Opinion No. ( 1995 )

The Honorable John H. Dawson State Representative P.O. Box 336 Camden, Arkansas 71701-0336

Dear Representative Dawson:

This is in response to your request for an opinion on the following question:

If a person who is a resident of and a registered voter in precinct X moves his place of residence to precinct Y (whether or not in the same county) more than twenty days before the next election and fails to reregister or cause his voter registration to be transferred, may he legally vote in the election in either the precinct where he is registered or in the precinct of his new place of residence?

With regard to your question as it relates to a change of residence to another county, it is my opinion that a person, under the facts presented in your question, would not be entitled to vote in either the new county in which he resides or in the county from which he has moved. This conclusion is compelled by two provisions. First, Section 10(d) of Amendment 51 provides that "[u]pon a change of legal residence to another county within the State of Arkansas, an eligible voter must register again and shall record his former address in the spaces provided for such purpose in the Affidavit of Registration."¹ (Emphasis added.) This provision, by use of the term "must," is clearly mandatory. Secondly, A.C.A. § 7-5-201(a) (Repl. 1993) provides:

To be qualified to vote, a person shall have registered at least twenty (20) calendar days immediately prior to the election and in the manner set forth by the Arkansas Constitution, Amendment 51. The person shall be eligible to vote only in the county in which he resides² on the date twenty-one (21) calendar days prior to the election, unless specifically exempted under 7-5-406.³

Thus, under the constitutional section cited above, the person described in your question would not be entitled to vote in an election in the county to which he has recently moved since Amendment 51 requires that a voter reregister when he changes his residence to a new county in the state. Until the individual does so, he will not be eligible to vote in the precinct where he now resides.⁴ Additionally, it is my opinion that the person described in your question would not be able to vote in the county from which he just moved since A.C.A. § 7-5-201(a) states that a person shall be eligible to vote only in the county in which he resides on the date 21 calendar days prior to the election, and your question states that the person moves at least 21 days prior to the election.⁵

With respect to your question as it relates to a change of residence within the same county, it is my opinion that the person described in your question would not be able to vote in either the precinct from which he moved or the precinct in which he now resides. This determination is compelled by Section 10(a) of Amendment 51, which provides:

Upon a change or legal residence within the county, any registered voter may cause his registration to be transferred to his new address by signing a mailed request to the Permanent Registrar, giving his present address and the address at which he was last registered, or by applying in person at the office of the Permanent Registrar. . . . If the change of legal residence is made pursuant to subsection (a), (b), or (c) of this section during the twenty-day administrative cut-off period immediately prior to any election scheduled within the county the registered voter shall retain his right to vote in the scheduled election in the precinct from which he just moved. The Permanent Registrar shall make appropriate changes in the precinct registration files as necessitated by such change of address as outlined above. [Emphasis added.]

Because the person described in your question did not cause his voter registration to be transferred (under the first part of the section cited above), he cannot vote in the new precinct where he now resides. Additionally, because the person you describe did not move within the twenty day period (he moved before it) he is not entitled to vote in his old precinct under the second part of the section above. If he moves more than twenty days prior to the election he must transfer his residence with the Permanent registrar as provided in Amendment 51.

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

Sincerely,

WINSTON BRYANT Attorney General

WB:NAH/cyh

¹ Pursuant to Section 11(a)(2) of Amendment 51, it is the duty of permanent registrars (i.e., county clerks) to cancel the registration of voters who have changed their residence to an address outside the county.

² Subparagraph (b) of A.C.A. § 7-5-201 provides the following with respect to residency:

Residency shall generally be that place where one lives and works for a period of time, notwithstanding that there may be an intent to move or return at some future date to another place. Persons who are temporarily living in a particular place because of a temporary work-related assignment or duty post, or as a result of their performing duties in connection with their status as military personnel, students, or office holders, shall be deemed residents of that place where they established their home prior to beginning such assignments or duties. No person may be qualified to vote in more than one (1) county at any one (1) time.

³ Arkansas Code Annotated § 7-5-406 (Repl. 1993) provides that members of the armed forces, members of the merchant marine, and citizens temporarily residing outside the United States may make a request for an absentee ballot by submission of a federal postcard application as provided for in the Federal Voting Assistance Act of 1955 and may vote by absentee ballot, without registering, in any primary, special, or general election held in his election precinct if he is otherwise eligible to vote in that election.

⁴ Pursuant to Section 9(b) of Amendment 51, a voter must register at least 21 days prior to an election in which he intends to vote, as registration ceases during the twenty (20) day period immediately prior to any election scheduled within the county (registration during such period is, however, effective for subsequent elections). Accordingly, if the voter described in your question, who moved more than twenty days before the election, had reregistered in the county to which he moved, he would have been eligible to vote in the next election.

⁵ The person described in your question (who moved more than twenty days before the election), can vote in the election if he re-registers in the new county. We have found no provision of law, however, which would allow a person who moves within the twenty day period to a new county to vote in the election. He no longer resides in the old county and cannot, within the twenty day period, re-register in the new county. This may be the appropriate subject of legislative action, either through amendment of the statutes or amendment of Amendment 51. See Amendment 51, § 19.