Martin v. Haas

• Decision Date: 11 October 2018
• Docket Number: No. CV-18-375,CV-18-375
• Citation: 556 S.W.3d 509
• Parties: Hon. Mark MARTIN, in his Official Capacity as Secretary of State for the State of Arkansas and in his Official Capacity as Chairman of the Arkansas State Board of Election Commissioners; Rhonda Cole, James Harmon Smith III, Belinda Harris-Ritter, Charles Roberts, Chad Pekron, and James Sharp, in their Official Capacities as Commissioners of the Arkansas State Board of Election Commissioners, Appellants v. Barry HAAS, Appellee
• Court: Arkansas Supreme Court

556 S.W.3d 509

Hon. Mark MARTIN, in his Official Capacity as Secretary of State for the State of Arkansas and in his Official Capacity as Chairman of the Arkansas State Board of Election Commissioners; Rhonda Cole, James Harmon Smith III, Belinda Harris-Ritter, Charles Roberts, Chad Pekron, and James Sharp, in their Official Capacities as Commissioners of the Arkansas State Board of Election Commissioners, Appellants

v.Barry HAAS, Appellee

No. CV-18-375

Supreme Court of Arkansas.

Opinion Delivered: October 11, 2018

AJ Kelly, Deputy Secretary of State and General Counsel; and Michael Fincher, Associate General Counsel, for appellant.

Leslie Rutledge, Att'y Gen., by: Nicholas J. Bronni, Solicitor Gen.; and Dylan L. Jacobs, Ass't Solicitor Gen., Ass't Att'y Gen., for separate appellants Arkansas State Board of Election Commissioners.

James, Carter & Priebe, LLP, Little Rock, by: Jeff R. Priebe and Daniel R. Carter, for appellee.

ROBIN F. WYNNE, Associate Justice

This is an interlocutory appeal from the Pulaski County Circuit Court's order entering a preliminary injunction in favor of the plaintiff-appellee, Barry Haas, in his challenge to Act 633 of 2017, which concerns "verification of voter registration." On appeal, appellant Mark Martin¹ argues that appellee did not show a likelihood of success on the merits because Act 633 comports with the requirements in Amendment 51 to the Arkansas Constitution for its amendment; there was insufficient showing of harm; injunctive relief is barred by sovereign immunity; and appellee lacks standing. Separate appellants, Commissioners of the Arkansas State Board of Election Commissioners,² argue that Act 633 is germane to, and consistent with, the original purpose of Amendment 51; Act 633 does not introduce an additional qualification to vote in violation of article 3, section 1; Act 633 does not impair the right to vote in violation of article 3, section 2; the circuit court erred in concluding that appellee showed irreparable harm; and the preliminary injunction is overbroad. This court has jurisdiction pursuant to Ark. Sup. Ct. R. 1-2(a)(1) (2017) (appeals involving the interpretation or construction of the Constitution of Arkansas) and (a)(4) (appeals pertaining to elections and election procedures). We reverse and remand for further proceedings consistent with this opinion.

In Martin v. Kohls , 2014 Ark. 427, 444 S.W.3d 844, this court held that Act 595 of 2013, which required voters to show proof of identity in the form of a photo identification, was facially unconstitutional because it imposed an additional requirement to vote that "falls outside the ambit of article 3, section 1, of the Arkansas Constitution." Martin , 2014 Ark. 427, at 15, 444 S.W.3d at 852–53. Article 3, section 1 of the Arkansas Constitution provides as follows:

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. Three justices concurred on the basis that it was unnecessary to reach the holding of the majority because Act 595 failed to obtain a two-thirds majority vote in both houses of the General Assembly as required by amendment 51, section 19. Id. at 17, 444 S.W.3d at 853 (Goodson, J., concurring).

Following this court's ruling in Martin v. Kohls , the General Assembly passed Act 633 of 2017, which amends sections 6 and 13 of Amendment 51 and related statutes. Act of March 24, 2017, No. 633, 2017 Ark. Acts 3068. We provide a brief overview of Act 633 here. Titled "AN ACT TO REQUIRE THAT A VOTER PROVIDE VERIFICATION OF VOTER REGISTRATION WHEN VOTING; TO AMEND AMENDMENT 51 OF THE ARKANSAS CONSTITUTION; AND FOR OTHER PURPOSES," Act 633 requires Arkansas voters to provide verification of voter registration in the form of a document or identification card that shows the person's name and photograph, is issued by the federal or state government or an accredited postsecondary educational institution in Arkansas, and if displaying an expiration date, is no more than four years expired ("compliant identification").³ Id. § 2, 2017 Ark. Acts at 3069 (amending § 13 of amendment 51 to add subsection (b)(1)(A)(i) ). An in-person voter who does not present to the election official compliant identification may cast a provisional ballot, not a regular ballot. Act 633 provides two ways for a person seeking to vote without a compliant form of identification to have his or her provisional ballot counted. One way is to complete a sworn statement at the polling site, under penalty of perjury, stating that the voter is registered to vote in this state and that he or she is the person registered to vote (the "voter identity affirmation"). (Section 2, amending § 13 to add subdivision (b)(4) ). Another way to have one's provisional ballot counted is to present a compliant form of identification to the county board of election commissioners or the county clerk by 12:00 noon on the Monday following the election. Id. § 2, 2017 Ark. Acts at 3072–73. If the voter identity affirmation is signed or if the voter later presents compliant identification as outlined above, the provisional ballot shall be counted if the county board of election commissioners "does not determine that the provisional ballot is invalid and should not be counted based on other grounds." Id. § 2, 2017 Ark. Acts at 3073.

