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

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

click to enlarge _isa2826-1.jpg

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." 

Tags: , , , , , ,

From the ArkTimes store

Favorite

Comments (13)

Showing 1-13 of 13

Add a comment

 
Subscribe to this thread:
Showing 1-13 of 13

Add a comment

More by Lindsey Millar

  • The Hate Week Edition

    White supremacy and Donald Trump, Confederate statutes, the state’s new execution plan, a blow to Planned Parenthood in Arkansas, the LRPD and the homeless — all covered on this week's edition.
    • Aug 18, 2017
  • Werner Herzog coming to Hot Springs Documentary Film Festival

    The Hot Springs Documentary Film Festival has scored a coup, landing Werner Herzog, one of the most influential and surely the most interesting documentary filmmakers ever for its upcoming festival, Oct. 6-15.
    • Aug 18, 2017
  • The Arkansas Cinema Society's must-see 'Premiere'

    The new outfit kicks off with Adam Driver "A Ghost Story" and more.
    • Aug 17, 2017
  • More »

Readers also liked…

  • Al Gore remembers Dale Bumpers

    Former Vice President Al Gore, a former U.S. Senate colleague of Dale Bumpers, sent a statement on Bumpers' death Friday:
    • Jan 3, 2016
  • Today in Trump: Obstruction of justice anyone?

    It's the New York Times with the news today. Fired FBI Director James Comey kept notes of his talks with Donald Trump. A memo he wrote in February after a meeting with Trump said the president asked him to shut down the investigation into Michael Flynn, his former national security adviser.
    • May 16, 2017
  • In Little Rock, Marco Rubio sells American exceptionalism

    This is Rubio's axiomatic answer to Donald Trump's insistence that he and he alone will Make America Great Again: America is the greatest, always has been.
    • Feb 22, 2016

Most Shared

  • Lynchings hidden in the history of the Hot Springs Confederate monument

    Hot Springs twice erupted into the kind of violence that has its roots in the issues left unresolved by the Civil War, and both times, it happened right where that monument to Confederate soldiers stands today.
  • Take yourself there: Mavis Staples coming to LR for Central High performance

    Gospel and R&B singer and civil rights activist Mavis Staples, who has been inspiring fans with gospel-inflected freedom songs like "I'll Take You There" and "March Up Freedom's Highway" and the poignant "Oh What a Feeling" will come to Little Rock for the commemoration of the 60th anniversary of the desegregation of Central High.
  • Klan's president

    Everything that Donald Trump does — make that everything that he says — is calculated to thrill his lustiest disciples. But he is discovering that what was brilliant for a politician is a miscalculation for a president, because it deepens the chasm between him and most Americans.
  • On Charlottesville

    Watching the Charlottesville spectacle from halfway across the country, I confess that my first instinct was to raillery. Vanilla ISIS, somebody called this mob of would-be Nazis. A parade of love-deprived nerds marching bravely out of their parents' basements carrying tiki torches from Home Depot.

Most Viewed

Most Recent Comments

Blogroll

 

© 2017 Arkansas Times | 201 East Markham, Suite 200, Little Rock, AR 72201
Powered by Foundation