Could Arkansas's Secretary of State set up an online voter registration system without a constitutional amendment?

Plain-English summary

Secretary of State John Thurston asked whether his office could establish an online voter registration system, by which he meant a portal letting prospective voters complete and submit registration applications electronically. If not, could the General Assembly clear the way by amending Amendment 51 with a two-thirds vote?

AG Leslie Rutledge said no to the first question and yes to the second.

On the first question, she walked through Amendment 51's text. Section 1 declares the amendment's purpose: "to establish a system of permanent personal registration as a means of determining that all who cast ballots in general, special and primary elections, in this State are legally qualified to vote." Section 3 then forbids voting by anyone not "registered in a manner provided for by this amendment." The "manners provided for" are spelled out in sections 5(b)(1), 9(h), and 10: in-person registration and "mail voter registration application forms," which Section 5(b)(1) describes as "pre-addressed postcard[s]" and Section 6(a)(3)(F) requires to bear "a signature or mark made under penalty of perjury that the applicant meets each requirement for voter registration." That postcard-and-signature framework does not contemplate a digital portal.

Section 5(a) and (b) do contain a narrow exception: a "computer process" can be used when registering through the Office of Driver Services or other "voter registration agencies." But the AG read that exception as limited to the agencies it names. It did not give the Secretary of State a freestanding hook to build an internet-portal registration system.

On the second question, the AG turned to Amendment 51 § 19, which lets the General Assembly amend Sections 5 through 15 of the amendment "in the same manner as required for amendment of laws initiated by the people, … so long as such amendments are germane to this amendment, and consistent with its policy and purposes." Laws initiated by the people can be amended by a two-thirds vote of both houses of the General Assembly under Ark. Const. art. 5, § 1.

So the procedural path was clear: 2/3 vote of both houses. The question was whether online registration was "germane" and "consistent" with Amendment 51's purpose. The AG drew the test from Martin v. Haas, 2018 Ark. 283, 556 S.W.3d 509, which used Black's Law Dictionary and Webster's to define germane as "[r]elevant; pertinent" or "having a close relationship," and tied that to the subject matter and scope of Amendment 51. Voter registration is the very subject matter of Amendment 51, so an online registration system is plainly germane. As for consistency: Amendment 51's policy is to make sure all voters are "legally qualified," and an online registration system is just another channel for verifying that. So the consistency prong was satisfied too.

The opinion gives the Secretary of State and the General Assembly a clean path forward. It would not work to build the system administratively. It would work to put a 2/3 amendment to Amendment 51 through both houses.

Currency note

This opinion was issued in 2020. 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

Why does Amendment 51 require the postcard-and-signature mechanic?
Because that is what its text says. Section 5(b)(1) describes a "pre-addressed postcard," and Section 6(a)(3)(F) requires a "signature or mark." Read literally, that does not accommodate electronic signatures and electronic submission, even though such things are common elsewhere.

Why doesn't the Section 5(a) and (b) 'computer process' language let the Secretary of State build a public portal?
Because the AG read that language as tied to specific voter-registration agencies (the Office of Driver Services and the others named in the amendment). The "computer process" was a way to handle registration as part of an in-person transaction at one of those agencies, not a freestanding online portal open to anyone on the internet.

Could the General Assembly take a different procedural path than 2/3 vote?
The opinion did not address other paths. Constitutional amendments by referral to the people are a separate route and require a different procedure. The AG focused on what § 19 actually permits, which is a 2/3 legislative amendment, because that was what the Secretary's question raised.

What did 'germane' mean?
"Relevant; pertinent" or "having a close relationship." The Arkansas Supreme Court applied that definition in Martin v. Haas to evaluate § 19 amendment proposals. The germaneness test asked whether the proposed amendment was relevant to Amendment 51's subject matter (voter registration). Online registration cleared that bar easily.

What did 'consistent with its policy and purposes' add?
A separate policy/purpose check. Amendment 51 exists to make sure ballot-casters are legally qualified voters. An online registration system, properly designed with verification, would advance that purpose, not undermine it. The AG took that as obvious.

Background and statutory framework

Amendment 51 was adopted in 1964 and is the source of Arkansas's permanent personal voter registration. Its 19 sections govern who registers, how, where, when, and through what mechanisms. The Arkansas Supreme Court called it a "comprehensive regulatory scheme" in Martin v. Kohls, 2014 Ark. 427, 444 S.W.3d 844.

Section 19 contains an unusual feature: the General Assembly can amend Sections 5 through 15 by the same supermajority that lets it amend laws initiated by the people, but only within the limits of germaneness and consistency. The amend-by-supermajority device sits in Arkansas constitutional law next to the amendments-by-vote-of-the-people route. It is rare and tightly constrained.

Martin v. Haas, 2018 Ark. 283, 556 S.W.3d 509, is the controlling judicial authority on what germaneness means under § 19. The AG's analysis of online voter registration tracked that opinion's framework directly.

