Voting and Voting Rights
Voting rights in Arkansas have evolved from an initial narrow limitation to today’s near-comprehensive voting rights.
1836 Original State Constitution
In 1836, when Arkansas became a state, it had neither a property requirement nor a taxpaying requirement for voting eligibility—unlike seven of the twenty-five states of the Union at the time. This was in keeping with Jacksonian democratic principles and was somewhat advanced for the South, where many states had these types of restrictive requirements. To vote, a person had to be male, of the white race, a U.S. citizen, and a citizen of the state for at least six months. Some twenty of the twenty-five states then had some type of race exclusion, including all of the South. Most states required U.S. citizenship, but only a few added an additional residency requirement. The State of Arkansas, however, forbade military service personnel from establishing residence or being able to vote.
Civil War through the Gilded Age (1861–1900)
As the Civil War was drawing to a close, President Abraham Lincoln instituted a progressive plan for bringing cooperative Confederate states back into the Union. Arkansas’s third constitution was written under this plan, which would provide federal recognition and financial support for Reconstruction if at least ten percent of 1860 voters voluntarily took an oath of allegiance. Arkansas voters subsequently approved a new state government. The resultant 1864 state constitution abolished slavery; provided for the popular election of secretary of state, auditor, treasurer, and judges; and created the office of lieutenant governor.
When Congress restored Arkansas to the Union in 1868, universal male suffrage was required, along with the disenfranchisement of former Confederates. Following the Brooks-Baxter War, a new state constitution was ratified, re-enfranchising former Confederates.
Arkansas has had various residency voting requirements over the years. While the 1868 constitution required six months’ state residency, the 1874 constitution added ten days in the county. The residency requirement was then extended to twelve months in the state, six months in the county, and one month in the precinct or ward. Most other states had similar, if not stricter, restrictions.
In 1868, Arkansas became one of the earliest states to permit “aliens”—newly arrived immigrants—to vote; an alien needed only to declare his intention to become a citizen. Unlike most other states, Arkansas did not have any special requirements for naturalized citizens, such as a need for them to present their naturalization papers, observe a waiting period, or submit to other restrictions. In the aftermath of World War I, however, nativist worries arose about possible foreign influence in the United States. As a consequence, Arkansas ended its special voting permission for aliens in 1926 by constitutional amendment.
An 1873 amendment to Arkansas’s constitution excluded “paupers”—people who received public aid or resided in a poorhouse—from voting. The state reversed this in 1874, becoming one of the few states that allowed low-income people to vote. Unlike most other states, Arkansas did not bar inmates from voting or from being considered in residence in their confining institution’s locale. Arkansas similarly was one of the few states that did not constitutionally exclude persons convicted of specific crimes (e.g., felonies, bribery) from voting. In 1873, this was amended to bar from voting anyone convicted of a crime that was punishable by law with death or imprisonment; voting rights were restored after a pardon or sentence commutation. This was changed to simply a felony in 1874, and a state law in 1894 excluded those convicted of a felony from voting.
Early Twentieth Century (1901–1940)
Arkansas has been one of the few states in the country that has never had a literacy requirement for voting. Other states required that someone wishing to vote had to read some designated text, such as three lines of the Constitution, along with other rules such as to be able to write in English. In fact, the Election Law of 1891 held that illiterate men were allowed to vote, although to receive help, the man had to apply to two precinct judges, who then would have to ask all other voters to vacate the polling place so the judges could prepare the ballot; this process of course discouraged illiterate men from going to the polls. At that time, over twenty-five percent of the population was illiterate. However, the deeper purpose of the Election Law of 1891 was the disenfranchisement of African Americans (many of whom were illiterate at this time) and suppression of Republican and other third-party political opposition to the Democratic political dominance of the time. Arkansas’s procedures were not the most restrictive in the South, however, for African-American men could legally vote.
In 1893, Arkansas joined many other southern states in requiring a poll tax of $1.00. This was a substantial burden for many, when the average annual wage in Arkansas was $548. To vote, a person had to show a receipt or some other evidence that the tax had been paid. In practice, even if someone had the money, the livelihoods of sharecroppers and farm laborers often were threatened by landowners who wanted to influence their voting. At this time, political machines often paid voters’ poll taxes in order to manipulate the election’s outcome.
Arkansas was not among the twenty states and territories that had fully enfranchised women prior to 1920. Unlike many states in the early twentieth century, which allowed women to vote in elections that concerned schools or allowed women who were taxpayers to vote, Arkansas did not permit women to vote, although efforts to expand women’s voting rights increased after 1900.
