Our city scheduled a referendum special election five months after certification. Was that lawful, or did we miss the 120-day deadline in the elections code?

Plain-English summary

Two Arkansas statutes seem to point in different directions on when a city must hold a special election after a referendum petition is certified:

• A.C.A. § 7-9-111(h) says special elections "shall be set within one hundred twenty (120) calendar days after the date of certification" by the city clerk.
• A.C.A. § 7-11-205(a) says special elections must fall on certain enumerated Tuesdays (statewide preferential primary, second Tuesday of May, second Tuesday of September, general election, and certain runoffs).

The City of Ozark certified a referendum petition on June 9, 2025, and scheduled the special election for November 18, 2025: about five months out, well past the 120-day window. Chairman Verkamp asked the AG to sort it out.

The AG's answer: the November 18 election is likely lawful. Three pieces of reasoning:

1. Statutes on the same subject must be harmonized if possible. The AG starts with Thomas v. State, 349 Ark. 447 (2002), and the duty to reconcile apparent conflicts before declaring one statute trumped by another.

2. § 7-9-111(h) defers to § 7-11-205(a) by its own text. Section 7-9-111(h) ends with the phrase "shall be set in accordance with § 7-11-201 et seq." The phrase "et seq." is Latin for "and the following ones." Section 7-11-205 is one of the following sections. So § 7-9-111(h)'s 120-day language must yield to § 7-11-205(a)'s scheduling rules; there is no real conflict.

3. The Arkansas Constitution Article 5, § 1 gives municipalities their own referendum-procedure authority. That provision says cities "may provide for the exercise of … referendum as to their local legislation" and "[n]o legislation shall be enacted to restrict, hamper or impair" that right. Cobb v. Burress, 213 Ark. 177 (1948) struck down a 30-day petition-filing deadline as an impermissible restriction on this constitutional grant. So statutory deadlines that "hamper" municipalities can be unconstitutional.

4. The "reasonably prompt" standard from Lewis v. Conlee. The Arkansas Supreme Court has never set a strict deadline for municipal referendum special elections. Instead it requires that the election be held "within a reasonably prompt period of time." Lewis v. Conlee, 258 Ark. 715 (1975) found a 21-month delay unreasonable. A five-month delay, by contrast, is plainly inside the "reasonable" zone, especially when § 7-11-205(a) constrains the scheduling to specific Tuesdays.

The AG also dismisses the emergency-election option in § 7-11-205(b): the City has not shown the kind of court-decision change, natural disaster, or imminent public-health threat that allows a city to invoke that path.

The AG repeatedly notes that this is not a factfinding exercise; a reviewing court would have the final say if the schedule were challenged.

What this means for you

If you are a county election commissioner

When two statutes seem to give different deadlines, look at whether one defers to the other ("et seq." or "in accordance with" language is your tell). Here § 7-9-111(h) defers to § 7-11-205(a). When in doubt, the constitutional grant of authority to municipalities under Article 5, § 1 cuts in favor of letting the city set the schedule, as long as it lands on one of the § 7-11-205(a) statutory Tuesdays and is "reasonably prompt."

If you are a city clerk or city attorney

Two practical takeaways:

1. The 120-day language in § 7-9-111(h) is not a hard cap for municipal referendum special elections. It defers by its own text to § 7-11-205(a)'s scheduling rules.
2. You still need to hit a § 7-11-205(a) Tuesday, and you still need to satisfy the "reasonably prompt" requirement from Lewis v. Conlee. Five months is fine; 21 months is not. Pick the next available statutory Tuesday after certification and you have a defensible posture.

If you are circulating or supporting a referendum petition

The constitutional purpose of Article 5, § 1, as the Arkansas Supreme Court put it, is "to provide a remedy for dissatisfied citizens within an appropriate time period." If your city schedules the special election on the next available statutory Tuesday after certification, that is reasonably prompt. If they push it 18 months or 24 months out, you have a Lewis v. Conlee argument to compel a sooner date.

