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-Apr-22 11:13:16 60CV C06D06 : 20 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 PLAINTIFFS BRIEF IN SUPPORT OF THEIR MOTION FOR PRELIMINARY INJUNCTION Plaintiffs bring this case pursuant to the Arkansas Code Annotated , -103, and -104, to challenge the constitutionality of certain portions of Act 595 of the 89 th General Assembly of Arkansas (hereinafter Act 595 ) that amended various Arkansas Code sections to include a new qualification that all Arkansas residents shall provide proof of identity before they can vote in an election. The proof of identity provisions contained in Act 595 and the subsequently promulgated Rules of the Arkansas State Board of Election Commissioners infringe on the constitutional right of all Arkansas voters by placing additional qualifications on the right to vote. As the proof of identity provisions included in Act 595 and the Rules of the Arkansas State Board of 1

2 Election Commissioners implementing Act 595 violate Sections 1 and 2 of Article 3 of the Arkansas Constitution, they are unconstitutional. Plaintiffs are citizens of the United States, residents of Pulaski County, Arkansas, registered voters in Little Rock, Pulaski County Arkansas, and over the age of Plaintiffs desire to vote in the upcoming May Primary Election, however Separate Plaintiffs Kohls, Smith, and Flakes do not have any proof of identity that would meet the qualification to vote contained in Act 595. In addition, as to Separate Plaintiff Haas, though he has documentation that would qualify as proof of identity pursuant to Act 595, Plaintiff Haas objects to providing such documentation to meet the qualification. In addition, Plaintiff Haas has previously refused to provide proof of identity in a previous election in Arkansas and his vote was not counted. 2 Pursuant to Rule 65 of the Arkansas Rules of Civil Procedure, Plaintiffs ask the Court to issue a preliminary injunction to prevent irreparable harm to them, and all other qualified Arkansas voters, that will result if Act 595 is enforced and they are not allowed to vote in the upcoming May 22, 2014, primary election. Plaintiffs specifically seek an injunction based on the wording of section 1 of Article 3 of the Arkansas Constitution. I. STATEMENT OF FACTS AND LAW The right to vote in Arkansas is so important, that not only does the Arkansas Constitution set forth the only legal qualifications for voting in Arkansas; it also provides 1 See Exhibit A (affidavit of Separate Plaintiff Kohls), Exhibit B (affidavit of Separate Plaintiff Smith), Exhibit C (affidavit of Separate Plaintiff Flakes), and Exhibit D (affidavit of Separate Plaintiff Haas). 2 See Exhibit E (proof of Separate Plaintiff Haas vote not being counted). 2

3 that any law that even infringes on the right is unconstitutional. Section 2 of Article 3 of the Arkansas Constitution provides that: Elections shall be free and equal. No power, civil or military, shall ever interfere to prevent the free exercise of the right of suffrage; nor shall any law be enacted whereby such right shall be impaired or forfeited, except for the commission of a felony, upon lawful conviction thereof. Prior to the enactment of Act 595, voters in Arkansas elections were not required to present any identification in order to cast a vote. Pursuant to Section 1 of Article 3 of the Arkansas Constitution, the only legal qualifications for a voter in Arkansas to cast a vote either during early voting or on Election Day, prior to Act 595, were: (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. As evidenced by the attached Exhibits A - D, all of the Plaintiffs in this case met and meet the requirements contained in Section 1 of Article 3 of the Arkansas Constitution. However, under the current law of Arkansas, as modified pursuant to Act 595, none of the Plaintiffs, or similarly qualified Arkansas voters, can cast a vote in an Arkansas election including the upcoming May primary election. A. Act 595 New requirements. Act 595 of the 89th General Assembly was formally passed by both houses of the Arkansas General Assembly on March 19, It was subsequently and correctly vetoed by the Governor of the State of Arkansas. In his Veto Letter dated March 25, 2013, Governor Beebe informed the Arkansas Senate that he was vetoing Senate Bill 2 3 Act 595 of 2013 was also known as Senate Bill 2 attached hereto as Exhibit F. 3

