Arkansas Supreme Court overturns ruling challenging state election laws

Arkansas Supreme Court (Courtesy Photo)

This story was updated at 4:30 p.m. on May 16, 2024 to include additional comments.

The Arkansas Supreme Court on Thursday reversed a lower court’s ruling and dismissed a lawsuit challenging the constitutionality of four election-related laws approved by the state Legislature in 2021. 

The League of Women Voters of Arkansas filed the suit in Pulaski County Circuit Court against Secretary of State John Thurston and the Arkansas State Board of Election Commissioners over Act 249, 728, 736 and 973 of 2021.

The laws require voters who cast a provisional ballot to provide a photo ID by the Monday following an election for their vote to be counted, prohibit people from standing within 100 feet of a polling location, require county clerks to verify the voter’s signature on an absentee ballot application with the voter’s registration application, and shorten the deadline for in-person absentee ballot delivery.

Challenged election laws

Act 249: Eliminates the option for voters who failed to present valid photographic identification at the polls to complete a sworn statement. Now, voters who cast provisional ballots must provide a photo ID to the county board of election commissioners or the clerk by noon on the Monday following the election for their vote to be counted. 

Act 728: Prohibits people from entering or remaining within 100 feet of a polling site’s entrance except for those “entering or leaving the building where voting is taking place for lawful purposes.”

Act 736: Clarifies that county clerks must use the voter’s registration application to verify the voter’s signature on an absentee ballot application. 

Act 973: Moves the deadline for in-person absentee ballot delivery from the Monday before election day to the preceding Friday by the close of business at the county clerk’s office. 

According to Thursday’s order, the League of Women Voters argued the acts violated various provisions of the state Constitution and would make it more difficult for eligible voters to cast a ballot. The state argued the laws were enacted to protect election integrity and promote public confidence in election security. 

After the circuit court held the laws unconstitutional and permanently enjoined their enforcement, the defendants appealed to the state’s high court, which overturned the ruling Thursday.

Writing for the majority, Associate Justice Cody Hiland said, “We hold that the Acts are not clearly incompatible with the sections of the Arkansas Constitution as alleged by the Appellee; thus, we reverse and dismiss.”

Gov. Sarah Huckabee Sanders appointed the former U.S. Attorney to the state’s high court last year to fill the seat left vacant after the death of Associate Justice Robin Wynne.

Chief Justice Dan Kemp and Associate Justices Barbara Webb and Shawn Womack concurred with Hiland’s opinion, which did not include any written dissents.

As part of his legal analysis, Hiland cited Burdick v. Takushi, which states that “the right to vote is the right to participate in the electoral process that is necessarily structured to maintain the integrity of the democratic system.”

“Thus, while the right to vote has been held to be fundamental, the right to vote in a particular manner is not guaranteed,” he wrote. 

Hiland also said that many courts have noted absentee voting is not a fundamental right. 

Upon examining the plain language of the laws, Hiland said the fundamental right to vote is not at stake, so the state wasn’t required to prove a compelling state interest. 

“The circuit court’s conclusion that strict scrutiny applied across the board to these four Acts was an error of law,” he said. Strict scrutiny refers to the highest standard a court must use in determining the constitutionality of a law and requires the state to have a compelling governmental interest in passing the law.

Nonetheless, Hiland said the court considered the Arkansas constitutional provisions on which the laws were challenged, including the state Constitution’s equal protection clause, which prohibits depriving citizens of “any right privilege or immunity” or exempting them “from any burden or duty, on account of race, color or previous condition.”

Hiland wrote that “the evidence fell short” in appellees’ attempt “to prove a discriminatory impact or purpose.”

“While Appellees put on a myriad of witnesses to testify as to what they believed will be the potential discriminatory impact in application, the evidence provided was only speculative,” he said. “Because the Acts are facially neutral and do not contain any discriminatory classes, equal protection was not invoked.”

A spokesman for the Secretary of State’s office said they’re reviewing the opinion and have no comment at this time.

Arkansas Attorney General Tim Griffin in a statement said the court’s decision “is a total victory for Arkansas voters and the security of our elections moving forward.”

In a statement, League of Women Voters of Arkansas President Bonnie Miller called the ruling “a disappointing blow to voting rights in our state.”

Miller said the organization is reviewing the ruling to understand its implications and remains committed “to defending democracy and ensuring that every eligible voter can exercise their right to participate in the electoral process without unnecessary barriers or burdens.”

“It is evident that these laws—requiring election officials to engage in the arbitrary and error-prone process of matching a voter’s signature on their absentee ballot application to the voter’s signature on their original voter registration application, unjustifiably shortening absentee ballot turn-in deadlines, essentially doing away with provisional ballots, and prohibiting anyone except voters from entering or remaining within 100 feet of a polling place (even to accompany or support a voter)—will continue to pose significant challenges to voters, particularly older Arkansans and those living in rural areas,” Miller said.

Debate over Arkansas voter regulations were also presented to the state’s legislative branch earlier this month when a committee considered and approved an emergency rule that permits electronic signatures on voter registration applications only when they’re completed at certain state agencies. 

The Arkansas Board of Election Commissioners gave initial approval to the rule, which requires paper registration applications to include a “wet signature,” meaning an applicant signs with a pen.

The new rule directly impacts the work of Get Loud Arkansas, which has used an online portal to help register around 500 voters in 63 counties since the start of the year.

The emergency rule went into effect on May 4 and will be in effect for 120 days. The election board is drafting a permanent rule that will be subject to a 30-day comment period and a public hearing. 

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