User:GregG/Arkansas voter ID comment draft

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I appreciate the opportunity to participate in rulemaking by offering my comments on the Proposed Rules on Voter Identification. I am a Princeton University graduate student who is interested in voter ID laws across the nation.

The commentary will mostly follow how the Proposed Rules are laid out.

Proposed Rule 3

Proposed Rule 3.03 (and in particular, 3.03(1)), which describes the valid forms of identification for voting, seems to follow Arkansas Code §7-1-101(25)(B) as added in Act 595. However, as I will discuss later, the restrictions on Voter Identification Cards are inconsistent with this rule and Act 595.

Proposed Rule 5

Proposed Rule 5.01(2) requires a Voter Identification Card applicant to be either “registered to vote in the county where he or she is submitting the Application” or to “be at least eighteen (18) years of age at the next election and [to have] submitted a voter registration application to the County Clerk to whom he or she is submitting the application” (emphasis added). This is inconsistent with both the National Voter Registration Act of 1993 (NVRA) and Act 595. Specifically, the Federal Form under the NVRA[1] directs applicants to send completed applications to the Secretary of State: Voter Services. Id. at 4. Those applications would therefore not be sent to the county clerk. Additionally, Act 595 requires applicants for a Voter Identification Card to either be “registered to vote” or to be at least 18 by the next election and to have ``submitted a voter registration application. Arkansas Code §7-5-322(b). There is no basis in Act 595 for the county-based restriction on obtaining Voter Identification Cards in the Proposed Rules. Further, given advances in technology that allow for centralized voter registration files accessible online,[2] there is no reason to believe why any one county would be more competent than another in issuing Voter Identification Cards. Therefore, I recommend that Rule 5.01 be replaced with the text of Arkansas Code §7-5-322(b).

Proposed Rule 6

Proposed Rule 6.03 requires the applicant to provide his or her gender, height, weight, eye color, and hair color. Proposed Rule 6.03(d)–(h). The collection of these data present an unnecessary burden and are (in the case of eye and hair color) entirely duplicative of the photograph that will be taken. Requiring the applicant to state a gender may well cause undue embarrassment for those for whom gender identity is a personal concern (such as transgendered individuals). Further, it does not appear that these additional data will appear anywhere on the Voter Identification Card. See generally Proposed Rule 9.0. Because these data appear to have no purpose in the issuance of a Voter Identification Card, I recommend that Proposed Rule 6.03(d)–(h) be struck.

Proposed Rule 6.04 requires applications to be notarized. Under Arkansas law, notaries public “shall charge and collect” $5.00 for “each certificate and seal”. Arkansas Code §21-6-309(a).[3] This is wholly inconsistent with Act 595’s requirement that “A voter identification card shall be issued without the payment of a fee or charge to” a qualifying individual. Arkansas Code §7-5-322(b).[4]

The notarization requirement presents other problems as well. First, under Arkansas law, “[i]t is unlawful for any notary public to witness any signature on any instrument unless the notary public” either “personally knows the signer”, ’’is presented proof of the identity of the signer’’, or “[r]ecognizes the signature of the signer by virtue of familiarity with the signature”. Arkansas Code §21-14-111(a). Personal knowledge is defined to mean “having an acquaintance, derived from association with the individual, which establishes the individual’s identity with at least a reasonable certainty”. Arkansas Code §21-14-111(c). By definition, Voter Identification Card applicants lack any proof of identity that can be used to vote under Act 595. See Arkansas Code §7-5-322(b)(1). The Notary Handbook produced by the Secretary of State provides no guidance as to what forms of identification are acceptable for a notary public. See generally Arkansas Notary Public Handbook.[5] This will almost certainly lead to arbitary rulings by different notaries in different parts of the state, which may very well lead to equal protection problems. A comparison to the implementation of South Carolina’s voter ID law (as approved by a three-judge panel in the United States District Court for the District of Columbia) is apropos. Under South Carolina law, voters without acceptable ID are required to sign an affidavit listing the reason why they have not obtained acceptable ID (a reasonable impediment affidavit). South Carolina v. United States, slip op. at 2 (D.D.C. 2012) (three-judge panel) Under South Carolina law, affidavits must be notarized. Id. at 12. South Carolina election officials determined that notaries would not be allowed to charge fees for notarizing reasonable impediment affidavits, and notaries would be required to accept a non-photo voter registration card as proof of identity. Id.[6] The South Carolina Attorney General also determined that when no notaries are available at a polling place, the poll manager may witness the reasonable impediment affidavit, and notarization would then not be required. Id. at 13.

