Attorney General Dustin McDaniel said Friday that he won’t object to the state Republican Party being allowed to join the defense of month-old absentee-voter regulations under Arkansas’ new voter-identification law, which are being challenged in circuit court.
But there’s no real need for GOP lawyers because he’s handling the suit in his role as the appointed defender of state law and agencies under the Arkansas Constitution, McDaniel said Friday.
McDaniel said he hasn’t stood in the way of other groups that have sought to defend state laws, specifically in litigation restricting adoption by cohabiting couples and the 12-week abortion ban.
“There is no legal basis for their intervention,” McDaniel said in a statement released to the Arkansas Democrat-Gazette. “However, as with litigation involving Initiated Act 1 [adoption] and Act 301 of 2013 [abortion], I recognize that allowing stakeholders to intervene allows for greater transparency and cooperation.”
The decision on whether Republicans get to come to the regulations’ rescue is up to the presiding judge, and party Chairman Doyle Webb petitioned Circuit Judge Tim Fox on Wednesday to let party attorneys contribute to the contested measure’s defense.
Webb argues that McDaniel, a Democrat serving his last year in office, has legal and political conflicts of interest that call into question his ability to effectively and honestly defend the law.
Republican lawyers are needed because the regulations fall under a law that is a Republican creation under attack by Pulaski County election officials, plaintiffs who have substantially based their lawsuit on two legal opinions issued by McDaniel, Webb states.
“This action therefore represents the classic example of the fox guarding the hen house. Arkansas Republican voters are being attacked on two fronts. One comes from the attorney general. The other from Pulaski County election officials,” the pleadings by husband and wife attorneys George Ritter and Bilenda Harris-Ritter state. “He has put himself in a legal box from which there is no escape. In order to defend the regulations … he must take a position that is diametrically opposite from the one he already has taken in two of his formal opinions. He cannot defend [the suit] unless he not only disavows but discredits the very legal opinions he authored. He cannot have it both ways.”
Issuing public legal opinions and defending state laws and regulations are both duties of his office, and there is no conflict between them in this situation, McDaniel said. There are no partisan politics in play, the attorney general said.
“Absolutely no conflict exists. I have a statutory obligation to provide nonbinding opinions to certain public officials upon request, which I did,” he said. “I also have a statutory obligation to defend state boards and commissions and acts of the General Assembly, which I do routinely. We will effectively and zealously advocate the position of our clients in this case.”
The client is the state Board of Election Commissioners which has been sued by the Pulaski County Election Commission and Larry Crane, Pulaski County’s county/circuit clerk.
The plaintiffs are contesting the board’s claim that it has the authority to enact regulations that allow absentee voters an opportunity after an election to submit the legally required identifying materials - such as a copy of a driver’s license or utility bill - and impose a requirement that absentee voters who don’t provide identification must be notified by mail that they have to submit approved identification before their votes can be counted.
The board invoked its rule-making power at a Feb. 28 meeting to enact those regulations to be consistent with the secretary of state’s interpretation of the ID law.
In the lawsuit, filed 12 days later, the plaintiffs contend the election board has exceeded its authority and those changes can be made only by the Legislature.
McDaniel has opined that the ID law does not allow the kind of fixes the board has authorized.
A decision on whether the plaintiffs will oppose the GOP intervention has not been made. Pulaski County Attorney Karla Burnett, the plaintiffs’ attorney, said she’s out of town and has not presented the GOP motion to them for consideration.
In the petition to join the suit, Webb states that Crane and the commission are trying to weaken a measure that brings integrity to the election process in Arkansas, which is a Republican priority.
“They are asking this court to invalidate regulations designed to preserve the rights of legitimate absentee voters. Many of those voters are Republicans,” he states in a brief. “Those voters have no realistic way to protect their interests in this litigation. Plaintiffs seek to strip these absentee voters of their right to provide proper identification in order to vote.”