 2014 Ark. 236 Assembly delegated the decision to it because the General Assembly was presumed to know the powers of the ASBEC.

We find the arguments by the ASBEC and Webb unpersuasive. This court has held that “there must be strict compliance with statutory provisions regarding the application for and casting of absentee ballots.” Womack v. Foster, 340 Ark. 124, 153, 8 S.W.3d 854, 871 (2000). Moreover, the law is elementary that an agency has no right to promulgate a rule or regulation contrary to a statute. See McLane Co., Inc. v. Weiss, 332 Ark. 284, 965 S.W.2d 109 (1998).

In the instant case, it is undisputed that, while the General Assembly provided in Ark. Code Ann. § 7-5-321 a method by which an in-person voter could cure any failure to provide proof of identity, the General Assembly did not provide a similar method for absentee voters. See also Op. Ark. Att’y Gen. No. 12 (2014); Op. Ark. Att’y Gen. No. 18 (2014). The General Assembly clearly knew how to provide a remedy to absentee voters. Therefore, had the legislature intended to extend the same remedy to absentee voters, it could have so expressly provided; yet, it did not. We certainly cannot presume why the General Assembly did not, but this court has previously acknowledged a difference between absentee voters and other voters. See, e.g., Womack, 340 Ark. 124, 8 S.W.3d 854. Where the General Assembly has so evidently not provided a procedure for absentee voters similar to that provided for in-person voters, it is clear to this court that the ASBEC’s emergency rules conflict with the election code, because the ASBEC created a procedure that did not exist, and the legislature did not intend for it to exist.

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The ASBEC and Webb contend that the ASBEC was given the authority to adopt any regulations necessary to fill statutory gaps and to correct oversights by the General Assembly. However, this contention contravenes the basic principle of separation of powers. By promulgating the emergency rules that it did, the ASBEC was legislating. This court has previously observed it is “not the business of the courts to legislate; and, if a change in the law in this respect is desired, the General Assembly is the branch of government whence the change must come.” Southern Tel. Co. v. King, 103 Ark. 160, 165, 146 S.W. 489, 491 (1912). It is not the courts’ business to legislate; likewise, it was not the business of the ASBEC, as part of the executive branch, to do so.

The ASBEC was given the authority to promulgate rules to assure fair and orderly election procedures; it was not given the authority to create those election procedures where the legislature had not. Had the General Assembly intended to extend the cure provisions extended to in-person voters by Ark. Code Ann. § 7-5-321 to absentee voters, it presumably would have included the appropriate language. However well intended the ASBEC’s actions may have been, any change in the law should have come from the legislature, the only branch of our government that has been delegated the power to proclaim the law through statutory enactments.

An administrative agency may not, under the guise of a regulation, substitute its judgment for that of the legislature in administering a legislative act. See 73 C.J.S. Public Administrative Law & Procedure § 163 (2014). As we have previously observed with respect to the ASBEC’s authority under a constitutional provision, the authority of the ASBEC under

Cite as 2014 Ark. 236 section 7-4-101(f)(5) is to implement, not create, and we cannot say that anything in the statute, as set forth above, permits the ASBEC to create a law when the General Assembly has not done so. See, e.g., Faubus v. Fields, 239 Ark. 241, 388 S.W.2d 558 (1965). See also 2 Am. Jur. 2d Administrative Law § 132 (2014) (“An administrative agency cannot promulgate rules or regulations that contravene the will of the legislature and can only promulgate rules to further the implementation of the law as it exists.”). For these reasons, we affirm the circuit court’s grant of summary judgment in part, based on its ruling that the ASBEC’s emergency rules were unconstitutional, as the circuit court reached the right decision, but stated the wrong reason.4

III. Whether the PCEC Lacked Standing

Webb also challenges the standing of the PCEC to bring its declaratory-judgment action. He contends that the PCEC has not stated, and cannot state, the requisite injury or threat of injury required to bring an action for declaratory judgment in challenging a rule pursuant to Ark. Code Ann. § 25-15-207 (Repl. 2002).5 However, Webb’s argument is not preserved for our review. While Webb raised the issue of the PCEC’s standing to the circuit court, the circuit court did not rule on it. It was incumbent on Webb to obtain a ruling, and

4 Webb additionally argues that if the emergency rules are not permitted to stand, the State could be in violation of the Help America Vote Act. However, we are aware of no authority, nor has he cited us to any, that would permit or justify a violation or abridgement of the separation-of-powers doctrine on this basis. See Skelton, supra. 5 That section provides, in pertinent part: (a) The validity or applicability of a rule may be determined in an action for declaratory judgment if it is alleged that the rule, or its threatened application, injures or threatens to injure the plaintiff in his person, business, or property. Ark. Code Ann. § 25-15-207(a).

Cite as 2014 Ark. 236 his failure to do so constitutes a waiver of the issue. See Peoples Bank & Trust Co. of Van Buren v. Wallace, 290 Ark. 589, 721 S.W.2d 659 (1986).

Mandate to issue immediately.

Affirmed in part; vacated in part. Temporary stay dissolved.

BAKER and HART, JJ., dissent.

KAREN R. BAKER, Justice, dissenting. I cannot join in the majority’s analysis of this case, even though I agree that the circuit court erred in ruling on the constitutionality of Act 595 of 2013.

The majority affirms the circuit court’s ruling as to the rules on the basis that the circuit court reached the right result, although for the wrong reason. However, the theory of “right result, wrong reason” is not applicable here because the majority opinion reaches a very different result than that reached by the circuit court. The result of the majority’s opinion is that absentee ballots will only be cast and counted with proof of identification as required by Act 595, allowing for no curative period. In contrast, the result of the circuit court’s ruling was to allow all absentee votes to be cast and counted because no identification was required.

The majority’s analysis is actually that the circuit court reached the right ruling, rather than the right result. Ordinarily, the difference between ruling and result would not be significant because the same ruling could be expected to render the same result. However, in this case the distinction is significant. “Result” is defined as “to come about as a consequence.” American Heritage Dictionary, 1487 (4th ed. 2000). Thus, the result is a

Cite as 2014 Ark. 236 consequence of the ruling, and here, the result is different because some absentee votes will not be counted. See Searcy Healthcare Center, LLC v. Murphy, 2013 Ark. 463, ___ S.W.3d ___ (where we declined to apply the “right result wrong reason” theory advanced by Murphy because we could not say the circuit court’s order reached the right result.); but cf. City of Marion v. City of West Memphis, 2012 Ark. 384, 8, 423 S.W.3d 594, 599 (wherein we affirmed the circuit court and applied the “right result wrong reason” theory because in that case, the circuit court reached the right result in finding that the 3,360 acres became a part of West Memphis, it simply applied the wrong statute.)

Accordingly, I would reverse and remand for further proceedings.

HART, J., joins in this dissent.

Dustin McDaniel, Att’y Gen., by: David A. Curran, Deputy Att’y Gen., and C. Joseph Cordi, Jr., Sr. Ass’t Att’y Gen., for appellant Arkansas State Board of Election Commissioners.

Ritter Law, by: George P. Ritter and Bilenda Harris-Ritter, for appellant Doyle Webb.

Karla M. Burnett and Amanda Mankin-Mitchell, Pulaski County Attorney’s Office, for appellees.