Chapter 1 General Provisions

Effective Dates. Acts 1969, No. 465, Art. 13, § 10: approved Apr. 17, 1969. Emergency clause provided: “It is hereby found and declared by the General Assembly of the State of Arkansas that the present election laws are ancient and outdated in part and have caused and are causing much confusion and controversy, that there are particular problem areas in the present law which need immediate legislation in order to resolve same, that elections are and will continue to be held and conducted in this atmosphere of confusion and controversy until these problem areas are resolved and this Act being necessary for the immediate preservation of the public peace, health and safety, an emergency is hereby declared to exist and this act shall be in force and effect from and after its passage.”

Acts 1970 (1st Ex. Sess.), No. 3, § 4: Mar. 6, 1970. Emergency clause provided: “It is hereby found and determined by the Sixty-Seventh General Assembly meeting in Extraordinary Session that requiring all dram shops and drinking houses to remain closed the night after an election, after the polls have closed, serves no useful purpose, and is unnecessarily restrictive to the operation of dram shops and drinking houses, and the free enterprise system, and that this act will correct this undesirable situation. Therefore, an emergency is hereby declared to exist and this act being necessary for the immediate preservation of the public peace, health and safety shall be in full force and effect from and after the date of its passage and approval.”

Identical Acts 1995, Nos. 946 and 963, § 14: Jan. 1, 1996.

Acts 2001, No. 1839, § 35: Became law without Governor's signature Apr. 20, 2001. Emergency clause provided: “It is found and determined by the General Assembly that various provisions of the Arkansas Code relating to campaign financing and ethics are vague or otherwise in need of modification; that this act accomplishes those purposes; and that this act should go into effect as soon as possible so that those persons who are subject to the provisions of the various ethics and campaign finance statutes receive the benefit of the clarifications as soon as possible. Therefore, an emergency is declared to exist and this act being immediately necessary for the preservation of the public peace, health and safety shall become effective on the date of its approval by the Governor. If the bill is neither approved nor vetoed by the Governor, it shall become effective on the expiration of the period of time during which the Governor may veto the bill. If the bill is vetoed by the Governor and the veto is overridden, it shall become effective on the date the last house overrides the veto.”

Acts 2003, No. 1167, § 2: July 1, 2005.

Acts 2005, No. 2233, § 48: Jan. 1, 2006.

Acts 2009, No. 1480, § 117: Apr. 10, 2009. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that this act makes various revisions to Arkansas election laws that are designed to improve the administration of elections and special elections and that these revisions should be implemented as soon as possible so that the citizens of this state may benefit from improved election procedures. Therefore, an emergency is declared to exist and this act being immediately necessary for the preservation of the public peace, health, and safety shall become effective on: (1) The date of its approval by the Governor; (2) If the bill is neither approved nor vetoed by the Governor, the expiration of the period of time during which the Governor may veto the bill; or (3) If the bill is vetoed by the Governor and the veto is overridden, the date the last house overrides the veto.”

Acts 2013, No. 595, § 7, provided: “This act shall become effective upon the later of the following:

“(1) January 1, 2014; or

“(2) The appropriation and availability of funding to the Secretary of State for the issuance of voter identification cards under Section 5 of this act.”The contingency in Acts 2013, No. 595, § 7 was met by Acts 2013, No. 1376.

Acts 2015, No. 1280, § 16: Apr. 8, 2015. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that the people of Arkansas adopted Arkansas Constitution, Amendment 94, at the 2014 General Election, which added Sections 28, 29, and 30 to Article 19 of the Arkansas Constitution; that Arkansas Constitution, Amendment 94, requires the General Assembly to provide by law that Arkansas Constitution, Article 19, Sections 28, 29, and 30 be under the jurisdiction of the Arkansas Ethics Commission; that this act should become effective at the earliest opportunity to allow the commission to enforce Arkansas Constitution, Article 19, Sections 28, 29, and 30 and issue guidance to affected public officials; and that the additional provisions of this act provide clarity to the ethics laws of the State of Arkansas and should become effective at the earliest opportunity to prevent confusion and avoid incorrect applications of the state's ethics laws. Therefore, an emergency is declared to exist, and this act being immediately necessary for the preservation of the public peace, health, and safety shall become effective on: (1) The date of its approval by the Governor; (2) If the bill is neither approved nor vetoed by the Governor, the expiration of the period of time during which the Governor may veto the bill; or (3) If the bill is vetoed by the Governor and the veto is overridden, the date the last house overrides the veto.”

Research References

Am. Jur. 25 Am. Jur. 2d, Elections, § 1 et seq.

Ark. L. Notes.

Cihak and Springman, HAVA and Arkansas Election Law Reform: Compliance and Promise, 2006 Arkansas L. Notes 1.

C.J.S. 29 C.J.S., Elections, § 1 et seq.

U. Ark. Little Rock L.J.

Survey of Arkansas Law, Constitutional Law, 1 U. Ark. Little Rock L.J. 140.

Niswanger, A Practitioner's Guide to Challenging and Defending Legislatively Proposed Constitutional Amendments in Arkansas, 17 U. Ark. Little Rock L.J. 765.

Case Notes

Enforcement of Election Laws.

Election laws are mandatory if enforcement is sought prior to the holding of the election. After election, the election laws will be held as directory only in support of the result. McKenzie v. City of DeWitt, 196 Ark. 1115, 121 S.W.2d 71 (1938) (decision under prior law).

Election laws should be strictly obeyed. McKenzie v. City of DeWitt, 196 Ark. 1115, 121 S.W.2d 71 (1938) (decision under prior law).

The statutes governing elections in Arkansas do not provide for the award of attorney's fees to the prevailing party in an election matter. St. Francis County v. Joshaway, 346 Ark. 496, 58 S.W.3d 361 (2001).

Vacancies.

This title, through §§ 7-1-101, 7-7-101, and 7-7-102, requires political parties to hold primary elections (rather than conventions) except where a vacancy in nomination or vacancy in office exists. Lewis v. West, 318 Ark. 334, 885 S.W.2d 663 (1994).

7-1-101. Definitions.

As used in this title, unless the context or chapter otherwise requires:

  1. “Administrator” means the administrative head of a long-term care or residential care facility licensed by the state who is authorized in writing by a patient of the long-term care or residential care facility to deliver the application for an absentee ballot and to obtain or deliver the absentee ballot to the county clerk;
  2. “Affidavit of eligibility” means an affidavit signed by a candidate for elective office stating that the candidate is eligible to serve in the office he or she seeks;
  3. “Audit log” means an electronically stored record of events and ballot images from which election officials may produce a permanent paper record with a manual audit capacity for a voting system using voting machines;
  4. “Authorized agent” means a person who is identified and authorized to deliver the application, obtain a ballot, and deliver the ballot on the day of the election to the county clerk for an applicant who is medically unable to cast a ballot at a polling site due to an unforeseen medical necessity as set forth in an affidavit from the administrator of a hospital or long-term care or residential care facility;
  5. “Canvassing” means examining and counting the returns of votes cast at a public election to determine authenticity;
  6. “Certificate of choice” means a certificate, signed by an executive officer of a political group that submits a petition to place its candidates for President and Vice-President on the ballot, designating the names of its candidates to appear on the ballot;
  7. “Constitutional officers of this state” means the offices of the Governor, Lieutenant Governor, Secretary of State, Attorney General, Auditor of State, Treasurer of State, and Commissioner of State Lands;
  8. “Counting location” means a location selected by the county board of election commissioners with respect to all elections for the automatic processing or counting, or both, of votes;
  9. “Designated bearer” means any person who is identified and authorized by the applicant to obtain from the county clerk or to deliver to the county clerk the applicant's ballot;
    1. “Election media” means any device used in an election definition or to record votes cast with a direct record electronic machine or voting machine.
    2. “Election media” includes without limitation:
      1. Memory stick devices;
      2. Digital flashcards;
      3. Personalized electronic ballots (PEBs);
      4. Personal computer cards; and
      5. Zip disks;
  10. “Election official” or “election officer” means a person who is a member of the county board of election commissioners, a person who performs election coordinator duties, a person who is a poll worker designated by a county board of election commissioners to be an election clerk, election judge, or election sheriff, or a deputy county clerk or a person assigned by a county clerk to conduct early voting;
  11. “Electronic poll book” means hardware or software or a combination of hardware and software that allows election officials to view voter registration records and voting information during an election at an early voting location or at a polling site on election day;
  12. “Electronic vote tabulating device” means a device used to electronically scan a marked paper ballot for the purpose of tabulation;
  13. “Fail-safe voting” means the mechanism established under the National Voter Registration Act of 1993, 52 U.S.C. § 20501 et seq., that allows a voter who has moved within the same county to vote at his or her new precinct without having updated his or her voter registration records;
  14. “First-time voter” means any registered voter who has not previously voted in a federal election in the state;
  15. “General or special election” means the regular biennial or annual election for election of United States, state, district, county, township, and municipal officials and the special elections to fill vacancies therein and special elections to approve any measure. The term as used in this act shall not apply to school elections for officials of school districts;
  16. “Infamous crimes” for the purposes of Arkansas Constitution, Article 5, § 9, includes:
    1. A felony offense;
    2. A misdemeanor theft of property offense;
    3. Abuse of office, § 5-52-107;
    4. Tampering, § 5-53-110; or
    5. A misdemeanor offense in which the finder of fact was required to find, or the defendant to admit, an act of deceit, fraud, or false statement;
  17. “Majority party” means that political party in the State of Arkansas whose candidates were elected to a majority of the constitutional offices of this state in the last preceding general election;
  18. “Marking device” means any approved device operated by a voter to record the voter's choices through marking or creating a paper ballot with ink or other substance that will enable the votes to be tabulated by means of an electronic vote tabulating device;
  19. “Member of the merchant marine” means:
    1. An individual employed as an officer or crew member of:
      1. A vessel documented under the laws of the United States;
      2. A vessel owned by the United States; or
      3. A vessel of foreign-flag registry under charter or control of the United States;
    2. An individual enrolled with the United States for employment or training for employment or maintained by the United States for emergency relief service as an officer or crew member of any such vessel; or
    3. As defined in the federal Uniformed and Overseas Citizens Absentee Voting Act, 52 U.S.C. § 20301 et seq., if different from the definition stated in this subdivision (20);
  20. “Minority party” means that political party whose candidates were elected to less than a majority of the constitutional offices of this state in the last preceding general election or the political party that polled the second greatest number of votes for the office of Governor in the last preceding general election if all of the elected constitutional officers of this state are from a single political party;
    1. “Nonpartisan candidate” means a candidate for the office of Justice of the Supreme Court, Judge of the Court of Appeals, circuit judge, district judge, or prosecuting attorney.
    2. “Nonpartisan candidate” does not include a candidate for nonpartisan municipal office;
    1. “Nonpartisan election” means a general, special, or runoff election for the office of Justice of the Supreme Court, Judge of the Court of Appeals, circuit judge, district judge, or prosecuting attorney.
    2. “Nonpartisan election” does not include a general, special, or runoff election for a nonpartisan municipal office;
    1. “Nonpartisan office” means the office of Justice of the Supreme Court, Judge of the Court of Appeals, circuit judge, district judge, or prosecuting attorney.
    2. “Nonpartisan office” does not include a nonpartisan municipal office;
  21. “Party certificate” means a written statement or receipt signed by the secretary or chair of the county committee or of the state committee, as the case may be, of the political party evidencing the name and title proposed to be used by the candidate on the ballot, the position the candidate seeks, payment of the fees, and filing of the party pledge, if any, required by the political party;
  22. “Party filing period” means the period of time established by law for the candidate for a political party's nomination to file his or her party certificate with the Secretary of State or county clerk, as the case may be;
    1. “Political party” means any group of voters that at the last preceding general election polled for its candidate for Governor in the state or nominees for presidential electors at least three percent (3%) of the entire vote cast for the office.
    2. A group of electors shall not assume a name or designation that is so similar in the opinion of the Secretary of State to that of an existing political party as to confuse or mislead the voters at an election.
    3. When any political party fails to obtain three percent (3%) of the total votes cast at an election for the office of Governor or nominees for presidential electors, it shall cease to be a political party;
  23. “Polling site” means a location selected by the county board of election commissioners where votes are cast;
  24. “Precinct” means a geographical area, the boundaries of which are determined by a county board of election commissioners in order to facilitate voting by the registered voters from that geographical area;
  25. “Primary election” means any election held by a political party in the manner provided by law for the purpose of selecting nominees of the political party for certification as candidates for election at any general or special election in this state;
    1. “Printed campaign materials” means:
      1. Literature mailed to an elector that is intended to or calculated to influence the vote of an elector in an election in this state, including without limitation signs, banners, flyers, and pamphlets; and
      2. Yard signs and push cards intended to or calculated to influence the vote of an elector in an election in this state.
    2. “Printed campaign materials” does not mean political paraphernalia, including without limitation stickers, buttons, pens, T-shirts, nail files, or other similar trinkets;
  26. “Provisional ballot” means a ballot:
    1. Cast by special procedures to record a vote when there is some question concerning a voter's eligibility; and
    2. Counted contingent upon the verification of the voter's eligibility;
  27. “Qualified elector” means a person who holds the qualifications of an elector and who is registered pursuant to Arkansas Constitution, Amendment 51;
  28. “Sample ballot” means a ballot for distribution to the public or the press marked with the word “SAMPLE” so as to prevent the production of counterfeit ballots;
  29. “Uniformed services” means the United States Army, United States Navy, United States Air Force, United States Marine Corps, United States Coast Guard, the United States Commissioned Corps of the Public Health Service, and the National Oceanic and Atmospheric Administration Commissioned Officer Corps, or as defined in the federal Uniformed and Overseas Citizens Absentee Voting Act, 52 U.S.C. § 20301 et seq., if different from the definition stated in this subdivision (35);
  30. “Vacancy in election” means the vacancy in an elective office created by death, resignation, or other good and legal cause arising prior to election to the office at a general or special election but arising subsequent to the certification of the ballot;
  31. “Vacancy in nomination” means the circumstances in which:
    1. The person who received the majority of votes at the preferential primary election or general primary election cannot accept the nomination due to death or notifies the party that he or she will not accept the nomination due to serious illness, moving out of the area from which the person was elected as the party's nominee, or filing for another office preceding the final date for certification of nominations; or
    2. There is a tie vote for the same office at a general primary election;
    1. “Vacancy in office” means the vacancy in an elective office created by death, resignation, or other good and legal cause arising subsequent to election to the office at a general or special election or arising subsequent to taking office and before the expiration of the term of office in those circumstances wherein the vacancy must be filled by a special election rather than by appointment.
    2. “Vacancy in office” does not apply to the election of a person at a general election to fill an unexpired portion of a term of office;
    1. “Verification of voter registration” means:
      1. Presenting a document or identification card when appearing to vote in person that:
        1. Shows the name of the person to whom the document or identification card was issued;
        2. Shows a photograph of the person to whom the document or identification card was issued;
        3. Is issued by the United States, the State of Arkansas, or an accredited postsecondary educational institution in the State of Arkansas; and
        4. If displaying an expiration date, is not expired or expired no more than four (4) years before the date of the election in which the voter seeks to vote; or
      2. Submitting with an absentee ballot verification of voter registration in the form of a copy of a document or identification card that complies with the requirements of subdivision (39)(A)(i) of this section.
    2. A document or identification card may be presented in a digital format on an electronic device if the document or identification card:
      1. Complies with the requirements of subdivision (39)(A) of this section; and
      2. The digital format has been approved or issued by the United States, the State of Arkansas, or an accredited postsecondary educational institution in the State of Arkansas.
    3. Documents and identification cards that comply with the requirements of subdivision (39)(A) of this section include without limitation:
      1. A driver's license;
      2. A photo identification card;
      3. A concealed handgun carry license;
      4. A United States passport;
      5. An employee badge or identification document issued by an accredited postsecondary educational institution in the State of Arkansas;
      6. A United States Armed Forces identification document;
      7. A public assistance identification card if the card shows a photograph of the person to whom the document or identification card was issued; and
      8. A voter verification card under § 7-5-324;
  32. “Vote center” means an election day location designated by the county clerk or county board of election commissioners at which a qualified elector from any precinct in the county holding the election may vote;
  33. “Voter-verified paper audit trail” means a contemporaneous paper record of a ballot printed for the voter to confirm his or her votes before the voter casts his or her ballot that:
    1. Allows the voter to verify the voter-verified paper audit trail before the casting of the voter's ballot;
    2. Is not retained by the voter;
    3. Does not contain individual voter information;
    4. Is produced on paper that is sturdy, clean, and resistant to degradation; and
    5. Is readable in a manner that makes the voter's ballot choices obvious to the voter without the use of computer or electronic code;
  34. “Voting machine” means either:
    1. A direct-recording electronic voting machine that:
      1. Records votes by means of a ballot display provided with mechanical or electro-optical components that may be actuated by the voter;
      2. Processes the data by means of a computer program;
      3. Records voting data and ballot images in internal and external memory components; and
      4. Produces a tabulation of the voting data stored in a removable memory component and on a printed copy; or
    2. One (1) or more electronic devices that operate independently or as a combination of a ballot marking device and an electronic vote tabulating device; and
  35. “Voting system” means:
    1. The total combination of mechanical, electromechanical, or electronic equipment, including the software, firmware, and documentation required to program, control, and support the equipment that is used to:
      1. Define ballots;
      2. Cast and count votes;
      3. Report or display election results; and
      4. Maintain and produce any audit trail information; and
    2. The practices and documentation used to:
      1. Identify system components and versions of components;
      2. Test the system during its development and maintenance;
      3. Maintain records of system errors and defects;
      4. Determine specific system changes to be made to a system after the initial qualification of the system; and
      5. Make available any materials to the voter, including without limitation notices, instructions, forms, or paper ballots.

History. Acts 1969, No. 465, Art. 1, § 1; 1971, No. 261, § 1; 1977, No. 888, § 3; A.S.A. 1947, § 3-101; Acts 1987, No. 123, § 12; 1991, No. 241, § 1; 1995, No. 946, § 1; 1995, No. 963, § 1; 1997, No. 445, § 1; 1997, No. 1082, § 1; 1999, No. 1342, § 1; 2003, No. 994, § 1; 2003, No. 1731, § 1; 2005, No. 2233, § 2; 2007, No. 224, § 1; 2007, No. 1020, § 1; 2009, No. 250, § 1; 2009, No. 659, § 5; 2009, No. 959, § 2; 2009, No. 1480, § 14; 2011, No. 203, § 1; 2013, No. 595, § 1; 2013, No. 724, § 3; 2013, No. 1110, § 1; 2013, No. 1126, § 1; 2013, No. 1211, § 1; 2013, No. 1297, § 1; 2013, No. 1389, § 1; 2015, No. 1042, § 1; 2015, No. 1218, §§ 1-3; 2017, No. 633, § 4; 2017, No. 787, § 1; 2019, No. 684, § 2.

A.C.R.C. Notes. Acts 2013, No. 724, § 1, provided: “Legislative intent.

“(1) Article 5, § 9, of the Constitution of the State of Arkansas states that ‘[n]o person hereafter convicted of embezzlement of public money, bribery, forgery or other infamous crime, shall be eligible to the General Assembly or capable of holding any office of trust or profit in this State’.

“(2) In interpreting that constitutional provision, the Supreme Court of Arkansas has ‘consistently recognized that a person convicted of a felony or one of the specifically enumerated offenses is disqualified from holding public office under Article 5, Section 9, of the Arkansas Constitution.’ State v. Oldner, 361 Ark. 316, 206 S.W.3d 818 (2005). However, while the Court has expounded on what constitutes an ‘infamous crime’, such as when it spoke of an offense ‘indicative of great moral turpitude’, State v. Irby, 190 Ark. 786, 81 S.W.2d 419 (1935), it has not until very recently attempted to define the term.

“(3) In 2005, the Supreme Court determined that, aside from the specifically named crimes in Article 5, § 9, an ‘infamous crime’ involved dishonesty. Oldner, 361 Ark. at 327, 206 S.W.3d at 822. In 2010, the Supreme Court specifically held that theft constituted an ‘infamous crime’. Edwards v. Campbell, 2010 Ark. 398, 370 S.W.3d 250 (2010). This, however, is as specific as the Supreme Court has gotten, as it further noted that ‘a crime is not considered infamous based on the available punishment but rather is considered infamous based on the underlying nature of that crime.’ Id.

“(4) Because of the uncertainty associated with the term ‘infamous crime’, and in the interests of educating the general public and potential office holders about who is or is not eligible to hold public office in this state, it is the intent of the General Assembly to define the term ‘infamous crime’ for the purpose of assisting the judiciary in its further definitional refinements.”

Acts 2013, No. 724, § 2, provided: “Legislative findings.

“The General Assembly finds that:

“(1) Article 5, § 9, of the Constitution of the State of Arkansas states that ‘[n]o person hereafter convicted of embezzlement of public money, bribery, forgery or other infamous crime, shall be eligible to the General Assembly or capable of holding any office of trust or profit in this State';

“(2) A definition of ‘infamous crime' should also encompass those criminal offenses that lead to a loss of public confidence as well as offenses in the nature of perjury or subornation of perjury, false statement, criminal fraud, embezzlement, false pretense, or any other offense that involves some element of deceitfulness, untruthfulness, or falsification; and

“(3) A reviewing court should also measure certain variables when determining what constitutes an ‘infamous crime', such as the attendant mental state of the offense, the particular circumstances surrounding the charged offense, the age and education of the person committing the offense, and, if the offense occurred before the person has assumed public office, the age of the person at the time of the conviction itself.”

Acts 2017, No. 787, § 3, as amended by Acts 2019, No. 222, § 1, provided: “Applicability. A candidate running for election to any public office who possesses or creates a campaign sign, campaign literature, or other printed campaign material that does not comply with this act is exempt from compliance with this act if the campaign sign, campaign literature, or other printed campaign material was created before the effective date of this act”.

It is unclear when the exemption described in Acts 2019, No. 222 takes effect. The Uncodified Section 3 of Acts 2017, No. 787, which is being amended by Act 222, was in effect August 2017.

Amendments. The 2009 amendment by No. 250 substituted “administrator” for “administrative head” in (3), and made minor stylistic changes.

The 2009 amendment by No. 659 inserted (15) and (25), and redesignated the remaining subdivisions accordingly.

The 2009 amendment by No. 959 inserted (5), redesignated the remaining subdivisions accordingly, and made minor stylistic changes.

The 2009 amendment by No. 1480 inserted present (2) and (18) and redesignated the remaining subdivisions accordingly.

The 2011 amendment subdivided (30) into introductory language and (30)(A); and added (30)(B).

The 2013 amendment by No. 595 added the definition for “Proof of identity”.

The 2013 amendment by No. 724 added the definition for “Infamous crimes”.

The 2013 amendment by No. 1110 added definitions for “Nonpartisan candidate”, “Nonpartisan election”, and “Nonpartisan office”.

The 2013 amendment by No. 1126 substituted “Vacancy in office does” for “The phrase ‘vacancy’ shall” in (37)(B) [now (38)(B)].

The 2013 amendment by No. 1211 added the definition for “Precinct”.

The 2013 amendment by No. 1297 added the definition for “Electronic poll book”.

The 2013 amendment by No. 1389 added the definition for “Vote center”.

The 2015 amendment by No. 1042, in (10) [now (11)], inserted “a person who performs election coordinator duties” and added “or a deputy county clerk or a person assigned by a county clerk to conduct early voting”.

The 2015 amendment by No. 1218 rewrote (18) [now (19)] and (40)(B) [now (41)(B)]; and added the definition for “Election media”.

The 2017 amendment by No. 633 deleted the former definition of “Proof of identity”, added the definition of “Verification of voter registration”, and redesignated remaining definitions accordingly; and substituted “52 U.S.C. § 20301 et seq.” for “42 U.S.C. § 1973ff et seq.” in (35).

The 2017 amendment by No. 787 added the definition of “Printed campaign materials”; and redesignated remaining definitions accordingly.

The 2019 amendment inserted (39)(B) and redesignated former (39)(B) as (39)(C).

Meaning of “this act”. Acts 1969, No. 465, codified as §§ 7-1-101, 7-1-1037-1-105, 7-3-1017-3-108, 7-4-1017-4-105, 7-4-1077-4-112, 7-5-101, 7-5-102, 7-5-103 [repealed], 7-5-2027-5-209, 7-5-210 [repealed], 7-5-211, 7-5-301, 7-5-302 [repealed], 7-5-303 [repealed], 7-5-3047-5-306, 7-5-307 [repealed], 7-5-308, 7-5-309, 7-5-312, 7-5-313 [repealed], 7-5-3147-5-319, 7-5-401, 7-5-402, 7-5-4057-5-417, 7-5-501 [repealed], 7-5-5027-5-504, 7-5-505 [repealed], 7-5-506 [repealed], 7-5-507, 7-5-508 [repealed], 7-5-509, 7-5-511 [repealed], 7-5-512, 7-5-513, 7-5-514 [repealed], 7-5-5157-5-518, 7-5-519 [repealed], 7-5-5207-5-522, 7-5-5247-5-531, 7-5-7017-5-706, 7-5-8017-5-809, 7-6-1017-6-105, 7-7-1017-7-105, 7-7-2017-7-203, 7-7-3017-7-307, 7-7-309, 7-7-310 [repealed], 7-7-401, 7-7-402, 7-7-403 [repealed], 7-8-1017-8-104, 7-8-301, 7-8-302, 7-8-3047-8-307, 25-16-801.

Identical Acts 1995, Nos. 946 and 963, codified as §§ 7-1-101, 7-5-107, 7-5-211, 7-5-301, 7-5-302 [repealed], 7-5-305, 7-5-306, 7-5-314, 7-5-317, 7-7-308, 7-7-310, 7-7-312, 7-7-504 [repealed].

Cross References. Filing deadline, § 7-7-203.

Research References

ALR.

Validity, construction, and application of state criminal disenfranchisement provisions. 10 A.L.R.6th 31.

Ark. L. Rev.

Brandon Whit Maxey, Legislative Note: A Proposal for a Voter-Identification Law Limiting Voter Disenfranchisement, 67 Ark. L. Rev. 457 (2014).

Michael K. Goswami, Comment: High Crimes, Treason, and Chicken Theft: “Infamous Crimes” in Arkansas and Disqualification from Political Office, 67 Ark. L. Rev. 653 (2014).

U. Ark. Little Rock L. Rev.

Survey of Legislation, 2003 Arkansas General Assembly, Election Law, Help America Vote Act, 26 U. Ark. Little Rock L. Rev. 398.

Case Notes

Constitutionality.

Deadlines for filing seven percent petitions previously required by this section and § 7-7-203 were unconstitutional as the petition provisions were too vague and indefinite to be enforced, and to judicially supply the needed definiteness would have improperly involved the court in exercising legislative prerogatives. American Party v. Jernigan, 424 F. Supp. 943 (E.D. Ark. 1977) (decision prior to 1977 amendment).

Seven percent petition for the establishment of new political parties formerly required by this section was excessive, was not required to vindicate any legitimate state interest, and was unconstitutional. American Party v. Jernigan, 424 F. Supp. 943 (E.D. Ark. 1977) (decision prior to 1977 amendment).

Former definition of “political party” in this section was void for vagueness and violated the First and Fourteenth Amendments. Citizens to Establish a Reform Party v. Priest, 970 F. Supp. 690 (E.D. Ark. 1996) (decision under prior law).

The conflict between the deadlines provisions in former definition of “political party” in this section and former § 7-7-203(g) rendered both statutes unconstitutionally vague. Citizens to Establish a Reform Party v. Priest, 970 F. Supp. 690 (E.D. Ark. 1996) (decision under prior law).

The individual statutory provisions set forth in former definition of “political party” in this section and former § 7-7-203(g), as well as the combined effect of the statutes, placed unreasonable burdens on plaintiffs seeking to establish a new political party, and those burdens were sufficiently severe to violate plaintiffs' rights under First Amendment guarantees of freedom of speech and freedom of association and Fourteenth Amendment guarantee of equal protection and the right to due process. Citizens to Establish a Reform Party v. Priest, 970 F. Supp. 690 (E.D. Ark. 1996) (decision under prior law).

The combined effect of the early deadline of former § 7-7-203(g) in conjunction with the 3% requirement of the former definition of “political party” in this section placed an unreasonable burden on federally protected constitutional rights. Citizens to Establish a Reform Party v. Priest, 970 F. Supp. 690 (E.D. Ark. 1996) (decision under prior law).

Definition of “political party” in this section, which decertified for ballot access purposes political parties that failed to obtain 3% of the vote in gubernatorial and presidential races, did not impose a severe burden on a political organization's First Amendment associational rights; the organization was free to nominate and endorse candidates of its choice, convey its message to voters, and determine its own structure, and Arkansas provided many alternative paths to the ballot. The state's regulatory interests in preventing ballot overcrowding, frivolous candidacies, and voter confusion justified the decertification requirement. Green Party v. Martin, 649 F.3d 675 (8th Cir. 2011).

In General.

A permanent injunctive order is issued against Secretary of State, to the effect that she officially recognize the formation of the Reform Party. Citizens to Establish a Reform Party v. Priest, 970 F. Supp. 690 (E.D. Ark. 1996) (decision under prior law).

Authority of Secretary of State.

The Secretary of State, as the chief elections official for the State of Arkansas, is empowered by this section with the exclusive authority to recognize the formation of new political parties; however, this also means that the former definition of “political party” in this section permitted the Secretary of State to exercise unbridled and unreviewable discretion in her determination of the sufficiency of a new political party petition. Citizens to Establish a Reform Party v. Priest, 970 F. Supp. 690 (E.D. Ark. 1996) (decision under prior law).

Filing Deadline.

Under the former definition of “political party” in this section, the effective filing deadline in 1996 was May 7, while under former § 7-7-203(g), the effective filing deadline for 1996 was January 2; the January 2 deadline of former § 7-7-203(g) was controlling. Citizens to Establish a Reform Party v. Priest, 325 Ark. 257, 926 S.W.2d 432 (1996) (decision under prior law).

General or Special Election.

Former section defined “general or special elections” as elections involving only candidates or officials. Garrett v. Andrews, 294 Ark. 160, 741 S.W.2d 257 (1987), cert. denied, 487 U.S. 1219, 108 S. Ct. 2873, 101 L. Ed. 2d 908 (1988).

Infamous Crimes.

Candidate for circuit court judge was not disqualified from running due to his conviction for a violation of § 27-14-306, the fictitious motor vehicle tags statute, as misdemeanor “infamous crimes” under Ark. Const. Art. 5, § 9 and § 7-1-101 are misdemeanor offenses in which “the finder of fact was required to find, or the defendant to admit, an act of deceit, fraud, or false statement”, and the appellate court could not say that a violation of § 27-14-306 required a finding or admission of deceit, fraud, or false statement. Weeks v. Thurston, 2020 Ark. 64, 594 S.W.3d 23 (2020).

While deceit, fraud, or a false statement certainly can be present in a violation of § 27-14-306, a finder of fact is not required under the statute to find deceit, fraud, or a false statement. Weeks v. Thurston, 2020 Ark. 64, 594 S.W.3d 23 (2020).

Legislative Intent.

Unlike in this section, the legislature did not intend to exempt presidential primaries from former § 7-7-203(g). Citizens to Establish a Reform Party v. Priest, 325 Ark. 257, 926 S.W.2d 432 (1996) (decision under prior law).

Political Party.

Because the presidential candidate for the Independent Party of Arkansas (IPA) garnered 10.43% of the votes in Arkansas's 1992 November General Election, the IPA was a qualified political party under the definition of “political party” in this section. Lewis v. West, 318 Ark. 334, 885 S.W.2d 663 (1994).

State official's motion for summary judgment was granted because a statutory scheme like Arkansas's that discriminated between parties with substantial community support and those without it, based on election performance and a viable petition option, was neither unreasonable nor invidiously discriminatory. The definition of “political party” in this section, as tempered by § 7-7-205, was reasonable, not invidiously discriminatory, and justified by Arkansas's important regulatory interests in being a good steward of its elections. Green Party of Ark. v. Daniels, 733 F. Supp. 2d 1055 (E.D. Ark. 2010), aff'd, Green Party v. Martin, 649 F.3d 675 (8th Cir. 2011).

School Elections.

Partisan selection of judges and clerks for elections does not apply to school district elections, since school elections are not general or special elections. Henley v. Goggins, 250 Ark. 912, 467 S.W.2d 697 (1971).

Vacancy in Nomination.

Subdivision (25) [now (37)] of this section only defines the term “vacancy in nomination” — it in no way empowers political committees with a procedure to cause or create a vacancy. Ivy v. Republican Party, 318 Ark. 50, 883 S.W.2d 805 (1994).

The General Assembly has provided no procedure for state and county party committees or conventions to make a judicial determination concerning whether a party nominee should be certified; to do so means the party officials would investigate, make factual determinations and determine whether those factual findings constitute “other good and legal cause” under subdivision (25) [now (37)] of this section, an undertaking which requires a judicial tribunal, not a political one. Ivy v. Republican Party, 318 Ark. 50, 883 S.W.2d 805 (1994).

Because the reason (good and legal cause) for vacating a nomination is defined by state law, it is compelling that a judicial, rather than a political, determination be made as to whether the facts correctly invoke subdivision (25) [now (37)] of this section and its definitional standard. Ivy v. Republican Party, 318 Ark. 50, 883 S.W.2d 805 (1994).

When the trial court declared an election void, the trial court did not create a vacancy as defined in this section; where there was no valid election and no nomination, the electorate was left as if no election had been held. Whitley v. Cranford, 354 Ark. 253, 119 S.W.3d 28 (2003).

Cited: Mears v. City of Little Rock, 256 Ark. 359, 508 S.W.2d 750 (1974); Spradlin v. Ark. Ethics Comm'n, 314 Ark. 108, 858 S.W.2d 684 (1993); Tittle v. Woodruff, 322 Ark. 153, 907 S.W.2d 734 (1995).

7-1-102. Work time to be scheduled for voting — Penalty.

Each employer in the state shall schedule the work hours of employees on election days so that each employee will have an opportunity to exercise the right of franchise. Any employer who fails or refuses to comply with the provisions of this section shall upon conviction be subject to a fine of not less than twenty-five dollars ($25.00) nor more than two hundred fifty dollars ($250).

History. Acts 1989, No. 545, § 1.

Publisher's Notes. Former § 7-1-102, concerning suspension of work on election day, was repealed by Acts 1987, No. 248, § 16. The section was derived from Acts 1969, No. 465, Art. 13, § 6; A.S.A. 1947, § 3-1306.

7-1-103. Miscellaneous misdemeanor offenses — Penalties — Definitions.

  1. The violation of any of the following shall be deemed misdemeanors punishable as provided in this section:
    1. It shall be unlawful for any person to appoint or offer to appoint anyone to any office or position of trust or for any person to influence, attempt to influence, or offer to influence the appointment, nomination, or election of any person to office in consideration of the support or assistance of the person for any candidate in any election in this state;
        1. It shall be unlawful for any public servant, as defined in § 21-8-402, to devote any time or labor during usual office hours toward the campaign of any other candidate for office or for the nomination to any office.
        2. Devoting any time or labor during usual office hours toward the campaign of any other candidate for office or for the nomination to any office includes without limitation the gathering of signatures for a nominating petition.
      1. It shall be unlawful for any public servant, as defined in § 21-8-402, to circulate an initiative or referendum petition or to solicit signatures on an initiative or referendum petition in any public office of the state, county, or municipal governments of Arkansas or during the usual office hours or while on duty for any state agency or any county or municipal government in Arkansas.
      2. It shall be unlawful for any public servant, as defined in § 21-8-402, to coerce, by threats or otherwise, any public employee into devoting time or labor toward the campaign of any candidate for office or for the nomination to any office;
      1. It shall be unlawful for any public servant, as defined in § 21-8-402, to use any office or room furnished at public expense to distribute any letters, circulars, or other campaign materials unless such office or room is regularly used by members of the public for such purposes without regard to political affiliation. It shall further be unlawful for any public servant to use for campaign purposes any item of personal property provided with public funds.
      2. As used in subdivision (a)(3)(A) of this section, “campaign materials” and “campaign purposes” refer to:
        1. The campaign of a candidate for public office; and
        2. Efforts to support or oppose a ballot measure, except as provided in § 7-1-111;
    2. It shall be unlawful for any person to assess any public employee, as defined in § 21-8-402, for any political purpose whatever or to coerce, by threats or otherwise, any public employee into making a subscription or contribution for any political purpose;
    3. It shall be unlawful for any person employed in any capacity in any department of the State of Arkansas to have membership in any political party or organization that advocates the overthrow of our constitutional form of government;
    4. It shall be unlawful for any campaign banners, campaign signs, or other campaign literature to be placed on any cars, trucks, tractors, or other vehicles belonging to the State of Arkansas or any municipality, county, or school district in the state;
        1. All articles, statements, or communications appearing in any newspaper printed or circulated in this state intended or calculated to influence the vote of any elector in any election and for the publication of which a consideration is paid or to be paid shall clearly contain the words “Paid Political Advertisement”, “Paid Political Ad”, or “Paid for by” the candidate, committee, or person who paid for the message.
        2. Both the persons placing and the persons publishing the articles, statements, or communications shall be responsible for including the required disclaimer.
        1. All articles, statements, or communications appearing in any radio, television, or any other electronic medium intended or calculated to influence the vote of any elector in any election and for the publication of which a consideration is paid or to be paid shall clearly contain the words:
          1. “Paid political advertisement” or “paid political ad”; or
          2. “Paid for by”, “sponsored by”, or “furnished by” the true sponsor of the advertisement.
        2. Both the persons placing and the persons publishing the articles, statements, or communications shall be responsible for including the required disclaimer;
      1. An election official acting in his or her official capacity shall not do any electioneering:
        1. On election day or any day on which early voting is allowed;
        2. In a building in which voting is taking place; or
        3. Within one hundred feet (100') of the primary exterior entrance used by voters to a building in which voting is taking place.
      2. On early voting days and election day, a person shall not do any electioneering during voting hours:
        1. In a building in which voting is taking place;
        2. Within one hundred feet (100') of the primary exterior entrance used by voters to a building in which voting is taking place; or
        3. With persons standing in line to vote.
        1. As used in this subdivision (a)(8), “electioneering” means the display of or audible dissemination of information that advocates for or against any candidate, issue, or measure on a ballot.
        2. “Electioneering” includes without limitation the following:
          1. Handing out, distributing, or offering to hand out or distribute campaign literature or literature regarding a candidate, issue, or measure on the ballot;
          2. Soliciting signatures on a petition;
          3. Soliciting contributions for a charitable or other purpose;
          4. Displaying a candidate's name, likeness, or logo;
          5. Displaying a ballot measure's number, title, subject, or logo;
          6. Displaying or dissemination of buttons, hats, pencils, pens, shirts, signs, or stickers containing electioneering information; and
          7. Disseminating audible electioneering information.
        3. “Electioneering” does not include:
          1. The presentation of a candidate's identification by the candidate under Arkansas Constitution, Amendment 51, § 13; or
          2. The display of a ballot measure in the polling place as required under § 7-5-202;
    5. No election official shall perform any of the duties of the position before taking and subscribing to the oath provided for in § 7-4-110;
    6. No person applying for a ballot shall swear falsely to any oath administered by the election officials with reference to his or her qualifications to vote;
    7. No person shall willfully cause or attempt to cause his or her own name to be registered in any other election precinct than that in which he or she is or will be before the next ensuing election qualified as an elector;
    8. During any election, no person shall remove, tear down, or destroy any booths or supplies or other conveniences placed in any booth or polling site for the purpose of enabling the voter to prepare his or her ballot;
    9. No person shall take or carry any ballot obtained from any election official outside of the polling room or have in his or her possession outside of the polling room before the closing of the polls any ballot provided by any county election commissioner;
    10. No person shall furnish a ballot to any elector who cannot read informing him or her that it contains a name or names different from those that are written or printed thereon or shall change or mark the ballot of any elector who cannot read so as to prevent the elector from voting for any candidate, act, section, or constitutional amendment as the elector intended;
    11. No election official or other person shall unfold a ballot or without the express consent of the voter ascertain or attempt to ascertain any vote on a ballot before it is placed in the ballot box;
    12. No person shall print or cause to be printed any ballot for any election held under this act with the names of the candidates appearing thereon in any other or different order or manner than provided by this act;
    13. No election official shall permit the vote of any person to be cast in any election precinct in this state in any election legally held in this state when the person does not appear in person at the election precinct and actually cast the vote. This subdivision (a)(17) shall not apply to persons entitled to cast absentee ballots;
      1. No person shall vote or offer to vote more than one (1) time in any election held in this state, either in person or by absentee ballot, or shall vote in more than one (1) election precinct in any election held in this state.
      2. No person shall cast a ballot or vote in the preferential primary of one (1) political party and then cast a ballot or vote in the general primary of another political party in this state;
    14. No person shall:
      1. Vote, knowing himself or herself not to be entitled to vote;
      2. Vote more than once at any election or knowingly cast more than one (1) ballot or attempt to do so;
      3. Provide assistance to a voter in marking and casting the voter's ballot except as provided in § 7-5-310;
      4. Alter or attempt to alter any ballot after it has been cast;
      5. Add or attempt to add any ballot to those legally polled at any election either by fraudulently introducing it into the ballot box before or after the ballots have been counted or at any other time or in any other manner with the intent or effect of affecting the count or recount of the ballots;
      6. Withdraw or attempt to withdraw any ballot lawfully polled with the intent or effect of affecting the count or recount of the ballots; or
      7. In any manner interfere with the officials lawfully conducting the election or the canvass or with the voters lawfully exercising their right to vote at the election;
    15. No person shall make any bet or wager upon the result of any election in this state;
    16. No election official, poll watcher, or any other person in or out of this state in any primary, general, or special election in this state shall divulge to any person the results of any votes cast for any candidate or on any issue in the election until after the closing of the polls on the day of the election. The provisions of this subdivision (a)(21) shall not apply to any township or precinct in this state in which all of the registered voters therein have voted prior to the closing of the polls in those instances in which there are fifteen (15) or fewer registered voters in the precinct or township; and
    17. Any person, election official, county clerk, or deputy clerk who violates any provisions of the absentee voting laws, § 7-5-401 et seq., shall be punished as provided in this section.
    1. Except as otherwise provided, the violation of any provision of this section shall be a Class A misdemeanor.
      1. Any person convicted under the provisions of this section shall thereafter be ineligible to hold any office or employment in any of the departments in this state.
        1. If any person is convicted under the provisions of this section while employed by any of the departments of this state, he or she shall be removed from employment immediately.
        2. If any person is convicted under the provisions of this section while holding public office, the conviction shall be deemed a misfeasance and malfeasance in office and shall subject the person to impeachment.
  2. Any violation of this act not covered by this section and § 7-1-104 shall be considered a Class A misdemeanor and shall be punishable as such.

History. Acts 1969, No. 465, Art. 11, § 4; 1970 (1st Ex. Sess.), No. 3, § 1; 1971, No. 261, § 24; 1981, No. 327, § 1; A.S.A. 1947, § 3-1104; Acts 1987, No. 395, § 1; 1989, No. 505, § 2; 1991, No. 241, § 2; 1991, No. 786, § 4; 1995, No. 497, § 1; 1995, No. 1085, § 1; 1997, No. 445, § 2; 1997, No. 1121, § 1; 1999, No. 553, § 1; 1999, No. 1525, § 1; 2001, No. 795, § 1; 2001, No. 926, § 1; 2001, No. 1839, § 1; 2005, No. 1284, § 1; 2007, No. 221, § 1; 2009, No. 310, § 1; 2009, No. 473, § 1; 2009, No. 658, § 1; 2011, No. 721, § 1; 2013, No. 312, § 1; 2019, No. 533, § 1.

A.C.R.C. Notes. Pursuant to § 1-2-207, the amendment of subdivision (a)(9) by Acts 1997, No. 445 is deemed to be superseded by its amendment by Acts 1997, No. 1121. Acts 1997, No. 445 amended (a)(9) to read as follows:

“(a)(9) No person shall willfully disturb or engage in riotous conduct at or near any polling site with the intent or effect of disturbing or interfering with the access of the electors to the polling site.”

Amendments. The 2007 amendment added (a)(2)(C) and (a)(3)(B) and made related changes; inserted “or school district” in (a)(6); and made stylistic changes.

The 2009 amendment by No. 310 inserted (a)(7)(B) and redesignated the remaining subdivisions accordingly; deleted “or on radio, television, or any other electronic medium” in (a)(7)(A)(i), and made a related change.

The 2009 amendment by No. 473 inserted (a)(2)(A)(ii).

The 2009 amendment by No. 658 inserted (a)(20)(C) and redesignated the remaining subdivisions accordingly.

The 2011 amendment added “or ‘Paid for by’ the candidate, committee, or person who paid for the message” to the end of (a)(7)(A)(i).

The 2013 amendment rewrote (a)(3)(B).

The 2019 amendment rewrote (a)(8).

Meaning of “this act”. See note to § 7-1-101.

Research References

Ark. L. Rev.

Official Misconduct under the Arkansas Criminal Code, 30 Ark. L. Rev. 160.

Comments: Removal and Discipline of Judges in Arkansas, Porter, 32 Ark. L. Rev. 545.

U. Ark. Little Rock L. Rev.

Survey of Legislation, 2005 Arkansas General Assembly, Election Law, 28 U. Ark. Little Rock L. Rev. 351.

Case Notes

Betting on Elections.

One making a bet on the result of a primary election to nominate a candidate for sheriff is entitled to recover the amount of the wager deposited with the stakeholder, where he requested its return before it was paid over to the winner. Williams v. Kagy, 176 Ark. 484, 3 S.W.2d 332 (1928); Sicard v. Williams, 181 Ark. 1147, 29 S.W.2d 673 (1930) (decision under prior law).

A strong case for recount of votes was made in an election contest hearing where the losing contestant proved that an election judge bet on the outcome. Wood v. Brown, 235 Ark. 500, 361 S.W.2d 67 (1962) (decision under prior law).

Electioneering.

An election judge has no right to campaign for his candidate at the polling booth. Phillips v. Melton, 222 Ark. 162, 257 S.W.2d 931 (1953) (decision under prior law).

Enforcement of subdivision (9) [now (a)(8)] of this section by the collection of campaign literature from voters in the polling place was not a violation of former § 7-5-608 where voters were not prohibited from carrying voting aids into the polling place. McGruder v. Phillips County Election Comm'n, 850 F.2d 406 (8th Cir. 1988).

Unlawful Voting.

In a prosecution for unlawful voting or alteration of ballots, the evidence must show some animus or fraudulent intent on the part of the accused before he can be adjudged guilty. Williams v. State, 222 Ark. 458, 261 S.W.2d 263 (1953) (decision under prior law).

Trial court did not abuse its discretion in ruling that a voter voted twice and that his votes for appellant in an election result challenge should have been excluded where there was sufficient evidence to show that the voter voted twice because the county clerk produced an absentee ballot cast by the voter, as well as a sign-in sheet from the polls that indicated that he voted a second time at the polls. Tate-Smith v. Cupples, 355 Ark. 230, 134 S.W.3d 535 (2003).

Cited: Garionis v. Newton, 827 F.2d 306 (8th Cir. 1987); Westark Christian Action Council v. Stodola, 311 Ark. 449, 843 S.W.2d 318 (1993); Westark Christian Action Council v. Stodola, 312 Ark. 249, 848 S.W.2d 935 (1993) (decision under prior law).

7-1-104. Miscellaneous felonies — Penalties.

  1. The following offenses shall be deemed felonies punishable as provided in this section:
    1. No person shall falsely make or fraudulently destroy any certificate of nominations or any part thereof, file any certificate of nominations knowing the certificate or any part thereof to be false, suppress any nomination or any part thereof which has been filed, or forge or falsely write the name or initials of any election official on any ballot;
    2. No public official or other person shall in any manner willfully or corruptly permit any person not entitled to register for the purpose of voting to register, nor shall a public official or other person forge or attempt to forge a registration;
    3. No person shall vote in any election in the state unless the person is a qualified elector of this state and has registered to vote in the manner provided by law;
    4. It shall be unlawful for any person to offer, accept, receive, or pay any person any money, goods, wares, or merchandise or solicit any money, goods, wares, or merchandise for the purpose of influencing his or her vote during the progress of any election in this state;
    5. It shall be unlawful for any person to make any threat or attempt to intimidate any elector or the family, business, or profession of the elector;
    6. It shall be unlawful for any person to interfere with or to prevent any qualified elector from voting at any election or to attempt to interfere with or to prevent any qualified elector from voting at any election, provided that this subdivision (a)(6) shall not prohibit good faith challenges of ballots or voters according to law by candidates, authorized representatives of candidates, political parties, or ballot issues;
    7. It shall be unlawful for any person to attend any polling site on election day and hand out or give away any campaign cards, placards, or other articles for the purpose of influencing the electors to vote for any candidate, except in the manner now provided by law;
      1. It shall be unlawful for a person with the intent to defraud a voter or an election official to possess an absentee ballot issued to another.
      2. The possession by a person of more than ten (10) absentee ballots creates a rebuttable presumption of intent to defraud.
      3. The presumption under subdivision (a)(8)(B) of this section does not apply to:
        1. An employee of the United States Postal Service performing the normal course of the employee's authorized duties;
        2. A common or contract carrier performing the normal course of the carrier's authorized duties;
        3. The administrative head of a long-term care or residential care facility licensed by the state authorized by a voter under Arkansas law; or
        4. An election official acting in his or her official capacity;
    8. No person shall tamper with a voting machine or fraudulently affect or attempt to affect its results;
    9. No person may cast a ballot in more than one (1) party primary election on the same day in this state or for candidates for more than one (1) political party;
    10. No person shall vote in any election more than one (1) vote;
    11. No person shall vote or attempt to vote other than his or her legal ballot;
    12. No election official shall knowingly permit any person to vote other than his or her legal ballot in any election;
    13. No election official or other person shall fraudulently permit any person to vote illegally, refuse the vote of any qualified elector, or cast up or make a false return of any election;
    14. No election official or other person shall willfully make a false count of any election ballots or falsely or fraudulently certify the returns of any election;
    15. No person shall fraudulently change, alter, or obliterate the poll books or books of any election or break any seals upon any ballot box, voting machine, or stub box, except as authorized by law;
    16. No person shall contrive, alter, forge, counterfeit, detain, mutilate, steal, secrete, or destroy any election returns or election materials for the purpose of hindering or preventing or falsely reporting a tabulation or check of the returns; and
    17. Any person who violates the provisions of § 7-5-702 or who shall disclose how any voter may have voted unless compelled to do so in a judicial proceeding shall be deemed guilty of a Class D felony and punished as provided in this section.
    1. Any person convicted of a felony as defined in this section shall be guilty of a Class D felony.
      1. Any person convicted of a felony as defined in this section shall be barred from holding public office or employment in any of the departments of the state from the date of his or her conviction.
        1. If the person is employed by any of the departments of this state at the time of his or her conviction, he or she shall be removed from employment immediately.
        2. If any person is convicted under the provisions of this section while holding public office, the conviction shall be deemed a misfeasance and malfeasance in office and shall subject the person to impeachment.

History. Acts 1969, No. 465, Art. 11, § 5; A.S.A. 1947, § 3-1105; Acts 1995, No. 497, § 1; 1995, No. 1085, § 1; 1997, No. 445, § 3; 1999, No. 655, § 1; 2001, No. 1553, § 17; 2003, No. 1458, § 1; 2005, No. 1677, § 1; 2009, No. 658, § 2.

Amendments. The 2009 amendment inserted (a)(8) and redesignated the remaining subdivisions accordingly.

Research References

Ark. L. Rev.

Comments: Removal and Discipline of Judges in Arkansas, Porter, 32 Ark. L. Rev. 545.

U. Ark. Little Rock L.J.

Seventeenth Annual Survey of Arkansas Law — Miscellaneous, 17 U. Ark. Little Rock L.J. 452.

Case Notes

False Count or Certificate.

The offenses of “falsifying returns” and “making a false count” are separate and distinct. Kelly v. State, 102 Ark. 651, 145 S.W. 556 (1912) (decision under prior law).

Indictment need not allege that false certificate was delivered to the election commissioners, since delivery is not necessary; the offense is complete when a false certificate is made out and signed. State v. Doughty, 134 Ark. 435, 204 S.W. 968 (1918) (decision under prior law).

Indictment need not set forth particular manner in which wrongful result was brought about, whether by a false count and certificate of the ballots or whether by a correct count and a false certificate as to the result obtained by the count. State v. Doughty, 134 Ark. 435, 204 S.W. 968 (1918) (decision under prior law).

Subpoena of Bank Records.

A prosecuting attorney investigating a suspected election law violation was not allowed to subpoena the bank records of a political party's checking account and thereby ascertain the identity of all contributors to the party's campaign and amounts of their contributions without a showing that the information was reasonably relevant to the investigation or that public interest in the disclosure of the information was sufficiently cogent and compelling to outweigh the legitimate and constitutionally protected interests of the political party and its contributors in keeping that information private. Pollard v. Roberts, 283 F. Supp. 248 (E.D. Ark.), aff'd, 393 U.S. 14, 89 S. Ct. 47, 21 L. Ed. 2d 14 (1968) (decision under prior law).

Suppressing Nomination.

An indictment was sufficient which charged that the petition of the necessary number of qualified electors was filed with the election commissioners and that the commissioners suppressed the nomination by failing and refusing to place on the official ballot the name of the candidate thus nominated. State v. Hunter, 134 Ark. 443, 204 S.W. 308 (1918) (decision under prior law).

Unofficial Ballots.

Former statute making it a crime to print and distribute any ballots outside of those ballots ordered for use in an election did not violate U.S. Const., Amend. 14, as legislature was seeking only to prevent intimidation of voters by use of unofficial ballots and did not intend to prevent freedom of speech. Branton v. State, 214 Ark. 861, 218 S.W.2d 690, cert. denied, 338 U.S. 878, 70 S. Ct. 155, 94 L. Ed. 538 (1949) (decision under prior law).

Former statute making it unlawful to print or distribute ballots not ordered for use in the election was violated when mimeographed lists of candidates, not officially designated as official ballots, were distributed at a political meeting and people at the meeting were told to mark those lists in a certain way. Branton v. State, 214 Ark. 861, 218 S.W.2d 690, cert. denied, 338 U.S. 878, 70 S. Ct. 155, 94 L. Ed. 538 (1949) (decision under prior law).

7-1-105. Majority of qualified electors.

Whenever any law of this state shall require that a proposition or question shall be adopted by a majority of the qualified electors of this state, of a city, or of a county based on the total number of electors of the state, city, or county, appearing on the certified list of all qualified electors thereof, the majority required for the adoption of the proposition or question hereafter shall be deemed to be the majority of the qualified electors of the state, city, or county voting on the proposition or question at the election.

History. Acts 1969, No. 465, Art. 13, § 3; A.S.A. 1947, § 3-1303; Acts 1997, No. 445, § 4.

7-1-106. Election laws expert.

The Secretary of State shall designate at least one (1) member of his or her staff to become knowledgeable of the election laws as they pertain to elections in the State of Arkansas for the purpose of answering procedural questions concerning elections and to aid the candidates and their agents in filing for election.

History. Acts 1977, No. 312, § 8; A.S.A. 1947, § 3-1314.

7-1-107. [Repealed.]

Publisher's Notes. This section, concering independent candidates for municipal office, was repealed by Acts 1997, No. 445, § 5. The section was derived from Acts 1985, No. 545, § 1; A.S.A. 1947, § 19-956.

7-1-108. Election law deadlines.

If an election law deadline occurs on a Saturday, Sunday, or legal holiday, the deadline shall be the next day which is not a Saturday, Sunday, or legal holiday.

History. Acts 1999, No. 653, § 1.

A.C.R.C. Notes. Identical language appears at Ark. Const., Amend. 51, § 9(l) as amended by Acts 1999, No. 654, § 1, Acts 2003, No. 995, § 3, and Acts 2005, No. 1952, § 1.

7-1-109. Enforcement of election laws.

Following a written complaint concerning any election law violation or irregularity to the county board of election commissioners, the written complaint shall be sent by the county board of election commissioners to the appropriate county clerk and appropriate prosecuting attorney for evaluation.

History. Acts 2003, No. 270, § 1.

Research References

U. Ark. Little Rock L. Rev.

Survey of Legislation, 2003 Arkansas General Assembly, Election Law, Complaints Concerning Election Law Violations, 26 U. Ark. Little Rock L. Rev. 397.

Survey of Legislation, 2003 Arkansas General Assembly, Election Law, Access to Voter Information through Internet, 26 U. Ark. Little Rock L. Rev. 403.

7-1-110. Voting information on internet website.

The Secretary of State shall provide on his or her internet website a mechanism to allow a person to enter his or her home address and retrieve information concerning the person's polling location, precinct, state representative, and state senator.

History. Acts 2003, No. 1167, § 1.

Publisher's Notes. The Secretary of State's website address is www.sos.arkansas.gov.

7-1-111. Use of public funds to support or oppose ballot measure — Definitions.

  1. As used in this section:
    1. “Governmental body” means the same as defined in § 21-8-402;
    2. “Public funds” means funds, moneys, receivables, grants, investments, instruments, real or personal property, or other assets, liabilities, equities, revenues, receipts, or disbursements belonging to, held by, or passed through a governmental body; and
      1. Except as provided in subdivision (a)(3)(B) of this section, “public servant” means an individual who is:
        1. Employed by a governmental body;
        2. Appointed to serve a governmental body; or
        3. Appointed to a governmental body.
      2. “Public servant” does not include:
        1. An elected official; or
        2. A person appointed to an elective office.
  2. It is unlawful for a public servant or a governmental body to expend or permit the expenditure of public funds to support or oppose a ballot measure.
  3. This section does not:
    1. Limit the freedom of speech of a public servant or government body, including without limitation verbal expressions of views supporting or opposing a ballot measure;
    2. Prohibit a governmental body from expressing an opinion on a ballot measure through the passage of a resolution or proclamation;
    3. Prohibit the incidental use of state resources by a public servant, including without limitation travel costs, when speaking at an event in which a ballot measure is discussed if the subject matter of the speaking engagement is within the scope of the official duties and responsibilities of the public servant; or
    4. Prohibit the dissemination of public information at a speaking engagement and the incidental use of state resources in the analysis and preparation of that public information if the subject matter of the public information is within the scope of the official duties and responsibilities of the public servant.
    1. Except as provided under subdivision (d)(2) of this section, a violation of this section is a Class A misdemeanor.
      1. A public servant who is found guilty or pleads guilty or nolo contendere to a violation under this section is ineligible to hold any office, employment, or appointment in a governmental body.
      2. If a public servant is found guilty or pleads guilty or nolo contendere to a violation under this section while employed by a governmental body, he or she shall be removed from employment immediately.

History. Acts 2013, No. 312, § 2.

7-1-112. Destruction of a ballot or ballot materials — Prohibited — Definitions.

  1. A person shall not knowingly destroy a ballot or ballot-related material required to be preserved by law until after:
    1. Two (2) years after the certification of the results of the election; and
    2. The county board of election commissioners has entered an order, created a record to be maintained, and filed the order for destruction of the ballot or ballot-related material.
    1. As used in this section, “ballot or ballot-related material” means a ballot or other form that is:
      1. Provided to a person representing himself or herself as the voter or his or her agent by a county clerk, member of a county board of election commissioners, or poll worker; and
      2. Returned by the person representing himself or herself as a voter or his or her agent for the purpose of voting in an election.
    2. “Ballot or ballot-related material” includes without limitation:
      1. A ballot that has been completed, cast, abandoned, or spoiled;
      2. A ballot stub or certificate from a ballot that has been completed, cast, abandoned, or spoiled;
      3. A voter statement that has been submitted to the county clerk;
      4. An envelope that contains a ballot;
      5. An affidavit provided to the county clerk;
      6. An absentee ballot list maintained under § 7-5-416;
      7. An absentee ballot application; and
      8. A list of applications for an absentee ballot under § 7-5-408.
  2. A person who is convicted under this section is guilty of an unclassified felony and shall:
    1. Be sentenced to a term of no less than one (1) year and no more than six (6) years; and
    2. Pay a fine of up to ten thousand dollars ($10,000).

History. Acts 2013, No. 1261, § 1.

7-1-113. Vote centers.

    1. The county board of election commissioners may establish one (1) or more vote centers in the county on election day under § 7-5-101.
    2. A vote center shall be available to any qualified elector registered to vote in the county who applies to the county board of election commissioners while the polls are open on election day.
  1. If a vote center is used in an election, the vote center shall have a secure electronic connection to provide voting information to and receive voting information from a computerized registration book maintained by the county clerk.
  2. Before a person is permitted to cast a vote at a vote center, the election official shall:
    1. Request that the voter identify himself or herself by stating his or her name, date of birth, and address in order to verify his or her registration and provide identification as required by law;
    2. Request that the voter provide identification as required by law;
    3. If the voter's name or address is not the same as that in the county voter registration record files, request that the voter complete an updated voter registration application form; and
      1. Request that the voter sign a voting roster or voting request form that identifies his or her name, address, date of birth, and the date on the roster or form.
      2. The voting roster or voting request form shall contain the written or printed precinct number or ballot style of the voter.
  3. If the voter is not listed in the electronic county voter registration files, the election official is unable to verify the voter's registration, and the voter contends that he or she is eligible to vote, the voter shall be directed to his or her polling site for the voter's precinct to cast a ballot.
  4. The county board of election commissioners shall furnish a vote center location that adequately allows the voter to personally and secretly execute his or her vote.
  5. The Secretary of State shall promulgate rules for the vote centers that:
    1. Designate the electronic equipment to be used to verify the registration record of a voter;
    2. Establish standards for the maintenance and use of the equipment used at a vote center;
    3. Establish standards for the testing and backup of the equipment used at a vote center;
    4. Establish standards for a secure electronic connection between a vote center and a county's computerized registration book; and
    5. Establish procedures for the conduct of the vote center in the event that the electronic system fails.

History. Acts 2013, No. 1389, § 2; 2015, No. 1042, § 2.

Amendments. The 2015 amendment deleted “county clerk or” preceding “county board” in (a)(1), (a)(2), and (e); and deleted “county clerk or” preceding “election official” in the introductory language of (c) and in (d).

Research References

ALR.

Voter Identification Requirements as Denying or Abridging Right to Vote on Account of Race or Color Under § 2 of Voting Rights Act, 52 U.S.C. § 10301. 12 A.L.R. Fed. 3d 4 (2016).

7-1-114. Display of campaign literature on vehicle of candidate or public official while on State Capitol grounds.

  1. It is unlawful for a candidate or a public official, as defined in § 21-8-402, to display one (1) or more campaign banners, campaign signs, or other campaign literature larger than twelve inches by twelve inches (12" x 12") on a car, truck, tractor, or other vehicle belonging to the candidate or public official while on the State Capitol grounds.
  2. The Arkansas Ethics Commission shall promulgate rules concerning the enforcement of this section, including without limitation providing for the imposition of a fine for violations of this section that shall not exceed one hundred fifty dollars ($150).

History. Acts 2015, No. 1280, § 2.

Chapter 2 Congressional Districts

A.C.R.C. Notes. Acts 2001, No. 1840, § 6, provided:

“If any provision of section 2, 3, 4 or 5 of this act is held invalid by any court of competent jurisdiction, sections 2 through 5 of this act shall be void and Arkansas Code 7-2-102 through 7-2-105 shall be repealed and the congressional districts of this state shall be as follows:

“(1) The First Congressional District shall be composed of the counties of: Arkansas; Baxter; Clay; Cleburne; Craighead; Crittenden; Cross; Fulton; Greene; Independence; Izard; Jackson; Lawrence; Lee; Lonoke; Mississippi; Monroe; Phillips; Prairie; Poinsett; Randolph; St. Francis; Searcy; Sharp; Stone; and Woodruff; and the qualified electors residing therein shall elect one (1) member of the House of Representatives of the United States;

“(2) The Second Congressional District shall be composed of the counties of: Conway; Faulkner; Perry; precincts 20, 24, 56, and 57 of Pope County; Pulaski; Saline; Van Buren; White; and Yell; and the qualified electors residing therein shall elect one (1) member of the House of Representatives of the United States;

“(3) The Third Congressional District shall be composed of the following counties or parts of counties: Benton; Boone; Carroll; Crawford; Franklin (except precincts 20, 23, 24, 26, and 28); Johnson; Madison; Marion; Newton; Pope(except precincts 20, 24, 56, and 57); Sebastian; and Washington; and the qualified electors residing therein shall elect one (1) member of the House of Representatives of the United States; and

“(4) The Fourth Congressional District shall be composed of the following counties or parts of counties: Ashley; Bradley; Calhoun; Chicot; Clark; Cleveland; Columbia; Dallas; Desha; Drew; precincts 20, 23, 24, 26, and 28 of Franklin County; Garland; Grant; Hempstead; Hot Spring; Howard; Jefferson; Lafayette; Little River; Lincoln; Logan; Miller; Montgomery; Nevada; Ouachita; Pike; Polk; Scott; Sevier; and Union; and the qualified electors residing therein shall elect one (1) member of the House of Representatives of the United States.”

Case Notes

Constitutionality.

The General Assembly did not violate the Fourteenth and Fifteenth Amendments of the U.S. Constitution, nor did it intend to discriminate against black plaintiffs by enacting Act 1220 of 1991. Turner v. Arkansas, 784 F. Supp. 553 (E.D. Ark. 1991).

Act 1220 of 1991 does not have the effect of discriminating against black voters or diluting or diminishing their influence. Turner v. Arkansas, 784 F. Supp. 553 (E.D. Ark. 1991).

Burden of Proof.

Plaintiffs bear the burden of showing that differences among congressional districts can be avoided, and if plaintiffs meet that burden defendants bear the burden of proving that each significant variance between districts is necessary to achieve some legitimate goal. Turner v. Arkansas, 784 F. Supp. 553 (E.D. Ark. 1991).

Voting Rights Act.

The reapportionment plan established by Act 1220 of 1991 does not violate Section 2 of the Voting Rights Act, 42 U.S.C. § 1973, as amended in 1982 [now 52 USCS § 10301]. Turner v. Arkansas, 784 F. Supp. 553 (E.D. Ark. 1991).

7-2-101. Number of congressional districts.

The State of Arkansas is hereby divided into four (4) congressional districts, provided that the members of the United States House of Representatives presently serving from each of the existing congressional districts of this state shall continue to serve until the expiration of their current terms, and successor congressmen shall be elected from the congressional districts as established in this subchapter. It is the intention of this subchapter to provide for congressional districts of substantially equal population in order to comply with the Equal Protection Clause of the Fourteenth Amendment to the Constitution of the United States.

History. Acts 1991, No. 1220, § 1; 2001, No. 1840, § 1.

7-2-102. First Congressional District.

  1. The First Congressional District shall be composed of:
    1. The counties of Arkansas, Baxter, Chicot, Clay, Cleburne, Craighead, Crittenden, Cross, Desha, Fulton, Greene, Independence, Izard, Jackson, Lawrence, Lee, Lincoln, Lonoke, Mississippi, Monroe, Phillips, Prairie, Poinsett, Randolph, St. Francis, Sharp, Stone, and Woodruff;
    2. The following voting districts of Jefferson County as they existed on January 1, 2011:
      1. 19 (Dunnington) voting district;
      2. P15 (Dudley Lake) voting district;
      3. 25 (Old River) voting district;
      4. 57 (Villemont) voting district;
      5. P91 (Roberts) voting district;
      6. P851 (Humphrey) voting district; and
      7. P862 (Humphrey) voting district; and
    3. The voting districts and voting precincts of Searcy County as they existed on January 1, 2011, that are not listed under § 7-2-104(a)(4).
  2. The qualified electors residing in the counties and portion of Jefferson County and Searcy County listed under subsection (a) of this section shall elect one (1) member of the United States House of Representatives.

History. Acts 1991, No. 1220, § 2; 2001, No. 1840, § 2; 2011, No. 1241, § 1; 2011, No. 1242, § 1.

Amendments. The 2011 amendment by identical acts Nos. 1241 and 1242, in present (a)(1), inserted “Chicot,” “Desha,” and “Lincoln,” and deleted “Searcy” following ”St. Francis”; inserted (a)(2) and (a)(3); and rewrote and redesignated present (b).

7-2-103. Second Congressional District.

  1. The Second Congressional District shall be composed of the counties of Conway, Faulkner, Perry, Pulaski, Saline, Van Buren, and White.
  2. The qualified electors residing in the counties listed under subsection (a) of this section shall elect one (1) member of the United States House of Representatives.

History. Acts 1991, No. 1220, § 3; 2001, No. 1840, § 3; 2011, No. 1241, § 1; 2011, No. 1242, § 1.

Amendments. The 2011 amendment by identical acts Nos. 1241 and 1242 deleted “and Yell” following “White” in present (a)(1); and substituted “in the counties listed under subsection (a) of this section” for “therein” in present (b).

7-2-104. Third Congressional District.

  1. The Third Congressional District shall be composed of:
    1. The counties of Benton, Boone, Carroll, Marion, Pope, and Washington;
    2. The voting districts and voting precincts of Crawford County as they existed on January 1, 2011, that are not listed under § 7-2-105(a)(2);
    3. The following voting districts of Newton County as they existed on January 1, 2011:
      1. Big Creek voting district;
      2. Dogpatch voting district;
      3. Grove voting district;
      4. Hasty voting district;
      5. Polk voting district;
      6. Richland voting district; and
      7. White voting district;
    4. The Prairie voting district of Searcy County as it existed on January 1, 2011; and
    5. The voting districts and voting precincts of Sebastian County as they existed on January 1, 2011, that are not listed under § 7-2-105(a)(5).
  2. The qualified electors residing in the counties and portions of Crawford County, Newton County, Searcy County, and Sebastian County listed under subsection (a) of this section shall elect one (1) member of the United States House of Representatives.

History. Acts 1991, No. 1220, § 4; 2001, No. 1840, § 4; 2011, No. 1241, § 1; 2011, No. 1242, § 1.

Amendments. The 2011 amendment by identical acts Nos. 1241 and 1242, in present (a)(1), deleted “Crawford, Franklin, Johnson, Madison” following “Carroll,” deleted “Newton” following “Marion,” and deleted “Sebastian” following “Pope”; inserted (a)(2) through (a)(5); and rewrote and redesignated present (b).

7-2-105. Fourth Congressional District.

