East Arkansas early voting lawsuit may go before state Supreme Court

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A dispute over a West Memphis early voting site should go to the Arkansas Supreme Court, a circuit judge told parties in a lawsuit on Wednesday.

Crittenden County Circuit Court Judge Chris Thyer, in closing statements to attorneys on both sides of a case arguing whether election officials should be required to offer early voting in West Memphis, asked that one or both of the lawyers submit an appeal and take the case to the state’s highest court.

Lawsuit alleges east Arkansas county election officials refuse to prep early voting sites

“Take this thing up so the Supreme Court can tell us what these statutes mean, because Lord knows I can’t tell exactly what they mean,” Thyer said.

On Sept. 19, attorney Jennifer Standerfer filed a lawsuit in Crittenden County Circuit Court on behalf of two West Memphis residents, Shirley Brown and Lavonda Taylor, who plan to vote early in the upcoming election.

The petition claims election commissioners have determined there should be no early voting in West Memphis, despite two sites plaintiffs argue should be active: one at First Baptist Church because it served as a polling site two years ago and one at the Seventh Street Church of Christ because the county clerk designated it as such.

Attorney Joe Rogers is representing the three members of the Crittenden County Board of Election Commissioners, Frank Barton, James Pulliaum and Anita Bell, who were sued in their official capacity.

Testimony in the case started Monday and continued virtually on Wednesday with Barton’s testimony. The case is on an expedited schedule because of its potential impact on the election, and Thyer said he would have a ruling in the coming days. 

“I’m afraid there is no correct answer,” Thyer said. “…It is my sincere hope that no matter what I end up doing in this, that one or both of you take this issue up. I’m begging you to appeal me. Frankly, the Supreme Court needs to give us all guidance, particularly as it relates to early voting.”

Statutory construction

The lawsuit relies heavily on the interpretation of state statutes that outline early voting, and Thyer said, “it’s hard to figure out what the Legislature meant by some of this stuff.”

In Arkansas, early voting is either conducted by the county clerk or the local election commission. The law requires one early voting site in the county seat, and election commissioners may approve additional locations by a unanimous vote.

Other election procedures are outlined in state law, such as duties of the county clerk, absentee voting, ballot delivery and early voting.

Crittenden County’s election commissioners recently agreed on an early voting site in Marion, the county seat, but failed to come to a unanimous decision on a West Memphis location after Pulliaum voted against a public library twice.

During his testimony, Barton, who is the current chair of the county board of election commissioners and has been a member since 2015, said he didn’t believe early voting sites fell under a 60-day deadline to finalize polling sites.

Because there is a separate statute detailing early voting, Barton said he recognizes a difference between early voting locations and Election Day polling sites.

Though Barton said he has been told Pulliaum would change his vote in favor of the West Memphis public library, Barton said he did not intend to call a meeting to establish an early voting site in the city.

West Memphis is Crittenden County’s largest city with approximately 23,000 residents, about 48% of the county’s total population. Without an early voting site, West Memphis residents would have to travel about five miles to the county’s only guaranteed early voting site in Marion.

Based on his training as an election commissioner, Barton said early voting sites must be affirmed by a unanimous vote every year. He said it’s different for day-of voting sites, where locations can revert back to those used during a previous election if still available.

Regarding a Sept. 5 letter from County Clerk Paula Brown in which she designated an early voting site at the Seventh Street Church of Christ in West Memphis, Rogers argued that Brown acted outside of her authority because the proposed site was outside of the county seat.

The location was also an alternative site Pulliaum had mentioned to commissioners, but they never took a vote.

Barton said he did not intend to follow the clerk’s instructions that election commissioners should staff Seventh Street Church of Christ for early voting.

In a brief Rogers filed after the court adjourned Wednesday, he further argued that the election commissioners have the sole authority to establish early voting polling sites in West Memphis. 

The brief also reiterated the position that early voting sites must be approved each year and because First Baptist Church in West Memphis did not receive a unanimous vote, it has not been designated.

Standerfer said she plans to file a brief in response to Rogers’, though it wasn’t yet filed at the time of publication.

During the hearing, Standerfer closed by reading a section from the Arkansas Constitution that she said showed “pretty strong language that our laws will be read on behalf of the voters.”

She argued the principle of having a free and equal election was “crucial to our interpretation” of the statutes.