IN THE CIRCUIT COURT OF PULASKI COUNTY, ARKANSAS 6th DIVISION ARKANSAS STATE BOARD OF ELECTION COMMISSIONERS DEFENDANTS

IN THE CIRCUIT COURT OF PULASKI COUNTY, ARKANSAS 6th DIVISION ELECTRONICALLY FILED 2014-Apr-18 15:33:07 60CV-14-1019 C06D06 : 27 Pages PULASKI COUNTY ELECTION COMMISSION; LEONARD A. BOYLE, SR., CHRIS BURKS, and ALEX REED, in their official capacities as the COMMISSIONERS of the PULASKI COUNTY ELECTION COMMISSION; and LARRY CRANE, in his official capacity as the PULASKI COUNTY CIRCUIT/COUNTY CLERK PLAINTIFFS VS. CASE NO. CV2014-1019 ARKANSAS STATE BOARD OF ELECTION COMMISSIONERS DEFENDANTS BRIEF IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT FACTUAL BACKGROUND Plaintiffs bring this action seeking a declaratory judgment that the Emergency Rules adopted by the Defendant on February 28, 2014 are not in accordance with the law and are therefore, invalid. On April 2, 2013, SB2 became Act 595 of 2013. See Attachment E to Petition for Declaratory Judgment. Section 3 of the Act amended Ark. Code Ann. 7-5-201, concerning voter qualification, 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; 1

(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 (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 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. Section 5 of the Act added Ark. Code Ann. 7-5-321, entitled Procedure when voter fails to provide proof of identity. The Section provides: (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. Section 6 of the Act amends Ark. Code Ann. 7-5-418(d) by providing that if the voter fails to provide proof of identity, the election official shall follow the procedure in 7-5-321. After the adoption of the Act, Defendant proposed Rules for Voter Identification and Rules on Poll Watchers, Vote Challenges, and Provisional Voting. At Defendant s meeting on 2

June 19, 2013, both rules were approved for public comment by a unanimous vote. See Attachment F to Petition for Declaratory Judgment. At the Defendant s meeting on August 21, 2013, the Rules on Poll Watchers, Vote Challenges, and Provisional Voting were taken up for consideration. See Attachment G to Petition for Declaratory Judgment. Justin Clay, the Director of the SBEC, reported that thirteen public comments were received on the Rules for Voter Identification. A summary of the public comments received, staff s responses to comments, and staff s proposed changes as a result of the comments were presented. See Attachment H to Petition for Declaratory Judgment. Public comments were heard. A motion was made to retain some stricken language and change language at the end of Section 905 from are considered as to become a. The motion was passed unanimously. See Attachment I to Petition for Declaratory Judgment. The Rule was then unanimously adopted as amended. See Attachment I to Petition for Declaratory Judgment. At the SBEC s meeting on August 21, 2013, the Rules for Voter Identification were taken up for consideration. See Attachment J. Justin Clay, the Director of the SBEC, reported that twenty-five public comments were received on the Rules for Voter Identification. A summary of the public comment received, staff s responses to comments, and staff s proposed changes as a result of the comments were presented. See Attachment K. A motion was made to strike Item 802-7 in the proposed Rules for Voter Identification on the basis the State Board does not have statutory authority to make a rule on this issue. See Attachment I. The motion was passed with the acting chairman voting in favor of the motion. See Attachment I. After discussion, a motion was made to strike the language in the last two paragraphs in Section 810 from the proposed rule and to send a letter to the Secretary of State expressing concern and asking the Secretary of State to consider issuing a standard form to be made available to the County Clerks 3

to send as an addendum. The motion passed unanimously. The Rule was then unanimously adopted as amended. See Attachment I. On January 14, 2014, Craighead County held a special election in the District 21 State Senate race. Of the 133 absentee ballots cast in that race, 63 did not include the required voter identification documents. See Attachment L to Petition for Declaratory Judgment. Pursuant to 810 of the Rules for Voter Identification adopted by the SBEC, [i]n order for an absentee ballot to be counted, the absentee voter must submit with the ballot a copy of 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. See Attachment J (See also, Ark. Code Ann. 7-5-201(d)(1)(B).) Based upon this rule, SBEC staff advised that the votes could not be counted. On the other hand, the Arkansas Secretary of State s Office recommended that absentee voters who failed to provide proper identification should be treated like voters who cast their ballots at a polling location and should be allowed the opportunity to provide identification to the county board of election commissioners or the county clerk within the cure period. See Attachment M to Petition for Declaratory Judgment. Concerned with the uncertainty caused by the conflicting opinions regarding counting absentee ballots that were submitted without proper identification, the PCEC voted on January 30, 2014 to request an Attorney General s opinion on the matter pursuant to Ark. Code Ann. 25-16-706. See Attachment N to Petition for Declaratory Judgment. On February 10, 2014, the Attorney General issued Opinion Number 2014-012. In that opinion, the Attorney General concluded that an absentee voter who is not exempt from the identification requirements and fails to submit identification as required by Ark. Code Ann. 7-5-201(d)(1)(B) should not have his or her ballot considered a provisional ballot and be allowed the opportunity to provide 4

