A League of Women Voters-backed lawsuit challenging the legality of an Arkansas Election Code provision should be rejected by the federal courts as an impermissible last-minute attempt to circumvent unfavorable decisions by the Arkansas Supreme Court and state election regulators, lawyers for Secretary of State John Thurston say in response to the litigation.
Absentee ballots are required to be delivered by Thursday to election authorities in each of Arkansas' 75 counties for mailing to overseas military voters, among others. If the League prevails in this suit, the nonprofit civil organization's success would put those voters' ballots in danger of not being counted, the state lawyers argue, accusing the League of deliberately waiting to file the lawsuit as part of its litigation strategy.
"The last-minute nature of this lawsuit is itself a reason plaintiffs are not likely to succeed. [They] sat on it until after the Secretary declared their petitions insufficient ... and the Arkansas Supreme Court agreed," the 40-page response states. "[T]here is no question that plaintiffs have inexcusably delayed in bringing this suit. Delays in bringing election-related claims are unjustified when the plaintiffs wait to file their lawsuit until elections deadlines are imminent."
The League is trying to get a proposed redistricting constitutional amendment on the November ballot, collecting more than 144,000 signatures in a petitioning effort, which exceeds the 89,152 signatures required to qualify.
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Last month, the Arkansas Supreme Court disqualified the group's Open Primaries proposal on technical grounds, about a week before this federal suit was filed. On Thursday, state justices rejected a petition to reconsider their 6-1 decision from Aug. 27.
The League's federal suit claims the law the Arkansas high court relied on, an Election Code provision requiring the paid canvassers who collected the signatures to pass a criminal-background check, is so poorly written that the requirement is impossible to comply with. The League does not dispute the legality of requiring background checks, noting that none of its canvassers had disqualifying criminal convictions.
Ahead of a trial on the question of whether the provision is legal, the League is asking U.S. District Judge Timothy Brooks of Fayetteville to order Thurston to immediately begin the verification process to confirm the Open Primaries petition has satisfied the 89,000-signature requirement. The sides will argue online whether Thurston can be forced to begin verification procedures at 10 a.m. Monday
Thurston's response, written by lawyers from the Arkansas attorney general's office, Solicitor Nicholas Bronni, Deputy Ssolicitor Vincent Wagner and Assistant Solicitor Michael Cantrell, characterizes the lawsuit as deeply misleading in matters of law and fact that attempts to re-litigate election-related issues the judge has already ruled on.
The Republican secretary of state further argues that Brooks has no authority in this case to compel him to act because case law prevents federal judges from overturning questions of state law that have already been decided by state courts.
Thurston also says the League's proposed amendment has been disqualified by election regulators separately from the Supreme Court's decision. Nothing the federal judge can do can fix those disqualifying flaws, an insufficient number of petition signatures and a misleading ballot title, the state attorneys assert in Thurston's 41-page response.