Absentee vote lawsuit moot, Thurston says; he calls virus fear accepted reason to skip going to polls

'I Voted' stickers are shown in this file photo. (NWA Democrat-Gazette file photo)

Arkansas Secretary of State John Thurston says a lawsuit over absentee balloting during the covid-19 pandemic is unnecessary now that he's acknowledged that fear of infection is justification for voters to cast ballots by mail or by drop-off.

Three voters in their 70s, two with health issues, sued the Republican, the state's top election official, two weeks ago, calling on Pulaski County Circuit Judge Wendell Griffen to order Thurston to allow absentee voting under the standards set by a 1985 Arkansas Supreme Court holding.

The three, Olly Neal Jr., a retired Arkansas Court of Appeals judge; Democrat Susan Inman, a former state elections director who unsuccessfully challenged Thurston; and Jan Baker, a lawyer who led the Disability Rights Center of Arkansas for more than 18 years, stated in court filings that they are suing because election authorities appear to be following a more restrictive standard for mail-in and drop-in voting than established by the high court 35 years ago. They stated they are afraid of catching the coronavirus if they are forced to go to the polls to vote, like Arkansas law requires.

Arkansas Code 7-5-405 allows absentee voting -- by mailing in a ballot or dropping one off ahead of the election -- if the voter provides a reasonable explanation for being "unavoidably absent" on Election Day. The Supreme Court ruled in 1985 that any truthful reason is sufficient to justify voting absentee, and limited the authority of election officials to inquire about the explanation.

But in the latest round of pleadings, Thurston says the lawsuit should be dismissed as unnecessary because of his June 25 statement -- two days after the suit was filed -- acknowledging that fear of infection is a legitimate reason to vote absentee.

"I understand many of our citizens may be assisting loved ones or are fearful of exposing a vulnerable family member to the virus. I understand that many are fearful of contracting or passing along the virus to others in the community," Thurston said in June. "It is my opinion and belief that our current laws are sufficient to allow the registered voters of Arkansas the choice of going to their local polling location or requesting an absentee ballot from their local county clerk."

Represented by Assistant Attorney General Michael Mosley, Thurston also stated in the Thursday pleading that the lawsuit should be dismissed because the plaintiffs want the judge to force election officials to send every registered voter an absentee ballot, which exceeds the court's authorities because that would violate the state's sovereign immunity protections.

Also pending before the judge is a petition by Republican Party Chairman Doyle Webb and Republican state Rep. Doug House, a North Little Rock lawyer, to defend the law.

They say they should be allowed to join the litigation because they have interests in protecting the law that Thurston can't be expected to defend.