Can an Arkansas political party hold a closed primary by party rule alone, and add candidate qualifications?

Plain-English summary

Senator Kim Hammer asked whether Arkansas law already permits the party-affiliation registration needed for a closed primary and whether a political party may add requirements for candidates seeking its nomination. The Attorney General gave different answers to those two topics.

Closed-primary voting: Voters can already designate or change party affiliation on Arkansas voter-registration forms. The AG said a party could use that designation to decide who may vote in its closed primary; no additional legislation is required for this. The request reported that about 12% of Arkansas voters had designated a party preference at the time.

A party-affiliation deadline: The opinion says Arkansas has no legal deadline for signifying party affiliation before an election. A party may set additional primary-voting qualifications by rule if they comply with federal and state law. The AG said one could argue that this authority includes a party-affiliation deadline. He did not conclude that such a deadline is lawful. He warned that a deadline earlier than the voter-registration deadline could cause logistical problems or voter confusion, and said registration materials should reflect any new primary requirements.

Candidate qualifications: A.C.A. § 7-7-201(b)(4) makes parties responsible for “determining the qualifications” of candidates, but the AG found it unclear whether that means setting new requirements or checking existing statutory ones. He said no case law resolved the ambiguity and legislative clarification was warranted. If a court reads the statute to allow party-created candidate rules, he predicted the proposed prior-registration and prior-primary-voting requirements would likely be upheld. That prediction depends on the unresolved statutory question.

What this means for you

Political parties considering a closed primary

The opinion says existing affiliation designations may be used to determine voting eligibility, without new legislation. It leaves a proposed party-set affiliation deadline at the level of an argument, subject to the law governing voter registration and party primary rules.

Candidates and election officials

The AG did not decide whether a party can add the requested candidate-filing qualifications. His answer to each subquestion is that current law is unclear. The opinion recommends legislative clarification on that candidate-qualification issue.

Common questions

Must Arkansas enact party registration before a closed primary? No. The AG says voters can already choose party affiliation on voter-registration forms and a party can use that designation for a closed primary.

Can a party set an earlier deadline for affiliation by rule? The AG said the party-rule provision gives an argument for doing so, but did not settle the question. He identified possible logistical problems and voter confusion if the deadline precedes the general voter-registration deadline.

Does the opinion approve a deadline of a particular length? No. It gives no safe number of months or days. Footnote 13 cites Kusper v. Pontikes concerning a state law requiring a change of party registration almost two years before a primary.

Can a party require prior party registration before a candidate files? The AG said the governing statute is ambiguous about whether a party can add candidate requirements at all. His prediction that some proposed rules would likely survive applies only if a court first finds the party has that authority.

Background and statutory framework

A.C.A. § 7-7-307 permits party rules to add qualifications for voting in a party's primary if they comply with the National Voter Registration Act and other law. The opinion cites Arkansas Constitution Amendment 51 for voter-registration forms and deadlines. For candidate qualifications, it quotes A.C.A. § 7-7-201(b)(4) and cites earlier Attorney General Opinions 2006-015 and 2004-106. It also cites New York State Board of Elections v. Lopez Torres on the state's interest in the fairness of party nominations.

Citations

• A.C.A. § 7-7-307
• A.C.A. § 7-7-201(b)(4)
• Ark. Const. Amend. 51, §§ 5(a), 5(b)(1), 6(a)(2)(A), 9(b)–(c), 10(b)(2)
• 52 U.S.C. §§ 20501 et seq.
• Kusper v. Pontikes, 414 U.S. 51 (1973)
• New York State Bd. of Elections v. Lopez Torres, 552 U.S. 196 (2008)
• Arkansas Attorney General Opinions 2006-015 and 2004-106

Source

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

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:

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 [] 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.