If you are a city council considering invoking emergency election authority

The threshold for an emergency special election under A.C.A. § 7-11-205(b) is narrow. You need either: (a) a substantial change in court interpretation that, if not addressed, will make the entity incapable of performing lawful duties; (b) a fire, flood, tornado, or other natural disaster making the entity financially incapable of performing its duties; or (c) circumstances the governing body finds present an imminent danger to public health and safety. Plus, delay of the election to the next regular date must cause "substantial and undue hardship" or threaten public peace, health, or safety. General disagreement with a referendum's substance does not qualify.

Common questions

What is the deadline to hold a special election after a referendum petition is certified?
There is no single hard deadline. The city must schedule the election on one of the Tuesdays listed in § 7-11-205(a) and must do so within a "reasonably prompt" period under Article 5, § 1 and Lewis v. Conlee. Five months is reasonable; 21 months is not.

Why doesn't the 120-day deadline in § 7-9-111(h) control?
Because § 7-9-111(h) itself defers to § 7-11-201 et seq. for scheduling. The text of § 7-9-111(h) explicitly says special elections "shall be set in accordance with § 7-11-201 et seq.," meaning § 7-11-205(a)'s Tuesday-only scheduling controls.

Can the General Assembly override Article 5, § 1?
No. Cobb v. Burress (1948) struck down legislation that restricted municipal referendum authority. The constitutional provision says no legislation shall "restrict, hamper or impair" the right. The General Assembly can build out scheduling mechanisms (the § 7-11-205(a) Tuesdays), but it cannot eliminate the municipality's authority to call the election.

What counts as "reasonably prompt"?
The Arkansas Supreme Court has not set a bright line, but Lewis v. Conlee found a 21-month delay unreasonable, and the AG suggests five months is reasonable. Anything in between is fact-specific.

When can a city declare an emergency special election?
Under A.C.A. § 7-11-205(b)(3): a substantial change in court interpretation rendering the entity incapable of performing duties; a natural disaster causing financial incapacity; or circumstances the governing body determines are an imminent danger to public health and safety. Plus, delay must cause substantial and undue hardship or threaten the public peace, health, and safety.

What if the city refuses to schedule the special election?
A petition supporter can sue for mandamus or to compel the city to act. The Lewis v. Conlee precedent stands for the proposition that the city's discretion has limits.

Background and statutory framework

A.C.A. § 7-11-205(a) sets the calendar for special elections. They must fall on (paraphrased): the statewide preferential primary, the second Tuesday of May, the second Tuesday of September, the general election, or certain runoffs.

A.C.A. § 7-11-205(b) allows emergency special elections in narrow circumstances: substantial change in court interpretation; natural-disaster-driven financial incapacity; or imminent public-health-and-safety dangers, with proof that delay would cause substantial and undue hardship.

A.C.A. § 7-9-111(h) says special elections "shall be set within one hundred twenty (120) calendar days after the date of certification" but adds that they "shall be set in accordance with § 7-11-201 et seq." The "et seq." reference points to § 7-11-205, which the AG reads as controlling.

Article 5, § 1 of the Arkansas Constitution reserves the referendum power to municipalities for local legislation: "Municipalities may provide for the exercise of … referendum as to their local legislation. … No legislation shall be enacted to restrict, hamper or impair the exercise of the rights herein reserved to the people."

Lewis v. Conlee, 258 Ark. 715 (1975). The seminal case. A 21-month delay between certification and special election was unreasonable and frustrated the constitutional purpose of "provid[ing] a remedy for dissatisfied citizens within an appropriate time period."

Cobb v. Burress, 213 Ark. 177 (1948). A statute imposing a 30-day filing deadline for municipal referendum petitions was struck down as an impermissible restriction on the Article 5, § 1 grant of authority to municipalities.

