House Bill 1047, the legislation by Rep. Mark Lowery (R-Maumelle) to reinstate a voter ID requirement in Arkansas, passed out of the House State Agencies committee this morning on a voice vote. Here’s the bill.
HB 1047 would change Amendment 51 of the Arkansas constitution to require a voter to “verify his or her voter registration” on Election Day by presenting a government-issued ID that includes a photograph. The identification document must be issued by the state, the U.S. government or an accredited postsecondary school (existing law provides for the issuance of a photo ID to a voter who doesn’t already have one of those other forms of identification). The bill would create exceptions for residents of nursing homes and active duty military members and their spouses who submit absentee ballots.
Lowery insisted today that HB 1047 does not create a new barrier to the franchise, since it purports to only check voter registration. “This has been crafted very carefully to make sure that we are not adding a qualification to voting, that we are just clarifying the voter registration process,” he told the committee.
Opponents of voter ID measures typically point out that documented instances of voter fraud are few and far between, and Lowery addressed the argument that requiring photo ID is “a solution that seems to be in search of a problem.” He said it was impossible to gather “empirical evidence” about voter fraud because “the data is hard to collect [and] there is no central clearinghouse.” But, he said, lawmakers have heard “anecdotal examples” of fraud. He cited an account told by Rep. Bob Ballinger (R-Hindsville), the committee chair, who “knew of a lady in his county who went to vote, and she found that she had already voted, or someone had used her name to vote, on the other side of the county.”
But Lowery said voter ID was needed for an additional reason: To restore faith in democracy. “There is an eroding lack of confidence in the electoral process by the American people. Confidence in the accuracy of voting is only at 66 percent,” he said, adding later that a lack of trust in elections undermines democracy. He claimed four out of five Americans support voter ID, including a majority of voters from minority groups; voter ID opponents say such laws tend to disenfranchise African-American and Latino voters. “This is a way of proactively addressing the confidence issue,” Lowery said.
That statistic is likely drawn from a Gallup poll earlier this year, which did indeed show 80 percent support for voter ID laws nationwide. The same poll also found 80 percent support for early voting, a policy which generally increases access to the ballot, and 63 percent support for automatic voter registration. (Arkansas has early voting but not automatic voter registration).
“The political squabbling over efforts to pass or restrict these laws in many states is therefore not representative of public opinion,” Gallup concluded.
(Editorial comment: There’s more than a little irony in Lowery’s argument that voter ID is necessary to restore confidence in democracy. After years of Republicans making unsubstantiated allegations of widespread voter fraud in American elections and broadcasting those claims to the party base, a GOP lawmaker now laments a lack of trust in elections. This comes at the same time the President of the United States, a Republican, is utterly fabricating claims that the 2016 election was marred by rampant fraud. Now, Lowery says, voter ID is necessary to heal this mysterious loss of faith in the electoral process.)
Rep. Warwick Sabin (D-Little Rock) raised the objection that Lowery’s bill would impede voting. “I just think you’re adding a lot of new qualifications and requirements to what should be a very basic and accessible right for every citizen in our state,” he said. “Why are we asking people to do one more thing simply to exercise that fundamental right they have as a citizen of Arkansas and a citizen of the United States of America?”
Warren Searls testified against the bill on behalf of AARP Arkansas, an organization which he noted has 300,000 members in the state. He said it would be especially hard for people in rural communities to get an ID made if they did not already have one, considering they’d have to travel to the county clerk’s office (a lengthy drive in some places). He framed the issue in terms of legislators’ responsibility to ensure maximal voter participation.
“AARP does favor fair and honest elections, and the mechanisms for how to get to fair and honest elections. … But the basic objective is to try to get voters to the polls to vote, so that you as legislators can fairly represent them. … AARP supports improving voter access and maximizing participation. We see this legislation as an impediment to that objective,” Searls said.
Several legislators argued with Searls about whether AARP should be taking a position on this bill. Rep. Michelle Gray (R-Melbourne) said that his mention of AARP membership was tantamount to “threaten[ing] representatives that they are going to be voted out of office” and said her parents are AARP members who support voter ID. “I’m going to surmise that a large number of those 300,000 people will give up their AARP memberships,” Gray said, staring at Searls.
Searls said repeatedly that he does not claim to speak for any individual members of the organization.
Stu Soffer, a
former* state election commissioner and Republican from Pine Bluff, testified in favor of the measure. “This bill does not disenfranchise anyone,” he said. “I’ve been working the polls since 1998. … I can tell you that the vast majority of people automatically take out identification.” Soffer said “fraud … mainly impacts local and municipal elections” and cited an alleged voter registration fraud incident in Pine Bluff that he said the FBI is currently investigating. Lowery’s bill would not affect the voter registration process, however.
Despite a number of other members of the public who signed up to testify about the bill — including the ACLU of Arkansas — the committee shut down public comment on the measure after Soffer’s testimony. Sabin and Rep. Ken Ferguson (D-Pine Bluff) were the only audible “no” votes.
Because it seeks to amend the state constitution, HB 1047 will require a two-thirds vote of both chambers in order to become law. With Republicans in overwhelming control of both chambers, and partisan lines on the voter ID issue clearly drawn, supermajorities will likely be easy to achieve.
Even more likely will be a challenge to the law in court, should it be passed by the General Assembly. In 2014, the Arkansas Supreme Court struck down a voter ID law that had been passed by the legislature in the 2013 session. Yet Lowery said today he believes his bill can hold up to court scrutiny by changing Amendment 51 of the constitution with a two-thirds vote.
That theory rests partly on the fact that the composition of the Supreme Court has changed substantially in the past three years. When the court issued its 2014 decision, the seven justices were unanimous in saying the law should be thrown out, but gave somewhat different reasons about why. The majority’s opinion, written by now-deceased Justice Donald Corbin, said requiring a photo ID amounted to a new qualification for voting, which is impermissible under the constitution. But the four justices who held that view no longer sit on the court. However, the three justices who were on the court in 2014 and who remain there today said at the time that the voter ID law was invalid for procedural reasons: When the law passed the legislature in 2013, it did so by a simple majority rather than a two-thirds supermajority. That concurring opinion, authored by Associate Justice Courtney Goodson, said the legislative misstep was enough to throw out the law without delving into the more substantive question of whether it constitutes a new barrier to voting.
Rep. Gray expressed concern in committee today that the voter ID bill still might not survive a court challenge. Some Republicans have suggested referring a constitutional amendment to voters rather than changing Amendment 51 with legislation. Gray told Lowery today that “although I’m a co-sponsor on this bill” she was concerned that if “you end up getting this through [and] we end up getting a referred amendment out to the people, [then] people are going to be confused.”
*An earlier version of this post incorrectly said Soffer is a former state election commissioner. In fact, he continues to serve in that role, which he has held since 2012.