7:30 won't end absentee ballots count, panel says

U.S. District Judge Brian S. Miller speaks at the David and Barbara Pryor Center for Arkansas Oral and Visual History in Fayetteville in this Sept. 19, 2019, file photo.
U.S. District Judge Brian S. Miller speaks at the David and Barbara Pryor Center for Arkansas Oral and Visual History in Fayetteville in this Sept. 19, 2019, file photo.

After a state board clarified Wednesday that every legally submitted absentee ballot will be counted by county boards of election commissioners, even if it takes them well past 7:30 p.m. on Election Day to do so, a federal judge declined to issue a directive that would have had the same effect, saying it wasn't necessary.

U.S. District Judge Brian Miller issued a written order Wednesday evening in response to a hastily filed lawsuit by two absentee voters in Pulaski County after they recently discovered that a state law, as amended in 2013, seems to prohibit election commissioners across Arkansas from continuing to count ballots after polls close Tuesday at 7:30 p.m.

The two women, Mary Cantwell and Marquisa Wince, feared that with an increase in absentee voting across the country this year because of the pandemic, their already-cast absentee ballots might go uncounted in the state's most populous county as election commissioners struggle to count each one in an 11-hour period.

The law doesn't allow the actual ballots to be opened and the vote tallying to begin until 8:30 a.m. on Election Day, although election officials in each county are allowed this year to get a 15-day head start on confirming that the paperwork accompanying the sealed ballots has been properly submitted.

[RELATED: Full coverage of elections in Arkansas » arkansasonline.com/elections/]

Even though attorneys for the state tried to assure Cantwell and Wince that the statute in question -- Arkansas Code Annotated 7-5-416(a)(5)(A) and (d) -- has been routinely ignored by election commissioners who don't finish counting by the designated time in normal election years, the women wanted to be sure, their attorneys -- John Tull and Christoph Keller -- told the judge in a hearing Wednesday afternoon.

Tull said he feared that somebody could, in this year's "very contentious, ugly election," cite the law at the last minute to try to stop the count, creating mayhem.

The general election is Tuesday.

Because the directive in the law is at odds with other parts of the statute, Tull said, he believes the law is clearly unconstitutional. Still, he said, "we think an order is needed to protect Mary Cantwell and about 100,000 other people in the state" who have voted by absentee ballot so far.

Cantwell was in the courtroom and testified, but Wince was taking a previously scheduled exam and couldn't be present, Tull said.

The state Board of Election Commissioners met Wednesday while the hearing in Miller's court was underway.

During a brief break in the court hearing, attorneys for the state learned that the board had issued an order in response to a question about the dispute from the Greene County Board of Election Commissioners.

A copy of the order was obtained and signed in the courtroom by Daniel Shults, director of the state board, who had just testified that his interpretation of the law was that all absentee votes must be counted, even after the polls close.

The order states: "The SBEC [State Board of Election Commissioners] states unequivocally that state election law requires the CBEC [County Board of Election Commissioners] to count every ballot that is returned by the statutory deadlines ... even if the actual process of counting continues past 7:30 p.m. on election night."

Earlier in the hearing, Tull questioned Shults, an attorney, about whether a declaration from the commission could supersede a statute. Shults replied that it was his opinion that a declaration can interpret a statute.

Tull wondered if there is any penalty in place for any county commissioner who doesn't follow the commission's declaration. Shults said the state board does have the authority to sanction county election commissioners. He said he considered a declaratory order from the state board "a judgment in advance."

Shults indicated that he didn't interpret the state law in the same way that Tull sees it, saying, "the requirement to count the ballots is unequivocal."

Tull asked if Shults could point to anywhere in the statute that gives county election commissions express permission to continue counting ballots after 7:30 p.m. Shults replied that he couldn't, but said other parts of the statute make that clear.

"I would add," he said, "that there is a criminal prohibition against not counting."

In response to a question from Assistant Attorney General Mike Mosley, Shults said he hadn't heard any "rumbling" that Pulaski County didn't plan to count ballots after 7:30 p.m. on Election Day.

Susan Inman, a former Pulaski County Election Commission director who now operates a nonprofit that teaches best practices for election officials, testified that Pulaski County, as well as other populous counties such as Benton, Washington and Sebastian, will use a high-speed absentee ballot tabulator provided by the secretary of state's office to tally votes on Election Day.

She said other less-populous counties will use an earlier version of the tabulator that isn't as fast, and even smaller counties will "just use a scanner that counts one ballot at a time."

Even with the high-speed counters, she said, Pulaski County has "always" had difficulty getting all ballots counted by the time polls close. She cited machine malfunctions, paper jams, even coffee spills that interfere with the machine's ability to read a ballot.

She said the absentee ballots this year are large and must be folded to fit into a sealed inner envelope, so extra time is required to flatten the ballots before the machine can count them.

At the end of the hearing, Miller said he understood Cantwell's genuine fear that her vote may not be counted.

"I can feel it coming from you," he told her.

But, giving a hint at his order to come, he said, "Why should the United States of America order the state of Arkansas to do something that it is saying, in a United States courtroom, that it is going to do?"

CORRECTION: County boards of election commissioners across the state will continue to count absentee ballots after 7:30 p.m. on Election Day if necessary to ensure all properly submitted ballots are counted, according to the state Board of Election Commissioners. An earlier version of this story misidentified the entity that tallies the ballots.

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