Can an Arkansas absentee voter who forgot to include ID with their ballot fix it after election day?

Plain-English summary

Leonard Boyle, chairman of the Pulaski County Board of Election Commissioners, asked for an expedited AG opinion on what to do with absentee ballots that arrived without the ID documentation Act 595 of 2013 required. Two state agencies had given conflicting advice (see also Op. Att'y Gen. 2014-018). This opinion settles the matter.

AG Dustin McDaniel's bottom line:

1. No cure for absentee voters. A.C.A. § 7-5-321's provisional-ballot procedure applies by its plain language to voters "voting in person." The cure (submitting ID to the county clerk by noon the Monday after the election) does not extend to absentee voters. Their ballots are governed by A.C.A. § 7-5-412 and are simply not counted if ID is missing.

2. Questions 2-6 are moot. Because absentee voters cannot cure, the operational questions about how to notify them, what kind of ID they must show, and how to handle late-arriving overseas civilian ballots all become moot.

3. The disparate treatment is constitutional. The AG predicted the Arkansas courts would conclude the equal-protection clause is not implicated by the differential treatment of absentee and in-person voters because the two groups are not "similarly situated":

   • Absentee voters prepare and submit their ballots in advance, with full opportunity to include the required ID documentation, and they cannot easily be brought back to fix mistakes after election day without disrupting the close of the election.
   • In-person voters show up at the polls, often without advance knowledge that their ID will not be accepted, and may need a cure path because returning that day is impractical once polls close.

The legislature could rationally decide to provide a cure for one group and not the other. Different procedures for differently situated groups do not deny equal protection under the rational-basis review the AG anticipated would apply.

The opinion provides the underlying analysis that companion Opinion 2014-018 (decided three days later for Senator Files) cross-references.

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 Arkansas Supreme Court held Act 595 of 2013 unconstitutional in Martin v. Kohls, 2014 Ark. 427 (October 2014), shortly after this opinion. Arkansas voters approved a new voter-ID requirement via Issue 2 in 2018.

Common questions

Why couldn't the AG just extend the cure procedure to absentee voters as a matter of fairness?
The AG follows the text. Section 7-5-321 explicitly addresses voters "voting in person." Reading the cure into the absentee statute would require ignoring the statutory line. The AG declines to make that move and treats the textual separation as deliberate.

What is the rational basis for treating absentee and in-person voters differently?
Different transaction patterns. Absentee voters have advance time and choose when to mail; in-person voters arrive on election day and have limited time. The legislature can decide to give the in-person group a backstop without committing to the same accommodation for the absentee group.

What about overseas civilian absentee ballots postmarked by election day?
The AG declined to reach that question, treating it as moot once the answer to Question 1 was "no." Civilian overseas voters were generally subject to the same absentee-ballot rules as other absentee voters, which meant no cure for missing ID. Military and overseas absentee voting under UOCAVA may have had distinct federal protections not addressed here.

Is the AG's view binding on county election commissioners?
AG opinions are persuasive but not binding. Practically, commissioners often follow them to avoid second-guessing.

Did this opinion survive Martin v. Kohls?
The Arkansas Supreme Court's holding that Act 595 was unconstitutional under the Arkansas Constitution superseded the practical effect of this opinion. The underlying statutory interpretation of how the cure procedure operated under the statute as written remained accurate; the statute itself fell.

Background and statutory framework

Act 595 of 2013 was the first iteration of Arkansas's modern voter-identification regime. It added new ID requirements to in-person voting and absentee ballot submission, and it created the provisional-ballot cure mechanism in A.C.A. § 7-5-321 for voters voting in person who could not present ID.

A.C.A. § 7-5-412 governs absentee ballots, including handling and acceptance criteria. The statute was amended by Act 595 to add ID-submission requirements alongside the ballot. The absentee-ballot statute did not import the cure procedure from § 7-5-321.

A.C.A. § 7-1-101 contains definitions for the election code, including the standard for "proof of identity."

The equal-protection analysis the AG conducted was anticipatory: a future court asked to strike down the differential treatment would, in the AG's prediction, apply rational-basis review and find a sufficient basis for treating absentee and in-person voters differently.

