Arkansas’s voter ID law was recently declared unconstitutional by a judge, who ruled that it violated the state constitution's right to vote. But for now, the law is still in effect—and it created chaos and confusion in its first real test Tuesday. Just as troubling, the state’s election administrators are reacting with a collective shrug.
Arkansas's primaries, held Tuesday, were fairly low turnout affairs. But the state is playing host to a crucial and high-profile U.S. Senate race this fall.
Among the problems reported from Tuesday: poll workers quizzing voters on their personal information, including address and birthdate, after being shown ID, and using electronic card strip readers to verify ID—both of which go far beyond what the law allows. Some voters without proper ID are said to have been wrongly denied provisional ballots. And large numbers of absentee ballots also are in danger of not being counted, thanks to the ID law.
“We’re hearing from some pretty steamed voters,” said Holly Dickson, a lawyer with the state chapter of the American Civil Liberties Union, citing “a smorgasborg of complaints and issues” about the law’s application. The ACLU is challenging the law in court.
In two separate recent cases, Arkansas’s voter ID law, passed last year, has been struck down by the same state court judge, Tim Fox, who ruled that it violates the state constitution’s right to vote, since many Arkansans lack ID and can’t easily get one. But the state Supreme Court this month vacated one of those rulings, saying the constitutionality question wasn’t at issue in the case, and Fox put the other ruling on hold while it’s being appealed. That left the ID measure in place for Tuesday’s primaries.
There were no high-profile races on the ballot Tuesday, and turnout was relatively low, limiting the damage caused by the election problems. But that won't be the case this November when Sen. Mark Pryor, a Democrat, is facing a tough re-election fight. The race could help decide control of the U.S. Senate.
On Wednesday morning, the Arkansas Times published written accounts from seven different voters of being asked for information after presenting their ID. “I was quizzed about my name, address and birthdate while the election volunteer held my license where I couldn't see it,” wrote one voter.
Another voter reported being told by a poll worker, after presenting several forms of ID: “All I want is the driver’s license, because my machine reads the bar code.” Dickson said she, too, had heard from voters about polling places using machines to read ID bar codes.
“While most voters are OK with showing their ID, the way that this was carried out was, it appears, not only unlawful but incredibly offensive,” Dickson said.
The voters’ accounts were posted by Max Brantley, a veteran and widely respected Arkansas journalist. "County clerks, the state Election Commission and others need to get involved—now," wrote Brantley, who serves on the board of the Arkansas Public Law Center, which is working with the ACLU in challenging the law.
In a tweet sent Wednesday afternoon, a leading Washington-based voting rights group—whose director is a former head of the Justice Department’s voting rights section—suggested a federal investigation might be called for. Asked whether the issue was on the Justice Department's radar, a spokeswoman for the department did not immediately respond.
But among state election officials, there appears to be far less urgency. Laura Labay, a spokeswoman for Secretary of State Mark Martin, a Republican, said via email that her office had no authority to look into the complaints, and that it’s the role of the state Board of Election Commissioners.
Justin Clay, the board’s director, said the state’s training program for poll workers had made clear that the law allows them only to verify the name and picture on voters’ ID. But the news that many poll workers appear not to be following those instructions didn’t appear to be cause for alarm.
“We’re compiling information, said Clay, before adding: “I wouldn’t say we’re compiling information. We don’t have a lot of information other than what’s been posted on the Arkansas Times blog. So it’s hard to address the specific experiences that voters may or may not have encountered. We’d be happy to do so if we could get some more information.”
Clay said he had spoken to one county involved, which assured him that it had trained its poll workers correctly. So was there a plan to investigate further?
“No plan at the moment,” said Clay, adding that unless the board received complaints from voters or from county clerks on voters’ behalf, there wasn’t much it could do.
Then there are the issues with provisional and absentee ballots. Under the law, voters without acceptable ID are supposed to be offered the chance to cast a provisional ballot, which will count if they return soon with the proper ID.
“That has not happened in some instances, and in other instances the voter had to argue with poll workers before they could even get their provisional ballot,” said Dickson.
Also, the law requires that absentee voters, like those voting in person, provide ID—though it doesn’t have to include a picture. Inevitably, Dickson said there are large numbers of absentee ballots that came without ID. What happens to those ballots is the subject of litigation, and the state Supreme Court recently ruled that they must be disqualified. That’s left a significant number of voters who didn’t follow the proper procedure in danger of being disenfranchised.
Dickson said the “chaos and inconsistency” in the application of the law could end up being cited as evidence in her group’s ongoing challenge to the measure.
“It is fundamentally unfair, and undermines our democracy, if voters are being treated differently from polling place to polling place,” she said.
Late Update, 1:23 p.m.: More on the law's impact on absentee voters: Frederick Freeman, the election commissioner of St. Francis County, tells the Associated Press that only 19 of the 102 absentee ballots the county received for the election were counted, because 83 were sent without proof of ID.