Can an Arkansas political party hold a closed primary by party rule alone, and add candidate qualifications?
Plain-English summary
Senator Hammer asked two questions about how Arkansas closed primaries would work mechanically, and what authority political parties have to add their own rules for participation and candidate eligibility.
Question 1: Can a party hold a closed primary without new legislation? Yes. The mechanics already exist. Voters can designate party affiliation on their voter registration application. Today, about 12% of Arkansas voters have done so; 88% have not. A party wanting to close its primary can use the existing party-affiliation field to determine voter eligibility. No new legislation, no new infrastructure.
About 88% of Arkansas voters have no party affiliation on file. If a party closes its primary, those voters would be excluded by default unless they update their registration before the deadline. The voter registration form does what registration forms do: serves as initial application, change of address, change of name, and change of party affiliation.
Sub-question on registration deadline. Arkansas requires 30-day pre-election voter registration. If a party wants to set a different (earlier) party-registration deadline, it can probably do so by party rule under A.C.A. § 7-7-307, which lets parties "establish by party rules additional qualifications" for primary voting (subject to the National Voter Registration Act and other federal law). But: a party-set deadline different from the state voter-registration deadline could create logistical problems and voter confusion. Other states with such deadlines have set them by statute, not by party rule. The cleaner path is legislation. Voter materials would also need to be updated to disclose the deadline (Ark. Const. Amend. 51, § 6(a)(2)(A)).
Constitutional limit. Even if a party sets a registration deadline, it cannot impose an undue burden on the right to vote in a primary. Kusper v. Pontikes (U.S. 1973) struck down an Illinois rule requiring voters to change party registration almost two years before a primary.
Question 2: Can a party add to the legal requirements for candidates? Unclear. A.C.A. § 7-7-201(b)(4) makes each party "responsible for determining the qualifications of candidates seeking nomination." That phrase is ambiguous: does "determining" mean (1) setting the qualifications, or (2) merely verifying that candidates meet statutory qualifications? Prior AG opinions (2006-015, 2004-106) flagged the ambiguity. No case law resolves it.
If "determining" means setting the qualifications, courts would likely uphold:
- Requiring a candidate to be registered with the party before filing.
- Requiring registration a set time before filing (not just on the day of filing).
- Requiring past primary participation as a precondition for filing.
But courts would likely strike down significantly more restrictive requirements. While parties have First Amendment associational rights, those rights are circumscribed when "the State gives the party a role in the election process" by, for example, allowing the party's candidates to appear on the general-election ballot with party endorsement (Lopez Torres). The state then "acquires a legitimate governmental interest in ensuring the fairness of the party's nominating process." Very strict candidacy requirements that functionally circumvent the state's prescribed primary process would likely be preempted by state law.
The bottom line: legislation is recommended for both the closed-primary mechanics (especially a different party-registration deadline) and candidate qualifications. Without legislation, the party can probably proceed under existing law for a closed primary, but candidate-qualification additions are legally risky.
What this means for you
State legislators
If your party (or any party) wants to formalize closed primaries in Arkansas, the legislative path is cleaner. Bills should address:
- Party-registration deadlines (when must a voter declare an affiliation to vote in that party's primary).
- Updates to voter-registration materials to disclose the deadlines.
- Whether parties can set additional eligibility rules and what limits apply.
- Whether parties can set additional candidate-qualification rules and what limits apply.
The AG's note that A.C.A. § 7-7-201(b)(4) is ambiguous on candidate qualifications is a clear flag for clarifying legislation. Without it, parties acting under their own rules invite litigation.
Political parties
You can hold a closed primary in Arkansas under existing law by using the voter-registration party-affiliation field. The mechanical question: do you accept any voter who has designated affiliation with you as of a specific date (say, the state voter-registration deadline 30 days before the election), or do you set an earlier party-registration deadline by party rule?
The earlier-deadline path is legally available but logistically risky. Kusper v. Pontikes set the constitutional outer limit: deadlines that effectively bar voters from changing affiliation are unconstitutional. A reasonable deadline (a few months) is probably defensible; a multi-year deadline is not.
