Gov. Asa Hutchinson said he hopes to make a decision by August 1 regarding allowing voters in Arkansas more flexibility to vote absentee this November. He made the comment at his daily press conference June 24 in response to a reporter’s question about a lawsuit filed in Pulaski County seeking no-excuse absentee voting.
He said has been communicating with the Arkansas Board of Election Commissioners, Secretary of State John Thurston, and county officials.
“My timeframe is to make some decisions based upon their guidance and their requests sometime before August 1,” he said. “And that way there is adequate time to prepare for the election and make any adjustments that are needed.”
Arkansas voters now must sign a form when voting absentee certifying that they will be “unavoidably absent” on Election Day,” that they will be unable to vote in person “because of illness or physical disability,” or that they reside in a state-licensed long-term care or residential facility. They also can vote absentee if they are a member or the spouse of a member of the military or merchant marines, or if they temporarily live outside the United States.
Written in all-caps at the top of the form are the words, “If you provide false information on this form, you may be guilty of perjury and subject to a fine of up to $10,000 or imprisonment for up to 10 years.”
Hutchinson in an executive order March 20 waived the requirement for voters to certify their reasons for voting in the March 31 runoff elections. He did the same for special elections held May 12 in an executive order issued April 24.
During a virtual town hall with KARK and KLRT reporters on April 9, he said he hoped a normal election could be held in November. However, he said, “In the event there is that continued emergency, I assure you that I would want to make sure that we can have no-excuse absentee voting for everyone in that election in November.”
But at his daily press conference on May 21, Hutchinson mistakenly said he had waived the rules through his executive orders to allow “no excuse early voting.” Voters are not required to give an excuse for voting early. Pressed by reporters, he asked if he had allowed no-excuse absentee voting and then said, “We’ll look at that. I have to review what we’ve done.”
Three plaintiffs filed suit In Pulaski County Circuit Court June 23 against Thurston. They asked the court to issue a declaratory judgment finding that Arkansas law allows voters to offer any reason or no reason to vote absentee, or to declare that fear of contracting COVID-19 is a valid excuse. The plaintiffs are Janet Baker, Susan Inman and Olly Neal.
“I don’t want to get sick, and I don’t want to spend my day standing in line at a polling place – social distancing or with people that are not social distancing,” Inman explained in an interview.
The lawsuit notes that the U.S. Centers for Disease Control and Prevention issued guidelines encouraging voting methods that minimize direct contact with other people. It says voters are faced with risking their health or foregoing their right to vote. Such a choice violates the Arkansas Constitution, which says, “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, upon lawful conviction thereof.” The lawsuit referenced a 1985 Arkansas Supreme Court decision, Forrest v. Baker, in which the court ruled that voters are not required to explain in detail their reason for voting absentee.
“If a real and convincing ‘reason” should be required, then it follows that someone would have to judge the sufficiency of that reason,” the lawsuit quotes the decision as saying. “Such a procedure could easily result in an elector being compelled to divulge personal secrets in order to exercise his constitutional right to suffrage.”
David Couch, the attorney for the plaintiffs, said the 1985 case involved a disputed close municipal election in east Arkansas.
Inman, a former elections director for the Pulaski County Election Commission and former county and state election commissioner, said local officials need time to prepare for a potential large turnout of absentee voters. Ballots must be printed on card stock from the state’s Nebraska-based vendor, Election Systems and Software. Printing is done by a vendor-certified printer.
In a statement released by his office, Thurston said, “My staff and I have been in ongoing communication with election officials from each of the 75 counties. 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.”
The lawsuit also asks the court to order Thurston to mail absentee ballot request applications to all registered voters in Arkansas. It says the state could use some of the funding it has received from the federal CARES Act for postage. The lawsuit notes that Sens. Joyce Elliott, D-Little Rock, and Greg Leding, D-Fayetteville, have asked for an attorney general’s opinion regarding COVID-19 being an excuse for absentee voting but have not received a response.