Friday, August 5, 2016

Will the secretary of state's reading of the constitution lead to lawsuits? Almost certainly.

Posted By on Fri, Aug 5, 2016 at 4:48 PM

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Some background if you're just tuning in (for those up to speed, jump down three paragraphs):

Earlier this summer, the Arkansas secretary of state's office sent flawed data on people flagged as having past felony convictions to county clerks throughout the state. The state constitution deems convicted felons ineligible to vote until they have been discharged from probation or parole and paid all court costs, fees, fines and restitution. County clerks are obligated to remove ineligible felons from voter rolls.

But this data was incomplete and in error. After relying for years on information from Arkansas Community Correction, the state agency that oversees probation and parole, the secretary of state's office decided that in doing so it was out of compliance with the state constitution; instead, the office requested current and historic data from the Arkansas Crime Information Center. The secretary of state then passed that information on to counties even though it lacked details about whether a person on the list had fulfilled his obligations to regain voter eligibility. As a result, clerks, who are constitutionally required to have accurate voter rolls, are in a quandary — err either way and they could be sued. Meanwhile, ex-offenders who are eligible to vote have undoubtedly been unlawfully removed from voter rolls. 

Benji Hardy reported on the issue here and we followed that up by calling every clerk in the state.

Secretary of state spokesperson Chris Powell has said the state constitution requires his office to collect data on felony convictions from the Arkansas Crime Information Center. Once the secretary of state has the data, his job is to merely pass it on to county clerks, who are the official voting registrars in their counties, who add and remove people to rolls, according to Powell. "We're just kind of the information go-between, if you will," he told the Times. He told the Arkansas Democrat-Gazette this morning that his office lacks "the ability or authority to verify the data."  

The most relevant parts of the constitution are subsections (a) and (e) of section 7 of Amendment 51. You can get to it easily by going here and searching for "Amendment 51." 

(a) ... the Secretary of State shall define, maintain, and administer the official, centralized, and interactive computerized voter registration list for all voters legally residing within the State.

...

(e) The computerized list shall be coordinated with other state agency records on felony status as maintained by the Arkansas Crime Information Center, records on death as maintained by the State Department of Health, and driver's license records maintained by the Office of Driver Services, according to § 9 of Amendment 51 to the Arkansas Constitution.

The headline is my editorializing, but according to two professors from the University of Arkansas School of Law, the secretary of state is at best reading the constitution narrowly and in isolation from other broader requirements and at worst not following the constitution at all. So yeah, there's probably gonna be some lawsuits.

"It seems to me pretty straightforward that they have to use the ACIC records, but when it says 'coordinated with other state agency records,' I take that to mean that they should be cross-referencing [ACIC data] with other state agency records to make sure it’s correct," said Tiffany R. Murphy, associate professor of law at the University of Arkansas. "I think it’s incumbent on the secretary of state to make sure it’s accurate in some degree looking at the amendment. Whenever we see the word 'shall,' that’s the strongest language legally. ... When it says 'maintain' and 'administer,' maintaining is actually making sure it’s correct and 'administer' is about distribution." 

The secretary of state's reading of subsection (e) is "a plausible, but hyper-technical interpretation," said Jonathan L. Marshfield, an associate professor of law at the University of Arkansas who specializes in the Arkansas constitution. "I think a better interpretation is that they’re meant to coordinate with other state agency records and that the ACIC is one of the places, but that their broader obligation is to coordinate with agencies as necessary to provide reliable information." Marshfield later described that as a "common sense" and "holistic" interpretation that took into account all of section 7 of Amendment 51. 

Meanwhile, Marshfield agreed with Murphy that merely passing along data without verifying it does not conform with a "commonsense reading" of section 7. A commonsense reading "requires due diligence," Marshfield said. 

Section 11 of Amendment 51 lists the criteria a former felon must meet to be eligible to vote. Once it is satisfied, the law says "the felon shall be deemed eligible to vote."

"There’s that word shall again," Murphy said. "Once you’ve met the prerequisites outlined in the law, you are now ready to register. If there's an error later, that’s on the state to correct."

Marshfield and Murphy said that they were speaking only for themselves and not for the University of Arkansas School of Law.

Pulaski County Clerk Larry Crane echoed Marshfield and Murphy's readings of the constitution.

"The secretary of state's office reached a conclusion that under Amendment 51 that they were supposed to be using ACIC," he said. "I think the constitution says they can indeed use other sources. Whether they can or cannot, they were under a duty to ensure that the data from ACIC was correct. We have determined that it was grossly incorrect.

"There could be a burden [on ex-offenders who have already had their voting rights restored] to prove again they are eligible. I believe that under Amendment 51 that is totally inappropriate. It does not say that once [ex-felons] are restored a bumbling bureaucrat has the right to remove them again." 

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