IN THE CIRCUIT COURT OF PULASKI COUNTY, ARKANSAS SIXTH DIVISION

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1 IN THE CIRCUIT COURT OF PULASKI COUNTY, ARKANSAS SIXTH DIVISION ELECTRONICALLY FILED 2014-May-02 11:05:40 60CV C06D06 : 24 Pages FREEDOM KOHLS; TOYLANDA SMITH; JOE FLAKES; and BARRY HAAS PLAINTIFFS vs. CASE NO. 60CV MARK MARTIN, in his official capacity as Secretary of State for the State of Arkansas and his official capacity as Chairman of the Arkansas State Board of Election Commissioners; RHONDA COLE, C.S. WALKER, JAMES HARMON SMITH, III, STUART SOFFER, BARBARA MCBRYDE, and CHAD PEKRON in their official capacities as Commissioners of the Arkansas State Board of Election Commissioners DEFENDANTS DEFENDANT SECRETARY S BRIEF IN SUPPORT OF RESPONSE TO PLAINTIFFS MOTION FOR PRELIMINARY INJUNCTION Background Plaintiffs filed the current lawsuit on April 16, 2014 alleging that sections of Act 595 passed by the Arkansas General Assembly in 2013 (see Paragraph 1 of Plaintiffs Complaint for Injunctive and Declaratory Relief) are unconstitutional. Through repeated filings with this Court, Plaintiffs claim that the Motion they will present for hearing on May 2 is a facial challenge to the constitutionality of Act 595. Act 595, and this challenge, must be read in a broader perspective. In order to comply with the Help America Vote Act (a federal law), Arkansas like every state in the union requires first time voters who register by mail to present photographic identification at the polls. 42 U.S.C (b). In other words, photographic identification is a federal requirement for those who register by mail and fail to provide identifying information on registration. The 1

2 Arkansas General Assembly, in Act 595, did nothing more than close a loophole in federal law, by requiring voters who register in person (or through a voter registration drive presented directly to the County Clerk) to provide the same identification already required of mail registrants by federal law. Moreover, as part of its regular, systematic compliance with federal law, Act 595 adds the same procedural mechanism showing photographic identification to all voters at the polls. See, 42 U.S.C. 1973gg-6, National Voter Registration Act. There is nothing discriminatory about complying with this federal law concerning the administration of voter registration laws. 42 U.S.C. 1973gg-6(b) (confirmation of voter registration). In this Motion for Preliminary Injunction, Plaintiffs make a facial challenge to the constitutionality of Act 595 of A facial challenge to a legislative Act is the most difficult challenge to mount successfully, since Plaintiffs, as challengers, must establish that no set of circumstances exists under which the Act would be constitutionally valid. United States v. Salerno, 481 U.S. 739, 745 (1987); see, Washington State Grange v. Washington State Republican Party, 522 U.S. 442, slip op. at 6 (1988). [Salerno quoted with authority in Linder v. Linder, 348 Ark. 322, 72 S.W.3d 841, 856 (2002).] A facial challenge must fail where the statute has a plainly legitimate sweep. Washington State Grange, id., quoting, Washington v. Glucksberg, 521 U.S. 702, and n. 7 (1997) (Stevens, J., concurring). As the facts would show, on a fully-developed record, any successful voters meeting Act 595 s procedural requirements obviates any claims of facial invalidity. In the line of cases cited with approval in Linder, id., the United States Supreme Court has been explicit: any challenger who could prevail on an as-applied challenge to a legislative Act should not be permitted to make a facial challenge. Brockett v. Spokane Arcades, 472 U.S. 491 (1985). A facial challenge is prospective, because it seeks to prevent a law from being 2

3 enforced on the claim that any and every enforcement, in itself, would violate someone s constitutional rights. An as-applied challenge is retrospective, as it seeks to redress a constitutional violation that has already purportedly occurred. On an as-applied challenge, [t]he statute may be declared invalid to the extent of its purported unconstitutionality, but otherwise is left intact. Brockett, 472 U.S. at 504. Facial challenges, consequently, are, and ought to be, rare; severability is the device through which statutes constitutional problems should normally be cured. Plaintiffs as yet unsubstantiated challenge, like every facial challenge, is disfavored for several reasons. Claims of facial validity often rest on speculation. As a consequence, they raise the risk of premature interpretation of statutes on the basis of barebones records. Facial challenges also run contrary to the fundamental principle of judicial restraint that courts should neither anticipate a question of constitutional law in advance of the necessity of deciding it nor formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied. Finally, facial challenges threaten to short circuit the democratic process.... Washington State Grange, id., slip op. at 7-8 (citations supporting quotations omitted). Here, Plaintiffs facial challenge fails. On April 22, 2014 Plaintiffs filed a Motion for Preliminary Injunction and requested an immediate hearing. On April 23 the Court scheduled a hearing on the Motion for Preliminary Injunction to be held on May 2, After the hearing was scheduled, Plaintiffs filed two Supplements to their Motion, one on April 25 and the second on April 30. Plaintiffs Complaint and original Motion for Preliminary Injunction appear to raise both facial and as-applied challenges. Plaintiffs claimed in their first Supplement that they intend to 3