  1. The Fourth Congressional District shall be composed of:
    1. The counties of Ashley, Bradley, Calhoun, Clark, Cleveland, Columbia, Dallas, Drew, Franklin, Garland, Grant, Hempstead, Hot Spring, Howard, Johnson, Lafayette, Little River, Logan, Madison, Miller, Montgomery, Nevada, Ouachita, Pike, Polk, Scott, Sevier, Union, and Yell;
    2. The following voting districts of Crawford County as they existed on January 1, 2011:
      1. Alma # 1 voting district;
      2. Alma # 4 voting district;
      3. Bidville voting district;
      4. Chester voting district;
      5. Dean Springs voting district;
      6. Dyer voting district;
      7. Eagle Crest voting district;
      8. Kibler voting district;
      9. Locke voting district;
      10. Mountain voting district;
      11. Mulberry # 1 voting district;
      12. Mulberry # 2 voting district;
      13. Mulberry # 3 voting district;
      14. Porter voting district;
      15. Vine Prairie voting district;
      16. Whitley voting district; and
      17. Winfrey voting district;
    3. The voting districts and voting precincts of Jefferson County as they existed on January 1, 2011, that are not listed under § 7-2-102(a)(2);
    4. The voting districts and voting precincts of Newton County as they existed on January 1, 2011, that are not listed under § 7-2-104(a)(3); and
    5. The following voting districts of Sebastian County as they existed on January 1, 2011:
      1. 9-1-A voting district;
      2. 9-1-B voting district;
      3. 9-1-C voting district;
      4. 9-1-D voting district;
      5. 9-1-E voting district;
      6. 9-1-Q voting district;
      7. 9-2-E voting district;
      8. 9-3-E voting district;
      9. 9-3-F voting district;
      10. 9-3-G voting district;
      11. 9-3-H voting district;
      12. 9-3-I voting district;
      13. 9-3-J voting district;
      14. 9-3-K voting district;
      15. 9-3-L voting district; and
      16. 9-3-M voting district.
  2. The qualified electors residing in the counties and portions of Crawford County, Jefferson County, Newton County, and Sebastian County listed under subsection (a) of this section shall elect one (1) member of the United States House of Representatives.

History. Acts 1991, No. 1220, § 5; 2001, No. 1840, § 5; 2011, No. 1241, § 1; 2011, No. 1242, § 1.

Amendments. The 2011 amendment by identical acts Nos. 1241 and 1242, in present (a)(1), deleted “Chicot” following “Calhoun,” deleted “Desha” following “Dallas,” deleted “Jefferson” following “Howard,” deleted “Lincoln” following “Little River,” and inserted “Franklin,” “Johnson,” “Madison,” and “and Yell”; inserted (a)(2) through (a)(5); and rewrote and redesignated present (b).

Chapter 3 Political Parties

Cross References. Filing for ballot position, § 7-7-304.

Effective Dates. Acts 1969, No. 465, Art. 13, § 10: approved Apr. 17, 1969. Emergency clause provided: “It is hereby found and declared by the General Assembly of the State of Arkansas that the present election laws are ancient and outdated in part and have caused and are causing much confusion and controversy, that there are particular problem areas in the present law which need immediate legislation in order to resolve same, that elections are and will continue to be held and conducted in this atmosphere of confusion and controversy until these problem areas are resolved and this Act being necessary for the immediate preservation of the public peace, health and safety, an emergency is hereby declared to exist and this Act shall be in force and effect from and after its passage.”

Acts 1995, No. 901, § 21: Apr. 4, 1995. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that the state should provide for a state supported political primary system; and that this act should become effective immediately for the proper administration of this act. Therefore, an emergency is hereby declared to exist and this act being necessary for the immediate preservation of the public peace, health and safety shall be in full force and effect from and after its passage and approval.”

Research References

Am. Jur. 25 Am. Jur. 2d, Elections, § 191 et seq.

Ark. L. Notes.

Cihak and Springman, HAVA and Arkansas Election Law Reform: Compliance and Promise, 2006 Arkansas L. Notes 1.

C.J.S. 29 C.J.S., Elections, § 149 et seq.

Case Notes

In General.

Arkansas law provides two means of forming a new political party: the convention process, which permits a political group to hold a convention to choose presidential candidates; or the petition process, which permits a political group to declare its intent to organize a political party. Citizens to Establish a Reform Party v. Priest, 325 Ark. 257, 926 S.W.2d 432 (1996).

7-3-101. Duties and powers.

  1. Subject to the provisions of this act and other applicable laws of this state, organized political parties shall:
    1. Prescribe the qualifications of their own membership;
    2. Prescribe the qualifications for voting in their party primaries; and
    3. Establish rules and procedures for their own organization.
    1. An organized political party shall provide current copies of its adopted rules and procedures to the Secretary of State and the State Board of Election Commissioners.
    2. The obligation under subdivision (b)(1) of this section is a continuing obligation, and as rules and procedures are amended the political party shall continue to provide updated and current copies of the rules and procedures.

History. Acts 1969, No. 465, Art. 1, § 2; 1971, No. 261, § 2; A.S.A. 1947, § 3-102; Acts 1995, No. 901, § 1; 2019, No. 648, § 1.

Amendments. The 2019 amendment added the (a) designation; substituted “Prescribe” for “Have the right to prescribe” in (a)(1); and added (b).

Meaning of “this act”. Acts 1969, No. 465, codified as §§ 7-1-101, 7-1-1037-1-105, 7-3-1017-3-108, 7-4-1017-4-105, 7-4-1077-4-112, 7-5-101, 7-5-102, 7-5-103 [repealed], 7-5-2027-5-209, 7-5-210 [repealed], 7-5-211, 7-5-301, 7-5-302 [repealed], 7-5-303 [repealed], 7-5-3047-5-306, 7-5-307 [repealed], 7-5-308, 7-5-309, 7-5-312, 7-5-313 [repealed], 7-5-3147-5-319, 7-5-401, 7-5-402, 7-5-4057-5-417, 7-5-501 [repealed], 7-5-5027-5-504, 7-5-505 [repealed], 7-5-506 [repealed], 7-5-507, 7-5-508 [repealed], 7-5-509, 7-5-511 [repealed], 7-5-512, 7-5-513, 7-5-514 [repealed], 7-5-5157-5-518, 7-5-519 [repealed], 7-5-5207-5-522, 7-5-5247-5-531, 7-5-7017-5-706, 7-5-8017-5-809, 7-6-1017-6-105, 7-7-1017-7-105, 7-7-2017-7-203, 7-7-3017-7-307, 7-7-309, 7-7-310 [repealed], 7-7-401, 7-7-402, 7-7-403 [repealed], 7-8-1017-8-104, 7-8-301, 7-8-302, 7-8-3047-8-307, 25-16-801.

Acts 1995, No. 901, codified as §§ 7-3-101, 7-7-2017-7-203, 7-7-3017-7-306, 7-7-308, 7-7-309, 7-7-310 [repealed], 7-7-311 [repealed], 7-7-312 [repealed], 7-7-401.

Case Notes

Constitutionality.

Requiring that political parties both conduct and pay for primary elections as a condition of access to the general election ballot is unconstitutional; the combined effect of § 7-7-102(a) and former § 7-3-101(4) impermissibly burdens the First and Fourteenth Amendment associational rights of voters. Republican Party v. Faulkner County, 49 F.3d 1289 (8th Cir. 1995).

Election Expenses.

Former subdivision (4) of this section is not invalid since primary elections are part of the state's election machinery and may therefore be paid for with public money. Moorman v. Pulaski County Democratic Party, 271 Ark. 908, 611 S.W.2d 519 (1981).

Qualification of Candidates.

Arkansas law is well settled that the party chairman and secretary do not have the judicial authority to determine that a candidate is ineligible to hold public office, nor can they refuse to place the candidate's name upon the ballot. Ivy v. Republican Party, 318 Ark. 50, 883 S.W.2d 805 (1994).

7-3-102. National committee members.

The national committeeman and national committeewoman of political parties of this state shall be selected in the manner provided in the party rules of the respective political parties in this state.

History. Acts 1969, No. 465, Art. 1, § 2; A.S.A. 1947, § 3-102.

7-3-103. State committee members.

  1. The members of the state committee of political parties in this state shall be elected in accordance with respective political party rules.
  2. The term of office of the members of a state committee shall begin from their election, and they shall hold office until their successors are elected and qualified as provided under respective political party rules.

History. Acts 1969, No. 465, Art. 1, § 2; 1971, No. 261, § 2; A.S.A. 1947, § 3-102; Acts 2019, No. 648, § 2.

Amendments. The 2019 amendment substituted “in accordance with respective political party rules” for “by the respective state conventions” in (a); deleted (b), and redesignated former (c) as (b); and substituted “until their successors are elected and qualified as provided under respective political party rules” for “until the next convention and until their successors are elected and qualified” in (b).

7-3-104. County committee members.

    1. The members of the county committee of political parties from each election precinct, township, or city ward shall be elected in accordance with respective political party rules.
      1. Except as provided in subdivision (a)(2)(B) of this section, the county board of election commissioners shall place on the ballot of the primary election the names of all persons seeking election as members of the county committee who have filed a written pledge to abide by the results of the primary, if any is required by the rules of the political party, and who have paid the filing fee, if any, assessed therefor.
      2. When only one (1) candidate qualifies for a particular position on the county committee, the candidate's name shall be omitted from the ballot and the candidate shall be selected to serve in the particular position in the same manner as if the position had been voted upon at the primary election.
    2. If candidates for any county committee membership positions have not qualified as provided in this section within the time required for candidates to qualify, the county committee shall select candidates for committee members at any public meeting of the county committee held after the ticket has closed and prior to the time the primary election ballots are printed.
    3. Vacancies in the county committee shall be filled by the county committee.
    1. Each person elected or appointed the county chair of the county committee of a political party shall notify the state chair of the respective party in writing within ten (10) days after his or her election or appointment.
      1. It shall be the duty of the state party chair to keep on file with the Secretary of State a complete list of the county chairs and to notify promptly the Secretary of State of any death, resignation, disqualification, or vacancy in the office of any county chair and of the election of a new chair to fill vacancies thus created.
      2. Upon receipt of that information, the Secretary of State shall record the information, which shall be a public record.

History. Acts 1969, No. 465, Art. 1, § 3; A.S.A. 1947, § 3-103; Acts 1997, No. 444, § 1; 2005, No. 67, § 1; 2007, No. 222, § 2; 2019, No. 648, § 3.

Amendments. The 2007 amendment deleted (c) relating to election officials.

The 2019 amendment substituted “in accordance with respective political party rules” for “by a majority vote of those votes cast for each membership position at the primary elections held by the political party” in (a)(1).

7-3-105. County convention delegates — Selection — Vacancy.

  1. Delegates to the county convention shall be elected in accordance with respective political party rules.
  2. The county committee may place on the ballot of the primary election the names of all persons seeking election as a county convention delegate who shall have filed a written pledge to abide by the results of the primary, if any is required by the rules of the political party, and shall have paid the ballot fee, if any, assessed therefor.
  3. If candidates for county convention delegates have not qualified as herein provided within the time required for candidates to qualify, the county committee shall select candidates or delegates to the county convention at any public meeting of the committee held after the ticket has closed and prior to the time the primary election ballots are printed.
  4. Any vacancies existing or occurring in any of the positions of delegates after the primary election or elections have been held may be filled by the county committee.

History. Acts 1969, No. 465, Art. 1, § 4; A.S.A. 1947, § 3-104; Acts 2019, No. 648, § 4.

Amendments. The 2019 amendment substituted “to the county convention shall be elected in accordance with respective political party rules” for “from each election precinct, township, or city ward to the county convention of political parties shall be selected at the primary election held by each party” in (a); and substituted “may place” for “shall place” in (b).

Case Notes

Ballot Fee.

County central committee could not refuse to place on ballots names of candidates for township committeemen on ground that ballot fees had not been paid by date set by regulation of the central committee, since that regulation would have nullified statute. Stock v. Harris, 193 Ark. 114, 97 S.W.2d 920 (1936) (decision under prior law).

7-3-106. County convention — Primary election results — Selection of state and national delegates — Vacancies.

  1. Each political party holding a primary election shall at the time required in § 7-7-203(f) hold a county convention composed of delegates elected at the primary election in each township and ward.
    1. The county convention shall receive from the county board of election commissioners a list of all nominated candidates for county, township, and municipal offices and the political party's county committee members and delegates and select delegates and alternates to all conventions held by the political party.
    2. However, the state committee of the political party may make rules for the election of delegates to the national convention of the political party, and the delegates may be elected before the primary elections.
    1. Vacancies in the delegation to a convention arising from death, absence, resignation, or ineligibility shall be filled by the alternates in the order of their selection.
    2. In the absence of alternates, vacancies shall be filled by the remaining members of the delegation.

History. Acts 1969, No. 465, Art. 1, § 4; A.S.A. 1947, § 3-104; Acts 1997, No. 444, § 2.

7-3-107. State convention — Declaration of election results and nominees — Certificates.

After a primary election for the selection of nominees for United States, state, or district offices, each political party shall hold a state convention following the biennial general primary election for the purpose of:

  1. Receiving from the Secretary of State the certification of the election results for all United States, state, and district offices. Each party shall furnish to each successful nominee a certificate of nomination; and
  2. Performing other duties as may be required by party rules or by law.

History. Acts 1969, No. 465, Art. 1, § 2; 1971, No. 261, § 2; A.S.A. 1947, § 3-102; Acts 1997, No. 444, § 3.

7-3-108. Subversive parties — New parties — Affidavit required — Penalty.

  1. A political party shall not be recognized, qualified to participate, or permitted to have the names of its candidates printed on the ballot in any election in this state that:
    1. Either directly or indirectly advocates, teaches, justifies, aids, or abets the overthrow by force or violence, or by any unlawful means, of the government of the United States or this state, or an act of terrorism as described by § 5-54-205; or
    2. Directly or indirectly carries on, advocates, teaches, justifies, aids, or abets a program of sabotage, force and violence, sedition, or treason against the government of the United States or this state.
    1. A newly organized political party shall not be recognized, qualified to participate, or permitted to have the names of its candidates printed on the ballot in any election in this state until it has filed an affidavit, by the officers of the party in this state under oath, that:
      1. It does not either directly or indirectly advocate, teach, justify, aid, or abet the overthrow by force or violence or by any unlawful means of the government of the United States or this state, or an act of terrorism as described by § 5-54-205; or
      2. It does not directly or indirectly carry on, advocate, teach, justify, aid, or abet a program of sabotage, force and violence, sedition, or treason against the government of the United States or this state.
    2. The affidavit shall be filed with the Secretary of State.
  2. Any person who violates any provision of this section shall be guilty of a Class A misdemeanor.

History. Acts 1969, No. 465, Art. 11, § 7; A.S.A. 1947, § 3-1107; Acts 1997, No. 444, § 4; 2001, No. 1553, § 18; 2005, No. 1994, § 484; 2013, No. 1126, § 2.

Amendments. The 2013 amendment, in (a) and (b)(1), substituted “A” for “No” and inserted “not”; and substituted “described” for “defined” in (a)(1) and (b)(1)(A).

Meaning of “this act”. See note to § 7-3-101.

Research References

ALR.

Validity, construction, and application of state statutes governing “minor political parties”. 120 A.L.R.5th 1.

Case Notes

Constitutionality.

Former law outlawing the Communist Party was constitutional against contention that it denied the right of suffrage to a person or group of persons and denied them their right of freedom of the speech and freedom of the press. Field v. Hall, 201 Ark. 77, 143 S.W.2d 567 (1940) (decision under prior law).

Discretion of Secretary of State.

Under former law outlawing the Communist Party and imposing the duty upon the Secretary of State to determine whether a political party advocated the overthrow of the government by force or violence or carried on a program of sedition or treason, the discretion of the Secretary of State was subject to control by the courts if exercised arbitrarily and without information to justify his act. Field v. Hall, 201 Ark. 77, 143 S.W.2d 567 (1940) (decision under prior law).

Reviewing court could not say, as a matter of law, that the Secretary of State acted arbitrarily or abused his discretion in refusing to place the names of nominees of the Communist Party on the ballot without giving them a trial. Field v. Hall, 201 Ark. 77, 143 S.W.2d 567 (1940) (decision under prior law).

Sufficiency of Evidence.

In mandamus proceeding to compel Secretary of State to accept the certificates of nomination of the nominees of the Communist Party of Arkansas, evidence that it had adopted the constitution of the Communist Party of the United States which supported revolutionary movement against existing social and political order was sufficient to sustain finding that the party advocated the overthrow of local, state or national government. Field v. Hall, 201 Ark. 77, 143 S.W.2d 567 (1940) (decision under prior law).

Cited: Republican Party v. Faulkner County, 49 F.3d 1289 (8th Cir. 1995); Independent Party v. Priest, 907 F. Supp. 1276 (E.D. Ark. 1995).

Chapter 4 Boards of Election Commissioners and Other Election Officers

Subchapter 1 — General Provisions

Effective Dates. Acts 1969, No. 465, Art. 13, § 10: approved Apr. 17, 1969. Emergency clause provided: “It is hereby found and declared by the General Assembly of the State of Arkansas that the present election laws are ancient and outdated in part and have caused and are causing much confusion and controversy, that there are particular problem areas in the present law which need immediate legislation in order to resolve same, that elections are and will continue to be held and conducted in this atmosphere of confusion and controversy until these problem areas are resolved and this Act being necessary for the immediate preservation of the public peace, health and safety, an emergency is hereby declared to exist and this Act shall be in force and effect from and after its passage.”

Acts 1970 (1st Ex. Sess.), No. 11, § 3: approved Mar. 13, 1970. Emergency clause provided: “It is hereby found and declared by the General Assembly of the State of Arkansas that the error corrected by this act causes great confusion in the preparation for an election; that an election is being prepared for at this time and this act being necessary for the immediate preservation of the public peace, health and safety, an emergency is hereby declared to exist and this act shall be in force and effect from and after its passage.”

Acts 1972 (1st Ex. Sess.), No. 41, § 4: Feb. 18, 1972. Emergency clause provided: “It is hereby found and determined by the General Assembly that the present requirements that primary election officials reside in the ward or voting precinct in which such official is appointed to serve is unreasonably restrictive and may result in it being very difficult to obtain election officials to conduct primary elections in this state and that it is essential to the proper and efficient conduct of such election that this requirement be removed immediately. Therefore, an emergency is hereby declared to exist and this act being necessary for the immediate preservation of the public peace, health and safety, shall be in full force and effect from and after its passage and approval.”

Acts 1973, No. 157, § 10: Feb. 20, 1973. Emergency clause provided: “It is hereby found and determined by the General Assembly that under the present laws of the state, that separate or common polling places cannot be established by county committees in counties using voting machines without attendant substantial costs; that it is essential to the proper and economical administration of the election laws of this state that legislation be enacted immediately to provide that respective county committees or county elections commissions in counties using voting machines may designate separate and/or common polling places where all elections can be held and to provide for a minimum number of election officials to serve at such polling places so that substantial economies can be realized in the conduct of such elections. Therefore, an emergency is declared to exist and this act, being necessary for the immediate preservation of the public peace, health, and safety, shall be in full force and effect from and after its passage and approval.”

Acts 1977, No. 783, § 6: Mar. 28, 1977. Emergency clause provided: “It is hereby found and determined by the General Assembly that the efficient and proper conduct of elections in this state is essential to our form of representative government, and that the immediate passage of this act is necessary to reorganize the membership of the State Board of Election Commissioners and to establish a Citizens Election Advisory Council to plan and supervise the conduct of elections and to recommend laws to strengthen the state's election process. Therefore, an emergency is hereby declared to exist, and this act, being necessary for the immediate preservation of the public peace, health, and safety, shall be in full force and effect from and after its passage and approval.”

Acts 1987, No. 403, § 4: Mar. 25, 1987. Emergency clause provided: “It is hereby found and determined by the General Assembly that the present per diem prescribed by law for the county board of election commissioners was established in 1969 and there has been some difference of opinion concerning whether the per diem prescribed in Section 7 of Article 5 of Act 465 of 1969 was intended as a fixed per diem or merely a minimum per diem to be paid members of the county board of election commissioners; that it is the purpose of this act to permit the increase of the per diem prescribed by law for members of the county board of election commissioners and to ratify and confirm the payment of a per diem in excess of fifteen dollars ($15.00) per day to county boards of election commissioners prior to the effective date of this act, and that this act should be given effect immediately to accomplish this purpose. Therefore, an emergency is hereby declared to exist and this act being necessary for the preservation of the public peace, health and safety shall be in full force and effect from and after its passage and approval.”

Acts 1989, No. 522, § 5: Mar. 14, 1989. Emergency clause provided: “It is hereby found and determined by the General Assembly that by law the county chairman of the county committee of the majority party and the minority party are members of the county board of election commissioners; that in some instances these persons are also elected officials; that it constitutes at least the appearance of a conflict of interest for the county chairmen, when also elected officials, to serve on the county board of election commissioners; that this Act will prohibit them from serving and therefore avoid the appearance of a conflict of interest; and that until this Act becomes effective the possibility of the conflict of interest will continue. Therefore, an emergency is hereby declared to exist and this Act being immediately necessary for the preservation of the public peace, health and safety shall be in full force and effect from and after its passage and approval.”

Acts 1993, No. 760, § 5: Mar. 26, 1993. Emergency clause provided: “It is hereby found and determined by the General Assembly that present law does not allow a member of the County Board of Election Commissioners to fill a vacancy in an elective office without vacating his seat on the commission; that such law is inequitable and denies the citizens of this state the service of highly qualified people; that this act corrects the inequity; and that this act should go into effect immediately in order to allow the citizens the service of qualified people who are otherwise unable to serve. Therefore, an emergency is hereby declared to exist and this act being necessary for the immediate preservation of the public peace, health and safety shall be in full force and effect from and after its passage and approval.”

Identical Acts 1995, Nos. 349 and 352, § 7: Feb. 17, 1995. Emergency clause provided: “It is hereby found and determined by the General Assembly that there now exists a vacancy on the Ethics Commission due to a decision by the Arkansas Supreme Court that invalidated the Chief Justice's appointment of a member of the commission; that this vacancy should be filled as soon as possible; and that this act establishes the mechanism for filling that vacancy and therefore should be placed into effect immediately. Therefore, an emergency is hereby declared to exist and this act being necessary for the immediate preservation of the public peace, health and safety shall be in full force and effect from and after its passage and approval.”

Acts 1995, No. 709, § 21: July 1, 1995. Emergency clause provided: “It is hereby found and determined by the Eightieth General Assembly, that the Constitution of the State of Arkansas prohibits the appropriation of funds for more than a two (2) year period; that the effectiveness of this Act on July 1, 1995 is essential to the operation of the agency for which the appropriations in this Act are provided, and that in the event of an extension of the Regular Session, the delay in the effective date of this Act beyond July 1, 1995 could work irreparable harm upon the proper administration and provision of essential governmental programs. Therefore, an emergency is hereby declared to exist and this Act being necessary for the immediate preservation of the public peace, health and safety shall be in full force and effect from and after July 1, 1995.”

Acts 1995, No. 1217, § 12: July 1, 1995. Emergency clause provided: “It is hereby found and determined by the Eightieth General Assembly, that the Constitution of the State of Arkansas prohibits the appropriation of funds for more than a two (2) year period; that the effectiveness of this Act on July 1, 1995 is essential to the operation of the agency for which the appropriations in this Act are provided, and that in the event of an extension of the Regular Session, the delay in the effective date of this Act beyond July 1, 1995 could work irreparable harm upon the proper administration and provision of essential governmental programs. Therefore, an emergency is hereby declared to exist and this Act being necessary for the immediate preservation of the public peace, health and safety shall be in full force and effect from and after July 1, 1995.”

Acts 1997, No. 250, § 258: Feb. 24, 1997. Emergency clause provided: “It is hereby found and determined by the General Assembly that Act 1211 of 1995 established the procedure for all state boards and commissions to follow regarding reimbursement of expenses and stipends for board members; that this act amends various sections of the Arkansas Code which are in conflict with the Act 1211 of 1995; and that until this cleanup act becomes effective conflicting laws will exist. Therefore an emergency is declared to exist and this act being immediately necessary for the preservation of the public peace, health and safety shall become effective on the date of its approval by the Governor. If the bill is neither approved nor vetoed by the Governer [sic], it shall become effective on the expiration of the period of time during which the Governor may veto the bill. If the bill is vetoed by the Governor and the veto is overridden, it shall become effective on the date the last house overrides the veto.”

Acts 2001, No. 1174, § 2: Mar. 29, 2001. Emergency clause provided: “It is found and determined by the General Assembly that four of the terms will expire prior to the implementation of this act and as a result the State Board of Election Commissioners will lose a majority of its current membership, resulting in a loss of continuity and experience. Therefore, an emergency is declared to exist and this act being immediately necessary for the preservation of the public peace, health and safety shall become effective on the date of its approval by the Governor. If the bill is neither approved nor vetoed by the Governor, it shall become effective on the expiration of the period of time during which the Governor may veto the bill. If the bill is vetoed by the Governor and the veto is overridden, it shall become effective on the date the last house overrides the veto.”

Acts 2019, No. 376, § 14: Mar. 8, 2019. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that this act amends the process for circulating initiative petitions and referendum petitions; and that the provisions of this act should become effective immediately so that its provisions apply to all petitions circulated after the passage of the act to avoid confusion in petition circulation. Therefore, an emergency is declared to exist, and this act being immediately necessary for the preservation of the public peace, health, and safety shall become effective on: (1) The date of its approval by the Governor; (2) If the bill is neither approved nor vetoed by the Governor, the expiration of the period of time during which the Governor may veto the bill; or (3) If the bill is vetoed by the Governor and the veto is overridden, the date the last house overrides the veto”. The emergency clause for Acts 2019, No. 376 was held to be defective in Safe Surgery Ark. v. Thurston, 2019 Ark. 403.

Research References

Am. Jur. 25 Am. Jur. 2d, Elections, § 83 et seq.

Ark. L. Notes.

Cihak and Springman, HAVA and Arkansas Election Law Reform: Compliance and Promise, 2006 Arkansas L. Notes 1.

C.J.S. 29 C.J.S., Elections, § 108 et seq.

Case Notes

Performance of Official Duties.

The presumption that officers, absent proof to the contrary, have performed their official duties applies also to election officers. McKenzie v. City of DeWitt, 196 Ark. 1115, 121 S.W.2d 71 (1938) (decision under prior law).

7-4-101. State Board of Election Commissioners — Members — Officers — Meetings.

  1. The State Board of Election Commissioners shall be composed of the following seven (7) persons, with at least one (1) from each congressional district:
    1. The Secretary of State;
    2. One (1) person designated by the chair of the state Democratic Party;
    3. One (1) person designated by the chair of the state Republican Party;
    4. One (1) person to be chosen by the President Pro Tempore of the Senate;
    5. One (1) person to be chosen by the Speaker of the House of Representatives; and
    6. Two (2) persons to be chosen by the Governor, one (1) of whom shall be a county clerk and one (1) of whom shall have served for at least three (3) years as a county election commissioner.
  2. The Secretary of State shall serve as the Chair of the State Board of Election Commissioners and the Secretary of the State Board of Election Commissioners.
  3. Except for the Secretary of State and the county clerk, no member of the State Board of Election Commissioners shall be an elected public official.
    1. The term on the State Board of Election Commissioners of the Secretary of State shall be concurrent with his or her term in office.
    2. The county clerk shall hold the office of county clerk when appointed to the State Board of Election Commissioners and shall be removed as a member of the State Board of Election Commissioners if not in office.
      1. Members of the State Board of Election Commissioners appointed by the President Pro Tempore of the Senate and the Speaker of the House of Representatives shall be appointed for terms of two (2) years and shall continue to serve until successors have been appointed and taken the official oath.
      2. All other appointive members shall be appointed for terms of four (4) years and shall continue to serve until successors have been appointed and taken the official oath.
    3. No appointive member shall be appointed to serve more than two (2) consecutive full terms.
      1. If a vacancy on the State Board of Election Commissioners occurs, a successor shall be appointed within thirty (30) days to serve the remainder of the unexpired term.
      2. The appointment shall be made by the official holding the office responsible for appointing the predecessor.
    1. The State Board of Election Commissioners shall meet as needed upon call of the chair or upon written request to the chair of any four (4) members.
    2. A majority of the membership of the State Board of Election Commissioners shall constitute a quorum for conducting business.
    3. No sanctions shall be imposed without the affirmative vote of at least four (4) members of the State Board of Election Commissioners.
    4. A meeting of the State Board of Election Commissioners may be chaired and conducted by:
      1. The Chair of the State Board of Election Commissioners; or
        1. A person designated by the Chair of the State Board of Election Commissioners to act as chair for the meeting.
        2. If a person is designated by the Chair of the State Board of Election Commissioners under subdivision (e)(4)(B)(i) of this section:
          1. The designated person's presence shall count for a quorum to conduct business; and
          2. The designated person may vote in the meeting.
  4. The State Board of Election Commissioners shall have the authority to:
    1. Publish a candidate's election handbook, in conjunction with the office of the Secretary of State and the Arkansas Ethics Commission, which outlines in a readable and understandable format the legal obligations of a candidate and any other suggestions that might be helpful to a candidate in complying with state election law;
    2. Conduct statewide training for election officers and county election commissioners;
    3. Adopt all necessary rules regarding training referred to in subdivision (f)(2) of this section and develop procedures for monitoring attendance;
    4. Monitor all election law-related legislation;
    5. Formulate, adopt, and promulgate all necessary rules to assure even and consistent application of voter registration laws and fair and orderly election procedures;
      1. Appoint at least one (1) certified election monitor to a county upon a signed, written request under oath filed with the State Board of Election Commissioners and a determination by the State Board of Election Commissioners that appointing a monitor is necessary.
      2. The State Board of Election Commissioners shall certify at least one (1) election monitor in each congressional district.
      3. Certified election monitors shall serve as observers for the purpose of reporting to the State Board of Election Commissioners on the conduct of the election.
      4. The State Board of Election Commissioners may allow for reasonable compensation for election monitors;
    6. Assist the county board of election commissioners in the performance of administrative duties of the election process if the State Board of Election Commissioners determines that assistance is necessary and appropriate;
      1. Formulate, adopt, and promulgate all necessary rules to establish uniform and nondiscriminatory administrative complaint procedures consistent with the requirements of Title IV of the federal Help America Vote Act of 2002.
      2. The cost of compliance with Title IV of the federal Help America Vote Act of 2002 shall be paid from the fund established to comply with the federal Help America Vote Act of 2002;
    7. Investigate alleged violations, render findings, and impose disciplinary action according to § 7-4-120 for violations of election and voter registration laws, except as to § 7-1-103(a)(1)-(4), (6), and (7), and except for any matters relating to campaign finance and disclosure laws which the Arkansas Ethics Commission shall have the power and authority to enforce according to §§ 7-6-217 and 7-6-218;
    8. Examine and approve in accordance with §§ 7-5-503 and 7-5-606 the types of voting machines and electronic vote tabulating devices used in any election;
    9. Administer reimbursement of election expenses to counties in accordance with § 7-7-201(a) for primary elections, statewide special elections, and nonpartisan general elections;
    10. Consider the certification of the ballot title and popular name submitted on a statewide initiative petition or statewide referendum petition under § 7-9-111;
    11. Conduct post-election audits under § 7-4-121; and
    12. Formulate, adopt, and promulgate rules to establish procedures for post-election audits conducted under § 7-4-121.
  5. The Attorney General shall provide legal assistance to the State Board of Election Commissioners in answering questions regarding election laws.
    1. The State Board of Election Commissioners may appoint a Director of the State Board of Election Commissioners, who may hire a staff.
    2. The director shall serve at the pleasure of the State Board of Election Commissioners.
    3. The State Board of Election Commissioners shall set the personnel policies in accordance with the Regular Salary Procedures and Restrictions Act, §§ 19-4-1601 and 21-5-101, and the Uniform Classification and Compensation Act, § 21-5-201 et seq.

History. Acts 1969, No. 465, Art. 5, §§ 2, 3; 1977, No. 783, § 1; A.S.A. 1947, §§ 3-502, 3-503; Acts 1993, No. 1092, § 1; 1995, No. 349, § 3; 1995, No. 352, § 3; 1995, No. 741, § 1; 1995, No. 929, § 1; 1995, No. 940, § 1; 1995, No. 1217, § 5; 1997, No. 647, § 1; 1999, No. 997, § 1; 2001, No. 1174, § 1; 2003, No. 994, § 14; 2003, No. 1161, § 1; 2005, No. 1827, § 1; 2007, No. 559, § 1; 2009, No. 250, § 2; 2013, No. 977, § 1; 2013, No. 1110, § 2; 2013, No. 1456, § 1; 2019, No. 376, § 2; 2019, No. 888, § 1.

A.C.R.C. Notes. Pursuant to § 1-2-207, this section is set out above as amended by Acts 1995, Nos. 741, 929, 940, and 1214. Subsection (f) of this section was also amended by identical Acts 1995, Nos. 349 and 352, § 3, to read as follows:

“(f) The State Board of Election Commissioners may perform the following duties:

“(1) Publish a ‘plain English’ election handbook which addresses the ‘do's and dont's’ for candidates under Arkansas law;

“(2) Conduct statewide training for election clerks and judges and county election commissioners;

“(3) Monitor all election law-related legislation;

“(4) Conduct investigations of citizen complaints and issue advisory opinions regarding violations of election laws, except as to § 7-1-103(1) — (4), (6), (7), and (8), or except for any matter relating to campaign finance and disclosure laws, which the Arkansas Ethics Commission shall have the same power and authority to enforce as is provided the commission under §§ 7-6-217 and 7-6-218 for the enforcement of campaign finance laws;

“(5) To develop procedures for receiving citizen complaints which are referred to in subdivision (f)(4) of this section;

“(6) Establish guidelines for and monitor the qualifications of all election officials; and

“(7) Formulate, adopt, and promulgate all necessary rules and regulations to assure even and consistent application of fair and orderly election procedures.”

Section 7-4-120, enacted by Acts 2015, No. 1253 replaced § 7-4-118 [repealed].

Acts 2020, No. 21, § 7, provided: “TRANSFER OF FUNDS.

If the State Board of Election Commissioners is required to pay the expenses for any state supported preferential primary election, general primary election, nonpartisan general election, statewide special election or special primary election and funds are not available to pay for such elections, the Director of the State Board of Election Commissioners shall certify to the Chief Fiscal Officer of the State the amount needed to pay the expenses of the election(s). Upon the approval of the Chief Fiscal Officer of the State, the amount certified shall be transferred from the Budget Stabilization Trust Fund to the Miscellaneous Agencies Fund Account of the State Board of Election Commissioners. All unused funds transferred under this provision shall be transferred back to the Budget Stabilization Trust Fund at the end of each fiscal year. The Chief Fiscal Officer of the State shall initiate the necessary transfer documents to reflect all such transfers upon the fiscal records of the State Auditor, the State Treasurer and the Chief Fiscal Officer of the State.

“The provisions of this section shall be in effect from July 1, 2020 through June 30, 2021”.

Amendments. The 2009 amendment substituted “Secretary of State” for “elected state official” in (d)(1), and made a minor stylistic change.

The 2013 amendment by No. 977 rewrote (e)(4).

The 2013 amendment by No. 1110 deleted “judicial” following “nonpartisan” in (f)(11).

The 2013 amendment by No. 1456 inserted “at least one (1)” in (f)(6)(A); and inserted (f)(6)(B) and redesignated the remaining subdivisions accordingly.

The 2019 amendment by No. 376 added (f)(12).

The 2019 amendment by No. 888 added (f)(13) and (f)(14).

U.S. Code. The Help America Vote Act of 2002, referred to in (f)(8), is codified as 52 U.S.C. § 20901 et seq.

Research References

Ark. L. Rev.

Watkins, Open Meetings Under the Arkansas Freedom of Information Act, 38 Ark. L. Rev. 268.

U. Ark. Little Rock L. Rev.

Survey of Legislation, 2003 Arkansas General Assembly, Election Law, Help America Vote Act, 26 U. Ark. Little Rock L. Rev. 398.

Case Notes

Authority to Adopt Rules.

Under the separation of powers doctrine, the State Board of Election Commissioners lacked authority to establish a procedure for absentee voters where the General Assembly had provided a method by which an in-person voter could have cured any failure to provide proof of identity, did not provide a similar method for absentee voters, and although the Board had authority to promulgate rules to assure fair and orderly election procedures, it lacked authority to create election procedures. Ark. State Bd. of Election Comm'rs v. Pulaski County Election Comm'n, 2014 Ark. 236, 437 S.W.3d 80 (2014).

Effective Date of 2019 Amendment.

Emergency clause of Acts 2019, No. 376 was defective where the stated basis was “to avoid confusion in petition circulation”; Act 376 added additional requirements for getting a referendum on the election ballot, and the prospect of affording those who seek to file a ballot petition additional notice of new requirements for that petition, especially when the people would not be voting on any such initiatives or referenda for at least another 15 months, did not amount to an emergency under Ark. Const., Art. 5, § 1. Safe Surgery Ark. v. Thurston, 2019 Ark. 403, 591 S.W.3d 293 (2019) (sub. op.).

As the emergency clause of Acts 2019, No. 376 was ineffective and Act 376’s new requirements were not in effect at the time petitioner filed its proposed referendum and supporting signatures, mandamus was granted directing the Secretary of State to address petitioner's referendum filings (seeking a referendum on Acts 2019, No. 579) under the pre-Act 376 legal framework for initiatives and referenda. Safe Surgery Ark. v. Thurston, 2019 Ark. 403, 591 S.W.3d 293 (2019) (sub. op.).

Jurisdiction.

Circuit court clearly had jurisdiction to hear a candidate's petition where she was challenging the eligibility of a competing Court of Appeals candidate. Barrett v. Thurston, 2020 Ark. 36, 593 S.W.3d 1 (2020).

7-4-102. County boards of election commissioners — Election of members — Oath.

      1. In January of each odd-numbered year following the election of county committee officers, members of the county board of election commissioners shall be elected by their respective county committees.
      2. A chair or secretary of a county political party shall not serve as a member of the county board of election commissioners.
    1. The membership of the county board of election commissioners shall be as follows:
      1. Two (2) members elected by the county committee of the majority party; and
      2. One (1) member elected by the county committee of the minority party.
    1. Within ten (10) days of the date of selection to the county board of election commissioners, the chair or secretary of each county committee shall notify the county clerk in writing of the names and addresses of those selected to serve on the county board of election commissioners.
    2. Upon receipt of the notice, the county clerk shall send to each of the county election commissioners, by registered mail, notice to appear before the clerk within thirty (30) days of selection as a county election commissioner to take and subscribe to the oath prescribed by the Arkansas Constitution.
    3. The oath shall be filed in the office of the county clerk and a duplicate forwarded to the Secretary of State.
  1. As soon as practicable following the election of members to the county board of election commissioners, the chair of the majority party of the county shall file with the county clerk and the Secretary of State a notice setting forth the names of the majority party's designated members of the county board of election commissioners, and the chair of the minority party shall file with the county clerk and the Secretary of State a notice setting forth the name of the minority party's member of the county board of election commissioners.
  2. The county board of election commissioners is deemed to consist of county officials, and its members shall be immune from tort liability pursuant to § 21-9-301.
  3. A member of the county board of election commissioners shall serve at the pleasure of his or her respective county committee, and a county committee may remove a member of the county board of election commissioners representing the county committee by majority vote of the county committee.
    1. A vacancy on the county board of election commissioners shall be filled by the election of a new member by the county committee of the appropriate party.
      1. The county committee shall elect a new member within forty-five (45) days of a vacancy.
      2. If the county committee fails to elect a new member within forty-five (45) days of a vacancy, the state chair of the appropriate party shall appoint a new member to the county board of election commissioners.

History. Acts 1969, No. 465, Art. 5, § 2; A.S.A. 1947, § 3-502; Acts 1987, No. 248, § 4; 1989, No. 522, § 1; 1989 (3rd Ex. Sess.), No. 73, § 1; 1993, No. 843, § 1; 1995, No. 1014, § 1; 1997, No. 647, § 2; 1999, No. 1422, § 2; 2007, No. 489, § 1; 2007, No. 559, § 2; 2011, No. 1056, § 1; 2019, No. 966, § 1.

A.C.R.C. Notes. Acts 2011, No. 1056, § 3, provided: “A member of a county board of election commissioners serving as of the effective date of this act shall continue to serve on the county board until his or her successor is selected by his or her respective county committee.”

Amendments. The 2007 amendment by No. 489 added present (e).

The 2007 amendment by No. 559 substituted “selected by the county committee of the majority party at the same time as the election of party officers” for “to be appointed by the State Board of Election Commissioners” in (a)(1); redesignated former (a)(2)(A) as present (a)(2); substituted “select a resident of the county qualified” for “elect someone” in (a)(2); deleted (a)(2)(B); substituted “select a resident of the county qualified” for “appoint someone” in (a)(3); deleted former (b) and redesignated the remaining subsections accordingly; rewrote present (b); and rewrote present (c).

The 2011 amendment rewrote (a); substituted “As soon as practicable, following the election of members to the county board” for “Between January 1 and January 31 of each year” in (c); rewrote (e); and added (f).

The 2019 amendment added the (a)(1)(A) designation; and added (a)(1)(B).

Case Notes

Removal of County Election Commissioners.

The position of county election commissioners being a public office with a fixed term, and there being no power of removal conferred by statute, the State Board of Election Commissioners had no authority to remove county election commissioners after their appointment and qualification. Warren v. McRae, 165 Ark. 436, 264 S.W. 940 (1924) (decision under prior law).

Where the State Board of Election Commissioners, without authority, attempted to remove a county board of election commissioners, their act, being quasi-judicial, could be quashed on certiorari. Warren v. McRae, 165 Ark. 436, 264 S.W. 940 (1924) (decision under prior law).

The proper legal proceeding to challenge eligibility of a candidate and seek his removal is by writ of mandamus coupled with a declaratory judgment action; the same rings true to disqualify a person who is serving as an election commissioner under this section. Morgan v. Neuse, 314 Ark. 4, 857 S.W.2d 826 (1993).

Selection of County Election Commissioners.

The federal court did not have jurisdiction of an action against the county election commission alleging abridgement of black citizens' right to vote based on the composition of the board. McGruder v. Phillips County Election Comm'n, 850 F.2d 406 (8th Cir. 1988).

Cited: Armstrong v. Sims, 715 F. Supp. 1440 (E.D. Ark. 1989).

7-4-103. Vacancy or disqualification of state or county chair.

In the event of a vacancy or disqualification on the part of any state or county chair for either the majority party or a minority party, the state vice chair or county vice chair of the party in which the vacancy occurs shall act as county chair or state chair, as the case may be, for all of the purposes set out in § 7-4-101 and this section until a new county chair or state chair is selected by the parties.

History. Acts 1969, No. 465, Art. 5, §§ 2, 5; A.S.A. 1947, §§ 3-502, 3-505; Acts 1987, No. 248, § 6; 1995, No. 1014, § 2; 2001, No. 794, § 1; 2011, No. 1056, § 2; 2013, No. 1154, § 1.

A.C.R.C. Notes. Acts 2011, No. 1056, § 3, provided: “A member of a county board of election commissioners serving as of the effective date of this act shall continue to serve on the county board until his or her successor is selected by his or her respective county committee.”

Amendments. The 2011 amendment deleted “7-4-103” following “§ 7-4-101” in (a); deleted the last sentence in (b); and deleted (c).

The 2013 amendment deleted (b).

Case Notes

Removal of County Election Commissioners.

The position of county election commissioners being a public office with a fixed term, and there being no power of removal conferred by statute, the State Board of Election Commissioners had no authority to remove county election commissioners after their appointment and qualification. Warren v. McRae, 165 Ark. 436, 264 S.W. 940 (1924).

7-4-104. Lists of county chairs — Notification of vacancies.

    1. It shall be the duty of the majority and minority parties to keep on file with their respective state chair a complete list of all of their respective county chairs.
    2. It shall be the duty of the respective county chairs of both the majority and minority parties to keep on file with the Secretary of State a letter stating the name of the county chairs and to notify promptly the Secretary of State of the death, resignation, disqualification, or vacancy in the office of any county chair and of the election of a new chair to fill the vacancy thus created.
  1. It shall be the duty of the Secretary of State to keep the letters containing the names of the county chairs of the majority and minority parties as public records open at all times to public inspection.

History. Acts 1969, No. 465, Art. 5, § 5; A.S.A. 1947, § 3-505; Acts 1997, No. 647, § 3; 2001, No. 475, § 1.

7-4-105. County board of election commissioners — Officers — Meetings.

  1. The county board of election commissioners shall hold office until their successors are appointed and qualified. The commissioners shall meet no later than February 28 of odd-numbered years and shall organize themselves into a county board of election commissioners by electing one (1) member chair. Each commissioner shall have one (1) vote. Two (2) commissioners shall constitute a quorum, and the concurring votes of any two (2) shall decide questions before them unless otherwise provided by law.
  2. The chair of a county board of election commissioners shall notify all commissioners of all meetings. Any meeting of two (2) or more commissioners when official business is conducted shall be public and held pursuant to the Freedom of Information Act of 1967, § 25-19-101 et seq. The county board of election commissioners shall keep minutes of all meetings when official business is conducted, and the minutes shall be filed of record with the county clerk within the sooner of:
    1. One hundred twenty (120) days of a meeting; or
    2. Ten (10) days of the following meeting.

History. Acts 1969, No. 465, Art. 5, § 6; 1971, No. 261, § 9; A.S.A. 1947, § 3-506; Acts 1997, No. 647, § 4; 2015, No. 1042, § 3.

Amendments. The 2015 amendment substituted “no later than February 28 of odd-numbered years” for “at the courthouse at least thirty (30) days prior to the general election” in the second sentence of (a); and added “within the sooner of: (1) One hundred twenty (120) days of a meeting; or (2) Ten (10) days of the following meeting” in (b).

7-4-106. Assistance of prosecuting attorney.

  1. The county board of election commissioners, as created by this subchapter, may call upon the prosecuting attorney or his or her deputy for legal opinions, advice, or assistance in defending, commencing, or appealing civil actions at law and equity.
  2. The county or prosecuting attorney shall defend any civil lawsuit brought against the county board of election commissioners or its members if they are sued in regard to acts or omissions made during the course of their official duties.

History. Acts 1977, No. 527, § 1; A.S.A. 1947, § 3-506.1; Acts 1993, No. 780, § 1.

Case Notes

Contest of School Election.

Enactment of this section did not change rule that directors or school board members, and not county board of election commissioners, were proper parties defendant in contest of school election approving millage increase. Allen v. Rankin, 269 Ark. 517, 602 S.W.2d 673 (1980).

7-4-107. Duties of county board of election commissioners.

  1. The county board of election commissioners shall:
    1. Ensure compliance with all legal requirements relating to the conduct of elections;
    2. Exercise its duties consistent with the training and materials provided by the State Board of Election Commissioners;
    3. Allocate a sufficient number of secure ballot boxes if voting is conducted using preprinted paper ballots for each polling site based on the number of votes cast at that polling site in the immediately preceding:
      1. Preferential primary election or general election if the election for which the secure ballot boxes are prepared is a preferential primary election or general election; and
      2. Special election if the election for which the secure ballot boxes are prepared is a special election;
    4. Allocate sufficient components of a voting system approved for use under § 7-5-301 for each polling site based on the number of votes cast at that polling site in the immediately preceding:
      1. Preferential primary election or general election if the election for which the components are prepared is a preferential primary election or general election; and
      2. Special election if the election for which the components are prepared is a special election; and
    5. Appoint the requisite number of election officials at each site where voters present themselves to vote to ensure that there is a sufficient number of election officials at each site, based upon the votes in the immediately preceding comparable election.
    1. The county board of election commissioners shall select and appoint a sufficient number of election officials for each polling site as provided by subsection (a) of this section and perform the other duties prescribed not less than twenty (20) days preceding an election.
      1. Each polling site shall have a minimum of two (2) election clerks, one (1) election judge, and one (1) election sheriff.
      2. The election judge shall serve as the poll supervisor.
        1. All election officials at a polling site shall have completed training under § 7-4-109 within the twelve (12) months before the election.
        2. The minority party election commissioner shall have the option to designate a number of election officials equal to one (1) less than the majority of election officials at each polling site, with a minimum of two (2) election officials at each polling site.
        3. In the event that the county party representatives on the county board of election commissioners fail to agree upon any election official to fill an election post allotted to the respective party twenty (20) days before the election, the county board of election commissioners shall appoint the remaining election officials.
  2. The county board of election commissioners may permit election officials to work half-day or split shifts at the polls at any election so long as the requisite number of election officials is always present.

History. Acts 1969, No. 465, Art. 5, § 6 and Art. 7, § 3; 1971, No. 261, § 9; 1973, No. 157, § 6; A.S.A. 1947, §§ 3-506, 3-703; Acts 1993, No. 511, §§ 1, 2; 1997, No. 647, § 5; 1999, No. 1490, § 2; 2001, No. 562, § 1; 2001, No. 1822, § 2; 2005, No. 894, § 1; 2005, No. 1827, § 2; 2007, No. 222, § 3; 2007, No. 559, § 3; 2013, No. 1457, § 1; 2019, No. 966, § 2.

Amendments. The 2007 amendment by No. 222 redesignated former (b)(1)(B) as present (b)(2) and made a related change; and deleted former (b)(2) and (b)(3).

The 2007 amendment by No. 559 deleted former (e).

The 2013 amendment inserted “all election officials at a polling site shall have completed training under § 7-4-109, and” in (b)(2).

The 2019 amendment deleted “Ballot boxes — Voting booths — Appointment of election officers” in the section heading; rewrote (a); substituted “The county board of election commissioners shall select” for “It shall be the duty of the county board of election commissioners to select” in (b)(1); added the (b)(2)(A) designation; inserted (b)(2)(B); rewrote the former second sentence of (b)(2) as (b)(2)(C)(i); added the (b)(2)(C)(ii) and (iii) designations; deleted former (c); and redesignated former (d) as (c).

Case Notes

Absence of Commissioner.

Absence of one commissioner during recount, or appointment of another individual to assist in recount, did not invalidate recount. Bonds v. Rogers, 219 Ark. 319, 241 S.W.2d 371 (1951) (decision under prior law).

Appointment of Election Officials.

Where an attempt to obtain black election officials failed, it was not a deliberate and discriminatory act for the election commissioners to appoint white election officials under subsection (b). McGruder v. Phillips County Election Comm'n, 850 F.2d 406 (8th Cir. 1988).

Payment of Poll Workers.

Section 7-4-112, which provides that the quorum court shall set the amount to be paid to poll workers, and former subsection (e) of this section are not inconsistent or in conflict. Union County v. Union County Election Comm'n, 274 Ark. 286, 623 S.W.2d 827 (1981).

Refusal to Hold Election.

Where the commissioners refused to hold the special election on the day designated by order of the county court, the county judge and the sheriff were authorized to act in their place and order the election. Blaylock v. Bank of McCrory, 170 Ark. 597, 280 S.W. 650 (1926) (decision under prior law).

Removal of Election Judges.

Since every presumption must be indulged to sustain the regularity and legality of an election, removal of old election judges by the election commission and appointment of new ones was presumed valid, the act of removal being within the power of the commission. McKenzie v. City of DeWitt, 196 Ark. 1115, 121 S.W.2d 71 (1938) (decision under prior law).

School Elections.

Partisan selection of judges and clerks for elections does not apply to school elections, since school elections are not general or special elections. Henley v. Goggins, 250 Ark. 912, 467 S.W.2d 697 (1971).

Sheriff's Fee.

A county is liable for fees and mileage of the sheriff in serving notice to the judges of election for each voting precinct of the county as to their appointment by the board of election commissioners. Ouachita County v. Chidester, 99 Ark. 206, 137 S.W. 811 (1911) (decision under prior law).

7-4-108. Absence of election officials — Filling vacancy.

  1. If any election official is absent at the time fixed for the opening of the polls, the election judge shall immediately notify the county board of election commissioners of the vacancy.
  2. If the county board of election commissioners does not timely appoint a new election official, and fewer than three (3) election officials are present at the opening of the polls, the election judge present shall appoint one (1) or more qualified persons to act as an election official until the county board of election commissioners appoints a new election official.
    1. Except as provided in subdivision (c)(2) of this section, upon notification of the absent election official, at least one (1) member of the county board of election commissioners shall respond to the polling site and assist with the election until the new election official is appointed.
    2. If all three (3) of the members of the county board of election commissioners are assisting at other polling sites and the election judge does not timely appoint a qualified person, the other election officials present at the polling site shall appoint a qualified person to act as an election official until the county board of election commissioners appoints a new election official.

History. Acts 1969, No. 465, Art. 7, § 3; A.S.A. 1947, § 3-703; Acts 1997, No. 647, § 6; 2019, No. 966, § 3.

Amendments. The 2019 amendment added the (a) designation; rewrote (a); and added (b) and (c).

Case Notes

Absence of Judges.

The fact that judges appointed by the election commissioners did not appear and hold an election with reference to the issuance of city bonds did not invalidate an election in the absence of a showing that the persons holding the election were not elected to fill vacancies in the manner provided for by law, that votes were not honestly cast and counted, or that any attempt was made to interfere with the voters' freedom of action. El Dorado v. Jacobs, 174 Ark. 98, 294 S.W. 411 (1927) (decision under prior law).

7-4-109. Qualifications of state and county commissioners, election officials, poll workers, and certified election monitors.

    1. A member of the State Board of Election Commissioners, a county election commissioner, and an election official shall be a qualified elector of this state, able to read and write the English language, and shall not have been found guilty or pleaded guilty or nolo contendere to the violation of an election law of this state.
    2. An election official, as defined in § 7-1-101, shall not be a candidate for an office to be filled at an election while serving as an election official.
    3. A member of the county board of election commissioners shall not be disqualified from serving as a member of the county board of election commissioners by the appearance on the ballot as a candidate for a position in his or her political party.
    1. A member of a county board of election commissioners shall be a resident of the county in which he or she serves at the time of his or her appointment or election.
      1. An election official shall be a resident of the precinct in which he or she serves at the time of his or her appointment.
      2. However, if at the time of posting election officials the county board of election commissioners votes unanimously and certifies to the county clerk that it is impossible to obtain a qualified election official from any precinct in the county, another qualified citizen of the county may be designated to serve in the precinct.
      3. An election coordinator, deputy clerk, or person assigned by a county clerk to conduct early voting does not have to be a resident of the precinct or county in which he or she serves.
    1. A person who is a paid employee of a political party or of a candidate for office on that county's ballot shall not be a member of a county board of election commissioners or an election official.
      1. Except as provided in subdivision (c)(2)(B) of this section, a person serving on the county board of election commissioners shall not participate in the campaign of any candidate listed on a ballot or of a write-in candidate seeking election in that county that falls under the county board of election commissioners’ jurisdiction or authority.
        1. A member of the county board of election commissioners shall not:
          1. Manage a campaign;
          2. Perform labor for a campaign;
          3. Solicit on behalf of a candidate or campaign;
          4. Pass out or place handbills, signs, or other literature concerning a candidate's campaign;
          5. Assist a candidate's campaign at a rally or parade; or
          6. Display candidate placards or signs on an automobile.
        2. A member of the county board of election commissioners may:
          1. Make a financial contribution to a candidate;
          2. Attend a political party's state, district, or county meeting where a candidate or issue advocate speaks as a member of the audience; or
          3. Participate in a political party convention.
    2. A person employed with a company that has a business dealing, contract, or pending contract with a county board of election commissioners to which he or she seeks appointment shall not be a candidate for the county board of election commissioners.
  1. A person shall not serve as an election official if:
    1. The person is married to or related within the second degree of consanguinity to a candidate running for office in the election; and
    2. Another person makes an objection to his or her service to the county board of election commissioners within ten (10) calendar days after posting the list of officials.
    1. Prior to the regularly scheduled preferential primary election, each of the following shall attend election training coordinated by the State Board of Election Commissioners:
      1. A member of the county board of election commissioners;
      2. A county clerk or his or her designee;
      3. A poll worker; and
      4. A certified election monitor.
    2. The State Board of Election Commissioners shall determine the method and amount of compensation for attending the training.
    3. A deputy county clerk, employee of the county clerk, or other worker who will assist with early voting may be trained by the county clerk or his or her designee.

History. Acts 1969, No. 465, Art. 5, § 4, and Art. 13, § 5; 1971, No. 451, § 2; 1972 (1st Ex. Sess.), No. 41, § 2; A.S.A. 1947, §§ 3-504, 3-1305; Acts 1987, No. 248, § 5; 1993, No. 715, §§ 1, 2; 1997, No. 647, § 7; 2001, No. 796, § 1; 2001, No. 1822, § 1; 2005, No. 894, § 1; 2005, No. 1827, § 3; 2007, No. 489, § 2; 2013, No. 1457, § 2; 2015, No. 1042, § 4; 2015, No. 1253, § 1.

Amendments. The 2013 amendment, in the section heading, deleted “and other” following “commissioners” and added “poll workers, and certified election monitors”; substituted “he or she serves” for “they serve” in (b)(1) and (b)(2)(A); substituted “his or her” for “their” in (b)(2)(A); in (b)(2)(B), substituted “votes unanimously and certifies to the county clerk” for “by unanimous vote shall find”; “in the county, another” for “or precincts and the county board shall make certification of that finding to the county clerk, then other”; in (c)(1), substituted “a candidate” for “any person running” and “not” for “be eligible to”; rewrote (c)(2)(A), (c)(2)(B), (c)(3), and (d); and substituted “poll worker, and certified election monitor” for “for each county and at least two (2) election officials per polling site designated by the county board for each county” in (e)(1); and made stylistic changes.

The 2015 amendment by No. 1042 added (b)(2)(C).

The 2015 amendment by No. 1253 rewrote (c)(2) and (e)(1); and added (e)(3).

Case Notes

Incumbent State Officer.

Although an incumbent state senator had been defeated in the primary for reelection, he was ineligible to serve as a member of the county board of election commissioners. Jones v. Duckett, 234 Ark. 990, 356 S.W.2d 5 (1962) (decision under prior law).

Party Chairman.

Since county party chairman was ex officio member of the board of election commissioners, person ineligible to serve as county election commissioner was ineligible to serve as party chairman. Jones v. Duckett, 234 Ark. 990, 356 S.W.2d 5 (1962) (decision under prior law).

Validity of Election.

Where the election commissioners selected judges for the election, the election was not rendered void because judges who were selected did not possess the requisite qualifications and were all strong partisans of one side of the issue to be determined at the election. Webb v. Bowden, 124 Ark. 244, 187 S.W. 461 (1916) (decision under prior law).

7-4-110. Oath of election officers.

  1. The election officials, before entering on their duties, shall take, before some person authorized by law to administer oaths, the following oath:
  2. In case there shall be no person present at the opening of any election authorized to administer oaths, it shall be lawful for the election officials to administer the oath to each other, and the election officials shall have full power and authority to administer all oaths that may be necessary in conducting any election.

“I, , do swear that I will perform the duties of an election official of this election according to law and to the best of my abilities, and that I will studiously endeavor to prevent fraud, deceit, and abuse in conducting the same, and that I will not disclose how any voter shall have voted, unless required to do so as a witness in a judicial proceeding or a proceeding to contest an election.”

History. Acts 1969, No. 465, Art. 7, § 4; A.S.A. 1947, § 3-704; Acts 1997, No. 647, § 8.

7-4-111. Compensation of board members.

  1. The State Board of Election Commissioners may receive expense reimbursement and stipends in accordance with § 25-16-901 et seq.
  2. Each member of the county board of election commissioners shall receive for services the sum of not less than twenty-five dollars ($25.00) per public meeting when official business is conducted.

History. Acts 1969, No. 465, Art. 5, § 7; A.S.A. 1947, § 3-507; Acts 1987, No. 403, § 1; 1995, No. 709, § 13; 1997, No. 250, § 42; 1997, No. 647, § 9; 2005, No. 1677, § 2.

7-4-112. Compensation of election officials.

  1. Except as provided under subsection (c) of this section, an election official shall receive a minimum of the prevailing federal minimum wage for holding an election, or such greater amount as may be appropriated.
  2. Except as provided in subsection (c) of this section and in addition to compensation under subsection (a) of this section, each election official carrying election materials to and from the polling sites shall be allowed mileage at such rate as may be appropriated but not to exceed the rate prescribed for state employees in state travel rules.
    1. An election official may work as a volunteer without pay or reimbursement as specified by the election official under this section if the election official signs an affidavit prescribed by the State Board of Election Commissioners stating that he or she does not wish to receive:
      1. Compensation for his or her work as an election official; or
      2. Reimbursement for mileage accrued in the course of his or her work as an election official.
    2. An election official may choose not to receive compensation or reimbursement, or both.
      1. An election official who signs the affidavit indicating that he or she does not wish to be compensated or reimbursed shall not be compensated with money or anything of value for his or her work as an election official.
      2. Any paperwork or document required by a student election official's school to verify his or her assistance is not compensation or reimbursement under this section.

History. Acts 1969, No. 465, Art. 7, § 20; 1970 (1st Ex. Sess.), No. 11, § 1; 1983, No. 169, § 1; A.S.A. 1947, § 3-720; Acts 1997, No. 647, § 10; 2005, No. 67, § 2; 2019, No. 315, § 416; 2019, No. 539, § 1.

Amendments. The 2019 amendment by No. 315 substituted “rules” for “regulations” in (b).

The 2019 amendment by No. 539 substituted “Except as provided under subsection (c) of this section, an election official shall receive” for “The election officials shall receive” in (a); substituted “Except as provided in subsection (c) and in addition to compensation under subsection (a) of this section” for “In addition” in (b); and added (c).

Case Notes

Construction with former § 7-4-107(e).

This section and former § 7-4-107(e), which provides that the election commission shall compute and then certify to the county court the amount necessary to pay per diem to each poll worker and to pay mileage to the election judge, are not inconsistent or in conflict. Union County v. Union County Election Comm'n, 274 Ark. 286, 623 S.W.2d 827 (1981).

7-4-113. Record of funds and expenditures.

The county board of election commissioners of each county shall maintain a record of all funds the county board of election commissioners receives and all expenditures of the county board of election commissioners. These records shall be open to the public under the provisions of the Freedom of Information Act of 1967, § 25-19-101 et seq.

History. Acts 1987, No. 795, § 1.

7-4-114. Filling vacancy of an elected office — Effect.

Any member of a county board of election commissioners may be appointed to fill a vacancy in an elected office without vacating his or her seat on the county board of election commissioners. The member shall not be eligible for reelection to the office when the term expires.

History. Acts 1993, No. 760, § 1.

7-4-115. Legislative intent.

Due to the United States Eighth Circuit Court of Appeals ruling in Jones v. Conway County, Arkansas, 143 F.3d 417 (8th Cir. 1998), the status of county election commissioners as either county officials or state officials has become unclear. Because of this lack of clarity, there has been much confusion as to whether or not county election commissioners should have been or currently are immune from suit under the state's policy of tort immunity. It is the intent of the General Assembly to clarify the official status of county election commissioners. Prior to July 30, 1999, county election commissioners were state officials and, as such, were immune from suit pursuant to Arkansas Constitution, Article 5, § 20, and § 19-10-305. Upon July 30, 1999, county election commissioners are hereby deemed to be county officials and are immune from suit pursuant to § 21-9-301.

History. Acts 1999, No. 1422, § 1; 2019, No. 966, § 4.

Amendments. The 2019 amendment deleted “recent” preceding “United States” in the first sentence.

7-4-116. Election poll workers program for high school students.

    1. The county board of election commissioners may conduct a special election day program for high school students in one (1) or more polling places designated by the county board of election commissioners.
    2. The high school students shall be selected by the county board of election commissioners in cooperation with the local high school principal, the local 4-H club, the local Boy Scouts of America club, the local Girl Scouts of the United States of America club, or any other local organization for youth designated by the county board of election commissioners.
      1. A high school student selected for this program who has not reached his or her eighteenth birthday by the election day in which he or she is participating shall be called an election page.
      2. A high school student selected for this program who has reached his or her eighteenth birthday by the election day in which he or she is participating and meets the qualifications in § 7-4-109 may be an election official.
  1. The program shall:
    1. Be designed to stimulate the students' interest in elections and registering to vote;
    2. Provide assistance to the officers of election; and
    3. Assist in the safe entry and exit of elderly voters and voters with disabilities from the polling place.
    1. In this volunteer position, each student selected as an election page shall:
      1. Be granted an additional excused absence from school while working as an election page;
      2. Serve under the direct supervision of the election officials at his or her assigned polling place; and
      3. Observe strict impartiality at all times.
    2. If an election page has attended training provided by the county board of election commissioners, the election page may assist election officials with checking in voters, assisting voters with instructions regarding the operation of voting machines, guarding the ballot box, and other related duties.
    3. An election page shall be in a volunteer position and shall not receive any compensation for performing his or her duties.
    4. Before beginning any duties, an election page shall take, before an election official, the following oath:
  2. Each student selected to be an election official shall:
    1. Take the oath of the election officials in § 7-4-110;
    2. Serve under the supervision of the appropriate county board of election commissioners;
    3. Observe strict impartiality at all times; and
    4. Be granted an additional excused absence from school while working as an election official.

“I, , do swear that I will perform the duties of an election page of this election according to law and to the best of my abilities, and that I will studiously endeavor to prevent fraud, deceit, and abuse, and that I will not disclose how any voter shall have voted, unless required to do so as a witness in a judicial proceeding or a proceeding to contest an election.”

History. Acts 2003, No. 242, § 1; 2005, No. 67, § 3; 2011, No. 1223, §§ 6, 7; 2013, No. 1322, §§ 5, 6; 2019, No. 328, § 1.

Amendments. The 2011 amendment substituted “granted an additional absence” for “excused” in (c)(1)(A) and (d)(1)(D).

The 2013 amendment inserted “excused” preceding “absence” in (c)(1)(A) and (d)(1)(D).

The 2019 amendment added “In this volunteer position” in the introductory language of (c)(1); rewrote (c)(2); redesignated (d)(1) as (d); and deleted (d)(2).

7-4-117. Election poll workers program for college students.

    1. The county board of election commissioners may conduct an election day program for college students in one (1) or more polling places designated by the county board of election commissioners.
      1. The college students shall be selected by the county board of election commissioners from any two-year or four-year college or university in the state.
      2. The county board of election commissioners shall work in cooperation with the student government associations of the colleges and universities in selecting the students for the program and conducting seminars concerning election procedures for students interested in the program.
      1. A college student selected for this program who has not reached his or her eighteenth birthday by the election day in which he or she is participating shall be called an election page.
      2. A college student selected for this program who has reached his or her eighteenth birthday by the election day in which he or she is participating and meets the qualifications in § 7-4-109 shall be an election official.
  1. The program shall:
    1. Be designed to stimulate the students' interest in elections and in registering to vote;
    2. Provide assistance to the officers of the election; and
    3. Assist in the safe entry and exit of elderly voters and voters with disabilities from the polling place.
    1. Each student selected as an election page shall:
      1. Serve under the direct supervision of the election officials at his or her assigned polling place; and
      2. Observe strict impartiality at all times.
    2. An election page may observe the electoral process and seek information from the election officers but shall not handle or touch ballots, voting machines, or any other official election materials or enter any voting booth.
    3. An election page shall be in a volunteer position and shall not receive any compensation for performing his or her duties.
    4. Before beginning any duties, an election page shall take, before an election official, the following oath:
    1. Each student selected to be an election official shall:
      1. Take the oath of the election officials in § 7-4-110;
      2. Serve under the supervision of the appropriate county board of election commissioners; and
      3. Observe strict impartiality at all times.
    2. A college student selected to be an election official shall be compensated according to § 7-4-112.

“I, , do swear that I will perform the duties of an election page of this election according to law and to the best of my abilities, and that I will studiously endeavor to prevent fraud, deceit, and abuse, and that I will not disclose how any voter shall have voted unless required to do so as a witness in a judicial proceeding or a proceeding to contest an election.”

History. Acts 2003, No. 1153, § 1; 2005, No. 67, § 4.

7-4-118. [Repealed.]

Publisher's Notes. This section, concerning complaints of election law violations, was repealed by Acts 2015, No. 1253, § 2. The section was derived from Acts 2003, No. 1161, § 2; 2007, No. 559, § 4; 2013, No. 1126, § 3.

7-4-119. Disclosure required.

  1. A member of a county board of election commissioners shall report to the Secretary of State by January 31 of each calendar year any goods or services sold during the previous calendar year by himself or herself, his or her spouse, or any business in which the member or his or her spouse is an officer, director, or stockholder owning more than ten percent (10%) of the stock having a total annual value in excess of one thousand dollars ($1,000) to an office, department, commission, council, board, bureau, committee, legislative body, agency, or other establishment of:
    1. The State of Arkansas;
    2. A county;
    3. A municipality; and
    4. A school district.
  2. The Secretary of State shall provide by rule for:
    1. A form for the report; and
    2. A procedure for the disclosure.

History. Acts 2011, No. 1216, § 1; 2013, No. 443, § 1.

A.C.R.C. Notes. Acts 2013, No. 443, § 2, provided: “Reports to be submitted to the Secretary of State under this act for the calendar year ending December 31, 2012, shall be due by September 1, 2013.”

Amendments. The 2013 amendment inserted “by January 31 of each calendar year” in the introductory language of (a); and added (b).

7-4-120. Complaints of election law violations — Definitions.

