Legal Corner

Arkansas lawmakers focus on elections in 2019 General Session

While the Arkansas General Session of 2019 saw several headliner legislative topics, such as transformation, transportation, tax reform, and public safety, one area in which numerous bills were filed, but largely flew under the public’s radar, was elections. In addition to the defeat of various elections-related bills that would have resulted in unfunded mandates to the counties and inefficient or unsustainable voting procedures, this session brought more than a handful of successful bills to make elections in Arkansas more uniform, efficient, and transparent.

Act 597, effective July 1, 2019, was the County Clerks Association’s legislative package condensed into one bill, led by Rep. Justin Boyd and Sen. Bob Ballinger. For the sake of uniformity and efficiency, this bill eliminated different and confusing candidate filing periods and signature petition circulation periods in the county clerk’s office. Now, all candidates who file for office with the county clerk will file during the same one-week filing period, either one week designated before the primary or one week designated before the general election. Additionally, all signature petitions filed in the county clerk’s office will have a 91-day circulation period. Act 597 also clarified that unopposed school board candidates do not have to be placed on the ballot and requires a school district wishing to change their annual school election date to provide a 100-day notice to the county clerk prior to the primary filing period before doing so.

There were also several acts passed this session that provide clarification in the elections process. Act 533 clarifies what is and is not considered prohibited “electioneering” at or within 100 feet of a polling site. Prohibited electioneering must specifically reference a particular candidate or

issue on the ballot; mere political rhetoric is not included in the definition of prohibited electioneering. The United States Supreme Court has recently said that such broad prohibitions infringed on First Amendment rights, and Act LINDSEY BAILEY General Counsel 533 brings Arkansas in compliance with that decision. Acts 207 and 642 also provide clarification and uniformity, establishing that all city and county runoff elections are to be held four weeks after the general election. One of the major objectives for the counties in electionsrelated legislation was to increase effiWhile the Arkansas General Session of 2019 saw several headliner legislative topics, such as transciency. Act 199 provides that if a county has more than 15 sample ballots, they formation, transportation, tax reform, and public safety, one no longer have to post all of the sample area in which numerous bills that would have resulted in ballots on the wall of unfunded mandates to the counties and inefficient or unsusevery polling place. Rather, the county tainable voting procedures, this session brought more than a may post the sample ballots online, and handful of sucessful bills to make elections in Arkansas more then have at each polling site accessible uniform, efficient, and transparent. to voters either two bound volumes of the sample ballots or one bound volume and one version of the sample ballots that is available on an electronic device. Other acts that will save taxpayer dollars are Acts 328, which allows high school students to be trained and perform election official duties, and Act 539, which allows poll workers to work on a voluntary basis if they waive their right to payment. Act 1013 was the result of a smart compromise on a bill that would have cost the counties unnecessary dollars, and the voter unnecessary time in the voting booth. Formerly HB1460, the bill sought to add all unopposed candidates back on the ballot, going against what the people voted on in Amendment 95, and what the General Assembly nearly unanimously passed in Act 730 of 2017. An end of session compromise resulted in Act 1013 putting only statewide

unopposed constitutional officers (which are virtually always contested) and General Assembly candidates back on the ballot. I believe this bill will have a minimal impact on the ballot length, putting at most five or six names back on the ballot, rather than adding 10 additional screens of 50 or more names that the voter would have to scroll through. I am grateful the sponsors and county clerks were willing to reach this reasonable compromise.

Act 545 was an attempt to remedy the recent trend of uncertainty and inconsistency of the primary election date. In 2015, the General Assembly temporarily moved the 2016 presidential primary election date from May to March so the state could participate in the “SEC primary,” also known as “Super Tuesday,” the date the greatest number of states hold primary elections. This move was seen as giving Arkansas a louder voice in deciding who the parties’ nominations for president would be. Then in 2017, the effort to move the primary election date to March permanently failed. Act 545 was the compromising result of lawmakers wanting to be part of the SEC primary in March on presidential years, yet avoid the early winter/holiday season campaigning by keeping the primary election in May on non-presidential, gubernatorial election years. The change every two years will certainly take some getting used to, but I hope the public as well as election officials will acclimate to the change, and that it will remain consistent going forward.

Finally, the legislature sought to increase transparency in the elections process. Act 888 allows the State Board of Election Commissioners to perform audits post-election on voting equipment to ensure integrity in the elections process. There were other elections-related issues the General Assembly did not have the opportunity to adequately address. Many of these issues will be studied in the interim with the opportunity for legislation in the 2021 General Session. Rep. Justin Boyd filed Interim Study Proposal 2019-079 to be sent to the House State Agencies Committee to study elections-related issues including, but not limited to: election administration and process, technological upgrades, security and safety measures, methods to improve the initiative and referendum process, inconsistent terminology in the law, streamlined election dates, cost efficiency, absentee voting, voting hours, and voter registration through Revenue Offices.