Federal Judge P.K. Holmes of Fort Smith today refused Secretary of State John Thurston’s request that a League of Women Voters lawsuit over Arkansas absentee voting procedures should be dismissed.

He said the state could not claim immunity from lawsuit over a voting rights issue and he said the lawsuit made a sufficient argument for the case to proceed to discovery and trial. He said he would not order a preliminary injunction because, even if plaintiffs can prove constitutional rights are violated by state procedures, the state would have an opportunity to correct them before the next election.

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The judge looked with apparent favor on the argument that absentee votes could be disqualified for errors or omissions not material to qualifications to vote.

Under rules in place when the lawsuit was filed (since made even stricter by the Republican-controlled legislature), Holmes wrote:

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Where absentee voters have only one opportunity to provide information reflecting their citizenship, residency, age, registration status, or photo identification, it would be difficult to find that rejection of their ballots because of an error or omission concerning this information violates the materiality provision. However, where State law requires absentee voters to provide some of that information several times and, as Plaintiffs allege, they have correctly provided that information at least once, but absentee voters’ ballots are nonetheless rejected on the basis of a mismatch or omission in one of the multiple documents they have provided, they have plausibly
alleged a denial of the right to vote on the basis of immaterial errors or omissions. As Defendants recognize the materiality provision is intended to address those state election practices that increase the number of errors or omissions on papers or records related to voting and provide an excuse to disenfranchise otherwise qualified voters. Discovery may yield evidence demonstrating the materiality of requiring this information to be provided on multiple forms, but at this stage of litigation the Court draws reasonable inferences in Plaintiffs’ favor, and the motion to dismiss these claims will be denied.

The lawsuit, filed last September, particularly challenged the match of signatures on voter registration records with those submitted to receive and then vote an absentee ballot. Absentee voters had no means to challenge a disqualification of ballots by the county election commissions for a perceived mismatch. With the rise in absentee voting in 2020 because of the pandemic, there was a significant rise in absentee ballots. They tended to favor Democratic candidates, which perhaps explains the even harsher requirements Republicans imposed in the 2021 legislature on absentee voting. With the photo ID requirement, there’s less need for a signature match, something still done in only a handful of states, the League argues.

Rep. Mark Lowery, a leader of vote suppression legislation and a candidate for secretary of state, even admitted signature matching is a flawed process as he retained it in a batch of legislation making it easier to disqualify votes and put more power in partisan hands to control elections. The League has also filed a lawsuit over the new state laws.

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The judge rejected Thurston’s arguments that county election commissions should also be defendants and said his office had ample power over election procedure to make him a proper defendant. Thurston also argued the plaintiffs didn’t have standing to sue. But the judge said, “The complaint alleges concrete and particularized injuries to both the organizational Plaintiff and the individual Plaintiffs, fairly traceable to and redressable by Defendants, though Defendants’ traceability and redressability argument merits further discussion.”

The case will now proceed to trial. It raises issues similar to those in a state court challenge of new laws and conceivably, if decided in time, could affect procedures in the 2022 election.