The opinion
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SUPREME COURT OF ARKANSAS
No. CV-14-462
MARK MARTIN, IN HIS OFFICIAL Opinion Delivered October 15, 2014
CAPACITY AS SECRETARY OF STATE
FOR THE STATE OF ARKANSAS AND
HIS OFFICIAL CAPACITY AS
CHAIRMAN OF THE ARKANSAS APPEAL FROM THE PULASKI
STATE BOARD OF ELECTION COUNTY CIRCUIT COURT
COMMISSIONERS; RHONDA COLE; [NO. 60CV-14-1495]
C.S. WALKER; JAMES HARMON
SMITH III; STUART SOFFER; HONORABLE TIMOTHY DAVIS FOX,
BARBARA MCBRYDE; AND CHAD JUDGE
PEKRON, IN THEIR OFFICIAL
CAPACITIES AS COMMISSIONERS OF
THE ARKANSAS STATE BOARD OF
ELECTION COMMISSIONERS
APPELLANTS
V.
FREEDOM KOHLS; TOYLANDA
SMITH; JOE FLAKES; AND BARRY
HAAS
APPELLEES AFFIRMED.
DONALD L. CORBIN, Associate Justice
Appellants, 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 (“Martin”), and Rhonda Cole; C.S. Walker; James Harmon Smith III; Stuart
Soffer; Barbara McBryde; and Chad Pekron (“Appellants”), in their official capacities as
Commissioners of the Arkansas State Board of Election Commissioners, appeal an order of
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the Pulaski County Circuit Court declaring Act 595 of 2013 (“Act 595”) unconstitutional,
enjoining and restraining from enforcing the proof-of-identity provisions of Act 595 and the
rules promulgated as a result of Act 595, and granting a preliminary injunction against
Appellants from enforcing Act 595’s proof-of-identity requirements in favor of Appellees
Freedom Kohls, Toylanda Smith, Joe Flakes, and Barry Haas, who are registered voters in
Pulaski County. For reversal, Martin makes five allegations of error, including three
arguments that the circuit court abused its discretion in granting the preliminary injunction.
Appellants also assert that the circuit court’s issuance of the preliminary injunction was an
abuse of discretion. Pursuant to Arkansas Supreme Court Rule 1-2(a)(1) (2014), we have
jurisdiction of this appeal, as it involves the interpretation and construction of the Arkansas
Constitution. We affirm the circuit court’s ruling that Act 595 is unconstitutional on its face.
I. Facts
On March 19, 2013, both houses of the Arkansas General Assembly passed Act 595,
which required Arkansas residents to provide “proof of identity” when voting at the polls.
Act 595 is entitled, “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.” Specifically, section 1
of Act 595 requires proof of identity in the form of a voter-identification card or a document
or identification card showing the voter’s name and photo issued by the United States, the
State of Arkansas, or an accredited postsecondary educational institution in Arkansas with an
expiration date. Section 1 of Act 595 provides a list of such acceptable documentation.
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Governor Beebe, in a letter dated March 25, 2013, questioned the constitutionality of
the Act and informed the Arkansas Senate that he had vetoed Act 595 because it was “an
expensive solution in search of a problem” and was “an unnecessary measure that would
negatively impact one of our most precious rights as citizens.” On March 27, 2013, the
Arkansas Senate overrode the governor’s veto. The Arkansas House of Representatives later
overrode the veto on April 1, 2013.
On April 16, 2014, Appellees filed a complaint for injunctive and declaratory relief
pursuant to the Arkansas Declaratory Judgment Act, specifically Arkansas Code Annotated
sections 16-111-102 to -104 (Repl. 2006), challenging sections of Act 595 passed by the
Arkansas General Assembly that allegedly placed an additional qualification and impairment
on Arkansas residents before they could exercise their state constitutional right to vote. In the
complaint, Appellees alleged that “unwarranted and unconstitutional provisions of Act 595
violate Article 3, Section 1, and Article 3, Section 2, of the Arkansas Constitution.”