    1. Except as provided in subdivision (a)(2) of this section, the State Board of Election Commissioners may investigate alleged violations, render findings, and impose sanctions according to this subchapter for violations of election and voter registration laws.
    2. The State Board of Election Commissioners shall not investigate alleged violations, render findings, or impose sanctions concerning violations of:
      1. The provisions of § 7-1-103(a)(1)-(4), (6), and (7); or
      2. Campaign finance and disclosure laws for which the Arkansas Ethics Commission has the duty and authority to investigate and sanction under §§ 7-6-217 and 7-6-218.
    1. A complaint shall be filed with the State Board of Election Commissioners in writing within thirty (30) days of:
      1. An alleged violation of the voter registration laws; or
      2. The election associated with the complaint;
    2. A complaint shall be signed by the complainant under penalty of perjury.
      1. A complaint shall clearly:
        1. Describe the alleged violation, including without limitation the supporting facts for the violation;
        2. State when the alleged violation occurred; and
        3. State the location of the alleged violation.
        1. The complaint may specify a desired resolution to the complaint.
        2. If the complaint is timely filed but does not specify the desired resolution of the complainant:
          1. The State Board of Election Commissioners shall notify the complainant that a desired resolution is not specified; and
          2. The complainant may file the additional information within ten (10) days from mailing of the notice.
      1. If a complaint does not meet the requirements of this section, the complaint shall be dismissed.
      2. If a complaint is dismissed because it does not meet the requirements of this section, the State Board of Election Commissioners shall notify the complainant of the fact of dismissal.
    3. A person shall not file a frivolous complaint.
      1. If a complaint is filed as required by this section, the State Board of Election Commissioners shall investigate the alleged violation.
      2. Immediately upon beginning an investigation under this section, the State Board of Election Commissioners shall notify the person under investigation of the fact of the investigation and the nature of the investigation.
      3. If at the conclusion of the investigation, the State Board of Election Commissioners finds that there is probable cause to believe there has been a violation of the voter registration laws or election laws, the State Board of Election Commissioners may set a public hearing.
    1. The State Board of Election Commissioners shall maintain a record of all inquiries, investigations, and proceedings.
    2. Except as provided in subdivisions (c)(3) and (4) of this section, records under this section are exempt from disclosure under the Freedom of Information Act of 1967, § 25-19-101 et seq., until:
      1. A hearing by the State Board of Election Commissioners is set; or
      2. The investigation by the State Board of Election Commissioners is closed by the State Board of Election Commissioners.
    3. The State Board of Election Commissioners may disclose, through its members or staff, otherwise confidential information to proper law enforcement officers, agencies, and other entities as is necessary to conduct the investigation under this section.
    4. The records of the investigation upon which the State Board of Election Commissioners has based its findings shall be opened to public inspection thirty (30) days after the final adjudication in which the State Board of Election Commissioners makes a final decision.
    1. If the State Board of Election Commissioners determines that the complaint can be addressed through documentary submissions and without a formal investigation, the State Board of Election Commissioners may address the complaint with documentary submissions.
    2. If the State Board of Election Commissioners determines that an investigation is necessary, the State Board of Election Commissioners shall provide to the person who is the subject of the complaint:
      1. A copy of the complaint; and
      2. Instructions for filing a response.
    3. The State Board of Election Commissioners may:
      1. Administer oaths for the purpose of taking sworn statements from witnesses in the course of its investigations;
      2. Request the person who is the subject of the complaint to answer allegations in writing, produce relevant evidence, or appear in person before the State Board of Election Commissioners; and
      3. Subpoena any person or the books, records, or other documents relevant to the investigation or inquiry.
    4. The State Board of Election Commissioners shall:
      1. Provide the person subpoenaed with reasonable notice of the subpoena and an opportunity to respond; and
      2. Advise the complainant and the person who is the subject of the complaint in writing of the final action of the State Board of Election Commissioners.
  1. If the State Board of Election Commissioners finds a violation of the voter registration laws or election laws under its jurisdiction, the State Board of Election Commissioners may:
    1. Issue a public letter of caution, warning, or reprimand;
    2. Impose a fine of no less than twenty-five dollars ($25.00) and no more than one thousand dollars ($1,000) for a negligent, knowing, or intentional violation;
    3. Report the information obtained in the investigation and the findings and determinations of the State Board of Election Commissioners to the appropriate law enforcement authorities;
    4. Order payment of the costs of the investigation and hearing; or
    5. Combine any of the sanctions authorized under this section.
  2. The State Board of Election Commissioners shall advise the complainant and the person who is the subject of the complaint of the:
    1. Finding of the State Board of Election Commissioners;
    2. Final action taken and sanctions issued by the State Board of Election Commissioners; and
    3. Reasons for the findings, final actions, and sanctions.
  3. The State Board of Election Commissioners shall maintain a record of all inquiries, investigations, and proceedings.
    1. The State Board of Election Commissioners shall adopt rules concerning the imposition of fines under this section.
    2. If a person fails to pay the fines ordered by the State Board of Election Commissioners under this section, the State Board of Election Commissioners may obtain a judgment from a court for the amount of the fine imposed by filing suit in the:
      1. Pulaski County Circuit Court;
      2. Circuit court of the county in which the person resides; or
      3. Small claims division of a district court.
    3. The fee for filing of a suit in a circuit or district court in this state shall be waived for the State Board of Election Commissioners.
    4. All moneys received by the State Board of Election Commissioners in payment of fines shall be deposited into the State Treasury as general revenues.
    1. The State Board of Election Commissioners shall conclude its investigation and take its final action under this section within one hundred eighty (180) days of the filing of a complaint.
    2. If the State Board of Election Commissioners holds a hearing under this section, the State Board of Election Commissioners shall conclude all actions under this section within two hundred forty (240) days.
  4. A final action of the State Board of Election Commissioners under this section is an adjudication for purposes of judicial review under § 25-15-212.
  5. As used in this section:
    1. “Election laws” means the Arkansas statutes concerning elections conducted by county boards of election commissioners and the rules promulgated by the State Board of Election Commissioners under § 7-4-101 concerning elections conducted by county boards of election commissioners;
    2. “Frivolous” means clearly lacking any basis in fact or law; and
    3. “Voter registration laws” means those laws under Arkansas Constitution, Amendment 51, and the rules promulgated pursuant to Arkansas Constitution, Amendment 51.

History. Acts 2015, No. 1253, § 3; 2017, No. 247, § 1.

Amendments. The 2017 amendment deleted “of this subchapter” following “violation” in (e)(2).

7-4-121. Election audits.

    1. The State Board of Election Commissioners shall audit the results of each general election to ensure the integrity and accuracy of the voting process.
    2. When conducting a post-election audit of the election results, the State Board of Election Commissioners shall:
      1. Select by lot the counties, polling sites, early voting locations, and vote centers to be audited;
      2. Select a sufficient number of early voting locations, polling sites, and vote centers to obtain a meaningful sample;
      3. Select the counties to be audited no less than sixty (60) days following the date of the general election;
      4. Conduct the audit by using the voter-verified paper audit trail;
        1. Compile a report detailing the findings of this audit.
        2. The report filed under this subdivision (a)(2)(E):
          1. Is not a recount;
          2. Has no legal effect on the outcome of any election subject to the audit; and
          3. Shall be made public and disseminated to any person upon request; and
      5. Securely maintain any county election records obtained for the purpose of conducting an audit.
    3. The Secretary of State may, at his or her discretion, provide additional staff to assist in conducting any audit under this subsection.
    1. The county clerk, county board of election commissioners, or other county election official for a county that is audited under this section shall provide documents, records, or access to election equipment requested by the State Board of Election Commissioners to the State Board of Election Commissioners upon request.
    2. If the county clerk, county board of election commissioners, or other county election official of the county willfully fails to comply with a request made under subdivision (b)(1) of this section, and the State Board of Election Commissioners is not able to obtain the requested information through other means, the State Board of Election Commissioners may:
      1. Find that the county in violation of subdivision (b)(1) of this section has forfeited reimbursement of state-funded election expenses for a period of up to two (2) years; and
      2. Elect to withhold reimbursement of state-funded election expenses to the county for a period of up to two (2) years.

History. Acts 2019, No. 888, § 2.

Subchapter 2 — Volunteer Deputy Voter Registrars

7-4-201 — 7-4-211. [Repealed.]

Publisher's Notes. This subchapter, concerning volunteer deputy voter registrars, was repealed by identical Acts 1995, Nos. 926 and 942, § 1. The subchapter was derived from the following sources:

7-4-201. Acts 1987, No. 799, §§ 1, 2, 4.

7-4-202. Acts 1987, No. 799, § 3.

7-4-203. Acts 1987, No. 799, § 8.

7-4-204. Acts 1987, No. 799, §§ 4, 5.

7-4-205. Acts 1987, No. 799, § 4.

7-4-206. Acts 1987, No. 799, § 6.

7-4-207. Acts 1987, No. 799, §§ 9, 11; 1993, No. 1214, § 1.

7-4-208. Acts 1987, No. 799, §§ 7, 8.

7-4-209. Acts 1987, No. 799, §§ 10, 13.

7-4-210. Acts 1987, No. 799, § 12.

7-4-211. Acts 1989, No. 539, § 1.

Chapter 5 Election Procedure Generally

A.C.R.C. Notes. Acts 2019, No. 888, § 5, provided: “Application.

“(a)(1) The State Board of Election Commissioners shall conduct the initial audit of the results of the general election under this act after the 2020 general election as a pilot program.

“(2) For each election system utilizing a ballot marking device and tabulator in operation for the 2020 election, the State Board of Election Commissioners shall:

“(A) Conduct an audit of at least one (1) county with a population of more than one hundred thousand (100,000) people;

“(B) Conduct an audit of at least four (4) counties with a population of less than one hundred thousand (100,000) people; and

“(C) Conduct the audits in a manner that effectuates at least one (1) audit from a county in each of the congressional districts of this state.

“(b) The State Board of Election Commissioners shall develop a comprehensive plan to audit the state's election equipment based on the experience gained through this pilot program”.

Cross References. Political parties, § 7-3-101 et seq.

RESEARCH REFERENCES

Ark. L. Notes.

Cihak and Springman, HAVA and Arkansas Election Law Reform: Compliance and Promise, 2006 Arkansas L. Notes 1.

Subchapter 1 — General Provisions

Effective Dates. Acts 1969, No. 465, Art. 13, § 10: approved Apr. 17, 1969. Emergency clause provided: “It is hereby found and declared by the General Assembly of the State of Arkansas that the present election laws are ancient and outdated in part and have caused and are causing much confusion and controversy, that there are particular problem areas in the present law which need immediate legislation in order to resolve same, that elections are and will continue to be held and conducted in this atmosphere of confusion and controversy until these problem areas are resolved and this Act being necessary for the immediate preservation of the public peace, health and safety, an emergency is hereby declared to exist and this Act shall be in force and effect from and after its passage.”

Identical Acts 1995, Nos. 946 and 963, § 14: Jan. 1, 1996.

Acts 1995 (1st Ex. Sess.), No. 7, § 5: Oct. 19, 1995. Emergency clause provided: “It is hereby found and determined by the General Assembly that the present law relating to the designation of polling places in voting precincts in the state is unduly restrictive and that in the best interests of efficiency and convenience of the voting public, it is necessary that authority of the county board of election commissioners to fix polling places be clarified immediately and that this act is designed to do so. Therefore an emergency is hereby declared to exist and this act being necessary for the preservation of the public peace, health and safety shall be in full force and effect from and after its passage and approval.”

Acts 2005, No. 1205, § 2: Mar. 24, 2005. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that that the law concerning allocation of election expenses is in need of revision; that this act provides for an appropriate allocation; and that this act is immediately necessary because a delay in its implementation could prevent it from applying to some elections. Therefore, an emergency is declared to exist and this act being immediately necessary for the preservation of the public peace, health, and safety shall become effective on: (1) The date of its approval by the Governor; (2) If the bill is neither approved nor vetoed by the Governor, the expiration of the period of time during which the Governor may veto the bill; or (3) If the bill is vetoed by the Governor and the veto is overridden, the date the last house overrides the veto.”

Acts 2009, No. 1480, § 117: Apr. 10, 2009. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that this act makes various revisions to Arkansas election laws that are designed to improve the administration of elections and special elections and that these revisions should be implemented as soon as possible so that the citizens of this state may benefit from improved election procedures. Therefore, an emergency is declared to exist and this act being immediately necessary for the preservation of the public peace, health, and safety shall become effective on: (1) The date of its approval by the Governor; (2) If the bill is neither approved nor vetoed by the Governor, the expiration of the period of time during which the Governor may veto the bill; or (3) If the bill is vetoed by the Governor and the veto is overridden, the date the last house overrides the veto.”

Research References

Am. Jur. 26 Am. Jur. 2d, Elections, § 302 et seq.

C.J.S. 29 C.J.S., Elections, § 319 et seq.

7-5-101. Precinct boundaries, polling sites, and vote centers — Establishment and alteration.

    1. The county board of election commissioners shall:
      1. Establish election precincts; and
        1. Designate a polling site for each precinct.
        2. A polling site may serve two (2) or more precincts, including parts of precincts.
    2. Except as provided in § 6-14-106, the designation of polling sites shall be by a unanimous vote of the members of the county board of election commissioners present.
    1. The county board of election commissioners by order may alter the boundaries of existing election precincts and establish new ones.
    2. A precinct shall not be altered and a new precinct shall not be created less than sixty (60) days before an election except in the event of an emergency as determined by unanimous vote of the county board of election commissioners.
      1. Except as provided in subdivision (b)(3)(B) of this section, if more than three thousand (3,000) voters are registered in a precinct, the county board of election commissioners shall redistrict the precinct at least one hundred twenty (120) days before the election.
      2. If the number of registered voters in the precinct exceeds three thousand (3,000) registered voters during or after the one hundred twenty (120) days before an election, the county board of election commissioners shall redistrict the precinct at least one hundred twenty (120) days before the next election.
      1. An order to alter the boundaries of any precinct or establish any new one shall not be effective until it has been filed with the county clerk.
      2. The order shall contain:
        1. A written description of the boundaries of the precinct;
        2. A printed map of the boundaries of the precincts altered or established; and
        3. A digital map detailing the precinct boundaries altered or established in a format prescribed by the Arkansas Geographic Information Systems Office.
    1. Within thirty (30) days after the boundaries of an election precinct are altered or a new election precinct is established, the county clerk shall submit written, printed, and digital copies of the map and boundaries required under subdivision (b)(4) of this section to the:
      1. Secretary of State; and
      2. Arkansas Geographic Information Systems Office.
    2. Upon receipt of the changes, the Secretary of State immediately shall forward a copy to the:
      1. Office of the Attorney General;
      2. Census State Data Center;
      3. Geographic Information Systems and Mapping Section of the Transportation Planning and Policy Division of the Arkansas Department of Transportation; and
      4. Arkansas Geographic Information Systems Office.
    3. The Secretary of State may:
      1. Designate each precinct in the state with a unique alphanumeric description that clearly references:
        1. The precinct designation assigned by the county board of election commissioners; and
        2. The county in which the precinct exists;
      2. Create a map of the State of Arkansas that is divided by precinct; and
      3. Display the map with the alphanumeric precinct designations on the Secretary of State's internet website.
    1. Except for school elections under § 6-14-106, the polling sites for each election shall be the same as those established for the immediately preceding general election unless changed by order of the county board of election commissioners.
    2. The county board of election commissioners shall not change a polling site for any precinct less than thirty (30) days before an election, except in the event of an emergency.
      1. Notice of a change made in a polling site shall be provided by posting information at the polling site used in the last election and by the county clerk mailing notice to affected registered voters at least fifteen (15) days before the election unless:
        1. The election is a school election;
        2. The election is a special election; or
        3. The change in polling sites is due to an emergency arising less than fifteen (15) days before the election.
      2. If the change in polling site occurs in a school election, special election, or due to an emergency arising less than fifteen (15) days before the election, notice of a change made in the polling site shall be provided by posting information at the polling site used in the last election.
      1. Before establishing one (1) or more vote centers in the county under § 7-1-113, the county clerk shall certify to the Secretary of State and the county quorum court that the county has a secure electronic connection sufficient to prevent:
        1. An elector from voting more than once; and
        2. Unauthorized access to a computerized registration book maintained by the county clerk.
      2. If the county clerk has certified to the county quorum court a determination of sufficiency under subdivision (e)(1)(A) of this section, the county may adopt an ordinance to establish vote centers for elections.
      3. The ordinance:
        1. Shall be filed with the county clerk, the county board of election commissioners, and the Secretary of State; and
        2. Is effective when it is filed with the county clerk, the county board of election commissioners, and the Secretary of State.
      1. Except for school elections under § 6-14-106, a vote center location for each election shall be the same as that established for the immediately preceding general election unless changed by order of the county clerk or county board of election commissioners.
      2. The county clerk or county board of election commissioners shall not change a vote center location for any precinct less than thirty (30) days before an election except in the event of an emergency.
      3. Notice of a change made to a vote center location shall be posted at the vote center location used in the last election, and except for school elections and special elections, the notice shall be published in a newspaper of general circulation in the county at least fifteen (15) days before the election.

History. Acts 1969, No. 465, Art. 6, § 1; A.S.A. 1947, § 3-601; Acts 1993, No. 717, §§ 1, 3; 1995, No. 876, § 1; 1995 (1st Ex. Sess.), No. 7, § 1; 1997, No. 451, § 1; 1999, No. 455, § 1; 2003, No. 1165, § 2; 2003, No. 1295, § 2; 2007, No. 694, § 1; 2009, No. 250, § 3; 2009, No. 1480, § 15; 2013, No. 546, § 1; 2013, No. 1126, § 4; 2013, No. 1211, § 2; 2013, No. 1389, § 3; 2015, No. 103, § 8; 2017, No. 707, § 8.

Amendments. The 2009 amendment by No. 250 substituted “establish” for “fix” or variant in three places in (a)(2)(A), and made minor stylistic changes.

The 2009 amendment by No. 1480 rewrote the section.

The 2013 amendment by No. 546 rewrote (d)(3).

The 2013 amendment by No. 1126 substituted “Mapping and Graphics Section of the Planning and Research Division” for “Cartography Section” in (c)(2)(C).

The 2013 amendment by No. 1211 rewrote (a), (b) and (c).

The 2013 amendment by No. 1389 added (e).

The 2015 amendment inserted “Systems” in (b)(4)(B)(iii), (c)(1)(B), and (c)(2)(D).

The 2017 amendment, in (c)(2)(C), substituted “Geographic Information Systems and Mapping” for “Mapping and Graphics”, and substituted “Department of Transportation” for “State Highway and Transportation Department”.

Case Notes

Allegations.

Where complainant's only allegation of irregularity in local option election was that the election was invalid because there was no duly established precinct known as Union Precinct in existence as required by this section, allegation was a conclusion of law and not a statement of facts upon which relief could be granted and complaint was dismissed without prejudice. Spires v. Members of Election Comm'n, 302 Ark. 407, 790 S.W.2d 167 (1990).

Inaccurate Precinct Boundaries.

Where the minutes of the meeting of a county election commission did not intelligently and accurately set out the boundaries of proposed precincts, which were to exist only for the upcoming general election, the precincts were not validly established in the manner required by this section. Glover v. Russell, 260 Ark. 609, 542 S.W.2d 751 (1976).

Lack of Formal Order.

Where the challenged election precinct had existed in fact through at least three elections, its boundaries had not been questioned by anyone, and it had been recognized by the election officials and voters as a valid precinct, the lack of a formal order approving the creation of the new precinct was a mere technicality, and the precinct was a valid legal precinct. Goodall v. Adams, 277 Ark. 261, 640 S.W.2d 803 (1982).

Because the complainants did not seek to remedy a precinct boundary problem until after the election, the requirement of filing an order describing precinct's boundaries became directory, not mandatory. Spires v. Compton, 310 Ark. 431, 837 S.W.2d 459 (1992).

School Districts.

School districts being political townships for the purpose of school elections, general election law governed conduct of such elections and required the county board of election commissioners to lay out and designate the voting precincts in the school districts. Christenson v. Felton, 226 Ark. 985, 295 S.W.2d 361 (1956) (decision under prior law).

The designation of voting precincts in a school district election, mandatory before election, became directory after the election so that voters otherwise qualified would not be disfranchised by failure of the election commissioners to perform their duties and so that votes of such voters would be counted. Christenson v. Felton, 226 Ark. 985, 295 S.W.2d 361 (1956) (decision under prior law).

Although as a general rule a voter must vote in the ward or precinct in which he resides, votes of otherwise qualified voters in a school district election in which the election commissioners failed to designate voting precincts are not void because cast in the wrong precinct for in the absence of designated precincts there could be no showing of voting in the wrong precincts. Christenson v. Felton, 226 Ark. 985, 295 S.W.2d 361 (1956) (decision under prior law).

7-5-102. Time of general election.

On the Tuesday next after the first Monday in November in every even-numbered year, there shall be held an election in each precinct and ward in this state for the election of:

  1. All elective state, county, and township officers whose term of office is fixed at two (2) years by the Arkansas Constitution or the General Assembly;
  2. State senators in their respective districts when the terms for which the state senators have been elected expire before the next general election;
  3. Members of the United States House of Representatives for each congressional district in this state; and
  4. United States Senators when the term of office of any United States Senator expires before the next general election.

History. Acts 1969, No. 465, Art. 6, § 2; A.S.A. 1947, § 3-602; Acts 1993, No. 512, § 1; 2005, No. 67, § 5; 2013, No. 1110, § 3.

Amendments. The 2013 amendment rewrote the section.

Case Notes

Cited: Rock v. Byrant, 459 F. Supp. 64 (E.D. Ark. 1978); Johnson County Bd. of Election Comm'rs v. Holman, 280 Ark. 128, 655 S.W.2d 408 (1983).

7-5-103. [Repealed.]

Publisher's Notes. This section, concerning special elections, was repealed by Acts 2009, No. 1480, § 16. The section was derived from Acts 1969, No. 465, Art. 6, § 3; A.S.A. 1947, § 3-603; Acts 2003, No. 1441, § 1; 2005, No. 2145, § 11; 2007, No. 1049, § 13; 2009, No. 26, § 1; 2009, No. 375, § 1.

7-5-104. Election expenses — Allocation.

    1. All expenses of general elections for presidential, congressional, state, district, county, township, or municipal offices in this state shall be paid by the counties in which they are held.
    2. However, any city or incorporated town shall reimburse the county board of election commissioners for the expenses of the elections in an amount equal to a figure derived by multiplying fifty percent (50%) of the total cost of each election by a fraction, the numerator of which shall be the number of voters from the city or incorporated town casting ballots in each election prepared by the county board of election commissioners, and the denominator of which shall be the total number of voters casting ballots in each election.
    1. Except for the expense of party primary elections under § 7-7-201 et seq., all expenses for special elections, including runoff elections as required by law, for congressional, state, district, county, and township offices shall be paid by the counties in which they are held.
    2. All expenses of special elections, including any runoff elections as required by law, for municipal offices shall be paid by the city or incorporated town calling for the elections.
    3. All expenses of special elections called by any county for the purpose of referring a question or measure to the voters of the county shall be paid by the county.
    4. All expenses of special elections called by any city or incorporated town for the purpose of referring a question or measure to the voters of the city or incorporated town shall be paid by the city or incorporated town.

History. Acts 1992 (1st Ex. Sess.), No. 67, § 2; 2005, No. 1205, § 1.

Publisher's Notes. Former § 7-5-104, concerning allocation of election expenses, was repealed by Acts 1992 (1st Ex. Sess.), No. 67, § 1. The former section was derived from Acts 1969, No. 465, Art. 6, § 9; A.S.A. 1947, § 3-609; Acts 1991, No. 921, § 1.

7-5-105. [Repealed.]

Publisher's Notes. This section, concerning payment to county clerk for registered voter lists, was repealed by Acts 1997, No. 451, § 17. The section was derived from Acts 1969, No. 465, Art. 13, § 4; A.S.A. 1947, § 3-1304; Acts 1993, No. 1092, § 2; 1995, No. 924, § 1; 1995, No. 937, § 1. For present law, see § 7-5-109.

7-5-106. Runoff elections for county and municipal officers — Definition.

    1. If there are more than two (2) candidates for election to any county elected office, including the office of justice of the peace, at any general election held in this state and no candidate for the county elected office receives a majority of the votes cast for the county elected office, there shall be a runoff general election held in that county four (4) weeks following the date of the general election at which the names of the two (2) candidates receiving the highest number of votes, but not a majority, shall be placed on the ballot to be voted upon by the qualified electors of the county.
      1. The following procedure will govern if there are more than two (2) candidates for election to any municipal office at any general election held in this state in which no candidate for the municipal office receives either:
        1. A majority of the votes cast; or
        2. A plurality of forty percent (40%) of the votes cast.
        1. A candidate who receives a plurality of forty percent (40%) of the votes cast must obtain at least twenty percent (20%) more of the votes cast than the second-place candidate for the municipal office to avoid a runoff general election against the second-place candidate.
        2. If required, the runoff general election between the two (2) candidates shall be held in that municipality four (4) weeks following the date of the general election with the names of the two (2) candidates placed on the ballot to be voted upon by the qualified electors of the municipality.
  1. If two (2) candidates receive the highest number of votes and receive the same number of votes, a tie is deemed to exist and the names of the two (2) candidates shall be placed on the runoff general election ballot to be voted upon by the qualified electors of the county or the municipality, as the case may be.
    1. If there is one (1) candidate who receives the highest number of votes, but not a majority of the votes, and two (2) other candidates receive the same number of votes for the next highest number of votes cast, a tie is deemed to exist between the two (2) candidates.
    2. The county board of election commissioners shall determine the runoff candidate by lot at a public meeting and in the presence of the two (2) candidates.
  2. If one (1) of the two (2) candidates who received the highest number of votes for a county elected office or a municipal office but not a majority of the votes in a county for a county elected office or either a majority or both forty percent (40%) of the votes cast and at least twenty percent (20%) more of the votes cast than the second-place candidate in a municipality for a municipal office in the general election withdraws before certification of the result of the general election, the remaining candidate who received the most votes at the general election shall be declared elected to the county elected office or municipal office and there shall be no runoff general election.
    1. The person receiving the majority of the votes cast for the county elected office or municipal office at the runoff general election shall be declared elected.
    2. However, if the two (2) candidates seeking election to the same county elected office or municipal office receive the same number of votes in the runoff general election, a tie is deemed to exist, and the county board of election commissioners shall determine the winner of the runoff general election by lot at an open public meeting and in the presence of the two (2) candidates.
    1. As used in this section, “municipal office” means offices of cities of the first class and cities of the second class and incorporated towns and includes the offices of council members, members of boards of managers, or other elective municipal offices elected by the voters of the entire municipality or from wards or districts within a municipality.
    2. “Municipal office” does not include offices of cities having a city manager form of government.
  3. This section does not apply to election of members of the boards of directors and other officials of cities having a city manager form of government.
  4. This section is intended to be in addition to and supplemental to the laws of this state pertaining to the election of officers for county elected offices and municipal offices at general elections.

History. Acts 1983, No. 909, §§ 1, 2; A.S.A. 1947, §§ 3-616, 3-617; Acts 1991, No. 53, § 1; 1997, No. 451, § 3; 1999, No. 554, § 1; 2003, No. 1165, § 3; 2007, No. 1049, § 14; 2011, No. 1211, § 1; 2017, No. 879, § 1; 2017, No. 1104, § 2; 2019, No. 207, § 1.

Amendments. The 2007 amendment inserted present (d), and redesignated the following subdivisions accordingly.

The 2011 amendment, in (a)(1), deleted “or for any municipal office” preceding “at any general election,” substituted “for the county elected office” for “for the municipal or county office,” substituted “votes cast for the county elected office” for “votes cast for the office,” substituted “election held in that county” for “election held in that county or municipality,” and deleted “or the municipality, as the case may be” following “qualified electors of the county”; inserted (a)(2); rewrote (d); inserted “county elected office or municipal” in (e)(1); inserted “elected office” and ”general” in (e)(2); and rewrote (f) through (h).

The 2017 amendment by No. 879 substituted “council members” for “aldermen” in (f)(1).

The 2017 amendment by No. 1104 substituted “four (4) weeks” for “three (3) weeks” in (a)(2)(B)(ii).

The 2019 amendment substituted “four (4) weeks” for “three (3) weeks” in (a)(1).

Research References

ALR.

Validity of Runoff Voting Election Methodology. 67 A.L.R.6th 609.

Case Notes

Constitutionality.

This statute represents a systematic and deliberate attempt to reduce black political opportunity. Such an attempt is plainly unconstitutional. It replaces a system in which blacks could and did succeed with one in which they almost certainly cannot. The inference of racial motivation is inescapable. Jeffers v. Clinton, 740 F. Supp. 585 (E.D. Ark. 1990), appeal dismissed, 498 U.S. 1129, 111 S. Ct. 1096, 112 L. Ed. 2d 1200 (1991).

The exception in this section concerning cities having a city manager form of government is not violative of Ark. Const. Amend. 14. Henry v. Pulaski County Election Comm'n, 319 Ark. 353, 891 S.W.2d 61 (1995).

Applicability.

This section refers specifically to “general elections,” not “special elections,” and if the General Assembly intended for the runoff provisions to apply to all elections, general and special, it could have so stated instead of using limiting language. Allen v. Lincoln County Election Comm'n, 789 F. Supp. 976 (E.D. Ark. 1992).

Municipal Officers.

Subsection (b) [now (f)(2) and (g)] is a general law which applies with equal impact upon all cities having a city manager form of government; thus, considering the presumptive validity to be given this section, there is no reason why the General Assembly cannot provide a vote requirement for electing a municipal judge in all cities having a city manager form of government different from vote requirements for judges of cities having other types of city government. Henry v. Pulaski County Election Comm'n, 319 Ark. 353, 891 S.W.2d 61 (1995).

7-5-107. Use of voter registration lists by poll workers.

    1. In any election conducted in this state, precinct voter registration lists shall be used by poll workers in each polling place.
      1. An electronic poll book may be used by poll workers in each polling place.
      2. The functions of an electronic poll book may include without limitation:
        1. Voter lookup;
        2. Voter verification;
        3. Voter identification;
        4. Precinct assignment;
        5. Ballot assignment;
        6. Recording when a voter presents himself or herself to an election official and requests a ballot; and
        7. Redirecting voters to the correct polling site.
  1. Precinct voter registration lists shall contain the name, address including zip code, and date of birth of each registered voter within the precinct, including those who have been designated inactive, the precinct number and county wherein the precinct is located, the name and date of the election, and a space for the voter's signature.
  2. The following shall be printed at the top of each page of the precinct voter registration list:

“IF YOU SIGN THIS FORM AND YOU ARE NOT A LAWFULLY REGISTERED VOTER, YOU ARE MAKING A FALSE STATEMENT AND MAY BE COMMITTING PERJURY. PERJURY IS PUNISHABLE BY UP TO A $10,000 FINE AND UP TO 10 YEARS IMPRISONMENT.”

History. Acts 1993, No. 487, § 1; 1995, No. 946, § 2; 1995, No. 963, § 2; 2009, No. 959, § 3; 2013, No. 1297, § 2.

Amendments. The 2009 amendment substituted “poll workers” for “election officials” in the section head and in (a); and substituted “polling place” for “precinct” in (a).

The 2013 amendment inserted the (a)(1) designation and added (a)(2).

Research References

ALR.

Validity of Statute Providing for Purging Voter Registration Lists of Inactive Voters. 51 A.L.R.6th 287.

Voter Identification Requirements as Denying or Abridging Right to Vote on Account of Race or Color Under § 2 of Voting Rights Act, 52 U.S.C. § 10301. 12 A.L.R. Fed. 3d 4 (2016).

7-5-108. [Repealed.]

Publisher's Notes. This section, concerning the time of runoff elections, was repealed by Acts 1997, No. 451, § 4. The section was derived from Acts 1993, No. 966, § 3.

7-5-109. Computerized voter registration lists.

  1. The county clerks of the several counties of the state may reproduce the registered voter list maintained by the county clerk in any format that the office of the county clerk is capable of providing.
  2. The county clerks shall be entitled to a fee in connection with the preparation of any registered voter list that shall reimburse the county clerk for reproduction expenses. The value of office equipment previously secured for the office of the county clerk shall not be considered when determining the amount of this fee.
      1. Upon request every county clerk who maintains on computer the list of registered voters within the county shall provide the list on compact disc or other electronic medium.
      2. The list shall include at least the names, addresses, and precinct numbers of the voters.
      1. The fee for a list, on compact disc or other electronic medium, of one (1) to five thousand (5,000) registered voters may be up to ten dollars ($10.00).
      2. The fee for a list, on compact disc or other electronic medium, of five thousand one (5,001) to twenty-five thousand (25,000) registered voters may be up to twenty-five dollars ($25.00).
      3. The fee for a list, on compact disc or other electronic medium, of more than twenty-five thousand (25,000) registered voters may be up to fifty dollars ($50.00).
    1. If a printed list is requested, the cost of the list may be no more than two cents (2¢) per name and address.

History. Acts 1993, No. 1161, § 1; 1995, No. 924, § 2; 1995, No. 937, § 2; 1997, No. 451, § 5; 1999, No. 651, § 1; 2013, No. 1126, § 5.

Amendments. The 2013 amendment substituted “compact disc or other electronic medium” for “computer disk or tape” in (c)(1)(A) and (c)(2)(A) through (c)(2)(C).

7-5-110. Registration lists for each ballot combination.

In any precinct with more than one (1) ballot combination, the county clerk shall prepare precinct voter registration lists that identify the district, subdistrict, county, municipality, ward, and school zone in which each voter is qualified to vote.

History. Acts 1995, No. 672, § 1; 1997, No. 451, § 6.

7-5-111. Candidacy for more than one elected office — Limitations.

A person shall not run for election for more than one (1) state, county, municipal, district, or township office if the elections are to be held on the same date.

History. Acts 2013, No. 1471, § 1; 2017, No. 158, § 1.

Amendments. The 2017 amendment substituted “municipal, district, or township office” for “or municipal office”.

Case Notes

Claim Properly Dismissed.

Candidate could not run for both city treasurer and justice of the peace because (1) the candidate was prohibited from running for two offices when the elections for those offices were held on the same day, and (2) the elections for the offices in question were held on the same day. Roberson v. Phillips County Election Comm'n, 2014 Ark. 480, 449 S.W.3d 694 (2014).

Compensation.

Candidate could not run for both city treasurer and justice of the peace, even though the candidate would only receive compensation for one office, because the elections for each office were held on the same day, so the candidate was statutorily barred from holding both offices, regardless of compensation. Roberson v. Phillips County Election Comm'n, 2014 Ark. 480, 449 S.W.3d 694 (2014).

Subchapter 2 — Preelection Proceedings

Effective Dates. Acts 1969, No. 465, Art. 13, § 10: approved Apr. 17, 1969. Emergency clause provided: “It is hereby found and declared by the General Assembly of the State of Arkansas that the present election laws are ancient and outdated in part and have caused and are causing much confusion and controversy, that there are particular problem areas in the present law which need immediate legislation in order to resolve same, that elections are and will continue to be held and conducted in this atmosphere of confusion and controversy until these problem areas are resolved and this Act being necessary for the immediate preservation of the public peace, health and safety, an emergency is hereby declared to exist and this Act shall be in force and effect from and after its passage.”

Acts 1971, No. 725, § 3: Apr. 28, 1971. Emergency clause provided: “It is hereby found and determined by the General Assembly that under the present laws of this state, a person may, under certain circumstances, become a candidate for a public office which such person is not qualified and eligible to hold even if such person were elected to the office; that it is essential to the proper administration of the election laws of this state that legislation be enacted immediately to prohibit inclusion on the ballot of the name of any person as a candidate for any public office, if such person would not be qualified and eligible to fill such office if elected, and that this act is designed to correct this situation. Therefore, an emergency is hereby declared to exist and this act being necessary for the immediate preservation of the public peace, health and safety shall be in full force and effect from and after its passage and approval.”

Acts 1973, No. 157, § 10: Feb. 20, 1973. Emergency clause provided: “It is hereby found and determined by the General Assembly that under the present laws of the state, that separate or common polling places cannot be established by county committees in counties using voting machines without attendant substantial costs; that it is essential to the proper and economical administration of the election laws of this state that legislation be enacted immediately to provide that respective county committees or county elections commissions in counties using voting machines may designate separate and/or common polling places where all elections can be held and to provide for a minimum number of election officials to serve at such polling places so that substantial economies can be realized in the conduct of such elections. Therefore an emergency is declared to exist and this act, being necessary for the immediate preservation of the public peace, health, and safety, shall be in full force and effect from and after its passage and approval.”

Identical Acts 1995, Nos. 930 and 941, § 3: Jan. 1, 1996.

Identical Acts 1995, Nos. 946 and 963, § 14: Jan. 1, 1996.

Acts 2001, No. 1789, § 12: Emergency clause failed. Emergency clause provided: “It is found and determined by the General Assembly that Amendment 80 to the Arkansas Constitution becomes effective on July 1, 2001; that this implements the nonpartisan election of justices and judges as mandated by Amendment 80; and that to effectively implement Amendment 80, this act should become effective on July 1, 2001. Therefore, an emergency is declared to exist and this act being necessary for the immediate preservation of the public peace, health and safety shall become effective on July 1, 2001.”

Acts 2005, No. 2233, § 48: Jan. 1, 2006.

Acts 2009, No. 1480, § 117: Apr. 10, 2009. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that this act makes various revisions to Arkansas election laws that are designed to improve the administration of elections and special elections and that these revisions should be implemented as soon as possible so that the citizens of this state may benefit from improved election procedures. Therefore, an emergency is declared to exist and this act being immediately necessary for the preservation of the public peace, health, and safety shall become effective on: (1) The date of its approval by the Governor; (2) If the bill is neither approved nor vetoed by the Governor, the expiration of the period of time during which the Governor may veto the bill; or (3) If the bill is vetoed by the Governor and the veto is overridden, the date the last house overrides the veto.”

Acts 2011, No. 1185, § 21: Oct. 2, 2011.

Acts 2013, No. 595, § 7, provided: “This act shall become effective upon the later of the following:

“(1) January 1, 2014; or

“(2) The appropriation and availability of funding to the Secretary of State for the issuance of voter identification cards under Section 5 of this act.”The contingency in Acts 2013, No. 595, § 7 was met by Acts 2013, No. 1376.

Acts 2019, No. 597, § 10, July 1, 2019. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that there is a need for uniform candidate filing and petition circulation periods; that if there is a delay in implementation, some candidate filing and petition circulation periods may be disrupted by the change in the middle of a candidate’s campaign; and that this act should become effective before candidates begin circulating petitions and filing for candidacy in the 2019 November annual school elections. Therefore, an emergency is declared to exist, and this act being necessary for the preservation of the public peace, health, and safety shall become effective on July 1, 2019.”

Research References

Am. Jur. 25 Am. Jur. 2d, Elections, § 148 et seq.

26 Am. Jur. 2d, Elections, § 283 et seq.

C.J.S. 29 C.J.S., Elections, § 141 et seq., § 258 et seq.

7-5-201. Voter qualification.

  1. To be qualified to vote, a person shall have registered at least thirty (30) calendar days immediately prior to the election and in the manner set forth by Arkansas Constitution, Amendment 51.
  2. “Voting residence” shall be a voter's domicile and shall be governed by the following provisions:
    1. The domicile of a person is that place in which his or her habitation is fixed and to which he or she has the intention to return whenever he or she is absent;
    2. A change of domicile is made only by the act of abandonment, joined with the intent to remain in another place. A person can have only one (1) domicile at any given time;
    3. A person does not lose his or her domicile if he or she temporarily leaves his or her home and goes to another country, state, or place in this state with the intent of returning;
    4. The place where a person's family resides is presumed to be his or her place of domicile, but a person may acquire a separate residence if he or she takes another abode with the intention of remaining there;
    5. A married person may be considered to have a domicile separate from that of his or her spouse for the purposes of voting or holding office. For those purposes, domicile is determined as if the person were single; and
    6. Persons who are temporarily living in a particular place because of a temporary work-related assignment or duty post or as a result of their performing duties in connection with their status as military personnel, students, or office holders shall be deemed residents of that place where they established their home prior to beginning such assignments or duties.
  3. No person may be qualified to vote in more than one (1) precinct of any county at any one (1) time.
    1. Except as provided in subdivision (d)(2) of this section and subsection (e) of this section, any person desiring to vote in this state shall:
      1. Present verification of voter registration to the election official when appearing to vote in person either early or at the polls on election day; or
      2. When voting by absentee ballot, submit with the ballot verification of voter registration unless the voter is:
        1. An active duty member of the uniformed services of the United States who is absent from the county on election day because of his or her service;
        2. A member of the United States Merchant Marine who is absent from the county on election day because of his or her service in the United States Merchant Marine;
        3. The spouse or dependent of a member identified in subdivision (d)(1)(B)(i) or subdivision (d)(1)(B)(ii) of this section who is absent from the county on election day because of the active duty or service of the member; or
        4. A member of the Arkansas National Guard who is on state active duty and absent from the county on election day.
      1. A person who is a resident of a long-term care or residential care facility licensed by the state is not required to present verification of voter registration before voting.
      2. A person not required to present verification of voter registration under subdivision (d)(2)(A) of this section shall provide documentation from the administrator of the facility, attesting that the person is a resident of the facility.
    1. A person registering to vote by mail and who has not previously voted in a federal election in this state shall:
      1. Present to the election official 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 when appearing to vote in person either early or at the polls on election day; or
      2. When voting by mail, 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.
    2. A person under subdivision (e)(1) of this section shall comply with requirements under this subsection in lieu of complying with subsection (d) of this section.
    3. The provision of subdivision (e)(1) of this section does not include:
      1. Persons whose applications are transmitted by state or federal voter registration agencies;
      2. Persons who are covered by the Uniformed and Overseas Citizens Absentee Voting Act, 52 U.S.C. § 20301 et seq.;
      3. Persons covered by the Voting Accessibility for the Elderly and Handicapped Act, 52 U.S.C. § 20101 et seq.;
      4. Persons who are entitled to vote otherwise than in person under any other federal law;
      5. Persons who register to vote by mail and submit as part of the registration any of the identification documents listed in subdivision (e)(1) of this section; or
      6. Persons who register to vote by mail and submit with the registration either a driver's license number or at least the last four (4) digits of the individual's Social Security number and with respect to whom a state or local election official matches the license number or Social Security number with an existing state identification record bearing the same number, name, and date of birth as provided in the registration.
  4. Any person who receives an absentee ballot according to the precinct voter registration list but who elects to vote by early voting or to vote at his or her polling site on election day shall be permitted to cast a provisional ballot.

History. Acts 1969, No. 465, Art. 7, § 7; A.S.A. 1947, § 3-707; Acts 1987, No. 248, § 7; 1993, No. 716, § 1; 1995, No. 930, § 2; 1995, No. 941, § 2; 1999, No. 1462, § 1; 1999, No. 1471, § 1; 2003, No. 994, § 2; 2005, No. 2193, § 1; 2007, No. 560, § 2; 2013, No. 595, §§ 2, 3; 2017, No. 633, § 5; 2019, No. 462, § 6.

Publisher's Notes. Acts 1969, No. 465, Art. 7, § 7, originally required that to be qualified to vote a person was to have been a resident of the state for one year, of the county for six months, and of the precinct for thirty days. The one year and the six months requirements were held unconstitutional in Smith v. Climer, 341 F. Supp. 123 (1972), and the thirty-day requirement was held unconstitutional in Meyers v. Jackson, 390 F. Supp 37 (1975). Acts 1987, No. 248 removed the statutory residency requirements.

Amendments. The 2007 amendment deleted the second sentence in (a).

The 2013 amendment inserted (d) and redesignated former (d) as (e); substituted “(e)(1)” for “(d)(1)” twice in (e)(2); added “Act, 42 U.S.C. § 1973ff et seq.” at the end of (e)(2)(B); and added “42 U.S.C. § 1973ee et seq.” at the end of (e)(2)(C).

The 2017 amendment substituted “Present verification of voter registration” for “Present proof of identity” in (d)(1)(A); substituted “verification of voter registration” for “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” in the introductory language of (d)(1)(B); rewrote (d)(1)(B)(i); substituted “United States Merchant Marine” for “merchant marine” twice in (d)(1)(A)(ii); substituted “present verification of voter registration” for “provide proof of identity” in (d)(2)(A) and (d)(2)(B); substituted “A person” for “Any person” in the introductory language of (e)(1); inserted present (e)(2) and redesignated former (e)(2) as (e)(3); substituted “52 U.S.C. § 20301 et seq.” for “42 U.S.C. § 1973ff et seq.” in (e)(3)(B); substituted “52 U.S.C. § 20101 et seq.” for “42 U.S.C. § 1973ee et seq.” in (e)(3)(C); and made a stylistic change.

The 2019 amendment added (d)(1)(B)(iv).

Research References

ALR.

Constitutionality of voter participation provisions for primary elections. 120 A.L.R.5th 125.

Validity of Statute Requiring Proof and Disclosure of Information as Condition of Registration to Vote. 48 A.L.R.6th 181.

Validity of Statute Limiting Time Period for Voter Registration. 56 A.L.R.6th 523.

Validity of Residency and Precinct-Specific Requirements of State Voter Registration Statutes. 57 A.L.R.6th 419.

Voter Identification Requirements as Denying or Abridging Right to Vote on Account of Race or Color Under § 2 of Voting Rights Act, 52 U.S.C. § 10301. 12 A.L.R. Fed. 3d 4 (2016).

Ark. L. Rev.

Brandon Whit Maxey, Legislative Note: A Proposal for a Voter-Identification Law Limiting Voter Disenfranchisement, 67 Ark. L. Rev. 457 (2014).

U. Ark. Little Rock L. Rev.

Survey of Legislation, 2003 Arkansas General Assembly, Election Law, Help America Vote Act, 26 U. Ark. Little Rock L. Rev. 398.

Case Notes

Constitutionality.

The requirements of one year's residence in state and at least six months' residence in the county which formerly appeared in this section were violative of the U.S. Const., Amend. 14, were unconstitutional and could not be enforced. Smith v. Climer, 341 F. Supp. 123 (E.D. Ark. 1972).

The 30-day precinct residency requirement which formerly appeared in this section was unconstitutionally discriminatory in that it did not promote any compelling state interest, unreasonably restricted the right of suffrage and was overbroad. Meyers v. Jackson, 390 F. Supp. 37 (E.D. Ark. 1975).

Proof-of-identity requirement formerly set forth in subdivision (d)(1)(A) of this section was unconstitutional on its face as it imposed a requirement that fell outside the ambit of Ark. Const. art. 3, § 1. Martin v. Kohls, 2014 Ark. 427, 444 S.W.3d 844 (2014).

Absentee Voting.

Where named voters in the instant case did not vote in person for the first time, but registered by mail to vote by absentee ballot and voted by absentee ballot for the first time, that practice was in clear violation of former subdivision (d)(1) and the trial court did not err in ruling that their ballots were disqualified and that their votes would not count in the subsequent runoff election. Tate-Smith v. Cupples, 355 Ark. 230, 134 S.W.3d 535 (2003) (decision under prior law).

Under the separation of powers doctrine, the State Board of Election Commissioners lacked authority to establish a procedure for absentee voters where the General Assembly had provided a method by which an in-person voter could have cured any failure to provide proof of identity, did not provide a similar method for absentee voters, and although the Board had authority to promulgate rules to assure fair and orderly election procedures, it lacked authority to create election procedures. Ark. State Bd. of Election Comm'rs v. Pulaski County Election Comm'n, 2014 Ark. 236, 437 S.W.3d 80 (2014).

Judicial Candidate Qualifications.

Circuit court did not clearly err in determining that an appointed district court judge was a qualified elector of a specific district, thereby qualifying her as a candidate for a position on the Court of Appeals; Ark. Const. Amend. 80, § 16(D) simply requires that justices and judges be qualified electors within the geographical area from which they are chosen and does not contemplate a distinction between “residence” and “domicile”. The appointed judge had established her physical presence in the district by purchasing a home, registering to vote, and assessing personal property there (even though she still owned another home outside the district). Barrett v. Thurston, 2020 Ark. 36, 593 S.W.3d 1 (2020).

Legislative Additions.

Where the Constitution fixes the qualifications for voters, those qualifications cannot be added to by legislative enactment. Rison v. Farr, 24 Ark. 161 (1865) (decision under prior law).

Oath Requirement.

Legislature could require voter to take an oath that he or she would support the Constitution of the state and the United States where the oath was prospective in its operation but, requirement that voter take oath that he or she had not voluntarily borne arms against United States or state was retroactive and unconstitutional as placing requirements on voters in addition to those prescribed by the Constitution. Rison v. Farr, 24 Ark. 161 (1865) (decision under prior law).

Registration.

Appeal by an inmate in an election-related matter was moot because an election had already been held, and the deadlines for placing the inmate's name on the ballot and for registering to vote had already passed; the issue was not capable of repetition, yet evading review, since the inmate did not indicate that he intended to run for President of the United States again in 2016 or later, there was nothing to suggest that, were he to run again, he would have been subjected to the same action, and there were adequate procedures in place for accelerated consideration of election matters. Moreover, there was no substantial public interest shown. Judd v. Martin, 2013 Ark. 136 (2013).

Residency Requirements.

Durational residency requirements cannot be upheld except to the extent they are realistically related to reasonable registration requirements. Meyers v. Jackson, 390 F. Supp. 37 (E.D. Ark. 1975).

Term Limits.

A county initiative setting terms limits for county officials was unlawful and invalid as it conflicted with the general law of the state. Allred v. McLoud, 343 Ark. 35, 31 S.W.3d 836 (2000).

7-5-202. Public notice of elections.

    1. It shall be the duty of the county board of election commissioners at least twenty (20) days before each preferential primary and general election and at least ten (10) days before the holding of each general primary, general runoff, school, or special election to give public notice in a newspaper of general circulation in the county of:
      1. The date of the election;
      2. The hours of voting on election day;
      3. The places and times for early voting;
      4. Polling sites for holding the elections in the county;
      5. The candidates and offices to be elected at that time;
      6. The time and location of the opening, processing, canvassing, and counting of ballots; and
      7. The location where a list of appointed election officials, deputy county clerks, or additional deputies hired to conduct early voting can be found and the date the list is available.
    2. A person shall not serve as an election official if:
      1. The person is:
        1. Married to or related within the second degree of consanguinity to a candidate running for office in the election;
        2. The spouse of a member of a county board of election commissioners; or
        3. A county party chair or his or her spouse; and
      2. Another person makes an objection to his or her service to the county board of election commissioners within ten (10) calendar days after posting the list of officials.
    3. The public notice shall contain directions for filing an objection to the service of an election official, deputy county clerk, or additional deputy.
    1. At least five (5) days prior to a preferential primary, general primary, general election, general runoff, or special election, a copy of the public notice may be posted at each polling site fixed for holding the election and shall be published in a newspaper of general circulation in the county.
      1. At least fifteen (15) days before the beginning of early voting and the election day, each county board of election commissioners or county clerk shall prepare and post in a public place in the county clerk's office its list of appointed election officials, deputy county clerks, or additional deputies hired to conduct early voting.
      2. The list may appoint election officials, deputy county clerks, or additional deputies hired to conduct early voting in the event of a runoff election.
    1. On the day of any election, the following shall be posted at each polling site and remain posted continuously therein until the polls close:
      1. The public notice required in subsection (a) of this section;
        1. At least two (2) sample ballots, marked with the word “SAMPLE”, of each ballot style that will be used at the polling site.
        2. If the polling site has more than fifteen (15) ballot styles and has posted a sample ballot for each ballot style via an internet website before the beginning of early voting, the polling site may provide the following in lieu of the sample ballots under subdivision (c)(1)(B)(i) of this section:
          1. At least two (2) bound volumes that include each sample ballot, marked with the word “SAMPLE”; or
          2. At least one (1) bound volume that includes each sample ballot, marked with the word “SAMPLE”, and at least one (1) electronic device that allows voters to access a sample ballot for each ballot style;
      2. Two (2) copies of the full text of all measures on the ballot;
      3. At least two (2) copies of instructions on how to vote, including how to cast a provisional ballot and instructions for fail-safe voting;
      4. General information on voting rights under applicable federal and state laws, including information on the right of an individual to cast a provisional ballot and instructions on how to contact the appropriate officials if these rights are alleged to have been violated;
      5. General information on federal and state laws regarding prohibitions on acts of fraud and misrepresentation;
        1. Double-sided signs containing the words “VOTE HERE”.
        2. Each sign shall be at least two feet by two feet (2' x 2') in size and shall contain an arrow pointing to the polling site.
        3. A sign shall be posted near each main driveway entrance to the polling site on each public street bordering the polling site so as to be visible to all traffic approaching the polling site.
        4. The sign shall be as close as possible to the public street without obstructing traffic; and
      6. One (1) printout from each voting machine, terminal, or ballot tabulator showing that the candidate and question counters register zero (0).
    2. If a county is providing sample ballots for a specified polling site in bound volumes or electronic databases under subdivision (c)(1)(B)(ii) of this section, the county shall ensure the bound volumes or electronic databases are organized so that a voter may easily identify the sample ballot corresponding with his or her precinct-part.
  1. The Secretary of State shall provide to each county board of election commissioners and each county clerk the information to be posted at each polling site according to subdivisions (c)(1)(E) and (F) of this section.

History. Acts 1969, No. 465, Art. 6, §§ 4, 5; A.S.A. 1947, §§ 3-604, 3-605; Acts 1997, No. 451, § 7; 1999, No. 1490, § 3; 2001, No. 474, § 1; 2003, No. 994, § 3; 2005, No. 138, § 1; 2005, No. 1677, § 3; 2007, No. 222, § 4; 2007, No. 556, § 1; 2017, No. 798, § 1; 2019, No. 199, § 1; 2019, No. 258, § 1; 2019, No. 398, § 1; 2019, No. 473, § 3.

Amendments. The 2007 amendment by No. 222 deleted “absentee” preceding “ballots” in (a)(5); added (b)(2) and made a related change; deleted “information” preceding “shall be” in the introductory paragraph of (c); in (c)(2), substituted “At least two (2)” for “A” and “ballots, marked with the word 'SAMPLE', of each ballot style that will be used at the polling site” for “version of the ballot or ballots, that will be used for that election”; inserted present (c)(3) and redesignated the remaining subsections accordingly; rewrote (c)(4); added (c)(7) and (c)(8) and made related changes; and substituted “(c)(5) and (6)” for “(c)(4) and (5)” in (d).

The 2007 amendment by No. 556 added (a)(3) and redesignated the remaining subsections accordingly; and deleted “absentee” preceding “ballots” in (a)(6).

The 2017 amendment redesignated the former introductory language of (a) as the present introductory language of (a)(1); redesignated former (a)(1) through (a)(6) as present (a)(1)(A) through (a)(1)(F); added (a)(1)(G); added (a)(2) and (a)(3); redesignated former (b)(2) as present (b)(2)(A); in present (b)(2)(A), substituted “before the beginning of early voting and the election day” for “prior to the election”, inserted “or county clerk”, and added “deputy county clerks, or additional deputies hired to conduct early voting”; added (b)(2)(B); inserted “terminal, or ballot tabulator” in (c)(8); and made stylistic changes.

The 2019 amendment by No. 199 redesignated former (c) as (c)(1); added (c)(1)(B)(ii); added (c)(2); and made stylistic changes.

The 2019 amendment by No. 258 deleted “deputy county clerk, or additional deputy” preceding “if” in the introductory language of (a)(2); added (a)(2)(A)(ii) and (a)(2)(A)(iii); and redesignated former provisions of (a)(2)(A) as (a)(2)(A)(i).

The 2019 amendment by No. 398 substituted “showing that” for “showing whether” in (c)(8) [now (c)(1)(H)].

The 2019 amendment by No. 473 inserted “school” in the introductory language of (a)(1).

Research References

U. Ark. Little Rock L. Rev.

Survey of Legislation, 2003 Arkansas General Assembly, Election Law, Help America Vote Act, 26 U. Ark. Little Rock L. Rev. 398.

Case Notes

Applicability.

Former similar law applied to elections to fill vacancies in certain offices and did not apply to a city ordinance referred to the people under constitutional amendment. Cowling v. Foreman, 238 Ark. 677, 384 S.W.2d 251 (1964) (decision under prior law).

Compliance.

Strict compliance with notice requirement may be enforced prior to an election, but substantial compliance therewith is sufficient where the great body of the electors are apprised of the fact that an election is to be held. Whitaker v. Mitchell, 179 Ark. 993, 18 S.W.2d 1026 (1929) (decision under prior law).

Failure to Give Notice.

An election was not invalid for failure to comply with former section where the county court's order calling the election was twice published in a county newspaper, and it was apparent from the number of votes cast that the great body of electors had notice of the election. Whitaker v. Mitchell, 179 Ark. 993, 18 S.W.2d 1026 (1929) (decision under prior law).

The people may not be deprived of their right of suffrage due to the failure of officials to perform their ministerial duties to publish notice of the time and place of the election and the question to be submitted. Thompson v. Arkansas, 114 F.2d 351 (8th Cir. 1940) (decision under prior law).

Where there was no action taken to enforce strict compliance with former similar section before an election, which was thoroughly publicized for eight days prior to the holding thereof, the court was justified in refusing to nullify the election after it was held for failure to give 10 days' notice. Cowling v. Foreman, 238 Ark. 677, 384 S.W.2d 251 (1964) (decision under prior law).

Inadequate Advertisement.

Where election on question was not properly advertised and less than one-eighth of voters voted on it, evidence supported finding that there was no valid election on the question. Starrett v. Andrews, 195 Ark. 1078, 115 S.W.2d 549 (1938) (decision under prior law).

7-5-203. Certification of candidate lists.

    1. Not less than seventy-five (75) days before each general election day, the Secretary of State shall certify to all county boards of election commissioners full lists of all candidates to be voted for in their respective counties as the nominations have been certified or otherwise properly submitted to him or her.
    2. A name of a person shall not be certified and shall not be placed on the ballot if prior to the certification deadline a candidate on the list:
      1. Notifies the Secretary of State in writing, signed by the candidate and acknowledged before an officer authorized to take acknowledgements, of his or her desire to withdraw as a candidate for the office or position; or
      2. Dies.
    1. Not less than seventy-five (75) days before each general election day, the clerk of each county shall certify to the county board of election commissioners of his or her county a full list of all candidates to be voted for in the county as the nominations have been certified or otherwise properly submitted to him or her.
    2. A name of a person shall not be certified and shall not be placed on the ballot if prior to the certification deadline a candidate on the list:
      1. Notifies the county clerk in writing, signed by the candidate and acknowledged before an officer authorized to take acknowledgements, of his or her desire to withdraw as a candidate for the office or position; or
      2. Dies.
  1. However, in special elections held to fill vacancies or to elect officers in case of a tie vote, the certification shall issue at the time specified in the writ of election issued by the appropriately constituted authority.

History. Acts 1969, No. 465, Art. 6, § 6; 1985, No. 1055, § 2; A.S.A. 1947, § 3-606; Acts 1997, No. 451, § 8; 1999, No. 1490, § 4; 2005, No. 67, § 6; 2007, No. 1049, § 18; 2009, No. 1480, § 17; 2011, No. 1185, § 3.

Amendments. The 2007 amendment substituted “seventy-five (75)” for “fifty (50)” in (a) and (b).

The 2009 amendment rewrote (a) and (b).

The 2011 amendment substituted “seventy-five (75)” for “seventy (70)” in (a)(1) and (b)(1); inserted “properly” in (a)(1) and (b)(1); and inserted “deadline” in (a)(2) and (b)(2).

Case Notes

Appeal Moot.

Appeal from a grant of a writ of mandamus was dismissed because the appeal was moot, as an appellate decision would have no practical legal effect as to an impending election, since no candidates were certified for the offices in question. Jefferson County Election Comm'n v. Hollingsworth, 2014 Ark. 431, 445 S.W.3d 504 (2014).

Cited: Christian Populist Party v. Secretary of State, 650 F. Supp. 1205 (E.D. Ark. 1986).

7-5-204. Certification of measures and questions submitted to voters.

  1. Whenever a proposed amendment to the Arkansas Constitution or other measure or question is to be submitted to a vote of the people, the Secretary of State shall not certify the amendment, measure, or question to the county board of election commissioners of each county in the state less than seventy-five (75) days before each general election day.
  2. The county board of election commissioners shall include the amendment, measure, or question in the posting that it is required to make under § 7-5-206.
    1. If the Secretary of State has not determined the sufficiency of a petition for an amendment or a measure by the seventy-fifth day before the general election or if an amendment or a measure has been challenged for any reason in a court of competent jurisdiction, the Secretary of State shall nonetheless transmit the amendment or measure and the ballot title of each amendment and measure to the county election commissions to make any required posting and to place the amendment or measure on the ballot.
    2. If the petition for the amendment or measure is subsequently declared insufficient by the Secretary of State or a court of competent jurisdiction or if held to be invalid for any other reason, no votes regarding the amendment or measure shall be counted or certified.

History. Acts 1969, No. 465, Art. 6, § 7; A.S.A. 1947, § 3-607; Acts 1997, No. 451, § 9; 1999, No. 1490, § 5; 2007, No. 222, § 5; 2007, No. 1049, § 19; 2009, No. 959, § 4; 2011, No. 1185, § 4.

Amendments. The 2007 amendment by No. 222 inserted “measures and” in the section heading; inserted “measure or,” substituted “sixty (60)” for “fifty (50),” ”measure, or” for “in,” “measure, or question” for “in question,” and deleted the last sentence.

The 2007 amendment by No. 1049 subdivided the text into (a) and (b); in present (a), inserted “measure or” in two places, and substituted “seventy (70)” for “fifty (50)”; deleted the former last sentence in present (b); added (c); and made related changes.

The 2009 amendment inserted “nonetheless” in (c)(1), and made a minor punctuation change.

The 2011 amendment substituted “seventy-five (75)” for “seventy (70)” in (a); and substituted “seventy-fifth” for “seventieth” in (c)(1).

Case Notes

Purpose.

The purpose of former similar law was to advise the election commissioners of the questions to the end that the questions might be placed on the ballot. Fulkerson v. Refunding Bd., 201 Ark. 957, 147 S.W.2d 980 (1941) (decision under prior law).

7-5-205. Write-in candidates' votes — When counted.

No votes for write-in candidates shall be counted or tabulated unless:

  1. The candidate notifies in writing the county board of election commissioners of each county in which the candidate seeks election at least ninety (90) days prior to the election and files the notice with either:
    1. The Secretary of State, if a candidate for the United States Senate, the United States House of Representatives, or any state or district office; or
    2. The county clerk, if a candidate for a county or township office;
  2. The candidate files with the county clerk or the Secretary of State, as required, a political practices pledge and an affidavit of eligibility for the office at the same time the candidate files his or her notice of write-in candidacy;
  3. The notice of write-in candidacy, the political practices pledge, and the affidavit of eligibility are filed during the party filing period; and
  4. The name written on the ballot is the same name listed on the write-in candidate's political practices pledge, except that any abbreviation, misspelling, or other minor variation in the form of the name of the candidate shall be disregarded if the intention of the voter may be ascertained.

History. Acts 1969, No. 465, Art. 6, § 14; 1985, No. 1055, § 1; A.S.A. 1947, § 3-614; Acts 1987, No. 247, § 1; 1987, No. 933, § 1; 1989, No. 912, § 1; 1997, No. 451, § 10; 1999, No. 640, § 1; 2001, No. 955, § 1; 2001, No. 1789, § 4; 2003, No. 542, § 2; 2003, No. 1165, § 4; 2007, No. 222, § 6; 2009, No. 1480, § 18; 2011, No. 1185, § 5; 2015, No. 26, § 1; 2019, No. 597, § 6.

Amendments. The 2007 amendment inserted “of each county in which the candidate seeks election” in (a)(1).

The 2009 amendment rewrote the section.

The 2011 amendment substituted “no later than the last day of the party filing period” for “no earlier than noon on the last day of the party filing period and not later than ninety (90) days before the election day” in (3).

The 2015 amendment inserted “at least ninety (90) days prior to the election” in the introductory language of (1).

The 2019 amendment substituted “filed during the party filing period” for “filed no later than the last day of the party filing period” in (3).

Research References

U. Ark. Little Rock L. Rev.

Survey of Legislation, 2001 Arkansas General Assembly, Election Law, 24 U. Ark. Little Rock L. Rev. 465.

Case Notes

Cited: Lendall v. Bryant, 387 F. Supp. 397 (E.D. Ark. 1975).

7-5-206. Publication requirements.

The county board of election commissioners shall make publication of all nominations, of all proposed amendments to the Arkansas Constitution, and of all other measures and questions required by law to be submitted to the electors at any election by posting a list thereof at the door of the courthouse at least ten (10) days before the day of the election.

History. Acts 1969, No. 465, Art. 6, § 8; A.S.A. 1947, § 3-608; Acts 1995, No. 497, § 2; 1995, No. 1085, § 2; 1997, No. 451, § 11; 2005, No. 67, § 7; 2007, No. 222, § 7; 2007, No. 1020, § 2; 2009, No. 959, § 5.

Amendments. The 2007 amendment by No. 222 substituted “measures and questions” for “questions.”

The 2007 amendment by No. 1020 deleted former (b).

The 2009 amendment deleted “filed with it, of all nominations certified to it by the Secretary of State” following “all nominations,” deleted “certified to it by the Secretary of State or” following “questions,” and made a related change.

7-5-207. Ballots — Names included — Draw for ballot position.

    1. Except as provided in subdivision (a)(2) of this section, all election ballots provided by the county board of election commissioners of any county in this state for any election shall contain in the proper place the name of every candidate whose nomination for any office to be filled at that election has been certified to the county board of election commissioners and shall not contain the name of any candidate or person who has not been certified.
      1. Except as provided in subdivision (a)(2)(B) of this section, unopposed candidates for all offices, including school board positions, shall be declared and certified elected without the necessity of including those names on the general election ballot.
        1. In an election in which one (1) or more candidates are unopposed, the phrase “unopposed candidates” shall appear on the ballot, adjacent to a place in which the voter may cast a vote for all unopposed candidates by placing an appropriate mark.
        2. Votes received by an unopposed candidate in any election in this state may be counted or tabulated by the election officials for administrative purposes, but shall not be certified unless otherwise provided by law.
        3. Votes received by an unopposed candidate for the office of Governor, Mayor, Circuit Clerk, City Clerk, or the office of a nonjudicial state elected official shall be counted or tabulated by the election officials and certified according to law.
        4. The names of all unopposed candidates for the office of Mayor, Governor, Circuit Clerk, City Clerk, and the office of a nonjudicial state elected official shall be separately placed on the general election ballot, and the votes for Mayor, Governor, Circuit Clerk, City Clerk, and a nonjudicial state elected official shall be tabulated as in all contested races.
        5. All unopposed candidates, other than for the offices of Mayor, Governor, Circuit Clerk, City Clerk, and the office of a nonjudicial state elected official, shall be declared and certified as elected in the same manner as if the candidate had been voted upon at the election.
  1. No person's name shall be placed upon the ballot as a candidate for any public office in this state at any election unless the person is qualified and eligible at the time of filing, or as otherwise may be provided by law, as a candidate for the office to hold the public office for which he or she is a candidate, except if a person is not qualified to hold the office at the time of filing because of age alone, the name of the person shall be placed on the ballot as a candidate for the office if the person will qualify to hold the office at the time prescribed by law for taking office.
    1. The order in which the names of the candidates shall appear on the ballot shall be determined by lot at a public meeting of the county board of election commissioners not less than seventy-two (72) days before the general election.
    2. Notice of the public meeting shall be given by publication in a newspaper of general circulation in the county at least three (3) days before the drawing.
    3. For runoff elections, the ballot order for eligible candidates shall be the same as for the previous election leading to the runoff.
    1. Adjacent to the name of each candidate in the general election shall be:
      1. His or her party designation; or
      2. The term “INDEPENDENT” if he or she represents no officially recognized party.
    2. Subdivision (d)(1) of this section does not apply to a:
      1. Nonpartisan election; or
      2. Nonpartisan municipal election.

History. Acts 1969, No. 465, Art. 6, § 13; 1971, No. 224, § 1; 1971, No. 261, §§ 20, 22; 1971, No. 355, §§ 1-3; 1971, No. 725, § 1; 1979, No. 389, § 1; A.S.A. 1947, §§ 3-613, 3-615; Acts 1997, No. 451, § 12; 2007, No. 1049, § 15; 2009, No. 959, § 6; 2009, No. 1480, § 19; 2011, No. 1185, § 6; 2013, No. 1110, § 4; 2017, No. 730, § 1; 2019, No. 254, § 1; 2019, No. 597, § 7; 2019, No. 1013, § 1.

Amendments. The 2007 amendment substituted “no later than seventy (70) days before the election” for “prior to the printing of the ballots” in (a), and made related changes.

The 2009 amendment by No. 959 inserted “or as otherwise may be provided by law” in (b), and made related and minor stylistic changes.

The 2009 amendment by No. 1480 rewrote (a); substituted “placed” for “printed” twice in (b); and added (c) and (d).

The 2011 amendment substituted “seventy-two (72)” for “sixty-five (65)” in (c)(1).

The 2013 amendment substituted “Adjacent to” for “Beside or adjacent to” in (d)(1); substituted “does” for “shall” in (d)(2); and deleted “judicial” following “Nonpartisan” in (d)(2)(A).

The 2017 amendment substituted “subdivision (a)(2)” for “subdivisions (a)(2) and (3)” in (a)(1); substituted “all offices” for “municipal offices” in (a)(2)(A); inserted “governor, and circuit clerk” twice in (a)(2)(B); and deleted (a)(3).

The 2019 amendment by No. 254 inserted “city clerk” twice in (a)(2)(B).

The 2019 amendment by No. 597 inserted “including school board positions” in (a)(2)(A).

The 2019 amendment by No. 1013 rewrote (a)(2)(B).

Research References

ALR.

Validity, Construction, and Application of State Statutory Requirements Concerning Placement of Independent Candidate for President of the United States on Ballot. 33 A.L.R.6th 513.

Validity, Construction and Application of State Statutory Limitations Periods Governing Election Contests. 60 A.L.R.6th 481.

Construction and Application of Statutes and Ordinances Concerning Establishment of Residency, as Condition for Running for Municipal Office. 74 A.L.R.6th 209.

U. Ark. Little Rock L. Rev.

Annual Survey of Caselaw, Election Law, 26 U. Ark. Little Rock L. Rev. 904.

Case Notes

Election Contest.

Issue presented in the claimant's petition asserting that the candidate was ineligible was moot, because the claimant failed to pursue his petition expeditiously in order to obtain the remedy of removing the candidate's name from the ballot before the election and the claimant had offered no compelling reason for his delay in filing the petition, and waiting until the day before the election to file the petition rendered it impossible for the trial court to fulfill the requirement under Ark. R. Civ. P. 78(d) that the trial court hold a hearing no sooner than two and no longer than seven days thereafter. Oliver v. Phillips, 375 Ark. 287, 290 S.W.3d 11 (2008).

Candidate's appeal from an order granting a declaratory judgment and issuing a writ of mandamus in favor of a circuit judge on the basis that the candidate was not qualified or eligible for the office of circuit judge was moot because the supreme court could provide no relief; the circuit judge initiated a proper pre-election challenge to the candidate's qualification to stand for the office. Bailey v. Martin, 2014 Ark. 213, 433 S.W.3d 904 (2014).

Enforcement.

Where a Democratic candidate had challenged a Republican candidate's residency requirements, the trial court erred in dismissing the Democratic candidate's suit as the complaint was specifically authorized by subsection (b) of this section. Tumey v. Daniels, 359 Ark. 256, 196 S.W.3d 479 (2004).

Jurisdiction.

Appellee candidate's petition for writ of mandamus and declaratory judgment, which sought to have appellant candidate declared ineligible, was dismissed because appellee filed the petition postelection rather than preelection, appellee cited to subsection (b) of this section, and a circuit court lacked jurisdiction to consider a preelection challenge filed postelection. Zolliecoffer v. Post, 371 Ark. 263, 265 S.W.3d 114 (2007).

Trial court had jurisdiction over the election contest and jurisdiction was not subsequently erased by the election, because the action was filed pre-election. Oliver v. Phillips, 375 Ark. 287, 290 S.W.3d 11 (2008).

Circuit court clearly had jurisdiction to hear a candidate's petition where she was challenging the eligibility of a competing Court of Appeals candidate. Barrett v. Thurston, 2020 Ark. 36, 593 S.W.3d 1 (2020).

Mandamus.

An action for mandamus and declaratory relief is the proper method of enforcing the right set out in this section. State ex rel. Robinson v. Craighead County Bd. of Election Comm'rs, 300 Ark. 405, 779 S.W.2d 169 (1989).

