News that the Arkansas Supreme Court had invalidated the voter ID law on state constitutional grounds came as welcome news to Joshua A. Douglas, a law professor at the University of Kentucky.
He’s written a Vanderbilt law review article about the wisdom of challenging voter ID laws on state grounds, just as the lawyers in Arkansas did. In other cases, lawsuits have locked state provisions with equal protection in the federal constitution, not always a sure winner, though evidence grows of the discriminatory impact of Republican-backed ID laws.
Douglas writes to me:
The Arkansas Supreme Court basically adopted a legal theory I’ve espoused in a law review article: that state constitutions are paramount in these state-based right-to-vote disputes. And the principle applies more broadly than just in Arkansas because virtually every state constitution explicitly grants the right to vote to the state’s citizens. Other state supreme courts should follow Arkansas’s lead on this interpretative method.
This case shows the importance of state judges in resolving these disputes by refusing to “lockstep” their broader state constitutions to the narrower federal constitution. Arkansas joins Missouri and Pennsylvania in refusing to lockstep on right-to-vote questions. States that have (improperly) construed their explicit constitutional provisions to be the same as the federal Equal Protection Clause include Michigan, Tennessee, Wisconsin (although lower courts in Wisconsin refused to lockstep), Indiana, and Georgia.
And here’s the thing: Secretary of State Mark Martin, the missing in action top election official in Arkansas last night followed his dereliction of duty in failure to educate the public about the law and defending its blatant unconstitutionality by saying he still intended to enforce the law to the fullest extent possible. What extent? It’s over, as a simple matter of state law. Any waste of money by his office in attempting an 11th-hour federal court filing to breathe life into the dead law should be laughed out of court. There is no federal issue.
Douglas wrote in his article, according to a summary:
The article also proposes a test for state courts to use when construing their constitutional voting rights clauses: a law that adds an additional voter qualification beyond what the state constitution allows is presumptively invalid, and a state must justify burdens on the right to vote with specific evidence tied to the legislature’s authority under the state constitution.
We told you so from day one on this ill-advised law. So did Ernie Dumas, who also wrote early on abut the legislature’s failure to pass the law by the required two-thirds vote, another disqualifying factor cited by three justices. Gov. Mike Beebe said precisely the same thing in vetoing the unconstitutional legislation. Republicans in the legislature have little respect for laws with which they disagree. And thus another unconstitutional piece of legislation was added to the state’s legal price tag.