Secretary of State Mark Martin’s office sent a letter Tuesday to county clerks offering advice on ensuring that voters aren’t improperly struck from voter rolls on the basis of a list the secretary of state distributed to the clerks in June.
The letter, signed by Chief Deputy Secretary of State Kelly Boyd, essentially defends the secretary of state’s actions to date. He said that, while the office distributed a flawed list of 7,700 voters based on data from the Arkansas Crime Information Center, it had warned clerks soon thereafter that the lists could be flawed. He says determining eligibility was not Martin’s responsibility but that of the clerks. He points out that the secretary of state has made the offer to “roll back” any deletions that clerks may have made based on the faulty list, and he “strongly recommend[s]” that counties that simply deleted all of the flagged voters after receiving the original list do indeed perform such a “reset.” He says only five counties have responded to an offer to perform the reset. He also says “if your county has not yet made any deletion based upon the ACIC felon data, we strongly recommend that you wait to do so unless and until more accurate information is available.” In other words, err on the side of not deleting voters unless it’s certain they should be deleted:
We hope to obtain more accurate data from ACIC in the future. … In the meantime, however, we believe it is best for the Clerks to refrain from deeming voters ineligible based on the ACIC felon data alone. We believe you should only deem a voter ineligible if you independently confirm the voter has been convicted of a felony and has not had voting eligibility restored under Amendment 51 through pardon or discharge of a sentence. This is the best way to ensure no eligible voter is accidentally disenfranchised.
If only Mark Martin’s office had given such explicit instructions to clerks to begin with. If only it had told county clerks to err on the side of the voter all along. If only it had offered instruction and assistance to clerks in performing the laborious process of independently confirming the status of dozens (or in some counties, hundreds) of felons.
But back on July 6, when Martin’s office sent a letter to county clerks alerting them to the error, there was little sense of urgency. “We have heard several concerns about the felon data which we received and passed along to you,” it begins, and says later, “There is potential for some errors to occur.” Here’s the strongest recommendation the secretary of state offered on July 6: “Given this potential, we suggest you proceed with caution when removing individuals from voter registration rolls.” There was no talk of the scale of the error; we now know that in some counties, between two-thirds and three-fourths of the names on the list were in fact eligible.
As for the “roll-back,” there was no mention at the time of it being “strongly recommended.” The July 6 letter says, “if individual counties wish, ES&S [the vendor that handles the voter registration database] can change the cancellations that were made last week.” In fact, when we previously asked Chris Powell, Martin’s spokesperson, about what guidance the office had for confused clerks, here’s what he said:
“It’s kind of the clerks’ prerogative about how they want to handle these things.”
It’s good the secretary of state’s office is finally affirming what we’ve been saying all along: err on the side of the voter and don’t disenfranchise anyone unless you’re absolutely sure they should be removed. Now, what steps will Martin’s office take to ensure the errors are fully corrected, given that it provided the bad data to begin with? We know there are indeed a number of counties (at least 17, by our count) that simply deleted everyone on the list they received. Perhaps those clerks should have been more diligent in vetting the data (or at least not acted on the flags), but surely the same is true of the state.
As two University of Arkansas law professors told us this week, ensuring the integrity of the data isn’t just Secretary of State Mark Martin’s ethical responsibility — it’s his constitutional one as well. Admission of error from Martin’s office may be too much to hope for, but it should at least be following up with every clerk individually to make sure that they’re aware of the scope of the problem and that they’re taking steps to correct it.
Powell provided the letter to us when finally providing information we’d been seeking from the office since last week, including a formal FOI request on Monday for readily available emails he’d sent to others last week. We’d been asking for better than a week for the number of people sent to county officials as potentially ineligible. Some were not felons. Some had felony records but had had their voting rights restored. Checking the list has proved a big task for clerks who’ve attempted it.
Martin has still not made himself available to talk about this issue. Apparently, he finally relented on FOI requests on advice from the attorney general’s office. I’ve been unable to get Powell to talk about Martin’s reluctance to supply information, whether to the Arkansas Times, the Arkansas Democrat-Gazette or the Arkansas Democratic Party.