Appeal from a grant of a writ of mandamus was dismissed because the appeal was moot, as an appellate decision would have no practical legal effect as to an impending election, since no candidates were certified for the offices in question. Jefferson County Election Comm'n v. Hollingsworth, 2014 Ark. 431, 445 S.W.3d 504 (2014).

Preelection Challenge.

Candidate's petition was compliant with Arkansas law where she brought a preelection attack on a competing Court of Appeals candidate's eligibility. The verification requirement in § 7-5-801 was inapplicable because that section is a postelection procedure, while preelection attacks are brought under subsection (b) of this section, which does not have a verification requirement. Barrett v. Thurston, 2020 Ark. 36, 593 S.W.3d 1 (2020).

Qualification of Candidates.

Arkansas law is well settled that the party chairman and secretary do not have the judicial authority to determine that a candidate is ineligible to hold public office, nor can they refuse to place the candidate's name upon the ballot. Ivy v. Republican Party, 318 Ark. 50, 883 S.W.2d 805 (1994).

The General Assembly has provided no procedure for state and county party committees or conventions to make a judicial determination concerning whether a party nominee should be certified; to do so means the party officials would investigate, make factual determinations and determine whether those factual findings constitute “other good and legal cause” under former § 7-1-101(4), an undertaking which requires a judicial tribunal, not a political one. Ivy v. Republican Party, 318 Ark. 50, 883 S.W.2d 805 (1994).

Statutory right to challenge the eligibility of a candidate before the election is provided by this section; however, this statutory procedure only allows pre-election challenges to a candidate's eligibility. Pederson v. Stracener, 354 Ark. 716, 128 S.W.3d 818 (2003).

Candidate's post-election challenge to a state senate runoff election was properly brought within the circuit or district in which alleged voter fraud occurred; further, the Secretary of State and the state democratic committee were not indispensable parties for complete relief under Ark. R. Civ. P. 19 because the office of state senator was not a “state office” as that term had been differentiated in §§ 7-7-401 and 7-5-804, and Ark. Const. art. 5, §§ 3 and 4. Willis v. Crumbly, 368 Ark. 5, 242 S.W.3d 600 (2006).

Because a candidate did not comply with Ark. R. Civ. P. 78(d) and Ark. Sup. Ct. & Ct. App. R. 6-1(b) in contesting a declaration that the candidate was ineligible to hold office under subsection (b) of this section, the lapse of time and the fact that the election had already been held rendered moot the issues presented on appeal. Fite v. Grulkey, 2011 Ark. 188 (2011).

Issue raised by appellant regarding appellee's eligibility as a candidate in a mayoral election under subsection (b) of this section was moot because the record demonstrated that the election was held. Appellant failed to address the mootness doctrine and whether the exceptions to the mootness doctrine applied to this case. Gray v. Thomas-Barnes, 2015 Ark. 426, 474 S.W.3d 876 (2015).

7-5-208. Ballots — Form.

  1. All election ballots provided by the county board of election commissioners of any county in this state for any election shall be alike and shall be in plain type.
    1. The heading of each ballot shall be: “OFFICIAL BALLOT (description) ELECTION (date) , (year)
    2. If the ballot contains an initiated or referred amendment, act, or measure, the heading shall also contain these words: “Vote on amendments, acts, and measures by placing an appropriate mark below the amendment (or act or measure) either FOR or AGAINST.”
    1. Every ballot shall contain the name of each candidate who has been nominated or has qualified in accordance with law for each office. The names of the candidates shall be listed in a perpendicular column under the name of each office to be filled.
    2. In all elections in which votes for a write-in candidate may be counted, at the bottom of each list of names for each position or office appearing on the ballot, there shall be a blank line for a possible write-in vote for that position or office. However, the blank line shall not appear on the ballot with respect to those offices and candidates for positions in which no person has qualified as a write-in candidate by filing his or her notice of intention to be a write-in candidate within the time prescribed in § 7-5-205.
  2. Adjacent to the name of each candidate and on the same line there shall be a place for marking a vote for the candidate. Below each act, amendment, or measure to be voted on, there shall be the words “FOR” and “AGAINST” situated one above the other with a place for marking a vote for the act, amendment, or measure adjacent to each word and on the same line.
  3. Opposite the designation of each office, there shall appear these words: “VOTE FOR .” The number of persons required to fill the vacancy in office shall be placed in the blank space.

Vote by placing an appropriate mark opposite the person for whom you wish to vote.”

History. Acts 1969, No. 465, Art. 6, § 13; 1971, No. 224, § 1; 1971, No. 261, §§ 11, 20, 22; 1971, No. 355, §§ 1-3; 1979, No. 389, § 1; A.S.A. 1947, § 3-613; Acts 1987, No. 280, §§ 1, 2; 1993, No. 1011, § 1; 1995, No. 461, § 1; 1997, No. 451, § 13; 1999, No. 640, § 2; 2005, No. 1677, § 4; 2005, No. 2233, § 3; 2007, No. 705, § 1; 2007, No. 1049, § 16; 2009, No. 1480, § 20; 2011, No. 1020, § 1.

Amendments. The 2007 amendment by No. 705 deleted former (d) and redesignated the remaining subsections accordingly; substituted “below” for “above” in present (d)(2); rewrote the introductory language in present (e); in present (f), rewrote (2)(A) and (3), and in (5), inserted “except for the nonpartisan judicial general election”; rewrote present (g) and (h); and made related and stylistic changes.

The 2007 amendment by No. 1049, in present (f)(4), substituted “sixty-five (65)” for “thirty-five (35),” and made a stylistic change.

The 2009 amendment deleted “Paper” at the beginning of the section heading; and rewrote the section.

The 2011 amendment substituted “below” for “above” (b)(2).

Research References

ALR.

Validity, Construction, and Application of State Statutory Requirements Concerning Placement of Independent Candidate for President of the United States on Ballot. 33 A.L.R.6th 513.

7-5-209. Ballots — Correction of errors.

Whenever it shall appear by affidavit that an error or omission has occurred in the publication of the names or description of candidates nominated for office or in the preparation of ballots, the county board of election commissioners shall in a public meeting announce the error or omission and immediately correct the error or omission or show cause why the correction should not be done.

History. Acts 1969, No. 465, Art. 6, § 12; A.S.A. 1947, § 3-612; Acts 1997, No. 451, § 14; 2009, No. 1480, § 21.

Amendments. The 2009 amendment substituted “preparation” for “printing.”

Case Notes

Failure to Seek Correction.

Candidate who had paid his filing fee to the wrong treasurer and charged that he was denied a place on the ballot through racial discrimination should have sought relief under former law governing correction of errors in ballots before seeking injunctive relief in federal court. Bynum v. Burns, 379 F.2d 229 (8th Cir. 1967) (decision under prior law).

Judgment invalidating election because of defects in ballots would not be reversed because of the failure of the contestors to comply with former similar law where the defendant election commissioners did not raise the question of the absence of an affidavit either by pleading or objection in the trial court. Gregory v. Gordon, 243 Ark. 635, 420 S.W.2d 825 (1967) (decision under prior law).

Nature of Remedy.

Preelection remedy to correct error on ballot is mandatory but may only be directive after the election and action to void election was properly denied. McFarlin v. Kelly, 246 Ark. 1237, 442 S.W.2d 183 (1969) (decision under prior law).

Cited: Garner v. Holland, 264 Ark. 536, 572 S.W.2d 589 (1978).

7-5-210. [Repealed.]

Publisher's Notes. This section, concerning ballots, was repealed by Acts 2009, No. 1480, § 22. The section was derived from Acts 1969, No. 465, Art. 6, § 10; A.S.A. 1947, § 3-610; Acts 1995, No. 601, § 1; 2007, No. 1020, § 3.

7-5-211. Delivery of election supplies.

  1. At least one (1) day before any election:
      1. The county board of election commissioners shall designate a suitable person or persons and deliver to the person or persons the ballots.
      2. The person shall not be an elected official, an elected official's deputy, or a candidate for office; and
    1. For each set of poll workers in each polling place, the county board of election commissioners shall deliver to the designated person or persons the following additional election supplies if applicable:
      1. A good and sufficient ballot box with numbered seals;
      2. Sufficient list-of-voters forms adequate to record the names of all registered voters who appear to vote in the polling place;
      3. A precinct voter registration list;
      4. Sufficient tally sheets;
      5. Envelopes to seal the ballots and certificates;
      6. Separate sheets containing blank forms of certificates prepared to enable the poll workers to properly certify the paper ballot count at the polling site, upon which certificates shall be endorsed a blank form of oath to be taken by the poll workers before entering upon the discharge of their duties;
      7. Voter registration application forms for voters using fail-safe voting and other record-keeping supplies necessary to document fail-safe voting procedures; and
      8. In those counties in which an optical scanner is used to count paper ballots, the marking instrument recommended by the manufacturer of the optical scanner for proper marking on the ballots shall be provided.
  2. The county board of election commissioners shall be responsible for the security of the delivered election materials.
  3. The county board of election commissioners shall be responsible for providing ballots and election materials for absentee and early voting to the county clerk before the beginning day for absentee and early voting.

History. Acts 1969, No. 465, Art. 6, § 11; 1973, No. 157, § 8; A.S.A. 1947, § 3-611; Acts 1995, No. 601, § 2; 1995, No. 946, § 3; 1995, No. 963, § 3; 1997, No. 451, § 15; 1999, No. 920, § 1; 2001, No. 1178, § 1; 2007, No. 1020, § 4; 2009, No. 959, § 7; 2009, No. 1480, § 23.

Amendments. The 2007 amendment substituted “an elected” for “the elected” in (a)(1)(B); substituted “polling place” for “precinct” twice in (a)(2); and substituted “the paper ballot count at the polling site” for “the result of the election” in (a)(2)(F).

The 2009 amendment by No. 959 substituted “poll workers” for “election officials” in three places in (a)(2); and made a minor stylistic change in (c).

The 2009 amendment by No. 1480 deleted “as set forth in § 7-5-210” at the end of (a)(1)(A).

Case Notes

Ballot Boxes.

Sealed cardboard boxes which had no lock and key or numbered seal were not in substantial compliance with former law, but where they were identified by county treasurer who guarded them in vault at the courthouse and in locked closet at his home, integrity of the ballot was not impeached and no rights of candidates were prejudiced. Horne v. Fish, 198 Ark. 79, 127 S.W.2d 623 (1939) (decision under prior law).

Care of Ballots.

County treasurer in charge of ballots under former law was not required to place them where it would be impossible for someone, determined to do so, to break in and get to the ballots. Horne v. Fish, 198 Ark. 79, 127 S.W.2d 623 (1939) (decision under prior law).

Legislative Intent.

The language of subsection (b) does not demonstrate an intent on the part of the General Assembly to criminalize the delivery of election supplies by a sheriff in a contested reelection. State ex rel. Sargent v. Lewis, 335 Ark. 188, 979 S.W.2d 894 (1998).

Cited: Sargent v. Foster, 332 Ark. 608, 966 S.W.2d 263 (1998).

7-5-212. [Repealed.]

Publisher's Notes. This section, concerning permanent ink when ballots counted by hand, was repealed by Acts 2009, No. 1480, § 24. The section was derived from Acts 1999, No. 920, § 2.

Subchapter 3 — Conduct of Elections

Effective Dates. Acts 1969, No. 465, Art. 13, § 10: approved Apr. 17, 1969. Emergency clause provided: “It is hereby found and declared by the General Assembly of the State of Arkansas that the present election laws are ancient and outdated in part and have caused and are causing much confusion and controversy, that there are particular problem areas in the present law which need immediate legislation in order to resolve same, that elections are and will continue to be held and conducted in this atmosphere of confusion and controversy until these problem areas are resolved and this Act being necessary for the immediate preservation of the public peace, health and safety, an emergency is hereby declared to exist and this Act shall be in force and effect from and after its passage.”

Acts 1973, No. 157, § 10: Feb. 20, 1973. Emergency clause provided: “It is hereby found and determined by the General Assembly that under the present laws of the state, that separate or common polling places cannot be established by county committees in counties using voting machines without attendant substantial costs; that it is essential to the proper and economical administration of the election laws of this state that legislation be enacted immediately to provide that respective county committees or county election commissions in counties using voting machines may designate separate and/or common polling places where all elections can be held and to provide for a minimum number of election officials to serve at such polling places so that substantial economies can be realized in the conduct of such elections. Therefore, an emergency is hereby declared to exist and this act, being necessary for the immediate preservation of the public peace, health and safety, shall be in full force and effect from and after its passage and approval.”

Acts 1981, No. 104, § 3: Feb. 19, 1981. Emergency clause provided: “It is hereby found and determined by the General Assembly that present law requires polls to be opened at eight (8) o'clock a.m. and that in many instances it would be of great benefit to the voters for the polls to open prior to eight (8) o'clock and that this act is immediately necessary to grant the voting officials the flexibility to open the polls prior to eight (8) o'clock if they deem necessary. Therefore an emergency is hereby declared to exist and this act being immediately necessary for the preservation of the public peace, health and safety shall be in full force and effect from and after its passage and approval.”

Identical Acts 1995, Nos. 946 and 963, § 14: Jan. 1, 1996.

Acts 2005, No. 2233, § 48: Jan. 1, 2006.

Acts 2009, No. 1480, § 117: Apr. 10, 2009. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that this act makes various revisions to Arkansas election laws that are designed to improve the administration of elections and special elections and that these revisions should be implemented as soon as possible so that the citizens of this state may benefit from improved election procedures. Therefore, an emergency is declared to exist and this act being immediately necessary for the preservation of the public peace, health, and safety shall become effective on: (1) The date of its approval by the Governor; (2) If the bill is neither approved nor vetoed by the Governor, the expiration of the period of time during which the Governor may veto the bill; or (3) If the bill is vetoed by the Governor and the veto is overridden, the date the last house overrides the veto.”

Acts 2011, No. 1189, § 4: Jan. 1, 2012.

Acts 2013, No. 595, § 7, provided: “This act shall become effective upon the later of the following:

“(1) January 1, 2014; or

“(2) The appropriation and availability of funding to the Secretary of State for the issuance of voter identification cards under Section 5 of this act.”The contingency in Acts 2013, No. 595, § 7 was met by Acts 2013, No. 1376.

Research References

Am. Jur. 26 Am. Jur. 2d, Elections, § 302 et seq.

C.J.S. 29 C.J.S., Elections, § 319 et seq.

7-5-301. Acquisition, use, and cost of voting systems.

  1. The casting and counting of votes in all elections shall be by:
    1. Voting machines selected by the Secretary of State;
    2. Electronic vote tabulating devices in combination with voting machines accessible to voters with disabilities to be selected by the Secretary of State; or
    3. Paper ballots counted by hand in combination with voting machines accessible to voters with disabilities selected by the Secretary of State.
    1. All direct recording electronic voting machines shall include a voter-verified paper audit trail.
    2. All direct recording electronic voting machines shall include a voter-verified paper audit trail.
    1. The quorum court of each county shall choose by resolution a voting system containing voting machines or electronic vote tabulating devices, or both, or voting machines in combination with paper ballots counted by hand for use in all elections in the county.
    2. Any voting machine or electronic vote tabulating devices chosen by the quorum court shall be those selected by the Secretary of State.
    3. Any voting system used in elections for federal office shall comply with the requirements of the federal Help America Vote Act of 2002.
    1. Voting machines and electronic vote tabulating devices shall be purchased pursuant to a competitive bidding process with consideration given to:
      1. Price;
      2. Quality; and
      3. Adaptability to Arkansas ballot requirements.
      1. The Secretary of State shall establish guidelines and procedures for a grant program to distribute funds from the County Voting System Grant Fund, § 19-5-1247.
      2. A grant provided to a county from the County Voting System Grant Fund, § 19-5-1247, shall be paid into the county treasury to the credit of the voting system grant fund.
      3. Moneys deposited into the voting system grant fund shall be appropriated by the quorum court according to the guidelines established by the Secretary of State under subdivision (d)(2)(A) of this section.
  2. The Secretary of State or the county shall not purchase or procure any voting machine or electronic vote tabulating device unless the party selling the machine or device shall:
    1. Guarantee the machines in writing for a period of one (1) year; and
    2. Provide, if deemed necessary by the county, personnel for the supervision and training of county personnel for at least two (2) elections, one (1) primary and one (1) general at no additional cost to the county or the Secretary of State.
  3. Each county shall provide polling places that are adequate for the operation of the voting system, including, but not limited to, access, if necessary, to a sufficient number of electrical outlets and telephone lines.
  4. Each county shall provide or contract for adequate technical support for the installation, set up, and operation of the voting system for each election.
  5. The Secretary of State shall be responsible for the development, implementation, and provision of a continuing program to educate voters and election officials in the proper use of the voting system.
  6. Electronic vote tabulating devices and voting machines, authorized as provided under this subchapter, may be acquired and used in any election upon the adoption of an ordinance by the quorum court of the county.
  7. The costs of using electronic vote tabulating devices and voting machines at all general and special elections, including, but not limited to, costs of supplies, technical assistance, and transportation of the systems to and from the polling places, shall be paid in accordance with § 7-5-104.
  8. The county board of election commissioners shall have complete control and supervision of voting machines and electronic vote tabulating devices at all elections.
  9. The county clerk shall have supervision of voting machines and electronic vote tabulating devices used for early voting in the clerk's designated early voting location.
    1. The county board of election commissioners shall have the care and custody of all voting machines and all electronic vote tabulating devices while not in use.
    2. The county board of election commissioners shall be responsible for the proper preparation, use, maintenance, and care of the voting machines and the electronic vote tabulating devices during the period of time required for that election.

History. Acts 1969, No. 465, Art. 7, § 2; 1971, No. 261, § 10; A.S.A. 1947, § 3-702; Acts 1995, No. 946, § 4; 1995, No. 963, § 4; 1997, No. 451, § 16; 2005, No. 2233, § 4; 2007, No. 1020, § 5; 2009, No. 959, §§ 8, 9; 2011, No. 1189, § 2; 2013, No. 277, § 1; 2015, No. 1218, § 4; 2019, No. 399, § 1.

Amendments. The 2007 amendment deleted “board of election commissioners” following “county” in (e).

The 2009 amendment deleted “in use on or after January 1, 2006” following the first instance of “voting machines” in (b)(1); deleted (h)(2); and made related and minor stylistic changes.

The 2011 amendment rewrote (d)(2)(A); inserted (d)(2)(B) and (d)(2)(C); and deleted (d)(3).

The 2013 amendment rewrote (d)(2)(A); deleted ”the fund to be known as” following “the credit of” in (d)(2)(B); and rewrote (d)(2)(C).

The 2015 amendment added “at no additional cost to the county or the Secretary of State” at the end of (e)(2).

The 2019 amendment deleted “except that those direct recording electronic voting machines in use during the 2004 general election may include a voter-verified paper audit trail at the discretion of the county board of election commissioners” at the end of (b)(1); and deleted “purchased on or after January 1, 2006” following “voting machines” in (b)(2).

U.S. Code. The Help America Vote Act of 2002, referred to in subsection (c) of this section, is codified as 52 U.S.C. § 20901 et seq.

7-5-302. [Repealed.]

Publisher's Notes. This section, concerning inspection of supplies and posting of documents, was repealed by Acts 2007, No. 222, § 8. The section was derived from Acts 1969, No. 465, Art. 7, § 6; A.S.A. 1947, § 3-706; Acts 1995, No. 946, § 5; 1995, No. 963, § 5; 2005, No. 2233, § 5.

7-5-303. [Repealed.]

Publisher's Notes. This section, concerning inspection of ballots by judges, was repealed by Acts 1997, No. 451, § 17. The section was derived from Acts 1969, No. 465, Art. 7, § 5; A.S.A. 1947, § 3-705.

7-5-304. Opening and closing polls — Time.

  1. The polls shall be opened at 7:30 a.m., and they shall remain open continuously until 7:30 p.m.
  2. In all counties, when the polls close, all persons who have presented themselves for voting and who are then in line at the polling site shall be permitted to cast their votes.
    1. A person who votes in an election as a result of a federal or state court order or any other order extending the time established for closing the polls may vote in that election only by casting a provisional ballot.
    2. The ballot shall be separated and held apart from other provisional ballots cast by those not affected by the order.

History. Acts 1969, No. 465, Art. 7, § 1; 1981, No. 104, § 1; A.S.A. 1947, § 3-701; Acts 1993, No. 515, § 1; 2007, No. 1020, § 6; 2009, No. 959, § 10.

Amendments. The 2007 amendment added (b).

The 2009 amendment added (c), and made a minor punctuation change.

Case Notes

Early Closing.

Where there was no showing that early closing resulted in denial of privilege to vote, the failure to strictly comply with former similar section had no effect on the validity of the election. Rogers v. Mason, 246 Ark. 1, 436 S.W.2d 827 (1969) (decision under prior law).

Extension of Voting Hours.

This section was clear that polls opened at 7:30 a.m. on the day of the election and closed at 7:30 p.m. and there was no provision in the Arkansas Election Code authorizing an extension of voting times by the judiciary; thus, the circuit court judge's order extending voting hours was void. Republican Party of Ark. v. Kilgore, 350 Ark. 540, 98 S.W.3d 798 (2002).

7-5-305. Requirements.

  1. Before a person is permitted to vote, the poll worker shall:
    1. Request the voter to identify himself or herself in order to verify the existence of his or her name on the precinct voter registration list;
    2. Request the voter, in the presence of the poll worker, to state his or her address and state his or her date of birth;
    3. Determine that the voter's date of birth and address are the same as those on the precinct voter registration list;
    4. If the date of birth given by the voter is not the same as that on the precinct voter registration list, request the voter to provide identification as the poll worker deems appropriate;
      1. If the voter's address is not the same as that on the precinct voter registration list, verify with the county clerk that the address is within the precinct.
      2. If the address is within the precinct, request the voter to complete a voter registration application form for the purpose of updating county voter registration record files.
      3. If the address is not within the precinct:
        1. Verify with the county clerk's office the proper precinct; and
        2. Instruct the voter to go to the polling site serving that precinct in order for his or her vote to be counted;
    5. If the voter's name is not the same as that on the precinct voter registration list, request the voter to complete a voter registration application form for purposes of updating county voter registration record files;
    6. Request the voter, in the presence of the poll worker, to sign his or her name, including the given name, middle name or initial, if any, and last name in the space provided on the precinct voter registration list. If a person is unable to sign his or her signature or make his or her mark or cross, the poll worker shall enter his or her initials and the voter's date of birth in the space for the person's signature on the precinct voter registration list;
      1. Except as provided in this section, request that the voter present verification of voter registration by providing a document or identification card that meets the requirements of Arkansas Constitution, Amendment 51, § 13, if required by that section.
        1. If a voter is unable to present verification of voter registration in the form of a document or identification card required by Arkansas Constitution, Amendment 51, § 13, the poll worker shall:
          1. Indicate on the precinct voter registration list that the voter did not present verification of voter registration by providing a document or identification card required by Arkansas Constitution, Amendment 51, § 13; and
          2. Permit the voter to cast a provisional ballot.
        2. When a voter is unable to provide verification of voter registration, the voter and the election official shall follow the procedure under Arkansas Constitution, Amendment 51, § 13.
        3. A first-time voter who registers by mail without providing identification when registering and desires to vote in person but who does not meet the identification requirements of § 7-5-201(e) may cast a provisional ballot.
        4. Following each election, the county board of election commissioners may review the precinct voter registration lists and may provide the information of the voters not presenting verification of voter registration at the polls to the prosecuting attorney.
        5. The county board of election commissioners shall refer suspected instances of voter fraud to the prosecuting attorney.
        6. The prosecuting attorney may investigate possible voter fraud;
    7. Record the voter's name or request the voter to print his or her name on the list-of-voters form;
    8. Follow the procedures under §§ 7-5-310 and 7-5-311 if the person is a voter with a disability and presents himself or herself to vote; and
    9. Permit the person to cast a provisional ballot if the person received an absentee ballot according to the precinct voter registration list.
  2. A person not listed on the precinct voter registration list may vote only in accordance with § 7-5-306.

History. Acts 1969, No. 465, Art. 7, § 8; A.S.A. 1947, § 3-708; Acts 1993, No. 487, § 2; 1995, No. 946, § 6; 1995, No. 963, § 6; 1997, No. 451, § 18; 1999, No. 1454, § 1; 2001, No. 471, § 1; 2003, No. 994, § 4; 2003, No. 1308, § 4; 2005, No. 238, § 1; 2005, No. 2193, § 2; 2007, No. 1020, § 8; 2009, No. 959, § 11; 2013, No. 595, § 4; 2017, No. 633, § 6.

Amendments. The 2009 amendment substituted “poll worker” for “election official” throughout the section; deleted “or confirm” following “state” in (a)(2); and substituted “§§ 7-5-310 and 7-5-311” for “§§ 7-5-310, 7-5-311, and 7-5-523 [Repealed]” in (a)(10); and made minor stylistic changes.

The 2013 amendment rewrote (a)(8).

The 2017 amendment rewrote (a)(8).

Cross References. Voter registration application forms, Ark. Const. Amend. 51, § 6.

Research References

ALR.

Voter Identification Requirements as Denying or Abridging Right to Vote on Account of Race or Color Under § 2 of Voting Rights Act, 52 U.S.C. § 10301. 12 A.L.R. Fed. 3d 4 (2016).

Ark. L. Rev.

Brandon Whit Maxey, Legislative Note: A Proposal for a Voter-Identification Law Limiting Voter Disenfranchisement, 67 Ark. L. Rev. 457 (2014).

U. Ark. Little Rock L. Rev.

Survey of Legislation, 2003 Arkansas General Assembly, Election Law, Help America Vote Act, 26 U. Ark. Little Rock L. Rev. 398.

7-5-306. Procedure when voter's name is not on the precinct voter registration list.

  1. If the voter's name is not on the precinct voter registration list, the poll worker shall permit the voter to vote only under the following conditions:
    1. The voter identifies himself or herself by stating his or her name and date of birth and is verified by the county clerk as a registered voter within the county and, if the county is divided into more than one (1) congressional district, within the same congressional district;
    2. The voter gives and affirms his or her current residence and the poll worker verifies with the county clerk that the voter's residence is within the precinct;
    3. The voter completes an updated voter registration application form; and
    4. The voter signs the precinct voter registration list.
  2. If the voter is not listed on the precinct voter registration list and the poll worker is unable to verify the voter's registration with the county clerk and the voter contends that he or she is a registered voter in the precinct in which he or she desires to vote and that he or she is eligible to vote, then the voter shall be permitted to cast a provisional ballot.

History. Acts 1969, No. 465, Art. 7, § 9; A.S.A. 1947, § 3-709; Acts 1995, No. 946, § 7; 1995, No. 963, § 7; 1997, No. 451, § 19; 2003, No. 994, § 5; 2005, No. 238, § 2; 2007, No. 224, § 2; 2009, No. 959, § 12.

Amendments. The 2007 amendment deleted “as follows” at the end of the introductory paragraph of (b); and deleted former (b)(1) through (b)(4) and (c).

The 2009 amendment substituted “poll worker” for “election official” in three places.

Research References

U. Ark. Little Rock L. Rev.

Survey of Legislation, 2003 Arkansas General Assembly, Election Law, Help America Vote Act, 26 U. Ark. Little Rock L. Rev. 398.

7-5-307. [Repealed.]

Publisher's Notes. This section, concerning election official's initials, was repealed by Acts 2007, No. 224, § 3. The section was derived from Acts 1969, No. 465, Art. 7, § 10; A.S.A. 1947, § 3-710; Acts 1995, No. 461, § 2; 1997, No. 451, § 20; 2005, No. 880, § 1.

7-5-308. Provisional ballot procedure.

  1. Except as provided under subsection (b) of this section, if a voter is required by law to cast a provisional ballot, the provisional ballot shall be cast pursuant to the following procedures:
    1. A poll worker shall notify the voter that the voter may cast a provisional ballot in that election;
    2. The voter shall execute a written eligibility affirmation under penalty of perjury in the presence of the poll worker stating that he or she is a registered voter in the precinct in which he or she desires to vote and is eligible to vote;
    3. Unless a provisional ballot is cast using a ballot marking device, the poll worker shall initial the back of the provisional ballot, remove the provisional ballot stub from the provisional ballot, and place the stub in the stub box provided;
    4. The voter shall mark his or her provisional ballot;
    5. The voter shall place the voted provisional ballot in a provisional ballot secrecy envelope marked “provisional ballot” and seal the envelope;
    6. The voter shall place the sealed provisional ballot envelope containing the voted provisional ballot in a voter envelope, seal the envelope, and give it to the poll worker;
    7. The poll worker shall provide the voter written information instructing him or her on how to determine whether his or her provisional ballot was counted, and if not, the reason the provisional ballot was not counted; and
    8. The poll worker shall make a separate list of the names and addresses of all persons voting a provisional ballot under this subsection, and each person voting a provisional ballot shall sign his or her name to this list.
  2. If a voter is required by law to cast a provisional ballot because the voter is unable to verify his or her registration by providing a document or identification card that meets the requirements of Arkansas Constitution, Amendment 51, § 13, the provisional ballot shall be cast pursuant to the following procedures:
    1. The poll worker shall indicate on the precinct voter registration list that the voter did not present a required document or identification card;
    2. The poll worker shall notify the voter that the voter may cast a provisional ballot in that election;
    3. The voter shall execute a written eligibility affirmation under penalty of perjury in the presence of the poll worker stating that he or she is a registered voter in the precinct in which he or she desires to vote and is eligible to vote;
      1. The poll worker shall inform the voter that the voter may complete a sworn statement stating that the voter is registered to vote in this state and that he or she is the person who is registered to vote.
      2. A sworn statement completed under subdivision (b)(4)(A) of this section is not required to be notarized, but the voter shall execute the sworn statement under penalty of perjury.
      3. The sworn statement under subdivision (b)(4)(A) of this section shall be delivered to the county board of election commissioners so that the provisional ballot may be counted under subsection (f) of this section;
    4. Unless a provisional ballot is cast using a ballot marking device, the poll worker shall initial the back of the provisional ballot, remove the provisional ballot stub from the provisional ballot, and place the stub in the stub box provided;
    5. The voter shall mark his or her provisional ballot;
    6. The voter shall place the voted provisional ballot in a provisional ballot secrecy envelope marked “provisional ballot” and seal the envelope;
    7. The voter shall place the sealed provisional ballot envelope containing the voted provisional ballot in a voter envelope, seal the envelope, and give it to the poll worker;
    8. The poll worker shall provide the voter written information instructing him or her on how to determine whether his or her provisional ballot was counted, and if not, the reason the ballot was not counted; and
    9. The poll worker shall make a separate list of the names and addresses of all persons voting a provisional ballot under this subsection, and each person voting a provisional ballot shall sign his or her name to this list.
  3. The poll worker shall preserve, secure, and separate all provisional ballots under subsections (a) and (b) of this section from the remaining ballots so that the right of any person to vote may be determined later by the county board of election commissioners or the court in which an election contest may be filed.
    1. Whenever a person casts a provisional ballot under this section, the poll worker shall provide the voter written information that states that the individual who casts a provisional ballot will be able to ascertain whether the provisional vote was counted, and if not, the reason the provisional vote was not counted.
    2. The Secretary of State shall establish a free access system to allow a provisional voter under this section to ascertain whether his or her provisional vote was counted, and if not, the reason his or her provisional vote was not counted.
    3. Access to information about an individual provisional ballot shall be restricted to the voter who cast the provisional ballot.
    1. Before certification of the results of the election, the county board of election commissioners shall determine whether the provisional ballots are valid.
    2. Unless enjoined by a court of competent jurisdiction, a provisional ballot under subsection (a) of this section shall be counted if:
      1. It is cast by a registered voter and is the correct ballot, according to the precinct listed on the voter's eligibility affirmation, for the precinct of the voter's residence; and
      2. The county board of election commissioners does not determine that the provisional ballot is invalid and should not be counted based on other grounds.
  4. Unless enjoined by a court of competent jurisdiction, a provisional ballot under subsection (b) of this section shall be counted if:
      1. The voter completes a sworn statement at the polling site when voting either early or at the polls on election day stating that the voter is registered to vote in this state and that he or she is the person registered to vote; and
      2. The county board of election commissioners does not determine that the provisional ballot is invalid and should not be counted based on other grounds; or
      1. The voter returns to the county board of election commissioners or the county clerk by 12:00 noon on the Monday following the election and presents a document or identification card that complies with the requirements of Arkansas Constitution, Amendment 51, § 13; and
      2. The county board of election commissioners does not determine that the provisional ballot is invalid and should not be counted based on other grounds.
  5. If, upon examination of a provisional ballot under this section, the county board of election commissioners suspects that a violation of the election laws has occurred, the county board of election commissioners may refer the matter to the prosecuting attorney.

History. Acts 1969, No. 465, Art. 7, § 12; A.S.A. 1947, § 3-712; Acts 2007, No. 224, § 4; 2009, No. 1480, § 25; 2017, No. 633, § 7; 2019, No. 109, §§ 1, 2.

Amendments. The 2007 amendment substituted “Provisional ballot procedure” for “Ballots to remain in polling place” in the section heading, and rewrote the section.

The 2009 amendment substituted “poll worker” for “election official” and variants throughout; rewrote (c); deleted former (d) and redesignated the remaining subsections accordingly; and rewrote (d).

The 2017 amendment, in the introductory language of (a), substituted “Except as provided under subsection (b) of this section, if a” for “When the” and inserted “provisional” following “the”; deleted “individual” preceding “voter” twice in (a)(1); inserted “under penalty of perjury” in (a)(2); inserted “provisional” preceding the first two occurrences of “ballot” in (a)(3); inserted “provisional” preceding “ballot secrecy envelope” in (a)(5); inserted “provisional” preceding the second occurrence of “ballot” in (a)(7); added “under this subsection . . . to this list” at the end of (a)(8); inserted present (b); redesignated former (b)-(d) as present (c)-(e); inserted “under subsections (a) and (b) of this section” in (c); in (d)(1) and (d)(2), inserted “under this section” and substituted “provisional vote” for “vote” twice; substituted “voter who cast the provisional ballot” for “individual who cast the ballot” in (d)(3); inserted “under subsection (a) of this section” in the introductory language of (e)(2); added (e)(2)(B); inserted (f); redesignated former (e) as (g); in (g), substituted “a provisional ballot under this section” for “any provisional ballots” and inserted “of election commissioners”; and made stylistic changes.

The 2019 amendment added “Unless a provisional ballot is cast using a ballot marking device” in (a)(3) and (b)(5).

7-5-309. Voting procedure.

  1. Before giving the voter a preprinted paper ballot, a poll worker shall:
    1. Initial the back of the ballot;
    2. Remove the ballot stub; and
    3. Place the stub into the stub box provided.
      1. Upon receiving his or her ballot, the voter may mark the ballot appropriately at a voting booth, voting machine, or private voting place that allows for the voter to mark the ballot in secrecy so that no one may view how he or she voted.
      2. A voter shall not be allowed more than ten (10) minutes to mark his or her ballot.
    1. The voter or the voter's authorized assistant shall deposit the marked ballot into the ballot box provided.
  2. The voter shall not be required to sign, initial, or in any way identify himself or herself with the ballot, the ballot stub, or the list of voters other than in the manner provided in this section.
  3. [Repealed.]
  4. After having voted or having declined to vote, the voter shall immediately depart from the polling site.
  5. A person shall not carry a ballot outside of the polling place.
    1. If a paper ballot is left in the polling site outside of the ballot box after the voter has departed, a poll worker shall:
      1. Write “Abandoned” on the face of the paper ballot;
      2. Place the paper ballot into an envelope marked “Abandoned Ballot”;
      3. Note in writing on the outside of the envelope the circumstances surrounding the abandoned ballot; and
      4. Preserve the abandoned ballot separately.
    2. The county board of election commissioners shall not count the ballot.
    1. If an electronic vote tabulating device at the polling site has rejected a ballot that remains in the receiving part of the device, two (2) poll workers shall override warnings on the device and complete the process of casting the ballot only if:
      1. The voter has departed the polling site; and
      2. The voter did not indicate that he or she chose to cancel or replace the ballot.
    2. The poll workers shall document:
      1. The time;
      2. The name of the voter;
      3. The names of the poll workers completing the process of casting the ballot; and
      4. All other circumstances surrounding the abandoned ballot.

History. Acts 1969, No. 465, Art. 7, § 11; A.S.A. 1947, § 3-711; Acts 1997, No. 451, § 21; 2005, No. 880, § 2; 2007, No. 224, § 5; 2007, No. 834, § 1; 2009, No. 959, § 13; 2011, No. 1033, § 1; 2013, No. 1424, § 1; 2013, No. 1461, § 1; 2017, No. 908, § 1; 2019, No. 109, § 3; 2019, No. 534, § 1; 2019, No. 664, § 1.

Amendments. The 2009 amendment substituted “poll worker” for “election official,” “election officer,” or variant throughout the section; substituted “judge” for “officials” in (a)(4); and made minor stylistic changes.

The 2011 amendment substituted “voting booths for each polling site in a number deemed appropriate by the county board of election commissioners” for “in each polling site at least one (1) voting booth for each fifty (50) registered electors voting in the last preceding comparable election” in (a)(1).

The 2013 amendment by No. 1424 rewrote (a)(4), (c)(1)(A), and (c)(2); and inserted “or the voter's authorized assistant” in the introductory language of (g)(1) and in (h)(1).

The 2013 amendment by No. 1461 deleted former (a) and redesignated former (b), (c), (d)(1), and (d)(2) as present (a), (b), (c), and (d) respectively; substituted “appropriately” for “by placing an appropriate mark” in (b)(1)(A); in (b)(2), substituted “or the voter’s authorized assistant shall” for “shall then personally” and inserted “marked”; substituted “provided” for “set forth” in (c); substituted “declined to vote” for “having declined to do so” in (e); deleted “be permitted to” preceding “carry” in (f); and rewrote the introductory language of (g)(1) and (h)(1).

The 2017 amendment, in (b)(1)(A), substituted “may mark the ballot” for “shall proceed to mark it” and added “at a voting booth, voting machine, or private voting place that allows for the voter to mark the ballot in secrecy so that no one may view how he or she voted”.

The 2019 amendment by No. 109 inserted “preprinted paper” in the introductory language of (a).

The 2019 amendment by No. 534 repealed (d).

The 2019 amendment by No. 664 substituted “ten (10) minutes” for “five (5) minutes” in (b)(1)(B).

Case Notes

Ballot Stubs.

Election officials were correct in counting three ballots found the morning after the election, where plaintiff's complaint alleged no fraud, and did not challenge the qualifications of any voter casting ballots, and the voters whose ballots were belatedly counted were presumably registered, eligible voters whose only mistake was their failure to separate ballot stubs from their ballots and to place the stubs in the ballot stub box. Ashcraft v. Cox, 310 Ark. 703, 839 S.W.2d 219 (1992).

Secrecy.

Voter may waive his or her right to vote in secrecy. Certainly, no one may force a voter to cast an open ballot, and a voter may not be restrained from exercising his or her privilege of voting in secrecy; but if a voter desires to vote outside the confines of a voting booth, he or she may do so, and a voter is not required to avail himself or herself of the methods in place to ensure privacy. Hamaker v. Pulaski County Election Comm'n, 2011 Ark. 390 (2011).

Voting Squares.

An election to approve a library tax was invalid where 95% of the ballots furnished voters had no voting square for “against.” Gregory v. Gordon, 243 Ark. 635, 420 S.W.2d 825 (1967) (decision under prior law).

Wording on Ballot.

Ballot titles and ballot forms should be so worded that a voter need not hesitate, before casting his vote, to ponder over its consequences so he can feel assured that he is casting it according to his actual desire. Riviere v. Wells, 270 Ark. 206, 604 S.W.2d 560 (1980).

Write-In Votes.

Since an elector in a school election could write in the name of any person for whom he might wish to vote, he could alternatively, in the absence of fraud, paste a sticker bearing the name of a candidate on the ballot. Bennett v. Miller, 186 Ark. 413, 53 S.W.2d 853 (1932) (decision under prior law).

Write-in votes using printed stickers already marked with an X-mark was not improper as attempting to cast a write-in vote without the use of an X. Pace v. Hickey, 236 Ark. 792, 370 S.W.2d 66 (1963) (decision under prior law).

7-5-310. Privacy — Assistance to voters with disabilities.

    1. Each voter shall be provided the privacy to mark his or her ballot. Privacy shall be provided by the poll workers at each polling site or by the county clerk, if the county clerk conducts early voting, to ensure that a voter desiring privacy is not singled out.
      1. In a county that uses paper ballots, the county board of election commissioners shall determine and provide the appropriate number of voting booths for each polling site.
      2. A voting booth shall be:
        1. Constructed to permit the voter to prepare his or her ballot while screened from observation;
        2. Furnished with supplies and conveniences that will enable the voter to prepare his or her ballot; and
        3. Situated in the plain view of a poll worker.
      3. If a person is not a poll worker and is not casting a ballot, he or she shall not be within six feet (6') of the voting booths, unless:
        1. The person is authorized by an election judge; and
        2. The person's presence is necessary to keep order or enforce the law.
    2. A person may not enter a polling site on election day during voting hours unless the person is:
      1. An election official;
      2. An authorized poll watcher;
      3. A voter present to cast his or her ballot;
      4. A person in the care of a voter if the person:
        1. Does not disrupt or interfere with the normal voting procedures; and
        2. Is not eligible to vote in that election;
      5. A person lawfully assisting the voter;
      6. A law enforcement officer or emergency service personnel who are acting in the line of duty;
      7. A monitor authorized by the State Board of Election Commissioners or observer authorized by a federal agency with the authority to place the observer at the polling site;
        1. A person with business in the polling site that is not connected to the election.
        2. A person with business in the polling site that is not connected to the election shall remain outside of the voter processing area or voting room except to pass through or by the voter processing area or voting room without speaking to a voter or an election official and with the purpose to conduct his or her business;
      8. A person whom the county clerk or the county board of election commissioners has authorized to assist in conducting the election;
      9. A person authorized by the State Board of Election Commissioners or the county board of election commissioners; or
      10. The county clerk.
    1. A voter shall inform the poll workers at the time that the voter presents himself or herself to vote that he or she is unable to mark or cast the ballot without help and needs assistance in casting or marking his or her ballot.
    2. The voter shall be directed to a voting machine equipped for use by persons with disabilities by which he or she may elect to cast his or her ballot without assistance, or the voter may request assistance with either the paper ballot or the voting machine, depending on the voting system in use for the election, by:
      1. Two (2) poll workers; or
      2. A person named by the voter.
    3. If the voter is assisted by two (2) poll workers, one (1) of the poll workers shall observe the voting process and one (1) may assist the voter in marking and casting the ballot according to the wishes of the voter without comment or interpretation.
        1. If the voter is assisted by one (1) person named by the voter, he or she may assist the voter in marking and casting the ballot according to the wishes of the voter without any comment or interpretation.
        2. If an election official witnesses the person assisting the voter commenting or interpreting in violation of subdivision (b)(4)(A)(i) of this section:
          1. The election official may cause the person assisting the voter to be removed from the polling site; and
          2. If the voter requests additional assistance in marking and casting his or her ballot, it may be provided by two (2) election officials trained to do so.
      1. No person other than the following shall assist more than six (6) voters in marking and casting a ballot at an election:
        1. A poll worker;
        2. The county clerk during early voting; or
        3. A deputy county clerk during early voting.
      2. If the person whose assistance has been requested by the voter is a candidate on the ballot:
        1. The candidate shall not assist more than six (6) voters in the election; and
        2. The candidate may only assist a voter who is related to the candidate within the second degree of consanguinity.
    4. It shall be the duty of the poll workers at the polling site to make and maintain a list of the names and addresses of all persons assisting voters.
  1. Any voter who, because of physical, sensory, or other disability, presents himself or herself for voting and then informs a poll worker at the polling site that he or she is unable to stand in line for extended periods of time shall be entitled to and assisted by a poll worker to advance to the head of any line of voters then waiting in line to vote at the polling site.

History. Acts 1995, No. 908, § 1; 1995, No. 1296, § 39; 1997, No. 451, § 22; 2003, No. 1308, § 1; 2005, No. 2233, § 6; 2007, No. 1020, § 7; 2009, No. 658, § 3; 2009, No. 959, § 14; 2013, No. 1461, § 2; 2019, No. 965, § 1.

A.C.R.C. Notes. As amended by Acts 1993, No. 1192, § 1, § 7-5-310 also provided, in part, that the section shall become null and void on January 1, 1995, and thus the section expired on that date. That version of § 7-5-310 was derived from Acts 1969, No. 465, Art. 7, § 13; 1985, No. 1025, § 1; A.S.A. 1947, § 3-713, Acts 1987, No. 702, § 1; 1993, No. 513, § 1; 1993, No. 1192, § 1.

Acts 1995, No. 908, § 1, which became effective July 28, 1995, purported to amend § 7-5-310, which was expired, and set out the section in a form identical to the section as it existed when it expired. Acts 1995, No. 1296, § 39, repealed § 7-5-310 because it had expired, but pursuant to the provisions of Acts 1995, No. 1296, § 100, the amendment of § 7-5-310 by Acts 1995, No. 908, was deemed to supersede its repeal by Acts 1995, No. 1296, § 39.

Amendments. The 2009 amendment by No. 658 inserted (b)(4)(B).

The 2009 amendment by No. 959 rewrote (a).

The 2013 amendment added (a)(2) and (3).

The 2019 amendment rewrote (a)(2)(A); inserted “while” in (a)(2)(B)(i); substituted “polling site” for “polling place” throughout (a)(3); in (a)(3)(H)(ii), inserted “voter processing area or” twice and inserted “without speaking to a voter or an election official and”; inserted “county clerk or the” in (a)(3)(I); added (a)(3)(K); inserted “or marking” in (b)(1); added the (b)(4)(A)(i) designation; added (b)(4)(A)(ii); added (b)(4)(C); and made stylistic changes.

Case Notes

Extent of Assistance.

Former section permitted assistance to be given to a voter who could not operate a voting machine and allowed assistance to be given to a voter who wished to vote for a write-in candidate but was unable to do so without assistance. Smith v. Arkansas, 385 F. Supp. 703 (E.D. Ark. 1974).

Former provision was constitutional that required write-in candidate to be written on the ballot in the handwriting of the person casting the vote; when properly interpreted, the provision applied only to those who could handwrite and where persons with disabilities were concerned, the handwriting requirement had to be construed as including handwriting of person assisting the voter. Smith v. Arkansas, 385 F. Supp. 703 (E.D. Ark. 1974).

Preparation by One Judge.

The voter is allowed to contradict his ballot in an election contest where it is shown that his ballot was prepared for him by one instead of two judges. Freeman v. Lazarus, 61 Ark. 247, 32 S.W. 680 (1895) (decision under prior law).

Voting Booth.

Under former similar law, a county election commission had to situate the voting booths so as to permit a voter to prepare his or her ballot screened from observation; the statutory provision did not, however, require the commission to force a voter to prepare his or her ballot in a voting booth. Hamaker v. Pulaski County Election Comm'n, 2011 Ark. 390 (2011).

7-5-311. Voters with disabilities — Special procedures — Definition.

  1. The county boards of election commissioners shall provide voting locations that are accessible to voters with disabilities and shall provide reasonable and adequate methods whereby voters with disabilities may personally and secretly execute their ballots at the polling places.
  2. After conferring with and obtaining the assistance of persons with disabilities or organizations of citizens with disabilities, the State Board of Election Commissioners shall offer to assist local election authorities with the implementation of Title II requirements of the Americans with Disabilities Act and with the Title III requirements of the Help America Vote Act of 2002 regarding accessibility for voters with disabilities.
  3. As used in this section, the term “disability” means any physical, mental, or sensory impairment.
    1. The county board of election commissioners shall be responsible for compliance with this section and with Pub. L. No. 98-435, Title II of Pub. L. No. 101-336, the Americans with Disabilities Act, and the Help America Vote Act of 2002 regarding the accessibility of voting locations for voters with disabilities.
    2. The State Board of Election Commissioners shall mail to the chair of each county board of election commissioners and the chair of each county political party a copy of this section and of Pub. L. No. 98-435.

History. Acts 1979, No. 972, § 1; A.S.A. 1947, § 3-721; Acts 1989, No. 912, § 2; 1993, No. 1192, § 3; 1995, No. 1120, § 1; 1999, No. 643, §§ 1, 2; 2003, No. 1308, § 2; 2005, No. 1827, § 4; 2007, No. 1020, § 9.

Amendments. The 2007 amendment deleted “with respect to general, special, and primary elections under their several jurisdictions” following “commissioners” in (a); substituted “mail to” for “provide” in (d)(2); and deleted former (d)(2)(B).

U.S. Code. Pub. L. No. 98-435, referred to in this section, is codified as 52 U.S.C. § 20101 et seq.

Title II of Pub. L. No. 101-336, referred to in this section, is codified as 42 U.S.C. § 12131 et seq. The Americans with Disabilities Act is codified primarily as 42 U.S.C. § 12101 et seq.

The federal Help America Vote Act of 2002, referred to in this section, is codified as 52 U.S.C. § 20901 et seq.

7-5-312. Challenge of voter's ballot by poll watchers, candidates, or designees.

  1. Poll watchers shall include any:
    1. Candidate in person, but only during the counting and tabulation of ballots and the processing of absentee ballots;
    2. Authorized representative of a candidate;
    3. Authorized representative of a group seeking the passage or defeat of a measure on the ballot; and
    4. Authorized representative of a political party with a candidate on the ballot.
  2. Each candidate, group, or party may have at any given time during the election, including early voting:
    1. One (1) authorized representative present at any one (1) time at each location within a polling site where voters identify themselves to election officials, so as to observe and ascertain the identity of those persons presenting themselves to vote for the purpose of challenging voters; and
    2. One (1) authorized representative present at any one (1) time at each location within the absentee ballot processing site where absentee ballots are processed, so as to observe and ascertain the identity of absentee voters for the purpose of challenging any absentee vote.
  3. In accordance with §§ 7-5-316, 7-5-413, 7-5-416, 7-5-527, and 7-5-615, a candidate in person or an authorized representative of a candidate or political party may be present at a polling site, central counting location, and absentee ballot counting location for the purpose of witnessing the counting of ballots by election officials and determining whether ballots are fairly and accurately counted.
  4. The document designating and authorizing a representative of a candidate, a representative of a group seeking the passage or defeat of a measure on the ballot, and a representative of a political party with a candidate on the ballot shall be filed with the county clerk and a file-marked copy shall be presented by the poll watcher to the election official immediately upon entering the polling site, absentee ballot processing site, or counting location in the following form:
  5. Poll watcher rights and responsibilities shall be printed on the back of the document in the following form:
    1. A candidate in person, but only during the counting and tabulation of ballots and the processing of absentee ballots;
    2. An authorized representative of a candidate;
    3. An authorized representative of a group seeking the passage or defeat of a measure on the ballot; or
    4. An authorized representative of a party with a candidate on the ballot.
    5. Call to the attention of the election sheriff any occurrence believed to be an irregularity or violation of election law. The poll watcher may not discuss the occurrence unless the election sheriff invites the discussion; and
    6. Be present at the opening, processing, and canvassing of absentee ballots for the purpose of challenging absentee votes in the manner provided by law for personal voting challenges.
  6. Poll watcher rights and responsibilities shall be posted in plain view at each polling site, absentee ballot processing site, and counting site.
  7. A poll watcher may challenge a voter only on the grounds that the voter is not eligible to vote in the precinct or that the voter has previously voted at that election.
    1. When the ballot of any voter is thus challenged, it shall be treated as a provisional ballot.
    2. The poll watcher shall notify an election official of the challenge before the voter signs the precinct voter registration list.
    3. The poll watcher shall complete a challenged ballot form.
    4. The election official shall inform the voter that his or her ballot is being challenged.
    5. The procedures for casting a provisional ballot under § 7-5-308 shall be followed.

“POLL WATCHER AUTHORIZATION FORM Representative of a Candidate I, , state that I am a candidate for the office of in the election. I further state that I have designated as my authorized representative at the election at polling sites and absentee ballot processing sites in County, Arkansas, to observe and ascertain the identity of persons presenting themselves to vote in person or by absentee for the purpose of challenging any voter in accordance with Arkansas Code §§ 7-5-312, 7-5-416, and 7-5-417. I further state that I have designated and authorized my representative named above to be present at the ballot counting locations at in County, Arkansas, for the purpose of witnessing the counting of ballots by election officials and determining whether ballots are fairly and accurately counted in accordance with Arkansas Code §§ 7-5-312, 7-5-316, 7-5-413, 7-5-416, 7-5-527, and 7-5-615. Representative of a Group I, , state that I represent the group that is seeking passage/defeat (circle one) of the ballot measure entitled on the ballot in the election at polling sites and absentee ballot processing sites in County, Arkansas, to observe and ascertain the identity of persons presenting themselves to vote in person or by absentee for the purpose of challenging any voter in accordance with Arkansas Code §§ 7-5-312, 7-5-416, and 7-5-417. Representative of a Party I, , state that I am the chair or secretary of the state/county (circle one) committee for the party with candidates on the ballot in the election. I further state that I have designated as an authorized party representative at the election at polling sites and absentee ballot processing sites in County, Arkansas, to observe and ascertain the identity of persons presenting themselves to vote in person or by absentee for the purpose of challenging any voter in accordance with Arkansas Code §§ 7-5-312, 7-5-416, and 7-5-417. I further state that I have designated and authorized my representative named above to be present at the ballot counting locations at in County, Arkansas, for the purpose of witnessing the counting of ballots by election officials and determining whether ballots are fairly and accurately counted in accordance with Arkansas Code §§ 7-5-312, 7-5-316, 7-5-413, 7-5-416, 7-5-527, and 7-5-615. Signature of Candidate, Group Representative, or Chair/Secretary of the State/County Committee Acknowledged before me this day of , 20 Notary Public: My Commission Expires: I do hereby state that I am familiar with the rights and responsibilities of a poll watcher as outlined on the back of the poll watcher authorization form and will in good faith comply with the provisions of same. Signature of the Poll Watcher Acknowledged before me this day of , 20 Notary Public: My Commission Expires: I do hereby acknowledge the filing of this poll watcher authorization form with the county clerk's office. Signature of County Clerk”.

Click to view form.

“POLL WATCHER RIGHTS AND RESPONSIBILITIES

A poll watcher may be:

Official recognition of poll watchers:

(1) Only one (1) authorized poll watcher per candidate, group, or party at any one (1) given time may be officially recognized as a poll watcher at each location within a polling site where voters identify themselves to election officials;

(2) Only one (1) authorized poll watcher per candidate, group, or party at any one (1) given time may be officially recognized as a poll watcher at each location within the absentee ballot processing site where absentee ballots are processed; and

(3) Only one (1) authorized poll watcher per candidate or party at any one (1) given time may be officially recognized as a poll watcher at the counting of the ballots.

Poll watcher credentials:

(1) Except for candidates in person, poll watchers must present a valid affidavit in the form of a ‘Poll Watcher Authorization Form’ to an election official immediately upon entering the polling or counting location; and

(2) Candidates in person attending a counting site or absentee ballot processing site are not required to present a ‘Poll Watcher Authorization Form’ but must present some form of identification to an election official immediately upon entering the site for the purpose of confirming the poll watcher as a candidate on the ballot.

Poll watchers may:

(1) Observe the election officials;

(2) Stand close enough to the place where voters check in to vote so as to hear the voter's name;

(3) Compile lists of persons voting;

(4) Challenge ballots upon notification to an election official before the voter signs the precinct voter registration list and upon completing a ‘Challenged Ballot Form’;

Poll watchers representing a candidate or political party may:

(1) Remain at the polling site after the poll closes if ballots are counted at the poll;

(2) Be present at the counting of votes by hand or by an electronic vote tabulating device at a central location;

(3) Be present at the counting of absentee ballots for the purpose of witnessing the counting of ballots by election officials and determining whether ballots are fairly and accurately counted; and

(4) Upon request made to an election official, inspect any or all ballots at the time the ballots are being counted.

Poll watchers may not:

(1) Be within six feet (6') of any voting machine or booth used by voters to cast their ballot;

(2) Speak to any voter or in any way attempt to influence a voter inside the polling site or within one hundred feet (100') of the primary exterior entrance used by voters to the building containing the polling site; or

(3) Disrupt the orderly conduct of the election.”

History. Acts 1969, No. 465, Art. 7, § 14; 1977, No. 114, § 1; A.S.A. 1947, § 3-714; Acts 1987, No. 247, § 2; 1987, No. 905, § 1; 1991, No. 407, § 1; 1991, No. 529, § 1; 1997, No. 451, § 23; 2003, No. 994, § 6; 2003, No. 1154, § 1; 2005, No. 67, § 8; 2005, No. 880, § 3; 2007, No. 224, § 6; 2009, No. 1480, § 26.

Amendments. The 2007 amendment rewrote the section.

The 2009 amendment rewrote (a)(1); substituted “voters” for “any voter who appears for the purpose of casting a ballot” in (b)(1); in the “POLL WATCHER RIGHTS AND RESPONSIBILITIES” form in (e), rewrote (1) following “A poll wathcher may be,” rewrote (2) following “Poll watcher credentials” and “Poll watchers may,” deleted (2) following “Poll watchers may not” and redesignated (3) and (4) as (2) and (3); inserted present (g) and redesignated (g) as (h).

Research References

ALR.

Validity of Statute Requiring Proof and Disclosure of Information as Condition of Registration to Vote. 48 A.L.R.6th 181.

U. Ark. Little Rock L. Rev.

Survey of Legislation, 2003 Arkansas General Assembly, Election Law, Help America Vote Act, 26 U. Ark. Little Rock L. Rev. 398.

Case Notes

Cited: Ashcraft v. Cox, 310 Ark. 703, 839 S.W.2d 219 (1992).

7-5-313. [Repealed.]

Publisher's Notes. This section, concerning cancellation and return of spoiled ballots, was repealed by Acts 2009, No. 1480, § 27. The section was derived from Acts 1969, No. 465, Art. 7, § 12; A.S.A. 1947, § 3-712; Acts 1997, No. 451, § 24.

7-5-314. Duties of election officials — Voter lists.

The election officials shall total the number of voters on the list of voters form, and the lists shall be certified and attested to by the election officials.

History. Acts 1969, No. 465, Art. 7, § 16; 1971, No. 261, § 13; 1973, No. 157, § 7; A.S.A. 1947, § 3-716; Acts 1987, No. 247, § 3; 1993, No. 512, § 2; 1995, No. 946, § 8; 1995, No. 963, § 8; 1997, No. 451, § 25; 2007, No. 1020, § 10.

Amendments. The 2007 amendment deleted “Voters in line at closing time” from the end of the section heading; deleted former (a) through (c); deleted the subsection (d) designation; and substituted “shall total the number of voters on the list of voters form” for “shall total the number of voters on the voter lists.”

7-5-315. Counting votes for unopposed and deceased candidates.

    1. The votes received by an unopposed candidate in any election held in this state may be counted or tabulated for administrative purposes but shall not be certified, unless otherwise provided by law, by the election officials. The word “UNOPPOSED” shall be inserted on the tally sheet to indicate that the candidate has received a majority of the votes cast in the election. However, the votes received by an unopposed candidate for the office of Mayor, Governor, and Circuit Clerk shall be counted and tabulated by the election officials.
    2. All other unopposed candidates shall be declared and certified as elected in the same manner as if the candidate had been voted upon at the election.
    1. The votes received by any person whose name appeared on the ballot and who withdrew or died after the certification of the ballot shall be counted.
      1. If the person received enough votes to win the election, a vacancy in election shall be declared.
        1. If the person received enough votes to qualify for a runoff, the person's name shall appear on the runoff ballot.
        2. If enough votes are cast for the person to win the runoff, then a vacancy in election shall exist.

History. Acts 1969, No. 465, Art. 7, § 17; A.S.A. 1947, § 3-717; Acts 1987, No. 248, § 8; 1991, No. 530, § 1; 1997, No. 451, § 26; 2003, No. 994, § 7; 2007, No. 1020, § 11; 2009, No. 1480, § 28; 2017, No. 730, § 2; 2019, No. 1013, § 2.

Amendments. The 2007 amendment substituted “paper ballots” for “ballots” in the section heading and the introductory paragraph; substituted “handwritten on the ballot” for “written on” in (2); substituted “marks for more . . . the voter's intent” for “a greater number of names for any one (1) office than the number of persons required to fill the office, it shall be considered fraudulent as to the whole of the names designated to fill the office, but no further” in (4); deleted former (8); and made related changes.

The 2009 amendment rewrote the section heading and the section.

The 2017 amendment redesignated former (a) as (a)(1); rewrote (a)(1); and added (a)(2).

The 2019 amendment, in (a)(1), inserted “in any election held in this state may be counted or tabulated for administrative purposes, but shall not be certified, unless otherwise provided by law, by the election officials. The word ‘UNOPPOSED’ shall be inserted on the tally sheet to indicate that the candidate has received a majority of the votes cast in the election. However, the votes received by an unopposed candidate”; and made stylistic changes.

Research References

U. Ark. Little Rock L. Rev.

Survey of Legislation, 2003 Arkansas General Assembly, Election Law, Help America Vote Act, 26 U. Ark. Little Rock L. Rev. 398.

Case Notes

Constitutionality.

Former provision was constitutional that required write-in candidate to be written on the ballot in the handwriting of the person casting the vote; when properly interpreted, the provision applied only to those who could handwrite and where persons with disabilities were concerned, the handwriting requirement had to be construed as including handwriting of person assisting the voter. Smith v. Arkansas, 385 F. Supp. 703 (E.D. Ark. 1974).

Candidate's Death or Ineligibility.

When a deceased or disqualified candidate wins an election, the votes received by the deceased or ineligible candidate are not void, but are effectual to prevent the opposing candidate from being chosen. Rubens v. Hodges, 310 Ark. 451, 837 S.W.2d 465 (1992).

Former provision similar to present subsection (b) of this section did not apply to votes cast for a candidate who was disqualified. Helton v. Jacobs, 346 Ark. 344, 57 S.W.3d 180 (2001).

Presumption.

There is a presumption that all votes cast at the election are lawful until their authenticity is impeached by affirmative evidence. Phillips v. Earngey, 321 Ark. 476, 902 S.W.2d 782 (1995).

7-5-316. Presence of candidate — Designation of representatives.

  1. After the polls have been closed, the counting of votes shall be open to the public, and any candidate or political party may be present in person or by representative designated in writing pursuant to § 7-5-312 at the count of the ballots in any election for the purpose of determining whether or not the ballots in any election precinct are fairly and accurately counted.
  2. The representatives of political parties may be designated and authorized by either the chair or the secretary of the state or county committee, and representatives of candidates may be designated and authorized by the candidate represented.

History. Acts 1969, No. 465, Art. 7, § 15; 1971, No. 261, § 12; A.S.A. 1947, § 3-715; Acts 1997, No. 451, § 27; 2003, No. 1154, § 2; 2009, No. 1480, § 29.

Amendments. The 2009 amendment deleted the last sentence in (a).

Case Notes

Violations.

There was no violation of this section where the voting tabulator was located near the rail in the courtroom of the courthouse, people were allowed on either side of the rail during the process, and no barrier existed in the courtroom which would preclude observation of the tabulating process. McGruder v. Phillips County Election Comm'n, 850 F.2d 406 (8th Cir. 1988).

7-5-317. Processing and delivery of election materials.

  1. After the polls close, all of the election materials shall be processed and delivered in the following manner:
    1. The poll workers shall total the number of voters on the list-of-voters form and certify and attest the form;
    2. The list-of-voters form, precinct voter registration list, voter registration application forms, and other recordkeeping supplies shall be delivered to the county clerk;
    3. Certificates of election results and tally sheets:
      1. One (1) copy of the certificate of election results with one (1) copy of the tally sheets, if any, shall be delivered to the county clerk; and
      2. One (1) copy of the certificate of election results shall be returned with one (1) copy of the tally sheets, if any, and reports of challenges of voters, if any, to the county board of election commissioners;
    4. Ballots:
      1. The poll workers shall securely envelope any voted ballots separately from any unused ballots and place the ballots in a container with a numbered seal and then deliver the ballots with the tally sheets, if any, and other election materials to the county board of election commissioners; and
      2. All cancelled ballots shall be preserved separately from the other ballots and returned to the county board of election commissioners; and
    5. Sealed stub boxes shall be delivered to the county board of election commissioners for storage.
  2. All of the election materials, stub boxes, and returns shall be delivered to the county board of election commissioners by the poll workers immediately after the polls close.

History. Acts 1969, No. 465, Art. 7, § 18; A.S.A. 1947, § 3-718; 1995, No. 946, § 9; Acts 1995, No. 963, § 9; 1997, No. 451, § 28; 2001, No. 797, § 1; 2005, No. 67, § 9; 2009, No. 959, § 15; 2009, No. 1480, § 30; 2013, No. 236, § 1; 2017, No. 621, §§ 1, 2.

Amendments. The 2009 amendment by No. 959 inserted (a)(2) and redesignated the remaining subdivision accordingly; and in (a)(4)(A) and (b), substituted “poll workers” for “election officials” and inserted “of election commissioners.”

The 2009 amendment by No. 1480 rewrote (a); and substituted “poll workers” for “election official” in (b).

The 2013 amendment inserted “or to the county treasurer in the case of the stub boxes” in (b).

The 2017 amendment substituted “county board of election commissioners” for “county treasurer” in (a)(5); and, in (b), inserted “stub boxes” and deleted “or to the county treasurer, in the case of the stub boxes” following “election commissioners”.

Case Notes

Certificate as Evidence.

Court properly refused to cast out absentee votes and allowed certificate of results in evidence where ballot box and ballots were lost or destroyed, but there was no evidence showing fraud or corruption or challenging correctness of certificate. Newport v. Smith, 236 Ark. 626, 367 S.W.2d 742 (1963) (decision under prior law).

Return of Election Materials.

It is not a violation of the federal Voting Rights Act to use the sheriff's office and personnel to return election materials as a fact of fiscal necessity due to the county's limited budget although it would be a violation of state law. McGruder v. Phillips County Election Comm'n, 850 F.2d 406 (8th Cir. 1988).

Statute Mandatory.

Former law detailing method of delivery of ballots, certificate and other materials was mandatory. Brooks v. Pullen, 187 Ark. 80, 58 S.W.2d 682 (1933) (decision under prior law).

Voting Lists.

Persons contesting local option election had a statutory right to examine voting list which election officials had sealed in ballot boxes. Baker v. Boone, 230 Ark. 843, 327 S.W.2d 85 (1959) (decision under prior law).

Voter lists and list of persons applying for absentee ballots were public records and could be copied as well as inspected. Whorton v. Gaspard, 239 Ark. 715, 393 S.W.2d 773 (1965) (decision under prior law).

Cited: Ashcraft v. Cox, 310 Ark. 703, 839 S.W.2d 219 (1992).

7-5-318. Failure to deliver materials — Penalty — Messenger to obtain delinquent returns.

  1. If the poll workers fail to deliver the ballots, ballot stubs, certification of election, voter lists, and other election returns in the manner provided for in § 7-5-317, the poll workers shall forfeit the sum of two hundred dollars ($200) to be recovered by action of debt in the name of the state for the use of the county.
  2. Upon failure of delivery of the election returns immediately after the polls close, the county board of election commissioners shall dispatch a peace officer to obtain the election returns, and all expenses incurred by sending the messenger shall be paid by the defaulting poll workers.

History. Acts 1969, No. 465, Art. 7, § 19; A.S.A. 1947, § 3-719; Acts 1997, No. 451, § 29; 2001, No. 798, § 1; 2009, No. 959, § 15.

Amendments. The 2009 amendment substituted “poll workers” for “election officials” in three places.

Case Notes

Cited: Ashcraft v. Cox, 310 Ark. 703, 839 S.W.2d 219 (1992).

7-5-319. Recount.

    1. Any candidate voted for who may be dissatisfied with the returns from any precinct shall have a recount of the votes cast therein upon the candidate's presenting the county board of election commissioners with a petition requesting the recount.
    2. When the number of outstanding absentee ballots of overseas voters is not sufficient to change the results of the election, the candidate must present the petition no later than two (2) days after the county board of election commissioners declares preliminary and unofficial results of the election, including a statement of the number of outstanding absentee ballots of overseas voters.
    3. When the number of outstanding absentee ballots of overseas voters is sufficient to potentially change the results of the election, the candidate must present the petition at any time before the county board of election commissioners finally completes the canvass of the returns of the election and certifies the result.
  1. At the time that the petition requesting the recount is presented, the county board of election commissioners shall provide to the candidate requesting the recount a copy of the test results on the voting machines and the electronic vote tabulating devices. Only one (1) recount per candidate per election shall be permitted. The county board of election commissioners shall certify the results of the last recount. The county board of election commissioners may upon its own motion conduct a recount of the returns from any or all precincts.
    1. For any recount of an election in which ballots are cast using a direct recording electronic voting machine with a voter-verified paper audit trail, the voter-verified paper audit trail shall serve as the official ballot to be recounted.
    2. The county board of election commissioners either may:
      1. Manually sum the total votes for each candidate involved in the recount that is printed on the voter-verified paper audit trail; or
      2. Count by hand the votes for each candidate involved in the recount as shown on the voter-verified paper audit trail.
    3. If the voter-verified paper audit trail is damaged or for some other reason is incapable of being used for a recount, the paper record produced by the machine for manual audit shall be the official ballot to be recounted.
    4. If the voting machine is exempt from the requirement to have a voter-verified paper audit trail and does not have one, the paper record produced by the machine for manual audit shall be the official ballot to be recounted.
    5. If the county board of election commissioners counts by hand the votes for each candidate involved in the recount, the county board of election commissioners may check the back of the ballot to see if the ballot has been initialed by an election official.
  2. For the recount of an election in which paper ballots are used, the county board of election commissioners shall open the package containing the ballots and recount the ballots in the manner prescribed by law for the count to be made by the election officials in the first instance, or if there is a determination by the county board of election commissioners that the voting machine or electronic vote tabulating device may be malfunctioning, it may recount the ballots by any manner prescribed by law.
  3. The result as found upon the recount, if it differs from that certified by the election officials, shall be included in the canvass as the vote for the particular precinct for which the recount was ordered and made.
  4. After the recount is completed, the ballots shall again be sealed and kept as provided by law.
    1. The costs for any recount must be borne by the candidate petitioning for it, and payment of the costs must be made to the county board of election commissioners prior to the recount in an amount determined by the county board of election commissioners.
    2. In the event that the outcome of the election is altered by recount, the costs of the recount shall be refunded to the candidate who petitioned for the recount.
  5. The costs of any recount shall be based on the actual costs incurred to conduct the recount, but in no instance shall the amount charged to conduct a recount exceed the rate of twenty-five cents (25¢) per vote cast in the precincts where the recount is requested or a total of two thousand five hundred dollars ($2,500) for the entire county, whichever is less.
  6. Within forty-eight (48) hours after a petition for recount is filed, the county board of election commissioners shall notify all candidates whose election could be affected by the outcome of the recount.

