I spoke this morning with Scott McDaniel,
chairman of the Craighead County Election Commission,
which will meet at 3 p.m. today to decide what to do about 83 absentee ballots in this week's special state Senate election.
Those ballots weren't counted for a variety of flaws, including unmatched signatures. But about 80 of them weren't counted because the voters didn't include a copy of a photo ID, required by the 2013 voter ID law.
McDaniel said he's talked to both the secretary of state and state Election Commission and reviewed the law himself. Opinions diverge.
McDaniel said he was advised by the state Election Commission
that the commmission can't count the ballots because the law provides no explicit "cure" for absentee voters who fail to include an ID.
However, McDaniel said the secretary of state had called him and told him to expect a memo soon that says they CAN count the ballots if ID is presented by Monday. The secretary of state's office concedes that there's no explicit provision for the cure for absentee voters, but they say the provision of a cure for people who vote in person shows an intent by drafters of the law to provide a means to get a challenged absentee vote counted, too.
The law says that voters who vote in person but don't have an ID can cast a provisional ballot. Then, if they appear at the county clerk by the Monday following an election with proof, their vote may be counted.
McDaniel said he was inclined to accept the secretary of state's opinion in the name of counting as many votes as possible. Thus, if any absentee voter thinks his ballot might not have been counted, he can go to the clerk's office with an ID and get it counted. But there's no way to formally notify each voter. McDaniel said he'd recommended advertising that there are challenged ballots.
The law says absentee voters must supply ID. That kind of language, without a specific cure, had originally seemed hard to work around to McDaniel. And he said that created two classes of voters — one that had a way to fix an ID problem and one that did not.
(This reminds me how silly the voter ID provision for absentee ballots is. In person, an election official can compare the ID with the voter. That can't be done on an absentee ballot.)
McDaniel said he'd like to see the law clarified before it decides an election. Another election commission might decide not to count challenged ballots, for example, and they might be decisive.
In Jonesboro, Republican John Cooper defeated Democrat Steve Rockwell by such a decisive margin, more than 1,100 votes, that the 80 votes couldn't change the outcome. (Rockwell carried the absentee votes that were counted 27-21.) But 80 votes could decide some future election. McDaniel said he hopes to publicize what's occurred in Jonesboro to fix the law or at least draw more attention to the new rule.
The requirement is included on a statement sent to voters with absentee ballots (as shown above).
An instruction sheet also repeats the requirement.
It is not advertised enough, McDaniel and others believe. McDaniel said many of the voters in the provisional bunch were people who'd voted absentee for years and just followed the procedure they'd always followed. More education is needed, but there's been no large state effort to do so.
Voter ID wasn't much of a problem for those who voted in person in Craighead County. Only three provisional ballots were cast. McDaniel said his theory is that a district with a large amount of rural area means most residents must have driver licenses. There's little mass transit.
CORRECTION: My original post had McDaniel's last name wrong in several references.
UPDATE: The ACLU
has weighed in. It says the mere fact these votes are in question violates voters' rights. It reiterated its criticism of the Voter ID law.
“This was just an artificial hoop placed between voters and the ballot box that did exactly what we predicted it would do. Especially when the only real outreach to the public has been this guinea pig treatment of the special elections,” said ACLU of Arkansas Executive Director Rita Sklar. “It is going to take a lawsuit, a special session, or both to clear up this mess. We stand ready to represent affected voters, in Craighead County and elsewhere across the state.”
Full release follows.
LITTLE ROCK, AR Today at 3:00 p.m., the treatment and validity of absentee ballots cast without
copies of ID in the Craighead County Special Election will be decided. No matter the outcome, the fact that
these votes are even in question violates voters rights, says the American Civil Liberties Union of Arkansas
The Voter ID law, passed in 2013, requires absentee voters to provide copies of ID or other documents
proving the voter’s registered address. It requires voters at the polls to show an Arkansas or federal
government issued photo ID. The law does not provide any remedy for absentee voters who did not send in
the newly required copies of identification. State officials’ (the Attorney General, Arkansas State Board of
Elections, and the Secretary of State) legal theories for a solution range from declaring the ballots void to
providing a window of opportunity - until noon Monday - to visit the circuit clerk or election commission to
“This was just an artificial hoop placed between voters and the ballot box that did exactly what we
predicted it would do. Especially when the only real outreach to the public has been this guinea pig treatment
of the special elections,” said ACLU of Arkansas Executive Director Rita Sklar. “It is going to take a lawsuit, a
special session, or both to clear up this mess. We stand ready to represent affected voters, in Craighead
County and elsewhere across the state.”
“Now that the validity of real voters’ votes are in question, the fact absentee voters were given no
opportunity to save their votes suddenly is as bad as it looked and looks as bad as it is,” said ACLU of Arkansas
Legal Director Holly Dickson. Officials are now scrambling to craft a solution that was the job of the legislature.
The law has trampled the rights of these voters, and there isn’t even a requirement that the voters be notified.
People who believe their right to vote may be compromised now or an upcoming election or needing
additional information can contact the ACLU at www.acluarkansas.org/GetHelp or by leaving a message saying
Let Me Vote at 501-374-2660.