108.00.07 Ark. Code R. § 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.
Election officials at the polls must ASK all voters to provide one of the following forms of identification:
A current and valid photo identification (such as a driver's license),
A copy of a current utility bill showing the voter's name and address,
A copy of a bank statement showing the voter's name and address,
A copy of a government check or paycheck showing the voter's name and address, or
A copy of a government document showing the voter's name and address.15
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.
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[j1][j2] 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 election official must indicate on the precinct voter registration list that the voter did not provide identification and give the voter a REGULAR ballot.19
When a voter provides his or her name, address, and date of birth to an election official at the poll, and the voter's name is not on the precinct voter registration list, the election official must:
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.24
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 provisionally cast at the poll any ballot that he or she is legally entitled to vote.25
All poll watchers other than candidates in person 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.26
Poll watchers who are candidates in person are not required to present a "poll watcher authorization form", but must present some form of identification to an election official immediately upon entering the polling or counting location for the purpose of confirming the poll watcher as a candidate on the ballot.27
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.28
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.29
Poll watcher rights and responsibilities must be posted in plain view at each polling site, absentee ballot processing site, and counting site.30
Authorized poll watchers who are officially recognized at a polling site may observe the identity of voters presenting themselves to vote and may challenge any voter upon notifying an election official before the voter signs the precinct voter registration list and upon completing a "challenged ballot form" (see Attachment "A").31
When the election official at the absentee ballot processing site reads 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 officials must consider the ballot as a provisional ballot.32
Any voter who votes as a result of a federal or state court order or any other order extending the time for closing the poll must vote 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
The ballots of provisional voters should be handled as follows:
determination prior to the certification of the election results as to whether the provisional ballots are valid and should be counted.44
The county board of election commissioners shall determine whether the provisional ballots are valid before certifying the election.45
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 voter is registered in the county and whether the provisional voter cast his or her ballot in the correct precinct.
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, and if not, the reason not counted.
If upon preliminary review, the county board is unable to verify the provisional voter's registration status, determines that the provisional voter cast his or her ballot in the wrong precinct, and, therefore, makes a preliminary determination that the provisional ballot will not be counted, 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 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 received an absentee ballot according to the precinct voter registration list, but then chose to vote provisionally by early voting or at his or her polling site on election day, the county board shall:
Whenever a person casts a provisional ballot, the election official 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.46
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.47
Once the county board of election commissioners makes a preliminary determination that a provisional ballot should not be counted, the provisional voter must first be afforded the opportunity for a hearing.48
The county board must notify these provisional voters, as expeditiously as possible by telephone, if feasible, and by mail, of its reasons for rejecting the provisional voter's ballot and of the date, time, and place for a hearing.
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 decision to disqualify their vote and allowed to present evidence that they were registered to vote in the precinct where they cast their provisional ballot before the county board makes a final determination.
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 process of hearing and final decision must be completed by the deadline to certify the election results.
A provisional ballot shall be counted by the county board of election commissioners before certification of the election only upon verification by the county board of the provisional voter's registration status in the precinct.49
If following preliminary review or after the hearing process, the county board determines that a provisional ballot was cast in the correct precinct, the county board must ensure the secrecy of the ballot, pursuant to Amendment 81 of the Arkansas Constitution. The provisional ballot is counted as follows:
If following the hearing process, the county board is still unable to verify the provisional voter's registration status or makes a final determination that the provisional ballot was cast in the wrong precinct, the provisional ballot should not be counted. The commission completes the commission's portion of the list of provisional voters form, and all records are preserved in accordance with the laws governing preservation of ballots and election materials.
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. 50
If, upon examination of any provisional ballots, 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.51
The counting process for 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 county board shall include valid provisional ballot results with all other election results for each race in the official certification of results of the election.
