Can a county clerk use poll books instead of voter registration applications to verify absentee ballot signatures, and how far does the county judge's authority over county buildings reach during elections?

Plain-English summary

Senator Mark Johnson sent the AG a 10-question grab bag about Arkansas elections, the powers of the county judge, the Freedom of Information Act, and the county election commissions. The AG worked through them in order. The headline answers:

Absentee ballot signature verification. The county clerk has to compare the signature on an absentee ballot application to the signature on the voter's registration application. Not to the signature in the poll book. Section 7-5-404 says so plainly.

What if the registration application is missing. Amendment 51, section 12 of the Arkansas Constitution lets the clerk prepare temporary registration records from remaining files. But the clerk still cannot use poll-book signatures to do the legal verification. The clerk has to notify the voter that registration was lost, and the voter must register again.

County employees and campaign work. County employees are "public servants" under Ark. Code Ann. § 21-8-402(18). They cannot campaign during work hours, period. That covers in-person and virtual events, holding signs, fundraisers, and circulating petitions.

County judge's authority over county buildings. Real but limited. The judge has custody of county property under Amendment 55, section 3, but cannot use that authority to interfere with early voting, vote centers, absentee ballot canvassing, election commission meetings, or provisional ballot hearings. Public meetings of governing bodies must remain open to the public, regardless of what the judge does with building access.

County board of election commissioners and FOIA. A commissioner is also a citizen, so under FOIA the commissioner can request public records like any other Arkansan. No formal vote of the commission is required to view a public record. The commission has access to its own records (contracts, bills, social media accounts under its name) without invoking FOIA at all.

What this means for you

County clerks

If a voter's registration application is missing, you cannot work around it by comparing the absentee signature to the poll book. Notify the voter. Have the voter re-register. The opinion ties this directly to Amendment 51, section 12, and § 7-5-404(a)(1)(A) as amended by Act 736 of 2021.

If the signatures don't match, you must notify the voter, allow resubmission, and electronically record the rejection. If you cannot reach the voter to cure, forward the application to the election commission to determine if the applicant is qualified.

County employees

Don't campaign on the clock. The opinion says specifically: no attending campaign events (virtual or in-person), no holding signs, no fundraisers, no circulating initiative or referendum petitions, no distributing campaign materials. After hours and off government property is fine.

County judges

Your custody of county property is real, but it is not absolute. You cannot use it to interfere with the duties of the county clerk, the election commission, the quorum court, or other officials. The opinion contemplates situations where you might restrict access (renovations, emergencies) and others where you cannot (closing a polling place during open polling hours, denying access to a public meeting, blocking the canvass of absentee ballots). When in doubt, the opinion says the question is fact-specific. Document your reasons for any restriction and have counsel review.

Election commissioners

You don't need to call a meeting and take a vote to look at a public record. As a citizen of Arkansas, you have an individual FOIA right under Ark. Code Ann. § 25-19-105. For records that are commission property (contracts, bills, your own social media), you don't need FOIA at all. They are commission records you administer. The opinion makes clear that even a record bearing the commission's name is not automatically the commission's; ownership controls.

Voters

Polling sites, including vote centers on election day, are not "public meetings" under the FOIA. The general public cannot wander in unless they are voting. Authorized poll watchers and candidates have specific rights to be present.

Election commission meetings, including absentee canvassing meetings and provisional ballot hearings, are public meetings. They must be open. The county judge cannot use building authority to close them. If you believe a public meeting was improperly closed, the FOIA provides remedies including appeal to a circuit court.

Common questions

What if the absentee ballot signatures don't match?

Under § 7-5-404(a)(2), the clerk must reject the absentee ballot application, notify the voter promptly, and allow resubmission. If the deficiency cannot be cured, the application goes to the election commission to determine if the applicant is qualified. The opinion treats this procedure as mandatory.

Can a county judge close a courthouse on election day?

Probably not in a way that prevents voting at a polling site located in the courthouse. The opinion says any restriction must accommodate the county clerk's duty to oversee early voting, the election commission's duty to operate vote centers, and the constitutional protection for the right of suffrage under Article 3, section 5. A judge could likely move a polling place during a true emergency, but cannot use building authority to suppress voting or restrict election officials' duties.

Are election commission meetings public?

Yes. Under Ark. Code Ann. § 7-4-105(b), any meeting of two or more commissioners conducting official business is a public meeting. That includes meetings to canvass absentee ballots and to determine the validity of provisional ballots. The general FOIA open-meetings rule (§ 25-19-106) reinforces this. Reasonable rules about seating capacity and orderly conduct are allowed; closing the meeting is not.

Can a county employee attend a campaign event during lunch?