The Proposed Rules apparently do not provide for notaries public to be made available in county clerk’s offices, which may add expense to voters who must now make multiple trips to obtain a Voter Identification Card. Presumably the rules could be changed to require county clerks to notarize applications for free, but this raises the question of why there should be a notarization requirement in the first place. As such, I would recommend removing all references to notarization in the proposed rules.[7]

Proposed Rule 7

Proposed Rule 7 deals with the documentation required to obtain a Voter Identification Card. As a preliminary matter, the rigorous documentation requirements are entirely inconsistent with the text of Act 595 and the intent thereof, to ensure that every eligible voter who does not have qualifying identification “shall be issued without payment of a fee or charge”. Arkansas Code §7-5-322(b).

The interpretation of Pennsylvania’s voter identification law by its Supreme Court is instructive. In March 2012, Act 18, requiring photo identification to vote, was signed into law. Applewhite v. Commonwealth, 54 A.3d. 1, 3 (Pa. 2012). Act 18 required, in part, that free identification cards be issued by the Pennsylvania Department of Transportation (PennDOT) “to any registered elector who has made application therefor and has included with the completed application a statement signed by the elector declaring under oath or affirmation that the elector does not possess proof of identification... and requires proof of identification for voting purposes.” Id. (citing §2 of Act 18). PennDOT initially required applicants for free voter identification cards to meet the same documentation requirements as driver’s license applicants, due to the fact that identification cards are considered secure. Id. Later realizing that the first implementation was not consistent with Act 18’s requirements, developed a separate Department of State identification card with fewer documentation requirements, but PennDOT still required applicants to attempt to obtain a PennDOT identification card first before being allowed to apply for a Department of State identification, which the Pennsylvania Supreme Court found contrary to Act 18. Id. at 4. A challenge to Act 18 was filed in Commonwealth Court, and a preliminary injunction was denied Id. at 2. The Supreme Court of Pennsylvania remanded to the Commonwealth Court to determine “whether the procedures being used for deployment of the cards comport with the requirement of liberal access which the General Assembly attached to the issuance of PennDOT identification cards.” Id. at 5. The Commonwealth Court ultimately blocked the full implementation of Act 18 for the November 2012 election. Supplemental Determination on Application for Preliminary Injunction in Applewhite v. Commonwealth, No. 330 M.D. 2012 (Pa. Commw. Ct., Oct. 2, 2012). In response to the Pennsylvania Supreme Court’s ruling, PennDOT removed its requirement that applicants first attempt to obtain a PennDOT identification card and reduced the documentary requirements for obtaining a Department of State identification card. Id. at 3.[8]

Arkansas Act 595 should also be interpreted to bar any documentation requirements for obtaining a Voter Identification Card, such as the ones present in the Proposed Rules. Instead, the voter should be requested to fill out information that can be checked against voter registration records. This will further the purpose of Act 595 to ensure that no eligible voter is unable to vote due to an inability to obtain acceptable identification.

I will comment separately on the documentation requirements listed in the Proposed Rules.[9]

Proposed Rule 7.03

This Proposed Rule covers documentation of the applicant’s name and date of birth.

Option (a) is an original birth certificate or a certified copy thereof. The problem is that, according to the rules, it is only valid if it has the same full legal name as the one used to register to vote. Proposed Rule 7.05. A significant number of voters may go by a different name than their birth name for a variety of reasons.[10] There appears to be no provision for allowing the birth certificate notwithstanding the discrepancy in name, which is problematic.

Option (b) is a copy of a marriage license application. Given that a marriage license itself requires a birth certificate or government-issued identification,[11] this option is of dubious utility. For this option to be useful, the applicant would need the foresight to save a copy of the marriage license application. Additionally, there appears to be no way to determine whether what purports to be a marriage license application was ever filed.[12] Therefore, I recommend removing this option.

Option (c) is a notarized copy of a state or federal tax return filed the previous year.[13] This has a few problems. First of all, the Proposed Rules make the arbitrary requirement that tax returns used to satisfy documentation of date of birth must be notarized, but not marriage license applications. Further, it is unclear how the requirement that the copy be notarized would work in practice or utility of such a requirement. The taxpayer would have to plan ahead to make his personal copy of a tax form notarized before submitting the original to the taxing authority. Notarization cannot guarantee that the original was, in fact, ever filed. This would also have to be done before the time taxes are due (in mid-April), whereas federal elections (and a likely rush to obtain Voter Identification Cards) will occur in November, over six months later. This advance planning required to utilize this option completely defeats the purpose. Thus, I would recommend removing the requirement that the copy be notarized for this option. That everyone has the ability to file a tax return and thus likely has this document weighs in favor of keeping it as an acceptable document for proof of name and birth date.

I have no comment on the remaining options.

As far as additional options that should be accepted, I would recommend validly-issued acceptable voter identification under Arkansas Code §7-1-101(25)(B) that has necessarily expired, as well as out-of-state driver’s licenses and identification cards (which are not acceptable voter identification, see Arkansas Code §7-1-101(25)(A)(ii)(c)). I would also recommend accepting any document accepted by the Office of Driver Services for the issuance of a driver’s license.

