Vote celebration and angst
It will be among the epic presidential elections. How, then, shall we vote? By what method, not preference, I mean. The preference is an easy choice, surely.
It appears possible that, at election time, the coronavirus will be active, perhaps even spiking. It is conceivable that, by then, we will have re-imposed activity restrictions.
Do we wish to ask perhaps 1.2 million Arkansas voters to take a chance on the virus by lining up—masked, we can hope—at polling places to participate in what might be the biggest political decision of their lives?
Or should we mail everyone a ballot, or at least everyone who wants one?
President Trump is agitated as usual. The prospect of voting by mail in any form distresses him greatly.
The convenience of a mail-delivered and mail-returned ballot—and the potential for fraud, Trump argues, though fraud has not been a factor in the few vote-by-mail states—will, he assumes, help Joe Biden.
And Trump seems to have a strong aversion to waking up next year a 74-year-old man who is not president.
Gov. Asa Hutchinson, recently polishing his Trumpian side, will not say. He presumably has the emergency power to waive any legal restrictions on absentee voting and, in so doing, essentially permit everyone to vote by mail this one time in the form of absentee ballots.
Hutchinson talks about a longer early-voting period with more early-voting sites, the point being to disperse the voting population into easier social distancing. He says he will decide beyond that by Aug. 1.
That would be enough time, he figures, to start printing absentee ballots by the hundreds of thousands, with different ones for different counties, and different ones for different subdivisions within counties.
This is a complicated deal. Implications are historic.
So, last week, three Arkansas residents saying they feared not being able to vote because of the virus, without specific and official permission to vote absentee without any excuse other than the virus, filed suit in Pulaski Circuit Court.
Represented by public-initiative guru David Couch and Little Rock lawyer Preston Eldridge, the plaintiffs seek to enjoin state officials from enforcing during this pandemic any restrictions on absentee voting.
The case was assigned to Judge Wendell Griffen, who might be expected to rule favorably.
Liberal Democrats have been busy celebrating the lawsuit and praising the plaintiffs and the two attorneys.
But then, on Thursday, state Democratic Party chairman Michael John Gray called. He told me the lawsuit was ill-advised, and not only in his view but that of election-law experts whom the party had sought out for advice.
His concern? Merely the law of unintended consequences, which ranks up there with Murphy’s Law.
Gray says absentee ballots are generally available for the asking now, with no questions asked. He points out that this lawsuit will assuredly go to the Arkansas Supreme Court, which is alternately known for Republican-leaning philosophy and utterly unpredictability.
It is entirely possible, Gray says, that the Supreme Court not only could deny the injunction but declare that any absentee ballot issued merely on account of the virus—without other personal excuse—cannot be allowed.
The suit could end up making it harder to vote absentee, he says.
It would be better, Gray says, to sit tight with existing law and existing practice and press Hutchinson to yield to practicality and specifically permit expanded absentee voting.
He got some curious form of validation later that day from Secretary of State John Thurston, a Republican. He put out a statement that he was working with county clerks both to get ready for polling-place voting and to accommodate uncommonly heavy absentee voting owing to the virus, which, he said, was available under existing Arkansas law to anyone seeking it.
David Couch, advised of that, responded dismissively to the notion that the current Supreme Court might use his lawsuit to constrain absentee voting. He said the state Supreme Court established precedent in 1985 by saying courts should not judge the sufficiency of any reason a voter lists for seeking to vote absentee.
He further argued, “There is no time to sit and wait. The clerks will be overwhelmed with just a slight increase in the numbers of absentee ballots, so they need to be prepared now … . Nothing is preventing the governor from making an announcement today. Why wait? The checks on voters voting absentee are more stringent than voting at the poll. This is not the time to sit around with your fingers crossed.”
I worry about unintended consequences and I wouldn’t put much past this state Supreme Court. But our governor hasn’t been inspiring a lot of do-the-right-thing confidence lately. Depending on him is unwise.
It appears the lawsuit will go forward with a good chance of lower court success, but some risk of Supreme Court zaniness.
John Brummett, whose column appears regularly in the Arkansas Democrat-Gazette, is a member of the Arkansas Writers’ Hall of Fame. Email him at jbrummett@arkansasonline.com. Read his @johnbrummett Twitter feed.