The opinion
The Honorable Jean Edwards State Senator 8607 Ear Chadick Road Sherrill, AR 72152
Dear Senator Edwards:
This is in response to your request for an opinion on the following question:
Is it legal to use ballots declared spoiled to determine a runoff or the outcome of an election?
If a determination is, in fact, properly made that the ballots are irregular, then it is my opinion that those ballots are properly excluded and should not be used to determine the election results. Whether any particular ballots are declared spoiled is, however, a question of fact in each instance.
It appears from your correspondence that this question is asked with reference to the November 8, 1994, election for mayor in the City of Gould. Please note that I have enclosed a copy of Attorney General Opinion 94-366 , which addressed the casting of certain absentee ballots in that election. It is my understanding that the board of election commissioners in that instance did not count the ballots in question. The Circuit Court of Lincoln County subsequently ruled, however, that the election commission should have counted the ballots and should have included them in the tally for the election. See Washington, et al. v. Lincoln County Election Commission, et al., No. CIV-94-108-3 (Dec. 30, 1994). It is my understanding that no appeal was filed in that case. Thus, the circuit court order is the final decision with respect to that particular set of facts.
The foregoing opinion, which I hereby approve, was prepared by Assistant Attorney General Elisabeth A. Walker.
Sincerely,
WINSTON BRYANT Attorney General
WB:EAW/cyh