4 raise only a facial challenge, but failed to strike any pleadings or affidavits supporting their asapplied claims. Plaintiffs Complaint and Motion for Preliminary Injunction do not identify the specific sections of Act 595 that Plaintiffs believe are unconstitutional. It appears that Plaintiffs make no claim of unconstitutionality concerning any requirements placed on absentee voters to include identification with their absentee ballot. Plaintiffs arguments appear to focus on election-day and early voters who go to a polling location to cast their ballot, but without any specific listing from Plaintiffs as to which sections of Act 595 they believe to be unconstitutional, it is unclear exactly what Plaintiffs are challenging. Standing Plaintiffs have not demonstrated that they have standing to bring this lawsuit. In order to have standing to challenge the constitutionality of a statute, Plaintffs must have suffered injury or belong to a class that is prejudiced. Ghegan & Ghegan, Inc. v. Weiss, 338 Ark. 9, 991 S.W.2d 536 (1999), citations omitted. Stated differently, plaintiffs must show that the questioned act has a prejudicial impact on them. Id., citing Tauber v. State, 324 Ark. 47, 919 S.W.2d 196 (1996); Garrigus v. State, 321 Ark. 222, 901 S.W.2d 12 (1995). At this point, three Plaintiffs have only alleged that they do not currently have proof of identity (Kohls, Smith and Flakes). They did not allege that they cannot obtain photo identification, including the free photo identification card issued by a county clerk. The same three Plaintiffs have not alleged that they attempted to vote and were turned away because they did not have and could not obtain photo identification. They have suffered no injury and no prejudicial impact has been demonstrated. 4

5 Plaintiff Haas has alleged that he has sufficient photo identification to meet the requirements of Act 595 of 2013, but refused to show his photo identification. (See paragraph 38 of Plaintiffs complaint). Refusal to comply with the law does not provide Plaintiff Haas standing to bring a facial challenge to the Constitutionality of Act 595. Plaintiffs Have No Basis for Seeking a Preliminary Injunction Plaintiffs, in their Complaint and Motion for Preliminary Injunction have cited no statutory basis for any injunctive relief. In both instances, Plaintiffs rely on the Arkansas Declaratory Judgment Act, Ark. Code Ann , , and See Paragraph 1 of the Complaint. Plaintiffs claim of subject matter jurisdiction is also based entirely on Ark. Code Ann and See Paragraph 8 of the Complaint. Plaintiffs Motion for Preliminary Injunction cites the same statutory sections. That is an insufficient basis for relief. See, Cancun Cyber Café and Bus. Center v. City of North Little Rock, 2012 Ark. 154 (2012); citing, Nelson v. Arkansas Rural Medical Practice Loan and Scholarship Board, 2011 Ark. 491, at 12 (2011). Additionally, any relief Plaintiffs seek, other than a declaratory judgment, is barred by sovereign immunity. Ark. Const. art. 5, 20. Article 5, Section 20 provides that [t]he State of Arkansas shall never be made a defendant in any of her courts. Ark. Dep t of Cmt. Corr. v. City of Pine Bluff, 2013 Ark 36, *3 (Ark. 2013). If a judgment for the Plaintiffs will operate to control the action of the State or subject it to liability, then the suit is barred by sovereign immunity unless an exception applies. Id. at *3-4; See also Arkansas Dep t of Envtl. Quality v. Al-Madhoun, 374 Ark. 28 (2008); See also Holt v. Priest, 326 Ark. 277, 278 (1996). 5

6 Plaintiffs have brought this suit seeking declaratory and injunctive relief. A judgment for Plaintiffs granting an injunction prohibiting the enforcement of a valid Arkansas statute would, without question, operate to control the action of the State. The Declaratory Judgment Act does not provide any waiver of sovereign immunity thus this court is without jurisdiction to issue an injunction. Furthermore, Plaintiffs have failed to argue any exception applies to sovereign immunity. Other than declaratory relief, all other relief Plaintiffs seek, including attorney s fees and costs, are barred by sovereign immunity. Standard of Review for Preliminary Injunction Arkansas courts have employed a two prong test when determining whether to issue a preliminary injunction pursuant to Rule 65 of the Arkansas Rules of Civil Procedure. The trial court must consider: (1) whether irreparable harm will result in the absence of an injunction or restraining order, and (2) whether the moving party has demonstrated a likelihood of success on the merits. Baptist Health v. Murphy, 365 Ark. 115, 226 S.W.3d 800, 806 (2006) (citing Three Sisters Petroleum, Inc. v. Langley, 348 Ark. 167, 72 S.W.3d 95 (2002)). The prospect of irreparable harm or lack of an otherwise adequate remedy is the foundation of the power to issue injunctive relief. Ibac v. Becker, 265 S.W.3d 755, 371 Ark. 330 (2007). Harm is normally only considered irreparable when it cannot be adequately compensated by redress in a court of law. United Food and Com. Workers v. Wal-Mart Stores, Inc., 120 S.W.3d 89, 353 Ark. 902 (2003)(citing Kreutzer v. Clark, 271 Ark. 243, 607 S.W.2d 670 (1980)). No Irreparable Harm It is essential, prior to issuing a preliminary injunction, for the court to find that failure to issue a preliminary injunction will result in irreparable harm to the applicant. Three Sisters 6