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POLL WATCHER RIGHTS AND RESPONSIBILITIES
A poll watcher may be:
Official recognition of poll watchers:
Poll watcher credentials:
Poll watchers may:
Poll watchers representing a candidate or political party may:
Poll watchers may not:
1'A.C.A. § 7-5-416(a)(1)
2A.C.A. § 7-1-101(6)
3A.C.A. §§ 7-1-101(8); 7-4-102(a) /Act 559 of 2007
4A.C.A. §§ 7-1-101(8); 7-5-414; 7-5-418(b)(2) /Act 556 of 2007; 7-5-614 /Act 835 of 2007
5A.C.A. § 7-5-308(a)(2) /Act 224 of 2007
6 A.C.A. §§ 7-1-101(11); 7-5-201(d)
7 A.C.A. § 7-1-101(18)
8A.C.A. §§ 7-5-312(a), (b), (e) /Act 224 of 2007; 7-5-413(d); 7-5-417(a)
9A.C.A. §§ 7-5-312(c), (e) /Act 224 of 2007; 7-5-316(a); 7-5-413(d); 7-5-416(a)(4); 7-5-527(b); 7-5-615(a)
10A.C.A. § 7-5-312(d), (e) /Act 224 of 2007
11A.C.A. § 7-1-101(19)
12A.C.A. § 7-5-107 "A.C.A. § 7-5-110
13A.C.A. § 7-5-110
14A.C.A. §§ 7-1-101(21) /Act 224 of 2007; 7-5-305(a)(8)(B)(ii); 7-5-306(b); 7-5-308 /Act 224 of 2007; 7-5-312(g) (/Act224 of 2007; 7-5-412(b) /Act 556 of 2007; 7-5-416(b)(1)(F)(iii); 7-5-417(a); 7-5-418(d); 7-7-308(d)
15A.C.A. §§ 7-5-201(d)(1)(A); 7-5-305(a)(8)(A)
16A.C.A. § 7-5-201(d)
17A.C.A. §§ 7-5-201(d); 7-5-305(a)(8)(B)(ii)
18A.C.A. §§ 7-5-201(d); 7-5-412(b) /Act 556 of 2007; 7-5-416(b)(1)(F)(iii)
19A.C.A. § 7-5-305(a)(8)(B)(i)
20A.C.A. §§ 7-5-306(a); 7-7-308(c)
21A.C.A. § 7-5-306(a)
22Amend. 51, § 10 of the Arkansas Constitution/Act 560 of 2007
23 A.C.A. §§ 7-5-306(b); 7-5-418(d); 7-7-308(d)
24 A.C.A. § 7-5-409(g) /Acts 543 and 556 of 2007
25 A.C.A. §§ 7-5-201(e); 7-5-305(a)(11) /Act 1020 of 2007; 7-5-41 l(b)/Acts 543 and 556 of 2007
26 A.C.A. § 7-5-312(d) /Act 224 of 2007
27 A.C.A. § 7-5-312(e) /Act 224 of 2007
28 A.C.A. § 7-5-312(b), (e) /Act 224 of 2007
29 A.C.A. § 7-5-312(c), (e) /Act 224 of 2007
30A.C.A. § 7-5-312(f) /Act 224 of 2007
31A.C.A. § 7-5-312(e), (g) /Act 224 of 2007
32 A.C.A. §§ 7-5-312(e) /Act 224 of 2007; 7-5-417(a)
33A.C.A. § 7-5-308(d) /Act 224 of 2007
34A.C.A. § 7-5-312(e), (g)(2), (3) /Act 224 of 2007
35A.C.A. §§ 7-5-308(a)(1), 7-5-312(g)(4) /Act 224 of 2007
36A.C.A. § 7-5-308(a)(2) /Act 224 of 2007
37 A.C.A. § 7-5-308(a)(3) /Act 224 of 2007
38A.C.A. § 7-5-308(a)(4) /Act 224 of 2007
39 A.C.A. § 7-5-308(a)(5) /Act 224 of 2007
40 A.C.A. § 7-5-308(a)(6) /Act 224 of 2007
41 A.C.A. § 7-5-308(a)(7) /Act224 of 2007
42A.C.A. §§ 7-5-308(a)(8) /Act 224 of 2007; 7-7-308(e) /Act 1020 of 2007
43 A.C.A. § 7-5-308(b) /Act 224 of 2007
44A.C.A. §§ ); 7-5-308(e) /Act 224 of 2007; 7-5-417(c) /Act 556 of 2007; 7-7-308(e)
45 A.C.A. § 7-5-308(e) /Act 224 of 2007
46A.C.A. § 7-5-308(c)(1) /Act 224 of 2007
47A.C.A. § 7-5-308(c)(2) /Act224of2007
48 Dotson v. Richey, 211 Ark. 789 (1947)
49 A.C.A. §§ 7-5-418(d); 7-7-308(d)
50A.C.A. § 7-5-305(a)(8)(B)(iii), (iv)
51A.C.A. § 7-5-308(f) /Act 224 of 2007
Notes
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