Challenging Arkansas’ Four New Voter Suppression Laws
If there’s one category in which states don’t want to rank last, it’s voter turnout. In that category, Arkansas sits at the very bottom of the list, with the rate for Black voters significantly lower than the overall state average — an indication of systematic and decades-long voter suppression. Even with abysmal numbers, the turnout in the 2020 election was significantly better than previous years, largely due to the increased availability of mail-in ballots. Nonetheless, in the 2021 legislative session, the Republican-controlled General Assembly decided to push forward multiple pieces of legislation that add new burdens to several different aspects of the voting process.
In May 2021, a lawsuit was filed against four of the new laws, arguing that they violate the Arkansas Constitution. As we head into another crucial election year, these new laws will have very real impacts on voters in the state. With the trial set to begin on March 15, find all the facts you need to know about the challenged laws here.
Who is involved in the case?
The plaintiffs who brought the case are the League of Women Voters of Arkansas, Arkansas United and individual voters.
The defendants are Arkansas Secretary of State John Thurston (R) and all six members of the Arkansas State Board of Election Commissioners.
What laws does the case challenge?
The lawsuit challenges four distinct laws for individually and collectively violating the Arkansas Constitution.
Before sending a voter a mail-in ballot, Act 736 requires elections officials to match the voter’s signature from their mail-in ballot application with the signature on their voter registration application. If the elections official determines that the voter’s signature does not “match” — an error prone and arbitrary process, especially considering that elections officials do not receive training — the application is rejected. While the law permits voters to resubmit a mail-in ballot application, the submitted application once again will face the identical signature matching requirement.
Thanks to Act 973, Arkansas now has the earliest ballot receipt deadline in the country. Mail-in ballots that are returned in person must now be submitted to the county clerk’s office by the Friday before Election Day (previously, voters had until the following Monday to submit their ballots in person). In contrast, mail-in ballots sent through the U.S. Postal Service will be counted if they are received by 7:30 p.m. on Election Day.
Act 973 became law without the signature of Republican Gov. Asa Hutchinson, who said the new deadline “unnecessarily limits the opportunities for voters to cast their ballot prior to the election.”
Act 973 became law without the signature of Republican Gov. Asa Hutchinson, who said the new deadline “unnecessarily limits the opportunities for voters to cast their ballot prior to the election.”
Over the past decade, the Arkansas General Assembly has attempted several times to enact strict photo ID laws. A 2013 law was deemed unconstitutional by the state Supreme Court, but a 2017 law withstood legal challenges. Importantly, the 2017 law required voter identification, but in-person and absentee voters who lacked an acceptable form of identification could sign a sworn statement that the voter is who they say they are, under penalty of perjury. This sworn statement was called the affidavit fail-safe, and it permitted voters who utilized it to cast a provisional ballot and have their vote counted without further action.
However, the new Act 249 prohibits the affidavit fail-safe option. Instead, voters who lack proper identification, whether casting a ballot in person or by mail, must bring a form of identification to the county clerk’s office within six days of the election.
It’s important to note that when the affidavit fail-safe provision passed in 2017, lawmakers wrote it into the Arkansas Constitution to avoid a legal challenge. To do so, they amended Amendment 51 — the amendment passed in 1964 abolishing the state’s poll tax. However, the General Assembly is only permitted to alter Amendment 51 if the change is “germane to” and “consistent with [Amendment 51’s] policy and purposes.”
However, the new Act 249 prohibits the affidavit fail-safe option. Instead, voters who lack proper identification, whether casting a ballot in person or by mail, must bring a form of identification to the county clerk’s office within six days of the election.
It’s important to note that when the affidavit fail-safe provision passed in 2017, lawmakers wrote it into the Arkansas Constitution to avoid a legal challenge. To do so, they amended Amendment 51 — the amendment passed in 1964 abolishing the state’s poll tax. However, the General Assembly is only permitted to alter Amendment 51 if the change is “germane to” and “consistent with [Amendment 51’s] policy and purposes.”
Act 728 establishes a line-warming ban, sometimes called a voter support ban, similar to but even more vague than the high-profile laws in Georgia and Florida. In Arkansas, Act 728 bans anyone except voters from coming within 100 feet of a polling place. This blanket provision doesn’t name any exceptions, meaning it bans volunteers from distributing food and water to voters in long lines, family and friends from accompanying elderly or disabled voters and children from joining their parents.
Anyone found to violate this sweeping law is subject to a class A misdemeanor and deemed ineligible from holding office or employment with any department of the state of Arkansas. It’s important to note that in Arkansas, as in all states, electioneering (political or campaign activities) within 100 feet of a polling place is already prohibited.
