LITTLE ROCK — The state Republican Party can intervene in a lawsuit over how absentee ballots should be handled under the state’s new voter ID law, a Pulaski County circuit judge ruled Monday.
The party had asked Judge Tim Fox to allow it to intervene in a lawsuit the Pulaski County Election Commission filed against the state Board of Election Commissioners. The suit alleges that the board exceeded its authority when it adopted rules on how absentee ballots should be handled when voters submit them without the proof of identity required under Act 595 of 2013.
The attorney general’s office is representing the Board of Election Commissioners in the case. George Ritter, attorney for the state GOP, argued in a hearing Monday that the party should be allowed to intervene because Attorney General Dustin McDaniel, a Democrat, cannot provide vigorous and effective representation in the case.
The suit challenges the board’s rules stating that if an absentee voter fails to submit ID with a ballot, he or she should have until the Monday after the election to submit ID and have the ballot counted.
McDaniel said in a February advisory opinion that he believes Act 595 allows a "cure period" for in-person voters who fail to show photo ID but does not provide the same remedy for absentee voters who fail to submit ID — a position which Ritter argued would interfere with the ability of McDaniel’s office to defend the board’s rules.
Senior Assistant Attorney General Joseph Cordi Jr. told Fox on Monday, "I’m confident the opinion will not hold me back."
Pulaski County Attorney Karla Burnett told the judge that if the GOP were allowed to intervene, the county wanted an assurance that the intervention would not delay decision in the case, noting that the party primaries and nonpartisan election are May 20.
In his ruling from the bench, Fox said he did not agree that the attorney general’s office would be unable to be vigorous and effective in its representation of the board. He said that in his 12 years as a judge, the attorney general’s office has been before him on numerous cases and has never once failed to argue zealously for its clients.
But Fox also said he was concerned about the appearance of fairness.
"The public needs to feel confident that everything was done appropriately in a case of this nature," he told Cordi. "Your office has two completely separate statutory functions: one is obviously to defend your client, and the other is to issue opinions, and I bet some folks might have a problem with the concept that those are two completely separate, distinct things."
Fox said he would allow the intervention and said it would not prevent proceeding at an accelerated pace. He told the parties to file motions for summary judgment no later than Friday and to file responses no later than April 23.
State Republican Party Chairman Doyle Webb said after the hearing he was pleased with the ruling.
"Lawyers look at cases different ways and can make arguments in different ways. I think that the additional attorney representing the state party will help ferret out any issues that the attorney general’s office might miss or might not emphasize as stringently as we would want those emphasized," he said.
Burnett said she OK with the intervention "since we did go ahead and make it clear in court today that it won’t affect an accelerated briefing schedule, and we can hopefully get a decision in time to resolve this matter before the primary."
The Legislature was divided along party lines over Act 595, with Republicans largely supporting it and Democrats largely opposing it. Democratic Gov. Mike Beebe vetoed the legislation, but the Republican-controlled House and Senate overrode the veto.