Last April, Arkansas’ Republican-controlled state legislature overrode Gov. Mike Beebe’s (D) veto to enact a strict photo ID law for all voters. But while Arkansas is now one of several states which suppress voting by requiring valid photo identification to vote at the polls, a unique and poorly written provision in the bill caused hundreds of absentee voters to also have their votes rejected in last month’s primary.
The Arkansas ID law requires that people who show up to vote in person early or on Election Day show “proof of identity” before casting their ballots. That proof must be a driver’s license, a photo identification card, a concealed handgun carry license, a United States passport, an employee badge or identification document, a United States military identification document, a student identification card issued by an accredited postsecondary educational institution in the State of Arkansas, a public assistance identification card, or a state-issued voter identification photo ID card. Such laws have been shown to have both a discriminatory intent and effect — and to depress voter participation. Even one of the Arkansas law’s strongest supporters, Republican gubernatorial nominee Asa Hutchinson, was initially turned away from voting in his own primary because he forgot his photo ID last month.
But Arkansas is one of a smaller number of states that also insists that absentee voters prove their identity. Its law requires that the absentee ballot be sent in with a photocopy of a valid photo identification or “a current utility bill, bank statement, government check, paycheck, or other government document that shows the name and address of the voter.” The only exceptions to this rule are for active duty service members and their spouses and residents of long-term care or residential care facilities.
Jim Eichner, managing director of programs for the Advancement Project, told ThinkProgress that such provisions are unusual because absentee voters are not the ones most state legislatures intend to suppress. “The people who use absentee ballots are generally not voters of color, the poor, people designed to disenfranchised. They tend to be more affluent, more white voters. They’re not the target.” But, he noted, such a rule is likely disenfranchise even more voters. “It’s one additional added complication; first you need to have ID, then you have to have access to a photocopier or to pay for a photocopier. In the calculus of voting, any time you make it harder or more inconvenient, you’ll depress turnout. All of it is unnecessary, and in our view it shouldn’t stand.” He noted that some people, especially elderly voters without easy access to transportation, will not have access to a place with a photocopier.
Alabama requires absentee voters to include a copy of a photo ID, but exempts people with disabilities and those over age 65. North Dakota requires photo ID or or someone else to sign a statement attesting to the absentee voter’s identity. In Kansas, absentee ballot applications must be accompanied by either a photo ID or a driver’s license number. But only Arkansas apparently requires even senior citizens to include a copy of the ID or have their votes rejected.
Even if voter fraud were a significant problem in the United States, this sort of provision would do virtually nothing to stop it. While a pollworker can match an in-person voter’s face with that on the photo ID, they would have no way of knowing whether the person sending in the vote and a copy of the voter’s proof of identity is actually the voter.
Making matters worse was an apparent drafting error that omitted an important fail-safe for rejected ballots. Hutchinson and others who didn’t have a valid ID with them at the polls had the right come back later the same day with one — or to cast a provisional ballot, which would be counted if they bring proof of identity to the county board of election commissioners or the county clerk by 12:00 p.m. on the Monday following the election. But the bill’s author neglected to allow such a “cure period” for absentee voters: if a ballot is rejected for lack of valid ID, it lacks any option for the voter to have his or her vote counted.
At the urging of Secretary of State Mark Martin (R), the Arkansas Board of Election Commissioners attempted to fix this omission by regulation, allowing the same period for rejected absentee voters to prove their identity. But the Pulaski County Board of Elections Commissioners objected to this as outside of the board’s legal purview — and both Attorney General Dustin McDaniel (D) and the state Supreme Court agreed.
Chris Burks (D), one of the Pulaski commissioners who challenged the law, told ThinkProgress that while the board did not want to see even more people disenfranchised, it was concerned that the regulatory fix would not have been logistically possible to administer and that it would set a precedent that the un-elected state board could administratively make it harder to vote in the future. “The election is on a Tuesday,” Burks explained, “ and the rejected voters have until Monday at noon to bring in ID. Say they get letter on Thursday — if staff stays up late Tuesday night to send all letters — or maybe they’ll even it get Friday. They have Friday and part of Monday to come in.” This, Burks observed, would create a “huge practical problem” for the local administrators who might need a 15 to 30 minute hearing for each of hundreds of absentee voter: “How do you have time to have all these hearings in time to certify an election within a week?”
