‘Wet sigs’ required for AR would-be voters again, legal limbo ongoing

Arkansas’ top election official says his hands are tied as confusion continues over how to handle signatures of would-be voters who cast ballots by mail in 2022.

In a letter sent to county election officials Tuesday, Secretary of State John Thurston reiterated his stance that physical, “wet” signatures would once again be required on absentee ballot envelopes, despite a federal judge’s order in 2020 that Arkansas’ signature-matching law was unconstitutional.

Little Rock attorney Matt Campbell, who successfully argued the 2020 case against the state’s signature-matching law, said he’s disappointed but not surprised by the secretary of state’s decision.

“The secretary of state made a political decision today and told the counties to ignore the federal court ruling,” Campbell said in a phone interview Tuesday. “We think that’s the wrong decision, and we’re going to ask the court to step in again.”

The legal limbo surrounding Arkansas’ absentee voting law stems from the 8th U.S. Circuit Court of Appeals’ decision in June to uphold the lower court’s ruling that struck down the state’s signature-matching law for violating the 1965 Voting Rights Act, but to punt the issue of a remedy back to the lower court.

The 2020 lawsuit was filed by the American Civil Liberties Union and the Campaign Legal Center on behalf of the Arkansas Public Law Center, the Arkansas United Community Coalition and several individual voters.

Campbell said that the plaintiffs will file a motion by the end of the week asking U.S. District Judge Lee Rudofsky to order the state to implement a new absentee voting system that does not rely on signature matching.

“We’re going to ask the court to issue a preliminary injunction to prevent the state from enforcing the wet-signature requirement because we believe it’s unconstitutional,” Campbell said.

Thurston, a Republican, said in his letter to county officials that he believes the 8th Circuit’s decision “essentially reinstates [Arkansas Code Annotated 7-5-306],” meaning that “wet signatures are required on absentee ballots.”

But Campbell said the 8th Circuit’s decision did no such thing.

“The 8th Circuit did not reinstate the wet-signature requirement,” Campbell said. “They sent the case back to the district court to determine what the remedy should be. And the district court has already ruled that the wet-signature requirement is unconstitutional.”

Campbell said he expects Rudofsky to rule on the plaintiffs’ motion for a preliminary injunction by the end of September.

In the meantime, county election officials are left in a state of uncertainty about how to handle absentee ballots for the 2022 election.

Thurston said in his letter that county officials should “continue to accept and process absentee ballots as you have done in the past.”

However, Campbell said that county officials should not rely on the secretary of state’s guidance.

“The secretary of state’s letter is not binding on the counties,” Campbell said. “The counties are free to follow the federal court ruling and not require wet signatures.

Campbell said he believes that many county officials will choose to follow the federal court ruling, even if it means risking a lawsuit from the state.

“I think a lot of county clerks are going to say, ‘We’re not going to enforce an unconstitutional law,’” Campbell said.