Why did the Arkansas AG reject the proposed 2024 hand-marked paper ballots constitutional amendment?
Plain-English summary
Clinton Lancaster (the same sponsor as the absentee-voting amendment in Opinion 2023-132) submitted a parallel constitutional amendment focused on election security through hand-marked paper ballots. The proposal would:
- Repeal or amend parts of Amendment 50 §§ 2 and 4 to remove the language permitting all elections to be conducted by voting machines.
- Require all elections to be conducted with secure paper ballots containing inherent security features, vote selections marked by hand using permanent ink directly on the ballot.
- Allow only "disabled voters" to continue using voting machines.
- Require certification of all elections to be based on a hand count of the votes performed and verified by "human intelligence."
- Require a majority winner (more than 50% of all votes cast) for public-electable positions, including municipal elections.
- Prohibit counting any votes before the close of polls on election day.
- Prohibit elections being conducted using internet, Bluetooth, or wireless connections.
- Direct the General Assembly to allocate funding.
The AG rejected the popular name and ballot title for one core reason: the definition of "disabled voter" incorporates three statutes by reference (Help America Vote Act, Americans with Disabilities Act, Arkansas Civil Rights Act) without spelling out the definitions. This violates Arkansas's full-text requirement under Amendment 7 and A.C.A. § 7-1-107.
The HAVA-ADA-ACRA problem. The proposal defines "disabled voter" as "a voter with a disability as that term is defined by the [HAVA], the [ADA], or the [ACRA] and includes those voters who are blind or visually impaired." The AG found three problems:
- HAVA contains no definition of "disability." Citing the federal statute by reference creates ambiguity about what definition applies.
- ADA and ACRA definitions are narrower than state election law. A.C.A. § 7-5-311(c) defines "disability" for state election purposes as "any physical, mental, or sensory impairment." The ADA (42 U.S.C. § 12102) requires the impairment to "substantially limit one or more major life activities." The ACRA's definition is functionally equivalent to ADA. The narrower definitions exclude voters who would qualify under § 7-5-311 but would not be substantially limited in a major life activity (e.g., voters with sensory impairments that don't rise to "substantial limitation").
- The proposal silently changes the law. Replacing § 7-5-311's broader definition with the narrower HAVA/ADA/ACRA definitions would deny voting-machine access to voters with sensory impairments or other disabilities not "substantially limiting." The ballot title does not explain this change.
The full-text doctrine. Citing Haugen v. Jaeger (N.D. 2020) and Dyer v. Hall (N.D. 1924) (the same authorities used in Opinions 2024-009 and 2024-014), the AG held that incorporation by reference defeats the full-text requirement. Voters need to see what they are voting for, and a cross-reference to ADA's definition of "disability" without spelling out that definition is not the full text.
The AG also flagged but did not reject on the enacting-clause issue (same flag as in Opinion 2023-132 for the absentee-voting amendment) and the "human intelligence" definition, which the sponsor had revised but the AG noted may still be problematic.
What this means for you
Election security advocates
The substantive policy goals of the amendment (hand-marked paper ballots, hand counts, no electronic transmission, majority winners, no early counting) were not the AG's basis for rejection. The defect was a drafting issue with one definition. A revised version that defines "disabled voter" by reference to A.C.A. § 7-5-311(c)'s "any physical, mental, or sensory impairment" formulation would clear this defect.
Disabled voters and advocates
Watch the "disabled voter" definition in any future revision. The amendment's policy of restricting voting machines to disabled voters means the definition controls who has continued access. A narrow definition (ADA-style) excludes voters with sensory or partial disabilities. A broad definition (state election law) is more inclusive.
If a future version uses an inclusive definition, voters with vision impairments, hearing loss, mobility issues, or cognitive impairments would retain machine access. If a narrow definition is used, those access points contract.
Election officials
The amendment as drafted would require substantial operational changes:
- Most voting machines would be retired except those reserved for disabled voters.
- Hand-marked paper ballots with security features would become the default.
- Hand counting on election day, with no early or election-day count releases.
- All transmission and tabulation off wireless networks.
Implementation would take years and substantial funding. The amendment requires the General Assembly to fund implementation but does not specify the source.
Voting machine manufacturers
The amendment would substantially reduce the Arkansas market for full-function voting machines. Only disability-accessible machines would remain.
Ballot initiative sponsors
This opinion is the second clear application of the Haugen v. Jaeger / Dyer v. Hall full-text doctrine in this AG dataset (after Opinion 2024-014's medical cannabis amendment). The doctrine bars incorporation by reference of any external law into the constitutional text. Drafting tip: when you need a defined term, write the definition out in the proposed text. A reference to "as defined in [statute]" is a non-starter under this doctrine.
Election law attorneys
The state-election-law definition (A.C.A. § 7-5-311(c): "any physical, mental, or sensory impairment") is broader than the ADA/ACRA definition (substantially limiting a major life activity). Faulkner v. Arkansas Children's Hospital, 347 Ark. 941 (2002) confirms that ADA and ACRA are equivalent. Cite this opinion when discussing the divergence between Arkansas voter-disability eligibility and federal disability-discrimination eligibility.
Common questions
What is HAVA?
Help America Vote Act of 2002. Federal law setting standards for federal elections. Does not contain a generic definition of "disability."
Is hand-marked paper voting more secure?
Election-security advocates argue yes (paper ballots are auditable; hand counts are verifiable). Election administrators argue the trade-offs are complex (paper ballots are slower, prone to certain types of errors, harder to accommodate disabled voters). The AG opinion does not address the merits.
Could the sponsor fix this?