Proposed Rule 7.04

I have fewer comments on the options for this Proposed Rule. The same comments I had with respect to notarized copies of tax returns apply here. I would also add, as before, validly-issued acceptable voter identification under Arkansas Code §7-1-101(25)(B) that has necessarily expired, as well as documentation accepted by the Office of Driver Services for the issuance of a driver’s license. I would also recommend adding government correspondence (which may include confirmation of voter registration) as acceptable documentation.

Proposed Rule 7.05

This Proposed Rule requires documentation provided to “match” the voter’s registration. The problem is that this could easily be interpreted to require a charcter-for-character exact match (thus disallowing items that differ in usage of nicknames, abbreviations, etc.). I would add the following sentence: For the purposes of this rule, two items shall be considered to match even if they differ due to a misspelling, clerical error, transposition, usage of abbreviations or nicknames, or differing degrees of completeness.

Proposed Rule 7.07

This Proposed Rule provides for the processing of applications that are submitted on the same day as a registration application. This Proposed Rule should be changed to also apply to applications for Voter Identification Cards by applicants who have already submitted a voter registration application that has not yet been processed, whether or not that applications are submitted on the same day.

  1. Available at http://www.eac.gov/assets/1/Documents/Federal%20Voter%20Registration_1209_en9242012.pdf
  2. See, e.g. Arkansas Secretary of State, “Voter View - Registrant Search”, available at https://www.voterview.ar-nova.org/VoterView/RegistrantSearch.do
  3. This is the same amount charged by the Office of Driver Serices for an ID card. See Arkansas Department of Finance and Administration, “Freqently Asked Questions”, available at http://www.dfa.arkansas.gov/offices/driverServices/Pages/FAQ%27s.aspx#g
  4. Act 595’s prohibition on charging fees for Voter Identification Cards is well-taken, in light of the Twenty-Fourth Amendment to the United States Constitution, which bars poll taxes. See Common Cause/Georgia v. Billups, 406 F.Supp.2d 1326, 1367 (N.D.Ga. 2005) (plaintiffs likely to succeed on claim that $20 or $35 charge for Georgia ID card was an unconstitutional poll tax).
  5. Available at
  6. Before the South Carolina photo ID law was enacted, voters were required to show either a non-photo voter registration card or a state driver’s license or ID card. Id. at 2.
  7. I recognize that Act 595 requires an oath that the applicant meets the qualifications for a Voter Identification Card. Arkansas Code §7-5-322(c)(2)(A). Even so, this does not necessitate notarization. By comparison, neither the Federal Form for voter registration nor the Arkansas Voter Registration Application require notarization, even though voters are required to affirm their qualifications to vote under penalties of fine and/or imprisonment. See Federal Form, supra note 1, Arkansas Voter Registration Application, available at http://www.sos.arkansas.gov/elections/Documents/Voter_Reg_Ap_6-11.pdf. See also 42 U.S.C. §1973gg-7(b)(3) (Federal Form may not require notarization).
  8. The current requirements for a registered voter to obtain a Department of State identification card are for the applicant to provide his or her name, address, Social Security number (if issued), date of birth, county, and a previous name and address if changed within the last 12 months; no documentation is required. Obtaining a Free ID for Voting Purposes, available at http://www.dmv.state.pa.us/voter/voteridlaw.shtml
  9. I also notice that there is no provision for a county clerk to waive any of the documentation requirements. County clerks should be allowed to waive documentation requirements so that those who cannot obtain the necessary documents easily or at all can still obtain a Voter Identification Card that is required to be issued them by Act 595.
  10. In Wisconsin, Ruthelle Frank found out that her birth certificate name was misspelled and that she would have to pay $200 to petition a court to fix it. Bill Glauber, “At 84, she lacks identification, but not will to fight voter ID law”, Milwaukee Journal-Sentinel, Dec. 14, 2011, available at http://www.jsonline.com/news/statepolitics/at-84-she-lacks-identification-but-not-will-to-fight-voter-id-law-f03eqti-135635733.html. In Indiana, Joesph Worley was denied an Indiana driver’s license in part because his birth certificate name was “Joseph Alan Ivey”. “Indiana agency sets hearing for man denied voter ID”, USA Today, Oct. 18, 2012, available at http://www.usatoday.com/story/news/nation/2012/10/18/man-denied-voter-id-indiana/1641763/.
  11. Available at “Arkansas Marriage Requirements & Laws” http://www.arkansas.com/weddings/legality.aspx
  12. Since the rules do not require a copy of a marriage license application to be signed, one could just write in one’s legal name and date of birth on a marriage license application form without signing it or submitting it and without ever having to have such information verified. This would effectively circumvent the documentation requirements created by the Proposed Rules.
  13. Although rare, some taxpayers may be filing on a basis other than the calendar year. This rule could be tweaked to solve these problems by allowing tax returns that are filed for a period that includes the previous calendar year or any portion thereof.