He chose a legally dubious way to do it, but Circuit Judge Timothy Fox was squarely on the point Thursday when he declared the photo-identification law an unconstitutional infringement on the rights of Arkansas voters.
When people have jumped through all the hoops that are required by the Constitution to register to vote are then forced to produce an official photo identification and other documents before they can actually cast a vote, the legislature has added another requirement for voting, Judge Fox declared. Once a person is legally registered to vote, the Constitution says, neither the legislature nor election officials can erect another hurdle.
The law that is the Arkansas Constitution is exactly that clear. It was that clear a year ago when the legislature narrowly passed Act 595, which erected the photo identification barrier and still more rigmarole to make it harder for many people to vote, particularly the elderly, disabled and poor who do not have driver licenses or international passports.
Opponents, principally Democrats, said the bill was clearly unconstitutional. Governor Beebe vetoed it, noting that it was unquestionably unconstitutional and would simply invite lawsuits that would be costly for the state to litigate. Republicans and a handful of Democrats voted to override his veto, as a simple majority in Arkansas can do, and the lawsuits inevitably followed.
What is a little questionable about Judge Fox’s decision and his injunction against the law’s enforcement in next month’s primaries and judicial election is the venue for the order. It was a lawsuit about Act 595’s confusing requirements for casting and counting absentee ballots. A special election for a state Senate seat in Northeast Arkansas this winter wound up invalidating the ballots of a number of legitimate voters who tried to vote absentee that day. The state Board of Election Commissioners had spelled out a way to interpret Act 595, which members of the Pulaski County Election Commission contended was clearly illegal. Only the legislature can fix the flaws in Act 595, they said.
But Judge Fox concluded after a lengthy hearing that those problems were only incidental. Act 595 itself is unconstitutional in a variety of ways, he said. Since the constitutional issues were not raised and argued directly in the suit, you wonder whether the Arkansas Supreme Court, where the case is headed immediately, will allow the full order to stand or return it to the judge for hearings and briefs on the constitutional issues.
Fortunately, and perhaps significantly, precisely those constitutional issues were raised a week earlier in a second lawsuit filed by the Arkansas Public Law Center and the Arkansas chapter of the American Civil Liberties Union on behalf of four voters who will be encumbered by the act’s new identification requirements. Judge Fox is to hold a hearing next week on the lawyers’ request for a temporary injunction against the law’s enforcement at the May and June primaries and judicial election. A final order and a permanent injunction would then await a trial on all the constitutional issues.
Judge Fox’s order was almost a recitation of the constitutional arguments in the second case. Presumably, his preliminary ruling in that case next week will be the same as Thursday’s.
The authors of the act and the authors of similar voter-ID acts in a number of Southern and Midwestern states are Republicans. In a few instances, they have conceded that the purpose is to drive down Democratic votes at general elections by making it more frustrating or intimidating for some people to vote, particularly minorities.
Rep. Bryan King (R-Green Forest) and other supporters of Act 595 said its purpose was simply to prevent voter fraud and protect the integrity of the vote. Judge Fox wrote that this was indeed a noble purpose, but that Act 595 didn’t achieve it.
Arkansas, indeed, has a history of election fraud—ballot theft, corrupting ballots, misreporting vote totals, manufacturing absentee ballots and outright vote buying, as happened in a recent legislative election in east Arkansas. But Act 595 and other photo ID laws would do nothing to stop any of them or to punish the perpetrators. Those are acts of fraud committed by voting officials and political candidates and their surrogates, not solitary voters. Act 595 wouldn’t touch the perpetrators.
What Act 595 would prevent is one person going to the polls, pretending to be another voter who is not going to the polls that day and marking that person’s ballot. A person who has tried to do that was likely to get caught—he had to match the voter’s signature on the affidavit at the polls and also escape the recognition of the voting judges and clerks. There is just no history of that happening, in Arkansas or anywhere else, at least on a scale that is noticeable. An individual is just not prone to take such personal risks for the sake of casting one vote for his or her favorite candidate.
Those risks are taken by people with much at stake—the candidates and their surrogates and party officials at precincts or the county headquarters who have access to ballot boxes, voting machines and voter lists and who record vote totals. One person can alter scores of votes at a time, and a photo ID would have no effect.
Election fraud persisted down through the years, from Reconstruction forward, from Conway County to Phillips County to Searcy County, because sheriffs and prosecutors simply chose to look the other way—or to participate. We have seen some evidence, finally, of that changing in recent years. That does give us some confidence in the integrity of elections.
Discouraging people who already vote too rarely and reluctantly, as Act 595 does, will not help. When Judge Fox’s order is upheld, as it eventually will be, everyone who is legal and wants to vote can be assured of having his vote counted. That is America.