Linda Satter of the Arkansas Democrat-Gazette added some wrinkles to the lawsuit over the Arkansas absentee voting law — perplexing ones thanks to contradictory action of Attorney General Leslie Rutledge’s office.
As we reported yesterday, a lawsuit was filed in Circuit Court yesterday to prevent strict enforcement of an Arkansas law requiring that absentee vote counting cease when polls close at 7:30.
The law is a sloppily written product of a legislative effort to speed some slow-counting rural counties. It has apparently been widely ignored. Election commissions, properly, count all the ballots. Eventually. Just as they allow people in line when polls close to vote no matter how long it takes for them to reach a voting booth.
Absentee voting will be at record levels thanks to the pandemic. It may be difficult to get all absentees counted on time. Pulaski County, which might have 30,000 absentees before it’s over, has a high-speed counting machine that can count 3,000 ballots an hour, but some 80 workers must first open the sealed ballot envelopes, so that will take time and it can’t begin until 8:30 a.m. election day. Eleven hours, 30,000 ballots. Prep time. Do the math.
Another complication is that absentee ballots may be submitted until 7:30 p.m. election day. In theory, that’s too late to be counted if the law is strictly obeyed.
Democratic Party Chair Michael John Gray indicated to me yesterday some discomfort about the filing of the lawsuit. What if the Arkansas Supreme Court would stick with recent precedent and say the plain language of the law must be obeyed, no matter how contradictory or plain stupid. And what if Republican Election commissioners in Democrat-heavy Pulaski County (key to a hot congressional race) command an end to counting with thousands of ballots uncounted?
The lawsuit seems driven by a fear that such a thing could happen without court protection.
And here, the attorney general steps in.
She opposes the lawsuit’s request for an order to suspend the 7:30 p.m. deadline for counting. It’s the law, she says, and she’s bound to defend it. She also moved to transfer the case to federal court. That’s possible legally as the lawsuit was initially framed, but why did she do this, except to ensure that a possible appeal would land before the Republican-dominated 8th Circuit Court of Appeals? Republican-dominated federal appellate courts have been death to voter rights lawsuits all over the country. This is a case primarily interpreting the STATE Constitution and STATE statutes. Why should a federal judge decide it and not the state Supreme Court? Maybe because the U.S. Supreme Court conservative bloc seems anxious to block the expansion of state voting rules at every opportunity. It recently wanted to enter a case interpreting the Pennsylvania Constitution.
This case ought to be easy. The Arkansas Constitution absolutely protects the right to vote. If a statute infringes on that right, it should be invalidated.
The plaintiffs have amended the complaint so that it may be heard in state court.
But wait, that’s not all. The Democrat-Gazette reported this from the attorney general’s office:
Stephanie Sharp, a spokeswoman for the attorney general, later reiterated the office’s duty to defend state election laws, adding, “Every timely and validly cast absentee ballot must be counted regardless of how long that process takes.”
The attorney general’s office also sent out a news release Friday afternoon reassuring voters that despite extra precautions in place this year, “when a ballot is cast, it will be counted.”
Got it? The attorney general of Arkansas is saying a state law it’s demanding in court to be enforced should be ignored.
Having seen the wildly partisan chair of the Pulaski Election Commission in action, I’m not ready to accept the word of a partisan attorney general that my absentee vote, cast weeks in advance, will be counted if it’s still in an uncounted stack at 7:31 p.m. (The ballots are shuffled before counting, not counted first-come-first-served.)
Again: This is a matter on which the governor could spare all the time and expense of litigation by using his emergency pandemic powers to guarantee that the virus’ impact on voting patterns doesn’t prevent all votes from being counted.
To date, his help on voting has been minimal. He’s a Republican. They don’t like to encourage more votes.