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 asked ten related questions about absentee voting, election work by county employees, county judges’ control of buildings, public meetings, and access to election commission records. The Attorney General answered each under the election and FOIA provisions in effect in 2021.

For an absentee ballot application, the county clerk had to compare the applicant’s signature with the voter-registration application, rather than a poll book. If the signatures were similar and no other deficiency existed, the clerk had to provide a ballot. If they were not similar, the clerk should not provide one. If a registration record had been lost or destroyed, Amendment 51 allowed temporary copies from remaining files as needed for an election, but poll-book files could not substitute for the required signature comparison. The clerk had to notify the voter of the loss so the voter could register again.

County employees, as public servants, could not conduct campaign activities during office hours or use government property to promote or oppose a campaign. The opinion addressed campaigning for candidates, circulating initiative or referendum petitions, and distributing campaign materials; it did not decide every off-duty scenario.

A county judge had general custody of county property, but that power depended on the situation and could not unduly interfere with other officials’ duties. The judge could not deny voters access to an election-day vote center, interfere with absentee-ballot canvassing, or bar the public from an election commission meeting. For early voting, the opinion prohibited undue interference. For provisional-ballot hearings, it said some property-use limits might be permissible depending on the facts. A vote-center location could be changed inside the 30-day period only in an emergency by the county clerk or election commission; the opinion did not give the judge that power.

An election commissioner could inspect nonexempt public records as an Arkansas citizen without a commission vote. The commission could access its own records in carrying out its duties, but a document or account did not become its property simply by bearing its name.

Currency note

This opinion was issued in 2021. 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

Could a clerk compare an absentee signature with a poll book?
No. The opinion said Ark. Code Ann. § 7-5-404 required comparison with the voter-registration application. Poll-book files could help prepare a temporary registration record after a loss, but could not serve as the signature benchmark.

What if the absentee application signature did not look similar?
The AG said the clerk should not provide an absentee ballot. This opinion did not describe a notice, cure, electronic-recording, or referral procedure for that result.

Could the county judge move a vote center during an emergency?
The opinion attributed the emergency change authority to the county clerk or election commission, and said the judge could not use property control to deny voters access or interfere with their designation authority.

Could the judge restrict access to a provisional-ballot hearing room?
Possibly. The AG said the judge had to account for the election commission’s duty to hold hearings, and whether a property-use limit was permissible depended on the surrounding facts and circumstances.

Were election commission meetings open to the public?
Yes, when two or more commissioners conducted official business. The opinion also said a public body could impose reasonable seating or order rules, and that an emergency property restriction could cause a governing body to meet digitally. Voting at a poll site or vote center was not itself an open meeting under FOIA.

Did commissioners need a vote to inspect public records?
No. Each commissioner had the same right as an Arkansas citizen to inspect nonexempt public records. The commission could also access its own records while performing its duties; a record bearing its name was not necessarily its property.

Background and statutory framework

The opinion applied Ark. Code Ann. § 7-5-404 to absentee signature checks and Amendment 51, section 12 to lost registration records. It distinguished the county judge’s custodial authority under Amendment 55, section 3 and § 14-14-1102 from the clerk’s and election commission’s statutory election duties. It also applied FOIA’s open-meeting rule to commission meetings and its public-records rule to commissioners’ individual access to records.

Citations

• Ark. Code Ann. § 7-5-404 (absentee applications)
• Ark. Const. amend. 51, § 12 (lost registration records)
• Ark. Const. amend. 55, § 3 (county property)
• Ark. Code Ann. § 14-14-1102 (county judge)

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