Pulaski County judge rules state’s voter ID law ‘unconstitutional,’ can’t be used in upcoming elections

A Pulaski County circuit court judge late Thursday (April 26) declared a Voter ID bill overwhelmingly approved by the General Assembly in 2017 as unconstitutional and entered a preliminary injunction halting state election officials from imposing a requirement forcing Arkansas citizens to verify their voter registration in upcoming elections in 2018.

In a 60-page decision, Pulaski County Circuit Court Judge Alice Gray ruled any changes made to the state voter rules must be germane to Amendment 51 of 1964, which abolished the unconstitutional Arkansas poll tax requirement previously found in Article 3, Section 1 of the Arkansas Constitution.

In her order, Gray explained succinctly that Act 633, passed by the General Assembly by a narrow three-fourths majority in the 2017 regular session, was unconstitutional because it imposed additional requirements to vote that are not found in the state constitution.

“Article 3, section 2 of the Arkansas Constitution guarantees the free exercise of the right of suffrage to all Arkansans,” the ruling states. “Several provisions of Act 633 and their corresponding administrative rules, when considered together with the manner in which they are being interpreted and implemented by the State of Arkansas’s top election officials, operate to impair this right of suffrage guaranteed to Arkansas citizens, and are unconstitutional.”

The case was first filed on Feb. 7 in Pulaski County Circuit Court by Little Rock resident Barry Haas against Secretary of State Mark Martin and the Arkansas State Board of Election Commissioners. In the lawsuit, Haas asked the court for a preliminary injunction to challenge the constitutionality of Act 633 of 2017, which would require Arkansas citizens to verify their voter registration in upcoming elections in May.

In a similar lawsuit brought by Haas in 2014, Pulaski County Circuit Court Judge Tim Fox ruled Act 595 approved by the 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 the 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, said in February that Haas’ new lawsuit raised 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.

Gray agreed, ruling Haas’ lawsuit had established a likelihood of success on the merits of all claims he raised in his complaint.

“Plaintiff is faced with the choice of complying with the unconstitutional requirements imposed by Act 633, or not having his ballot counted during the May 2018 preferential primary. The Court finds that this is not really a choice at all, and that irreparable harm would result to Plaintiff in the absence of a preliminary injunction, as his ballot will not be counted,” the Pulaski County judge wrote.

Gray’s preliminary injunction further prohibits and prevents Martin and the election board from enforcing any rules or requirements related to Act 633. That lawsuit was filed against Martin in his capacity as chairman of the seven-person board. The election panel also includes commissioners Rhonda Cole, James Harmon Smith, Stuart Soffer, Charles Roberts, Chad Pekron and James Sharp.

On Thursday evening, Priebe was effusive in his praise of Gray’s court order.

“Today, the Court protected the right to vote for all Arkansans no matter if they are rich or poor or young or old,” Priebe told Talk Business & Politics. “The plaintiff is still analyzing the Court’s opinion, however it is a very well written and thorough opinion. This is a win for all of Arkansas.”

Chris Powell, spokesman for the Secretary of State’s office, said state election officers were reviewing the court’s decision and would not comment. Nicole Waugh Ryan, spokeswoman for Attorney General Leslie Rutledge replied: “The Attorney General is disappointed with Judge Gray’s decision and is reviewing the order to consider appropriate next steps.”

The Pulaski County court ruling comes at a time when at least 34 states across the U.S. have passed laws requesting or requiring voters to show some form of identification at the polls, all of which are in force in 2018, according to the National Conference of State Legislatures. The remaining 16 states use other methods to verify the identity of voters, such as a signature or other identifying information.

Besides being unconstitutional, Haas’ lawsuit also contended that Act 633 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.

Haas also argued the Arkansas Constitution mandates 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.”

SECOND TRY, SAME RESULTS
During the 2017 legislative session, the Republican-controlled General Assembly re-introduced Voter ID legislation similar to the 2013 bill struck down by the Arkansas Supreme Court three years earlier. In approving the new voter ID law sponsored 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. The legislation also added 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 state election board approved a set of “emergency” rules for Act 633, which mandated voters to show photo identification before casting ballots, but allowed 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.

In 2013, a Republican majority first approved the state’s first voter ID requirements, overriding a veto by then Gov. Mike Beebe, a Democrat. A year later, 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.