Justia.com Opinion Summary: Appellant Keith Hamaker filed an amendment complaint in the circuit court challenging the Pulaski County Election Commission procedures. After the circuit court entered an order making specific findings and rulings, Hamaker appealed, contending (1) the Commission had no right to allow a voting area undefined by election law, (2) the Commission should be required to force a voter to vote within the confines of a voting booth, (3) a voter does not have the right to vote outside the immediate voting area pursuant to Ark. Code Ann. 7-5-309(a)(4), and (4) section 7-5-309 as amended should be declared unconstitutional. The Supreme Court affirmed, holding (1) under section 7-5-309 the Commission is not required to force a voter to prepare his or her ballot in a voting booth, (2) section 7-5-309(a)(4) does not state that a voter may not mark a ballot outside of the immediate voting area, and (3) Appellant's remaining arguments were either inappropriate for appellate review or not preserved for appellate review.
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Cite as 2011 Ark. 390
SUPREME COURT OF ARKANSAS
No.
11-375
Opinion Delivered September
KEITH HAMAKER
29, 2011
APPELLANT
APPEAL FROM THE PULASKI
COUNTY CIRCUIT COURT,
[NO. 60CV-10-1848]
V.
PULASKI COUNTY ELECTION
COMMISSION
APPELLEE
HONORABLE MACKIE PIERCE,
JUDGE
AFFIRMED.
JIM HANNAH, Chief Justice
Appellant Keith Hamaker appeals the Pulaski County Circuit Court’s order regarding
election procedures. Specifically, he contends that appellee Pulaski County Election
Commission “has no right to allow a voting area undefined by election law.” He also
contends that the Commission should be required to force a voter to vote within the confines
of a voting booth. Additionally, he contends that a voter does not have the right to vote
outside the “immediate voting area,” which Arkansas Code Annotated section 7-5-309(a)(4)
(Supp. 2009), defines as the area “within six feet (6') of the voting booths.” Finally, in his
reply brief, Hamaker contends that Arkansas Code Annotated section 7-5-309, as amended
by Act 1033 of 2011, should be declared unconstitutional. Because this appeal pertains to
elections and election procedures, this court has jurisdiction pursuant to Arkansas Supreme
Court Rule 1-2(a)(4) (2011). We affirm.
In his first amended complaint filed in the circuit court on July 13, 2010, Hamaker
Cite as 2011 Ark. 390
alleged that the Commission had breached the public’s trust by allowing a practice he
described as “Community Table Voting.” Hamaker stated that, on November 4, 2008, he and
his wife entered the polling place to cast their ballots at precinct 89, which was located at
Unitarian Universalist Church on Reservoir Road in Little Rock. According to Hamaker,
several people were marking their ballots at tables set up in front of the voting booths. He
noted that each table was large enough to accommodate up to ten people and that there were
approximately six people at one table and eight at another. Hamaker stated that those voters’
ballot selections were in clear view of the others sitting at the table and any person who passed
by the table.
Hamaker requested that the circuit court issue an order prohibiting the Commission,
in any future election, from
(1)
[a]llowing voting to take place at any community table, where ballots are
marked in open view of other voters at the table, and anyone passing by;
(2)
[a]llowing voting to take place in any area that does not fit the area so defined
by Arkansas Code Annotated section 7-5-309(a)(4), excepting such areas
needed to accommodate disabled voters; and
(3)
[a]llowing voting to take place in any area that does not ensure the secrecy and
privacy of the voter, excepting poll workers or persons named by disabled
voters to assist them as defined by Arkansas Code Annotated section 7-5310(b)(2).
Hamaker also requested that the circuit court order the Commission to file a report with the
circuit court sixty days prior to each upcoming election, up to and including the presidential
election of November 2012, that lists the number of voting booths to be placed at each
precinct in Pulaski County and demonstrates compliance with section 7-5-309(a)(1) (Supp.
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Cite as 2011 Ark. 390
2009), which concerns the number of voting booths required at each precinct.
The Commission filed a motion to dismiss,1 and Hamaker filed a motion for summary
judgment; the circuit court denied both motions. Subsequently, the circuit court held a
hearing on Hamaker’s complaint. Melinda Allen, Director of Elections for the Commission,
testified that when a voter receives a ballot, he or she can take the ballot to a voting booth to
vote privately, or, if the polling place has a table, the voter can take the ballot to the table. She
stated that ballot clerks are trained to let voters know that if they want to vote privately, they
must vote in voting booths. Allen also testified that the Commission was not in compliance
with the statutory requirement to provide one booth for every fifty voters. Donna Hamaker
testified that when she went to vote at precinct 89 in the November 2008 election, a poll
worker instructed her to go to a table to vote. She further testified that she was directed to
vote at a table in May 2010, but not in November 2010. Keith Hamaker testified that when
he went to vote at precinct 89 in the November 2008 election, a poll worker directed him
to sit at a table to vote. He stated that there were no dividers at the table and that voters were
sitting “elbow to elbow.” Both Mr. and Ms. Hamaker testified that they waited for booths
to become available for voting and did not vote at a table.