A person voting by absentee ballot must enclose a copy of a compliant identification in order to have his or her ballot counted as a regular ballot.⁴ (Section 2, amending § 13 to add subdivision (b)(3) ). If a copy of the identification is not included, the ballot shall be considered a provisional ballot and will be counted under essentially the same terms as an in-person voter without identification (completing voter-identity affirmation or providing a copy of a compliant identification by noon on the Monday after the election). A resident of a long-term care or residential-care facility licensed by the state is not required to present compliant identification when voting in-person or by absentee ballot but shall instead provide documentation from the administrator of the facility attesting that the person is a resident of the facility. Section 2, 2017 Ark. Acts at 3071 (amending § 13 to add subdivisions (b)(2)(B), (b)(3)(B)(iii) ). Finally, we note that all voters who do not present a compliant identification are subject to the possibility of a referral by the county board of election commissioners to the prosecuting attorney for investigation of possible voter fraud. The county board of election commissioners shall refer suspected instances of voter fraud to the prosecuting attorney. In addition to the amendments to sections 6 and 13 of Amendment 51, Act 633 amends various sections of the Arkansas Code to include the verification of voter registration requirements.

On February 7, 2018, appellee filed a complaint pursuant to the Arkansas Declaratory Judgment Act, Arkansas Code Annotated §§ 16-111-101 et seq., asking the circuit court to declare Act 633 of 2017 unconstitutional and to enjoin its enforcement. Specifically, his complaint contains the following three counts: (1) Act 633 violates section 19 of Amendment 51 to the Arkansas Constitution because it is not germane to the amendment and is not consistent with its policy and purposes; (2) Act 633 violates article 3, section 1 of the Arkansas Constitution because it imposes an additional qualification for voting; and (3) Act 633 violates article 3, section 2 of the Arkansas Constitution because it constitutes an impairment on qualified voters' ability to cast valid ballots. Pursuant to Arkansas Rule of Civil Procedure 65, appellee also filed a motion for preliminary injunction seeking to prohibit the enforcement of Act 633 during the 2018 statewide preferential primary and general elections. Appellants filed responses to the motion for preliminary injunction, and the circuit court held an evidentiary hearing on March 12, 2018.⁵

On April 26, 2018, the circuit court entered a preliminary-injunction order prohibiting and enjoining appellants from enforcing the requirements of Act 633 or the rules of the Arkansas State Board of Election Commissioners that address Act 633. On April 27, 2018, both Secretary of State Mark Martin and the Commissioners filed separate notices of appeal. On May 2, 2018, this court granted a stay of the circuit court's preliminary injunction ahead of the May preferential-primary election.

In determining whether to issue a preliminary-injunction order pursuant to Rule 65, the circuit court must consider two things: (1) whether irreparable harm will result in the absence of an injunction or restraining order, and (2) whether the moving party has demonstrated a likelihood of success on the merits. See Potter v. City of Tontitown , 371 Ark. 200, 206, 264 S.W.3d 473, 478 (2007). This court has described the "likelihood of success" showing as requiring a "reasonable probability of success." Custom Microsystems, Inc. v. Blake , 344 Ark. 536, 42 S.W.3d 453 (2001) ; Ark. Dep't of Human Servs. v. Ledgerwood , 2017 Ark. 308, 530 S.W.3d 336. On appeal, this court reviews the grant of a preliminary injunction under an abuse-of-discretion standard. Potter , supra ; Baptist Health v. Murphy , 365 Ark. 115, 226 S.W.3d 800 (2006). However, this court reviews a circuit court's interpretation of a constitutional provision de novo. Gatzke v. Weiss , 375 Ark. 207, 210, 289 S.W.3d 455, 458 (2008).

I. Sovereign Immunity

Martin contends that the circuit court lacked jurisdiction to grant a preliminary injunction because the defendants have sovereign immunity. He argues that injunctive relief is not available in a declaratory-judgment action, citing Cancun Cyber Cafe & Bus. Ctr., Inc. v. City of N. Little Rock , ...