Citations

• A.C.A. § 7-5-321 (in-person provisional cure)
• A.C.A. § 7-5-412 (absentee ballots)
• A.C.A. § 7-1-101 (definitions, "proof of identity")
• Act 595 of 2013 (voter ID requirements)
• State Board of Election Commissioners Rules 806 and 807 (referenced re: clerk and commission compliance)

Source

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

Original opinion text

STATE OF ARKANSAS

THE ATTORNEY GENERAL
DusTIN McCDANIEL

Opinion No. 2014-012

February 10, 2014

Leonard A. Boyle, Sr., Chairman

Pulaski County Board of Election Commissioners
501 West Markham, Suite A

Little Rock, Arkansas 72201

Dear Mr. Boyle:

I am writing in response to your request for my expedited opinion on the following
questions concerning Act 595 of 2013, which amended Arkansas’s election laws
to establish new identification requirements for voters:

1. Pursuant to Act 595 of 2013, should an absentee voter that is
   not exempt from the identification requirements and fails to
   “submit with the ballot a copy of a current and valid photo
   identification or a copy of a current utility bill, bank
   statement, government check, paycheck, or other government
   document that shows the name and address of the voter” have
   his or her ballot considered a provisional ballot and be
   allowed the opportunity to provide identification by 12:00
   p.m. of the Monday following the election?

2. If the answer to Question 1 is “yes,” how is the voter to be
   notified of the need to provide identification? (According to
   Ark. Code Ann. § 7-5-416, processing of absentee ballots
   may not begin before 8:30 a.m. on election day; therefore,
   depending on the number of absentee ballots processing may
   not be completed in time to mail notification that same day.)

3. If the answer to Question I is “yes,” will the absentee voter
   be required to present “proof of identity” as defined in Ark.

323 CENTER STREET, SUITE 200 ¢ Litre Rock, ARKANSAS 72201
TELEPHONE (501) 682-2007 » Fax (501) 682-8084
INTERNET WEBSITE * http://www.ag.state.ar.us/

Leonard A. Boyle, Sr., Chairman

Pulaski County Board of Election Commissioners
Opinion No, 2014-012

Page 2

Code Ann. § 7-1-101 rather than “a copy of a current utility
bill, bank statement, government check, paycheck, or other
government document that shows the name and address of the
voter?”

4. If the answer to Question | is “yes,” must the identification
   be provided in person as required by Ark. Code Ann. § 7-5-
   321? Many people meeting the requirements to vote absentee
   (i.e., unavoidably absent from his or her voting place on the
   day of the election or unable to attend the polls because of
   illness or physical disability) would likely have the same
   difficulty appearing in person at the County Clerk’s office or
   an Election Commission meeting within the three and %
   business days between election day and the following
   Monday at noon.

5. If the answer to Question 4 is “no,” how will the County
   Clerk and Election Commission comply with Rules 806 and
   807 promulgated by the State Board of Election
   Commissioners?

6. If the answer to Question 1 is “yes,” how should the election
   commission handle civilian overseas absentee ballots that are
   postmarked by election day but arrive after 12 p.m. on the
   Monday following the election (see Ark. Code Ann. § 7-5-
   411) and do not contain the required identification
   documentation?

7. Would treating absentee voters differently from “in person”
   voters by denying them the right to submit the identification
   documentation at a later date create any problem under either
   the Arkansas or U.S. Constitution?

RESPONSE

In my opinion, the answer to your first question is “no,” rendering moot Questions
2 through 6. The answer to your final question is also “no,” in my opinion.
y

Leonard A. Boyle, Sr., Chairman

Pulaski County Board of Election Commissioners
Opinion No. 2014-012

Page 3

Question 1 - Pursuant to Act 595 of 2013, should an absentee voter that is not
exempt from the identification requirements and fails to “submit with the ballot
a copy of a current and valid photo identification or a copy of a current utility
bill, bank statement, government check, paycheck, or other government
document that shows the name and address of the voter” have his or her ballot
considered a provisional ballot and be allowed the opportunity to provide
identification by 12:00 p.m. of the Monday following the election?

As you noted in submitting your request for my opinion, Act 595 of 2013
amended A.C.A. 7-5-201 to require “proof of identity to the election official when
appearing to vote in person either early or at the polls on election day[.]”' The act
further amended this Code section to provide that persons voting by absentee
ballot shall “submit with the ballot a copy of a current and valid photo
identification or a copy of a current utility bill, bank statement, government check,
paycheck, or other government document that shows the name and address of the
voter....”

' A.C.A, 7-5-201(d)(1)(A) (Supp. 2013). See also A.C.A, 7-5-305(a)(8)(A)(i). There is an exception for
residents of long-term care and residential care facilities. A.C.A. 7-5-201(d)(1) (Supp. 2013). See also
A.C.A. 7-5-305(a)(8)(A)Gi) (Supp. 2013).