In an order entered December 22, 2010, the circuit court made the following findings
and rulings:
1
In its motion to dismiss, the Commission argued, inter alia, that the right to a secret
ballot is personal; therefore, Hamaker lacked standing to assert on behalf of others an alleged
violation of that right. The circuit court denied the Commission’s motion to dismiss, and the
Commission did not file a cross-appeal on the issue of standing.
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Cite as 2011 Ark. 390
1.
Arkansas Code Ann. § 7-5-309(a)(1) currently requires the provision of at least
one (1) voting booth for each fifty (50) registered electors in the last-preceding
comparable election at each polling site.
2.
The number of voting booths to be provided at each polling location is to be
based upon the number of voters who voted at the polling site on Election Day
in the last-preceding comparable election. Those persons voting early or by
absentee ballot shall not be included in the calculation.
3.
The Pulaski County Election Commission shall have until the May 2012
Primary Election to come into full compliance with Ark. Code Ann. § 7-5309(a)(1) or its successor.
4.
The Pulaski County Election Commission shall report to this Court, 30 days
prior to any election, the progress it has made in complying with Ark. Code
Ann. § 7-5-309(a)(1) and this ruling. A copy shall be sent to the Plaintiff in this
matter.
5.
The Pulaski County Election Commission shall train poll workers to direct
voters to a voting booth to mark the ballot. Poll workers shall be trained not
to direct voters to any other location to mark a ballot.
6.
However, nothing in this Order shall be interpreted to indicate that the Pulaski
County Election Commission must force a voter to prepare his/her ballot in
a voting booth. If a voter elects to forego using a voting booth, the Pulaski
County Election Commission is not in violation of this Order.
7.
The Pulaski County Election Commission shall not provide any tables to be
used specifically for the purpose of voting. This does not preclude the provision
of tables needed for the effective administration of Election Day activities.
Hamaker now brings this appeal.
Hamaker first contends that the Commission “has no right to allow a voting area
undefined by election law.” Specifically, he challenges the Commission’s practice of
facilitating what he refers to as “Community Table” voting. He states that, in addition to
providing voting booths, the Commission created a second voting area when it instructed poll
workers to direct voters to sit at tables set up for the sole purpose of marking ballots. Allen’s
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Cite as 2011 Ark. 390
testimony supports Hamaker’s assertion that the Commission had previously created a second
voting area at open tables that prevented voters from marking their ballots in secrecy. But the
circuit court ruled that the Commission was to discontinue this practice. The circuit court
ordered that the Commission train poll workers to direct voters to a voting booth to mark
their ballots and that poll workers shall be trained not to direct voters to any other location
to mark ballots. Moreover, the circuit court ordered the Commission not to provide any
tables to be used specifically for the purpose of voting. In sum, the circuit court ruled for
Hamaker on this issue, and he cannot complain on appeal of a ruling in his favor. E.g., Wilson
v. Fullerton, 332 Ark. 111, 964 S.W.2d 208 (1998).
To address Hamaker’s remaining arguments, we are required to interpret section 7-5309(a)(2), (4). Specifically, we must determine (1) whether the Commission must force a
voter to mark his or her ballot within the confines of a voting booth, and (2) whether a voter
has the right to vote outside the confines of the “immediate voting area.” We review issues
of statutory interpretation de novo. E.g., Hanners v. Giant Oil Co. of Ark., 373 Ark. 418, 284
S.W.3d 468 (2008). We are not bound by the circuit court’s decision; however, in the
absence of a showing that the circuit court erred, its interpretation will be accepted as correct
on appeal. Id. When reviewing issues of statutory interpretation, we keep in mind that the first
rule in considering the meaning and effect of a statute is to construe it just as it reads, giving
the words their ordinary and usually accepted meaning in common language. Id. When the
language of a statute is plain and unambiguous, there is no need to resort to rules of statutory
construction. Id. We construe the statute so that no word is left void, superfluous or
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Cite as 2011 Ark. 390
insignificant, and we give meaning and effect to every word in the statute, if possible. E.g.,
Brown v. Kelton, 2011 Ark. 93, ___ S.W.3d ___.