4 because it unnecessarily restricts and impairs our citizens right to vote. See Exhibit G. Governor Beebe not only analyzed the language of Article 3, sections 1 and 2, but Governor Beebe also analyzed the need to require proof of identity. In his analysis, Governor Beebe determined that there was no need for proof of identity requirements because there were no credible examples of election fraud that would be addressed by the proof of identity provisions of Act 595. See Exhibit G, pg. 2. In short, Governor Beebe was, and is, correct. Even with the knowledge of Governor Beebe s veto letter, the Governor s veto was overridden first by the Arkansas Senate on March 27, 2013, and then by the Arkansas House of Representatives on April 1, See Exhibit H. 4 By its own language, Act 595 provided that it would become effective on at the later of January 1, 2014, or when the Secretary of State had the appropriation and availability of funding to the Secretary of State for the issuance of voter identification cards under Section 5 of this act. See Exhibit F. By his own choice and acts, Separate Defendant Martin elected that Act 595 would take effect on January 1, Act 595 of 2013 states that it is AN ACT TO REQUIRE THAT A VOTER PROVIDE PROOF OF IDENTITY WHEN VOTING; TO PROVIDE FOR THE ISSUANCE OF A VOTER IDENTIFICATION CARD; AND FOR OTHER PURPOSES. See Exhibit F. Act 595 mandated the amendment of various code sections to 4 In addition to Governor Beebe s veto letter, members of the Arkansas General Assembly had an analysis performed by Attorney General Dustin McDaniel. In that analysis dated March 25, 2013, the Arkansas Attorney General also questioned the constitutionality of Act 595 given the strong Arkansas Constitutional Language concerning voter qualifications. See Exhibit I (Ark. Atty. General, Opinion No , March 25, 2013). 5 In reviewing the appropriation bills passed for the Arkansas Secretary of State s Office in 2013, there were no specific appropriations for Act 595. There is special language contained in section 16 of Act 1376 of 2013, however that language does not specifically provide funding for Act

5 implement new qualifications for voters in the State of Arkansas which set up obstacles between voters and the ballot box, during both early voting and on Election Day. 6 The new proof of identity qualification is found in Section 2 of Act 595 wherein Arkansas Code Annotated was amended to require: (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; While Section 2 of Act 595 addresses voting on election day, Section 6 of Act 595 also amended Arkansas Code Annotated (c) to include the proof of identity requirement for qualified voters who desire to participate in early voting. Act 595 also defined proof of identity by amending Arkansas Code Annotated to include the following provisions: (30)(A) Proof of identity means: (i) A voter identification card under ; or (ii) A document or identification card that: (a) Shows the name of the person to whom the document was issued; (b) Shows a photograph of the person to whom the document was issued; (c) Is issued by the United States, the State of Arkansas, or an accredited postsecondary educational institution in the State of Arkansas; and (d) If displaying an expiration date: (1) Is not expired; or 6 This is not the first lawsuit to address various provisions of Act 595. On March 12, 2014, the Pulaski County Election Commission and others brought suit against these same Defendants seeking a Court order declaring that certain Rules adopted by the Arkansas State Board of Election Commissioners dealing with absentee ballots were invalid. See Pulaski County Election Commission v. Arkansas State Board of Election Commissioners, Pulaski County Circuit Court, Case No. CV To date, no ruling has been made in that case. 5

6 (2) Expired no more than four (4) years before the date of the election in which the person seeks to vote. (B) A proof of identity that complies with the requirements under subdivision (30)(A) of this section may include without limitation: (i) A driver's license; (ii) A photo identification card; (iii) A concealed handgun carry license; (iv) A United States passport; (v) An employee badge or identification document; (vi) A United States military identification document; (vii) A student identification card issued by an accredited postsecondary educational institution in the State of Arkansas; (viii) A public assistance identification card; and (ix) A voter identification card under ; Though Act 595 provided a list of documents that would suffice as proof of identity, by its own terms, Act 595 places considerable limits on the types of acceptable documents without providing exceptions except for nursing home residents and oversees military ballots. If the intent was to provide any sort of identification, the definition would be much broader. Failure to present sufficient proof of identity will mandate that Arkansas citizens will only be allowed to vote a provisional ballot. Pursuant to Section 4 of Act 595, the Arkansas General Assembly amended Arkansas Code Annotated , to mandate that the voter who is not able to provide proof of identity may only cast a provisional ballot and that the voter and the election officials must proceed according to Arkansas Code Annotated Section 5 of Act 595 the Arkansas General Assembly added Arkansas Code Annotated , wherein the voter who is not able to provide proof of identity may only (a) cast a provisional ballot and (b) is required 7 Similarly, Arkansas Code Annotated (d) provides the same enforcement mechanism for voters who fail to provide proof of identity during early voting. 6

