The Pulaski County Election Commission and County Clerk Larry Crane filed suit against the state Board of Election Commissioners on Wednesday, asserting that the board overstepped its authority when it established a policy on how county election commissions should handle absentee ballots under the state’s new voter-identification law.
The lawsuit seeks a judgment declaring that the board’s rules, passed Feb. 28, are invalid because the board never had the authority to make them, Pulaski County Attorney Karla Burnett said.Burnett also contends that the new rules go outside the scope of the law, Act 595 of 2013, which requires photo identification for voters at the polls and some form of identification for absentee voters.
“This law is not ambiguous,” Burnett said. “This law is clear on its face.”
The state board’s new rules make specific alterations to the voter-identification law, Burnett said, which is the job of the state Legislature, not a state board or agency.
Arkansas Code Annotated 7-4-101 permits the board to make rules to ensure “fair and orderly election procedures,” which was the basis for the board’s decision last month,say legal counsel Tim Humphries and board director Justin Clay.
The board’s rules allow for an absentee voter who does not submit the required identifying materials - such as a copy of a driver’s license or utility bill - with his ballot to be able to turn them in by noon on the Monday after the election. Further, the rules say absentee voters who didn’t include provide identification should be notified via first class mail from their respective counties that they need to submit approved forms of identification before their votes can be counted.
The rules were drafted by board staff members after the board commissioners asked Feb. 19 for an emergency rule change that would be “consistent with the Secretary of State’s interpretation of Act 595 of 2013 allowing for absentee ballots that are returned without required identification to be counted.”
“Ultimately, I think the board felt there may have been ambiguity in the law,” Clay said, adding that the board chose to err on the side of the voters.
The law permits Election Day voters to cast “provisional ballots,” which allow them to submit the required photo identification by noon on the Monday after the election, but it makes no reference to such leeway for absentee voters who do not submit the required identification.
State Sen. Bryan King, R-Green Forest, who wrote the law, said in January that the intent of the law was not to treat absentee voters differently.
Burnett said an email sent from Humphries to King and others on Jan. 8, 2013 - before the legislation was filed Jan. 14, 2013 - is proof that lawmakers did not intend to treat absentee ballots similar to those submitted in person. In the email, Humphries said the draft of the law did not allow absentee ballots to ever be treated as provisional ballots and advised King to clear up the issue.
The lawsuit says the language in question was not changed to address Humphries’ concerns.
A year later, the new law was put into practice for the first time in a special election in Craighead County to fill the state Senate seat vacated by Paul Bookout, a Jonesboro Democrat who resigned over ethics violations.
After the Craighead County Election Commission received absentee ballots without voter identification in that election, the secretary of state’s office advised members to give those voters until noon on the first business day of the following week to present their identification to election officials.
That same month, the state Board of Election Commissioners, via the legal counsel of Humphries, advised Craighead County that such a leeway period was not permitted for absentee voters under the state’s new law.
Secretary of State Mark Martin heads both agencies because state law requires him to serve as chairman of the state Board of Election Commissioners.
The county eventually followed the advice of the secretary of state’s office. Only a handful of the 83 absentee voters in question presented identification.
On Jan. 30, in preparation for Tuesday’s Pulaski Technical College millage election, the Pulaski County Election Commission asked for an Arkansas attorney general’s opinion on how absentee ballots without approved identification should be treated under Act 595.
On Feb. 10, the attorney general’s office released an opinion by Deputy Attorney General Elisabeth Walker and approved by Attorney General Dustin McDaniel that said Act 595 does not permit a leeway period for providing identification.
The Board of Election Commissioners then held a meeting Feb. 19 to discuss the absentee-ballot policy, in which commissioners decided to ask their staffs to prepare a set of rules that would marry the opinions of the state board and the secretary of state.
While state law says that the state board “shall” seek the counsel of the attorney general’s office when unsure of what an election law says, the attorney general’s office has said the state board never consulted with the office before adopting its new rules.
Humphries said Wednesday that his previous advice on the absentee ballot procedures in Act 595 was no longer a factor.
“It’s going to be our responsibility to enforce the rule,” he said.
On Tuesday, the Pulaski County Election Commission followed the advice of the attorney general’s office, and a few dozen absentee ballots were not counted for the millage election as a result.
Burnett said she wasn’t concerned about legal challenges based on the county’s procedures because the ballots in question Tuesday were too few to affect the outcome of the election.
However, Burnett said, she’s interested in resolving the matter before the May 20 primary. She noted that in 2012, 56 absentee ballots were submitted in the Pulaski County District 9 race for justice of the peace, which Wilma Walker won by only eight votes over fellow Democrat Judy Green.
“We need clarification on this issue,” Burnett said.