In Part 1 and Part 2 of this series, Jonathan Keim wrote about Arkansas Supreme Court Justice Courtney Goodson’s history of receiving gifts from class action lawyers and her 2011 decision striking down a core provision of Arkansas’ tort reform statute. This Part will turn to another important opinion by Goodson, this one in favor of striking down the state’s voter identification statute in Martin v. Kohls (Ark. 2014).

This case is fairly straightforward. In 2013, the Arkansas General Assembly passed a measure requiring voters to offer current government- or school-issued “proof of identity” when voting at the polls. A careful review of the measure reveals that the amendments are only designed to ensure that each potential voter’s name matches the proper entry in the voter registration records. The measure also contains several exceptions designed to allow people without identification on polling day to vote anyway. And the law requires the state government to issue a voter registration card – free of charge – to registered voters who have no other valid form of identification.

Even this meager identification requirement was too much for the Arkansas Supreme Court. The majority opinion (which Goodson did not join) struck down the voter identification measure because they determined that it added an additional qualification for Arkansas voters beyond what was provided in the state constitution. Their conclusion confuses qualifications for voter registration with the mechanism of ensuring that a person presenting himself at the polls is in fact the same person registered. It’s no wonder this decision made Arkansas an outlier among states to consider the issue.

Goodson purports to not need to reach the question of whether the voter ID law is an additional voter qualification because she dismisses the case on a procedural ground. But her grounds for dismissal actually rest on the same flawed logic as the majority opinion: conflating voter qualifications with voter identification.

Goodson voted to strike down the law by seizing on an argument raised only in an amicus brief: that the law was unconstitutional because it hadn’t been passed by two-thirds of the legislature. She thought that this conclusion made it “wholly unnecessary to decide whether the Act added a new qualification to voting,” cleverly avoiding having to solve a contentious constitutional question.

But it’s clear why the parties didn’t think the argument was worth pursuing. The two-thirds requirement only applies to amendments of the Arkansas Constitution’s voter registration provision, which the voter ID statute does not change. Goodson’s justification for applying the two-thirds requirement is that the law is at odds with the list of forms of identification to be used when first registering to vote, and therefore must be interpreted as attempting to amend that constitutional provision. But that again confuses the constitutional description of how one must register to vote – which is a constitutional qualification for voters – with the statutory guidelines for how to identify those registered voters once they arrive at the polls.

Goodson outsmarted herself: she thought she was dodging a thorny question but in fact made an even more egregious error than her colleagues. They claimed that voter identification added qualifications to the constitutionally prescribed ones, an argument that at least is colorable (though far from meritorious). Goodson, on the other hand, claimed that requiring registered voters to show identification at the polls was an unintentional attempt to amend the requirements to get the registration in the first place. This is liberal judicial activism at its worst.