7 to return to the County Board of Election Commissioner or the County Clerk by noon the Monday following the election and provide proof of identity or swear under penalty of perjury that the voter is either indigent 8 or has a religious objection to being photographed. B. Arkansas law prior to Act 595. Prior to the enactment of Act 595, Arkansas Code Annotated provided that a qualified voter in Arkansas would be asked by a poll worker for current and valid photo ID, utility bill, bank statement, etc. This was the law for many years and for those years, if the voter refused or was unable to comply with the poll worker s request, the poll worker would simply indicate the refusal in the voter registration list and provide the voter with a valid ballot. The prior statute specifically provided, with emphasis added: (8)(A) Request the voter for purposes of identification to provide 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. (B)(i) If a voter is unable to provide this identification, the poll worker shall indicate on the precinct voter registration list that the voter did not provide identification. (ii) A first-time voter who registers by mail without providing identification when registering and desires to vote in person but who does not meet the identification requirements of subdivision (a)(8)(a) of this section may cast a provisional ballot. (iii) Following each election, the county board of election commissioners may review the precinct voter registration lists and may provide the information of the voters not providing identification at the polls to the prosecuting attorney. 8 Though the statute refers to indigent, there is no clear definition as to what exactly that terms means in the context of voting. 7

8 (iv) The prosecuting attorney may investigate possible voter fraud; Thus, under the law prior to Act 595, there was no proof of identity qualification for Arkansas voters. If a voter did not have identification or refused to provide identification, the voter was still allowed to cast a valid ballot. C. Current effect of Act 595 on qualified Arkansas voters. Now, without proof of identity a qualified Arkansas voter can only cast a provisional ballot; a ballot that will in effect not be counted. Act 595 amended Arkansas Code Annotated to read, with emphasis added: (8)(A)(i) Except as provided in subdivisions (a)(8)(a)(ii) and (a)(8)(b)(ii) of this section, request the voter for purposes of identification to provide proof of identity. (ii)(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 subdivision (a)(8)(a)(ii)(a) of this section shall provide documentation from the administrator of the facility attesting that the person is a resident of the facility. (B)(i) If a voter is unable to provide this 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 (iii) A first-time voter who registers by mail without providing identification when registering and desires to vote in person but who does not meet the identification requirements of (e) may cast a provisional ballot. 8

9 (iv) Following each election, the county board of election commissioners may review the precinct voter registration lists and may provide the information of the voters not providing proof of identity at the polls to the prosecuting attorney. (v) The prosecuting attorney may investigate possible voter fraud; Arkansas Code Annotated (which was added by Act 595) took Arkansas Code Annotated a step further and provides that: (a) If the voter is listed on the precinct voter registration list but fails to provide proof of identity, the election official shall: (1) Indicate on the precinct voter registration list that the voter did not provide proof of identity; and (2) Permit the voter to cast a provisional ballot. (b)(1) 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. (2) A person not required to provide proof of identity under subdivision (b)(1) of this section shall provide documentation from the administrator of the facility attesting that the person is a resident of the facility. (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 proof of identity because the voter: (i) Is indigent; or (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. 9