7 Petroleum, Inc. v. Langley, 72 S.W.3d at 100. Thus, the first issue the court must consider is whether irreparable harm will result in the absence of an injunction. Where a hearing will be held, irreparable harm must be shown, Ibac, 265 S.W.3d at 759, at the hearing. Plaintiffs must also show that there is no other remedy available. United Food and Com. Workers v. Wal-Mart Stores, Inc., 120 S.W.3d 89, 353 Ark. 902 (2003). Plaintiffs have failed to meet their burden of proving that irreparable harm will result in the absence of an injunction under the facts and circumstances set forth in the Complaint. While Plaintiffs claim that without an injunction they will not be allowed to vote in the upcoming election, this claim is purely speculative and likely false. Act 595 does not prohibit voting; it only provides a procedural method of showing who is casting a vote, including specifically providing a procedure for those who are unable to afford photo identification. Plaintiffs have attempted to bypass the more relevant issue of whether they can obtain proof of identity or otherwise meet the requirements of Act 595. Section 2 of Act 595 states as follows: (d)(1) Except as provided in subdivision (d)(2) and subsection (e) of this section, any person desiring to vote in this state shall: (A) Present proof of identity to the election official when appearing to vote in person either early or at the polls on election day; or (B) When voting by absentee ballot, submit with the ballot a copy of a current and valid photo identification or a copy of a current utility bill, bank statement, government check, paycheck, or other government document that shows the name and address of the voter unless the voter is: (i) A member of the uniformed services on active duty who is absent from the county on election day because of active duty; (ii) A member of the merchant marine who is absent from the county on election day because of his or her service in the merchant marine; or 7

8 (iii) The spouse or dependent of a member identified in (d)(1)(b)(i) or (d)(1)(b)(ii) who is absent from the county on election day because of the active duty or service of the member. (2)(A) A person who is a resident of a long-term care or residential care facility licensed by the state is not required to provide proof of identity before voting. (B) A person not required to provide proof of identity under subdivisions (d)(2)(a) of this section shall provide documentation from the administrator of the facility attesting that the person is a resident of the facility. When a voter, who does not meet an exception to the proof of identity requirements, is unable to provide proof of identity, that voter may cast a provisional ballot. Section 4 of Act 595 reads in part: (B)(i) If a voter is unable to provide proof of identity, the poll worker shall: (a) Indicate on the precinct voter registration list that the voter did not provide proof of identity; and (b) Permit the voter to cast a provisional ballot. (ii) When a voter is unable to provide proof of identity, the voter and the election official shall follow the procedure under A provisional ballot cast by a voter who failed to provide proof of identity will be counted if the voter subsequently provides proof of identity or if the voter provides an affidavit that the voter cannot provide proof of identity because the voter is either indigent or has a religious objection to being photographed. Section 5 of Act 595 reads in part: (c) A provisional ballot cast by a voter who did not provide proof of identity shall be counted if: (1) The voter returns to the county board of election commissioners or the county clerk by 12:00 p.m. on the Monday following the election and: (A) Provides proof of identity; or (B) Provides an affidavit stating that the voter cannot provide identity because the voter: (i) Is indigent; or 8