We begin with section 7-5-309(a)(2), which provides that “[e]ach voting booth shall
be situated so as to permit a voter to prepare his or her ballot screened from observation and
shall be furnished with any supplies and conveniences as will enable the voter to prepare his
or her ballot.” The Commission asserts that nothing in the language of subsection (a)(2)
requires the Commission to force a voter to mark his or her ballot within the confines of a
voting booth. The Commission is correct. In accordance with subsection (a)(2), the
Commission must situate the voting booths so as to permit a voter to prepare his or her ballot
screened from observation. “Permit” means “[t]o give opportunity for.” Black’s Law Dictionary
1255 (9th ed. 2009). Thus, pursuant to subsection (a)(2), the Commission must provide the
opportunity for a voter to prepare his or her ballot in a voting booth. Subsection (a)(2) does
not, however, require the Commission to force a voter to prepare his or her ballot in a voting
booth.
We now turn to subsection (a)(4), which Hamaker relies on for his contention that a
voter may not mark a ballot outside of the “immediate voting area” as it is defined in the
statute. Subsection (a)(4) defines “immediate voting area” as “within six feet (6') of the voting
booths,” and provides that “[a] person other than the poll workers and those admitted for the
purpose of voting shall not be permitted within the immediate voting area . . . except by
authority of the election judge and then only when necessary to keep order and enforce the
law.” Ark. Code Ann. § 7-5-309(a)(4). Subsection (a)(4) defines the immediate voting area
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Cite as 2011 Ark. 390
and states who may lawfully enter that area. But contrary to Hamaker’s assertion, subsection
(a)(4) does not state that a voter may not mark a ballot outside of the immediate voting area.
We add that “[t]he secrecy of the ballot is a personal privilege which the voter may
waive if it is his wish, but of which he cannot be lawfully deprived.” Schuman v. Sanderson,
73 Ark. 187, 193, 83 S.W. 940, 942 (1904) (quoting Jones v. Glidewell, 53 Ark. 161, 173, 13
S.W. 723, 726 (1890)). In Schuman, the evidence showed that when voters wanted to vote
openly or requested that one of the judges prepare their tickets, they were permitted to do
so, and not forced to prepare their tickets in booths. The appellant contended that the election
returns should be rejected because there was an open ballot rather than a secret ballot. This
court disagreed, stating that
[t]he evidence which comes accredited from the circuit judge establishes that there was
no deprivation by the judges of the secrecy of the ballot to any voter. When voters
desired to vote openly, or called upon one of the judges to prepare their tickets, they
were permitted as a privilege to do so, and not compelled to prepare their tickets in
booths, or have two judges make out the ballots. In the absence of any positive
practice by the voters sustained by the judges to force an open ballot and in the
absence of any proof of the voters being restrained from a free exercise of their
privilege, this evidence is not sufficient to reject the returns.
Schuman, 73 Ark. at 193, 83 S.W. at 942.
We reaffirm our holding in Schuman that a voter may waive his or her right to vote in
secrecy. Certainly no one may force a voter to cast an open ballot, and a voter may not be
restrained from exercising his or her privilege of voting in secrecy. But if a voter desires to
vote outside the confines of a voting booth, he or she may do so. A voter is not required to
avail himself or herself of the methods in place to ensure privacy.
Hamaker’s final point relates to the circuit court’s ruling that the Commission was
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required to comply with section 7-5-309(a)(1), which at the time of Hamaker’s suit provided
that “[a]t general, primary, special, and school elections in counties that use paper ballots, the
county board of election commissioners shall provide in each polling site at least one (1)
voting booth for each fifty (50) registered electors voting in the last-preceding comparable
election.” In his opening brief on appeal, Hamaker agreed with that ruling and contended that
it should be affirmed. In 2011, section 7-5-309(a)(1) was amended, and it now states, “At
general, primary, special, and school elections in counties that use paper ballots, the county
board of election commissioners shall provide voting booths for each polling site in a number
deemed appropriate by the county board of election commissioners.” Act of Apr. 1, 2011,
No. 1033, 2011 Ark. Acts ____. After learning from the Commission’s response on appeal
that the statute had been amended, Hamaker asserts in his reply brief that this court should
“review Act 1033 and declare it unconstitutional.” We do not reach this argument because
Hamaker did not raise it below. It is axiomatic that a party cannot raise a new argument for
the first time on appeal or when there has been no ruling by the circuit court, let alone raise
a new argument for the first time in a reply brief. McCourt Mfg. Corp. v. Rycroft, 2010 Ark. 93,
___ S.W.3d ___.
Affirmed.
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