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Supreme Court Justices Signal Skepticism on Voter ID (Andrew DeMillo Analysis)

3 min read

LITTLE ROCK — If their questions during oral arguments last week are any indication, some Arkansas Supreme Court justices are skeptical about the idea that the state’s voter ID law amounts to merely a verification of registration and not a new requirement for casting a ballot.

It’s an encouraging sign to voter ID opponents, but they still may wind up with a verdict that could leave unsettled the law’s constitutionality until after the November election.

The 45-minute hearing before the court offered little new in a debate that was being fought long before the Republican-led Legislature approved the voter ID law over the objections of Democratic Gov. Mike Beebe last year. The debate primarily boils down to whether requiring Arkansans to show photo ID before casting a ballot violates Arkansas’ constitution by imposing a new qualification to be a voter.

Thirty-two states have laws requiring voters to show some form of identification, according to the National Conference of State Legislatures. Eight states have strict photo ID requirements similar to Arkansas’.

Opponents of the law say it’s putting a burden on voting that other rights enshrined in the Constitution such as freedom of speech and religion don’t have to face.

“The law impairs the fundamental right of voting because if you don’t have the ID, you can’t do it,” said Jeff Priebe, an attorney for the American Civil Liberties Union of Arkansas and the Arkansas Public Law Center, the groups suing the state over the law. “There’s no other fundamental right in Arkansas which requires that you show a picture ID in order to take advantage of that right.”

State election officials, however, say the law is simply a way for the state to ensure that those who are legally qualified to vote are doing so — and not a new burden.

“It is simply a verification of registration,” A.J. Kelly, an attorney for Martin’s office, told the court. “It is a mechanism to ensure that you meet those four qualifications, but it is not an additional qualification to vote.”

At least one member of the court pushed back at that argument.

“I’m having trouble equating lawfully registered to vote with requiring all these various ID things you’ve got here,” Justice Donald Corbin told Kelly at one point during the hearing.

With early voting set to begin Oct. 20, the case could have national implications. The state’s Nov. 4 election is highlighted by the increasingly expensive fight between Democratic U.S. Sen. Mark Pryor and Republican challenger and U.S. Rep. Tom Cotton, a race that could determine which party controls that chamber next year.

In a sign of just how closely Democrats are watching the race, Pryor’s campaign put out a fundraising email the morning of the oral arguments warning that allowing the requirement to stand “will only rally other out-of-touch legislatures around the country to enact similar sinister laws.”

The court, however, could stop short of offering either Democrats or Republicans the clarity they want in the debate over voter ID laws. Pulaski County Judge Tim Fox struck down the law in May, but suspended his ruling and left the law in effect while justices heard the appeal. His decision was a preliminary injunction against the law, and the state is asking the Supreme Court to set aside that decision and order further hearings in Fox’s court.

If they did so, it would be the second time in the past year the court has punted on the law’s constitutionality. Earlier this year, justices tossed out another ruling by Fox finding the law unconstitutional. The court said Fox didn’t have the authority to rule on the law’s constitutionality, since that case focused on the handling of absentee ballots.

But Justice Paul Danielson questioned whether Fox’s order in the latest case can be considered just a preliminary injunction since he ruled on the law’s constitutionality.

“To me, it seems like the preliminary injunction is out the window,” he said.

(Andrew DeMillo has covered Arkansas government and politics for The Associated Press since 2005. Follow him on Twitter at Twitter.com/ademillo.)

(Copyright 2014 The Associated Press. All rights reserved. This material may not be published, rewritten, broadcast or distributed.)

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