AR-Sen: It’s Never A Good Sign When The Better Answer Is “Utter Incompetence”

June 7, 2010
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Over the weekend, the Blue Arkansas gang did a tremendous job of following the debacle that is early voting in the runoff election in Garland County.  They covered the surprising twist of polls not being open the day after Garland County election commissioner Charles Tapp had stated that they would be open, had pictures of everything from Bill Halter confronting Tapp to voters being turned away from closed polls, carried video of Garland County voters who attempted to vote, and called out the untruthful excuses being offered to hide the more nefarious underlying reasons.

They also posted this picture from one of the closed polling locations:

Regarding that pic, ARDem wrote:

Now, election law is not my specialty.  Long time readers would know I sometimes get it wrong and often have to depend on commenters for corrections.  However, it does seem that it would be against state law to keep polling places open on Saturday.  Tapp is an election official…the chairman of the election commission.  He should know that.  So why did he make that promise?  Did he just not know?  Sure, incompetence is a possibility.  Was he just trying to get us all off his back?  More than likely.  And the net result of this?

Well, while election law may not be my specialty, I am familiar enough with it that I think I can assist on this one and illuminate the issues surrounding the early voting.  Unfortunately for Arkansas voters, the answers are even uglier in the light of day.

The two provisions cited in the sign are Arkansas Code Annotated §§ 7-5-202(a)(6) and 7-5-418 (a)(2) (2010).  The former states:

(a) It shall be the duty of the county board of election commissioners at least twenty (20) days before each preferential primary and general election and at least ten (10) days before the holding of each general primary, general runoff, or special election to give public notice in a newspaper of general circulation in the county of:
[***]
(6) The time and location of the opening, processing, canvassing, and counting of ballots.

More likely, Tapp meant to cite section 7-5-202(a)(3), which reads requires at least ten (10) days’ notice before the holding of a general runoff of

(3) The places and times for early voting[.]

The second statute cited by Tapp reads:

(a) (1) (A) Except as provided in subdivision (a)(1)(B) of this section, early voting shall be available to any qualified elector who applies to the county clerk’s designated early voting location, beginning fifteen (15) days before a preferential primary or general election between the hours of 8:00 a.m. and 6:00 p.m. Monday through Friday and 10:00 a.m. and 4:00 p.m. Saturday and ending at 5:00 p.m. on the Monday before the election.

[***]

(2) However, on all other elections, including the general primary and general runoff elections, early voting shall be available to any qualified elector who applies to the county clerk during regular office hours, beginning seven (7) days before the election and ending on the day before the election day at the time the county clerk’s office regularly closes (emphasis added).

Taken together, it seems Tapp is saying that he could not keep the Saturday polling locations open both because he failed to provide notice at least ten days in advance of the runoff and that, even if he had given proper notice, he still would have been unable to have Saturday early voting because the Garland County clerk does not regularly do business on Saturdays.  So, ignoring for a second that the first excuse is absolutely pitiful and suggests an amazing level of incompetence on the part of Tapp, the second statute would seem to answer the question.

Certainly, had Tapp stated from the beginning that there would be no Saturday voting pursuant to subsection 418(a)(2), it would have been difficult to fault him and the law would seem to be on his side.  But, after he had not only stated that the polls would be open on Saturday, but had also sent out an email to that same effect, what would have happened if Tapp would have allowed the early voters to cast their ballots Saturday?

It is also well settled that the courts do not favor disenfranchising a legal voter because of the misconduct of another person, such as an election official. Ashcraft v. Cox, 310 Ark. 703, 839 S.W.2d 219 (1992); Allen v. Rankin, 269 Ark. 517, 602 S.W.2d 673 (1980). In Spires v. Compton, 310 Ark. 431, 837 S.W.2d 459 (1992), we reiterated the election rule that applies when the results of an election are challenged after the election:

This court has held many times that elections will not be invalidated for alleged wrongs committed unless those wrongs were such to render the result doubtful. Put in other terms, we have said that the failure to comply with the letter of the law by election officers, especially in matters over which the voter has no control, and in which no fraud is perpetrated, will not as a general rule render an election void, unless the statute expressly makes it so. In sum, the courts do not favor disenfranchising a legal voter because of the misconduct of another person.

Womack v. Foster, 340 Ark. 124, 8 S.W.3d 854 (2000)(emphasis added).

Moreover, while early voting is discussed within the same statutory chapter as absentee voting, strict adherence to the law has only been applied to absentee ballots.

