Voter ID lawsuit says Arkansas Legislature-approved rules unconstitutional

Little Rock resident Barry Haas on Wednesday (Feb. 7) filed another lawsuit in Pulaski County asking the court to halt and reverse new Voter ID restrictions approved by the legislature nearly a year ago that are similar to proposals struck down by the state Supreme Court in 2014.

The case, filed in Pulaski County Circuit Court against Secretary of State Mark Martin and the Arkansas State Board of Election Commissioners, asks the court for a preliminary injunction to challenge the constitutionality of Act 633 of 2017 that would require Arkansas citizens to verify their voter registration in upcoming elections in 2018.

In a similar lawsuit brought by Haas in 2014, Pulaski County Circuit Court Judge Tim Fox ruled that Act 595 approved by Legislature in 2013 was unconstitutional because it added extra requirements to be an eligible voter, specifically production of state-approved Voter IDs. The lower court declared that 2013 legislative void and unenforceable, and it was later unanimously affirmed by the state’s high court. Still, about 1,200 ballots were not counted in 2014 because of the law.

Attorney Jeff Priebe of Little Rock, who handled the 2014 case, told Talk Business & Politics that Haas’ new lawsuit raises the same issues brought in the 2013 complaint that the Legislature has improperly amended the state Constitution by placing additional requirements for Arkansas citizens to vote.

Amendment 51 of 1964 abolished the unconstitutional Arkansas poll tax requirement previously found in Article 3, Section 1 of the Arkansas Constitution. According to Priebe, it also set up a permanent voter registration system in Arkansas that not only sets forth the applicable information required when a citizen registers to vote, but where the registration takes place, how registration can be moved from one county to another, and the keeping of registered voter lists.

“This will disenfranchise thousands of Arkansas voters,” Priebe said.

In Wednesday’s court filing, Haas’ complaint contends that the Arkansas Constitution mandates that the General Assembly may only change certain sections of Amendment 51 “so long as such amendments are germane to (the law) and consistent with its policy and purposes.”

“This is an action … challenging Act 633 passed by the General Assembly in 2017 that it was neither germane nor consistent with Amendment 51 of the Arkansas Constitution and placed additional qualifications and impairments on Arkansas citizens before they can exercise their State constitutional right to vote. For both reasons, Act 633 is unconstitutional,” the lawsuit states.

During the 2017 legislation session, the Arkansas General Assembly re-introduced Voter ID legislation similar to the 2013 bill that was struck down by the Arkansas Supreme Court three years earlier. In approving Act 633 of 2017 by Rep. Mark Lowery, R-Maumelle, lawmakers adopted a new requirement that voters must provide verification of their voter registration at the polls before being allowed to cast a ballot.

Under the new law that alters Amendment 51, voters who don’t have a photo ID would have to sign a sworn statement under penalty of perjury so the signature can be verified by the county board of election commissioners. Absentee voters also would be required to sign a sworn statement.

After adding several amendments that sponsoring legislators said addressed constitutional concerns, Lowery’s bill was approved by the Arkansas House in the 2017 session with a necessary two-thirds vote of 73 yeas, 12 nays and 15 members not voting. The Senate similarly approved the measure by a vote of 25 yeas, eight nays and 2 senators not voting. The bill became law on March 24, 2017.

In June 2017, the Arkansas Board of Election Commissioners approved a set of “emergency” rules for Act 633, which mandates voters to show photo identification before casting ballots but allow people without photo identification to sign a sworn statement saying they are registered voters in Arkansas. These voters would then cast a provisional ballot, which would “automatically” be counted unless there’s a red flag.

During the legislative session, Rep. Lowery told committee members during debate on the Voter ID bill that while there is no known widespread voter fraud, it’s also not a priority for prosecutors, and most elections are decided by such wide margins that there is little motivation to investigate abuse. He said the bill would address Americans’ eroding lack of confidence in the electoral process.

Lowery also told the committee that the bill repeatedly referred to the photo ID as a requirement for voter registration, not a voter qualification. He said the bill could be challenged in court, but he thought it would be judged constitutional.

Priebe’s client, Barry Haas, also spoke out against Lowery’s bill during House and Senate committee hearings. The longtime Pulaski County poll worker told lawmakers that the photo ID requirement places a burden on voters and could lead to widespread disenfranchisement among certain groups. Calling the new law “unwarranted and unconstitutional,” Priebe said it will only create further confusion at the voting booth among poll workers and voters. He said it is likely that thousands of voters who refused to provide photo ID or verification of their voter registration at upcoming elections will be turned away or told to cast a provisional ballot.

In fact, in his lawsuit, Haas states he will continue to refuse to provide Voter ID or verification of his “voter registration” in future elections, although he has the means to satisfy the law.

“As a result of his refusal, (the) plaintiff will only be allowed to cast a ‘provisional ballot,’” the lawsuit states. “And, as a result of Act 633, (the) plaintiff will be denied his constitutional right to vote as an Arkansas resident.”

In 2014 case, the late Justice Donald Corbin wrote in his majority opinion that the measure added a qualification to voters that is not included in the Constitution. Justices Courtney Goodson, Karen Baker and Jo Hart, all of whom are still on the seven-member court, offered a concurring opinion based on the fact that the act was not passed with a two-thirds majority. They said that amount was required because the law changed a constitutional amendment, Amendment 51, which governs the registration of voters. They did not rule on the qualification issue.

Haas’ new lawsuit was filed against Secretary of State Mark Martin in his capacity as chairman of the seven-person State Board of Election Commissioners. That election panel also includes commissioners Rhonda Cole, James Harmon Smith, Stuart Soffer, Charles Roberts, Chad Pekron and James Sharp.

In the 2014 lawsuit brought by Haas and others, the Secretary of State’s office unsuccessfully defended the Voter ID bill adopted by the legislature. Chris Powell, spokesman for the Secretary of State’s office, would not comment on Haas’ new lawsuit.

Nicole Waugh, spokeswoman for Attorney General Leslie Rutledge, also would not comment on if the attorney general’s office plans to defend the new Voter ID bill.