The national battle over voting by mail opened a front in Little Rock on Tuesday when a retired Arkansas Court of Appeals judge and a former state elections director filed suit to force election officials to abide by a 35-year-old state Supreme Court ruling that greatly expanded the right to absentee balloting.
Arkansas election authorities appear to have embraced a more restrictive standard for mail-in voting than the high court established in 1985, say Olly Neal Jr., the former judge, and Susan Inman, the former director, in their lawsuit that calls on Pulaski County Circuit Judge Wendell Griffen to order Secretary of State John Thurston to follow the Supreme Court holding in the November election.
They are further asking the judge to bar Thurston from requiring voters to explain why they would want to vote by mail.
No hearings have been scheduled.
Reached for comment on the litigation Tuesday, Thurston said the safety and security of the election is his top priority.
"My staff and I have been in ongoing communication with election officials from each of the 75 counties," he said via email. "Given where we are at with the COVID-19 pandemic, those county officials have conveyed to my office that they feel the current voting system will be adequate in November. Our office will continue to work with each county to provide supplies and resources to ensure that the upcoming Presidential election is safe and secure."
Thurston, a first-term Republican and former land commissioner, is the sole defendant in the suit as the state's chief election official and chairman of the state Board of Election Commissioners. He defeated Inman, the Democratic candidate for secretary of state, in 2018.
Thurston's policy limits opportunities for absentee voting so severely that voters will be forced during a pandemic to choose between risking their health to go to crowded and potentially unsanitary polls or giving up their constitutional right to vote, an "untenable" choice that violates the Arkansas Constitution, the 30-page petition states.
The litigation arrives at a time when mail-in voting has become a national debate, condemned by President Donald Trump and other Republicans as a gateway to fraud, while being embraced largely by Democrats as a safety precaution against contracting covid-19.
Arkansas legislators are waiting for Attorney General Leslie Rutledge to weigh in on the question of when is it legal to vote by mail. State Sens. Joyce Elliott, D-Little Rock, and Greg Leding, D-Fayetteville, asked Rutledge for an attorney general opinion on the issue more than two months ago after the Legislature's Joint Budget Committee, controlled by Republicans, rejected Elliott's proposal that would have allowed all voters to choose for this year only whether to cast ballots by mail or in person.
Under the law, Arkansas Code 7-5-401, voting must be done at the polls on Election Day. Absentee balloting by mail is allowed only for voters who can show they will be "unavoidably absent or unable to attend an election due to illness or physical disability."
As the secretary of state's office interprets that law, fear of getting sick is not a good enough reason to allow mail-in voting, according to the suit.
Neal, Inman and third plaintiff Jan Baker, a lawyer who led the Disability Rights Center of Arkansas for more than 18 years, say they are afraid of catching covid-19 from the crowded voter stations. Inman, 73, "is healthy and wants to stay healthy," but Baker, 75, and Neal, 78, say they are at high risk of dying if they are infected.
Baker and Neal have the autoimmune disorder rheumatoid arthritis, and Neal's chronic asthma has left him with 55% lung capacity. They have been very careful about following federal health guidelines to limit their exposure and prevent infection, particularly the recommendations on social distancing, according to the suit.
"Even though [Neal] is extremely concerned about standing in long lines at a polling site and fearful of being exposed to COVID-19 at a polling site, if Mr. Neal were not allowed to vote absentee, he would choose to risk his health, and potentially his life, and vote in person at a polling site to exercise his fundamental right to vote," the lawsuit states.
The three, represented by civil-rights attorneys David Couch and Preston Eldridge, argue that election officials should be bound by the 35-year-old Supreme Court ruling that says voters are not required to explain in detail why they can't vote in person, allowing voting by mail for any reason.
"The Arkansas Supreme Court held [in Forrest v. Baker] that any and all reasons or excuses are valid, legitimate excuses for an Arkansas citizen to be unavoidably absent to vote absentee," the lawsuit states.
The issue was before the high court due to a Crittenden County lawsuit by Claudie Maples Forrest and Eugene Alexander, two candidates for alderman in the city of Earle in 1984. They disputed the legality of some of the votes through a lawsuit against Walter Baker, who won his race by 26 votes, 590-564.
Gov. Asa Hutchinson did not return an email Tuesday seeking comment on the lawsuit, which describes him as "non-committal" about no-excuse absentee ballots and notes that he "has failed to take action to prepare for such voting" in November.
But Hutchinson is taking the threat of infection seriously, according to the lawsuit. He has issued at least 27 executive orders over the past 3½ months to deal with the coronavirus, including making changes to the state's legal system to protect businesses from liability related to covid-19.
Hutchinson also allowed mail-in voting for special elections in May through emergency executive orders that suspended the requirement for voters to explain why they wanted to vote absentee, the lawsuit states.
As proof of the pandemic's risks for Arkansas voters, the lawsuit cites the state's growing infection rate, stating that infections have increased 187% over the past month, with 16,083 cases and 227 deaths reported as of Monday.
Medical experts have stated that the best way to avoid infection is to avoid other people as much as possible, while the U.S. Centers for Disease Control and Prevention has endorsed mail-in voting and a number of states have modified their voter eligibility requirements to allow more voting by mail, the lawsuit states.
"Arkansas is increasingly becoming a covid-19 hotspot, and conditions are only getting worse," according to the lawsuit, which describes how medical experts are predicting that the virus might peak in September with more than 150,000 cases.
"Because there is no vaccine, social distancing measures, including maintaining at least six feet of space between people and not gathering in groups ... are the only known measures for protecting against transmission," it says.
The plaintiffs say they also want the judge to declare that fear of contracting covid-19 is a good enough reason to allow a voter to cast an absentee ballot.
They further argue that the voting laws that require an explanation or excuse to vote by mail conflict with the Arkansas Constitution's Article 3 statement that "Elections shall be free and equal. No power, civil or military, shall ever interfere to prevent the free exercise of the right of suffrage; nor shall any law be enacted whereby such right shall be impaired or forfeited, except for the commission of a felony."
The plaintiffs say Thurston can pay for the added expense of extended mail-in voting by tapping a $4.7 million fund allocated for Arkansas election expenses from the federal Coronavirus Aid, Relief and Economic Security (CARES) Act.