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's flag that the 2002 opinion missed Amendment 74 is significant. Election commissioners and school district counsel who had relied on the 2002 opinion's flat statement that millage cannot be on a special election ballot were operating on outdated law.

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 has a different theory: it lumps "[a]ll measures and questions" onto the party-primary and nonpartisan ballots to consolidate the voting paperwork. For most ballot questions that approach is reasonable. For school millage, the more specific § 6-14-102(a)(2) wins 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 takeaway: when running a special school millage on preferential-primary day, the school-elections code (Title 6, Chapter 14) is the primary roadmap; the special-election code fills only narrow gaps.

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: Most do not apply because § 7-11-201 carves out "special school elections." Section 7-11-301 (general-election law fills gaps) does apply, but the school-elections code (Title 6, Chapter 14) covers most of the same ground.

Q: What does the Commissioner of Education's approval involve?
A: That is procedural. The AG did not opine on the substantive criteria the Commissioner uses; that is left to the Department of Education's administrative practice. The statutory requirement is approval, period.

Q: What if my school district wants to hold the millage on the general-election date in November rather than the September annual school election?
A: The annual school election dates are the third Tuesday in September or the first Tuesday following the first Monday in November under § 6-14-102(a)(1). If your district picks the November date as its annual school election, the millage goes on that date. If you want a different date entirely, you use the special-election option in § 6-14-102(b).

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

Opinion No. 2016-001
March 10, 2016
Michael J. Adam, Chairman
STATE OF ARKANSAS
ATTORNEY GENERAL
LESLIE RUTLEDGE
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. [The full text walks through the three questions in sequence, with footnoted citations to Amendment 74, Sims, Op. Att'y Gen. 2002-300, the Title 6 and Title 7 statutes discussed above, and Kelly v. Martin. The substantive analysis is summarized in the sections above. See the linked landing page for the official source.]
Sincerely,
LESLIE RUTLEDGE
Attorney General