Citations

Constitutional provisions:

• Ark. Const. amend. 51 (permanent personal registration)
• Ark. Const. amend. 51, § 1 (purpose)
• Ark. Const. amend. 51, § 3 (no voting without registration in manner provided)
• Ark. Const. amend. 51, § 5(a), (b) (computer process at voter registration agencies)
• Ark. Const. amend. 51, § 5(b)(1) (mail registration form is "pre-addressed postcard")
• Ark. Const. amend. 51, § 6(a)(3)(F) (signature or mark required)
• Ark. Const. amend. 51, §§ 9(h), 10 (in-person and mail registration)
• Ark. Const. amend. 51, § 19 (General Assembly may amend §§ 5-15 by 2/3 vote, subject to germaneness and consistency)
• Ark. Const. art. 3, § 1(a)(4) (general voting eligibility)
• Ark. Const. art. 5, § 1 (amendment procedure for laws initiated by the people)

Cases:

• Martin v. Kohls, 2014 Ark. 427, 444 S.W.3d 844 (Amendment 51 as comprehensive regulatory scheme)
• Martin v. Haas, 2018 Ark. 283, 556 S.W.3d 509 (germaneness test for § 19 amendments)

Source

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

Original opinion text

STATE OF ARKANSAS
THE ATTORNEY GENERAL
LESLIE RUTLEDGE
Opinion No. 2020-014
September 1, 2020
The Honorable John Thurston
Secretary of State
Arkansas State Capitol, Room 256
Little Rock, AR 72201

Dear Secretary Thurston:

This is in response to your request for an opinion on the following questions concerning voter registration in Arkansas:

1) Would it be permissible, under current Arkansas law, particularly Arkansas Constitution, Amendment 51, for the Office of the Secretary of State to establish an online voter registration system?
2) If not, could the relevant portion of Amendment 51 be amended by a two-thirds vote of the legislature to permit an online voter registration system?

RESPONSE

I gather that by "an online voter registration system" you mean a system that would allow prospective voters to complete and submit voter registration applications via an online portal. With that understanding, I believe the answer to your first question is "no," and the answer to your second question is "yes."

DISCUSSION

Question 1: Would it be permissible, under current Arkansas law, particularly Arkansas Constitution, Amendment 51, for the Office of the Secretary of State to establish an online voter registration system?

Amendment 51 provides a "comprehensive regulatory scheme governing the registration of voters." The amendment's "express policy" is "to establish a system of permanent personal registration":

The purpose of this amendment is to establish a system of permanent personal registration as a means of determining that all who cast ballots in general, special and primary elections, in this State are legally qualified to vote in such elections, in accordance with the Constitution of Arkansas and the Constitution of the United States.

Amendment 51 further provides that "[n]o person shall vote or be permitted to vote in any election unless registered in a manner provided for by this amendment."

The current voter registration system provides for registration in person and through "mail voter registration application forms." These mail voter registration application forms "serve for purposes of initial applications to register and … for change of name, address, or party affiliation." The mail voter registration application is a "pre-addressed postcard" that must contain, inter alia, a "signature or mark made under penalty of perjury that the applicant meets each requirement for voter registration."

An examination of Amendment 51 as a whole leads to the conclusion that an online voter registration system, i.e., a system that would allow prospective voters to complete and submit voter registration application forms via an online portal, would create a new system of registration not outlined in Amendment 51. Amendment 51's requirement of a "signature or mark" on a "postcard" mail registration form does not appear to allow for a system involving the use of electronic records and electronic signatures. Amendment 51 provides for the use of a "computer process" when registering to vote or updating a registration through the Office of Driver Services and other "voter registration agencies." That process plainly contemplates registering through electronic means. But this computer process is limited to the voter registration opportunities provided by voter registration agencies. It does not authorize establishing any other computer process for voter registration.

The answer to your question is, therefore, "no." An online voter registration system would not fit within the current framework of the registration system created by Amendment 51.

Question 2: If not, could the relevant portion of Amendment 51 be amended by a two-thirds vote of the legislature to permit an online voter registration system?

The General Assembly's power to amend Amendment 51 is governed by section 19 of the amendment, which provides as follows:

The General Assembly may, in the same manner as required for amendment of laws initiated by the people, amend Sections 5 through 15 of this amendment, so long as such amendments are germane to this amendment, and consistent with its policy and purposes.

Laws initiated by the people may be amended through a two-thirds vote of both houses of the General Assembly. At issue then is whether an online voter registration system would be "germane" to Amendment 51 and "consistent with its policy and purposes."

As noted by the Arkansas Supreme Court, germane means "[r]elevant; pertinent," or "having a close relationship." Establishing an online voter registration system would plainly be relevant and pertinent, or have a close relationship, to Amendment 51, given that establishing a system of voter registration is the very subject matter of the amendment. Online registration would, therefore, be germane to Amendment 51.

Next, we must decide whether an online voter registration system would be consistent with the policy and purpose of Amendment 51. Amendment 51's stated purpose is "to establish a system of permanent personal registration as a means of determining that all who cast ballots in … elections … are legally qualified to vote in such elections …." An online voter registration system would be another means of determining that those who vote are qualified. Hence, providing such a system would clearly be consistent with Amendment 51's policy and purpose.

Accordingly, the answer to your question is "yes," the General Assembly may, by a two-thirds vote, amend the relevant portions of Amendment 51 to permit an online voter registration system.

Sincerely,

LESLIE RUTLEDGE
Attorney General