The Arkansas Supreme Court today issued a split ruling on staying Circuit Judge Tim Fox’s ruling last week invalidating the state’s new Voter ID law. The effect seems to mean that, barring an uncommonly fast ruling, early voting could begin next week with the Voter ID law in effect.
The court granted an expedited appea. Briefs are due by noon Friday and no motions for extension will be granted.
The court granted a temporary stay of the portion of Fox’s ruling declaring Act 595 unconstitutional. Thus, a photo ID will be required of in-person early voters until and unless the Supreme Court upholds Fox. Early voting begins Monday.
But the Supreme Court denied a stay of the part of the order also declaring rules promulgated by the Arkansas State Board of Election Commissioners unconstitutional and. These rules were adopted to fix a flaw in the law that didn’t give absentee voters an equal ability with in-person voters to produce identification to qualify a provisional ballot if the ID wasn’t submitted with the absentee ballot. In-person voters have a week to take an ID to a county clerk. Absentee voters who fail to include a valid ID in a mailed ballot don’t have that option.
The order came without further comment. So it’s impossible to read any leaning into the ultimate outcome, except to say that the order came “based on the record and facts of the instant case …”
This decision came in appeals of a lawsuit filed over the Pulaski County Election Commission’s challenge of the state board’s attempt to add a rule for absentee voters to the law. The county commission argued that this was outside the state commission’s authority. Fox, to the surprise of some, went beyond that rule to strike down the law itself, based on arguments raised by the Republican Party in attempting to defend the rule. The GOP said if the rule were to be found unconstitutional, it would make the law itself unconstitutional. The GOP contended the commission had the power to clear up problems of this sort in the law. Fox found both rule and law unconstitutional because the Constitution prohibits additional obstacles to voting behind registration specifics enumerated in the Constitution.
A frontal challenge to the statute is still pending in Judge Tim Fox’s court and is set for a hearing Friday. Secretary of State Mark Martin, after the rule and law were struck down in a lawsuit in which he was a defendant, has now asked that Fox recuse from the pending case because Fox and Martin are both involved in four other election law cases on appeal related to qualifications of judicial candidates. The plaintiffs in that case tried to intervene in the county election commission case to oppose a stay, but the request was denied.
County Election Commissioner Chris Burks said the court ruling today will create confusion for election commissions, which are in process of training workers for the election.