There is a provision in the Arkansas Constitution that has been on the books since 1874. It does not require interpretation. It does not require a law degree. It does not require a lengthy AG opinion full of hedging footnotes and carefully crafted “in all likelihoods.” It requires a second-grader with a library card.
Article 19, Section 6 of the Arkansas Constitution reads: “No person shall hold or perform the duties of more than one office in the same department of the government at the same time, except as expressly directed or permitted by this Constitution.”
That’s it. That’s the whole thing.
So here is the question Arkansans should be asking their Attorney General right now, loudly, publicly, and whenever a television camera was within a three-mile radius: Tim, where are you?
The Setup
Governor Sarah Huckabee Sanders appointed Nathan Lee, her Deputy Secretary of State, to the Arkansas Board of Corrections. He was immediately elected Vice-Chair of the Board, and he now helps run the state’s prison system while simultaneously serving as a senior officer in the Secretary of State’s office.
Two offices. Same department. Same branch of government. One Constitution.
This is not complicated.
The Secretary of State is expressly identified as a member of the Executive Department under Article 6, Section 1 of the Arkansas Constitution. The Arkansas Board of Corrections is a constitutional board within the executive branch that exercises sovereign administrative power over the state’s correctional system.
Nathan Lee is holding two offices in the same department of government at the same time. The Constitution says he cannot. The end.
The Legal Case, For Those Who Require One
Arkansas courts have recognized three independent grounds for disqualifying a dual officeholder: a constitutional prohibition, a statutory prohibition, and the common-law doctrine of incompatibility. You need only one to win. Lee likely fails all three.
Article 19, Section 6 doesn’t just frown upon holding two executive offices simultaneously, it forbids it, unless the Constitution expressly permits it. There is no such express permission here. The provision’s only exceptions are for militia officers, public school officers, and notaries. Nathan Lee, to anyone’s knowledge, is none of those things.
The Arkansas Supreme Court in Marshall v. Holland, 168 Ark. 449 (1925), held that a county treasurer could not simultaneously hold office as county tax collector (two executive offices) because Article 19, Section 6 said so. That was 1925. The provision has not changed. Nathan Lee’s situation is more clear-cut, not less.
The Deputy Secretary of State is not a casual state employee. Under Ark. Code Ann. § 25-16-402, the deputy’s acts are performed in the name of the Secretary of State and “shall have the same validity as the acts of his or her principal.” The Arkansas Supreme Court in Martindale v. Honey, 259 Ark. 416 (1976), held that a deputy, precisely because they act officially for the principal with equal legal force, holds a public office, not mere employment. A deputy who wields the full authority of a constitutional officer is not a summer intern. He is an officer.
And an officer cannot hold two offices in the same branch of government. Full stop.
Common Law Incompatibility
Even if you somehow decide to ignore the constitutional text, the common-law doctrine of incompatibility provides an independent basis for disqualification. Under Tappan v. Helena Federal Savings & Loan, 193 Ark. 1023 (1937), offices are incompatible when one is “subordinate to the other” or where “the incumbent of one office has the power to remove the incumbent of the other.”
Here’s the structural problem that no one in the Governor’s office wants to discuss: Nathan Lee cannot exercise independent judgment as a BOC member on matters that might displease the person who holds his executive career in her hands. That is the precise conflict of interest that the incompatibility doctrine was designed to prevent. The Arkansas AG in Op. Att’y Gen. No. 95-292 said it plainly: the doctrine exists to prevent situations where a person’s “decisions would be susceptible to accusation of or suspicion of being to the detriment of the public good.”
Does anyone believe Nathan Lee, the Governor’s own Deputy Secretary of State, is going to vote against Sarah Sanders’ agenda at the Board of Corrections when it conflicts with the Constitution? Does anyone believe he is capable, structurally and politically, of doing so?
That rhetorical question answers itself.
Where Is Tim Griffin?
Now let’s talk about the Attorney General.
Tim Griffin has an office. It has staff. And under well-established Arkansas precedent dating back over a century, only the Attorney General may institute a writ of quo warranto to challenge the qualifications of a person holding public office. The AG is, under Arkansas law, the designated constitutional watchdog for exactly this type of problem.
So we ask again: Tim, where are you?