identification by 12:00 p.m. of the Monday following the election. See Attachment O to Petition for Declaratory Judgment. On February 13, 2014, the Attorney General issued Opinion Number 2014-018. In that opinion, the Attorney General stated, In my opinion, current Arkansas law does not allow an absentee voter to cast a provisional ballot if they failed to submit the required identification when casting their absentee ballot.... the procedure for casting a provisional ballot with the opportunity to provide identification by 12:00 p.m. of the Monday following the election applies to those voting in person who fail to provide the required proof of identity. See Attachment P to Petition for Declaratory Judgment. On February 19, 2014, the SBEC met. After hearing a presentation of the Secretary of State s position on this issue and receiving public comments, a motion was made direct[ing] the staff of the State Board to meet with the staff of the Secretary of State as expeditiously as possible to come up with an emergency rule for board consideration in order to establish a process that is consistent with the Secretary of State s interpretation of Act 595 of 2013 allowing for absentee ballots that are returned without required identification to be counted. The motion passed unanimously. See Attachment Q to Petition for Declaratory Judgment. On February 28, 2014, the SBEC met and approved emergency changes to the Rules for Voter Identification and the Rules on Poll Watchers, Vote Challenges, and Provisional Voting under the emergency provisions of the Administrative Procedures Act. See Attachment R to Petition for Declaratory Judgment. The Emergency Rules on Poll Watchers, Vote Challenges, and Provisional Voting were filed on March 4, 2014. See Attachment S to Petition for Declaratory Judgment. The Emergency Rules for Voter Identification were filed on March 4, 2014. See Attachment T to Petition for Declaratory Judgment. 5

STANDARD OF REVIEW Summary judgment, although no longer viewed as a drastic remedy, is to be granted only when it is clear that there are no genuine issues of material fact to be litigated, and the party is entitled to judgment as a matter of law. Vanderpool v. Pace, 351 Ark. 630, 97 S.W.3d 404 (2003); Monday v. Canal Ins. Co., 348 Ark. 435, 73 S.W.3d 594 (2002); Mississippi River Transmission Corp. v. Weiss, 347 Ark. 543, 65 S.W.3d 867 (2002). The law concerning the granting of summary judgment is well established. Summary judgment is to be granted by a trial court only when it is clear that there are no genuine issues of material fact to be litigated and the moving party is entitled to judgment as a matter of law. Once a moving party has established a prima facie entitlement to summary judgment, the opposing party must meet proof with proof and demonstrate the existence of a material issue of fact. On appeal, we determine if summary judgment was appropriate based on whether the evidentiary items presented by the moving party in support of its motion leave a material fact unanswered. This court views the evidence in a light most favorable to the party against whom the motion was filed, resolving all doubts and inferences against the moving party. Our review is not limited to the pleadings, as we also focus on the affidavits and other documents filed by the parties. After reviewing undisputed facts, summary judgment should be denied if, under the evidence, reasonable men might reach different conclusions from those undisputed facts. Heinemann v. Hallum, 365 Ark. 600, 603-04, 232 S.W.3d 420, 422-23 (2006) (citations omitted) (quoting Gonzales v. City of DeWitt, 357 Ark. 10, 14-15, 159 S.W.3d 298, 301 (2004)). Summary judgment is only appropriate when the state of the evidence as portrayed by the pleadings, affidavits, admissions, and discovery responses are such that the non-moving party is not entitled to a day in court. Wallace v. Broyles, 332 Ark. 189, 961 S.W.2d 712 (1998). The burden of sustaining a motion for summary judgment is upon the moving party and all proof submitted must be viewed in a light most favorable to the non-moving party. Hall v. Tucker, 336 Ark. 112, 983 S.W.2d 432 (1999). 6

ARGUMENT ACT 595 DID NOT PROVIDE FOR A CURE PERIOD FOR ABSENTEE VOTERS Act 595 of 2013 amended A.C.A. 7-5-201 to require that a person desiring to vote in this state shall present "proof of identity to the election official when appearing to vote in person either early or at the polls on election day." Ark. Code Ann. 7-5-201(d)(1)(A). Act 595 defined "proof of identity" as follows: (i) (ii) A voter identification card under 7-5-322; or 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 (2) Expired no more than four (4) years before the date of the election in which the person seeks to vote. Ark. Code Ann. 7-1-101(30)(A). Additionally, the Secretary of State is required, pursuant to Ark. Code Ann. 7-5-322(a)(1)(A), to "provide by rule for the issuance of a voter identification card that may be requested by an individual to be used as proof of identity when appearing to vote in person." Act 595 further amended Ark. Code Ann. 7-5-201 to provide that persons voting by absentee ballot shall "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...." Ark. Code Ann. 7-5- 7

