IN THE CIRCUIT COURT OF PULASKI COUNTY, ARKANSAS

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1 ELECTRONICALLY FILED Pulaski County Circuit Court Larry Crane, Circuit/County Clerk 2018-Feb-07 10:03:24 60CV C06D12 : 27 Pages IN THE CIRCUIT COURT OF PULASKI COUNTY, ARKANSAS BARRY HAAS PLAINTIFF 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; JAMES HARMON SMITH, III; STUART SOFFER; CHARLES ROBERTS; CHAD PEKRON; and JAMES SHARP, in their official capacities as Commissioners of the Arkansas State Board of Election Commissioners DEFENDANTS PLAINTIFF S BRIEF IN SUPPORT OF THE MOTION FOR PRELIMINARY INJUNCTION Plaintiff brings this case pursuant to the Arkansas Code Annotated , et seq., to challenge the constitutionality of Act 633 of 2017 (hereinafter Act 633 ). Act 633 re-writes and amends Amendment 51 to the Arkansas Constitution and various Arkansas Code sections to include a new qualification that all Arkansas residents shall provide verification of voter registration before they can vote in an election. Act 633 is unconstitutional because it is neither germane nor consistent with Amendment 51 of the Arkansas Constitution and because the verification of voter registration provisions contained in Act 633 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. Page 1 of 27

2 Plaintiff is a citizen of the United States, resident of Pulaski County, Arkansas, registered voter in Little Rock, Pulaski County Arkansas, and over the age of Plaintiff desires to vote in the upcoming 2018 Primary Election, and objects to providing such verification of voter registration documentation. In addition, Plaintiff has previously refused to provide proof of identity in an election in Arkansas. 2 Pursuant to Rule 65 of the Arkansas Rules of Civil Procedure, Plaintiff asks the Court to issue a preliminary injunction to prevent irreparable harm to Plaintiff and all other qualified Arkansas voters that will result if Act 633 is enforced. Thus, a preliminary injunction should issue. 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 that any law that even impairs the right to vote is unconstitutional. The Arkansas Right of Suffrage, found in 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. (emphasis added) Prior to the enactment of Act 633, 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 are: 1 See Exhibit 4 (affidavit of Plaintiff Haas). 2 See Id. Page 2 of 27

3 (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 Exhibit 4, the Plaintiff in this case meets 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 633, the Plaintiff, or similarly qualified Arkansas voters, can only cast an encumbered provisional ballot vote, including the upcoming May 2018 primary election. A. Arkansas voter ID law prior to 2013 Prior to 2013, Arkansas Code Annotated provided that in order to vote, a qualified voter in Arkansas would be asked by a poll worker for current and valid photo ID, utility bill, bank statement, etc. This had been the law for many 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 or inability in the poll book containing the voter registration list and provide the voter with a regular 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 Page 3 of 27

4 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. (iv) The prosecuting attorney may investigate possible voter fraud; Thus, prior to 2013 there was not a voter ID requirement in Arkansas law. If a voter did not have identification or refused to provide identification, the voter was still allowed to cast a regular ballot. This changed, briefly, in B. Voter ID pursuant to Act 595 of 2013 In 2013, the Arkansas legislature passed, for the first time, a voter ID requirement in Arkansas. 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 because it unnecessarily restricts and impairs our citizens right to vote. See Exhibit 5. 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 3 Act 595 of 2013 was also known as Senate Bill 2 attached hereto as Exhibit 2. Page 4 of 27

5 Exhibit 5, pg. 2. Even with the knowledge of Governor Beebe s veto letter, the Governor s veto was overridden first by the Arkansas General Assembly. Act 595 of 2013 stated that it was 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 2. Act 595 mandated the amendment of various code sections to 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. The new proof of identity qualification was 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 addressed 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; Page 5 of 27

6 (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 (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 placed considerable limits on the types of acceptable documents without providing exceptions except for nursing home residents and overseas military ballots. Failure to present sufficient proof of identity mandated that Arkansas citizens would 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 4 Similarly, Arkansas Code Annotated (d) provided the same enforcement mechanism for voters who fail to provide proof of identity during early voting. Page 6 of 27

