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In June, Secretary of State Mark Martin's office passed along lists of names of Arkansas felons to county clerks so their names could be flagged as ineligible to vote. The lists turned out to be terribly flawed, including the names of nonfelons as well as those who were discharged, had made reparations and were eligible to vote — indeed, some who had been voting for years. The information was provided by the Arkansas Crime Information Center, which passed along its data on all persons with felony convictions.
Though aware of the flaws, the secretary of state's office said it was up to county clerks to correct errors in the lists. Since then, county clerks have had to do research on thousands of people, using circuit court and Arkansas Community Correction records to determine who to remove from the rolls. An Arkansas Times review of how 62 county clerks handled the data suggested that dozens, if not hundreds, of eligible Arkansas voters were removed from voter rolls, with no concerted effort in place to reinstate those voters.
County clerks are obligated to remove ineligible felons from voter rolls. The constitution also requires the secretary of state to administer and maintain a voter registration database.
In years past, the secretary of state received periodic criminal history updates directly from Arkansas Community Correction, the state agency that oversees parole and probation, but secretary of state spokesman Chris Powell said an internal review determined that the office was constitutionally required to get its information from the ACIC. The ACIC, the state's clearinghouse for criminal justice data, does not contain records of how far along felons are in their sentence or supervision or whether they have regained eligibility to vote. So the ACIC's list to the secretary of state's office included nearly 200,000 names — everyone who has ever been convicted of a felony in Arkansas. The secretary of state's office then passed part of that data to county clerks for removal from rolls. Later, the secretary of state's office notified clerks that there might be a problem with the data.
The Times has repeatedly asked Powell for the number of people flagged as felons on the list his office passed to county clerks. He has not responded to multiple emails and phone calls. But he told the Arkansas Democrat-Gazette on Aug. 6 his office sent 7,730 names to clerks.
Clerks in many counties, including the state's most populous, heeded the secretary of state's warning, if they hadn't already noticed flaws in the data, and did not cancel registrations, the Arkansas Times found. Pulaski County Clerk Larry Crane's staff, for instance, devoted 13 employees and 300 work hours to an initial review that determined that, of the 1,722 flagged on its list, 552 should be removed, 297 were eligible voters and 873 require further research. Crane said his staff will now work as quickly as possible to determine the latter group's eligibility before September elections.
Not every clerk has proceeded so methodically. After talking to election officials in 62 of the state's 75 counties, the Times found that officials in at least 17 counties removed everyone on the list they received from the secretary of state and sent all the canceled voters letters. That almost guarantees that many eligible voters were disenfranchised. Those voters will only be reinstated if they provide proof that they have fulfilled the steps required to regain eligibility — if they received the letter.
In Cleburne County, for instance, election officials removed all 69 voters who were on their list and notified them by mail. Thirty of the letters mailed came back to the clerk's office with incorrect addresses. Twelve to 15 later proved they were eligible and have been restored.
Here is a sampling of what the Times heard from election officials around the state (for the full list go to arktimes.com/votersurvey):
Election officials in Clark County immediately recognized that the list they were provided contained incorrect information, so they worked with the circuit clerk, sheriff's office and Arkansas Community Correction to determine who should be removed. So far, they have determined that 38 of the 62 names they were given were indeed eligible voters. Of the 38, 25 had no criminal history and one had been charged, but not convicted. "If even two names are wrong, that's serious," County Clerk Rhonda Cole said.
Columbia County Deputy Clerk Barbara Smith recognized the first name on the list provided by the secretary of state as wrong and sent the whole list of 144 names to Arkansas Community Correction to check. It determined that 116 were eligible.
All of the "around 100 people" who were flagged for removal in Crittenden County were booted from voter rolls and notified by mail. Since then "zillions" have called in, according to an election official, who could not offer the precise number of eligible voters who have been restored. At least "some," she said.
Of the 21 people on the list it received, Lafayette County officials removed 11 from voter rolls after consulting with the circuit clerk and determined 10 were eligible. One of the 11 came to the office to provide the paperwork showing he was eligible after hearing about the secretary of state's mistake.
After a reporter described the list to Lee County Clerk Lynsey Russell, she said it was the first she had heard about it. "It's probably in that email that we never check," she said. She said she would look into it.
Ouachita County Clerk Britt Williford said he realized right away that the list of 178 flagged names he received in June was flawed — in part because many of the conviction dates were so old, and in part because "I came across a couple names of people who I knew were felons in the past and had their rights restored. ... As far as I'm concerned, the data we received from [the secretary of state] is flawed and I don't have any way of verifying it, and I think they need to correct it. I'm not going to remove someone who's been voting these last years. It's terrible. ... That's violating their rights. It's a quandary."
Secretary of state spokesman Powell cited Amendment 51 of the Arkansas Constitution in the office's decision to get felony convictions from the ACIC. Once the secretary of state has the data, his job is to merely pass it on to county clerks, who are the official voting registrars in their counties and who add and remove people to rolls, Powell said. "We're just kind of the information go-between, if you will," he told the Times. But according to two University of Arkansas School of Law professors, the secretary of state is at best reading the constitution narrowly and in isolation from other broader requirements and at worst not following the constitution at all.
Amendment 51 of the constitution says, in part, that the secretary of state "shall define, maintain, and administer the official, centralized, and interactive computerized voter registration list for all voters legally residing within the State." Later, it says that the list "shall be coordinated with other state agency records on felony status as maintained by the Arkansas Crime Information Center."
"It seems to me pretty straightforward that they have to use the ACIC records, but when it says 'coordinated with other state agency records,' I take that to mean that they should be cross-referencing [ACIC data] with other state agency records to make sure it's correct," said Tiffany R. Murphy, associate professor of law at the University of Arkansas at Fayetteville. "I think it's incumbent on the secretary of state to make sure it's accurate in some degree looking at the amendment. Whenever we see the word 'shall,' that's the strongest language legally. ... When it says 'maintain' and 'administer,' maintaining is actually making sure it's correct and 'administer' is about distribution."
The secretary of state's reading is "a plausible, but hyper-technical interpretation," said Jonathan L. Marshfield, an associate professor of law at the University of Arkansas at Fayetteville who specializes in the Arkansas Constitution. "I think a better interpretation is that they're meant to coordinate with other state agency records and that the ACIC is one of the places, but that their broader obligation is to coordinate with agencies as necessary to provide reliable information." Marshfield described that as a "common sense" and "holistic" interpretation that took into account all of section 7 of Amendment 51.
Marshfield and Murphy said that they were speaking only for themselves and not for the University of Arkansas School of Law.
Pulaski County Clerk Larry Crane echoed Marshfield's and Murphy's readings of the constitution. "The secretary of state's office reached a conclusion that under Amendment 51 that they were supposed to be using ACIC," he said. "I think the constitution says they can indeed use other sources. Whether they can or cannot, they were under a duty to ensure that the data from ACIC was correct. We have determined that it was grossly incorrect.
"There could be a burden [on ex-offenders who have already had their voting rights restored] to prove again they are eligible. I believe that under Amendment 51 that is totally inappropriate. It does not say that once [ex-felons' rights] are restored a bumbling bureaucrat has the right to remove them again."
Tom Coulter, David Koon and Leslie Newell Peacock contributed to this story.
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