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Three Reasons Arkansas’s Photo ID Law is Unconstitutional

Arkansas’s restrictive photo ID law violates the state constitution and must be struck down by the state Supreme Court, the Brennan Center argued in an amicus brief filed with a group of Arkansas historians and law professors.

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.