Act 349 of 2021 set the school board candidate filing window as 'ninety days before a general election', but Arkansas holds school elections in odd-numbered years when there is no general election. How should the law be applied?

Plain-English summary

When the Arkansas General Assembly passed Act 349 of 2021, it rewrote the school board candidate filing rules. The old statute set a filing deadline of noon on August 1 for school elections held in November. The new statute set the deadline as a one-week window ending "ninety (90) days before a general election."

The problem: Arkansas holds general elections only in even-numbered years, and many school districts schedule their school board elections for November in odd-numbered years (specifically, the first Tuesday after the first Monday in November). For November 2021, there was no general election. So tying the filing deadline to "90 days before a general election" produced an answer that didn't exist for the upcoming election cycle.

Secretary of State John Thurston asked the AG how to apply the statute. He proposed a workaround: read the language as if it applied to all November elections, making the filing window run July 28 through August 4, 2021.

The AG agreed Thurston's reading was a "strong argument" but stopped short of guaranteeing a court would adopt it. Arkansas courts will read words contrary to a statute's express language only when "a drafting error or omission circumvents legislative intent" and the intent is "manifest." The AG concluded the intent here was probably to address November school elections regardless of year, but said the legislature should clarify the statute to be safe.

What this means for you

School board candidates and county clerks (2021 cycle and beyond)

In the immediate aftermath of this opinion, the practical answer was: file under the AG's proposed reading and hope a court would not invalidate it. The legislature did clarify the rule in subsequent sessions, so anyone running for school board today should consult the current text of Ark. Code Ann. § 6-14-111 rather than rely on this opinion's workaround. The current statute is what controls; this opinion is historical context.

Election administrators

When a state statute creates a literal absurdity for an upcoming election, this opinion shows how Arkansas's "drafting error" canon plays out. The AG was willing to recommend a practical reading but explicitly noted he could not "predict with certainty whether an Arkansas court would agree to interpret subdivision 6-14-111(e)(1)(B) contrary to its express language." Election officials in similar binds in the future should expect a similar result: the AG will counsel a workable interpretation, but litigation risk persists until the legislature fixes the text.

Anyone watching statutory construction in Arkansas

The opinion is a clean illustration of the "drafting error exception" canon: courts will supply or correct words "where the omission is obvious based on the language used and supplying the word(s) is necessary to carry out the legislative intent." Legislative intent must be "manifest." The AG canvassed the limits of that doctrine, citing 1912 and 1931 cases for the idea that courts cannot "add, and mend, and by construction make up, deficiencies."

Common questions

Did Arkansas school board elections happen in November 2021?

Yes. Counties proceeded with elections under the AG's proposed reading. The statute was later clarified by the legislature, and current law should be consulted for current elections.

What is the "drafting error" exception in Arkansas statutory construction?

When a statute as written makes no sense or is impossible to apply, and the legislature's intent is "manifest" from the text and context, courts can correct the error or supply the missing word. The AG quoted Neely v. State: "We are very hesitant to interpret a legislative act in a manner contrary to its express language; however, we must do so when it is clear that a drafting error or omission circumvents legislative intent." It's a narrow doctrine. Courts cannot rewrite a statute they merely think is poorly drafted.

Why couldn't the AG just say "yes, file in this window"?

An AG opinion is persuasive, not binding. The AG can recommend a reading but cannot bind a court that might later disagree. Here, the AG flagged the limits of the drafting-error canon and recommended the legislature clarify the language to remove litigation risk.

What's the takeaway for legislative drafters?

Tie deadlines to dates that always exist. "Ninety days before a general election" works for general-election years and breaks for off-year elections. "Ninety days before the school election" would have avoided the entire problem. The opinion is an object lesson in what happens when amendments cross-reference one calendar event but apply to a different event.

