Can Arkansas poll workers using electronic poll books take voter ID steps out of the order in A.C.A. § 7-5-305?

Plain-English summary

State Senator Uvalde Lindsey asked the AG whether A.C.A. § 7-5-305(a), as amended by the 2013 voter-ID act ("contingent effective date" version), required poll workers to take six listed steps in the precise order set out, or whether the order was flexible. The question mattered because Washington County and other counties were deploying electronic poll books capable of scanning the magnetic strip on a driver's license, which sped the voting process if the poll worker could scan the license first rather than verbally asking for name, address, and date of birth before requesting proof of identity.

AG Dustin McDaniel held that poll workers need not follow the order in the statute as long as all applicable steps occur before the voter votes.

Three reasons:

1. Textual. The statute says only that the steps be taken "[b]efore a person is permitted to vote." It does not say "in the following order." Rearranging the steps still satisfies the basic requirement.

2. Administrative deference. The State Board of Election Commissioners is charged with promulgating necessary rules to assure fair and orderly election procedures (A.C.A. § 7-4-101(t)(5), (7)) and assisting county boards in performing administrative duties. The State Board's training documents direct poll workers to take the mandated steps in an order other than the literal statutory order. Under Arkansas Pub. Emp. Ret. Sys. v. Taylor (2013), an agency's interpretation of a statute it administers is entitled to great deference and will not be overturned unless clearly wrong. The State Board's interpretation is not clearly wrong.

3. Liberal construction. A.C.A. § 1-2-202 (Repl. 2008) directs that "general provisions ... used in any statute shall be liberally construed in order that the true intent and meaning of the General Assembly may be fully carried out." A liberal construction supporting reorder of the steps puts into effect what the General Assembly really wanted: all the listed steps before any vote, with operational flexibility for the poll workers using modern technology.

The AG carefully noted what the opinion did not do. It did not authorize altering the substance of any step. For example, the statute appears to require the poll worker to compare the address and date of birth on the precinct voter registration list (PVR list) with what the voter says orally, not with what appears on the proof of identity. The State Board apparently shares this view. The fact that a poll worker may scan a driver's license first does not change how that proof of identity gets used downstream in the verification process.

The practical upshot: counties using electronic poll books can scan a voter's driver's license first to populate the name lookup, then walk through the remaining mandatory steps (address and date-of-birth verification by oral comparison, PVR list signature, proof-of-identity confirmation, recording on the list-of-voters form). The order is operationally flexible. Substance is not.

Currency note

This opinion was issued in 2014. 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

What six steps does A.C.A. § 7-5-305(a) require at the time of this opinion?
(1) ask the voter to identify himself so the poll worker can find his name on the PVR list; (2) ask the voter to state his address and date of birth; (3) confirm address and date of birth match the PVR list; (4) ask the voter to sign the PVR list; (5) ask for proof of identity (photo ID issued by a government or accredited educational institution per A.C.A. § 7-1-101(30)); (6) record the voter's name on the list-of-voters form. (Special-circumstance steps also apply if information doesn't match, the voter cannot sign, or other contingencies arise.)

What changed by allowing the steps out of order?
Electronic poll books can scan a driver's license and immediately display the voter's name, address, and date of birth from the license. If the poll worker can scan first, the steps for finding the voter on the PVR list compress into a single action. Forcing the listed order would require the poll worker to ask for the name, look it up manually, ask for address and date of birth, then scan the license, defeating much of the efficiency.

Can a poll worker compare the license info to the PVR list directly, skipping the oral comparison?
The AG said no. The statute appears to require the poll worker to compare what the voter says orally with what's on the PVR list, not what's on the license. The State Board apparently shares this view. The order can be flexible; the substance of each step is not.

What's the source of the State Board's authority to issue training materials?
A.C.A. § 7-4-101(t)(5) authorizes the State Board to "[f]ormulate, adopt, and promulgate all necessary rules to assure ... fair and orderly election procedures." § 7-4-101(t)(7) allows the Board to "[a]ssist the county board of election commissioners in the performance of administrative duties of the election process."

Why does administrative deference matter here?
Because the State Board could have read the statute literally to require strict order, but didn't. The AG's opinion confirms that the Board's flexible reading is entitled to deference under Arkansas Pub. Emp. Ret. Sys. v. Taylor (2013). Courts review such interpretations only for clear error.

What is the "contingent effective date" version of the statute?
The 2013 voter-ID act amended A.C.A. § 7-5-305 with provisions that took effect contingent on various conditions (and were ultimately subject to litigation). The version the AG was construing is the post-amendment text.

