Correction: State Rep. Bruce Westerman, R-Hot Springs, is a member of the Arkansas House of Representatives whose term ends at the end of 2014. His status in the Legislature was inaccurately reported in this story.
Citing more than 100 years of Arkansas Supreme Court case law, Pulaski County Circuit Judge Tim Fox on Thursday voided the state’s photo-identification requirement for voters as illegally exceeding voter qualifications allowed by the Arkansas Constitution.
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“Act 595 of 2013 imposes requirements on qualified electors beyond the requirements constitutionally required to register to vote,” the judge wrote. “Act 595 … is unconstitutional as it adds additional qualifications for qualified voters not stated in Article 3, Section 1 of the Arkansas Constitution.”
With the law exposing voters who cannot in a timely way produce photo identification to the possibility of criminal fraud charges, the judge commended lawmakers’ intentions to combat voter fraud as “a worthwhile and proper legislative purpose.”
Fox’s decision, the result of a 6-week-old lawsuit challenging an aspect of the identification law, is not the final word.
His two-page ruling, backed by an eight-page explanation of how the judge reached his conclusions, sets off a race to take the issue to the high court - which will ultimately determine the legality of the ID law - ahead of the May 20 elections.
A spokesman for Attorney General Dustin McDaniel, representing the defendant state Board of Election Commissioners, said the board will appeal.
“We will work quickly as possible on the board’s behalf to appeal this decision,”spokesman Aaron Sadler said.
In ruling that the ID requirement illegally exceeded what the state constitution allows, Fox cited as guidance an 1865 state Supreme Court ruling in which the high court, acting under the state’s previous constitution, declared that any legislative act that contradicts the constitution is illegal.
That case, Rison v. Farr, also involved the Legislature trying to enact a new voter qualification outside of what the constitution allowed.
The 1865 ruling described the state constitution as the “supreme law of the land,” stating that as “the fortification within which the people have entrenched for themselves the preservation of their rights and privileges, … every act of the legislature, or other department of government, which infringes upon any right declared in the constitution … is absolutely void.”
Article 3 of the current constitution, enacted in 1874, establishes four qualifications for jurors: age, residency, citizenship and registration as a voter. The Legislature can legally make changes to the registration process, and the judge did not expressly find a problem with Act 595’s mandate that voters show poll workers a photo-ID for their ballots to be counted.
The flaw in the ID law that Fox found is two-part. The law is illegal because of how the General Assembly enacted it last year by passing it with too few votes, and it is also unlawful because of the timing of the demand for identification - directly at the moment the vote is cast - the judge found.
That timing is illegal because it amounts to a registration restriction imposed after the deadline set by the state constitution for voters to have registered to cast a ballot, the judge wrote. The Arkansas Constitution requires voters to be registered at least 30 days before an election. Once a voter is registered, the Legislature cannot impose further registration requirements, Fox ruled, citing a provision of Article 3 that “no power” has the authority to restrict a qualified voter’s right to cast a ballot.
Amendment 51, enacted in 1964, of the state constitution establishes the voter-registration process and allows the Legislature to set standards for that process, Fox wrote. But those registration requirements must be passed into law by a two-thirds majority in the state House and state Senate, the judge ruled.
He made that finding based on a 49-year-old state Supreme Court case involving then-Gov. Orval Faubus that describes the two-thirds requirement. That case involved a challenge to efforts by the then-newly established state Board of Election Commissioners to pass regulations on voter registration.
Fox noted that the General Assembly never met that two-thirds threshold, despite having to approve the identification law twice to overcome a veto by Gov. Mike Beebe.
Beebe warned that the law was unconstitutional when he vetoed the measure. The identification law was first passed the Senate 22-12 and 51-44 in the House. The veto-override vote was 52-45 in the House and 21-12 in the Senate. Arkansas’ photographic-identification law went into effect in April 2013. It has never been applied to a statewide race.
A former lawmaker who co-sponsored the law, Bruce Westerman of Hot Springs, said he “strongly” disagrees with the judge’s “determination that a law duly passed by the legislative branch is unenforceable” and is looking forward to the state’s appeal of Fox’s ruling.
“The integrity of the ballot box is the bedrock of our republican system, and that is why I was proud to co-sponsor Act 595, vote for Act 595, and vote to override Governor Beebe’s veto of Act 595,” the former state House majority leader and Republican congressional candidate said in a statement.
Fox’s ruling arose from a lawsuit disputing the legality of absentee-balloting rules written by state election authorities to address an absence in the voter-identification statute regarding absentee voters who don’t include proof of identity when they send in their ballots.
To overturn the rules, the Pulaski County Election Commission and Pulaski County Circuit/County Clerk Larry Crane last month sued the state authorities who enacted the rules and are responsible for enforcing them - Secretary of State Mark Martin and the state Board of Election Commissioners.
The county Election Commission had not asked the judge to take action against the law, only strike down the absentee rules, but Pulaski County Attorney Karla Burnett, representing the Election Commission, commended his decision.
“We’re very pleased with the judge’s ruling,” she said. “We think he made the right decision.”
The plaintiffs - county election commissioners Leonard Boyle, Chris Burks and Alex Reed - contended that the state officials exceeded their authority by allowing absentee voters who didn’t provide the newly required proof of identification when they mailed their ballots to provide that ID after the election so their votes would be counted.That type of rule would have to come from the Legislature, the plaintiffs argued.
Boyle and Burks, both Democrats, voted to file the lawsuit against the state board. Reed, the lone Republican on the commission, did not vote in the initial decision to sue because he had not yet been appointed by the Pulaski County Republican Committee to the election panel.
The law expressly allows an opportunity to voters who cast their ballots in person to provide identification at a later time, but it makes does not provide similarly for absentee voters. The state Board of Election Commissioners defended the absentee rule it enacted on Martin’s advice as following the legislative intent of the law.
Burks said Thursday that the ruling “is a great decision that ensures Arkansas elections are free, fair and equal. I’m proud of the Pulaski County Election Commission for doing what was right. The Pulaski County action forced the court to reach the legal issues involved and strike down the voter-ID law.”
Megan Tollette, the executive director of the state Republican Party, did not respond to an email seeking comment Thursday afternoon.
The party went to court and won the right to defend Martin and the state board against the lawsuit after questioning whether the attorney general, who is legally required to defend state agencies, would, as a Democrat, mount a stout defense of the law.
In a filing to bolster their argument to join the defense, state GOP lawyers submitted a statement from party Chairman Doyle Webb touting the ID law’s passage as a major accomplishment for state Republicans.
The legality of the ID law is being challenged directly in a separate lawsuit before Fox, filed last week on behalf of four Pulaski County voters and backed by civil-rights groups. That litigation is so fresh that the defendants have barely begun to respond to it, and the plaintiffs were scheduled to appear in court next week to ask the judge to bar the law from being enforced.
The plaintiffs’ lawyer in that suit said Fox’s decision comports with his arguments.
“The winners in this are the voters,” attorney Jeff Priebe said. “[The judge’s findings] are consistent with the issues we brought up in our complaint and our preliminary injunction.”
Front Section, Pages 1 on 04/25/2014