Can a special school millage election be held in Arkansas on the same day as the regularly scheduled preferential primary election, and how should the ballot be structured?

Plain-English summary

Michael Adam, chairman of the Jefferson County Board of Election Commissioners, asked the AG three election-mechanics questions about running a school millage election on the same day as a March preferential primary. The AG's answers:

1. Yes, it can. Section 6-14-102(b) permits a school millage or debt-issue election outside the annual September/November school-election dates if three conditions are met: the election satisfies all constitutional and statutory requirements for the annual school election except date; the election is held before the annual school election; and the Commissioner of Education approves the date. The March preferential primary is earlier in the year than September/November, so a special millage election on that date is statutorily allowed.

The AG flagged that Op. Att'y Gen. 2002-300, which the questioner cited, was incorrect on this point. The 2002 opinion relied on the pre-Amendment 74 case Sims v. Hazen School District No. 2 and predated the 1996 voters' adoption of Amendment 74 to art. 14, § 3(c)(1), which authorizes a school board to submit local millage to voters "at the annual school election or at such other time as may be provided by law." Act 1120 of 1997 (now codified at § 6-14-102(b)) is the "other time" provision. A 2003 AG opinion correctly noted that the law now authorizes special elections to address debt service.

2. Yes, the millage goes on a separate ballot. Two statutes seem to conflict on ballot format. Section 6-14-102(a)(2) (a school-elections statute) says "[t]he annual school election shall only concern issues authorized to be on the ballot by the Arkansas Constitution or by statute, and no other issues shall appear on the ballot." That rule applies to a special school millage election by way of § 6-14-102(b)(1)'s requirement that the special election meet "[a]ll constitutional and statutory requirements for the annual school election." Section 7-7-306 (a general election-law statute), by contrast, requires that "[a]ll measures and questions, if any, to be decided by the voters" appear on the party-primary and nonpartisan ballots. The AG applied the canon that the more specific statute prevails over the more general (Kelly v. Martin). Title 6 (education) is more specific to school millage elections than Title 7 (general elections), so the school-election rule controls. The millage gets a separate ballot.

3. Yes, in part, for the special-election code. Title 7, Chapter 11 has three subchapters. Subchapter 1 deals with filling vacancies in office; it does not apply to a special school millage election. Subchapter 2 governs the call of a special election and the form of the call, but § 7-11-201 expressly excludes "special school elections," so most of subchapter 2 is inapplicable. The last section of subchapter 2 (§ 7-11-205) has timing rules; the AG concluded those rules either do not apply or would be satisfied by holding the special millage on preferential-primary day. Subchapter 3, § 7-11-301, says the laws governing general and primary elections apply to questions arising in special elections that the special-election laws do not answer; that section applies to special school millage elections, though school-election law (§ 6-14-101) duplicates much of it. Section 7-11-302 (vacancies) does not apply. Section 7-11-303 (special-election publication) is superseded by § 6-14-109(c), which says school-election publication "shall be the sole requirement."

Currency note

This opinion was issued in 2016. 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 74 and the modern statutory framework

Before 1996, Arkansas law confined school millage votes to the annual school election date. Sims v. Hazen School District No. 2 applied that rule. Amendment 74, adopted in 1996, opened the door to other dates: a school board may submit the proposed local millage rate to voters "at the annual school election or at such other time as may be provided by law." Act 1120 of 1997 took the legislature up on that invitation and added the special-election option now codified at § 6-14-102(b).

The AG said Opinion 2002-300 appeared incorrect because it overlooked Amendment 74 and Act 1120 of 1997.

The "separate ballot" rule

The school-elections code declares that the annual school election ballot "only concern issues authorized to be on the ballot by the Arkansas Constitution or by statute, and no other issues shall appear on the ballot." That phrasing, especially the "no other issues" clause, signals that school issues do not share a ballot with party-primary candidates or nonpartisan candidates for other offices. When § 6-14-102(b)(1) ports that requirement to a special school election, the same separation applies.

The general election-law code in Title 7 calls for "[a]ll measures and questions" on the party-primary and nonpartisan ballots. For this school millage question, the AG concluded that the more specific § 6-14-102(a)(2) would prevail under Kelly v. Martin.

What "special election" rules apply

The interaction between Title 6's school-election rules and Title 7's special-election rules is messy. The AG's reading is that:

• The vacancy-filling provisions of Title 7, Chapter 11, Subchapter 1 are out (no office vacancy at issue).
• The call-of-election provisions of Subchapter 2 are out under § 7-11-201's express "[e]xcept for special school elections" carve-out.
• Section 7-11-205's timing rules either do not apply or are satisfied here.
• Section 7-11-301's residual rule (general election law fills gaps in special election law) does apply.
• The vacancy-related § 7-11-302 is out.
• Section 7-11-303 (publication) is superseded by § 6-14-109(c).

