Flawed data sent out by the Arkansas secretary of state's office in conjunction with the Arkansas Crime Information Center incorrectly flagged thousands of people to be removed from voter registration lists, meaning several Arkansas voters will have to prove their status before this year's presidential election if the issue isn't fixed.

In many cases, that will result in undue burden to voters, some county clerks have said, even hinting at possible future lawsuits over the mess-up.

The problem arose when the secretary of state's elections division sought to update voter lists with new felon data to ensure that felons still in prison or on parole or probation aren't allowed to vote, per state law.

In the process of getting the data from the Arkansas Crime Information Center, known as ACIC, about 4,000 people who have never been convicted of a felony were included on the list and flagged by error. Some of them may have been notified by their county clerks' offices that their voter registration has been canceled, even though it shouldn't have been.

In other cases, of which no agency is sure of an exact total, felons who have legally regained their right to vote were incorrectly flagged in the system. Some of them have also been notified that their registration has been canceled.

Each of Arkansas' 75 counties follows its own protocol to process the data, so while some counties proceeded with canceling these people's registration when the names were flagged by the secretary of state's office, others are trying to confirm the information before doing that.

The secretary of state's office and ACIC have acknowledged the errors.

The elections division has since instructed clerks' offices to verify whether someone has restored voting rights and to verify their felon status before removing them from the database.

"We've offered advice and provided the data, but our office does not remove people" from voter lists, secretary of state spokesman Chris Powell said. "It's the responsibility of counties to make sure that [information] is correct. We don't instruct them to take this person or that person off. We give them the felon information, and they are supposed to compare that with voter registration and they make the determination [to remove someone from the database.]"

"This has been fairly recent. It's not all going to be ironed out just yet," Powell said.

Pulaski County Clerk Larry Crane said that based on a sampling of the almost 2,000 records his office received from the secretary of state, he believes that half of the names flagged shouldn't be prevented from voting.

Pulaski County Assistant Chief Deputy Clerk Jason Kennedy cautioned that it may be too early to draw that conclusion, but that in the very small subset of data he's processed so far, about half of the names shouldn't have been flagged.

"In many cases, these people are going to be forced to go back through the process, sometimes years and years back [to] reprove that they have already been through the process to restore their right to vote. And I think it's unconscionable," Crane said.

"It may not be a huge burden in some instances, but it may in others. And quite honestly, any burden being placed on a person's voting rights over and above what the Constitution requires has been held to be illegal -- inappropriate," he said.

The Pulaski County office and others have expressed concerns to the secretary of state's office, but Crane said that so far no satisfactory response has been given.

"The possibility that it may be necessary to file a lawsuit either from the clerks' end of things or the individuals' end of the situation has been discussed and no decision has been made yet whether it will be necessary," Crane said.

Flawed data

Historically, the secretary of state's election division has updated county clerks on new felons whose right to vote should be stripped per state law. The clerks will then remove those people from voter lists.

But Arkansas law allows felons to regain their right to vote once they are discharged from probation or parole and have paid all probation or parole fees, and once they have satisfied all terms of imprisonment and paid all court costs, fines or restitution. A felon can also have his crime pardoned and be eligible to vote again.

Amendment 51 to the Arkansas Constitution states that when convicted felons show proof of that information to the county clerk, they shall be added back to voter registers.

For decades, the secretary of state's office had been getting its felon information from the Department of Correction. Recently, about 20 months passed with no updates so officials looked into why the information flow had stopped.

It turned out that the employee who had been sending the information died and no one was sure how to do his job. More digging showed that state law actually mandates that the secretary of state receive the information from the ACIC, so the process had been incorrectly performed all along.

In order to comply with state law, the secretary of state's office requested all data on felons from the Crime Center going back to when ACIC began keeping records in the 1970s.

The state election division sent out the list provided by ACIC to each county clerk's office in June.

The division quickly got feedback that there were issues with the data, and they told county officials to hold off on working from the lists, but some offices had already removed voters from the database and notified them that their registration had been canceled.

That was the case in Cleburne County, which received a list of 69 flagged voters.

"Once these people got the letter, they called and said, 'Hey, this is wrong,'" Cleburne County Clerk Paul Muse said. "I would have appreciated if [the state] would have held off until they had purged this and removed the ones who had done their debt to society or had their records expunged because we are dealing with the aftermath here."

Statewide, there were 193,549 people on the updated list from ACIC of all felons in their system.

ACIC doesn't have data on whether a felon has regained his right to vote and the secretary of state's office never requested that distinction, according to Brad Cazort, administrator of the center's repository division.

But ACIC did have errors in its system that caused some people who had never been convicted of felonies to be included on the list.

"We have found about 4,000 errors in very old -- 20 or so years ago -- convictions out of municipal court. The judgments we received indicated they were felony convictions and they were entered that way. Municipal courts can't convict persons of a felony. We are working to correct these entries but the entries were made because that's what the court records said," Cazort said.

Problems caused

Kennedy, with the Pulaski County clerk's office, said he immediately began noticing people flagged by the secretary of state's office who shouldn't have been.

"There are issues such as district court cases of outstanding warrants for traffic violations. One person only had a public intoxication conviction from 10 years ago. Some cases said 1972 unknown location and unknown charge," Kennedy said. "That puts us in a rough spot. How am I supposed to verify an unknown charge in an unknown county from before I was born?"

He said the elections division hasn't given any guidance on how to go about verification.

In response to how the secretary of state's office is providing assistance to county clerks, Powell said he believes clerks have resources available to them to verify information, and that verification is not the role of the secretary of state.

After discovering the errors, the secretary of state's office told county clerks that they can request for the database in their county to be reset to how it was before the update, essentially removing all of the new flags inputted.

Pulaski County chose that option and Kennedy wrote to the elections division and recommended they "strongly consider doing so for the entire state since even ACIC thinks that their data is not entirely reliable."

Powell told the Arkansas Democrat-Gazette that the secretary of state's office is offering the reset option on a county-by-county basis because every county's situation is different.

The entire situation is also putting county clerks in a legal conundrum with possibly being faced with violating the state constitution if they don't cancel registration for the people flagged by the secretary of state.

Amendment 51 of the state constitution requires voter registrars to cancel the registration of someone within 10 days of getting information that would require cancellation, such as the felon update.

The Pulaski County clerk's office said it has expressed that concern to the secretary of state.

When questioned by the newspaper about that conundrum, Powell noted the size of the update and said future updates will be simpler, but didn't directly respond.

"We are not trying to put any undue burden," he said. "We are just trying to help everyone get caught up with the law because we were not in compliance before."

Crane, the Pulaski County clerk, said he believes the update will cause "undue burden" for many voters so close to the November election, in which the county believes there will be a record-setting voter turnout.

When asked if the situation boils down to a suppression of voters' rights, Crane said it wasn't an easy question to answer.

"It's more complicated than being able to say yes or no. But my answer is yes, I believe that many people will be unfairly burdened by this circumstance," he said.

Metro on 07/25/2016