10 Section carves out specific exceptions for resident of long-term care facilities and/or residential care facilities and only requires those voters to only provide a letter from the administrator of the facility. No other exceptions are provided for all other qualified Arkansas voters. In addition to the statutory changes set forth in Act 595, Defendants have also adopted their own rules that effectuate Act 595. These new rules expand the new proof of identity requirement and Defendants have provided the following mandatory rules to local election officials on proof of identity : 801 Proof of Identity Required When Voting at the Polls All voters except those who reside in a long-term care or residential care facility licensed by the state must present proof of identity to cast a regular ballot at the polls during early voting and on election day. A person who resides in a long-term care or residential care facility licensed by the state may instead provide documentation from the administrator of the facility attesting that the person is a resident of the facility in lieu of the requirement to present proof of identity before voting. 9 Defendants now place the unconstitutional burden on local election officials to not only demand a voter produce proof of identity but also, pursuant to 802 Poll Worker Assessment of Validity of Proof of Identity, assess the proof of identity as follows: (1) Verify that the name on the proof of identity is consistent with the name in the Precinct Voter registration list, allowing for abbreviations and nicknames; * * * 9 See Exhibit K of the Emergency Rules for Voter Identification, Arkansas State Board of Election Commissioners, Effective January 1, 2014, Revised March 4, 2014 (emphasis added). 10

11 (3) If the name is consistent, compare the photograph to the voter to determine whether the voter is the person depicted in the photograph, considering hair color, glasses, facial hair, cosmetics, weight, age, injury and other physical characteristics; (4) If the poll worker is satisfied that the voter is the person depicted in the photograph and the name is consistent with the name in the Precinct Voter Registration List, then issue the voter a regular ballot; (5) If the voter s name is different from the name in the Precinct Voter Registration List or the name as stated by the voter but the poll worker is satisfied that the voter is the person depicted in the photograph, issue the person a regular ballot after the voter completes a voter registration application form for the purpose of updating the voter s information; and (6) If the poll worker determines that the proof of identity does not depict the voter, then the poll worker shall offer the voter a provisional ballot. 10 Thus, without proper proof of identity an otherwise constitutionally qualified Arkansas resident will not be able to cast a vote in an Arkansas election during either early voting or on Election Day. As the effect of Act 595 is to add this new qualification, the proof of identity provisions of Act 595 are unconstitutional. II. THE NECESSITY OF A PRELIMINARY INJUNCTION On Tuesday, May 22, 2014, Arkansas will conduct a statewide preferential primary and nonpartisan election. Early voting for this election will begin on Monday May 5, See Exhibit J (pgs. 1, 8-11). This will be the first state-wide election in which Defendants will seek to enforce the proof of identity requirements contained in Act 595 both during early voting and during regular voting hours on May 22. Because of 10 See Exhibit K of the Emergency Rules for Voter Identification, Arkansas State Board of Election Commissioners, Effective January 1, 2014, Revised March 4,

12 the time it needed to prepare and try this case, if a preliminary injunction is not granted, Plaintiffs, and all other similarly situated qualified Arkansas voters, would have their constitutional right to vote forever lost. Plaintiffs, and all other similarly situated qualified voters, would not be allowed to vote even though they meet all of the qualifications of the Arkansas Constitution to cast a vote. III. THE PRELIMINARY INJUNCTION STANDARD IN ARKANSAS In determining whether to issue a preliminary injunction pursuant to Rule 65 of the Arkansas Rules of Civil Procedure, Arkansas courts consider (1) whether irreparable harm will result in the absence of a preliminary injunction, and (2) whether the moving party has demonstrated a likelihood of success on the merits. Custom Microsystems, Inc. v. Blake, 344 Ark. 536, 425 S.W. 3d 453, 456 (2001) 11 ; Smith v. Am. Trucking Ass n, 300 Ark. 594, 781 S.W. 2d 3, 4 (1989); W.E. Long Co. v. Holsum Baking Co., 307 Ark. 345, 820 S.W.2d 440 (1991). A. PLAINTIFFS WILL SUFFER IRREPARABLE HARM BY NOT BEING ABLE TO VOTE, ABSENT A PRELIMINARY INJUNCTION. Irreparable harm is the touchstone of injunctive relief. United Food and Com.Workers v. Wal-Mart Stores, Inc., 120 S.W. 3d 89, 353 Ark. 902 (2003); Wilson v. 11 In Custom Microsystems, Inc., 425 S.W. 3d at 457, the Arkansas Supreme Court rejected the preliminary injunction four prong test espoused by the Eighth Circuit in See Dataphase Systems, Inc. v. C L Systems, Inc., 640 F.2d 109 (8th Cir. 1981). In Dataphase, the Eighth Circuit considered four factors in determining whether a preliminary injunction should issue: (1) the threat of irreparable harm to the movant; (2) the state of the balance between this harm and the injury that granting the injunction will inflict on other litigating parties; (3) the probability that the movant will succeed on the merits; and (4) the public interest. Id. at 113. The Court in Custom Microsystems stated, We have never adopted a flexible test where we balance the equities, such as the Eighth Circuit adopted in Dataphase. And we decline to do so today. Id. at

