The Arkansas Supreme Court on Thursday affirmed a Pulaski County judge’s ruling dismissing a lawsuit filed by the Arkansas Voter Integrity Initiative Inc. and Conrad Reynolds challenging the legality of the state’s ballot-counting machines.
“What this is is a judge made a decision about a case not even before the first witness had finished testifying,” said Clinton Lancaster, attorney for the appellants. “They didn’t let us put on any other evidence, and they kicked us out of the court and violated our right to a jury trial, and the Supreme Court seems to think that’s OK. Ultimately, what I see is that the Supreme Court didn’t take our arguments into account and give them the weight that they deserved.”
Lancaster said they’re evaluating their next steps.
Circuit Judge Tim Fox ruled that the the Arkansas Voter Integrity Initiative failed on it’s declaratory-judgement claim so no additional testimony was necessary during a Sept. 11 hearing. The amended complaint, filed May 4, had listed separate causes of action for illegal exaction, fraud and violations of the Arkansas Deceptive Trade Practices Act.
“Because the circuit court concluded that appellants failed on their declaratory-judgment claim, their remaining causes of action also failed,” Associate Justice Courtney Rae Hudson wrote in the opinion for the majority. “Thus, appellants were not deprived of their right to a jury trial, and the circuit court did not err by denying their motion for new trial. We affirm the circuit court’s dismissal of appellants’ amended complaint.”
Justice Barbara Webb dissented. Justice Shawn A. Womack conferred without opinion.
Defendants in the case were Secretary of State John Thurston, the Arkansas State Board of Election Commissioners and Election Systems and Software LLC.
“This is a win for the voters and taxpayers of Arkansas as the state Supreme Court affirms what we’ve already known to be true: The voting process and machines used in Arkansas comply with state law,” said Attorney General Tim Griffin.
The Arkansas Voter Integrity Initiative is a non-profit group led by Conrad Reynolds of Conway, a retired U.S. Army colonel who lost bids for the Republican nomination in Arkansas’ 2nd congressional district in 2014 and 2022. Reynolds’ group has been advocating for Arkansas counties to switch to hand-marked and hand-counted ballots.
In December 2022, the group filed its lawsuit in Pulaski County Circuit Court.
In its amended lawsuit, the Arkansas Voter Integrity Initiative asked Judge Fox to declare that the ExpressVote ballot-marking device and the DS200 tabulator do not comply with Arkansas law because — the group maintained — the voter cannot independently verify the votes they select prior to their ballot being cast, as the ordinary and common voter cannot read bar codes, and to enjoin the use of these machines in future elections unless and until the machines comply with Arkansas law.
Election Systems and Software manufactures the ExpressVote ballot-marking device and the DS200 tabulator.
Among other things, the Arkansas Voter Integrity Initiative also asked for Fox to declare that the Express Vote device and DS200 tabulator do not comply with the federal Help America Vote Act because the group maintained the voter cannot independently verify the votes selected prior to their ballot being cast.
But Fox ruled in September that the ExpressVote ballot-marking device and DS200 tabulator as configured and used in elections in Arkansas comply with the plain language of Arkansas Code Annotated 7-5-504(6) and (7) and 52 U.S.C. 21081(a)(1)(A)(i) of the Help America Vote Act of 2002.
“There is no evidence that the bar codes on any Arkansas voter’s ballot do not correspond with the voter’s selections reflected in the readable text,” he wrote in his order dated Sept. 22. “There is no evidence that the bar codes on any Arkansas voter’s ballot have been altered or are inaccurate.”
Fox denied the Arkansas Voter Integrity Initiative’s motion for an injunction, granted Election Systems and Software’s motion to dismiss, and dismissed appellants’ amended complaint with prejudice.
“When the circuit court announced its ruling, appellants indicated that they were troubled because they had called only one witness and had not presented their entire case,” Hudson wrote in Thursday’s opinion. “The court stated that it was ‘not meaning to cut [them] off’ and … asked if appellants had any evidence that pertained to the threshold issue before the court.”
The “threshold” was that the voting machines don’t comply with Arkansas Code Annotated §7-5-504 due to the fact that the tabulator reads only the bar codes on the ballot, wrote Hudson.
The appellants stated that they were “not challenging anything” about the software having not performed “as they say it performs,” according to the Supreme Court opinion.
The appellants planned to put expert witnesses on the stand to testify.
Fox asked how their testimony would be relevant to the legal question at issue.
“Appellants replied that they had two experts who would testify that the software can be exploited in such a manner that the voter cannot trust the accuracy of the bar codes,” wrote Hudson. “When the circuit court asked appellants if they had evidence that this had happened, appellants responded that they only had testimony that it was possible — not that it had occurred. The court noted that it was ‘accepting that as a proffer, that you have expert testimony that it’s possible.’”
According to the Supreme Court opinion, the “appellants continued to argue that the court had ruled before hearing all of their evidence, and the circuit court stated that ‘this was a declaratory judgment as to the plain language of the statute,’ that appellants did not disagree with the evidence presented that was germane to that issue, and that the voting process satisfies the statute as it is presently written.”
“A party has a right to a jury trial on a declaratory-judgment claim only when it ‘involves the determination of an issue of fact,’” wrote Hudson, citing Arkansas Code Annotated §16-111-109.
The appellants assert that factual questions remain to be resolved, such as whether a voter can verify his or her selections on the ballot-marking device before the ballot is printed and whether the “ballot” includes the selections in written English, the bar codes, or both, wrote Hudson.
But testimony from Daniel Shults, director of the Arkansas State Board of Election Commissioners, during a Sept. 11 hearing “established that the voter has the opportunity to review their selections on a summary screen on the ExpressVote ballot-marking machine before pushing the print button; that the printed card, which contains the voter’s selections in both written English and corresponding barcodes, is the ballot; and that this ballot is then inserted into the DS200 tabulator machine, which reads the barcodes to tabulate the votes,” according to the Supreme Court opinion.
“Appellants did not dispute this testimony, nor did they attempt to introduce additional evidence to rebut it,” wrote Hudson. “The circuit court’s interpretation and application of Arkansas Code Annotated §7-5-504 to these undisputed facts was a question of law, not one of fact, and appellants were therefore not entitled to a jury trial on this issue.”