Arkansas Supremes Strike Down Judge's Ruling That Nixed Photo ID Voting Law, But...

[BradBlog]

Source: BRAD BLOG

BREAKING: Arkansas Supremes Strike Down Judge's Ruling That Nixed Photo ID Voting Law, But Fail to Rule (Yet) on Law's Constitutionality

The Arkansas Supreme Court has tossed a ruling by a lower court judge who had found the state's Photo ID voting requirement to be in violation of the state Constitution. The high court did not, however, rule on the constitutionality of the law, finding only that Circuit Court Judge Tim Fox went too far in his previous ruling.

Late last month we described Fox' decision [PDF], declaring the state's Republican-enacted Act 595 "null and void" and "unconstitutional in that it violates Articles 3, Section 1 and Article 3, Section 2 of the Arkansas Constitution."

Those sections of the state Constitution describe both the "Qualifications of Electors" as well as the "Right of Suffrage," stating 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"...

FULL STORY: http://www.bradblog.com/?p=10627

Read more: http://www.bradblog.com/?p=10627

[LiberalArkie]

1. Ruling on Same-Sex

The Arkansas Supreme Court has denied an request for an emergency stay of Judge Chris Piazza's order overturning the ban on same-sex marriage. The court also dismissed as premature an appeal of Piazza's ruling because it wasn't a final order.

Here's the opinion.
The court, however, seems to have returned the state to its old status quo — impossible for same-sex couples to obtain marriage licenses — because it notes that Piazza's ruling didn't mention another statute that prohibits clerks from issuing marriage licenses to same sex couples. Action will now shift to Piazza's court to pursue final orders, injunctive relief and a cleanup on the omitted statute.

Said Jack Wagoner, attorney for the plaintffs:

We'll fix that tomorrow and be back here again.... How can order find something unconstitutional but not affect a statute that would require the clerks to do something unconstitutional?

Justices Donald Corbin and Paul Danielson issued a separate concurrence that said the simply would have dismissed the appeal for lack of a final order and rejected the emergency stay request because the case is still before the trial court.

In addressing Attorney General Dustin McDaniel's argument that the court should exercise its superintending authority and issue a stay because of confusion on the part of clerks on whether they should issue same-sex licenses.

We tum again to the circuit court's order. Here, the circuit court did not issue a ruling with regard to Ark. Code Ann. $ 9-11- 208(b) (Repl. 2009), "License not issued to persons ofthe same sex." Therefore, the circuit court's order has no effect on Ark. Code Ann. S 9-11-208(b) and its prohibition against circuit and counry clerks issuing same-sex marriage licenses. Accordingly, we deny the State's petition for an emergency stay of the circuit court's May 9,2074 order

At a minimum, this reads as clear protection for the 73 counties that have chosen not to issue licenses despite Piazza's order. Pulaski and Washington have continued to do so. I'm seeking a comment from Larry Crane, the Pulaski clerk, on his interpretation. He's been mindful of that other statute throughout the period he's been issuing licenses, as Washington County has been. Both counties were among the six counties named as defendants in the suit.

The bottom line remains that Judge Piazza's judgment remains in place.

[BradBlog]

2. Interesting, but...

...It has absolutely nothing to do with the OP -- other than both stories involve the AR Supremes, I guess

[davidpdx]

3. They are supposedly non-partisan, but I'd bet the majority are Republicans

Yes, the same party that reads the Constitution of the United States and ignores other parts when it is convenient.

[sinkingfeeling]

4. I'm betting that the ACLU suit will see the Arkansas Supreme Court toss voter ID.

[BradBlog]

6. For accuracy sake...

The ACLU suit is a federal suit. So it'll be before a federal judge and, if challenged thereafter, a federal appellate and then the U.S. Supreme Court.

So, the Arkansas Supreme Court wouldn't toss Photo ID restrictions based on the ACLU case.

They might, however, toss the state case that will, no doubt, be back before them again. In this case, they reversed the lower court's decision largely on a technicality. They'll have to work pretty hard to find a way to NOT find the Photo ID law a violation of the state's Constitution. (Then again, the state could just amend it's Constitution...so the federal case, which challenges the law as a violation of the U.S. Constitution and the federal Voting Rights Act, is still very important!)

[happyslug]

5. Here is the actual opinion

The question then becomes whether the constitutionality of the Act was properly before the circuit court for a ruling. Based on the record before us, we must conclude that the answer to that question is no

http://opinions.aoc.arkansas.gov/WebLink8/0/doc/327039/Electronic.aspx

In simple terms, the Arkansas Supreme Court ruled that the Trial Judge could NOT rule on the constitutionality of the law, for no one brought the issue of its constitutionality up before the Trial Judge. The actual issue in front of the Trial Judge was in regards to how to handle Absentee Ballots, given that the Underlying law did not permit any way to "cure" an absentee ballot that did not have the required IDs attached to the Ballot. The Judge ruled that the Administrative Agency governing voting could NOT issue a regulations permitting such a "Cure", for the whole concept of Voter ID was unconstitutional.

The Arkansas Supreme Court ruled that the Trial Judge was correct in result, his reasoning was wrong. Voter ID did NOT have to be ruled unconstitutional, all the Trial Judge had to rule was the Administrative Agency in control of voting had NO authority to issue regulations on how to "Cure" absentee ballots. The power to permit "Cures" of bad ballot was a power reserved to the State Legislature and if the State Legislature did not permit a "Cure" in absentee Ballots (as the Legislature had done for in person voting without ID), that absence of a "Cure" could NOT be fixed by a Regulation issued by the Administrative agency (only the State Legislature could make such a "Cure&quot .

The issuing of a Regulation that violates the power of the Legislature is a violation of the Doctrine of Separation of powers and thus unconstitutional on that grounds, NOT on the grounds of the right to vote that is permitted in the Arkansas State Constitution.

Thus the issue of Voter ID was NOT properly before the court and the Court had no right to rule on that issue.