Under Act 595 of 2013, did Arkansas absentee voters who didn't include photo ID with their ballots have any way to fix the deficiency after election day?

Plain-English summary

George Hale, chairman of the Mississippi County Election Commission, asked AG Dustin McDaniel for an expedited opinion on absentee ballot ID requirements. The context was urgent: a constable race in the county had been decided by a five-vote margin, but there were about 146 absentee ballots without any photo identification attached. The county had to certify the election within ten calendar days. Hale wanted to know what the law required and whether the absentee voters had any way to remedy their missing IDs.

AG Dustin McDaniel answered both quickly. Two rules:

Rule 1: Absentee voters must submit photo ID with the ballot. Act 595 of 2013 amended A.C.A. § 7-5-201 to require that any voter using an 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 handful of exceptions applied to active military, merchant marines, and residents of long-term care facilities with a facility administrator's attestation.

Rule 2: No cure period for absentee voters. This is the part the AG focused on. Act 595 also created a cure procedure for in-person voters who showed up without ID: they could cast a provisional ballot and return by 12:00 p.m. on the Monday after the election with their ID, or with an affidavit attesting indigency or religious objection. That cure mechanism, codified at A.C.A. § 7-5-321, applied only to in-person voters. The legislature had not extended it to absentee voters.

The Arkansas State Board of Election Commissioners (ASBEC) had tried to fix the gap by emergency rule, creating a similar cure procedure for absentee voters. The Pulaski County Election Commission challenged the rules as exceeding ASBEC's regulatory authority and violating separation of powers. In Ark. St. Bd. of Election Comm'rs v. Pulaski County Election Comm'n, 2014 Ark. 236 (decided about a week before this opinion), the Arkansas Supreme Court agreed with the PCEC: ASBEC had created a procedure the legislature deliberately did not create. The court struck the rules.

So the legal posture as of May 27, 2014 was clear: absentee voters who failed to submit ID had no remedy. Their ballots could not be counted. The dissenting justice in ASBEC v. PCEC had bluntly summarized the result: "absentee ballots will only be cast and counted with proof of identification as required by Act 595, allowing for no curative period."

A footnote noted one narrow exception: first-time voters had a separate ID-verification mechanism under A.C.A. §§ 7-5-412(a)(2), -412(b), and -416(b)(1)(F)(iii). Op. 2014-012 explains that exception's history.

So for Mississippi County's situation, the 146 absentee ballots without ID could not be counted. The constable race outcome would have to be determined on the ballots that did satisfy the ID requirement.

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. Note: Act 595 of 2013 was held unconstitutional in 2014 in Martin v. Kohls, 2014 Ark. 427, and subsequent Arkansas voter-ID legislation has gone through multiple iterations. This opinion describes only the May 2014 legal landscape.

Common questions

Did Arkansas absentee voters in 2014 have to include photo ID with their ballot?
At the time of this opinion (May 2014), yes. Under Act 595 of 2013, codified at A.C.A. § 7-5-201(d)(1)(B), absentee voters had to submit one of several types of ID with their ballot: a current and valid photo ID, or a current utility bill, bank statement, government check, paycheck, or other government document showing the voter's name and address.

Did absentee voters in 2014 have a cure period if they forgot to include ID?
No, not under the May 2014 legal posture. The legislature created a cure period only for in-person voters in A.C.A. § 7-5-321. The Arkansas State Board of Election Commissioners had tried to create a cure period for absentee voters by emergency rule, but the Arkansas Supreme Court struck those rules in May 2014 as exceeding ASBEC's authority.

What was the in-person voter cure procedure?
Under A.C.A. § 7-5-321(c), an in-person voter without ID could cast a provisional ballot. The ballot would be counted if the voter (1) returned to the county board of election commissioners or the county clerk by 12:00 p.m. on the Monday following the election and (2) either provided proof of identity or signed an affidavit stating they couldn't because of indigency or religious objection.

Why did the Supreme Court strike the ASBEC absentee cure rules?
Separation of powers. The Arkansas Supreme Court held that the legislature had deliberately not created a cure procedure for absentee voters, and ASBEC had no authority to fill the gap by administrative rule. Creating new election procedures is a legislative function, not an executive one. The case is Ark. St. Bd. of Election Comm'rs v. Pulaski County Election Comm'n, 2014 Ark. 236.