13 Pulaski Ass'n of Classroom Teachers, 330 Ark. 298, 954 S.W.2d 221 (1997). Harm is generally considered irreparable when it cannot be adequately compensated by money damages or redressed in a court of law. Kreutzer v. Clark, 271 Ark. 243, 607 S.W.2d 670 (1980). Plaintiffs will clearly suffer irreparable harm if a preliminary injunction is not granted because they will not be allowed to vote in the upcoming May election. Plaintiffs request a ruling by this Court declaring that the proof of identity qualification found in Act 595 be declared unconstitutional. Plaintiffs do not seek money damages; rather the relief they seek is equitable for the Court to preliminarily and permanently enjoin the enforcement of the proof of identity qualification found in Act 595 and to have it declared invalid. In addition, a preliminary injunction is necessary because of the time constraint imposed by Arkansas law on the dates of elections and the lack of education to qualified Arkansas voters on this new and recent change in the election law. As early voting starts within the month, there is not enough time to accomplish this considering what time that would remain after preparing and trying a lawsuit to conclusion. B. PLAINTIFFS ARE LIKELY TO SUCCEED ON THE MERITS. The second prong of the preliminary injunction standard is satisfied as Plaintiffs can show they are likely to succeed on the merits of their claims. Likely to succeed on the merits means a reasonable probability of success. Custom Microsystems, 42 S.W. 3d at 457 (quoting Black's Law Dictionary 938 (7th ed.1999)). Plaintiffs have a reasonable probability of succeeding on the merits of all the claims in their Complaint. 13

14 These proof of identity issues have already been address outside the State of Arkansas. One constant in all of the decisions addressing various state laws mandating Voter ID is the wording of the respective state constitutions. The Arkansan Constitution is one that provides a very strong, fundamental right to vote and strong protections for that fundamental right. Our constitution s emphasis on voting is similar to Missouri. In Weinschenk v. State, 203 S.W.3d 201, 211 (MO 2006), the Missouri Supreme Court struck down similar proof of identity requirements as being in violation of the Missouri Constitution that provided: The Missouri Constitution expressly guarantees that all elections shall be free and open; and no power, civil or military, shall at any time interfere to prevent the free exercise of the right of suffrage. Mo. Const. art. I, sec. 25. Additionally, rather than leaving the issue of voter qualification to the legislature, the Missouri Constitution has established an exclusive list of qualifications necessary to vote in Missouri. Mo. Const. art. VIII, sec. 2 ( All citizens of the United States... over the age of eighteen who are residents of this state and of the political subdivision in which they offer to vote are entitled to vote at all elections by the people, if... they are registered within the time prescribed by law ). These constitutional provisions establish with unmistakable clarity that the right to vote is fundamental to Missouri citizens. Similar to Missouri, the Arkansas Constitution specifically sets for the qualifications for Arkansas Voters and adds further protection by prohibiting any laws that interfere or impair a qualified citizen s right to vote. Arkansas Constitution is likewise similar to the Pennsylvania Constitution, except that Pennsylvania delegates power to the Pennsylvania state legislature that the Arkansas Constitution does not delegate to the Arkansas General Assembly. A state voter ID law was recently declared unconstitutional and permanently enjoined as violating the Pennsylvania Constitution. See Applewhite v. Commonwealth, 2014 WL 14

