Sometimes the law is so clear that appellate courts seem almost superfluous. Anyone who could read could see that the Arkansas legislature violated the state Constitution over and over last year with the act that stopped people from voting if they did not submit official government-issued photographic proof that they were the person they claimed to be when they went to the polls or mailed their absentee ballots.
Nevertheless, the case had to wind its way through the courts, at a sizable expense to the taxpayers, and Wednesday the conservative Arkansas Supreme Court, with just a touch of fatigue, said unanimously that the legislature just can’t pass such things. Although attorneys for the secretary of state and the sponsoring Republican legislators offered up a few lame theories to make the law constitutional, the Supreme Court said it could not find “any set of circumstances” that could make the voter-ID law valid.
Justice Donald Corbin, writing for the court, said the photo-ID act violated 150 years of legal precedents protecting people’s right to vote. It enumerated a number of ways the law clearly violated the Constitution by adding new requirements for voting beyond those set out in the Constitution.
The Constitution guarantees people the permanent right to vote once they have provided proof when they register to vote that they are a citizen, a legal Arkansas resident and at least 18 years old. The Constitution says the legislature cannot add new restrictions on voting, but that is what the legislature did when it said that every voter at every election must carry official photographic proof that he or she is the voter he or she claims to be. Justice Corbin noted that the act would have required every voter to requalify to vote every year and in every election.
Pulaski Circuit Judge Timothy Fox had issued a summary judgment declaring the act unconstitutional.
Unintentionally, we imagine, the three women on the Supreme Court, who lean Republican, emphasized in a concurring opinion the absurdity of the Republican majority claiming to pass the act. The women said the bill did not get enough votes in the legislature to become law in the first place, so there was no need for the court to reach the decision that the act added unconstitutional restraints on voters who may not have passports or driver licenses.
The Constitution says some parts of the 1964 permanent voter registration amendment may be amended by a two-thirds vote of both legislative houses, but Act 595 fell far short of that. So the three justices said it should never have been declared a law, the act should not have been applied in the spring primaries or school elections and the case was a waste of time.
All that was pointed out at the time, but the Republican presiding officers of both houses declared that a narrow majority was all that was needed. Gov. Beebe vetoed it, explaining that it was both unconstitutional on its face and that it had not received the necessary votes to become a law. The narrow Republican majority passed it again over his veto, and Secretary of State Mark Martin, at considerable expense and confusion, has tried to enforce it.
Even after the Supreme Court struck it down Wednesday, Martin said he was going to do his best to enforce the law anyway, but he backed down the next day after the attorney general, who had helped him defend the law, said flatly that the law was dead and that Martin’s interpretation of the older valid laws on voter identification were also wrong.
Let’s explain once again the rudiments of the issue. These photo-ID laws, which have been passed recently in 34 states with Republican legislative majorities, are intended only to reduce voting by certain groups. Many of the states have taken other steps, too, like shortening the hours for voting, reducing or eliminating early voting and reducing voting locations so that lines are longer and voting takes much longer.
All of it is designed to curtail voting mainly by minorities, the poor, the elderly and the disabled, who seem to vote more often for Democrats. It had exactly that effect in the May primaries, when large numbers of voters discovered that their votes were tossed out when they mailed their absentee ballots without all the buttressing official IDs, letters from nursing home operators and the like. But let’s be clear that if the situation were reversed and Republican-leaning voters were disfranchised, Democrats would be trying to rig the voting in the same way.
The common defense of photo ID laws is that they could prevent voter fraud and guarantee honest elections. But they don’t have that result. Officials running elections, not individual voters, commit election fraud. The photo ID law would only discourage someone from going to a polling place, trying to sign the voter affidavit of another person who may be absent that day and casting that person’s vote. There is virtually no record of that happening in Arkansas or anywhere in America beyond isolated instances.
A Tulane University law professor scoured election records across the country for the past 14 years and found exactly 31 reported instances of voter impersonations among more than one billion votes cast. Typical examples: Jack Crowder III in Baytown, Texas, used his recently deceased father’s voter registration to cast his daddy’s vote in the 2008 presidential election. Mark Lacasse in New Hampshire bragged to his buddies about casting his out-of-town father’s vote in the presidential primary in 2004 and someone tipped the prosecutor. Both young men were convicted and did some community service. Those are the horrors the voter ID law was to protect us from.
The act caused one embarrassing moment for Republicans in May. Their gubernatorial candidate, Asa Hutchinson, didn’t have a photo ID when he went to vote, but a campaign aide was dispatched to fetch it for him. Many others, one suspects, just left and didn’t return.
But the Arkansas Republican chairman, Doyle Webb, assured Republicans on Thursday that they could relax, even after losing the photo-ID law. He said the Republican brand was now so solid in Arkansas that Republicans were going to be easily elected even if blacks, the disabled and the rest who were intimidated by all the warnings about being turned away from the polls or arrested for not meeting all the voting requirements now actually go vote. So it’s a happy day for democracy all around.
—Ernie Dumas
