Democrats hire Rose Law Firm, may sue Arkansas Secretary of State over FOIA violation, voter list

The Democratic Party of Arkansas (DPA) has retained the Rose Law Firm for a potential Freedom of Information Act lawsuit against Secretary of State Mark Martin’s office.

Party officials also plan to make other FOIA requests, and with allied groups, are considering hiring an Atlanta-based voting rights litigation specialist and suing the office in federal court.

Chris Burks, the party’s attorney, said the potential FOIA lawsuit is based on the fact that public documents it requested Aug. 3 and received Friday were incomplete and delivered late. He said the DPA will make more FOIA requests of Martin, a Republican. Those requests will pertain to a potential software patch developed by the secretary of state’s software vendor, Election Systems & Software (ES&S).

Burks said the DPA is considering a federal lawsuit in concert with allied voting rights groups, such as the American Civil Liberties Union, the NAACP Legal Defense and Educational Fund; the New York-based Brennan Center for Justice; and the Lawyers’ Committee for Civil Rights Under Law. Those groups are considering hiring Bryan Sells, an Atlanta-based litigation specialist. That lawsuit would focus on Voting Rights Act violations as well as Arkansas constitutional violations.

The legal activity is a result of the secretary of state’s office in June sending a list to county clerks of convicted felons who were on an Arkansas Crime Information Center (ACIC) database and had supposedly lost their voting privileges. According to the Arkansas Democrat-Gazette, the list had not been updated for two years because an employee of Arkansas Community Correction who was responsible for compiling the data had died. The secretary of state’s office requested the list of felons from the Arkansas Crime Information Center to fulfill its duties under Amendment 51 of the Arkansas Constitution, which governs voter registration.

That list included people who were not convicted felons, and the ACIC did not specify felons who have had their voting rights restored. The office since has instructed individual county clerks to verify who is eligible to vote.

On Aug. 3, the DPA sent a FOIA request to the secretary of state’s office for paper and electronic records, including emails, related to the list. The DPA announced on Aug. 8 that its request had been denied, while the ACIC had provided 906 pages of documents including correspondence between it and Martin’s office. On Aug. 10, the DPA said the office of Attorney General Leslie Rutledge had said it would receive the documents Friday.

Burks said a box of documents was delivered on Friday, but it included information pertaining to only one of the approximately 20 categories in which the DPA had requested information – mostly internal emails between staff members of the secretary of state’s Elections Division discussing errors that had been made. The documents supplied do not include correspondence with other members of the secretary of state’s office, with county clerks, or with ES&S. Burks said the omission and the tardiness of the response were violations of FOIA.

“While we’re sympathetic to the job they have to do, we just don’t think that’s the law,” he said. “We think that on an issue important like voting rights, we should have gotten our stuff in the time required for law. We didn’t waive our right to get it, and when the deadline came for them to give it to us, their response was, we don’t have to give you any of this.”

Talk Business & Politics attempted to contact the secretary of state’s communications director, Chris Powell, by cell phone on Saturday. Powell has not yet responded to the request.

Burks said the DPA believes the secretary of state’s office has violated several laws, in addition to the FOIA violations. It says the office has not fulfilled its duties to update the voter list accurately under Amendment 51. It says that by giving county clerks and voters the responsibility for correcting the problem, it has added an unconstitutional additional voter qualification. Finally, if the actions have had a disparate effect on African-American voters, then the DPA says they would be a violation of the federal Voting Rights Act.

“I don’t think Mark Martin had a scheme to say, ‘We’re going to kick all the Democrats off the ballot,’” he said. “I mean, that’s not what happened here. But even if that wasn’t his intent, that doesn’t matter under the Voting Rights Act.”

The Democrat-Gazette has reported that the secretary of state’s office sent a list of 7,730 voters who were convicted felons to county clerks in June. Burks said that, without more data, the DPA isn’t sure how many voters have been mistakenly stricken from the rolls. Burks said the DPA wants documents related to when the list from the ACIC was saved, when it was sent to various secretary of state employees, and who might have manipulated the lists.

“Did the secretary of state’s office just pass on the data they got, or did they slice it and cut off all the Democrats?” he said. “Did they cut off all the Republicans? Did they sort it by year? We just don’t know, and Mark Martin is declining to give us any information in that category.”

Burks pointed to one potential Pope County plaintiff who was notified June 30 that his voting rights had been stripped despite the fact he had never been convicted of a felony.

Burks said the secretary of state’s office is avoiding responding to requests because of its litigation strategy. He said the software patch by ES&S would correct the error, but Martin is correcting the problem only county by county through those particular county clerks as a legal strategy to avoid taking responsibility.

“They could have fixed it once they got this patch at the beginning of this week and they’re not, and the reason they’re not is because they don’t want to admit that they have any responsibility under the Constitution to fix it because then they get in trouble for the original screw-up,” he said.

The Arkansas ACLU chapter also received documents related to its own Freedom of Information Act request. Burks said the ACLU made a smaller request.