201(d)(1)(B). As set out in the statute, absentee voters are not required to provide proof of identity. Rather, absentee voters are allowed to provide some other form of identification (hereinafter referred to a identification documentation ). Additionally, Act 595 established a procedure for counting the ballot of a person who fails to provide "proof of identity" (i.e., in-person voters). According to Ark. Code Ann. 7-5- 305(a)(8)(B): If a voter is unable to provide this proof of identity, the poll worker shall: (i)(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 7-5-321. Arkansas Code Ann. 7-5-418(d)(2)(A) states that the procedure established in Ark. Code Ann. 7-5-321 shall be followed if an early voter fails to provide proof of identity. Pursuant to Ark. Code Ann. 7-5-321, the provisional ballot cast by the voter who did not provide proof of identity (i.e., in-person voters) must 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. It is clear on the face of Ark. Code Ann. 7-5-305 and -418 that the procedure for casting a provisional ballot applies to those who must provide "proof of identity" a requirement that applies only to those voting in person either early or at the polls on election day. When 8

"proof of identity" is not provided, sections 7-5-305 (in person at the polls) and 7-5-418 (early voting) direct the election official to follow A.C.A. 7-5-321, which sets out the procedure of voting a provisional ballot with the opportunity to provide identification by 12:00 p.m. of the Monday following the election. This latter procedure applies to the voter who is "listed on the precinct voter registration list but fails to provide proof of identity..." Again, "proof of identity" is only required of those voting in person. Thus, the statutory scheme is quite straightforward and unambiguous. Act 595 did not provide for a comparable procedure for absentee voters who fail to submit the requisite identification with their ballots. Unlike the statues cited-above, neither Ark. Code Ann. 7-5-412 nor Ark. Code Ann. 7-5-416 were amended by Act 595 to allow an absentee voter who does not submit with the ballot the requisite identification documents an opportunity to do so at a later date. 1 Arkansas Code Ann. 7-5-412 pertains to the marking and return of absentee ballots. That statute requires a first-time voter who registered by mail and did not provide identification at the time of registration to submit a copy of a current and valid photographic 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 first-time voter when returning the absentee ballot. If a first-time voter does not meet the identification requirements of Ark. Code Ann. 7-5-412 and -416, the absentee ballot must be considered as a provisional ballot. Arkansas Code Ann. 7-5- 1 Ark. Code Ann. 7-5-412(a)(1) was subsequently amended by Act 1424 of 2013. The language in that subdivision was changed from [t]he executed voter statement to [t]he completed and executed voter statement, including identification of the designated bearer, authorized agent, or administrator when appropriate. Additonally, Act 1424 made various changes to Ark. Code Ann. 7-5-416 regarding the time that processing absentee ballots could begin, the items to be forwarded by the county clerk to the election officials, and the time the absentee results could be printed and posted. Arkansas. Code Ann. 7-5-416(b)(1)(G) was added by Act 1424 to require a comparison of the name and address of the bearer, agent or administrator written on the absentee ballot return envelope with the information on the voter statement and making the ballot provisional if the information does not match. Act 1424 further added Ark. Code Ann. 7-5-416(b)(1)(J) declaring that the vote shall not be counted if the ballot was returned by a bearer, agent, or administrator and the voter statement does not authorize a bearer, agent, or administrator to receive or return the absentee ballot. 9

416 governs the counting of absentee ballots. Arkansas Code Ann. 7-5-416(b)(1) (as amended by Act 1424 of 2013) states, in pertinent part,: (F) (i) After the election official reads aloud from the statement, the election officials shall compare the name, address, date of birth, and signature of the voter's absentee application with the voter's statement and, for first-time voters who registered by mail, the first-time voter's identification document unless the voter previously provided identification at the time of mailing the voter registration application. (ii) If the county board of election commissioners determines that the application and the voter's statement do not compare as to name, address, date of birth, and signature, the absentee ballot shall not be counted. (iii) If a first-time voter fails to provide the required identification with the absentee ballot or at the time of mailing the voter registration application, then the absentee application, absentee ballot envelope, and voter's statement shall be placed in an envelope marked "provisional" and the absentee ballot shall be considered a provisional ballot; (G) The election officials shall compare the name and address of the bearer, agent, or administrator written on the absentee ballot return envelope with the information on the voter statement. If the information does not match, then the outer envelope, absentee application, secrecy envelope containing the ballot, and the voter's statement shall be placed in an envelope marked "provisional" and the absentee ballot shall be considered a provisional ballot; (H) If the absentee voter fails to return the voter statement, the vote shall not be counted; (I) Failure of the voter to submit the required absentee materials in the proper envelopes shall not be grounds for disqualifying the voter; (J) If the voter statement does not authorize a bearer, agent, or administrator to receive or return his or her absentee ballot and the ballot was received or returned by a bearer, agent, or administrator, the vote shall not be counted.... Other than first-time voters who registered by mail and did not provide the required identification, neither Ark. Code Ann. 7-5-412 nor Ark. Code Ann. 7-5-416 contemplates that the absentee ballot shall be treated as a provisional ballot for failure to submit the identification documents. Arkansas Code Ann. 7-7-101(31) defines a provisional ballot" as a ballot: (A) Cast by special procedures to record a vote when there is some question concerning a voter's eligibility; and (B) Counted contingent upon the verification of the voter's eligibility[.] 10

