Does an Arkansas county election board need a unanimous vote to close a polling place that violates the ADA or HAVA?

Plain-English summary

Sebastian County's prosecuting attorney, Daniel Shue, asked the AG how the county board of election commissioners should handle a polling site that did not comply with federal disability or voting-access law. A.C.A. § 7-5-101(a)(2) required CBECs to designate polling sites by unanimous vote. He wanted to know whether closing a noncompliant site also needed a unanimous vote, whether federal law preempted the unanimity rule, and whether the county had to pay to fix a non-county-owned polling place.

The AG answered the first two questions "no" and respectfully declined the third as a pure federal-law question outside his office's mandate. A CBEC has three members, and under A.C.A. § 7-4-105(a), the concurring votes of any two decide questions before them unless a law says otherwise. Nothing in the polling-site statute required unanimity to close a site. But the AG emphasized that closing without designating a replacement leaves a precinct's voters with nowhere to go, and designating any new site (including reassigning a precinct's voters to a site already in use) does require unanimity under A.C.A. § 7-5-101(a)(2). In practice, a two-vote majority can close, but a one-vote dissent can block the replacement.

On federal preemption, the AG found no conflict. The ADA prohibits public entities from discriminating against people with disabilities in the provision of services, including voting (42 U.S.C. § 12132). HAVA authorizes federal payments to make polling sites accessible (42 U.S.C. § 15421). Neither statute addresses how a state's election commission must vote internally. The unanimity rule may make it harder for a majority to enforce federal compliance, but procedural friction is not preemption.

Currency note

This opinion was issued in 2014. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Background and statutory framework

Arkansas county boards of election commissioners are three-member bodies with broad authority over precinct boundaries, polling locations, and election administration. The relevant statutes:

• A.C.A. § 7-4-102(a)(2) sets the CBEC's three-member composition.
• A.C.A. § 7-4-105(a) establishes that "the concurring votes of any two (2) shall decide questions before them unless otherwise provided by law." This is the default majority rule.
• A.C.A. § 7-5-101(a)(2) carves out an exception: "Except as provided in § 6-14-106 [school-election polling sites], the designation of polling sites shall be by a unanimous vote of the members of the [CBEC] present." Designation requires unanimity. Closure does not.

The AG had previously addressed the scope of the unanimity rule in Op. Att'y Gen. 2014-068, which extended unanimity to situations where a CBEC merely reassigns a precinct's voters to an existing polling site. That earlier opinion controls here: any change in a precinct's designated polling site counts as a "designation."

For preemption, the relevant federal statutes are the ADA (42 U.S.C. § 12132 prohibiting public-entity discrimination, and § 12101(a)(3) finding voting access among the affected services) and HAVA's polling-site accessibility provisions at 42 U.S.C. § 15421. Under the Supremacy Clause and the Eighth Circuit's standard articulated in Gunter v. Farmers Insurance, federal law preempts state law only when (1) Congress expressly says so, (2) Congress thoroughly occupies the field, or (3) there is a direct conflict. None of those applied here.

Common questions

Why is closing easier than opening?

The Arkansas legislature flagged polling-site selection as a high-stakes decision that benefits from broad consensus. Picking where voters cast ballots is a partisan-sensitive call, and requiring all three commissioners (typically representing both major parties) to agree forces compromise. Closing a site is more like an administrative response to a specific problem and falls under the default majority rule.

What happens if the CBEC can't agree on a replacement site?

The AG opinion does not say. As a practical matter, a 2-1 vote to close coupled with a deadlocked vote on replacement leaves the precinct's voters without a polling place. That outcome would likely create its own ADA or HAVA problem if the precinct includes disabled voters who now have no accessible option, and it could lead to litigation. In practice, the unanimity requirement pushes the board to package closures with replacements so that one vote covers both.

Does HAVA give the county money to fix accessibility problems?

HAVA authorized federal payments to states and local governments to make polling sites accessible to disabled people. The opinion notes the existence of those funds at 42 U.S.C. § 15421, but the third question (whether Sebastian County had to foot the bill for a non-county-owned site) was a pure federal-law question that the AG declined to answer. State-law AG opinions are statutorily limited to questions of state law (A.C.A. § 25-16-706), with federal-law questions answered only when they bear on interpreting state law.

What about school elections?

A.C.A. § 6-14-106 carves out school-election polling sites from the unanimity rule. The CBEC can designate those by majority. Everything else, including a general-election polling site that doubles as a school-election site, sits inside the unanimity rule.

Could a state court order a CBEC to take action?

