Fight for Vote-by-Mail Hits Missouri Supreme Court

Central to the ACLU’s case is allowing Missouri voters to submit an absentee ballot without notarization.

(AP Photo/John Froschauer, File)

JEFFERSON CITY, Mo. (CN) — The push for unrestricted absentee voting in Missouri during the Covid-19 pandemic shifted to the state’s high court Monday, after a judge shot down the effort last month.

Sophia Lakin, deputy director of the voting rights project for the American Civil Liberties Union, asked the Missouri Supreme Court to reverse a Cole County judge’s dismissal of the lawsuit filed by the civil rights group.

Senate Bill 631, passed last month by Missouri’s GOP-dominated Legislature, expanded mail-in voting options and narrowed the legal grounds for the ACLU’s case. But Lakin argued it fell short of giving all Missourians concerned about Covid-19 to ability to submit an absentee ballot.

Republican Governor Mike Parson recently signed SB 631 into law. It specifies a list of high-risk voters who can vote absentee without notarization.

“It also adds an additional provision to all voters to vote by mail, but those individuals need to obtain a notary,” Lakin said in an interview. “And that provision doesn’t exempt the notary requirement from fees. What remains of the case is primarily this question of whether or not the statutes that are regulating absentee voting are harming voters because these voters still need to obtain a notary seal to vote by mail and the only other option is to vote in person with all the other health risks.”

Lakin said SB 631, for example, does not exempt those who are caring for at-risk individuals from the notary requirement.

Central to the ACLU’s case is allowing Missouri voters to submit an absentee ballot without notarization. Lakin argued that the act of going to a notary runs contrary to the state’s social distancing guidelines and places a “severe burden” on voters.

The Supreme Court justices questioned Lakin on whether her position would change if a ballot could be notarized remotely. She responded that even remote notarization brings issues such as a lack of notary seal, notary fees and notary access.

The justices also asked Lakin how narrowly tailored the lawsuit was, questioning whether it applied to the common cold or something more serious such as Covid-19.

“The claims that our claims are untethered to Covid are just a misconstruction of what we pled,” Lakin said in an interview. “If you take a look at the pleadings, you will see that almost every single page of that pleading refers to Covid or an effect of Covid, either as a general manner on people’s health or on elections or voting processes specifically. I think we mentioned Covid-19 102 times in that 34-page document.”

The ACLU, ACLU of Missouri and Missouri Voter Protection Coalition filed their lawsuit on April 17 seeking to make absentee mail-in ballots available to all eligible voters in Missouri. It was filed on behalf of the NAACP of Missouri, the League of Women Voters of Missouri and several individual voters.

Missouri law requires voters to provide an excuse in order to vote absentee. One of the allowable reasons is “incapacity or confinement due to illness or physical disability.”

The plaintiffs sought a ruling clarifying that all eligible voters who are confining themselves to avoid contracting or spreading Covid-19 – the respiratory disease caused by the novel coronavirus – may invoke the confinement-due-to-illness reason for absentee voting. A state judge rejected that request last month.

Echoing arguments made in the trial court hearing, Missouri Solicitor General John Sauer argued Monday that SB 631 would be superfluous if the court upheld the ACLU’s definition of the absentee ballot statute.

In attacking the ACLU’s claims, Sauer told the high court, “the problem with this is, the phrase ‘in fear of’ is not in the statute.’” He said to accept the ACLU’s argument would require the court to add to legislation.

Sauer also said the ACLU’s constitutional claim was not properly pleaded in its petition. He told the court that the lawsuit offered no qualifications on absentee balloting, pointing to the ACLU seeking a permanent injunction, instead of a temporary one, as proof that its quest to provide unfettered absentee ballots to state voters extended well beyond the Covid-19 pandemic.

“It was not an error for the trial court to look at these allegations and see that they contradict the Missouri Constitution and decades of case law,” Sauer said in the hearing on Monday.

The ACLU provided evidence of several other states it claims have adopted similar absentee voting exceptions in light of Covid-19 concerns. But Sauer argued those decisions are the domain of lawmakers or the executive branch.

“Not a single one of those is a court decision,” Sauer told the high court. “Every single one of those was an executive order.”

Lakin said in an interview that 13 of the 17 states that require a reason for absentee voting have made Covid-19-related exceptions.

“At a minimum these particular actions done by the other states demonstrate that they are willing to do what they need to do to make sure that voters can vote safely,” Lakin told Courthouse News. “I think it is noteworthy that there are so many states that see this as a very common-sense way to address this very unusual set of circumstances we have to protect voters.”

Cole County Circuit Judge Jon Beetem sided with the state in a ruling issued on May 19, which prompted the appeal to Missouri Supreme Court.

“At the end of the day, the language of the statute is the language of the statute and I think you need to look at that very clearly,” Lakin said in an interview. “But I think one of the things that these other statutes demonstrate is what the legislature did not write in the confinement provision. They said due to illness and physical disability, not due to the voter’s own illness or disability, not due to the voter having a disability or illness and so forth. The language very clearly in our view applies broadly to voters who are expecting to confine themselves due to Covid.”

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