Can the public request to inspect or copy voted ballots after an election under the Arkansas FOIA?
Plain-English summary
State Representative Brandt Smith asked whether members of the public can use the Arkansas FOIA to inspect or copy voted ballots from an election. The AG said no.
The Arkansas FOIA contains an explicit exemption for ballots in A.C.A. § 25-19-105(b)(27)(A): "ballots, other than sample ballots, [shall not be deemed to be made open to the public]...unless otherwise ordered by a court of law." Sample ballots (the unmarked specimens distributed before an election so voters can see what the ballot will look like) are open. The actual voted ballots are not.
The exemption has one carve-out for poll watchers in § 25-19-105(b)(27)(B): a poll watcher during an election may inspect a voter statement and ballot while ensuring secrecy, subject to State Board of Election Commissioners restrictions.
After the election, voted ballots are stored under A.C.A. § 7-5-702. The package containing them cannot be opened except:
- By order of a competent tribunal in an election contest or prosecution where the ballots are evidence; or
- By written instruction signed by the Director of the State Board of Election Commissioners under § 7-4-121.
The exemption protects ballot secrecy, which is a foundational principle of Arkansas elections. The AG's analysis is short and clear: the statute is explicit, and the framework integrates with the post-election storage rules.
What this means for you
Public records requesters and citizens curious about specific ballots
You cannot get voted ballots through a FOIA request. The exemption is unambiguous. If you are interested in election integrity questions, the available paths are:
- Sample ballots: openly available before an election.
- Election results, vote tallies, and tabulation reports: typically public, but check the specific record's classification.
- Audit trails and machine logs: subject to their own statutes; some are public, some are not.
- Poll watcher position: requires party or candidate sponsorship and registration with the county election commission.
- Court order: a litigant in an election contest can ask the court to open the ballots for evidentiary purposes.
County election commissions and county clerks
Apply the exemption uniformly. A FOIA request specifically for voted ballots should be denied with citation to A.C.A. § 25-19-105(b)(27)(A). If the request is ambiguous (e.g., "all election records"), respond with what is releasable (sample ballots, results, certifications, etc.) and exempt the voted ballots specifically.
For storage: follow A.C.A. § 7-5-702. The package cannot be opened informally. If a court issues an order in an election contest, comply with the order. If you receive a § 7-4-121 written instruction from the Director of the State Board, follow the instruction.
Election integrity advocates and journalists
Voted ballots are not the only path to evaluating election outcomes. Election results by precinct, machine logs (subject to statute), audit reports, certified ballot counts, candidate filings, campaign finance reports, and poll watcher reports are all available through other channels. Build the investigative approach around those records, not around the voted ballots themselves.
If a recount is needed, the proper path is a candidate-initiated recount under Arkansas election law, not a FOIA request. If a contest is needed, file in the proper court and request opening of ballots as part of evidentiary process.
Poll watchers
Your inspection rights during the election are statutory under § 25-19-105(b)(27)(B). State Board of Election Commissioners rules may impose specific procedures (registration, ID requirements, conduct rules). Confirm your rights and obligations with the county election commission before election day.
Election attorneys representing candidates or parties in contests
The path to opening ballots is a court order in an election contest. Build the petition with specific allegations of irregularity and request the opening as evidentiary discovery. The court applies the § 7-5-702 framework. Without a contest or a § 7-4-121 instruction, ballots stay sealed.
State legislators considering ballot transparency reforms
The current framework prioritizes ballot secrecy over post-election public inspection. If you want to amend, the question is whether and how to balance secrecy and transparency. Some states allow post-election ballot images or ballots-with-redactions. Each balance has trade-offs. Consult with the Arkansas State Board of Election Commissioners and election-law experts before drafting.
News reporters covering election controversies
When a controversy arises about specific ballots, your access route is one of:
- A court order in an election contest you cover.
- Public records that do not implicate the ballot exemption (results, certifications, audit reports, machine logs as available).
- Poll watcher reports.
- Interviews with elections officials about the procedures used.
A direct FOIA request for ballots will produce a denial.
Common questions
Are sample ballots public?
Yes. The exemption explicitly excludes sample ballots. They are typically available from the county election commission before the election.