Were any 2014 absentee voters exempt from the ID requirement?
A few groups. Active military, merchant marines, and their spouses/dependents absent on election day due to service were exempt under A.C.A. § 7-5-201(d)(1)(B)(i)-(iii). Residents of long-term care or residential care facilities were also exempt, but had to provide documentation from the facility administrator attesting to residency. First-time voters had separate ID-verification rules.

What happened to Act 595 of 2013 after this opinion?
The Arkansas Supreme Court struck Act 595 itself as unconstitutional in Martin v. Kohls, 2014 Ark. 427 (October 2014). The legislature has revisited voter ID multiple times since. For current Arkansas voter ID law, consult the current code rather than relying on this opinion.

Background and statutory framework

This opinion captures a narrow moment in Arkansas election law. The key statutes and cases:

• Act 595 of 2013 amended A.C.A. § 7-5-201 to require photo ID for both in-person and absentee voting. The statute is codified at A.C.A. § 7-5-201(d)(1)(B) for absentee voters and A.C.A. § 7-1-101(3)(A) for the definition of "proof of identity."
• A.C.A. § 7-5-321 (Supp. 2013) provided the in-person voter cure procedure: provisional ballot plus Monday-noon return with ID or sworn affidavit.
• A.C.A. § 7-5-305(a)(8)(B) and § 7-5-418(d)(2)(A) addressed the operational mechanics of provisional ballots for in-person voters.
• Ark. St. Bd. of Election Comm'rs v. Pulaski County Election Comm'n, 2014 Ark. 236 (May 2014) struck the ASBEC's emergency rules extending the cure procedure to absentee voters. The case turned on separation of powers: ASBEC had created a procedure "that did not exist" in legislation. The court held that ASBEC's rules "conflict with the election code, because the ASBEC created a procedure that did not exist, and the legislature did not intend for it to exist." The dissent (Baker, J.) noted the harsh practical result: "absentee ballots will only be cast and counted with proof of identification as required by Act 595, allowing for no curative period."
• Martin v. Kohls, 2014 Ark. 427 (October 2014) struck Act 595 itself as unconstitutional. This decision came after the 2014-057 opinion, so the opinion describes only the May 2014 legal landscape. A reader looking at this page in 2026 should consult current voter-ID law.

The 2014 opinion is procedurally interesting because it shows how the AG can be drawn into time-sensitive election questions. The constable race had to be certified within 10 days, so the AG expedited the analysis. The opinion's abbreviated discussion is a feature, not a bug: clarity over completeness when the clock is running.

The first-time voter exception is at A.C.A. §§ 7-5-412(a)(2), -412(b), and -416(b)(1)(F)(iii). Op. 2014-012 documents the history of this exception, which derives from the federal Help America Vote Act of 2002 (HAVA).

Citations

• A.C.A. § 7-5-201(d)(1)(B) (Supp. 2013) (absentee voter ID requirement, Act 595 of 2013)
• A.C.A. § 7-1-101(3)(A) (Supp. 2013) (definition of "proof of identity")
• A.C.A. § 7-5-305(a)(8)(B) (in-person provisional ballot)
• A.C.A. § 7-5-321 (Supp. 2013) (in-person cure procedure)
• A.C.A. § 7-5-321(c) (Supp. 2013) (cure deadline: Monday noon, ID or affidavit)
• A.C.A. § 7-5-418(d)(2)(A) (Supp. 2013) (operational mechanics)
• A.C.A. § 7-5-412(a)(2), -412(b) (Supp. 2013) (first-time voter ID rules)
• A.C.A. § 7-5-416(b)(1)(F)(iii) (Supp. 2013) (first-time voter ballot)
• Ark. St. Bd. of Election Comm'rs v. Pulaski County Election Comm'n, 2014 Ark. 236 (rules creating absentee cure procedure struck on separation-of-powers grounds)
• Act 595 of 2013 (voter ID act, since held unconstitutional)
• Op. Att'y Gen. 2014-012 (history of first-time voter ID exception)

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. 2014-057
May 27, 2014

The Honorable George Hale, Chairman
Mississippi County Election Commission
Post Office Box 104
Burdette, Arkansas 72321

Dear Mr. Hale:

You have requested my opinion concerning voter identification in connection with
absentee ballots. You state that "[t]he situation with voter ID required to be
submitted with absentee ballots is confusing," and you request my opinion "as to
what is actually required and if a voter has any recourse if they did not include any
ID with their absentee ballot."

