108.00.09 Ark. Code R. 005

Current through Register Vol. 49, No. 9, September, 2024

Rule 108.00.09-005 - Rules on Provisional Voting

Scope of Rules

These rules set forth the procedures for issuing, processing, and counting provisional ballots. These rules are in addition to and not a substitute for the laws of the State of Arkansas.

§ 900 Definitions

(a) Absentee Ballot Processing Site - a place designated by the county board of election commissioners in the courthouse where election clerks for absentee ballots meet on election day for the purpose of processing absentee ballots.¹

(b) Ballot Style - a ballot's combination of contests and issues to be voted upon that is unique to each precinct.

(c) Challenged Ballot Form - the applicable portion of a "provisional voter envelope" (see Attachment "A") that are completed when a poll watcher challenges a voter, identifying the voter whose vote was challenged, the poll watcher, the reason for the challenge, the applicable provisional voter number from the list of provisional voters (see Attachment "B"), poll, precinct, ballot style, and the date and time of the challenge under the signature of both the poll watcher and the challenged voter.

(d) Counting Site - a location selected by the county board of election commissioners with respect to all elections for the processing and/or counting of votes.²

(e) County Board of Election Commissioners - the three-member board in each of the 75 counties in this State consisting of local election officials responsible for conducting all elections within their respective county, including one (1) member selected by the county committee of the majority party (generally the county committee chair), one (1) member selected by the county committee of the minority party (generally the county committee chair), and a third member selected by the county committee of the majority party at the same time as the election of party officers.³

(f) Election Clerk - for the purpose of these rules, a person possessing the same qualifications as a poll worker who is designated by the county board of election commissioners to process, count, and canvass absentee ballots⁴ under the supervision of the county board.

(g) Election Official - a person who is a member of the county board of election commissioners or a person designated by a county board of election commissioners to be an election clerk, election judge, or election sheriff⁵

(h) Eligibility Affirmation - a written affirmation executed by a provisional voter in the presence of the poll worker at the poll stating that he or she is a registered voter in the precinct in which he or she desires to vote and is eligible to vote in that election (see Attachment "A").⁶

(i) First-time Voter Registered by Mail - any registered voter, except those exempted by

Arkansas Code Annotated § 7-5-201(d)(2), who has not previously voted in a federal election in the state and whose registration application arrived at the county clerk's office or Secretary of State's office by mail. "First-time voters registered by mail" who do not provide identification when registering are flagged by the county clerk for the identification requirement. "First-time voters registered by mail" who provided a driver's license number or the last four (4) digits of their social security number on their voter registration application form are considered as having provided identification. Registration applications arriving in bulk at the registrar's office or delivered by leaders of voter registration drives are considered to have been delivered in person, not by mail, and are, therefore, not considered "first-time voters registered by mail" and not flagged by the county clerk for the identification requirement.

(j) Polling Site - a location selected by the county board of election commissioners where votes are cast.⁸

(k) Poll Watcher - any authorized representative of a candidate, any authorized representative of a group seeking passage or defeat of a measure on the ballot, and any authorized representative of a political party with a candidate on the ballot who is present at a polling site or an absentee ballot processing site to observe and ascertain the identity of persons presenting themselves to vote at the polls or to observe and ascertain the identity of absentee voters for the purpose of challenging any voter in person or for the purpose of challenging any absentee vote. An authorized representative of a candidate or political party may also be present at all counting sites for the purpose of witnessing the counting of ballots by election officials. A candidate may be present in person only during the counting and tabulation of ballots and the processing of absentee ballots.⁹

(I) Poll Watcher Authorization Form - an affidavit, in the form specified by law, designating and authorizing a poll watcher. The "poll watcher authorization form" must be filed with the county clerk and a file-marked copy presented to an election official immediately upon entering the polling site, absentee ballot processing site, or counting site. Candidates in person attending a counting site or absentee ballot processing site must present identification, but are not required to present a Poll Watcher Authorization Form (see Attachment "C").¹⁰

(m) Poll worker - person designated by the county board of election commissioners to serve as an election clerk, election judge, or an election sheriff at a polling site.

