When does an Arkansas write-in candidate have to notify each county board of election commissioners?

Plain-English summary

Representative Kim Hammer asked the AG to identify the deadline for a write-in candidate in Arkansas to notify the county board of election commissioners. He noted that the political practices pledge, affidavit of eligibility, and notice of write-in candidacy must be filed no later than the last day of the party filing period, but said the separate notice to the county board is "unclear and not defined."

AG Dustin McDaniel agreed: under the current statute (as amended in 2009 and 2011), the deadline for notice to the county board is not entirely clear. The opinion called for legislative clarification to avoid disputes over candidate qualifications.

The statute (A.C.A. § 7-5-205) lists three preconditions for counting write-in votes:

1. The candidate notifies the county board of election commissioners of each county in which the candidate seeks election and files the notice with either the Secretary of State (for federal, state, or district office) or the county clerk (for county or township office).
2. The candidate files a political practices pledge and an affidavit of eligibility at the same time as the notice of write-in candidacy.
3. The notice of write-in candidacy, the political practices pledge, and the affidavit of eligibility are filed no later than the last day of the party filing period.

Subsection (3) clearly sets the party-filing-period deadline for the pledge, affidavit, and notice-of-write-in-candidacy filings. The "notice of write-in candidacy" in subsection (3) is also clearly the same notice required to be filed with the Secretary of State or county clerk under subsection (1)(A) and (B). So the party-filing-period deadline covers that filing.

The wrinkle is the separate notice to the county board under subsection (1). Two readings are possible:

• Reading 1: The notice to the county board and the notice filed with the Secretary of State (or county clerk) are the same document. Subsection (1) just says the candidate "notifies ... the county board" and "files the notice" with the other officers. So the party-filing-period deadline covers both, and the county board will have been notified by then.
• Reading 2: The statute distinguishes between notice to the county board and the filing with the Secretary of State or county clerk. The candidate "notifies ... the county board" (one act) and "files the notice" (another act) with the state-level officer. Subsection (3)'s deadline applies to filings, but not necessarily to the act of notifying the county board.

Looking at legislative history did not resolve the ambiguity. Before 2009, the deadline was clear: written notice had to be provided to both the county board and the Secretary of State or county clerk within a certain number of days of the election (varying from 30 to 90 days over time). The political practices pledge had to be filed "at the time of filing the notice to be a write-in candidate," and that "notice" plainly referred to both notices, with one shared deadline.

The 2009 amendment rewrote the statute substantially. The new language separated "notifies the county board" from "files the notice," and set the party-filing-period deadline only for the pledge, affidavit, and notice-of-write-in-candidacy filing. The AG found no evidence of legislative intent on whether the new deadline was meant to cover the county-board notice too.

The opinion's bottom line: while it stands to reason that the county board must be notified of a write-in candidacy so that the ballot can include write-in lines for that candidate, the deadline for that notice will remain uncertain until the legislature clarifies the law.

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. The opinion expressly invited legislative action to fix the ambiguity, and the General Assembly may have acted on that since 2014.

Common questions

What is the party filing period?
A.C.A. § 7-7-203(c)(1) defines the party filing period as "a one-week period ending at 12:00 noon on the first day in March and beginning at 12:00 noon one (1) week prior to the first day in March." It is the same window during which party candidates file for office.

Why does the county board need notice at all?
So the ballot can include the blank line where voters write the candidate's name. A.C.A. § 7-5-208(c)(2) provides that "the blank line shall not appear on the ballot with respect to those offices and candidates for positions in which no person has qualified as a write-in candidate by filing his or her notice of intention to be a write-in candidate within the time prescribed in § 7-5-205." Without timely notice to the county board, write-in votes will not be counted because there will be no place to cast them.

What is the safest practical approach for a write-in candidate?
Treat the last day of the party filing period as the absolute outside deadline for all required filings, including the county-board notice. That is the latest deadline anywhere in the statute, so meeting it satisfies any reasonable reading. Going earlier is fine and avoids any close call.