Anyone found to violate this sweeping law is subject to a class A misdemeanor and deemed ineligible from holding office or employment with any department of the state of Arkansas. It’s important to note that in Arkansas, as in all states, electioneering (political or campaign activities) within 100 feet of a polling place is already prohibited.
How do the four laws impact voters?
Arkansas’ previous signature match requirement compared mail-in ballot applications to voter registration records, which contain broader (and often more recent) signatures than an original voter registration application. The plaintiffs assert that this new requirement is wholly unnecessary, and is simply a new and arbitrary disenfranchising measure for lawful voters.
There are a multitude of reasons why someone’s signature might change, even over a short period of time. These benign reasons can range from what type of pen and paper is used to someone’s mental, physical or emotional state on a given day. Several of the individual voters named as plaintiffs are elderly and assert that their signature has shifted over the years due to age and/or illness. The bill sponsor, Rep. Mark Lowery (R), even called this process “ripe with errors” when justifying another one of the challenged laws, Act 249.
Additionally, with resubmitted ballots matched against the same signature, there is no process for voters to overcome this burden. Yet, a voter must rectify an error, receive a mail-in ballot and return that ballot within a tight timeframe.
There are a multitude of reasons why someone’s signature might change, even over a short period of time. These benign reasons can range from what type of pen and paper is used to someone’s mental, physical or emotional state on a given day. Several of the individual voters named as plaintiffs are elderly and assert that their signature has shifted over the years due to age and/or illness. The bill sponsor, Rep. Mark Lowery (R), even called this process “ripe with errors” when justifying another one of the challenged laws, Act 249.
Additionally, with resubmitted ballots matched against the same signature, there is no process for voters to overcome this burden. Yet, a voter must rectify an error, receive a mail-in ballot and return that ballot within a tight timeframe.
Why is the state putting voters at a disadvantage if they choose to return their mail-in ballot in person? The plaintiffs argue that the new deadline is confusing to voters and creates an unnecessary distinction between mail-in ballots sent by mail and those dropped off in person. Since voters can request a mail-in ballot up to seven days before an election, this new deadline would give voters three days or less to receive that ballot, fill it out and return it in person, if that is their preference.
Additionally, Act 973 gives Arkansas “the unfortunate and telling distinction of having the earliest ballot receipt deadline in the United States,” as explained by the plaintiffs in their complaint.
Additionally, Act 973 gives Arkansas “the unfortunate and telling distinction of having the earliest ballot receipt deadline in the United States,” as explained by the plaintiffs in their complaint.
The complaint chronicles how areas with higher Black populations particularly benefited from the affidavit fail-safe provision. For example, in Little Rock’s Pulaski County, where 38% of the population is Black, the rate of provisional ballots cast in 2020 was almost twice the statewide average.
The new requirement for voters to return to a county clerk’s office in person to present correct identification requires a greater input of time and money to vote, especially for those who cast a mail-in ballot because they were unable to physically vote at a polling place.
However, the threat of disenfranchisement is greatest for those who lack identification. While the state of Arkansas provides free IDs, obtaining one poses significant burdens (time off from work, transportation, etc.), especially given the short six-day turnaround time and the fact that voters are not accustomed to these new, additional steps that didn’t exist during the previous two elections. The complaint cites research that concludes that “individuals who lack government-issued identification are more likely to be younger, less educated, and impoverished, and—most notably—nonwhite.”
The new requirement for voters to return to a county clerk’s office in person to present correct identification requires a greater input of time and money to vote, especially for those who cast a mail-in ballot because they were unable to physically vote at a polling place.
However, the threat of disenfranchisement is greatest for those who lack identification. While the state of Arkansas provides free IDs, obtaining one poses significant burdens (time off from work, transportation, etc.), especially given the short six-day turnaround time and the fact that voters are not accustomed to these new, additional steps that didn’t exist during the previous two elections. The complaint cites research that concludes that “individuals who lack government-issued identification are more likely to be younger, less educated, and impoverished, and—most notably—nonwhite.”
The complaint provides evidence that Arkansas voters often face hours-long lines at polling places — wait times that are compounded in areas with significant Black populations. In the aforementioned Pulaski County, there were accounts of voters who waited up to four hours to vote in 2020.
Sprawling lines are not a sign of a healthy democracy, but rather a sign that the state has insufficient polling locations or staff, which consequently suppresses voters. However, voter engagement organizations often distribute snacks and water to lessen this burden. Additionally, the complaint asserts that there’s no good reason why voters who need translation assistance, require company to wait in line or cannot obtain childcare should be unable to have friends, family or children with them.
Sprawling lines are not a sign of a healthy democracy, but rather a sign that the state has insufficient polling locations or staff, which consequently suppresses voters. However, voter engagement organizations often distribute snacks and water to lessen this burden. Additionally, the complaint asserts that there’s no good reason why voters who need translation assistance, require company to wait in line or cannot obtain childcare should be unable to have friends, family or children with them.