Pursuant to Ark. Code Ann. 7-5-308(d)(2), [u]nless enjoined by a court of competent jurisdiction, a provisional ballot shall be counted if it is cast by a registered voter and is the correct ballot, according to the precinct listed on the voter s eligibility affirmation, for the precinct of the voter s residence. Clearly, the above-referenced statute does not indicate how to count a ballot deemed provisional for failure to include identification documents. Act 595 established the procedure for counting the provisional ballot of a voter who did not provide proof of identity (i.e., in person voters). Ark. Code Ann. 7-5-321. No statute addresses the treatment of absentee ballots that are returned without the requisite identification documents. Arkansas Code Ann. 7-5-201(d)(1) provides that any person desiring to vote in this state shall present proof of identity to the election official when appearing to vote in person either early or at the polls on election day or, 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. 2 While the requirement that proof of identification or identification documentation be provided is mandatory, Ark. Code Ann. 7-5-321 establishes a procedure for allowing a voter to vote a provisional ballot and have the vote counted when a voter fails to provide proof of identity (i.e., in person voters). No similar statute or provision was included in Act 595 applying to absentee voters who fail to submit with the ballot the requisite identification documents. Therefore, an absentee voter that fails to submit with the ballot the required identification documents cannot vote. If a person is prohibited from voting, clearly that person s vote cannot be counted. 2 The absentee voter identification requirement does not apply to active members of the uniformed services, members of the merchant marines, and both members' spouses and dependents, who are absent on election day due to the members' service. Ark. Code Ann. 7-5-201(d)(1)(B)(i) -- (iii). The exemption also extends to residents of long-term care and resident care facilities, although they must provide documentation from the facility's administrator attesting that they are residents. Id. at (d)(2). 11

The Rules on Poll Watchers, Vote Challenges, and Provisional Voting and Voter Identification adopted by the SBEC on August 21, 2013 recognized that no cure period was allowed for absentee voters who failed to submit with the ballot the requisite identification documents. See Attachment J to the Petition for Declaratory Judgment. Section 810 of the Rules on Voter Identification read, In order for an absentee ballot to be counted, the absentee voter must submit with the ballot a copy of 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. Additionally, Intervenor recognizes that Act 595 did not provide for a cure period for absentee voters. See, Motion for Intervention, p. 2. THE EMERGENCY RULES CREATE A CURE PERIOD FOR ABSENTEE VOTERS NOT ALLOWED BY STATUTE IN VIOLATION OF THE SEPARATION POWERS DOCTRINE Our government is composed of three separate independent branches: legislative, executive and judicial. Each branch has certain specified powers delegated to it. The legislative branch of the State government has the power and responsibility to proclaim the law through statutory enactments. The judicial branch has the power and responsibility to interpret the legislative enactments. The executive branch has the power and responsibility to enforce the laws as enacted and interpreted by the other two branches. The Separation of Powers Doctrine is a basic p1rinciple upon which our government is founded, and should not be violated or abridged. Federal Express Corp. v. Skelton, 265 Ark. 187, 578 S.W. 1 (1979). The striking of the balance between discouraging fraud and other abuses and encouraging turnout is quintessentially a legislative judgment with which [the courts] should not interfere unless strongly convinced that the legislative judgment is grossly awry. Ind. Democratic Party v. Rokita, 458 F. Supp. 2d 775, (S.D. Ind. 2006), quoting Griffin v. Roupas, 12

385 F.3d 1128, 1131 (7th Cir. 2004). In this case, the SBEC, an administrative agency, has attempted to legislate for the General Assembly with respect the qualifications of absentee voters. Because the Board acted outside the scope of its authority and infringed upon a legislative function, the Rules should be declared invalid as a violation of the separation-of-powers doctrine. See, Dep't of Human Servs. v. Howard, 367 Ark. 55, 238 S.W.3d 1(2006). The first rule in considering the meaning and effect of a statute is to construe it just as it reads, giving the words their ordinary and usually accepted meaning in common language. Weiss v. McFadden, 353 Ark. 868, 120 S.W.3d 545 (2003). We construe the statute so that no word is left void, superfluous, or insignificant; and meaning and effect are given to every word in the statute if possible. Ozark Gas Pipeline Corp. v. Arkansas Pub. Serv. Comm'n, 342 Ark. 591, 29 S.W.3d 730 (2000). When the language of the statute is plain and unambiguous, there is no need to resort to rules of statutory construction. Weiss v. McFadden, supra. When the meaning is not clear, we look to the language of the statute, the subject matter, the object to be accomplished, the purpose to be served, the remedy provided, the legislative history, and other appropriate means that shed light on the subject. Id. When reviewing issues of statutory interpretation, the courts are mindful that the first rule in considering the meaning and effect of a statute is to construe it just as it reads, giving the words their ordinary and usually accepted meaning in common language. Wickham v. State, 2009 Ark. 357, 324 S.W.3d 344 (2009). See also, State v. Britt, 368 Ark. 273, 244 S.W.3d 665 (2006) (quoting Crawford v. State, 362 Ark. 301, 208 S.W.3d 146 (2005)). A statute is ambiguous only where it is open to two or more constructions, or where it is of such obscure or doubtful meaning that reasonable minds might disagree or be uncertain as to its meaning. Wickham v. State, supra. When a statute is clear it is given its plain meaning, and courts will not search for 13