Statutory construction canons. Thomas v. State (2002): statutes on the same subject must be construed harmoniously. Slusser v. Farm Service (2004): the duty to harmonize applies regardless of whether the statutes are on the same subject. Harkuf v. Marony (2022): the Arkansas Supreme Court takes "pains to harmonize statutes that are seemingly in conflict."

Citations

Statutes:
- A.C.A. § 7-9-111 (referendum petition certification and 120-day language)
- A.C.A. § 7-11-201 et seq. (special election scheduling)
- A.C.A. § 7-11-205 (special election Tuesdays; emergency exceptions)

Cases:
- Lewis v. Conlee, 258 Ark. 715, 529 S.W.2d 132 (1975)
- Quattlebaum v. Davis, 265 Ark. 588, 579 S.W.2d 599 (1979)
- Cobb v. Burress, 213 Ark. 177, 209 S.W.2d 694 (1948)
- Wright v. Ward, 170 Ark. 464, 280 S.W. 369 (1926)
- Gregg v. Hartwick, 292 Ark. 528, 731 S.W.2d 766 (1987)
- Thomas v. State, 349 Ark. 447, 79 S.W.3d 347 (2002)
- Slusser v. Farm Service, Inc., 359 Ark. 392, 198 S.W.3d 106 (2004)
- Harkuf v. Marony, 2022 Ark. 55, 639 S.W.3d 872

Constitutional provision:
- Ark. Const. art. 5, § 1 (referendum reserved; no legislation may "restrict, hamper or impair")

Source

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

Original opinion text

BOB R. BROOKS JR. JUSTICE BUILDING
101 WEST CAPITOL AVENUE
LITTLE ROCK, ARKANSAS 72201
Opinion No. 2025-082
November 21, 2025
Mr. John Verkamp
Chairman
Franklin County Election Commission
Post Office Box 425
Charleston, Arkansas 72933

Dear Chairman Verkamp:

You have requested my opinion regarding the "scheduling of special elections on measures or questions referred to the voters." You report that on June 9, 2025, the Clerk of the City of Ozark certified a Referendum Petition on City Ordinance No. 2025-3. City Ordinance No. 148 requires the City Council to "order a special election" if it finds that a Referendum Petition is "signed by the requisite number of qualified electors" and to "fix a date which shall not be less than ten (10) days after the date of the action of the Council calling the election." On June 9, 2025, the City Council enacted City Ordinance No. 2025-6, which set a special election on the Referendum Petition for November 18, 2025, five months after the City Clerk certified the Referendum Petition.

You have asked the following questions:

1. Does A.C.A. § 7-11-205(a) permit the City of Ozark to hold a lawful special election on the Referendum Petition on November 18, 2025, or does the 120-day provision of § 7-9-111(h) require the special election to be held by October 7, 2025?

Brief response: A reviewing court would likely find that the City's special election on November 18, 2025, was lawful because (1) A.C.A. § 7-11-205(a) controls the scheduling of special elections on referendum petitions and (2) the City held the special election within "a reasonably prompt period of time."

2. Assuming the 120-day deadline in A.C.A. § 7-9-111(h) controls, is the City of Ozark required to hold the special election on the Referendum Petition on the second Tuesday of September (September 9, 2025) to comply with § 7-11-205(a)(2)(B)?

Brief response: Please see my response to your first question.

3. If the City of Ozark declares that an emergency exists under A.C.A. § 7-11-205(b) and intends to hold an emergency special election on the Referendum Petition, is it required to hold the emergency special election on the second Tuesday of September (September 9, 2025), or may it choose any date on or before October 7, 2025?

Brief response: Please see my response to your first question. The City may only declare an emergency in certain limited circumstances, and you have not provided any information suggesting those circumstances exist here.

DISCUSSION

Before addressing your specific questions, I must note that I am not a factfinder when issuing opinions. Absent legislative clarification regarding these statutes, a definitive judicial interpretation is needed to resolve this matter. I will, however, provide an outline of the law a reviewing court would use when constructing these statutes.

