Does an Arkansas county election board need a unanimous vote to close an inaccessible polling place and select its replacement?

Plain-English summary

A prosecuting attorney asked whether a county board of election commissioners (CBEC) needed a unanimous vote to close a polling place that violated the Americans with Disabilities Act or Help America Vote Act. The AG said no. A CBEC has three members, and two concurring votes decide questions unless another law says otherwise. He knew of no special unanimity rule for closing a site.

The next decision is different. Voters who used the closed site need another designated site. The AG said the state unanimity requirement applies to that designation, even if the board assigns the precinct to a polling site already used by other voters. Thus closing and replacing a site involve distinct voting requirements.

The AG also said neither federal statute preempted Arkansas's unanimity rule for site designation. The federal laws addressed voting access and accessible polling sites, but did not regulate the board's internal procedure for designating a site. He recognized that the unanimity rule could impede what a board majority thought necessary for federal compliance, yet did not find a direct conflict. He declined to answer whether Sebastian County had to pay to make a polling place it did not own compliant, calling that a federal-law question beyond his opinion authority in this setting.

What this means for you

Election commissioners

The opinion allows a two-member majority to close a site but requires unanimous designation of a replacement, including reassignment to an existing site. It does not decide how a board should resolve a deadlock over a replacement or what court relief might be available.

Currency note

This opinion was issued in 2014. Check current election and accessibility law before applying its voting rules.

Common questions

How many votes are needed to close a site?
The AG said the normal two-vote majority of the three-member board applies because he knew of no law requiring unanimity for closure.

How many votes are needed to designate a replacement?
Unanimity, the AG said, even when the precinct's voters would move to a site already in use.

Did the ADA or HAVA override the unanimity rule?
The AG answered no. He said those federal laws did not address state procedural requirements for polling-site designation.

Did the AG decide who must pay for accessibility work at a site the county does not own?
No. He declined to answer that question because it appeared to concern federal law alone.

Could a court order the board to act after a deadlock?
This opinion did not address court orders or remedies for a board deadlock.

Background and statutory framework

The opinion separates a closure decision from a site designation decision. It applies the board's ordinary two-vote rule to closure and the specific unanimous-vote rule to designation. Its preemption discussion concludes that federal voting-access statutes do not themselves change how a county board votes to designate a polling site.

Source

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

Original opinion text

STATE OF ARKANSAS
THE ATTORNEY GENERAL
Dustin McDANIEL

Opinion No. 2014-107
October 22, 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 questions about the unanimity requirement for a county board of election commissioners (a "CBEC") to designate a polling site. Your questions are:

Question 1: Is it necessary to have a unanimous vote to close a designated polling place that is in violation of either the Americans with Disabilities Act of 1990, Pub. L. No. 101-336, 104 Stat. 328 (1990) or the Help America Vote Act of 2002, Pub. L. No. 107-252, 116 Stat. 1666-1730?

Question 2: Do the above-listed federal statutes preempt A.C.A. § 7-5-101(a)(2)?

Question 3: Hypothetically, if a polling place is not owned by Sebastian County, is Sebastian County nevertheless financially responsible for making the site compliant with the above-listed federal statutes?

RESPONSE

In my opinion, the answer to your first two questions is "no," but a unanimous vote is required to designate a new polling site to serve voters of a precinct whose polling site is closed for non-compliance with federal law or any other reason. I respectfully decline to answer your third question, which appears to be strictly a matter of federal law.

DISCUSSION

Question 1: Is it necessary to have a unanimous vote to close a designated polling place that is in violation of either the Americans with Disabilities Act of 1990, Pub. L. No. 101-336, 104 Stat. 328 (1990) or the Help America Vote Act of 2002, Pub. L. No. 107-252, 116 Stat. 1666-1730?

In my opinion, the answer is "no," but unanimity is required to designate a polling site to replace the one closed.

A CBEC has three members. "[T]he concurring votes of any two (2) shall decide questions before them unless otherwise provided by law." I know of no law providing otherwise with respect to a CBEC decision to close a polling site. It is thus my opinion that CBEC unanimity is not required to close a polling site.

Obviously, however, when a polling site is closed, another polling site must be designated to serve the voters who had used the closed site. As stated above, CBEC unanimity is required to designate a polling site. The unanimity requirement applies, in my opinion, whenever a CBEC changes a precinct's polling site, even when it merely assigns the precinct's voters to a site already being used by other voters.

Question 2: Do the above-listed federal statutes preempt A.C.A. § 7-5-101(a)(2)?

In my opinion, the answer is "no."

Federal law is "the supreme Law of the Land . . . any Thing in the Constitution or Laws of any State to the Contrary notwithstanding."

> [T]he Supremacy Clause . . . invalidates state laws that frustrate or interfere with federal law. Federal law may preempt state law expressly by explicitly prohibiting state regulation in a particular field or implicitly by thoroughly occupying the field of regulation. Preemption also occurs where there is a direct conflict between federal and state law.

The Americans with Disabilities Act, among other things, prohibits public entities from discriminating against disabled persons in the provision of services, programs, and activities, including voting. The Help America Vote Act, among other things, provides for federal payments to state and local governments to make polling sites accessible to people with disabilities.

In my opinion, the unanimity requirement is not "to the Contrary" of anything in the ADA or HAVA and accordingly is not preempted by either. There is no direct conflict between federal and state law. The federal laws you cite do not expressly prohibit state procedural requirements relating to polling site designation. Neither do they impliedly do so by occupying the field; they do not address such procedural requirements at all and therefore occupy no part of the field.

One can, of course, point to the unanimity requirement as a practical impediment to a CBEC majority's determination to do something that, in that majority's estimation, is necessary to comply with federal law. But the fact that a local government can fail or refuse to comply with federal law does not somehow negate the rules dictating how local governments operate.

Question 3: Hypothetically, if a polling place is not owned by Sebastian County, is Sebastian County nevertheless financially responsible for making the site compliant with the above-listed federal statutes?

The law requires me to render opinions to certain public officials on questions of state law. This office's opinions function does not extend to questions of federal law except to the extent those questions involve interpretation of state law. Your question appears to be strictly a matter of federal law and I must respectfully decline to answer it.

Assistant Attorney General J. M. Barker prepared this opinion, which I approve.

Sincerely,

DUSTIN MCDANIEL
Attorney General

DM/JMB:cyh