The opinion says no campaigning "during work hours" and reads "work hours" broadly to include any time on the clock. A genuine off-the-clock lunch would be different from "lunch during which the employee was on county time." The cleanest practice is to take leave for any campaign activity, even brief ones.

Does the election commission have to FOIA its own records?

No. Common sense, the AG said, dictates that a commission has access to its own records to perform its duties. Contracts, bills, day-to-day operational documents, and social media platforms operated under the commission's name are all commission records. FOIA is for citizens seeking records held by others, not for an entity to access its own files.

Background and statutory framework

Arkansas's absentee ballot statute, § 7-5-404, requires the county clerk to verify absentee applications by comparing the signature on the application to the signature on the voter's registration application. Act 736 of 2021 left that requirement in place. The voter registration application is the legal benchmark for signature comparison; the poll book serves a different function (recording voter identity at the polls).

Amendment 51, section 12 of the Arkansas Constitution governs what happens when registration records are lost or destroyed. The county clerk may prepare temporary copies for the conduct of an election, but the voter must be notified and may need to re-register. The previous registration is canceled within 60 days of notice.

Amendment 55, section 3 grants the county judge custody of county property. Ark. Code Ann. § 14-14-1102(b)(3)(A) implements that authority. But the constitutional right of suffrage in Article 3, section 5, the election commission's authority over vote centers in § 7-1-113(a), the county clerk's duty over early voting in § 7-5-401, and the open-meetings provisions of § 7-4-105(b) and the FOIA all impose limits.

The Arkansas FOIA, Ark. Code Ann. § 25-19-101 et seq., provides public access to records and meetings of governmental bodies. Section 25-19-105(a)(1)(A), as amended by Act 310 of 2021, opens public records to inspection and copying by any citizen of the State of Arkansas during the regular business hours of the custodian.

Citations

• Ark. Code Ann. § 7-5-404 (absentee ballot signature verification)
• Ark. Code Ann. § 7-5-409(a)(2) (rejected applications referred to commission)
• Ark. Const. amend. 51, § 12 (lost registration records)
• Ark. Const. amend. 55, § 3 (county judge custody of property)
• Ark. Const. art. 3, § 5 (right of suffrage protected)
• Ark. Code Ann. § 14-14-1102 (county judge property authority)
• Ark. Code Ann. § 21-8-402(18) (definition of public servant)
• Ark. Code Ann. § 7-1-103 (campaign activity by public servants)
• Ark. Code Ann. § 7-5-401 (county clerk and early voting)
• Ark. Code Ann. § 7-1-113 (vote centers)
• Ark. Code Ann. § 7-5-416 (absentee ballot canvassing)
• Ark. Code Ann. § 7-4-105(b) (election commission meetings public)
• Ark. Code Ann. § 25-19-105 (FOIA)
• Ark. Code Ann. § 25-19-106 (FOIA open meetings)
• Dotson v. Richey, 211 Ark. 789 (1947)

Source

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

Original opinion text

Opinion No. 2020-054
August 4, 2021
The Honorable Mark Johnson
State Senator
P.O. Box 241022
Little Rock, AR 72223

Dear Senator Johnson:

This is in response to your request for an opinion on a number of questions concerning elections, campaign activities, the powers of the county judge, the Arkansas Freedom of Information Act, and the county election commissions. I have restated your questions and will address them in the order posed.

Question 1: Can the county clerk use poll books to compare absentee application signatures in lieu of the voter registration application under Ark. Code Ann. § 7-5-404?

No, the county clerk may not use poll books to verify signatures for absentee ballots. Section 7-5-404 of the Arkansas Code requires the county clerk to verify applications for absentee ballots by comparing the signature on the ballot application with the voter's "signature from the voter registration application."

1) If not, should the voter be provided an absentee ballot?

Your question seems to suggest that if the county clerk is not permitted to use a poll book to verify the signature on an absentee ballot application, then the voter should not receive an absentee ballot. That is not the case. Rather than denying the voter a ballot, the county clerk should compare the signature on the absentee ballot application with the signature on the voter registration application. If the signatures on those documents are similar, the clerk must provide the voter with an absentee ballot, provided there are no other deficiencies with the application. If the signatures are not similar, the county clerk should not provide an absentee ballot to the voter.

2) If the county clerk is in error for not maintaining the permanent record of the voter, can the county clerk request the voter complete a new voter registration application, while maintaining the original applied date and use the new signature for comparison to the absentee application for best practice, while also fulfilling the requirements of Ark. Code Ann. § 7-5-404?