Specifically, Appellees claimed that Act 595 (1) added a new and unconstitutional qualification
to the right to vote in violation of article 3, section 1, of the Arkansas Constitution and (2)
impaired the right to vote in violation of article 3, section 2, of the Arkansas Constitution.
In their prayer for relief, Appellees sought a declaration that Act 595’s proof-of-identity
requirement was unconstitutional and invalid under the Arkansas Constitution; that the circuit
court award Appellees all relief allowed by law and equity, including but not limited to
declaratory, preliminary, and permanent injunctive relief; that the circuit court award
attorneys’ fees and costs; and any other relief.
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On April 22, 2014, Appellees filed a motion for preliminary injunction requesting the
court to enjoin Appellants from enforcing Act 595’s proof-of-identity requirements in the
May 2014 primary election. In response to Appellees’ motion for preliminary injunction,
Martin argued that Appellees had not demonstrated standing to bring a facial challenge to Act
595; that Appellees failed to cite a statutory basis for injunctive relief; that, to the extent that
Appellees sought relief other than declaratory judgment, the suit was barred by sovereign
immunity; that Appellees could not prove that failure to issue a preliminary injunction would
result in irreparable harm; and that Appellees were unlikely to succeed on the merits of the
complaint. Appellants responded, claiming that Appellees did not meet the requirements for
a preliminary injunction and that they had sovereign immunity to Appellees’ requests for any
relief other than a declaratory judgment.
The circuit court held a hearing on Appellees’ motion for preliminary injunction on
May 2, 2014. There, the parties limited their presentation solely to a facial challenge of the
proof-of-identity provisions of Act 595. On May 23, 2014, the circuit court entered its order
finding that Appellees were registered voters in Pulaski County who had standing to make the
facial challenge. The circuit court overruled and denied Martin’s objections that sovereign
immunity precluded entry of a preliminary injunction and that necessary parties were missing
from the lawsuit on the pleadings. The circuit court specifically ruled on the constitutional
arguments as follows:
The “proof of identity” documentation required to be provided by each voter under
Act 595 constitutes an additional qualification necessary to vote, in violation of Article
3, Section 1 of the Arkansas Constitution, and [Appellants] are hereby enjoined and
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restrained from enforcing the “proof of identity” provisions contained in Act 595 for
its facial unconstitutionality on that basis. [Appellants] are enjoined from enforcing
their rules promulgated as a result of Act 595 that specifically require election officials
to require voters to produce “proof of identity” prior to casting a ballot either during
early voting or on election day.
The circuit court concluded that Appellees had made a requisite showing of irreparable harm
and a likelihood of success on the merits “given the facial unconstitutionality of the ‘proof of
identity’ provisions contained in Act 595” and granted preliminary injunctive relief pursuant
to Arkansas Rule of Civil Procedure 65. The circuit court temporarily enjoined and
restrained Appellants from enforcing any proof-of-identity provisions of Act 595 and from
enforcing their rules promulgated as a result of Act 595 either during early voting or on
election day in May 2014. Further, the circuit court on its own motion stayed the
preliminary injunction pending an action by this court in Arkansas State Board of Election
Commissioners v. Pulaski County Election Commission, 2014 Ark. 236, 437 S.W.3d 80
(subsequently vacating the circuit court’s grant of summary judgment because Act 595’s
constitutionality was neither raised nor developed by the parties at the circuit-court level and
dissolving the temporary stay). Appellants timely filed a notice of appeal of the circuit court’s
order granting a preliminary injunction.
II. Points on Appeal
On appeal, Martin argues that Appellees lacked standing to bring a facial challenge to
the constitutionality of Act 595; that the circuit court lacked jurisdiction to enter a
preliminary injunction, which was barred by sovereign immunity; that the circuit court
abused its discretion in granting the preliminary injunction; that the circuit court’s order
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violates Arkansas Rule of Civil Procedure 65 (2014); and that Appellees failed to join
necessary parties. Appellants assert that the circuit court abused its discretion in issuing the
preliminary injunction because Appellees did not demonstrate that they were likely to succeed
on the merits.