Background and statutory framework

The statute in question, Ark. Code Ann. § 6-14-111(e)(1), governs when a school board candidate must file the petition, affidavit of eligibility, and political-practices pledge with the county clerk. Subdivision (e)(1)(A) addresses school elections held in March or May (concurrently with preferential primary elections in even years, or as standalone May elections in odd years). Subdivision (e)(1)(B), as amended by Act 349 of 2021, addressed school elections held in November.

Before Act 349, the November filing window ended at noon on August 1. The amendment changed that to a one-week window ending 90 days before "a general election." Because Arkansas holds general elections only in even-numbered years (Ark. Code Ann. § 7-5-102), the amended language failed to produce a workable date for November 2021.

The AG's analysis tracked Arkansas's standard rules of statutory construction. When a statute is plain and unambiguous, courts apply it as written. When it is unclear or impossible to apply, courts look to the language, subject matter, object, purpose, remedy, and legislative history to discern intent. Where intent is manifest and the literal text frustrates that intent, the drafting-error exception allows correction. Sessions v. Dimaya supports the principle that courts disfavor interpretations rendering a statute impossible to apply.

Citations

• Ark. Code Ann. § 6-14-111(e)(1) (school board candidate filing)
• Ark. Code Ann. § 6-14-102(a)(1)(A) (annual school election dates)
• Ark. Code Ann. § 7-5-102 (general election date)
• Ark. Code Ann. § 7-7-203 (party filing periods)
• Macsteel, Parnell Consultants v. Ark. Ok. Gas Corp., 363 Ark. 22 (2005)
• Neely v. State, 317 Ark. 312 (1994)
• Johnson v. United States Gypsum Co., 217 Ark. 264 (1950)
• Snowden v. Thompson, 106 Ark. 517 (1913)
• Sessions v. Dimaya, 138 S. Ct. 1204 (2018)

Source

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

Original opinion text

Opinion No. 2021-036
July 20, 2021
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 concerning Act 349 of 2021, which in pertinent part amended Ark. Code Ann. § 6-14-111 with respect to candidate filing requirements for school board elections. As background for your request, you set out the following text of Act 349 of 2021 ("the Act") that is amending Ark. Code Ann. § 6-14-111(e)(1), with the stricken and underlined text of subdivision (e)(1)(B) as it appears in the Act:

(e)(1) The petition affidavit of eligibility, and the candidate's political practices pledge shall be filed with the county clerk as follows:

(A)(i) For even-numbered years, during the party filing period as set forth in § 7-7-203 for school elections held concurrently with a preferential primary election; and

(ii) For odd-numbered years, during the dates that would be the filing period as set forth in § 7-7-203 if a preferential primary and general election were to be held in that year; or

(B) During a one-week period ending at 12:00 noon on August 1 for school elections held on the first Tuesday following the first Monday in November ninety (90) days before a general election.

You have asked me to assume for purposes of your request that the General Assembly does not reconvene prior to July 28, 2021 and that the Act becomes effective on that date. You note that numerous school board elections are currently scheduled for November 2, 2021, throughout the state. As you point out, however, there will be no "general election" in November of 2021, or in any other odd-numbered year. Hence, the question arises regarding the proper interpretation of the above-underlined language newly added to subdivision 6-14-111(e)(1)(B) by the Act. You posit the following "practical construction" and ask for my opinion as to the appropriate interpretation of Act 349:

A practical construction of the amendment to subdivision (e)(1)(B) to apply the ninety-day period to all November elections would permit the timely and cost-effective administration of future school board elections, including the November 2, 2021, elections in which the filing period would run from noon Wednesday, July 28, 2021, through noon Wednesday, August 4, 2021.

RESPONSE

Because a literal interpretation would make the amended statute impossible to apply for school board candidates in the November 2, 2021, elections, a strong argument can be made in favor of the construction you posit. Absent legislative clarification, however, I cannot definitively state that a court would accept this argument.

