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Rebecca Green of the William & Mary Law School’s Election Law Program was one of the participants on my panel at last week’s NCSL Fall Forum – and during her remarks she mentioned the sharp growth she’s seeing among law students in the study of election law and policy. That phenomenon is in full flower at the school’s State of Elections blog, which takes a look at developments across the nation using a legal lens.
Controversy surrounding voter identification laws has now reached the Natural State. On April 1, 2013, the Arkansas state legislature completed a bicameral majority vote overriding Gov. Mike Beebe’s (D) veto of a law requiring voters to show photo ID. The law, which is scheduled to go into effect on January 1, 2014, provides for the state to issue a free photo ID to voters who lack one. The law also allows a voter without photo identification to cast a provisional ballot on election day. The provisional ballot will be counted if the voter reports to the county clerk or county board of election commissioners by noon of the Monday following the election, with proof of identity or an affidavit showing the voter is either indigent or has a religious objection to being photographed.
Voter identification laws have proven contentious throughout the country, and the new Arkansas law is no exception. When questioned about the impetus behind the new legislation, State Senator Bryan King (R), primary sponsor of the bill, stated, “The purpose of the law is to ensure electoral integrity.” Senator King also noted that common activities, including boarding a plane or obtaining a library card, require photo ID, and stated that Arkansas poll workers already ask voters to present photo ID, leading many citizens to believe that a photo ID requirement is already in place. According to Senator King, he and other sponsors of the legislation considered evidence from states such as Georgia, Indiana, and Kansas, indicating a correlation between requiring voters to present photo ID and increased voter participation.
Nevertheless, critics of the new legislation contend that the law will effectively disenfranchise some voters. When asked about the new law, Dale Charles, President of the Arkansas State Conference of the NAACP, stated, “The law attempts to disenfranchise as many minorities as possible, specifically African Americans, Hispanics, and the poor. There is no evidence that voters had abused the system prior to enactment of this law, and there are already mechanisms in place in Arkansas to prosecute voter fraud.”
Other critics have drawn an analogy between voter ID laws and the poll taxes of the Old South, arguing that both are designed to place small burdens on voters that some will inevitably be unable to meet.
The Arkansas Bureau of Legislative Research estimates that it will cost the state $300,000 to implement the law, which will cover the cost of setting up the hardware and training systems necessary to provide voters with free photo IDs. A political divide exists between those who feel the cost is justified to prevent fraud, and those who feel the cost is unnecessary in the absence of demonstrated fraud. In a letter issued March 25, 2013, Gov. Mike Beebe characterized the law as “an expensive solution in search of a problem.” Proponents of the law, however, point out that the amount needed to implement the law is small in relation to the state’s overall budget of around $4.7 billion (2013 budget).
Legal issues also abound. In Crawford v. Marion County Election Board, the U.S. Supreme Court upheld the constitutionality of an Indiana voter ID law strikingly similar to the new Arkansas law, holding that state interests in modernizing elections and preventing election fraud justified the burden placed upon the individual voter. However, state constitutions may offer greater protections than those contained in the federal constitution. Article III of the Arkansas state constitution, for example, contains a provision that prohibits the state from impairing the right to vote, and appears to prohibit the state from passing laws that add qualifications to the right to vote. According to Holly Dickson, legal director of ACLU of Arkansas, the chapter is preparing to file suit later this year to challenge the legislation’s legality under the state constitution. Election law watchers will observe the case keenly as it wends its way through Arkansas’s court system.
Thanks to Ms. Hawkins for her excellent summary – and to Rebecca and the W&M team for creating a home for the next generation of election lawyers!