Public hearings on a proposed Arkansas constitutional amendment for women’s suffrage were held on March 15, 1911, with speakers such as Minnie U. Rutherford, “who made forceful appeals for the [women’s] right to vote.” In the Arkansas state legislature, the amendment passed in the Senate and went on to the House on April 12, 1911. State Representative George L. Grant spoke in favor of the resolution, stating that the enfranchisement of women was long overdue. The House opposition, however, came from the liquor interests, which held that women “should not be contaminated with politics” and that women belonged in the home. The liquor industry was alarmed by the Woman’s Christian Temperance Union (WCTU), which viewed women’s suffrage as a way to achieve prohibition. The women’s suffrage amendment of 1911 ultimately failed.
In 1915, the Political Equality League joined with the Arkansas Federation of Women’s Clubs (AFWC), and at its convention, the AFWC advocated a women’s suffrage resolution. Once again, a women’s suffrage amendment was proposed for the Arkansas Constitution. Rutherford spoke to the hearing committee, and Florence Brown Cotnam addressed the House. This time, the amendment passed. However, four amendments were to be voted on, but according to state law, only three could go before the public. Therefore, the suffrage amendment failed again. In 1917, the state passed a law permitting women to vote in party primary elections. Two years later, the state became the twelfth state in the nation to ratify the Nineteenth Amendment to the U.S. Constitution, and one of the four states in the South to pass it.
World War II through the Faubus Era (1941–1967)
Arkansas long had an all-white Democratic primary. After World War II, efforts to expand voting rights met with significant opposition from white segregationists. This was particularly true in the 1948 primary elections, which saw the largest number of black voters in Arkansas since the end of Reconstruction. In a voter registration drive during this time, civil rights activist Wiley Branton was arrested for violating a state statute that prohibited the use of sample ballots to teach people how to vote.
The state was one of the last five in the nation that had a poll tax in 1954. In 1964, the Twenty-fourth Amendment to the U.S. Constitution forbade a poll tax in federal elections, and Arkansas finally abolished the poll tax as a voting requirement and instituted a voter registration system in 1965.
Modern Era (1968–Present)
Literacy tests were outlawed by the federal Voting Rights Act of 1965. Arkansas did not have as many problems conforming to the law as states in the Deep South, but Arkansas has occasionally been found by the courts to be in violation of the Voting Rights Act’s prohibition of vote dilution “where a district was drawn, intentionally or not, so that minorities do not have an equal opportunity—as others—to elect a candidate of their choice.” The U.S. Supreme Court’s Reynolds v. Sims decision (377 US 533, 1964), which established the “one man, one vote” rule regarding state political districts, directly affected Arkansas voting. In 1981, the State of Arkansas passed a statewide legislative apportionment plan under the Voting Rights Act. Black voters subsequently filed a suit in federal court in 1989 alleging that the state’s plan violated the act, noting that no black legislator had been elected from a non-majority-black district despite African Americans being sixteen percent of the state’s population. In 1989, a federal court in Jeffers v. Clinton agreed and ordered several racial “majority-minority” districts for the Arkansas House of Representatives and Arkansas Senate to be re-drawn so that the minority populations would have a better opportunity to elect their preferred candidate. This new plan created seven more majority-black House districts and two more majority-black Senate districts. As a result, more black candidates have been elected to House and Senate offices in Arkansas.
In a 2012 Voting Rights Act case, the U.S. Attorney General stated that there was evidence of voting discrimination in jurisdictions not covered by the Voting Rights Act formula, including northern Florida, Tennessee, and Arkansas. In 2012, the Jeffers v. Beebe lawsuit challenged Arkansas’s reapportioned state Senate district border lines because of alleged racial gerrymandering and violations of the Voting Rights Act.
By 2013, some of the other major issues regarding voting rights in Arkansas included immigration, redistricting, and special populations, although the federal “Help America Vote Act” (HAVA) of 2002 has enabled more minorities and people with disabilities to vote. Utilizing $2.5 million from Congress under an “early out” program, Arkansas replaced the punch cards and lever machines in thirteen counties, as well as the hand-counted paper ballots in nine counties, with an electronic voting system. Counties now provide at least one voting unit per polling site meeting the accessibility requirements of the Americans with Disabilities Act. Elections are also governed by the 1993 National Voter Registration Act of 1993 (NVRA), known as the Motor Voter Law, which requires public service agencies such as driver’s license offices to offer voter registration. As of 2010, 74.5 percent of Arkansans were registered to vote—or 1,643,222 of the state’s 2,204,443 voting-age population. The Secretary of State’s Office also provides applications, signs, resources, and training to help ensure that under-served populations have the opportunity to vote.
Twenty-First-Century Voting Requirements and Restrictions
A person can vote in Arkansas if he or she is a U.S. citizen, an Arkansas resident, at least eighteen years old on election day, not in prison or on probation or parole for a felony conviction, and not declared by a court to be mentally incompetent to vote. The homeless have to identify a place of residence (e.g., a street corner, a park, or a shelter) and a mailing address. People can register to vote in person, by mail, at driver’s license offices, when applying for services at state agencies that provide public assistance (e.g., Medicaid, WIC, and food stamps), or when acquiring services for people with disabilities. Many other state and federal offices and agencies also offer voter registration. Mail-in voter registration forms can be obtained from local election offices; many libraries, colleges, and high schools; or online.