(n) Precinct - the geographical boundary lines dividing a county, municipality, township, or school district for voting purposes.¹¹

(o) Precinct Voter Registration List - a computerized list provided by the county clerk and used by poll workers in each polling place for every election conducted in the state indicating the name and date of the election; identifying the precinct's number and county in which located; and containing the name, address, and date of birth of each registered voter, including those who have been designated inactive, within the precinct with a space for each voter's signature.¹² In any precinct with more than one (1) ballot style, the precinct voter registration list must also identify the district, sub-district, county, municipality, ward, and school zone in which each voter is qualified to vote.¹³

(p) Provisional Ballot - a ballot cast by special procedures to record a vote when there is some question concerning a voter's eligibility and counted contingent upon the verification of the voter's eligibility.¹⁴

(q) Provisional Voter Envelope - an envelope used by poll watchers for voter challenges and by poll workers for voter qualification issues containing information relating to provisional voters, including a provisional voter's eligibility affirmation, the reason for voting provisional, the ballot style voted, the county clerk's certification of the provisional voter's registration status, and the disposition of the provisional ballot upon review by the county board of election commissioners. A "provisional voter envelope" shall have printed on it all the information sought by "Attachment "A".

§ 901 Voter Identification

A. Forms

Poll workers must ASK all voters to provide one of the following forms of identification:

1) A current and valid photo identification (such as a driver's license),

2) A copy of a current utility bill showing the voter's name and address,

3) A copy of a bank statement showing the voter's name and address,

4) A copy of a government check or paycheck showing the voter's name and address, or

5) A copy of a government document showing the voter's name and address.¹⁵

B. Failure to Provide

Only first-time voters who registered by mail and did not provide proper identification when registering (see definition of "first-time voter registered by mail") are REQUIRED to provide identification when voting.¹⁶

If a first-time voter who registered by mail did not provide identification when registering, the voter must provide identification (as indicated on the precinct voter registration list) at the poll when voting or he or she must vote a PROVISIONAL ballot.¹⁷

All first-time voters who registered by mail and did not provide identification when registering are REQUIRED to provide identification when voting absentee or the ballot cast by mail must be considered PROVISIONAL.¹⁸

For all other voters, if the voter (including first-time voters who registered by mail and provided identification when registering) is unable to provide or declines to provide identification when voting, the poll worker must indicate on the precinct voter registration list that the voter did not provide identification and give the voter a REGULAR ballot.¹⁹

§ 902 Precinct Voter Registration List

A. Voter's Name Missing

When a voter provides his or her name, address, and date of birth to a poll worker, and the voter's name is not on the precinct voter registration list, the poll worker must:

1) Contact the county clerk's office to verify the voter's registration status, and

2) Allow the voter to cast a REGULAR ballot (if the county clerk informs the poll worker that the voter is listed as a registered voter of the precinct),²⁰ or

3) Allow the voter to cast a REGULAR ballot (if the county clerk informs the poll worker that the voter transferred his or her registration from another county not later than four (4) days before the election and that the voter is at the correct poll in the new county of registration),²¹ or

4) Send the voter to his or her correct polling site where the voter may cast a REGULAR ballot (if the county clerk informs the poll worker that the voter is listed as a registered voter at a different precinct in the county), or

5) Allow the voter to cast a PROVISIONAL ballot at the disputed polling site (if the county clerk informs the poll worker that the voter is listed as a registered voter at a different precinct in the county, but the voter insists that he or she is at the correct polling site), or

6) Allow the voter to cast a PROVISIONAL ballot (if the county clerk is unable to verify the voter's registration, but the voter contends that he or she is both registered in the precinct in which he or she desires to vote and is eligible to vote).²²

B. "Voted Absentee" Notation

Upon delivery of an absentee ballot to an individual authorized to receive an absentee ballot, the county clerk shall mark the precinct voter registration list to indicate that an absentee ballot has been delivered to the voter.²³