What are the plaintiffs arguing?
- The plaintiffs argue that all four laws violate the Free and Equal Elections Clause and the Equal Protection Clause of the Arkansas Constitution. The plaintiffs write that the “consequences of the Challenged Provisions are not a mistake or some collateral consequence of neutral acts of election administration. Instead, the burden on access to the franchise is the point.”
- The plaintiffs allege that challenged laws add substantial burdens on voters and, in some cases, will deny individuals the right to vote in violation of the Free and Equal Elections Clause. The challenged laws also all create arbitrary distinctions between similarly-situated voters (for example, applicants with signatures impacted by age, disability or handwriting; voters who drop off their mail-in ballots instead of mailing them; and voters who are assigned to polling places that have long lines). The plaintiffs allege that since these laws infringe upon constitutionally-guaranteed rights, they cannot stand unless they serve a compelling state interest and are narrowly tailored to that interest (a type of judicial review called strict scrutiny). For all four laws, plaintiffs argue that none of these laws serve a compelling state interest, provide for any election administration or logical goals and instead rest on the fictional justification of voter fraud.
- Additionally, the signature match requirement and new ballot receipt deadline allegedly violate the Voter Qualification Clause, which states that any person can vote if they are at least 18 years old, a U.S. citizen, an Arkansas resident and can provide identification. For example, mail-in voters are now subject to a signature matching qualification. And in the case of the ballot receipt deadline, voters are subject to a calendar-based qualification, both of which fall outside of the scope of the state constitution.
- The affidavit fail-safe prohibition is also challenged on the grounds that legislators did not successfully amend the provision in the Arkansas Constitution because it did not meet the amendment requirements. The plaintiffs allege that the affidavit prohibition is neither “germane to” nor “consistent with [Amendment 51’s] policy and purposes,” which abolished the poll tax.
- Finally, the line-warming ban is challenged for violating the right to speech and assembly protected in the Arkansas Constitution. The plaintiffs argue that the ban criminalizes the protected political speech and assembly of organizations and individuals who encourage voters to stay in line.
What are the defendants arguing?
- The defendants, in their official state capacities, and the Arkansas attorney general’s office allege that the plaintiffs lack standing because they have not asserted any proof that they have been affected by the acts, do not face a severe burden on their right to vote and failed to name necessary parties.
- The defendants also argue that the challenged laws deal with “election mechanics only” and do not infringe on the right to suffrage. Because of this, defendants argue that the court should apply a rational basis review instead of the strict scrutiny suggested by the plaintiffs. Even if strict scrutiny is applied, the defendants argue that the laws are constitutional because they serve the compelling government interest of “preserving integrity in the electoral process.”
- The defendants additionally argue that they are entitled to sovereign immunity, since the Arkansas Constitution states: “[t]he State of Arkansas shall never be made defendant in any of her courts.”
What has happened so far?
Since the case was filed in May 2021, several intermediary steps have occurred before the case reaches a full trial.
- In July 2021, the defendants sought to have the case thrown out by filing a motion to dismiss. The defendants argued that the plaintiffs failed to state claims for which the court can grant relief and lacked standing and that the defendants are protected from the lawsuit by sovereign immunity.
- In November, a judge formally denied their motion to dismiss, rejecting all three of the defendants’ arguments. The court held that plaintiffs included sufficient factual allegations in their complaint to seek relief; the plaintiffs adequately named potential harms related to the defendants to have standing; and since the case raises state constitutional questions, the defendants are not protected by sovereign immunity.
- Following their denied motion to dismiss, the defendants filed a special kind of appeal with the Arkansas Supreme Court on the specific question of sovereign immunity. This procedural move, an interlocutory appeal, allows for a ruling to be brought to a higher court while other aspects of the case proceed forward as expected.
- The Arkansas Supreme Court affirmed the lower court’s denial, holding that the defendants are not entitled to sovereign immunity in this case.
- In another attempt to end the case, the defendants filed a motion for summary judgment (when one party asks the judge to rule on a portion or all of a case without a full trial) based on sovereign immunity. Mid-February, the judge denied their motion for summary judgment.
- The defendants appealed this denial and tried multiple times to delay the trial, filing motions in both the trial court and state Supreme Court. These motions were all denied.
What’s next?
The trial was originally scheduled to begin mid-February, but was delayed due to COVID-19 restrictions. The four-day trial will now begin on March 15; it will not be streamed, but we’ll provide updates on any significant courtroom developments.
After the conclusion of the trial, Judge Wendell Griffen will determine if the challenged laws violate the Arkansas Constitution as alleged and, if so, he could block some or all of the laws from being enforced.