Yes, but the practical effect would be the same as the rule. A court can order the CBEC to designate a replacement site, but the order does not eliminate the unanimity requirement; it would force the commissioners to vote. If they remain deadlocked, the court could potentially appoint a special commissioner or impose another remedy, though this opinion does not address that pathway.

Source

• Landing page: https://arkansasag.gov/divisions/opinions-foia/attorney-general-opinions-search/

Original opinion text

STATE OF ARKANSAS
THE ATTORNEY GENERAL
Dustin McDANIEL

Opinion No. 2014-107
October 22, 2014

The Honorable Daniel Shue
Prosecuting Attorney
Twelfth Judicial District
901 South B Street, Suite 209
Fort Smith, Arkansas 72901

Dear Mr. Shue:

This is my opinion on your questions about the unanimity requirement for a county board of election commissioners (a "CBEC") to designate a polling site. Your questions are:

Question 1: Is it necessary to have a unanimous vote to close a designated polling place that is in violation of either the Americans with Disabilities Act of 1990, Pub. L. No. 101-336, 104 Stat. 328 (1990) or the Help America Vote Act of 2002, Pub. L. No. 107-252, 116 Stat. 1666-1730?

Question 2: Do the above-listed federal statutes preempt A.C.A. § 7-5-101(a)(2)?

Question 3: Hypothetically, if a polling place is not owned by Sebastian County, is Sebastian County nevertheless financially responsible for making the site compliant with the above-listed federal statutes?

RESPONSE

In my opinion, the answer to your first two questions is "no," but a unanimous vote is required to designate a new polling site to serve voters of a precinct whose polling site is closed for non-compliance with federal law or any other reason. I respectfully decline to answer your third question, which appears to be strictly a matter of federal law.

DISCUSSION

Question 1: Is it necessary to have a unanimous vote to close a designated polling place that is in violation of either the Americans with Disabilities Act of 1990, Pub. L. No. 101-336, 104 Stat. 328 (1990) or the Help America Vote Act of 2002, Pub. L. No. 107-252, 116 Stat. 1666-1730?

In my opinion, the answer is "no," but unanimity is required to designate a polling site to replace the one closed.

A CBEC has three members. "[T]he concurring votes of any two (2) shall decide questions before them unless otherwise provided by law." I know of no law providing otherwise with respect to a CBEC decision to close a polling site. It is thus my opinion that CBEC unanimity is not required to close a polling site.

Obviously, however, when a polling site is closed, another polling site must be designated to serve the voters who had used the closed site. As stated above, CBEC unanimity is required to designate a polling site. The unanimity requirement applies, in my opinion, whenever a CBEC changes a precinct's polling site, even when it merely assigns the precinct's voters to a site already being used by other voters.

Question 2: Do the above-listed federal statutes preempt A.C.A. § 7-5-101(a)(2)?

In my opinion, the answer is "no."

Federal law is "the supreme Law of the Land . . . any Thing in the Constitution or Laws of any State to the Contrary notwithstanding."

[T]he Supremacy Clause . . . invalidates state laws that frustrate or interfere with federal law. Federal law may preempt state law expressly by explicitly prohibiting state regulation in a particular field or implicitly by thoroughly occupying the field of regulation. Preemption also occurs where there is a direct conflict between federal and state law.

The Americans with Disabilities Act, among other things, prohibits public entities from discriminating against disabled persons in the provision of services, programs, and activities, including voting. The Help America Vote Act, among other things, provides for federal payments to state and local governments to make polling sites accessible to people with disabilities.

In my opinion, the unanimity requirement is not "to the Contrary" of anything in the ADA or HAVA and accordingly is not preempted by either. There is no direct conflict between federal and state law. The federal laws you cite do not expressly prohibit state procedural requirements relating to polling site designation. Neither do they impliedly do so by occupying the field; they do not address such procedural requirements at all and therefore occupy no part of the field.

One can, of course, point to the unanimity requirement as a practical impediment to a CBEC majority's determination to do something that, in that majority's estimation, is necessary to comply with federal law. But the fact that a local government can fail or refuse to comply with federal law does not somehow negate the rules dictating how local governments operate.

Question 3: Hypothetically, if a polling place is not owned by Sebastian County, is Sebastian County nevertheless financially responsible for making the site compliant with the above-listed federal statutes?

The law requires me to render opinions to certain public officials on questions of state law. This office's opinions function does not extend to questions of federal law except to the extent those questions involve interpretation of state law. Your question appears to be strictly a matter of federal law and I must respectfully decline to answer it.

Assistant Attorney General J. M. Barker prepared this opinion, which I approve.

Sincerely,

DUSTIN MCDANIEL
Attorney General

DM/JMB:cyh