9 (ii) Has a religious objection to being photographed; and (2) The voter has not been challenged or required to vote a provisional ballot for any other reason. One of the Plaintiffs, Barry Haas, has admitted in the Complaint that he has identification that meets the requirements of Act 595. It cannot be said that without a preliminary injunction of Act 595, Mr. Haas will suffer irreparable harm. Mr. Haas possesses the identification necessary to prove his identity when he appears at the polls. If Mr. Haas refuses to show that identification, it will only be his own actions that result in his ballot not counting, not Act 595. The other three Plaintiffs claim in their Complaint that they do not have proof of identity to meet the requirements of Act 595. This, standing alone, is simply not enough to meet the standard of irreparable harm, thus the preliminary injunction should be denied. Three of the Plaintiffs may claim they do not currently have identification that meets the requirement to vote in-person, but none of the three Plaintiffs claim they will be unable to obtain proof of identity before the election nor have they alleged that they will not be required to obtain photo identification for another purpose prior to May 20. Nor do the three Plaintiffs allege that they have made or unable to make any attempt at obtaining proof of identity or a free voter identification card prior to May 20. While early voting begins May 5, 2014, the election is May 20, If the three Plaintiffs do not want to provide a simple affidavit that they are unable to afford identification, there is still ample time to remedy their problem before presenting themselves to vote. Alternatively, if the Plaintiffs fail to obtain identification prior to the election, Act 595 allows them to cast a provisional ballot. Ultimately, this ballot will be counted if they simply provide 1 Plaintiffs incorrectly state that the statewide preferential primary and nonpartisan election occurs on May 22, The correct date is Tuesday, May 20,

10 proof of identity or an affidavit that states the voter cannot provide proof of identity because the voter is either indigent or has a religious objection to being photographed by noon the following Monday. 2 Furthermore, it is unclear whether the Plaintiffs intend to vote at the polls on May 20, inperson, during early voting, or by absentee voting. If any Plaintiff will be unavoidably absent from their polling location on election day or unable to attend the polls on election day because of illness or physical disability, that voter may vote absentee and is allowed to provide a broader range of documentation to meet the identification requirement. A.C.A Absentee voters may include a utility bill, bank statement, government check, paycheck, or other government document that shows the name and address of the voter to satisfy the identification requirement of Act 595. A.C.A While Plaintiffs claim they do not currently have proof of identity, they do not make any claim they are unable to obtain proof of identity prior to the election. Instead, they simply make conclusory statements in Plaintiffs Complaint that they will face unidentified financial and other burdens in having to obtain documentation that would allow them to meet the proof of identity requirement of 595. Plaintiffs conveniently ignore the second half of Section 5 of Act 595 which added Ark. Code. Ann That section requires the Secretary of State to provide by rule for the issuance of a voter identification card by the county clerk that may be requested by an individual to be used as proof of identity when appearing to vote in person. The statute goes further to require the issuance of the card without payment of a fee or charge to any individual who does 2 The actual deadline will be Tuesday, May 27. Monday falls on Memorial Day and election law deadlines that fall on a Saturday, Sunday, or legal holiday fall to the next day which is not a Saturday, Sunday, or legal holiday. Amend. 51 9(l); A.C.A

11 not have another valid form of proof of identity and is registered to vote or will be eighteen years of age at the next election and has submitted a voter registration application. Ark. Code Ann Thus if any of the Plaintiffs do not currently have proof of identity, they are eligible for a free voter identification card. Secretary of State has assured that free voter identification cards are available in every county including Pulaski County. Under the Rules on Voter Identification promulgated by the Arkansas Secretary of State, the County Clerk shall require presentation of the following information before issuing a Voter Identification Card: (a) A photo or nonphoto identity document which includes both the applicant s full legal name and date of birth; (b) Documentation showing the applicant s name and residential address; and (c) Evidence that the applicant is registered to vote in the county where he or she is submitting the Application or will be at least eighteen (18) years of age at the next election and has submitted a voter registration application that has been received by the County Clerk to whom he or she is submitting the Application for an identification card. 3 The Rules on Voter Identification (hereinafter Rules ) are much more lenient than laws in other states in that the Rules do not limit the issuance of a voter identification card to only those applicants who present a passport or birth certificate. While those are acceptable under Rule 7.02, the Rules allow applicants a myriad of other options to prove their identity to obtain a free voter identification card that do not require the applicant to incur any cost. A list of a few examples of documents that constitute photo or nonphoto identity documents referenced in Rule 7.02(a) are listed in Rule Rule 7.03 reads as follows: 3 See Exhibit A 7.02 of the Rules on Voter Identification, Arkansas Secretary of State, Effective January 1,

12 7.03 Any of the following shall constitute a photo or nonphoto identity document required in Section 7.02 (a) above, if it contains both the applicant s full legal name and date of birth: (a) Original Birth Certificate or certified copy of a birth certificate; (b) Copy of Marriage License Application; (c) Notarized copy of Applicant s State or Federal Tax Return filed for the previous calendar year; (d) Paycheck or paycheck stub bearing the imprinted name of the applicant s employer; (e) An original of a Medicare or Medicaid statement received by the applicant; (f) An original of the annual social security statement received by the applicant for the current or preceding year; (g) Certified school record or transcript for the current or preceding calendar year; (h) Naturalization documentation; or (i) DD-214 form issued by the federal government to member of the military. It is important to note that this is not an exhaustive list of the documents that could meet the identification verification requirements of Rule The Rules on Voter Identification further provide examples that would meet the documentation requirement in Rule 7.02(b) 4 in Rule Rule 7.04 provides: 7.04 Any of the following shall be acceptable as documentation showing the applicant s name and residential address required in Section 7.02 (b) above, if the documentation contains the applicant s name and residential address: (a) Utility or cable bill issued within the last sixty (60) days; (b) Bank statement issued within the last sixty (60) days; (c) Notarized copy of Applicant s State or Federal Tax Return filed for the previous calendar year; 4 A single document could meet both requirements in 7.02(a) and 7.02(b) of the Rules on Voter Identification. 12