History. Acts 1969, No. 465, Art. 5, § 8; A.S.A. 1947, § 3-508; Acts 1993, No. 430, § 1; 1997, No. 451, § 30; 1999, No. 1023, § 1; 2001, No. 1475, § 4; 2003, No. 1038, § 1; 2003, No. 1165, § 5; 2005, No. 2233, § 7; 2009, No. 1480, § 31; 2019, No. 534, § 2.

Amendments. The 2009 amendment added (c)(2) through (c)(4).

The 2019 amendment added (c)(5).

Research References

U. Ark. Little Rock L. Rev.

Survey of Legislation, 2001 Arkansas General Assembly, Election Law, 24 U. Ark. Little Rock L. Rev. 465.

Survey of Legislation, 2003 Arkansas General Assembly, Election Law, Notice to Candidate Affected by Recount, 26 U. Ark. Little Rock L. Rev. 403.

Case Notes

Absence of Commissioner.

Absence of one commissioner during recount, or appointment of another individual to assist in recount, did not invalidate recount. Bonds v. Rogers, 219 Ark. 319, 241 S.W.2d 371 (1951) (decision under prior law).

Failure to Recount.

Where petitioners claimed that the board of election commissioners failed to act on their petition for a recount, the circuit court could not order the board to hold a recount but could order the board to either act on the petition or deny it. Henry v. Stuart, 251 Ark. 361, 473 S.W.2d 164 (1971).

Mandamus.

Where an election was held at which a tax levy was defeated, the circuit court had jurisdiction of a petition for mandamus filed by citizens and taxpayers within the time prescribed by law to require the election officials to recount the ballots on that question. Wooten v. Fielder, 194 Ark. 72, 105 S.W.2d 547 (1937) (decision under prior law).

Petition.

Letter which did not set forth the particulars of the claimed election irregularities was held insufficient as a petition for recount under this section. Cartwright v. Carney, 286 Ark. 121, 690 S.W.2d 716 (1985).

7-5-320. [Repealed.]

Publisher's Notes. This section, concerning elections to fill a vacancy when there is only one candidate, was repealed by Acts 2009, No. 1480, § 32. The section was derived from Acts 1997, No. 122, § 1.

7-5-321, 7-5-322. [Repealed.]

Publisher's Notes. These sections, concerning the procedure when the voter fails to provide proof of identity and voter identification cards, were repealed by Acts 2017, No. 633, § 8. The sections were derived from the following sources:

7-5-321. Acts 2013, No. 595, § 5.

7-5-322. Acts 2013, No. 595, § 5.

7-5-323. Procedure when voter fails to provide verification of registration.

If a ballot or absentee ballot is deemed a provisional ballot for failure to provide verification of registration under Arkansas Constitution, Amendment 51, § 13, the voter shall comply with the procedures under Arkansas Constitution, Amendment 51, § 13, for his or her vote to be counted.

History. Acts 2017, No. 633, § 9.

7-5-324. Voter verification card.

      1. The Secretary of State shall provide by rule for the issuance of a voter verification card that may be requested by an individual to be used to verify his or her voter registration under Arkansas Constitution, Amendment 51, § 13, when appearing to vote in person or by absentee ballot.
      2. The rules shall include without limitation:
        1. A requirement that the voter verification card include a photograph of the voter;
        2. Specification of the information to be included on the voter verification card;
        3. Provisions concerning the expiration of a voter verification card; and
        4. Provisions for the voter verification card to be provided by the county clerk of the county in which the voter is registered to vote.
    1. Providing for the issuance of a voter verification card under subdivision (a)(1)(A) of this section may include without limitation the purchase by the Secretary of State of cameras and other equipment necessary to generate a voter verification card in the office of the county clerk.
  1. A voter verification card shall be issued without the payment of a fee or charge to an individual who:
    1. Does not have another valid form of identification meeting the requirements of Arkansas Constitution, Amendment 51, § 13; and
      1. Is registered to vote; or
      2. Will be at least eighteen (18) years of age at the next election and has timely submitted a voter registration application.
    1. The Secretary of State or the county clerk shall not require or accept payment for a voter verification card issued for the sole purpose of voter verification.
    2. A person requesting a voter verification card for the sole purpose of voter verification shall sign an affidavit that he or she does not possess a valid form of identification meeting the requirements of Arkansas Constitution, Amendment 51, § 13.

History. Acts 2017, No. 633, § 9.

Subchapter 4 — Absentee Voting

Effective Dates. Acts 1969, No. 465, Art. 13, § 10: approved Apr. 17, 1969. Emergency clause provided: “It is hereby found and declared by the General Assembly of the State of Arkansas that the present election laws are ancient and outdated in part and have caused and are causing much confusion and controversy, that there are particular problem areas in the present law which need immediate legislation in order to resolve same, that elections are and will continue to be held and conducted in this atmosphere of confusion and controversy until these problem areas are resolved and this Act being necessary for the immediate preservation of the public peace, health and safety, an emergency is hereby declared to exist and this Act shall be in force and effect from and after its passage.”

Acts 1970 (1st Ex. Sess.), No. 6, § 3: Approved Mar. 13, 1970. Emergency clause provided: “It is hereby found and declared by the General Assembly of the State of Arkansas that the present election laws do not allow the use of voting machines for absentee balloting; that some counties of this state are not equipped for voting other than with voting machines; that prevention of such voting causes a great confusion; that an election may be held before ninety (90) days after the adjournment of this session and this act being necessary for the immediate preservation of the public peace, health and safety, an emergency is hereby declared to exist and this act shall be in force and effect from and after its passage.”

Acts 1970 (1st Ex. Sess.), No. 28, § 4: approved Mar. 13, 1970. Emergency clause provided: “It is hereby found and declared by the General Assembly of the State of Arkansas that the election laws provide a different closing time for casting absentee ballots than that for casting ballots at the polls on election day; that elections are, and will continue to be, held while this erroneous difference in time exists making the procedure for casting absentee ballots confusing and discriminating, and this act being necessary for the immediate preservation of the public peace, health and safety, an emergency is hereby declared to exist and this act shall be in force and effect from and after its passage.”

Acts 1977, No. 739, § 3: Mar. 24, 1977. Emergency clause provided: “It is hereby found and determined by the General Assembly that the provisions of this act are essential for administering the election laws of Arkansas. Therefore, an emergency is hereby declared to exist and this act being necessary for the immediate preservation of the public peace, health and safety, shall be in full force and effect from and after its passage and approval.”

Acts 2001, No. 1789, § 12: Emergency clause failed. Emergency clause provided: “It is found and determined by the General Assembly that Amendment 80 to the Arkansas Constitution becomes effective on July 1, 2001; that this implements the nonpartisan election of justices and judges as mandated by Amendment 80; and that to effectively implement Amendment 80, this act should become effective on July 1, 2001. Therefore, an emergency is declared to exist and this act being necessary for the immediate preservation of the public peace, health and safety shall become effective on July 1, 2001.”

Acts 2005, No. 2233, § 48: Jan. 1, 2006.

Acts 2011, No. 1185, § 21: Oct. 2, 2011.

Acts 2013, No. 595, § 7, provided: “This act shall become effective upon the later of the following:

“(1) January 1, 2014; or

“(2) The appropriation and availability of funding to the Secretary of State for the issuance of voter identification cards under Section 5 of this act.”

Identical Acts 2016 (3rd Ex. Sess.), Nos. 14 and 15, § 8: May 23, 2016. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that school districts that have chosen to hold their annual school election in November of this year are currently required to print separate ballots from the general election ballots at an extraordinary and unnecessary expense to taxpayers; that some voters in the annual school election this November will have to vote at a separate location for the general election and for the annual school election even though the elections are held on the same day which may decrease voter turnout and infringe upon the suffrage rights of those voters; and that this act is immediately necessary to ensure the voting rights of all citizens of Arkansas and to eliminate unnecessary election costs. Therefore, an emergency is declared to exist, and this act being immediately necessary for the preservation of the public peace, health, and safety shall become effective on: (1) The date of its approval by the Governor; (2) If the bill is neither approved nor vetoed by the Governor, the expiration of the period of time during which the Governor may veto the bill; or (3) If the bill is vetoed by the Governor and the veto is overridden, the date the last house overrides the veto.”

Acts 2017, No. 910, § 8: Jan. 1, 2018.

Research References

Am. Jur. 26 Am. Jur. 2d, Elections, § 333 et seq.

C.J.S. 29 C.J.S., Elections, § 345 et seq.

7-5-401. Duties of county clerk.

  1. The county clerk shall be the custodian of the absentee ballots and early voting ballots for any early voting conducted by the county clerk.
  2. The county clerk shall be furnished a suitable room at the county courthouse or other location designated for the purpose of exercising all the powers and duties concerning the application for, the issuance of, and the voting of absentee and early voting ballots required by law of the county clerk.
  3. In counties with more than one (1) county seat, the county clerk shall conduct:
    1. Absentee voting in the courthouse or other room provided by the county; and
    2. Early voting at the county clerk's designated early voting location in each county seat if the county clerk conducts early voting under § 7-5-418.

History. Acts 1969, No. 465, Art. 9, § 1; A.S.A. 1947, § 3-901; Acts 1995, No. 686, § 1; 1995, No. 948, § 1; 2005, No. 67, § 10; 2007, No. 556, § 2.

Amendments. The 2007 amendment added the (a) and (b) designations; deleted “at the courthouse” following “clerk” in (a); substituted “or other location designated for the purpose of exercising” for “and shall exercise” in (b); and added (c)

Case Notes

Mandamus.

Where the county clerk was unable to fully perform his statutory duty until the county election commissioners prepared and furnished him the requested absentee ballots, the county clerk had the legal right and standing to seek and secure a writ of mandamus to compel the commissioners to supply the absentee ballots required by law. Swiderski v. Goggins, 257 Ark. 228, 515 S.W.2d 644 (1974).

7-5-402. Voter qualification.

The following persons, if possessing the qualifications of electors, may cast an absentee ballot in any election:

  1. Any person who will be unavoidably absent from his or her voting place on the day of the election; and
  2. Any person who will be unable to attend the polls on election day because of illness or physical disability.

History. Acts 1969, No. 465, Art. 9, § 3; A.S.A. 1947, § 3-903; Acts 1993, No. 593, § 1; 1995, No. 686, § 2; 1995, No. 948, § 2.

Research References

Ark. L. Notes.

Cihak, 2007 Election Law Issues, Legislation and Reforms, 2007 Ark. L. Notes 1.

Case Notes

Illness or Physical Disability.

Where voter was visiting his sick father-in-law in a hospital but was not ill or physically disabled himself, he was not unavoidably absent because of illness or physical disability. Roach v. Kirk, 228 Ark. 958, 311 S.W.2d 525 (1958) (decision under prior law).

Reason for Absence.

An elector who gives as his reason for voting by absentee ballot the words “out of town” is in substantial compliance with the law as he would obviously be unavoidably absent from his voting precinct. Lehigh v. Wooley, 240 Ark. 976, 403 S.W.2d 79 (1966) (decision under prior law).

Evidence sufficient to show unavoidable absence warranting vote by absentee ballot. Simonetti v. Brick, 266 Ark. 551, 587 S.W.2d 16 (1979).

It is not essential that the voter give more than the primary reason he will be unavoidably absent from his voting place. Forrest v. Baker, 287 Ark. 239, 698 S.W.2d 497 (1985).

“Unable to get to poll,” “work,” “my age, I cannot get there,” “will not be able to get to the poll before 6:30,” “my husband doesn't get home from work in time,” and “sickness in the family” are all valid reasons given on the absentee ballot application, when there is no allegation that any of the applications are false or that any of the voters can get to their polling places. Forrest v. Baker, 287 Ark. 239, 698 S.W.2d 497 (1985).

The court properly invalidated the ballots of 495 absentee voters for failure to indicate on their absentee-ballot applications a statutory reason for voting absentee. Womack v. Foster, 340 Ark. 124, 8 S.W.3d 854 (2000).

7-5-403. Designated bearers, authorized agents, and administrators.

    1. A designated bearer may obtain absentee ballots for no more than two (2) voters per election.
      1. A designated bearer shall not have more than two (2) absentee ballots in his or her possession at any time.
      2. If the county clerk knows or reasonably suspects that a designated bearer has more than two (2) absentee ballots in his or her possession, the county clerk shall notify the prosecuting attorney.
      1. A designated bearer receiving an absentee ballot from the county clerk for a voter shall obtain the absentee ballot directly from the county clerk and deliver the absentee ballot directly to the voter.
      2. A designated bearer receiving an absentee ballot from a voter shall obtain the absentee ballot directly from the voter and deliver the absentee ballot directly to the county clerk.
      1. A designated bearer may deliver to the county clerk the absentee ballots for not more than two (2) voters.
      2. The designated bearer shall be named on the voter statement accompanying the absentee ballot.
    2. In order to obtain an absentee ballot from the county clerk:
      1. The designated bearer shall show a form of current photographic identification to the county clerk;
      2. The county clerk shall print the designated bearer's name and address beside the voter's name on a register;
      3. The designated bearer shall sign the register under oath indicating receipt of the voter's absentee ballot; and
      4. The county clerk shall indicate beside the designated bearer's name on the register that he or she obtained an absentee ballot for a voter.
    3. When a designated bearer delivers an absentee ballot to the county clerk:
      1. The designated bearer shall present current and valid photographic identification to the county clerk;
      2. The county clerk shall print the designated bearer's name and address beside the voter's name on a register;
      3. The designated bearer shall sign the register under oath indicating delivery of the voter's absentee ballot;
      4. The county clerk shall not accept an absentee ballot from a designated bearer who does not sign the register under oath; and
      5. The county clerk shall write or stamp the word “BEARER” and write the designated bearer's name and address on the voter's absentee ballot return envelope.
    4. When providing an absentee ballot to a designated bearer or receiving an absentee ballot from a designated bearer, the county clerk shall provide to the designated bearer a written notice informing the designated bearer that:
      1. A designated bearer may obtain ballots for no more than two (2) voters per election;
      2. A designated bearer shall at no time have more than two (2) ballots in his or her possession;
      3. A designated bearer shall not deliver ballots to the county clerk for more than two (2) voters per election; and
      4. Possession of an absentee ballot with the intent to defraud a voter or an election official is a felony under § 7-1-104.
    5. The county clerk shall post a notice of the rules concerning designated bearers and authorized agents in each county clerk's office where absentee ballots are distributed or returned.
    1. An authorized agent may deliver applications for absentee ballots to the county clerk and obtain absentee ballots from the county clerk for not more than two (2) voters per election who cannot cast a ballot at the appropriate polling place on election day because the voter is a patient in a hospital or long-term care or residential care facility licensed by the state.
    2. At no time shall an authorized agent have more than two (2) absentee ballots in his or her possession.
      1. An authorized agent receiving an absentee ballot from the county clerk for a voter shall deliver the absentee ballot directly to the voter.
      2. An authorized agent receiving an absentee ballot from a voter shall deliver the absentee ballot directly to the county clerk.
      1. In order for an authorized agent to obtain a ballot from the county clerk, the authorized agent shall submit to the county clerk an affidavit from the administrative head of a hospital or long-term care or residential care facility licensed by the state that the applicant is a patient of the hospital or long-term care or residential care facility licensed by the state and is thereby unable to vote on the election day at his or her regular polling site.
      2. A copy of the affidavit shall be retained by the county clerk as an attachment to the application for an absentee ballot.
    3. In order to obtain an absentee ballot from the county clerk, the:
      1. Authorized agent shall present current photographic identification to the clerk;
      2. Clerk shall print the authorized agent's name and address beside the voter's name on a register; and
      3. Authorized agent shall sign the register under oath indicating receipt of the voter's ballot.
    4. When an authorized agent delivers an absentee ballot to the county clerk, the:
      1. Authorized agent shall show some form of current photographic identification to the clerk;
      2. Clerk shall print the authorized agent's name and address beside the voter's name on a register;
      3. Authorized agent shall sign the register under oath indicating delivery of the voter's ballot; and
      4. The county clerk shall not accept an absentee ballot from an authorized agent who does not sign the register under oath.
    5. The county clerk shall write or stamp the words “AUTHORIZED AGENT” and the agent's name and address on the voter's absentee ballot return envelope.
    6. The county clerk shall post a notice of the rules concerning designated bearers and authorized agents in each county clerk's office where absentee ballots are distributed or returned.
    1. The county clerk shall keep a register of designated bearers and authorized agents.
    2. The designated bearer and authorized agent register shall contain the following oath on each page: “I ACKNOWLEDGE THAT ARKANSAS LAW PROHIBITS DESIGNATED BEARERS AND AUTHORIZED AGENTS FROM RECEIVING OR RETURNING MORE THAN TWO (2) ABSENTEE BALLOTS PER ELECTION. I HAVE COMPLIED WITH THE ARKANSAS LAW. I UNDERSTAND THAT IF I PROVIDE FALSE INFORMATION ON THIS FORM, I MAY BE GUILTY OF PERJURY AND SUBJECT TO A FINE OF UP TO TEN THOUSAND DOLLARS ($10,000) OR IMPRISONMENT FOR UP TO TEN (10) YEARS, OR BOTH, UNDER FEDERAL AND STATE LAWS.”
      1. An administrator may deliver to the county clerk an application for an absentee ballot for any voter who is a patient of a long-term care or residential care facility licensed by the state and who authorizes the administrator to obtain an absentee ballot on his or her behalf.
      2. The absentee ballot application shall identify the administrator by name as the administrator of the facility where the voter resides.
    1. Upon presentation of photographic identification to the county clerk, an administrator may receive absentee ballots for as many qualified residents of the facility as:
      1. Apply for absentee ballots; and
      2. Identify the administrator in the voter's absentee ballot application.
      1. An administrator may deliver the absentee ballot to the county clerk for any voter who names the administrator on his or her application and voter statement.
      2. Absentee ballots may be delivered to the county clerk in person by the administrator or by mail.
    2. Before obtaining an absentee ballot, an administrator shall submit to the county clerk an affidavit, signed and dated by the administrator, stating:
      1. That he or she is the administrative head of a long-term care or residential care facility licensed by the state;
      2. The name and address of the facility;
      3. That he or she has been authorized by the voters who reside in his or her facility to obtain from the county clerk and return to the county clerk absentee ballots on their behalf;
      4. That each of the voters for whom the administrator seeks to obtain an absentee ballot has named the administrator on his or her application; and
      5. That the administrator understands that Arkansas law requires that the administrator assist the voter by marking or casting a ballot on behalf of the voter without any comment or interpretation.
    3. The county clerk shall attach a copy of the administrator's affidavit to each application for an absentee ballot delivered by the administrator to the county clerk.
    4. When the ballots are returned by the administrator in person or by mail, the county clerk shall write or stamp the word “ADMINISTRATOR” and write the administrator's name on the voter's absentee ballot return envelope.
  1. Any person who knowingly makes a false statement on an affidavit required by this section shall be guilty of perjury and subject to a fine of up to ten thousand dollars ($10,000) or imprisonment of up to ten (10) years.

History. Acts 2007, No. 543, § 2; 2009, No. 250, §§ 15-17; 2009, No. 959, §§ 16, 22; 2011, No. 1043, § 1; 2013, No. 1424, § 2; 2019, No. 965, § 2.

A.C.R.C. Notes. This section was formerly codified as § 7-5-419.

Publisher's Notes. Former § 7-5-403 has been renumbered by Acts 2009, No. 959, § 22 as § 7-5-404.

Former § 7-5-419 has been renumbered by Acts 2009, No. 959, § 22 as § 7-5-403.

Amendments. The 2009 amendment by No. 250 inserted “designated” preceding “bearer” in (a)(4)(B) and (a)(5)(B); inserted “county” preceding “clerk” throughout (a)(5) and (a)(6); inserted “absentee” preceding “ballot” in (a)(5)(C) and (a)(6)(C); and inserted “and valid” in (a)(6)(A).

The 2009 amendment by No. 959 deleted “deliver applications for absentee ballots to the county clerk and” following “bearer may” in (a)(1); deleted “On the day of an election” at the beginning of (b)(1), and made related changes; and inserted “by the administrator” in (d)(3)(B).

The 2011 amendment added (a)(2)(B), (a)(5)(D), (a)(6)(D), and (a)(7).

The 2013 amendment by No. 1424, in (a)(1), deleted “from the county clerk” following “ballots” and inserted “per election” at the end; inserted “obtain the absentee ballot directly from the county clerk and” or similar language in (a)(3)(A) and (a)(3)(B); substituted “When a designated bearer delivers” for “Upon delivering” or similar language in (a)(6) and (b)(6); inserted “per election” in (a)(7)(A), (a)(7)(C) and (b)(1); added (a)(6)(E), (a)(8), (b)(6)(D), (b)(7), (b)(8), (d)(1)(B), (d)(2)(B), (d)(4)(D), (d)(5) and (d)(6); and rewrote (c)(2), (d)(1)(A), (d)(2) and (d)(4).

The 2019 amendment added (d)(4)(E).

7-5-404. Applications for ballots — Definition.

      1. Applications for absentee ballots must be signed by the applicant and verified by the county clerk by checking the voter's name, address, date of birth, and signature from the registration records unless the application is sent by electronic means.
      2. If the application is sent by electronic means, the application must bear a verifiable facsimile of the applicant's signature.
      1. If the signatures on the absentee ballot application and the voter registration record are not similar, the county clerk shall not provide an absentee ballot to the voter.
      2. If the absentee ballot request is rejected under subdivision (a)(2)(A) of this section, the county clerk shall:
        1. Provide notice promptly to the voter of the rejection;
        2. Allow the voter to resubmit the request; and
        3. Electronically record the rejection in the permanent system maintained by the county clerk.
      3. The notice to the voter under subdivision (a)(2)(B) of this section shall be made by:
        1. The most efficient means available, including without limitation by telephone or email; and
        2. Written notice sent by first-class mail to the address where the voter is registered to vote.
    1. Delivery of the request for an absentee ballot to the county clerk may be made in one (1) of the following ways, and in no other manner:
      1. For applications submitted using the form prescribed in § 7-5-405:
        1. In person at the office of the county clerk of the county of residence of the voter no later than the time the county clerk's office regularly closes on the day before election day;
        2. Applications by mail must be received in the office of the county clerk of the county of residence of the voter not later than seven (7) days before the election for which the application was made;
        3. A designated bearer may deliver the completed application to the office of the county clerk of the county of residence of the applicant not later than the time the county clerk's office regularly closes on the day before the day of the election;
        4. A person declared as the authorized agent of the applicant may deliver the application to the office of the county clerk of the county of residence of the applicant not later than 1:30 p.m. on the day of the election;
        5. An administrator may deliver the application in person at the office of the county clerk of the county of residence of the voter no later than the time the county clerk's office regularly closes on the day before election day; or
          1. Delivery by electronic means to the county clerk's office of the county of residence of the voter not later than seven (7) days before the election for which the application was made.
          2. The completed application sent by electronic means will be accepted only upon verification of the facsimile signature of the applicant by the county clerk.
          3. Once verified as a reasonable likeness of the voter's signature, the signature appearing on a copy of an application sent by electronic means shall be presumed to be authentic until proven otherwise; or
      2. If the applicant does not use the form prescribed in § 7-5-405, he or she may make an application for an absentee ballot as follows:
        1. A letter or postcard must be received in the office of the county clerk not later than seven (7) days before the date of the election. The letter or postcard shall contain information sufficient for the county board of election commissioners and the county clerk to accept the letter or postcard in lieu of the application form; or
        2. An applicant may transmit a written request for an absentee ballot by electronic means that shall contain the voter's signature and other information sufficient for acceptance in lieu of the application form.
    1. Any person eligible to vote by absentee ballot may request the county clerk to mail to an address within the continental United States an application for an absentee ballot.
      1. For those persons voting by absentee ballot who reside outside the county in which they are registered to vote, the application shall remain in effect for one (1) year unless revoked by the voter, and the county clerk shall thereafter automatically mail no later than twenty-five (25) days before each election an absentee ballot for each election.
        1. For those persons voting by absentee ballot who reside within the county in which they are registered to vote, the application shall be valid for only one (1) election cycle.
        2. The election cycle shall include any one (1) election and the corresponding runoff election.
        1. For a voter residing in a long-term care or residential care facility licensed by the state the application shall remain in effect for one (1) calendar year unless withdrawn by the voter.
        2. The county clerk automatically shall mail no later than twenty-five (25) days before each election an absentee ballot for each election unless, before mailing, the administrator of the facility has presented an absentee ballot request from the voter authorizing the administrator to receive the absentee ballot on behalf of the voter for that election.
        1. For a voter with a disability as defined in § 7-5-311, the application shall remain in effect for one (1) calendar year unless withdrawn by the voter.
        2. The county clerk automatically shall mail no later than twenty-five (25) days before each election an absentee ballot for each election.
  1. The following may request an absentee ballot for one (1) or more elections, up to and including the next regularly scheduled general election for federal office, including without limitation any runoff elections that may occur as a result of the outcome of the general elections, by submitting one (1) application during that period of time in the manner provided under subsection (a) of this section:
    1. A citizen of the United States temporarily residing outside the territorial limits of the United States;
    2. A member of the uniformed services of the United States while in active duty or service, including his or her spouse or dependent, who by reason of active duty or service of the member is absent from the place of residence where the member, spouse, or dependent is otherwise qualified to vote;
    3. A member of the United States Merchant Marine while in active duty or service, including his or her spouse or dependent, who by reason of the active duty or service of the member is absent from the place of residence where the member, spouse, or dependent is otherwise qualified to vote; and
    4. A member of the Arkansas National Guard while in state active duty or service, including his or her spouse or dependent, who by reason of state active duty or service of the member is absent from the place of residence where the member, spouse, or dependent is otherwise qualified to vote.
  2. As used in this section, “electronic means” means a scanned image sent by:
    1. Electronic mail; or
    2. Facsimile machine.

History. Acts 1969, No. 465, Art. 9, § 4; 1981, No. 685, § 1; 1983, No. 430, § 1; 1985, No. 1019, § 1; A.S.A. 1947, § 3-904; Acts 1987, No. 248, § 9; 1987, No. 843, § 1; 1991, No. 863, § 1; 1993, No. 303, § 1; 1993, No. 1201, § 1; 1995, No. 686, § 3; 1995, No. 948, § 3; 1997, No. 1092, § 1; 1999, No. 1111, § 1; 1999, No. 1538, §§ 2, 3; 2003, No. 994, § 8; 2005, No. 67, § 11; 2007, No. 543, § 1; 2007, No. 556, § 3; 2009, No. 250, § 4; 2009, No. 959, § 16; 2011, No. 1188, § 1; 2013, No. 1424, § 3; 2019, No. 462, § 7.

A.C.R.C. Notes. This section was formerly codified as § 7-5-403.

Publisher's Notes. Former § 7-5-404, concerning voting by mail, was repealed by identical Acts 1995, Nos. 686 and 948, § 4. The section was derived from Acts 1969, No. 465, Art. 9, § 16; 1970 (1st Ex. Sess.), No. 6, § 1; A.S.A. 1947, § 3-916.

Former § 7-5-403 has been renumbered by Acts 2009, No. 959, § 16 as § 7-5-404.

Amendments. The 2009 amendment by No. 250 redesignated the last sentence of (b)(2)(B) as (b)(2)(B)(ii), redesignated the remainder of (b)(2)(B) accordingly, and made minor stylistic changes.

The 2009 amendment by No. 959 inserted (a)(2)(A)(v) and redesignated the remaining subdivision accordingly and made a related change; and made a minor stylistic change in (b)(2)(A).

The 2011 amendment substituted “by electronic means” for “by facsimile machine transmitted over telephone lines” in (a)(1); substituted “by electronic means” for “by facsimile machine transmission” in (a)(2)(A)(vi) (a) ; substituted “application sent by electronic means” for “facsimile-transmitted application” in (a)(2)(A)(vi) (b) ; substituted “a copy of an application sent by electronic means” for “a facsimile copy of an application” in (a)(2)(A)(vi) (c) ; substituted “by electronic means” for “over the telephone lines” in (a)(2)(B)(ii); rewrote (c); and added (d).

The 2013 amendment redesignated former (a)(1) as present (a)(1)(A) and (a)(1)(B); redesignated former (a)(2) as (a)(3) and inserted (a)(2); substituted “unless the application is sent by electronic means” for “or, if” in (a)(1)(A); inserted “If the application is” in (a)(1)(B); substituted “For” for “Except for persons of long term care or residential facilities licensed by the state or other persons who are voters with disabilities as defined in § 7-5-311(d), for” in (b)(2)(B)(i); added (b)(2)(C) and (b)(2)(D); and, in (c), deleted “two (2)” following “the next” and substituted “election” for “elections”.

The 2019 amendment added (c)(4).

Research References

Ark. L. Notes.

Cihak, 2007 Election Law Issues, Legislation and Reforms, 2007 Ark. L. Notes 1.

Case Notes

Date of Application.

Failure of clerk to place on application the date of the application does not make absentee votes invalid. Logan v. Moody, 219 Ark. 697, 244 S.W.2d 499 (1951) (decision under prior law).

Delivery Method.

To utilize the statutory provision for delivery of an absentee-ballot application by an authorized agent, the voter must be in a hospital or nursing home. Womack v. Foster, 340 Ark. 124, 8 S.W.3d 854 (2000).

Strict Compliance Required.

The provisions of law relating to the duties of voters in applying for, and casting, absentee ballots, must be strictly complied with. Bingamin v. City of Eureka Springs, 241 Ark. 477, 408 S.W.2d 607 (1966) (decision under prior law).

Voter's Signature.

The application for absentee ballot must be signed by the voter. Phillips v. Melton, 222 Ark. 162, 257 S.W.2d 931 (1953) (decision under prior law).

Cited: Martin v. Hefley, 259 Ark. 484, 533 S.W.2d 521 (1976).

7-5-405. Application form.

    1. Applications for absentee ballots may be made on a form or forms prescribed by the Secretary of State and furnished by the county clerk at least sixty (60) days before the election.
    2. The form or forms shall contain the following information:
      1. The following statement:
      2. A statement in which the voter must indicate that he or she is requesting an absentee ballot because he or she will be:
        1. Unavoidably absent from the polling site on election day;
        2. Unable to attend the polls on election day because of illness or physical disability; or
        3. Unable to attend the polls on election day because of residence in a long-term care or residential facility licensed by the state;
      3. A statement by the voter indicating whether he or she resides outside the county;
      4. A statement indicating whether the voter is a United States citizen residing outside the territorial limits of the United States;
      5. A statement indicating whether the voter is in active service as a member of the armed services of the United States;
      6. Mailing information for the ballot or the name and signature of a designated bearer, an administrator, or an authorized agent;
      7. The date, the voter's printed or typed name, voting residence address, date of birth, and the voter's signature attesting to the correctness of the information provided under penalty of perjury; and
      8. The election in which the voter wishes to cast an absentee ballot.
      1. The form or forms shall contain a portion to include a sworn statement that may be completed by a voter stating that the voter is registered to vote and that he or she is the person who is registered.
      2. The sworn statement portion of the form or forms under subdivision (a)(3)(A) of this section is not required to be notarized but shall be executed by the voter under penalty of perjury.
  1. The Secretary of State may prescribe separate absentee ballot application forms for:
      1. Persons who reside within the county in which they are registered to vote and will be unavoidably absent from the polls on the date of the election.
      2. The application shall be valid for one (1) election cycle, which includes any one (1) election and the corresponding runoff election;
      1. Persons whose application would be valid for one (1) calendar year.
      2. This includes the following:
        1. Persons who reside outside the county in which they are registered to vote;
        2. Persons in long-term care or residential facilities licensed by the state; and
        3. Voters with disabilities; and
    1. Persons whose applications would be valid through the next regularly scheduled general election for federal office, including any resulting runoff elections.
  2. Any person may distribute blank applications for absentee ballots.

“IF YOU PROVIDE FALSE INFORMATION ON THIS FORM, YOU MAY BE GUILTY OF PERJURY AND SUBJECT TO A FINE OF UP TO $10,000 OR IMPRISONMENT FOR UP TO 10 YEARS.”;

History. Acts 1969, No. 465, Art. 9, § 5; 1971, No. 184, § 2; 1983, No. 430, § 2; 1985, No. 1019, § 2; A.S.A. 1947, § 3-905; Acts 1987, No. 843, § 2; 1989, No. 912, § 7; 1993, No. 303, § 2; 1993, No. 1201, § 2; 1995, No. 686, § 5; 1995, No. 948, § 5; 1997, No. 1092, § 2; 1999, No. 918, § 1; 2001, No. 1789, § 9; 2003, No. 1202, § 1; 2003, No. 1275, § 1; 2005, No. 67, § 12; 2007, No. 543, § 3; 2007, No. 556, § 4; 2009, No. 250, §§ 5, 6; 2011, No. 1188, § 2; 2013, No. 1424, § 4; 2017, No. 633, § 10.

Amendments. The 2009 amendment substituted “armed” for “uniformed” in (a)(2)(E); and substituted “an absentee ballot” for “a ballot” in (a)(2)(H).

The 2011 amendment deleted former (b)(3)(B) and redesignated the remaining subdivision as (b)(3).

The 2013 amendment, in (b)(3), deleted “two (2)” following “the next” and substituted “election” for “elections”.

The 2017 amendment added (a)(3).

Research References

U. Ark. Little Rock L. Rev.

Survey of Legislation, 2001 Arkansas General Assembly, Election Law, 24 U. Ark. Little Rock L. Rev. 465.

Case Notes

Delivery Method.

The plain language of both the statute (see now § 7-5-409) and the absentee-ballot application form indicate that an affidavit verifying the voter's medical status is required when an absentee voter authorizes an agent to deliver his or her application to the county clerk, and is not required if the absentee voter chooses any of the other four statutory methods for delivering the absentee-ballot application. Womack v. Foster, 340 Ark. 124, 8 S.W.3d 854 (2000).

Reason for Absence Required.

Where application for absentee ballot was left blank in the space for showing the reason for being absent from the polls, the applicant was not qualified to vote an absentee ballot since under the law the applicant must first show that he would be “unavoidably absent” on the date of election. Roach v. Kirk, 228 Ark. 958, 311 S.W.2d 525 (1958) (decision under prior law).

Strict Compliance Required.

The provisions of law relating to the duties of voters in applying for, and casting, absentee ballots, must be strictly complied with. Bingamin v. City of Eureka Springs, 241 Ark. 477, 408 S.W.2d 607 (1966) (decision under prior law).

Voter's Signature.

The application for absentee ballot must be signed by the voter. Phillips v. Melton, 222 Ark. 162, 257 S.W.2d 931 (1953) (decision under prior law).

Cited: Forrest v. Baker, 287 Ark. 239, 698 S.W.2d 497 (1985).

7-5-406. Members of uniformed services and other citizens residing outside the United States.

  1. Any qualified elector of this state in any of the following categories who is absent from the place of his or her voting residence may make a request for an absentee ballot by submission of a federal postal card application as provided for in the Uniformed and Overseas Citizens Absentee Voting Act and may vote without prior registration by regular absentee ballot or by Federal Write-in Absentee Ballot in any election held in his or her election precinct if he or she is otherwise eligible to vote in that election:
    1. Members of the uniformed services of the United States while in active duty or service, and their spouses and dependents who, by reason of the active duty or service of the member, are absent from the place of residence where the spouses or dependents are otherwise qualified to vote;
    2. Members of the United States Merchant Marine while in active duty or service and their spouses and dependents who, by reason of the active duty or service of the member, are absent from the place of residence where the spouses or dependents are otherwise qualified to vote;
    3. Citizens of the United States residing or temporarily outside the territorial limits of the United States and the District of Columbia; and
    4. Members of the Arkansas National Guard while in state active duty or service, and their spouses and dependents who, by reason of the state active duty or service of the member, are absent from the place of residence where the spouses or dependents are otherwise qualified to vote.
    1. The ballot or ballots shall be transmitted according to state laws or rules and federal laws, rules, and regulations.
    2. The Secretary of State shall establish and transmit to each county clerk and each county board of election commissioners procedures in accordance with state and federal law that:
      1. Allow absent uniformed services voters and absent overseas voters to request, either by mail or electronically, voter registration applications and absentee ballot applications for all elections in the state;
      2. Allow county clerks to send by mail or electronically, in accordance with the preferred method of transmission designated by the absent uniformed services voter or absent overseas voter, voter registration applications and absentee ballot applications;
      3. Allow the absent uniformed services voter or absent overseas voter to designate whether the voter prefers that the voter registration application or absentee ballot application be transmitted by mail or electronically;
      4. Allow the transmission by mail and, to the extent funding is available, electronically of blank absentee ballots to absent uniformed services voters and absent overseas voters for all elections in the state in a manner that expedites the transmission of absentee ballots;
      5. Allow county clerks and county boards of election commissioners to accept and process marked absentee ballots of absent uniformed services voters and absent overseas voters;
      6. Ensure, to the extent practicable, the protection of the security and integrity of the voter registration and absentee ballot request process and the privacy of the identity and other personal data of an absent uniformed services voter or absent overseas voter who requests or is sent a voter registration application, absentee ballot application, or absentee ballot throughout the process of making a request or being sent an application or ballot; and
      7. Establish, to the extent funding is available, a free access system by which an absent uniformed services voter or absent overseas voter may determine whether the absentee ballot of the absent uniformed services voter or absent overseas voter has been received by the appropriate election official.
    3. The Secretary of State shall:
      1. Provide each county clerk and each county board of election commissioners with written copies of the procedures under subdivision (b)(2) of this section by February 1 of each even-numbered year; and
      2. Promptly notify each county clerk and each county board of election commissioners of changes in relevant laws, rules, federal regulations, or procedures.
    4. Notwithstanding any other provisions in this title, if selected by any grantor, this state or any county in this state may participate in a Federal Voting Assistance Program project which allows members of the uniformed services and voters overseas to register to vote and to vote in elections electronically, according to state laws and rules, and federal laws, rules, and regulations, if funds are available.
      1. Except as provided in subdivision (c)(1)(B) of this section, for the qualified electors in the categories named in subsection (a) of this section who are temporarily outside the territorial limits of the United States, the county board of election commissioners shall prepare a special absentee ballot for each preferential primary and general election to be sent to the voter in addition to the regular absentee ballot.
      2. The county board of election commissioners shall not prepare a special absentee ballot for a nonpartisan judicial election.
      1. The special absentee ballot shall contain a list of all offices contested by three (3) or more candidates and the candidates qualifying for the election in each office.
      2. The special absentee ballot shall permit the elector to vote in the general primary election or in a general runoff election by indicating his or her order of preference for each candidate for each office.
        1. To indicate his or her order of preference for each candidate for each office, the voter shall put the number one (1) next to the name of the candidate who is the voter's first choice, the number two (2) for the voter's second choice, and so forth, so that, in consecutive numerical order, a number indicating the voter's preference is written by the voter next to the candidate's name on the ballot.
        2. However, the voter shall not be required to indicate his or her preference for more than one (1) candidate on the ballot if he or she chooses.
    1. The special absentee ballot shall be marked as a “special runoff ballot”.
    2. Instructions shall be sent with the special absentee ballot to the voter explaining the special runoff voting process.

History. Acts 1969, No. 465, Art. 9, §§ 5, 7, 8; 1971, No. 184, § 2; 1971, No. 261, §§ 25, 26; 1977, No. 739, § 1; 1983, No. 430, §§ 2, 4; 1985, No. 1019, § 2; A.S.A. 1947, §§ 3-905, 3-907, 3-908; Acts 1997, No. 1092, § 3; 2001, No. 1180, § 1; 2003, No. 107, § 1; 2003, No. 749, § 1; 2003, No. 994, § 9; 2005, No. 751, § 1; 2007, No. 233, § 1; 2007, No. 261, § 1; 2007, No. 556, §§ 5, 6; 2009, No. 250, §§ 7, 8; 2009, No. 659, § 6; 2009, No. 703, § 1; 2011, No. 1188, § 3; 2019, No. 315, §§ 417-419; 2019, No. 462, § 8.

Amendments. The 2007 amendment by No. 233 substituted “contested by three (3) or more candidates” for “being contested” in (c)(2)(A).

The 2007 amendment by No. 261 substituted “temporarily residing outside the territorial limits of the United States” for “active duty military personnel stationed overseas” in (c)(1).

The 2007 amendment by No. 556 substituted “and other” for “and merchant marine and” in the section heading; in (a)(1), deleted “while” following “States” and deleted “and their spouses and dependents” following “service”; deleted former (a)(2) and redesignated former (a)(3) as present (a)(2); deleted “and the District of Columbia and their spouses and dependents when residing with or accompanying them” following the second occurrence of “States” in (a)(2); and made a related change.

The 2009 amendment by No. 250 substituted “armed” for “uniformed” in (a)(1); and deleted “qualified” preceding “voter” in (c)(4).

The 2009 amendment by No. 659 substituted “and may vote without prior registration by regular absentee ballot or by federal Write-in Absentee Ballot in any election” for “or may use the federal Write-in Absentee ballot and may vote by absentee ballot, without registering, in any primary, special, runoff or general election” in the introductory language of (a); inserted “and their spouses and dependents who, by reason of the active duty or service of the member, are absent from the place of residence where the spouse or dependent is otherwise qualified to vote” in (a)(1); inserted (a)(2) and redesignated the subsequent subdivision accordingly; substituted “residing or temporarily outside” for “temporarily residing outside” in (a)(3); and made related and minor stylistic changes.

The 2009 amendment by No. 703 deleted “residing” following “citizens” in the introductory language of (c); inserted (c)(1)(B); inserted “Except as provided in subdivision (c)(1)(B) of this section” in (c)(1)(A); and made related changes.

The 2011 amendment substituted “state and federal laws, rules, and regulations” for “federal regulations” in the introductory language of (b)(1) and in (b)(4); rewrote the introductory language of (b)(2) and inserted (b)(2)(A) through (b)(2)(G) and (b)(3); in (b)(4), substituted “any grantor” for “the United States Department of Defense” and substituted “a Federal Voting Assistance Program project” for “the Federal Voting Assistance Program's pilot project”; and substituted “special” for “instant” in (c)(4).

The 2019 amendment by No. 315 inserted “laws or rules” in (b)(1); inserted “federal” in (b)(3)(B); and inserted “laws and rules” following “state” in (b)(4).

The 2019 amendment by No. 462 added (a)(4).

U.S. Code. The Uniformed and Overseas Citizen Absentee Voting Act, referred to in (a), is codified at 52 U.S.C. § 20301 et seq.

Research References

Ark. L. Notes.

Cihak, 2007 Election Law Issues, Legislation and Reforms, 2007 Ark. L. Notes 1.

U. Ark. Little Rock L. Rev.

Survey of Legislation, 2003 Arkansas General Assembly, Election Law, Help America Vote Act, 26 U. Ark. Little Rock L. Rev. 398.

Survey of Legislation, 2005 Arkansas General Assembly, Election Law, 28 U. Ark. Little Rock L. Rev. 351.

Case Notes

Reason for Absence.

Failure of elector to state in his application for absentee ballot the reason for his being absent disqualified him from voting by absentee ballot. Roach v. Kirk, 228 Ark. 958, 311 S.W.2d 525 (1958) (decision under prior law).

Strict Compliance Required.

The provisions of law relating to the duties of voters in applying for, and casting, absentee ballots, must be strictly complied with. Bingamin v. City of Eureka Springs, 241 Ark. 477, 408 S.W.2d 607 (1966) (decision under prior law).

Cited: Forrest v. Baker, 287 Ark. 239, 698 S.W.2d 497 (1985).

7-5-407. Preparation and delivery of ballots.

    1. The county board of election commissioners shall prepare official absentee ballots and deliver them to the county clerk for mailing to all qualified applicants as soon as practicable but not later than forty-seven (47) days before a preferential primary election, general election, school election, nonpartisan general election, nonpartisan runoff election, or special election.
    2. Upon the receipt of the absentee ballots, the county clerk shall begin delivering ballots to absentee voters as soon as practicable and, no later than forty-six (46) days before the applicable election, shall deliver ballots to those absentee voters who made timely application under:
      1. Section 7-5-406; or
      2. The Uniformed and Overseas Citizens Absentee Voting Act, 52 U.S.C. § 20301 et seq., as existing on January 1, 2011.
  1. The county board of election commissioners shall prepare official absentee ballots and deliver them to the county clerk for mailing to any qualified applicant as soon as practicable but in any event not later than ten (10) days before all other elections not included in subsection (a) of this section.

History. Acts 1969, No. 465, Art. 9, § 2; 1971, No. 261, § 28; A.S.A. 1947, § 3-902; Acts 1997, No. 1092, § 4; 1999, No. 649, § 1; 2001, No. 1789, § 10; 2007, No. 1049, § 17; 2011, No. 1185, § 7; 2013, No. 1110, § 5.

Amendments. The 2011 amendment substituted “forty-seven (47)” for “thirty-five (35)” in (a)(1); and inserted (a)(2).

The 2013 amendment, in (a)(1), deleted “in any event” following “practicable but” once, “judicial” following “nonpartisan” twice, and “any” following “runoff election, or” once.

Research References

U. Ark. Little Rock L. Rev.

Survey of Legislation, 2001 Arkansas General Assembly, Election Law, 24 U. Ark. Little Rock L. Rev. 465.

Case Notes

Mandamus.

Where the county clerk was unable to fully perform his statutory duty until the county election commissioners prepared and furnished him the requested absentee ballots, the county clerk had the legal right and standing to seek and secure a writ of mandamus to compel the commissioners to supply the absentee ballots required by law. Swiderski v. Goggins, 257 Ark. 228, 515 S.W.2d 644 (1974).

Cited: Swanberg v. Tart, 300 Ark. 304, 778 S.W.2d 931 (1989); Donn v. McCuen, 303 Ark. 415, 797 S.W.2d 455 (1990); Lewis v. West, 318 Ark. 237, 884 S.W.2d 604 (1994); Mertz v. States, 318 Ark. 239, 884 S.W.2d 264 (1994).

7-5-408. List of applications — Preparation, preservation, and inspection.

  1. The county clerk shall make a list of the applications for absentee ballots as the applications are received and shall keep the list of applications and retain the application forms after the election in which they are to be used for the same period as is required for retaining ballots.
  2. When each absentee ballot is returned to the county clerk, the clerk shall indicate on the list of applications that the absentee ballot was returned.
  3. The list and applications shall be available to public inspection during regular business hours from sixty (60) days prior to the election until they are destroyed.
    1. The county clerk shall record in the electronic voter registration system the date the county clerk receives the voter's:
      1. Absentee ballot application; and
      2. Absentee ballot.
    2. Except as provided in subdivision (d)(3) of this section, during the sixty (60) days before election day, the county clerk shall record in the electronic voter registration system:
      1. Within one (1) business day after the receipt of the voter's absentee ballot, the date the county clerk received the voter's absentee ballot; and
      2. Within two (2) business days after receipt of the voter's absentee ballot application, the date the county clerk received the absentee ballot application.
    3. If a voter's absentee ballot is received by the county clerk on election day, the county clerk immediately shall record the date the absentee ballot was received.
    4. The county clerk shall not provide an absentee ballot to an election official for counting unless the ballot has been marked as received in the electronic voter registration system.

History. Acts 1969, No. 465, Art. 9, § 6; 1983, No. 430, § 3; 1985, No. 567, § 5; 1985, No. 568, § 5; A.S.A. 1947, § 3-906; Acts 1997, No. 1092, § 5; 2013, No. 1424, § 5.

Amendments. The 2013 amendment inserted (b) and (d) and redesignated the remaining subsections accordingly.

Research References

Ark. L. Rev.

Watkins, Access to Public Records under the Arkansas Freedom of Information Act, 37 Ark. L. Rev. 741.

Case Notes

Public Records.

Lists of applications for absentee ballots were public records subject to inspection and copying. Gaspard v. Whorton, 239 Ark. 849, 394 S.W.2d 621 (1965) (decision under prior law).

7-5-409. Materials furnished to qualified voters.

      1. The county clerk must satisfy himself or herself that the applicant for an absentee ballot is a qualified registered elector in the ward, precinct, or township in which he or she claims to be a resident or that the applicant does not require prior registration under § 7-5-406.
      2. The county clerk shall verify that the application has been properly signed by the applicant and, if necessary, the designated bearer, administrator, or authorized agent. If the application is not properly signed, the application shall be rejected by the county clerk.
      3. The county clerk shall notify the applicant of the reason for the rejection.
    1. If the county clerk is unable to contact the applicant to cure the deficiency, the county clerk shall forward the application with the reason for the rejection to the county board of election commissioners. The county board of election commissioners shall determine whether the applicant is a qualified elector.
  1. If the applicant is registered or is otherwise eligible to vote absentee, the county clerk, prior to mailing or delivering the ballot, shall detach the ballot stub and deposit the ballot stub into a sealed box designated as “Absentee Stub Box” and deliver to the applicant or to the applicant's designated bearer, authorized agent, or administrator for delivery to the applicant the following materials:
    1. An official absentee ballot for each election named in the application;
    2. Instructions for voting and returning the official absentee ballot to the county clerk;
    3. An official absentee ballot secrecy envelope on which there shall be written or printed the words “Ballot Only”;
        1. A voter statement.
        2. The voter statement shall include the following heading in bold capitalized letters: “THIS VOTER STATEMENT MUST BE COMPLETED AND RETURNED IN THE MAILING ENVELOPE OR THE ABSENTEE BALLOT WILL NOT BE COUNTED.”
        3. The voter statement shall include the following statement in bold capitalized letters at the bottom of the page: “THE INFORMATION I HAVE PROVIDED IS TRUE TO THE BEST OF MY KNOWLEDGE UNDER PENALTY OF PERJURY. IF I HAVE PROVIDED FALSE INFORMATION, I MAY BE SUBJECT TO A FINE OF UP TO TEN THOUSAND DOLLARS ($10,000) OR IMPRISONMENT FOR UP TO TEN (10) YEARS, OR BOTH, UNDER FEDERAL OR STATE LAWS.”
        4. The voter statement shall include a statement that the voter resides at the address on his or her application.
        5. The voter statement shall include a statement for a first-time voter who registers by mail: “If I am a newly registered voter of this county and this is the first time I am voting in this county, I am enclosing a copy of a current and valid photo identification card or a current utility bill, bank statement, government check, paycheck, or other government document that shows my name and address.”
      1. Blanks shall be provided for the voter to provide his or her printed name, signature, address, date of birth, printed name and address of the administrator, authorized agent, or designated bearer, signature of administrator, authorized agent, or designated bearer, and address of the administrator, authorized agent, or designated bearer;
        1. The voter statement shall include a sworn statement portion that may be completed by the voter stating that the voter is registered to vote and that he or she is the person who is registered.
        2. The sworn statement portion of the voter statement is not required to be notarized, but the voter shall execute the sworn statement under penalty of perjury;
    4. A sealable envelope upon which shall be printed or written the words: “Return Envelope”, the address of the county clerk, the precinct of the voter, and the words: “ABSENTEE BALLOT, , , ELECTION”; and
    5. An authorized agent authorization form, as follows:
    1. Except for absentee ballots mailed to an address outside the county in which the applicant is registered, an absentee ballot shall be mailed to the address that appears on the applicant's registration record or absentee ballot application if the voter is temporarily at a different address.
    2. The county clerk shall not mail more than two (2) absentee ballots to the same address unless:
      1. The address is outside the territorial limits of the United States;
      2. The address is for a long-term care or residential care facility licensed by the state; or
      3. There are more than two (2) persons lawfully registered at the same address.
  2. The county clerk shall not deliver an absentee ballot to any person other than the absentee voter unless the person picking up the ballot provides current and valid photographic identification to the county clerk that he or she is:
    1. The voter's:
      1. Designated bearer; or
      2. Authorized agent; or
    2. The administrator of a long-term care or residential care facility licensed by the state in which the voter resides.
  3. The county clerk shall not provide more than two (2) absentee ballots per election to any designated bearer or authorized agent, nor shall the county clerk accept delivery of more than two (2) absentee ballots per election from any designated bearer or authorized agent.
  4. A designated bearer shall be allowed to pick up only two (2) absentee ballots from the county clerk only during the fifteen (15) days prior to a school election, special election, preferential primary election, or general election and seven (7) days prior to a runoff election, including a general primary election.
  5. Upon delivery of an absentee ballot to an individual authorized to receive an absentee ballot, the county clerk shall mark the electronic voter registration list and the precinct voter registration list to indicate that an absentee ballot has been delivered to the voter.

“AGENT AUTHORIZATION FORM

If applicable, fill out and sign this form and place it in the Return Envelope

I hereby authorize (insert his or her name) as my authorized agent, to deliver this ballot as I am medically unable to vote on election day. An affidavit verifying my medical status as unable to deliver the application or to vote on the day of the election is attached or has been provided with my application.

Signature of voter

Printed name of voter

Address of voter

Date of birth of voter.”

History. Acts 1969, No. 465, Art. 9, § 7; 1971, No. 261, § 25; 1983, No. 430, § 4; 1985, No. 567, § 3; 1985, No. 568, § 3; A.S.A. 1947, § 3-907; Acts 1987, No. 843, § 3; 1989, No. 912, § 8; 1993, No. 1201, § 3; 1995, No. 103, § 1; 1997, No. 1092, § 6; 1999, No. 918, § 2; 1999, No. 1243, §§ 1, 2; 1999, No. 1344, § 1; 1999, No. 1538, § 1; 2001, No. 1379, § 1; 2003, No. 647, § 1; 2003, No. 994, § 10; 2003, No. 1202, § 2; 2003, No. 1275, §§ 2, 3; 2005, No. 880, § 4; 2005, No. 2193, § 3; 2007, No. 543, § 4; 2007, No. 556, § 7; 2009, No. 26, § 2; 2009, No. 250, §§ 9, 10; 2009, No. 375, § 2; 2013, No. 1424, §§ 6-8; 2017, No. 633, § 11.

A.C.R.C. Notes. The amendment of subdivision (b)(5) of this section by Acts 2003, No. 647, conflicted with the amendments to the subdivision by Acts 2003, Nos. 994, 1202, and 1275. Consequently, pursuant to § 1-2-207, the amendment was not implemented.

Acts 2003, No. 647 amended (b)(5) to read as follows:

“A blank voter statement in the following form:

“‘I reside at the address indicate on my application.

“I have enclosed my ballot stub and my marked ballot in the envelope. I will not vote again in this election.

“THE INFORMATION I HAVE PROVIDED IS TRUE TO THE BEST OF MY KNOWLEDGE UNDER PENALTY OF PERJURY. IF I HAVE PROVIDED FALSE INFORMATION, I MAY BE SUBJECT TO A FINE OF UP TO TEN THOUSAND DOLLARS ($10,000) OR IMPRISONMENT FOR UP TO TEN (10) YEARS, OR BOTH, UNDER FEDERAL OR STATE LAWS.

“signature of voter

“printed name of voter

“address of voter

“date of birth of voter

“signature of designated bearer, relative or authorized agent

“address of designated bearer, relative or authorized agent; and”

Amendments. The 2007 amendment by No. 543 substituted “the voter's designated bearer, authorized agent, or the administrator of a long-term care or residential care facility licensed by the state” for “the person authorized by the absentee voter to pick up the ballots” in (d); deleted former (e) and (g) and redesignated the remaining subsections accordingly; inserted “or authorized agent” twice in present (e); and rewrote present (f).

The 2007 amendment by No. 556 substituted “or to the applicant's designated bearer, authorized agent, or administrator for delivery to the applicant” for “or deliver pursuant to subsections (d)-(f) of this section to the person who delivers the application to the office of the county clerk pursuant to § 7-5-403” in (b); rewrote (b)(4)(A); deleted “and the District of Columbia” following “States” in (c)(2)(A); in (h), inserted “school election, special election” and “primary election” and substituted “ a runoff election, including a general primary election” for “a general primary election”; and substituted “that an absentee ballot has been delivered to the voter” for “that the individual has received an absentee ballot” in (i).

The 2009 amendment by No. 26, in (f), deleted “presidential preferential primary election” preceding “or general election,” and made a minor punctuation change.

The 2009 amendment by No. 250, in the introductory language of (d), substituted “current and valid photographic” for “satisfactory photo,” redesignated the last phrase as (d)(1) and (d)(2), and made related and minor stylistic changes.

The 2009 amendment by No. 375 deleted “presidential preferential primary election” following “preferential primary election” in (f), and made a related change.

The 2013 amendment substituted “does not require prior” for “is exempted from” in (a)(1)(A); inserted “printed name and address of the administrator, authorized agent, or designated bearer” in (b)(4)(B); and inserted “electronic voter registration list and the” in (g).

The 2017 amendment added (b)(4)(C).

Research References

U. Ark. Little Rock L. Rev.

Survey of Legislation, 2003 Arkansas General Assembly, Election Law, Help America Vote Act, 26 U. Ark. Little Rock L. Rev. 398.

Case Notes

Election Contest.

Circuit court abused its discretion in ruling that the claimant was attempting to amend his complaint with a new cause of action by offering proof of absentee-ballot irregularities under the miscellaneous other category in the claimant's exhibit, because the claimant was perfectly within his rights to make his allegations of absentee-ballot irregularities for nursing home residents, in particular, more definite and certain by offering proof of those violations. The claimant alleged a valid cause of action and set out a prima facie case with sufficient facts to give reasonable information as to the grounds of the contest, and he proffered absentee applications and voter statements to show why and how the ballots were illegal. Willis v. Crumbly, 371 Ark. 517, 268 S.W.3d 288 (2007).

7-5-410. Instructions and notice included with voting materials — Other enclosures prohibited.

It shall be unlawful for any person to place any notice, advertising material, or other advice with the material delivered or mailed to the applicant, other than instructions as to the method of casting an absentee ballot including a procedure to be followed by absentee voters such as express information covering the type or types of writing instruments which may be used to mark the absentee ballot, preferably pen or indelible pencil, the consequences of voting for more than one (1) candidate for a particular office, and notice of the last day on which the ballot may be received and counted. The instructions and notice shall not be signed by the name of any person.

History. Acts 1969, No. 465, Art. 9, § 9; 1971, No. 261, § 27; A.S.A. 1947, § 3-909; Acts 2009, No. 959, § 17.

Amendments. The 2009 amendment deleted “in instances of adhesion of the balloting materials, a notation of the fact on the back of the envelope duly signed by the voter and witnessing officer” following “such as,” inserted “the consequences of voting for more than one (1) candidate for a particular office,” and made related changes.

7-5-411. Methods of voting absentee.

  1. Absentee voting may be accomplished in one (1) of the following methods and in no other manner:
      1. By delivery of the ballot by mail that must be received in the office of the county clerk of the county of residence of the voter not later than 7:30 p.m. on election day.
        1. However, except as provided in subdivision (a)(1)(B)(ii) of this section, by ballots applied for not later than thirty (30) days before the election by qualified electors outside the United States on election day that are signed, dated, postmarked, and mailed by the voters no later than the day of the election and received by the county clerk no later than 5:00 p.m. ten (10) calendar days after the date of the election.
        2. The absentee ballots of armed services personnel serving in active status shall be counted if received by the county clerk no later than 5:00 p.m. ten (10) calendar days after the date of the election and if the absentee ballots were executed no later than the date of the election.
      2. Each absentee ballot shall be mailed separately by the voter and shall not be included with any other absentee ballot in a bulk mailing, except that an administrator of a long-term care or residential care facility licensed by the State of Arkansas or hospital may mail the absentee ballots of the residents and patients by bulk mail. Absentee ballots in any bulk mailing not otherwise permitted in this subsection shall not be counted;
    1. By delivery of the ballot to the county clerk of the county of residence of the voter not later than 7:30 p.m. on election day by the designated bearer, administrator, or the authorized agent of the absentee voter who is medically unable to vote at the regular polling site, upon proper verification of the signature of the voter by the county clerk and validation of the identity of the authorized agent; or
    2. The voter may deliver the ballot to the county clerk of the county of his or her residence not later than the close of regular business hours on the day before the election.
  2. Any person to whom an absentee ballot is delivered according to the precinct voter registration list but who elects to vote by early voting or to vote at his or her polling site on election day shall be permitted to cast a provisional ballot.

History. Acts 1969, No. 465, Art. 9, § 10; 1970 (1st Ex. Sess.), No. 28, § 1; 1981, No. 685, § 2; 1983, No. 430, § 5; 1985, No. 567, § 4; 1985, No. 568, § 4; 1985, No. 612, § 2; 1985, No. 1024, § 1; A.S.A. 1947, § 3-910; Acts 1987, No. 843, § 4; 1989, No. 912, § 9; 1997, No. 1092, § 7; 1999, No. 491, § 1; 1999, No. 1538, § 4; 1999, No. 1586, § 1; 2001, No. 1257, § 1; 2001, No. 1767, § 1; 2003, No. 273, § 1; 2003, No. 1275, § 4; 2005, No. 2193, § 4; 2007, No. 543, § 5; 2007, No. 556, § 8; 2009, No. 250, §§ 11, 12.

Amendments. The 2007 amendment by No. 543 deleted the (a)(2)(A) designation; deleted “upon proper verification of the signature of the voter by the county clerk and validation of the identity of the authorized agent” following “site” in (a)(2); deleted former (a)(2)(B); deleted former (b); and redesignated former (c) as present (b).

The 2007 amendment by No. 556 substituted “delivery of the ballot” for “ballot cast” in (a)(1)(A); substituted “by a qualified elector” for “by qualified electors” in (a)(1)(B)(i); substituted “The absentee ballot” for “Absentee ballots” in (a)(1)(B)(ii); substituted “residential care facility licensed by the State of Arkansas” for “residential facility” in (a)(1)(C); and substituted “to whom an absentee ballot is delivered” for “who receives an absentee ballot” in (c).

The 2009 amendment substituted “armed” for “uniformed” in (a)(1)(B)(ii); and substituted “administrator” for “administrative head” in (a)(1)(C).

Research References

U. Ark. Little Rock L. Rev.

Survey of Legislation, 2001 Arkansas General Assembly, Election Law, 24 U. Ark. Little Rock L. Rev. 465.

Case Notes

Election Contest.

Circuit court abused its discretion in ruling that the claimant was attempting to amend his complaint with a new cause of action by offering proof of absentee-ballot irregularities under the miscellaneous other category in the claimant's exhibit, because the claimant was perfectly within his rights to make his allegations of absentee-ballot irregularities for nursing home residents, in particular, more definite and certain by offering proof of those violations. The claimant alleged a valid cause of action and set out a prima facie case with sufficient facts to give reasonable information as to the grounds of the contest, and he proffered absentee applications and voter statements to show why and how the ballots were illegal. Willis v. Crumbly, 371 Ark. 517, 268 S.W.3d 288 (2007).

Noncompliance.

Evidence established noncompliance with methods of absentee voting prescribed by law. Roach v. Kirk, 228 Ark. 958, 311 S.W.2d 525 (1958) (decision under prior law).

Strict Compliance Required.

The provisions of law relating to the duties of voters in applying for, and casting, absentee ballots, must be strictly complied with. Bingamin v. City of Eureka Springs, 241 Ark. 477, 408 S.W.2d 607 (1966) (decision under prior law).

7-5-412. Marking and return of absentee ballots — Delivery of mailed absentee ballots.

  1. Upon receiving the blank absentee ballot, voter statement, and envelopes, whether in the office of the county clerk or elsewhere, the voter shall mark the absentee ballot and place the absentee ballot in the provided envelope. He or she shall then seal the envelope containing the absentee ballot and place it in the other provided outer envelope with the following:
    1. The completed and executed voter statement, including identification of the designated bearer, authorized agent, or administrator when appropriate; and
      1. Verification of voter registration; or
      2. A copy of a current and valid photographic 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 first-time voter, for first-time voters who registered by mail. However, this requirement does not apply if:
        1. The voter registered to vote by mail and provided the identification at that time; or
        2. The first-time voter registered to vote by mail and submitted his or her driver's license number or at least the last four (4) digits of his or her Social Security number at the time and this information matches the information in an existing state identification record bearing the same number, name, and date of birth as provided in the registration.
    1. A voter who desires to cast an absentee ballot but who does not meet the identification requirements of subdivision (a)(2) of this section may cast his or her absentee ballot by mail, and the absentee ballot shall be considered as a provisional ballot.
      1. The voter statement accompanying the absentee ballot shall include a sworn statement portion that may be completed by the voter stating that the voter is registered to vote and that he or she is the person who is registered.
      2. The sworn statement portion of the voter statement is not required to be notarized, but the voter shall execute the sworn statement under penalty of perjury.
  2. After recording receipt of the absentee ballot in the electronic voter registration system, absentee ballots received by mail on election day before the polls close shall be delivered promptly by the county clerk to the election officials designated to canvass and count absentee ballots.

History. Acts 1969, No. 465, Art. 9, § 11; 1970 (1st Ex. Sess.), No. 28, § 2; A.S.A. 1947, § 3-911; Acts 1997, No. 1092, § 8; 2003, No. 647, § 2; 2003, No. 994, § 11; 2005, No. 880, § 5; 2007, No. 556, § 9; 2009, No. 250, § 13; 2013, No. 1424, § 9; 2017, No. 633, § 12.

A.C.R.C. Notes. Pursuant to § 1-2-207, subsection (a) of this section is set out above as amended by Acts 2003, No. 994. Subsection (a) of this section was also amended by Acts 2003, No. 647 to read as follows:

“(a) Upon receiving the blank ballot, statement, and envelopes, whether in the office of the county clerk or elsewhere, the voter shall mark the ballot, tear off the lower ballot stub end, and place the ballot in the provided envelope. He or she shall place the ballot, the executed statement, and the ballot stub in the provided envelope.”

Amendments. The 2007 amendment deleted former (b) and redesignated the remaining subsections accordingly; substituted “his or her ballot” for “a ballot” in present (b); and deleted “Ballots by mail shall be counted if received no later than the time the polls close on election day” at the beginning of (c).

The 2009 amendment inserted “absentee” preceding “ballot” in seven places; and made minor stylistic changes.

The 2013 amendment inserted “voter” preceding “statement” in (a); in (a)(1), inserted “completed and” and “including identification of the designated bearer, authorized agent, or administrator when appropriate”; and substituted “After recording receipt of the absentee ballot in the electronic voter registration system, absentee” for “Absentee” in (c).

The 2017 amendment added present (a)(2)(A); redesignated former (a)(2) as present (a)(2)(B); redesignated former (a)(2)(A) and (a)(2)(B) as present (a)(2)(B)(i) and (a)(2)(B)(ii); redesignated former (b) as (b)(1); and added (b)(2).

Research References

ALR.

Voter Identification Requirements as Denying or Abridging Right to Vote on Account of Race or Color Under § 2 of Voting Rights Act, 52 U.S.C. § 10301. 12 A.L.R. Fed. 3d 4 (2016).

Ark. L. Notes.

Cihak, 2007 Election Law Issues, Legislation and Reforms, 2007 Ark. L. Notes 1.

U. Ark. Little Rock L. Rev.

Survey of Legislation, 2003 Arkansas General Assembly, Election Law, Help America Vote Act, 26 U. Ark. Little Rock L. Rev. 398.

7-5-413. Voting machines — Related duties.

    1. At least one (1) voting machine equipped for use by individuals with disabilities shall be placed in the county clerk's designated location for early voting for the election in accordance with this subchapter and at any off-site polling locations established by the county board of election commissioners.
    2. Those persons entitled under the law to vote early by personal appearance shall cast their votes on voting systems under the laws applicable to early voting, and the clerk or election official shall enter the name of each voter on a list at the time he or she votes.
  1. After regular business hours, the clerk at the clerk's designated early voting location or the election official at any off-site polling place shall secure the machines against further voting at the close of each day's voting in the presence of authorized poll watchers, if any. When early voting is concluded, the clerk or the election official shall secure the machines against further voting.
    1. At the time designated in the notice of election, a set of election officials for the machines used for early voting shall canvass the vote in the manner provided for regular polling sites. After the canvass has been made, the machines shall be secured and shall remain inaccessible to voting.
    2. The results of the canvass shall be returned to the county board of election commissioners to be tabulated and canvassed with and in the same manner as the returns of other election precincts.
  2. Any candidate or political party may be present in person or by a representative designated in writing during the progress of early voting and at the canvass of the results in any election for the purpose of determining whether or not the votes in any election are fairly and accurately cast and counted.

History. Acts 1969, No. 465, Art. 9, § 16; 1970 (1st Ex. Sess.), No. 6, § 1; 1985, No. 567, § 6; 1985, No. 568, § 6; A.S.A. 1947, § 3-916; Acts 1995, No. 686, § 6; 1995, No. 948, § 6; 1997, No. 1092, § 9; 2005, No. 2233, § 8; 2007, No. 556, § 10; 2007, No. 1020, § 12.

A.C.R.C. Notes. Acts 2007, Nos. 556 and 1020 both amended (c)(1). The Arkansas Code Revision Commission implemented the amendment by Acts 2007, No. 1020 since there was an irreconcilable conflict between the two acts.

Acts 2007, No. 556, § 10 provided:

“(c)(1) At the time designated by law for the closing of the polls on election day or at the time designated for counting absentee and early voting ballots in the notice provided for in the public notice of election, a set of election officials for the machines used for early voting shall canvass the vote in the manner provided for regular polling sites. After the canvass has been made, the machines shall be secured and shall remain inaccessible to voting.”

Amendments. The 2007 amendment by No. 556 inserted “or at the time designated for counting absentee and early voting ballots in the notice provided for in the public notice of election” in (c)(1).

7-5-414. Appointment of election clerks — Qualifications.

  1. The county board of election commissioners shall appoint election clerks to process, count, and canvass the absentee voters' ballots in all elections.
    1. The election clerks who are to canvass the absentee ballots shall be appointed in the same manner and at the same time the poll workers are selected to serve at the regular voting precincts.
    2. The election clerks shall possess the same qualifications as the poll workers who serve at the regular voting precincts.
  2. The processing, counting, and canvassing of the absentee ballots shall be under the supervision and at the direction of the county board of election commissioners.

History. Acts 1969, No. 465, Art. 9, § 12; A.S.A. 1947, § 3-912; Acts 1997, No. 1092, § 10; 2005, No. 1827, § 5; 2007, No. 556, § 11; 2009, No. 959, § 18.

Amendments. The 2007 amendment added the (b)(1) and (b)(2) designations; and deleted “and have the same powers and duties” following “qualifications” in (b)(2).

The 2009 amendment substituted “election clerks” for “election officials” in three places; substituted “poll workers” for “election officials” in two places; inserted “process” in (a) and made related changes; and added (c).

7-5-415. Compensation of county clerk for extra deputy.

The county clerk's budget shall be paid not less than minimum wage for a period not to exceed thirty-five (35) days for hiring one (1) extra deputy for the purpose of carrying out the requirements of this act. The fee for this one (1) extra deputy shall be established and paid by the county, city, or other political subdivision, the representatives of which call the election, or in the case of a state-funded election, by the State Board of Election Commissioners. Any additional deputies beyond the one (1) extra deputy may be hired as necessary to carry out the purposes of early voting and absentee voting, if approved and paid by the quorum court of the county. In the regular general election, the fee for the one (1) extra deputy or additional deputies shall be paid by the county.

