Opinion: No leeway on ID for absentees

Absentee voters who do not provide adequate identification under the new voter-identification law do not have the legal authority to bring in documents later to prove their identity, the attorney general’s office said Monday.

Deputy Attorney General Elisabeth Walker wrote in an opinion to the Pulaski County Election Commission that the law did not allow the same option provided for provisional voters, who can present their identification by noon on the Monday after the election if they failed to bring it on election day.

Walker wrote that by reading the statute using“well-established principles” of interpretation, there is no cure for absentee voters who do not include identification.

“The application of these principles leads me to conclude that with the exception of certain first-time voters, the Legislature did not intend to allow an absentee voter to cast a provisional ballot if they failed to submit the required identification when casting their absentee ballot,” Walker wrote.

Under the law, a person voting absentee must submit “a copy of a current and valid photo identification or a copy of a current utility bill, bank statement, government check, paycheck, or other government document that shows the name and address of the voter.”

But the law contains no provisions for most absentee voters who fail to include a copy of their photo identification.

The Pulaski County Election Commission asked for the attorney general’s advice after the Craighead County Election Commission allowed absentee voters to come in after a special election for state Senate District 21 to present their identification. The commission in Craighead County was acting on the advice of the secretary of state’s office, which recommended that counties treat all ballots without proper identification as provisional ballots, giving everyone time to produce photo ID.

The secretary of state’s interpretation of the law was at odds with the attorney for the Arkansas Board of Election Commissioners.

A spokesman for the secretary of state said the office’s lawyers were reviewing the opinion Monday afternoon.

The commission reported that most of the 83 provisional ballots received were absentees that lacked the required identification. Fewer than 10 voters returned during the cure period to present their identification.

The number of uncounted ballots was not enough to determine the election - Jonesboro Republican John Cooper defeated Jonesboro Democrat Steve Rockwell by more than 1,000 votes.

Treating absentee voters differently than provisional voters does not violate the constitutional guarantee of “equal protection,” Walker wrote.

“Although there is no reported Arkansas decision on point, other courts that have faced the question have held that absentee and in-person voters are not similarly situated for purposes of equal protection analysis. The courts have reasoned that absentee voting and in-person voting are ‘fundamentally’ or ‘inherently’ different,” Walker wrote.

Pulaski County Election Commissioner Chris Burks, who asked for the commission to seek Attorney General Dustin McDaniel’s advice, said the opinion offers “clear guidance,” which the commission has said it plans to follow. But McDaniel’s office’s letter also “underscores how the statute itself was sloppily drafted,” Burks said, adding the language had been interpreted various ways by different officials.

Burks said the Legislature should take up the issue “as early as the fiscal session,” since there are elections before it convenes again in 2015.

“It’s something that each election commission should not be in the position to decide … It should absolutely be clarified,” Burks said.

Scott McDaniel, chairman of the Craighead County Election Commission, said he was not surprised by the attorney general’s opinion because “nearly every lawyer who has looked at it has said the same thing.” He said he would vote for the commission to adopt the attorney general’s interpretation of the law, but he agreed that the law lacked clarity and should be taken up by the Legislature.

In the meantime, He said county election commissions should adopt the attorney general’s opinion.

“I think a county would be foolish to vote against that,” he said. “I think a county would be setting itself up for a lawsuit if it went against that.”

Arkansas, Pages 7 on 02/11/2014