Pulaski County Circuit Judge Tim Fox did not follow court-mandated guidelines when he ruled that the state's new voter identification law was unconstitutional, state lawyers argue in an appeal of his decision to the Arkansas Supreme Court.
The legal brief on behalf of Secretary of State Mark Martin and the state Board of Election Commissioners was filed Thursday.
The plaintiffs in the lawsuit in question will have an opportunity to respond, with the state getting the final word in a rebuttal to that response before the high court makes its decision on the legality of the law, which requires voters to show election officials a government-approved photographic ID before their ballot can be counted.
In May, Fox ruled that the identification law was illegal on two grounds. For one thing, it added a new requirement to vote beyond what the state constitution specifically describes, the judge said.
And lawmakers, who had to twice approve the measure to overcome a gubernatorial veto, also did not pass it with the two-thirds majority required to amend the constitution, Fox said.
The election officials in their appeal argue that Fox did not apply the correct standard to evaluate the identification law, Act 595 of 2013, when he deemed it unconstitutional. The officials say Fox is required by court precedent, which dates back at least to 1938, to begin his analysis of the law with the presumption that it is in accord with the constitution.
The doctrine requires that he must make every reasonable effort he can toward interpreting the law as constitutional before he can rule that the law is not legal, according to the election officials' brief, written by their counsel, Assistant Attorneys General Joe Cordi and David Curran.
If Fox had evaluated the law in that manner, the state argues, he would have ruled that the Act 595 was a perfectly legal "procedural requirement" that allows election officials to ensure that voters are who they say they are.
The identification requirement allows election officials to confirm the voter's identity by comparing the name on the voter-registration roll to that on the identification card and also by making sure the face on the identification is the face of the would-be voter, they said.
"When those comparisons confirm that the voter is who he claims to be rather than an imposter, then the public can rest assured that the person is lawfully registered to vote in the election," the brief states.
Most state appeals courts have ruled similarly, according to the brief, which cites cases in Wisconsin, Tennessee, Georgia, Indiana and Michigan.
Turning to Fox's citation of a 149-year-old state Supreme Court case in his ruling, the defendants state that 1865 decision in Rison v. Farr actually strengthens the state's position because it provided that the Legislature could make voters take an oath -- which is not prescribed by the Constitution -- certifying their qualifications to vote before being allowed to cast a ballot.
"Such an oath is not much different than Act 595's voter-identification requirement," the lawyers wrote. "That requirement, like the oath in Rison, is merely a procedural mechanism designed to ensure that people who demand to cast a ballot are qualified to do so."
The election officials want the state Supreme Court to invalidate Fox's findings and bar him from blocking enforcement of the law ahead of a full trial on the question of the law's legality. The plaintiffs had sought a preliminary injunction.
Fox is preparing to consider the petition by the plaintiffs to block the law, at least until trial. However, the election officials contend that he does not have the authority to prevent enforcement because of their appeal to the state Supreme Court.
Four registered voters, three of whom say they cannot get a photo ID without serious hardship, sued to overturn the law in April. Fox ruled in their favor in May.
But first, Fox ruled the identification law was unconstitutional in another case, a lawsuit involving absentee voters.
The state Supreme Court overturned his findings, determining that he had not been asked to consider the constitutionality of the law in that case. The justices did not rule on Fox's reasoning.
Metro on 07/04/2014