Thursday, April 24, 2014

Judge Tim Fox strikes down Arkansas Voter ID law

Posted By on Thu, Apr 24, 2014 at 5:20 PM

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Circuit Judge Tim Fox has struck down the 2013 Voter ID law because it unconstitutionally adds additional requirements to be eligible to vote, specifically production of approved forms of ID.

The decision came in the Pulaski County Election Commission lawsuit, which had challenged a state Election Commission rule intended to clean up the law's handling of absentee ballots. In-person voters were given a week after an election to produce an ID to qualify a provisional ballot for counting. No provision was made to qualify an absentee ballot that arrived without proper ID. The state commission adopted a "cure" rule, which the County Election Commission argued was beyond its constitutional authority.

Fox went beyond the absentee rule and said the whole law was invalid because of the new burdens on voting.

It's unclear whether this will pre-empt a hearing scheduled next on a larger suit by the ACLU and the Arkansas Public Law Center that attacked the entire law on the same ground — a new voting provision. The Constitution says 

Elections shall be free and equal. No power, civil or military, shall ever interfere to prevent the free exercise of the right of suffrage; nor shall any law be enacted whereby such right shall be impaired or forfeited, except for the commission of a felony, upon lawful conviction thereof.

The new law particularly creates a burden for people without birth certificates or driver licenses and also requires time and money for them to go to county clerks to get alternate IDs. The Republican Party had intervened in the election commission lawsuit to defend the law, which was partisan work that passed by an override of Gov. Mike Beebe's veto. Republicans nationally are trying to pass voter ID laws to suppress votes by constituencies that tend to lean Democratic.

I'm seeking further comment.

An appeal is certain and the Supreme Court will have to move expeditiously if the law is to be used in the May primary election and judicial elections. Early voting begins in 10 days.

A strict analysis of the state Constitution's plain language would seem to dictate ratification of the ruling. But, as Attorney General Dustin McDaniel observed in a different case, the court is often results-oriented. It can generally find a way to rule however it wants, plain language not withstanding.

Here's Fox's opinion.
Fox quotes the Constitutional bar on new voting burdens for people who are otherwise qualified —  U.S. citizens, Arkansas residents, 18 and lawfully registered to vote. Amendment 51 specifies what registration  procedures are possible, including production of a driver's license, or Social Security number or number supplied by the secretary state along with basic identity information and a signature. The legislature may amend those procedures with germane amendments, but a two-thirds vote of the legislature is required. The bill got only 52 votes in the 100-member House.

The constitution is a "binding force" and work of the people, Fox said.

The constitution is the fortification within which the people have entrenched themselves for the preservation of their rights and privileges and every act of the legislature or other department of government which infringes on any right declared in the constitution whether it be inherent in the people or created in that instrument is absolutely void.

Voter ID can't be justified under the terms of registration in the constitution, he said, because it closes 30 days before an election, while the ID law applies at the time of voting. The law also added unconstitutional burdens, he ruled. As a result, he declared both the state law and the state commission regulation void and unenforceable.

Chris Burks, a Democratic county election commissioner who's been pressing for a resolution of the Voter ID problem through the lawsuit, said:

The decision is a victory for free, fair and equal elections in Arkansas. Many people told me and the Pulaski County Election Commission to not file suit and stay out of everything, but this decision validates our effort to ensure orderly elections in Pulaski County. I took my oath to the Arkansas Constitution seriously and felt compelled to act in this issue. I am glad the Courts' ruling reflects fidelity with our Arkansas Constitution.


Democratic Party Executive Director Candace Martin cheered the ruling to rouse the faithful:

Nearly two years ago, we asked you to take action to keep Republicans from making it harder to vote. Your efforts nearly defeated the poorly-written Voter ID law that Governor Beebe vetoed.

Republicans in the state house and senate overrode his veto but today, the courts ruled that the Republicans' voter ID law was unconstitutional, which means that every Arkansas vote will count in November.

We can't let up the fight to protect your right to vote. Will you please rush $5, $10, or $50 to the Democratic Party of Arkansas today so we can continue that fight?

I"ve sought comment from Sen. Bryan King, sponsor of the legislation and the state Republican Party. Condemnation, appeal and castigation of the judiciary should be part of the response. Noted; GOP Chair Doyle Webb, who intervened in the suit, put together judicial endorsements in the last judicial election and included Tim Fox among the jurists he recommended.

Alex Reed,
a spokesman for defendant Secretary of State Mark Martin, said the office had received the ruling but referred requests for comment to the attorney general's office. A spokesman for Dustin McDaniel said the office would work as quickly as possible to get an appeal prepared.

All parties had asked for a summary judgment, which Fox entered, because there were no disputes on facts.

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