If you want to add candidate-qualification rules (party registration, time-of-registration requirement, prior primary participation), the legal status is uncertain. Legislative clarification is the cleanest path. Acting under your own rules without statutory authority is a litigation invitation.
Candidates
If you are considering filing for a partisan office in Arkansas:
- Your party's filing requirements may include party rules (in addition to statutory rules). Confirm with the party.
- If your party has added candidate-qualification rules (party registration, etc.), confirm whether those rules have been legally tested.
- If you have not been registered with a party, confirm the party-registration deadlines for filing.
County clerks and election officials
If a party adopts a closed primary, your role in administering the primary changes:
- You will need to check voter party affiliation against the party's voter list.
- You will need to handle the 88% of voters with no party affiliation on file. Default options: exclude from primary, allow same-day update if state law permits, etc.
- Communication with voters before the primary is critical to manage expectations.
If a party adds candidate-qualification rules, your filing process may change. Coordinate with the party to ensure you have the necessary verification information.
Voters
If you have not designated a party affiliation and a party adopts a closed primary, you will be excluded from that party's primary unless you update your registration before the deadline. Update your voter registration to declare a party affiliation if you want to vote in that party's primary.
You can change your party affiliation as needed, subject to any party-set deadline that is legally valid. If a party tries to lock you out for an unreasonably long time after you change affiliation, you may have a constitutional challenge under Kusper.
Constitutional and election attorneys
The opinion is a clean catalog of authorities. Lopez Torres on party associational rights vs. state interest in primary fairness; Kusper on the constitutional outer limit of party-registration deadlines; Burdick v. Takushi and American Party of Texas v. White on state authority to require primaries.
The unresolved ambiguity in § 7-7-201(b)(4) is fertile ground for litigation. A party that adds candidate-qualification rules without legislative clarification will likely face challenge from a candidate who is excluded.
News media
Two practical takeaways for coverage of closed-primary debates:
- The mechanical infrastructure to close primaries already exists; the policy debate is mostly about whether to use it, not whether it's possible.
- The candidate-qualification side is the deeper unresolved question. A party can use party rules to require party registration before filing today, but the legal authority for stricter rules is not clear.
Common questions
If a party closes its primary today, what happens to the 88% of voters with no party affiliation?
They would be excluded from that party's primary unless they update their registration. The other party (or independent voters) might see this as effectively disenfranchising large segments of the electorate.
Can I change my party affiliation right before the primary?
You can update your voter registration up to 30 days before the election under Arkansas's general voter-registration deadline. If the party sets an earlier party-registration deadline, you'd need to make the change before that deadline. A constitutional challenge to an unreasonably early deadline is available under Kusper.
Why do other states have early party-registration deadlines?
Some states (Delaware, Kansas, Kentucky) set party-registration deadlines distinct from the voter-registration deadline. They do this by statute. Arkansas could do the same by statute, but party-rule efforts to do so are legally riskier.
Can a party require me to have voted in their previous primary to be a candidate?
Maybe. The legal status is unclear under § 7-7-201(b)(4). The AG predicts courts would uphold this if presented (because it's a moderate restriction tied to party loyalty), but it has not been tested.
What if I want to vote in one party's primary one year and a different party's the next?
You can change your party affiliation between primaries, subject to any party-set deadline. You cannot vote in both parties' primaries in the same election.
Are independent voters excluded from all primaries?
In a closed primary, yes (unless they declare affiliation before the deadline). In an open primary, no. Arkansas law currently allows parties to choose; in practice, Arkansas primaries have been open historically. A party that closes its primary creates a different default.
Background and statutory framework
Arkansas's primary-election framework is in A.C.A. ch. 7, subch. 7. Section 7-7-307 specifically authorizes parties to set primary qualifications by party rule. Section 7-7-201(b)(4) makes parties responsible for "determining the qualifications of candidates," but the meaning of "determining" is ambiguous.
