Can an Arkansas county board of election commissioners close polling sites and reassign voters to neighboring sites by majority vote, or does it require unanimity?
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This page answers the general question as of 2014. Ezel answers yours: what it means for your facts, under current Arkansas law, with citations.
Plain-English summary
Daniel Shue, Prosecuting Attorney of the Twelfth Judicial District, asked the AG whether the Sebastian County Board of Election Commissioners (SCBEC) had followed the law when it closed and consolidated polling sites on a 2-to-1 vote at its February 2014 meeting. The consolidation took effect for the May 2014 primary.
A.C.A. § 7-5-101(a)(2) provides that "designation of polling sites shall be by a unanimous vote of the members ... present." A separate part of the same code section, § 7-5-101(d), addresses "changes" in polling sites: previously-used sites remain unless the board orders otherwise; sites cannot be changed within 30 days of an election absent emergency; notice rules apply. The "changes" provisions do not state a voting threshold.
The SCBEC's split vote rested on the theory that closing some sites and assigning their voters to existing sites elsewhere was a "change," not a "designation," and that under the general 2-of-3-concurring-votes rule in A.C.A. § 7-4-105(a), majority approval was sufficient.
AG Dustin McDaniel rejected that reading. Any alteration in a precinct's preexisting polling site involves, in his view, a "designation" of a new site for that precinct, and the unanimity rule therefore applies. Yes, the alteration is also a "change," but the "changes" provisions don't say that changes may be made by majority vote; they simply set defaults, last-minute timing limits, and notice requirements. The "changes" subsection is procedural; it does not relax the substantive designation requirement.
That conclusion would invalidate the SCBEC's February motion if challenged before an election. The AG flagged the established Arkansas Supreme Court rule that election laws are "mandatory if enforcement is sought before an election but merely directory, and failure to observe them is not cause to invalidate the election, if enforcement is sought after the election" (Alexander v. Davis). The rule has been applied repeatedly to polling-place irregularities: late opening (Henard v. St. Francis Election Committee), early closing (Rogers v. Mason), only one polling site provided when two were required (Luther v. Gower), and alleged failure to properly designate sites (Christenson v. Felton). The AG saw no reason the rule wouldn't apply to the SCBEC action.
Practical upshot: the May 2014 primary results would not be invalidated, because any post-election challenge would be barred by the directory rule. But going forward, the SCBEC's consolidation could be challenged before a future election, and if challenged the AG's reasoning would require revisiting the matter and obtaining unanimous approval.
A companion opinion to two state legislators (2014-085) referred back to this opinion for the same analysis.
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.
Common questions
What's the unanimity rule in Arkansas polling site decisions at the time of this opinion?
A.C.A. § 7-5-101(a)(2) requires that "designation of polling sites shall be by a unanimous vote of the members ... present." On a three-member county election board with all three present, that means a 3-0 vote; a 2-to-1 vote is not adoption.
What's the difference between a "designation" and a "change" in this statute?
The AG treats every alteration of a precinct's preexisting polling site as a "designation" of a new site for that precinct. The opinion describes "changes" provisions as procedural overlays (default sites, timing limits on last-minute changes, notice rules), not as substantive rules that lower the voting threshold for whether the site changes at all.
What about A.C.A. § 7-4-105(a)'s "concurring votes of any two" rule?
That rule kicks in "unless otherwise provided by law." The AG reads § 7-5-101(a)(2)'s unanimity requirement as a more specific "otherwise provided by law" rule that controls over the general majority-vote default.
If the vote was unlawful, why did the May 2014 primary stand?
Because Arkansas Supreme Court precedent treats election laws as mandatory before an election and merely directory after. Once the election happens, even procedurally defective polling-site decisions usually cannot invalidate the results. Voters who wanted the consolidation undone had to act before the next election.
What should the SCBEC have done after this opinion?
Either obtain a unanimous vote to ratify the consolidation prospectively, or revert to the prior polling-site arrangement. The opinion is advisory, not self-executing; absent litigation or voluntary corrective action, the unanimity rule's enforcement depends on a pre-election challenge.
Why does the unanimity rule exist at all?
Polling site decisions can affect voting access, especially for elderly, disabled, or transportation-limited voters. Requiring unanimity from a three-member partisan-balanced board forces consensus across the political spectrum before voters' polling locations change. The rule is a structural check on partisan manipulation of access.
Background and statutory framework
A.C.A. § 7-4-102(a)(2) establishes the three-member county board of election commissioners.
