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State's '17 voter-ID law fatally flawed, suit says

by John Lynch | February 8, 2018 at 4:30 a.m. | Updated February 8, 2018 at 1:57 p.m.
Ken Bushe shows his photo identification to a poll worker at Laman Library in North Little Rock during a sales tax election in August, the first election after the 2017 voter-ID law took effect.

A lawsuit filed Wednesday claims the state's new voter-identification law is just as flawed as the one the Arkansas Supreme Court struck down as unconstitutional almost four years ago.

The 23-page petition asks Pulaski County Circuit Judge Alice Gray to similarly rule that Act 633 of 2017 is illegal.

The law requires voters, in order to guarantee that their ballots are counted, prove to election officials by use of government-issued photo identification that they are registered to vote.

The statute the high court struck down in 2014 required people to use photo IDs to prove their identity before voting.

Proponents say identification laws strengthen election security and reduce fraud. Critics, like plaintiff Barry Haas of Little Rock, argue that those laws add unnecessary requirements that mostly keep minority, poor and elderly residents from voting.

"One purpose of Act 633 was and is to place barriers between the ballot box and otherwise qualified Arkansas voters and to prevent their ballots from being cast and/or counted," his lawsuit states.

Haas, 70, is a former poll worker who spoke out against Act 633 before a Senate committee last year, warning that the measure could deprive 240,000 Arkansas residents of their right to vote. He's lived in Arkansas since 1967 and has been registered to vote here since 1970.

He was one of four plaintiffs who were part of the 2014 lawsuit that led to the state high court invalidating the previous voter-ID law. He's being represented by Little Rock attorney Jeff Priebe, who also spearheaded that winning litigation.

No hearing has been scheduled, but the lawsuit also calls on Gray to immediately bar election officials from enforcing the law ahead of the May primaries. Party filing begins Feb. 22 with early voting starting on May 7, about two weeks ahead of the elections.

The new law went into effect on Aug. 1. Priebe said on Wednesday that the lawsuit, like its 2014 predecessor, was filed now to try and invalidate Act 633 before the May 22 elections.

"We are trying to do this in anticipation of the primary ... to make sure the people have their votes counted," he said.

Opponents of the ID law said that more than 1,000 registered voters had their ballots disqualified in the May 2014 elections because they could not meet the identification requirements then in effect.

Voters will go to the polls in November to consider a constitutional amendment that would require voters show photo identification.

In October 2014, the Supreme Court unanimously ruled that the 2013 voter ID law was fatally flawed. But the seven justices split in their reasoning.

A four-member majority agreed that the ID law improperly added a new qualification to the voter standards that are controlled by the constitution. The other three found that the law was not passed with the required two-thirds majority vote required to change the voter registration process in the constitution.

Article 3 of the state constitution requires voters to be Arkansas residents and United States citizens at least 18 years old who have completed the voter registration process.

The four justices in 2014 found that since voter standards are part of the constitution, lawmakers cannot add to those qualifications just by passing a law. The only way to change voter standards is by changing the constitution, their decision states.

More recently, the high court invoked that same legal doctrine by ruling that the Legislature cannot waive the constitution's sovereign immunity provisions to allow the state to be sued in certain circumstances.

Act 633 is the Legislature's response to the 2014 decision. It revises constitutional Amendment 51, which controls the registration process, to require that voters prove they are registered before their ballots can be counted.

The Haas lawsuit contends that Act 633 is illegal because Amendment 51 limits how much the Legislature can alter the registration process. Voters approved the amendment in 1964 to establish a registration procedure and to revoke the state's illegal poll tax.

The amendment allows the General Assembly to modify registration procedures if those changes "are germane to [Amendment 51] and consistent with its policy and purposes."

Haas argues that Act 633 actually contradicts the amendment's purpose by adding "qualifications, restrictions and impairments on the ability of the citizens to vote in an election."

All lawmakers did in 2017 is alter some of the language in the 2013 law, according to the lawsuit.

"Act 633 is nothing more than the same Voter ID law, though the Arkansas General Assembly has changed the name of Voter ID from 'Proof of Identity' to 'Verification of Registration,'" the suit states.

The law requires voters show election officials photo ID to ensure their vote is counted. Absentee voters can satisfy this requirement by including a photocopy of their identification when they return their ballots.

Voters without identification, however they cast their ballots, can give a sworn statement attesting to their registration, but election officials still have the final say on whether the vote will be counted.

Voters casting provisional ballots can also make sure their vote counts by presenting the required ID to election officials after the election up until the Monday following.

The law provides for the secretary of state to issue free photo voter-verification cards. Acceptable identification are driver's licenses; photo identification cards; concealed-handgun carry licenses; U.S. passports; employee badges or identification documents; student identification cards issued by accredited Arkansas colleges and universities; U.S. military identification documents; and public-assistance identification cards.

The 2013 law was passed to override a veto by then-Gov. Mike Beebe, a former Democratic attorney general. Beebe vetoed it "because I believe the bill unnecessarily restricts and impairs our citizens' right to vote," he stated in a letter to the Senate explaining his decision.

He stated that he also believed the law would likely do more to harm the rights of the elderly, poor and minority voters than protect the election process.

Describing the law as "an expensive solution in search of a problem," Beebe said no credible study has ever shown voter impersonation to be common in Arkansas.

His Republican successor Asa Hutchison, who is also a lawyer, signed the replacement measure into law last March, describing the provision as "reasonable" and different enough from its predecessor to survive court scrutiny.

"This law is different -- in a number of ways -- than the previous law, which was struck down by the Supreme Court," the governor said at the time. "It should hold up under any court review. For those reasons, I signed the bill into law."

State Rep. Mark Lowery, R-Maumelle, who authored the 2017 bill that became Act 633, said in March that he was confident that the distinction between old and new laws was sufficient to protect the new statute from litigation.

The 2017 law requires a photo identification to register to vote, not to cast a ballot, he said.

Defendants are the state's election administrators, Secretary of State Mark Martin and the state Board of Election Commissioners, Rhonda Cole, Chad Pekron, Charles Roberts, James Sharp, James Harmon Smith III and Stuart Soffer.

A Section on 02/08/2018

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