Opponents of Arkansas’ voter ID law had less than a month to celebrate their evident court victory against the law before the State Supreme Court reinstated the law, overturning the decision of a circuit judge who’d declared that it violated the State Constitution.
On Wednesday, the Arkansas Supreme Court ruled 5-2 that Arkansas 6th Circuit Judge Tim Fox had erred when he struck down the law, because he attempted to issue a blanket ruling encompassing the law in its entirety, when only a portion of the law — that which concerns the casting of absentee ballots — had been contested before his court.
The high court made no ruling on the merits of the voter ID law, leaving the issue for its own day in court as part of a separate Constitutional challenge currently underway in Arkansas.
The Supreme Court agreed with Fox’s original finding. Fox had remarked that the State Board of Election Commissioners had exceeded its authority when it authorized a unique way of addressing as provisional a number of absentee ballots submitted without voter ID. The Board had not put forward a clear consensus on whether a non-ID absentee voter has the right, after the fact, to be informed and to remedy their illegal (that is, non-ID-verified) ballot by presenting identification while the ballot was held in provisional status.
“At issue in the present case are certain rules promulgated by the ASBEC that establish an entire procedure by which an absentee voter, who fails to submit the identification or documentation with his or her ballot as required under section 7-5-201(d)(1)(B), shall be notified of the deficiency and can remedy the deficiency in order to have his or her ballot counted,” the high court’s decision states.
But Fox went too far in his attempt to invalidate the whole of the State’s voter ID law based on that limited challenge to only one part of the law, the court ruled.
The upshot: Voter ID is still the law in Arkansas.
A more interesting aside concerns the Arkansas Supreme Court’s take on the clear division between legislative authority and administrative duty. A quick read-through of the majority opinion in the voter ID case reveals that the Barack Obama Administration’s use of Federal agencies to essentially make laws, as well as to selectively enforce existing laws, would not fare well if Arkansas’ Supreme Court were the arbiter of such things.
Here’s a sampling:
This court has held that “there must be strict compliance with statutory provisions regarding the application for and casting of absentee ballots.” Womack v. Foster, 340 Ark. 124, 153, 8 S.W.3d 854, 871 (2000). Moreover, the law is elementary that an agency has no right to promulgate a rule or regulation contrary to a statute.
…Where the General Assembly has so evidently not provided a procedure for absentee voters similar to that provided for in-person voters, it is clear to this court that the ASBEC’s emergency rules conflict with the election code, because the ASBEC created a procedure that did not exist, and the legislature did not intend for it to exist.
The ASBEC and Webb contend that the ASBEC was given the authority to adopt any regulations necessary to fill statutory gaps and to correct oversights by the General Assembly. However, this contention contravenes the basic principle of separation of powers. By promulgating the emergency rules that it did, the ASBEC was legislating. This court has previously observed it is “not the business of the courts to legislate; and, if a change in the law in this respect is desired, the General Assembly is the branch of government whence the change must come.” Southern Tel. Co. v. King, 103 Ark. 160, 165, 146 S.W. 489, 491 (1912). It is not the courts’ business to legislate; likewise, it was not the business of the ASBEC, as part of the executive branch, to do so.