At the outset, we emphasize a procedural anomaly in this case. From the bench and
in its order, the circuit court granted Appellees’ motion for preliminary injunction after
analyzing the two factors of irreparable harm and a likelihood of success on the merits, but
then proceeded to grant declaratory and injunctive relief based on the facial challenge to Act
595, which Appellees presented in count one of their complaint.1 In doing so, the circuit
1
The circuit court’s written order incorporates by reference its bench ruling that “the
information required under Act 595 constitutes an additional qualification” and that “595 is
unconstitutional in that it adds that qualification.” Afterward, separate Appellants’ counsel
asked the circuit court for clarification as follows:
[ATTORNEY GENERAL]: I’m trying to figure out the Court’s ruling within the
procedural framework –
THE COURT: It’s unconstitutional, but I’m staying it so that –
[ATTORNEY GENERALl: Yeah. I understand –
THE COURT: Okay.
[ATTORNEY GENERAL]: I understand that. I just – I guess in my mind we’re
here for a preliminary injunction proceeding. But you’ve made, as a matter of law,
that’s the decision.
THE COURT: I’m granting the injunctive relief.
[ATTORNEY GENERAL]: Right.
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court ruled that Act 595 was unconstitutional on its face because it placed additional
qualifications on Arkansas voters by requiring that they provide a proof of identity before
exercising their right to vote, in violation of article 3, section 1, of the Arkansas Constitution.
On appeal, however, the parties’ arguments focus entirely on the circuit court’s granting the
preliminary injunction and do not address the circuit court’s ruling on the merits that Act 595
is facially invalid with its added proof-of-identity voting requirement. Thus, to the extent
that the parties present their arguments in terms of the likelihood of success on the merits, we
treat those arguments as addressing the merits of the facial challenge to Act 595.2
THE COURT: I’m declaring [Act 595] to be unconstitutional and granting the
injunctive relief that it’s not be enforced, but I’m staying my decision. Will that do
it?
[ATTORNEY GENERAL]: But you have not – this was not a trial on the merits;
this was only strictly a preliminary injunction hearing, correct?
THE COURT: It was a challenge to the – a facial challenge.
Following a conference off-record, Appellants’ counsel did not make any objection to the
circuit court’s ruling that Act 595 was facially invalid.
2
We conclude that any arguments concerning Appellees’ motion for preliminary
injunction are now moot for two distinct reasons. First, the preliminary injunction is
rendered moot because of the circuit court’s final resolution of the constitutional question.
See, e.g., S. Coll. of Naturopathy v. State ex rel. Beebe, 360 Ark. 543, 203 S.W.3d 111 (2005);
Galloway v. Ark. State Hwy. & Transp. Dep’t, 318 Ark. 303, 885 S.W.2d 17 (1994). Second,
in their motion for preliminary injunction, Appellees stated as follows:
Pursuant to Rule 65 of the Arkansas Rules of Civil Procedure,
[Appellees] seek a preliminary injunction against the [Appellants] from
enforcing the new “proof of identity” requirements contained in Act 595 in
order that the [Appellees], and all other similarly situated qualified Arkansas
residents may cast valid ballots at the upcoming May election.
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A. Standing
First, we address Martin’s argument that the circuit court did not have subject-matter
jurisdiction because Appellees lacked standing to challenge the constitutionality of Act 595.
Specifically, Martin asserts that Appellees have offered no proof that they suffered an injury
or harm as a result of the proof-of-identity provisions of Act 595. In response, Appellees
contend that they only had to prove that they were registered voters to which Appellants
stipulated at the hearing and that the stipulation established standing.
The general rule is that one must have suffered injury or belong to that class that is
prejudiced in order to have standing to challenge the constitutional validity of a law. Stokes
v. Stokes, 271 Ark. 300, 613 S.W.2d 372 (1981). Stated differently, plaintiffs must show that
the questioned act has a prejudicial impact on them. Tauber v. State, 324 Ark. 47, 919 S.W.2d
196 (1996); Garrigus v. State, 321 Ark. 222, 901 S.W.2d 12 (1995).