Although the state enacted its first modern Civil Rights Act in 1993—covering discrimination based on race, religion, national origin, gender, and disability—Arkansas is one of the few states in the nation that has not established a civil rights commission to monitor and police voting problems. The state’s Fair Housing Commission is the sole agency of this type, but its jurisdiction solely covers housing and closely related activities.
In 2013, the Arkansas General Assembly passed a bill mandating that prospective voters show a picture identification to poll workers before being allowed to cast a ballot. The bill was vetoed by Governor Mike Beebe, but on April 1, 2013, the Republican majority in the legislature overrode the governor’s veto. The voter ID law was struck down by Circuit Judge Tim Fox on April 24, 2014, but he issued a stay of his ruling until it could be appealed to the Supreme Court of Arkansas. On October 15, 2014, that court unanimously struck down the law, citing the precedent of Rison et al. v. Farr and saying that the requirement of identification conflicted with the voter qualifications laid out in the state constitution. In 2017, the Arkansas General Assembly passed Act 633, which again required voters to present a government-issued identification before voting. In April 2018, Pulaski County Circuit Judge Alice Gray ruled the law unconstitutional, but the Arkansas Supreme Court the following week granted a stay that allowed the law to be enforced for primary elections that year. In October 2018, the Arkansas Supreme Court upheld the law. In the November 2018 mid-term elections, nearly eighty percent of Arkansas voters approved a constitutional amendment requiring voters to present valid photo identification when casting a ballot in person or casting an absentee ballot.
During the 2021 legislative session, Republicans passed, and Governor Asa Hutchinson signed into law (or allowed to become law without his signature), more than twenty different bills affecting voting rights in Arkansas. These bills were among many that Republican legislators across the nation introduced to limit voting rights following the election of Joe Biden as president the previous year. Three of these laws changed how absentee ballots were processed: Act 727 exempted ballots from those records that can be disclosed under the Arkansas Freedom of Information Act; Act 736, among other things, prohibited election officials from distributing unsolicited absentee ballots to voters; and Act 973 changed the deadline for absentee ballot submission from the day before election day to the Friday before election day. Acts 756, 952, and 974 all gave the state Board of Election commissioners and the state legislature’s Joint Performance Review Committee greater ability to challenge the work of county election commissions; even Gov. Hutchinson believed that Act 974, which he allowed to become law without his signature, constituted a “takeover in the review of all elections,” adding, “The Legislature should not be investigating municipal and county elections. The General Assembly has jurisdiction to review the election of its own members but reviewing all elections is an intrusion on local governance.” A number of acts affected the operations of county election commissions, most notably Act 961, which prohibits county boards of election commissioners from taking funding from non-government sources. (During the election of 2020, which occurred in the midst of the COVID-19 pandemic, some cash-strapped election commissions across the nation had accepted monetary donations in order to establish safer voting centers that would allow people to exercise their rights while limiting possible exposure to disease.) Act 951 imposed a residency and citizenship requirement for canvassers collecting signatures for ballot initiatives and prohibited paying such canvassers on a per-signature basis, while House Joint Resolution 1005, to be referred to voters in 2022, proposed raising the threshold needed to pass ballot measures to sixty percent of the popular vote. Finally, among other various laws, Act 273 increased the number of signatures needed for a presidential or vice-presidential candidate to appear on the ballot from 1,000 to 5,000.
In response to these challenges to voting rights, the League of Women Voters and other organizations filed suit, claiming specifically that four laws in particular made voting significantly more difficult, if not sometimes impossible, for minorities, the poor, and the disabled. The laws in question were: Act 249 (a voter identification law), Act 728 (which regulates campaigning around the polls), Act 736 (which affects how ballots are validated), and Act 973 (which establishes deadlines for absentee ballots). The trial got underway on March 15, 2022, in Pulaski County Circuit Court. On March 18, 2022, Judge Wendell Griffen struck down the four laws, but the Arkansas Supreme Court issued a stay of his ruling on April 1, 2022.
In August 2022, U.S. District Judge Timothy L. Brooks ruled that a section of the state’s election code, adopted in 2009, which placed limits on who might assist voters, especially those not proficient in English, was in violation of the federal Voting Rights Act.