legislative intent; rather, that intent must be gathered from the plain meaning of the language used in the statute. Id. When a statute is clear it is given its plain meaning, and the appellate court will not search for legislative intent. Rather, that intent must be gathered from the plain meaning of the language used. The Supreme Court of Arkansas is very hesitant to interpret a legislative act in a manner contrary to its express language, unless it is clear that a drafting error or omission circumvents legislative intent. R.K. Enter., L.L.C. v. Pro-Comp Mgmt., 356 Ark. 565, 158 S.W.3d 685 (2004). In attempting to construe legislative intent, courts look to the language of the statute, the subject matter, the object to be accomplished, the purpose to be served, the remedy provided, legislative history, and other appropriate matters that throw light on the matter. L. H. v. State, 333 Ark. 613, 973 S.W.2d 477 (1998), (citing Reed v. State, 330 Ark. 645, 957 S.W.2d 174 (1997)). It is well settled that an agency has no right to promulgate a rule or regulation contrary to a statute. Dep t. of Human Servs. v. Howard, 367 Ark. 55, 238 S.W.3d 1 (2006) (citing McLane Co., Inc. v. Weiss, 332 Ark. 284, 965 S.W.2d 109 (1998) and Pledger v. C.B. Form Co., 316 Ark. 22, 871 S.W.2d 333 (1994)). Regulations promulgated pursuant to an enabling statute will be upheld if they are reasonably related to the purpose of the enabling legislation, Mourning v. Family Publications Service, Inc., 411 U.S. 356, 369, 36 L. Ed. 2d 318, 93 S. Ct. 1652 (1973), but such regulations will not be sustained when they are contrary to congressional design. "The rulemaking power granted to an administrative agency charged with the administration of a federal statute is not the power to make law. Rather, it is 'the power to adopt regulations to carry into effect the will of Congress as expressed by the statute.'" Ernst & Ernst v. Hochfelder, 425 U.S. 185, 213-14, 47 L. Ed. 2d 668, 96 S. Ct. 1375 (1976) (quoting Manhattan General 14

Equipment Co. v. Commissioner, 297 U.S. 129, 134, 80 L. Ed. 528, 56 S. Ct. 397 (1936)). Thus, "our primary task when testing the statutory authority of a challenged regulation must always be to determine the intent of Congress." State of California v. Block, 663 F.2d 855, 860 (9th Cir. 1981). An administrative agency rule that is either inconsistent with the proper construction of the relevant statutory mandate or contrary to a statute's congressional intent cannot stand under this standard. The court is well aware that the "respectful deference" standard of review demands that the court not substitute its judgment for that of the agency. Rather, the standard directs the court to look to see whether the decision is based on a consideration of the relevant factors and whether there is clear error of judgment. American Bankers Ins. Group v. Board of Governors of the Fed. Reserve Sys., 3 F. Supp. 2d 37, 1998 U.S. Dist. LEXIS 6190 (D.D.C. 1998). Courts employ a two-part test when reviewing an agency's construction of a statute for which it is tasked to administer. See Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842, 104 S. Ct. 2778, 81 L. Ed. 2d 694 (1984). If a court concludes the congressional intent is clear, the Court and the agency "must give effect to the unambiguously expressed intent of Congress." Id. at 842-43 (noting that courts are the final authority on issues of statutory construction). In the event a court determines Congress has not addressed the issue before it, the court next analyzes "whether the agency's answer is based on a permissible construction of the statute." Id. at 843. 10 Therefore, so long as an agency's interpretation of a statute is reasonable, that interpretation or application should not be disturbed. Id. at 844-45; see also Paradissiotis v. Rubin, 171 F.3d 983, 987 (5th Cir. 1999); Martinez-Montoya v. INS, 904 F.2d 1018, 1021 (5th Cir. 1990). 15