In the instant case, Appellees needed only to prove that their rights were affected by
Act 595 in a declaratory-judgment action challenging the validity of Act 595. As registered
voters, Appellees were only required to demonstrate that they were among the class of persons
affected by the legislation. See Jegley v. Picado, 349 Ark. 600, 80 S.W.3d 332 (2002). Here,
we agree with the circuit court’s ruling that Appellees had standing, as the parties stipulated
(Emphasis added.) Here, Appellees’ motion for preliminary injunction concerned only the
May 2014 election and did not include the upcoming November 2014 election. Because
Arkansas’s 2014 May primary election is long past, we conclude that any preliminary
injunctive relief is moot. See, e.g., Judd v. Martin, 2013 Ark. 136. Further, we conclude that
the mootness exceptions do not apply in this instance, as we now reach the merits of the
parties’ arguments regarding the constitutionality of Act 595.
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to, and the circuit court found, that Appellees were registered voters in Pulaski County
subject to the proof-of-identity requirement in Act 595. Thus, we hold that, because of their
status as registered voters in Arkansas, Appellees have established standing in the instant case.
B. Necessary Parties
Martin also argues that Appellees, by failing to name the county clerks and county
election commissioners, failed to name all the necessary parties for the circuit court to grant
declaratory relief. Martin contends that, pursuant to the declaratory-judgment statute found
at Arkansas Code Annotated section 16-111-106 (Repl. 2006), all persons who have or claim
an interest must be made parties, and that Appellees did not join the necessary parties. In
response, Appellees assert that their complaint sufficiently identifies the State’s chief election
official, Secretary of State Mark Martin, and the Arkansas State Board of Election
Commissioners.
Pursuant to Arkansas Code Annotated section 7-4-101(f)(2) (Supp. 2013), the State
Board of Election Commissioners has the authority to “[c]onduct statewide training for
election officers and county election commissioners.” In this instance, Appellees properly
named the necessary parties, Secretary of State Mark Martin and the individual Arkansas State
Board of Election Commissioners, who, in their positions of authority, train and direct the
county clerks and the county election commissioners across this state. Accordingly, we hold
that the circuit court properly denied Martin’s objections that necessary parties are missing
from the lawsuit on the pleadings.
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C. Facial Challenge to Act 595
We now consider the parties’ facial-challenge arguments presented to this court. On
appeal, Martin argues that Act 595 is presumed to be constitutional. Relying on Crawford v.
Marion County Election Board, 553 U.S. 181 (2008), Martin asserts that checking a photo-
identification card is not a new qualification to vote, but a method of “identifying eligible
voters at the polls.” Crawford, 553 U.S. at 197. Appellants assert that the circuit court erred
because Appellees did not demonstrate that the proof-of-identity requirements add an
additional qualification for becoming a registered voter. Appellants maintain that the proof-
of-identity requirement is not a qualification but rather a procedural requirement that ensures
that people who cast their votes are qualified to do so. Appellants claim that this requirement
assures the public that the person is “[l]awfully registered to vote in the election.” Ark.
Const. art. 3, § 1(4) (Supp. 2013).
Appellees respond that the circuit court properly determined that Act 595 was
unconstitutional, as this court’s case law is clear that the Arkansas Constitution “fiercely
protects against the [Arkansas] General Assembly’s interference with Article 3 of the Arkansas
Constitution.” Appellees further emphasize that a proof of identity is required in an Arkansas
resident’s voter-registration process, which is governed by Amendment 51 of the Arkansas
Constitution, and is not required for an individual’s vote in an Arkansas election. Four amicus
briefs support Appellees’ argument.