Background and statutory framework

The voter-ID law amended A.C.A. § 7-5-305(a) (Supp. 2013, contingent effective date version) to add proof-of-identity requirements alongside the pre-existing voter check-in process. The amended statute lists six steps (and additional contingency steps) without specifying an order beyond the requirement that all applicable steps occur before a voter votes.

The State Board of Election Commissioners has statutory rulemaking authority under A.C.A. § 7-4-101(t)(5) (Repl. 2011) and an assist-and-train role under § 7-4-101(t)(7). The Board's 2014 training materials directed poll workers to take the steps in an order other than the literal statutory order, reflecting practical realities of county operations.

A.C.A. § 1-2-202 (Repl. 2008) directs liberal construction of general statutory provisions.

Arkansas Pub. Emp. Ret. Sys. v. Taylor, 2013 Ark. 37, 425 S.W.3d 738, is the governing case on judicial deference to agency interpretations: not overturned unless clearly wrong.

A.C.A. § 7-1-101(30) (the contingent effective date version) defined "proof of identity" as a photo ID issued by a government or accredited educational institution.

Citations

• A.C.A. § 7-1-101(30) (Supp. 2013, "contingent effective date" version) (proof of identity definition)
• A.C.A. § 7-4-101(t)(5), (7) (Repl. 2011) (State Board rulemaking and assistance authority)
• A.C.A. § 7-5-305(a) (Supp. 2013, "contingent effective date" version) (voter-ID procedure)
• A.C.A. § 1-2-202 (Repl. 2008) (liberal construction of general provisions)
• Arkansas Pub. Emp. Ret. Sys. v. Taylor, 2013 Ark. 37, 425 S.W.3d 738 (deference to agency interpretation)

Source

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

Original opinion text

Opinion No. 2014-060
July 2, 2014

The Honorable Uvalde Lindsey
State Senator
2257 Gentle Oaks Lane
Fayetteville, Arkansas 72703

Dear Senator Lindsey:

This is my opinion on your question whether the steps mandated by A.C.A. § 7-5-305(a) (Supp. 2013, "contingent effective date" version) must be taken in the order set forth in the statute.

The statute prescribes actions a poll worker must take before allowing a person to vote:

1. ask the person to identify himself so that the poll worker may find his name on the precinct voter registration list (the "PVR list");
2. ask the person to state his address and date of birth;
3. confirm that the stated address and date of birth match the information on the PVR list;
4. ask the person to sign the PVR list;
5. ask the person to provide proof of identity; and
6. record the person's name on the list-of-voters form.

Information included with your request indicates that poll workers in Washington County and other counties use electronic poll books capable of reading the magnetic strip on a person's driver's license and immediately displaying the name, address and date of birth recorded therein. It is claimed that using electronic poll books speeds the voting process, particularly if the poll worker may scan a person's driver's license (if that is the proof of identity the person produces) as the first step in the process.

RESPONSE

In my opinion, for the reasons given below, a poll worker need not take the mandated steps in the order set forth in the statute.

While the mandated steps certainly are susceptible to being taken in the order they appear, the statute does not expressly, or in my view implicitly, dictate that approach. It merely states that all the listed, applicable steps be taken "[b]efore a person is permitted to vote ...." The steps could be rearranged in several ways, yet the end result would be the same and the statute's basic requirement would be satisfied: the poll worker would have taken all the applicable steps before permitting a person to vote.

An agency's interpretation of a law it is charged with administering is entitled to great deference and will not be overturned by a court unless the interpretation is clearly wrong. The State Board of Election Commissioners may, among other things, "[f]ormulate, adopt, and promulgate all necessary rules to assure ... fair and orderly election procedures" and "[a]ssist the county board of election commissioners in the performance of administrative duties of the election process ...." Clearly, the State Board is charged with administering election law and its pronouncements are entitled to deference.

The State Board has published training documents that instruct poll workers to take the mandated steps in an order other than that set forth in the statute. The State Board's implicit conclusion that the statutory order is not mandatory is not, in my view, clearly or even likely wrong.

Finally, "general provisions ... used in any statute shall be liberally construed in order that the true intent and meaning of the General Assembly may be fully carried out." In my estimation, a liberal construction of the statute, permitting the steps to be taken out of the listed order, puts into effect the General Assembly's true intent: merely that all applicable steps be taken before a person is permitted to vote.

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

Attorney General
DM/JMB:cyh

My opinion should not be taken as authority to alter the substance of any of the mandated steps. For instance, the statute appears to require the poll worker to compare the address and date of birth information on the PVR list with that provided orally by the person, not with that on the person's proof of identity. It is my understanding that the State Board shares this view. The fact that a poll worker may request proof of identity first does not change the use the poll worker may make of it.