I am writing in response to your request for my expedited opinion on the following question:

Of necessity, given your request that my review be expedited, the ensuing opinion does not include a discussion of all the pertinent case law I considered in reaching my conclusions.

In my opinion, although no Arkansas precedent exists addressing this issue, a court entertaining an Article 3 challenge to SB 2 would likely conduct two inquiries. First, it would probably review SB 2 to determine as a matter of law whether it impermissibly imposes a qualification to vote in addition to those prescribed as exclusive in art. 3, § 1. Second, assuming that the answer to the first question is “no,” the court would address whether SB 2 “impairs” the right to vote under art. 3, § 2. These two levels of inquiry—whether the voter-ID law is an additional qualification; and second, whether it is an impairment of the right to vote—frequently occur in the voter-ID litigation in other jurisdictions.

The question is not whether the legislature can add an additional qualification to art. 3, § 1, for all sides agree that cannot be legally accomplished. The dispositive question is whether SB 2 is best characterized as either imposing a substantive, additional qualification upon a voter or as merely providing a procedural and regulatory means by which a qualified voter proves that he or she meets the four criteria stated in art. 3, § 1.

Most courts faced with the question have held that rather than imposing an additional qualification, voter-ID laws merely provide a permissible procedural condition on the right to vote. Those courts, however, are often influenced by specific language in those state constitutions that require the legislature to enact laws that regulate elections, police the elections process for fraud, or otherwise “protect the purity of the ballot box.” Because our constitution lacks any such language, an Arkansas court might be persuaded to side with those few courts that consider voter-ID to be an impermissible additional qualification. Because this is a case of first impression in Arkansas, I cannot predict with certainty how an Arkansas court would rule on this question.

The second level of inquiry—whether SB 2 impairs the right to vote under art. 3, § 2—is more straightforward. As explained briefly below, I believe an Arkansas court faced with this question would likely follow the majority of courts and apply the federal standard for assessing allegations of infringements or impairments on the right to vote. Further, given certain provisions in SB 2 that seem crafted with other states' litigation in mind, I believe an Arkansas court would, after applying this federal standard, reach the conclusion that most authorities have reached and uphold SB 2 under art. 3, § 2.

Section 1 of Article 3 of the Arkansas Constitution sets forth the following qualifications to vote:

The provisions of Section 1 are unambiguous in declaring that anyone meeting the four recited conditions is entitled to vote. The Arkansas Supreme Court has discussed at great length the primacy of the Arkansas Constitution over any legislative enactments in setting voting qualifications.² The court in Rison v. Farr bluntly declared that the constitution “fixes the qualifications, and determines who shall be deemed qualified voters in this state in direct, positive, and affirmative terms, and these qualifications cannot be added to by legislative enactment.”³

The dispositive question is whether SB 2 is best characterized as either imposing a substantive, additional qualification upon a voter or as merely providing a procedural and regulatory means by which a qualified voter proves that he or she meets the four criteria stated in art. 3, § 1. If the bill imposes an additional qualification, then—per Rison v. Farr—SB 2 is unconstitutional per se given that art. 3, § 1 is exhaustive in listing qualifications. But if the bill is merely regulatory in nature and is best characterized as requiring evidence of voters' qualifications, SB 2 will not violate art. 3, § 1.

In the absence of any Arkansas authorities on this question, I will examine some representative cases from other jurisdictions that illustrate the arguments for and against the constitutionality of photo-ID laws.

Some courts faced with this question have held that voter ID laws are additional qualifications. Specifically, trial courts in Wisconsin and Missouri have found that the voter ID laws at issue in those states added qualifications to vote.⁴ The Wisconsin case is pending appeal and the Missouri Supreme Court affirmed the trial court on other grounds.