Our standard of review of a circuit court’s ruling on the constitutionality of an act is
clear. This court reviews a circuit court’s interpretation of the constitution de novo because
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it is for this court to determine what a constitutional provision means. Chandler v. Martin ex
rel. State, 2014 Ark. 219, 433 S.W.3d 884. Although this court is not bound by the circuit
court’s decision, its interpretation will be accepted as correct on appeal in the absence of a
showing that the circuit court erred. Miller v. Ark. Dep’t of Finance & Admin., 2012 Ark. 165,
401 S.W.3d 466.
Appellees challenged Act 595 as unconstitutional on its face, not as-applied to a specific
party or circumstance. Acts of the legislature are presumed constitutional and the party
challenging the statute has the burden to prove otherwise. Archer v. Sigma Tau Gamma Alpha
Epsilon, Inc., 2010 Ark. 8, 362 S.W.3d 303. An act will be struck down only when there is
a clear incompatibility between the act and the constitution. Tsann Kuen Enters. Co. v.
Campbell, 355 Ark. 110, 129 S.W.3d 822 (2003). A facial invalidation of a statute is
appropriate if it can be shown that “under no circumstances can the [Act] be constitutionally
applied.” Linder v. Linder, 348 Ark. 322, 349, 72 S.W.3d 841, 856 (2002) (emphasis in
original). Under this constitutional standard applicable to facial challenges, the proponent
must establish that “no set of circumstances exists under which the Act would be valid.”
United States v. Salerno, 481 U.S. 739, 745 (1987)). Nevertheless, despite this heavy burden,
the United States Supreme Court continues to recognize the validity of facial challenges under
the appropriate circumstances. See Davis v. Fed. Election Comm’n, 554 U.S. 724 (2008).
The key issue is whether Act 595 imposes upon an Arkansas voter an additional
qualification beyond those voter qualifications set forth in the Arkansas Constitution. Section
1 of article 3 of the Arkansas Constitution provides as follows:
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Except as otherwise provided by this Constitution, any person may vote in an
election in this state who is:
(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 amended by Const. Amend.
85.]
Ark. Const. art. 3, § 1 (Supp. 2013).
Act 595, as enacted, states that “any person desiring to vote in this state shall . . .
[p]resent 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) (Supp. 2013).
Specifically, section 1 of Act 595 provides the definition of “proof of identity” as follows:
(i) A voter identification card under § 7-5-322; or
(ii) A document or identification card that:
(a) Shows the name of the person to whom the document was issued;
(b) Shows a photograph of the person to whom the document
was issued;
(c) Is issued by the United States, the State of Arkansas, or an accredited
postsecondary educational institution in the State of Arkansas; and
(d) If displaying an expiration date:
(1) Is not expired; or
(2) Expired no more than four (4) years before the date of the election
in which the person seeks to vote.
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Further, section 1 lists acceptable documentation, which includes, inter alia, such items as a
driver’s license, photo-identification card, and a United States passport, that satisfy the proof-
of-identity requirement.
For approximately 150 years, this court has remained steadfast in its adherence to the
strict interpretation of the requisite voter qualifications articulated in the Arkansas
Constitution. In Rison v. Farr, 24 Ark. 161 (1865), Farr’s ballot was refused when he declined
to subscribe to a statutory oath that he would support the Constitution of the United States
and the Constitution of Arkansas; that he had not voluntarily borne arms against the United
States or Arkansas; and that he had not aided, directly or indirectly, the Confederate
authorities since April 18, 1864. We rejected this requirement, holding that, as a prerequisite
to voting, the statutory oath prescribed by the Arkansas General Assembly was in direct
conflict with the Arkansas Constitution. We stated as follows:
[A]lthough this part of the law is professedly enacted, “TO PROVIDE THE
MANNER OF HOLDING ELECTIONS,” it is, in effect, nothing but a prohibition
upon the right to vote as secured by the constitution; and is of the same import as an
affirmative provision that no person who has voluntarily borne arms against the United
States, or this state, or aided the so-called confederate authorities, since the 18th day
of April, 1864, shall be allowed to vote at any election in the state of Arkansas. And
to admit that the legislature may do this, would be to declare that part of the
constitution which defines the qualifications of a voter, absolutely nugatory, and would
turn section 2 of article IV [a precursor to voter qualifications], of our constitution into
the merest nonsense. 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. The
legislature cannot, under color of regulating the manner of holding elections, which
to some extent that body has a right to do, impose such restrictions as will have the
effect to take away the right to vote as secured by the constitution.
