Dahlia Lithwick: Arkansas voter ID decision based on 1865 case protecting ex-Confederates' right to vote | Arkansas Blog

Friday, October 17, 2014

Dahlia Lithwick: Arkansas voter ID decision based on 1865 case protecting ex-Confederates' right to vote

Posted By on Fri, Oct 17, 2014 at 6:13 PM

Slate's incomparable legal correspondent Dahlia Lithwick points out a sweet irony in the Arkansas Supreme Court's huge decision this week that struck down the state's voter ID law: The court cited precedent in a case dating from 1865 that positively affirmed the rights of ex-Confederate soldiers to vote in Arkansas. 

Immediately after the war, Lithwick writes, a pro-Union Arkansas legislature attempted to require those who had formerly fought for the Confederacy to take an oath as a prerequisite to voting. In Rison v. Farr, the Arkansas Supreme Court said that the state wasn't allowed to insert new conditions upon the voted franchise, since the Arkansas Constitution stated what is required in plain terms:


The Rison court found that the plaintiff, Zachariah P.H. Farr, who had shown up to vote in 1865, was denied that right when he refused to take an oath swearing that “he has not voluntarily borne arms against the United States or this state, nor aided, directly or indirectly, the so-called confederate authorities since the 18th day of April, 1864.” The court found that the state constitution provided explicitly that “every free white male citizen of the United States who shall have attained the age of twenty-one years, and who shall have been a citizen of the state six months next preceding the election, shall be deemed a qualified elector, and be entitled to vote in the county or district where he actually resides.” Modified versions of four of these qualifications (being a U.S. citizen, a resident of Arkansas, at least 18 years old, and lawfully registered to vote) are still the law in Arkansas.

In the Rison decision in 1865, the Arkansas Supreme Court found that because Farr met those four qualifications, the demand that he “purge himself of treason against the United States or this state” would have the effect of taking away from him the franchise guaranteed by the state constitution. And this week, the Arkansas Supreme Court relied on Rison to establish that “the legislature cannot, under color of regulating the manner of holding elections, which to some extent that body has a right to do, impose such restrictions as will have the effect to take away the right to vote as secured by the constitution.”

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