Arkansas Administrative Code
Agency 108 - Board of Election Commissioners
Rule 108.00.03-003 - Rules for Citizen Complaints of Non-HAVA Violations of Election and Voter Registration Laws
Current through Register Vol. 49, No. 2, February 2024
Scope of Rules
These rules set forth the procedures for providing uniform and nondiscriminatory resolution of any non-HAVA related complaint alleging a violation of election and voter registration laws in accordance with Arkansas Code Annotated § 7-4-118, except as to Arkansas Code Annotated § 7 -l-103(a)(1)-(4), (6), and (7), and except for any matters relating to campaign finance and disclosure laws that the Arkansas Ethics Commission shall have the power and authority to enforce according to Arkansas Code Annotated §§ 7-6-217 and 7-6-218.
§ 600 Definitions
"Complainant" means any person who believes that a violation of any election or voter registration law under the State Board of Election Commissioners' jurisdiction has occurred who files a complaint with the State Board of Election Commissioners, hereinafter referred to as the "State Board."
"Respondent" means any person whose actions are asserted, in a complaint filed with the State Board, to be in violation of any election or voter registration law under the State Board's jurisdiction.
"Frivolous" means clearly lacking any basis in fact or law.
"HAVA" is the federal Help America Vote Act of 2002 that established the Election Assistance Commission to assist in the administration of federal elections and allocates federal funds to states for election administration improvements, including replacing punch card and lever voting machines, improving accessibility for disabled voters, implementing a statewide voter registration system, voter and election official training, and other improvements.
"Letter of Caution" means a written disposition of an allegation against any person which is advisory in nature, clearly giving notice to the respondent that his or her action or lack of action is a violation of law.
"Letter of Warning" means a written disposition of an allegation against any person which is condemnatory in nature, expressing strong disapproval for the respondent's misconduct and expressing the view that the misconduct undermines public confidence in the integrity of the election process.
"Letter of Reprimand" means a written disposition of an allegation against any person which is condemnatory in nature, clearly giving notice to the respondent that his or her action or lack of action is a violation of the law. The reprimand will urge the respondent to refrain from engaging in the same activity again. A reprimand shall be considered more severe than a caution or warning.
§601 Who May File
Any person who believes that a violation of any election or voter registration law under the State Board's jurisdiction has occurred may file a complaint. The State Board may file a complaint of its own volition.
§ 602 Form of Complaint
A complaint must be in writing, notarized, signed, and sworn by the Complainant under penalty of perjury, and must clearly state the alleged election irregularities or illegalities, when and where the allegations occurred, supporting facts surrounding the allegations, and the desired resolution.
Filing of a frivolous complaint is considered a violation of Arkansas Code Annotated § 7-4-118.
§ 603 Filing a Complaint
A written complaint of election irregularities or illegalities, along with any supporting documentation, should first be submitted to the local county board of election commissioners.
Upon the lapse of five (5) business days and receipt of no response from the local county board of election commissioners or receipt of what the complainant considers to be an inadequate response, the written complaint of election illegalities, supporting documentation, and written response from the local county board of election commissioners should be submitted to the local prosecuting attorney, if the allegations deal with criminal violations.
Upon the lapse of five (5) business days and receipt of no response or receipt of what the complainant considers to be an inadequate response from the local prosecuting attorney, the written complaint, supporting documentation, the written response from the local county board of election commissioners, if applicable, and the written response from the local prosecuting attorney, if applicable, should be filed with the State Board.
A complaint must be filed with the State Board within thirty (30) days after the occurrence of the actions or events that form the basis for the complaint.
§ 604 Processing a Complaint
Upon receipt by the State Board of a complaint stating facts constituting a violation of election or voter registration laws under its jurisdiction signed under penalty of perjury, the State Board shall proceed to investigate the alleged violation.
If the complaint is not filed timely or in proper form, the State Board, acting through the Director, shall dismiss the complaint.
If the Director of the State Board determines that there is insufficient evidence to establish a violation, the State Board, acting through the Director, shall dismiss the complaint.
Upon review of the record, the State Board may determine that the complaint can be disposed of through documentary submissions or determine that an investigation is necessary.
The State Board may forward the complaint, along with the information and documentation as deemed appropriate, to the proper authority.
§ 605 Investigations
If the State Board determines that an investigation is necessary, the State Board shall provide a copy of the complaint with instructions regarding the opportunity to respond to the complaint to the party against whom the complaint is lodged.
The State Board may administer oaths for the purpose of taking sworn statements from any person thought to have knowledge of any facts pertaining to the complaint.
The State Board may request the party against whom the complaint is lodged to answer allegations in writing, produce relevant evidence, or appear in person before the State Board.
The State Board may subpoena any person or the books, records, or other documents relevant to an inquiry by the State Board that are being held by any person and take sworn statements.
The State Board shall provide the subject of the subpoena with reasonable notice of the subpoena and an opportunity to respond.
The State Board shall advise in writing the complainant and the party against whom the complaint is lodged of the final action taken.
§ 606 Hearing
If the State Board finds that probable cause exists for finding a violation of election or voter registration laws under its jurisdiction, the State Board may determine that a full public hearing be called.
If the State Board finds a violation of election or voter registration laws under its jurisdiction, then the State Board may provide one (1) or more of the following remedies:
§ 607 Imposition of Fines
In determining the fines to impose, if any, after making a finding of a violation, the State Board may consider all of the surrounding circumstances including, but not limited to, the seriousness of the violation, whether the violation was intentional or negligent, whether the respondent demonstrated good faith by consulting the State Board staff or the local county board of election commissioners, whether the violation was isolated or part of a pattern, and whether the respondent has shown good cause for the violation.
Fines for first offense violations will range from not less than twenty-five dollars ($25) nor more than five hundred dollars ($500) for each negligent or intentional violation. Fines for second offense violations will range from not less than five hundred dollars ($500) nor more than one thousand dollars ($1,000) and will be determined on a case-by-case basis depending upon the nature and degree of the negligent or intentional violation.
In the event a fine is not paid by the specified time, the State Board may file suit in the Pulaski County Circuit Court or in the circuit court of the county in which the debtor resides or, according to the Small Claims Procedure Act, § 16-17-601 et seq., in the small claims division of any district court in the State of Arkansas to obtain a judgment for the amount of any fine imposed according to its authority.
The action by the court shall not involve further judicial review of the State Board's actions.
The fee normally charged for the filing of a suit in any of the circuit or district courts in the State of Arkansas shall be waived on behalf of the State Board.
All moneys received by the State Board in payment of fines shall be deposited in the State Treasury as general revenues.
§ 608 Final Determination
The State Board shall complete its investigation of a complaint filed according to Arkansas Code Annotated § 7-4-118 and take final action within one hundred eighty (180) days of the filing of the complaint, except if a hearing is conducted, all action on the complaint by the State Board shall be completed within two hundred forty (240) days.
Any final action of the State Board shall constitute an adjudication for purposes of judicial review under Arkansas Code Annotated § 25-15-212.
§ 609 Records
The State Board shall keep a record of all inquiries, investigations, and proceedings.
Records relating to investigations by the State Board are exempt from the Freedom of Information Act of 1967, § 25-19-101 et seq., until a hearing is set or the director's investigation is closed.
The State Board may disclose, through its members or staff, otherwise confidential information to proper law enforcement officials, agencies, and bodies as may be required to conduct its investigation.