7 able to provide proof of identity may only (a) cast a provisional ballot and (b) is required 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 or has a religious objection to being photographed. C. The Arkansas Supreme Court found that Act 595 of 2013 was unconstitutional. In the spring of 2014, a lawsuit was filed by four Arkansas residents challenging the constitutionality of Act 595 of 2013 (one of those residents being the named Plaintiff in this matter). A Pulaski County Circuit Court held the law unconstitutional; however it stayed its ruling pending the 2014 primary elections. It was later determined that as a result of the unconstitutional Voter ID requirements in Act 595, at least 1,064 Arkansas voters were not able to cast ballots during that primary election. See Exhibit 6. On October 15, 2014, the Arkansas Supreme Court, in a unanimous but split decision, held that the Voter ID requirements in Act 595 of 2013 were unconstitutional. See Martin v. Kohls, 2014 Ark. 427 (2014). In Martin v. Kohls, the Arkansas Supreme Court, in a facial challenge to Act 595, found that by requiring Arkansas voters to provide voter ID as a prerequisite to voting was an unconstitutional additional requirement that ran afoul of Article 3, Section 1 of the Arkansas Constitution. Martin, 2014 Ark. at 16. In addition, the Court refused to agree with the Defendants argument that voter ID was merely an administrative means of determining who was lawfully registered. Id. As a result of declaring Act 595 unconstitutional, during the November Page 7 of 27

8 2014 general election, the constraints of voter ID were not in place and Arkansas resumed its custom and practice that was in place prior to Act 595. D. Act 633 of 2017 In an attempt to circumvent the Arkansas Supreme Court s decision in Martin v. Kohls, in 2017 the Arkansas legislature passed Act 633 of See Exhibit 1. Instead of referring to mandatory documents as proof of identity (as was done in Act 595 of 2013) Act 633 of 2017 labels these documents as verification of registration. As can be seen by the language of the two Acts, Act 633 is simply another attempt at Voter ID. In an additional attempt to justify this new Voter ID, Act 633 attempts to amend Amendment 51 of the Arkansas Constitution by adding this new verification of registration into Arkansas Constitution. However, this attempt is likewise unconstitutional because it fails to meet the germane and consistent test set forth in Section 19 of Amendment 51 and because it fails for the same reasoning set forth in Martin v. Kohls. i. Act 633 changes to Amendment 51 Prior to the passage of Act 633, Amendment 51, 13 provided as follows: (a) If a voter presents himself or herself at a polling place on the date of an election but no record of his or her voter registration can be located by the judges of the election on the precinct voter registration list, the voter shall be permitted to vote only under the conditions set forth in or Section 2 of Act 633 amended Amendment 51, 13 to now require (in part): (a) If a voter presents himself or herself at a polling place on the date of an election but no record of his or her voter registration can be located by the judges of the election on the precinct voter registration list, the voter shall Page 8 of 27

9 be permitted to vote only under the conditions set forth in or (b)(1)(a) In order to determine that all who cast a ballot in an election, a runoff election, or a school election in this state are legally qualified to vote in that election, each voter shall verify his or her registration by: (i) Presenting to the election official when appearing to vote in person either early or at the polls on election day in an election, a runoff election, or a school election verification of registration in the form of a document or identification card that: (a) Shows the name of the person to whom the document or identification card was issued; (b) Shows a photograph of the person to whom the document or identification card 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, is not expired or expired no more than four (4) years before the date of the election in which the voter seeks to vote; or (ii) Submitting with an absentee ballot in an election, a runoff election, or a school election a copy of a document or identification card that complies with the requirements of subdivision (b)(1)(a)(i) of this section. (B) Documents and identification cards that comply with the requirements of subdivision (b)(1)(a) of this section include without limitation: (i) A driver s license; (ii) A photo identification card; (iii) A concealed handgun carry license; (iv) A United States passport; Page 9 of 27

