The Arkansas Supreme Court on Wednesday threw out Pulaski County Circuit Judge Tim Fox's April ruling that the state's photo-identification requirement for voters, enacted by the 2013 Legislature, is unconstitutional.
In vacating Fox's decision, the state's high court said the circuit judge erred in declaring Act 595 unconstitutional because that issue wasn't properly before Fox.
In an 18-page ruling, the court said its review of the court record shows that Act 595's constitutionality "was neither raised nor developed by any of the parties before the circuit court."
But the state Supreme Court upheld Fox's ruling that the state Board of Election Commissioners' rules relating to absentee voters are unconstitutional.
The high court's ruling came six days before the state's May 2o primary election. The Board of Election Commissioners and state Republican Party Chairman Doyle Webb of Benton had appealed Fox's ruling.
Seeking to overturn the board's rules, the Pulaski County Election Commission and Pulaski County Circuit/County Clerk Larry Crane in March filed suit against the state authorities who issued the rules and are responsible for enforcing them -- Secretary of State Mark Martin, a Republican, and the Board of Election Commissioners.
The state Republican Party won the right to defend Martin and the state board against the lawsuit after questioning whether the attorney general, who is legally required to defend state agencies, would, as a Democrat, mount a stout defense of the law.
The Republican-controlled Legislature enacted Act 595 of 2013 by overriding Democratic Gov. Mike Beebe's veto of the bill. And though the Supreme Court upheld the law in the case decided Wednesday, Fox also has ruled in a second case that the law is unconstitutional. That ruling is under Fox's stay as the state prepares an appeal.
Proponents of the law maintain that it will reduce voter fraud, while opponents contend it will lower turnout among poor, elderly, disabled or minority-group voters. Beebe called it "an expensive solution in search of a problem" that "is not supported by any demonstrated need."
On April 24, Fox voided the photo-identification requirement for voters as illegally exceeding voter qualifications allowed by Article 3, Section 1 of the Arkansas Constitution, citing more than 100 years of Arkansas Supreme Court case law.
Fox's ruling resulted from a lawsuit disputing the legality of absentee-voting rules written by the Board of Election Commissioners to address how to deal with absentee voters who don't include proof of identity when they send in ballots, a matter not covered by the voter-ID law.
The rules gave absentee voters a grace period to provide proper identification if they had failed to include it with their ballots. The voter-ID law included similar provisions for people who forgot to take photo IDs to the polls, but made no mention of absentee voters.
The Supreme Court said the rules on absentee voters were an attempt to improperly alter the voter-ID law.
"However, well-intended the [board's] actions may have been, any change in the law should have come from the Legislature, the only branch of our government that has been delegated the power to proclaim the law through statutory enactments," the court said.
"An administrative agency may not, under the guise of a regulation, substitute its judgment for that of the Legislature in administering a legislative act," the court said.
In the court's 5-2 ruling, Chief Justice Jim Hannah and Justices Don Corbin, Courtney Hudson Goodson, Cliff Hoofman, and Paul Danielson were in the majority.
Justices Karen Baker and Jo Hart were in the minority.
In their dissent, the two said they agreed that Fox erred in ruling on the constitutionality of Act 595 of 2013.
But regarding the matter of the absentee ballots, the two said the majority's opinion reaches a result different from the one reached by Fox.
"The result of the majority's opinion is that absentee ballots will only be cast and counted with proof of identification as required by Act 595, allowing for no curative period," they said. "In contrast, the result of the circuit court's ruling was to allow all absentee ballots to be cast and counted because no identification was required."
They said they would have reversed Fox's ruling and sent it back to him for further proceedings.
Sen. Bryan King, R-Green Forest, who sponsored the 2013 voter-ID law, said Wednesday that the Supreme Court's ruling "underscores that it was a huge mistake for Judge Fox to make judgments about the constitutionality of the voter-ID law without asking the attorneys to discuss it.
"I am optimistic that, once a court of competent jurisdiction looks into this question, and actually asks advocates on all sides to discuss the question, our Supreme Court will follow the lead of the many other appellate courts in this country that have found voter ID constitutional," King said in a written statement.
But Holly Dickson, legal director for the American Civil Liberties Union's Arkansas chapter, said the constitutionality of Act 595 has been fully briefed and argued in a separate case before Fox and Fox ruled it unconstitutional May 2 but stayed his order.
"We are not going to give our fight against the law," she said in an interview. "We are going to continue to argue against this law until our people are allowed to vote."
The ACLU suit targeting the entire law was filed on behalf of four plaintiffs, including three who 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, as an act of protest, refused to show it.
Attorney General Dustin McDaniel, who represents the Board of Election Commissioners, plans to appeal Fox's May 2 ruling to the state Supreme Court, said McDaniel spokesman Aaron Sadler.
Pulaski County Election Commissioner Chris Burks of Little Rock, a Democrat, said he's "very happy" with the state Supreme Court's ruling Wednesday because it "provides a lot of clarity" that the elections board can't manufacture a remedy that state law doesn't allow for.
"You just can't make up a fix for partisan purposes or whatever [reason]. You have to follow the law as it is written," Burks said.
Webb, the state Republican Party chairman, said that Fox, in allowing the party to intervene, asked that "we represent all absentee voters and their rights to cure the failure to present an ID."
"Unfortunately, the Supreme Court has ruled against absentee voters and we will now seek a legislative remedy so all votes will count," Webb said in a written statement. "We are pleased that the Supreme Court did not overturn the requirements of the Voter ID bill and we look forward to further protecting the integrity of the ballot box."
A spokesman for the state Democratic Party, Lizzy Price, said in a written statement that "we are pleased that the absentee ballot rule that sought to patch up a faulty law was overturned, but we look forward to hearing from the Arkansas Supreme Court on the upcoming case that deals with the entire law."
"The voter ID law makes it harder for Arkansas citizens to vote. As the right to vote is promised in our constitution, any effort that makes it harder to vote is unjust," Price said.
Martin, who heads the Board of Election Commissioners, said in a written statement that "we will follow the court's ruling."
Sadler, speaking for McDaniel, added that "we respect the court's decision."
A section on 05/15/2014