During COVID-19, does concern about catching or spreading illness qualify a voter for an absentee ballot in Arkansas?

Plain-English summary

State Senators Joyce Elliott and Greg Leding asked whether a voter's concern about catching or spreading an illness, including COVID-19, counted as being "unavoidably absent" or "unable to attend the polls on election day because of illness" for an Arkansas absentee ballot.

AG Leslie Rutledge declined to answer. She said the question was pending before a court and cited Baker, et al. v. Thurston, No. 60CV-20-3565, in footnote 1. Her office's policy, she explained, was to leave matters pending before the courts for judicial resolution. Footnote 2 cites prior AG opinions on that policy.

The opinion decides neither eligibility route. A reader cannot use it to conclude that a concern about catching or spreading COVID-19 did, or did not, qualify a voter for an absentee ballot.

Currency note

This opinion was issued in 2020. Later court decisions or changes in law may affect absentee-ballot eligibility. Check current election rules before relying on a 2020 opinion.

Common questions

Did the AG say concern about COVID-19 counts as illness?
No. That was part of the question she declined to answer because litigation was pending.

Did the AG say such a voter is "unavoidably absent"?
No. She likewise gave no answer on that phrase.

What case was pending?
Footnote 1 cites Baker, et al. v. Thurston, No. 60CV-20-3565 (Pulaski Circuit Court, Fifth Division, June 23, 2020). The opinion gives no account of the case's outcome.

Why did the AG decline?
She described a longstanding office policy: as part of the executive branch, the AG's office does not issue opinions on matters pending before courts for resolution. Footnote 2 cites Ops. Att'y Gen. 2016-027 and 2015-140.

Background and statutory framework

The request identified two of the accepted reasons for seeking an absentee ballot: being "unavoidably absent" and being "unable to attend the polls on election day because of illness." It asked whether concern about contracting or spreading illness fell under either. The AG declined because of pending litigation and did not interpret either phrase.

Citations

• Baker, et al. v. Thurston, No. 60CV-20-3565 (Pulaski Cir., 5th Div., June 23, 2020) (pending case cited in footnote 1)
• Ops. Att'y Gen. 2016-027, 2015-140 (prior opinions cited in footnote 2)

Source

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

Original opinion text

Opinion No. 2020-023
July 1, 2020
STATE OF ARKANSAS
ATTORNEY GENERAL
LESLIE RUTLEDGE

The Honorable Joyce Elliott
State Senator
P. O. Box 4248
Little Rock, AR 72214

The Honorable Greg Leding
State Senator
P. O. Box 1445
Fayetteville, AR 72702

Dear Senators Elliott and Leding:

This is in response to your request for an opinion on the following question:

> Do a voter's concerns about contracting or spreading an illness, including but not limited to COVID-19, count as being "unavoidably absent" or "unable to attend the polls on election day because of illness," as outlined in two of three accepted reasons for requesting an absentee ballot in Arkansas?

RESPONSE

I must respectfully decline to answer your question as it is now the subject of pending litigation. It is the long-standing policy of the Attorney General's office, as a member of the executive branch, to decline to issue opinions on matters that are pending before the courts for resolution.

I regret that I cannot be of more assistance in this matter. Please do not hesitate to contact me if I may be of future assistance in some other respect.

Sincerely,

LESLIE RUTLEDGE
Attorney General

Footnotes from the official opinion PDF:

1. See Baker, et al. v. Thurston, No. 60CV-20-3565 (Pulaski Cir., 5th Div., June 23, 2020).
2. See Ops. Att'y Gen. 2016-027, 2015-140 (and opinions cited therein).