History. Acts 1969, No. 465, Art. 9, § 15; A.S.A. 1947, § 3-915; Acts 1991, No. 482, § 1; 1997, No. 1092, § 11; 2007, No. 556, § 12.

Amendments. The 2007 amendment substituted “thirty-five (35) days” for “twenty (20) days” and substituted “state-funded election” for “primary.”

Meaning of “this act”. Acts 1969, No. 465, codified as §§ 7-1-101, 7-1-1037-1-105, 7-3-1017-3-108, 7-4-1017-4-105, 7-4-1077-4-112, 7-5-101, 7-5-102, 7-5-103 [repealed], 7-5-2027-5-209, 7-5-210 [repealed], 7-5-211, 7-5-301, 7-5-302 [repealed], 7-5-303 [repealed], 7-5-3047-5-306, 7-5-307 [repealed], 7-5-308, 7-5-309, 7-5-312, 7-5-313 [repealed], 7-5-3147-5-319, 7-5-4017-5-403, 7-5-4057-5-417, 7-5-501 [repealed], 7-5-5027-5-504, 7-5-505 [repealed], 7-5-506 [repealed], 7-5-507, 7-5-508 [repealed], 7-5-509, 7-5-511 [repealed], 7-5-512, 7-5-513, 7-5-514 [repealed], 7-5-5157-5-518, 7-5-519 [repealed], 7-5-5207-5-522, 7-5-5247-5-531, 7-5-7017-5-706, 7-5-8017-5-809, 7-6-1017-6-105, 7-7-1017-7-105, 7-7-2017-7-203, 7-7-3017-7-307, 7-7-309, 7-7-310 [repealed], 7-7-401, 7-7-402, 7-7-403 [repealed], 7-8-1017-8-104, 7-8-301, 7-8-302, 7-8-3047-8-307, 25-16-801.

Case Notes

Cited: Republican Party v. Faulkner County, 49 F.3d 1289 (8th Cir. 1995).

7-5-416. Counting of absentee ballots.

    1. The election officials for absentee ballots may meet in a place designated by the county board of election commissioners no earlier than the Tuesday before the election for the purpose of opening the outer envelope, processing, and canvassing of absentee ballot paper work and no earlier than 8:30 a.m. on election day for the purpose of opening the inner absentee ballot envelope and counting the absentee ballots.
    2. The county board of election commissioners shall give public notice of the time and location of the opening, processing, canvassing, and counting of absentee ballots and early voting ballots as provided in § 7-5-202.
    3. The county clerk shall forward the following items to the election officials designated by the county board of election commissioners to open, process, canvass, and count absentee ballots:
      1. The absentee ballot applications sorted alphabetically or by precinct;
      2. The absentee ballots; and
      3. A written report containing the following information:
        1. The number of absentee ballot applications received by the county clerk;
        2. The number of absentee ballots sent by the county clerk;
        3. The number of absentee ballots returned to the county clerk;
        4. The number of absentee ballots rejected by the county clerk and the reason for the rejection;
        5. The number of absentee ballots marked as received on the paper absentee ballot applications list; and
        6. If the number of absentee ballots returned to the county clerk and the number of absentee ballots marked as received on the paper absentee ballot lists are different and the reason for the difference is known, the reason for the difference.
    4. The processing and counting of absentee ballots shall be open to the public, and candidates and authorized poll watchers may be present in person or by a representative designated in writing under § 7-5-312 during the opening, processing, canvassing, and counting of the absentee ballots as provided in this subchapter.
      1. Absentee and early votes shall be counted prior to the closing of the polls on election day as provided under this section.
        1. The county board of election commissioners shall report by precinct the initial count of early votes and absentee ballot votes to the Secretary of State as provided under § 7-5-701 as soon as practical after the polls close on election day.
        2. No election results of the precinct shall be printed, posted, or released until after the polls close on election day.
    1. The opening, processing, counting, and canvassing of absentee ballots shall be conducted as follows:
      1. One (1) of the election officials shall open outer absentee ballot envelopes one by one and verify the contents;
      2. If the required materials are properly placed in the outer absentee ballot envelope, the election official shall proceed to read aloud from the voter statement the name of the voter;
      3. If the required materials are not properly placed in the outer absentee ballot envelope, a second election official shall open the inner absentee ballot envelope to verify the contents;
      4. If all required materials are present within one (1) or the other envelope, the election officials shall put the materials in the proper envelope while preserving the secrecy of the voter's ballot and shall proceed to read aloud from the voter statement the name of the voter and the voting precinct in which the voter claims to be a legal voter;
      5. As each outer envelope is opened and the name of the voter is read, the election officials for the absentee box shall list the name and voting precinct of the voter;
        1. After the election official reads aloud from the statement, the election officials shall compare the name, address, date of birth, and signature of the voter's absentee application with the voter's statement and, for first-time voters who registered by mail, the first-time voter's identification document unless the voter previously provided identification at the time of mailing the voter registration application.
        2. If the county board of election commissioners determines that the application and the voter's statement do not compare as to name, address, date of birth, and signature, the absentee ballot shall not be counted.
        3. If a first-time voter fails to provide the required identification with the absentee ballot or at the time of mailing the voter registration application, then the absentee application, absentee ballot envelope, and voter's statement shall be placed in an envelope marked “provisional” and the absentee ballot shall be considered a provisional ballot;
      6. The election officials shall compare the name and address of the bearer, agent, or administrator written on the absentee ballot return envelope with the information on the voter statement. If the information does not match, then the outer envelope, absentee application, secrecy envelope containing the ballot, and the voter's statement shall be placed in an envelope marked “provisional” and the absentee ballot shall be considered a provisional ballot;
      7. If the absentee voter fails to return the voter statement, the vote shall not be counted;
      8. Failure of the voter to submit the required absentee materials in the proper envelopes shall not be grounds for disqualifying the voter;
      9. If the voter statement does not authorize a bearer, agent, or administrator to receive or return his or her absentee ballot and the ballot was received or returned by a bearer, agent, or administrator, the vote shall not be counted;
      10. If no challenge is made by a qualified poll watcher, the election official shall remove the inner envelope, without opening the inner envelope containing the ballot, and place it in the ballot box without marking it in any way;
        1. After all of the outer envelopes have been opened, the election officials of the absentee box shall preserve all the statements of voters and the voters' identification documents and deliver them to the county clerk, who shall file and keep them for the same length of time after the election as is required for retention of other ballots.
        2. The voter statements shall be made available for public inspection during regular business hours.
        3. The voters' identification documents shall not be subject to public inspection except as part of a judicial proceeding to contest the election;
      11. When all of the inner envelopes containing the ballots have been placed in the ballot box, the ballot box shall be shaken thoroughly to mix the ballots; and
      12. The ballot box shall be opened and the ballots canvassed and counted.
    2. No election results shall be printed or released prior to the closing of the polls on election day.
  1. If any person casting an absentee ballot dies before the polls open on election day, his or her vote shall be accepted by the county clerk if the absentee ballot is:
    1. Signed, dated, postmarked, and mailed before the date of death;
    2. Signed, dated, and delivered to the county clerk by a designated bearer, authorized agent, or administrator before the date of death; or
    3. The ballot of a member of the armed services or Arkansas National Guard in active duty or state active duty executed before the date of death.
  2. It is the intent of this section to require the election officials for absentee ballots to meet and process, canvass, and count absentee ballots according to this section prior to the closing of the polls on election day.
    1. Absentee votes shall be cast on paper ballots.
      1. The ballots shall first be counted for write-in votes by the election officials.
      2. Then, at the discretion of the county board of election commissioners, the ballots may be either hand counted or counted on an electronic vote tabulating device.
    1. Absentee ballots marked as “special runoff ballots” received from a qualified voter from one (1) of the categories in § 7-5-406(a) shall be opened for general primary elections and general runoff elections according to the procedures described in subsection (b) of this section.
    2. However, in counting the special runoff ballot, one (1) of the election officials shall open the envelope containing the special runoff ballot and read the numbers indicated next to the names of the two (2) candidates in the general primary election or in the general runoff election.
    3. The candidate with the highest ranking shall receive the vote.
    4. A special runoff ballot received with the preferential primary absentee ballot shall be counted in the general primary election, and a special runoff ballot received with the general election absentee ballot shall be counted in the general runoff election.
    5. The Secretary of State shall prepare instructions for opening, counting, and canvassing special runoff ballots and provide the instructions to each county board of election commissioners.

History. Acts 1969, No. 465, Art. 9, § 13; 1971, No. 261, § 21; A.S.A. 1947, § 3-913; Acts 1989, No. 505, § 1; 1993, No. 845, §§ 1-3; 1997, No. 1092, § 12; 1999, No. 1368, § 1; 2003, No. 647, §§ 3, 4; 2003, No. 994, § 12; 2003, No. 1154, § 3; 2003, No. 1744, § 1; 2005, No. 138, § 2; 2005, No. 751, § 2; 2005, No. 880, § 6; 2007, No. 261, § 2; 2007, No. 556, § 13; 2009, No. 250, § 14; 2009, No. 959, §§ 19, 20; 2013, No. 466, § 1; 2013, No. 1211, §§ 3, 4; 2013, No. 1424, § 10; 2017, No. 790, §§ 1-3; 2019, No. 462, § 9.

A.C.R.C. Notes. Pursuant to § 1-2-207, this section is set out above as amended by Acts 2003, Nos. 994, 1154, and 1744. Subdivision (b)(1)(B) and subsection (d) of this section were also amended by Acts 2003, No. 647 to read as follows:

“(b)(1)(B) As each envelope is opened and the name of the voter is read, the election officials for the absentee box shall list in duplicate the name and voting precinct of the voter and shall write on the stub end of the ballot taken from the envelope the number of the voter taken from this list of voters;

“(d) It is the intent of this section to permit the election officials for absentee ballots to meet and open the outer envelope and make a list in duplicate of the name and voting precinct of each voter casting an absentee ballot, to write on the stub end of the ballot the number of the voter taken from the list of voters, and to deposit the envelope containing the ballot in the ballot box and to deposit the ballot stub ends in another ballot box prior to the closing of the polls on election day.”

Amendments. The 2009 amendment by No. 250 inserted “absentee” preceding “ballot” twice in (b)(1)(F)(iii).

The 2009 amendment by No. 959 deleted “and the voting precinct in which the voter claims to be a legal voter” at the end of (b)(1)(B); and inserted “the county board of election commissioners determines that” in (b)(1)(F)(ii).

The 2013 amendment by No. 466 rewrote (c).

The 2013 amendment by No. 1211, in (a)(5)(A), substituted “and” for “or”, “shall” for “may”, and inserted “as provided under this section”; inserted (a)(5)(B); and substituted “require” for “permit” in (d).

The 2013 amendment by No. 1424, in (a)(1), deleted “in the courthouse” following “shall meet” and inserted “no earlier than 8:30 a.m.”; in (a)(3), substituted “On election day, the” for “The” and inserted “following items to the election officials designated by the county board to open, process, canvass, and count absentee ballots”; redesignated part of (a)(3) as (a)(3)(A) and inserted (a)(3)(B) and (a)(3)(C); deleted “to the election officials for absentee ballots” at the end of (a)(3)(A); in (a)(4), inserted “processing and” and substituted “authorized poll watchers” for “political parties” and “under” for “pursuant to”; redesignated former (a)(5) as present (a)(5)(A) and inserted (a)(5)(B); added “on election day” in (b)(2); deleted “and who is temporarily residing outside the territorial limits of the United States” following “§ 7-5-406(a)” in (f)(1); and inserted (b)(1)(G) and (b)(1)(J) and redesignated the remaining subdivisions accordingly.

The 2017 amendment, in (a)(1), substituted “may meet” for “shall meet”, inserted “the Tuesday before the election for the purpose of opening the outer envelope, processing, and canvassing of absentee ballot paper work and no earlier than”, and substituted “opening the inner absentee ballot envelope and counting the absentee ballots” for “processing absentee ballots”; deleted “On election day” from the beginning of (a)(3); in (a)(5)(B)(i), deleted “No later than thirty (30) minutes after the polls close on election day” preceding “The county” at the beginning, and added “as soon as practical after the polls close on election day”; deleted “in duplicate” following “shall list” in (b)(1)(E); and deleted “and a list has been made in duplicate of the name and voting precinct of the voters as required in this section” following “opened” in (b)(L)(i).

The 2019 amendment, in (c)(3), inserted “or Arkansas National Guard” and “or state active duty”.

Research References

Ark. L. Rev.

Brandon Whit Maxey, Legislative Note: A Proposal for a Voter-Identification Law Limiting Voter Disenfranchisement, 67 Ark. L. Rev. 457 (2014).

U. Ark. Little Rock L. Rev.

Survey of Legislation, 2003 Arkansas General Assembly, Election Law, Help America Vote Act, 26 U. Ark. Little Rock L. Rev. 398.

Survey of Legislation, 2005 Arkansas General Assembly, Election Law, 28 U. Ark. Little Rock L. Rev. 351.

Case Notes

Mandamus.

Where there was no challenge of an absentee ballot as prescribed by law providing procedure for challenging such ballots, the duties of the election commissioners were merely those of a canvassing board and could be enforced by mandamus. Dotson v. Ritchie, 211 Ark. 789, 202 S.W.2d 603 (1947) (decision under prior law).

7-5-417. Challenge of absentee votes.

  1. When the name and voting precinct of a voter is read by the election official, any candidate or qualified poll watcher pursuant to § 7-5-312 may challenge the vote in the manner provided by law for personal voting challenges, and the election officials shall consider the ballot as a provisional ballot.
  2. If the statement is not in proper form or for any other legal reason the vote should not be counted, the ballot shall not be counted and shall be preserved together with the statement and envelope for the same period of time that the statements are preserved.
  3. If the county board of election commissioners determines that the provisional voter is qualified and that the vote was properly cast, the vote shall be counted.

History. Acts 1969, No. 465, Art. 9, § 14; A.S.A. 1947, § 3-914; Acts 1997, No. 1092, § 13; 2003, No. 1154, § 4; 2005, No. 67, § 13; 2005, No. 880, § 7; 2007, No. 556, § 14.

Amendments. The 2007 amendment by No. 261 inserted “and is temporarily residing outside the territorial limits of the United States” in (f)(1).

Case Notes

Hearing Required.

The commissioners could not pass upon the legality of a ballot without a hearing and determination of the question since the elector had the right to be heard in defense of his ballot before he was disenfranchised. Dotson v. Ritchie, 211 Ark. 789, 202 S.W.2d 603 (1947) (decision under prior law).

7-5-418. Early voting.

      1. Except as provided in subdivision (a)(1)(B) of this section, early voting shall be available to any qualified elector who applies to the county clerk's designated early voting location, beginning fifteen (15) days before a preferential primary or general election between the hours of 8:00 a.m. and 6:00 p.m. Monday through Friday and 10:00 a.m. and 4:00 p.m. Saturday and ending at 5:00 p.m. on the Monday before the election.
      2. Early voting shall not be available on state or county holidays.
      1. Except as provided in subdivision (a)(2)(B) of this section, on all other elections, including the general primary and general runoff elections, early voting shall be available to any qualified elector who applies to the county clerk during regular office hours, beginning seven (7) days before the election and ending on the day before the election day at the time the county clerk's office regularly closes.
      2. If an annual school election is held at the same time as the preferential primary election or general election, early voting for the annual school election shall comply with subdivision (a)(1)(A) of this section.
      1. The county board of election commissioners may decide to hold early voting at additional polling sites outside the offices of the county clerk on any of the days and times provided for in subsection (a) of this section, if it so chooses.
      2. The county board of election commissioners shall determine by unanimous vote the location of additional polling sites for early voting.
    1. The county board of election commissioners shall appoint the election officials for the additional early voting polling site or sites in the same manner as election officials are appointed for election day.
      1. The county board of election commissioners shall notify the county clerk of its decision to hold early voting at additional polling sites outside the office of the county clerk within ten (10) days of the decision.
      2. If the county board of election commissioners decides to hold early voting at one (1) or more conveniently located polling sites on the days and times under subsection (a) of this section, the county clerk may choose not to hold early voting within the office of the county clerk. The county clerk shall notify the county board of election commissioners within ten (10) days of the receipt of notice from the county board of election commissioners regarding early voting at additional polling sites.
    2. The early voting election official shall record the date on all pages of the early voting roster or early voting request form and keep a daily record of the number of early ballots cast.
    3. All voted ballots and unvoted ballots and all related election materials at each additional early voting polling site shall be stored in a secure location in the county courthouse or in a secure location as determined by the county board of election commissioners immediately after the close of the additional polling sites each day that early voting is conducted there.
  1. Before a person is permitted to cast an early vote, the county clerk or election official shall:
    1. Request the voter to identify himself or herself by stating his or her name, date of birth, and address in order to verify his or her registration;
    2. Request that the voter verify his or her registration by providing a document or identification card that meets the requirements of Arkansas Constitution, Amendment 51, § 13, if required by that section;
    3. If the voter's name or address is not the same as that in the county voter registration record files, request the voter to complete an updated voter registration application form;
    4. Request the voter to sign an early voting roster or early voting request form that identifies his or her name, address, date of birth, and the date on the roster or form; and
    5. Enter the voter's precinct number on the early voting roster or early voting request form.
    1. If the voter is not listed in the county voter registration record files and the county clerk is unable to verify the voter's registration and if the voter contends that he or she is eligible to vote, then the voter may vote a provisional ballot that shall be counted only upon verification of the voter's registration status.
      1. If the voter fails to present verification of voter registration, the election official shall follow the procedure in Arkansas Constitution, Amendment 51, § 13.
        1. A person who is a resident of a long-term care or residential care facility licensed by the state is not required to provide verification of voter registration before voting.
        2. A person not required to provide verification of voter registration under subdivision (d)(2)(B)(i) of this section shall provide documentation from the administrator of the facility attesting that the person is a resident of the facility.
  2. The county clerk or county board of election commissioners shall furnish voting locations that adequately allow the early voter to personally and secretly execute his or her ballot.
  3. Except as provided in this section, early voting shall be conducted in the same manner as voting on election day. Conduct that is prohibited or restricted on election day shall be subject to the same prohibitions and restrictions on the days on which early voting is conducted.
    1. The county clerk shall electronically record in the permanent voter registration record of an elector who voted at an early voting location to indicate that the elector has voted.
    2. Except as provided under subdivision (g)(3) of this section, the county clerk shall electronically record in the permanent voter registration record no later than twenty-four (24) hours after the elector has voted.
    3. If the elector votes on a Friday or Saturday, the county clerk shall electronically record in the permanent voter registration record no later than the close of business on the Monday following the vote.

History. Acts 1995, No. 686, § 7; 1995, No. 948, § 7; 1997, No. 967, § 1; 1997, No. 1092, § 14; 2003, No. 269, § 1; 2005, No. 655, § 1; 2005, No. 880, § 8; 2005, No. 1690, § 1; 2007, No. 556, § 15; 2007, No. 987, § 1; 2009, No. 375, § 3; 2009, No. 959, § 21; 2013, No. 595, § 6; 2013, No. 979, § 1; 2013, No. 1059, § 1; 2016 (3rd Ex. Sess.), No. 14, § 6; 2016 (3rd Ex. Sess.), No. 15, § 6; 2017, No. 633, § 13; 2017, No. 910, § 7.

A.C.R.C. Notes. Pursuant to § 1-2-207, this section is set out above as amended by Acts 2013, No. 1059. Acts 2013, No. 979 added a new subsection to read as follows:

“(g)(1) The county clerk shall electronically record in the permanent voter registration record of an elector who voted at an early voting location to indicate that the elector has voted.

“(2) Except as provided under subdivision (g)(3) of this section, the county clerk shall electronically record in the permanent voter registration record no later than twenty-four (24) hours after the elector has voted.

“(3) If the elector votes on a Friday or Saturday, the county clerk shall electronically record in the permanent voter registration record no later than the close of business on the Monday following the vote.”

Amendments. The 2007 amendment by No. 556 inserted “or county” in (a)(1)(B); in (a)(1)(B)(2), substituted “presidential preferential primary” for “but not limited to,” “seven (7)” for “fifteen (15)” and “the election” for “an election,” and made minor punctuation changes; deleted “and to include the additional voting locations for a maximum of fifteen (15) days” following “clerk” in (b)(1)(A); deleted former (b)(1)(C); rewrote (b)(2); substituted “the county board shall hold early voting” for “early voting shall be held” in (b)(3)(B)(ii); deleted former (b)(5) and redesignated former (b)(6) as present (b)(5); in (c)(1), inserted “or herself” and inserted “or her” twice; inserted “or her” in (c)(3); and deleted former (g) and redesignated former (h) as present (g).

The 2007 amendment by No. 987 inserted “presidential preferential primary” and made related changes in (a)(2).

The 2009 amendment by No. 375 deleted ”presidential preferential primary” preceding “general primary,” and made related changes in (a)(2).

The 2009 amendment by No. 959 deleted (b)(3)(B)(ii); substituted “at one (1) or more conveniently located polling sites on the days and times under subsection (a) of this section” for “at additional polling sites outside the office of the county clerk” in (b)(3)(B); deleted (f); and redesignated the remaining subsection accordingly.

The 2013 amendment by No. 595 inserted (c)(2) and redesignated the remaining subdivisions accordingly; redesignated former (d) as (d)(1); and added (d)(2).

The 2013 amendment by No. 1059 added (g).

The 2016 (3rd Ex. Sess.) amendment by identical acts Nos. 14 and 15 added (a)(2)(B); and added “Except as provided in subdivision (a)(2)(B) of this section” to the beginning of (a)(2)(A).

The 2017 amendment by No. 633 rewrote (c)(2); in (d)(2)(A), substituted “to present verification of voter registration” for “to provide proof of identity” and substituted “Arkansas Constitution, Amendment 51, § 13” for “§ 7-5-321” at the end; and substituted “verification of voter registration” for “proof of identity” in (d)(2)(B)(i) and (d)(2)(B)(ii).

The 2017 amendment by No. 910 inserted “preferential primary election or” in (a)(2)(B).

Research References

ALR.

Validity, Construction, and Application of Early Voting Statutes. 29 A.L.R.6th 343.

Ark. L. Notes.

Cihak, 2007 Election Law Issues, Legislation and Reforms, 2007 Ark. L. Notes 1.

7-5-419. [Transferred.]

Publisher's Notes. Former § 7-5-419 has been renumbered by Acts 2009, No. 959, § 22 as § 7-5-403.

Subchapter 5 — Voting Machines

Effective Dates. Acts 1969, No. 465, Art. 13, § 10: approved Apr. 17, 1969. Emergency clause provided: “It is hereby found and declared by the General Assembly of the State of Arkansas that the present election laws are ancient and outdated in part and have caused and are causing much confusion and controversy, that there are particular problem areas in the present law which need immediate legislation in order to resolve same, that elections are and will continue to be held and conducted in this atmosphere of confusion and controversy until these problem areas are resolved and this Act being necessary for the immediate preservation of the public peace, health and safety, an emergency is hereby declared to exist and this Act shall be in force and effect from and after its passage.”

Acts 1970 (1st Ex. Sess.), No. 25, § 3: Approved Mar. 13, 1970. Emergency clause provided: “It is hereby found and declared by the General Assembly of the State of Arkansas, the election laws require that voting machines used in any election must remain locked and sealed for ten (10) days after the election, thereby rendering it impossible for the appropriate committee charged with conducting the election to program such machines for any immediate, successive run-off election; that preferential and general primary elections will be held and conducted in the immediate future and this act being necessary for the immediate preservation of the public peace, health and safety, an emergency is hereby declared to exist and this act shall be in force and effect from and after its passage.”

Acts 2005, No. 2233, § 48: Jan. 1, 2006.

Acts 2009, No. 1480, § 117: Apr. 10, 2009. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that this act makes various revisions to Arkansas election laws that are designed to improve the administration of elections and special elections and that these revisions should be implemented as soon as possible so that the citizens of this state may benefit from improved election procedures. Therefore, an emergency is declared to exist and this act being immediately necessary for the preservation of the public peace, health, and safety shall become effective on: (1) The date of its approval by the Governor; (2) If the bill is neither approved nor vetoed by the Governor, the expiration of the period of time during which the Governor may veto the bill; or (3) If the bill is vetoed by the Governor and the veto is overridden, the date the last house overrides the veto.”

Research References

Am. Jur. 26 Am. Jur. 2d, Elections, § 307.

C.J.S. 29 C.J.S., Elections, § 337.

7-5-501. [Repealed.]

Publisher's Notes. This section, concerning acquisition — places of installation, was repealed by Acts 2005, No. 2233, § 9. The section was derived from Acts 1969, No. 465, Art. 12, §§ 3, 5; 1979, No. 738, §§ 1, 3; A.S.A. 1947, §§ 3-1203, 3-1203.1, 3-1205; Acts 1991, No. 843, § 1; 1995, No. 774, § 1; 1997, No. 446, § 1.

7-5-502. Application of election laws and penalties.

All laws of this state applicable to elections where voting is done in any manner other than by machines and all penalties prescribed for violation of these laws shall apply to elections and precincts where voting machines are used insofar as they are applicable.

History. Acts 1969, No. 465, Art. 12, § 33; A.S.A. 1947, § 3-1233.

7-5-503. Examination and approval of machines by State Board of Election Commissioners.

  1. Any person or corporation selling voting machines may apply to exhibit machines to the State Board of Election Commissioners.
  2. The state board shall examine the machine and file a report of its accuracy, efficiency, and capacity with the office of the Secretary of State.
  3. If the kind of machine examined complies with the requirements of § 7-5-504 and can be safely used by voters at elections under the conditions prescribed, the machine shall be deemed approved by the state board, and machines of its kind may be adopted for use at elections if selected for use by the Secretary of State. When the machine has been approved, any improvement or change that does not impair its accuracy, efficiency, or capacity shall not render necessary a reexamination or reapproval.
  4. A form of voting machine not approved cannot be used at any election.

History. Acts 1969, No. 465, Art. 12, § 1; A.S.A. 1947, § 3-1201; Acts 2005, No. 2233, § 10.

7-5-504. Machine specifications.

No make of voting machine shall be approved for use unless it is so constructed that:

  1. It will ensure secrecy to the voter in the act of voting;
  2. It shall provide the capacity for voting for or against as many questions as may be submitted;
  3. It shall permit the voter to vote separately for the candidate of his or her choice for each office or position to be voted upon and to vote separately on each issue to be decided by election;
  4. It shall permit the voter to vote for as many persons for an office for whom he or she is lawfully entitled to vote, but no more;
  5. It shall prevent the voter from voting for the same candidate or question more than one (1) time;
  6. It shall permit the voter to verify in a private and independent manner the votes selected by the voter on the ballot before the ballot is cast;
  7. It shall provide the voter with the opportunity in a private and independent manner to change the ballot or correct any error before the ballot is cast;
  8. If it is a direct recording electronic voting machine, it shall include a voter-verified paper audit trail, except as provided under § 7-5-301(b);
  9. If the voter is legally entitled to select only one (1) candidate for an office but the voter selects more than one (1) candidate for the office, it shall notify the voter before the ballot is cast that he or she has selected more than one (1) candidate for the office on the ballot, notify the voter of the effect of casting multiple votes for the office, and provide the voter with the opportunity to correct the ballot before the ballot is cast;
  10. It shall permit the voter to vote for or against any question on which he or she may have the right to vote, but no other;
  11. It shall be capable of being programmed to display for voting purposes only the voter's proper ballot;
  12. It shall correctly register and record and accurately count all votes cast for any and all persons and for or against any and all questions;
  13. It shall be provided with a protective device to prevent any unauthorized operation of the machine before or after the election;
  14. It shall be provided with a counter or tabulator which shall show at all times during the election how many persons have voted;
  15. It shall be so equipped and constructed so that it can be made inaccessible to further voting after the polls have closed and all voters who were in line at the time the polls closed have voted;
  16. It shall permit a voter to vote in any election for any person for whom he or she wishes to vote when the person's name does not appear upon the voting machine;
  17. It bears a unique numerical, alphabetical, or alphanumeric sequence identifier that distinguishes it from any other machine;
  18. It shall be provided with a screen, hood, or partition which shall allow the voter to vote a secret ballot;
  19. It shall be capable of being operated from an alternate power source should the need arise;
  20. It shall permit voters with disabilities to vote unassisted if they so desire; and
  21. It shall be:
    1. Qualified by an authorized federal agency or national testing and standards laboratory which is acceptable to the Secretary of State;
    2. Approved by the State Board of Election Commissioners; and
    3. Selected by the Secretary of State.

History. Acts 1969, No. 465, Art. 12, § 2; A.S.A. 1947, § 3-1202; Acts 2005, No. 654, § 1; 2005, No. 2233, § 11; 2015, No. 1218, § 5.

Amendments. The 2015 amendment substituted “the capacity” for “facilities” in (2); added “If it is a direct recording electronic voting machine” in (8); and rewrote (17) and (21)(A).

RESEARCH REFERENCES

U. Ark. Little Rock L. Rev.

Survey of Legislation, 2005 Arkansas General Assembly, Election Law, 28 U. Ark. Little Rock L. Rev. 351.

7-5-505, 7-5-506. [Repealed.]

Publisher's Notes. These sections, concerning guarantee and supervisory personnel required and purchase by sealed bid — uniformity of machines, were repealed by Acts 2005, No. 2233, § 9. The sections were derived from the following sources:

7-5-505. Acts 1969, No. 465, Art. 12, § 6; A.S.A. 1947, § 3-1206.

7-5-506. Acts 1969, No. 465, Art. 12, § 4; A.S.A. 1947, § 3-1204; Acts 1997, No. 446, § 2.

7-5-507. Demonstration — Assistance in operating machine.

    1. The manufacturer shall demonstrate the machine to the county election officials prior to the first election at which the machines are placed in use.
    2. The date for the demonstration shall be agreed upon by the vendor and the county board of election commissioners.
  1. On the date of the first election at which voting machines are used, manufacturers shall make employees available in each county where the machines are in operation to assist the county board of election commissioners in any manner that will expedite voting and provide efficient operation of voting machines. After the first election, the county board of election commissioners shall obtain the assistance needed in operating the machines, and the county board of election commissioners shall collect and pay expenses for this assistance as it would for any other election cost.

History. Acts 1969, No. 465, Art. 12, § 8; A.S.A. 1947, § 3-1208; Acts 1997, No. 446, § 3; 2005, No. 2233, § 14; 2015, No. 1218, § 6.

Amendments. The 2015 amendment inserted designations (a)(1) and (a)(2); inserted “county” in (a)(1); and substituted “agreed upon by the vendor and” for “set by” in (a)(2).

7-5-508. [Repealed.]

Publisher's Notes. This section, concerning custody and use of machines — costs, was repealed by Acts 2005, No. 2233, § 15. The section was derived from Acts 1969, No. 465, Art. 12, § 7; 1970 (1st Ex. Sess.), No. 5, § 1; A.S.A. 1947, § 3-1207; Acts 1997, No. 446, § 4.

7-5-509. Machines used for demonstration.

    1. The county board of election commissioners may designate suitable times and places where voting machines shall be exhibited for the purpose of giving instructions in their use to all voters who apply for instruction.
    2. Public notice of the times and places where voting machines will be exhibited shall be given at least forty-eight (48) hours before the first date of demonstration by publication one (1) time in one (1) or more daily or weekly newspapers published in the town, city, or county using the machines if a newspaper is published in the town, city, or county.
    1. The location of voting machines for demonstration shall be in accessible public buildings.
    2. The voting machines used for demonstration shall display sample ballots showing the title of offices to be filled and, as far as practicable, the names of the candidates in the next election.
  1. No voting machine that is to be assigned for use in any election shall be used for instruction after having been prepared and secured for the election. Machines shall not be used for demonstration purposes during the time that the polls are open on election day or if the demonstration shall in any way interfere with the proper adjustment, securing, or use of the machine in the election.

History. Acts 1969, No. 465, Art. 12, § 11; A.S.A. 1947, § 3-1211; Acts 2005, No. 2233, § 16; 2015, No. 1218, § 7.

Amendments. The 2015 amendment inserted designation (a)(1); added (a)(2); inserted designations (b)(1) and (b)(2); and rewrote (b)(1).

7-5-510. Forms for complaints about function of voting machine — Investigation.

  1. At each polling place at which voting machines are used, the county board of election commissioners shall provide forms that voters may use for complaints about the function of a voting machine. The complaint form shall include space for the following information:
    1. The name, address, and telephone number of the person making the complaint;
    2. The identification number of the voting machine;
    3. The complaint; and
    4. Such other information concerning the complaint as the State Board of Election Commissioners determines to be appropriate to carry out the intent of this section.
    1. A voter may file a complaint form with a poll worker who shall forward the complaint form to the county board of election commissioners.
    2. A copy of each complaint shall be provided to the Elections Division of the Secretary of State.
    3. It shall be the duty of the county board of election commissioners to investigate complaints regarding the function of a voting machine.

History. Acts 1985, No. 562, § 1; A.S.A. 1947, § 3-1235; Acts 1997, No. 446, § 5; 2009, No. 959, § 23; 2015, No. 1218, § 8.

Amendments. The 2009 amendment substituted “a poll worker” for “an election official” in (b).

The 2015 amendment inserted designation (b)(1); inserted (b)(2); and inserted designation (b)(3).

7-5-511. [Repealed.]

Publisher's Notes. This section, concerning ballot label — definition — form — content, was repealed by Acts 2005, No. 2233, § 17. The section was derived from Acts 1969, No. 465, Art. 12, § 9; 1975, No. 358, § 1; A.S.A. 1947, § 3-1209; Acts 1987, No. 247, § 4; 1991, No. 356, §§ 1, 2; 1997, No. 446, § 6.

7-5-512. Certification of ballot styles — Equipment furnished to polling sites.

  1. It shall be the duty of the county board of election commissioners to prepare and certify the ballot styles for the voting machine.
  2. In addition, the county board of election commissioners shall furnish any election materials and supplies as may be necessary or as may be required by law.
  3. The voting machine shall be delivered by the county board of election commissioners to the election officials at each polling site.
  4. The county board of election commissioners shall supply each precinct with clear, written instructions suitable for the instruction of voters that illustrate the manner of voting on the machine.

History. Acts 1969, No. 465, Art. 12, § 12; A.S.A. 1947, § 3-1212; Acts 1997, No. 446, § 7; 2005, No. 2233, § 18; 2007, No. 222, § 9.

Amendments. The 2007 amendment rewrote (b).

7-5-513. Machine breakdown — Delivery of ballot materials.

The county board of election commissioners in any county in which voting machines are to be used shall be ready at any time on election day to deliver ballots, ballot boxes, replacement voting machines, if available, or other necessary equipment required by law for voting to any precinct in the county, town, or city upon notice that any voting machine is out of order or fails to work.

History. Acts 1969, No. 465, Art. 12, § 31; A.S.A. 1947, § 3-1231; Acts 1997, No. 446, § 8; 2005, No. 2233, § 19.

Case Notes

Cited: Files v. Hill, 268 Ark. 106, 594 S.W.2d 836 (1980).

7-5-514. [Repealed.]

Publisher's Notes. This section, concerning authority to use both machines and ballots, was repealed by Acts 1997, No. 446, § 9. The section was derived from Acts 1969, No. 465, Art. 12, §§ 31, 32; A.S.A. 1947, §§ 3-1231, 3-1232.

7-5-515. Preparation of machines for election — Logic and accuracy testing and public testing.

  1. Immediately upon the proper certification of candidates and questions, the county board of election commissioners shall oversee programming of the election, proof the ballots, prepare the voting machines, and test and adjust the voting machines for the election.
  2. In performing these functions, the county board of election commissioners may be assisted by experts appointed or employed by the county board of election commissioners.
      1. As soon as the election media is prepared, but no later than seven (7) days before the beginning of voting, the county board of election commissioners, with respect to all elections except a runoff election under subdivision (c)(1)(B) of this section, shall conduct logic and accuracy testing by having all election media tested to ascertain that the voting system has been correctly configured and will correctly tabulate the votes cast for all offices and on all measures.
      2. As soon as the election media is prepared, but no later than five (5) days before the beginning of voting, the county board of election commissioners, with respect to a runoff election, shall conduct logic and accuracy testing by having all runoff election media tested to ascertain that the voting system has been correctly configured and will correctly tabulate the votes cast for all offices and on all measures.
    1. In addition to the logic and accuracy testing under subdivision (c)(1) of this section, the county board of election commissioners shall conduct public testing as follows:
      1. The county board of election commissioners shall give public notice of the time and place of the test at least forty-eight (48) hours prior to the public test by publication one (1) time in one (1) or more daily or weekly newspapers published in the town, city, or county using the machines if a newspaper is published in the town, city, or county;
      2. The public test shall be open to representatives of the political parties, candidates, media, and the public;
        1. The public test shall be conducted by processing a preaudited group of test ballots that are to be voted on the machines so as to record a predetermined number of valid votes for each candidate and on each measure.
        2. The public test shall include for each office one (1) or more ballots which have votes in excess of the number allowed by law in order to test the ability of the machines to reject the votes; and
      3. If any error is detected, the cause shall be ascertained and corrected and an errorless count shall be made before the machine is approved.
  3. After completion of the logic and accuracy test and the public test, the ballots and programs used shall be sealed, retained, and disposed of as provided by law.
  4. After completion of the logic and accuracy test and the public test, the county board of election commissioners shall certify the accuracy of the voting system by:
    1. Sending a copy of the electronic results to the Secretary of State; and
    2. Filing the test results with the county clerk.

History. Acts 1969, No. 465, Art. 12, §§ 10, 13; A.S.A. 1947, §§ 3-1210, 3-1213; Acts 1997, No. 446, § 10; 2005, No. 2233, § 20; 2009, No. 1480, § 33; 2015, No. 1218, § 9; 2017, No. 164, § 1; 2019, No. 966, § 6[5].

Amendments. The 2009 amendment rewrote (c)(1).

The 2015 amendment added “Logic and accuracy testing and public testing” in the section heading; substituted “these functions” for “this function” in (b); redesignated and rewrote (c); inserted “logic and accuracy test and the public” in (d); and rewrote (e).

The 2017 amendment redesignated former (c)(1) as (c)(1)(A); in (c)(1)(A), substituted “days before” for “days prior to” and inserted “except a runoff election under subdivision (c)(1)(B) of this section”; and added (c)(1)(B).

The 2019 amendment, in (a), inserted “oversee programming of the election, proof the ballots” and deleted “oversee their programming” preceding “and test and adjust”.

7-5-516. Notice to candidates of preparation — Rules and statutes unaffected.

Before the county board of election commissioners begins the preparation of the machines for any election, it shall publish a notice in a newspaper of general circulation in the county stating:

  1. The time and place the machines will be prepared for the election; and
  2. A time at which one (1) representative of each candidate may inspect to see that the machines are in proper condition for use in the election.

History. Acts 1969, No. 465, Art. 12, § 14; A.S.A. 1947, § 3-1214; Acts 1997, No. 446, § 11; 2009, No. 959, § 24.

Amendments. The 2009 amendment deleted (b); and substituted “publish a notice in a newspaper of general circulation in the county” for “mail a notice in due time to candidates or any representatives designated by candidates” in the introductory language.

7-5-517. Securing machines — Certification.

  1. When a voting machine has been properly prepared by the county board of election commissioners and examined by the representatives of the candidates or the candidate himself or herself, it shall be made inaccessible to voting.
    1. Any device required to activate the machine shall be placed in a package on which shall be written the serial number and the precinct location of the voting machine and the number registered on the device.
    2. The package shall be sealed in the presence of the representatives of the candidates or the candidates themselves.
  2. The county board of election commissioners shall then certify, in the presence of the candidates or their representatives, the serial numbers of the machines, and that all question counters are set at zero (000).
  3. An activation device required for voting on the voting machines shall be kept by the county board of election commissioners until turned over for delivery to the election officials with the election equipment at the polling site for election day.

History. Acts 1969, No. 465, Art. 12, § 15; A.S.A. 1947, § 3-1215; Acts 1997, No. 446, § 12; 2005, No. 2233, § 21; 2015, No. 1218, § 10.

Amendments. The 2015 amendment inserted designations (b)(1) and (b)(2); deleted “protective counter or” following “registered on the” in (b)(1); deleted “and the number registered on the protective counter of the machine” at the end of (c); and substituted “An activation” for “Any activator pack or” in (d).

7-5-518. Machines inactivated until polls open — Adjustment of counters.

  1. The voting machine shall remain inactivated against voting until the polls are formally opened and shall not be operated except by voters for voting.
  2. If any counter is found not to register zero (000), the poll workers shall immediately notify the county board of election commissioners, who shall cause the counters to be adjusted at zero (000).
    1. The poll workers shall produce one (1) printout from each machine showing whether the candidate and question counters register zero (000) and shall sign and post the printout upon the wall of the polling room, where it shall remain throughout the election day.
    2. After the close of voting on election day, the certified printout, signed by the poll workers, shall be:
      1. Returned to the county board of election commissioners; and
      2. Filed with the election returns.

History. Acts 1969, No. 465, Art. 12, § 16; A.S.A. 1947, § 3-1216; Acts 1997, No. 446, § 13; 2005, No. 2233, § 22; 2007, No. 835, § 1; 2009, No. 959, § 25; 2015, No. 1218, § 11.

Amendments. The 2007 amendment substituted “counter” for “counter or tabulator” in (b).

The 2009 amendment substituted “poll workers” for “election officials” in (b) and (c)(1).

The 2015 amendment rewrote (c)(2).

7-5-519. [Repealed.]

Publisher's Notes. This section, concerning unlocking machine for vote — custody of keys, was repealed by Acts 2005, No. 2233, § 23. The section was derived from Acts 1969, No. 465, Art. 12, § 17; A.S.A. 1947, § 3-1217; Acts 1997, No. 446, § 14.

7-5-520. Instructions for voters using voting machines.

During the election, each voter shall be instructed regarding the operation of voting machines before voting. The voter's attention shall also be called to the sample ballot, so that the voter shall become familiar with the questions, the names of the offices, and the names of the candidates.

History. Acts 1969, No. 465, Art. 12, § 18; A.S.A. 1947, § 3-1218; Acts 1997, No. 446, § 15; 2005, No. 2233, § 24.

7-5-521. Arrangement of polling place.

  1. The exterior of the voting machine and every part of the polling place shall be in plain view of the poll workers.
  2. The machine shall be placed so that no person can see or determine how the voter casts his or her vote.
  3. After the opening of the polls, the poll workers shall not allow any person to pass to the part of the room where the machine is situated, except for the purpose of voting.

History. Acts 1969, No. 465, Art. 12, § 22; A.S.A. 1947, § 3-1222; Acts 1997, No. 446, § 16; 2005, No. 2233, § 25; 2009, No. 959, § 26.

Amendments. The 2009 amendment substituted “poll workers” for “election officials” in (a) and (c).

Case Notes

Cited: Dust v. Riviere, 277 Ark. 1, 638 S.W.2d 663 (1982).

7-5-522. Voting procedure.

    1. When a voter presents himself or herself for the purpose of voting, the poll workers shall ascertain whether he or she is properly qualified and registered under § 7-5-305.
    2. In preparing the machines, the poll workers shall ensure that each voter will have access only to the proper ballot.
  1. Only one (1) voter at a time shall be permitted to approach a voting machine. Having cast his or her vote, the voter shall at once move away from the voting machine and leave the polling room by the exit provided.
  2. A voter having left the voting machine shall not be permitted to return to the voting machine except to complete the voting process.
  3. If a voter leaves an electronic ballot on a voting machine on which the voter has either made some or no selections and has failed to complete the process of casting the ballot and failed to notify a poll worker of his or her desire to cancel the ballot before departing the polling site, two (2) poll workers shall take action to complete the process of casting the ballot and shall document:
    1. The time;
    2. The name of the voter, if known;
    3. The names of the poll workers completing the process of casting the ballot; and
    4. All other circumstances surrounding the abandoned ballot.

History. Acts 1969, No. 465, Art. 12, § 21; A.S.A. 1947, § 3-1221; Acts 1989, No. 342, § 1; 1997, No. 446, § 17; 2005, No. 2233, § 26; 2007, No. 835, § 2; 2009, No. 959, § 26.

Amendments. The 2007 amendment added (d).

The 2009 amendment substituted “poll workers” for “election officials” or “election officers” or variants in five places, and made minor stylistic changes.

7-5-523. [Repealed.]

Publisher's Notes. This section, concerning assistance to voters with disabilities, was repealed by Acts 2007, No. 835, § 4. The section was derived from Acts 1995, No. 908, § 2; 1995, No. 1296, § 40; 1997, No. 446, § 18; 2003, No. 1308, § 3; 2005, No. 2233, § 27.

7-5-524. Voter access to machines — Persons in line at closing time.

  1. During the time that the polls are open for voting, no more voters shall be permitted to approach the voting machine than there are vacant machines available for voting.
  2. At the time of the closing of the polls, all persons who have presented themselves for voting and who are then in line at the polling place shall be permitted to cast their votes as now provided by law. Every person in line shall have the opportunity to vote.

History. Acts 1969, No. 465, Art. 12, § 23; A.S.A. 1947, § 3-1223.

7-5-525. Write-in votes.

  1. Votes for any person whose name does not appear on the voting machine as a qualified candidate for office are referred to in this section as write-in votes.
    1. The voting machine shall be programmed to allow a voter to enter the name of a qualified write-in candidate on the ballot.
    2. A write-in vote shall be cast in the appropriate place on the ballot, or the vote for that candidate shall be void and not counted.
  2. Write-in votes shall not be counted in primary elections.

History. Acts 1969, No. 465, Art. 12, § 20; A.S.A. 1947, § 3-1220; Acts 2005, No. 2233, § 28.

7-5-526. Closing of polls — Securing machines — Poll workers' certificate.

  1. At the official time for closing the polls and upon termination of the voting, the poll workers shall announce that the polls have closed and in the presence of all persons authorized to be present shall remove the activation devices from the voting machines to make them inaccessible to further voting.
  2. At the same time, the poll workers shall sign a certificate provided by the county board of election commissioners stating that the machines were made inaccessible to further voting and giving the exact time and the number of votes shown on the public counters.

History. Acts 1969, No. 465, Art. 12, § 24; A.S.A. 1947, § 3-1224; Acts 1997, No. 446, § 19; 2005, No. 2233, § 29; 2009, No. 959, § 27; 2015, No. 1218, § 12.

Amendments. The 2009 amendment substituted “poll workers” for “election officials” in (a) and (b).

The 2015 amendment deleted “packs or” following “activation” in (a).

7-5-527. Exposure of count — Verification — Return record — Official signatures.

  1. The poll workers shall then expose the count in the presence of all persons authorized to be present.
  2. It is the intention of this section to accord a full, complete, and public view of the count from each voting machine to all poll workers and designated watchers for the candidates or parties.
    1. The poll worker shall proceed to produce the result record in a minimum of three (3) copies.
      1. The result record shall be deemed the official count for that machine.
      2. One (1) copy of the completed return record for that machine shall be posted upon the wall of the polling room for all to see.
  3. The poll workers shall sign the machine return record produced by the device.
    1. The activation device used to collect votes from each voting machine and all certified result records shall be placed in a package that shall be sealed and signed by all the poll workers and any watchers that may desire to affix a signature.
      1. The sealed package shall be immediately returned to the county board of election commissioners by one (1) of the poll workers selected for this purpose, accompanied by those other poll workers and watchers who desire to join the poll worker.
      2. The poll worker shall obtain a receipt for the sealed package.

History. Acts 1969, No. 465, Art. 12, §§ 25, 26; A.S.A. 1947, §§ 3-1225, 3-1226; Acts 1997, No. 446, § 20; 2005, No. 2233, § 30; 2009, No. 959, § 27; 2015, No. 1218, §§ 13, 14.

Amendments. The 2009 amendment substituted “poll workers” for “election officials” or variant throughout the section.

The 2015 amendment substituted “result” for “return” in (c)(1) and (c)(2)(A); and, in (e)(1), deleted “pack or” following “activation” and substituted “result” for “return”.

7-5-528. Machines released to officers.

Voting machines shall be released to a person designated by the county board of election commissioners for storage in a secure facility designated by the county board of election commissioners.

History. Acts 1969, No. 465, Art. 12, § 27; A.S.A. 1947, § 3-1227; Acts 1997, No. 446, § 21; 2007, No. 835, § 5.

Amendments. The 2007 amendment substituted “Machines released to officers” for “Proclamation of election results” in the section heading, and rewrote the section.

7-5-529. Tabulation of returns.

  1. The county board of election commissioners shall compile countywide totals from the activation pack or device used to collect votes from each voting machine.
  2. Prior to certification of the official election results, the county board of election commissioners shall manually compile countywide totals from the polling location's certified return records and verify that they match the electronically derived totals from the activation pack or device used to collect votes from each machine.

History. Acts 1969, No. 465, Art. 12, § 28; A.S.A. 1947, § 3-1228; Acts 1997, No. 446, § 22; 2005, No. 2233, § 31.

7-5-530. Securing audit materials upon election contest or recount.

  1. The county board of election commissioners shall produce an audit log for each voting machine used in the election.
  2. In the event that there is an election contest filed, the judge of the court that has jurisdiction may order the county board of election commissioners to secure the audit logs and the voter-verified paper audit trail alleged in the contest to be in question. The county board of election commissioners shall store them in a secure place in the county courthouse under lock and key awaiting further orders of the court.
  3. In the event that any candidate in any election in which the machines have been utilized or any voter who questions the count of any question posed at any election gives written notice to the county board of election commissioners that he or she desires a recount, then the applicable county board of election commissioners shall secure the audit logs and voter-verified paper audit trails and store them in a secure place in the county courthouse awaiting further orders of the applicable county board of election commissioners or court.

History. Acts 1969, No. 465, Art. 12, § 29; A.S.A. 1947, § 3-1229; Acts 1997, No. 446, § 23; 2005, No. 2233, § 32; 2007, No. 835, § 6.

Amendments. The 2007 amendment substituted “Securing audit materials upon election contest or recount” for “Machines released to officials — Impounding upon election contest or recount” in the section heading; and rewrote the section.

7-5-531. Retention of audit data — Machines to remain secured until results are certified except on court order.

  1. All audit logs and voter-verified paper audit trails produced by a voting machine shall remain secured for a period of two (2) years.
    1. All voting machines used in any election shall remain secured for a period of at least three (3) days following the election unless the machines are ordered to be activated sooner by and on the authority of an order of a court of competent jurisdiction, in the event that the issue of the election should be in judicial controversy.
    2. Should no order be entered, it shall be the duty of the county board of election commissioners to clear the machines for future elections after the results of the election have been certified.

History. Acts 1969, No. 465, Art. 12, § 30; 1970 (1st Ex. Sess.), No. 25, § 1; A.S.A. 1947, § 3-1230; Acts 1997, No. 446, § 24; 2005, No. 2233, § 33.

7-5-532. Direct-recording electronic voting machines — Definitions.

  1. For purposes of this section:
    1. “Direct-recording electronic voting machine” means a voting machine that:
      1. Records votes by means of a ballot display provided with mechanical or electro-optical components that may be actuated by the voter;
      2. Processes the data by means of a computer program;
      3. Records voting data and ballot images in internal or external memory components; and
      4. Produces a tabulation of the voting data stored in a removable memory component and in a printed copy; and
    2. “Voter-verified paper audit trail” means a contemporaneous paper record of a ballot printed for the voter to confirm his or her votes before the voter casts his or her ballot.
  2. The Secretary of State or the county shall not purchase or procure a direct-recording electronic voting machine that does not include a voter-verified paper audit trail.
    1. All direct-recording electronic voting machines in use on or after January 1, 2006, shall include a voter-verified paper audit trail, except for those direct-recording electronic voting machines in use during the 2004 general election.
    2. All direct-recording electronic voting machines purchased on or after August 12, 2005, shall include a voter-verified paper audit trail.
  3. A direct-recording electronic voting machine with a voter-verified paper audit trail shall meet the following conditions:
    1. The voter-verified paper audit trail may be verified by the voter before the casting of the voter's ballot;
    2. The voter-verified paper audit trail shall not be retained by the voter;
    3. The voter-verified paper audit trail shall not contain individual voter information;
    4. The paper used in producing the voter-verified paper audit trail shall be sturdy, clean, and resistant to degradation; and
    5. The voter-verified paper audit trail shall be readable in a manner that makes the voter's ballot choices obvious to the voter without the use of computer or electronic code.
  4. Voter-verified paper audit trails shall be preserved in the same manner and for the same time period that ballots and certificates are preserved under § 7-5-702.

History. Acts 2005, No. 654, § 2; 2007, No. 835, § 7; 2009, No. 959, § 28; 2013, No. 1126, § 6.

Amendments. The 2009 amendment deleted (e)(1).

The 2013 amendment substituted “Direct-recording” for “Direct” in the introductory language of (a)(1).

RESEARCH REFERENCES

U. Ark. Little Rock L. Rev.

Survey of Legislation, 2005 Arkansas General Assembly, Election Law, 28 U. Ark. Little Rock L. Rev. 351.

Subchapter 6 — Paper Ballots and Electronic Vote Tabulating Devices

Amendments. The 2009 amendment by Acts 2009, No. 1480, § 34, substituted “Paper Ballots and Electronic Vote Tabulating Devices” for “Electronic Voting” in the subchapter heading.

Effective Dates. Acts 1977, No. 77, § 10: Jan. 31, 1977. Emergency clause provided: “It is hereby found and determined by the General Assembly that the election laws of this state authorize counties to use voting machines in primary, general, special, and school elections, but do not authorize the use of electronic voting systems which have been developed by modern technology, and that it is essential to the efficient operation of elections in this state that election officials in the respective counties be authorized to use electronic voting systems which meet the standards prescribed in this act, and that the immediate passage of this act is necessary in order to enable local election officials to follow procedures established in this act in establishing electronic voting systems prior to the next regular primary and general elections. Therefore, an emergency is hereby declared to exist, and this act being necessary for the immediate preservation of the public peace, health, and safety, shall be in full force and effect from and after its passage and approval.”

Acts 1979, No. 738, § 6: Apr. 6, 1979. Emergency clause provided: “It is hereby found and determined by the General Assembly that the election laws of this state permit the citizens of municipalities and counties to express their binding preference for the acquisition and use of voting machines or electronic voting systems only upon the approval of the question of their use at a general election, and present laws prohibit the mixed use of such machines and systems, and that the efficient and economic conduct of elections requires that local election officials and taxpayers have all reasonable options readily available in organizing and conducting elections at the earliest date. Therefore, an emergency is declared to exist, and this act, being necessary for the immediate preservation of the public peace, health, order, and safety, shall be in full force and effect from and after its passage and approval.”

Acts 2005, No. 2233, § 48: Jan. 1, 2006.

Acts 2009, No. 1480, § 117: Apr. 10, 2009. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that this act makes various revisions to Arkansas election laws that are designed to improve the administration of elections and special elections and that these revisions should be implemented as soon as possible so that the citizens of this state may benefit from improved election procedures. Therefore, an emergency is declared to exist and this act being immediately necessary for the preservation of the public peace, health, and safety shall become effective on: (1) The date of its approval by the Governor; (2) If the bill is neither approved nor vetoed by the Governor, the expiration of the period of time during which the Governor may veto the bill; or (3) If the bill is vetoed by the Governor and the veto is overridden, the date the last house overrides the veto.”

7-5-601. Paper ballots — Form.

  1. All paper ballots provided by the county board of election commissioners of any county in this state for any election shall be alike and shall be printed in plain type.
  2. Each ballot shall be printed on paper with a perforated portion capable of being detached for use as the ballot stub.
    1. As ballots are printed, the portion that shall be used as the ballot stub shall be numbered consecutively beginning with the number one (1).
    2. The number on the last ballot printed shall show the total number of ballots provided for the election.
    1. The heading on the front or inner side of each ballot shall be: “OFFICIAL BALLOT. Vote by placing an appropriate mark opposite the person for whom you wish to vote.”
    2. If the ballot contains an initiated or referred amendment, act, or measure, the heading shall also contain these words: “Vote on amendments, acts, and measures by placing an appropriate mark below the amendment (or act or measure) either FOR or AGAINST.”
  3. Beneath the heading on each paper ballot there shall be printed instructions that inform the voter:
    1. Of the effect of casting multiple votes for an office; and
    2. How to correct the ballot before it is cast and counted, including without limitation instructions on how to correct an error through the issuance of a replacement ballot if the voter was otherwise unable to change the ballot or correct an error.

History. Acts 1977, No. 77, § 1; A.S.A. 1947, § 3-1801n; Acts 2005, No. 2233, § 34; 2009, No. 1480, § 35; 2011, No. 1020, § 2.

Amendments. The 2009 amendment rewrote the section heading and the section.

The 2011 amendment substituted “below” for “above” in (d)(2).

RESEARCH REFERENCES

ALR.

Electronic voting systems. 12 A.L.R.6th 523.

Validity, Construction, and Application of State Requirements for Placement of Independent Candidates for United States Senate on Ballot. 59 A.L.R.6th 111.

Case Notes

Legislative Intent.

With the introduction of electronic voting, the legislature did not intend to repeal or modify any of the laws authorizing the use of paper ballots or voting machines; rather, it was the purpose of the legislature to establish an additional and supplemental method of marking vote cards and tabulating election results. Womack v. Foster, 340 Ark. 124, 8 S.W.3d 854 (2000).

7-5-602. Ballots — Number — Official — Marking device — Spoiled.

    1. The county board of election commissioners of each county in this state using paper ballots counted by hand at the polling site, paper ballots counted by an electronic vote tabulating device at the polling site, or paper ballots cast at a polling site and counted at a central location shall provide for each election precinct one hundred fifty (150) printed ballots for each one hundred (100) or fraction of one hundred (100) electors voting on paper ballots at the last preceding comparable election.
    2. The total number of ballots required to be printed for each election precinct shall not exceed one hundred five percent (105%) of the total number of registered voters for the respective precinct.
  1. A ballot shall not be received or counted in any election to which this subchapter applies unless it is provided by the county board of election commissioners under this section.
  2. At all elections in counties that use paper ballots and in which those ballots are counted by hand, the ballots shall be marked using permanent ink.
    1. A voter who shall by accident or mistake mar or spoil any ballot so that he or she cannot conveniently or clearly vote on the ballot may return it to the poll workers and receive another ballot, not to exceed three (3) ballots in total.
    2. Spoiled ballots shall be cancelled by a poll worker's writing “CANCELLED” on its face and initialing the ballot.
    3. The cancelled ballots shall be preserved separately from other ballots and returned to the county board of election commissioners and shall be open to public inspection.

History. Acts 2009, No. 1480, § 36.

7-5-603. Counting paper ballots at the polling site.

When paper ballots are to be counted at the polling site, the following procedures shall be followed:

    1. In counting the ballots, the ballot box shall be opened and each ballot shall be counted in turn or by counting by offices and issues.
    2. The poll workers shall witness the counting of the ballots and shall keep separate tally lists of the votes cast for each candidate or issue on the ballot;
    1. When two (2) or more ballots are found folded together, it shall be considered as conclusive evidence the ballots are fraudulent and neither of the ballots shall be counted.
    2. If a ballot is found to contain marks for more than the maximum allowable number of candidates in any one (1) contest, the contest shall be considered overvoted, and it shall be the responsibility of the poll workers to determine the voter's intent;
    1. Upon the close of the polls, the poll workers immediately shall certify and attest the list of voters and continue the count to completion.
    2. If a poll worker becomes sick or incapacitated from any other cause, the remaining poll workers shall continue the count until it is completed;
  1. After the count is completed, the poll workers shall make out the certificates of election in triplicate and immediately post one (1) copy outside the polling site; and
    1. The counting of ballots shall be open to the public.
    2. Any candidate or political party may be present in person or by representative designated in writing under § 7-5-312 at the count of the ballots in any election for the purpose of determining whether or not the ballots in any election precinct are fairly and accurately counted.
    3. The candidate in person or an authorized representative of the candidate or political party shall be permitted, upon a request's being made to a poll worker, to inspect any or all ballots after the ballots have been counted.

History. Acts 1977, No. 77, § 8; A.S.A. 1947, § 3-1807; Acts 2005, No. 2233, § 35; 2009, No. 1480, § 37.

Amendments. The 2009 amendment rewrote the section heading and the section.

Case Notes

Suspending Vote Count.

Plaintiff was not entitled to the vote count that apparently existed on the night of the election, where the election officials temporarily ceased counting ballots because they could not find three missing ballots. No fraud was alleged or involved in stopping and resuming the vote count the next morning. Ashcraft v. Cox, 310 Ark. 703, 839 S.W.2d 219 (1992) (decided under former § 7-5-315(5)).

7-5-604. Authorization — Election laws applicable.

  1. Paper ballot voting systems that include electronic vote tabulating devices may be used in elections, provided that the systems shall:
    1. Enable the voter to cast a vote in secrecy;
    2. Enable the voter to vote for all offices and measures on which he or she is entitled to vote;
    3. Permit the voter to verify in a private and independent manner the votes selected by the voter on the ballot before the ballot is cast;
    4. Provide the voter with the opportunity in a private and independent manner to change the ballot or correct any error before the ballot is cast;
      1. Notify the voter that he or she has selected more than one (1) candidate for the office, notify the voter before the ballot is cast and counted of the effect of casting multiple votes for the office, and provide the voter with the opportunity to correct the ballot before the ballot is cast if the voter is legally entitled to select only one (1) candidate for an office but the voter selects more than one (1) candidate for the office.
      2. Electronic vote tabulating devices used to cast and count votes at the polling place shall be programmed to reject ballots containing overvotes as described in this section.
      3. When votes are cast at polling places and are to be counted by hand or at the courthouse or other central counting location, the county board of election commissioners shall provide a voter education program to inform the voters:
        1. Of the effect of casting multiple votes for an office; and
        2. How to correct the ballot before it is cast, including, but not limited to, instructions on how to correct the error through the issuance of a replacement ballot if the voter was otherwise unable to change the ballot or correct any error;
      1. Notify the voter that the voter has selected more than the allowed number of candidates for the office on the ballot, notify the voter before the ballot is cast and counted of the effect of casting more than the allowed number of votes for that office, and provide the voter with the opportunity to correct the ballot before the ballot is cast if the voter is legally entitled to select multiple candidates for an office but the voter selects more than the number of candidates he or she is legally entitled to select.
      2. Electronic vote tabulating devices used to cast and count votes at the polling places shall be programmed to reject ballots containing overvotes as described in this section.
      3. When votes are cast at polling places and are to be counted by hand or at the courthouse or other central counting location, the county board of election commissioners shall provide a voter education program to inform the voters:
        1. Of the effect of casting more votes than the voter is legally entitled to cast for an office; and
        2. How to correct the ballot before it is cast, including, but not limited to, instructions on how to correct the error through the issuance of a replacement ballot if the voter was otherwise unable to change the ballot or correct any error;
    5. Permit the voter to vote:
      1. At any election for all persons and officers for whom he or she is lawfully entitled to vote and no others;
      2. For as many persons for an office as he or she is entitled to vote;
      3. For or against any question upon which he or she is entitled to vote; and
      4. By means of a single device, if authorized by law, for all candidates for one (1) party or to vote a split ticket as he or she desires;
    6. Permit the voter by one (1) mark to vote for the candidates for that party for president, vice president, and their presidential electors at presidential elections;
    7. Generate a printed record at the beginning of its operation which verifies that the tabulating elements for each candidate position and each question and the public counter are all set to zero (000); and
    8. Generate a printed record at the finish of its operation of the total number of:
      1. Voters whose ballots have been tabulated;
      2. Votes cast for each candidate whose name appears on the ballot;
      3. Votes cast for or against any question appearing on the ballot; and
      4. Undervotes and overvotes by contest.
  2. So far as applicable, the procedures provided by law for voting by other means and the conduct of the election in regard thereto by the election officials, not otherwise inconsistent with this subchapter, shall apply to the system of electronic vote tabulation as authorized in this subchapter.

History. Acts 1977, No. 77, § 3; 1979, No. 738, § 2; A.S.A. 1947, § 3-1802; Acts 2005, No. 2233, § 36; 2009, No. 1480, § 38.

Amendments. The 2009 amendment substituted “Paper ballot voting” for “Voting” in the introductory language of (a).

7-5-605. [Repealed.]

Publisher's Notes. This section, concerning adoption by ordinance — costs, was repealed by Acts 2005, No. 2233, § 37. The section was derived from Acts 1977, No. 77, § 3; 1979, No. 738, § 2; A.S.A. 1947, § 3-1802.

7-5-606. Approval of equipment — Specifications.

  1. The State Board of Election Commissioners may promulgate rules for the administration of this subchapter and shall approve the marking devices and electronic vote tabulating devices.
    1. Any person or company wishing to exhibit marking devices and electronic vote tabulating devices may file written application with the board and request an opportunity to exhibit and demonstrate devices.
    2. The board shall examine the marking device or the electronic vote tabulating device and file a report in the office of the Secretary of State of its accuracy, efficiency, and capacity.
    3. If the board shall reject any device, the reasons shall be stated in the report filed with the Secretary of State.
    4. Any person or company aggrieved by any finding or ruling of the board may appeal to the Pulaski County Circuit Court within sixty (60) days from the date the report of the board is filed with the Secretary of State.
  2. After any device has been approved, it shall not be necessary that it be exhibited and approved again by the board unless there is a change or modification in the device that renders it incapable of marking ballots or tabulating votes in the same method of procedure approved by the board.
  3. Marking devices or electronic vote tabulating devices not approved by the board or selected by the Secretary of State may not be used in any lawful election in this state.
  4. No marking device or electronic vote tabulating device shall be approved unless it fulfills the requirements of this section and the federal Help America Vote Act of 2002.

History. Acts 1977, No. 77, § 7; A.S.A. 1947, § 3-1806; Acts 2005, No. 2233, § 38; 2015, No. 1218, §§ 15, 16.

U.S. Code. The federal Help America Vote Act of 2002, referred to in (e), is codified as 52 U.S.C. § 20901 et seq.

Amendments. The 2015 amendment inserted “marking device or the” in (b)(2); and, in (d), added “Marking devices or” and inserted “or selected by the Secretary of State”.

7-5-607. Arrangement of polling place.

In precincts where an electronic vote tabulating device is used, sufficient space shall be provided for the use of the device, and it shall be arranged in such a manner as to assure secrecy in voting.

History. Acts 1977, No. 77, § 4; A.S.A. 1947, § 3-1803; Acts 2005, No. 2233, § 39.

7-5-608. [Repealed.]

Publisher's Notes. This section, concerning sample voting materials, was repealed by Acts 2007, No. 222, § 10. The section was derived from Acts 1977, No. 77, § 4; A.S.A. 1947, § 3-1803; Acts 1997, No. 446, § 26; 2005, No. 2233, § 40.

7-5-609. Spoiled ballots.

Any voter who spoils his or her ballot or makes an error may return it to the election officials and mark another, not to exceed three (3) in all.

History. Acts 1977, No. 77, § 4; A.S.A. 1947, § 3-1803; Acts 2005, No. 2233, § 41; 2015, No. 1218, § 17.

Amendments. The 2015 amendment substituted “mark” for “secure”.

7-5-610. Write-in ballots.

In all elections in which write-in candidacies are allowed, the ballot shall permit electors to submit the names of persons who have qualified as write-in candidates and whose names are not on the ballot.

History. Acts 1977, No. 77, § 4; A.S.A. 1947, § 3-1803; Acts 2005, No. 2233, § 42; 2015, No. 1218, § 18.

Amendments. The 2015 amendment substituted “submit” for “write in”.

7-5-611. Preparation of electronic vote tabulating devices — Test — Disposition of voting materials.

    1. The county board of election commissioners, with respect to all elections, shall cause the electronic vote tabulating devices used for voting to be properly programmed and tested before delivery to the election precincts.
    2. As soon as the election media are prepared, but no later than seven (7) days before the beginning of voting, the county board of election commissioners, with respect to all elections except a runoff election as described in subdivision (a)(3) of this section, shall conduct logic and accuracy testing by having all election media from each electronic vote tabulating device tested to ascertain that the devices will correctly tabulate the votes cast for all offices and on all measures.
    3. In a runoff election, as soon as the election media are prepared, but no later than five (5) days before the beginning of voting, the county board of election commissioners shall conduct logic and accuracy testing by having all runoff election media from each electronic vote tabulating device tested to ascertain that the devices will correctly tabulate the votes cast for all offices and on all measures.
  1. In addition to the logic and accuracy test under subsection (a) of this section, the county board of election commissioners shall conduct public testing as follows:
    1. The county board of election commissioners shall provide public notice of the time and place of the public test at least forty-eight (48) hours prior thereto by publication one (1) time in one (1) or more daily or weekly newspapers published in the town, city, or county using the devices, if a newspaper is published therein;
    2. The public test shall be open to representatives of the political parties, candidates, the press, and the public;
      1. The public test shall be conducted by processing predetermined results from a group of ballots marked to record a predetermined number of valid votes for each candidate and on each measure for each precinct or voting location.
      2. Prior to the start of the public test, a printout shall be generated to show that no votes are recorded on the electronic vote tabulating device.
      3. The public test shall include for each office one (1) or more ballots which have votes in excess of the number allowed by law in order to test the ability of the electronic vote tabulating devices to reject such votes;
    3. If any error is detected, the cause shall be ascertained and corrected, and an errorless count shall be made before the electronic vote tabulating device or devices are certified for use in the election; and
    4. Upon completion of the public test, the electronic vote tabulating devices shall be cleared of any votes cast during the test.
  2. After completion of the logic and accuracy test and the public test, the county board of election commissioners shall certify the accuracy of the voting system by sending a copy of the electronic results to the Secretary of State and filing the test results with the county clerk.
    1. Before the opening of the polls, the poll workers shall generate a printout from the electronic vote tabulating device or devices to verify that the candidates and measures are correct for the location and that no votes are recorded on the electronic vote tabulating device or devices.
    2. The poll workers shall sign and post the printout upon the wall of the polling room where it shall remain throughout the election day.
    3. The certified printout shall be filed with the election returns.

History. Acts 1977, No. 77, § 4; A.S.A. 1947, § 3-1803; Acts 1997, No. 446, § 27; 2005, No. 2233, § 43; 2009, No. 959, § 29; 2009, No. 1480, § 39; 2015, No. 1218, § 19; 2017, No. 164, § 2.

Amendments. The 2009 amendment by No. 959 substituted “poll workers” for “election officials” in (b)(1) and (b)(2).

The 2009 amendment by No. 1480 rewrote (a)(2).

