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Federal suit asks to extend state's deadline on absentee ballots

Filings in runoffs at issue by Linda Satter | March 28, 2020 at 8:52 a.m.

The nonprofit Christian Ministerial Alliance, backed by a national legal group, turned to federal court Friday hoping to force state officials to extend the deadline by which absentee ballots must be submitted to be included in results of Tuesday's runoff elections, in light of the covid-19 pandemic.

On March 20, Gov. Asa Hutchinson issued an executive order suspending this week's Tuesday deadline for absentee ballot applications to be emailed, faxed or mailed.

But the requirement that election officials receive absentee ballots by 7:30 p.m. on Tuesday -- election day -- for the ballots to be counted has not been suspended, a federal lawsuit filed in Little Rock complains. It asserts "that provision poses a direct and severe obstacle to absentee voting."

"We don't have the authority to alter election deadlines," Chris Powell, spokesman for Arkansas Secretary of State John Thurston, said Friday in response to the lawsuit, which he said Thurston was aware of and which followed discussions about the deadline between the governor's office and the secretary of state's office.

[CORONAVIRUS: Click here for our complete coverage » arkansasonline.com/coronavirus]

Powell pointed to news releases Thurston issued March 18 and Monday explaining the suspension of some laws concerning elections because of the pandemic, but clarifying that the upcoming Tuesday evening deadline by which absentee ballots must be received won't change.

Deuel Ross, an attorney for the NAACP Legal Defense and Educational Fund in New York City, which filed the lawsuit on behalf of the Ministerial Alliance, said Friday that Hutchinson has extended other election deadlines in response to the pandemic, and "I think the governor does have the power to extend [this deadline] under emergency powers."

Asked if he had specifically asked state officials to extend the 7:30 p.m. Tuesday deadline, Ross said, "we sent a letter to the secretary of state and because we didn't hear anything back, we went ahead and filed suit."

[DOCUMENT: Elections lawsuit » arkansasonline.com/328lawsuit/]

The lawsuit was filed in federal court because the refusal "to take adequate steps to protect the fundamental right to vote ahead of the 2020 elections, including the March 31 runoff," in the midst of an unprecedented national and statewide public health crisis, "is unconstitutional," Ross said.

The case was assigned to U.S. District Judge James Moody Jr., who has been asked to issue a temporary restraining order, which would last up to 14 days, followed by a preliminary injunction, that would block state officials from enforcing the requirement that the county clerk receive absentee ballots by 7:30 p.m. on election day in order for them to be counted for that day's runoff election.

Ross said he would like to see the state allow all absentee ballots postmarked by Tuesday to be counted.

[DOCUMENT: Motion of temporary restraining order » arkansasonline.com/328order/]

The election day receipt deadline "unconstitutionally burdens the rights of Arkansas voters, particularly black voters," the lawsuit alleges. "The United States is in the throes of an unprecedented crisis. As COVID-19 spreads throughout the country, Americans, including Arkansas residents, have been strongly urged by federal and state authorities to socially distance themselves to try to slow the spread of the disease in a communal effort to save their friends, neighbors, and families."

It adds that "Arkansas voters ... should not also be forced to make the untenable choice between their safety and potentially endangering the lives of others and exercising their fundamental right to vote. Yet the Election Day Receipt Deadline does just that. It imposes an arbitrary deadline for citizens who reasonably determine they cannot safely vote in person."

If not enjoined, the suit adds, the receipt deadline "will pose significant risks to voters seeking to exercise their right to vote in the upcoming March 31, 2020 election and in any election held while the crisis persists."

[DOCUMENT: Motion in support » arkansasonline.com/328motion/]

It specifically asks that Moody prohibit the state from rejecting ballots that are postmarked on or before Tuesday and that arrive at a polling place or the county clerk's office within 10 days -- at least -- from election day. It also asks Moody to require officials to presume that ballots without postmarks have been mailed on or before election day.

The plaintiffs also want the judge to order state officials to provide voters with adequate notice of any injunction that is issued, along with the procedures for absentee voting during the pandemic.

Jefferson County election commissioners recently asked Prosecuting Attorney Kyle Hunter to file a lawsuit in state court to postpone the election until May 19 because of coronavirus concerns. Hunter responded by saying that the prudent course of action would be to forge ahead with runoff preparations, as there is no mechanism in state law to support a delay.

Thurston told the state Board of Election Commissioners, which he chairs, that "to our knowledge, there is no provision giving at least the secretary of state or this board the authority to postpone the election."

Some other states have postponed their elections because of the pandemic.

In Arkansas, 12 counties have runoffs scheduled. They are Jefferson, Arkansas, Benton, Conway, Craighead, Garland, Grant, Greene, Hot Spring, Logan, Saline and White.

"Without intervention from this court, thousands of Arkansas voters risk being disenfranchised," the lawsuit asserts.

Metro on 03/28/2020

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