When a special election has only one unopposed candidate, does the county election board still need to print ballots and run polls, or can they certify the candidate after filing closes?

Plain-English summary

The Pulaski County Election Commission asked four questions about the November 5, 2019 special general election for House District 36. After the incumbent resigned in May 2019, the Governor called a special election. Through the special primary and runoff, only one candidate (from a single party) ended up on the path to the November ballot. No other party nominated; no independents qualified; no write-ins filed. The Commission needed to know whether to run a full general election (poll workers, ballots, public notices) for one unopposed candidate, and when it could declare that candidate elected.

The AG answered as follows:

1. Is the special election separate from the annual school election held the same day? Yes. Ark. Code Ann. § 7-1-101(16) defines general/special elections in a way that expressly excludes "school elections for officials of school districts." School elections are governed by their own subchapter (Ark. Code Ann. § 6-14-101 et seq.), which controls in any conflict.

2. Does § 7-11-107 (special-election rules) or § 7-5-207 (general ballot rules, as amended by Act 1013 of 2019) govern? § 7-11-107 controls. Where two statutes both speak to the same subject, the more specific governs (Donoho v. Donoho). § 7-11-107 specifically addresses "only one (1) candidate after all deadlines for filing as a candidate have passed in a special election to fill a vacancy." § 7-5-207 was the more generic ballot-composition rule. The legislative history of Act 1013 (which had originally been drafted to amend § 7-11-107 and was then amended out) reinforced the specific-controls reading.

3. If § 7-5-207 governs, does the board still have to run all the election logistics? Mooted by answer #2.

4. If § 7-11-107 governs, when can the board certify the unopposed candidate? Only after the date of the special election set in the Governor's proclamation. § 7-11-107(a)(1) lets the board certify the candidate "in the same manner as if the candidate had been voted upon at the election." The AG read that as preserving the timeline. The board cannot short-circuit the proclamation's election date.

The practical effect: no need to print ballots, hire poll workers, or open polls just to record one unopposed candidate, but the certification must wait until the proclamation date passes.

Currency note

This opinion was issued in 2019. 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

Q: What is the practical difference between § 7-11-107 and § 7-5-207?
A: § 7-11-107 is the special-election rule that lets a county board declare and certify an unopposed candidate "as if" voted on. § 7-5-207, after Act 1013 of 2019, requires unopposed candidates' names to appear on the ballot with a single-mark voting option. They appear to conflict for unopposed special elections; the AG resolved the conflict by giving § 7-11-107 priority.

Q: Why couldn't the AG just say one statute repealed or amended the other?
A: Because the legislature did not signal that. Act 1013 originally would have amended § 7-11-107, but that piece was struck during the bill's progress, leaving § 7-11-107 untouched. The AG read that history as preserving § 7-11-107 as the operative rule for unopposed special elections.

Q: Could the board certify the candidate the day the filing deadline closed?
A: No, not under § 7-11-107(a)(1). The board "may declare and certify the candidate as elected in the same manner as if the candidate had been voted upon at the election." The AG read "at the election" as the date in the Governor's proclamation. So filing-deadline closing is not enough.

Q: What about the public notice and ballot-printing duties under § 7-5-207?
A: The AG mooted Question 3, so it did not directly address those, but the implication of his reading is that the special-election rule excuses those duties for an unopposed special election. Local election officials should still consult their own counsel.

Q: What if a school election shares a date with a special election?
A: They are separate elections. Ark. Code Ann. § 6-14-101 makes school-election laws control over the general-election laws when in conflict. So the local board has to plan logistics for both, but they are not legally a single event.

Background and statutory framework

Arkansas' general election statute defines "general or special election" as the regular periodic election for federal, state, and local officials, plus special elections to fill vacancies, and excludes school elections for officials of school districts (Ark. Code Ann. § 7-1-101(16)). School-election laws live in their own subchapter (Ark. Code Ann. § 6-14-101 et seq.), and § 6-14-101 makes the general-election laws apply to school elections only "insofar as they are not in conflict" with the school-election subchapter.

