During the COVID-19 pandemic, did Arkansas's absentee-voting statute let voters cast absentee ballots solely because of the pandemic?

Plain-English summary

State Representative Denise Garner asked AG Leslie Rutledge to interpret the word "illness" in Ark. Code Ann. § 7-5-402, the Arkansas absentee-voting statute. Garner pointed to the COVID-19 pandemic and other states-of-emergency contexts as the source of confusion: did "illness" reach a voter who feared exposure but was not yet sick. She also asked whether an executive order or a clarifying statute might be a better remedy.

Between Garner's request and the AG's response, Governor Asa Hutchinson resolved the question by executive order. On August 7, 2020, Hutchinson issued Executive Order 20-44 (re-adopted verbatim in EO 20-45 on August 14, 2020), declaring that "qualified electors, who conclude their attendance at the polls may be a risk to their health or the health of others due to the COVID-19 pandemic or otherwise conclude they will be unable to vote in person on the day of the election due to illness or physical disability are therefore unavoidably absent from the polls" and could request and submit an absentee ballot under § 7-5-402. The AG took the position that this rendered Garner's questions moot and declined to write a separate interpretive opinion.

The AG did not analyze whether COVID-related concern alone would, in the absence of the executive order, fit "illness" under § 7-5-402. The opinion is short for that reason: the practical question was already answered through executive action.

Currency note

This opinion was issued in 2020. 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.

Common questions

What did Executive Order 20-44 actually authorize?
The order treated voters who concluded that attending the polls might be a health risk (to themselves or others) due to COVID-19 as falling under the "unavoidably absent" prong of § 7-5-402. EO 20-45 reissued the same text on August 14, 2020. Both orders were issued jointly with the Arkansas Secretary of State and the chairs of the state Republican and Democratic parties.

Did the AG say "illness" includes COVID-related concern?
The opinion did not reach that statutory question. The AG declined to opine on the meaning of "illness" because the executive order had already provided absentee access through the "unavoidably absent" prong. That left the textual interpretation for another day.

What were the two alternative grounds for absentee voting under § 7-5-402?
The statute allowed an absentee ballot for any qualified elector who (1) would be unavoidably absent from the polling place on election day, or (2) was unable to attend the polls because of illness or physical disability. The executive order routed COVID-19 fear-of-exposure voters through the "unavoidably absent" prong, sidestepping the harder textual question about "illness."

Background and statutory framework

Ark. Code Ann. § 7-5-402, the Arkansas absentee-voting statute, listed the categories of voters eligible to cast an absentee ballot. The statute was the only operative source on this question; there was no Arkansas Supreme Court opinion construing "illness" in the COVID-19 context, and the General Assembly had not amended the section.

Garner's request asked the AG to consider statutory clarification by either executive or legislative action. The AG's answer pointed at the executive option that had already been exercised, which by its terms operated through the "unavoidably absent" prong rather than the "illness" prong. That left the underlying textual question of how broadly "illness" sweeps unanswered by AG opinion.

Citations

Statutes:

• Ark. Code Ann. § 7-5-402 (Repl. 2018) (qualifications for absentee voting)

Other authority:

• Arkansas Executive Order 20-44 (August 7, 2020)
• Arkansas Executive Order 20-45 (August 14, 2020)

Source

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

Original opinion text

Opinion No. 2020-025
October 23, 2020
STATE OF ARKANSAS
THE ATTORNEY GENERAL
LESLIE RUTLEDGE
The Honorable Denise Garner
State Representative
P. 0. Box 646
Fayetteville, AR 72702-0646
Dear Representative Garner:
This is in response to your request for an opinion concerning absentee voting in
Arkansas. The controlling statute, Ark. Code Ann. § 7-5-402, states:
The following persons, if possessing the qualifications of electors,
may cast an absentee ballot in any election:
(I) Any person who will be unavoidably absent from his or her
voting place on the day of the election; and
(2) Any person who will be unable to attend the polls on
election day because of illness or physical disability. 1
You have expressed concern that the term "illness" in this statute is a "gray area
within our state laws and one that requires further interpretation," especially in the
context of a "pandemic or other state of emergency." You have asked me about the
proper interpretation of the statute and about potential remedies to address or
prevent any confusion, including an executive order by the Governor or an act of
the General Assembly to clarify the statute.
After the submission of your opinion request, Governor Asa Hutchinson issued an
executive order on August 7, 2020, which noted that Governor Hutchinson, "joined
by the Arkansas Secretary of State, the Chairman of the Republican Party of
1 Ark. Code Ann. § 7-5-402 (Rep I. 2018).
323 CENTER STREET. SurrE 200. LITTLE ROCK, ARKANSAS 72201
T ELEPHONE (50 I) 682-2007 • FAX (50 I) 682-8084
INTERNET Wrnsrri: • http://www.ag.state.ar. us/ The Honorable Denise Garner
State Representative
Opinion No. 2020-025
Page 2
Arkansas, and the Chairman of the Democratic Party of Arkansas," had "issue[d] a
joint statement of support for the use of absentee voting to mitigate exposure to
CO VID-19. "2 Pursuant to that statement, Governor Hutchinson ordered:
Qualified electors, who conclude their attendance at the polls may be
a risk to their health or the health of others due to the COVID-19
pandemic or otherwise conclude they will be unable to vote in person
on the day of the election due to illness or physical disability are
therefore unavoidably absent from the polls, and may request and
submit an absentee ballot pursuant to Arkansas Code Annotated § 7-
5-402. 3
Because of these developments, your questions have been rendered moot.
Sincerely,
~· ;)~ L. /./~j;
LESLIE RUTLEDGE
Attorney General
2 Executive Order 20-44.
3 Id. Additionally, Executive Order 20-45, issued on August 14, 2020, also adopted and
incorporated word for word Executive Order 20-44.