Amendment 51, section 12 of the Arkansas Constitution details the steps a county clerk must take if a voter's registration records have been lost or destroyed. That section provides in relevant part that if a registration record has been "lost or destroyed," the county clerk "shall prepare, from the remaining Files, temporary copies of the registration records if necessary for the conduct of any election." Thus, the clerk could use files from a poll book to prepare a temporary registration record for the voter. But the clerk cannot use files from a poll book to conduct the necessary signature verification required by subsection 7-5-404(a). Instead, the clerk must notify the voter of the lost or destroyed voter registration application so that the "voter may register again." The voter's previous registration would be "cancelled at the time of the new registration, and in any event within sixty (60) days after mailing of such notice."

Question 2: Are county employees required to take leave to perform campaign functions or participate in campaign activities, including but not limited to attending campaign events, virtual or in-person, holding signs for candidates, hosting or attending fundraisers, or any other event that is for the purpose of promoting a candidate or ballot issue?

Yes, because "county employees" are "public servants," they may not conduct campaign activities during office hours. Thus, as relevant here, during work hours, county employees may not campaign for a candidate, circulate or solicit signatures on "an initiative or referendum petition," or distribute campaign materials. Nor may they otherwise use government property to promote or oppose a campaign.

Question 3: Part 1: Do the powers provided to the county judge where he or she may limit access to county buildings under Ark. Code Ann. § 14-14-1102 also expand to limiting or denying access to the public during an election when the building is:

1) The location is an early vote site;

The county judge's authority to manage county property cannot unduly interfere with early voting. As the custodian of county property, the county judge has general authority to manage county property. But that authority is not absolute. Rather, the nature and extent of that authority depend on the circumstances.

Here, that authority is limited by the county clerk and election commission's duty to conduct early voting. The county clerk is charged with overseeing early voting, and he or she must be furnished with a suitable room at the county courthouse or other location to conduct early voting. The election commission may also vote to open other early voting locations, and where the election commission authorizes off-site early voting on all the days and times required by law, the county clerk may choose not to hold early voting in his or her office. Additionally, under the Arkansas Constitution, the county judge may not take any action that interferes to prevent the free exercise of a qualified elector's right of suffrage. Thus, as relevant here, where the county clerk is overseeing early voting, the county judge may not unduly interfere with the execution of that duty.

2) The location is an election day vote center;

Vote centers are polling sites where a voter from any precinct in the county may vote on election day. If the quorum court adopts an ordinance establishing vote centers, the election commission may establish vote centers. Except for school elections, a vote center location for each election must be the same as that established for the immediately preceding general election unless changed by order of the county clerk or election commission. The county clerk or election commission cannot change a vote center location for any precinct less than 30 days before an election except in the event of an emergency.

Additionally, vote centers must remain open the entire time the polls are open on election day. Therefore, the county judge would not be able to limit or deny voters access to a vote center on election day, nor would the judge otherwise be able to interfere with the county clerk's or election commission's authority regarding the designation of vote centers.

3) The location is where absentee ballots are canvassed;

The election commission is responsible for designating the location where election officials meet to canvass absentee ballots. At least twenty days before each preferential primary and non-partisan general election and at least ten days before the holding of each general primary, general runoff, school, or special election, the election commission must give public notice of the time and location of the opening, processing, canvassing, and counting of absentee ballots. The processing and counting of absentee ballots is open to the public, and candidates or poll watchers may be present to observe the canvass. The processing, counting, and canvassing of the absentee ballots takes place under the supervision and direction of the election commission. No person, including the county judge, may interfere with the canvass.

4) The location is where the election commission holds meetings; and

Any meeting of two or more commissioners where official business is conducted is a public meeting, and a county judge may not deny the public access to such a meeting. But as is always true, "[t]he right to attend a meeting is subject to reasonable restrictions, such as a limited-seating capacity or procedural regulations aimed at ensuring that an agency's business is conducted in an orderly manner."

5) The location is where the hearings are heard for voters.

I take this question to be asking about hearings to consider rejected provisional ballots. Whenever a person casts a provisional ballot, the election commission must determine whether that ballot is valid. If the ballot is preliminarily determined to be invalid, the election commission shall notify the provisional voter and hold an administrative hearing regarding his or her eligibility to vote in the election. At that time, the provisional voter may appear to contest the election commission's initial decision and provide relevant evidence on his or her behalf.

Any action by the county judge would need to take into consideration the election commission's duty to hold hearings for provisional voters whose ballots have preliminarily been rejected. Thus, while a county judge might be able to impose some limitations on the use of county property, including rooms where hearings may be held, whether such limitations are permissible would depend on the surrounding facts and circumstances.

Part 2: And is this a violation of the Arkansas Freedom of Information Act?

