During COVID-19, does fear of catching or spreading the virus count as 'illness' or being 'unavoidably absent' for absentee voting in Arkansas?
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This page answers the general question as of 2020. Ezel answers yours: what it means for your facts, under current Arkansas law, with citations.
Plain-English summary
During the summer of 2020, the question whether COVID-19 concerns made a voter eligible for an absentee ballot under Ark. Code Ann. § 7-5-402 was being actively litigated in Arkansas courts. The statute's two pathways to an absentee ballot were "unavoidably absent from his or her voting place on the day of the election" and "unable to attend the polls on election day because of illness or physical disability." A voter worried about contracting or spreading COVID-19 might fit either prong, neither, or both, depending on how the words were construed.
AG Leslie Rutledge received an opinion request asking whether such COVID-19 concerns qualified a voter as "unavoidably absent" or "unable to attend the polls … because of illness." She declined to answer.
The reason was the AG's longstanding policy: when the same body of law is pending before the courts, the AG's office (as part of the executive branch) declines to opine so the judicial branch can resolve the question. The AG flagged this as policy, not as a determination on the merits.
The opinion is a one-paragraph procedural decline, similar to Op. Att'y Gen. 2020-007 (which declined on county-judge township authority because of Clowers v. Edwards). For practical purposes, voters and election officials in Arkansas during COVID-19 had to look at the executive orders Governor Hutchinson issued on August 7, 2020 (EO 20-44) and August 14, 2020 (EO 20-45), which functionally resolved the question by treating COVID-19 fear-of-exposure as "unavoidably absent." Op. Att'y Gen. 2020-025 (the Garner opinion) addresses that resolution directly.
The Rutledge declination reflects institutional caution. The text of Ark. Code Ann. § 7-5-402 (with its "unavoidably absent" and "illness" prongs) was the same throughout the dispute; what changed was the executive and judicial response to the pandemic.
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 did the AG decline?
Because the question was pending in litigation. The AG's policy is to stay out of cases the courts are resolving, to avoid prejudging matters within the judicial branch's authority.
What was the practical answer for COVID-era voters?
Governor Hutchinson resolved it on August 7, 2020 (EO 20-44) by directing that voters who concluded attending the polls might risk their or others' health due to COVID-19 were "unavoidably absent" under § 7-5-402. EO 20-45 reissued the same text August 14. Op. Att'y Gen. 2020-025 (Garner) discusses that resolution.
What happened in the courts?
The opinion does not name a specific case, just notes that the question was "the subject of pending litigation." Election-law disputes during COVID-19 were active in multiple Arkansas courts in 2020.
Did the AG ever resolve the underlying statutory question?
Not in this opinion. The Garner opinion (Op. Att'y Gen. 2020-025) declined to interpret "illness" because the executive order had already routed COVID voters through the "unavoidably absent" prong, mooting the textual question.
What is the AG's general decline-to-opine policy?
It is a longstanding institutional practice. When the same legal questions are being litigated, the AG's office, as part of the executive branch, generally declines to issue substantive opinions, leaving resolution to the courts. The practice avoids putting the executive branch in the position of pre-judging matters within judicial authority. Op. Att'y Gen. 2018-146 collected prior opinions applying the same rule.
Background and statutory framework
Ark. Code Ann. § 7-5-402 sets the eligibility categories for absentee ballots. Subdivision (1) covers "[a]ny person who will be unavoidably absent from his or her voting place on the day of the election." Subdivision (2) covers "[a]ny person who will be unable to attend the polls on election day because of illness or physical disability."
The COVID-19 pandemic raised an uncertain question about both prongs. Was fear of catching or spreading a contagious disease equivalent to being unavoidably absent (a phrase historically associated with travel, work, military service, or similar)? Was such fear equivalent to "illness" (historically tied to actually being sick rather than being at risk)?
Both questions were litigated during 2020. Both questions were also addressed administratively by Governor Hutchinson's Executive Orders 20-44 and 20-45, which took the position that voters who concluded attending the polls might risk their health or others' health due to COVID-19 were "unavoidably absent" within the statute's meaning, and accordingly eligible for absentee ballots under § 7-5-402.
Op. Att'y Gen. 2020-025 (Garner) discusses the executive-order resolution. The current opinion (2020-023) is the AG's procedural decline on the underlying question.
Citations
Statutes:
- Ark. Code Ann. § 7-5-402 (Repl. 2018) (qualifications for absentee voting)
Prior opinions referenced:
- Op. Att'y Gen. 2020-025 (Garner; COVID absentee voting under EO 20-44)
- Op. Att'y Gen. 2018-146 (decline-to-opine policy collection)
Related executive action:
- Arkansas Executive Order 20-44 (August 7, 2020)
- Arkansas Executive Order 20-45 (August 14, 2020)
Source
Original opinion text
Opinion No. 2020-023
July 1, 2020
STATE OF ARKANSAS
THE ATTORNEY GENERAL
LESLIE RUTLEDGE
Whether a voter's concerns about contracting or spreading an illness, including but not limited to COVID-19, count as being "unavoidably absent" or "unable to attend the polls on Election Day because of illness," acceptable reasons for requesting an absentee ballot in Arkansas?
RESPONSE
I must respectfully decline to answer your question as it is now the subject of pending litigation. It is the long-standing policy of the Attorney General's office, as a member of the executive branch, to decline to issue opinions on matters that are pending before the courts for resolution.
Sincerely,
LESLIE RUTLEDGE
Attorney General
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