Three Reasons Arkansas’s Photo ID Law is Unconstitutional

August 11, 2014

Brennan Center Files Amicus Brief With Arkansas Historians, Political Scientists, and Law Professors

Little Rock, Ark. – Arkansas’s restrictive photo ID law violates the state constitution and must be struck down by the state Supreme Court, argued the Brennan Center for Justice at NYU School of Law in an amicus brief filed today with a group of Arkansas historians, political scientists, and law professors.

The Brennan Center’s brief — filed with pro bono counsel Weil, Gotshal & Manges LLP and Cullen & Company — makes three core arguments:

  1. The Arkansas constitution clearly guarantees the right to vote for all eligible citizens and explicitly prohibits the state legislature from burdening that right. The brief explores Arkansas’s long history of zealously limiting interference with its citizens’ fundamental right to vote.
  1. Numerous social science studies show harsh photo ID laws like Arkansas’s raise the cost of voting, drive down voter participation, and disproportionately exclude low-income and other voters from the electoral process. Brennan Center research found 11 percent of Americans do not have government-issued photo ID, and those earning $35,000 per year or less were twice as likely to lack ID. Arkansas ranks 47th in the country in terms of average median income.
  1. These costs are being imposed to combat the virtually non-existent problem of in-person voter impersonation fraud. In a 2003 comprehensive study, Rutgers University Political Science Professor Lorraine Minnite found this type of fraud to be “very rare.”

“It is important to protect the integrity of our elections, but we should not make it harder for eligible Americans to make their voices heard,” said Myrna Pérez, deputy director of the Democracy Program at the Brennan Center for Justice. “Arkansas’s overly harsh photo ID law could drive down participation and make it more difficult for certain citizens to cast ballots. The Arkansas Supreme Court must follow its state constitution and reject this burdensome law.”

“Arkansas has one of the strongest right to vote guarantees in the country,” added Democracy Program Counsel Michael Li. “For 150 years, courts have said repeatedly that a constitutional amendment is the only way to change laws affecting the right to vote. The courts have stuck down every other attempt to change voting qualifications. The photo ID law really is no different. The constitution is clear: Arkansas voters, not the General Assembly, are the ones who get to change the rules on who gets to vote in Arkansas.”

Arkansas’s photo ID law passed in 2013 after the Republican-controlled legislature overrode a veto from Gov. Mike Beebe (D). Pulaski County Circuit Judge Tim Fox found the law unconstitutional in two separate cases. The Supreme Court overturned one decision but did not decide on the constitutionality of the photo ID requirement. That issue is now squarely before the court in this second case. The ID measure was in effect for the May 20 primary and caused some problems. More than 1,000 absentee ballots were not counted because voters lacked ID. And Asa Hutchinson, the winner of the Republican gubernatorial primary, forgot his ID when he went to the polls. He was able to vote after a staff member retrieved it for him.

Experts on the brief are Dean John DiPippa (Dean Emeritus and Distinguished Professor of Law and Public Policy at the William H. Bowen School of Law at the University of Arkansas at Little Rock), Dr. Thomas DeBlack (Professor of History at Arkansas Tech University), Dr. Bill Schreckhise (Associate Professor of Political Science and Legal Studies Minor Advisor at the University of Arkansas), and Nate Coulter (Distinguished Practitioner-in-Residence at the University of Arkansas School of Law).

Click here to read the Brennan Center’s brief.

For more information, see all of the Brennan Center’s State of Voting in 2014 resources.