DISCUSSION

The first rule in considering the meaning and effect of subdivision 6-14-111(e)(1)(B), as amended by Act 349, is to construe it just as it reads, giving the words their ordinary meaning and usually accepted meaning in common language. When statutory language is plain and unambiguous, there is no need to resort to rules of statutory construction. But when the meaning is not clear, courts 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. Additionally, while courts are very hesitant to interpret statutes contrary to their express language, they will do so "when it is clear that a drafting error or omission circumvents legislative intent."

In this case, the meaning of subdivision 6-14-111(e)(1)(B), as amended by Act 349, is unclear because while tying the school board candidate-filing period to "a general election" works in even-numbered years (when school districts can choose to hold the annual school election concurrently with the general election), it makes no sense in odd-numbered years, when there will be no general election. The annual school election in odd-numbered years must be held "on the ... [f]irst Tuesday following the first Monday of November; or ... [the] [t]hird Tuesday in May."

You state in your correspondence that it appears subdivision (e)(1)(B) is intended to address November school elections, whether held on the date of the general election in even-numbered years (pursuant to section 6-14-102(a)(1)(A)(i)(b)), or on the "[f]irst Tuesday following the first Monday in November" in odd-numbered years (pursuant to section 6-14-102(a)(1)(A)(ii)(a)). The plain language ("a general election") of course does not support that interpretation. As noted above, however, the Arkansas Supreme Court has held that a legislative act must be interpreted in a manner contrary to its express language "when it is clear that a drafting error or omission circumvents legislative intent":

We are very hesitant to interpret a legislative act in a manner contrary to its express language; however, we must do so when it is clear that a drafting error or omission circumvents legislative intent. In Johnson v. United States Gypsum Co., 217 Ark. 264, 229 S.W.2d 671 (1950), we quoted State ex rel Atty. Gen. v. Chicago Mill & Lbr. Co., 184 Ark. 1011, 45 S.W.2d 26 (1931), and held "When a word in a statute is omitted or misused it is the duty of the courts to disregard the error if the context plainly indicates the legislative intent." See also Dollar v. State, 287 Ark. 61, 697 S.W.2d 868 (1985); Murphy v. Cook, 202 Ark. 1069, 155 S.W.2d 330 (1941).

The "drafting error" exception is extremely limited. Usually, the courts will not "add, and mend, and by construction make up, deficiencies ...." My research indicates that the only instance in which a court will supply words is where the omission is obvious based on the language used and supplying the word(s) is necessary to carry out the legislative intent. The legislative intent must be "manifest," and will not be inferred.

In trying to make sense of Act 349's amendment to subdivision 6-14-111(e)(1)(B), it seems manifest that the amendment was intended to establish a one-week candidate filing period ending exactly 90 days before the election, as opposed to the 90 days more-or-less under current law. It also seems clear from the disjunctive "or" that subdivisions (e)(1)(A) and (e)(1)(B) address different subject areas. Subdivision (e)(1)(A) appears to address school elections held in either March or May in even-numbered years (per subdivision (e)(1)(A)(i)'s reference to "school elections held concurrently with a preferential primary election") and those held in May in odd-numbered years (pursuant to section 6-14-102(a)(1)(A)(ii)(b). Importantly, this leaves November school elections unaddressed by subdivision (e)(1)(A). It would seem to follow that despite its wording, subdivision (e)(1)(B) is intended to address school elections held in November, which will always be held, whether in odd- or even-numbered years, on the first Tuesday after the first Monday in November.

This reading indicates that subdivision (e)(1)(B)'s reference to "a general election," without more, was a drafting error. The error could be corrected, as you have suggested, by interpreting "ninety (90) days before a general election" as "ninety (90) days before all November elections." Because literal application of the statute is impossible and courts disfavor interpretations that make a statute impossible to apply, a strong argument can be made in favor of the construction you posit since general elections are always held on the second Tuesday after the first Monday in November. However, I cannot predict with certainty whether an Arkansas court would agree to interpret subdivision 6-14-111(e)(1)(B) contrary to its express language. Legislative clarification is necessary to definitively resolve the matter.

Sincerely,

LESLIE RUTLEDGE
Attorney General