The laws dealing with absentee voting have a very obvious purpose, and they cannot be ignored by the unscrupulous campaign worker, the County Clerk’s office, or the Secretary of State. It borders on the absurd for anyone to assume that absentee voting and “early” voting should be governed by the same rules. “Early” voting does nothing more than offer the voter the opportunity to do early what he or she would otherwise do on election day: Go vote in person. It offers no additional opportunity for fraud. On the other hand, absentee voting offers all sorts of opportunity for fraud, [...] none of which would have been possible had a strict adherence to the clear requirements of the statute been demanded. Ignoring the law by those chosen to enforce it, or even slack enforcement by those persons, invariably brings on increased violations — and the innocent voter suffers.

Id (emphasis added).

So, while Tapp is correct that subsection 418(a)(2) would preclude him from conducting early voting on Saturday, if he had decided to honor his statement about Saturday voting and keep the polls open, the votes almost certainly would have been valid.

But, back to Tapp’s reference to subsection 202(a)(3) for a second, what about Tapp’s failure to notify the people of the time and place of early voting at least ten days prior?  Would that have made the votes invalid had people been allowed to cast their ballots on Saturday? In a word, no.  The Arkansas Supreme Court has repeatedly found that entire elections were not invalid simply for failure of an official to properly give notice as long as the notice requirement was substantially complied with, the number of votes cast in the election suggests that most people knew an election was going on, and there was no action by a candidate prior to the election to force strict compliance with the election statutes. See Whitaker v. Mitchell, 179 Ark. 993, 18 S.W.2d 1026 (1929); Cowling v. Foreman, 238 Ark. 677, 384 S.W.2d 251 (1964). Indeed, the Eighth Circuit has held that the people may not be deprived of their right of to vote simply because of the failure of officials to perform their ministerial duties to publish notice of the time and place of the election. Thompson v. Arkansas, 114 F.2d 351 (8th Cir. 1940).

While those cases all dealt with entire elections rather than an issue of early voting on a specific single day, the rationale should remain much the same. Judging by the number of people who attempted to vote, it would seem fairly obvious that the Saturday voting had been adequately published, and — to my knowledge — no candidate in any race had demanded that Saturday voting not be available pursuant to state law. If Tapp’s only excuse for closing the poll was his incompetence in his own failure to notify the people according to the statutory deadlines, the decision in Thompson, 114 F.2d 351, makes that excuse nearly worthless.

It is also worth noting, if Tapp is going to plead incompetence, that the failure to know and apply the relevant election laws is broader than the apparent failure to adequately notify the voters. After all, one has to assume that Tapp and the rest of the Garland County Board of Election Commissioners also failed to satisfy Arkansas Code Annotated 7-5-418(b)(1)(A), which states:

(b)(1)(A) The county board of election commissioners may decide to hold early voting at additional polling sites outside the offices of the county clerk on any of the days and times provided for in subsection (a) of this section, if it so chooses.

(B) The county board of election commissioners shall determine by unanimous vote the location of additional polling sites for early voting.

[***]

(3)(A) The county board of election commissioners shall notify the county clerk of its decision to hold early voting at additional polling sites outside the office of the county clerk within ten (10) days of the decision.

I say that one must assume Tapp and Co. failed to satisfy this provision as well because it would not make sense for them to have had a unanimous vote in favor of adding polling places (and have notified the Garland County Clerk about the vote) when the requirement to do so is in the same statutory section as the “no vote on Saturday” provision Tapp subsequently hid behind. Without a unanimous agreement regarding a second polling place, under subsection 418(a)(2) — you know, the statutory subsection he just cited as reason NOT to vote on Saturday — polling would have been limited to the clerk’s office. Ark. Code Ann. § 7-5-418.

“But, wait,” you might be saying. “They had two early voting locations open last week from Tuesday through Friday.” Indeed they have. Which means, either

  • they never voted on having the second polling location open, making the second polling place just as improper under Arkansas election law as the Saturday polling location would have been and demonstrating a systemic ignorance of the laws that govern the very functions they perform, or
  • they did reach a unanimous agreement to have two polling locations, in which case they are either
    • disingenuous (at best) when they now claim to have only recently realized that Saturday voting was not allowed in runoff elections, or
    • amazingly incompetent and, though they managed to have the required vote, no one bothered to double-check the rules (including the rule about the vote) to make sure they were actually complying with them.

I think the voters of Garland County have a right to know which of these scenarios is correct. If it is the first or third option, everyone on that board should be removed effective immediately. If it is the second option, then Tapp is, to put it bluntly, a liar who knew all along that he would not keep the Saturday polling location open and that he would try to hide behind Arkansas’s election laws to cover himself. Even worse, if it is the second option, you have to think that he would not have hatched such a shady plot on his own (because he gains nothing from it) and would have, instead, been asked/directed/forced to do it by someone who does have a vested interest in limiting the Garland County vote.

Gee, I wonder who that could be…

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