Why didn't the legislative history clarify the deadline?
The pre-2009 statute paired the political practices pledge with "the notice to be a write-in candidate," which was understood to refer to both the county-board notice and the filings with the Secretary of State or county clerk. The 2009 amendment substantially rewrote the statute, and the new structure separated the act of notifying the county board from the act of filing notice with the state-level officers. There is no clear legislative record explaining whether the drafters meant to change the deadline structure or just the phrasing.

Was this opinion ever cited in a challenge to a write-in candidate's qualifications?
The opinion does not address that. The AG only flagged the ambiguity and called for legislative clarification.

Background and statutory framework

A.C.A. § 7-5-205 governs the conditions for counting write-in votes. The current text requires three things: notice to each county board where the candidate seeks election; filing the notice with either the Secretary of State (federal, state, or district offices) or the county clerk (county or township offices); and filing a political practices pledge and affidavit of eligibility at the same time as the notice of write-in candidacy. Subsection (3) sets the party-filing-period deadline for the filings.

A.C.A. § 7-5-208(c)(2) implements the timely-notice requirement at the ballot level: no write-in line appears on the ballot for an office where no person has qualified as a write-in candidate by filing the notice of intention within the § 7-5-205 deadline.

A.C.A. § 7-5-610 reinforces that in elections allowing write-in candidacies, the ballot shall permit voters to write in names of qualified write-in candidates whose names are not on the ballot.

A.C.A. § 7-5-522 imposes a five-minute time limit per voter in the booth, which is part of why ballots cannot include write-in lines for candidates who have not qualified.

The legislative history of § 7-5-205 traces back to Acts 1969, No. 465 (original write-in notification requirement), with amendments in 1987, 2003, and 2007 adjusting the deadline window. Acts 1989, No. 912 added the Secretary of State and county clerk to the notice requirement (originally notice only went to the county board). Acts 2009, No. 1480, § 18 substantially rewrote the statute, setting the deadline at "no earlier than noon on the last day of the party filing period and not later than ninety (90) days before the election day." Acts 2011, No. 1185, § 5 simplified to "no later than the last day of the party filing period."

The AG relied on Ward v. Doss for the principle that legislative history is an appropriate guide when statutory text is uncertain or ambiguous. Here, however, even the history did not resolve the question.

Citations

• A.C.A. § 7-5-205 (Repl. 2011) (write-in candidate requirements)
• A.C.A. § 7-5-208(c)(2) (write-in lines on ballot)
• A.C.A. § 7-5-522 (five-minute voting booth limit)
• A.C.A. § 7-5-610 (ballot must permit write-in)
• A.C.A. § 7-6-102 (political practices pledge)
• A.C.A. § 7-7-203(c)(1) (party filing period definition)
• Ward v. Doss, 361 Ark. 153, 205 S.W.3d 767 (2005) (legislative history as interpretive guide)
• Acts 1969, No. 465; Acts 1987, No. 247; Acts 1989, No. 912; Acts 2003, No. 542; Acts 2007, No. 222; Acts 2009, No. 1480; Acts 2011, No. 1185 (statutory history)

Source

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

Official summary

Pursuant to provisions of A.C.A. 7-5-205, what is the deadline for a write-in candidate to notify the county board of election commissioners of his or her candidacy?

RESPONSE: In my opinion, the deadline for this notice is not entirely clear under current law. The uncertainty arises from the statute's amendment in 2009 and 2011. See opinion for discussion. While it stands to reason that the county board must be notified of a write-in candidacy so that the ballot can permit voters to write in the candidate's name (see 7-5-610 and 7-5-208(c)(2)), it is my opinion that the deadline for such notice will remain uncertain until clarification of the law is obtained.

Original opinion text

STATE OF ARKANSAS

THE ATTORNEY GENERAL
Dustin McDaniel

Opinion No. 2014-108

December 11, 2014

The Honorable Kim Hammer
State Representative
1411 Edgehill
Benton, Arkansas 72015-3128

Dear Representative Hammer:

You have requested my opinion on the following question concerning the statute that governs the counting of votes for write-in candidates:

In light of A.C.A. § 7-5-205, what is the deadline for write-in candidates to notify each county board of election commissioners in counties [where] they seek election?