The opinion left open whether § 7-11-205(a) applies to special school millage elections; it said the proposed same-day election would satisfy that section if it applied.

Common questions

Q: Can a school district hold a millage election on the same day as the March preferential primary? A: Yes. Under § 6-14-102(b), the school board can ask voters to approve a millage on a date other than the annual school election if it meets all annual-election requirements (other than date), the election precedes the annual school election, and the Commissioner of Education approves the date. The preferential primary date qualifies.

Q: Do school millage questions appear on the party primary ballots? A: No. Under § 6-14-102(a)(2), school election ballots contain only school issues, and § 6-14-102(b)(1) ports that requirement to a special school election. The millage goes on a separate ballot, not on the party-primary or nonpartisan ballots.

Q: Does Op. Att'y Gen. 2002-300 still say millage cannot be a special-election issue? A: That opinion existed but was incorrect on the point. It predated proper recognition of Amendment 74 (adopted 1996) and Act 1120 of 1997. A later 2003 opinion got it right by noting current law authorizes special elections to address debt service.

Q: What about the special-election timing rules in Title 7, Chapter 11? A: The AG said several call-of-election rules did not apply. She did not decide whether § 7-11-205(a) applied, but said an election on preferential-primary day would satisfy its same-day requirement if it did. Section 7-11-301 applied, though a school-election provision covered similar ground.

Citations and references

Statutes and constitutional provisions:

• Ark. Const. amend. 74; art. 14, § 3(c)(1) (school board's authority to submit millage at "such other time as may be provided by law")
• Ark. Code Ann. § 6-14-101 (Repl. 2013) (school election general provisions)
• Ark. Code Ann. § 6-14-102(a)(1) (annual school election dates)
• Ark. Code Ann. § 6-14-102(a)(2) (ballot content limited to school issues)
• Ark. Code Ann. § 6-14-102(b) (Supp. 2015) (special school millage elections)
• Ark. Code Ann. § 6-14-109(c) (Repl. 2013) (school election notice publication)
• Ark. Code Ann. § 7-7-203(a), (b) (Supp. 2015) (primary election dates)
• Ark. Code Ann. § 7-7-306(a), (b) (Supp. 2015) (ballot content rules)
• Ark. Code Ann. §§ 7-11-101 to -107 (vacancy elections, inapplicable)
• Ark. Code Ann. §§ 7-11-201 to -205 (call of special elections; school carve-out)
• Ark. Code Ann. § 7-11-301 (general law fills gaps)
• Ark. Code Ann. § 7-11-302 (vacancies, inapplicable)
• Ark. Code Ann. § 7-11-303 (publication, superseded by § 6-14-109(c))

Cases:

• Sims v. Hazen Sch. Dist. No. 2, 215 Ark. 536, 221 S.W.2d 401 (1949) (pre-Amendment 74; superseded as to millage-date restriction)
• Kelly v. Martin ex rel. State, 2014 Ark. 217, 433 S.W.3d 896 (specific statute prevails over general)

Source

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

Official summary

May a school millage election under Ark. Code Ann. sec. 6-14-102(b) be held on the same date as a regularly scheduled preferential primary election? Q2) If the answer to question 1 is "yes," does section 6-14-102(a)(2) require the millage to be included as a single issue on a separate ballot apart from the party primary ballots and the nonpartisan ballot required by Ark. Code Ann. sec. 7-7-306(b)? Q3) Does the special election code (A.C.A. 7-11-101 through -303) apply in whole or in part to school millage elections that are not held on the September/November regular school election dates, in light of the language in 7-11-201 ("except for special school elections") and Attorney General Opinion 2002-300, which states that millage questions cannot be submitted at a special election? RESPONSE: 1) Yes, provided the conditions of section 6-14-102(b) are met. 2) Yes. 3) Yes, in part. See opinion for details.

Original opinion text

STATE OF ARKANSAS
ATTORNEY GENERAL
LESLIE RUTLEDGE

Opinion No. 2016-001

March 10, 2016

Michael J. Adam, Chairman
Jefferson County Board of Election Commissioners
101 West Barraque Street
Pine Bluff, AR 71601

Dear Mr. Adam:

This is my opinion on your questions about a proposed special school millage election:

1) May a school millage election under § 6-14-102(b) be held on the same date as a regularly scheduled preferential primary election?

2) If the answer to question 1 is "yes," does § 6-14-102(a)(2) require the millage to be included as a single issue on a separate ballot apart from the party primary ballots and the nonpartisan ballot required by Ark. Code Ann. § 7-7-306(b)?

3) Does the special election code (Ark. Code Ann. §§ 7-11-101 through -303) apply in whole or in part (for instance, setting the date of the election or including the millage on the party primary and general election ballots under 7-11-205), to school millage elections that are not held on the September/November regular school election dates, in light of the language in § 7-11-20 I ("except for special school elections") and Attorney General Opinion 2002-300, which states that millage questions cannot be submitted at a special election?

