1. (a)

   1. (1) The county board of election commissioners shall determine whether provisional ballots are valid before certifying the election.

   2. (2) Based upon its examination of the “Provisional Voter Eligibility Affirmation”, the “Challenged Ballot Form”, if applicable, the “Reason for Voting Provisional”, the county clerk’s certification, and any additional information available, the county board of election commissioners shall make a determination of whether the provisional ballot was:

      1. (A) Cast by an eligible voter; and
      2. (B) The correct ballot for the precinct of the voter’s residence according to the:

2. (i) Precinct listed on the voter’s eligibility affirmation; or

   1. (ii) Registration address of the absentee voter.
   2. (3) If the county board of election commissioners makes an initial determination that an absentee ballot designated as a general provisional ballot will not be counted, the county board of election commissioners must notify the provisional voter of the reason for rejecting the provisional voter’s ballot and of the date, time, and place for a hearing and other information as provided in this part before a final determination is made.

3. (b) Procedures for the review of general provisional ballots.

   1. (1)

      1. (A) When reviewing the provisional ballot cast at the polls by a flagged first-time voter who registered by mail and did not meet the additional identification requirement when registering or voting, the county board of election commissioners should not base its initial determination of whether to count the ballot solely on the provisional voter’s failure to meet the additional identification requirement.
      2. (B) The provisional ballot should be rejected if there is a determination, independent of the failure to meet the additional identification requirement, that the person who voted is not eligible to vote in the precinct.

   2. (2)

      1. (A) When reviewing the provisional absentee ballot of a flagged first-time voter who registered by mail and did not meet the additional identification requirement when registering or voting, the county board of election commissioners should not base its initial determination of whether to count the ballot solely on the provisional voter’s failure to meet the identification requirement.

      2. (B) The provisional ballot of a flagged first-time voter should be rejected if:

         1. (i) The voter failed to provide the required identification; and
         2. (ii) There is a determination independent of the failure to meet the identification requirement that the person:
4. (a) (a) Who voted is not eligible to vote in the precinct; or

5. (b) (b) Failed to meet any of the other statutory requirements that would cause a voter’s absentee ballot to be rejected.

   1. (3) When reviewing the provisional ballot of any person who was delivered an absentee ballot according to the precinct voter registration list, but then chose to cast a provisional ballot at an early voting or election day polling site, the county board of election commissioners shall:

      1. (A) Count the voter’s absentee ballot rather than the provisional ballot cast at the polling site, if the absentee ballot was returned and processed for counting on election day before the time of counting provisional ballots; or

      2. (B) Count the voter’s provisional ballot cast at the polling site, if the voter’s absentee ballot was not returned or was not processed for counting on election day by the time of counting provisional ballots.

         1. (c) Procedures for the review of all unverified provisional ballots.

   2. (1)

      1. (A) The county board of election commissioners shall review the unverified provisional ballots after 12:00 noon on the Monday following the election in order to determine whether the person who cast each ballot returned to either the county clerk or the county board of election commissioners in order to verify his or her voter registration.
      2. (B) If, at this time, the county board of election commissioners determines that the voter who cast the unverified provisional ballot did return to the county board of election commissioners or county clerk before 12:00 noon on the Monday following the election and the county board of election commissioners determines there are no other grounds that would cause the ballot not to be counted, then the ballot shall be counted.
   3. (2) If the county board of election commissioners determined that the voter who cast an unverified provisional ballot failed to return to the county clerk or county board of election commissioners before 12:00 noon on the Monday following the election to verify his or her voter registration, that ballot shall not be counted.

   4. (3) The county board of election commissioners, through at least one (1) of its members, must attest to the disposition of each provisional ballot, stating:

      1. (A) Whether or not the ballot was counted; and

      2. (B) If rejected, the reason for not counting the ballot.

         1. (d) The county board of election commissioners shall notify each provisional voter by first class mail as to whether or not his or her provisional ballot was counted.

Codification Notes: This section, as promulgated prior to codification into the Code of Arkansas Rules, contained footnotes to the following: Footnote to 7 CAR § 91-109(a)(1) cited “65 A.C.A. § 7-5-308(e)(1)”. Footnote to 7 CAR § 91-109(a)(2) cited "66 A.C.A. § 7-5-308(e)(2)". Footnote to 7 CAR § 91-109(a)(3) cited "67 Dotson v. Richey, 211 Ark. 789 (1947)". Footnote to 7 CAR § 91-109(b)(2) cited "68 A.C.A. §§ 7-5-412(a)(2), (d); 7-5-308(e)(2)". Footnote to 7 CAR § 91-109(c)(1) cited "69 Ark. Const. amend. 51, § 13(b); A.C.A. § 7-5-308(f)". Footnote to 7 CAR § 91-109(c)(2) cited "70 Ark. Const. amend. 51, § 13(b); A.C.A. § 7-5-308(f)".