After Arkansas Act 595 of 2013, what happens if an absentee voter doesn't include valid ID with the ballot?

Plain-English summary

Senator Jake Files relayed conflicting advice that the Sebastian County Election Commission had received from two state agencies about absentee ballots submitted without identification under Act 595 of 2013. The State Board of Election Commissioners said those ballots should not be counted at all (A.C.A. § 7-5-412). The Secretary of State's office said they should be treated as provisional, giving voters a chance to provide ID by noon the Monday after the election (A.C.A. § 7-5-321).

AG Dustin McDaniel resolved the conflict in favor of the State Board's reading: current Arkansas law does not allow an absentee voter to cast a provisional ballot if they failed to submit required identification with their absentee ballot. The full statutory analysis is set out in companion Opinion 2014-012, which addressed the same question in greater detail at the request of Pulaski County's election commission.

The core conclusion: the provisional-ballot cure procedure in A.C.A. § 7-5-321 (added by Act 595) refers to voters "voting in person" who fail to provide "proof of identity." Absentee voters are governed by A.C.A. § 7-5-412, which has separate rules and does not import the in-person cure procedure. The AG read the two statutes as deliberately distinct.

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. Arkansas's voter-ID regime has continued to evolve after Act 595 of 2013, including subsequent legislation and the original Act 595 itself was held unconstitutional in 2014 (Martin v. Kohls, 2014 Ark. 427).

Common questions

Why did two state agencies disagree?
A.C.A. § 7-5-412 governs absentee ballots and provides for ballots without ID not to be counted. A.C.A. § 7-5-321, added by Act 595 of 2013, provides a provisional-ballot cure for voters "voting in person" who lack ID. The Secretary of State's office read the cure as extending by implication to absentee voters; the State Board read it as confined to in-person voters by its plain language.

What did the AG decide?
That the cure procedure in § 7-5-321 applies only to in-person voters. Absentee voters who omit ID get no second chance under the statute.

Where is the complete analysis?
In companion Opinion No. 2014-012, which the AG decided the same day for the Pulaski County Board of Election Commissioners. That opinion sets out the full statutory and constitutional reasoning, including the equal-protection analysis.

Is treating absentee and in-person voters differently constitutional?
The AG in Opinion 2014-012 concluded the equal-protection clause was not implicated because the two groups are not similarly situated. Absentee voters have more advance opportunity to confirm their ID is included; in-person voters get the cure as a backstop because they cannot easily return after election day.

Background and statutory framework

Act 595 of 2013 imposed new voter-identification requirements in Arkansas elections, alongside a provisional-ballot mechanism letting in-person voters cure missing ID by submitting it to the county clerk by noon the Monday after the election. The Act amended provisions in chapter 5 of title 7, the Arkansas election code.

A.C.A. § 7-5-412 governs the handling of absentee ballots. A.C.A. § 7-5-321 governs the in-person ID-cure procedure for provisional ballots. The AG read the two as parallel but separate provisions, with no statutory bridge importing the cure from one into the other.

Note that the underlying Act 595 was held unconstitutional under the Arkansas Constitution by the Arkansas Supreme Court in October 2014 (Martin v. Kohls, 2014 Ark. 427), shortly after this opinion was issued. The opinion's interpretation of the statute was overtaken by that ruling on the broader question of the Act's validity, though the textual reading of how the cure procedure operates was not specifically addressed.

Citations

• A.C.A. § 7-5-321 (in-person voter ID and provisional cure)
• A.C.A. § 7-5-412 (absentee ballots)
• Act 595 of 2013 (voter identification requirements)
• Op. Att'y Gen. 2014-012 (full statutory and constitutional analysis)

Source

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

Original opinion text

STATE OF ARKANSAS

Tue ATTORNEY GENERAL
Dustin McDANIEL

Opinion No. 2014-018

February 13, 2014

The Honorable Jake Files
State Senator

300 Free Ferry Landing
Fort Smith, Arkansas 72903

Dear Senator Files:

This is in response to your request for my opinion “regarding the application of
Arkansas Code Section 7-5-321 and 7-5-412 as a ‘cure’ for absentee ballots sent in
without valid identification.” Attached to your request is a copy of a letter from
the Sebastian County Election Commission, dated February 7, 2014, stating that
the Commission had received the following conflicting advice from two state
agencies:

1. The State Board of Election Commissioners opines that absentee
   ballots sent in without valid identification should not be counted
   (Code Section 7-5-412).

2. The Secretary of State’s office joins A.C.A. § 7-5-412 (absentee
   ballots) to Code Section 7-5-321, which applies to election day
   voting, and opines absentee ballots sent in without valid
   identification should be classified as provisional.

RESPONSE

In my opinion, current Arkansas law does not allow an absentee voter to cast a
provisional ballot if they failed to submit the required identification when casting
their absentee ballot. The basis for this conclusion is fully set forth in Attorney
General Opinion 2014-012, a copy of which in enclosed for your convenience. I
will not here reproduce the analysis, except to note that the procedure for casting a

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

The Honorable Jake Files
State Senator

Opinion No. 2014-018
Page 2

provisional ballot with the opportunity to provide identification by 12:00 p.m. of
the Monday following the election applies to those voting in person who fail to
provide the required “proof of identity.”

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

Sincerely,

DUSTIN MCDANIEL
Attorney General
DM:EAW/cyh

Enclosure

STATE OF ARKANSAS

Tue ATTORNEY GENERAL
Dustin McDANIEL

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 WessIre * 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 | is “yes,” how should the election
   commission handle civilian overseas absentcc 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.

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.CLA, 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) (i) (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;
fc) Is issued by the United States, the State of Arkansas, or an accredited
postsecondary educational institution in the State of Arkansas; and
(d) \f 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”:

(i) Ifa 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 7-5-3217

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. *

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 yoting early who fail to provide proof of identity).

*A.CA. 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 S.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 absentce 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 (carly 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 10 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.

TA.CA, § 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)).

8 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 clection 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 “[c]ast 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 absentce voter; and I have

° A.C.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.”).

19 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
voling); 7-5-416(b)(1)(F)Gii) (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).

'' AC.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 Gencral 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 rcasoned 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 absentce voting, “even if
the challenge is brought after 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 tu 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. Phyler v. Doe, 457 U.S, 202, 216 (1982)."), Waller vy. Banks, 2013 Ark. 399, 8, 2013 WL
5603930, 3 (“... a viable equal-protection claim requires a showing that uppellant is similarly situation lo
those he claims are receiving favorable treatment. See AfcMilliams v. Pope Bd. of Equalization, 2012 Ark.
427, SW.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); Indiana Democratic Party
v. Rokita, 458 F, Supp. 2d 775 (S.D, Ind, 2006), affd. sub nom. Crawford y. Marion County Election Bd.,
472 F.3d 949 (7th Cir, 2007); aff'd. 553 U.S. 181 (2008).

'§ Santillanes, 546 F.3d at 1320.

"9 Hargett, 414 S.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 arc 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 Gencral Elisabeth A. Walker prepared the foregoing opinion,
which I hereby approve.

Sincerely, \

ISUSTIN MCDANIEL A,
Attorney General

DM:EA W/cyh