What deadline did Arkansas law set for a write-in candidate's notice to the county election board in 2014?

Plain-English summary

Representative Kim Hammer asked when a write-in candidate had to notify each county board of election commissioners in counties where the candidate sought election. The AG agreed that the statute clearly set a deadline for certain filings but said the separate county-board notice deadline was not entirely clear. He attributed the uncertainty to amendments in 2009 and 2011 and called for legislative clarification.

The statute required a candidate to notify each relevant county board in writing and file notice with the Secretary of State or county clerk, depending on the office. The candidate also had to file a political practices pledge and affidavit of eligibility with the same filing officer. The AG said the notice filed with the state or county officer, the pledge and the affidavit were due no later than the last day of the party filing period.

He described two possible readings for the county-board notice. The wording might mean the notice sent to the board and the one filed with the other officer were the same document, which would link their timing. But the statute also used different verbs: it required a candidate to "notify" the board and to "file" notice with the other officer. The filing deadline did not clearly mention a filed county-board notice. Earlier versions of the law had tied the deadlines together, and the AG found no legislative-intent evidence that resolved the revised wording.

The AG said the county board must be notified so ballots can permit a vote for a write-in candidate. He did not say that failure to notify by the party filing deadline necessarily barred those votes or that using that deadline guaranteed compliance with every plausible reading of the statute.

What this means for you

Write-in candidates and election officials

The opinion identifies a clear deadline for filings with the Secretary of State or county clerk but leaves the county-board notice deadline unresolved. Anyone applying it to an election should check current law and obtain advice on the required county-board notice rather than treat the 2014 ambiguity as a fixed deadline.

Currency note

This opinion was issued in 2014 and expressly called for legislative clarification. Check current statutes and election guidance before relying on its discussion.

Common questions

Which deadline did the AG call clear?
The last day of the party filing period for the write-in notice filed with the Secretary of State or county clerk and for the political practices pledge and affidavit of eligibility.

Did he set a deadline for written notice to the county board?
No. He explained competing readings of the statute and said that deadline would remain uncertain until the law was clarified.

Why did the county board need notice?
The AG said it stood to reason that the board had to know of the candidacy so the ballot could permit voters to write in the candidate's name.

Would filing by the party deadline certainly satisfy the county-board requirement?
The opinion did not give that assurance. It treated the board notice as a distinct issue and did not settle its deadline.

Background and statutory framework

The AG read A.C.A. § 7-5-205 as imposing notice to each relevant county board, a filing with the Secretary of State or county clerk, and simultaneous pledge and affidavit filings. He found the filing deadline clear but the board-notification deadline ambiguous after the amended text separated "notifies" from "files."

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. 2014-108

December 11, 2014

The Honorable Kim Hammer
State Representative
1411 Edgehill
Benton, Arkansas 72015-3128

Dear Representative Hammer:

You have requested my opinion on the following question concerning the statute that governs the counting of votes for write-in candidates:

In light of A.C.A. § 7-5-205, what is the deadline for write-in candidates to notify each county board of election commissioners in counties [where] they seek election?

In presenting this question, you state: "It is my understanding the law is clear that the ... notice of write-in candidacy, the political practices pledge, and the affidavit of eligibility are filed no later than the last day of the party filing period." But you add that you "feel the deadline to notify each county board of election commissioners is unclear and not defined."

RESPONSE

I agree that the deadline under A.C.A. § 7-5-205 for a write-in candidate to notify the county board of election commissioners of his or her candidacy is not entirely clear under current law. As explained further below, the uncertainty arises from the statute's amendment in 2009 and 2011. Legislative clarification is strongly warranted, in my opinion, to resolve any uncertainty that may arise regarding candidates' qualifications.

It will be helpful to set out the relevant text of section 7-5-205 before further explaining this response. Subsections 1 through 3 provide as follows:

No votes for write-in candidates shall be counted or tabulated unless:

(1) The candidate notifies in writing the county board of election commissioners of each county in which the candidate seeks election and files the notice with either:

(A) The Secretary of State, if a candidate for United States Senate, United States House of Representatives, or any state or district office; or

(B) The county clerk if a candidate for a county or township office;

(2) The candidate files with the county clerk or the Secretary of State, as required, a political practices pledge and an affidavit of eligibility for the office at the same time the candidate files his or her notice of write-in candidacy;

(3) The notice of write-in candidacy, the political practices pledge, and the affidavit of eligibility are filed no later than the last day of the party filing period.

The statute thus establishes three preconditions for counting votes for a write-in candidate. The candidate must 1) submit written notice to the county board of election commissioners (hereinafter "county board"); 2) file the notice with either the Secretary of State or the county clerk (depending upon the office involved); and 3) file a political practices pledge and affidavit of eligibility with either the Secretary of State or the county clerk, as the case may be. The issue for resolution is the applicable deadline in connection with each precondition. Subsection (3) clearly requires the filing of the political practices pledge and affidavit of eligibility by the last day of the party filing period. It also seems clear that the "notice of write-in candidacy" under subsection (2) is the notice that must be filed with either the Secretary of State or the county clerk pursuant to subsection (1)(A) and (B). Accordingly, the party filing period is also the deadline for that notice.

The remaining question is whether subsection 3's deadline for the "notice of write-in candidacy" (i.e., the party filing period) encompasses the written notice that must be submitted to the county board. The answer to that question is arguably less clear, in my opinion.

On the one hand, subsection (1) seems to contemplate that the notice to the county board and the notice to the Secretary of State (or county clerk, as the case may be) will be one and the same. It would seem to follow that the county board will already have been notified before the filing is made with either the Secretary of State or the county clerk, i.e., before the party filing period.

On the other hand, the statute arguably distinguishes between the notice to the county board and the filing of the notice with the Secretary of State or county clerk. Under subsection (1), the candidate "notifies ... the county board" and "files the notice" with the other officers. Subsections (2) and (3) then require additional filings, along with the filed notice, causing one to question whether subsection (3)'s deadline applies to the county board notice under subsection (1), given the absence of any reference to the filing of the latter notice.

In reviewing the legislative history as a means of resolving this uncertainty, I have discovered that the deadline for notifying the county board was clear up until 2009. The law has historically required a write-in candidate to provide written notice to the county board and the Secretary of State or county clerk within a certain number of days of the election, with the deadline ranging from thirty days to ninety days. A separate statute required the filing of a political practices pledge "at the time of filing the notice to be a write-in candidate." This "notice" plainly referred to the notice to be provided to the county board and the Secretary of State or county clerk; and the same deadline plainly applied to both notices.

In 2009, the statute was amended to read substantially as set out above. In my opinion, some uncertainty arises from the change in terminology regarding the notice to the county board and the filing of the notice with the Secretary of State or county clerk. I have found no evidence of legislative intent sufficient to resolve the uncertainty. Accordingly, while it stands to reason that the county board must be notified of a write-in candidacy so that the ballot can permit voters to write in the candidate's name, it is my opinion that the deadline for such notice will remain uncertain until clarification of the law is obtained.

Deputy Attorney General Elisabeth A. Walker prepared the foregoing opinion, which I hereby approve.

Sincerely,

DUSTIN McDANIEL
Attorney General

DM/EAW:cyh