Fox asked by Martin to recuse in ID suit

Arkansas Secretary of State Mark Martin asked Pulaski County Circuit Judge Tim Fox on Friday to recuse from deciding an ACLU-backed lawsuit challenging the legality of the new requirement that mandates voters show a government- or college issued photographic ID for their ballots to be counted.

Martin is a proponent of the state’s voter-identification law and a defendant in the various cases challenging it.

In a ruling Thursday on a different case specifically involving absentee voting, Fox pronounced the law unconstitutional, finding that the General Assembly did not properly enact the measure. Fox had not responded to the recusal request Friday evening.

Also Friday, lawyers for the four plaintiffs in the American Civil Liberties Union suit moved to block subpoenas by Martin attempting to determine whether any of the four have ever received public assistance. The secretary of state doesn’t need that information because none of those programs provide identification suitable to meet the requirements of the identification law, attorney Jeff Priebe argues in court filings.

The lawyers want the judge to quash those subpoenas and also a demand by Martin’s lawyers for the plaintiffs to turn over their federal and state tax returns. That information is also not relevant, at least at this point in the litigation, he argued. Priebe also questioned the propriety of the demands since Martin has not formally responded to the litigation. The sides are scheduled to meet in a hearing before the judge next Friday.

On Thursday, Fox ruled that the identification law is unconstitutional, since it was passed by the Legislature without the two-thirds majority in both houses required by the state constitution. Lawmakers never achieved that majority despite having to twice vote to pass the law to override a veto by Gov. Mike Beebe, who objected to the law as illegal and unnecessary.

The law has been applied to two regional elections but never a statewide contest.

Fox also found fault with the timing of the ID requirement, ruling that once an Arkansas resident meets the legal qualifications set out by the state constitution and has registered to vote by the deadline set by the constitution, the state has no authority to add further qualifications. Lawyers for the state and Republican Party on Friday filed notice they will be appealing to the Arkansas Supreme Court.

But Martin’s request for the judge to relinquish the ACLU suit is not based on Fox’s decision. Martin wants Fox to step aside because he and the judge were co-defendants in a lawsuit, now on appeal to the Supreme Court, involving Fox’s candidacy for re-election, according to a letter to the judge by Martin’s general counsel, Martha Adcock.

The letter notes that Martin was also a co-defendant with Valerie Bailey, a Little Rock lawyer who was disqualified by court order from challenging Fox. Her case is also on appeal. Both Fox and Bailey’s qualifications were disputed because of administrative suspensions, with a judge pronouncing Fox to be qualified for office.

Priebe, the attorney working on behalf of the ACLU and the Arkansas Public Law Center, the litigation’s sponsors, is also the lawyer who brought suit against Bailey, Adcock noted.

Martin wants Fox to give up jurisdiction over the suit to avoid the possibility of the appearance of a conflict of interest, Adcock wrote.

“In an excess of caution, defendant secretary of state respectfully requests that you recuse from this matter pursuant to Rule 2.11 of the Arkansas Code of Judicial Conduct … [g]iven the pendency of these appeals, both involving your personal interests in the two respective candidacies and given the involvement of plaintiffs’ attorney in that pending litigation,” Adcock’s letter states.

Legally, the secretary of state is required to be added as a co-defendant in election litigation. In hearings in the respective lawsuits, Adcock has stated that Martin is neutral on the question of candidate qualifications.

Proponents of the identification measure touted it as a deterrent to voter fraud and were confident the law could overcome any challenge to its constitutionality because it provides for free identification cards for voters who don’t have any other suitable ID.

The lawsuit that led to Fox’s ruling was a challenge to the legality of rules for absentee voters written by the state Board of Election Commissioners as advised by Martin. The ID law did not provide an opportunity for those voters, if they forgot to submit a copy of their ID with their ballot, an opportunity after the election to submit the legally required identifying materials.

Voters who appear in person are allowed an opportunity to submit their identification after the election to make sure their ballots are counted. Voters who submit a ballot without ID and who don’t take advantage of the post election opportunity to present an ID face the possibility of criminal fraud charges.

The Pulaski County Election Commission and county clerk filed the suit, contending the state board had exceeded its regulating authority by enacting the absentee rules. The plaintiffs asked that the rules be invalidated by the court but did not question the legality of the identification law. The court had fast-tracked the litigation to get the case resolved before the May 20 election.

The ACLU suit targeting the entire law was filed on behalf of four Pulaski County voters eight days before Fox’s ruling. Three of the four plaintiffs said they could not get suitable identification because they did not have birth certificates and could not obtain them without considerable effort or expense. The fourth plaintiff, a former county poll worker, has identification but refused to show it to protest the law.

Front Section, Pages 1 on 04/26/2014

Upcoming Events