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Ark. Supreme Court Says 'No Thanks' to Voter ID

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By Mark Wilson, Esq. on October 17, 2014 2:34 PM

It's getting hard to keep track of all the states that introduced laws requiring voters to produce state-issued photo IDs in order to vote. You can take Arkansas off the list (oh, but you'll need to add it to the list of voter ID cases that could end up at the U.S. Supreme Court -- like the ones out of Texas, Ohio, Wisconsin, and North Carolina).

On Wednesday, the Arkansas Supreme Court upheld a lower court's determination that Act 595, passed in 2013, was unconstitutional.

A History of Voting Rights

The question was limited to the facial validity of Act 595's requirement that a voter prove his or her identity through a state-issued photo ID. Notably, Act 595 -- unlike some of the other voter ID laws around the country -- was a statute passed by the legislature, not an amendment to the state constitution. This actually makes the analysis an order of magnitude easier, and means this case actually might not go to the U.S. Supreme Court.

The only question is whether the law comports with the Arkansas constitution, which the court noted at the outset "fiercely protects against the General Assembly's interference with Article 3 of the Arkansas Constitution." From the beginning, the state tried to couch the photo ID requirement as "a method of 'identifying eligible voters at the polls'" instead of "a new qualification to vote." That bit about identifying eligible voters is in quotation marks because it comes from Crawford v. Marion County, the best support that voter ID advocates have for a win.

But Arkansas' law is stricter than the limits of federal law, as articulated in Crawford. Some 150 years of case law in Arkansas has prevented the legislature from using any direct or indirect methods to limit voter qualifications beyond what's prescribed in the Arkansas constitution. In the past, the Arkansas Supreme Court has refused to uphold loyalty oaths and even nominal poll taxes of $1 as prerequisites for otherwise-eligible citizens to vote.

That Was Easy

With this history, striking down the voter ID law was a sure thing: "Act 595's added requirement of providing a proof of identity as a prerequisite to voting runs afoul of article 3, section 1, of the Arkansas Constitution." There are only four requirements: You have to be 18 or older, a U.S. citizen, a resident of Arkansas, and "lawfully registered to vote." That's it. "These four qualifications set forth in our state's constitution simply do not include any proof-of-identity requirement."

Justice Courtney Hudson Goodson, along with two other justices, concurred to point out that the law was invalid only because it "failed to obtain a two-thirds majority vote in both houses of the General Assembly as required by amendment 51, section 19." They would have avoided the question of constitutionality altogether.

On a national scale, the victory in Arkansas is a small one: All the other voter ID laws dealt with the federal constitution, which, if Crawford is to be followed (and maybe it shouldn't be), is far more permissive when it comes to circumscribing voting rights.

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