Considering the plain language of Act 595, it cannot be said that the legislature intended for the absentee voter to cast a provisional vote and then return later with identification. Arkansas Code Ann. 7-5-201(d) clearly and unambiguously states: any person desiring to vote in this state shall:...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.... [emphasis added]. The statute goes on to recognize exceptions to this requirement for members of the uniformed services on active duty and members of the merchant marine who are absent from the county on election day because of the active duty or service in the merchant marine, spouses or dependents of members of the uniformed services on active duty and the merchant marine who are absent from the county on election day because of the active duty or service of the member, persons who are residents of a long-term care or residential care facility licensed by the state, and first-time voters who registered to vote by mail and who have not previously voted in a federal election in this state. The Arkansas Supreme Court has consistently held that the word "shall" indicates that the described action is mandatory, whereas the word "may" indicates that described action is discretionary. See, e.g., Marcum v. Wengert, 344 Ark. 153, 40 S.W.3d 230 (2001);Singleton v. State, 337 Ark. 503, 989 S.W.2d 533 (1999). Act 595 explicitly mandates that an absentee voter who does not fall within one of the exceptions must submit with the ballot the identification documentation in order to vote. Period. No exceptions. The SBEC is charged with monitoring all election law-related legislation. Ark. Code Ann. 7-4-101(f)(4). Before SB2, which later became Act 595, was filed, SBEC staff reviewed the proposed legislation and recommended revisions to the proposed bill. In an email sent to Senator King, the lead sponsor of the bill, on January 8, 2013, Tim Humphries suggested that the language of Ark. Code Ann. 7-5-412(b) be amended to specifically state that absentee ballots 16

not accompanied by copies of ID are not counted. See Attachment A to the Petition for Declaratory Judgment. He went on to reason, It may be with regard to the latter that you want such absentee ballots to be provisional and allow absentee voters to bring in ID. I assumed not, though because absentee voters, unlike in-person voters, are not on notice. If they are intended to be provisional, this needs to be clarified. [emphasis added]. Additionally, the following questions were posed: If no-id absentees are provisional (and subject to the cure period) should the instructions to absentee voters include an instruction that if they can t make a copy when they send in their ballots, they can bring their id to the county clerk by the dead-line? None of the suggested changes were accepted, nor were any amendments made to the bill to clarify that no- ID absentee ballots should be provisional and were subject to the cure period. As noted above, after the adoption of Act 595, Arkansas Code Ann. 7-5-412 was subsequently amended by Act 1424 of 2013. It was not, however, amended to make the ballot of an absentee voter who fails to submit identification documents with the ballot a provisional ballot. Additionally, Ark. Code Ann. 7-5-416 was subsequently amended by Act 1424. One of those amendments specified that if the information on the return envelope did not match the information on the voter statement with regard to the name and address of the bearer, agent or administrator, the ballot should be considered provisional. Ark. Code Ann. 7-5-416(b)(1)(G). What Act 1424 did not do was amend Ark. Code Ann. 7-5-416 to make the ballot of a voter who failed to submit with the ballot the required identification documents provisional. Further, Act 595 amended Ark. Code Ann. 7-5-305 and 7-5-418 to make the ballot of an in-person voter who fails to provide proof of identity a provisional ballot and to allow the cure period under Ark. Code Ann. 7-5-321. Had the legislature intended to make those ballots provisional 17

and allow for a cure period, either Act 595 or Act 1424 would have amended either Ark. Code Ann. 7-5-412 or 7-5-416 to do so. The legislature chose not to make those changes. After the election in Craighead County and the media coverage that ensued, despite the fact that Act 595 unequivocally mandates that an absentee voter submit the required identification documents with the ballot (a fact with which the SBEC agreed in August 2013 when it originally amended the Rules on Voter Identification), the SBEC in February 2014 amended its Rules on Voter Identification to provide that [t]he ballot of a voter who failed to provide required identification with his or her absentee ballot shall be considered a provisional ballot. 805 of Rules on Voter Identification. Further, with regard to absentee voters who fail to provide required identification, the SBEC devised a scheme by which those voters could submit the required identification at a later date. Rules on Voter Identification 806(B) provides: The ballot of an absentee voter that was made provisional for failure to provide required identification with his or her absentee ballot shall be counted and included in the certified results of the election if: (1) The absentee voter s ballot is not successfully challenged for any other reason; and (2) The absentee voter provides to either the county clerk or the county board of election commissioners by noon on the Monday following the election the voter s required identification or an affidavit that the voter cannot provide the required identification because of indigence or a religious objection to being photographed. The absentee voter may provide his or her required identification or his or her affidavit of indigence or religious objection to the county board by presenting the required identification or the affidavit at any meeting of the county board held before noon on the Monday following the election. The absentee voter may alternatively provide his or her required identification or his or her affidavit of indigence or religious objection to the county clerk by presenting the required identification or the affidavit to the county clerk before noon on the Monday following the election. 18

