The Honorable Billy Joe Purdom State Representative HCR 66, Box 34 Yellville, Arkansas 72687
Dear Representative Purdom:
This is in response to your request for an opinion regarding Section 1 of Act 843 of 1987. You have asked the following specific questions in this regard:
1. Who can be an authorized agent other than the husband, wife, son, daughter, sister, brother, father, mother, grandparent, grandchild, aunt, uncle, niece, nephew, great-grandparent, or great-grandchild of the applicant?
2. Can the authorized agent pick up more than two absentee ballots?
3. Can the authorized agent designated by the person wanting to vote absentee be the administrative head of a hospital or nursing home or can it only be the husband, wife, son, daughter, sister, brother, father, mother, grandparent, grandchild, aunt, uncle, niece, nephew, great-grandparent, or great-grandchild of the applicant?
Section 1 of Act 843 amends Article 9 of Act 465 of 1969, as amended, (Ark. Stat. Ann. 3-904), to include the following under Section 4(a):
Applications for absentee ballots must be signed by the applicant and may be made in one of the following ways, and in no other manner:
(1) for applications submitted using the form prescribed in Article 9, Section 5 of Act 465 of 1969, as amended (Arkansas Statute Section 3-905):
. . . (iv) By delivery of 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. Delivery may be made by a person as the authorized agent of the applicant who submits to the County Clerk an affidavit of the administrative head of a hospital or nursing home located in this State that said applicant is a patient in said hospital or nursing home and is thereby unable to vote on said election day at their regular voting place. A copy of the affidavit shall be retained by the County Clerk as an attachment to the application for an absentee ballot.
The title of Act 843 states as follows:
An Act to amend Sections 4, 5, 7, and 10 of Article 9 of Act 465 of 1969, as amended (Ark. Stat. 3-904, 3-905, 3-907, and 3-910) to restrict the delivery of absentee ballots and ballot applications to the county clerk's office to members of the voter's family or to the agent of a voter hospitalized on election day; to restrict the delivery of ballots to the clerk's office to no more than two ballots per person; and for other purposes.
In response to your first question, the limitation contained in Ark. Stat. Ann. 3-904(a)(1)(iii) with respect to delivery by persons related to the applicant "up to the third degree of consanguinity" does not appear to be applicable to voters hospitalized on election day. The first rule in construing the meaning of a statute is to construe it just as it reads, giving words their ordinary and usually accepted meaning in common sense. Bolden v. Watt, 290 Ark. 343, 719 S.W.2d 428 (1986). The limiting language of subsection (iii) does not appear under subsection (iv), which addresses hospital or nursing home patients in particular. The language of Section 2 of Act 843 offers further guidance wherein Section 5 of Article 9 of Act 465 of 1969 (Ark. Stat. Ann. 3-905) is amended with respect to the required form of the absentee ballot application. 3-905 now reads in pertinent part:
2. (Voter is to indicate (x) one of the following methods for delivery of this application)
. . . C. I hereby authorize my (husband, wife, son, daughter, sister, brother, father, mother, grandparent, grandchild, aunt, uncle, niece, nephew, great-grandparent, or great-grandchild (circle one and insert their name)), _______________________ ____________________________ to deliver this application.
D. I hereby authorize ______________________________________ ____________ as my agent to deliver this application as I am medically unable to deliver it. An affidavit verifying my medical status as unable to deliver the application or to vote on the day of the election is attached.
Again, the absentee ballot application form contains no limitation with respect to the authorized agent of a person "medically unable to deliver" the application. (The attached affidavit must state that the person is a patient in a hospital or nursing home. See Subsection (iv), supra). It may therefore be concluded, in response to your first question, that there are no limitations in this regard.
You have also asked whether the authorized agent may pick up more than two (2) ballots. The answer to this question appears to be yes. There is a limitation in Section 4 of Act 843, which amends Section 10 of Article 9 of Act 465 of 1969, as amended (Ark. Stat. Ann. 3-910), with respect to the delivery of absentee ballots to the County Clerk's office. No one may deliver ballots to the Clerk's office for more than two (2) persons. See Section 4 of Act 843. However, provisions governing delivery of the ballot(s) by the Clerk to the absentee voter, following a determination that the applicant is registered or is otherwise eligible to vote absentee, do not reflect this limitation.
In response to your final question, as noted herein with respect to your first question, there appear to be no limitations on who may act as an "authorized agent." It may therefore be concluded that the administrative head of a hospital or nursing home can act as an "authorized agent."
The foregoing opinion, which I hereby approve, was prepared by Assistant Attorney General Elisabeth A. Walker.