The Honorable Sue Madison State Senator 573 Rock Cliff Road Fayetteville, AR 72701

Dear Representative Madison:

I am writing in response to your request for an opinion on the following question:

Should all special elections for initiatives and referendums be held on the second Tuesday of the month in light of Act 1441 (Senate Bill 618) or can they be set at any other time of the month?

RESPONSE

The calling of a special election is not authorized for initiatives. Amendment 7 to the Arkansas Constitution provides that "[a]ll measures initiated by the people, whether for the State, county, city or town, shall be submitted only at the regular elections. . . ." Ark. Const. amend. 7 (under "General Provisions"). Referendum measures may, on the other hand, be referred to the people at special elections. Id. See also A.C.A. § 7-9-105 (Supp. 2003) (form of referendum petition).¹

An additional clarification of your question is necessary. The act you have cited, Act 1441 of 2003, is relevant in the case of a county referendum election. This act amended, inter alia, A.C.A. §14-14-917(a)(4), which is part of the County Government Code governing the exercise of the referendum as to counties. As amended by Act 1441, Section 14-14-917(a)(4) states:

Time of Special Election. The county court shall fix the date for the conduct of any special elections on referendum measures. The date shall be not less than thirty (30) calendar days after the date of the order calling the election. However, where the electors exercise their powers to establish the necessity for a special election, the county court shall order an election according to the dates stated in § 7-5-103, but not less than thirty (30) calendar days after the date of the order calling the election.

A.C.A. § 14-14-917(a)(4) (Supp. 2003) (emphasis added).²

Thus, in the case of a county special election on a so-called "referendum petition measure" (see A.C.A. § 14-14-917(a)(2) and (3)), the time of the election must be in accordance with A.C.A. § 7-5-103, which provides as follows:

If no time is otherwise provided by law, all special elections to fill vacancies or to elect any officers where there appears to be a tie vote shall be held on the second Tuesday of any month at the time specified in the proclamation issued by the appropriate constituted authority, but in no event earlier than thirty (30) days following the issuance of the proclamation.

A.C.A. § 7-5-103 (as amended by Act 1441).

In response to your specific question, therefore, where a special election is to be held on a referendum measure following a petition of the electors, the election must be held on the second Tuesday of the month and cannot be set at any other time of the month. This is in accordance with A.C.A. § 7-5-103, as amended, as required by A.C.A. §14-14-917(a)(4), as amended. This requirement only applies to county referendum elections, and only in the case of a petition by the electors for the referendum election.³

Assistant Attorney General Elisabeth A. Walker prepared the foregoing opinion, which I hereby approve.

Sincerely,

MIKE BEEBE Attorney General

MB/EAW:cyh

¹ The legal voters of any municipality or county may order the referendum upon local measures. Ark. Const. amend. 7 (under "Local Petitions.") A city's governing body and the county quorum court may also refer ordinances to the local voters for adoption or rejection. See A.C.A. 14-55-301(a) (b) (Repl. 1998) (city referrals) and A.C.A. §14-14-905(f) (county referrals).

² The highlighted language previously read: "However, where the electors exercise their powers to establish the necessity for a special election, the county court shall order an election not more than forty five (45) calendar days after certification of sufficiency by the county clerk[.]" See A.C.A. § 14-14-917(a)(4) (Repl. 1998).

³ My research has disclosed no similar requirement with respect to special elections on municipal referendum measures. In this regard, A.C.A. § 7-9-111 (Repl. 2000) provides only that the date on "municipal referendum petition measures" will be set by the city or town council "[i]f the date set by the petition does not allow sufficient time to comply with election procedures[,]" and that the date "shall not be more than one hundred twenty (120) calendar days after the date of certification of sufficiency by the municipal clerk."