The absentee voter shall present the required identification or his or her affidavit of indigence or religious objection by mail, in person by the voter, or in person by a third person designated by the voter. When the identification is delivered by a third person, it must be accompanied by a written statement of the voter, signed and dated by the voter, stating the person s name and address and that the person has been authorized by the voter to deliver the identification for the voter. Other than the administrator of a long-term care or residential care facility licensed by the state, no person may deliver to the clerk or election commission the identification of more than two absentee voters. If no written statement is included with the required identification delivered by a third person, the ballot shall not be counted. An administrator of a long-term care or residential care facility licensed by the state may deliver to the clerk or election commission the identification documentation from any of the residents of the administrator s facility who submitted absentee ballots. The devised scheme goes far beyond even that contemplated by the legislature for in-person voters in Ark. Code Ann. 7-5-321 which requires the proof of identity to be returned in person. See also, Rules on Voter Identification, 806(A). According to the Rule adopted by the SBEC, absentee voters who fail to submit with the ballot the required identification documents are now allowed to provide their required identification or an affidavit of indigence or religious objection by mail, in person by the voter, or in person by a third person designated by the voter. The required identification that may be submitted by absentee voters is not defined by the Rules, but one must assume it is something other than the proof of identity required of an in-person voter that is defined by the rules. Absentee voters are not required by statute to provide proof of identity but may instead provide a copy of a current and valid photographic 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. If the required identification set out in the Rule adopted by the SBEC is the same as that set out in statute, one must question why the opportunity to provide 19

an affidavit of indigence or religious objection is extended to absentee voters. Absentee voters are allowed by statute to submit something other than photo identification, but the statute specifies what those things may be and does not allow an affidavit of indigence or religious objection. Additionally, the Rule allows the required identification to be delivered by a third person if it is accompanied by a statement signed and dated by the voter stating the person s name and address and that the person has been authorized by the voter to deliver the identification for the voter. Nowhere in any statute is a designated bearer scheme contemplated for curing the lack of identification documentation. Additionally, the SBEC modified its Rules on Poll Watchers, Vote Challenges and Provisional Voting with regard to the notice to be provided to provisional voters. Arkansas Code Ann. 7-5-308 has always required written notice to in-person provisional voters regarding how to determine if their provisional ballot was counted. That notice was amended pursuant to Ark. Code Ann. 7-5-321 to notify in-person voters who vote a provisional ballot for failure to provide proof of identity of the steps they must take to have their vote counted. That notice is provided immediately at the poll. No statute has ever required notification to an absentee voter whose ballot is deemed provisional for failure to provide the required identification documentation, not even for first-time voters who failed to provide the required identification. Despite the lack of statutory authority for such a requirement, the SBEC modified to the Rule to require: (b) Whenever an absentee ballot is made provisional for failure to submit required identification with the ballot, the county election commission must send notice by first-class mail to the voter s absentee mailing address and the voter s registration address and deliver such notice electronically or by telephone, if possible. The notice shall include the following information: - That the provisional voter will be notified by first class mail whether his or her vote was counted and the reason if not counted. 20

- That a provisional voter who cast a provisional ballot for failure to provide required identification may present the required identification or an affidavit of indigence or religious objection to the county clerk or the county board of election commissioners in any matter allowed for in 806 of the Rules for Voter Identification by noon of the first Monday following the election in order for the provisional ballot to be counted; - The address, telephone number, and regular office hours of the county clerk; - The dates of any meetings of the county board of election commissioners scheduled before noon of the next Monday following the election; - An explanation of the process by which the voter s ballot was made provisional; and - The date, time, and address of a hearing for the voter if the provisional ballot is rejected. The SBEC, by Rule, now requires that up to four different forms of notification be provided to an absentee voter whose ballot is made provisional for failure to provide the required identification documents. The county board of election commissioners is not allowed to begin processing absentee ballots any earlier than 8:30 a.m. on election day. Ark. Code Ann. 7-5- 416(a)(1). Absentee ballots must be counted prior to the closing of the polls on election day. Ark. Code Ann. 7-5-416(a)(5). The method of opening, processing, counting, and canvassing absentee ballots is fully set out in statute. Ark. Code Ann. 7-5-416(b). It is lengthy and time consuming. The requirement that the absentee ballot be made provisional for failure to submit required identification with the ballot is added by the Rules. It is not contained in the statute. Additionally, once the ballot is made provisional for failure to submit required identification, the county election commission must send notice by first-class mail to the voter s absentee mailing address and the voter s registration address and deliver such notice electronically or by telephone, if possible. The rule does not state when such notice must be given, but, as a practical matter, since the required identification must be submitted by noon on the Monday following the election, if the notification is not accomplished by the day following the election it 21