Yes, by writing out the full definition of "disabled voter" in the text rather than incorporating ADA/ACRA/HAVA by reference. The sponsor should also align the definition with A.C.A. § 7-5-311(c) to avoid silently changing existing voting-disability law.
Does the amendment affect federal elections?
Federal elections in Arkansas would be subject to both federal law (HAVA, NVRA, UOCAVA) and the amendment. Where federal preemption applies, federal law would govern.
What does "human intelligence" mean?
The AG noted the sponsor had revised this definition but did not provide it in this opinion. The phrase is intended to ensure hand counts are not done by AI or computers.
Background and statutory framework
A.C.A. § 7-9-107(e). Mandates rejection when a measure or its title is misleading.
A.C.A. § 7-1-107. Full-text submission requirement.
Ark. Const. art. 5, § 1 (Amendment 7). Full-text requirement.
A.C.A. § 7-5-311(c). State election law's definition of "disability" for voting accommodations: "any physical, mental, or sensory impairment."
42 U.S.C. § 12102 (ADA). Federal definition of "disability": substantially limiting a major life activity.
A.C.A. § 16-123-102(5) (ACRA). Arkansas Civil Rights Act's definition of "disability"; functionally equivalent to ADA.
Faulkner v. Arkansas Children's Hosp., 347 Ark. 941, 69 S.W.3d 393 (2002). Holds ADA and ACRA definitions of disability are equivalent.
Haugen v. Jaeger, 2020 N.D. 177, 948 N.W.2d 1; Dyer v. Hall, 51 N.D. 391 (1924). Incorporation by reference violates the full-text requirement.
Roberts v. Priest, 341 Ark. 813, 20 S.W.3d 376 (2000). Text-summary disconnect doctrine.
Prior opinion. Opinion 2023-108 addressed an earlier version with the AG's analysis incorporated here.
Citations
- A.C.A. § 7-9-107(e)
- A.C.A. § 7-1-107
- A.C.A. § 7-5-311 (state election disability definition)
- A.C.A. § 16-123-102(5) (ACRA disability definition)
- 42 U.S.C. § 12102 (ADA disability definition)
- Ark. Const. art. 5, § 1 (Amendment 7)
- Ark. Const. amend. 50 (voting machines)
- Roberts v. Priest, 341 Ark. 813, 20 S.W.3d 376 (2000)
- Faulkner v. Arkansas Children's Hosp., 347 Ark. 941, 69 S.W.3d 393 (2002)
- Haugen v. Jaeger, 2020 N.D. 177, 948 N.W.2d 1
- Dyer v. Hall, 51 N.D. 391, 199 N.W. 754 (1924)
- Ark. Att'y Gen. Op. 2023-108 (prior version of this amendment)
Source
Original opinion text
Opinion No. 2023-133
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 described an amendment to enhance election security, require hand-marked paper ballots, permit disabled voters to continue using voting machines, regulate counting and verification, preserve current candidate selection, and prohibit internet/Bluetooth/wireless conduct of elections.
The submitted ballot title described amending Amendment 50 to: remove the language permitting all elections by voting machines; require secure hand-marked paper ballots (with disabled voters permitted machine use); prohibit early or election-day counting before poll close; require hand-count certification verified by "human intelligence"; require majority winners (>50%) in public elections; prohibit internet/Bluetooth/wireless conduct; and direct legislative funding.
- Application. Having reviewed the text, I must reject your proposed popular name and ballot title.
The current version's definition of "disabled voter" reads: "a voter with a disability as that term is defined by the Help America Vote Act [(HAVA)], the Americans with Disabilities Act of 1990 [(ADA)], or the Arkansas Civil Rights Act of 1993 [(ACRA)] and includes those voters who are blind or visually impaired." Three problems:
- HAVA does not contain a definition of "disability." Citing it as a definitional source is empty.
- The ADA's and ACRA's definitions are narrower than the state-election-law definition in A.C.A. § 7-5-311. The ADA requires impairment "substantially limiting one or more major life activities" (42 U.S.C. § 12102). The ACRA is functionally identical (Faulkner v. Arkansas Children's Hosp., 347 Ark. 941, 69 S.W.3d 393 (2002)). State election law defines "disability" more broadly as "any physical, mental, or sensory impairment" (A.C.A. § 7-5-311(c)).
- The narrower definitions silently change existing law on voter-disability accommodations. This change would give voters serious ground for reflection but does not appear in the ballot title.
Your approach to defining this term is also problematic because it attempts to incorporate other statutory definitions by reference, which violates the "full text" requirement. The absence of the measure's full text then renders the ballot title misleading by omission. Amendment 7 (Ark. Const., art. 5, § 1) requires that the "full text" of the initiated measure accompany each petition. Under A.C.A. § 7-1-107, all sponsors must give the Attorney General "[t]he full text of the proposed measure." The North Dakota Supreme Court's decision in Haugen v. Jaeger, 2020 N.D. 177, 948 N.W.2d 1, reaffirmed Dyer v. Hall, 51 N.D. 391 (1924), holding that incorporation by reference violates the full-text requirement. The Arkansas Supreme Court would likely agree.
Because you have not yet resolved these issues concerning the definition of "disabled voter," my statutory duty is to reject your proposed popular name and ballot title and to instruct you to "redesign" your proposed constitutional amendment, popular name, and ballot title.
The opinion also notes other issues (the enacting clause, the "human intelligence" definition) that are flagged but not bases for rejection.
Senior Assistant Attorney General Kelly Summerside prepared this opinion, which I hereby approve.
Sincerely,
TIM GRIFFIN
Attorney General