Did the Arkansas AG certify the proposed 2024 Absentee Voting Amendment?
Plain-English summary
Clinton Lancaster submitted a proposed constitutional amendment to substantially rewrite Arkansas's absentee-voting framework. The amendment would amend Amendment 50 (which currently permits voting machines) to add detailed absentee-voting procedures.
The proposal, as substituted and certified, would:
- Declare absentee voting a privilege, not a right. This was in the text but missing from the submitted ballot title; the AG added it.
- Restrict eligibility. Absentee ballots only available to registered voters who are physically absent from their county on election day, hospitalized, incarcerated, or in a long-term care facility.
- Restrict distribution timing. Absentee ballots may be distributed only within 30 days before election day.
- Prohibit ballot harvesting. No one may touch, handle, or possess an absentee ballot except: the requesting voter, an individual assisting a disabled voter, USPS, or a duly authorized election official.
- USPS-only return for disabled-voter assistance. A person assisting a disabled voter must return that ballot via USPS, not by hand-delivering it to the county clerk's office.
- Block real-time tracking of absentee ballots by anyone other than the voter or the election official confirming receipt.
- Protect requester information. Information about who has requested an absentee ballot is protected.
- Election-day counting only. Absentee ballots must be counted on election day before early-voting or election-day votes are counted. Absentee ballots not physically present at the close of polls are not counted.
- No internet, Bluetooth, or wireless connection. Any election in Arkansas may not be conducted using internet, Bluetooth, or wireless connections.
- Strict-conformity requirement. Absentee ballots that do not strictly conform to the amendment must not be counted.
- Exemptions. Amendment 51 § 9(i) (which allows certain groups to vote absentee without prior registration) and overseas voters under the federal Uniformed and Overseas Citizens Absentee Voting Act are exempted from the amendment.
- Fund the implementation. The General Assembly must allocate funding.
The AG's substitutions were significant. The original popular name was a 60+ word description that "reads more like a second ballot title than a popular name." The AG substituted a clean "The Absentee Voting Amendment of 2024."
The AG added five material provisions to the ballot title that the sponsor had omitted but were in the text (and would give voters "serious ground for reflection"): the privilege-vs-right declaration, the touching/handling/possessing prohibition (the original ballot title only said "ballot harvesting"), the USPS-only requirement for disabled-voter assistance, the no-counting-after-poll-close rule, and the Amendment 51 § 9(i) and overseas-voter exemptions.
The AG also flagged a potential issue with the enacting clause. The sponsor's text reads: "BE IT ENACTED BY THE PEOPLE OF THE STATE OF ARKANSAS AS AN AMENDMENT TO THE ARKANSAS CONSTITUTION AND NOT AN INITIATED BILL OR REFERENDUM." The AG noted that constitutional amendments don't require enacting clauses (Mertz v. States, U.S. Term Limits v. Hill), and that the clause's wording is novel. The AG declined to reject on this ground but flagged that a court could find the clause inherently misleading.
The AG made one substantive grammatical change: "all elections" became "any election" in the no-internet/Bluetooth/wireless provision, because "all" suggests some elections may use those connections so long as not all of them do, while the text actually prohibits use in any election.
The instructions to canvassers and signers under A.C.A. § 7-9-108 must precede every petition before circulation.
What this means for you
Voters with absentee needs
If this amendment had passed, your eligibility for an absentee ballot would have been substantially narrowed:
- You would qualify only if (a) physically absent from your county on election day, (b) hospitalized, (c) incarcerated, or (d) in a long-term care facility within your county.
- The general "I will be away from home" qualification would no longer suffice.
- You would have to request your ballot within the 30-day pre-election window.
If your circumstances do not fit one of the four eligibility categories, you would have to vote in person on election day or during early voting.
Election officials
The amendment would impose substantial operational changes:
- Absentee-ballot eligibility verification would tighten.
- Real-time ballot-tracking systems for absentee ballots would have to be turned off (except for the voter's own status check and election-official receipt confirmation).
- Election-day counting must be sequenced: absentee first, then early voting and election day.
- Ballots not physically present at poll close are not counted, regardless of postmark date.
- No internet, Bluetooth, or wireless connection in any election operation.
The "no electronic transmission" provision is particularly broad. It would affect not just ballot transmission but vote tabulation, electronic poll books, and any other election system that uses wireless connectivity.
Disabled voters and advocates
The USPS-only return requirement for disabled-voter assistance is a significant change. Currently, an assistant can return a disabled voter's ballot in person to the clerk's office. Under the amendment, that route would be blocked; only USPS mail return would be permitted.
