Opinion No. ( 1996 )

The Honorable Sharon Priest Secretary of State State Capitol Little Rock, Arkansas 72201-1094

Dear Secretary of State Priest:

This opinion is being issued in response to your recent question regarding voter registration deadlines. More specifically, you have presented the following question:

What are the deadlines to register to vote in the elections that are scheduled to be held on the following dates:

a. May 21, 1996 — Preferential Primary Election

b. June 11, 1996 — General Primary Election

c. September 17, 1996 — School Election

d. November 5, 1996 — General Election

RESPONSE

The deadline to register to vote in all of these elections is governed by the provisions of Amendment 51, § 9 of the Arkansas Constitution and by the National Voter Registration Act of 1993 (P.L. 103-31). Amendment 51 applies to both of the primary elections and to the general election by virtue of its express language; it applies to the school election by virtue of A.C.A. § 6-14-108, which makes it applicable to school elections. The National Voter Registration Act applies to all of the elections about which you have inquired, by virtue of its express terms.See National Voter Registration Act, Section 3(1).

Amendment 51, § 9(b) states that "[r]egistration shall be in progress at all times except during the thirty-day period immediately prior to any election. . . ." Under § 9(c)(2) of Amendment 51, persons who register by mail may vote if their mailed applications are "postmarked not later than thirty (30) days before the date of the election, or, if the form is received by mail without a postmark, not later than twenty-five (25) days before the date of an election."

The National Voter Registration Act requires that applicants be allowed to vote if their registration forms are submitted, postmarked, accepted, or received not later than "the lesser of 30 days, or the period provided by State law, before the date of the election." See National Voter Registration Act, Section 8.

The manner in which the language of § 9(b) of Amendment 51 has been historically interpreted and applied in Arkansas has led to a potential conflict with the provisions of § 9(c)(2) of Amendment 51, as well as with the provisions of the National Voter Registration Act. Traditionally, the deadline for voter registration has been calculated in Arkansas by counting the deadline period beginning with the day before the election and adding one day to the required deadline period. This practice allowed there to be thirty full days¹ prior to the election during which voter registration was not in progress. This outcome conflicts with the requirements of § 9(c)(2) of Amendment 51, and with the National Voter Registration Act, both of which clearly contemplate registration on the thirtieth day before the election.

In my opinion, the language of § 9(b) is broad enough to be interpreted to allow a calculation of the thirty-day period by counting thirty days from the day before the election, without adding an additional day. The Arkansas Supreme Court has held that statutory language should be interpreted, if possible, so as to reconcile and give effect to all provisions. Thomas v. Cornell, 316 Ark. 366, 872 S.W.2d 370 (1994). Upon this basis, I interpret Amendment 51 to require a calculation of the registration deadline period, counting thirty days from the day before the scheduled election, without adding any additional days. Such an interpretation will operate to reconcile the provisions of § 9(b) of Amendment 51 not only with the requirements of the National Voter Registration Act, but also with the language of § (c)(2) of Amendment 51.²

Therefore, under these provisions of Amendment 51, § 9, and of the National Voter Registration Act, it is my opinion that the voter registration deadlines for the elections about which you have inquired are as follows:

May 21, 1996 — Preferential Primary Election

Thirty-day deadline for the receipt and postmark of voter registration applications: April 21, 1996

Twenty-five day deadline for the receipt of un-postmarked, mailed voter registration applications: April 26, 1996

June 21, 1996 — General Primary Election

Thirty-day deadline for the receipt and postmark of voter registration applications: May 22, 1996

Twenty-five day deadline for the receipt of un-postmarked, mailed voter registration applications: May 27, 1996

September 17, 1996 — School Election

Thirty-day deadline for the receipt and postmark of voter registration applications: August 18, 1996

Twenty-five day deadline for the receipt of un-postmarked, mailed voter registration applications: August 23, 1996

November 5, 1996 — General Election

Thirty-day deadline for the receipt and postmark of voter registration applications: October 6, 1996

Twenty-five day deadline for the receipt of un-postmarked, mailed voter registration applications: October 11, 1996

The foregoing opinion, which I hereby approve, was prepared by Assistant Attorney General Suzanne Antley.

Sincerely,

WINSTON BRYANT Attorney General

WB:SBA/cyh

¹ Under prior law, the deadline period was twenty days.

² It might be noted that even if we were to maintain the historic interpretation of Amendment 51, § 9 (b), thus counting thirty-one days from the date of the election, the National Voter Registration Act would nevertheless take precedence under the principle that federal law preempts state law in the event of a conflict between the two. In that event (i.e., if the National Voter Registration Act were given precedence in the matter), it would be necessary to calculate the registration deadline period by counting thirty days before the date of the election, without adding an additional day. Such a calculation would be "the lesser of 30 days, or the period provided by State law, before the date of the election." See National Voter Registration Act, Section 8.