Act 595 defined “proof of identity” as follows:

(i) A voter identification card under § 7-5-322; or
(ii) A document or identification card that:
(a) Shows the name of the person to whom the document was issued;
(b) Shows a photograph of the person to whom the document was issued;
(c) Is issued by the United States, the State of Arkansas, or an accredited
postsecondary educational institution in the State of Arkansas; and
(a) If displaying an expiration date:
(1) {s not expired; or
(2) Expired no more than four (4) years before the date of the election in which
the person seeks to vote.

A.C.A. 7-1-101(30)(A) (Supp. 2013). The Secretary of State is required pursuant to A.C.A, 7-5-
322(a)(1)(A) (Supp. 2013) to “provide by rule for the issuance of a voter identification card that may be
requested by an individual to be used as proof of identity when appearing to vote in person,”

? A.C.A. 7-5-201(d)(1)(B). The absentee voter identification requirement does not apply to active members
of the uniformed services, members of the merchant marines, and both members’ spouses and dependents,
who are absent on election day due to the members’ service. /d. at (d)(1)(B)(i) — (iii). The exemption also
extends to residents of long-term care and resident care facilities, although they must provide
documentation from the facility’s administrator attesting that they are residents. /d. at (d)(2).

Leonard A. Boyle, Sr., Chairman

Pulaski County Board of Election Commissioners
Opinion No. 2014-012

Page 4

Additionally, and most significant for purposes of your question, Act 595
established a procedure for counting the ballot of a person who fails to provide
“proof of identity”:

(1) If a voter is unable to provide this proof of identity, the poll
worker shall:

(a) Indicate on the precinct voter registration list that the
voter did not provide proof of identity; and

(6) Permit the voter to cast a provisional ballot.

(ii) | When a voter is unable to provide proof of identity, the voter
and the election official shall follow the procedure under 7-5-321.°

Pursuant to A.C.A. 7-5-321, the provisional ballot cast by the voter who did not
provide proof of identity must be counted if:

(1) The voter returns to the county board of election commissioners
or the county clerk by 12:00 p.m. on the Monday following the
election and:

(A) Provides proof of identity; or

(B) Provides an affidavit stating that the voter cannot provide
proof of identity because the voter:

(i) Is indigent; or
(ii) Has a religious objection to being photographed; and

(2) The voter has not been challenged or required to vote a
provisional ballot for any other reason. 4

A.C.A. 7-5-305(a)(8)(B). See also A.C.A. 7-5-418(d)(2)(A) (Supp. 2013) (applying same procedure to
those voting early who fail to provide proof of identity).

*A.C.A. 7-5-321(c) (Supp. 2013).

Leonard A, Boyle, Sr., Chairman

Pulaski County Board of Election Commissioners
Opinion No. 2014-012

Page 5

In considering this statutory scheme, we are guided by well-established principles
of statutory interpretation:

The first rule in considering the meaning and effect of a statute is to
construe it just as it reads, giving the words their ordinary and
usually accepted meaning in common language. Weiss v. McFadden,
353 Ark. 868, 120 S.W.3d 545 (2003). We construe the statute so
that no word is left void, superfluous, or insignificant; and meaning
and effect are given to every word in the statute if possible. Ozark
Gas Pipeline Corp. v. Arkansas Pub, Serv. Comm'n, 342 Ark. 591,
29 §.W.3d 730 (2000). When the language of the statute is plain and
unambiguous, there is no need to resort to rules of statutory
construction. Weiss v. McFadden, supra. When the meaning is not
clear, we look to the language of the statute, the subject matter, the
object to be accomplished, the purpose to be served, the remedy
provided, the legislative history, and other appropriate means that
_ shed light on the subject. /d.’

The application of these principles leads me to conclude that with the exception of
certain first-time voters,” the legislature did not intend to allow an absentee voter
to cast a provisional ballot if they failed to submit the required identification when
casting their absentee ballot. It is clear on the face of A.C.A. §§ 7-5-305 and 7-5-
418 that the procedure for casting a provisional ballot applies to those who must
provide “proof of identity” — a requirement that applies to those voting in person
either early or at the polls on election day.’ When “proof of identity” is not
provided, sections 7-5-305 (in person at the polls) and 7-5-418 (early voting)
direct the election official to follow A.C.A. § 7-5-321, which sets out the
procedure envisioned by your question — voting a provisional ballot with the
opportunity to provide identification by 12:00 p.m. of the Monday following the
election. This latter procedure applies to the voter who is “listed on the precinct
voter registration list but fails to provide proof of identity....”* Again, “proof of
identity” is only required of those voting in person.

