Disappointing news from a federal court in Fayetteville.
Judge P.K. Holmes has refused to expedite the schedule on the League of Women Voters’ lawsuit to make the state give absentee voters a chance to fix ballots challenged during the signature matching process. As it stands, voters don’t know a ballot has been rejected until after the election.
The canvassing process will begin 15 days before the Nov. 3 election, so time is of the essence. If there is to be a change ordered so voters have due process before losing their vote, the procedure needs to be put in place in time for election commissions to prepare to notify challenged voters.
The judge denied a motion to expedite in terms that seemed somewhat negative for the case.
The Court agrees with Plaintiffs that the looming deadlines and ongoing absentee voting make reaching a decision on the merits of their motion for preliminary injunction a matter of urgency, but it also acknowledges that there is some merit to Defendants’ argument that Plaintiffs’ own delay until September 22, 2020 to file this action contributes to the urgency.
The Arkansas absentee ballot verification framework appears unchanged since 2005, and the most obvious reason to address that framework now—the larger-than-normal number of voters casting absentee ballots due to COVID-19-related risks—has been apparent at least since those risks were clearly identified by the Governor of Arkansas on August 7, 2020, as a justification for casting an absentee ballot. In many cases, the imminence and magnitude of the identified harm might be enough to demonstrate good cause to expedite briefing even despite any delay by Plaintiffs.
In a case like this, however, which has the potential to affect election rules close in time to votes being cast, the Court’s exercise of discretion must be informed by additional considerations to those normally guiding a decision on injunctive relief. It is of great importance that any order mandating new election rules close to an election avoid adding to voter confusion or suppression. If Plaintiffs are to prevail, this Court’s obligation to be precise and correct in ordering injunctive relief is best met by allowing Defendants a full and fair opportunity to present all facts, law, and argument that might prevent that relief or require it to be tailored differently than Plaintiffs request. If Defendants prevail, then this additional period of time is immaterial.
The state has until Oct. 13 to respond. It can be expected, with Republican Secretary of State John Thurston as defendant, to oppose any measures that would ensure more votes could be counted.
The judge’s mention of the governor is worthwhile. Under his emergency powers, the governor could have taken many steps to ensure full participation in this election, including ordering the cure period sought here and also allowing counting of ballots postmarked by election day within the window allowed for counting overseas ballots. He dithered before finally setting aside the law that prevented an absentee vote on account of voter COVID fears. And he also dithered before allowing the canvassing process to begin early.
For those of you who have voted absentee, this is how it works. You mail and deliver to the county clerk an envelope that contains a sealed envelope with your ballot, a voter statement with name, address, birth date and signature and a photo ID. The county clerk checks that the mailing label on the outer envelope matches your absentee vote application. If it does, it turns the still-sealed envelope, with a copy of the absentee application submitted earlier, over to the election commission.
In Pulaski County, two-person teams will open the envelopes and check the ballot statement, one reading aloud the name, address and birthdate to the other, who checks it against records. If those match, the absentee application and absentee statement are placed on the table and the signatures are compared. There is no objective standard for this comparison. Generally speaking, latitude is given to the voter. But problem matches are set aside. These ballots are counted only if the Election Commission, a three-member, Republican-controlled body, approves it. There will be poll watchers for interested parties and candidates during this canvassing process and they may come prepared with challenges for some absentee voters based on information gathered earlier from absentee applications.
The potential for complications is high. It is particularly vexing that a voter with a sprained wrist might write a signature on a ballot statement sufficiently different from the absentee application that canvassers question it and the Election Commission invalidates the ballot. Because, under existing law, the voter won’t know it and have an opportunity to explain the difference.
The lawsuit could provide that option.
By the way: The New York Times reported today that Arkansas is one of only four states that match signatures but don’t provide a way for voters to contest mismatches. This signature obstacle is particularly galling in that Arkansas has a voter ID law in which the voter must submit a government photo ID to cast an absentee ballot. (There’s also a sworn attestation by signature instead of ID, which takes us back to the lack of a cure option.) Said the Times article:
Mark Gaber, the director of trial litigation at the Campaign Legal Center, a watchdog group that has brought five of at least 12 signature matching cases litigated this year, argues that it is problematic to rely on the practice to verify voters.
“Courts have found that there’s a high risk of wrongly being identified as not having signed your ballot,” he said.
The stakes are high. In 2018, 1.4 percent of mail ballots were rejected, more than 67,000 for signature mismatches. In a close race, particularly in swing states, such lost votes could be critical. Republicans have proven records as vote purgers. I just watched “All In: The Fight For Democracy,” the documentary about how Republican Brian Kemp effectively stole a gubernatorial election from Stacey Abrams and I’m still seething.
The absentee turnout is going to be huge. Donald Trump thinks, perhaps correctly, it will favor Joe Biden. Cynics suspect, perhaps correctly, that the Republican effort to challenge the record turnout will also be massive. As I reported earlier, Republican efforts to hamper the process in Democrat-heavy Pulaski County has already begun.