Order blocking voter ID law appealed
With early voting set to begin next month, state asks high court to intervene
As expected, state lawyers on Friday appealed Pulaski County Circuit Judge Alice Gray’s decision to block the voter identification law.
The judge ruled Thursday that the General Assembly had created the requirement that voters show government-approved photo identification by inserting an unsupportable contradiction in the state Constitution, which controls the election process.
With early voting starting May 7, less than two weeks away, Secretary of State Mark Martin and the Arkansas Board of Election Commissioners went right to the Arkansas Supreme Court rather than petition Gray to stay her own order.
Martin, represented by Deputy Secretary of State A.J. Kelly, the secretary’s general counsel, and the commissioners, through Dylan Jacobs, assistant solicitor general for the Arkansas attorney general, launched separate appeals almost simultaneously Friday.
Gray’s ruling was in response to a lawsuit disputing the law’s validity by poll worker Barry Haas, one of the plaintiffs in the lawsuit that overturned the General Assembly’s previous attempt to require voters to show identity cards at the polls.
Represented by attorney Jeff Priebe, the lawyer behind that earlier suit, the complaint was filed in February, seven months after the law went into effect. Martin’s lawyers had pushed Gray to rule much earlier, asking that she decide by April 6, the date overseas ballots were sent out. Her decision came three weeks later. In a statement, Martin complained that Gray’s ruling, by changing voting rules, would confuse voters.
“Changing the rules in the middle of an election is irresponsible and creates confusion for voters,” the Prairie
Grove Republican said. “It is our job to uphold the law and to conduct a secure election.”
Martin said he is an “adamant” supporter of the ID requirement as a tool to ensure election integrity.
“Presenting identification is required for almost all facets of American life,” he said. “Securing the integrity of our electoral system is vitally important.”
Arkansas voters are not required to present any photographic identification when they first register. And the state courts have never ruled on the question of whether the identification requirement, on its own, is illegal.
Rather, the Arkansas Supreme Court, in striking down the previous ID law after a circuit judge had done the same, found that lawmakers had not properly enacted the law. Gray, considering its replacement, similarly found that legislators had improperly altered the state’s voter-registration laws to add the ID requirement.
Describing the ID requirement as a measure to “verify” a voter’s identity, Act 633 of 2017 was added to Amendment 51, which controls the registration process.
But the amendment itself, however, limits how much lawmakers can alter it, with a provision that bars any addition that “is not germane … or consistent” with Amendment 51’s purpose and policy. Gray concluded that by requiring voters to verify their identity at the poll, what the Legislature had actually done was create a new qualification for voters.
But voter qualifications, like age and residency, are established in another part of the constitution, Gray’s ruling states. By changing the registration process in Amendment 51 as they did, lawmakers had created a new voter qualification, then inserted it into the wrong part of the constitution, according to her decision.
“In reality, Act 633 requires the voter to resurrect the completed registration process and re-qualify as a voter each time she votes, as long as she lives,” the judge wrote. “Nothing in the requirement to produce a compliant photo identification or to complete a sworn verification statement each time
one votes involves the actual process of registering to vote.”
The way the law has been written, voters who have complied with all the constitutional requirements to cast a ballot could find themselves suddenly disqualified, the judge stated.
“That Act 633 imposes requirements that are not related to the system of voter registration in Amendment 51 is particularly clear when one considers the entirety of the consequences for a voter who does not present a compliant photo identification at the time he votes,” her ruling states. “An otherwise lawfully-registered voter, such as plaintiff, is forced to vote a provisional ballot only because he does not present a compliant photo identification when he votes in person or by absentee ballot.”
Voters who do not show approved identification are also not guaranteed their ballot will be counted, the judge noted. Voters who don’t show ID can cast a “provisional ballot,” either by signing an identity-affirmation statement at the polls or by presenting the approved identification to the local election commission after the election.
But Gray said the law does not give those provisional voters the same assurances that their ballot will be counted because election officials have the final say on whether it’s tallied.
“There is enough discretion in whether a poll judge accepts the identification and allows the voter to vote a regular ballot that conceivably, a voter who shows the same photo identification at two elections could be allowed to vote a regular ballot in one election, and only a provisional ballot in the next election,” the judge wrote. “The provisional ballot will still be subjected to further scrutiny and could be ruled invalid for reasons unrelated to registration or identification. The provisional ballot will not count unless the board votes to count it.”