One of the privileges of a columnist is to beat a dead horse, and a recurring liberty of this one is to mourn the decline of the rule of law, which, like nearly everything in the public sphere, is now displaced by politics.

Just a few days ago, I took the exceptional occasion to praise Attorney General Jeff Sessions and all the lawyers President Trump had put in charge at the Justice Department for standing up to the president and insisting that the course of law be followed, wherever it went. At some point soon, he may fire one or all of them, and we shall have a true constitutional crisis.


The contrast then was with the Arkansas attorney general, who, almost every day of the week, flouts the rule of law in favor of the rule of politics. Leslie Rutledge is an elected politician, and the U.S. attorney general is a political appointee, but they are required to interpret and enforce the law impartially, without regard to politics. Rutledge was back at it this week, refusing for the 63rd time this election cycle to let sponsors of constitutional amendments and initiated acts that offend powerful constituencies — employers, religionists, industries, the Republican Party — gain access to the ballot through the initiative and referendum process. No other attorney general in Arkansas history has tried to do that. She always says a word here or there confuses her.

Now it’s the Arkansas Supreme Court, which voted 6-1 last week to ignore precedent and the Constitution and permit the state to discourage many poor, black, aged or infirm voters from trying to vote this month in the primaries and judicial election. They will be threatened with prosecution and jail if they can’t or won’t show a government-issued photo identification, even though they may have long been registered to vote and sign their names in exactly the same script they have penned on the voter affidavit for many years. Only the chief justice, Dan Kemp, did his duty under the law.


Like 18 other Republican legislatures, the Arkansas legislature in 2013 passed a law requiring voters to show a government photo ID when they vote. Photo ID laws have been shown to depress voting by certain groups, particularly blacks and poor whites who do not drive or travel abroad or otherwise have a need for a government photo ID. Even when the law allows ways to get around the photo ID, the process is so cumbersome and threatening that it takes a bold and insistent voter to do it and, even then, the vote may not be counted. It’s at the whim of controlling election officials.

But the Republican Party has convinced many people that thousands of crooks crowd into the precincts every election, pretend they are someone else who is registered to vote but is absent that day and cast those people’s votes for Democrats. Many states, including Arkansas, have had problems with election fraud, but it’s by people running the elections, not people trying to vote. The photo ID won’t curtail the usual election fraud. If precinct workers are crooked, the photo ID won’t stop the individual voter fraud, either.


A trial judge and the Arkansas Supreme Court in 2014 struck down the legislature’s photo ID act. The justices pointed out that the photo ID requirement violated the strict terms of both the original Constitution and the permanent registration that was amended into the Constitution in 1964. The Constitution says people must be allowed to vote if they are a U.S. citizen, an Arkansas resident, at least 18 years old and lawfully registered. The legislature can’t erect new barriers.

So the Republicans last year wrote an amendment to the Constitution to add the photo-ID barrier, and it will be on the ballot in November. They also enacted a statute to reinstate the photo ID for this year’s election, in the hope that the now reconstituted and submissive Supreme Court would let it go.

After hearings in March, Judge Alice Gray issued a careful 57-page ruling reaffirming the Supreme Court declaration that a statutory photo ID requirement violated the Constitution, but in far more detail than the now departed Supremes. She illuminated Secretary of State Mark Martin’s incompetence in preparing election officials and voters for the new voting requirements.

Judge Gray, like the Supreme Court, was required to stop the ID procedures from being used in the primaries and judicial election if it would cause permanent harm to any voter, like preventing him from voting, and if she either thought the lawsuit had a reasonable chance of success or if she went ahead and ruled that the requirement was unconstitutional. The Supreme Court had the same duty, but it declined to rule on the constitutionality of the statute (it will hold a hearing on Judge Gray’s ruling this summer) and told Martin the unconstitutional ID requirements could be applied in this month’s election.


Rutledge issued a statement claiming the justices had upheld the photo ID law and praising them for saying it “helps ensure free and fair elections.” They had done no such thing. The court had supinely ducked the issues and wrote no opinion at all, other than to say “stay … granted.”

That is the status of the rule of law in Arkansas.