An Arkansas voter who moved counties and whose transferred registration arrived at the new county after the four-day deadline before an election: can the voter still vote, including by provisional ballot?

Plain-English summary

Senator Cecile Bledsoe asked whether a voter who moved from one Arkansas county to another could vote if the new county received the voter's updated registration information after the fourth day before a scheduled election. She also asked whether that voter could cast a provisional ballot.

The Attorney General answered no to both questions. Amendment 51, Section 10 provides that a voter whose updated information reaches the new county clerk's office no later than four days before the election may vote in the new precinct. If the information is not received by the fourth day, the provision says the voter “shall not be eligible to vote in the scheduled election.” The AG read that as ineligibility for the entire election, rather than only for the new precinct. She answered the provisional ballot question “no” and found the third question, which assumed the voter could still vote, moot.

The AG explained that before the 2007 change, a voter moving between Arkansas counties had to register again in the new county. Someone who missed the 30 day registration cutoff could vote neither in the former county, where they no longer resided, nor in the new county. The 2007 transfer provision reduced the time needed for a move between counties from 30 days to four, provided the new county received the update on time.

Currency note

This opinion interprets the election rule as it stood in 2015. Verify current Amendment 51 and election guidance before advising a voter or administering an election.

Background and statutory framework

Ark. Const. Amend. 51, § 10 authorizes a registered voter who changes legal residence between Arkansas counties to transfer registration to the new county. Under the provisions quoted in this opinion, the date the new county clerk's office actually receives the updated information controls whether the voter may vote at the new address in the scheduled election. The AG called the provision denying eligibility after the fourth day unambiguous and said its history reinforced that reading.

Common questions

Could the voter return to the old county to vote?
No. The AG explained that registration is tied to the county and precinct of residence. After the move, the voter no longer resided in the old county.

Could the voter cast a provisional ballot?
The AG answered this question “no” for the circumstances Senator Bledsoe described. This opinion does not discuss a poll worker's procedure for handling a voter who disputes eligibility.

What if the update arrived four days before the election?
The quoted provision gives the voter the right to vote in the new precinct if the clerk's office actually received the update not later than four days before the election.

Does this opinion decide the rule for a move within the same county?
No. The questions and answer address a voter moving from one county to another.

Why did the AG discuss the older 30 day deadline?
The AG said that before the 2007 transfer provision, an intercounty mover had to register again in the new county and could miss the 30 day cutoff. She used that history to support her reading of the later four day rule.

Source

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

Original opinion text

STATE OF ARKANSAS
THE ATTORNEY GENERAL
LESLIE RUTLEDGE

Opinion No. 2015-037
June 17, 2015

The Honorable Cecile Bledsoe
State Senator
709 Sky Mountain Drive
Rogers, Arkansas 72756

Dear Senator Bledsoe:

This is in response to your request for my opinion on the following questions concerning the transfer and change of status of voter registration from one county to another under Ark. Const. Amend. 51, § 10:

1. If a voter has moved to a new county, has previously registered in another county, and has submitted registration information which was not received by the new county by the fourth day before the scheduled election, is that voter prohibited from voting:
   a) Only in the precinct of the new county in the scheduled election; or
   b) In the scheduled election entirely?
2. Is the voter under these circumstances allowed to vote a provisional ballot?
3. If the voter is not allowed to vote a provisional ballot but is entitled to vote in the scheduled election, what is the proper procedure under Amendment 51, § 10 of the Arkansas Constitution?

RESPONSE

It is my opinion that the voter is not eligible to vote in the scheduled election under the circumstances outlined in Question 1 above. The answer to Question 2 is "no," in my opinion. Question 3 is consequently moot.

DISCUSSION

In the event a registered voter moves from one county to another, Section 10 of Amendment 51 authorizes the voter to transfer his or her registration:

Upon a change of legal residence from one (1) county within the state to another county within the state, any registered voter may cause his or her registration to be transferred to the new county at his or her new address ....

The above questions are prompted by the following provisions of Amendment 51, Section 10, regarding the right to vote following such a transfer of voter registration:

(A) If the updated registration information is actually received in the office of the county clerk of the voter's new county not later than four (4) days before a scheduled election, the voter shall have the right to vote in the scheduled election in the precinct into which the voter just moved in the new county.

(B) If the updated registration information is not actually received by the fourth day before a scheduled election, the voter shall not be eligible to vote in the scheduled election.

Pursuant to the above subsection (b)(2)(A) of Section 10, the voter who moves to a new county has a right to vote in the precinct of his or her new residence if the county clerk's office received the registration information by the fourth day before the election. But according to subsection (b)(2)(B), "the voter shall not be eligible to vote in the scheduled election" if the updated information is not received by this time.

In considering these subsections of Amendment 51, Section 10, we must apply the same rules that are used to interpret statutes. The common aim is to find and give effect to the intent of those who drafted and enacted the provision at issue. Legislative intent is determined from the ordinary meaning of the language used, unless the language is ambiguous, in which case the review expands to include the subject matter, object to be accomplished, and other appropriate means that throw light on the subject.

The application of these principles leads me to conclude that the declaration in subsection (b)(2)(B) is unambiguous: the voter will be ineligible to vote in the scheduled election if the registration information is not received by the new county within the requisite time frame.

While the language of subsection (b)(2)(B) appears clear on its face, it bears noting that the relevant history of Amendment 51 bolsters the conclusion that the voter is prohibited from voting in the circumstances set out under your first question. The subsections of Amendment 51, Section 10 set out above (authorizing the transfer of a voter's registration to a new county and providing for the right to vote in the new precinct if the county clerk receives the updated information by the fourth day before the election) were enacted in 2007. Prior to that time, a registered voter was required to reregister when moving to a new county in the state.

Registration is by county and by precinct of the voter's residence. And to be qualified to vote, a person must register at least 30 days immediately prior to the election. So a person who moved to another county and failed to reregister before this cut-off period was not qualified to vote. That person no longer resided in the old county and therefore could not vote there. Nor could that person vote in the new county because of the 30-day registration cut-off period.

So the 2007 legislation ameliorated the 30-day registration cut-off for the registered voter who moves to another county and fails to reregister in time to vote in a scheduled election. That voter may now transfer his or her registration to the new county. And so long as the county clerk's office receives the updated information no later than four days before a scheduled election, that person may vote in the precinct of his or her new residence. If the information is not received by that time period, the person cannot vote in the election. This requirement and attendant prohibition are unambiguous, in my opinion, particularly when considering that the language at issue had the effect of reducing from 30 to 4 days before an election the time that a person moving between counties can become eligible to vote at the new address.

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

Sincerely,

LESLIE RUTLEDGE
Attorney General
LR/EAW:cyh