10 (v) An employee badge or identification document issued by an accredited postsecondary educational institution in the State of Arkansas; (vi) A United States military identification document; (vii) A public assistance identification card if the card shows a photograph of the person to whom the document or identification card was issued; and (viii) A voter verification card under If the prospective voter does not have documentation that will satisfy the verification of registration requirement found in 13(b)(1), the election official must then indicate on the precinct voter registration list that the voter did not present the required documentation, permit the prospective voter to only cast a provisional ballot, and then inform that prospective voter of the process the prospective voter must follow in order to have his/her vote counted. See Amend 51, 13(b)(2). 5 Section 13(b)(4) provides that the provisional votes will be counted if the prospective voter does one of two things. First, the prospective voter may complete a sworn statement that the person is who he/she says he/she is and that the sworn statement is delivered to the county board of election commissioners. Second, the prospective voter may return to the county board of election commissioners by noon on the following Monday following the election and present proper verification of registration documentation. The provisional voter's vote may count as long as The 5 The verification of registration requirement is not required of residents of long-term or residential care facilities when the person submits documentation from the administrator of the facility that informs the official that the person is who they say they are. See Amend. 51, (b)(2)(b). Page 10 of 27

11 county board of election commissioners does not determine that the provisional ballot is invalid and should not be counted based on other grounds. Likewise, pursuant to 13(b)(5), absentee voters who cast absentee ballots that do not contain appropriate verification of registration will only be counted if the absentee voter does one of two things. First, the absentee voter may complete and return the sworn statement portion of the absentee ballot indicating that the absentee voter is who he/she says he/she is. Second, the absentee voter may return to the county board of election commissioners by noon on the following Monday following the election and present proper verification of registration documentation. The provisional voter s vote may count as long as The county board of election commissioners does not determine that the provisional ballot is invalid and should not be counted based on other grounds. If an otherwise qualified voter does not comply with sections 13(b)(4) or 13(b)(5), their vote will not be counted even though they met the requirements of Article 3 of the Arkansas Constitution to vote. In addition, otherwise qualified voters must also wait for his/her respective County Board of Election Commissioners to vote on their ballot before his/her ballot may or may not be counted. Act 633 also amended Section 6(a)(2) of Amendment 51 to include language in the registration application that voters would be required to verify registration when voting in person or by absentee. ii. Act 633 changes to statutory law In addition to amending sections 6 and 13 of Amendment 51, Act 633 mandates the amendment of various code sections to implement new qualifications for voters in Page 11 of 27

12 the State of Arkansas and to provide obstacles for voters voting absentee, at the polling booth, and on Election Day. Initially, section 4 of Act 633 amended Arkansas Code Annotated to add a definition of Verification of Voter registration. Subsection 38(a) of Arkansas Code Annotated provides that Verification of Voter registration means: (i) Presenting a document or identification card when appearing to vote in person 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 (2) Expired no more than four (4) years before the date of the election in which the person seeks to vote. (ii) Submitting with an absentee ballot verification of voter registration in the form of a copy of a document or identification card that complies with the requirements of subdivision (39)(A)(i) of this section. Section 3 of Act 633 also provided a list of acceptable documents that would meet the definition of Verification of Voter registration : (i) A driver's license; (ii) A photo identification card; (iii) A concealed handgun carry license; (iv) A United States passport; Page 12 of 27

13 (v) An employee badge or identification document issued by an accredited postsecondary education institution in the State of Arkansas; (vi) A United States military identification document; (vii) A public assistance identification card if the case shows a photograph of the person to whom the document or identification card was issued; and (ix) A voter verification card under ; In order to now vote in Arkansas, Section 5 of Act 633 amended Arkansas Code Annotated 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 verification of voter registration to the election official when appearing to vote in person either early or at the polls on election day; (B) When voting by absentee ballot, submit with the ballot verification of voter registration unless the voter is: (i) An active duty member of the uniformed services of the United States who is absent from the county on election day because of his or her service; (ii) A member of the United States Merchant Marine who is absent from the county on election day because of his or her service in the United States Merchant Marine; or (iii) The spouse or dependent of a member identified in subdivision (d)(1)(b)(i) of this section or subdivision (d)(1)(b)(ii) of this section 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 present verification of voter registration before voting. (B) A person not required to present verification of voter registration under subdivision (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 (emphasis added). This Verification of Voter Registration requirement is enforced pursuant to Section 6 of Act 633, wherein the Arkansas General Assembly amended Arkansas Code Annotated , to mandate that the voter who is not able to provide verification of voter registration may only cast a provisional ballot and that the voter and Page 13 of 27