Under the open public meetings section of the Arkansas Freedom of Information Act (FOIA), except as otherwise specifically provided, all meetings of county governing bodies and their political subdivisions are public meetings. As noted above, the county board of election commissioners is one such body, and any meeting of two or more commissioners when official business is conducted must be public and comply with the FOIA. Thus, when the election commission holds a meeting to conduct official business, including when it meets to canvass absentee ballots or determine whether a provisional ballot should be counted, that meeting must be open to the public to comply with the FOIA.

However, the other two situations you have asked about, early voting at polling sites and voting on election day at vote centers, would not be subject to the open meetings requirement under the FOIA. Voting at a polling site, including a vote center, does not involve a meeting of a governing body. Furthermore, polling sites are not open to the general public (who aren't voting) during voting hours on election day or during early voting.

Question 4: Do the powers provided to the county judge where he or she may limit access to county buildings under Ark. Code Ann. § 14-14-1102 also expand to limiting or denying access to the public during public meetings under the Arkansas Freedom of Information Act?

No, the meetings of "governing bodies" that fall within the FOIA's purview must be open to the public. A judge's custodial power does not allow him or her to deny the public access to a public meeting. However, situations may arise where a judge's exercise of custodial power affects the format of a public meeting. For example, if the Governor has declared an emergency and the county has limited the public's access to county property, a governing body may consequently decide to hold a public meeting in a digital format, rather than in person.

Question 5 & 6: Do the powers provided to the county judge where he or she may limit access to county buildings under Ark. Code Ann. § 14-14-1102 also expand to denying access to the county board of election commissioners to the county election commission offices during normal business hours or during their scheduled meeting times? Do the powers provided to the county judge where he or she may limit access to county buildings under Ark. Code Ann. § 14-14-1102 also expand to denying access to the county election commission to present their budget and answer questions to the Quorum Court during Budget Meetings?

I have grouped these questions together because they involve the same issue concerning the scope of the county judge's custodial power under Amendment 55, section 3 of the Arkansas Constitution and Ark. Code Ann. § 14-14-1102. As noted above, the extent of the county judge's authority to manage county property necessarily depends on the facts and circumstances of a given situation. I can opine generally, for example, that a county judge would probably be able to restrict the election commissioners' use of election commission offices while those offices are being renovated, but it's less likely that a county judge could bar all commissioners from attending a quorum court budget meeting. However, the factual nature of your questions prevents a more comprehensive response. I can only reiterate that the county judge must take into consideration the duties and responsibilities of other elected officials and county employees and that the county judge's management of county property cannot unduly interfere with the performance of their duties.

Question 7: Do the county board of election commissioners have to bring up a full vote to simply request any documents from commission staff who have been removed from their authority to the county's supervision for documents that are already public, but also under the name of the county board of election commissioners?

I take your question to be asking about the procedure the election commission must follow in order to access public records once it is no longer the custodian of those records.

The FOIA states:

Except as otherwise specifically provided by this section or by laws specifically enacted to provide otherwise, all public records shall be open to inspection and copying, including without limitation copying through image capture, including still and moving photography and video and digital recording, by any citizen of the State of Arkansas during the regular business hours of the custodian of the records.

Therefore, if a document is a public record and no exemption prohibits the document's release to an Arkansas citizen, then any member of the election commission would have a right, as a citizen of the state, to review the record under the FOIA. The election commission would not be required to hold a vote to obtain the record.

Questions 8, 9, & 10: Does the county board of election commissioners have the right to their contracts, bills, day-to-day operations and processes under the Arkansas Freedom of Information Act? Does the county board of election commissioners have a right to access all documents, buildings, social media platforms, and so forth bearing their name? Does the county board of election commissioners have the authority to review contracts under their purview?

I have grouped these questions together because their subject matter overlaps. To the extent you are asking about the election commission's ability to access its own contracts, bills, and other such documents, common sense dictates that the commission need not invoke the FOIA to review these records. Rather, the commission would have access to its own records in the course of performing its statutory duties. This would include records that are maintained on the election commission's own social media account.

With respect to Question 9, no state law grants the election commission the right to access a document, location, or social media platform simply because it bears the election commission's name. If the document or account bearing the commission's name belongs to the commission, then, as I've stated above, the commission would have a right to access that document or account in the course of performing its duties. If the document or account bearing the commission's name does not belong to the commission but is otherwise a public record not subject to any exemptions, the commissioners would have a right to access that record under the FOIA, as explained in response to Question 7.

Finally, regarding buildings bearing the commission's name, there may be some instances where an election commission is restricted from using its own commission offices, such as those discussed in my response to Questions 5 and 6. But generally speaking, the commission would have a right to access its own offices in order to perform its statutory duties.

Sincerely,

LESLIE RUTLEDGE
Attorney General