A preemptive challenge to the potential enforcement of an Arkansas law preventing county clerks from counting absentee ballots after 7:30 p.m. on Election Day was filed Friday, just 11 days before the general election.
"The statute says all ballots must be counted by 7:30," the same time that the polls close, said attorney John Tull of Little Rock, who filed the suit on behalf of two Pulaski County women who have submitted absentee ballots. He said that while the law has been in effect since 2013, it has never been enforced, but "the fear is that somebody will try to stop the counting."
Asked what he has heard to indicate the law might be enforced this year, Tull said, "I haven't heard anything specific, but it's certainly a concern."
Originally filed in Pulaski County Circuit Court, the lawsuit names Secretary of State John Thurston and the six members of the state Board of Election Commissioners as defendants.
Attorney General Leslie Rutledge's office, which is tasked with defending state laws, responded to the lawsuit by immediately transferring it to federal court, along with an answer opposing the request for an injunction to block enforcement of the state law.
[RELATED: Full coverage of elections in Arkansas » arkansasonline.com/elections/]
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."
Meanwhile, U.S. District Judge James Moody Jr., to whom the lawsuit was randomly assigned, recused from hearing it, noting its urgency and saying he wouldn't have time to hear it before the election.
The case was then automatically reassigned to U.S. District Judge Brian Miller, but the plaintiffs soon filed a motion asking to dismiss the case so they could refile it in state court without the claims that gave it both state and federal jurisdiction. The lawsuit is likely to be handled more quickly in state court.
It complains that Arkansas Code Annotated 7-5-416, known as the Absentee Ballot Statute, violates the Arkansas Constitution by creating a timeline that is impossible to comply with without disenfranchising voters whose ballots were received on time and that would otherwise be valid.
"Arkansas law gives election officials less than 11 hours to count absentee ballots," the suit states. It says the absentee ballot law prevents clerks from starting the counting until 8:30 a.m. the day of the election, which is Nov. 3 this year, and specifies that all counting must be completed by 7:30 that night.
The suit calls the deadline arbitrary, noting that "is particularly true in the upcoming election, where county clerks across Arkansas received more than 70,000 absentee ballots with two weeks still to go until election day." That number, it says, is "already more than double the total of all absentee ballots cast in the 2016 general election."
The plaintiffs are Marquisa Wince, a graduate student pursuing a law degree and a master's degree in public service, and Mary Cantwell, a retiree. Both voted absentee this year because of concerns about the spread of the novel coronavirus.
The suit notes that in a typical election year, thousands of voters in the state's most populous counties vote absentee, but the pandemic has rendered 2020 anything but typical.
It notes that because of the pandemic, Gov. Asa Hutchinson entered an executive order Aug. 7 that suspended part of the ballot statute, providing officials with more time to process absentee ballots, but didn't mention anything about giving them more time to count the ballots.
The governor also established in the order that qualified voters concerned about exposure to the virus could be considered "unavoidably absent" for purposes of the law, allowing them to vote absentee.
As a result, the lawsuit states, the number of requests for absentee ballots in Arkansas "has been dramatically higher in 2020 than in previous years." It notes that about 118,000 Arkansans requested absentee ballots by Oct. 20, according to Thurston's office, and of that number, more than 70,000 have already submitted their ballots.
"By comparison, almost 30,000 Arkansans voted absentee in 2016," according to the lawsuit, which notes that county clerks are continuing to receive requests for the ballots, with the cutoff for requesting them not until seven days before the election.
In Pulaski County, 10,039 registered voters had requested absentee ballots by Aug. 27, representing a 550% increase from the same date in 2016, according to the suit.
Absentee voters place their marked ballots in an inner envelope that is sealed and then placed, along with an executed voter statement and a verification of voter registration, in another envelope that is delivered to the clerk's office.
The two-step process for processing and counting absentee ballots begins with election officials meeting publicly to open the outer envelopes and confirm that each ballot was submitted by a qualified voter. Once the official determines that all required materials are included, and cross-checks the voter's name and information on the statement with the information on the ballot application, the still-sealed inner envelope is placed in the ballot box.
The lawsuit notes that normally, absentee ballot officials are prohibited from beginning the first step until the Tuesday before the election, but that this year Hutchinson's executive order allows them to begin that step up to 15 days before the election.
Once all the inner envelopes containing ballots have been placed in the ballot box, the box is to be shaken thoroughly to mix the ballots, and, "the ballots shall be opened and the ballots canvassed and counted," the lawsuit states, quoting the law.
It notes, "While the second step appears relatively straightforward, there are significant issues presented by the statute."
It includes an affidavit from Susan Inman, former director of elections for the secretary of state and a former member of the state Board of Election Commissioners, who said there "were always uncounted ballots at 7:30 p.m. on election night" and that this year, it will be "impossible for election officials to count every absentee ballot before the polls close."
The lawsuit points out contradictory language in the challenged statute, saying it allows absentee ballots to be delivered through 7:30 p.m. on Election Day, but also prohibits election officials from counting absentee ballots until "all of the inner envelopes containing the ballots have been placed in the ballot box," which seems to make it impossible for officials to count any absentee ballots before the polls close.
The lawsuit also point outs what it calls other conflicting portions of the absentee ballot law.
It seeks a declaration that the counting deadline violates the Arkansas Constitution and a court order that the defendants cannot refuse to count otherwise valid absentee ballots simply because the counting wasn't complete before the polls close.