What about absentee or mail ballots after counting?
The exemption applies to "ballots, other than sample ballots," which covers voted absentee/mail ballots once cast and counted. They are sealed under the same § 7-5-702 framework after the election.
Can a candidate get the ballots?
Not by FOIA. A candidate involved in a contest or prosecution can seek a court order. Outside that, the same exemption applies.
What about election judges and poll workers?
Their access is governed by their official duties. They handle ballots during the election and storage. They are not "the public" for FOIA purposes during their official conduct.
How long are voted ballots stored?
Federal and state retention periods apply (federal elections: 22 months under 52 U.S.C. § 20701). State periods may be longer or shorter for state-only elections. Check current Arkansas State Board of Election Commissioners rules for specifics.
What is a § 7-4-121 written instruction from the Director?
A.C.A. § 7-4-121 authorizes the Director of the State Board of Election Commissioners to issue written instructions to open the stored ballot package. The statute reflects a narrow administrative path for legitimate official purposes.
Does this opinion bind a court?
AG opinions are persuasive only. The exemption statute is clear and unlikely to be re-interpreted, but a court has the final word.
Background and statutory framework
FOIA framework:
- A.C.A. § 25-19-101 et seq.: Arkansas Freedom of Information Act.
- A.C.A. § 25-19-105(b)(27)(A): exempts ballots (other than sample ballots) from disclosure unless ordered by a court of law.
- A.C.A. § 25-19-105(b)(27)(B): poll watcher carve-out during the election.
Election-storage framework:
- A.C.A. § 7-5-702: storage of ballots and election materials; package cannot be opened except by court order in a contest or prosecution, or by § 7-4-121 written instruction from the Director of the State Board of Election Commissioners.
- A.C.A. § 7-4-121: authority of the Director of the State Board of Election Commissioners.
Federal context:
- 52 U.S.C. § 20701 (Civil Rights Act): 22-month federal retention for federal-election ballots.
Citations
- A.C.A. § 25-19-101 et seq. (FOIA)
- A.C.A. § 25-19-105(b)(27)(A) (ballot exemption)
- A.C.A. § 25-19-105(b)(27)(B) (poll watcher carve-out)
- A.C.A. § 7-5-702(c) (ballot storage)
- A.C.A. § 7-4-121 (Director's authority)
Source
Original opinion text
Opinion No. 2022-037
December 16, 2022
The Honorable Brandt Smith
State Representative
3501 Ridgeway Circle
Jonesboro, AR 72404-5005
Dear Representative Smith:
This is in response to your request for an opinion concerning voted ballots and the Arkansas Freedom of Information Act ("FOIA"). Specifically, you have asked:
Is a voted ballot subject to the Arkansas Freedom of Information Act?
RESPONSE
No, a voted ballot is not open to the public for inspection and copying under the provisions of the FOIA.
DISCUSSION
Given the context of your question, I take it that you are asking about ballots used by the public in an election, not ballots used by a governing body subject to the FOIA. With this understanding, the law is clear that voted ballots are exempt from disclosure under the FOIA, which provides, "...the following shall not be deemed to be made open to the public under the provisions of this chapter.... [b]allots, other than sample ballots, unless otherwise ordered by a court of law." This restriction "does not apply to a poll watcher during an election, who shall be allowed to inspect a voter statement and ballot while ensuring the secrecy of the vote is maintained and subject to reasonable restrictions prescribed by the State Board of Election Commissioners."
The FOIA exemption for ballots is consistent with state election law, which requires the storage and safekeeping of ballots, ballot stubs, certificates, and other election materials. As set forth in section 7-5-702, access to these materials is restricted:
During the time the ballots may be retained or stored, the package containing them shall not be opened by anyone unless:
(1) Directed to do so by some competent tribunal before which an election contest or prosecution is pending in which the ballots are to be used as evidence; or
(2) Upon written instruction signed by the Director of the State Board of Election Commissioners under § 7-4-121.
In light of the foregoing, the answer to your question is "no." A voted ballot is not open to the public for inspection and copying under the FOIA.
Sincerely,
LESLIE RUTLEDGE
Attorney General