323 CENTER STREET, SUITE 200 · LITTLE ROCK, ARKANSAS 72201 TELEPHONE (501) 682-2007 · FAX (501) 682-8084 ARKANSASAG.GOV

Michael J. Adam, Chairman
Jefferson County Bd. of Election Comm'rs
Opinion No. 2016-001
Page 2

RESPONSE

In my opinion, the answers to your first two questions are "yes" and the answer to your third question is "yes, in part."

DISCUSSION

Question 1 - May a school millage election under§ 6-14-102(b) be held on the same date as a regularly scheduled preferential primary election?

At one time, the state constitution did not permit a school millage election on any day other than the day of the annual school election. 1 In 1996, however, the voters approved Amendment 74, which provides that a school board may submit the proposed local millage rate to voters "at the annual school election or at such other time as may be provided by law." 2

Another time is, in fact, provided by law. As your request notes, a statute permits a school millage election on a day other than the annual school election date if three conditions are met. 3

1
See, e.g., Sims v. Hazen Sch. Dist. No. 2, 215 Ark. 536, 221 S. W.2d 401 ( 1949).
2
Ark. Const. art. 14, § 3(c)(I). Your request refers to Op. Att'y Gen. 2002-300, which cited Sims, supra note I, another pre-Amendment 74 case, and pre-Amendment 74 opinions of the Attorney General, and concluded without further explanation or analysis that "state law prohibits the consideration of school millage questions at a special election." The author appears to have neglected to note the change in constitutional law made by Amendment 74, and the legislative implementation of this aspect of Amendment 74 by Act 1120 of 1997. Accordingly, the opinion appears to have been incorrect on this point. A 2003 opinion, without referring to the 2002 opinion, stated that "the law currently authorizes special elections to address debt service .... "Op. Att'y Gen. 2003-031. 3 The statute provides in relevant part:

(b) The board of directors of any school district shall have the authority to hold a school election concerning the tax rate or debt issues on a date other than that fixed by law provided that:
(I) All constitutional and statutory requirements for the annual school election are met, notwithstanding [the requirement that the annual school election be held on one of two specified dates];
(2) The election is held before the date of the annual school election; and (3) The Commissioner of Education approves the date of the election.

Ark. Code Ann.§ 6-14-102(b) (Supp. 2015).

Michael J. Adam, Chairman
Jefferson County Bd . of Election Comm'rs
Opinion No. 2016-00 l
Page 3

Your question refers specifically to holding a special school millage election on the day of a regularly-scheduled preferential primary election. One of the conditions to holding a special school millage election is that it be held before the date of the annual school election. The preferential primary election, held in March, is obviously earlier in the year than the dates in September and November specified by law for the annual school election. 4

It is my opinion, then, that a special school millage election may be held on the day of the preferential primary election, provided the statute's other two conditions (compliance with annual school election requirements other than date, and Commissioner of Education approval) are met.

Question 2 - If the answer to question 1 is 'yes," does§ 6-14-102(a)(2) require the millage to be included as a single issue on a separate ballot apart from the party primary ballots and the nonpartisan ballot required by Ark. Code Ann. § 7-7-306(b)?

The first section you cite is in title 6, which addresses education. The section provides that "[t]he annual school election shall only concern issues authorized to be on the ballot by the Arkansas Constitution or by statute, and no other issues shall appear on the ballot. " 5 In my opinion, this rule does apply to a special school millage election by virtue of the provision requiring that special school millage elections meet "[a]ll constitutional and statutory requirements for 'the annual school election," 6 and does require a separate ballot.

The second section you cite 7 is contained in Title 7 of the Arkansas Code, which concerns elections generally, rather than in Title 6, which concerns education specifically. It requires, for each party primary and nonpartisan general election, 4 The preferential primary election is held on the Tuesday three weeks before the general primary election . See Ark. Code Ann. § 7-7-203(b) (Supp. 2015). The general primary election is held on the fourth Tuesday in March before the general election. See Ark. Code Ann. § 7-7-203(a). The annual school election is held on the third Tuesday in September or the first Tuesday following the first Monday of November. See Ark. Code Ann.§ 6-14-102(a)(I). 5 Ark. Code Ann.§ 6-14-102(a)(2) (emphasis added).
6
Ark. Code Ann.§ 6-14-102(b)(l).
7
Ark . Code Ann.§ 7-7-306 (Supp. 2015).