14 election officials must proceed according to Section 13 of Amendment 51. Likewise, Arkansas Code Annotated (c) and (d) provide the same enforcement mechanism for voters who fail to provide Verification of Voter Registration during early voting. E. Current Effect of Act 633 on Qualified Arkansas Voters Without the required verification of registration, a qualified Arkansas voter can only cast a provisional ballot; a ballot that may not be counted. The qualified in-person voter must either: (1) complete a sworn statement, have that statement delivered to the County Board of Election Commissioners, and await a favorable decision by the County Board of Election Commissioners; or (2) return to the County Board of Election Commissioners by Monday following the election; present appropriate verification of registration, and await a favorable decision by the County Board of Election Commissioners. Interestingly, sections 13(b)(2) and 13(b)(3) carve out specific exceptions for residents of long-term care facilities and/or residential care facilities and only require those voters to provide a letter from the administrator of the facility. In addition, section 13(b)(3)(B) provides an exception for an active duty member of the uniformed services of the United States or United States Merchant Marine and his/her spouse who are absent from the country on election day because of service. No other exceptions are provided for all other qualified Arkansas voters. In addition to the statutory changes set forth in Act 633, Defendants have also adopted their own rules that effectuate Act 633. These new rules expand the new Page 14 of 27

15 verification of registration requirement and Defendants have provided the following mandatory rules to local election officials on verification of registration : 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, must verify their voter registration in order 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. This documentation shall be provided on a standardized form adopted by the Secretary of State. See Exhibit 3 (emphasis added). Defendants now place the unconstitutional burden on local election officials to not only demand a voter produce verification of registration but also, pursuant to 802 Verification of Voter Registration by Election Officials, assess the verification of registration. Section 802 requires that the photo identification shall be used to verify the name and appearance of the voter and requires election officials to verify a voter s registration by: (1) Verify that the name on the photo identification is consistent with the name in the Precinct Voter registration list, allowing for abbreviations and nicknames; (2) If the name is consistent, compare the photograph to the voter to determine whether the voter is the person depicted in the photograph, given reasonable allowances for changes in hair color, glasses, facial hair, cosmetics, weight, age, injury and other physical characteristics; (3) If the election official 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; Page 15 of 27

16 * * * (6) If the election official determines that the photo identification presented does not depict the voter of the name of the voter in the Present Voter Registration List is insufficiently similar to the name appearing on the photo identification, the question of whether the voter is permitted to cast a regular ballot shall be referred to the election judge of that polling site who shall resolve any marginal cases of identity in favor of the voter. (7) If the election judge agrees that the photo identification does not depict the voter or that the name that appears on the photo identification is insufficiently similar to the name of the Precinct Voter Registration List, the voter will have failed to verify his or her voter registration and the poll worker shall offer the voter a provisional ballot. 6 Thus, without verification of registration 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. Act 633 is unconstitutional. II. THE NECESSITY OF A PRELIMINARY INJUNCTION On Tuesday, May 22, 2018, Arkansas will conduct a statewide preferential primary and nonpartisan election. Early voting for this election will begin on May 7, See Exhibit 7 (Arkansas Secretary of State s 2018 Election Calendar, pg. 1). This will be the first state-wide election in which Defendants will seek to enforce the verification of registration requirements contained in Act 633 during absentee voting, early voting and on election day. If a preliminary injunction is not granted, Plaintiff, and all other similarly situated qualified Arkansas voters, will have their constitutional right to vote forever lost. Plaintiff, and all other similarly situated qualified voters, will not be 6 See Exhibit of the Rules for the Verification of Voter Registration, Arkansas State Board of Election Commissioners (Effective October 28, 2017). Page 16 of 27

17 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); 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. PLAINTIFF 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. 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). Plaintiff will clearly suffer irreparable harm if a preliminary injunction is not granted because he will not be allowed to vote in the upcoming May election. Similar to the decision in Martin v Kohls, 2014 Ark. 427 (2014), if the verification of registration requirements are enforced, the effect would be the disenfranchisement of Arkansas voters. Plaintiff requests a ruling by this Court declaring that the verification of Page 17 of 27

