John Paul Hammerschmidt Federal Building in Fayetteville. (Antoinette Grajeda/Arkansas Advocate)
A federal judge on Thursday temporarily blocked the implementation of a new rule barring the use of electronic signatures on Arkansas voter registration forms except at certain state agencies.
State lawmakers in May approved an emergency rule drafted by the Arkansas Board of Election Commissioners that requires a “wet signature,” meaning signing with a pen, on voter registration applications unless they’re completed at state agencies, like the DMV.
In June, voter advocacy group Get Loud Arkansas challenged the rule with a lawsuit filed in the U.S. District Court for the Western District of Arkansas against Secretary of State John Thurston, the Arkansas State Board of Election Commissioners and the county clerks of Benton, Pulaski and Washington counties.
Additional plaintiffs include Vote.Org, a national voter registration-focused nonprofit, and two Arkansans who had their voter registration applications rejected because they had an electronic signature Nikki Pastor and Trinity “Blake” Loper.
U.S. District Judge Timothy L. Brooks said he issued a preliminary injunction Thursday because requiring that voter registration applications be signed with a “wet signature” likely violates the Materiality Provision of the Civil Rights Act of 1964 and will cause plaintiffs irreparable harm.
The Materiality Provision prohibits any “person acting under color of law” from denying someone the right to vote in an election because of an error or omission on a record or paper related to an application or registration requisite to voting.
Brooks said the omission of a “wet signature” is not material to determining whether a person is qualified to vote under Arkansas law, which requires a voter to be a U.S. citizen, an Arkansas resident and at least 18 years old, among other things.
In deciding to rule from the bench inside the John Paul Hammerschmidt Federal Building in Fayetteville Thursday, Brooks noted the parties involved in the case are “somewhat under the gun” given that the deadline to register to vote in Arkansas’ general election is Oct. 7. Brooks said he would issue a “more fulsome” memorandum and order in the next 7 to 10 days.
Under the preliminary injunction, Brooks said the defendants and other officials would be prohibited from enforcing the “wet signature” rule and from rejecting or refusing to accept voter registration applications on the grounds that they were signed with an electronic signature instead of with a pen.
Legislators last week gave final approval to a permanent version of the rule, which was set to take effect Sept. 1. The rule promulgation process included a 30-day public comment period during which approximately 200 comments were received, about 185 of which opposed the rule.
At a July public hearing, 16 people argued the rule would make it harder for Arkansans to vote. They said it would increase inefficiency in registering voters, present difficulties for Arkansans with disabilities and create roadblocks for people living in rural and minority communities. The rule also ignores technological advances, they said.
Arkansas ranks last in the nation for voter participation, according to a study from the National Conference on Citizenship. Arkansas is also one of seven states that do not allow electronic voter registration, according to the National Conference of State Legislatures.
The rule directly affects the work of Get Loud Arkansas, which used an online portal to help register around 500 voters in 63 counties between January and May. The group has since amended its process to no longer require an electronic signature.
When Get Loud contacted Thurston about voter registration in February, a spokesman said, while “it’s a sensitive issue” that’s not clear in law, the secretary of state didn’t see how an electronic signature should be treated differently than a wet one, according to an email obtained by the Arkansas Times. However, he noted this shouldnt be treated as an official legal opinion.
Thurston then sought advice from Attorney General Tim Griffin, who said in an April 10 opinion that “while an electronic signature or mark is generally valid under Arkansas law,” the registration form must be created and distributed by the secretary of state. A third-party organization can’t create and use a different form of its own to register voters, he said.
Griffin usually represents state agencies in court, but he said in a June letter that his office would not provide representation in this case because his office had previously taken a legal position on the rule.
Lawmakers last week approved up to $250,000 in state funds for the State Board of Election Commissioners to hire legal representation. Board director Chris Madison said they hired the Mitchell Williams Law Firm.
While representing the defendants Thursday, attorney Graham Talley echoed Madison’s previous statements that the rule creates consistency because some county clerks accepted electronic signatures, while others rejected them.
Christopher Dodge, a lawyer for the plaintiffs, contended the rule “does not promote any form of uniformity” because instead of requiring a “wet signature” from everyone, it allows for digital signatures for thousands of Arkansans who register at designated state agencies.
Asked by Brooks why the election board disallowed digital signatures instead of permitting them, Talley said it’s based on the board’s interpretation of Amendment 51 to the Arkansas Constitution, which governs voter registration.
Amendment 51 specifically mentions the use of computer processes at certain agencies, like a state Revenue Office, which are specifically mentioned in the rule. Talley also said these state agencies would also have more control over the computer processes.
In addition to issuing a preliminary injunction Thursday, Brooks denied motions by the Benton and Pulaski County clerks to be dismissed from the case.
Brooks also said if plaintiffs want to file a supplemental complaint specifically addressing the permanent rule, they must do so no later than the close of business on Sept. 4. Defendants can file a response no later than the close of business on Sept. 6.
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