13 (d) Currently valid residential rental contract and/or receipt for payment made within the last sixty (60) days for residential rent payments; (e) Homeowners insurance policy or bill for the current or preceding calendar year; (F) Mortgage, payment coupon, deed, or property tax bill for the current year; (G) Personal Property tax bill for the current or preceding calendar year; (H) Current automobile registration receipt; or (I) W-2 issued by applicant s employer for the preceding calendar year. Assuming, but not conceding, that three of the Plaintiffs do not currently have proof of identity sufficient for in-person voting, Act 595 provides ample alternatives to ensure that Plaintiffs votes are counted. If Plaintiffs do not have proof of identity, they are eligible to obtain a free voter identification card from their county clerk. Furthermore, if Plaintiffs fail to obtain a free voter identification card, they may cast a provisional ballot. This ballot will be counted as long as the voter provides proof of identity or an affidavit stating the voter cannot provide proof of identity because the voter is either indigent or has a religious objection to being photographed within the time designated by statute after voting. Therefore, because the Plaintiffs have failed to demonstrate that they are unable to obtain proof of identity, including a free voter identification card, or provide an appropriate affidavit after casting a ballot, they have failed to show they will suffer irreparable harm without an injunction of the entirety of Act 595. Plaintiffs Motion for Preliminary Injunction must be denied. Plaintiffs Are Not Likely To Succeed On The Merits The second issue the court must consider when considering a motion for preliminary injunction is whether Plaintiffs have demonstrated a likelihood of success on the merits. Baptist Health, 226 S.W.3d at 806 (2006) (citations omitted). Plaintiffs have failed to meet this burden. 13

14 Act 595 does not impose an additional qualification upon a voter. Act 595 simply provides a de minimis procedure and regulatory means by which a qualified voter proves that he or she meets the qualifications set out in art. 3, 1 of the Arkansas Constitution. Moreover, Act 595 does not impermissibly impair Plaintiffs right to vote under art. 3, 2 as it provides a method for obtaining a free voter identification card and other ways to ensure their vote is counted. Act 595 is Presumed Constitutional Acts of the General Assembly are presumed constitutional and Plaintiffs bear the burden of proving that any provision of Act 595 of 2013 is unconstitutional. Kellar v. Fayetteville Police Department, 339 Ark. 274, 5 S.W.3d 402 (1999), citing ACW, Inc. v. Weiss, 329 Ark. 302, 310, 947 S.W.2d 770, 774 (1997). Legislative acts will be struck down only when there is clear incompatibility between the act and the Arkansas Constitution. Robert D. Holloway, Inc. v. Pine Ridge Addition Residential Property Owners, 332 Ark. 450, 453, 966 S.W.2d 241 (1998). [S]tatutes are presumed to be framed in accordance with the Constitution, [and] should not be held invalid for repugnance thereto unless such conflict is clear and unmistakable. Kellar v. Fayetteville Police Department, 339 Ark. 274, 5 S.W.3d 402 (1999), citing Board of Trustees of Mun. Judges & Clerks Fund v. Beard, 273 Ark. 423, 426, 620 S.W.2d 295, 296 (1981). See also Hobbs v. Jones, 2012 Ark. 293 (2012); Paschal v. State, 2012 Ark. 127 (2012); Weiss v. Mcfadden, 353 Ark. 868, 120 S.W.3d 545 (2003). There is no showing of a clear and unmistakable conflict between Act 595 and the Arkansas Constitution by Plaintiffs. Act 595 does not add a qualification under art. 3, 1 of the Arkansas Constitution nor does it impair Plaintiffs right to vote under art. 3, 2. Furthermore, a facial invalidation of a statute is only appropriate if it can be shown that under no circumstances can the statute be constitutionally 14