Burks noted that in Pulaski, home of Little Rock and the largest county in Arkansas, 630 people attempted to vote absentee in May’s primary and 62 were rejected for lack of adequate ID — nearly a 10 percent rejection rate. And in majority-African American jurisdictions, like St. Francis County, the numbers were even worse: 83 rejected out of 102 absentee ballots returned (more than an 81 percent rejection rate).
Recognizing that many absentee voters, whose votes were also rejected in a March special election for community college positions, were also rejected in last month’s primary, Burks and his two board colleagues unanimously voted to do something else not required by state law: notify the rejected absentee voters so they don’t make the same mistake in the future. Hundreds of uncounted absentee voters in other counties have not even been notified that their votes were rejected.
John Parke (R), the county’s lone Republican election commissioner and the treasurer of the state GOP, told ThinkProgress that he supported the voter ID law but felt it was important to let disqualified absentee voters know so they could at least fix their mistake next time: “You have a new procedure in place — even though it’s spelled out in the instructions to the voter, it’s something different they weren’t accustomed to. If they don’t know their vote’s not getting counted, they won’t know what they’re doing wrong.” He added that the 10% rejection rate was too high — “we should have better.”
Stu Soffer (R), who who is an election commissioner in Jefferson County (home of Pine Bluff) and is the Republican Party’s appointee to the Arkansas Board of Election Commissioners, thinks emergency legislative action is necessary to resolve the absentee ID issues. Speaking only for himself, he told ThinkProgress the state law should exempt senior citizens: “My recommendation when the legislation was being drafted and remains — exempt every absentee ballot voter above age 65 from the requirement. Many are handled by a designated bearer or authorized agent and Arkansas has a strong procedure in place to identify these individuals who are restricted to handling only two absentee ballots per election. The criteria for obtaining a free, county clerk provided, photo identification should also be reviewed with a view to assisting persons who have lost their documents obtain a replacement.” Soffer also suggested that it would make more sense to require the ID with the application, rather than with the ballot itself. That, he noted, would give local officials “sufficient time to get back to the voter if they neglected to meet the requirement. Certainly more time in the majority of cases than between Election Day (a Tuesday) and noon the following Monday.”
The law’s author, Sen. Bryan King (R), did not respond to a ThinkProgress inquiry about the absentee issue. But he reportedly plans to propose a legislative change next year to allow absentee voters the same “cure period” as in-person voters.
The Arkansas constitution requires that any registered adult citizen who resides in Arkansas “may vote in an election in this state,” except in cases of felony convictions. An amendment states that those registering to vote by mail must include valid proof of identity “in order to avoid the additional identification requirements upon voting for the first time.” Though there is a provision allowing some parts of Arkansas’ voting requirements to be changed by a two-thirds vote of the state legislature, it is doubtful that that provision applies to voter ID and the bill did not achieve that level of support. A state circuit court judge ruled last month that the law is unconstitutional, but put his ruling on hold pending appeal.
Cory D. Childs, a Little Rock resident and president of the W. Harold Flowers Law Society, voluntarily chose not to show ID on Election Day and had his provisional ballot rejected. He told ThinkProgress that he has “faith that the Supreme Court will follow the constitution” and strike down the state’s law. “Voter fraud is not a problem in our state. The new Arkansas voter law is simply a way to attempt to disenfranchise African-Americans and other minorities. This new law is simply a cure in search of a non-existent disease,” he explained. While Childs recognizes that it will likely be too late for his vote — and those of hundreds of his fellow Arkansans to be counted in that election, he is hopeful that the the will not be disenfranchised in future elections.