§ 7-11-107(a)(1) says: "If there is only one (1) candidate after all deadlines for filing as a candidate have passed in a special election to fill a vacancy and if no other office or issue is on the ballot, the county board of election commissioners may declare and certify the candidate as elected in the same manner as if the candidate had been voted upon at the election."

§ 7-5-207, as amended by Act 1013 of 2019, requires that "[i]n an election in which one (1) or more candidates are unopposed, the phrase 'unopposed candidates' shall appear on the ballot, adjacent to a place in which the voter may cast a vote for all unopposed candidates by placing an appropriate mark."

The specific-controls canon comes from Donoho v. Donoho, 318 Ark. 637, 887 S.W.2d 290 (1994). The legislative-history canon, used to decide which legislative purpose Act 1013 actually served, comes from MacSteel Div. of Quanex v. Arkansas Okla. Gas Corp., 363 Ark. 22, 210 S.W.3d 878 (2005).

Citations

• Ark. Code Ann. § 7-1-101(16) (definition of general/special election)
• Ark. Code Ann. § 7-5-207 (ballot composition; Act 1013 of 2019)
• Ark. Code Ann. § 7-11-107(a)(1) (unopposed special-election candidates)
• Ark. Code Ann. § 6-14-101 (school-election laws control any conflict)
• 2019 Ark. Acts No. 1013; 2017 Ark. Acts No. 730
• Donoho v. Donoho, 318 Ark. 637, 887 S.W.2d 290 (1994)
• MacSteel Div. of Quanex v. Arkansas Okla. Gas Corp., 363 Ark. 22, 210 S.W.3d 878 (2005)

Source

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

Original opinion text

Opinion No. 2019-056
October 23, 2019

Evelyn D. Gomez, Chair
Pulaski County Election Commission
501 West Markham, Suite A
Little Rock, AR 72201

Dear Chairperson Gomez:

This is in response to your request for an opinion concerning how certain election laws, specifically Ark. Code Ann. §§ 7-11-107 and 7-5-207, may affect the Arkansas House of Representatives District 36 Special Election set for November 5, 2019.

In this regard, you have provided the following information:

Effective May 17, 2019, the incumbent representative of House District 36 resigned his position. On June 3, 2019, Governor Asa Hutchinson called a special election to fill the vacancy resulting from the resignation previously noted. That proclamation fixed the date of the special election to fill the vacancy for November 5, 2019, as well as setting a primary date to be held on August 6, 2019, and a special primary runoff election, if required, for September 3, 2019. The only individuals filing for candidacy did so as candidates standing for the nomination of a single political party. The special primary election did not result in a candidate receiving a simple majority of the votes cast, and, accordingly, a special primary runoff election was required, and was conducted. No other political party nominated a candidate to fill the vacancy. No independent candidates submitted petitions and no write-in candidates filed the required notices.

In light of the above-referenced scenario, you have asked the following questions:

1. Is the House 36 Special General Election considered separate and distinct from the Annual School Election to be held on the same day (November 5, 2019)?
2. Is this House 36 Special General Election governed by Ark. Code Ann. § 7-11-107 or § 7-5-207?
3. If the answer to question 2 is that Ark. Code Ann. § 7-5-207 governs, then does Ark. Code Ann. § 7-5-207 require the Board to perform all election related duties (open polls, appoint poll workers, print ballots, publish notices, etc.) for a Special General Election set for November 5, 2019, if the election has a single unopposed candidate?
4. If the answer to question 2 is that Ark. Code Ann. § 7-11-107 governs, then at what point in time may the Board certify the candidate as elected? Must the Board wait for the passage of the date identified in the Governor's Proclamation to conduct the special general election, or may the Board certify the candidate as elected after all deadlines for filing as a candidate have passed?

RESPONSE

The answer to your first question is "yes," the special election is separate and distinct from the annual school election. As to your second question, it is my opinion that Ark. Code Ann. § 7-11-107 would likely be seen by a reviewing court as the governing statute for the special election. This response renders your third question moot. Finally, in response to your fourth question, it is my opinion that the Pulaski County Board of Election Commissioners (Board) must wait until after the date of election set in the Governor's proclamation to certify as the winner the unopposed candidate for House District 36.

DISCUSSION

Question 1: Is the House 36 Special General Election considered separate and distinct from the Annual School Election to be held on the same day (November 5, 2019)?