MacSteel v. Arkansas Oklahoma Gas Corp., 363 Ark. 22, 30, 210 S.W.3d 878 (2005).

° First-time voters are discussed below.

TAC.A, § 7-5-201(d)(1)(A) (“Except as provided in subdivision (d)(2) and subsection (e) of this section,
any person desiring to vote in this state shall ... [pJresent proof of identity to the election official when

appearing to vote in person either early or at the polls on election day[.] (Emphasis added)).

® A.C.A. § 7-5-321(a) (emphasis added),

Leonard A. Boyle, Sr., Chairman

Pulaski County Board of Election Commissioners
Opinion No. 2014-012

Page 6

The statutory scheme is thus quite straightforward and unambiguous. According
to my review, there is no comparable procedure for absentee voters who fail to
submit the requisite identification with their ballots. I note that several statutes
provide for provisional balloting, including one for those who receive an absentee
ballot but then elect to vote in person:

Any person who receives an absentee ballot according to the
precinct voter registration list but who elects to vote by early voting
or to vote at his or her polling site on election day shall be permitted
to cast a provisional ballot.”

First-time voters who register to vote by mail without providing the necessary
identification may also cast a provisional ballot when voting absentee.’°

With the exception of the first-time voter provisions, none of the provisional
balloting statutes can be read to encompass the person who votes absentee and
does not provide the identification required by A.C.A. §7-5-201(d)(1)(B) (“a copy
of a current and valid photo identification or a copy of a current utility bill, bank
statement, government check, paycheck, or other government document that
shows the name and address of the voter.”). I note, additionally, that a
“provisional ballot” is one that is “[clast by special procedures to record a vote
when there is some question concerning a voter’s eligibility....”'' These
procedures include notice by the poll worker that the individual may vote a
provisional ballot, and written information from the poll worker instructing the
voter on how to determine whether their provisional ballot will be counted.'” The
latter statutory provisions plainly do not extend to the absentee voter; and I have

° AC.A. § 7-5-201(f). See also A.C.A. § 7-5-305(a)(11) (“Before a person is permitted to vote, the poll
worker shall ... [pJermit the person to cast a provisional ballot if the person received an absentee ballot
according to the precinct voter registration list.”).

'° A.C.A. § 7-5-305(a)(8)(B)(iii) (in-person voting); A.C.A. § 7-5-412(a)(2) and (b) (Supp. 2013) (absentee
voting); 7-5-416(b)(1)(F(iii) (Supp. 2013) (counting of absentee ballots). The provisions applicable to
first-time voters pre-date the 2013 voter identification legislation, and were presumably enacted in light of
the Help America Vote Act of 2002 (“HAVA”), which established certain requirements with respect to
first-time voters, 42 U.S.C. §§ 15482(a), 15484(b)(1)-(3).

'' A.C.A. § 7-1-101(31)(A) (Supp. 2013) (emphasis added).

' A.C.A. § 7-5-306(a)(1) and (7) (Repl. 2011).

Leonard A. Boyle, Sr., Chairman

Pulaski County Board of Election Commissioners
Opinion No. 2014-012

Page 7

found no language elsewhere establishing any similar procedure applicable to the
absentee voter.

Considering the plain language of the statutes, therefore, I cannot say that the
legislature intended for the absentee voter to cast a provisional vote and then
return later with identification. I am constrained, in the issuance of legal opinions,
as a court would be, to interpreting the plain language used by the legislative
branch, and giving effect to that language absent an ambiguity. In my opinion, a
court faced with the question will not read such a procedure into the statutory
scheme as regards absentee voters.' It is well established that unless a different
legislative intent is indicated, a court will not resort to a strained construction for
the purpose of restricting or expanding the meaning of a statute.' I believe it
would require a strained construction to conclude that the provisional ballot
procedure applicable to those who vote in person and do not provide “proof of
identity” also applies to those who vote absentee. Further bolstering this
conclusion is the court’s adherence to the view that “there must be strict
compliance with statutory provisions regarding the application for and casting of
absentee ballots....”!°

In sum, therefore, I must conclude that the answer to your question is “no,” an
absentee voter who is not exempt from the identification requirements and fails to
submit identification as required by A.C.A. § 7-5-201(d)(1)(B) should not have his
or her ballot considered a provisional ballot and be allowed the opportunity to
provide identification by 12:00 p.m. of the Monday following the election.

