Voting-ruling stay sought as emergency

State motion to high court warns of ‘electoral chaos’

LITTLE ROCK — An emergency motion has been filed by the state requesting that the Arkansas Supreme Court block a Pulaski County judge’s order earlier this month that struck down four laws regulating voting procedures because the judge said the laws were overly restrictive.

The motion, filed Thursday by the office of Arkansas Attorney General Leslie Rutledge on behalf of Secretary of State John Thurston and the State Board of Election Commissioners, accused Pulaski County District Judge Wendell Griffen of abusing his discretion in applying a standard of strict scrutiny to the four laws rather than a more relaxed standard and called claims that any of the acts would negatively impact voters “pure speculation.”

The four laws were enacted last year by the Arkansas General Assembly during the 2021 regular session. They are:

• Act 249, which requires voters who fill out provisional ballots to submit photocopies of their IDs by noon on the Monday after Election Day for their votes to be counted. Those voters previously could give sworn statements when casting a provisional ballot to ensure their votes were counted.

• Act 728 prohibits people from standing within 100 feet of a polling site except to vote or for another lawful purpose. Critics have said the law would prohibit such activities as handing out water or snacks to voters standing in long lines waiting to vote.

• Act 736 introduced a requirement that a voter’s signature on an absentee ballot be verified by checking the person’s voter registration application. Before, state law allowed election workers to check multiple signatures.

Several witnesses testified at the trial that the change could present obstacles for many Arkansans, particularly those with ailments like arthritis or nephropathy, which can make a voter’s signature inconsistent.

• Act 973 moved the mail-in ballot deadline from the Monday before an election to the Friday before.

The lawsuit, brought by the League of Women Voters and Arkansas United against Thurston and the State Board of Election Commissioners, claimed that the laws deliberately make voting harder — and sometimes impossible — for minority voters, poor voters and voters with certain health problems.

At the conclusion of the four day-bench trial, Brittany Edwards, an attorney with the attorney general’s office, argued that the burden the new laws place on voters is minimal and that the court should use the rational basis test to determine if the burden is justified, rather than intermediate or strict scrutiny. Those standards of review make up what is known as the “Anderson-Burdick test,” based on two U.S. Supreme Court rulings involving ballot access.

According to the Brennan Center for Voting Rights, the Anderson-Burdick balancing test establishes a sliding scale of judicial scrutiny that weighs the burdens that a state law imposes on electoral participation against the state’s asserted interests or benefits. Named after the 1983 case of Anderson v. Celebrezze and the 1992 case of Burdick v. Takushi, the test holds that the greater the burden imposed, the greater the state interest must be to justify it.

Edwards argued that the four laws in question “regulate how to vote, not who can vote.” Regarding absentee voting, Edwards said that while voting is a right, “absentee voting is not. It’s a convenience.”

Arguing for the plaintiffs, Kevin Hamilton said that any statute that infringes on the right to vote must be held to strict scrutiny and he rejected Edwards’ characterization of absentee voting as a convenience. Hamilton said that for some people suffering from disabilities or other issues, voting absentee may be the only way they can cast a ballot.

On March 18, at the conclusion of closing arguments, Griffen ordered a permanent injunction of all four laws. On March 24, he filed a written order along with an 86-page opinion.

In granting the permanent injunction, Griffen said Arkansas legislators’ fears of voter fraud could not justify passing laws restricting voting without proof of conduct the laws were purportedly passed to address.

“In the judicial sphere you don’t prove something is illegal just because you’re afraid something might happen,” Griffen said as he granted the injunction. “That’s speculation.”

Thurston’s motion asks the Supreme Court to issue an immediate temporary stay of Griffen’s order before ordering any briefing necessary to consider the matter fully, or to order a response to the motion from the League of Women Voters and Arkansas United by noon today.

The motion said Griffen’s ruling, if allowed to stand, threatens “electoral chaos and confusion” because absentee ballots for the upcoming May 24 primary election have already been printed and are due to be mailed out this week. “It is common sense that courts ought not change the rules on the eve of an election due to the ensuing chaos and confusion,” the motion read.

Because of the upcoming primary election, the motion says the appellants are asking the Supreme Court to enter a temporary stay “immediately and without waiting for any response” from the appellees and that the court order briefing on a stay pending appeal only after granting emergency relief to the appellants.

“Alternatively, if this Court declines to enter immediate temporary relief staying Judge Griffen’s order,” the motion said, “Appellants request this Court require Appellees to respond by noon on April 1, 2022, so that this Court may resolve this Motion expeditiously.”