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 what happened to a voter who registered in one Arkansas county, moved to a new county, and submitted an updated registration that arrived in the new county after the four-day pre-election deadline in Arkansas Constitution Amendment 51, Section 10. Could that voter still cast a ballot somewhere? Could that voter at least vote provisionally?

The AG read Amendment 51 strictly. Subsection (b)(2)(A) said the voter "shall have the right to vote in the scheduled election in the precinct into which the voter just moved" only if the new county received the updated registration "not later than four (4) days before a scheduled election." Subsection (b)(2)(B) said that if the information was "not actually received by the fourth day before a scheduled election, the voter shall not be eligible to vote in the scheduled election." The AG read that prohibition as covering the entire election, not just the precinct of the new residence. The voter could not vote in the old county (no longer a resident there) and could not vote in the new county (registration not timely received). Provisional voting was unavailable for the same reason: the voter was not "eligible to vote in the scheduled election" at all.

The opinion came with a flag, recorded in the official summary, that the AG issued a supplemental opinion (2015-037A) on August 5, 2015. The supplemental clarified that under Amendment 51, a poll worker must still offer a provisional ballot if the voter contends he or she is eligible to vote in the precinct, even though the ballot ultimately could not be counted under the four-day rule. The poll worker's role was procedural; the eligibility determination came after the fact.

The AG also walked through the historical reason the four-day rule existed. Before 2007, an Arkansas voter who moved between counties had to re-register in the new county subject to the standard 30-day pre-election registration cutoff. So a voter who moved within the 30 days before an election was simply out of luck. The 2007 legislation (Act 569) created the transfer mechanism and shrank that window from 30 days to 4 days. The voter who failed to transfer in time was in the same position as someone who failed to register at all under the prior regime: ineligible, but only by a narrower margin.

Currency note

This opinion was issued in 2015. 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.

Background and statutory framework

Amendment 51 to the Arkansas Constitution governs voter registration. Section 10 deals specifically with what happens when a registered voter changes residence. Before 2007, Section 10 required a registered voter who moved to a different Arkansas county to re-register, subject to the same 30-day pre-election registration cutoff that applied to first-time registrants. A move close to an election left the voter without a ballot in either the old county (no longer a resident) or the new county (cutoff missed).

Act 569 of 2007 amended Section 10 to allow a transfer of registration rather than fresh re-registration. The transfer could be initiated by mailing a registration application or request, by updating an address at a voter registration agency, or by applying in person at the county clerk's office in the new county. The amendment also created the four-day rule: if the updated information arrived in the new county not later than four days before the election, the voter could vote in the new county; if it arrived later, the voter was "not eligible to vote in the scheduled election."

For intra-county moves, the rules were more forgiving. Amendment 51, Section 10(a) allowed transfers within the same county, and Section 10(c) protected the right to vote even if the move happened during the 30-day cutoff period before an election. (The 1977 version of that provision let the voter vote at the old precinct; a 1995 amendment changed it to the new precinct.)

The AG applied standard rules of constitutional construction (statutes and constitutional amendments interpreted by the same principles, per Gazaway v. Greene County Equalization Board) and the principle that legislative intent is taken from ordinary language unless ambiguous (Macsteel; City of Fayetteville v. Washington County; Kervin v. Hillman). The AG found the language of subsection (b)(2)(B) unambiguous, but used the amendment's history (Brewer v. Fergus; Bryan v. English) to confirm that conclusion.

Common questions

Did the AG say a voter in this position could vote in their old county?
No. Registration was by county and precinct of the voter's residence. Once the voter moved, the voter no longer resided in the old county and could not vote there.

What about provisional ballots?
The opinion's text concluded the voter was not eligible for a provisional ballot either, because the voter was not eligible to vote at all in that election. But the supplemental opinion (2015-037A, August 5, 2015) added that poll workers must still offer a provisional ballot to a voter who insists on eligibility, even though that ballot would not ultimately be counted under the four-day rule. The poll-worker procedure and the post-election eligibility determination were treated as distinct.

Did the four-day rule apply to moves within the same county?
No. Section 10(a) treated intra-county moves more leniently; Section 10(c) protected voting rights even when the move occurred during the 30-day pre-election cutoff. The strict four-day rule applied to inter-county moves.

Was there any way for a voter in this position to vote?
Under the AG's reading of subsection (b)(2)(B), no. The voter could not vote in the old county (no longer resident), could not vote in the new county (transfer untimely), and could not vote provisionally on the merits.

What changed in 2007 that created this situation?
Before 2007, the rule was even stricter: a voter who moved between counties within 30 days of an election was completely shut out. Act 569 of 2007 created the transfer-with-four-day-deadline mechanism. The four-day window represented a narrowing of the older 30-day window, not a new restriction.

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