Rison, 24 Ark. at 172.
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This proposition was reaffirmed years later in Faubus v. Miles, 237 Ark. 957, 377
S.W.2d 601 (1964). In Faubus, the Arkansas General Assembly passed legislation to establish
a system of voter registration “purport[ing] to substitute a ‘free’ poll tax (for registration
purposes) in lieu of a poll tax for which the voter has paid $1.00.” Id. at 963, 377 S.W.2d at
604. A citizen and taxpayer filed suit challenging the constitutionality of the act, and the
chancellor declared the act unconstitutional. On appeal, this court held as follows:
It is our conclusion that the legislature has no power, in state elections . . . to substitute
said “free” poll tax for the poll tax required by Amendment 8 which provides that the
voters “shall exhibit a poll tax receipt or other evidence that they have paid their poll
tax. . . .” (Emphasis added.) To hold otherwise would be to approve a subterfuge for
evading the letter and the spirit of a plain constitutional provision.
Id. at 963, 377 S.W.2d at 604.
Applying our well-established precedent to the present case, Act 595 cannot survive
a constitutional facial challenge. Here, the Arkansas General Assembly’s passage of Act 595
requires an Arkansas voter to provide a “voter identification card,” pursuant to Arkansas Code
Annotated section 7-5-322, or “[a] document or identification card.” However, Act 595’s
added requirement of providing a proof of identity as a prerequisite to voting runs afoul of
article 3, section 1, of the Arkansas Constitution. Section 1 of article 3 plainly states that any
person may vote in an election who is (1) a U.S. citizen, (2) an Arkansas resident, (3) eighteen
years of age, and (4) lawfully registered to vote in the election before voting in an Arkansas
election. Ark. Const. art. 3, § 1. These four qualifications set forth in our state’s constitution
simply do not include any proof-of-identity requirement. Further, with the legislature’s
passage of Act 595 requiring this additional qualification, we cannot determine any “set of
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circumstances exists under which [Act 595] would be valid.” Edwards, 946 F. Supp. 2d at
848. In Bailey, Lieutenant-Governor v. Abington, 201 Ark. 1072, 148 S.W.2d 176 (1941), we
declared that
[t]he fundamental purpose in construing a constitutional provision is to ascertain and
give effect to the intent of the framers and of the people who adopted it. The court,
therefore, should constantly keep in mind the object sought to be accomplished by its
adoption.
Id. at 1078, 148 S.W.2d at 180. Given this “fundamental purpose,” id., we adhere to the
framers’ intent conferred in article 3, section 1, of the Arkansas Constitution to require the
foregoing four qualifications of voters in an Arkansas election and nothing more. To hold
otherwise would disenfranchise Arkansas voters and would negate “the object sought to be
accomplished” by the framers of the Arkansas Constitution. Id. Therefore, we hold that Act
595 requiring proof of identity is unconstitutional on its face and imposes a requirement that
falls outside the ambit of article 3, section 1, of the Arkansas Constitution.
We do not interpret Act 595’s proof-of-identity requirement as a procedural means
of determining whether an Arkansas voter can “lawfully register[ ] to vote in the election.”