As background for these questions, you report that you have a constable race that
was decided by a five-vote margin, and that there are approximately 146 absentee
ballots with no identification. You note further that the election must be certified
within ten calendar days of the election, so that "time is of the essence."

RESPONSE

Given your time concerns, I have expedited this opinion. As a consequence, the
ensuing opinion of necessity is a relatively abbreviated discussion of the law
pertinent to your questions.

In response to your particular questions: (1) Those who vote absentee must
submit the required identification when they cast their ballots; and (2) If the
identification is not submitted with the ballot, there is no recourse in terms of any
opportunity to cast a provisional ballot and return later with the proper
identification.

With regard to voter identification in connection with absentee ballots, Act 595 of
2013 amended the Arkansas Code section addressing voter qualification, A.C.A.
§ 7-5-201, 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...."

Although you have not specified the exact source of confusion regarding
identification for absentee voters, I suspect the source may be the procedure that
applies to those who vote in person either early or at the polls on election day. If
the person who votes in person fails to provide "proof of identity," a procedure
established by Act 595 of 2013 allows such a voter to cast a provisional ballot and
return later with the required identification. This procedure does not apply,
however, to the absentee voter. The Arkansas Supreme Court recently addressed
this issue in a case brought by the Pulaski County Election Commission ("PCEC")
to challenge certain emergency rules approved by the Arkansas State Board of
Election Commissioners ("ASBEC") that would have allowed absentee voters the
same post-election opportunity to provide the required identification. The
ASBEC argued that the rules were within its regulatory authority. The PCEC
countered that the rules violated constitutional separation of powers "because Act
595 did not provide for a cure period or procedure for absentee voters, only in-
person voters." The court framed the issue as follows:

At issue in the present case are certain rules promulgated by the
ASBEC that establish an entire procedure by which an absentee
voter, who fails to submit the identification or documentation with
his or her ballot as required under section 7-5-201(d)(1)(B), shall be
notified of the deficiency and can remedy the deficiency in order to
have his or her ballot counted. See 167 Ark. Gov't Reg. 64
(LexisNexis Apr. 2014); 167 Ark. Gov't Reg. 54 (LexisNexis Apr.
2014). The procedure established by the ASBEC for absentee voters
is similar to that established by the General Assembly in Ark. Code
Ann. § 7-5-321 (Supp. 2013), for in-person voters who fail to
present proof of identity. We must determine whether the ASBEC
lacked the authority to create a procedure that had not been provided
by the General Assembly so as to violate separation of powers.

The court held that the ASBEC's rules are unconstitutional:

In the instant case, it is undisputed that, while the General Assembly
provided in Ark. Code Ann. § 7-5-321 a method by which an in-
person voter could cure any failure to provide proof of identity, the
General Assembly did not provide a similar method for absentee
voters.... Where the General Assembly has so evidently not
provided a procedure for absentee voters similar to that provided for
in-person voters, it is clear to this court that the ASBEC's
emergency rules conflict with the election code, because the ASBEC
created a procedure that did not exist, and the legislature did not
intend for it to exist.... Had the General Assembly intended to
extend the cure provisions extended to in-person voters by Ark.
Code Ann. § 7-5-321 to absentee voters, it presumably would have
included the appropriate language. However well intended the
ASBEC's actions may have been, any change in the law should have
come from the legislature, the only branch of our government that
has been delegated the power to proclaim the law through statutory
enactments.

It is clear from this ruling that there is no curative period or procedure in
connection with absentee ballots cast without the required identification. In other
words, there is no procedure for treating the ballot in that case as provisional or
counting the ballot if identification is later produced.

In response to your specific questions, therefore, absentee voters must submit the
required identification when they cast their ballots; and there is no recourse in
terms of any opportunity to cast a provisional ballot and return later with the
proper identification. The so-called "cure period" for in-person voters does not
apply to those who vote absentee.

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

Sincerely,

DUSTIN McDANIEL
Attorney General

DM:EAW/cyh