Michael J. Adam, Chairman
Jefferson County Bd. of Election Comm 'rs
Opinion No. 2016-001
Page 4

that there be a separate ballot for each political party containing (1) the name of each person seeking that party's nomination, (2) the name of each candidate for a nonpartisan office, and (3) "[a]ll measures and questions, if any, to be decided by the voters. " 8 It also requires, for nonpartisan voters, another ballot containing only the items designated (2) and (3) in the previous sentence. 9 A school district's local millage rate obviously is a question to be decided by the voters. The election law statute you cite therefore seems to require that the millage rate question appear on the party ballots and the nonpartisan ballot, rather than on an entirely separate ballot as required by the school election law statute discussed in the previous paragraph of this opinion. 10

In my opinion, a court would hold that the requirement of school election law (in title 6) that no other issues appear on the ballot (and thus a separate ballot is required) supersedes the requirement of general election law (in title 7) that all questions appear on the party and nonpartisan ballots. When conflicting statutes deal with the same subject matter, the more specific prevails over the more general. 11

Question 3 - Does the special election code (Ark. Code Ann. §§ 7-11-101 through 303) apply in whole or in part (for instance, setting the date of the election or including the millage on the party primary and general election ballots under 7-11-205), to school millage elections that are not held on the September/November regular school election dates, in light of the language in § 7-11-201 ("except for special school elections'') and Attorney General Opinion 2002-300, which states that millage questions cannot be submitted at a special election ?1121

8
Ark. Code Ann.§ 7-7-306(a).
9
Ark. Code Ann. § 7-7-306(b).
10
Ark. Code Ann.§ 6-14-102(a)(2).
11
See, e.g., Kelly v. Martin ex rel. State, 2014 Ark. 217, 433 S.W.3d 896.
12
See supra note 2 regarding Op. Att'y Gen. 2002-300.

Michael J. Adam, Chairman
Jefferson County Bd. of Election Comm' rs
Opinion No. 2016-001
Page 5

Arkansas Code title 7, chapter 11, subchapter 1, 13 establishes rules for special elections to fill vacancies in office. It accordingly does not, in my view, apply to special school millage elections.

As to subchapter 2, it is my opinion that special school millage elections are exempted from at least the first four sections of subchapter 2, 14 and from subsection (b) of the last section of subchapter 2 15 - all having to do with the document calling the election - by virtue of the statute quoted in your question. That statute provides that, "[ e]xcept for special school elections," all special elections on measures or questions are to be called by the issuance of one of several specified documents. 16

It is not clear whether a court would hold subsection (a) of the last section of subchapter 2 17 to apply to a special school millage election. But even if the subsection applies, the special school millage election described in your request - i.e., one to be held on the day of the preferential primary - would satisfy the subsection's requirement that a special election to be held during the same month as a preferential primary be held on the same day as the preferential primary. 18

The same subsection also requires that the ballot for a special election held on the day of a preferential primary include "the issues or issues to be voted upon at the special election." 19 In my view, however, the specific requirements of school election law that a school election "only concern issues authorized to be on the ballot by the Arkansas Constitution or by statute," and that "no other issues ... appear on the ballot" 20 would be held to supersede this more general requirement of general election law. 21

13
Ark. Code Ann . §§ 7-11-101 to -107 (Rep I. 201 I, Supp. 2015).
14
Ark. Code Ann . §§ 7-11-201 to -204 (Rep!. 201 I).
15
Ark. Code Ann.§ 7-11-205 (Repl. 2011).
16
Ark. Code Ann.§ 7-11-201.
17
Ark. Code Ann . § 7-11-205.
18
See Ark. Code Ann. § 7-1 l-205(a)(l)(A) (Repl. 201 I).
19
Ark. Code Ann . § 7-1 l-205(a)(2)(A).
20
See Ark. Code Ann.§ 6-14-102(b)(I) and (a)(2).

Michael J. Adam, Chairman
Jefferson County Bd. of Election Comm'rs
Opinion No. 2016-001
Page 6

As to subchapter 3, it is my opinion that the first section22 - providing that the laws governing general and primary elections apply to questions arising in connection with special elections that are not answered by the laws governing special elections - does apply to a special school millage election but that the section may have little real effect due to a similar provision in the laws governing school elections. 23

In my opinion, the second section 24 - having to do with filling vacancie~ in office - does not apply.

Finally, it is my opinion that the third section 25 - providing that certain publication requirements of general elections law apply to special elections - does not apply to a special school millage election due to a provision of school elections law that requires publication of notices of school elections and provides that its publication requirement "shall be the sole requirement for publication of the notice." 26

Sincerely,

C0/J<
RUTLEDG~
LESLIE
Attorney General

21
See supra note 11 and accompanying text.
22
Ark. Code Ann . § 7-11-301 (Repl. 2011).
23
See Ark. Code Ann. § 6-14-101(Rep!.2013).
24
Ark. Code Ann. § 7-11-302 (Repl. 2011).
25
Ark. Code Ann. § 7-11-303 .
26
Ark. Code Ann. § 6-14- 109(c) (Repl. 2013); see supra note I I and accompanying text.