The 2015 amendment rewrote (a)(2); redesignated former (a)(3) through (a)(7) as (b); inserted the introductory language of (b); rewrote present (b)(1); inserted “public” preceding “test” throughout (b)(2) and (b)(3); substituted “public test” for “testing” in (b)(5); redesignated and rewrote former (a)(8) as (c); and redesignated former (b) as (d).

The 2017 amendment, in (a)(2), substituted “days before” for “days prior to” and inserted “except a runoff election as described in subdivision (a)(3) of this section”; and added (a)(3).

7-5-612. [Repealed.]

Publisher's Notes. This section, concerning absentee ballots, was repealed by Acts 1997, No. 446, § 28. The section was derived from Acts 1977, No. 77, § 5; A.S.A. 1947, § 3-1804.

7-5-613. Counting ballots and write-in votes.

In precincts where an electronic vote tabulating device is used, as soon as the polls are closed:

  1. The poll workers shall compare the total number of voters indicated by the electronic vote tabulating device with the list of voters to ensure that the number recorded by the tabulator is the same as the number of voters shown on the list of voters who received a ballot at the polling site. If the totals are different, this fact shall be reported in writing to the county board of election commissioners with the reasons, if known; and
  2. The poll workers shall count the write-in votes and prepare a return of the votes on forms provided for that purpose.

History. Acts 1977, No. 77, § 6; A.S.A. 1947, § 3-1805; Acts 1997, No. 446, § 29; 2005, No. 2233, § 44; 2009, No. 959, § 30.

Amendments. The 2009 amendment substituted “poll workers” for “election officials” in (1) and (2).

7-5-614. Locations for vote tabulation — Procedures.

For the tabulation of votes of a precinct by electronic vote tabulating devices at a central counting location:

    1. The poll workers shall place all ballots that have been cast in the container provided for that purpose.
    2. The container shall be sealed and delivered to the county board of election commissioners forthwith by the poll workers together with the unused, void, and defective ballots; and
  1. All proceedings at the counting location shall be under the direction of the county board of election commissioners with respect to all elections.

History. Acts 1977, No. 77, § 6; A.S.A. 1947, § 3-1805; Acts 1993, No. 511, § 3; 1997, No. 446, § 30; 2005, No. 2233, § 45; 2007, No. 835, § 8; 2009, No. 959, § 30.

Amendments. The 2007 amendment rewrote the section.

The 2009 amendment substituted “poll workers” for “election officials” in (1)(A) and (1)(B); deleted (2)(B); redesignated the remaining subdivision of (2) accordingly; and deleted “at least two (2) election officials named by” following “direction of” in (2).

7-5-615. Tabulation of votes — Defective ballots — Certification of returns.

  1. The counting of votes by electronic vote tabulating devices at the courthouse or other central counting location shall be open to the public, and any candidate or political party may be present in person or by representative designated in writing pursuant to § 7-5-312 to view the counting.
  2. No person except those employed and authorized for that purpose shall touch any ballot or return.
  3. The election officials at the counting place and all persons operating the electronic vote tabulating devices shall take the same oath required by law for election officials before entering upon their duties.
  4. If any ballot is damaged or defective so that it cannot properly be counted by the electronic vote tabulating device, a true duplicate copy shall be made of the damaged ballot in the presence of tabulation election officials if the votes are tabulated at a central location. The duplicate shall be substituted for the damaged ballot. All duplicate ballots shall be clearly labeled “duplicate” and shall be counted in lieu of the damaged or defective ballot.
  5. The return printed by the electronic vote tabulating device, to which has been added the return of write-in, early, and absentee votes, shall constitute the official return of each polling site. All returns shall be certified by the election officials in charge of the tabulation thereof in the manner provided by law.
  6. Upon completion of the count, the returns shall be open to the public.

History. Acts 1977, No. 77, § 6; A.S.A. 1947, § 3-1805; Acts 1997, No. 446, § 31; 2003, No. 1154, § 5; 2005, No. 2233, § 46; 2007, No. 835, § 9.

Amendments. The 2007 amendment substituted “Defective ballots” for “Defective vote cards” in the section heading; and substituted “polling site” for “precinct” in (e).

7-5-616. Penalty.

A person who violates this subchapter shall be subject to the same fine and imprisonment as provided by law for violating the comparable provisions of the laws of this state regarding voting by other voting methods.

History. Acts 2009, No. 1480, § 40.

Publisher's Notes. The former § 7-5-616, concerning use of ultraviolet ink in lieu of a black-out sticker, was repealed by Acts 1997, No. 446, § 32. The section was derived from Acts 1993, No. 1297, § 1.

Subchapter 7 — Returns and Canvass

Effective Dates. Acts 1969, No. 465, Art. 13, § 10: approved Apr. 17, 1969. Emergency clause provided: “It is hereby found and declared by the General Assembly of the State of Arkansas that the present election laws are ancient and outdated in part and have caused and are causing much confusion and controversy, that there are particular problem areas in the present law which need immediate legislation in order to resolve same, that elections are and will continue to be held and conducted in this atmosphere of confusion and controversy until these problem areas are resolved and this Act being necessary for the immediate preservation of the public peace, health and safety, an emergency is hereby declared to exist and this Act shall be in force and effect from and after its passage.”

Acts 2001, No. 1789, § 12: Emergency clause failed. Emergency clause provided: “It is found and determined by the General Assembly that Amendment 80 to the Arkansas Constitution becomes effective on July 1, 2001; that this implements the nonpartisan election of justices and judges as mandated by Amendment 80; and that to effectively implement Amendment 80, this act should become effective on July 1, 2001. Therefore, an emergency is declared to exist and this act being necessary for the immediate preservation of the public peace, health and safety shall become effective on July 1, 2001.”

Acts 2005, No. 2233, § 48: Jan. 1, 2006.

Research References

Am. Jur. 26 Am. Jur. 2d, Elections, § 365 et seq.

C.J.S. 29 C.J.S., Elections, § 395 et seq.

7-5-701. Declaration of results — Certification, delivery, and custody of returns.

    1. No earlier than forty-eight (48) hours after the election and no later than the fifteenth calendar day after the election, the county board of election commissioners, from the certificates and ballots received from the several precincts, shall proceed to ascertain, declare, and certify the result of the election to the Secretary of State.
    2. Unopposed candidates, other than candidates for mayor, governor, city clerk, and circuit clerk, shall be separately declared and certified to the Secretary of State as elected in the same manner as if the candidate had been voted upon at the election.
      1. As results are received and tabulated on election night for all state and federal elections, the county board of election commissioners shall declare preliminary and unofficial results of the election as soon as early voting, absentee, or individual precinct results are tabulated on election night and immediately shall transmit the results by precinct to the Secretary of State through the election night reporting interface provided by the Secretary of State.
      2. The county board of election commissioners may, by agreement with the county clerk, transmit the results to the county clerk who immediately shall transmit the results by precinct to the Secretary of State under subdivision (a)(3)(A) of this section.
      3. On election night for all state and federal elections, immediately after the count of the vote is complete, the county board of election commissioners shall:
        1. Declare preliminary and unofficial results of the election, including a statement of the number of outstanding:
          1. Ballots of voters who requested ballots under the Uniformed and Overseas Citizens Absentee Voting Act, 52 U.S.C. § 20301 et seq.; and
          2. Provisional ballots; and
        2. Immediately transmit the results by precinct to the Secretary of State through the election night reporting interface provided by the Secretary of State.
      4. The county board of election commissioners may, by agreement with the county clerk, transmit the results to the county clerk who shall immediately transmit the results by precinct to the Secretary of State as described in subdivision (a)(3)(C) of this section.
      5. The Secretary of State may establish policies and procedures to accomplish the objectives set forth under this section.
    3. Within nineteen (19) calendar days after any general, special, or school election, the county board of election commissioners shall deliver a certificate of election to the person having the highest number of legal votes for any county office.
  1. The county board of election commissioners shall also file in the office of the clerk of the county court a certificate setting forth in detail the result of the election in each precinct.
    1. No earlier than forty-eight (48) hours after the election and no later than the fifteenth calendar day after the election, the county board of election commissioners shall deposit certified copies of the abstracts of the returns of the election for members of the United States Congress and for all executive, legislative, and judicial officers in the nearest post office on the most direct route to the seat of government and directed to the Secretary of State.
    2. Separate from an abstract, the county board of election commissioners shall certify all unopposed candidates for these offices as elected in the same manner as if the candidate had been voted upon at the election.
    3. The county board of election commissioners shall not receive compensation for election duties after the election until the election results have been certified and delivered to the Secretary of State.
    4. The Secretary of State shall file a complaint with the State Board of Election Commissioners under § 7-4-120 if the county board of election commissioners does not comply with subdivision (c)(1) of this section.
    1. It shall at the same time enclose in a separate envelope and direct to the Speaker of the House of Representatives, in care of the Secretary of State, at the seat of government, a certified copy of the abstract of votes given for Governor, Lieutenant Governor, Secretary of State, Treasurer of State, Auditor of State, and Attorney General.
    2. It is the duty of the Secretary of State to safely keep the returns addressed to the Speaker of the House of Representatives until they shall be required for the purpose of ascertaining and declaring the result of the election as prescribed in Arkansas Constitution, Article 6, § 3.

History. Acts 1969, No. 465, Art. 8, § 1; 1971, No. 261, § 14; A.S.A. 1947, § 3-801; Acts 1993, No. 512, § 3; 1993, No. 966, § 1; 1995, No. 441, § 1; 1995, No. 723, § 1; 1995, No. 724, § 1; 1999, No. 1304, § 1; 2001, No. 1475, § 1; 2003, No. 131, § 1; 2005, No. 731, § 1; 2005, No. 895, § 1; 2005, No. 1677, § 5; 2013, No. 1058, § 1; 2013, No. 1211, § 5; 2017, No. 730, § 3; 2019, No. 254, § 2.

Amendments. The 2013 amendment by No. 1058 rewrote (a)(2).

The 2013 amendment by No. 1211 added “in each precinct” in (b).

The 2017 amendment inserted present (a)(2) and (c)(2); redesignated former (a)(2), (a)(3) as present (a)(3), (a)(4); substituted “under subdivision (a)(3)(A)” for “as described under subdivision (2)(A)” in present (a)(3)(B); substituted “subdivision (a)(3)(C)” for “subdivision (2)(C)” in (a)(3)(D); redesignated former (c)(2) and (c)(3) as present (c)(3) and (c)(4); and substituted “under” for “pursuant to” in (c)(4).

The 2019 amendment inserted “city clerk” in (a)(2).

Research References

U. Ark. Little Rock L. Rev.

Survey of Legislation, 2001 Arkansas General Assembly, Election Law, 24 U. Ark. Little Rock L. Rev. 465.

Survey of Legislation, 2003 Arkansas General Assembly, Election Law, Transmittal of Election Results, 26 U. Ark. Little Rock L. Rev. 395.

Case Notes

Going Behind Returns.

The canvassing board may not go behind the returns and purge the returns of illegal votes. Pitts v. Stuckert, 111 Ark. 388, 163 S.W. 1173 (1914) (decision under prior law).

Number of Commissioners.

Certification of local option election returns by two commissioners instead of three, since one commissioner was away on personal business, did not invalidate certification. Bonds v. Rogers, 219 Ark. 319, 241 S.W.2d 371 (1951) (decision under prior law).

7-5-702. Preservation of ballots, stubs, certificates, and other election materials.

  1. After the election has been finally certified by the county board of election commissioners, the county board of election commissioners shall retain the custody of and safely keep in a sealed container appropriately marked in a secure location in the county courthouse or other county storage facility all ballots, ballot stubs, and certificates returned to it from the several precincts for a period of twenty (20) days, after which time the ballots and certificates shall be stored in a secure location in the county courthouse or other county storage facility for a period of two (2) years from the date of the election, unless the county board of election commissioners shall be sooner notified in writing that:
    1. The election of some person voted for at the election and declared to have been elected has been contested;
    2. Criminal prosecution has begun before a tribunal of competent jurisdiction against any officer of election or person voting thereat for any fraud in the election; or
    3. The results of the election will be audited by the State Board of Election Commissioners under § 7-4-121.
  2. If the county board of election commissioners is notified as provided in subsection (a) of this section, then so many of the ballots and certificates as may relate to matters involved in the contest or any prosecution shall be preserved for use as evidence in the contest or prosecution.
  3. During the time the ballots may be retained or stored, the package containing them shall not be opened by anyone unless:
    1. Directed to do so by some competent tribunal before which an election contest or prosecution is pending in which the ballots are to be used as evidence; or
    2. Upon written instruction signed by the Director of the State Board of Election Commissioners under § 7-4-121.
  4. For twenty (20) days, the county board of election commissioners shall retain the custody of ballot stubs in an appropriately marked, sealed container delivered to the county board of election commissioners from the several precincts, after which time they shall be stored in a secure location in the county courthouse or other county storage facility unless:
    1. An election contest has been filed;
    2. A criminal prosecution has been initiated in connection with the election; or
    3. Upon written instruction signed by the director under § 7-4-121.
  5. After a period of two (2) years, all marked ballots and ballot stubs may be destroyed in the following manner:
    1. The county board of election commissioners shall enter an order directing the destruction of marked ballots and ballot stubs;
    2. The county board of election commissioners shall make and retain a record of marked ballots and ballot stubs destroyed; and
    3. The county board of election commissioners shall file with the county clerk the order and record pertaining to marked ballots and ballot stubs destroyed.

History. Acts 1969, No. 465, Art. 8, § 2; A.S.A. 1947, § 3-802; Acts 1987, No. 492, § 1; 1997, No. 446, § 33; 2005, No. 953, § 1; 2005, No. 2233, § 47; 2009, No. 959, § 31; 2013, No. 236, § 2; 2017, No. 621, § 3; 2019, No. 888, §§ 3, 4.

Amendments. The 2009 amendment inserted “After the election has been finally certified by the county board of election commissioners” in (a); deleted (f); and made related and minor stylistic changes.

The 2013 amendment rewrote (d); inserted “and ballot stubs” in (e), (e)(1) and (e)(2); and, in (e)(3), inserted “with the county clerk” following “board shall file” and deleted “with the county clerk” at the end.

The 2017 amendment inserted “ballot stubs” in (a).

The 2019 amendment added (a)(3); redesignated part of (c) as (c)(1); added (c)(2); in (d), substituted “board of election commissioners” for “treasurer” preceding “shall retain” and substituted “the county board of election commissioners” for “him or her”; redesignated part of (d) as (d)(1) and (d)(2); and added (d)(3).

Cross References. Miscellaneous felonies — Penalties, § 7-1-104.

RESEARCH REFERENCES

U. Ark. Little Rock L. Rev.

Survey of Legislation, 2005 Arkansas General Assembly, Election Law, 28 U. Ark. Little Rock L. Rev. 351.

Case Notes

Custody During Contest.

Where, in an election contest, the ballots of a certain township were produced in evidence by the board of election commissioners, they were to remain in the custody of the court and in case of their production at a second trial by one of the election commissioners, no presumption of official regularity would be indulged. Lovewell v. Bowen, 75 Ark. 452, 88 S.W. 570 (1905) (decision under prior law).

Parol Proof.

Where the ballots of an election were kept by the election commissioners for six months and were then destroyed, no notice having been given to the commissioners to preserve them for a longer period, parol proof was not admissible thereafter to contradict the official returns by showing how the votes were cast at the election. Condren v. Gibbs, 94 Ark. 478, 127 S.W. 731 (1910) (decision under prior law).

Trial Court Authority.

A court having jurisdiction of an election contest may make orders for preserving the ballots and using them as evidence; and unless there is some abuse of the court's power in this respect, there is nothing for the Supreme Court to review. Williams v. Buchanan, 86 Ark. 259, 110 S.W. 1024 (1908) (decision under prior law).

Cited: Parks v. Taylor, 283 Ark. 486, 678 S.W.2d 766 (1984).

7-5-703. Votes for United States Congress — Tie vote.

  1. It shall be the duty of the Secretary of State, in the presence of the Governor, within thirty (30) days after the time allowed to make returns of election by the county board of election commissioners, or sooner, if all the returns have been received, to cast up and arrange the votes from the several counties, or such of them as may have made returns, for each person voted for as United States Senator or United States Representative.
  2. The Governor shall immediately thereafter issue his or her proclamation declaring the person having the greatest number of legal votes to be duly elected to represent this state in the United States Senate or the United States House of Representatives and shall grant a certificate thereof, under the seal of the state, to the person so elected.
    1. Should any two (2) or more persons have an equal number of votes, and a higher number than any other person, the names of the two (2) candidates receiving the highest number of votes for United States Senator or United States Representative shall be certified to a special runoff election which shall be held four (4) weeks from the day on which the general election is held.
    2. The special runoff election shall be conducted in the same manner as is provided by law, and the election results shall be canvassed and certified in the manner provided by law.

History. Acts 1969, No. 465, Art. 8, §§ 3, 4; 1971, No. 261, §§ 15, 16; A.S.A. 1947, §§ 3-803, 3-804; Acts 1997, No. 446, § 34; 2017, No. 1104, § 3.

Amendments. The 2017 amendment redesignated former (c) as (c)(1) and (c)(2); in (c)(1), substituted “United States Representative” for “Representative” and substituted “four (4) weeks” for “three (3) weeks”; and deleted “now” preceding “provided” in (c)(2).

Research References

ALR.

Validity of Runoff Voting Election Methodology. 67 A.L.R.6th 609.

7-5-704. Votes for legislative, judicial, and executive officers — Tie vote.

  1. It shall be the duty of the Secretary of State, in the presence of the Governor, within thirty (30) days after the time allowed in this subchapter to make returns of elections by the county board of election commissioners, or sooner, if all the returns have been received, to cast up and arrange the votes from the several counties for each person who received votes for any legislative, judicial, or executive office, except the offices named in Arkansas Constitution, Article 6, § 3. The persons who have received the greatest number of legal votes for Justice of the Supreme Court and Commissioner of State Lands, within the state; judges of the Court of Appeals and of the circuit courts, and prosecuting attorneys, in their respective districts or circuits; judges of the county and probate courts, circuit clerk, county clerk, sheriff, coroner, surveyor, and assessor, in their respective counties; and all other officers required by law, shall be commissioned by the Governor.
    1. If two (2) or more persons have an equal number of votes for the same office and a higher number than any other person, the names of the two (2) candidates receiving the highest number of votes for any legislative or executive office, except those offices named in Arkansas Constitution, Article 6, § 3, and constables, shall be certified to a special runoff election which shall be held four (4) weeks from the day on which the general election is held.
    2. The special runoff election shall be conducted in the same manner as is now provided by law, and the election results thereof shall be canvassed and certified in the manner provided by law.
  2. Subsection (b) of this section shall not apply to the offices of Justice of the Supreme Court, Judge of the Court of Appeals, circuit judge, or district judge.

History. Acts 1969, No. 465, Art. 8, §§ 5, 6; 1971, No. 261, §§ 17, 18; A.S.A. 1947, §§ 3-805, 3-806; Acts 1993, No. 512, § 4; 1997, No. 446, § 35; 2001, No. 1789, § 5; 2009, No. 959, § 32; 2017, No. 1104, § 4.

Amendments. The 2009 amendment deleted “immediately” preceding “commissioned by the Governor” in (a); deleted “judicial” following “legislative” in (b)(1); and made related and minor stylistic changes.

The 2017 amendment redesignated former (b) as (b)(1) and (b)(2); and substituted “four (4) weeks” for “three (3) weeks” in (b)(1).

Research References

ALR.

Validity of Runoff Voting Election Methodology. 67 A.L.R.6th 609.

Case Notes

Constitutionality.

Requirement previously set forth in this section providing for a special election in case no candidate received a majority of the votes cast in a particular race, contravened the plurality provision of Ark. Const., Art. 6, § 3, relating to the election of executive officers, and was therefore void. Rockefeller v. Matthews, 249 Ark. 341, 459 S.W.2d 110 (1970) (decision prior to 1971 amendment).

7-5-705. Votes for constitutional officers — Tie vote — Certificate of election.

  1. During the first week of the session after each election for Governor, Lieutenant Governor, Secretary of State, Treasurer of State, Auditor of State, and Attorney General, and in the presence of both houses of the General Assembly, the Speaker of the House of Representatives shall open and publish the votes cast and given for each of the respective officers previously mentioned.
  2. The person having the greatest number of legal votes for each of the respective offices shall be declared duly elected thereto, but if two (2) or more shall be equal and highest in votes for the same office, one (1) of them shall be chosen by a joint vote of both houses of the General Assembly, and a majority of all the members elected shall be necessary to a choice.
  3. The President of the Senate and the Speaker of the House of Representatives shall make and deposit in the office of the Secretary of State a certificate declaring what person has been elected to any office named.

History. Acts 1969, No. 465, Art. 8, § 8; 1971, No. 261, § 19; A.S.A. 1947, § 3-808; Acts 1993, No. 512, § 5.

Case Notes

Conclusiveness.

The declaration of the speaker as to the result of the vote for state constitutional offices is not necessarily the final conclusion, for a contest may be had thereafter and it shall be settled by the joint vote of both houses in which meeting the president of the senate shall preside. Rice v. Palmer, 78 Ark. 432, 96 S.W. 396 (1906) (decision under prior law).

7-5-706. Presentation of list of legislators elected.

It shall be the duty of the Secretary of State, on the first day of each regular session of the General Assembly, to lay before each house a list of members elected in accordance with the returns in his or her office.

History. Acts 1969, No. 465, Art. 8, § 7; A.S.A. 1947, § 3-807.

7-5-707. Vote certification.

  1. For all state and federal elections, the county board of election commissioners shall transmit the certified results for each precinct to the Secretary of State through the election night reporting interface provided by the Secretary of State.
  2. The county board of election commissioners may, by agreement with the county clerk, transmit the certified results to the county clerk who shall transmit the certified results by precinct to the Secretary of State as described in subsection (a) of this section.
  3. The Secretary of State may require a county board of election commissioners to submit additional election information as determined by the Secretary of State.

History. Acts 2001, No. 1396, § 1; 2003, No. 131, § 2; 2003, No. 994, § 13; 2005, No. 67, § 14; 2007, No. 559, § 5; 2009, No. 959, § 33; 2011, No. 1238, § 1; 2013, No. 1058, § 2; 2013, No. 1126, § 7.

A.C.R.C. Notes. Pursuant to § 1-2-207, this section is set out above as amended by Acts 2003, No. 994. This section was also amended by Acts 2003, No. 131, § 2, to read as follows:

“Vote certification — Report. (a) At the time that the county board of election commissioners certifies the vote to the Secretary of State, the county board shall report to the State Board of Election Commissioners the total number of: (1) Ballots cast; (2) Ballots printed and delivered to the polls; (3) Challenged ballots that were disqualified; (4) Spoiled ballots; and (5) Unused ballots.

“(b) Within thirty (30) calendar days after any election, the county board shall report to the state board the number of over-votes and under-votes cast in the election.

“(c)(1) Certified results for each polling place shall be entered and transmitted to the Secretary of State through the Internet website interface provided by the Secretary of State for all state and federal elections.

“(2) If it is not possible for the county board to transmit the results via the Internet website interface, then the county board may transmit the results by facsimile transmission.”

Amendments. The 2009 amendment inserted (b)(10) and made related changes; and substituted “a statement ... county election commissioner” for “an affidavit, under the signature of all three (3) commissioners or individually, with the state board in a form approved by the state board to the effect that all duties and responsibilities of the county election commissioner have been complied with” in (e).

The 2011 amendment rewrote (b) and deleted former (c) through (e).

The 2013 amendment by No. 1058, in (a), substituted “precinct to the Secretary of State through the election night reporting interface provided by the Secretary of State” for “polling place to the county clerk, who shall immediately transmit the results to the Secretary of State through the Internet website interface provided by the Secretary of State”; inserted (b) and redesignated former (b) as (c).

The 2013 amendment by No. 1126 deleted “Internet” following “State through the” in (a).

Research References

U. Ark. Little Rock L. Rev.

Survey of Legislation, 2001 Arkansas General Assembly, Election Law, 24 U. Ark. Little Rock L. Rev. 465.

Survey of Legislation, 2003 Arkansas General Assembly, Election Law, Help America Vote Act, 26 U. Ark. Little Rock L. Rev. 398.

Subchapter 8 — Election Contests

Effective Dates. Acts 1969, No. 465, Art. 13, § 10: approved Apr. 17, 1969. Emergency clause provided: “It is hereby found and declared by the General Assembly of the State of Arkansas that the present election laws are ancient and outdated in part and have caused and are causing much confusion and controversy, that there are particular problem areas in the present law which need immediate legislation in order to resolve same, that elections are and will continue to be held and conducted in this atmosphere of confusion and controversy until these problem areas are resolved and this Act being necessary for the immediate preservation of the public peace, health and safety, an emergency is hereby declared to exist and this Act shall be in force and effect from and after its passage.”

Research References

Am. Jur. 26 Am. Jur. 2d, Elections, § 381 et seq.

C.J.S. 29 C.J.S., Elections, § 426 et seq.

Case Notes

Construction.

Statutes regulating primary election contests should receive liberal interpretation. Robinson v. Knowlton, 183 Ark. 1127, 40 S.W.2d 450 (1931) (decision under prior law).

Constitutionality of Legislation.

To allow declaratory judgment to declare legislation unconstitutional after an election by one whose interest is that of a spurned candidate would effectively subvert the election contest laws. Riley v. City of Corning, 294 Ark. 480, 743 S.W.2d 820 (1988).

Definition.

“Defendant” means the party who defends the suit when finally determined, whether in the circuit court or the Supreme Court, so that it applies equally to contestant and contestee. Ferguson v. Montgomery, 148 Ark. 83, 229 S.W. 30 (1921) (decision under prior law).

Local Option Liquor Election.

Contest of the result of local option liquor election came under this subchapter and the contest should have been brought in circuit court instead of county court. Henderson v. Anderson, 251 Ark. 724, 475 S.W.2d 508 (1972).

Cited: Adams v. Dixie School Dist. No. 7, 264 Ark. 178, 570 S.W.2d 603 (1978); Files v. Hill, 268 Ark. 106, 594 S.W.2d 836 (1980); Loyd v. Keathley, 284 Ark. 391, 682 S.W.2d 739 (1985).

7-5-801. Right of action — Procedure.

  1. A right of action is conferred on any candidate to contest the certification of nomination or the certificate of vote as made by the appropriate officials in any election.
  2. The action shall be brought in the circuit court of the county in which the certification of nomination or certificate of vote is made when a county or city or township office, including the office of county delegate or county committee member, is involved, and except as provided in this subchapter, within any county in the circuit or district wherein any of the wrongful acts occurred when any circuit or district office is involved, and except as provided in this subchapter, in the Pulaski County Circuit Court when the office of United States Senator or any state office is involved.
  3. If there are two (2) or more counties in the district where the action is brought and when fraud is alleged in the complaint, answer, or cross-complaint, the circuit court may hear testimony in any county in the district.
  4. The complaint shall be verified by the affidavit of the contestant to the effect that he or she believes the statements to be true and shall be filed within twenty (20) days of the certification that is the subject of the complaint.
  5. The complaint shall be answered within twenty (20) days.

History. Acts 1969, No. 465, Art. 10, § 1; A.S.A. 1947, § 3-1001; Acts 2013, No. 1126, § 8.

Amendments. The 2013 amendment substituted “that is the subject of the complaint” for “complained of” in (d).

Research References

ALR.

Validity, Construction and Application of State Statutory Limitations Periods Governing Election Contests. 60 A.L.R.6th 481.

U. Ark. Little Rock L. Rev.

Annual Survey of Caselaw, Election Law, 26 U. Ark. Little Rock L. Rev. 903.

Case Notes

Purpose.

The right to contest an election is a statutory proceeding, the purpose of which is to furnish a summary remedy and to secure a speedy trial. McCastlain v. Elmore, 340 Ark. 365, 10 S.W.3d 835 (2000).

Applicability.

This section is directed toward elections involving candidates, and not toward local option elections. Garrett v. Andrews, 294 Ark. 160, 741 S.W.2d 257 (1987), cert. denied, 487 U.S. 1219, 108 S. Ct. 2873, 101 L. Ed. 2d 908 (1988).

This section only applies to an action by a candidate to contest the certification of a nomination or of the vote following an election; it does not apply to an action brought to challenge to the qualifications of a candidate for public office. Jacobs v. Yates, 342 Ark. 243, 27 S.W.3d 734 (2000).

This section provides a right of action to contest the certification of the nomination or the certificate of vote after an election; thus, the 20-day period for such an action is not applicable to an action brought before a primary election to determine the eligibility of a candidate. Valley v. Bogard, 342 Ark. 336, 28 S.W.3d 269 (2000).

Trial court erred in disimissing a Democratic candidate's challenge to a Republican candidate's residency requirements as the complaint was specifically authorized by § 7-5-207(b) and this section did not apply. Tumey v. Daniels, 359 Ark. 256, 196 S.W.3d 479 (2004).

Voter's filing of election contest in Pulaski County was in error as jurisdiction under subsection (b) of this section was in Phillips County, as that was the county of District 16 where wrongful acts were alleged to have occurred; there was no jurisdiction under the statute to hear a post-election contest in Pulaski County. Simes v. Crumbly, 368 Ark. 1, 242 S.W.3d 610 (2006).

In an election contest, the circuit court erred in dismissing a complaint by a candidate for failure to join the Secretary of State as a party; the complaint was properly filed in the correct county and was timely filed, timely served, and timely answered by the electoral winner; although the specific procedure was provided by this section, it did not supplant the rules of civil procedure. Baker v. Rogers, 368 Ark. 134, 243 S.W.3d 911 (2006).

Appellee candidate's petition for writ of mandamus and declaratory judgment, which sought to have appellant candidate declared ineligible, was dismissed because (1) appellee filed the petition postelection rather than preelection, (2) the petition did not institute a postelection contest under this section because appellee alleged a right to a postelection challenge of appellant's eligibility, and the parties stipulated that appellant obtained the most votes; and (3) a circuit court was without jurisdiction to hear a postelection challenge to eligibility, and the remedy for usurpation of office lay with the state under quo warranto. Zolliecoffer v. Post, 371 Ark. 263, 265 S.W.3d 114 (2007).

School district residents attempted to state a cause of action in illegal exaction, Ark. Const., Art. 16, § 13, and the circuit court erred in finding that they alleged a cause of action contesting the school district election, § 6-14-116; the circuit court had to determine whether the residents had stated a cause of action in illegal exaction on remand. Dollarway Patrons for Better Sch. v. Dollarway Sch. Dist., 374 Ark. 92, 286 S.W.3d 123 (2008).

Petition of candidate, who brought a preelection attack on the eligibility of a competing Court of Appeals candidate, was compliant with Arkansas law despite lacking an affidavit. This section is a postelection procedure; preelection attacks are governed by § 7-5-207(b), and that section does not have a verification requirement. Barrett v. Thurston, 2020 Ark. 36, 593 S.W.3d 1 (2020).

Abatement or Mootness.

The right of a contestant to have the action determined does not abate or become moot by the act of the contestee in resigning from the office. Cain v. Carl-Lee, 171 Ark. 155, 283 S.W. 365 (1926) (decision under prior law).

In election contest suit where unsuccessful candidate in preferential primary contested certification of vote and certification of nomination, his cause did not become moot after he was elected alderman in general election. Porter v. Hesselbein, 235 Ark. 379, 360 S.W.2d 499 (1962) (decision under prior law).

Challenge to Constitutionality.

Person who is aggrieved by a statute he considers to be unconstitutional may not challenge it by declaratory judgment, in lieu of special statutory procedures designed to determine the issue in the election contest which is the context. Riley v. City of Corning, 294 Ark. 480, 743 S.W.2d 820 (1988).

Complaints.

Circuit court abused its discretion in ruling that the claimant was attempting to amend his complaint with a new cause of action by offering proof of absentee-ballot irregularities under the miscellaneous other category in the claimant's exhibit, because the claimant was perfectly within his rights to make his allegations of absentee-ballot irregularities for nursing home residents, in particular, more definite and certain by offering proof of those violations. The claimant alleged a valid cause of action and set out a prima facie case with sufficient facts to give reasonable information as to the grounds of the contest, and he proffered absentee applications and voter statements to show why and how the ballots were illegal. Willis v. Crumbly, 371 Ark. 517, 268 S.W.3d 288 (2007).

Circuit court did not abuse its discretion by denying a candidate's motion for a writ of mandamus, injunctive, and declaratory relief, because the candidate did not timely challenge the Democratic Party of Arkansas' failure to certify him for placement on the general-election ballot within twenty days, as required by this section. Dobbins v. Democratic Party of Ark., 374 Ark. 496, 288 S.W.3d 639 (2008).

—Amendments.

The complaint filed in a contest cannot be amended to state a new cause of action where the time for bringing the action has expired. Bland v. Benton, 171 Ark. 805, 286 S.W. 976 (1926) (decision under prior law); Cain v. McGregor, 182 Ark. 633, 32 S.W.2d 319 (1930) (decision under prior law); Winton v. Irby, 189 Ark. 906, 75 S.W.2d 656 (1934) (decision under prior law); Martin v. Gray, 193 Ark. 32, 97 S.W.2d 439 (1936) (decision under prior law).

A contestant may, after expiration of the time for filing a contest, amend his original complaint so as to make it more definite and certain. Robinson v. Knowlton, 183 Ark. 1127, 40 S.W.2d 450 (1931) (decision under prior law); Winton v. Irby, 189 Ark. 906, 75 S.W.2d 656 (1934) (decision under prior law).

Amendments could be made after the period specified for filing complaint to perfect causes of action defectively stated within the filing period. Hailey v. Barker, 193 Ark. 101, 97 S.W.2d 923 (1936) (decision under prior law).

Filing of affidavit within specified filing period is jurisdictional and if the affidavit is insufficient at the close of the period, contestant will not be permitted thereafter to amend it so as to confer jurisdiction upon trial court. Thompson v. Self, 197 Ark. 70, 122 S.W.2d 182 (1938); Murphy v. Trimble, 200 Ark. 1173, 143 S.W.2d 534 (1940) (decisions under prior law).

Where complaint and first amendment did not state cause of action, they could not be corrected by second amendment which was not filed within 20 days after certification. Wilson v. Ellis, 230 Ark. 775, 324 S.W.2d 513 (1959) (decision under prior law).

Refusal of court to permit amendment of complaint after expiration of 20 days was not error where original complaint seeking to contest election did not state cause of action. Wheeler v. Jones, 239 Ark. 455, 390 S.W.2d 129, cert. denied, 382 U.S. 926, 86 S. Ct. 313, 15 L. Ed. 2d 339 (1965) (decision under prior law).

Permission to amend properly denied where allegations of petition to amend were insufficient. Simonetti v. Brick, 266 Ark. 551, 587 S.W.2d 16 (1979).

Where election contestant failed to allege facts necessary to contest the election and have herself declared the person with the most votes, it was too late on appeal for her to amend the complaint. Rubens v. Hodges, 310 Ark. 451, 837 S.W.2d 465 (1992).

—Sufficiency.

Allegations of complaint held insufficient. Crawford v. Harmon, 149 Ark. 343, 232 S.W. 427 (1921) (decision under prior law); Hill v. Williams, 165 Ark. 421, 264 S.W. 964 (1924) (decision under prior law); McClendon v. McKeown, 230 Ark. 521, 323 S.W.2d 542 (1959) (decision under prior law); Wilson v. Ellis, 230 Ark. 775, 324 S.W.2d 513 (1959) (decision under prior law); Rubens v. Hodges, 310 Ark. 451, 837 S.W.2d 465 (1992).

An election contest is an adversary proceeding between a candidate not certified and a nominee who was certified if there were only two candidates for the office involved. The pleadings in an election contest case should be sufficiently specific to give reasonable information as to the grounds of contest. McClendon v. McKeown, 230 Ark. 521, 323 S.W.2d 542 (1959) (decision under prior law).

It is necessary to allege facts and not conclusions. Wilson v. Ellis, 230 Ark. 775, 324 S.W.2d 513 (1959) (decision under prior law).

A duly qualified candidate for a municipal office can properly contest an election, where under the facts, although he cannot honestly allege that he received a sufficient number of votes to entitle him to certificate of nomination, he can allege that when the election returns are purged of the enumerated illegal votes it will be shown that such candidate should be certified as a candidate in the run-off or general primary election. Porter v. Hesselbein, 235 Ark. 379, 360 S.W.2d 499 (1962) (decision under prior law).

Appellee's complaint regarding illegal votes complied with the requirements established for stating a cause of action under Wheeler and Womack, where: (1) he named all nine voters in question; (2) he included the number of votes received by each candidate so that a subtraction of the illegally cast votes would show that the contestant received more votes than appellant; (3) appellee averred that the election commission certified appellant as the winner with a vote total of 227 to 219 for appellee for a difference of eight votes; and (4) he stated that the disqualification of the named voters' votes was sufficient to reverse the election results and certify him the true winner of said election. Tate-Smith v. Cupples, 355 Ark. 230, 134 S.W.3d 535 (2003).

—Time of Filing.

Provision requiring the contest to be filed within certain number of days of the certification is mandatory and jurisdictional. Gower v. Johnson, 173 Ark. 120, 292 S.W. 382 (1927); Moore v. Childers, 186 Ark. 563, 54 S.W.2d 409 (1932) (decisions under prior law).

Filing held untimely. Hays v. Harris, 188 Ark. 354, 65 S.W.2d 526 (1933) (decision under prior law); Denney v. Hankins, 212 Ark. 618, 206 S.W.2d 968 (1947) (decision under prior law); Buffington v. Carson, 219 Ark. 804, 244 S.W.2d 954 (1952) (decision under prior law).

Filing held timely. Matthews v. Warfield, 201 Ark. 296, 144 S.W.2d 22 (1940) (decision under prior law).

Filing period held not applicable to appeal from circuit court judgment. Vance v. Johnson, 238 Ark. 1009, 386 S.W.2d 240 (1965) (decision under prior law).

Where the defeated candidates filed a complaint alleging the winning candidates were ineligible, the pleadings, in effect, showed it was an election contest and was deficient when the complaint showed on its face it was not filed within the statutory time following certification of election. Gay v. Brooks, 251 Ark. 565, 473 S.W.2d 441 (1971).

Because no one contested nominee's certification of nomination or certificate of vote within the twenty-day period provided under this section, the nominee was the certified Democratic nominee for the district position before and at the time he withdrew his nomination, leaving a vacancy. Tittle v. Woodruff, 322 Ark. 153, 907 S.W.2d 734 (1995).

Where a candidate timely filed a complaint contesting the certification of election results but filed his verifying affidavit four days after the deadline for the complaint, the action was properly dismissed for lack of subject matter jurisdiction; the statutory language setting the deadline for filing the complaint is unambiguous and the deadline itself is mandatory and jurisdictional. Willis v. King, 352 Ark. 55, 98 S.W.3d 427 (2003).

Where candidate filed a petition for qualification as an independent candidate for the Arkansas House of Representatives, was notified that his petition was not certified in a letter from the Elections Division of the Secretary of State dated May 2, 2006, but the candidate did not file his verified complaint against the Arkansas Secretary of State until May 31, 2006, which was nine days late, the circuit court did not have subject matter jurisdiction to hear the complaint. Daniels v. Weaver, 367 Ark. 327, 240 S.W.3d 95 (2006).

Eligibility to Contest.

Only one claiming to be the nominee at a primary election may contest the election. Storey v. Looney, 165 Ark. 455, 265 S.W. 51 (1924) (decision under prior law).

There is no requirement that a candidate, in order to contest an election, must not himself have been guilty of engaging in corrupt practices. Cain v. CarlLee, 169 Ark. 887, 277 S.W. 551 (1925) (decision under prior law).

The right of contest is confined to the candidate at the primary election and to one who claims to be the rightful nominee. Stewart v. Hunnicutt, 178 Ark. 829, 12 S.W.2d 418 (1929) (decision under prior law).

Loser in primary election was eligible to contest primary election, though chairman of party extracted pollbooks from ballot box and handed same to loser, as ballots themselves were not disturbed. Ptak v. Jameson, 215 Ark. 292, 220 S.W.2d 592 (1949) (decision under prior law).

The right of contest is conferred on any candidate with the result that anyone who has been allowed to participate in a primary election as a candidate need not establish anew his qualifications to be a candidate unless they are affirmatively questioned. Gunter v. Fletcher, 217 Ark. 800, 233 S.W.2d 242 (1950) (decision under prior law).

Law providing for a preferential primary election gave as a matter of public policy the right to contest that election upon the proper allegations of entitlement to be certified as a candidate in the run-off or general primary election. Porter v. Hesselbein, 235 Ark. 379, 360 S.W.2d 499 (1962) (decision under prior law).

There is no authority granting the electorate in general a right to challenge the candidacy of a party nominee for failure of the nominating party to enforce a party rule; the party, in its discretion, may waive such requirements subject only to a timely challenge by a candidate or a person with such a relationship with the political party so as to confer standing to challenge the party's action or inaction. Baker v. Jacobs, 303 Ark. 460, 798 S.W.2d 63 (1990).

The right to contest an election is limited to one who claims to be the rightful winner of the contest, and that person must plead that he or she received the majority of the votes. Rubens v. Hodges, 310 Ark. 451, 837 S.W.2d 465 (1992).

This section provides a private, post-election right to challenge an election by allowing a candidate to contest certification by the county board of election commissions; however, the statute was not applicable where neither of the residents who brought the action were candidates and eligibility was challenged, rather than certification of a winner, such that the trial court was without jurisdiction to hear the action. Pederson v. Stracener, 354 Ark. 716, 128 S.W.3d 818 (2003).

Jurisdiction.

The circuit court had jurisdiction to try contests of election for offices of mayor and of marshal. Payne v. Rittman, 66 Ark. 201, 49 S.W. 814 (1899); Whittaker v. Watson, 68 Ark. 555, 60 S.W. 652 (1901) (decisions under prior law).

The General Assembly may confer on the circuit court original jurisdiction to try contests. Sumpter v. Duffie, 80 Ark. 369, 97 S.W. 435 (1906) (decision under prior law).

In a contest of the election of a member of a county board of education or member of a school district board of directors, the sole forum was the circuit court of the county wherein the contested office existed and its jurisdiction was invoked even in the absence of notice to the contestee where the statutory procedures of § 6-14-116 and law providing procedure for election contests were complied with. Kirk v. Roach, 226 Ark. 799, 294 S.W.2d 335 (1956) (decision under prior law).

Circuit court had jurisdiction of election contest for county board of education although summons was not issued and served on defendant, where notice was served on defendant under election contests law and and he entered appearance and never questioned sufficiency of service before or during trial. Bradley v. Jones, 227 Ark. 574, 300 S.W.2d 1 (1957) (decision under prior law).

The chancery court did not have jurisdiction to issue an injunction ordering the Alcoholic Beverage Control Board to cease prohibiting wholesalers from delivering or selling liquor in a precinct voted dry, since election contests are the exclusive domain of the circuit court. ABC Bd. v. Munson, 287 Ark. 53, 696 S.W.2d 720 (1985).

Where the complaint failed to state sufficient facts for the trial court to determine that jurisdiction was properly alleged, the trial court properly dismissed the complaint for lack of jurisdiction. King v. Whitfield, 339 Ark. 176, 5 S.W.3d 21 (1999).

Trial court had jurisdiction over the election contest and jurisdiction was not subsequently erased by the election, because the action was filed pre-election. Oliver v. Phillips, 375 Ark. 287, 290 S.W.3d 11 (2008).

Legality of Votes.

The real inquiry upon a contest is whether the contestant or the respondent received the highest number of legal votes, and it is not confined to the ground specified in the notice of contest. The respondent may, without any cross contest, call in question the validity of the votes cast for the contestant, either in the township specified in the notice or any other township in the county. Govan v. Jackson, 32 Ark. 553 (1877) (decision under prior law).

The ineligibility of a party elected to office does not render the votes cast for him illegal, nor give the election to his competitor next highest in the poll. Swepston v. Barton, 39 Ark. 549 (1882) (decision under prior law).

Refusing legal or receiving illegal votes will not affect the election unless they were sufficient in number to change the majority. Swepston v. Barton, 39 Ark. 549 (1882) (decision under prior law).

Circuit court erred to the extent that it based its decision to grant the dismissal on the failure of the claimant to prove specifically how each challenged voter voted, because without question, the claimant should not have been required to present tracing evidence of how each challenged voter voted when he was foreclosed from doing so by Ark. Const. Amend. 81. Willis v. Crumbly, 371 Ark. 517, 268 S.W.3d 288 (2007).

Loyalty Oath.

Whether a political party's rules dictate a loyalty oath, whether the loyalty oath requirement may or may not be waived, and whether certification or decertification results from a nominee's failure to execute a loyalty oath are matters generally left to the political party; however, an exception to this rule is provided for in this section, which confers a right of action on any candidate to contest the certification of a nomination within twenty (20) days of the certification complained of. Baker v. Jacobs, 303 Ark. 460, 798 S.W.2d 63 (1990).

Particular Offices.

Township road overseer was “township officer.” Condren v. Gibbs, 94 Ark. 478, 127 S.W. 731 (1910) (decision under prior law).

School officers are county officers. Ferguson v. Wolchansky, 133 Ark. 516, 202 S.W. 826 (1918) (decision under prior law).

The prosecuting attorney is not a state officer within law, requiring contests for nomination to state offices to be in Pulaski County. Morrow v. Strait, 186 Ark. 384, 53 S.W.2d 857 (1932) (decision under prior law).

Candidate's post-election challenge to a state senate runoff election was properly brought within the circuit or district in which alleged voter fraud occurred; further, the Secretary of State and the State Democratic Committee were not indispensable parties for complete relief under Ark. R. Civ. P. 19 because the office of state senator was not a “state office” as that term had been differentiated in §§ 7-7-401 and 7-5-804, and Ark. Const. art. 5, §§ 3 and 4. Willis v. Crumbly, 368 Ark. 5, 242 S.W.3d 600 (2006).

Parties.

The party claiming the office and the state may join as plaintiffs against another in possession of the office. Whittaker v. Watson, 68 Ark. 555, 60 S.W. 652 (1901) (decision under prior law).

In an election contest, as distinguished from an action seeking to void an election, the election commission is not the proper party defendant, although it is a proper nominal defendant because the commission's function is to promote fair elections, to act in a disinterested manner in disputes between candidates or their representatives, and to take neither side in a contest. Rubens v. Hodges, 310 Ark. 451, 837 S.W.2d 465 (1992).

There is no statute governing who is the proper party defendant in an election contest situation where a candidate dies before an election, and the deceased candidate prevails in the election, and the results of the election are contested by another candidate. Rubens v. Hodges, 310 Ark. 451, 837 S.W.2d 465 (1992).

Rules of Procedure.

Election contests are special proceedings and, therefore, the rules of civil procedure do not apply, in accordance with Ark. R. Civ. P. 81, which exempts those instances where a statute specifically provides a different procedure, in which event the procedure so specified shall apply. Rubens v. Hodges, 310 Ark. 451, 837 S.W.2d 465 (1992).

Because election contests are special proceedings, the rules of civil procedure do not apply. McCastlain v. Elmore, 340 Ark. 365, 10 S.W.3d 835 (2000).

Where candidate filed a petition for qualification as an independent candidate for the office of Arkansas House of Representatives and his petition was denied because it did not contain the required number of verified signatures, the candidate erred by filing a civil rights action against the Arkansas Secretary of State in the Phillips County Circuit Court; subsection (b) of this section required the suit to be filed in Pulaski County, Arkansas. Daniels v. Weaver, 367 Ark. 327, 240 S.W.3d 95 (2006).

In an election contest brought under this section, the candidate still had to prove her allegations of voting irregularities, much as a plaintiff seeking a default judgment has to prove damages under Ark. R. Civ. P. 55, even though Rule 55 did not apply where the statute provided rights, remedies, and procedures. Baker v. Rogers, 368 Ark. 134, 243 S.W.3d 911 (2006).

Where this section provided statutory rights and remedies for election contests that differed from civil procedures rules, pursuant to Ark. R. Civ. P. 81, neither Ark. R. Civ. P. 12 nor any other rule of civil procedure applied, and the electoral winner and Carroll County Board of Commissioners were required to file answers within 20 days after the candidate filed her complaint; thus, because no answer was ever filed, dismissal of the complaint for lack of a necessary party was improper. Baker v. Rogers, 368 Ark. 134, 243 S.W.3d 911 (2006).

Service of Process.

Requirement of service held to be waived. Wilson v. Luck, 201 Ark. 594, 146 S.W.2d 696 (1941) (decision under prior law).

Verification by Affidavit.

Affidavits are jurisdictional and must be filed within the time specified. Logan v. Russell, 136 Ark. 217, 206 S.W. 131 (1918) (decision under prior law); McLain v. Fish, 159 Ark. 199, 251 S.W. 686 (1923) (decision under prior law); Culpepper v. Mathews, 167 Ark. 253, 267 S.W. 773 (1925) (decision under prior law); Kirk v. Hartlieb, 193 Ark. 37, 97 S.W.2d 434 (1936) (decision under prior law).

It was error to dismiss a complaint on the grounds that the affidavit failed to state that the affiants were of the same political party with contestant. Ferguson v. Montgomery, 148 Ark. 83, 229 S.W. 30 (1921) (decision under prior law).

Affidavits cannot be made before a notary public who has moved from the county in which the affidavits are made. Lanier v. Norfleet, 156 Ark. 216, 245 S.W. 498 (1922) (decision under prior law).

Where signatures were obtained and thereafter the circuit clerk signed his name to the jurat without alleged affiants appearing before him, affidavit was insufficient. Kirk v. Hartlieb, 193 Ark. 37, 97 S.W.2d 434 (1936) (decision under prior law).

A supporting affidavit attached to the complaint was insufficient where the signatures were not affixed in the personal presence of the officer administering the oath. Thompson v. Self, 197 Ark. 70, 122 S.W.2d 182 (1938) (decision under prior law).

The right to question the sufficiency of affidavit, though it may appear sufficient on its face, is given the contestee. Thompson v. Self, 197 Ark. 70, 122 S.W.2d 182 (1938); Murphy v. Trimble, 200 Ark. 1173, 143 S.W.2d 534 (1940) (decisions under prior law).

Before Supreme Court can determine the legal effect of testimony regarding manner of signing and acknowledging verification, trial court should determine whether affiant after signing affidavit failed in the presence of the clerk to assert his belief in the truthfulness of what the paper contained. Thomas v. Hawkins, 217 Ark. 787, 233 S.W.2d 247 (1950) (decision under prior law).

In contest of election suit, document styled “Answer and Cross Complaint” did not require verification, being nothing more than an answer asserting defenses to the complaint. Edwards v. Williams, 234 Ark. 1113, 356 S.W.2d 629 (1962) (decision under prior law).

There is no requirement that the verification of a complaint of persons contesting an election must be based upon contestants' personal knowledge of facts, rather than belief induced by reports of investigators. Reed v. Baker, 254 Ark. 631, 495 S.W.2d 849 (1973) (decision under prior law).

Writ of Prohibition.

Court had no jurisdiction under election contest law over petition for writ of prohibition in action concerning wrongful ouster from office subsequent to election. Foster v. Ponder, 235 Ark. 660, 361 S.W.2d 538 (1962).

Cited: ABC Div. v. Barnett, 285 Ark. 189, 685 S.W.2d 511 (1985); Lawson v. St. Francis County Election Comm'n, 309 Ark. 135, 827 S.W.2d 159 (1992); Hasha v. City of Fayetteville, 311 Ark. 460, 845 S.W.2d 500 (1993); City of Springdale v. Town of Bethel Heights, 311 Ark. 497, 845 S.W.2d 1 (1993); Hill v. Carter, 357 Ark. 597, 184 S.W.3d 431 (2004).

7-5-802. Circuit court proceedings.

  1. If the complaint is sufficiently definite to make a prima facie case, unless the circuit court in which it is filed is in session or is to convene within thirty (30) days, the judge shall call a special term which shall possess the powers of a court convened in a regular term, and shall proceed at once to hear the case. The session of the special term to hear these cases shall not interfere with the validity of other courts proceeding at the same time in the circuit.
  2. If the case comes in regular term, it shall be given precedence and be speedily determined. The judge may adjourn other courts in order to hear these cases and may call another judge in exchange to sit in other courts or vacate the bench in other courts and cause a special judge to be elected to hold the court.

History. Acts 1969, No. 465, Art. 10, § 2; A.S.A. 1947, § 3-1002.

Case Notes

Amendments to Complaint.

Where a complaint fails to allege sufficient facts to state a cause of action in an election contest, it may not be subsequently amended by pointing to facts outside the complaint after the time for contesting the election has expired. McCastlain v. Elmore, 340 Ark. 365, 10 S.W.3d 835 (2000).

Refusal of Continuance.

An election contestant who challenged the way the election commission counted certain write-in ballots was not denied his substantial rights when the court, in making its speedy determination, refused to permit him continuances and time for discovery, since the court did permit both parties access to the write-in ballots upon which the contest was focused. Cartwright v. Carney, 286 Ark. 121, 690 S.W.2d 716 (1985).

Cited: Willis v. King, 352 Ark. 55, 98 S.W.3d 427 (2003).

7-5-803. Special judges for additional contests.

  1. In the event that there are more election contests brought under this section than the circuit court judge can dispose of prior to ten (10) days before any election to be held, either of the parties to the contest may so report to the circuit judge in vacation or otherwise, who shall have full and complete authority to appoint an attorney with the qualifications of circuit judge to hear any contest and render a final judgment in such contest.
  2. The circuit judge shall appoint as special judge any attorney named by a committee of three (3) qualified electors of the county in which the contest is pending, one (1) to be named by the contestant, one (1) to be named by the contestee, and the third to be named by those two (2) committee members. In the event that the first two (2) committee members do not agree within five (5) days on the third member, then the third member shall be chosen by lot from the respective choices of the two committee members.
  3. All proceedings shall be conducted as in the case of any regular judge trying any such case, including the right of appeal. The judge so appointed shall have full power and authority in the trial of election contests in all respects as are now conferred by the Arkansas Constitution upon circuit judges in this state. The judgment rendered by the attorney so appointed shall be binding with full force and effect as if the regular circuit judge had heard the cause.
  4. In the appointment of the attorney, the circuit judge shall not be confined in the selection of the attorney to the judicial circuit in which the contest is pending. However, the hearing of the contest shall be had in the county in which the contest has been filed.

History. Acts 1969, No. 465, Art. 10, § 3; A.S.A. 1947, § 3-1003.

Case Notes

Cited: Loyd v. Keathley, 284 Ark. 391, 682 S.W.2d 739 (1985).

7-5-804. Trial — Appeal — Enforcement — Other laws superseded.

  1. The election contest shall be tried by the circuit judge in open court without a jury.
  2. An appeal may be taken from the judgment. However, the appeal shall not operate as a supersedeas by judicial order or otherwise and the judgment of the circuit court shall be obeyed by officeholders, political committees and their officers, and all election officials, until reversed. It shall be the duty of the Supreme Court to advance the hearing of any such appeal.
  3. The circuit court or, when necessary, the circuit judge in vacation shall enforce by mandamus to the officers of political parties and election officials, or both, or the Secretary of State the proper certification and proper ballot in accordance with the judgment of the court and shall punish the failure of any such officers to obey the mandamus by imprisonment in the county jail.
  4. Except as provided in this subchapter, all laws pertaining to general and special elections or rules of political organizations regarding primary elections providing for contest before political conventions or committees, other than the proceedings provided in this subchapter, shall be of no further force or effect.

History. Acts 1969, No. 465, Art. 10, § 4; A.S.A. 1947, § 3-1004; Acts 1997, No. 446, § 36.

Case Notes

Applicability.

Former statute applied not to the first trial only, but to a subsequent trial after appeal and reversal. Cain v. Robertson, 168 Ark. 751, 271 S.W. 336 (1925) (decision under prior law).

Candidate's post-election challenge to a state senate runoff election was properly brought within the circuit or district in which alleged voter fraud occurred; further, the Secretary of State and the State Democratic Committee were not indispensable parties for complete relief under Ark. R. Civ. P. 19 because the office of state senator was not a “state office” as that term had been differentiated in §§ 7-7-401 and 7-5-804, and Ark. Const. art. 5, §§ 3 and 4. Willis v. Crumbly, 368 Ark. 5, 242 S.W.3d 600 (2006).

Admissions.

Contestant's admission at the trial that another candidate who was not a party received more votes according to the returns than contestant warranted dismissal of his complaint. Stewart v. Hunnicutt, 178 Ark. 829, 12 S.W.2d 418 (1929) (decision under prior law).

Dismissal.

Because an election contest is a special proceeding where the legislature has expressly provided for expedited proceedings, it cannot be dismissed voluntarily or without prejudice; for if it was, it would seriously disrupt the administration of government and would effectively subvert the time limitations established by the legislature. McCastlain v. Elmore, 340 Ark. 365, 10 S.W.3d 835 (2000).

Evidence.

The rules of evidence in election contests are the same as those in suits over property rights. Condren v. Gibbs, 94 Ark. 478, 127 S.W. 731 (1910) (decision under prior law).

—Burden of Proof.

The burden of proof is upon the party who seeks to set aside the returns. Powell v. Holman, 50 Ark. 85, 6 S.W. 505 (1887) (decision under prior law).

Where the voter is registered and his name accepted by the election officers and the evidence is of equal weight as to the time he became of age, there is a presumption that he is a legally qualified voter and the burden is on the contestant to rebut this presumption. Letchworth v. Flinn, 108 Ark. 301, 157 S.W. 402 (1913) (decision under prior law).

—Proving Election Results.

Pollbooks and certificates of the election officers are prima facie evidence of results of an election. Patton v. Coates, 41 Ark. 111 (1883) (decision under prior law).

If the ballots, tally sheets, and pollbooks are destroyed, lost, or stolen, secondary evidence is admissible, and spectators who were present at the count are competent witnesses in such a case. Dixon v. Orr, 49 Ark. 238, 4 S.W. 774 (1887) (decision under prior law).

If the election returns are discredited, other proof must be furnished as to how the votes were cast. Rhodes v. Driver, 69 Ark. 501, 64 S.W. 272 (1901) (decision under prior law).

Though the official returns of an election are not conclusive, they are prima facie evidence of the result and will stand until they are discredited by satisfactory evidence showing that they have not been preserved in the manner prescribed by law or have been tampered with or falsified. Condren v. Gibbs, 94 Ark. 478, 127 S.W. 731 (1910) (decision under prior law).

—Self-Incrimination.

In trials of contested elections and in proceedings for the investigation of elections, no person shall be permitted to withhold his testimony on the ground that it may incriminate him, or subject him to public infamy. However, the testimony shall not be used against him in any judicial proceeding, except for perjury in giving the testimony. Ark. Const., Art. 3, § 9. Freeman v. Lazarus, 61 Ark. 247, 32 S.W. 680 (1895); Aven v. Wilson, 61 Ark. 287, 32 S.W. 1074 (1895); Payne v. Rittman, 66 Ark. 201, 49 S.W. 814 (1899); Whittaker v. Watson, 68 Ark. 555, 60 S.W. 652 (1901); Rhodes v. Driver, 69 Ark. 501, 64 S.W. 272 (1901) (decisions under prior law).

—Sufficiency.

Evidence sufficient to show fraudulent conduct by election judges. Williams v. Buchanan, 86 Ark. 259, 110 S.W. 1024 (1908) (decision under prior law).

Where the contestant failed to prove for whom a single challenged voter cast his vote, judgment was properly rendered for the contestee. Black v. Jones, 208 Ark. 1011, 188 S.W.2d 626 (1945) (decision under prior law).

—Voter Testimony.

Declarations of voters are not competent to show that by reason of age or residence they were not qualified voters. Rucks v. Renfrow, 54 Ark. 409, 16 S.W. 6 (1891) (decision under prior law).

In an election contest, a voter may contradict his ballot if he did not prepare it himself and it was prepared contrary to the statute authorizing judges of an election to prepare ballots for illiterate voters. Freeman v. Lazarus, 61 Ark. 247, 32 S.W. 680 (1895) (decision under prior law).

Where question arose as to the meaning of the stipulation concerning testimony of student voters, trial court erred in refusing to allow the plaintiff to examine any of the balance of the students, since parties differed as to meaning of stipulation. Ptak v. Jameson, 215 Ark. 292, 220 S.W.2d 592 (1949) (decision under prior law).

Findings.

When the conclusion of the trial court is inconsistent with its special findings, the cause on appeal will be remanded for entry of judgment according to special findings. Powell v. Holman, 50 Ark. 85, 6 S.W. 505 (1887) (decision under prior law).

The findings of fact of the trial judge in an election contest are conclusive on appeal. Jones v. Glidewell, 53 Ark. 161, 13 S.W. 723 (1890) (decision under prior law).

Where contestee on appeal assigned as error the admission of certain pollbooks in evidence, the trial would not be reversed in the absence of a showing in the record that the exclusion would have changed the result. Merritt v. Hinton, 55 Ark. 12, 17 S.W. 270 (1891) (decision under prior law).

In election contests, the finding of the trial judge upon conflicting evidence are as conclusive as the verdict of the jury. Schuman v. Sanderson, 73 Ark. 187, 83 S.W. 940 (1904) (decision under prior law); Williams v. Buchanan, 86 Ark. 259, 110 S.W. 1024 (1908) (decision under prior law).

Laws Superseded.

Local option election statute, which does not involve candidates or officials, was not repealed by the comprehensive election code. Garrett v. Andrews, 294 Ark. 160, 741 S.W.2d 257 (1987), cert. denied, 487 U.S. 1219, 108 S. Ct. 2873, 101 L. Ed. 2d 908 (1988).

Cited: Henderson v. Anderson, 251 Ark. 724, 475 S.W.2d 508 (1972); Loyd v. Keathley, 284 Ark. 391, 682 S.W.2d 739 (1985); Womack v. Foster, 338 Ark. 514, 998 S.W.2d 737 (1999); Stilley v. Henson, 342 Ark. 123, 26 S.W.3d 786 (2000); Willis v. King, 352 Ark. 55, 98 S.W.3d 427 (2003); Hill v. Carter, 357 Ark. 597, 184 S.W.3d 431 (2004).

7-5-805. Contest of state legislative offices.

  1. Any contest to the eligibility, qualifications, or election to serve as a member of the Senate shall be in accordance with the rules and procedures for election contests as established by that chamber under its governing rules.
      1. Any action to contest eligibility, qualification, or election to serve as a member of the House of Representatives shall be initiated by filing a complaint with the Arkansas State Claims Commission.
      2. This procedure shall apply to House of Representatives election contests pursuant to Arkansas Constitution, Article 5, § 11, to contests of eligibility pursuant to Arkansas Constitution, Article 5, § 9, and to actions for expulsion pursuant to Arkansas Constitution, Article 5, § 12, except that a member of the House of Representatives shall be automatically suspended from the legislative process if a representative under felony criminal indictment is subsequently found guilty or pleads guilty.
        1. If a representative under a felony criminal indictment in any federal or state court is subsequently found guilty or pleads guilty to the charges, then the Speaker of the House of Representatives shall immediately declare the representative suspended from the legislative process, and notification shall be given to the convicted representative, all members of the House of Representatives, the Chief Clerk of the House of Representatives, the Governor, the Secretary of State, and the Auditor of State.
          1. However, if a representative who was found guilty appeals that conviction, then the representative may petition the House Management Committee for a stay of the suspension from the legislative process, and the House Management Committee may grant a stay upon the filing of the petition and a notice of appeal to the relevant appellate court.
          2. The stay of the suspension shall continue until the appeal is complete or until the House of Representatives takes final action on the conviction.
      3. A representative suspended from the legislative process shall not participate in interim committee meetings nor in extraordinary or regular sessions of the General Assembly and shall not accept per diem and mileage but shall be eligible to retain the title of office and salary as a member of the General Assembly and is authorized to assist constituents and utilize legislative staff until a final action is taken by the House of Representatives.
    1. For House of Representatives election contests, the complaint shall be filed within fifteen (15) days after the election returns are certified by the county board of election commissioners. A responsive pleading shall be filed by the House of Representatives contestee within fifteen (15) days after receipt of the complaint unless an earlier or later date is set by the commission for good cause shown. Upon receipt of the complaint, the commission shall establish a schedule for discovery and hearing, which schedule shall allow the commission to take and review evidence presented by the parties and submit a nonbinding recommendation to the House of Representatives no later than five (5) days before the date fixed for the assembling of the General Assembly.
    2. For eligibility contests for the House of Representatives pursuant to Arkansas Constitution, Article 5, § 9, a complaint shall be filed at any time after the election of the individual to a seat in the House of Representatives. For action for expulsion from the House of Representatives pursuant to Arkansas Constitution, Article 5, § 12, the complaint shall be filed at any time permitted by law. A responsive pleading shall be filed within twenty (20) days after receipt of the complaint unless an earlier or later date is set by the commission for good cause shown. The commission shall establish a schedule for discovery and hearing, which schedule shall allow the commission to take and review evidence presented by the parties and submit a nonbinding recommendation to the House of Representatives in a timely fashion.
    3. An additional copy of all complaints filed pursuant to this subsection shall be served on the Speaker of the House of Representatives. The Speaker of the House of Representatives shall appoint one (1) member of the chamber from each political party to serve as ex officio, nonvoting members of the commission for the consideration of all matters relating to the complaint.
    4. In those actions concerning a seat in the House of Representatives, the recommendation is to be made to the Speaker of the House of Representatives. The Speaker of the House of Representatives shall present the nonbinding recommendation to the members of the House of Representatives, and the members shall take such actions as they deem appropriate.
    5. The commission is authorized to promulgate any rules necessary to carry out the provisions set forth herein regarding contests for the seats in the House of Representatives.

History. Acts 1969, No. 465, Art. 10, § 8; A.S.A. 1947, § 3-1008; Acts 1991, No. 1014, § 1; 2001, No. 452, § 1; 2019, No. 315, § 420.

Amendments. The 2019 amendment deleted “and regulations” following “rules” in (b)(6).

Case Notes

Applicability.

This section applies to post-election contests, not to an action brought before a primary election to determine the eligibility of a candidate. Valley v. Bogard, 342 Ark. 336, 28 S.W.3d 269 (2000).

Trial court erred in disimissing a Democratic candidate's challenge to a Republican candidate's residency requirements as the complaint was specifically authorized by § 7-5-207(b); this section applied only to post-election challenges under Ark. Const., Art. 5, §§ 9, 11, and 12. Tumey v. Daniels, 359 Ark. 256, 196 S.W.3d 479 (2004).

7-5-806. Contest of state constitutional executive offices.

  1. All contested general elections of Governor, Lieutenant Governor, Secretary of State, Treasurer of State, Auditor of State, and Attorney General, except as provided in this section, shall be decided by the joint vote of both houses of the General Assembly, and in that joint meeting the President of the Senate shall preside.
  2. If, following any general election, any person contests any election covered by this section, he or she shall present his or her petition to the General Assembly, setting forth the points on which he or she will contest the election and the facts which he or she will prove in support of the points, and he or she shall pray for leave to introduce his or her proofs.
  3. A vote shall be taken by yeas and nays in each house as to whether the prayers shall be granted.
  4. If a majority of the whole number of votes of both houses shall be in the affirmative, they shall appoint a joint committee to take testimony on the part of the petitioner and also on the part of the person whose place is contested. The committee shall have power to send for witnesses and to issue warrants under the hand of the chair to any judge or justice of the peace to take the deposition of witnesses at such time and place as the warrant shall direct. The points to which the testimony is to be taken shall be set forth in the warrants.
  5. Reasonable notice shall be given by the party in whose favor depositions shall be allowed to be taken to the opposite party of the time and place of taking the depositions. The judge or justice shall proceed in all things, in the attendance of witnesses and in taking and certifying the testimony, as is directed in the preceding section.
  6. The party shall also be allowed to attend the examination of witnesses before the committee and to cross-examine them, but no testimony shall be taken except in relation to the points set forth in the petition.
  7. The committee shall report the facts to the two (2) houses, and the day shall be fixed by a joint resolution for the meeting of the two (2) houses to decide the contest, on which decision the yeas and nays shall be taken and entered on the journal of each house.

History. Acts 1969, No. 465, Art. 10, § 9; A.S.A. 1947, § 3-1009; Acts 1993, No. 512, § 6.

Case Notes

Judgment for Salary.

The circuit court was without jurisdiction to render a judgment for salary in advance of a determination of election contest for Governor since judgment could not be rendered without passing upon title to the office. Baxter v. Brooks, 29 Ark. 173 (1874) (decision under prior law).

7-5-807. Election illegalities — Complaint — Grand jury investigation — Indictment — Trial.

  1. If ten (10) reputable citizens of any county shall file a complaint with the circuit judge within twenty (20) days after any election alleging that illegal or fraudulent votes were cast, that fraudulent returns or certifications were made, or that the Political Practices Act was violated, the circuit judge, if in his or her opinion there is good ground to believe the charges to be true, shall convene a special term at once unless the regular term is in session or will convene within thirty (30) days.
  2. If the charges come in a regular term, the judge shall specially charge the grand jury as to them.
  3. Should a special term be called, it shall in all respects be as if convened by law. The circuit judge shall cause to be summoned grand and petit jurors, either on lists selected by the sheriff or by disinterested persons selected by him or her for that purpose, according to his or her opinion as to the best method to select unbiased jurors.
  4. Should indictments be returned, either at a special or regular term, for violating the general, primary, or special election laws, the defendants shall be given a speedy trial at the term, and the court may adjourn terms of other courts in order that they may be tried, unless for good cause shown or in the interests of justice a continuance or change of venue is granted. No change of venue shall be granted in such cases except after a hearing and a finding by the court that the defendant cannot obtain a fair and impartial trial in the district of the county where the indictment is pending.

History. Acts 1969, No. 465, Art. 10, § 5; A.S.A. 1947, § 3-1005; Acts 2017, No. 600, § 2.

Publisher's Notes. The Political Practices Act, referred to in this section, is codified as §§ 7-1-103, 7-1-104, 7-3-108, and 7-6-1017-6-104.

Amendments. The 2017 amendment deleted “the jury commissioners, by” preceding “the sheriff” in the second sentence of (c).

Research References

Ark. L. Rev.

Gingerich, The Arkansas Grand Jury, etc., 40 Ark. L. Rev. 55.

Case Notes

Police Report.

Trial court properly dismissed citizens' complaint requesting that it convene a grand jury to investigate allegations of election fraud in a primary election to nominate a candidate for county sheriff because nothing in the language of subsection (a) of this section prohibited the trial court from considering an Arkansas State Police report in reviewing the complaint; the Arkansas State Police had conducted a preliminary investigation and determined that there was no need for a “full scale” criminal investigation. Hagenbaugh v. Montgomery, 2009 Ark. 239, 308 S.W.3d 132 (2009).

Cited: Loyd v. Keathley, 284 Ark. 391, 682 S.W.2d 739 (1985).

7-5-808. Finding of guilt — Effect.

