The Honorable L.L. "Doc" Bryan State Representative 305 South VanCouver Russellville, Arkansas 72801
Dear Representative Bryan:
This is in response to your request for an opinion on how many "poll workers" must be present at an election where a "paper ballot" is used with a "counting machine". For the reasons that follow, it is my opinion that the answer to your question is "five".
I assume that the term "paper ballot" used with a "counting machine" refers to a vote card that is used in connection with electronic voting systems. See A.C.A. 7-5-601 et seq. Under this system, a voter records his vote by means of marking or punching one or more "vote cards" which are later counted by a data processing machine. See generally, A.C.A. 7-5-602. This subchapter does not spell out the entire number of election judges and clerks to be present at the polls, but does state in7-5-604(b) as follows:
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 this system of electronic voting and tabulation as authorized in this subchapter.
This provision becomes important because the requisite number of "poll workers" is set out under provisions governing two "other means" of voting. In A.C.A. 7-4-107, it is provided that with the use of paper ballots, "there shall be at least one (1) set of three (3) judges and two (2) clerks for each voting precinct" and that "[a]t the time of the appointment of the election judges and clerks, the board shall also appoint one (1) election sheriff for each polling place. . . ." A.C.A. 7-4-107(a). That same statute, however, in subsection (d), provides that "[i]n each county using voting machines, the county board of election commissioners shall appoint one (1) judge and one (1) clerk to represent each the majority and the minority parties at each polling place . . ." That subsection also provides for the appointment of one election sheriff.
Thus, the only difference with respect to the number of "poll workers" required to be present at the polling place is that with the use of paper ballots, three judges are required, and with the use of regular "voting machines", only two judges are required. Under both of these systems, two clerks and one election sheriff are required. Accordingly, with paper ballots, six "poll workers" are required, and with voting machines, five "poll workers" are required. We must determine which one of these provisions governs polling places using electronic voting machines, since the subchapter governing their use does not specify the exact number.
There are some conflicting provisions in this regard. Section7-5-601 et seq. refers in many places to the election "judges and clerks" but never specifically sets out the required number. Some guidance is offered in A.C.A. 7-5-614(b)(1) which involves the counting of the vote cards, and provides in pertinent part as follows:
(b) If the votes are to be tabulated at a central location:
(1) The judges and clerks of each election shall place all vote cards that have been cast in the container provided for the purpose. This container shall be sealed and delivered forthwith by the judges of election. If both judges cannot accompany the delivery of the container, then at least one (1) judge and at lease one (1) clerk designated by the judges will accompany the container.
This provision makes reference to "both judges", as if contemplating only two judges at the polling place. Further reference to the statute, however, may require a different result. Provision is made for the exact number of judges required to be at the " counting place" if at a central location. Section7-5-614(b)(2) provides:
All proceedings at the counting location shall be under the direction of three (3) judges named by the county committee of each political party with respect to primary elections and under the direction of three (3) judges named by the commissioners with respect to general and special elections. In general and special elections, no more than two (2) of the judges shall be of the same political party.
If, however, the counting is not to be done at a central location, A.C.A. 7-5-614(c) provides:
(c) If the votes are to be tabulated at the polling place:
(1) The election judges and clerks shall proceed to tabulate, thereof, in the same manner and under the same restrictions as is provided in this section for tabulation by the judges at a central location so far as is practical.
(2) All tabulating proceedings shall be under the direction of the election judges and clerks at the polling place. Accordingly, we know from A.C.A. 7-5-614(b)(2) that three judges are required to be present at the counting place. But are the judges at the counting place the same judges at the polling place? If so, three judges are required at the polling place and thus the total number of "poll workers" required is six. If the term "counting judges" refers to three different judges than the polling place judges, then perhaps the reference to "both judges" in A.C.A. 7-5-614(b)(1) controls and only two judges are required at an electronic voting machine polling place; and thus only five "poll workers" are required.
It is my opinion that the term "counting judges" does not refer to the judges to be present at the polling place, although it does not, in my opinion, preclude those judges from fulfilling both positions. Evidence to support this conclusion is found at A.C.A.7-5-615(c), which provides:
(c) The judges at the counting place and all persons operating the electronic tabulating equipment shall take the same oath required by the law for election judges and clerks before entering upon their duties.
In my opinion, this provision contemplates two different types of election judge positions: polling place judges and counting place judges. Consequently, the fact that three "counting judges" are required at a central location under A.C.A. 7-5-614(b), does not compel the conclusion that three judges are required at the polling place. Therefore, the reference in A.C.A. 7-5-614 to "both judges", in my opinion, governs with respect to the polling place, and thus five "poll workers" are required to be at a polling place using electronic voting machines: two judges, two clerks, and one election sheriff. It should be noted, however, that three judges are required to be present at the "counting place" if it is one centrally located.
The foregoing opinion, which I hereby approve, was prepared by Assistant Attorney General Elana L. Cunningham.