Questions 2 through 6 are moot in light of this response.
Question 7 - Would treating absentee voters differently from “in person” voters
by denying them the right to submit the identification documentation at a later

date create any problem under either the Arkansas or U.S. Constitution?

In constitutional terms, this concern about different treatment implicates the
constitutional guarantee of “equal protection.” The equal protection doctrine

'3 See generally MacSteel, 363 Ark. at 30 (“This court will not read into a statute a provision that simply
was not included by the General Assembly.” (Citations omitted)).

'* Thompson v. Younts, 282 Ark. 524, 669 S.W.2d 471 (1984).

'’ Womack v. Foster, 340 Ark. 124, 153, 8 S.W.3d 854 (2000) (citations omitted).

Leonard A. Boyle, Sr., Chairman

Pulaski County Board of Election Commissioners
Opinion No, 2014-012

Page 8

arises out of both the Fourteenth Amendment to the United States Constitution and
Article 2, sections 2 and 3 of the Arkansas Constitution. The doctrine prohibits
certain types of classifications that result in the disparate treatment of those who
are “similarly situated.’”°

Although there is no reported Arkansas decision on point, other courts that have
faced the question have held that absentee and in-person voters are not similarly
situated for purposes of equal protection analysis.'’ The courts have reasoned that
absentee voting and in-person voting are “fundamentally” or “inherently”
different:

Absentee voting is a fundamentally different process from in-person
voting, and is governed by procedures entirely distinct from in-
person voting procedures. See Ind. Democratic Party v. Rokita, 458
F. Supp.2d 775, 830-31 (S.D. Ind. 2006) (“absentee voting is an
inherently different procedure from in-person voting”)....'°

The Tennessee Supreme Court’s reasoning was based in part upon the observation
that “absentee voting is a ‘special privilege’ and ‘a departure from the general rule
governing the method of exercising the right to vote’ that ‘requires a stricter
adherence to the legislative conditions imposed upon its exercise.’”'? Our court
has also required strict compliance with laws governing absentee voting, “even if
the challenge is brought aftcr the election has occurred.”*” Although not
determinative of the issue at hand, I believe this suggests that our court would also

'© Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 439 (1985). (“The Equal Protection Clause of
the Fourteenth Amendment commands that no State shall ‘deny to any person within its jurisdiction the
equal protection of the laws,’ which is essentially a direction that all persons similarly situated should be
treated alike. Plyler v. Doe, 457 U.S. 202, 216 (1982).”); Waller v. Banks, 2013 Ark. 399, 8, 2013 WL
5603930, 3 (“... a viable equal-protection claim requires a showing that appellant is similarly situation to
those he claims are receiving favorable treatment. See McWilliams v. Pope Bd. of Equalization, 2012 Ark.
427, — S.W.3d___.”).

'" City of Memphis v. Hargett, 414 S.W.3d 88, 110 (Tenn. 2013) (unpublished); The American Civil
Liberties Union of New Mexico v. Santillanes, 546 F.3d 1313 (10th Cir. 2008); /ndiana Democratic Party
v, Rokita, 458 F. Supp. 2d 775 (S.D, Ind. 2006), aff'd. sub nom. Crawford v. Marion County Election Bd.,
472 F.3d 949 (7th Cir. 2007); aff'd. 553 U.S. 181 (2008).

'8 Santillanes, 546 F.3d at 1320,

" Hargett, 414 §.W.3d at 110 (quoting Hilliard v. Park, 370 S.W.2d 829, 833 (Tenn, 1963)).

°° Womack, 340 Ark. at 153.

Leonard A. Boyle, Sr., Chairman

Pulaski County Board of Election Commissioners
Opinion No. 2014-012

Page 9

recognize that there are essential differences between absentee and in-person
voters.

In contrast to these decisions, my research has yielded no case in support of the
contention that a state may not impose different requirements on absentee and in-
person voters. On the basis of the above authorities, and the absence of any
authority to the contrary, I anticipate that our court would similarly hold that the
equal-protection clause is not implicated by the different treatment of absentee and
in-person voters because the two are not similarly situated. Accordingly, the
answer to your question is “no,” in my opinion.

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

Sincerely, -
WZ4
Dostin McDANIEL we

Attorney General

DM:EAW/cyh