Any person to whom an absentee ballot is delivered according to the precinct voter registration list, but who chooses to vote by early voting or to vote at his or her polling site on election day, shall be permitted to cast a provisional ballot at the poll.²⁴

§ 903 Poll Watcher Challenges

A. Official Recognition/Credentials

Poll watchers representing a candidate, group, or political party must file a "poll watcher authorization form" (see Attachment "C") with the county clerk of the county in which the polling site, absentee ballot processing site, or counting site is located and present a file-marked copy of the valid affidavit to the election officials immediately upon entering the polling site, absentee ballot processing site, and/or counting site.²⁵

A candidate may be present in person only during the counting and tabulation of ballots and the processing of absentee ballots and is not required to present a "poll watcher authorization form", but must present some form of identification to an election official immediately upon entering the site.²⁶

Only one (1) authorized poll watcher per candidate, group, or party at any one (1) time may be officially recognized as a poll watcher at each location within a polling site where voters identify themselves to election officials and at each location within the absentee ballot processing site where absentee ballots are processed.²⁷

Only one (1) authorized poll watcher per candidate or party at any one (1) time may be officially recognized as a poll watcher at the counting of ballots at the polling site, central counting location, or absentee ballot counting location.²⁸

Poll watcher rights and responsibilities must be posted in plain view at each polling site, absentee ballot processing site, and counting site.²⁹

B. Challenges

Authorized poll watchers who are officially recognized at a polling site may stand close enough to the place where voters check in to vote so as to hear the voter's name and may challenge any voter upon notifying a poll worker of the challenge before the voter signs the precinct voter registration list and upon completing a "challenged ballot form" (see Attachment "A").³⁰

A poll watcher may challenge a voter only on the grounds that the voter is not eligible to vote in the precinct or that the voter has already voted in the election.³¹

When election clerks appointed by the county election commission to process, count, and canvass absentee ballots read the name and voting precinct of an absentee voter, any qualified poll watcher may challenge the vote in the same manner provided by law for personal voting challenges, and the election clerks must consider the absentee ballot as a provisional ballot.³²

§ 904 Court-Ordered Extension

A person who votes in an election as a result of a federal or state court order or any other order extending the time established for closing the polls may vote in the election only by casting a provisional ballot. The provisional ballots cast as a result of the order must be separated and held apart from other provisional ballots cast by provisional voters not affected by the order.³³

§ 905 Voting a Provisional Ballot

Provisional ballots should be handled as follows:

1) If as a result of a poll watcher challenge, the poll watcher must notify a poll worker of the challenge before the voter signs the precinct voter registration list and must complete a "challenged ballot form" (See Attachment "A").³⁴

2) If as a result of a poll watcher challenge, a poll worker must inform the voter that his or her ballot is being challenged.³⁵

3) The provisional voter must execute a written eligibility affirmation in the presence of the poll worker stating that he or she is both a registered voter in the precinct in which he or she desires to vote and eligible to vote in the election.³⁶

4) The poll worker shall initial the back of the ballot, remove the ballot stub from the provisional ballot, and place the stub in the stub box provided.³⁷

5) The provisional voter shall mark his or her ballot.³⁸

6) The provisional voter shall place his or her voted ballot in a ballot secrecy envelope marked "PROVISIONAL BALLOT" and seal the envelope (nothing else goes in this envelope).³⁹

7) The provisional voter shall then place the sealed ballot secrecy envelope marked "Provisional Ballot," containing his or her voted provisional ballot in a "provisional voter envelope", seal it, and give it to the poll worker.⁴⁰

8) The poll worker must provide the provisional voter written information instructing him or her on how to determine whether his or her vote was counted, and if not, the reason the vote was not counted.⁴¹

9) The poll worker must make and retain a separate list of the names and addresses of all persons casting a provisional ballot (see Attachment "B").⁴²

10) The poll worker must preserve, secure, and separate all provisional ballots from the remaining ballots⁴³ and forward all sealed "provisional voter envelopes" in a secured container provided for that purpose to the county board of election commissioners after the polls close.