will be for naught because there will be no time for the voter to receive the notification and return the required identification to the appropriate official. In an election where 5,000 absentee ballots are cast (a realistic figure in a Pulaski County Presidential General Election, See Exhibit A to Plaintiffs Motion for Summary Judgment), if eighty percent of absentee voters comply with the identification requirement under the statute (as was the case in the March 2014 special election, See Exhibit A to Plaintiffs Motion for Summary Judgment), 1,000 provisional ballots will result under the SBEC s Rule. Pursuant to the SBEC Rule, 1,000 voter records would have to be researched to determine if the voter s absentee mailing address and the voter s registration address are the same, if an email address is available, and if a telephone number is available. After researching each voter s record, up to 2,000 first-class mailings would have to addressed and mailed (at a cost of $.49/each), up to 1,000 emails would have to be generated, and up to 1,000 telephone calls would have to be placed. All of this would have to take place the day following the election. Clearly, there is a reason why the legislature saw fit not to require such notification and not to extend the cure period to absentee voters. Interestingly, no notification is required for absentee provisional ballots under Ark. Code Ann. 7-5-412 and -416(b)(1)(F)(iii) (first-time voter who registered by mail and failed to provided identification) or Ark. Code Ann. 7-5-416(b)(1)(G) (requiring the absentee ballot to be provisional if the name and address of the bearer, agent, or administrator written to the absentee ballot return envelope does not match the information on the voter statement). Absentee voting is a fundamentally different process from in-person voting, and is governed by procedures entirely distinct from in-person voting procedures. See, Ind. Democratic Party v. Rokita, 458 F. Supp.2d 775, 830-31 (S.D. Ind. 2006). Courts have held that in-person and absentee voters are 22

not similarly situated for purposes of equal protection analysis. See, City of Memphis v. Hargett, 414 S.W.3d 88, 110 (Tenn. 2013) (unpublished); The American Civil Liberties Union of New Mexico v. Santillanes, 546 F.3d 1313 (10th Cir. 2008);Indiana Democratic Party v. Rokita, 458 F. Supp. 2d 775 (S.D. Ind. 2006), aff'd. sub nom. Crawford v. Marion County Election Bd., 472 F.3d 949 (7th Cir. 2007); aff'd. 553 U.S. 181 (2008). The legislature did not require notification to only one type of provisional absentee voter. To have done so would have violated the 14 th Amendment of the United States Constitution and the Equal Protection Clause of the Arkansas Constitution, Art.2, 18. The SBEC, however, has created disparate treatment among absentee voters with regard to the treatment of provisional absentee ballots. Only those absentee voters whose ballots are made provisional for failure to submit the required identification documents are given notification that their ballot has been deemed provisional and given an opportunity to cure the defect. Absentee voters whose ballots are made provisional for any other reason will only be notified of that fact after the Board has determined whether or not their ballot should be counted. Ark. Code Ann. 7-5-308. There are reasons other than failure to submit with the ballot the required identification documents why an absentee ballot may not be counted. If the absentee voter fails to return the voter statement, the vote shall not be counted[.] Ark. Code Ann. 7-5-416(b)(1)(H). If the voter statement does not authorize a bearer, agent, or administrator to receive or return his or her absentee ballot and the ballot was received or returned by a bearer, agent, or administrator, the vote shall not be counted[.] Ark. Code Ann. 7-5-416(b)(1)(J). [T] here must be strict compliance with statutory provisions regarding the application for and casting of absentee ballots, even if the challenge is brought after the election has occurred. Womack v. Foster, 340 Ark. 124, 8 S.W.3d 854 (2000) (invalidating 495 absentee ballots because the voters who cast 23

those votes failed to indicate a statutory reason for voting absentee on their absentee-ballot application). Voters are not notified that their ballot was not counted nor are they given an opportunity to cure any of the above mentioned defects. While it is true that Ark. Code Ann. 7-5-416 does not specifically state that the vote shall not be counted if the identification documents are not included, it would be redundant to do so. Arkansas Code Ann. 7-5-201(d) has already declared those documents must be submitted with the ballot for the voter to vote. There is no need to speak further on the issue. Arkansas Code Ann. 7-5-416(b)(1)(H) and (J) states that the vote of an otherwise qualified voter (i.e., one who has submitted the identification documents with the ballot) shall not be counted for failure to strictly comply with the remaining statutory requirements. There are valid and rational reasons why the legislature may have chosen not to extend the cure period to absentee voters. First, absentee voters are not immediately on notice that their vote is provisional. There are only three and one-half business days between Election Day and the end of the cure period. This allows very little time to provide notice to an absentee voter and have them return the required identification documentation. Secondly, ballots cast by qualified electors outside the United States on election day that are signed, dated, postmarked, and mailed by the voters no later than the day of the election are counted as long as they are received by the county clerk no later than 5:00 p.m. ten (10) calendar days after the date of the election. See Ark. Code Ann. 7-5-411(a)(1)(B). In other words, overseas citizen ballots may not be received until four and one-half days after the cure period has ended. Regardless of the reasons, the legislature saw fit not to extend the cure period to absentee voters. In adopting its Rules the SBEC has substituted its judgment for that of the legislature by creating a cure period for absentee voters, establishing notification requirements not contemplated by statute, and creating 24