Honorable Gloria Cabe State Representative 415 Colonial Court Little Rock, Arkansas 72205
RE: Amendment to Ark. Stat. Ann. 3-904 and 3-910
Dear Representative Cabe:
This opinion is in response to your request concerning the 1985 amendments of Ark. Stat. Ann. 3-904 and 3-910. Specifically, subsection (c) of the above statutes, amended by three separate acts of the legislature.
Act 567 amended the election code with respect to delivery of absentee applications and absentee ballots as follows:
(c) By delivery of the application form to the office of the County Clerk of the county of residence of the applicant not later than 1:30 p.m. on election day by a person designated in writing by the applicant, upon proper verification of the signature of the applicant by the County Clerk and validation of the identity of the bearer of the application. Any person who delivers an application for an absentee ballot shall sign an affidavit stating that he or she is the authorized agent of the applicant. A copy of the affidavit shall be returned by the County Clerk as an attachment to the application for an absentee ballot. No person may deliver applications to the Clerk's office for more than two (2) persons. (emphasis added).
(c) By delivery of the ballot to the office of the County Clerk of the county of residence of the voter not later than election day at the time the polls close. Delivery may be made only by a person designated in writing by the elector, upon proper verification of the signature of the voter by the County Clerk and validation of the identity of the bearer of the ballot. Any person, other than the elector, upon proper verification of the signature of the voter by the County Clerk and validation of the identity of the bearer of the ballot. Any person, other than the elector, who delivers an absentee ballot shall sign an affidavit stating that he or she is the authorized agent of the elector. No person may deliver absentee ballots to the Clerk's office for more than two (2) persons. (emphasis added).
Act 567 was formerly House Bill 28 which passed the House of March 5, 1985, and subsequently, passed the Senate on March 19, 1985.
Act 568 also amended the same section of the election laws as follows:
(c) By delivery of the application form to the office of the county Clerk of the county of residence of the applicant not later than 1:30 p.m. on election day. Delivery may be made only by the husband, wife, son, daughter, sister, brother, father or mother of the applicant, or any person designated in writing by the applicant, upon proper verification of the signatures of the applicant by the county clerk and validation of the identity of the bearer of the application. Any person who delivers an application for an absentee ballot shall sign an affidavit stating that he or she is the authorized agent of the applicant. A copy of the affidavit shall be returned by the clerk as an attachment to the application for an absentee ballot. No person may deliver applications to the Clerk's office for more than two (2) persons. (emphasis added.
(c) By delivery of ballot to the office of the County Clerk of the county of residence of the voter not later than election day at the time the polls close. Delivery may be made only by a person designated in writing by the elector, upon proper verification of the signature of the voter by the County Clerk and validation of the identity of the bearer of the ballot. Any person, other than the elector, who delivers an absentee ballot shall sign a affidavit stating that he or she is the authorized agent of the elector. No person may deliver absentee ballots to the Clerk's office for more than two (2) persons. (emphasis added).
Act 568 was formerly Senate Bill 10 and passed the House of February 20, 1985, and was amended by the Senate on March 5, 1985, and finally passed the House with the amendments on March 7, 1985.
Finally, Act 612 amended the election code in pertinent part as follows:
SECTION 1. Paragraph (3) of subsection (a) of Section 4 of Article 9 of Act 465 of 1969, as amended, the same being Arkansas Statutes 3-904(a)(3), is hereby amended to read as follows:
(3) 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 date of the election. Delivery may be made only by the husband, wife, son, daughter, sister, brother, father or mother of the applicant, or any person designated in writing by the applicant, upon proper verification of the signature of the applicant by the County Clerk and validation of the identity of the bearer. Provided, no person may deliver applications to the Clerk's office for absentee ballots for more than five (5) persons. (emphasis added). The elector may deliver the application to the office of the County Clerk of the county of his or her residence not later than 4:30 p.m. on the day immediately preceding the date of the election.
SECTION 2. Subsection (c) of Section 10 of Article 9 of Act 465 of 1969 as amended, the same being Arkansas Statutes 3-910(c), is hereby amended to read as follows:
(c) By delivery of the ballot to the office of the County Clerk of the county of residence of the voter not later than 7:30 p.m. on election day by the husband, wife, son, daughter, sister, brother, father, or mother of the absentee voter, or any person designated in writing by the voter, upon proper verification of the signature of the voter by the County Clerk and validation of the identity of the bearer. Provided, no person may deliver absentee ballots to the Clerk's office for more than five (5) persons. (emphasis added). The voter may deliver the ballot to the office of the County Clerk of the county of his or her residence not later than 5:30 p.m. on the date immediately preceding the date of the election.
Act 612 was formerly House Bill 482 and passed the House on February 5, 1985, subsequently it was approved by the Senate on March 13, 1985.
Specifically, your question concerns the number of absentee voters for whom a person may deliver applications and ballots. Acts 567 and 568 state no more than two (2) persons, while Act 612 states no more than five (5) persons.
In determining how many absentee voters a person can deliver an application and ballot for, it is the opinion of this office that Act 612 is the controlling piece of legislation.
As a matter of statutory construction, statutes must be read in harmony unless there is no way to reconcile conflicting clauses. In this case Acts 567, 568 and 612 cannot be read in harmony with respect to the number of absentee voters a person may deliver applications and ballots.
Acts 567, 568 and 612 were all signed by the Governor on March 26, 1985. Consequently, each Act contains a general repeal clause, however, no Act, contains an emergency clause. As a general rule where the legislature, at the same session, passes two Acts which are irreconcilable, the one passed later and going into effect earlier will prevail over one passed earlier and going into effect later. Williams v. State, 215 Ark. 757, 223 S.W.2d 190 (1949). However, where an Act does not contain an emergency clause it becomes effective 90 days after the legislature adjourns sine die. Amendment 7, Arkansas Constitution. In this case, each Act became effective on the same day. Therefore, in order to decide which Act is controlling it must be determined which Act was signed last by the Governor. Where two Acts definitely conflict the last approved by the Governor must prevail. Commonwealth v. Sanderson, 195 S.W. 516, at 520 (1938).
33.11. Acts approved on the same day.
When two acts are approved on the same day, they take effect at the same time if there is no evidence to prove chronological precedence of one over the other.
Sutherland on Statutory Construction 33.11
The Governor's office maintains a listing of Bills signed by the Governor in the order in which they are approved. The list for March 26, 1985, shows that the Governor approved the following Bills in sequential order.
HB 28 Act 567 SB 10 Act 568 SB 112 Act 569 SB 326 Act 570 SB 471 Act 571 SB 500 Act 572 SB 501 Act 573 SB 531 Act 574 SB 532 Act 575 SB 533 Act 576 SB 534 Act 577 SB 536 Act 578 SB 559 Act 579 SB 565 Act 580 SB 570 Act 581 SB 571 Act 582 SB 574 Act 583 SB 583 Act 584 SB 587 Act 585 SB 590 Act 586 SB 592 Act 587 SB 595 Act 588 SB 602 Act 589 SB 605 Act 590 SB 606 Act 591 SB 607 Act 592 SB 609 Act 593 SB 611 Act 594 SB 615 Act 595 SB 616 Act 596 SB 619 Act 597 SB 622 Act 598 SB 626 Act 599 SB 627