The state Board of Election Commissioners issued an order today that says counting of absentee ballots must continue until it is completed.

A poorly written statute intended to speed absentee vote reporting by counties and discourage late-night absentee ballot box stuffing says counting must be completed by poll closing at 7:30 p.m.

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A lawsuit (now lawsuits) were filed in state court and then removed to federal court asking that the state be enjoined from requiring a count by poll closing because of the pandemic-caused increase in absentee voting. Counting might extend into the night.

The state has fought the lawsuit. It said the rule has never been enforced and won’t be in this election. It argued in court that other parts of the law essentially require that counting continue, whatever one part of it might say about completing the count.

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Don Farmer, chair of the Greene County Election Commission, asked the state Board of Election Commissioners for clarification and that produced today’s order. It restates many of the points made in legal filings by the attorney general’s office. The state’s opposition to the lawsuit also said the order was expected today and should make the issue moot.

A hearing was held in federal Judge Brian Miller’s court this afternoon. He hasn’t yet issued a ruling but said he hoped to do so quickly.

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The conclusion of the state board order:

…the SBEC states unequivocally that state election law requires the CBEC to count every ballot that is returned by the statutory deadlines and which satisfies the substantive requirements governing whether an absentee ballot can be counted, even if the actual process of counting continues past 7:30 p.m. on election night. A.C.A. §§ 7-5-416(a)(5)(A) and 7-5-416(d). Moreover, it would be a violation of state election law to fail to count all ballots which are eligible to be counted regardless of how long the process takes. See, A.C.A. §§7-1-104(a)(14) and 7-5-416(b)(1)(N).

The sections at issue here do not constitute a deadline to complete the process of counting but, rather, they are a statutory mandate to the CBEC to schedule and staff the process of canvassing and counting absentee ballots so that the process can be concluded by the closure of inperson voting at 7:30pm. If, for any reason, the CBEC fails to satisfy this intent of the section the process of counting must continue until it is completed.

In reaching this conclusion the SBEC notes that both sub-sections of A.C.A. § 7-5-416 at issue here are qualified in such a way as to clarify any ambiguity that might otherwise exist. Subsection (a)(5)(A) states that the vote shall be counted prior to the closure of the polls “as provided under this section.” Subsection (d) is prefaced with “It is the intent of this section to require the election officials…” to count the ballots prior to the closure of the polls. It is the opinion of the SBEC that the purpose of this qualification is to clarify that both provisions must be read consistently with A.C.A. § 7-5-416(b)(1)(N). This provision has no qualification whatsoever and requires the counting of all ballots which the preceding processes determined are legally eligible to be counted.

Furthermore, when interpreting legal text, the SBEC will not read a law in such a way that leads to an absurd result. To conclude that A.C.A. §§ 7-5-416(a)(5)(A) and 7-5-416(d) require valid and timely ballots to be rejected simply because election officials could not complete a ministerial process is absurd and is inconsistent with the plain language of the text.

Problem: the Arkansas Supreme Court has become funny lately about taking words of statutes seriously. Talk about absurd. It was absurd when the court made a distinction between the words “acquired” and “passed” relative to background checks for petition canvassers and killed two petition drives for failure to satisfy a legal requirement that could NOT be satisfied.

I asked John Tull, attorney for plaintiffs, on whether the board’s order resolved the issue:  “It is nice to have something in writing particularly with all the maneuvering to avoid state court but my fear is it is essentially an advisory opinion and nothing to prevent a citizen from filing in his circuit court to enforce the plain language of the statute.”

UPDATE: Judge Miller decided late Wednesday that there was no need for an order in light of the state board’s action.

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