A lawsuit was filed today in Pulaski Circuit Court seeking to require no-excuse absentee voting in the November election.

The lawsuit, by three people who say they fear exposure to coronavirus through in-person voting, says the current restrictions on absentee ballots are unconstitutional but, even if a constitutional challenge fails, rules should be modified as other states have done because of coronavirus.

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Under current law, absentee ballots are allowed for military, people who are abroad and for people “unavoidably absent or unable to attend an election due to illness or physical disability.”

A question remains about what “unavoidably absent” means. The lawsuit says Attorney General Leslie Rutledge has so far not responded to a two-month-old request for an opinion by legislators. Voters can be prosecuted for perjury for being found in violation of the rule. Gov. Asa Hutchinson also has resisted saying what he would do about fall elections, though many states have taken steps to ease mail voting on account of the pandemic. Said the suit:

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To prepare for no-excuse absentee ballot voting, the State needs to act now to ensure sufficient resources to meet increased absentee voting by immediately making available absentee ballot request forms, to educate the public about the process of voting absentee, to ensure the state and counties have sufficient card stock for printing ballots, and envelopes for mailing ballots, and the required forms to ensure sufficient time for mailing, canvassing, and counting absentee ballots, among other considerations.

If Defendant do not act now to allow no-excuse absentee ballot voting in November 2020 or to allow fear of contracting COVID-19 as an excuse for absentee ballot voting
in November 2020, then it will be too late and Arkansas voters will be forced to choose between their health and their fundamental right to vote.

In short, voters like Plaintiffs are faced with a Hobson’s choice: (i) vote in
person and risk your health and the health of those with whom you live or for whom you care; or (ii) forgo your fundamental right to vote.

UPDATE: Secretary if State John Thurston seems prepared to fight the suit. His comment:

My staff and I have been in ongoing communication with election officials from each of the 75 counties. Given where we are at with the COVID-19 pandemic, those county officials have conveyed to my office that they feel the current voting system will be adequate in November. Our office will continue to work with each county to provide supplies and resources to ensure that the upcoming Presidential election is safe and secure.

 

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The Arkansas Supreme Court ruled  in a 1985 absentee ballot case that all excuses qualify under the statutory requirement that a person swear to being “unavoidably absent.”

Plaintiffs in this case ask the Court to strike down existing rules on absentee voting as unconstitutional legislative restrictions on the provision for “free and equal elections.” Alternately, they ask the court to issue a declaratory judgment that the earlier Supreme Court finding “applies to any and all reasons given to receive and vote by absentee ballot.”  Or, the suit says, the court could declare that fear of contracting COVID-19 is a valid excuse.

The suit asks for an injunction against requiring a voter to give a reason for requesting an absentee ballot and against prosecuting someone for perjury for saying COVID-19 was a reason for claiming unavoidable absence.

The suit also aks the court to order the defendant, Secretary of State John Thurston, to use the more than $4.7 million he received in federal COVID-19 relief money to pay for postage to deliver and return ballots and also to create drop boxes for absentee votes.

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The suit asks for an order that absentee ballot applications (not ballots themselves) be mailed to all registered voters.

If the suit is successful, some changes to the absentee ballot would be required, particularly in omitting the statement of existing exemptions. They were declared invalid by Gov. Asa Hutchinson for a handful of runoff elections in March and ballots issued then reflected the change in status.

The suit was filed by lawyers David Couch and Preston Eldridge on behalf of Jan Baker, a 75-year-old Little Rock resident who has an autoimmune disorder; retired Judge Olly Neal of Marianna, and Susan Inman of Little Rock, a former Democratic candidate for secretary of state and election supervisor at the county and state level.

The suit details the steady rise of COVID-19 cases in Arkansas and the prediction of a much larger peak of cases in the fall. It recounts steps in other states to ease absentee voting because of the risks of becoming infected in crowded polling places. The CDC has encouraged steps to separate people at polls but also has encouraged alternative means of voting to avoid personal contact. The suit cites disease reports that followed voting in Florida, Illinois and Wisconsin.

Hutchinson recognized the peril with a no-excuse absentee voting declaration in March. Arkansas’s escalating caseload is further evidence, the suit says.

COVID-19 is such a threat to Arkansans, that Governor Hutchinson has taken extraordinary measures through at least twenty-seven (27) executive orders dealing with issues related to COVID-19, including Executive Orders to alter the state’s legal system and protect businesses from liability related to COVID-1951; to allow corporations and banks to hold shareholder meetings by remote communication52; and to dispense with in-person witnessing and notarization of legal documents, among other orders.

So why not voting, too? It is not an easy process, so preparations and education are important, the suit says. An application must be submitted and those have to be ready for distribution at least 60 days before an election. Absentee ballots must be prepared and submitted to county clerks by Sept. 17. They must be returned by voters in multiple envelopes with three first-class stamps.

Historically, most people vote in person, including in early voting. But the suit said:

For most voters, that means physically appearing at a designated polling site where they must not only come into close contact with other voters, observers, and poll workers in violation of Social Distancing Measures, but they must also repeatedly touch equipment and materials such as voting machines, paper ballots, and shared writing instruments. At present, public health officials consider all of these activities as risking exposure to and/or transmission of COVID-19.

 

Given that “a year to 18 months is [a] very optimistic” timeline for the availability of a safe vaccine for the illness, voters will reasonably decide that practicing Social Distancing Measures and/or are self-quarantining is their only option for protecting their health and the health of those with whom they live.

 

But, as currently construed, the Arkansas excuse requirements do not recognize practicing Social Distancing Measures and/or self-quarantining as a valid reason for voting by absentee ballot.

 

Accordingly, the absentee ballot excuse requirements severely burden the fundamental right to vote of all eligible voters who are practicing Social Distancing Measures and/or are self-quarantining due to the COVID-19 pandemic.

 

In other words, as currently construed, the absentee ballot excuse requirements will likely disenfranchise tens or hundreds of thousands of Arkansans.

Here’s the lawsuit, which was assigned to Judge Wendell Griffen.

 

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