15 applied. Linder v. Linder, 348 Ark. 322, 72 S.W.3d 841, 856 (2002) (citing United States v. Salerno, 481 U.S. 739, 107 S.Ct (1987). Plaintiffs have not alleged that the provisions of Act 595 concerning absentee voters are unconstitutional. Consequently, Plaintiffs facial attack on the entirety of Act 595 (as prayed) must fail. Plaintiffs cannot allege that under no circumstances can the statute be constitutionally applied when they make no facial challenge at all to the absentee voting provisions. Act 595 should be given the interpretation that will uphold its constitutionality. As the Arkansas Supreme Court stated in Holloway, supra: Significantly, when the construction of a statute is at issue, the statute should be given that interpretation that will sustain rather than defeat it, and effect must be given, if possible, to every part of the statute. In construing a statute, we will presume that the General Assembly, in enacting it, possessed the full knowledge of the constitutional scope of its powers, full knowledge of prior legislation on the same subject, and full knowledge of judicial decisions under preexisting law. McLeod, Comm r of Revenues v. Santa Fe Trail Transp. Co., 205 Ark. 225, 168 S.W.2d 413 (1943). We must also give effect to the legislature s intent, making use of common sense and giving words their usual and ordinary meaning. Kyle v. State, 312 Ark. 274, 849 S.W.2d 935 (1993). 332 Ark. at 453. Act 595 Does Not Add an Additional Qualification to Art. 3, 1. Act 595 does not impose an additional qualification on the right to vote. Act 595 merely provides a procedure and regulatory means by which a voter who appears at the polls to vote or casts an absentee ballot proves they meet the qualifications of art. 3, 1 of the Arkansas Constitution. The Arkansas Constitution is clear. A person only has the right to vote if they are 15

16 a: (1) A citizen of the United States; (2) A resident of the State of Arkansas; (3) At least eighteen (18) years of age; and (4) Lawfully registered to vote in the election. Art. 3, 1. Although the Arkansas Supreme Court has not addressed the issue of whether a proof of identity requirement is an additional voting qualification, the overwhelming majority of courts in other jurisdictions have specifically refused to classify photo identification requirements as an additional qualification. See City of Memphis v. Hargett, 414 S.W.3d 88 (Tenn. 2013)(The court concluded that a photo ID requirement cannot be fairly characterized as an additional voting qualification and is more properly classified as a regulation pertaining to an existing voting qualification. ); See also League of Women Voters of Ind., Inc. v. Rokita, 929 N.E.2d 758 (Ind. 2010)(Court stated that a photo identification requirement is merely regulatory in nature and functions as an election regulation to verify the voter s identity.); See also Democratic Party of Ga., Inc. v. Perdue, 707 S.E.2d 67, 72 (Ga. 2011)(The Court held that a photo identification requirement was not an additional qualification but instead fell within the legislatures ability to determine how qualifications required by the state constitution may be determined.). Plaintiffs argue that the proof of identity requirements contained in Act 595 are similar to an oath requirement struck in Rison et al v. Farr, 24 Ark. 161 (1865) as an additional unconstitutional qualification added by the legislature. Plaintiffs are misguided. The act under consideration by the Rison Court ha[d] a two-fold operation. Id. at 171. Part of the law required the voter, before depositing his vote, swear that he would support the United States Constitution and the Arkansas constitution. Id. The Court stated that this part of the law was prospective and required nothing more of the voter than was already required. Id. It did not look into the voter s past history nor did it require the voter to purge himself of treason. Id. The Court stated that this part of the law did not restrict the right to vote, it did not add qualifications 16

17 to vote and thus was free from the objection of unconstitutionality. Id. In other words, an oath requirement was a valid procedural mechanism for voters under Rison itself. The second part of the law in question in Rison required the voter, before depositing his vote, to swear that he has not voluntarily borne arms against the United States or Arkansas nor aided the confederate authorities since April 18, Id. at 172. The Court determined that this effectively prevented anyone who had voluntarily borne arms against the United States, Arkansas, or aided the confederate authorities since April 18, 1864 from voting. Id. The Rison Court noted that this part of the law was retrospective in that it essentially required the voter to purge himself of treason. Id. The Court stated this was nothing more than a prohibition on the right to vote for those individuals who had borne arms against the state or the United States. Id. The Court went on to say that the legislature did have some authority to regulate the manner of holding elections, could compel a voter to take an oath to the effect he met the qualifications to vote prescribed in the constitution, fix the time of holding elections and the manner of making returns, etc. Id. The proof of identity requirement in Act 595 is no more burdensome than the oath upheld in Rison et al v. Farr. Requiring a voter to prove their identity before voting does nothing more than provide a procedure for the voter to prove they meet the qualification requirements in art. 3, 1 of the Arkansas Constitution, primarily the registration requirement. By requiring photo identification, the election official can verify that the individual presenting himself or herself to vote is in fact the registered voter he or she claims to be and thus meets the qualifications to vote. The proof of identity requirement of Act 595 is not an additional qualification. It is nothing more than a procedure by which election officials verify, and voters prove, that the voter meets the qualifications of art. 3, 1. 17

