The Honorable Tom Kennedy Prosecuting Attorney Fifth Judicial District P.O. Box 3080 Russellville, AR 72811
Dear Mr. Kennedy:
This is in response to Chief Deputy Prosecuting Attorney Jeff Phillips' request for an opinion regarding the effect of a recent amendment to Ark. Const. amend. 51, § 14, on Attorney General Opinion 92-255, issued by this office on September 2, 1992. Mr. Phillips has also submitted in this regard a copy of a court order from the Circuit Court of Cleburne County.
The 1995 amendment to Section 14 of Amendment 51 (see identical Acts 947 and 964 of 1995, § 11, effective January 1, 1996, and codified at Ark. Const. amend. 51, § 14 (Supp. 1995)) does not alone compel me to revise my 1992 opinion. The Secretary of State's view of the matter, coupled with the circuit court ruling in Cleburne County, does, however, support the conclusion that Ark. Const. amend. 51, § 14 is controlling. Thus, in my opinion, it may reasonably be concluded that June 1 is the date to use in determining the sufficiency of local option petitions.
The question focuses on the requirement in A.C.A. § 3-8-205 that "thirty percent (30%) of the qualified electors, as shown on the voterregistration records of the county, shall file petitions with the county clerk. . . ." to call a local option wet/dry election. A.C.A. §3-8-205(a) (1987) (emphasis added).1 It was concluded in Op. Att'y Gen. 92-255 that the 30% requirement must be met at the time the petitions are filed. The Circuit Court of Cleburne County, in the case ofRice, et al. v. Stark, et al., No. 92-93 (Oct. 14, 1992), looked, instead, to Section 14 of Amendment 51 to the Arkansas Constitution, which at that time stated as follows under subsection (b):
By the first day of June of each year, the Permanent Registrar shall certify to the State Auditor the total number of registered voters in the county. The State Auditor shall tabulate the total number of registered voters in the State and shall make such information available to interested persons upon request.
It is thus apparent that the Cleburne County Circuit Court viewed Ark. Const. amend. 51, § 14 as the controlling provision for purposes of the petition requirement in A.C.A. § 3-8-205, supra.2 The 1995 amendment to subsection (b) of amend. 51, § 14, which became effective January 1, 1996, now states:
By the first day of June of each year, the permanent registrar shall certify to the Secretary of State the total number of registered voters in the county. The Secretary of State shall tabulate the total number of registered voters in the state and shall make such information available to interested persons upon request.
The 1995 amendment substituted the Secretary of State for the State Auditor as the official to whom the county clerk must certify, by June 1, the total number of registered voters in the county. This amendment does not, in my opinion, necessarily clarify the question of whether the June 1 certification is controlling in determining whether 30% of the qualified electors "as shown on the voter registration records of the county" have filed petitions in accordance with A.C.A. § 3-8-205(a) (1987). It is stated, however, in correspondence attached to Mr. Phillips' request, that the Secretary of State is of the opinion that the June 1 certification is indeed controlling. In accordance with the same 1995 legislation which amended § 14 of Amendment 51, the Secretary of State "is designated the chief election official." See Ark. Const. amend. 51, § 5 (Supp. 1995) (effective January 1, 1996). It is thus my opinion that significant weight attaches to the Secretary of State's determination. The Cleburne County decision, moreover, offers one court's view of the petition requirement under A.C.A. § 3-8-205.
Thus, given the Secretary of State's view of the matter, coupled with the Cleburne County ruling, it is my opinion that the June 1 date should be regarded as controlling. Attorney General Opinion92-255 is superseded by this Opinion.
The foregoing opinion, which I hereby approve, was prepared by Assistant Attorney General Elisabeth A. Walker.
Sincerely,
WINSTON BRYANT Attorney General
WB:EAW/cyh
1 A 1993 amendment increased the percentage to 38%. See Acts 1993, No. 243, § 1, codified at A.C.A. § 3-8-205(a) and (b) (Supp. 1995).
2 The Circuit Court Order recites Amendment 51, Section 14 as requiring that the number of registered voters must be certified "by the first day of May of each year." Rice, supra, Order at 2. According to the 1987 bound volume of the Arkansas Constitution, however, June 1 was the operative date.