11) The county board of election commissioners will forward in a secured container the sealed "provisional voter envelopes" to the county clerk's office for completion of the certification portion of the envelope.

12) Upon completion of the certification portion of the envelope, the county clerk returns the secured container of sealed "provisional voter envelopes" to the county board for determination before certification of the election results as to whether the provisional ballots are valid and should be counted.⁴⁴

§ 906 Notice to Provisional Voters

Whenever a person casts a provisional ballot, the poll worker must provide the voter written information stating that the provisional voter may ascertain whether his or her vote was counted and the reason if not counted by accessing a free access system established by the Secretary of State.⁴⁵

The system that the Secretary of State has established for provisional voters involves written notice mailed first class to the provisional voter by the county board of election commissioners stating that the provisional ballot was or was not counted. If the provisional vote was not counted, the notice shall indicate the reason the vote was not counted. Sample notices may be obtained from the Secretary of State's office.

Access to information about an individual provisional ballot shall be restricted to the individual who cast the ballot.⁴⁶

§ 907 Preliminary Review of Provisional Ballots

The county board of election commissioners shall determine whether provisional ballots are valid before certifying the election.⁴⁷

The county board should examine the sealed outer "provisional voter envelope" (see Attachment "A"), including the challenged ballot portion, if any, the eligibility affirmation of the provisional voter, and the county clerk's certification of the provisional voter's registration status without unsealing the outer "provisional voter envelope" or removing or opening the inner ballot secrecy envelopes marked "PROVISIONAL BALLOT" containing the provisional voter's voted ballot.

Based upon the examination of the sealed outer "provisional voter envelope" and any additional information available, the county board shall make a preliminary determination of whether the provisional ballot was cast by a registered voter and was the correct ballot for the precinct of the voter's residence according to the precinct listed on the voter's eligibility affirmation.⁴⁸

The county board must complete the disposition portion of the "provisional voter envelope" and notify each provisional voter by first class mail as to whether or not his or her provisional ballot was counted.

If the county board makes a preliminary determination that the provisional ballot will not be counted, the county board must notify the provisional voter of the reason for rejecting the provisional voter's ballot and of the date, time, and place for a hearing before a final determination is made.⁴⁹

When reviewing the provisional ballot of a first-time voter who registered by mail and did not provide identification when registering or voting, the county board should not base its preliminary determination of whether or not to count the ballot solely on the provisional voter's failure to provide identification. The provisional ballot should be rejected only if there is an indication, independent of the failure to show identification, that the person who voted is not the person who registered. The county board must notify the provisional voter of his or her right to a hearing before a final determination is made.

When reviewing the provisional ballot of any person who was delivered an absentee ballot according to the precinct voter registration list, but then chose to cast a provisional ballot at an early voting or election day polling site, the county board shall:

1) Count the voter's absentee ballot rather than the provisional ballot cast at the polling site, if the absentee ballot was returned and processed for counting on election day before the time of counting provisional ballots, or

2) Count the voter's provisional ballot cast at the polling site, if the voter's absentee ballot was not returned or was not processed for counting on election day by the time of counting provisional ballots.

§ 908 Hearing

Having notified each provisional voter by first class mail of its preliminary determination and of a right to a hearing, the county board should, as expeditiously as possible by telephone, if feasible, notify the provisional voters whose ballots were preliminarily rejected of the date, time, and place for a hearing to be held before a final determination is made.

These provisional voters shall be allowed to provide identification or other evidence of their registration status to the county board, county board staff, or the county clerk at any time prior to the scheduled hearing.

These provisional voters must be allowed to appear before the county board to contest the county board's preliminary decision to disqualify their vote and allowed to present evidence that they were registered to vote and voted the correct ballot for the precinct of their residence.

If these provisional voters do not appear for a hearing or otherwise provide satisfactory evidence of their registration status, then the ballot shall not be counted.

The commission completes the election commission's portion of the list of provisional voters form (see Attachment "B"), and all records are preserved in accordance with the laws governing preservation of ballots and election materials.