Ark. Const. art. 3, § 1(4). Under those circumstances, Act 595 would erroneously necessitate
every lawfully registered voter in Arkansas to requalify themselves in each election. See
generally Ark. Const. amend. 51 (proposed by initiative petition, approved at the general
election in 1964, and providing for an extensive voter-registration process whereby proof of
identity is required). On this issue, Appellants cite numerous cases from other jurisdictions
declaring a voter’s proof of identity simply as much-needed regulations to verify voter
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registration. See Crawford v. Marion Cnty. Election Bd., 553 U.S. 181 (2008) (plurality opinion);
League of Women Voters of Indiana, Inc. v. Rokita, 929 N.E.2d 758 (Ind. 2010); Democratic Party
of Ga., Inc. v. Perdue, 707 S.E.2d 67 (Ga. 2011); and City of Memphis v. Hargett, 414 S.W.3d
88 (Tenn. 2013). However, these cases are inapposite to the present case because those courts
interpreted the United States Constitution or their respective states’ constitutions, and here,
we address the present issue solely under the Arkansas Constitution.
Because we affirm the circuit court’s ruling on Appellees’ facial challenge, we decline
to address Appellants’ remaining arguments on the circuit court’s grant of Appellees’ motion
for preliminary injunction, pursuant to Arkansas Rule of Civil Procedure 65 (2014), and the
circuit court’s denial of Martin’s objections that sovereign immunity precludes an entry of a
preliminary injunction. Further, the circuit court did not rule on the impairment allegation
in Appellees’ complaint, and as a result, we do not reach any as-applied constitutional
arguments raised by the parties.
Mandate to issue immediately.
Affirmed.
BAKER, GOODSON, and HART, JJ., concur.
COURTNEY HUDSON GOODSON , Justice, concurring. In the case at bar, the
majority strikes down Act 595 of 2013 by holding that voter identification constitutes a
“qualification” for voting in violation of article 3, section 1 of the Arkansas Constitution.1
1
In so holding, this court subjugates Arkansas to a minority of one: the only state in the
union to hold that voter-identification laws constitute a voting qualification. See e.g.
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I would affirm, but rather because the Act failed to obtain a two-thirds majority vote in both
houses of the General Assembly as required by amendment 51, section 19. As a
consequence, I do not believe that it is necessary to decide whether the Act can withstand
constitutional scrutiny under article 3. Accordingly, I concur in the decision to affirm.
With the adoption of the Arkansas Constitution in 1874, the people of Arkansas
reserved all powers relating to voting and elections to themselves, by stating,
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 the right to vote at any election shall be made to depend
upon any registration of the elector’s name; or whereby such right shall be
impaired or forfeited, except for the commission of a felony at common law,
or upon lawful conviction.
Ark. Const. art. 3, § 2 (1874), superseded by Ark. Const. amend. 39. Through this provision,
it is clear that the people of Arkansas jealously guarded the right of suffrage and restricted the
General Assembly from enacting any law impairing such right. In 1948, the people elected
to grant the General Assembly the authority to register voters through the adoption of
amendment 39, and in 1964, the people passed amendment 51, which is a comprehensive
regulatory scheme governing the registration of voters. Amendment 51 codifies the power
of the General Assembly to “establish a system of permanent personal registration as a means
Democratic Party of Georgia, Inc. v. Perdue, 707 S.E.2d 67 (Ga. 2011); League of Women Voters
of Indiana, Inc. v. Rokita, 929 N.E.2d 758 (Ind. 2010); City of Memphis v. Hargett, 414 S.W.3d
88 (Tenn. 2013); League of Women Voters of Wisconsin Educ. Network, Inc. v. Walker, 851
N.W.2d 302 (Wis. 2014). Because this case presents only a facial challenge to Act 595, we
are precluded from analyzing whether the law is unnecessarily burdensome so as to effectively
amount to a new qualification.
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of determining that all who cast ballots in general, special and primary elections in this State
are legally qualified to vote in such election, in accordance with the Constitution of Arkansas
and the Constitution of the United States.” Ark. Const. amend. 51, § 1. Consequently, in
my view, if the General Assembly possesses the power to enact Act 595 at all, that power
necessarily emanates from amendment 51.