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?
   The Honorable Kim Hammer
   State Senator
   Opinion No. 2023-030
   Page 2

           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. 1 That includes the power to require political parties to hold primary elections to select their nominees. 2 And consistent with that authority, many states impose statutory eligibility requirements for participating in political party primaries. 3 Other states, like Arkansas, allow a political party’s rules to prescribe qualifications for voting in that party’s primary. 4 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. 5 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. 6 In other words, a means

1
See Sugarman v. Dougall, 413 U.S. 634, 647 (1973).
2
See, e.g., Burdick v. Takushi, 504 U.S. 428, 433 (1992); American Party of Texas v. White, 415 U.S. 767, 781 (1974). 3 See, e.g., Fla. Stat. § 101.021 (establishing a closed primary system).
4
See A.C.A. § 7-7-307.
5
See Ark. Const. Amend. 51, § 5(a) (listing voter registration agencies).
6
Ark. Const. Amend. 51, § 5(b)(1).
The Honorable Kim Hammer
State Senator
Opinion No. 2023-030
Page 3

for designating party affiliation is already offered through the county clerk’s office, so additional legislation is not required. 7

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. 8

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 9 and do not otherwise conflict with the law. 10 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. 11 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. 12 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

7
Although you have asked about “party registration,” both the Arkansas voter registration application form and the Arkansas Code refer to “party affiliation.” See, e.g., A.C.A. §§ 7-7-103(a)(1), 7-7-302(c), 7-7-401(e)(2), 7-9-302(c) (referencing “party affiliation”). Colloquially, these terms are often used interchangeably, along with the term “party enrollment.” I gather that your question is asking whether legislation is needed to allow a voter to identify with a particular party for purposes of voting in a closed primary. But to the extent you are asking about terminology, legislation would be required to change the state’s use of “party affiliation” to “party registration.” 8 See, e.g., Fla. Stat. § 97.1031(2); N.Y. Elec. § 5-304(4); Pa. Cons. Stat. § 1324(a).
9
See National Voter Registration Act of 1993, 52 U.S.C. §§ 20501 et seq. (formerly 42 U.S.C. § 1973gg et seq.). 10 A.C.A. § 7-7-307; see also A.C.A. §§ 7-3-101(a)(2) (requiring organized political parties to prescribe the qualifications for voting in their party primaries); 7-7-201(d) (stating that when circumstances or procedures arise in connection with a primary election and there is no provision of the act that governs, the circumstances or procedures shall be governed “by the general election laws of this state or by party rules if there is no applicable general election law”). 11 See Ark. Const. Amend. 51, § 9(b)–(c).
12
See Ark. Const. Amend. 51, § 10(b)(2).
The Honorable Kim Hammer
State Senator
Opinion No. 2023-030
Page 4

voter registration deadline have done so by statute. 13 At the very least, voter registration materials should include updated requirements for voting in primary elections, including any deadlines for party registration. 14

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.” 15 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. 16 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. 17 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.” 18

13
See, e.g., Del. Code. Ann. tit. 15, § 2049; Kan. Stat. Ann. § 25-3304(b); Ky. Rev. Stat. Ann. § 116.055. Note that even when a state sets the party registration deadline for voting in a political primary, it may not impose an undue burden on an individual voter’s right to vote in a party primary. See Kusper v. Pontikes, 414 U.S. 51, 57 (1973) (overturning an Illinois state law that required voters wishing to change party registration to do so almost a full two years before a primary election). 14 See Ark. Const. Amend. 51, § 6(a)(2)(A) (requiring voter registration application forms to specify voter eligibility requirements). 15 A.C.A. § 7-7-201(b)(4). This provision also requires political parties to “provide necessary applications for candidacy, accept and process the applications, and determine the order of its ballot.” Id. 16 Ark. Att’y Gen. Op. Nos. 2006-015, 2004-106.
17
New York State Bd. of Elections v. Lopez Torres, 552 U.S. 196, 202–03 (2008).
The Honorable Kim Hammer
State Senator
Opinion No. 2023-030
Page 5

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

18
Id.