18 registration qualification found in Act 633 is unconstitutional. Plaintiff does not seek money damages; rather the relief sought is equitable for the Court to preliminarily and permanently enjoin the enforcement of the verification of registration qualification found in Act 633 and to have it declared invalid and unconstitutional. 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. B. PLAINTIFF IS LIKELY TO SUCCEED ON THE MERITS. The second prong of the preliminary injunction standard is satisfied as Plaintiff can show that he is likely to succeed on the merits of his 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)). Plaintiff has a reasonable probability of succeeding on the merits of all the claims in the Complaint. These verification of registration issues have already been addressed both inside and 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 Arkansas Constitution is one that provides a very strong, fundamental right to vote and strong protections for this fundamental right. Martin v. Kohls Ark. 427 (2014). In addition, the Arkansas 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: Page 18 of 27

19 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 forth the qualifications for Arkansas Voters and adds further protection by prohibiting any laws that interfere with or impair a qualified citizen s right to vote. The 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 (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. 7 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 7 See Pennsylvania Const. Art. 1, Sec. 5. Page 19 of 27

20 such laws requiring and regulating the registration of electors as the General Assembly may enact. 8 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. Act 633 of 2017 is neither germane nor consistent with Amendment 51. When passed by Arkansas voters in 1964, Amendment 51 had two purposes. First, it abolished the unconstitutional Arkansas poll tax requirement previously found in Article 3, Section 1 of the Arkansas Constitution. Second, Amendment 51 set up a permanent voter registration system in Arkansas. In addition to setting forth the where and the how of registration, Section 19 of Amendment 51 provided that the General Assembly could amend certain sections of the Amendment 51 so long as such amendments are germane to [Amendment 51] and consistent with its policy and purposes. (emphasis added). Act 633 does not meet the test set forth in Section 19 and instead is an attempt to re-write Amendment 51. By its own terms, Amendment 51: (1) tore down the poll tax barrier that prevented Arkansas residents from voting; and (2) allowed Arkansas residents to register to vote via mail. If a resident chose to register by mail, the resident could have provided a copy of a current utility bill, bank statement, government check, 8 See Pennsylvania Const. Art. 7, Sec. 1. Page 20 of 27

21 paycheck, or other government document that shows your name and address. See Amend. 51, 6(a)(7). If a resident provided one of these documents, the resident avoided any additional identification requirements upon voting for the first time. See Amend. 51, 6(a)(7). In addition, the current Arkansas Voter Registration Application does not require the submission of any photo identification or documentation that meets the requirements set forth Section 2 of Act 633. See Exhibit 8. This application is made, approved, and disseminated by Separate Defendant Martin. Interestingly, the Arkansas Voter Registration Application directly contradicts Act 633 because the Application provides that: IMPORTANT: Applicants will be required to verify their registration when voting in person or by absentee ballot by providing a required document or identification card as provided in Arkansas Constitution, Amendment 51, Section 13. If your voter registration application form is submitted by mail and you are registering for the first time, and you do not have a valid Arkansas driver s license number or social security number, in order to avoid the additional identification requirements upon voting for the first time you must submit with the mailed registration form: (a) a current and valid photo identification; or (b) a copy of a current utility bill, bank statement, government check, paycheck, or other government document that shows your name and address. See Exhibit 8 (emphasis added). This is consistent with the Arkansas Secretary of State s Voter Registration information page which does not require photo identification in order to register to vote. See Exhibit 9 (Arkansas Secretary of State s Voter Registration Information). Likewise, the Arkansas Secretary of State s office website provides a link to its publication: Voting 101, A Pocket Guide to Voting in the Natural State. See Exhibit 10. In this voting publication (which is currently provided on the Arkansas Secretary of State s website) the Arkansas Secretary of State fails to mention Page 21 of 27

22 any requirement of having to provide identification in order to satisfy the verification of registration requirements in Act 633. Act 633 now seeks to make it harder for Arkansas residents to cast a regular ballot. 9 In fact, Act 633 now mandates certain documentation that is in direct contradiction to the registration requirements set forth in Amendment 51. This contradiction reflects that Act 633 is neither relevant nor consistent and should be stricken. In addition, while Amendment 51 only dealt with registration, Act 633 attempts to expand Amendment 51 to: (1) absentee ballot procedures, (2) early voting, (3) voting on Election Day, and (4) post-election vote counting procedures. This expansion of Amendment 51 found in Act 633 is also neither relevant nor consistent and should be stricken. In short, Act 633 is an attempt to rewrite Amendment 51 in order to circumvent the decision in Martin v. Kohls. This attempt fails and based on the plain language of the Arkansas Constitution, including Amendment 51, Plaintiff is likely to succeed on the merits of the facial challenge to Act 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 two similar attempts by the Arkansas General Assembly to place additional 9 In fact, the Arkansas Secretary of State s office differentiates between and acknowledges the differences between a casting a regular ballot and a provisional ballot. See Exhibit 10 (Voting 101, A Pocket Guide to Voting in the Natural State, Arkansas Secretary of State s office, Feb. 1, pg. 15). Page 22 of 27

