Circuit Judge Tim Fox
today issued a preliminary injunction against enforcement of the state Voter ID law. The written order continues to stay that injunction, but plaintiffs are expected to ask him soon to put it into effect, as his order encouraged. 

An injunction could have immediate impact on elections, depending on how it’s implemented. There are hundreds of ballots in this week’s primary election that could be at stake, ruled uncountable because they were submitted as absentee votes without proper ID. Hundreds more may be denied because of in-person application of the rule. Final counting and certification is done 10 days after an election.


No final tally is available, but reported disqualifications of absentee ballots have ranged from 10 percent Pulaski County to 80 percent in St. Francis County to 175 of 200 absentees in Mississippi County, Holly Dickson of the ACLU said. She predicted quick action by plaintiffs.

In short, the right to vote hangs in the balance.


UPDATE; The secretary of state’s office moved before the day was out to appeal to the state Supreme Court and said it had made arrangements to get the record to the court. In other words: Republican Secretary of State Mark Martin will do all he can to keep the vote suppression statute in place.

Judge Fox had earlier ruled from the bench that the 2013 Voter ID on its face violated the state Constitution that sets four qualifications for voting: citizenship, legal age, Arkansas residency and 18 years old. It says nothing about a photo. The plaintiffs in the lawsuit also argued that the Constitution prohibits additional impairments to voting, which forcing people to obtain an ID does. The state argued that the legislature had the power through its ability to amend registration procedures to require a photo ID. But plaintiffs argued that registration procedures can be amended only by a two-thirds vote and the Voter ID law fell below that standard.


When Fox struck down the law, he also agreed to a preliminary injunction, but stayed it pending a final order. He asked parties in the case to submit proposals for a final order. He largely adopted the recommendation of the plaintiffs, which is narrowly tailored to strike down the identification portion of the law against state constitutional limits. The order was written at a time when a couple of related but separate voter ID cases were pending. It still contains language incorporating a stay because of those pending appeals. They’ve now been decided.  Fox’s order said if circumstances changed (which they have) he urged parties to take action to modify the ruling and he said he’d take expedited action. The plaintiffs likely will.

You might ask why the Supreme Court won’t dissolve this injunction should it come to that point. In the separate lawsuits, it upheld a ruling by Fox that the state Board of Election Commissioners had acted unconstitutionally when it attempted by rule to correct a gaping flaw in the law concerning required ID for absentee votes. Absentee voters, unlike in-person voters, weren’t given an opportunity to cure the shortcoming. In that suit, Fox also struck down the whole Voter ID law as unconstitutional on its face. The Supreme Court overturned Fox on that broad ruling, saying the issue hadn’t been fully litigated.

How is this case different and why wouldn’t the Supreme Court again stay Fox if he issues the injunction?

Jeff Priebe, attorney for the plaintiffs said, “What’s different is that there was significant briefing and significant oral arguments on the specific question of whether proof of identity is constitutional. If you look at Judge Fox’s order and the hearing that was held, you’ll see the court questioned everyone at length about the constitutionality of the proof of identity provision. A record has been made and can be presented to the Supreme Court on the qualification issue.”


Priebe said the lawyers would continue work on gathering evidence for the more elaborate question of whether the Voter ID produces an improper burden on classes of voters, such as black people. 

The secretary of state’s office declined to comment. It initially said it was still studying the ruling. But it has had the ruling as written in its hands for review for more than a week. The attorney general is working on a response. I’ve asked if it will directly appeal the order and if it would fight an injunction if it’s issued. I’ve also asked about the office’s posture related to another case.

This is the irony: The attorney general just argued for a stay of Judge Chris Piazza’s historic ruling that overturned the state ban on same-sex marriage. The Supreme Court, in an extraordinary hurryup procedure, stayed Piazza’s order without any apparent consideration of plaintiffs’ arguments to allow licenses to be issued. Dustin McDaniel argued that a stay was imperative because of confusion among the counties on how to proceed with marriage licenses.

Here, we now have proof positive from a chaotic and wildly inconsistent enforcement of the Voter ID law on Tuesday that rampant confusion exists on how the law is to be administered. Voters all over Arkansas reported election officials who believed photo IDs were to be used to check birth dates and addresses. They are not. There were also numerous reports of challenged voters being denied their absolute right to cast a provisional ballot, countable only when proper proof is presented.

If the Fox injunction were to take effect — and the Supreme Court decided to dissolve it pending further appeals in this case — it would look from here like coming results-oriented jurisprudence of the sort Dustin McDaniel has criticized. And it won’t be a pretty result for people who think the Constitution means what it says on imposing additional qualifications and burdens on Arkansas voters.

Repeat disclosure: I’m on the board of the nonprofit Arkansas Public Law Center, which — along with the ACLU — is supporting this lawsuit. APLC and its board members receive no financial benefit from our work looking for cases  in matters of public interest. It is analogous, in my view, to newspaper lawsuits over the Freedom of Information Act. But a Republican voting official, Stu Soffer, who joins the party’s interest in reducing participation by certain classes of voters, has complained that I have a conflict of interest in writing about the subject without disclosure, or perhaps at all. Soffer sits on the state Board of Election Commissioners, which has not yet evinced much concern about widespread reports of improper application of the new law. It is chaired by Republican Secretary of State Mark Martin and includes several other Republicans, including a lawyer Martin’s office has hired. They like the law the way it is.

The order repeats his finding that reduction of fraud is a worthy goal (not that any has been produced). But he said that “proof of identity” is an additional qualification to vote and unconstitutional. He said plaintiffs had shown irreparable harm if the law is enforced.

The state can argue Fox has abused his discretion in enjoining the law should he lift his stay. But Fox lays out clear reasons for his ruling, including his rejection of the argument that the ID requirement is related to registration. It is not, of course, it pertains only to voting procedure. Even so, he wrote, Amendment 51 requires a two-thirds vote for changes in registration procedure because it was a popularly adopted provision.