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Thin Line Between Election Integrity and Losing Fundamental Rights

The Arkansas Supreme Court begins the hearing on the strict photo-ID law enacted by the General Assembly in 2013. There are several good reasons why the Court should uphold a lower court’s decision finding the law unconstitutional.

Published: October 2, 2014

Cross-posted from Arkansas Democrat-Gazette

The Arkansas Supreme Court is set to hold hearings today on the strict photo-ID law enacted by the General Assembly in 2013.

The ID requirement—which requires voters to show one of a very limited number of IDs before voting—is currently scheduled to be in effect this November. But earlier this year, a circuit judge struck down the measure because it violated a provision of the Arkansas Constitution, which bars the Legislature from imposing restrictions on the right to vote beyond those expressly set out in the state’s founding document.

There are several good reasons why the Arkansas Supreme Court should follow suit.

Although no one would question the need to ensure the integrity of elections, Arkansas’ photo ID law is among the strictest in the nation and imposes real burdens on many lifelong voters. Even gubernatorial candidate Asa Hutchinson was almost caught up by the law when he arrived to vote in this year’s Arkansas primary without an ID. Former Congressman Hutchinson was able to dispatch an aide to bring him his ID, but few busy voters—juggling work and family obligations—will have similar resources.

Studies have shown, moreover, that the burdens would be especially great for people of modest means, students, the disabled, and the elderly—many of whom will have IDs, just not one of the narrow types prescribed by the Legislature. Nationwide studies suggest that as many as 11 percent of citizens lack the kind of identification required by this harsh law, leaving nearly a quarter of a million Arkansans unable to vote on Election Day.

These statistics should be concerning in a state that already has among the lowest voter turnout in the country, ranking 47th in 2012.

Fortunately, Arkansas has a long and robust tradition of placing checks on legislative interference with the right to vote. Starting with its 1860s constitutions and an 1965 court precedent, the state has required that any changes to voting requirements be made only by amending the state’s constitution.

Almost 150 years ago, when Arkansas’ Reconstruction-era Legislature passed a law that required that voters take a loyalty oath at the polls, the Arkansas Supreme Court was swift to reject the law, explaining that “the Legislature cannot … impose such restrictions as will have the effect to take away the right to vote as secured by the constitution.” A century later, the court similarly rejected efforts to create a “free” poll tax by statute, holding that even something good like ending the poll tax required a constitutional amendment.

The careful and deliberative process required by the Arkansas Constitution is a model for how changes to something as fundamental as the right to vote should occur in the greatest democracy in the world.

Extending the right to vote to women, abolishing the poll tax, creating a modern voter-registration system—all these voting changes were accomplished by constitutional amendments, and only after getting the required two-thirds legislative majority, followed by the consent of the people in a popular vote.

By contrast, Arkansas’ photo-ID law passed in hurried fashion in 2013 with a simple majority, along partisan lines, over the veto of Gov. Mike Beebe, and despite clear evidence that the requirement would have a disparate impact on many Arkansas communities.

Arkansas voters decided long ago that the right to vote should not be subject to the whim of legislative majorities of the day. That decision has proven wise time and time again, and the Arkansas Supreme Court should use this opportunity to affirm the principle.

William Schreckhise is associate professor of political science and director of legal studies at the University of Arkansas at Fayetteville. Michael Li is counsel at the Brennan Center for Justice at the NYU School of Law.