15 (Pa. Commw. Ct. 2014). In that decision, the Commonwealth Court analyzed the State Constitution that spoke to the importance of elections in that State: Elections shall be free and equal; and no power, civil or military, shall at any time interfere to prevent the free exercise of the right of suffrage. 12 The Pennsylvania Constitution, unlike Arkansas, does allow for regulation of electors by the state s General Assembly Every citizen twenty-one years of age, possessing the following qualifications, shall be entitled to vote at all elections subject, however, to such laws requiring and regulating the registration of electors as the General Assembly may enact. 13 Even with that language, the Pennsylvania Court struck down the Pennsylvania Voter ID law because, in part, the Court found that the Voter ID Law as written suggests a legislative disconnect from reality. Id. at 22. This Court went on to enjoin the Voter ID law on a clear facial challenge because it found that the photo ID provisions in the Voter ID Law violate the fundamental right to vote and unnecessarily burden the hundreds of thousands of electors who lack compliant photo ID. Id. 1. The Arkansas Constitution s protection of the right to vote. As stated previously, sections 1 and 2 of Article 3 of the Arkansas Constitution not only set forth the only qualifications for a citizen to vote, they prevent any impairment of a citizen s right to vote. The Arkansas Supreme Court has previously addressed a similar attempt by the Arkansas General Assembly to place additional qualifications on voting and, without pause, struck down the law as unconstitutional. In 12 See Pennsylvania Const. Art. 1, Sec See Pennsylvania Const. Art. 7, Sec

16 Rison v. Farr, 24 Ark. 161 (1865), the Arkansas Supreme Court addressed an oath law that was passed by the Arkansas General Assembly that required: That each voter shall, before depositing his vote at any election in this state, take an oath that he will support the constitution of the United States and of this state, and that he has not voluntarily borne arms against the United States or this state, nor aided, directly or indirectly, the so-called confederate authorities since the 18th day of April, 1864; said oath to be administered by one of the election officers; and this act to take effect from and after its passage. 14 In its strongly worded opinion, the Court was concerned that the legislature was taking away a citizen s right to vote when the citizen met all of the Arkansas constitutional qualifications to vote. The Court was not persuaded by the State s argument that the law was nothing more than a person making a simple oath when the State argued that: A law requiring that the voter shall swear to support the constitution of the United States, does not restrict the right to vote, adds nothing to the qualifications required by the constitution, requires nothing more than the voter is required by law to do, and is free from the objections of unconstitutionality, and is a valid law. 15 The Court saw thru the guise of that argument -- the oath law was just a simple little oath -- and found that it was an attempt to prevent unwanted persons (at that time presumably sympathizers of the confederacy) from voting. The Court opined that: And clearly, if the legislature cannot, by direct legislation, prohibit those who possess the constitutional qualification to vote, from exercising the elective franchise, that end cannot be accomplished by indirect legislation Id. at 170 (quotations omitted). 15 Id. at Id. at

17 The Arkansas Supreme Court struck down the oath law as it prevented duly qualified Arkansas residents from being able to vote. In conclusion, the Court again opined on right to vote found in the Arkansas Constitution: The constitution having fixed the qualification of an elector in this state, those possessing the qualifications required, can no more be deprived of the right to vote by legislative enactment, than they can be deprived of the right to trial by jury, or the right to worship God according to the dictates of their own consciences. 17 Therefore, based on the Arkansas Constitution and precedent from the Arkansas Supreme Court, and the persuasive precedent from other states like Missouri, Plaintiffs are likely to succeed on the merits of their facial challenge to the proof of identity requirements contained in Act The proof of identity qualification is unconstitutional on its face as it conflicts with Section 1 of Article 3 of the Arkansas Constitution. Act 595 provides a new qualification for an otherwise qualified voter the voter must have on their person proof of identity. A plain reading of these proof of identity provision place Act 595 squarely at odds with the Arkansas Constitution. The proof of identity requirement mandates that an otherwise constitutionally qualified voter cannot exercise his/her right to cast a vote that will be counted. In addition, by mandating a proof of identity requirement, Act 595 is also at odds with the Arkansas Constitution as it now impairs a qualified voter s right to cast a countable vote in an Arkansas election. Based on this and the precedent set by Rison v. Farr, 24 Ark. 161 (1865), the mandatory proof of identity provisions contained in Act 595 are unconstitutional. 17 Id. at 176 (emphasis added). 17

