Circuit Judge Tim Fox
, who last week struck down
the 2013 Voter ID
law because it unconstitutionally adds additional requirements to be eligible to vote, today again found the law unconstitutional in a separate case, but stayed his decision, citing the beginning of early voting on Monday.
"I just don't know how we can have an official election if we throw everything into some maelstrom," Fox said. "I'm not going to throw thousands of precincts into turmoil." Proof of identity provisions will stay in place for now, going into the state of early voting on Monday.
The challenge was brought in a lawsuit with multiple defendants and backed by the ACLU and the Arkansas Public Law Center, a nonprofit group that brings public interest lawsuits.
The effect of today's hearing and decision — in which Judge Fox essentially limited the issue to a "facial" challenge of the law as violating the state Constitution's limits on voter rules — leaves for potentially another day the case's contention that the law has discriminatory effect against poor people who don't currently possess a birth certificate or driver's license or other form of ID necessary to meet the terms of the new law. If the Supreme Court overturns Fox on the "facial" challenge, the path would still be clear to raise all the original discriminatory effects argued in the original lawsuit. In Pennsylvania, a Voter ID challenge lost on a facial challenge under that state's constutition, but plaintiffs struck the law down on discriminatory effects.
Secretary of State Mark Martin had wanted to pry into private lives — public assistance and tax returns, for example — of all plaintiffs, an effort plaintiffs' attorneys had resisted. Most of the plaintiffs don't have ID, but one, Barry Haas, an Air Force veteran and former poll worker has an ID that he thinks he should not be required to produce. The secretary of state never explained why his tax records were relevant to its defense.
The Arkansas Supreme Court may rule soon on the issue
, after granting an expedited appeal earlier this week on the previous case in which Fox struck down the law (briefs were due today). The Supreme Court stayed the portion
of Fox's previous ruling declaring the entire law unconstitutional, but declined to stay the portion of Fox's ruling overturning special rules promulgated by the Arkansas State Board of Election Commissioners
to give absentee voters the ability to produce identification to qualify a provisional ballot after the fact.
Early voting is sure to begin, as it did in some recent special elections, with the Voter ID law in place. Voters without IDs may cast provisional ballots. They ultimately could be counted — without producing IDs — if the court should rule before primary votes are counted on appeals of Fox's ruling by the state.
Attorney Jeff Priebe
argued for the plaintiffs in today's hearing, though no testimony by the plaintiffs was offered. He argued that the requirement of a photo ID to vote constituted a qualification to voting. He cited an 1865 Arkansas Supreme Court decision that struck down a requirement that forced voters to swear a loyalty oath and say they had never borne arms against the U.S. Government before being allowed to vote. "Since 1865," he said, "we haven't seen these types of laws because it's been clear the Arkansas Supreme Court won't allow" similar qualifications.
Attorney General Dustin McDaniel
said his office would appeal the ruling and Secretary of State Mark Martin
, the lead defendant as supervisor of elections, said he was pleased the rule would remain in place so there wouldn't be confusion in early voting. He reminded voters to bring a picture ID to vote.
Attorneys representing the secretary of state's office attempted to argue for the constitutionality of the voter ID provisions and against Fox's jurisdiction over the case from several angles, including making the case that for the judge to issue a declaratory judgment, all parties who would be impacted by the ruling — including every member of a county Election Commission and every circuit clerk in the state — needed to be present, given that the secretary of state's office didn't have the power to compel them to abide by the ruling. Attorneys said the Mark Martin's office has done "everything possible" to educate people about the need to bring ID to the polling place.
Judge Fox said that while eliminating or reducing voter fraud is a positive thing, he went on to say that in his mind, forcing voters to show up at their polling place with more information than was required for them to register to vote — a government-issued ID — is "more of a qualification."
Fox said that a person would be hard pressed to find a trial judge in Arkansas who believes more firmly in the separation of powers than him, adding that he believes the judicial branch shouldn't set the legislative priorities for the state.
"Personally," Fox said, "I have no problem with someone being asked to show photo ID. But what I think personally doesn't matter when I'm in this courtroom and sitting behind this bench." Fox said that if even one person who is legally entitled to vote is denied the right to vote due to the provisions of the voter ID law, then the entire electorate suffers irreparable harm.
Fox said that the information required under the voter ID law constitutes additional qualifications for voting, and then ruled the law unconstitutional before staying his own ruling, citing the start of early voting on Monday and the need to keep from confusing voters.
Outside the courthouse, plaintiff's attorney Jeff Priebe said that he was very pleased with the court's decision to hold voter ID in the state unconstitutional. "I think we can't lose sight of the tree for the forest. This was a very good ruling that I'm very pleased with.
"I think it reflects that the judge is concerned — that he has thought about this, and given the Arkansas Supreme Court's stay in the Pulaski County absentee [voter] case, he is kind of waiting to see what's going to happen in that case. Hopefully, we're going to know something sooner rather than later."
Asked if he believes the state's voter ID law is really about preventing voter fraud rather than about disenfranchising voters who might not have a valid ID, Priebe said that he'd have to defer to those who wrote the law.