Plaintiffs in the challenge of the 2013 Voter ID law
have asked Circuit Judge Tim Fox
to lift the stay of his ruling that struck down the law as unconstitutional. The case is on appeal and plaintiffs — represented by the ACLU
and the Arkansas Public Law Center
— want it not to be used in the general election because of the potential for disenfranchising voters.
Research by Holly Dickson
, legal director for the ACLU of Arkansas, found that more than 1,000 ballots cast in the lightly voted primary election were not counted because voters failed to comply with the new ID law. Most of those — more than 900 — were absentee ballots that didn't include newly required proof of identity. The rest were people who voted in person, but didn't have a photo ID when they voted or were otherwise challenged. They cast provisional ballots and if they didn't return to a clerk's office to verify their ID, their votes weren't counted.
Here's the county-by-county spreadsheet of votes cast but not counted in the primary.
Jeff Priebe, attorney for the plaintiffs, wrote in his motion to lift the stay:
... it is clear that the “proof of identity” provisions significantly impacted this election and prevented otherwise qualified Arkansas voters from casting ballots. With the November 2014 general election expected to have an even greater turnout, the impact of the “proof of identity” provisions on otherwise qualified Arkansas voters in the general election could be even greater. Should rates of disenfranchisement and voter turnout remain steady for the November General Election, potentially thousands of registered Arkansas voters could be disenfranchised in the General Election.
Priebe argues that the stay should be lifted because plaintiffs are likely to prevail in the appeal. He writes that the Constitution prohibits additional restrictions being placed on voters and the Voter ID law clearly does that. He said the Court had consistently held that additional qualifications for public office, for example, were unconstitutional.
Because statutes that impose qualifications on running for or holding office that go beyond those expressly enumerated in the Arkansas Constitution have been routinely struck down by the Arkansas Supreme Court as unconstitutional, Plaintiff submits that extra-constitutional qualifications for voting should be treated no differently.
Voters disenfranchised by the unconstitutional law will be irreparably harmed if the stay isn't lifted, he argues. On the other hand, no harm occurs if the law is simply administered as it always has been. No evidence was offered in passage of the legislation of impersonation or other similar fraudulent activities that the law would address.
Secretary of State Mark Martin, the lead defendant in the suit, is a Republican and can be expected to contest the request. The state Board of Election Commissioners also is a defendant. The legislation is similar to that sponsored by Republicans nationwide as a tool to suppress votes among Democratic-leaning constituencies.
Fox issued this stay while an unrelated voter ID case was pending before the Arkansas Supreme Court. It pertained to a rule of the state Election Commission. That case has been decided and the rule struck down. Fox had indicated he would entertain a motion to reconsider his stay if circumstances warranted.
Here's today's motion.
Standard disclosure: I'm a board member of the Arkansas Public Law Center, a nonprofit that files lawsuits in the public interest.