"Yes," in my opinion. Arkansas law defines a general or special election in pertinent part as "the regular biennial or annual election for election of United States, state, district, county, township, and municipal officials and the special elections to fill vacancies therein...." In addition, that statute specifically excludes "school elections for officials of school districts" from the definition of general or special elections. School elections are also governed by statutes in a different part of the Code than the general election laws. Finally, with respect to school elections, state law gives primacy of school election laws over the general election laws in the case of any conflict between the two.

This amply demonstrates that the two elections, even though they are held on the same date, are separate and different elections.

Question 2: Is this House 36 Special General Election governed by Ark. Code Ann. § 7-11-107 or § 7-5-207?

I gather the underlying question here is whether the name of the single unopposed special-election candidate to fill the House District 36 seat must be printed on a ballot in light of the enactment of Act 1013 of 2019, which amended section 7-5-207. I believe the answer to that question is "no." But Legislative clarification is warranted.

Section 7-11-107 states, in relevant part, that "[i]f there is only one (1) candidate after all deadlines for filing as a candidate have passed in a special election to fill a vacancy and if no other office or issue is on the ballot, the county board of election commissioners may declare and certify the candidate as elected in the same manner as if the candidate had been voted upon at the election." While not explicit, this language certainly implies that a county board of election commissioners need not print a ballot and go through the motions of holding an election just for a lone unopposed candidate in a special election.

Meanwhile, section 1 of Act 1013 of 2019, which amended Code section 7-5-207, explicitly states that "[i]n an election in which one (1) or more candidates are unopposed, the phrase 'unopposed candidates' shall appear on the ballot, adjacent to a place in which the voter may cast a vote for all unopposed candidates by placing an appropriate mark." While this statute seems clear, its application to a special election like the upcoming one (where there is one candidate running unopposed) is unclear in light of section 7-11-107.

A standard precept of statutory construction holds that where two statutes appear to speak to the same subject matter and one is more specific than the other, the more specific statute controls. In this case, section 7-11-107 deals specifically with unopposed candidates in special elections, whereas section 7-5-207 addresses election procedure, and the composition of ballots, more generally.

Additionally, when the meaning of a statute 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." Based on its legislative history and purpose, Act 1013 seems more likely to have been intended to apply to regular elections in general. It reversed a portion of Act 730 of 2017 that, in relevant part, removed a general requirement that the names of unopposed candidates be listed on ballots. Also, and particularly instructive, House Bill 1490 (the bill that would eventually become Act 1013) as originally introduced would have amended section 7-11-107 to permit a county board of election commissioners to open one polling place so that voters could mark a ballot for the unopposed candidate in a special election. This provision was later amended out of the bill and was never enacted.

In light of the foregoing, it is my opinion that section 7-11-107 is the governing statute in the scenario that you have described.

Question 3: If the answer to question 2 is that Ark. Code Ann. § 7-5-207 governs, then does Ark. Code Ann. § 7-5-207 require the Board to perform all election related duties (open polls, appoint pollworkers, print ballots, publish notices, etc.) for a Special General Election set for November 5, 2019, if the election has a single unopposed candidate?

In light of my answer to your second question, this question is moot and thus no response is needed.

Question 4: If the answer to question 2 is that Ark. Code Ann. § 7-11-107 governs, then at what point in time may the Board certify the candidate as elected? Must the Board wait for the passage of the date identified in the Governor's Proclamation to conduct the special general election, or may the Board certify the candidate as elected after all deadlines for filing as a candidate have passed?

In my opinion, the county board of election commissioners must wait until the passage of the date of the special election provided for in the Governor's proclamation. Section 7-11-107 clearly provides that a county board of election commissioners may declare and certify the candidate as elected "in the same manner as if the candidate had been voted upon at the election." If there had been an opposing candidate in the special election, certainly the Board would be required to wait until the election had taken place to tabulate the votes and declare and certify the winner. In my view, the Board lacks the authority to short-circuit that timeline to certify the unopposed candidate as elected to the House District 36 seat prior to the election date contained in the Governor's proclamation.

Sincerely,

LESLIE RUTLEDGE
Attorney General