CASE STUDIES IN EMERGENCY ELECTION LITIGATION

Federal Judicial Center 10/24/2023 1

Suit to Enjoin Election Officials to Keep Counting 

Absentee Ballots After the Polls Closed Dismissed 

Because That Was What They Were Going to Do 

Wince v. Thurston 

(Brian S. Miller, E.D. Ark. 4:20-cv-1274 and 4:20-cv-1278) 

A complaint removed to federal court sought an injunction requiring election officials to keep counting absentee ballots if the counting would not be finished when the polls closed. An identical removed action was consolidated with the first. During the injunction 

hearing, state election officials confirmed that all ballots returned 

on time would be counted, so the district judge dismissed the actions. 

Subject: Absentee and early voting. Topics: Absentee ballots; 

Covid-19; case assignment; removal. 

On October 23, 2020, Arkansas state election officials removed an action by 

two absentee voters to the federal district court for the Eastern District of 

Arkansas.1

 “Like thousands of Arkansans, they are voting absentee due to 

health concerns related to the [global infectious] COVID-19 pandemic. . . . 

They ask that [the] Court enter a preliminary injunction prohibiting election 

officials from refusing to continue counting absentee ballots after the polls 

close at 7:30 p.m. on November 3, 2020.”2

Judge James M. Moody, Jr., asked the court to reassign the case on the 

day that it was removed: “Based upon my schedule and the short timeline, I 

will not be able to consider the preliminary injunction before November 

3rd.”3 Judge Brian S. Miller set the case for hearing on October 28.4

On the day before the hearing, Judges Miller and D.P. Marshall, Jr., 

agreed to consolidate the case with a case removed on October 26 and assigned to Judge Marshall.5

 According to the defendants, “After [they] removed [the] first action to [the federal] Court, Plaintiffs notified the Court 

that they intended to file another state-court action bringing identical state 

constitutional claims . . . . This morning Plaintiffs did just that.”6

1. Notice of Removal, Wince v. Thurston, No. 4:20-cv-1274 (E.D. Ark. Oct. 23, 2020), 

D.E. 1 [hereinafter First Notice of Removal]. 

2. Complaint at 2, Wince v. Thurston, No. 60CV-20-5928 (Ark. Cir. Ct. Pulaski Cty. Oct. 

23, 2020), attached to First Notice of Removal, supra note 1; see Amended Complaint,

Wince, No. 4:20-cv-1274 (E.D. Ark. Oct. 27, 2020), D.E. 9. 

3. Order, Wince, No. 4:20-cv-1274 (E.D. Ark. Oct. 23, 2020), D.E. 4. 

4. Order, id. (Oct. 26, 2020), D.E. 8; see Preliminary-Injunction Motion, id. (Oct. 27, 

2020), D.E. 10. 

5. Order, id. (Oct. 28, 2020), D.E. 17; Order, Wince v. Thurston, No. 4:20-cv-1278 (E.D. 

Ark. Oct. 27, 2020), D.E. 8; see Motion, id. (Oct. 26, 2020), D.E. 5. 

6. Notice of Removal, Wince, No. 4:20-cv-1278 (E.D. Ark. Oct. 26, 2020), D.E. 1 [hereinafter Second Notice of Removal]; see Complaint, Wince v. Thurston, No. 60CV-20-5954 

(Ark. Cir. Ct. Pulaski Cty. Oct. 26, 2020), attached to Second Notice of Removal, supra. 
Suit to Enjoin Election Officials to Keep Counting Absentee Ballots After the Polls Closed 

Dismissed Because That Was What They Were Going to Do 

2 Federal Judicial Center 10/24/2023 

During Judge Miller’s hearing, Arkansas’s board of election commissioners met and confirmed that every absentee ballot received on time would be 

counted, so Judge Miller denied the plaintiffs before him immediate relief.7

Judge Miller dismissed the cases on November 24.8

7. Opinion, Wince, No. 4:20-cv-1274 (E.D. Ark. Oct. 29, 2020), D.E. 18, 2020 WL 

6324743. 

8. Order, id. (Nov. 24, 2020), D.E. 22.