A new lawsuit was filed today over Arkansas election law, this one challenging the statute that says counting of absentee ballots must stop at 7:30 p.m. on election day, even if all ballots haven’t been counted.

This is, of course, a large issue this year given the big increase in absentee ballots. The state’s largest county, Pulaski, has obtained a high-volume card reader to process its absentee ballots and has so far expressed confidence it can get the job done. That machine can count about 3,000 ballots per hour during the 11 hours allowed, though some time first must be spent opening the ballot envelopes.

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Here’s a release on the lawsuit:

Today, attorneys from the law firm of Quattlebaum, Grooms, & Tull, in a coordinated effort with the National Lawyers Guild of Arkansas and the Young Black Lawyers’ Organizing Coalition (YBLOC), filed a lawsuit on behalf of two individual Arkansas voters against Arkansas Secretary of State John Thurston and members of the State Board of Election Commissioners, challenging Arkansas’ Absentee Ballot Statute that arbitrarily cuts off absentee ballot counting at 7:30 p.m. on Election Day and puts thousands of absentee ballots at risk of not being counted.

 

Under the law, election officials can only start counting absentee ballots at 8:30 a.m. on Election Day, and must also finish counting all absentee votes “prior to the closing of the polls on election day,” placing an impossible burden on local election officials and jeopardizing the ballots of thousands of absentee voters.

This year, with the threat of COVID-19 looming over the election, Governor Hutchinson signed Executive Order 20-48 that allows all Arkansans to vote absentee if they are concerned that voting in person may be a risk to their health. Given the grave health concerns that COVID-19 poses in Arkansas, the governor’s executive order greatly expanded Arkansans’ use of absentee voting, which makes the enforcement of the challenged law even more troublesome.

Arkansans submitted over 118,000 requests for absentee ballots, approximately 70,000 of which have already been returned—up from 30,000 that were submitted in the 2016 election. Arkansas’s highest-capacity counting machine can only count 20,000 ballots in a day, meaning it is unlikely that all ballots will be able to be counted by 7:30 p.m. on Election Day. This means that thousands of Arkansans will be stripped of their right to have their vote counted if the Arkansas Absentee Voting Statute is strictly enforced. The suit is seeking declaratory relief and a permanent injunction to stop the enforcement of this statute and to ensure that all absentee ballots are counted.

Strictly enforcing Arkansas’ Absentee Voting Statute especially risks the votes of senior citizens, military service members, college students, people of color facing voter suppression, and those with health concerns who have voted using absentee ballots.

This law apparently grew out of legislative unhappiness with some small counties taking a day or two to report absentee votes. But, like a lot of election law, it could have been better written. One wrinkle: Polls are open for in-person voters in line with the polls close, even if this extends voting for hours. And if machines break down, the counting sometimes can’t be done until long after polls close. Is it fair to throw out a ballot of someone who voted days in advance of an election because of the arbitrary cutoff?

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The lawsuit was filed in Pulaski Circuit Court and assigned to Judge Mary McGowan.

 

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