A 2021 federal report on the 2020 general election ranked Arkansas last in the nation in terms of voter turnout and voter registration. In addition, Arkansas scored the highest rejection rate for mail-in ballots by far. The state’s Republican U.S. representatives and senators consistently opposed efforts by the Biden administration to ensure access to the ballot (through such means as automatic voter registration and expanded early voting) and to outlaw gerrymandering. A report by the New York Times in September 2022 ranked Arkansas as the third-most highest state in the union in terms of the difficulty encountered in attempting to cast a ballot.
For additional information:
“ACLU of Arkansas and ACLU Voting Rights Project Sue to Restore Voting Rights of College Students.” American Civil Liberties Union. http://www.aclu.org/voting-rights/aclu-arkansas-and-aclu-voting-rights-project-sue-restore-voting-rights-college-student (accessed November 4, 2021).
Arkansas Advisory Committee to the U.S. Commission on Civil Rights. “Who Is Enforcing Civil Rights in Arkansas: Is There a Need for a State Civil Rights Agency?” Washington DC: U.S. Commission on Civil Rights, 2011. http://www.usccr.gov/pubs/sac/ar0201/ch2.htm (accessed November 4, 2021).
“Arkansas Women: Race, Reform, and the Right to Vote.” Special issue, Arkansas Historical Quarterly 79 (Autumn 2020).
Bill Clinton, Governor Of Arkansas, et al., Appellants V. M. C. Jeffers, et al. Supreme Court of the United States, October Term, 1990, On Appeal from the United States District Court for the Eastern District of Arkansas. SG900402 – No. 90-394. http://www.justice.gov/osg/briefs/1990/sg900402.txt (accessed November 4, 2021).
“Challenging Arkansas’ Four New Voter Suppression Laws.” Democracy Docket, March 14, 2022. https://www.democracydocket.com/news/challenging-arkansas-four-new-voter-suppression-laws/ (accessed March 18, 2022).
Corasaniti, Nick, and Allison McCann. “The ‘Cost’ of Voting in America: A Look at Where It’s Easiest and Hardest.” New York Times, September 20, 2022. https://www.nytimes.com/interactive/2022/09/20/us/politics/cost-of-voting.html (accessed September 22, 2022).
Corasaniti, Nick, and Reid J. Epsteain. “How Republican States Are Expanding Their Power over Elections.” New York Times, June 19, 2021. https://www.nytimes.com/2021/06/19/us/politics/republican-states.html (accessed November 4, 2021).
Elections Division. Arkansas Secretary of State. https://www.sos.arkansas.gov/elections (accessed November 4, 2021).
Ellis, Dale. “4 Voting Laws in Arkansas Blocked.” Arkansas Democrat-Gazette, March 19, 2022, pp. 1A, 2A. Online at https://www.arkansasonline.com/news/2022/mar/19/judge-strikes-down-new-arkansas-voting-laws-that/ (accessed March 21, 2022).
Glaze, Tom, with Ernie Dumas. Waiting for the Cemetery Vote: The Fight to Stop Election Fraud in Arkansas. Fayetteville: University of Arkansas Press, 2011.
Herzog, Rachel. “Session Rolls Out Array of Vote Laws.” Arkansas Democrat-Gazette, May 9, 2021, pp. 1A, 10A. https://www.arkansasonline.com/news/2021/may/09/session-rolls-out-array-of-vote-laws/ (accessed November 4, 2021).
Highham, John. Strangers in the Land: Patterns of American Nativism 1860–1925. New Brunswick, NJ: Rutgers University Press, 1988.
Keyssar, Alexander. The Right to Vote: The Contested History of Democracy in the United States. New York: Basic Books, 2000.
Kilpatrick, Judith. “Wiley Austin Branton and the Voting Rights Struggle.” University of Arkansas at Little Rock Law Review 26 (2004): 641–701.
Mosley, Michael, Robert Beard, and Paul Charton. “Sixteen Years of Litigation under the Arkansas Civil Rights Act: Where We Have Been and Where We Are Going.” University of Arkansas at Little Rock Law Review 32 (Winter 2010): 173–214.
Vrbin, Tess. “Effects of State’s New Voting Laws Examine in Third Day of Civil Trial.” Arkansas Democrat-Gazette, March 18, 2022, pp. 1B, 3B. Online at https://www.arkansasonline.com/news/2022/mar/18/effects-of-arkansas-new-voting-laws-examined-in/ (accessed March 18, 2022).
———. “Voter Law Challenge Hears 1st Testimony.” Arkansas Democrat-Gazette, March 16, 2022, pp. 1B, 5B. Online at https://www.arkansasonline.com/news/2022/mar/16/voter-law-challenge-hears-1st-testimony/ (accessed March 18, 2022).
Vu-Dinh, Kim. “Time to Mail It in? A Survey of 2020 Voting Rights Issues in Arkansas and Recommendations for More Inclusive Elections.” University of Arkansas at Little Rock Law Review 44 (Winter 2021): 213–250.
William P. Kladky
College of Notre Dame of Maryland
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