The process of hearing and final decision must be completed by the deadline to certify the election results.

§ 909 Counting Provisional Ballots

Unless enjoined by a court of competent jurisdiction, a provisional ballot shall be counted if it is cast by a registered voter and is the correct ballot for the precinct of the voter's residence according to the precinct listed on the voter's eligibility affirmation. ⁵⁰

In counting provisional ballots, the county board must ensure the secrecy of the ballot pursuant to Amendment 81 of the Arkansas Constitution.

Provisional ballots are counted as follows:

1) the commission completes the election commission's portion of the list of provisional voters form (see Attachment "B"),

2) an election official opens the outer "provisional voter envelope" (see Attachment "A") for those on the list marked to be counted (see Attachment "B"),

3) the election official removes the sealed inner ballot secrecy envelope marked "PROVISIONAL BALLOT" containing the provisional voter's voted ballot,

4) the election official places the sealed inner ballot secrecy envelope marked "PROVISIONAL BALLOT" containing the provisional voter's voted ballot in a ballot box provided for that purpose,

5) when all the outer "provisional voter envelopes" have been opened and all the sealed inner ballot secrecy envelopes placed in the ballot box, the election official shakes the ballot box thoroughly to mix the sealed envelopes containing the provisional ballots,

6) the ballot box is then opened, the secrecy envelopes containing the voted provisional ballot opened, and the provisional ballots canvassed and counted, and

7) all records are preserved in accordance with the laws governing preservation of ballots and election materials.

§ 910 Prosecuting Attorney

Following each election, the county board of election commissioners may review the precinct voter registration lists for voters not providing identification at the polls and forward the information to the prosecuting attorney for investigation of possible voter fraud.⁵¹

If, upon examination of any provisional ballot, the county board suspects that a violation of election laws has occurred, the county board may refer the matter to the prosecuting attorney for that county.⁵²

§ 911 Preliminary and Unofficial Results

The processing and counting of provisional ballots, including hearings, shall not delay the declaration of preliminary and unofficial results required by Arkansas Code Annotated § 7-5-701. When reporting preliminary and unofficial results, the county board of election commissioners should also report the number of uncounted provisional ballots pending review and the number of outstanding overseas absentee ballots.

§ 912 Official Certified Results

The official certified results of the election shall include the votes cast on all provisional ballots that were determined by the county board of election commissioners to be valid.

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¹ A.C.A. § 7-5-416(a)(1)

²A.C.A. § 7-1-101(8), as amended by Acts 659, 959, and 1480 of 2009

³ A.C.A. §§ 7-1-101(10), as amended by Acts 659, 959, and 1480 of 2009; 7-4-102(a)

⁴A.C.A. § 7-5-414, as amended by Act 959 of 2009

A.C.A. §§ 7-1-101(10), as amended by Acts 659, 959, and 1480 of 2009; 7-5-418(b)(2)

⁵A.C.A. § 7-5-308(a)(2), as amended by Act 1480 of 2009

⁶ A.C.A. §§ 7-1-101(13), as amended by Acts 659, 959, and 1480 of 2009; 7-5-201(d)

⁷A.C.A. § 7-1-101(22), as amended by Acts 659, 959, and 1480 of 2009

⁸ A.C.A. § 7-5-312, as amended by Act 1480 of 2009; 7-5-316(a); 7-5-416(a)(4); 7-5-527(b); 7-5-615(a)

⁹ A.C.A. § 7-5-312(d),(e), as amended by Act 1480 of 2009

¹⁰ A.C.A. § 7-1-101(23), as amended by Acts 659, 959, and 1480 of 2009

¹¹ A.C.A. § 7-5-107, as amended by Act 959 of 2009

¹² A.C.A. § 7-5-110

¹³ A.C.A. §§ 7-1-101(25), as amended by Acts 659, 959, and 1480 of 2009; 7-5-304(c), as amended by Act 959 of 2009; 7-5-305(a)(8)(B)(ii); 7-5-306(b); 7-5-308, as amended by Act 1480 of 2009; 7-5-312(h), as amended by Act 1480 of 2009; 7-5-412(b), as amended by Act 250 of 2009; 7-5-416(b)(l)(F)(iii), as amended by Act 250 of 2009; 7-5-417(a); 7-5-418(d)

