Did the Sebastian County Board of Election Commissioners need a unanimous vote to close polling sites, and was its 2-to-1 vote unlawful?

Plain-English summary

State Representative Charlotte Vining Douglas and State Senator Bryan King jointly asked AG Dustin McDaniel three questions about the February 2014 vote by which the Sebastian County Board of Election Commissioners adopted a polling-place consolidation proposal on a 2-to-1 vote (not unanimously) and implemented it for the May 2014 preferential primary:

1. Is a unanimous vote of the commissioners present required to "move, change, fix, combine, eliminate, create, close, consolidate, or otherwise manipulate" the location of a polling site under A.C.A. § 7-5-101(a)?

2. Does "designate" in § 7-5-101(a) include all of those verbs?

3. Did the Sebastian County Board act contrary to Arkansas law in closing polling sites without a unanimous vote of the three members present?

The AG answered by enclosing his prior Opinion 2014-068 (issued one week earlier, on July 25, 2014, to Prosecuting Attorney Daniel Shue), which addressed the same factual situation. The earlier opinion answered all three questions: any alteration of a precinct's preexisting polling site is a "designation" under A.C.A. § 7-5-101(a)(2), which requires a unanimous vote; the "changes" subsection in § 7-5-101(d) doesn't relax that requirement; and the SCBEC's 2-to-1 vote was therefore not a lawful adoption.

The AG also flagged the long-standing rule that election laws are mandatory before an election and directory after, so the May 2014 primary results could not be invalidated by an after-the-fact challenge, but the same defect could be cured (or challenged again) before any future election.

For the substantive legal analysis, the underlying cases, and the procedural-versus-substantive distinction between § 7-5-101(a)(2) and § 7-5-101(d), see the enriched page for Opinion 2014-068.

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

Why issue a separate opinion if the answer was already in Opinion 2014-068?
Because Arkansas law permits sitting legislators to request AG opinions on their own behalf. When Representative Douglas and Senator King asked the same factual question that a prosecutor had asked the week before, the AG responded with a short opinion referring them to the existing analysis rather than duplicating the work.

Is this opinion authoritative on its own?
Substantively, the analysis it relies on is in Opinion 2014-068. This opinion's authority is essentially a pointer to that analysis. For research purposes, cite 2014-068 for the legal reasoning and 2014-085 only if the requestor's identity matters (e.g., to show the AG addressed the same issue for legislators as well as the prosecutor).

Did the AG say all the verbs in Douglas and King's first question count as "designation"?
Effectively yes. Opinion 2014-068 frames the rule as "any alteration in a precinct's preexisting polling site involves the designation of a new site for that precinct." That formulation captures the full range of verbs the legislators listed (move, change, fix, combine, eliminate, create, close, consolidate, or otherwise manipulate).

Why does the unanimity rule matter for legislative oversight?
Because polling-site decisions can affect voting access, especially for older, disabled, or transportation-limited voters. Sitting state legislators have an interest in how their constituents' polling places are administered, which is presumably why Douglas and King followed up Shue's request.

Background and statutory framework

A.C.A. § 7-5-101(a)(2) (Supp. 2013) carries the polling-site unanimity rule: "designation of polling sites shall be by a unanimous vote of the members ... present" with one narrow exception not relevant here.

A.C.A. § 7-5-101(d) carries the procedural overlays on changes (default to prior sites, 30-day window, notice rules).

The companion opinion (Op. Att'y Gen. 2014-068, July 25, 2014) provides the detailed analysis of why "any alteration in a precinct's preexisting polling site" qualifies as a designation; why the changes subsection does not relax the unanimity requirement; and why the May 2014 primary results were not subject to invalidation under the mandatory-versus-directory doctrine of Alexander v. Davis.

Citations

• A.C.A. § 7-5-101(a) (polling site provisions)
• A.C.A. § 7-5-101(a)(2) (Supp. 2013) (unanimity for designations)
• Op. Att'y Gen. 2014-068 (full substantive analysis)

Source

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

Original opinion text

Opinion No. 2014-085
August 1, 2014

The Honorable Charlotte Vining Douglas
State Representative
5315 Ridge Road
Alma, Arkansas 72921-8254

The Honorable Bryan King
State Senator
871 CR 814
Green Forest, Arkansas 72638

Dear Representative Douglas and Senator King:

You requested my opinion on questions about the February 2014 adoption, on a split rather than unanimous vote, by the Sebastian County Board of Election Commissioners of a motion to close certain precincts' polling sites and provide that such precincts' voters would thenceforth vote in places that already served as polling sites for other precincts.

I enclose a copy of an opinion on this matter I recently issued to Prosecuting Attorney Daniel Shue (Op. Att'y Gen. 2014-068). I believe the opinion adequately addresses the legal issues your request raises.

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

Sincerely,

DUSTIN McDANIEL
Attorney General
DM:JMB/cyh

Enclosure