This memo is to provide notice to those school districts that plan to utilize Ark. Code Ann. § 6-14-102 (Act 1295 of 2003) in order to conduct your annual school election by absentee and early voting only. On August 23, 2004, the Attorney General’s Office issued AG Opinion 2004-247 (opinion attached). Specifically, the opinion provides that there are two conditions for conducting a school election by absentee ballot and early voting. Those conditions are: (1) no more than one individual has presented to the county board of election commissioners a petition supporting his candidacy or else has provided timely notice of his write-in candidacy; and (2) that no other ballot issues will be submitted to the electors. The AG Opinion provides that the allowances of Act 1295 does not apply to those school districts that a have a total millage issue for voter consideration that is more than the required uniform minimum millage rate (25 mills). In other words, if your district’s millage consideration would involve a millage levy larger than 25 mills, then your voters are faced with a ballot issue which must be submitted to district electors for consideration and, therefore, the district fails the second test for application of Act 1295. As a result, such a district is required to conduct the school election without using the provisions of closing polling places as allowed in the Act 1295.
For your information keep in mind that pursuant to Ark. Code Ann. § 6-14-106 (d), a school district board of directors has not more than ten (10) and not less than three (3) days prior to any school election to publish the required notice in a newspaper of general circulation identifying the polling site for each ward or precinct. Furthermore, pursuant to Ark. Code Ann. § 6-14-102 (d), the board of directors of a school district has the authority to request the county board of election commissioners to call for a special election for the purpose of considering a rate of tax for additional millage for maintenance and operations or for debt service as authorized by Arkansas Constitution, Amendment 74, provided: (1) all constitutional and statutory requirements for a special election are met; (2) the date of the election is approved by the director; and (3) the special election is held on the second Tuesday of any month. Therefore, those districts previously planning to utilize the provisions of Act 1295 but failing to meet the two-part test should plan on conducting an election with appropriate polling places for school and other relevant ballot issues. Also, keep in mind that districts may consider a special election for millage issues, but that the special election must be conducted in sufficient time to allow the quorum court to legally levy the tax ordinance. Ark. Code Ann. § 14-14-904.
Any questions or comments should be directed to your legal counsel. The staff of the Department of Education will offer assistance on a general informative basis as the Department is prohibited from providing legal representation to individual school districts.