18 Even before the passage of Act 595 of 2013, voters have been required to provide some sort of proof that he or she is a qualified voter, registered to vote, and assigned to the precinct where the voter wishes to cast his or her voter. Ark. Code Ann (a)(1) (7) was not amended by Act 595. It reads in part: (a) Before a person is permitted to vote, the poll worker shall: (1) Request the voter to identify himself or herself in order to verify the existence of his or her name on the precinct voter registration list; (2) Request the voter, in the presence of the poll worker, to state his or her address and state his or her date of birth; (3) Determine that the voter s date of birth and address are the same as those on the precinct voter registration list; (4) If the date of birth given by the voter is not the same as that on the precinct voter registration list, request the voter to provide identification as the poll worker deems appropriate; (5)(A) If the voter s address is not the same as that on the precinct voter registration list, verify with the county clerk that the address is within the precinct. (B) If the address is within the precinct, request the voter to complete a voter registration application form for the purpose of updating county voter registration record files. (C) If the address is not within the precinct: (i) Verify with the county clerk s office the proper precinct; and (ii) Instruct the voter to go to the polling site serving that precinct in order for his or her vote to be counted. None of those requirements listed in Ark. Code Ann is challenged herein. None of those requirements adds an additional qualification in violation of the Arkansas Constitution. They are merely procedures for protecting the integrity of the election and 18

19 confirming that those who appear before the poll worker to cast their vote are in fact the qualified elector whom they claim to be and are properly registered in the precinct where they wish to cast their vote. Plaintiffs suit, however, would have the effect of making those security provisions unconstitutional as well. Plaintiffs go too far. Act 595 merely adds one more identity requirement to protect the integrity of the election. Verifying a registration is not impermissible. Protecting against voter fraud is a legitimate concern and the Legislature, with Act 595 took appropriate steps to meet that goal. Plaintiffs have failed to demonstrate a likelihood of success on the merits of their facial challenge to Act 595 because Plaintiffs have failed to show that under no circumstances can the statute be constitutionally applied. Linder, 348 Ark. 322, 72 S.W.3d 841, 856 (2002) (citing United States v. Salerno, 481 U.S. 739, 107 S.Ct (1987). Therefore, Plaintiffs Motion for Preliminary Injunction should be denied. Act 595 Is Not Unconstitutional As-Applied To Plaintiffs and Does Not Impermissibly Impair The Right of Suffrage Under Art. 3, 2 Despite stating in the Plaintiffs Brief in Support of Plaintiffs Motion for Preliminary Injunction that Plaintiffs specifically seek an injunction based on the wording of section 1 of Article 3 of the Arkansas Constitution and having stated to the Court that Plaintiffs seek a preliminary injunction only on a facial challenge to the proof of identity provisions of Act 595, Plaintiffs argue in their Brief in Support of their Motion that Act 595 is unconstitutional asapplied to Plaintiffs. This argument should not be considered by the Court as Plaintiffs have only made conclusory arguments concerning any alleged burden imposed by Act 595, have not responded to discovery at this time, failed to attend depositions, and moved to quash any 19

20 subpoenas related to this information. Due to Plaintiffs choices to wait until the eve of election to register to vote, file this action, and make a Motion for Preliminary Injunction, Defendants have been frustrated from obtaining factual information related to any as-applied claims and fully developing these issues for the Court s consideration. For these reasons, any as-applied challenge should not be considered by the Court. However, in an excess of caution and to preserve any argument if an appeal is necessary, Defendant Secretary includes the following as a response to Plaintiffs as-applied challenge. While Plaintiffs argue that Act 595, as applied to the Plaintiffs, violates art. 3, 2 of the Arkansas Constitution, Plaintiffs have only advanced one argument in this respect. Plaintiffs argue that three of the Plaintiffs do not currently have proof of identity. However, Plaintiffs have failed to address any alleged burden in obtaining proof of identity and thus have failed to prove they are likely to succeed on the merits of any argument that Act 595, as applied to Plaintiffs, violates the Arkansas Constitution. Likewise, Mr. Haas s claims of being an objector are only subject to the premature as-applied analysis that Plaintiffs have claimed to have abandoned. While Plaintiffs argue that the entirety of Act 595 is subject to strict scrutiny, Plaintiffs are misguided. The U.S. Supreme Court has previously stated: [T]o subject every voting regulation to strict scrutiny and to require that the regulation be narrowly tailored to advance a compelling state interest would tie the hands of States seeking to assure that elections are operated equitably and efficiently. Accordingly, the mere fact that a State s system creates barriers... tending to limit the field of candidates from which voters might choose... does not of itself compel close scrutiny. Instead... a more flexible standard applies. A court considering a challenge to a state election law must weigh the character and magnitude of the asserted injury to the rights protected by the First and Fourteenth Amendments that the plaintiff seeks to vindicate against the precise interests put forward by the State as justifications for the burden imposed by its rule, taking into consideration the extent to which those interests make it necessary to burden the plaintiff s rights. 20