Section 6 of the amendment details the existing requirements for identification and
registration of qualified voters and notably, does not require a photo identification. Instead,
section 6 provides that an applicant is required to provide a driver’s license, or the last four
digits of a social security number, but if neither of those can be provided, the Secretary of
State can assign a number to serve as a means of identifying the applicant for voter-registration
purposes. Section 19 of the amendment provides that the General Assembly may amend the
amendment if certain conditions are met, stating,
The General Assembly may, in the same manner as required for
amendment of laws initiated by the people, amend Sections 5 through 15 of this
amendment, so long as such amendments are germane to the amendment, and
consistent with its policies and purposes.
Ark. Const. amend. 51, § 19. Amendment 7 to the Arkansas Constitution, codified at article
5, section 1, clarifies that laws initiated by the people may be amended through a two-thirds
vote of both houses of the General Assembly. Thus, the General Assembly may modify the
requirements for identifying qualified voters only through an amendment to amendment 51
that passes by a two-thirds vote.
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At bottom, the issue in this case is whether the enactment of Act 595 is a valid and
constitutionally authorized exercise of legislative authority under amendment 51, or whether
the Act impermissibly adds a voter qualification in violation of article 3. In this case,
however, we need not decide the constitutionality of Act 595 pursuant to article 3 because,
even if it had been passed under the authority of amendment 51, it did not achieve the two-
thirds vote that is required in section 19. Ark. Const. amend. 51, § 19. Indeed, the appellant
concedes that the General Assembly did not enact its voter-identification provision as an
amendment to amendment 51 or follow the proper provisions therein. As a consequence,
Act 595 is null and void for that reason alone, which requires this court to affirm the circuit
court’s decision striking down the Act.
Because the Act is invalid, we need not decide whether it would otherwise pass
constitutional scrutiny. In fact, it is our duty to refrain from addressing constitutional issues
where, as here, the case can be disposed of without determining constitutional questions.
Prock v. Bull Shoals Boat Landing, 2014 Ark. 93, 431 S.W.3d 858; Daniel v. Spivey, 2012 Ark.
39, 386 S.W.3d 424; Solis v. State, 371 Ark. 590, 269 S.W.3d 352 (2007) (holding that, if the
case can be resolved without reaching constitutional arguments, it is our duty to do so);
Haase v. Starnes, 323 Ark. 263, 915 S.W.2d 675 (1996) (holding that constitutional issues are
not decided unless it is necessary to the decision). Any opinion offered by this court would
be purely advisory, and it is well settled that this court does not issue advisory opinions.
Goodloe v. Goodloe, 2014 Ark. 300, ___ S.W.3d ___.
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Cite as 2014 Ark. 427
Because the Act failed to obtain a two-thirds vote, it is invalid. As a consequence, it
is wholly unnecessary to decide whether the Act added a new qualification to voting as
prohibited by article 3. Therefore, I concur in the decision striking down the Act.
BAKER and HART, JJ., join.
AJ Kelly, Deputy Secretary of State, Arkansas Secretary of State, Martha Adcock, General
Counsel, and L. Justin Tate, Associate General Counsel, for appellant Mark Martin.
Dustin McDaniel, Att’y Gen., by: David A. Curran, Deputy Att’y Gen., and C. Joseph
Cordi Jr., Sr. Assistant Att’y, for separate appellants Mark Martin et al.
James, Carter & Coulter, PLC, by: Jeff R. Priebe; and
Appellate Solutions, PLLC d/b/a Riordan Law Firm, by: Deborah Truby Riordan, for
appellees.
Sprinkle Firm, by: Maximillan R.X. Sprinkle; and
Christina Swarns, Ryan P. Haygood, Natasha M. Korgonkar, Leah C. Aden, and Deuel
Ross, NAACP Legal Defense & Educational Fund, Inc., amicus curiae for appellees.
Weil, Gotshal & Manges LLP, by: David B. Bird, Kristen M. Murphy, and Cheryl James;
Myrna Pérez, Michael C. Li, and Jennifer L. Clark, Brennan Center for Justice at NYU
School of Law; and
Cullen & Co., PLLC, by: Tim Cullen for amici curiae Dr. Thomas DeBlack, Dr.
William Schreckhise, Dean John DiPippa, and Nate Coulter in support of appellees.
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