The highest Court in Arkansas has struck down that state’s Voter ID law, but it has done so in a way that makes it unlikely that the U.S. Supreme Court will be inclined to intervene to overturn the decision:
The Arkansas Supreme Court struck down the state’s voter identification law on Wednesday, saying that it would set a new requirement for voting beyond those listed in the state’s Constitution.
The ruling came less than three weeks before the Nov. 4 election in a state where there are several close contests this year, including for governor and the United States Senate. A day earlier, a federal appeals court ruled that Texas could enforce its voter identification requirements in the November election.
The Arkansas ruling found that the law went beyond the four qualifications for voting in the state Constitution. The Constitution says that a voter must be a United States citizen, a resident of the state, at least 18 years old and lawfully registered to vote in the election. “These four qualifications set forth in our state’s Constitution simply do not include any proof-of-identity requirement,” the ruling said.
The ruling was written by Associate Justice Donald L. Corbin. A concurring opinion, written by Associate Justice Courtney Hudson Goodson, agreed that the law should be struck down, but for a different reason. Justice Goodson wrote that the law failed to receive a two-thirds majority vote in the Legislature, which was a requirement to amend laws “initiated by the people,” she argued.
Gov. Mike Beebe, a Democrat, vetoed the voter identification law last year, but state lawmakers overrode the veto. Earlier this year, a judge found that the state’s law was unconstitutional but said he would not block its enforcement because there was not enough time to do so before the primary election in May.
The law required all voters to present photo identification. In the past, the state had required poll workers to ask for identification, but voters could still cast a ballot if they did not have it. Under the new law, voters who did not have identification could cast provisional ballots, but they would not be counted unless the voters returned to the county clerk or election commission by noon the Monday after the election with proof of identity.
Because this decision is based entirely on state law and the state Constitution, there doesn’t seem to be any basis upon which this matter could be appealed to the U.S. Supreme Court. While the Justices have the final word on Federal law and the U.S. Constitution, matters that are solely covered by state law and the Constitutions of the individual states are solely within the final jurisdictions of the highest court of each particular state. So, unless there is a Federal law issue that could be raised here, and like Rick Hasan I don’t see one, then this would appear to be the final word on Arkansas’s law. The only alternative for advocates of Voter ID law in Arkansas at this point would be to amend the state’s Constitution would be to amend the state Constitution to give the legislature the authority to add additional requirements to what voters must comply with in order to be able to vote. So, absent that occurrence, this is a complete victory for the opponents of Voter ID, although it is important to note that this decision does not address the “disparate impact” arguments that have been the basis for various Federal Court rulings on this issue.
Incidentally, this outcome does potentially suggest a new strategy for those opposed to Voter ID laws. State Constitutions vary from state to state, and different state Supreme Court’s will interpret things differently, but if the legal arguments are set forth in terms of being illegitamite not because of some argument under the Voting Rights Act that doesn’t seem likely to succeed at the Supreme Court at the present time, but because they create qualifications for voting not authorized by the state Constitution, then challengers may have a new route to proceed to challenge these laws. Obviously, that won’t help very much where the Supreme Court is dominated by the same party that passed the law, such as Texas, but it it may be an avenue worth pursuing. Additionally, it suggests that attempting to amend state Constitutions either bar Voter ID laws altogether or, probably more likely, set forth explicit requirements in the state Constitution that any such law must comply with certain criteria, such as being easily available, free, and non-discriminatory toward people who have been voting for a long period of time but may not be able produce the documents necessary to get proper identification, then that could blunt the impact of the laws that they complain about. I don’t know that this is any more feasible than the Federal Court route, but it’s worth considering.
Here’s a link to the opinion.