21 Burdick v. Takushi, 504 U.S. 428, (1992) (internal citations omitted). States that have addressed similar challenges have employed the lenient standard described by the U.S. Supreme Court nearly without exception. See, e.g. Democratic Party of Georgia, Inc. v. Perdue, 707 S.E.2d 67 (Ga. 2011); League of Women Voters of Indiana, Inc. v. Rokita, 929 N.E.2d 758 (Ind. 2010). Even the Missouri Supreme Court applied this standard in Weinschenk v. State of Missouri, 203 S.W.3d 201 (Mo. 2006), upon which the Plaintiffs rely so heavily, before deciding the matter on grounds specific to Missouri s voter identification law that do not apply to this case. Additionally, the Arkansas Supreme Court has adopted an almost identical standard to the federal standard when reviewing equal protection challenges to fundamental rights. See Talbert v. State, 367 Ark. 262, 239 S.W.3d 504 (2006). Undoubtedly, the State of Arkansas has an interest in verifying new voter registrations at the polls, deterring and detecting voter fraud, protecting the integrity and reliability of the electoral process, safeguarding voter confidence, and preventing unqualified persons from voting in elections. The United States Supreme Court has previously stated that [t]here is no question about the legitimacy or importance of the State s interest in counting only the votes of eligible voters. Crawford v. Marion County Election Bd., 128 S.Ct. 1610, 1619 (2008). The Court went on to state that the interest in orderly administration and accurate recordkeeping provides a sufficient justification for carefully identifying all voters participating in the election process. Id.; see also Walker v. Jackson, 391 F. Supp. 1395, 1401 (E.D. Ark. 1975)( [T]he State has a valid and compelling interest in the fairness, efficiency, and orderly operation of its election machinery, and in the integrity of the electoral process.). There is, unfortunately, ample evidence of fraud in voting in Arkansas. See, Willis v. Crumbly, 371 Ark. 517 (2007); Willis v. Crumbly, 368 Ark. 5 (2006); United States of America v. 21

22 Hudson Hallum, et al., No. 4:12-CR-230 (USDC, Eastern District of Arkansas ). [The Willis v. Crumbly matter also ended in an historic trial in the Arkansas Senate (in 2008), i.e., the same place where SB 2, now Act 595, originated.] Requiring photo identification is not unduly burdensome. Arkansans must provide photo identification before engaging in many activities, including, but not limited to, the following: Selling precious metals or items, Ark Code Ann and ; sell scrap metal, Ark. Code Ann ; Before a minor is allowed to undergo body art, both minor and parent must present photo identification, Ark. Code Ann ; Before becoming a licensed massage therapist, Ark. Code Ann ; Before purchasing pseudoephedrine, Ark. Code Ann through While Plaintiffs claim that the burden of proof of identity is substantial and unconstitutional, they provide nothing to support this argument in their facial challenge nor do they make any additional argument that tends to prove this conclusory statement. As there is no evidence that any burden has been placed on Plaintiffs nor have Plaintiffs attempted to specify or quantify any alleged burden, interests put forth by the State need only be minimal. The Plaintiffs have failed to show that Act 595, as applied to Plaintiffs, places any burden on Plaintiffs. The substantial interests put forth by the State are easily justified and meet the applicable flexible standard. Declaratory relief is inappropriate at this juncture. There has been insufficient time for Defendants to respond to the Motion for Preliminary Injunction. ARCP 56 (21 day response time). Discovery is outstanding, thereby precluding entry of summary judgment. First National Bank v. Newport Hosp. & Clinic, 281 Ark. 332, 663 S.W.2d 742 (1984); Putts v. City of Springdale, 23 Ark. App. 182, 745 S.W.2d 144 (1988). 22

23 Conclusion For the reasons set forth above and because Plaintiffs have failed to show both that irreparable harm will result in the absence of a preliminary injunction and a likelihood of success on the merits, the Court should deny Plaintiffs Motion for a Preliminary Injunction. Plaintiffs are not entitled to any relief at this time and their Motion for Preliminary Injunction should be denied. Dated this 2 nd day of May, Respectfully submitted, HONORABLE MARK MARTIN SECRETARY OF STATE In his Official Capacity, Defendant By: /s/ AJ Kelly AJ Kelly Deputy Secretary of State PO Box Little Rock, AR (501) Fax: (501) And By: /s/ Martha Adcock Martha Adcock General Counsel L. Justin Tate Associate General Counsel Secretary of State Suite 256 State Capitol 500 Woodlane Avenue Little Rock, AR (501) Fax: (501)

24 CERTIFICATE OF SERVICE The undersigned hereby certifies that the foregoing document was served via the Electronic Filing system on this 2 nd day of May, 2014, providing service to counsel of record. /s/ Martha Adcock Martha Adcock General Counsel 24