5 minute read
Legal Corner
Legal Corner
There were plenty of hot topics in the 2017 General Session of the 91st General Assembly, and election laws were no exception. Most of the election issues legislators brought before the General Assembly were not new or unique, but rather common, recurring issues of past sessions. Primary election and filing period dates, special election consolidation, voter identification, and state funding for new voting equipment all garnered the attention of the legislature in the 2017 General Session.
Concerning the primary election dates in Arkansas, Act 4 of the Third Extraordinary Session of 2015 was passed with a sunset date of Dec. 31, 2016. The act moved the Arkansas preferential primary date from its usual date in May up to the date commonly known as the “SEC Primary” date or “Super Tuesday,” March 1, 2016. This allowed Arkansas to participate in a heavily populated Republican presidential primary election, with 12 candidates filing for the Republican presidential primary race, along with six Democrats. Changing the preferential primary date also necessarily changed the filing period for all candidates running for office, including county offices, from the previous filing period ending on the first day of March all the way up to November of the year preceding the primary election.
This change was met with mixed reviews by candidates, with some enjoying the filing fees and national attention that Arkansas received by having more presidential candidates register; however, many local candidates were displeased with the November filing period, effectively forcing them to begin their campaigns around the holiday season. There were two bills filed this session to continue the recent March primary election date and November filing period; however, neither bill passed. Therefore, absent some action of the legislature in a special session, the 2018 preferential primary date will revert back to the law as it was before Act 4 passed, with the primary election presumably being held on May 22, 2018, and the candidates’ one-week filing period ending on the first day of March.
Another issue returning this session from previous years
was the move to consolidate school elections and other special elections into the primary and general election dates. While efforts to consolidate all special elections failed this session, Act 910 of 2017 passed. Act 910, effective Jan. 1, 2018, will require all annual school elections, meaning all LINDSEY BAILEY General Counsel school board races, but excluding millage elections, to be held on the primary or general election date in even-numbered years, or the corresponding dates in odd-numbered years. Pursuant to Act 910, no later than the first date of the candidate filing period in 2018 and going forward, each school district must notify its respective county clerk(s) if it will choose Most of the election issues legislators brought before the General Assembly to hold its annual school board elections on the primary or general election date. The 2017 school were not new or unique, but rather revisited board elections will not be impacted. common, recurring issues of past sessions. The 2017 General Session also brought back another familiar issue in the form of two separate voter identification initiatives. In October 2014, the Arkansas Supreme Court struck down Act 595 of 2013, which had required persons voting both in person and by absentee ballot to provide poll workers with proper identification before being allowed to cast a vote. In a unanimous decision of the court, three of the justices declared the act unconstitutional in a concurring opinion solely because it did not reach two-thirds threshold in each chamber of the General Assembly as required by the Arkansas Constitution. Alternatively, the court’s majority opinion authored by Justice Donald Corbin declared the law unconstitutionally violated Arkansas citizens’ right to vote because it required more of a registered voter than is required by the Arkansas Constitution: to be at least 18 years old, a U.S. citizen, an Arkansas resident, and registered to vote. There were two attempts this session to reinstate the voter identification requirements struck down by the court in See “ELECTIONS” on Page 20 >>>
Elections
Continued From Page 19 <<<
2014. The first, HB1047, now Act 633 of 2017, merely amends the Arkansas Code, not the constitution. Although it did receive the requisite two-thirds of each chamber this time, there is still an argument to be made (one that was made in the 2014 majority opinion) that this statute, as amended, would still violate the Arkansas Constitution by requiring more of a registered voter than is set forth in the constitution. Proponents of Act 633 are confident that if it is challenged before the Arkansas Supreme Court again, the court, now with a new Chief Justice and without Justice Donald Corbin, author of the October 2014 opinion, would rule in favor of the bill’s constitutionality.
However, if Act 633 were challenged and declared unconstitutional yet again, a second initiative, HJR1016, also passed and will make its way to the general election ballot in November 2018. If the people pass HJR1016 in the 2018 general election, it would amend the constitutional requirements for a registered voter to cast a ballot in an election, adding the requirement to provide proper identification in addition to the current four requirements before voting in person or by absentee ballot. However, there could still be potential federal constitutional issues, since the right to vote is considered a fundamental right protected by the U.S. Constitution.
Finally, SB297, which failed to pass out of the Joint Budget Special Language Committee, would have appropriated $34.5 million to the County Voting Systems Grant Fund, enough to secure new voting equipment for all counties in need statewide. Counties across the state are struggling with old, deficient and deteriorating voting equipment and are not prepared to handle another election with current equipment, much less a primary or general election with school board elections included on the same day. Last year, 10 Arkansas counties were able to provide voters with new voting machines, paid nearly in full by the County Voting Systems Grant Fund, with Washington County paying $420,000 to the state’s $1.2 million for its new machines. Other counties receiving new machines from state funding were Boone, Columbia, Garland, Sebastian, Yell, Chicot, Cleveland, Jackson and Randolph counties. Those counties still waiting in line for funding for new voting equipment are hopeful the legislature will recognize the integrity of Arkansas elections as a priority and perhaps address the funding issues in a special session rather than kicking the can down the road to the 92nd General Assembly.
