Wednesday, October 15, 2014

Arkansas Supreme Court strikes down voter ID law

Posted By on Wed, Oct 15, 2014 at 5:09 PM

click to enlarge JUSTICE DONALD CORBIN: He authored opinion striking down voter ID law.
  • JUSTICE DONALD CORBIN: He authored opinion striking down voter ID law.
The Arkansas Supreme Court today held that the 2013 voter ID law was unconstitutional on its face. It affirmed Circuit Judge Tim Fox in a unanimous decision.

Here's the opinion.
Just in time for early voting, which starts Monday.

Secretary of State Mark Martin defended the law, pushed by his Republican Party. But in an opinion written by Justice Donald Corbin, the court said a required photo ID was a new qualification added to voting. Identification is part of the vote registration requirements of the Constitution. The Constitution is clear about voter qualifications: A person must be 18, a U.S. citizen, an Arkansas resident and registered to vote. The ID law added a new requirement of identification. For 150 years, Corbin wrote, the court has strictly adhered to the voter qualification requirements, from Civil War days to the poll tax of the Faubus era. Said Corbin:


The four qualifications set forth in our state's Constitution simply do not include any proof-of-identity requirement. Further, with the legislature's passage of Act 595 requiring this additional qualification, we cannot determine any set of circumstances exist under which Act 595 would be valid."

Corbin said to enforce the law would disenfranchise voters. The court rejected Martin's argument that ID was validation of the registration process. If that was so, voters would have to requalify for every election. The court also rejected cases in other states as relying on the U.S. Constitution or state-specific rules. Here, the Arkansas Constitution is the paramount issue.

Associate Justice Courtney Goodson wrote a concurring opinion, joined by Justices Karen Baker and Jo Hart, that said the court didn't need to reach the conclusion about the unconstitutionality of adding an additional barrier to voting because the legislature hadn't adopted the change in the Constitutional requirements by the required two-thirds vote. That alone was sufficient to invalidate the law, they said. Gov. Mike Beebe had vetoed the bill, but the legislature overrode his veto, largely on party lines. Chief Justice Jim Hannah and Justices Cliff Hoofman and Paul Danielson joined Corbin in holding the law added an unconstitutional burden to voting.

The court issued an immediate mandate. That means the law is no longer in effect. That means, it seems to me, that voter IDs will not be required to vote in person or by absentee in the Nov. 4 general election. Existing law allows vote officials to ask to see an ID, but voters are not required to produce one. Votes can be challenged by election officials if they doubt the validity of a voter, based on signature or other discrepancies. Martin and the attorney general hadn't weighed in on the immediate impact, but I don't see the likelihood of plaintiffs allowing county officials to enforce an unconstitutional law because it would be convenient to do so.

Jeff Priebe, lead attorney in the case, said he was elated by the decision and he said he had no doubt about the impact. "The law is unconstitutional. There is no federal question." He referred to some federal cases in other states where federal judges have held up rulings striking down similar laws on grounds of confusion. Priebe said it will be a simple matter for Arkansas election officials to revert to past practices used for years. He said there's no ground to get the case into a federal court because it was built entirely, as Gov. Mike Beebe said in his veto, on state constitutional issues.

Judge Fox had enjoined enforcement of the law, but stayed enforcement of his injunction so the Supreme Court could hear the case. It was brought by plaintiffs who either lacked necessary ID or refused to provide one. The lawsuit was supported by the ACLU and the Arkansas Public Law Center, a nonprofit group that brings lawsuits in the public interest. I'm a board member of the Public Law Center.

Calls have already been made to the court indicating the depth of ignorance on voter laws. One official reported a call asking how election officials will know if a voter is even a resident of the U.S. Because they will have to give the name and address on their county's voter roll is how.

Voter ID laws are a product of conservative think tanks and enacted by Republican legislatures nationwide in hopes that they would depress turnout by young, poor and minority voters believed to favor Democratic candidates. They've been struck down in several states because of evidence of the disproportionate burden they place on the poor and elderly. A Texas judge called the requirement effectively an unconstitutional poll tax. The law was enforced in Arkansas in this year's primary and it led to disqualification of a thousand absentee votes that election officials believed were legitimate. It's unknown how many were dissuaded from voting in person for lack of a proper ID.

Backers of the law claim IDs are needed to prevent fraud. Study after study has shown virtually no voter identification fraud of the sort an ID is intended to guard against.

There need be no confusion in Arkansas beyond telling officials not to refuse the vote to people without a driver's license. The status quo of years of past practice should readily prevail. Republicans will begin howling shortly. Sen. Bryan King, lead sponsor, will howl loudest. This will likely increase noise from the likes of Sen. Jason Rapert about the need to have a means to remove judges who issue opinions legislators don't like.

Said Arkansas Democratic Party Chair Vince Insalaco: "Hip, hip hooray!"

Insalaco continued, “We are thrilled that the Republican Voter ID law was unanimously struck down as unconstitutional by the Arkansas Supreme Court. This law only made it harder for voters to exercise their most sacred right. While a thousand votes were thrown out during May’s primary when the Voter ID law was in place, every vote will be justly counted in November’s election. Today’s decision is a win for all Arkansas voters.”

No cheering from Republican chair Doyle Webb:

“We had hoped that the Supreme Court would affirm the Voter ID Law and help restore the integrity of the ballot in Arkansas; unfortunately, the Court failed to do so. We do not anticipate that this will have any impact on Republican victories in November since the people of Arkansas now identify with the views and values of the Republican Party as reflected in the last two election cycles.” 

Bryan King told the AP he didn't think his side got enough time in oral arguments before the Supreme Court. Republican gubernatorial nominee and absentee Secretary of State Mark Martin issued statements of disappointment with the cookie-cutter "ballot integrity" language. None has yet produced evidence of a case of voter identity fraud in the state.

Integrity of the ballot? Is that like their attorney general candidate, Leslie Rutledge, who voted in Arkansas after registering in another state?

Disability Rights Arkansas applauded the decision for "preventing the disenfranchisement of voters with disabilities in the upcoming general election."

The Brennan Center for Justice, which provided amicus support for the case, issued a good summary of the state of voter ID laws, why this case was important and the ills it addressed.

Barry Haas, one of the plaintiffs, sent a note to people on the Arkansas Public Policy Panel mailing list that explains his motivation:


I have to say I'm in tears as I just learned Arkansas's voter ID law has been struck down as unconstitutional by the Arkansas Supreme Court. I find it intolerable that one of our two major political parties believes the way to win elections is to prevent large blocs of Americans from being able to vote. No, you win elections by proposing better solutions to the very real problems facing our nation and communities.

I was proud to testify against the voter ID bill in both 2011 and 2013. I was equally proud to be allowed to serve as one of four plaintiffs in the lawsuit challenging the law's constitutionality.

Since the voter ID law took effect January 1, I have been denied my right to vote three times for refusing to comply with what I believed to be an unconstitutional qualification- show my ID at the time I went to vote. I had already proved I was qualified to vote almost 50 years ago when I first came to Arkansas.

Why would I go through all that since I have an acceptable ID? Why not just vote, and let others worry if they don't have an acceptable photo ID? Because roughly 90,000 of my fellow Arkansans do not have an acceptable form of photo ID. Many cannot or will not go to the trouble and expense to vote. This new law is a blatant attempt to keep members of the minority community, the elderly, the disabled and others who are often marginalized in our society from voting. I couldn't just stand by and watch that happen and not do something, anything, to help.

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