Governor Sanders appointed her own staffer to a constitutional office he is facially prohibited from holding. A sitting member of the Executive Department is simultaneously serving on an executive branch board in violation of the plain text of Article 19, Section 6. The constitutional violation is not subtle. It is not a close call. It is not, as the legal community sometimes says about genuinely difficult questions, “one on which reasonable minds could differ.” This is black-letter constitutional law. This is the kind of thing Tim Griffin used to go on television to explain to the public with what can only be described as theatrical enthusiasm for constitutional fidelity.
And yet: silence.
Not a press release. Not a statement. Not even an informal acknowledgment that maybe, possibly, someone ought to look into this. Nothing. The man who spent years wrapping himself in the Arkansas Constitution, who ran for Attorney General on the premise that he would defend it aggressively, without fear or favor, has apparently discovered that the Constitution has an asterisk when the person violating it is the Governor.
To be precise about what we are saying: Tim Griffin has the power to file a quo warranto action in the Arkansas Supreme Court right now. He has the authority. He has the staff. He has the resources. He has, according to his own campaign rhetoric, the will. What he apparently lacks is the moral, ethical, or political fortitude to say anything that might make life uncomfortable for the person two floors up in the Capitol.
This is not a partisan observation. Dual officeholding prohibitions do not care what party you belong to. Article 19, Section 6 has been protecting Arkansans from the consolidation of executive power in single individuals since Reconstruction. Its purpose is to prevent exactly what is happening here: a Governor stacking a board with her own operatives, including at least one who simultaneously draws his paycheck from her office, and who can be expected, indeed, structurally must be expected, to do her bidding in both capacities.
The Attorney General’s job is to say something when that happens. Griffin’s job is to say something when that happens. Every Arkansan who voted for Tim Griffin in the belief that he meant what he said about constitutional fidelity is owed at minimum an explanation for why this is different.
The Consequences of His Silence
Let us be direct about what Tim Griffin’s silence accomplishes.
It accomplishes Nathan Lee remaining on the Board of Corrections, casting votes that may or may not reflect the interests of Arkansas taxpayers versus the interests of the Governor who holds his career in both hands.
It accomplishes a precedent, quiet, incremental, dangerous, that Article 19, Section 6 is enforceable only when it is politically convenient. That the constitutional bar on dual officeholding bends for allies of the sitting Governor. That the quo warranto power vested in the Attorney General is a political weapon to be deployed against enemies and holstered when friends are in the crosshairs.
It accomplishes the normalization of constitutional corner-cutting in a state that cannot afford it. The Board of Corrections is not some performative advisory committee. It governs the incarceration of tens of thousands of Arkansans. It controls an enormous budget. It has been at the center of one of the most contentious political battles in Arkansas in recent memory. The idea that the Governor can place her own executive-branch officer in a voting seat on that board, in apparent violation of the state constitution, and that the state’s chief legal officer will say absolutely nothing about it, is not a small thing.
What Should Happen
The Board of Corrections should request a formal opinion request should be made to the Attorney General under Ark. Code Ann. § 25-16-706, demanding he address whether Nathan Lee’s dual service violates Article 19, Section 6. If he refuses to issue an opinion, that refusal is itself a story. If he issues an opinion blessing the arrangement, he will have to publicly explain how Marshall v. Holland and Martindale v. Honey do not apply, and we look forward to reading that explanation.
Failing that, any Arkansan with standing can petition the Arkansas Supreme Court for a writ of superintending control. When the quo warranto power goes unexercised, the Supreme Court retains extraordinary authority to act. A petition framing Lee’s continued service as a constitutional violation inviting judicial correction is not a frivolous argument. It is a serious one, grounded in serious law.
Conclusion
Nathan Lee should not be on the Arkansas Board of Corrections. The Constitution says so. The case law says so. One hundred and fifty years of Arkansas legal tradition say so. And Tim Griffin knows it.
The question is not whether there is a legal problem here. The question is whether Arkansas has an Attorney General willing to do the job the voters elected him to do, or whether that job only gets done when the person on the wrong side of the Constitution isn’t a friend of the Governor.
So far, we have our answer. And it is as embarrassing to our State as it is shameful on the part of Tim Griffin.
ICYMI:
Is Separation of Powers ‘Fake News in Arkansas?
Part 1: The Governor Lost in Court. So, She Changed the Court, the Board, and the Rules.
Part Two: The People’s Lawyer Forgot Who the People Are
Part Three: OPINION: The Supreme Court’s Institutional Integrity Must be Preserved
