The Honorable Joe Yates State Senator 1812 Clark Street Bentonville, AR 72712
Dear Senator Yates:
This is in response to your request for an opinion on the following question:
Whether a county clerk has the authority to change a voter's affidavit of registration to correctly reflect a new precinct because of annexation to a city or incorporated town.
It is the opinion of this Office that the answer to your question is "yes". A.C.A. 14-40-606 provides as follows:
As soon as a resolution or ordinance declaring the annexation has been adopted or passed, the territory shall be deemed and taken to be a part and parcel of the limits of the city or incorporated town, and the inhabitants residing therein shall have and enjoy all the rights and privileges of the inhabitants within the original limits of the city or incorporated town. [Emphasis added.]
Therefore, it appears that voters living in annexed territory should be entitled to vote in city elections upon the adoption and passing of an ordinance annexing that territory to the city limits. The question becomes, who is responsible for insuring that voters are properly placed in precincts within the city limits?
The registration of voters is under the direct supervision of the permanent registrar, Ark. Const., Amendment 51, 5(a). The permanent registrar is defined as the county clerk in the several counties of the State. Ark. Const., Amendment 51, 2. County clerks shall have such powers as are necessary for the proper performance of their duties. 20 C.J.S. Counties, 133.
The county clerk is charged with the responsibility of maintaining an active and current precinct registration file which includes the affidavits of registration of all registered voters in the county. These affidavits of registration contained in the files kept by the County Clerk must be delivered to the polling places and used in all elections. The County Clerk must also provide for and supply a precinct registration file in duplicate and triplicate, arranged and bound by precinct. Ark. Const., Amendment 51, Section 7(a)(2) and (3).
The Arkansas Constitution is very specific as to what is to be contained in affidavits of registration. Amendment 51, Section 6(a)(2) provides as follows:
(a) The front of the affidavit of registration shall contain the name of the county in which issued, and
(2) The legal residence of the voter, including street address and house number if house numbers are used, otherwise such a description of the voter's legal residence as makes its location possible for determination of the voter's proper precinct . . . [Emphasis added.]
The determination of the voter's proper precinct could be made by the permanent registrar. The permanent registrar is given the authority based upon a mailed request from the registered voter to strike through the last address and record the new address of the voter on the original, duplicate, and triplicate copies of the affidavit of registration when the voter changes his legal residence within the county. Ark. Const. Amendment 51, 10(a).
In addition, Amendment 51, Section 14(a) provides as follows:
By the first day of June of each year, and at such other times as may be practicable, all permanent registrars shall, and at their discretion at other times may, print or otherwise duplicate and publish a list of registered voters by precincts, and may distribute such lists free of cost, or, with the approval of the County Board of Registration, at a price necessary to cover costs of publication. A copy of the most current such list in each precinct shall be furnished to the election officials at each precinct at the time the ballot boxes are delivered and such election officials shall post that list at a conspicuous place in the polling area.
The County Board of Election Commissioners is empowered to alter the boundaries of existing election precincts and establish new precincts (ACA 7-5-101(a), and the County Committee has some limited authority to change precincts with respect to primary elections (ACA 7-5-303(a)). It appears that it would be within the sound discretion of the county clerk as permanent registrar under Amendment 51 to insure that voters may vote in their respective newly created precincts as a result of an annexation. A voter must vote in the ward or precinct in which he resides, and not elsewhere. Christenson v. Felton, 226 Ark. 985, 295 S.W.2d 361 (1956). It would appear to be in the discretion of the county clerk to insure that the affidavit of registration accurately reflects the current precinct in which a voter resides.
Finally, as you have pointed out, the affidavit of registration should not be changed without giving the voter proper notice. As a suggestion to what would be considered proper notice, I would refer you to Sections 11 and 12 of Amendment 51 which require notification to the voter upon cancellation of registration or loss or destruction of the affidavit of registration.
The foregoing opinion, which I hereby approve, was prepared by Assistant Attorney General Rick D. Hogan.
Sincerely,
RON FIELDS Attorney General
RF:arb