More than 1,000 Arkansas voters, most of them casting absentee ballots, did not have their votes counted in May because of the state's voter identification law, opponents of the measure say in a petition filed Tuesday seeking to put the law on hold until its legality can be decided at trial.
The law has the potential to disenfranchise thousands of voters in the November general election, the American Civil Liberties Union and the Arkansas Public Law Center contend in a motion filed Tuesday.
They are asking Pulaski County Circuit Judge Tim Fox to impose the preliminary injunction he granted in May two days before primary voting began.
Fox found the ID requirement was illegal, because lawmakers had not met state constitutional requirements to approve it. However he stayed his ruling to bar enforcement of the law, because voting officials statewide would not have had enough time to make the changes to implement his decision.
In a lawsuit challenging the legality of the identification law, the ACLU and law center are representing four registered Pulaski County voters, three of whom say that because they cannot obtain the photographic ID required to vote without extreme hardship, the law has the effect of preventing them from voting. The fourth plaintiff has sufficient identification but is protesting the law.
The law requires voters to present at the poll photographic identification issued either by the government or approved schools.
The defendants, Secretary of State Mark Martin and the state Board of Election Commissioners, are appealing the judge's ruling, with their first brief due on July 7.
The ACLU says that Fox still has the authority to bar enforcement of the law during the appeal under Rule 62 of the Arkansas Judiciary's Rules of Civil Procedure.
An ACLU survey of voting in the May primary shows that 1,064 votes were not counted because of the ID law, according to the six-page motion.
"It is clear that the 'proof of identity' provisions significantly impacted this election and prevented otherwise qualified Arkansas voters from casting ballots," the motion by attorney Jeff Priebe states. "Should rates of disenfranchisement and voter turnout remain steady in the November general election, potentially thousands of registered Arkansas voters could be disenfranchised."
The survey showed that of the 72 of 75 counties that responded to the ACLU's request for information, 131 in-person ballots on Election Day were disallowed for not meeting the ID requirement, while 933 absentee ballots were similarly discounted, the motion states.
According to the survey, the five counties with the most disallowed absentee votes were Mississippi, with 142; Crittenden, 98; Jefferson; 90; St. Francis, 83; and Pulaski, 62. The top counties for disallowed in-person votes were Pulaski, 26; Crittenden, 10; Benton, nine; Washington, seven; and Sebastian and Newton, tied with six.
The secretary of state's office reports that 346,318 votes were cast in May. The turnout was 21.3 percent of the state's approximately 1.6 million registered voters, the office reports.
With the potential for double that turnout in November, Fox should lift the stay out of concern for the possibility that thousands of voters could have their ballots rejected, the plaintiffs argue in their motion.
"Given the evidence of impact on voters from the recent primary election, plaintiffs submit that irreparable harm in the form of potentially thousands of registered voters being disenfranchised during the general election will result if the stay is left in place during the appeal," the motion states. "However, no substantial harm is likely to result to defendants as a result of lifting the stay regarding the new 'proof of identity' provisions. Defendants can simply revert to administering the same law that has applied in past years."
Fox has twice ruled the ID law to be unconstitutional on the grounds that lawmakers did not pass the measure with the two-thirds majority required to amend the Arkansas Constitution. Voter requirements and the registration process are both governed by the state constitution, the judge noted.
He first struck down the measure in another lawsuit, which challenged the legality of rules written by the state Board of Election Commissioners aimed at plugging a hole in the ID law regarding absentee voting.
The law does not allow absentee voters a post-election opportunity to present their IDs to election officials so that their votes are counted. But in-person voters are given that chance, under the law, if they can't present identification when they vote.
The rules written by the board would give absentee voters that same opportunity. The state Republican Party, which championed passage of the ID law, acknowledged in court filings that lack of an opportunity for absentee voters makes the statute unconstitutional without the board's fix.
Six days before the May primary, the state Supreme Court upheld Fox's finding that the election commissioners did not have the authority to impose the absentee-voting rules, but the high court did not address his findings regarding the constitutionality of the ID law.
The state Supreme Court instead ruled Fox had acted on the legality of the ID law before properly having the issue before him.
Fox had also stayed the injunction because he wanted to wait and see what the Supreme Court would decide in this case, the ACLU and the law center contend in Tuesday's motion.
Metro on 06/25/2014