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Four election laws in state inspire suit

Measures deliberately make voting harder, groups say by John Lynch | May 21, 2021 at 6:50 a.m.
A voter identification reminder is taped to a counter at the Benton County Clerk's office in Bentonville in this May 2014 file photo. (NWA Democrat-Gazette file photo)

Republican-sponsored laws that supporters say strengthen Arkansas' election integrity and bolster public confidence in the system deliberately make voting harder -- and sometimes impossible -- for poor and minority-group voters, a new lawsuit by a voter-education organization and an immigration-advocacy group says.

The 38-page suit by Arkansas United and the League of Women Voters of Arkansas calls on Pulaski County Circuit Judge Wendell Griffen to block implementation of -- and eventually strike down as unconstitutional -- four laws out of the 24 election measures passed this year.

"The new restrictive bills will not increase the public's confidence in the state's election administration or ensure election integrity -- they will do the opposite," League President Bonnie Miller said in announcing the litigation. "These bills were a solution in search of a problem that doesn't exist, and will disproportionately disenfranchise voters of color."

In a state already known for poor voter turnout, particularly by Black residents, state lawmakers have deliberately acted to make voting harder for no good reason, the suit states.

According to the suit, legislative backers of the new laws cannot point to any significant election-administration problems that would justify the changes they have enacted, with Arkansas' most recent general election being declared "one of the most successful elections in state history" by Republican Secretary of State John Thurston, who is a defendant in the litigation.

The four laws at issue in the litigation are Act 249, involving voter identification; Act 728, regulating campaigning around the polls during voting; Act 736, affecting how ballots are validated; and Act 973, which sets deadlines for mail-in absentee ballots.

The lawsuit, filed by Little Rock attorney Jess Askew, describes the new laws as unjust and unneeded by making it a criminal offense to give food and water to voters waiting to cast their ballots while also preventing parents from taking their children to the polls to watch them vote.

Other problems with the laws targeted by the suit include accusations that the legislation forces untrained election workers into acting as forensic handwriting experts, changes an important deadline for submitting some absentee ballots and removes protections for voters who struggle with meeting identification requirements.

The governor said Thursday that he had not yet seen the lawsuit but wasn't surprised to see litigation over controversial bills passed during this year's legislative session. Hutchinson, a lawyer, said he closely considered every bill he signed.

"The voting changes that were made, I looked at those carefully, and it looks like they would pass constitutional muster to me, we'll just wait and see," Hutchinson said.

The authors of the laws, Maumelle state Rep. Mark Lowery and state Sen. Kim Hammer of Benton, both Republicans, did not return emails requesting comment. No hearing dates have been set.

Hammer's Senate Bill 486, now Act 728, would create a 100-foot exclusion zone around polling site entrances during voting, allowing entry only for "lawful purposes."

Critics have drawn parallels with a Georgia law that specifically bans giving out food or drink to voters within 150 feet of a polling place, while supporters have told the newspaper that the law is intended to target loitering and would not prevent handing out refreshments to voters waiting in line to vote. Those waits can last for hours.

Proponents of the measure in the General Assembly said they had seen nonpartisan groups campaigning at polling sites under the guise of voter support.

According to the suit, which refers to the law as the Voter Support Ban, the law now prohibits the offer of "some comfort to help voters better endure long lines so that they may successfully cast their ballot."

"The Ban ... serves no purpose except to make voting more difficult for voters waiting in line," the suit says, describing it as a deliberate effort to discourage voter turnout.

The law also prohibits voters from being joined by relatives and friends at the polls, creating a particular potential hardship on "elderly voters and voters with disabilities who could benefit greatly from having support ... or [voters] who require translation assistance," according to the suit.

The law also would keep parents and grandparents from engaging in a "time-honored tradition" of taking their children and grandchildren to see them vote, denying them "a chance to see democracy in action and to instill the values of suffrage for future generations.

Violators face up to a year in jail and a $2,500 fine, while state workers who run afoul of the law must be fired immediately and then barred from ever again working for the state.

SB643, which became law as Act 973, also was sponsored by Hammer. The measure is intended to give more time to county clerks to process ballots and avoid errors, Hammer said in a committee meeting earlier this year.

The new law pushes up by two days the deadline for absentee voters to submit their ballots in person to the county clerk. Now, early voters must turn in their ballots by the Friday before the election. Under the old law, the deadline was the Monday before the election.

Mailed-in ballots still have an Election Day deadline, while overseas and military voters have until 10 days after the election to get their ballots to the clerk by mail.

The bill became law without the governor's signature. The Republican governor described the measure as "unnecessarily" limiting opportunities to vote before the election, stating that he allowed the bill to become law without his signature because it changes how the state has historically received absentee ballots.

Referred to as the In-Person Ballot Receipt Deadline in the suit, Hammer's law creates two deadlines for early voters, depending on if they submit absentee ballots in person or by mail, the suit states.

The law will likely cost many early voters their right to have their ballots counted because the law creates "an impermissible risk of arbitrary disenfranchisement, in violation of their constitutional rights."

"This earlier deadline for in-person delivery is arbitrary and serves no compelling government interest," according to the lawsuit.

Lowery sponsored House Bill 1112, which became Act 249, to eliminate an option for voters who can't immediately produce identification. Before, voters who couldn't provide IDs could instead give sworn statements to ensure their ballots were counted.

Lowery's HB1715, which is now Act 736, standardizes the requirement that a voter's signature on an absentee ballot be verified by checking the person's voter registration application. The standard has been law for some time, but supporters complained that it was being applied unequally across the state. Lowery described Act 736 as an effort to prevent an "unequal and unfair manipulation of the process" in an interview earlier this year with the Arkansas Democrat-Gazette.

The lawsuit says Act 249, described as the Affidavit Prohibition, will put voters who can't provide sufficient identification immediately at risk for having their ballots ignored. For the past two general elections, those voters could substitute sworn statements attesting to their identities for government issued identification.

The new law requires "them to rearrange their schedules, take time off of work and secure transportation to the county clerk's office -- all of this within fewer than six days of election day," the lawsuit states. The lawsuit warns that the requirement will disproportionately harm poor and minority-group voters, especially ones who don't have regular transportation or work full time.

Act 736, described in the suit as Absentee Application Signature-Match, imposes "an arbitrary and error-prone verification that will result in substantial burdens to voters and in some cases effectively deny them their right to vote," according to the lawsuit.

According to the suit, election officials must determine whether the signature on an absentee ballot matches the signature on the voter's registration.

Matching signatures requires expertise that Arkansas' election officials do not have, the suit states, describing signature matching as "an inherently flawed art, and non-experts are particularly bad at doing it with any accuracy."

"Studies conducted by experts have repeatedly found that non-experts are significantly more likely to misidentify authentic signatures as forgeries," the suit states. "One of the most significant problems with signature matching is that, despite popular lore, signatures can and do change -- often significantly and even over a short period of time."

The defendants in the litigation besides Thurston are the Republican-leaning state Board of Election Commissioners including members Sharon Brooks, Bilenda Harris-Ritter, William Luther Jr., Charles Roberts and J. Harmon Smith.

Information for this article was contributed by Rachel Herzog of the Arkansas Democrat-Gazette.

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