Steve Faris

Attorney General of Arkansas — Opinion
Opinion Delivered October 27, 1994

WINSTON BRYANT, Attorney General

Mr. Steve Faris, Chairman Hot Spring County Election Commission P.O. Box 32 Malvern, AR 72104

Dear Mr. Faris:

This is in response to your request for an opinion concerning absentee ballots that were mailed prior to the recent Arkansas Supreme Court ruling that Mr. Skip Cook is not a qualified candidate for Governor. You state that you have been able to change the regular ballots and remove his name, and will no longer send out absentee ballots with Mr. Cook’s name listed. The following questions have, however, arisen:

What do we do about the absentee ballots sent out prior to the Supreme Court ruling? Is it necessary for the County Clerk to send these individuals replacement ballots at this late date?

These questions are not clearly addressed under Arkansas law. While it has been held that election officers may correct a mistake in the printing of a candidate’s name before distributing the ballots (see 29 C.J.S. Elections § 173(e) (1965)), I have found no authority for the reprinting of absentee ballots after
they have been mailed. Arkansas Code Annotated § 7-5-209 (Repl. 1993) provides for the correction of errors or omissions in the printing of ballots upon court order following application of an elector. Again, however, I am uncertain whether this would be deemed applicable in the case of ballots that have already been delivered.

It should perhaps be noted in considering the matter that an effort at this time to send replacement absentee ballots would arguably run afoul of A.C.A. § 7-5-407(a) (Repl. 1993), which fixes the time by law for furnishing absentee ballots.

I am thus unable to conclude, in the absence of any clear authority or requirement in this regard and in view of the time restraint in § 7-5-407, that replacement absentee ballots must be sent out at this point. It is therefore my opinion that the answer to the second part of this question is in all likelihood “no.” It seems clear, however, with regard to the ballots that were sent, that any votes cast for Mr. Cook should not be counted. See 29 C.J.S. Elections § 173(f).

The foregoing opinion, which I hereby approve, was prepared by Assistant Attorney General Elisabeth A. Walker.

Sincerely,

WINSTON BRYANT Attorney General

WB:EAW/cyh