Pulaski County election panel to file suit

The Pulaski County Election Commission voted 2-0 Saturday to sue the state Board of Election Commissioners after the state board decided Friday to make changes to absentee ballot counting procedures that conflict with what the Arkansas attorney general’s office said is permissible by the state’s new voter-identification law.

Pulaski County Attorney Karla Burnett warned the state board Friday that she would advise the county commissioners to sue and tell them to ignore the board’s new rule to treat absentee votes without approved identification as provisional ballots.

A provisional ballot gives in-person voters who didn’t show identification at the time of voting until Monday after the election to present an ID to the commission to have their votes counted.

The new law makes no mention of a similar grace period for absentee voters specifically.

Burnett told the board Friday that the new rule exceeded its authority because the state board extended and modified the law without authorization, and it conflicts with an Arkansas attorney general’s opinion.

The state board may makerules “to assure even and consistent application of voter registration laws and fair and orderly election procedures,” according to state law. State law also says that “the Attorney General shall provide legal assistance to the board in answering questions regarding election laws.”

On Friday, a representative with the attorney general’s office told the Arkansas Democrat-Gazette that it stood by its opinion, and it was not consulted by the secretary of state or the board before the rule change.

On Saturday, Pulaski County Circuit Clerk Larry Crane told the county commission that “an administrative body cannot draft something that is not based in law.”

The lawsuit will challenge the constitutionality of the board’s new rules and seek a “declaratory judgment” that will decide how the law will be interpreted in the state.

“Ultimately that would provide the most certainty,” county Election Director Bryan Poe said.

County commissioners said Saturday that they hope the lawsuit is filed quickly. They are unsure how they will count the absentee ballots that don’t have identification if a judge does not rule or impose a temporary injunction on or before the county’s special millage election March 11.

The county already has received more than 300 absentee ballots for the election.

“We don’t want to put ourselves in the same position as the state board did in putting ourselves in the same seats as lawmakers,” county commission Chairman Leonard A. Boyle Sr. said.

Secretary of state’s office spokesman Alex Reed, who was attending the meeting as a representative of the Pulaski County Republican Committee, asked the commission whether it could wait to vote on the issue until Monday. The Republican Committee is expected to appoint a replacement Monday for its representative, Phil Wyrick, who was disqualified from his position last week after filing to run for Pulaski County judge.

“I’m concerned because of the timing of our election,” Commissioner Chris Burks said.

He added that the county attorney’s office has indicated it is ready to file suit.

“I think if we wait, wemight not be in a position to be ready for a declaratory judgment,” he said.

Burks told Reed that because he and Boyle were planning to vote in favor of the lawsuit, the presence of a third commissioner was a moot point.

The commission normally includes three members, a Democrat, a Republican and a third who represents the majority party of the elected constitutional officers. In Pulaski County, the third member is also a Democrat.

The commission voted 3-0 earlier this year to seek an attorney general’s opinion on how the voter-identification law passed last year should be interpreted for absentee ballots. That move came after the state board and the secretary of state’s office issued dissenting advice to Craighead County election officials on how to count absentee ballots submitted without identificationduring the county’s special election to fill a vacant state Senate seat.

Craighead County officials followed the secretary of state’s office’s advice to allow voters to have a “cure period” to turn their ballots in by noon the first workday of the week after the election. The state Board of Election Commissioners told county officials that wasn’t permissible by law.

Northwest Arkansas, Pages 15 on 03/02/2014

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