23 qualifications on voting and, without pause, struck down the laws as unconstitutional. In Martin v. Kohls, 2014 Ark. 427 (2014), the Court s decision (as discussed above) to strike Voter ID law in 2013 was based upon precedent from In 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. 10 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. 11 The Court saw through 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: 10 Id. at 170 (quotations omitted). 11 Id. at 162. Page 23 of 27

24 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. 12 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 the 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. 13 Therefore, based on the Arkansas Constitution and precedent from the Arkansas Supreme Court, Plaintiff are likely to succeed on the merits of their facial challenge to the verification of registration requirements contained in Act The verification of registration qualification is unconstitutional on its face as it conflicts with Section 1 of Article 3 of the Arkansas Constitution. Act 633 provides a new qualification for an otherwise qualified voter the voter must have on their person verification of registration. A plain reading of these verification of registration provisions place Act 633 squarely at odds with the Arkansas Constitution. The verification of registration 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 verification of registration requirement, Act 633 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 12 Id. at Id. at 176. Page 24 of 27

25 by Martin v. Kohls, 2014 Ark. 427 (2014), and Rison v. Farr, 24 Ark. 161 (1865), the mandatory verification of registration provisions contained in Act 633 are unconstitutional. 4. The verification of registration provisions of Act 595 are unconstitutional as applied to Plaintiff. The affidavit of Plaintiff, attached as Exhibit 4, provides evidence that the verification of registration qualification will prevent Plaintiff from casting a valid ballot in the upcoming May election. This is no more evident than by the affidavit of Plaintiff who previously tried to vote without showing proof of identity. Plaintiff was only allowed to vote a provisional ballot; a ballot that was subsequently not counted. See Exhibit 4. The burden that the verification of registration places on residents and citizens of Arkansas is substantial and unconstitutional. Even if the verification of registration requirements were not facially unconstitutional, they would be unconstitutional under the strict scrutiny analysis that the Court undertakes 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 verification of registration 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 verification of registration requirement in Act 633, there is no legitimate or compelling state interest that is furthered by that constitutional infringement. Though the State has an interest in preventing voter fraud, voter fraud at Page 25 of 27

26 the polling place by someone claiming to be someone else is virtually non-existent in this country. In addition, the State of Arkansas has numerous laws that criminalize fraud in connection to voting. See, e.g., Arkansas Code Annotated and However, the proponents of Act 633 did not present any proof of criminal activity that the verification of registration provisions in Act 633 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 633 is not the least restrictive means. By no means are the verification of registration provisions of Act 633, 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 633, it is clear that the Arkansas legislature replaced a simple non-mandatory request for identification with a hard and fast rule that adds a new voter qualification possession and presentation of verification of registration. 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. IV. CONCLUSION For the reasons set forth above, Plaintiff respectfully requests that the Court grant this Motion for a Preliminary Injunction and enjoin Defendants from enforcing any of the verification of registration provisions contained in Act 633. Page 26 of 27

27 Respectfully Submitted, By: /s/ Jeff Priebe Jeff R. Priebe (AR ) Daniel R. Carter (AR80023) James, Carter & Priebe, LLP 500 Broadway, Suite 400 Little Rock, AR Tel ; Fax ATTORNEYS FOR PLAINTIFF CERTIFICATE OF SERVICE ON THE ATTORNEY GENERAL I do hereby certify that pursuant to state law regarding constitutional challenges to the validity of legislative acts and statutes, the Attorney General of the State of Arkansas has been served a true and correct copy of the foregoing pleading via U.S. Mail, postage pre-paid, this February 7, 2018: The Honorable Arkansas Attorney General Office of the Arkansas Attorney General State of Arkansas 323 Center Street, Suite 200 Little Rock, Arkansas Tel ; Fax /s/ Jeff Priebe Jeff Priebe Page 27 of 27