Plaintiffs argue ’85 ruling should be followed in lawsuit over absentee voting.

Question of law, plaintiffs say

Pulaski County Circuit Judge Wendell Griffen should immediately order Arkansas election authorities to follow absentee-voting guidelines established under a 1985 Arkansas Supreme Court ruling, plaintiffs in a nearly monthold lawsuit argued Thursday.

That’s especially the case, they say, during a pandemic, when voters may fear contracting covid-19 if they go to the polls.

Arkansas voters must cast their ballots in person on Election Day, which is Nov. 3, unless they can provide authorities with an acceptable reason allowing them to vote absentee. If they vote absentee, they must, either mail in a ballot or drop one off ahead of the election.

The 35-year-old high court ruling requires election officials to accept any honest explanation for why a voter cannot go to the polls.

The plaintiffs are Olly Neal Jr., a retired Arkansas Court of Appeals judge; Susan Inman, a former state elections director; and civil rights attorney Jan Baker.

Last month, they sued Republican Secretary of State John Thurston, the state’s elections supervisor, to get a court order requiring Thurston to recognize the 1985 Supreme Court decision, saying they believed he would not accept fear of covid-19 infection as justification for being allowed to vote absentee.

However, Thurston has since publicly recognized infection fears as a valid reason to vote absentee, so the plaintiffs — represented by attorney David Couch — argued in a motion filed Thursday that the judge has heard enough from both sides to resolve that issue, although there are other matters raised by the litigation that have yet to be fully addressed.

“The resolution of this issue does not depend upon any facts and is merely a question of law for this court to decide. The court should declare that any reason that a voter lists on his/her application to vote absentee is a valid reason,” the two-page motion by Couch and co-counsel Preston Eldridge states.

“In this case, the pleadings indicate a universal agreement between all parties that covid-19 is a valid excuse to vote absentee under Arkansas law,” the motion says.

Thurston has called for the lawsuit to be dismissed on the same grounds, stating that his public pronouncements on social media and in court filings about infection fears have rendered the litigation unnecessary.

Republican leaders who have petitioned the court to intervene in the lawsuit also make that argument in favor of dismissing the suit.

But the plaintiffs countered that argument in their Thursday motion by noting that while “the public admissions of the defendant and the potential intervenors are appropriate, they do not afford the voter the same protection as would an executive order issued by the governor or an order of this court.”