  1. Should it be proved to the satisfaction of the trial judge, in cases instituted under this subchapter, that a successful candidate has been guilty of violating the Political Practices Act or any of the laws regulating general, primary, or special elections, the circuit court shall enter the finding as a part of the judgment, irrespective of the determination of the issues in other suits filed under this subchapter or the verdict of the jury in a criminal prosecution.
  2. The judgment to that effect shall operate to deprive the candidate of the nomination, and the vacancy shall be filled in the manner provided by law.

History. Acts 1969, No. 465, Art. 10, § 6; A.S.A. 1947, § 3-1006.

Publisher's Notes. The Political Practices Act, referred to in this section, is codified as §§ 7-1-103, 7-1-104, 7-3-108, and 7-6-1017-6-104.

Case Notes

Cited: Loyd v. Keathley, 284 Ark. 391, 682 S.W.2d 739 (1985).

7-5-809. Determination of guilt after election — Effect.

  1. Should a proceeding under previous sections of this subchapter or a criminal prosecution under the criminal penalties imposed in this act not be determined finally until after the election, if the defendant in the proceeding is elected to the office or is the nominee of a political party to the office, and if it is determined that he or she was not entitled to be elected or to the nomination or that the judgment contains a finding that he or she violated the Political Practices Act or any of the laws applicable to general, primary, or special elections, then the judgment shall operate as a forfeiture of nomination or ouster from office.
  2. The vacancy shall be filled as provided by law for filling vacancies in nominations or office in case of death or resignation.

History. Acts 1969, No. 465, Art. 10, § 7; A.S.A. 1947, § 3-1007.

Publisher's Notes. The Political Practices Act, referred to in this section, is codified as §§ 7-1-103, 7-1-104, 7-3-108, and 7-6-1017-6-104.

Meaning of “this act”. Acts 1969, No. 465, codified as §§ 7-1-101, 7-1-1037-1-105, 7-3-1017-3-108, 7-4-1017-4-105, 7-4-1077-4-112, 7-5-101, 7-5-102, 7-5-103 [repealed], 7-5-2027-5-209, 7-5-210 [repealed], 7-5-211, 7-5-301, 7-5-302 [repealed], 7-5-303 [repealed], 7-5-3047-5-306, 7-5-307 [repealed], 7-5-308, 7-5-309, 7-5-312, 7-5-313 [repealed], 7-5-3147-5-319, 7-5-4017-5-403, 7-5-4057-5-417, 7-5-501 [repealed], 7-5-5027-5-504, 7-5-505 [repealed], 7-5-506 [repealed], 7-5-507, 7-5-508 [repealed], 7-5-509, 7-5-511 [repealed], 7-5-512, 7-5-513, 7-5-5157-5-518, 7-5-519 [repealed], 7-5-5207-5-522, 7-5-5247-5-531, 7-5-7017-5-706, 7-5-8017-5-809, 7-6-1017-6-105, 7-7-1017-7-105, 7-7-2017-7-203, 7-7-3017-7-307, 7-7-309, 7-7-310 [repealed], 7-7-401, 7-7-402, 7-7-403 [repealed], 7-8-1017-8-104, 7-8-301, 7-8-302, 7-8-3047-8-307, 25-16-801.

Research References

Ark. L. Rev.

Comments: Removal and Discipline of Judges in Arkansas, Porter, 32 Ark. L. Rev. 545.

Case Notes

Purpose.

The purpose of former law for determining guilt after an election and providing for ouster from office was to prevent one illegally nominated from holding the office, but not to entitle the contestant to the office. Cain v. CarlLee, 169 Ark. 887, 277 S.W. 551 (1925) (decision under prior law).

Ouster.

If either party to a primary contest is placed on the ticket and elected, and later it is determined that he was not entitled to the nomination, the judgment should operate as an ouster, in which case there would be a vacancy to be filled according to law. Robinson v. Knowlton, 183 Ark. 1127, 40 S.W.2d 450 (1931); Parish v. Nelson, 186 Ark. 786, 55 S.W.2d 922 (1933) (decisions under prior law).

Where a trial court had ousted the apparent winner of an election for school board director due to ballots deemed defective under Ark. Const., Amend. 51, § 13, the trial court had the power to declare the next highest vote getter the winner of the election and to place him in office. Loyd v. Keathley, 284 Ark. 391, 682 S.W.2d 739 (1985).

7-5-810. Contest of election results — Time for appeal.

An appeal to contest the determination of any election in any court of this state must be filed within seven (7) calendar days of the final certification of the election result as announced by a court as authorized by this subchapter, except in instances in which the Arkansas Constitution establishes a time frame for filing an appeal.

History. Acts 1993, No. 514, § 1; 1997, No. 446, § 37.

Case Notes

In General.

The general time frame for appeals, i.e., 30 days, did not trump the seven-day time limit set out in the statute because the statutory rule was based on a fixed public policy which had been legislatively adopted and had as its basis something other than court administration. Weems v. Garth, 338 Ark. 437, 993 S.W.2d 926 (1999).

Jurisdiction.

The requirement for an election contest to be filed within a certain number of days of the certification is mandatory and jurisdictional, the statutory requirements to secure jurisdiction must be strictly observed, and the jurisdictional facts must appear on the face of the proceedings. McCastlain v. Elmore, 340 Ark. 365, 10 S.W.3d 835 (2000).

Standing.

A disqualified candidate could not employ the expedited procedures applicable under this section to a candidate's challenge to the results of an election. Helton v. Jacobs, 346 Ark. 344, 57 S.W.3d 180 (2001).

Cited: Hill v. Carter, 357 Ark. 597, 184 S.W.3d 431 (2004).

Subchapter 9 — Voting and Elections Transparency Act of 2017

7-5-901. Title.

This subchapter shall be known and cited as the “Voting and Elections Transparency Act of 2017”.

History. Acts 2017, No. 1014, § 1.

7-5-902. Uncounted votes.

  1. If for any reason a vote, including an absentee vote and a provisional vote, is not counted under this chapter, the county board of election commissioners shall promptly notify the person who cast the vote.
  2. Notification under subsection (a) of this section shall be written notification and shall state the reason or reasons the vote was not counted.

History. Acts 2017, No. 1014, § 1.

7-5-903. Voter notification.

  1. Except as otherwise provided under federal law and Arkansas Constitution, Amendment 51, the county clerk shall send written notification to a person when:
    1. A person registers to vote for the first time;
    2. The voter registration of a person becomes inactive; and
    3. A person is removed or purged from a voter registration list.
  2. If a person is removed or purged from a voter registration list under subdivision (a)(3) of this section, he or she has thirty (30) days to challenge the removal.

History. Acts 2017, No. 1014, § 1.

7-5-904. Election commissioners.

  1. A member of the State Board of Election Commissioners or a county board of election commissioners shall not serve as a poll worker or a poll watcher on behalf of an individual candidate, political party, or ballot initiative.
  2. A person shall not simultaneously serve on the State Board of Election Commissioners and a county board of election commissioners.

History. Acts 2017, No. 1014, § 1.

7-5-905. Documentation for long-term care or residential care facility residents.

  1. The documentation required to be submitted by a person who is a resident of a long-term care facility or residential care facility licensed by the state under this chapter shall be standardized.
  2. The Secretary of State's office shall develop, adopt, and make available a standardized form to satisfy the requirements under law concerning the documentation under subsection (a) of this section.

History. Acts 2017, No. 1014, § 1.

Chapter 6 Campaign Practices

Research References

Am. Jur. 26 Am. Jur. 2d, Elections, § 445 et seq.

Ark. L. Notes.

Cihak and Springman, HAVA and Arkansas Election Law Reform: Compliance and Promise, 2006 Arkansas L. Notes 1.

C.J.S. 29 C.J.S., Elections, § 565 et seq.

Subchapter 1 — General Provisions

Effective Dates. Acts 1969, No. 465, Art. 13, § 10: approved Apr. 17, 1969. Emergency clause provided: “It is hereby found and declared by the General Assembly of the State of Arkansas that the present election laws are ancient and outdated in part and have caused and are causing much confusion and controversy, that there are particular problem areas in the present law which need immediate legislation in order to resolve same, that elections are and will continue to be held and conducted in this atmosphere of confusion and controversy until these problem areas are resolved and this Act being necessary for the immediate preservation of the public peace, health and safety, an emergency is hereby declared to exist and this Act shall be in force and effect from and after its passage.”

Acts 1970 (1st Ex. Sess.), No. 27, § 3: approved Mar. 13, 1970. Emergency clause provided: “It is hereby found and declared by the General Assembly of the State of Arkansas that the new election code contains no provision for the filing of political practice pledges for certain candidates; that it is necessary that all candidates file such pledge; that elections are and will continue to be held and conducted while this conflict exists and this act is necessary to protect peace, health, safety and welfare and, therefore, an emergency is declared to exist and this act shall be in full force and effect from and after its passage.”

Acts 1972 (1st Ex. Sess.), No. 37, § 6: Feb. 16, 1972. Emergency clause provided: “The General Assembly finds that the dates of the 1972 national nominating conventions and primary elections are fast approaching, that the people of the state are in immediate need of a resolution of uncertainties that have arisen with respect to the selection of delegates and alternates thereto, and that the effective administration of the election laws of this state requires that the dates of the primary elections now fixed by law be advanced. Accordingly, an emergency is declared to exist, and this act, being necessary for the preservation of the public health, interest, safety, and welfare, shall be effective immediately upon its passage and approval.”

Acts 1972 (1st Ex. Sess.), No. 42, § 5: Feb. 18, 1972. Emergency clause provided: “Whereas the great majority of municipalities elect their municipal officials as independents and do not have political primaries for municipal office and whereas the great majority of municipal officials in small towns and cities receive no compensation or very nominal compensation and it would result in a real hardship to force candidates for municipal office in these small towns and cities to run in primaries and to file for municipal office seven (7) months before the general election and nine (9) months before the taking of office on January 1; and this act is immediately necessary to correct this situation. Therefore, an emergency is hereby declared to exist and this act being necessary for the preservation of the public peace, health and safety shall take effect immediately on its passage and approval.”

Research References

ALR.

Criticism or disparagement of character, competence, or conduct of candidate for office as defamation. 37 A.L.R.4th 1088.

Case Notes

Cited: Gaines v. McCuen, 296 Ark. 513, 758 S.W.2d 403 (1988).

7-6-101. Campaign services contract — Right of action.

No action shall be brought to charge any person upon any contract, promise, or agreement for any service rendered to or for him or her as a candidate in any election in this state or in aid of his or her campaign for the nomination to any office in this state unless the agreement, promise, or contract, upon which said action shall be brought, or some memorandum or note thereof, shall be made in writing and signed by the party to be charged therewith, or signed by some other person by him or her thereunto properly authorized in writing.

History. Acts 1969, No. 465, Art. 11, § 1; A.S.A. 1947, § 3-1101.

Case Notes

Cited: Stillinger v. Rector, 253 Ark. 982, 490 S.W.2d 109 (1973).

7-6-102. Political practices pledge — Penalty for falsification.

    1. Candidates for political party nominations for state or district offices shall file with the Secretary of State and candidates for county, municipal, or township offices shall file with the county clerk of the county during the filing period set out in § 7-7-203 for the preferential primary election a pledge in writing stating that they are familiar with the requirements of §§ 7-1-103, 7-1-104, 7-3-108, 7-6-101, 7-6-103, 7-6-104, and this section and will comply in good faith with their terms.
    2. An independent candidate or school district candidate shall file the political practices pledge at the time of filing the petition for nomination.
    3. Independent candidates for municipal office shall file the political practices pledge with the county clerk at the time of filing the petition for nomination.
    4. Write-in candidates shall file the political practices pledge at the time of filing the notice to be a write-in candidate.
    5. A nonpartisan candidate paying filing fees in accordance with § 7-10-103(b) shall file the political practices pledge at the time of filing for office.
    6. A nonpartisan candidate filing by petition according to § 7-10-103(c) shall file the political practices pledge at the time of filing the petition.
  1. All political practices pledge forms for state or district offices and county, municipal, or township offices shall contain the following additional pledge:
  2. Any person who has been convicted of a felony and signs the pledge stating that he or she has not been convicted of a felony shall be guilty of a Class D felony.
  3. For purposes of this section, a person shall be qualified to be a candidate for a state, district, county, municipal, and township office and may certify that he or she has never been convicted of a felony if his or her record was expunged in accordance with §§ 16-93-301 — 16-93-303, or a similar expunction statute in another state if the candidate presents a certificate of expunction from the court that convicted the candidate.
    1. The name of a candidate who fails to sign and file the pledge shall not appear on the ballot.
      1. Within two (2) days of the date the pledge is required to be filed, the Secretary of State or the county clerk shall notify by certified mail that requires a return receipt signed by the candidate those candidates who have failed to file a signed political practice pledge and include a copy of the written pledge required by this section.
      2. Failure of the state or district candidate to file with the Secretary of State or of the county, municipal, or township candidate to file with the county clerk within five (5) days of receipt or refusal of this notice shall prevent the candidate's name from appearing on the ballot.

“I hereby certify that I have never been convicted of a felony in Arkansas or in any other jurisdiction outside of Arkansas.”

History. Acts 1969, No. 465, Art. 11, § 3; 1970 (1st Ex. Sess.), No. 27, § 1; 1972 (1st Ex. Sess.), No. 37, § 3; 1972 (1st Ex. Sess.), No. 42, § 3; 1983, No. 244, § 1; A.S.A. 1947, §§ 3-1103, 3-1103.1; Acts 1987, No. 248, § 10; 1989, No. 755, § 1; 1989, No. 912, § 3; 1995, No. 665, § 2; 1997, No. 886, § 1; 2003, No. 542, § 1; 2003, No. 1731, § 2; 2005, No. 67, § 15; 2007, No. 222, § 1; 2007, No. 1049, § 20; 2013, No. 1110, § 6.

Amendments. The 2007 amendment by No. 222 inserted “and candidates for a school district board of directors” in (a)(2); inserted “more than one hundred and ten (110) nor” in (a)(3); and inserted “school district” in (a)(4).

The 2007 amendment by No. 1049 in (a), inserted “political party nominations for” and substituted “during the filing period set out in § 7-7-203 for the” for “not later than 12:00 noon fourteen (14) days after the third Tuesday in March, before the” in (1), inserted “and school district candidates” in (2), substituted “at the time of filing the petition for nomination” for “not fewer than ninety (90) calendar days before the general election by 12:00 noon” in (3), and deleted the former last sentence in (4); deleted “within five (5) days following the first Tuesday in April before the preferential primary election or” preceding “within five (5) days” in (e)(2)(A); and made related and stylistic changes.

The 2013 amendment rewrote the section.

Research References

Ark. L. Rev.

Michael K. Goswami, Comment: High Crimes, Treason, and Chicken Theft: “Infamous Crimes” in Arkansas and Disqualification from Political Office, 67 Ark. L. Rev. 653 (2014).

Case Notes

Certificate of Expunction.

Because the reference in subsection (d) is to a “certificate of expunction” from Arkansas or another state, a federal certificate may be regarded as the equivalent of such a document. Tyler v. Shackleford, 303 Ark. 662, 799 S.W.2d 789 (1990).

The setting aside of the conviction of a youthful offender under former 18 U.S.C. § 5201(b) meant that it were as if the conviction had never been, and a judge who had had a conviction set aside was never obligated under this section to produce his federal Certificate of Vacation of Conviction with his political practices pledges because, legally, his conviction never occurred and the documentation was “a ministerial act” that simply certified what had already been accomplished. Tyler v. Shackleford, 303 Ark. 662, 799 S.W.2d 789 (1990).

Costs.

Former law providing for pledge of compliance by candidate did not contemplate that the county pay the costs of filing pledges, but the costs must be borne by those seeking office. State for use and benefit of Independence County v. Baker, 197 Ark. 1075, 126 S.W.2d 937 (1939) (decision under prior law).

Exceptions.

Candidates for board of directors or municipal judge in cities operating under the city manager form of government are not required to file a political practice pledge as provided in this section. Williams v. Pulaski County Election Comm'n, 249 Ark. 309, 459 S.W.2d 52 (1970).

Filing.

Nowhere in this section is there a requirement that candidates file their political practice pledges in person. Ridgeway v. Ray, 297 Ark. 195, 760 S.W.2d 848 (1988).

Inaccuracy in Pledge.

Although, contrary to § 7-10-103, an appointed district court judge who had filed as a candidate for the Court of Appeals erroneously used the title “Judge” in her signature of the political practices pledge, section 7-10-103 did not restrict courts from ordering a change on the ballot and curent law only sanctioned those who did not sign the pledge; there was no penalty for those found to have included inaccurate information on the pledge. Barrett v. Thurston, 2020 Ark. 36, 593 S.W.3d 1 (2020).

Independent Candidates.

The concept of “independent candidates” does not include candidates for board of directors or municipal judge in a city having a city manager form of government, since all such candidates run without political affiliation. Williams v. Pulaski County Election Comm'n, 249 Ark. 309, 459 S.W.2d 52 (1970).

Substantial Compliance.

A candidate's pledge that he was familiar with former corrupt practices laws, without more, was substantial compliance with former similar statute especially where it was not contended that the corrupt practices laws had been violated. Taaffe v. Sanderson, 173 Ark. 970, 294 S.W. 74 (1927) (decision under prior law).

Where a candidate for state senator, in good faith, intended to comply with prior law, and by mistake filed his pledge with the secretary of the Democratic Central Committee instead of with the Secretary of State, he should not be denied the right to have his name placed on the ticket. Spence v. Whittaker, 178 Ark. 51, 9 S.W.2d 769 (1928) (decision under prior law).

Surname.

Appointed district court judge who had filed as a candidate for the Court of Appeals was not disqualified because she used her maiden surname on the political practices pledge rather than her married surname. The record indicated that the candidate was known professionally by her maiden name, and her use of her maiden name on the ballot title did not serve to undermine the spirit of the political practices pledge by obfuscating her true identity, nor did it run afoul of this section, which requires only that a candidate use their “surname”. Barrett v. Thurston, 2020 Ark. 36, 593 S.W.3d 1 (2020).

Time of Filing.

Although the filing of the pledge was only two days late and might have been considered a substantial compliance with former similar statute if no objection had been raised until after the election, where enforcement of the provisions of the law was sought before the election, the provision in the law as to the time for filing was considered mandatory. Wright v. Sullivan, 229 Ark. 378, 314 S.W.2d 700 (1958) (decision under prior law).

This section is mandatory and not directory where enforcement is sought before the election, and it was error for the trial court to direct the commissioners to place on the general election ballots the names of candidates who filed their political practices pledges after the filing deadline. Stillinger v. Rector, 253 Ark. 982, 490 S.W.2d 109 (1973).

Failure to timely file a political practice pledge with the Secretary of State as required by subdivision (e)(2)(B) of this section is reason enough to prevent a candidate's name from appearing on the ballot. Lewis v. West, 318 Ark. 334, 885 S.W.2d 663 (1994).

7-6-103. Campaign participation by judges — Penalty — Definition.

  1. It shall be unlawful for any judge of the district or circuit courts and any Justice of the Supreme Court or Judge of the Court of Appeals to participate in the campaign of any candidate for office at any election, other than his or her own.
  2. The word “participation”, as used in this section, shall mean the managing of another's campaign or any solicitation on his or her behalf.
  3. Participation shall be deemed to be misfeasance and malfeasance in office and shall subject the judge to impeachment therefor.

History. Acts 1969, No. 465, Art. 11, § 6; A.S.A. 1947, § 3-1106; Acts 2005, No. 1994, § 261.

Research References

Ark. L. Rev.

Comments: Removal and Discipline of Judges in Arkansas, Porter, 32 Ark. L. Rev. 545.

7-6-104. Defamatory political broadcasts.

Neither the owner, licensee, nor operator of a visual or sound radio broadcasting station or network of stations nor his or her agents or employees shall be liable for any damages for any defamatory statement published or uttered in, or as a part of, a visual or sound broadcast by a candidate for political office in those instances in which, under the acts of Congress or the rules and regulations of the Federal Communications Commission, the broadcasting station or network is prohibited from censoring the script of the broadcast.

History. Acts 1969, No. 465, Art. 11, § 8; A.S.A. 1947, § 3-1108.

7-6-105. Use of sound equipment — Penalty for interference.

  1. When any citizen of Arkansas becomes a candidate in any primary or general election and complies with all the laws pertaining thereto, then the candidate shall be entitled to go into any city, town, municipality, or rural community in Arkansas and operate his or her acoustical or sound equipment between the hours of 8:00 a.m. and 9:00 p.m. notwithstanding any town or city ordinance to the contrary.
  2. Any person who interferes in any manner with the right granted in this section shall be guilty of a Class B misdemeanor.

History. Acts 1969, No. 465, Art. 13, §§ 1, 2; A.S.A. 1947, §§ 3-1301, 3-1302; Acts 2005, No. 1994, § 394.

Subchapter 2 — Campaign Financing

A.C.R.C. Notes. Acts 2015, No. 1280, § 14, provided:

“(a)(1) The Legislative Council shall conduct a feasibility study of requiring:

“(1) All state and district candidates to file campaign contribution and expenditure reports and carryover fund reports in electronic form; and

“(2) The implementation of systems for the review of campaign contribution and expenditure reports and carryover fund reports in a manner that is easily utilized by candidates and facilitates public access.

“(b)(1) The study shall be conducted in consultation with the Secretary of State and the Arkansas Ethics Commission.

“(2) The study shall afford a reasonable opportunity for public comment.

“(c) The study shall include without limitation:

“(1) Review of pertinent electronic filing systems utilized by other states;

“(2) A demonstration of electronic filing software systems by competent vendors in the field;

“(3) An evaluation of features that facilitate public access to electronically filed reports and statements and the searching of data contained therein;

“(4) An evaluation of programs that train public officials in the use of electronic filing systems;

“(5) An analysis of the costs to purchase, install, and test electronic filing systems; and

“(6) Appropriate timelines for the implementation of electronic filing systems.

“(d)(1) The study shall be completed by January 1, 2016.

“(2)(A) The Legislative Council shall report its findings to the President Pro Tempore of the Senate and Speaker of the House of Representatives.

“(B) The findings shall include recommendations as to the feasibility, cost, design, and timelines for the implementation of new or improved electronic filing systems by the Secretary of State.”

Cross References. Political parties, § 7-3-101 et seq.

Effective Dates. Acts 1975, No. 788, § 13: Apr. 4, 1975. Emergency clause provided: “It is hereby found and determined by the General Assembly that the laws of this state regulating contributions to political campaigns are totally inadequate to prevent abuses in the conduct of political campaigns, and that the immediate passage of this act is necessary in order to establish limitations on the amount of campaign contributions that may be made by one person or a group, and to require that records be kept by candidates for public office of contributions received by them in excess of $100; and that the immediate passage of this act is necessary to preserve the integrity of the election laws of this state. Therefore, an emergency is hereby declared to exist, and this act being necessary for the preservation of the public peace, health and safety, shall be in full force and effect from and after its passage and approval.”

Init. Meas. 1990, No. 1, § 9: Dec. 7, 1990, except that §§ 1, 2, 3(e) and (j), 4, and § 7-6-215 of § 6 shall become effective on Nov. 7, 1990.

Identical Acts 1995, Nos. 349 and 352, § 7: Feb. 17, 1995. Emergency clause provided: “It is hereby found and determined by the General Assembly that there now exists a vacancy on the Ethics Commission due to a decision by the Arkansas Supreme Court that invalidated the Chief Justice's appointment of a member of the commission; that this vacancy should be filled as soon as possible; and that this act establishes the mechanism for filling that vacancy and therefore should be placed into effect immediately. Therefore, an emergency is hereby declared to exist and this act being necessary for the immediate preservation of the public peace, health and safety shall be in full force and effect from and after its passage and approval.”

Init. Meas. 1996, No. 1, § 13: Jan. 1, 1997 except that §§ 2 and 3 shall become effective on Nov. 6, 1996.

Acts 1997, No. 250, § 258: Feb. 24, 1997. Emergency clause provided: “It is hereby found and determined by the General Assembly that Act 1211 of 1995 established the procedure for all state boards and commissions to follow regarding reimbursement of expenses and stipends for board members; that this act amends various sections of the Arkansas Code which are in conflict with the Act 1211 of 1995; and that until this cleanup act becomes effective conflicting laws will exist. Therefore an emergency is declared to exist and this act being immediately necessary for the preservation of the public peace, health and safety shall become effective on the date of its approval by the Governor. If the bill is neither approved nor vetoed by the Governer [sic], it shall become effective on the expiration of the period of time during which the Governor may veto the bill. If the bill is vetoed by the Governor and the veto is overridden, it shall become effective on the date the last house overrides the veto.”

Acts 1999, No. 1446, § 2: effective for tax years beginning on and after Jan. 1, 1999.

Acts 2001, No. 1839, § 35: Became law without Governor's signature Apr. 20, 2001. Emergency clause provided: “It is found and determined by the General Assembly that various provisions of the Arkansas Code relating to campaign financing and ethics are vague or otherwise in need of modification; that this act accomplishes those purposes; and that this act should go into effect as soon as possible so that those persons who are subject to the provisions of the various ethics and campaign finance statutes receive the benefit of the clarifications as soon as possible. Therefore, an emergency is declared to exist and this act being immediately necessary for the preservation of the public peace, health and safety shall become effective on the date of its approval by the Governor. If the bill is neither approved nor vetoed by the Governor, it shall become effective on the expiration of the period of time during which the Governor may veto the bill. If the bill is vetoed by the Governor and the veto is overridden, it shall become effective on the date the last house overrides the veto.”

Acts 2003, No. 774, § 6: effective for tax years beginning on or after Jan. 1, 2003.

Acts 2003, No. 1185, § 6: Jan. 1, 2005, by its own terms.

Acts 2015, No. 47, § 2: Feb. 13, 2015. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that the people of Arkansas adopted Amendment 94 to the Arkansas Constitution at the 2014 General Election, which added Sections 28, 29, and 30 to Article 19 of the Arkansas Constitution; that Amendment 94 requires the General Assembly to provide by law that Sections 28, 29, and 30 of Article 19 of the Arkansas Constitution be under the jurisdiction of the Arkansas Ethics Commission; and that this section should become effective at the earliest opportunity to allow the commission to issue guidance to affected public officials. Therefore, an emergency is declared to exist, and this act being immediately necessary for the preservation of the public peace, health, and safety shall become effective on: (1) The date of its approval by the Governor; (2) If the bill is neither approved nor vetoed by the Governor, the expiration of the period of time during which the Governor may veto the bill; or (3) If the bill is vetoed by the Governor and the veto is overridden.”

Acts 2015, No. 999, § 5: Apr. 2, 2015. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that the retention of certain public records such as campaign contribution reports and statements of financial interest filed by public officials warrants recognition, promotion, and protection by this state; that it is of vital importance that the state immediately designates an official custodian of these records so that the public can be assured that a designated state office will keep the records; and that this act is immediately necessary to ensure that the records will be available for immediate inspection. Therefore, an emergency is declared to exist, and this act being immediately necessary for the preservation of the public peace, health, and safety shall become effective on: (1) The date of its approval by the Governor; (2) If the bill is neither approved nor vetoed by the Governor, the expiration of the period of time during which the Governor may veto the bill; or (3) If the bill is vetoed by the Governor and the veto is overridden, the date the last house overrides the veto.”

Acts 2015, No. 1280, § 16: Apr. 8, 2015. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that the people of Arkansas adopted Arkansas Constitution, Amendment 94, at the 2014 General Election, which added Sections 28, 29, and 30 to Article 19 of the Arkansas Constitution; that Arkansas Constitution, Amendment 94, requires the General Assembly to provide by law that Arkansas Constitution, Article 19, Sections 28, 29, and 30 be under the jurisdiction of the Arkansas Ethics Commission; that this act should become effective at the earliest opportunity to allow the commission to enforce Arkansas Constitution, Article 19, Sections 28, 29, and 30 and issue guidance to affected public officials; and that the additional provisions of this act provide clarity to the ethics laws of the State of Arkansas and should become effective at the earliest opportunity to prevent confusion and avoid incorrect applications of the state's ethics laws. Therefore, an emergency is declared to exist, and this act being immediately necessary for the preservation of the public peace, health, and safety shall become effective on: (1) The date of its approval by the Governor; (2) If the bill is neither approved nor vetoed by the Governor, the expiration of the period of time during which the Governor may veto the bill; or (3) If the bill is vetoed by the Governor and the veto is overridden, the date the last house overrides the veto.”

Identical Acts 2016 (3rd Ex. Sess.), Nos. 2 and 3, § 128: July 1, 2016.

Acts 2017, No. 318, § 6: Oct. 1, 2017.

Acts 2017, No. 616, § 5: Jan. 1, 2018.

Acts 2019, No. 547, § 2: Mar. 21, 2019. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that it is paramount to our democracy that the participants in the democracy be held accountable for ethics violations; that the Arkansas Ethics Commission has inadequate staffing and funding to complete pending investigations of complaints filed in 2018; and that this act is immediately necessary because the integrity of our governmental system is at risk without adequate completion of pending investigations. Therefore, an emergency is declared to exist, and this act being immediately necessary for the preservation of the public peace, health, and safety shall become effective on: (1) The date of its approval by the Governor; (2) If the bill is neither approved nor vetoed by the Governor, the expiration of the period of time during which the Governor may veto the bill; or (3) If the bill is vetoed by the Governor and the veto is overridden, the date the last house overrides the veto”.

Case Notes

In General.

Initial Measure 1990, No. 1 regulates political action committees, solicitations by and contributions to political candidates, the use of campaign funds, and compensation of members of the General Assembly for making speeches and other appearances. Spradlin v. Ark. Ethics Comm'n, 314 Ark. 108, 858 S.W.2d 684 (1993).

Parties.

State Attorney was proper defendant in an action challenging the constitutionality of certain provisions of this subchapter. Ark. Right to Life State Political Action Comm. v. Butler, 972 F. Supp. 1187 (W.D. Ark. 1997).

Plaintiffs were not required to subject themselves to either the fine or term of imprisonment found in § 7-6-202 nor the penalties outlined in § 7-6-218 in order to have standing to challenge the constitutionality of the 1996 restrictions in federal court. Ark. Right to Life State Political Action Comm. v. Butler, 972 F. Supp. 1187 (W.D. Ark. 1997).

Plaintiffs had standing to pursue a pre-enforcement challenge of Init. Meas. 1996, No. 1, because the Act had been recently enacted, it facially restricted the plaintiffs, and violation of the statute could subject the plaintiffs to criminal prosecution. Ark. Right to Life State Political Action Comm. v. Butler, 972 F. Supp. 1187 (W.D. Ark. 1997).

Plaintiffs did not have standing to challenge this subchapter on behalf of candidates whose First Amendment rights may or may not be infringed. Ark. Right to Life Political Action Comm. v. Butler, 983 F. Supp. 1209 (W.D. Ark. 1997), aff'd, 146 F.3d 558 (8th Cir. 1998).

Research References

ALR.

Orders and enactments requiring disclosure by public officers and employees or candidates for office. 22 A.L.R.4th 237.

7-6-201. Definitions.

As used in this subchapter:

    1. “Approved political action committee” means any person that:
      1. Receives contributions from one (1) or more persons in order to make contributions to candidates, ballot question committees, legislative question committees, political parties, county political party committees, or other political action committees;
      2. Does not accept any contribution or cumulative contributions in excess of five thousand dollars ($5,000) from any person in any calendar year; and
      3. Registers pursuant to § 7-6-215 prior to making contributions.
    2. “Approved political action committee” does not include an organized political party as defined in § 7-1-101, a county political party committee, the candidate's own campaign committee, an exploratory committee, or a ballot question committee or legislative question committee as defined in § 7-9-402;
  1. “Candidate” means any individual who has knowingly and willingly taken affirmative action, including solicitation of funds, for the purpose of seeking nomination for or election to any public office;
    1. “Carryover funds” means the amount of campaign funds retained from the last election by the candidate for future use but not to exceed the annual salary, excluding expense allowances, set by Arkansas law for the office sought.
    2. “Carryover funds” does not include campaign signs, campaign literature, and other printed campaign materials that were:
      1. Purchased by the campaign;
      2. Reported on the appropriate contribution and expenditure report for the campaign at the time of the purchase; and
      3. Retained for use in a future campaign by the same candidate;
    1. “Contribution” means, whether direct or indirect, advances, deposits, or transfers of funds, contracts, or obligations, whether or not legally enforceable, payments, gifts, subscriptions, assessments, payment for services, dues, advancements, forbearance, loans, or pledges or promises of money or anything of value, whether or not legally enforceable, to a candidate, committee, or holder of elective office made for the purpose of influencing the nomination or election of any candidate.
      1. “Contribution” includes the purchase of tickets for events such as dinners, luncheons, rallies, and similar fundraising events; the granting of discounts or rebates by television and radio stations and newspapers not extended on an equal basis to all candidates for the same office; and any payments for the services of any person serving as an agent of a candidate or committee by a person other than the candidate or committee or persons whose expenditures the candidates or committee must report under this subchapter.
      2. “Contribution” further includes any transfer of anything of value received by a committee from another committee.
    2. “Contribution” shall not include noncompensated, nonreimbursed, volunteer personal services or travel;
  2. “Contribution and expenditure” shall not include activity sponsored and funded by a political party that meets the definition of a political party under § 7-1-101 or a political party that meets the requirements of § 7-7-205 to promote its candidates or nominees through events such as dinners, luncheons, rallies, or similar gatherings and shall not include nonpartisan activity designed to encourage individuals to register to vote or to vote or any communication by any membership organization to its members or stockholders if the membership organization or corporation is not organized primarily for the purpose of influencing the nomination for election or election of any candidate;
  3. “County political party committee” means a person that:
    1. Is organized at the county level for the purpose of supporting its affiliate party and making contributions;
    2. Is recognized by an organized political party, as defined in § 7-1-101, as being affiliated with that political party;
    3. Receives contributions from one (1) or more persons in order to make contributions to candidates, ballot question committees, legislative question committees, political parties, political action committees, or other county political party committees;
    4. Does not accept any contribution or cumulative contributions in excess of five thousand dollars ($5,000) from any person in any calendar year; and
    5. Registers pursuant to § 7-6-226 prior to making contributions;
  4. “Election” means each election held to nominate or elect a candidate to any public office, including school elections. For the purposes of this subchapter, a preferential primary, a general primary, a special election, and a general election shall each constitute a separate election;
  5. “Expenditure” means a purchase, payment, distribution, gift, loan, or advance of money or anything of value, and a contract, promise, or agreement to make an expenditure, made for the purpose of influencing the nomination or election of any candidate;
    1. “Exploratory committee” means a person that receives contributions which are held to be transferred to the campaign of a single candidate in an election.
    2. “Exploratory committee” shall not include:
      1. A political party:
        1. That meets the definition of a political party under § 7-1-101; or
        2. A political party that meets the requirements of § 7-7-205; or
      2. The candidate's own campaign committee;
  6. “Financial institution” means any commercial bank, savings and loan, mutual savings bank or savings bank, insurance company brokerage house, or any corporation that is in the business of lending money and that is subject to state or federal regulation;
  7. “Independent expenditure” means an expenditure which is not a contribution and:
    1. Expressly advocates the election or defeat of a clearly identified candidate for office;
    2. Is made without arrangement, cooperation, or consultation between a candidate or an authorized committee or agent of the candidate and the person making the expenditure or an authorized agent of that person; and
    3. Is not made in concert with or at the request or suggestion of a candidate or an authorized committee or agent of the candidate;
  8. “Independent expenditure committee” means any person that receives contributions from one (1) or more persons in order to make an independent expenditure and is registered pursuant to § 7-6-227 prior to making expenditures;
    1. “Legislative caucus committee” means a person that is composed exclusively of members of the General Assembly, that elects or appoints officers and recognizes identified legislators as members of the organization, and that exists for research and other support of policy development and interests that the membership hold in common.
    2. “Legislative caucus committee” includes, but is not limited to, a political party caucus of the General Assembly, the Senate, or the House of Representatives.
    3. An organization whose only nonlegislator member is the Lieutenant Governor or the Governor is a “legislative caucus committee” for the purposes of this subchapter;
    1. “Person” means any individual, proprietorship, firm, partnership, joint venture, syndicate, labor union, business trust, company, corporation, association, committee, or any other organization or group of persons acting in concert.
    2. “Person” shall also include:
      1. A political party that meets the definition of a political party under § 7-1-101 or a political party that meets the requirements of § 7-7-205;
      2. A county political party committee; and
      3. A legislative caucus committee;
    1. “Prohibited political action committee” means any person that receives contributions from one (1) or more persons in order to make contributions to candidates, ballot question committees, legislative question committees, political parties, county political party committees, or other political action committees but that does not meet the requirements of an approved political action committee.
    2. “Prohibited political action committee” shall not include:
      1. A political party that meets the definition of a political party under § 7-1-101 or a political party that meets the requirements of § 7-7-205;
      2. The candidate's own campaign committee;
      3. A county political party committee;
      4. An exploratory committee; or
      5. A ballot or legislative question committee;
  9. “Public office” means any office created by or under authority of the laws of the State of Arkansas or of a subdivision thereof that is filled by the voters, except a federal office;
    1. “Surplus campaign funds” means any balance of campaign funds over expenses incurred as of the day of the election except for:
      1. Carryover funds; and
      2. Any funds required to repay loans made by the candidate from his or her personal funds to the campaign or to repay loans made by financial institutions to the candidate and applied to the campaign.
    2. “Surplus campaign funds” does not include campaign signs, campaign literature, and other printed campaign materials that were:
      1. Purchased by the campaign;
      2. Reported on the appropriate contribution and expenditure report for the campaign at the time of the purchase; and
      3. Retained for use in a future campaign by the same candidate; and
    1. “Written instrument” means a check on which the contributor is directly liable or which is written on a personal account, trust account, partnership account, business account, or other account that contains the contributor's funds.
    2. As used in § 7-6-204 in the case of a contribution by credit card or debit card, “written instrument” includes without limitation:
      1. A paper record signed by the cardholder, provided that the paper record contains the following information for the cardholder at the time of making the contribution:
        1. Valid name;
        2. Complete address;
        3. Place of business;
        4. Employer; and
        5. Occupation; or
      2. In the case of a contribution made through the internet, an electronic record created and transmitted by the cardholder, provided that the electronic record contains the following information for the cardholder at the time of making the contribution:
        1. Valid name;
        2. Complete address;
        3. Place of business;
        4. Employer; and
        5. Occupation.
      3. A political party that meets the requirements of § 7-7-205;
      4. A county political party committee;
      5. A legislative caucus committee; or
      6. An approved political action committee.

History. Acts 1975, No. 788, § 1; 1977, No. 312, §§ 4, 7; A.S.A. 1947, § 3-1109; Acts 1987, No. 246, § 1; Init. Meas. 1990, No. 1, § 1; Acts 1993, No. 1209, § 2; Init. Meas. 1996, No. 1, § 1; Acts 1997, No. 491, § 1; 1999, No. 553, § 2; 2003, No. 195, § 1; 2005, No. 1284, § 2; 2005, No. 2006, § 1; 2009, No. 473, § 2; 2009, No. 1204, § 1; 2011, No. 721, § 2; 2013, No. 1126, §§ 9, 10; 2015, No. 1280, §§ 3, 4.

Amendments. The 2009 amendment by No. 473 substituted “§ 7-6-227” for “§ 7-6-215” in (12).

The 2009 amendment by No. 1204 substituted “repay loans made by the candidate from his or her personal funds” for “reimburse the candidate for personal funds contributed” in (17).

The 2011 amendment substituted “a political party that meets the definition of a political party under § 7-1-101 or a political party that meets the requirements of § 7-7-205” for “organized political parties as defined in § 7-1-101” in (5); subdivided and rewrote (9)(B); subdivided (14) as (14)(A) and (B); and in (14)(B), substituted “It” for “Person” at the beginning and deleted “organized political parties as defined in § 7-1-101” at the end; inserted (14)(B)(i); inserted “ballot question committees, legislative question committees, political parties, county political party committees, or other political action committees” in (15)(A); subdivided part of (15)(B); deleted “an organized political party as defined in § 7-1-101” at the end of the introductory paragraph of (15)(B); inserted (15)(B)(i); and added (18).

The 2013 amendment, in (1)(B), substituted “does” for “shall” and inserted “question committee”; and, in (11), substituted “Independent” for “An independent” and “means an” for “is any”.

The 2015 amendment redesignated former (3) as (3)(A); added (3)(B); redesignated former (17) as (17)(A)(i) and (ii); and added (17)(B)(i)-(iii).

Research References

U. Ark. Little Rock L. Rev.

Survey of Legislation, 2003 Arkansas General Assembly, Election Law, Campaign Finance and Disclosure Laws, 26 U. Ark. Little Rock L. Rev. 395.

Survey of Legislation, 2005 Arkansas General Assembly, Election Law, 28 U. Ark. Little Rock L. Rev. 351.

Case Notes

Constitutionality.

A heavier burden on the rights, under U.S. Const., Amend. 1, of approved political action committees (PACs), than on the rights of small donor PACs, is justified by the state's compelling interest in avoiding actual or apparent corruption. Russell v. Burris, 978 F. Supp. 1211 (E.D. Ark. 1997), aff'd in part, reversed in part, 146 F.3d 563 (8th Cir. 1998).

Limit of $200 on contributions to approved political action committees has not prevented political committees from amassing the necessary resources for effective advocacy, and does not appreciably infringe on their rights to free speech and association. Russell v. Burris, 978 F. Supp. 1211 (E.D. Ark. 1997), aff'd in part, reversed in part, 146 F.3d 563 (8th Cir. 1998).

Substantial disparity between small donor political action committees' (PACs) and approved PACs' abilities to raise money and contribute to candidates is balanced by the facts small donor PACs may only receive contributions from individuals, and approved PACs are not limited in the amount they can contribute overall; this disparity does not violate the approved PACs equal protection rights. Russell v. Burris, 978 F. Supp. 1211 (E.D. Ark. 1997), aff'd in part, reversed in part, 146 F.3d 563 (8th Cir. 1998).

Whether the $200 limit in subdivision (1) is narrowly tailored to serve the state's interest in preventing corruption held a question of fact; summary judgment on the issue of constitutionality was therefore denied. Ark. Right to Life Political Action Comm. v. Butler, 983 F. Supp. 1209 (W.D. Ark. 1997), aff'd, 146 F.3d 558 (8th Cir. 1998).

Candidate.

Political activist had standing to assert a First Amendment challenge to the prohibition in § 7-6-203 against soliciting or accepting campaign contributions more than two years before an election; the activist alleged a desire to donate in a future election cycle, submitted an affidavit, and alleged a credible threat of prosecution. A likelihood of success supported a preliminary injunction because no evidence showed restricting early contributions furthered the state's anti-corruption interest more than contribution limits alone. Jones v. Jegley, 947 F.3d 1100 (8th Cir. 2020).

7-6-202. Penalties.

A person who knowingly fails to comply with this subchapter shall upon conviction be guilty of a Class A misdemeanor unless a different penalty applies under this subchapter.

History. Acts 1975, No. 788, § 10; A.S.A. 1947, § 3-1118; Acts 2005, No. 1994, § 224; 2013, No. 1126, § 11; 2019, No. 879, § 1.

Amendments. The 2013 amendment deleted “or willfully” following “knowingly” and “any provisions of” following “comply with”.

The 2019 amendment added “unless a different penalty applies under this subchapter”.

Case Notes

Standing to Challenge.

Plaintiffs were not required to subject themselves to either the fine or term of imprisonment found in this section or the penalties outlined in § 7-6-218 in order to challenge the constitutionality of the new restrictions; it is not required that a party expose herself to arrest or prosecution under a criminal statute in order to challenge the statute in federal court. Ark. Right to Life State Political Action Comm. v. Butler, 972 F. Supp. 1187 (W.D. Ark. 1997).

Political activist had standing to assert a First Amendment challenge to the prohibition in § 7-6-203 against soliciting or accepting campaign contributions more than two years before an election; the activist alleged a desire to donate in a future election cycle, submitted an affidavit, and alleged a credible threat of prosecution. A likelihood of success supported a preliminary injunction because no evidence showed restricting early contributions furthered the state's anti-corruption interest more than contribution limits alone. Jones v. Jegley, 947 F.3d 1100 (8th Cir. 2020).

7-6-203. Contributions — Limitations — Acceptance or solicitation — Use as personal income — Disposition.

      1. It shall be unlawful for any candidate for any public office or for any person acting on the candidate's behalf to accept campaign contributions in excess of two thousand seven hundred dollars ($2,700) per election from:
      2. It shall be unlawful for a candidate for a public office or for any person acting on the candidate's behalf to accept a campaign contribution from a prospective contributor other than those under subdivisions (a)(1)(A)(i)-(vi) of this section.
    1. A candidate may accept a campaign contribution or contributions up to the maximum amount from any prospective contributor under subdivisions (a)(1)(A)(i)-(vi) of this section for each election, whether opposed or unopposed.
    1. It shall be unlawful for any person to make a contribution to a candidate for any public office or to any person acting on the candidate's behalf, which in the aggregate exceeds two thousand seven hundred dollars ($2,700) per election.
    2. A person permitted to make a contribution or contributions under subdivisions (a)(1)(A)(i)-(vi) of this section may make a contribution or contributions up to the maximum amount to a candidate for each election, whether opposed or unopposed.
  1. The limitation shall not apply to loans made by a candidate from his or her own personal funds to the campaign, contributions made by a candidate from his or her personal funds to the campaign, or to personal loans made by financial institutions to the candidate and applied to his or her campaign.
    1. It shall be unlawful for any candidate for any public office or any person acting in the candidate's behalf to accept any contribution from a prohibited political action committee for any election.
    2. It shall be unlawful for any prohibited political action committee to make a contribution to a candidate for public office in an election.
    3. It shall be unlawful for any ballot question committee, legislative question committee, political party, county political party committee, or approved political action committee to accept any contribution from a prohibited political action committee.
    4. It shall be unlawful for any prohibited political action committee to make a contribution to:
      1. A ballot question committee;
      2. A legislative question committee;
      3. A political party;
      4. A county political party committee; or
      5. An approved political action committee.
  2. It shall be unlawful for any candidate for public office, any person acting in the candidate's behalf, or any exploratory committee to solicit or accept campaign contributions more than two (2) years before an election at which the candidate seeks nomination or election. This subsection shall not prohibit the solicitation or acceptance of a contribution for the sole purpose of raising funds to retire a previous campaign debt.
    1. A candidate shall not take any campaign funds as personal income.
    2. A candidate shall not take any campaign funds as income for his or her spouse or dependent children, except that:
      1. This subsection shall not prohibit a candidate who has an opponent from employing his or her spouse or dependent children as campaign workers; and
      2. Any candidate who has an opponent and who, during the campaign and before the election, takes a leave of absence without pay from his or her primary place of employment shall be authorized to take campaign funds during the campaign and before the election as personal income up to the amount of employment income lost as a result of such leave of absence.
    3. A candidate who takes campaign funds during the campaign and before the election under a leave of absence pursuant to the provisions of subdivision (f)(2) of this section may elect to treat the campaign funds as a loan from the campaign fund to the candidate to be paid back to the campaign fund by the candidate.
        1. For purposes of this subsection, a candidate or officeholder, who uses campaign funds or carryover funds to fulfill any commitment, obligation, or expense that would exist regardless of the candidate's campaign or officeholder activity, shall be deemed to have taken campaign funds as personal income.
        2. Candidates or officeholders may use campaign funds or carryover funds to fulfill any commitment, obligation, or expense authorized by law, or permitted by an Arkansas Ethics Commission rule or opinion at the time of the expenditure, or reasonably and legitimately related to a campaign or officeholder activity.
      1. The use of campaign funds to purchase a cake or other perishable item of food at a fund-raising event held by a volunteer agency, as defined in § 16-6-103, shall not be considered a taking of campaign funds as personal income.
      2. The use of campaign funds to purchase advertising prior to the date the final report is due to be filed thanking voters for their support shall not be considered a taking of campaign funds as personal income.
      3. The use of campaign funds to pay a candidate's own personal expenses for food, lodging, or travel to attend a national presidential nominating convention shall not be considered a taking of campaign funds as personal income.
    4. If a candidate loses an election or if an officeholder is no longer in office, and after disposing of surplus funds, has carryover funds remaining, personal use of funds remains prohibited by this section for expenses unless the expenses relate to a future candidacy and comply with subdivision (f)(4) of this section.
    5. Knowingly taking campaign funds as personal income is a:
      1. Class B felony if the value of the benefit is twenty-five thousand dollars ($25,000) or more;
      2. Class C felony if the value of the benefit is five thousand dollars ($5,000) or more but less than twenty-five thousand dollars ($25,000);
      3. Class D felony if the value of the benefit is two thousand five hundred dollars ($2,500) or more but less than five thousand dollars ($5,000); or
      4. Class A misdemeanor if the value of the benefit is less than two thousand five hundred dollars ($2,500).
    6. It is an affirmative defense to a prosecution for taking campaign funds as personal income if the candidate or officeholder shows by a preponderance of the evidence that:
      1. If the personal property was retained as carryover funds, the candidate or officeholder:
        1. Reported the personal property as carryover funds; and
        2. Retained or disposed of the personal property in the manner that is required by law for carryover funds; or
      2. If the personal property was retained as surplus funds, the candidate or officeholder:
        1. Reported the personal property as surplus funds; and
        2. Retained or disposed of the personal property in the manner that is required by law for surplus funds.
    1. Within thirty (30) days following the end of the month in which an election is held or a candidate has withdrawn, a candidate shall turn over surplus campaign funds to either:
      1. The Treasurer of State for the benefit of the General Revenue Fund Account of the State Apportionment Fund;
      2. A political party as defined in § 7-1-101 or a political party caucus of the General Assembly, the Senate, or the House of Representatives;
      3. A nonprofit organization that is exempt from taxation under Section 501(c)(3) of the Internal Revenue Code;
      4. Cities of the first class, cities of the second class, or incorporated towns; or
      5. The contributors to the candidate's campaign.
    2. If the candidate's campaign has not ended, disposal of surplus campaign funds shall not be required and the candidate may carry forward any remaining funds to the general primary election, general election, or general runoff election for that same office.
      1. If an unopposed candidate agrees not to solicit further campaign contributions by filing an affidavit declaring such an agreement, the candidate may dispose of any surplus campaign funds prior to a general election as soon as the time has passed to declare an intent to be a write-in candidate pursuant to § 7-5-205.
      2. For an unopposed nonpartisan candidate, the affidavit may be filed after the deadlines have passed to declare as a filing fee candidate, petition candidate, or write-in candidate under § 7-10-103.
      3. The affidavit shall be filed in the office in which the candidate is required to file reports of contributions received and expenditures made.
      4. Unopposed candidates and defeated candidates who file the affidavit are exempt from further reporting requirements provided that the affidavit contains:
        1. All campaign activity not previously reported; and
        2. A statement that the candidate's campaign fund has a zero ($0.00) balance.
      1. Carryover funds may be expended at any time for any purpose not prohibited by this chapter and may be used as campaign funds for seeking any public office. Nothing shall prohibit a person at any time from disposing of all or any portion of his or her carryover funds in the same manner as for surplus campaign funds. However, the candidate shall not take the funds as personal income or as income for his or her spouse or dependent children.
        1. When a person having carryover funds files as a candidate for public office, his or her carryover funds shall be transferred to the person's active campaign fund. Once transferred, the funds will no longer be treated as carryover funds.
        2. This subdivision (g)(4)(B) shall not apply to carryover funds from an election held prior to July 1, 1997.
        3. This subdivision (g)(4)(B) shall not apply to a campaign debt.
        1. If carryover funds are expended prior to transferring the funds to an active campaign fund, the expenditures shall be reported pursuant to this subdivision (g)(4)(C). A person shall file an expenditure report concerning carryover funds if, since the last report concerning the carryover funds, the person has expended in excess of five hundred dollars ($500). The report shall be filed at the office in which the candidate was required to file his or her campaign contribution and expenditure reports for the previous campaign not later than fifteen (15) days after a calendar quarter in which a report becomes required. No report is required in any calendar quarter in which the cumulative expenditure limit has not been exceeded since the person's last report.
        2. The person shall also file an expenditure report for the calendar quarter in which he or she transfers the carryover funds to an active campaign fund.
          1. A person who retains carryover funds shall file an annual report outlining the status of the carryover fund account as of December 31 unless the person has filed a quarterly report during the calendar year pursuant to subdivisions (g)(4)(C)(i) and (ii) of this section.
          2. The annual report shall be due by January 31 of each year.
          3. A person who retains carryover funds from a general election held in November or a runoff election held in November is not required to file an annual report for the year of the general election or runoff election from which carryover funds were retained.
        3. The carryover fund reports of a candidate for school district, township, municipal, or county office shall be filed with the county clerk of the county in which the election was held.
          1. The carryover fund reports of a candidate for state or district office shall be filed with the Secretary of State.
          2. The carryover fund reports of a candidate for state or district office filed with the Secretary of State shall be filed in electronic form through the official website of the Secretary of State. The Arkansas Ethics Commission shall approve the format used by the Secretary of State for the filing of carryover fund reports in electronic form under this subdivision (g)(4)(C)(v)(b) to ensure that all required information is requested. The official website of the Secretary of State shall allow for searches of carryover fund report information required to be filed in electronic form under this subdivision (g)(4)(C)(v)(b) .
        1. Carryover funds may be retained by a person for not more than ten (10) years after the last election at which he or she was a candidate, or if applicable, not more than ten (10) years after the last day that the person held office, and any remaining carryover funds shall be disposed of in the same manner as for surplus campaign funds.
          1. The officer with whom the person last filed a final campaign report shall provide the person timely notice of the requirements of this subdivision (g)(4)(D) prior to the expiration of the ten-year period.
          2. However, failure to provide the notice does not relieve the person of his or her obligation under this subsection.
        1. The use of carryover funds to pay an elected candidate's own personal expenses for food, lodging, conference fees, or travel to attend a conference related to the performance of his or her responsibilities as an elected official shall not be considered a taking of campaign funds as personal income.
        2. The reimbursement of expenses shall be a result of travel and the source of the reimbursement shall be authorized under the rules of the House of Representatives or the Senate and used to reimburse the carryover account.
        3. The reimbursement amount shall be reported in the elected candidate's carryover fund report.
    3. After the date of an election at which the person is a candidate for nomination or election, the person shall not accept campaign contributions for that election except for the sole purpose of raising funds to retire campaign debt.
    4. Surplus campaign funds or carryover funds given to a political party caucus shall be segregated in an account separated from other caucus funds and shall not be used:
      1. By the political party caucus to make a campaign contribution; or
      2. To provide any personal income to any candidate who donated surplus campaign funds or carryover funds.
  3. A candidate may maintain his or her campaign funds in one (1) or more campaign accounts. Campaign funds shall not be placed in an account containing personal or business funds.
    1. The contribution limits under subdivision (a)(1)(A) and subdivision (b)(1) of this section shall be adjusted at the beginning of each odd-numbered year in an amount equal to the percentage certified to the Federal Election Commission by the United States Bureau of Labor Statistics under 52 U.S.C. § 30116(c) as existing on January 1, 2015.
    2. If the amount after adjustment under subdivision (i)(1) of this section is not a multiple of one hundred dollars ($100), the Arkansas Ethics Commission shall round the amount to the nearest multiple of one hundred dollars ($100).
    3. The Arkansas Ethics Commission shall promulgate rules identifying the adjusted contribution limit under subdivision (i)(1) of this section.

(i) An individual;

(ii) A political party that meets the definition of a political party under § 7-1-101;

History. Acts 1975, No. 788, § 2; 1977, No. 312, § 6; 1981, No. 690, § 1; A.S.A. 1947, § 3-1110; Init. Meas. 1990, No. 1, §§ 2, 3; Acts 1993, No. 1195, § 1; 1993, No. 1196, § 1; 1995, No. 863, §§ 1-3; 1995, No. 1296, § 41; Init. Meas. 1996, No. 1, §§ 2, 3; Acts 1997, No. 116, § 1; 1997, No. 491, §§ 2, 3; 1999, No. 553, § 3; 1999, No. 1057, § 1; 2001, No. 954, § 1; 2001, No. 1839, § 2; 2003, No. 195, §§ 2, 3; 2003, No. 248, § 1; 2005, No. 1284, §§ 3, 4; 2005, No. 1413, § 1; 2005, No. 1695, § 1; 2007, No. 221, § 2; 2009, No. 340, § 1; 2009, No. 473, §§ 3, 4; 2009, No. 1204, § 2; 2011, No. 721, §§ 3, 4; 2013, No. 382, § 1; 2013, No. 1110, § 7; 2015, No. 142, § 1; 2015, No. 1280, §§ 5-7; 2017, No. 318, § 1; 2019, No. 240, § 1; 2019, No. 845, § 1; 2019, No. 879, § 2.

A.C.R.C. Notes. Pursuant to § 1-2-207, subsection (g) of this section is set out above as amended by Acts 1993, No. 1195. Acts 1993, No. 818, § 1, effective January 1, 1994, also amended subsection (g) to read as follows:

“It shall be unlawful for the Governor, Lieutenant Governor, Secretary of State, Treasurer of State, Auditor of State, Attorney General, Commissioner of State Lands, members of the General Assembly, a candidate for any such office, or an exploratory committee for the candidacy of any person to any such office to accept a contribution during the period beginning thirty (30) days before and ending thirty (30) days after any regular session of the General Assembly or during any special session of the General Assembly. During such periods of time, it shall be unlawful for any person to promise a contribution to the aforementioned elected officials, candidates, and exploratory committees.”

The amendment of this section by Acts 1995, No. 863 has been deemed to supersede its amendment by Acts 1995, No. 1296. Subsection (j) of this section was amended by Acts 1995, No. 1296, § 41, to read as follows:

“(j)(1) Within thirty (30) days following a general election, a candidate shall turn over any balance of campaign funds over expenses incurred as of the day of the election to either:

“(A) The Treasurer of State for the benefit of the General Revenue Fund Account of the State Apportionment Fund;

“(B) An organized political party as defined in § 7-1-101(1); or

“(C) The contributors to the candidate's campaign.

“(2) The balance of campaign funds over expenses incurred to be turned over shall not include:

“(A) An amount equal to the yearly salary, excluding expense allowances, set by Arkansas law for the office sought; and

“(B) Any funds required to reimburse the candidate for personal funds contributed to the campaign or to repay loans made by financial institutions to the candidate and applied to the campaign.

“(3) If an unopposed candidate agrees not to solicit further campaign contributions by filing an affidavit with the Secretary of State declaring such agreement, the candidate may dispose of any surplus of campaign funds prior to a general election after the time has passed to declare an intent to be a write-in candidate pursuant to § 7-5-205.”

Acts 2015, No. 1280, § 15, provided: “The Arkansas Code Revision Commission is requested to reletter the subsections in Arkansas Code § 7-6-203.”

Amendments. The 2009 amendment by No. 340 inserted (h)(1)(D), redesignated the remaining subdivision accordingly, and made related and minor stylistic changes.

The 2009 amendment by No. 473 inserted (e)(3) and (e)(4) and redesignated the remaining text accordingly; and inserted (h)(2)(D)(i), redesignated the remaining text, and made related changes.

The 2009 amendment by No. 1204 substituted “loans made by a candidate from his or her own personal funds to the campaign, contributions made by a candidate from his or her personal funds to the campaign” for “a candidate's own contribution from his or her personal funds” in (c), and made a related change.

The 2011 amendment inserted “approved” in (e)(3); added “An approved” at the beginning of (e)(4)(E); in (h)(1), substituted “an election” for “the general election,” and inserted “or a candidate has withdrawn”; inserted (h)(2) and redesignated the remaining subdivisions accordingly; substituted “subdivision (h)(4)(B)” for “subdivision (h)(3)(B)” in (h)(4)(B)(ii) and (iii); substituted “subdivision (h)(4)(C)” for “subdivision (h)(3)(C)” in (h)(4)(C)(i); substituted “subdivisions (h)(4)(C)(i) and (ii)” for “subdivisions (h)(3)(C)(i) and (ii)”; and substituted “(h)(4)(D)” for “(h)(3)(D)” in (h)(4)(D)(ii) (a)

The 2013 amendment by No. 382 added (g)(4)(D) [now (f)(4)(D)].

The 2013 amendment by No. 1110, in (h)(3)(B) [now (g)(3)(B)], inserted “an”, deleted “candidates for” following “unopposed”, and substituted “candidate” for “judicial office”.

The 2015 amendment by No. 142 added (h)(4)(C)(iii) (c) [now (g)(4)(C)(iii) (c)

The 2015 amendment by No. 1280 rewrote (a) and (b); repealed former (d); and added (j) [now (i)].

The 2017 amendment redesignated former (g)(4)(C)(v) as (g)(4)(C)(v) (a) and added (g)(4)(C)(v) (b)

The 2019 amendment by No. 240 deleted “permitted to make a contribution under subdivisions (a)(1)(A)(i)-(vi) of this section” following “unlawful for any person” in (b)(1).

The 2019 amendment by No. 845 added (g)(4)(E).

The 2019 amendment by No. 879 deleted the second sentence in (f)(1) and deleted (f)(1)(A) and (f)(1)(B); redesignated (f)(4)(A) as (f)(4)(A)(i); in (f)(4)(A)(i), inserted “or officeholder”, “or carryover funds”, and “or officeholder activity”; and added (f)(4)(A)(ii), and (f)(5) through (f)(7).

U.S. Code. Section 501(c)(3) of the Internal Revenue Code, referred to in this section, is codified as 26 U.S.C. § 501(c)(3).

Cross References. Alternative to electronic filing of reports, § 7-6-230.

Research References

ALR.

Constitutionality, Construction, and Application of Statute or Regulatory Action Respecting Political Advertising — Print Media Cases. 51 A.L.R.6th 359.

Constitutionality, Construction, and Application of Statute or Regulatory Activity Respecting Political Advertising Nonprint Media Cases, or Cases Implicating Both Print and Nonprint Media. 53 A.L.R.6th 491.

Construction and Application of Supreme Court's Holding in Citizens United v. Federal Election Com'n, 558 U.S. 310, 130 S. Ct. 876, 175 L. Ed. 2d 753, 187 L.R.R.M. (BNA) 2961, 159 Lab. Cas. (CCH) P 10166 (2010), That Government May Not Prohibit Independent and Indirect Corporate Expenditures on Political Speech. 65 A.L.R.6th 503.

Constitutional Challenges to Compelled Speech — Particular Situations or Circumstances. 73 A.L.R.6th 281.

U. Ark. Little Rock L. Rev.

Survey of Legislation, 2003 Arkansas General Assembly, Election Law, Contributions to Candidates, 26 U. Ark. Little Rock L. Rev. 397.

Survey of Legislation, 2005 Arkansas General Assembly, Election Law, 28 U. Ark. Little Rock L. Rev. 351.

Case Notes

Constitutionality.

Contributions of $1000 to candidates for statewide races are not large, and the state lacks the compelling interest necessary to justify further limiting contributions in statewide races; therefore, $300 limits in former subdivisions (a)(2) and (b)(2) were unconstitutional. Russell v. Burris, 978 F. Supp. 1211 (E.D. Ark. 1997), aff'd in part, reversed in part, 146 F.3d 563 (8th Cir. 1998).

Limitations in former subdivisions (a)(1) and (b)(1) on contributions to candidates in non-statewide races to $100 were not unconstitutionally low (except in races for Supreme Court Justice and Court of Appeals Judge). Russell v. Burris, 978 F. Supp. 1211 (E.D. Ark. 1997), aff'd in part, reversed in part, 146 F.3d 563 (8th Cir. 1998).

Limit of $100 on contributions to Supreme Court Justices and Court of Appeals Judges was unconstitutionally low, because these judges are elected in statewide races, and under Canon 5C(2) of the Code of Judicial Conduct, candidates for these offices may not personally solicit or accept contributions. Russell v. Burris, 978 F. Supp. 1211 (E.D. Ark. 1997), aff'd in part, reversed in part, 146 F.3d 563 (8th Cir. 1998).

Substantial disparity between small donor political action committees' (PACs) and approved PACs' abilities to raise money and contribute to candidates is balanced by the facts small donor PACs may only receive contributions from individuals, and approved PACs are not limited in the amount they can contribute overall; this disparity does not violate the approved PACs equal protection rights. Russell v. Burris, 978 F. Supp. 1211 (E.D. Ark. 1997), aff'd in part, reversed in part, 146 F.3d 563 (8th Cir. 1998).

Whether the $100 limit in former subsection (a) is narrowly tailored to serve a compelling state interest was a question of fact; summary judgment on the issue of constitutionality was therefore denied. Ark. Right to Life Political Action Comm. v. Butler, 983 F. Supp. 1209 (W.D. Ark. 1997), aff'd, 146 F.3d 558 (8th Cir. 1998).

Whether the $500 limit in former subsection (k) was narrowly tailored to serve a compelling state interest in preventing an exchange of political services from current and potential office holders was a question of fact; summary judgment on the issue of constitutionality was therefore denied. Ark. Right to Life Political Action Comm. v. Butler, 983 F. Supp. 1209 (W.D. Ark. 1997), aff'd, 146 F.3d 558 (8th Cir. 1998).

Whether the blackout period in former subsection (g) was narrowly tailored to serve a compelling state interest in preventing corruption was a question of fact; summary judgment on the issue of constitutionality was therefore denied. Ark. Right to Life Political Action Comm. v. Butler, 983 F. Supp. 1209 (W.D. Ark. 1997), aff'd, 146 F.3d 558 (8th Cir. 1998).

The black out period provided for in former subsection (g) was not narrowly tailored to serve a compelling state interest and, therefore, was unconstitutional. Ark. Right to Life State Political Action Comm. v. Butler, 29 F. Supp. 2d 540 (W.D. Ark. 1998).

The $500 limit on contributions to independent expenditure committees is unconstitutional as a matter of law because it is too low to allow meaningful participation in the political process and, thus, is not narrowly tailored to serve the state's alleged compelling interest. Ark. Right to Life State Political Action Comm. v. Butler, 29 F. Supp. 2d 540 (W.D. Ark. 1998).

Political activist had standing to assert a First Amendment challenge to the prohibition in this section against soliciting or accepting campaign contributions more than two years before an election; the activist alleged a desire to donate in a future election cycle, submitted an affidavit, and alleged a credible threat of prosecution. A likelihood of success supported a preliminary injunction because no evidence showed restricting early contributions furthered the state's anti-corruption interest more than contribution limits alone. Jones v. Jegley, 947 F.3d 1100 (8th Cir. 2020).

Governor Exempt.

Subsection (a) of this section, as it applies to the office of Governor, is unconstitutional. Ark. Right to Life Political Action Comm. v. Butler, 983 F. Supp. 1209 (W.D. Ark. 1997), aff'd, 146 F.3d 558 (8th Cir. 1998).

7-6-204. Restriction on cash contributions or expenditures — Exception.

  1. No campaign contribution in excess of one hundred dollars ($100) or expenditure in excess of fifty dollars ($50.00) shall be made or received in cash.
  2. All contributions or expenditures in behalf of a campaign activity, other than in-kind contributions and expenditures, in excess of the amounts mentioned in subsection (a) of this section shall be made:
    1. By a written instrument containing the name of the donor and the name of the payee;
    2. By credit card or debit card where the transaction results in a paper record signed by the cardholder, provided that the paper record contains the following information for the cardholder at the time of making the contribution:
      1. Valid name;
      2. Complete address;
      3. Place of business;
      4. Employer; and
      5. Occupation; or
    3. By transaction that results in an electronic record created or transmitted by the cardholder where a contribution or expenditure is made through the internet, provided that the electronic record contains the following information for the cardholder at the time of making the contribution:
      1. Valid name;
      2. Complete address;
      3. Place of business;
      4. Employer; and
      5. Occupation.
  3. The payment of filing fees may be in cash even though the amount exceeds fifty dollars ($50.00). The candidate shall obtain a receipt for the payment and shall report it as a campaign expenditure.

History. Acts 1975, No. 788, § 8; 1977, No. 312, § 2; A.S.A. 1947, § 3-1116; Acts 2011, No. 721, § 5.

Amendments. The 2011 amendment subdivided (b) as introductory language and (b)(1) and added (b)(2) and (3).

Case Notes

Ticket to Political Fundraiser.

Cash purchase of a $125 ticket to a political fundraiser was at least a technical violation of this section. Campaign manager had a right and a legal duty to abide by this section and was reasonable in directing the refund of the cash contribution after it was mistakenly accepted. McIntosh v. White, 582 F. Supp. 1244 (E.D. Ark. 1984), aff'd in part, reversed in part, 766 F.2d 337 (8th Cir. 1985).

7-6-205. Contributions made indirectly, anonymously, or under assumed names.

  1. No campaign contribution shall be made to a candidate, a political action committee, an independent expenditure committee, an exploratory committee, a county political party committee, or a political party unless such contribution is made directly to the intended recipient. Provided, it shall be permissible to make a contribution to a candidate's campaign committee instead of directly to the candidate.
  2. No contribution shall be made to or knowingly accepted by a candidate or his or her campaign committee, a political action committee, an independent expenditure committee, an exploratory committee, a county political party committee, or a political party unless the contribution is made in the name by which the person providing the funds for the contribution is identified for legal purposes.
    1. No person shall make an anonymous contribution in support of or opposition to a candidate or campaign committee totalling fifty dollars ($50.00) or more in a calendar year.
    2. An anonymous contribution of fifty dollars ($50.00) or more shall not be kept by the intended recipient but shall be promptly paid by the recipient to the Secretary of State for deposit into the State Treasury as general revenues.
  3. Whenever any person provides his or her dependent child with funds and the child uses those funds to make a contribution to a candidate, the contribution shall be attributed to such person for purposes of applying the contribution limit pursuant to § 7-6-203(b).
  4. Campaign contributions may not be made by individuals who are not citizens of the United States or by any other entity which is not organized, existing, or created under the laws of the United States or of any state or other place subject to the jurisdiction of the United States and which does not have its principal place of business in the United States.

History. Acts 1975, No. 788, § 9; A.S.A. 1947, § 3-1117; Init. Meas. 1990, No. 1, § 4; Acts 1999, No. 553, § 4; 2007, No. 221, § 3.

Amendments. The 2007 amendment inserted “a county political party committee” in (a) and (b).

Research References

ALR.

Construction and Application of Supreme Court's Holding in Citizens United v. Federal Election Com'n, 558 U.S. 310, 130 S. Ct. 876, 175 L. Ed. 2d 753, 187 L.R.R.M. (BNA) 2961, 159 Lab. Cas. (CCH) P 10166 (2010), That Government May Not Prohibit Independent and Indirect Corporate Expenditures on Political Speech. 65 A.L.R.6th 503.

7-6-206. Records of contributions and expenditures.

  1. A candidate, a political party, or a person acting in the candidate's behalf shall keep records of all contributions and expenditures in a manner sufficient to evidence compliance with §§ 7-6-207 — 7-6-210.
  2. The records shall be made available to the Arkansas Ethics Commission and the prosecuting attorney in the dis