This may create access barriers for disabled voters in rural areas with limited postal service or for voters whose disability makes timely mail handling difficult. Advocates should track whether the amendment's "individual assisting a disabled voter" definition is broad enough to cover the actual range of caregiver and family scenarios.
Military and overseas voters
The amendment exempts Amendment 51 § 9(i) ballots and ballots under the federal Uniformed and Overseas Citizens Absentee Voting Act. Military and overseas voters would continue to use their existing federal-law procedures without disruption.
Ballot initiative sponsors
This certification is a model for sponsors who submit complex election-law amendments:
- The AG's substitution authority on popular names is broad. If your name is too long, expect a substitution.
- Material text provisions must be summarized in the ballot title. Omissions get added by the AG (here, five separate additions).
- "All" vs. "any" in prohibitions is a known distinction. Use "any" when the prohibition is universal.
- The enacting-clause question for constitutional amendments is open. The AG flagged it but did not reject. Sponsors should anticipate possible court challenges on this point.
Election law attorneys
The "strict conformity" requirement for absentee ballots is stringent. Any procedural deviation could disqualify a ballot. Litigation over what counts as strict conformity is likely if the amendment passes.
The Bailey v. McCuen "essential facts" doctrine is the basis for the AG's five material additions. Cite this opinion when arguing that a sponsor's submitted ballot title should be substituted to add omitted essential facts.
Common questions
Did this amendment pass?
The opinion only certifies the popular name and ballot title for circulation. The November 2024 election outcome is a separate question.
What is "ballot harvesting"?
The collection of completed absentee ballots from voters by third parties for delivery to election officials. Some states prohibit it broadly; this amendment would prohibit it in Arkansas with narrow exceptions.
What is Amendment 51 § 9(i)?
A subsection of Amendment 51 (Voter Registration) that allows certain groups (military members, overseas citizens, voters with disabilities, etc.) to vote without prior registration. The amendment exempts this from its restrictions.
What is the Uniformed and Overseas Citizens Absentee Voting Act?
A federal law guaranteeing absentee voting rights for military members and U.S. citizens living abroad. The amendment exempts ballots under this federal scheme.
What does "no internet, Bluetooth, or wireless connection" actually prohibit?
The ballot title says no public election in Arkansas may be "conducted using" those connections. The text says the "selecting of votes for a candidate or issue, casting of ballots, tabulation of votes for a ballot, or tabulations pertaining to ballots" cannot be done with those connections. Wireless poll books and tabulation networks would have to be replaced with hard-wired systems.
What is the enacting-clause issue?
Constitutional amendments don't require an enacting clause (only initiated acts do). The sponsor's text includes an enacting clause that explicitly says "as an amendment and not an initiated bill or referendum." The AG flagged that a court could still find the clause inherently misleading, but declined to reject on this ground.
Background and statutory framework
A.C.A. § 7-9-107(d)(1). AG substitution authority for popular name and ballot title.
A.C.A. § 7-9-108. Mandatory canvasser-and-signer instructions on petitions.
Ark. Const. amend. 50. Currently authorizes voting machines and is the constitutional anchor the proposed amendment would modify.
Ark. Const. amend. 51. Voter Registration; § 9(i) addresses certain unregistered-voter pathways.
Federal UOCAVA. 52 U.S.C. § 20301 et seq. Uniformed and Overseas Citizens Absentee Voting Act.
Bailey v. McCuen, 318 Ark. 277, 884 S.W.2d 938 (1994). Essential-facts requirement for ballot titles.
Mertz v. States, 318 Ark. 390 (1994); U.S. Term Limits v. Hill, 316 Ark. 251 (1994). Enacting clauses are required for initiated acts but not for constitutional amendments.
Prior opinion. Opinion 2023-109 addressed the first version of this amendment, with the AG's substitution rationale set out in detail.
Citations
- A.C.A. § 7-9-107 (review framework)
- A.C.A. § 7-9-107(d)(1) (substitution authority)
- A.C.A. § 7-9-108 (canvasser instructions)
- Ark. Const. amend. 50, amend. 51, art. 5 § 1
- Bailey v. McCuen, 318 Ark. 277, 884 S.W.2d 938 (1994)
- Mertz v. States, 318 Ark. 390, 885 S.W.2d 853 (1994)
- U.S. Term Limits, Inc. v. Hill, 316 Ark. 251, 872 S.W.2d 349 (1994)
- Ark. Att'y Gen. Op. 2023-109 (prior version of the same amendment)
Source
Original opinion text
Opinion No. 2023-132
January 11, 2024
Clinton W. Lancaster
Attorney at Law
900 South Shackleford Road, Suite 300
Little Rock, Arkansas 72211
Dear Mr. Lancaster:
I am writing in response to your request, made under A.C.A. § 7-9-107, that I certify the popular name and ballot title for a proposed constitutional amendment.
