Voter ID Legislation Could Require Supermajority Vote

The Voter ID legislation, Senate Bill 2, may have hit a constitutional snag on its way to becoming law. Allow me to explain.

The potential changes set forth by SB 2 seem to fall under Amendment 51 of the Arkansas State Constitution which deals in all matters of voter registration. The Amendment was passed in 1968 and ironically its short title was “Arkansas Amendment for Voter Registration Without Poll Tax Payment.”

Section 1 of Amendment 51 reads:

1. Statement of policy.
The purpose of this amendment is to establish a system of permanent personal registration as a means of determining that all who cast ballots in general, special and primary elections in this State are legally qualified to vote in such elections, in accordance with the Constitution of Arkansas and the Constitution of the United States.

SB 2 requires voters to present a valid photo ID at the polls when voting, which is in essence requiring another qualification for a voter to cast a ballot. Under SB 2, if a voter does not present a photo ID at the polls, they may vote a provisional ballot, but must go to their County Clerk’s office before noon on the Monday following the election to show an ID for his or her vote to be counted.

Under SB 2 if you do not show a photo ID, you cannot vote, which creates a new legal qualification for registered voters, which would fall under Amendment 51. These changes would fall under Section 1 of Amendment 51 since it involves a determination of who is legally qualified to vote. No ID means means you’re not legally qualified to vote.

To put it another way, if you can never produce a photo ID, you can never vote, which theoretically means you can be kicked off the voter registration rolls for never voting, which falls under Section 11 of Amendment 51.

Amendment 51 does allow for changes in voter registration laws, including potentially a photo ID requirement.  But read Section 19 of that Amendment closely:

19. Amendment.
The General Assembly may, in the same manner as required for amendment of laws initiated by the people, amend Sections 5 through 15 of this amendment, so long as such amendments are germane to this amendment, and consistent with its policy and purposes.

This section says changes may be made, but since it requires the same number of votes as a change to an initiated act, it means there must be a supermajority of two-thirds of both chambers for the legislation to become law. Which leads us to our constitutional snag.

SB 2 passed the Senate two weeks ago with 23 votes, one vote short of the required two-thirds majority required under Amendment 51.

Oops.

This problem was recently brought to light and I’m told there was a meeting recently with Speaker of the House Davy Carter and a group of state legislators, some of whom are attorneys to discuss the snag. I’m told they’re still grappling with this issue.

I spoke today with State Representative Jim Nickels, who is an attorney in his full-time job, and he believes that based on Amendment 51, it requires a supermajority for the voter ID legislation to become law. Nickels says when the bill comes before the House next week, he’ll make a motion to have it sent back to the Senate since it passed without a supermajority.

At that point, the ball is in Speaker Carter’s court. Will he send it back to the Senate, send it to House Rules for a ruling, or just ignore the problem?

Moreover, can the bill get one more Democratic vote in the Senate? Why would a Democratic Senator who voted against it the first time change his or her vote? They’ll get nothing out of it since they’ll still be attacked by the GOP and the Koch Brothers for voting for it in the first place.

And if the voter ID Poll Tax does require a supermajority, can it get 67 votes in the House?

Stay tuned.