In presenting this question, you state: "It is my understanding the law is clear that the ... notice of write-in candidacy, the political practices pledge, and the affidavit of eligibility are filed no later than the last day of the party filing period." But you add that you "feel the deadline to notify each county board of election commissioners is unclear and not defined."

RESPONSE

I agree that the deadline under A.C.A. § 7-5-205 for a write-in candidate to notify the county board of election commissioners of his or her candidacy is not entirely clear under current law. As explained further below, the uncertainty arises from the statute's amendment in 2009 and 2011. Legislative clarification is strongly warranted, in my opinion, to resolve any uncertainty that may arise regarding candidates' qualifications.

It will be helpful to set out the relevant text of section 7-5-205 before further explaining this response. Subsections 1 through 3 provide as follows:

No votes for write-in candidates shall be counted or tabulated unless:

(1) The candidate notifies in writing the county board of election commissioners of each county in which the candidate seeks election and files the notice with either:

(A) The Secretary of State, if a candidate for United States Senate, United States House of Representatives, or any state or district office; or

(B) The county clerk if a candidate for a county or township office;

(2) The candidate files with the county clerk or the Secretary of State, as required, a political practices pledge and an affidavit of eligibility for the office at the same time the candidate files his or her notice of write-in candidacy;

(3) The notice of write-in candidacy, the political practices pledge, and the affidavit of eligibility are filed no later than the last day of the party filing period.

The statute thus establishes three preconditions for counting votes for a write-in candidate. The candidate must 1) submit written notice to the county board of election commissioners (hereinafter "county board"); 2) file the notice with either the Secretary of State or the county clerk (depending upon the office involved); and 3) file a political practices pledge and affidavit of eligibility with either the Secretary of State or the county clerk, as the case may be. The issue for resolution is the applicable deadline in connection with each precondition. Subsection (3) clearly requires the filing of the political practices pledge and affidavit of eligibility by the last day of the party filing period. It also seems clear that the "notice of write-in candidacy" under subsection (2) is the notice that must be filed with either the Secretary of State or the county clerk pursuant to subsection (1)(A) and (B). Accordingly, the party filing period is also the deadline for that notice.

The remaining question is whether subsection 3's deadline for the "notice of write-in candidacy" (i.e., the party filing period) encompasses the written notice that must be submitted to the county board. The answer to that question is arguably less clear, in my opinion.

On the one hand, subsection (1) seems to contemplate that the notice to the county board and the notice to the Secretary of State (or county clerk, as the case may be) will be one and the same. It would seem to follow that the county board will already have been notified before the filing is made with either the Secretary of State or the county clerk, i.e., before the party filing period.

On the other hand, the statute arguably distinguishes between the notice to the county board and the filing of the notice with the Secretary of State or county clerk. Under subsection (1), the candidate "notifies ... the county board" and "files the notice" with the other officers. Subsections (2) and (3) then require additional filings, along with the filed notice, causing one to question whether subsection (3)'s deadline applies to the county board notice under subsection (1), given the absence of any reference to the filing of the latter notice.

In reviewing the legislative history as a means of resolving this uncertainty, I have discovered that the deadline for notifying the county board was clear up until 2009. The law has historically required a write-in candidate to provide written notice to the county board and the Secretary of State or county clerk within a certain number of days of the election, with the deadline ranging from thirty days to ninety days. A separate statute required the filing of a political practices pledge "at the time of filing the notice to be a write-in candidate." This "notice" plainly referred to the notice to be provided to the county board and the Secretary of State or county clerk; and the same deadline plainly applied to both notices.

In 2009, the statute was amended to read substantially as set out above. In my opinion, some uncertainty arises from the change in terminology regarding the notice to the county board and the filing of the notice with the Secretary of State or county clerk. I have found no evidence of legislative intent sufficient to resolve the uncertainty. Accordingly, while it stands to reason that the county board must be notified of a write-in candidacy so that the ballot can permit voters to write in the candidate's name, it is my opinion that the deadline for such notice will remain uncertain until clarification of the law is obtained.

Deputy Attorney General Elisabeth A. Walker prepared the foregoing opinion, which I hereby approve.

Sincerely,

DUSTIN McDANIEL
Attorney General

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