A federal judge in Fort Smith dismissed a lawsuit today by the League of Women Voters that sought to compel the state to give mail-in voters in Arkansas a post-election “cure period” to fix minor errors on a form that must be submitted along with their ballot.
Federal data shows Arkansas consistently throws out mail-in ballots at a higher rate than almost any other state, including its neighbors. Poll workers are required to compare a signature and other information on a voter statement form with the voter’s ballot application. Voting advocates say even a small discrepancy, such as a nickname or a shaky signature, can result in a ballot being thrown out by county election commissioners taking an overly aggressive approach.
The League of Women Voters and several plaintiffs filed the lawsuit in 2020, arguing the lack of a cure period violates due process and voting rights under federal law. But after three years of legal filings (and a changing roster of plaintiffs), U.S. District Judge P.K. Holmes today ruled for the defendants, Secretary of State John Thurston and members of the State Board of Election Commissioners.
Holmes granted summary judgement, meaning he made his ruling without having to hold a trial.
Here’s the 38-page order from Holmes dismissing the case.
The judge acknowledged the subjectivity involved when county election commissioners make determinations about whether to count a ballot or not. “For example, two election officials who were deposed in this matter reached different conclusions about whether a single-digit error in a ZIP code prevented an address from ‘comparing,’” he wrote.
Comparing signatures can be similarly vague: “One county official could not remember any of the specific signature aspects she was trained to look for, stating that she used ‘the Sesame Street way of comparing’ and that ‘[i]t’s a glance. Do these look to be similar, yes, no; on to the next one.’”
Holmes rejected the state’s arguments that sovereign immunity should shield them from the lawsuit and that all of the plaintiffs lacked standing to sue. And he said the court’s “rough count” of the number of ballots thrown out due to “mismatches or unfilled blanks” in a recent election was around 4% — a figure he called “certainly alarming.”
But, the judge said the state’s requirements still do not pose an “undue burden” on voters’ rights:
The “reasonable effort” and “reasonable voter” standards in Brakebill and Black Struggle lead this Court to conclude that the matching of names, addresses, and dates of birth does not substantially burden the right to vote. A reasonable voter fills out election-related forms as instructed by the forms themselves. Further, a reasonable voter, like any reasonable person, knows his or her name, address, and date of birth. A reasonable voter, making a reasonable effort, is therefore able to successfully provide complete and accurate names, addresses, and dates of birth across two election forms. Because the matching requirement does not affect a reasonable voter making a reasonable effort, it poses only a minimal burden on the right to vote.
The state’s signature comparison requirements pose more of a problem than the others, Holmes wrote:
Even the most reasonable of reasonable voters, according to Dr. Mohammed [an expert witness called by the plaintiffs], are prone to normal variations in their signatures. Age and national origin play a role in the consistency of one’s signature. Perhaps most troublingly, disability and illness—two of Arkansas’ permissible reasons to vote absentee— engender signature variation as well. A noncomparing signature is therefore a defect which generally cannot be avoided by the voter’s own efforts.
But the judge also said that “only a small fraction of one percent of absentee ballots are rejected on this basis” and that there are “alternative means” of voting — that is, casting a ballot in person.
Of course, voting in person isn’t an option for many people — those in nursing homes or otherwise incapacitated, those out of state during Election Day and early voting, and others.
Holmes acknowledged as much, but cited precedent from an Eighth Circuit case to say that that wasn’t reason enough to change the state’s rules: “It is just not enough to conclude that because some ballots are likely to be rejected because of a rule, the burden on many voters will be severe.” The state also has a legitimate interest in making and policing rules that protect against absentee ballot voter fraud, he said.
Attorney General Tim Griffin, whose office represented the defendants, cheered the ruling.
“This is an important win for the security and integrity of absentee ballots cast in Arkansas,” he said in a statement. “Our state has a compelling interest to prevent absentee ballot fraud and our legislature created a reasonable and non-discriminatory way to secure the process. I am happy the court agreed with us.”
Little Rock attorney David Couch, who was among those representing the plaintiffs, said he was “disappointed that the court found that the impediments imposed on voters were not substantial enough to have the court intervene. We should be doing all we can to make sure that voting is easy and that every vote counts.”