The majority of courts faced with this question, however, have decided that voter-ID laws are best characterized as procedural or regulatory conditions requiring persons to verify their identity. Specifically, the state supreme courts in Michigan, Indiana, Georgia, and Florida have all so held. Some of these state supreme courts were influenced by the fact that, unlike Arkansas, these states have constitutional provisions that direct the legislature to police the election system for fraud or to “guard against abuses of the elective franchise.”⁵

In weighing these various authorities, I am struck by the following. First, many of the authorities—both for and against the voter-ID laws—offer only conclusory analyses of the distinction between a qualification and a procedural regulation to evidence qualification. Typically, a court simply states that the voter ID law under discussion seems more like one than the other. So, on the critical distinction at issue under art. 3, § 1, there is not much authority.

*3 Second, Arkansas's constitution lacks any reference to the legislature policing the election process for fraud or for protecting the purity of elections. Consequently, it seems that case law upholding a state's voter-ID laws that relies at least in part upon a constitutional policing provision may well be less persuasive to an Arkansas court when it is faced with this question. I will note in this regard that the only reference in the Arkansas Constitution to legislative control over elections-namely, the phrase “lawfully registered” in subsection 1(4) of Article 3 quoted above-is oblique and contextually restricted to setting conditions for registration, not actually voting once registered.

In summary, an Arkansas court might be influenced by the fact that the majority of courts have upheld voter-ID laws as not constituting additional qualifications. But an Arkansas court might find it significant that most of these courts based their conclusion, at least in part, upon the application of language that is absent from our state constitution. Under these circumstances, I cannot predict with certainty how an Arkansas court would rule on this question.

In my opinion, in all likelihood, a challenge based upon this constitutional provision would fail.

Article 3, section 2 states:

In the event a reviewing court did not consider the proof-of-identity requirement set forth in SB 2 as imposing an impermissible additional ““qualification,” it would need to consider whether the measure's restrictions upon the right of suffrage are impermissible under Section 2 of Article 3 as constituting a “law ... whereby such right shall be impaired or forfeited.” In considering similar challenges, courts have applied a standard of review that tracks the following standard set forth by the United States Supreme Court:

*4 One court applied this standard but decided that strict scrutiny should be used to review the voter-ID law instead of the more lenient “flexible standard” set out above. In Weinschenk v. State of Missouri,⁷ the Missouri Supreme Court addressed whether the imposition of a photo-ID requirement compromised the fundamental right to vote of citizens whose constitutionally mandated qualification requirements were materially indistinguishable from those applicable in Arkansas. The court applied the above standard, determining that the challenged measure severely burdened the right to vote and hence warranted a strict-scrutiny review. The court struck the measure based upon this review. All other cases I have found addressing similar measures have applied the more lenient standard described above and have upheld the legislation.

SB 2 appears to have been drafted with Weinschenk in mind, since it attempts to avoid the Weinschenk result by including, for instance, provisions putatively ensuring that voter identification cards will be provided free of charge to individuals lacking other proof of identity. Not being a finder of fact, I will not speculate whether obtaining a voter identity card under SB 2 would indeed be free, thus possibly avoiding one of the difficulties that prompted a strict scrutiny analysis in Weinschenk. I will further not speculate whether the administrative inconvenience attending a registered voter's efforts to comply with SB 2 would be sufficiently onerous to trigger a strict scrutiny analysis under the standard applied by the court in Weinschenk. I will merely note that under the federal standard outlined above, which I believe an Arkansas court would employ,⁸ the court would initially inquire whether the burden imposed by SB 2 was sufficiently “severe” to trigger the application of strict scrutiny. Given that SB 2 was drafted with apparent care to avoid the pitfalls in the Missouri legislation, I suspect a reviewing court would apply the lower standard of review set forth above. Moreover, although the review would ultimately turn upon a consideration of the facts, I have no reason to assume the Arkansas legislation—funlike all similar legislation I have found that has been reviewed under this standard—would be stricken.

Assistant Attorneys General Jack Druff and Ryan Owsley prepared the foregoing opinion, which I hereby approve.