Opinion No. ( 1988 )

The Honorable Morril Harriman State Senator 522 Main Street Van Buren, Arkansas 72956

Dear Senator Harriman:

This is in response to your request for an opinion regarding a special election to be held in Franklin County on March 8, 1988, the day of the primary election. You have asked, specifically , whether there must be separate ballot boxes for the ballots used for voting on the special election issue.

I would advise, in the interest of caution, that separate ballot boxes be used in the special election. While there are no cases directly on point, the Arkansas Supreme Court has based at last one of its rulings upon the impropriety of using the Democratic and Republican primaries for voting on a matter clearly unrelated to the selection of party candidates. In Mears v. City of Little Rock, 256 Ark. 359, 509 S.W.2d 750 (1974), the Court invalidated Act 168 of 1973 which provided for the final election of city directors (in cities with a manager form of government) in the primary elections.

Although it is unclear how far the Mears case extends, prudence dictates that efforts be made to conduct the special election apart from the primary election. And as noted in Opinion Number 87-427, a copy of which is enclosed, all election laws generally applicable to this type of election will be controlling. This includes, in this instance, laws pertaining to establishing and allocating ballot boxes. A.C.A. 7-4-107; see also A.C.A. 7-5-317.

It is therefore my opinion that the answer to your question is yes; separate ballot boxes must be used for the purpose of voting on the special election issue.

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