A.C.A. § 7-4-105(a) is the general voting rule for the county boards: "concurring votes of any two (2) ... shall decide questions before them unless otherwise provided by law."
A.C.A. § 7-5-101(a)(2) carries the polling-site unanimity rule: "designation of polling sites shall be by a unanimous vote of the members ... present" (with one exception not relevant here).
A.C.A. § 7-5-101(d) carries the procedural overlays on changes: default to prior sites, no changes within 30 days of an election absent emergency, and notice obligations on the county clerk.
The mandatory-versus-directory doctrine for election laws goes back through Alexander v. Davis, Henard v. St. Francis Election Committee, Rogers v. Mason, Luther v. Gower, and Christenson v. Felton. The doctrine bars after-the-fact invalidation of elections for most procedural violations, but does not preclude pre-election challenges to the violations themselves.
Citations
- A.C.A. § 7-4-102(a)(2) (Repl. 2011) (three-member county board)
- A.C.A. § 7-4-105(a) (Repl. 2011) (general 2-vote rule, "unless otherwise provided by law")
- A.C.A. § 7-5-101(a)(2) (Supp. 2013) (polling-site unanimity)
- A.C.A. § 7-5-101(d) (procedural rules for changes)
- Alexander v. Davis, 346 Ark. 310, 58 S.W.3d 330 (2001) (mandatory vs. directory rule)
- Henard v. St. Francis Election Committee, 301 Ark. 459, 784 S.W.2d 598 (1990) (polls opened late)
- Rogers v. Mason, 246 Ark. 1, 436 S.W.2d 827 (1969) (polls closed early)
- Luther v. Gower, 233 Ark. 496, 345 S.W.2d 608 (1961) (only one polling site)
- Christenson v. Felton, 226 Ark. 985, 295 S.W.2d 361 (1956) (alleged failure to properly designate polling sites)
Source
Original opinion text
Opinion No. 2014-068
July 25, 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 question whether the Sebastian County Board of Election Commissioners (the "SCBEC") followed the law, with respect to both the May 2014 primary and future elections, when it closed and consolidated some polling sites by majority but not unanimous vote.
At its February 2014 meeting, the three-member SCBEC considered a motion "to close some polling sites and consolidate precincts with polling sites in close proximity to one another." Two members voted for the motion, and one voted against. The motion was deemed passed and was implemented for the May primary.
With an exception not relevant here, "designation of polling sites shall be by a unanimous vote of the members ... present."
Another part of the same code section addresses "changes" in polling sites.
It is submitted that the motion made "changes" rather than "designations" and that a majority vote was sufficient because the "changes" provisions do not state that unanimity is required.
RESPONSE
In my opinion, the motion included "designations," required unanimity, so was not lawfully adopted. Any alteration in a precinct's preexisting polling site involves, in my view, the "designation" of a new site for that precinct, and the unanimity rule therefore applies.
Admittedly such an alteration also amounts to a "change" in the precinct's polling site. But the "changes" part of the statute does not say, or in my view imply, that the changes it describes may be made by majority vote. It merely (i) requires that preexisting polling sites be used unless the county board orders otherwise, (ii) prohibits last-minute changes in polling sites absent an emergency, and (iii) requires notice of changes. It does not establish or relax procedural requirements or mean that the kind of "change" it describes is somehow not also a "designation."
The "changes" provisions are:
(d)(1) Except for school elections under § 6-14-106, the polling sites for each election shall be the same as those established for the immediately preceding general election unless changed by order of the county board.
(2) The county board shall not change a polling site for any precinct less than thirty (30) days before an election, except in the event of an emergency.
(3)(A) Notice of a change made in a polling site shall be provided by posting information at the polling site used in the last election and by the county clerk mailing notice to affected registered voters at least fifteen (15) days before the election unless:
(i) The election is a school election;
(ii) The election is a special election; or
(iii) The change in polling sites is due to an emergency arising less than fifteen (15) days before the election.(B) If the change in polling site occurs in a school election, special election, or due to an emergency arising less than fifteen (15) days before the election, notice of a change made in the polling site shall be provided by posting information at the polling site used in the last election.
Generally speaking, election laws are mandatory if enforcement is sought before an election but merely directory, and failure to observe them is not cause to invalidate the election, if enforcement is sought after the election. The rule has been applied in cases involving failures to comply with the law regarding polling places. I have no reason to believe that the general rule would not apply to the SCBEC action at issue, the May election, and future elections.
Assistant Attorney General J.M. Barker prepared this opinion, which I approve.
Sincerely,
DM/JMB:cyh
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