Martha Adcock, general counsel for Republican Secretary of State Mark Martin, wrote Circuit Judge Tim Fox today and
asked him to recuse from a second lawsuit pending over the state Voter ID law.
Thursday, in a lawsuit against the state Board of Election Commissioners, who include Martin, Fox invalidated the statute. He said both a rule adopted by the board to smooth a problem in the law with absentee voters was unconstitutional and so was the statute to require photo IDs of voters. He said the Constitution prohibited placing new hurdles in the path of voting beyond the clear procedures outlined in the Constitution.
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Pending, with a hearing set next Friday, is the ACLU/Arkansas Public Law Center lawsuit that broadly attacked the law. The first suit, by the Pulaski County Election Commission, directly challenged the absentee vote rule, but Fox went farther than some expected. A review of case filings today shows that the Republican Party, which intervened in the case, actually gave Fox the tools he needed to strike down the whole law.
It’s interesting that Mark Martin had no problem with Fox hearing the case until after the adverse ruling.
“In an excess of caution,” Adcock wrote she asked Fox to withdraw from the pending case in which Martin is a named defendant because Fox was a co-defendant in a case still on appeal that tried to disqualify Fox from the judicial ballot this year because he’d been late in paying his fee to practice law and thus was an unlicensed for a short time. A trial court rejected the argument that this disqualified Fox from running under a constitutional requirement of six years of legal practice by judicial candidates immediately before an election. He noted, too, that Jeff Priebe, a lawyer in the pending Voter ID suit was lawyer in a case still on appeal in which a potential opponent for Fox was removed from the ballot because of many years of license suspension after she initially joined the bar.
“Given the pendency of these appeals, both involving your personal interest in the respective candidacies, and given the involvement of plaintiffs’ attorney in that pending litigation, Defendant Secretary respectfully asks you to recuse in this matter .” This would avoid, she said, any appearance that the judge was in conflict with ethical rules.
Fox’s position was known long before yesterday, of course. But as I noted before, Doyle Webb, the state Republican Party chairman and an intervenor in the absentee voter ID lawsuit, had once included Tim Fox on a slate of worthy judicial candidates at a time when the party decided to get involved in newly non-partisan judicial races. Maybe they liked their chances. The GOP decided that the loss of partisan labels was sometimes a disadvantage in getting the right sorts of judges elected to the bench.
Irony also attaches to something several politicos pointed out to me today: Doyle Webb’s legal intervention gave Fox the tools to go beyond the absentee vote rule to strike down the entire statute. It’s possible the same arguments would have been developed in next week’s hearing, but the Republican pleading gave Fox the foundation to get to them earlier. Time is important, with early voting to begin in nine days.
The meat starts on Page 10 of the brief in the section titled: “Unless the challenged regulations are permitted to stand, the state of Arkansas will be in violation of the privileges and immunities clause of the state Constitution.”
Indeed there were equal protection concerns on both the state and federal level without a correction to the failure of the state law to provide a way for absentee voters who didn’t submit required ID to cast a provisional ballot so the deficiency could be cured. The Republicans also helpfully noted that the board rule was needed to avoid a violation of the Help Americans Vote Act. It specifically requires provisional ballots for absentee voters who fail to submit ID. The Republican law sloppily overlooked this fact. But critical was the Republican argument that the board of election commissioners was acting within its power in adding an absentee provision to the legislature’s law. Fox found that the board’s actions were a derivative of the legislation. That kicked the door open to a review of the act’s constitutionality. He found it and the rule lacking in many ways.