¹⁴ A.C.A. §§ 7-5-201(d)(1)(A); 7-5-305(a)(8)(A)

¹⁵ A.C.A. § 7-5-201(d)

¹⁶ A.C.A. §§ 7-5-201(d); 7-5-305(a)(8)(B)(ii)

¹⁷A.C.A. §§ 7-5-201(d); 7-5-412(b), as amended by Act 250 of 2009; 7-5-416(b)(1)(F)(iii), as amended by Act 250 of 2009

¹⁸ A.C.A. § 7-5-305(a)(8)(B)(i), as amended by Act 959 of 2009

¹⁹ A.C.A. § 7-5-306(a), as amended by Act 959 of 2009

²⁰ Amend. 51, §10 of the Arkansas Constitution

²¹ A.C.A. §§ 7-5-306(b), as amended by Act 959 of 2009; 7-5-418(d)

²²A.C.A. § 7-5-409(g)

²³ A.C.A. §§ 7-5-201(d); 7-5-305(a)(11); 7-5-411(b)

²⁴ A.C.A. § 7-5-312(d)

²⁵ A.C.A. § 7-5-312(a)(1),(e), as amended by Act 1480 of 2009

²⁶ A.C.A. § 7-5-312(b),(e), as amended by Act 1480 of 2009

²⁷A.C.A. § 7-5-312(c),(e)

²⁸ A.C.A. § 7-5-312(f)

²⁹ A.C.A. § 7-5-312(e),(h), as amended by Act 1480 of 2009

³⁰ A.C.A. § 7-5-312(g), as amended by Act 1480 of 2009

³¹ A.C.A. §§ 7-5-414, as amended by Act 959 of 2009; 7-5-417(a)

³² A.C.A. § 7-5-304(c), as amended by Act 959 of 2009

³³ A.C.A. § 7-5-312(e),(h), as amended by Act 1480 of 2009

³⁴ A.C.A. §§ 7-5-308(a)(1), as amended by Act 1480 of 2009; 7-5-312(h), as amended by Act 1480 of 2009

³⁵A.C.A. § 7-5-308(a)(2), as amended by Act 1480 of 2009

³⁶ A.C.A. § 7-5-308(a)(3), as amended by Act 1480 of 2009

³⁷ A.C.A. § 7-5-308(a)(4), as amended by Act 1480 of 2009

³⁸ A.C.A. § 7-5-308(a)(5), as amended by Act 1480 of 2009

³⁹ A.C.A. § 7-5-308(a)(6), as amended by Act 1480 of 2009

⁴⁰ A.C.A. § 7-5-308(a)(7), as amended by Act 1480 of 2009

⁴¹ A.C.A. § 7-5-308(a)(8), as amended by Act 1480 of 2009

⁴²A.C.A. § 7-5-308(b), as amended by Act 1480 of 2009

⁴³ A.C.A. §§ 7-5-308(d)(1), as amended by Act 1480 of 2009; 7-5-417(c)

⁴⁵A.C.A. § 7-5-308(c), as amended by Act 1480 of 2009

⁴⁶A.C.A. § 7-5-308(c)(3), as amended by Act 1480 of 2009

⁴⁷A.C.A. § 7-5-308(d)(1), as amended by Act 1480 of 2009

⁴⁸ A.C.A. § 7-5-308(d)(2), as amended by Act 1480 of 2009

⁴⁹Dotson v. Richey, 211 Ark. 789 (1947)

⁵⁰A.C.A. § 7-5-308(d)(2), as amended by Act 1480 of 2009

⁵¹ A.C.A. § 7-5-305(a)(8)(B)(iii), (iv)

⁵² A.C.A. § 7-5-308(e),as amended by Act 1480 of 2009

108.00.09 Ark. Code R. 005

9/15/2009