Voting Laws Deserve Scrutiny But How Much?

Through my many years of publishing columns, it’s been quite clear that many readers never find my writing quite so skilled and brilliant as when I happen to agree with their own conclusions.

Judges face similar situations. Is he or she a well- reasoned jurist or an out- of- control, activist judge? That often depends not on the quality of the court’s legal analysis, but on whether the conclusions reached advance the analyst’s political wishes.

Anyone in management will acknowledge every decision has its supporters and detractors. That’s why politicians will sometimes dance around any sort of definitive answer on a dicey issue. A solid answer is bound to make some people mad and others happy. Politicians, at least many of them, prefer keeping everyone happy as long as possible, at least until Election Day is done.

Decisions have to be made, though. Nobody files a lawsuit in the hope that a judge simply shrugs.

Circuit Court Judge Wendell Griffen certainly didn’t shrug in his ruling about four new laws affecting how elections are carried out in Arkansas. First, he ruled the laws unconstitutional. Then, last week, he rejected the state’s request that the laws be permitted to remain in place while Griffen’s decision is appealed.

The state, through the attorney general, had to ask, though I doubt there was any expectation Griffen would alter his finding. How could a judge on one hand declare the laws to be unconstitutional infringements of Arkansans’ right to vote then turn around and allow those laws to remain in place as the state prepares for the Republican and Democratic primaries and judicial elections in May?

Late last week, the state filed an emergency motion with the Arkansas Supreme Court, hoping the high court will overturn Griffen and keep the new voting limits in place until the Supreme Court can fully adjudicate the arguments for and against their constitutionality. It was always a no-brainer that any judge’s finding that they were unconstitutional would be appealed to the high court.

People who want to make it more difficult to vote — or, in their view, protect the integrity of elections — no doubt believe Griffen is improperly substituting his judgment for the Legislature’s. That’s what you hear from people who want to weaken the judiciary’s role as a co-equal branch of government alongside the legislative and executive branches.

Griffen, in his ruling, attempted to discern what his responsibility was. Judges always have to determine what type of legal standard must be applied to a dispute. Such standards are usually determined by other laws and by precedent- setting decisions by the U.S. Supreme Court and state- level cases. They’re often called “balancing” tests, in that they articulate how judges should balance the rights of those affected by the new laws against the state’s interest in establishing new election laws.

Because these laws involve Arkansans’ constitutional right to vote, Griffen concluded he should apply “strict scrutiny” to the new laws, a balancing test that sets a high standard for the laws to meet. The state argued for a lower standard of judicial review, one that would increase the chance the laws would remain intact.

These laws may or may not be ruled constitutional, but the new voter limits were put in place as part of a nationwide movement by Republicans based on Donald Trump’s false claims about the 2020 election being stolen from him. Across the nation, new voting restrictions were adopted without evidence they were necessary to conduct free and fair elections.

And here in Arkansas, they were a solution to a problem that didn’t exist.

— Greg Harton is editorial page editor for the Northwest Arkansas Democrat-Gazette. Opinions expressed are those of the author.