Question 1: Does A.C.A. § 7-11-205(a) permit the City of Ozark to hold a lawful special election on the Referendum Petition on November 18, 2025, or does the 120-day provision of § 7-9-111(h) require the special election to be held by October 7, 2025?

A reviewing court would likely find that the City's special election on November 18, 2025, was lawful because (1) A.C.A. § 7-11-205(a) controls the scheduling of special elections on referendum petitions and (2) the City held the special election within "a reasonably prompt period of time."

First, statutes that concern the same subject must be construed, interpreted, or read harmoniously, if possible. Before resorting to any conflict analysis, a reviewing court would first reconcile any seemingly conflicting statutory language without voiding or invalidating those statutes. Here, the apparent conflict between A.C.A. §§ 7-9-111(h) and 7-11-205(a) can be reconciled. While A.C.A. § 7-11-205(a) requires cities to schedule these special elections on certain Tuesdays, A.C.A. § 7-9-111(h) requires cities to schedule them within "one hundred twenty (120) calendar days after the date of certification" by the city clerk. But A.C.A. § 7-9-111(h) also provides that special elections "shall be set in accordance with § 7-11-201 et seq." And the phrase "et seq." is Latin for "and the following ones." Thus, the language of A.C.A. § 7-9-111(h) itself notes that A.C.A. § 7-11-205(a) controls the scheduling of special elections.

Second, under Article 5, § 1 of the Arkansas Constitution, the City of Ozark may hold a special election on the Referendum Petition on November 18, 2025. That provision states, "Municipalities may provide for the exercise of … referendum as to their local legislation…. No legislation shall be enacted to restrict, hamper or impair the exercise of the rights herein reserved to the people." The Arkansas Supreme Court has interpreted this provision to mean that municipalities possess a constitutionally-protected authority to establish their own procedures for local referendum petitions, and the General Assembly cannot enact legislation that limits that authority.

Regarding the timing of special elections, the Arkansas Supreme Court has noted that this is largely left to local officials as long as those officials "hold the election within a reasonably prompt period of time." In Lewis v. Conlee, a city council scheduled an election for a referendum petition 21 months after the city clerk certified the referendum petition. The Court held that a 21-month delay was not "reasonably prompt" and that it frustrated the purpose of Article 5, § 1, which is "to provide a remedy for dissatisfied citizens within an appropriate time period[.]"

In this case, the City Council enacted City Ordinance No. 148 based on its Article 5, § 1 authority. Under that ordinance, when a "petition is signed by the requisite number of qualified electors," the City Council must "order a special election" and "fix a date which shall be not less than ten (10) days after the date of the action of the Council calling the election." The City Council scheduled the special election for November 18, 2025, approximately five months after the City Clerk certified the Referendum Petition. A reviewing court would likely find that a five-month delay was "reasonably prompt" and "provide[d] a remedy for dissatisfied citizens within an appropriate time period[.]"

Thus, a reviewing court would likely find that the special election at issue was lawful because A.C.A. § 7-11-205(a) controls the scheduling of special elections and the City held the special election within "a reasonably prompt period of time."

Question 2: Assuming the 120-day deadline in A.C.A. § 7-9-111(h) controls, is the City of Ozark required to hold the special election on the Referendum Petition on the second Tuesday of September (September 9, 2025) to comply with § 7-11-205(a)(2)(B)?

Please see my response to your first question.

Question 3: If the City of Ozark declares that an emergency exists under A.C.A. § 7-11-205(b) and intends to hold an emergency special election on the Referendum Petition, is it required to hold the emergency special election on the second Tuesday of September (September 9, 2025), or may it choose any date on or before October 7, 2025?

Please see my response to your first question. The City may only declare an emergency in certain limited circumstances, and you have not provided any information to suggest those circumstances exist here.

Assistant Attorney General Jodie Keener prepared this opinion, which I hereby approve.

Sincerely,
TIM GRIFFIN
Attorney General