Voter registration and party-affiliation designation are governed by Ark. Const. Amend. 51 and statutes implementing it. Section 5 lists voter registration agencies; section 5(b)(1) covers party affiliation; sections 9 and 10 cover deadlines and changes.
The federal National Voter Registration Act (52 U.S.C. §§ 20501 et seq.) sets minimum standards for voter registration. Party rules cannot override NVRA requirements.
The First Amendment associational analysis runs through Lopez Torres (parties have associational rights, but states have legitimate interests when granting parties a role in the election process). The constitutional limit on party-registration deadlines is from Kusper v. Pontikes (Illinois's two-year-look-back deadline was struck down).
State authority to require primaries comes from Burdick v. Takushi and American Party of Texas v. White. State authority to regulate elections more generally comes from Sugarman v. Dougall.
Other states use closed primaries with various designs: Florida (statutory closed primary, Fla. Stat. § 101.021), New York (registration deadline, N.Y. Elec. § 5-304(4)), Pennsylvania (registration deadline, Pa. Cons. Stat. § 1324(a)).
Citations
- A.C.A. § 7-3-101(a)(2) (parties prescribe qualifications for voting in primaries)
- A.C.A. § 7-7-103(a)(1) (party affiliation references)
- A.C.A. § 7-7-201 (general primary requirements)
- A.C.A. § 7-7-201(b)(4) (party determines candidate qualifications - ambiguous)
- A.C.A. § 7-7-201(d) (gap-filling rules)
- A.C.A. § 7-7-302(c), § 7-7-401(e)(2), § 7-9-302(c) (other party affiliation references)
- A.C.A. § 7-7-307 (party rules for primary participation)
- Ark. Const. Amend. 51, §§ 5(a), 5(b)(1), 6(a)(2)(A), 9(b), 9(c), 10(b)(2)
- 52 U.S.C. §§ 20501 et seq. (National Voter Registration Act)
- Sugarman v. Dougall, 413 U.S. 634 (1973)
- Burdick v. Takushi, 504 U.S. 428 (1992)
- American Party of Texas v. White, 415 U.S. 767 (1974)
- New York State Bd. of Elections v. Lopez Torres, 552 U.S. 196 (2008)
- Kusper v. Pontikes, 414 U.S. 51 (1973)
- Ark. Att'y Gen. Op. Nos. 2006-015, 2004-106 (prior opinions on § 7-7-201(b)(4) ambiguity)
Source
Original opinion text
Opinion No. 2023-030
July 11, 2023
The Honorable Kim Hammer
State Senator
1201 Military Road PMB 285
Benton, Arkansas 72015
Dear Senator Hammer:
I am writing in response to your request for an opinion on several election-related questions. Specifically, you have asked:
- For a political party to opt for a closed primary, would Arkansas have to offer party registration through our County Clerks' offices?
a. Would this require legislation to do this?
b. If a voter would have to be registered by party to vote in a primary, would the setting of a registration deadline [] require legislation?
c. Approximately 12% of the Arkansas voters have designated a party preference (88% have not). Is this considered party registration from a legal standpoint, or would legislation be necessary to bring about party registration in Arkansas?
Brief answer: No additional legislation would be needed because voters can already choose their party affiliation on voter registration forms, which they may obtain at a county clerk's office or one of several other locations. A political party could use this party affiliation to determine who is eligible to vote in that party's closed primary elections.
- Can a political party add to the legal requirements for a person to file for elected office?
a. For example, could a political party require that a person be registered with that party before filing?
b. Additionally, could a political party require that a person be registered a set amount of time before filing and not on the day of filing?
c. Further, could a political party require a person to have voted in that party's primary in the past to be eligible to file for office?
Brief answer: Because current law is unclear on whether a political party can add to the legal requirements for candidates, the law is also unclear on each of your subquestions.
DISCUSSION
A general overview of the applicable law may be helpful before turning to your specific questions. States enjoy broad authority to regulate elections. That includes the power to require political parties to hold primary elections to select their nominees. And consistent with that authority, many states impose statutory eligibility requirements for participating in political party primaries. Other states, like Arkansas, allow a political party's rules to prescribe qualifications for voting in that party's primary. Arkansas law might also allow a party, by rule, to prescribe candidate qualifications, but this is less clear.