18 3. The proof of identity provisions of Act 595 are unconstitutional as applied to Plaintiffs. The affidavits of Plaintiffs, attached as Exhibits A - D, to the Motion for Preliminary Injunction, provide evidence that the proof of identity qualification will prevent Plaintiffs from casting a valid ballot in the upcoming May election. This is no more evident than by the affidavit of Separate Plaintiff Hass who previously tried to vote without showing proof of identity. Separate Plaintiff Hass was only allowed to vote a provisional ballot; a ballot that was subsequently not counted. See Exhibit E. The burden that the proof of identity places on residents and citizens of Arkansas is substantial and unconstitutional. Even if the proof of identity requirements was not facial unconstitutional, it would be unconstitutional under the strict scrutiny analysis that the Court undertake when addressing legislation that infringes upon a citizen s fundamental right. See Jegley v. Picado, 349 Ark 600, 632, 80 S.W.3d 332, 350 (2002). In order for the proof of identity requirement to survive, Defendants must prove that a compelling state interest is advanced by the statute and the statute is the least restrictive method available to carry out [the] state interest. Id. a. Arkansas Interest. In looking at the proof of identity requirement in Act 595, there is no legitimate or compelling state interest that is furthered by that constitutional infringement. In the words of Governor Beebe: While proponents of laws similar to Senate Bill 2 argue that they are necessary to combat election fraud, the bill addresses only voter impersonations, and no credible study of election fraud supports the notion that such voter impersonation is or has been common in Arkansas. In a recent editorial, the only example of widespread voter impersonation 18

19 provided by the primary sponsor of Senate Bill 2 occurred not in Arkansas, but in New York State some 30 years ago. Though the State has an interest in preventing voter fraud, voter fraud at the polling place by someone claiming to be someone else is virtually non-existent in this country. In addition, and as cited by Governor Beebe, the State of Arkansas has numerous laws that criminalize fraud in connection to voting. See, e.g., Arkansas Code Annotated and However, as noted by Governor Beebe, the proponents of Act 595 did not present any proof of criminal activity that the proof of identity provisions in Act 595 would seek to prevent. In addition, there is no proof that the State of Arkansas has faced any problems associated with in-person voting fraud either during early voting or on Election Day. b. Act 595 is not the lease restrictive means. By no means are the proof of identity provisions of Act 595, and the accompanying rules set forth by the Arkansas Secretary of State and the State Board of Election Commissioner, the least restrictive means to carry out the State s Interest in protecting voting. By simply comparing the current law to the law that existed for many, many years prior to Act 595, it is clear that Arkansas legislature replaced a simple nonmandatory request for identification with hard and fast rule that adds a new voter qualification possession of proof of identity. As cited by veto letter and with a lack of history of in-person voting fraud, this is a purported solution to a problem that did not exist. As no problem existed, there is no justification for placing this additional qualification on otherwise qualified Arkansas voters. 19

20 IV. CONCLUSION For the reasons set forth above, Plaintiffs respectfully request that the Court grant their Motion for a Preliminary Injunction and enjoin Defendants from enforcing any of the proof of identity provisions contained in Act 595. Respectfully Submitted, By: /s/ Jeff Priebe Jeff R. Priebe (AR ) jpriebe@jamescarterlaw.com James, Carter & Coulter, PLC 500 Broadway, Suite 400 Little Rock, AR Telephone: (501) Facsimile: (501) ATTORNEYS FOR PLAINTIFFS On behalf of the Arkansas Civil Liberties Union Foundation, Inc. and the Arkansas Public Law Center CERTIFICATE OF SERVICE I, Jeff Priebe, certify on this 21st day of April, 2014, that a copy of the foregoing was served via Arkansas Judiciary Electronic Filing service upon the following as indicated: Martha Adcock, Esq. martha.adcock@sos.arkansas.gov Justin Tate, Esq. justin.tate@sos.arkansas.gov Arkansas Secretary of State State Capitol, Suite 256 Little Rock, AR Attorneys for Mark Martin, in his Official Capacity as the Secretary of State for the State of Arkansas /s/ Jeff Priebe 20