The submitted popular name was a 60+ word description of the amendment ("An Amendment to the Arkansas Constitution to set the time for absentee voting, create absentee voting procedures, determine the manner in which absentee ballots are counted or tabulated, and ensure that elections cannot be conducted in this state using an internet, Bluetooth, or wireless connection"). The submitted ballot title described amending Amendment 50 to set 30-day pre-election distribution, narrow eligibility (physical absence, hospitalization, incarceration, long-term care), restrict possession of ballots to listed individuals, prevent ballot tracking, protect requester information, ensure absentee counting on election day before other ballots, prohibit electronic transmission, require strict conformity for ballots to be counted, and direct General Assembly funding.
The AG noted that the popular name "is so long that it reads more like a second ballot title than a popular name" and substituted a more suitable name. The AG also identified several material provisions in the text that did not appear in the ballot title but would likely give voters "serious ground for reflection," including:
- Declaring absentee voting a privilege, not a right;
- Prohibiting anyone from touching, handling, or possessing an absentee ballot except for certain listed individuals;
- Requiring an assistant of a disabled voter to return the ballot via USPS rather than in person at the county clerk;
- Prohibiting counting of absentee ballots not physically present at poll close; and
- Exempting Amendment 51 § 9(i) and UOCAVA ballots from the amendment.
The AG added these to the ballot title.
The AG also changed "all" to "any" in the no-internet/Bluetooth/wireless provision, because the text prohibits use in any election rather than just preventing all elections from using such connections.
The AG flagged but did not reject on the enacting-clause issue: the sponsor's enacting clause ("BE IT ENACTED BY THE PEOPLE OF THE STATE OF ARKANSAS AS AN AMENDMENT TO THE ARKANSAS CONSTITUTION AND NOT AN INITIATED BILL OR REFERENDUM") is unusual. Constitutional amendments don't require enacting clauses (Mertz v. States; U.S. Term Limits v. Hill), but the AG could not say the wording was inherently misleading. The AG noted a court could find otherwise.
With these changes, the AG substituted and certified:
Popular Name: The Absentee Voting Amendment of 2024
Ballot Title: An amendment to the Arkansas Constitution declaring that absentee voting in the state of Arkansas is not a right but a privilege; amending Amendment 50 to add additional sections effectuating a policy and practice in which absentee ballots may only be distributed within the 30 days before election day, limited to only registered voters who are unable to be present at the polls on election day because they are physically absent from the county in which they are registered to vote, or they are hospitalized, incarcerated, or in a long-term care facility within the county in which they are registered to vote; requiring the county clerk to distribute an absentee ballot only to a requesting and qualified voter; prohibiting absentee ballot harvesting by limiting the touching, handling, or possessing of absentee ballots to the requesting voter, an individual assisting a disabled voter, the United States Postal Service, or a duly appointed and authorized election official; allowing an individual assisting a disabled voter to return the disabled voter's absentee ballot to the county clerk's office only by placing the voted ballot into the custody of the United States Postal Service but not by returning the ballot in person at the physical office of the county clerk; preventing the tracking of absentee ballots once they have been sent or provided to the voter unless the voter is tracking his or her own ballot or verifying that his or her cast absentee ballot has been received by a duly authorized election official; protecting information about who has requested an absentee ballot; ensuring that all absentee ballots are counted on election day before the early or election day votes are counted; prohibiting the counting of any absentee ballots not physically present and in the canvassing or tabulation process by the close of the polls on election day; exempting Ark. Const. amend. 51, § 9(i), which allows certain groups of citizens to vote without prior registration by absentee ballot, and any ballots requested, obtained, cast, canvassed, or counted pursuant to the federal Uniformed Overseas Citizens Absentee Voting Act from the terms of this amendment; prohibiting any election in this state from being conducted using an internet, Bluetooth, or wireless connection; requiring that absentee ballots and absentee voting that does not strictly conform to the requirements of this amendment not be counted; and directing the Arkansas General Assembly to allocate funding to effectuate and implement the terms of this amendment.
Under A.C.A. § 7-9-108, instructions to canvassers and signers must precede every petition.
Senior Assistant Attorney General Kelly Summerside prepared this opinion, which I hereby approve.
Sincerely,
TIM GRIFFIN
Attorney General