Question 1: For a political party to opt for a closed primary, would Arkansas have to offer party registration through our County Clerks' offices?
a. Would this require legislation to do this?
b. If a voter would have to be registered by party to vote in a primary, would the setting of a registration deadline to register require legislation?
c. Approximately 12% of the Arkansas voters have designated a party preference (88% have not). Is this considered party registration from a legal standpoint, or would legislation be necessary to bring about party registration in Arkansas?
Currently, an Arkansas citizen may obtain a voter registration application from the county clerk's office, the Secretary of State's office, or several other voter registration agencies. This form serves not only as an initial application to register to vote but also as a means for voters to change their names, addresses, or party affiliations. In other words, a means for designating party affiliation is already offered through the county clerk's office, so additional legislation is not required.
A political party that opts for a closed primary may use the party affiliation designation on the voter registration application to determine whether a voter may vote in that party's primary election. In fact, most states that use closed or partially closed primaries allow voters to declare or change party affiliation on their voter registration application forms.
With respect to setting a party registration deadline, political parties "may establish by party rules additional qualifications to those established by § 7-7-201 for eligibility to vote in primary elections of the party," so long as those qualifications comply with the National Voter Registration Act of 1993 and do not otherwise conflict with the law. Arkansas requires a potential voter to submit an application to register to vote at least 30 days before an election to be eligible to vote in that election. Upon a change of legal residence from one county to another within the state, updated registration information must be received no later than four days before a scheduled election. By contrast, there is no legal deadline for when a person must signify party affiliation before an election, which makes sense, given that party affiliation is not currently required to vote in an election. Thus, one could argue that a political party may, by party rule, implement its own party registration deadline for primary elections, as being affiliated with the party by a certain date could be considered a "qualification" for eligibility to vote in a party's primary elections. Still, implementing such a requirement without legislation could present logistical problems or sow confusion among voters if the deadline for party registration is set earlier than the deadline for voter registration. Other states that have set a party registration deadline that differs from the voter registration deadline have done so by statute. At the very least, voter registration materials should include updated requirements for voting in primary elections, including any deadlines for party registration.
Question 2: Can a political party add to the legal requirements for a person to file for elected office?
a. For example, could a political party require that a person be registered with that party before filing?
b. Additionally, could a political party require that a person be registered a set amount of time before filing and not on the day of filing?
c. Further, could a political party require a person to have voted in that party's primary in the past to be eligible to file for office?
Under A.C.A. § 7-7-201(b)(4), "[e]ach political party" is "responsible for determining the qualifications of candidates seeking nomination by the political party." As one of my predecessors explained, it is unclear whether the phrase "for determining the qualifications of candidates" means that political parties have authority (1) to set those qualifications or (2) merely to verify that the candidates meet any existing statutory qualifications. No caselaw helps resolve the issue either. Therefore, legislative clarification is warranted.
Yet if a court were to interpret A.C.A. § 7-7-201(b)(4) as allowing a party to add its own candidate eligibility requirements, I believe the requirements you have asked about (i.e., registering a set amount of time before filing and voting in a previous party primary) would likely be upheld. A court, however, might strike down requirements that are significantly more restrictive. While a political party has a First Amendment right to limit its membership and choose a process for selecting candidates, these rights are circumscribed when the State "gives the party a role in the election process," such as by allowing a party the right to have its candidates appear with party endorsement on the general-election ballot. The state then "acquires a legitimate governmental interest in ensuring the fairness of the party's nominating process, enabling it to prescribe what that process must be." Thus, if a party created very strict candidacy requirements that functionally circumvented the state's prescribed primary process, those requirements would likely be preempted by state law.
Senior Assistant Attorney General Kelly Summerside prepared this opinion, which I hereby approve.
Sincerely,
TIM GRIFFIN
Attorney General