The Honorable Steve Bryles State Senator 514 West Main Blytheville, Arkansas 72315
Dear Senator Bryles:
I am writing in response to your request for an opinion on the following question:
BACKGROUND INFORMATION: The Election Commission's office is currently in the County Courthouse in Blytheville. Early voting takes place in the Courthouse in a room that is used for several purposes. Scheduling conflicts often arise with the use of the room during early voting and, because of the popularity of early voting, the Election Commission would like to move its office and the early voting facility out of the Courthouse to an office within one block of the Courthouse. This is to facilitate the flow of traffic in the Courthouse and to help make early voting more orderly. It has been suggested to us that, in order to do this, we need an Attorney General's opinion.
OPINION REQUESTED: Is it permissible to conduct early voting out of the Courthouse and in the Election Commission's office?
RESPONSE
It is my opinion that the answer to this question is "no," except in a county containing one hundred fifty thousand or more registered voters.
Early voting is addressed at A.C.A. § 7-5-418, which provides that:
(a) Early voting shall be available to any qualified elector who applies to the county clerk during regular office hours, beginning fifteen (15) days before an election and ending on the day before election day at the time the county clerk's office regularly closes.
(b)(1)(A) In any county containing one hundred fifty thousand (150,000) registered voters or more, the county board of election commissioners may decide to hold early voting at additional polling sites outside the offices of the county clerk and to include the additional voting locations for a maximum of fifteen (15) days but fewer if it so chooses by majority vote.
(B) The county board of election commissioners shall determine by unanimous vote the location of additional polling sites for early voting.
(C) The county clerk shall publish the location of additional early voting polling sites in a newspaper of general circulation at least five (5) days before early voting begins.
(2) The county board of election commissioners shall select the number of election officials necessary to adequately staff the additional early voting polling site or sites as in any other election.
(3)(A) The county board of election commissioners shall notify the county clerk of its decision to hold early voting at additional polling sites outside the office of the county clerk within ten (10) days of the decision.
(B) If the county board of election commissioners decides to hold early voting at additional polling sites outside the office of county clerk, the county clerk may choose not to hold early voting within the office of the county clerk. The county clerk shall notify the county board of election commissioners within ten (10) days of the receipt of notice from the county board of election commissioners regarding early voting at additional polling sites.
(4) The early voting election official shall record the date on all pages of the early voting roster or early voting request form and keep a daily record of the number of early ballots cast.
(5)(A) The county board of election commissioners may vote to extend the normal hours for voting during early voting.
(B) The county clerk shall publish the additional hours for early voting with the location of additional early voting polling sites in a newspaper of general circulation at least five (5) days before early voting begins.
(c) Before a person is permitted to cast an early vote, the county clerk or election official shall:
(1) Request the voter to identify himself by stating his name, date of birth, and address in order to verify his registration;
(2) If the voter's name or address is not the same as that in the county voter registration record files, request the voter to complete an updated voter registration application form;
(3) Request the voter to sign an early voting roster or early voting request form which identifies his name, address, date of birth, and the date on the roster or form; and
(4) Enter the voter's precinct number on the early voting roster or early voting request form.
(d) If the voter is not listed in the county voter registration record files and the county clerk is unable to verify the voter's registration and if the voter contends that he or she is eligible to vote, then the voter may vote a challenged ballot which shall only be counted upon verification of the voter's registration status.
(e) The county clerk or county board of election commissioners shall furnish voting locations that adequately allow the early voter to personally and secretly execute his or her ballot.
(f) Upon casting his or her ballot, the voter shall then deposit the ballot and the stub in the appropriate box in the same manner as for votes cast on the day of the election.
(g) Early votes shall be counted at the same time as absentee ballots.
(h) Except as provided in this section, early voting shall be conducted in the same manner as voting on election day. Conduct that is prohibited or restricted on election day shall be subject to the same prohibitions and restrictions on the days on which early voting is conducted.
(Emphasis added).
Conspicuously absent from your "background information" is any mention of the county clerk. Section (a) of the statute above clearly envisions that early voting will take place at the office of the county clerk. See also Op. Att'y. Gen. 2000-289, n. 1 (stating that early voting takes place at the office of the county clerk). In addition, A.C.A. § 7-5-401 provides that: "The county clerk shall be the custodian of the absentee and early voting ballots. The county clerk shall be furnished a suitable room at the county courthouse and shall exercise all powers and duties concerning the application for, the issuance of, and the voting of absentee and early voting ballots required by law of the county clerk." Also relevant in this regard is A.C.A. § 7-5-413, which states in pertinent part that: "[i]f it is determined . . . that voting machines shall be used for early voting by personal appearance, a voting machine or machines shall be placed in the office of the clerk who is to conduct the early voting for the election. . . ."
In my opinion, therefore, the county clerk is to conduct early voting, and the relevant statutes contemplate that early voting will be conducted at the office of the county clerk, or at least in some "suitable room" at the county courthouse. See A.C.A. § 7-5-401. The facts you have presented do not indicate that the place proposed for early voting could be characterized as either the office of the county clerk or a room in the county courthouse.
It is clear, additionally, that the entire subsection (b) of A.C.A.7-5-418, which authorizes the conduct of early voting at additional polling sites outside the office of the county clerk, applies only in counties with one hundred and fifty thousand or more registered voters.See Op. Att'y. Gen. 2000-295 ("[i]t is clear in my opinion that entire subsection (b), including (b)(5)(A), applies only to counties with the requisite number of registered voters (150,000).")1 Smaller counties may not rely on subsection (b) of this statute to hold early voting in additional or alternative polling places. Two bills were filed in the regular session of the 83rd General Assembly that would have allowed additional polling sites in all counties, but each bill failed of adoption. See SB 373 and HB 1031 (2001 Reg. Sess).
In my opinion, therefore, the answer to your question is "no," except in counties with one hundred and fifty thousand or more registered voters.
Senior Assistant Attorney General Elana C. Wills prepared the foregoing opinion, which I hereby approve.
Sincerely,
MARK PRYOR Attorney General
MP:ECW/cyh
1 As noted in Op. Att'y. Gen. 2000-295, subsection (b) of A.C.A. §7-5-418 was added by a 1997 amendment. See Acts 1997, No. 967. That same act inserted the words "or election official" in present (c) and the words "or county board of election commissioners" in present (e), adapting those provisions of the law to the fact that in some cases, namely in large counties, the election commissioners may be responsible for conducting early voting.