The ruling is a win for the state, which claimed the lawsuit was seeking “unfettered” mail-in voting that could lead to voter fraud.
JEFFERSON CITY, Mo. (CN) — A lawsuit seeking to allow absentee voting for all eligible Missourians in light of the Covid-19 crisis was dismissed by a state judge who found that the complaint asked for measures that went beyond concerns over the pandemic.
“The court takes very seriously the health concerns regarding the Covid-19 pandemic that plaintiffs allege in their petition, but the relief plaintiffs seek is not limited to Covid-19 and goes far beyond the health concerns they raise,” Cole County Circuit Judge Jon Beetem wrote in his opinion Tuesday.
He continued, “Plaintiffs are seeking a radical and permanent transformation of Missouri voting practices without the authorization of the Legislature.”
The American Civil Liberties Union, which filed the lawsuit, has appealed to the Missouri Supreme Court.
“We don’t think the case should have been dismissed,” ACLU lawyer Tony Rothert said in an interview. “But, on the other hand, we all knew this was going to a Missouri Supreme Court resolution and this will get it there faster.”
The ACLU opted to take its appeal straight to the state’s high court instead of an appeals court because two of the lawsuit’s four counts challenge the constitutionality of the voter statutes.
A spokesman for Missouri declined to comment due to the appeal, citing the state’s policy on not discussing ongoing litigation.
Beetem’s decision came on the same day that a Texas federal judge ruled that all of the Lone Star State’s voters can vote by mail after finding the state’s vote-by-mail statute unconstitutional.
The ACLU, ACLU of Missouri and Missouri Voter Protection Coalition filed their lawsuit on April 17 seeking to make absentee mail-in balloting 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 from the court 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.
The state countered that the suit argued for “unfettered” absentee voting. In a hearing before Beetem last week, Missouri Solicitor General John Sauer said the incapacity clause was never meant to allow for absentee voting because of fear of contracting an illness and added that there is a risk of contracting an illness in any election, citing past outbreaks of SARS and Ebola.
The state’s attorney also attacked the suit’s class claims, saying that voters in counties with zero confirmed Covid-19 cases are not similarly situated to voters in St. Louis County, where thousands of cases have been confirmed. He further argued that the plaintiffs are asking for absentee ballots to be submitted without signature verification, making the system ripe for voter fraud.
Rothert, representing the plaintiffs, pushed back on the state’s claims during the hearing, claiming the case is “about the fundamental right to vote without risk to health and life.”
Rothert argued that the unique propensity of Covid-19 that allows someone to carry it without symptoms, yet be contagious, makes cramped polling places an area of concern.
He noted that some counties have already issued absentee ballots for voters over 60 years old because they are considered a high-risk group for Covid-19. Rothert argued that the suit was clearly about absentee voting amid the Covid-19 pandemic and not about unrestrained absentee voting rights.
“In this case, it is tied to the current circumstances of Covid-19 and people are isolating themselves from the public for the purposes of not spreading or contracting this illness,” Rothert said in an interview.
But Beetem was not swayed. He found that someone who is not ill or disabled has no illness or disability.
“As an initial matter, no limiting principle would restrict plaintiffs’ interpretation of the statute to the current Covid-19 pandemic,” Beetem wrote. “If plaintiffs’ interpretation were correct, then a voter who feared catching any illness at the polls, in any future election, would be entitled by the statute to cast an absentee ballot. No court or election authority has ever adopted this broad interpretation.”
The judge found that the complaint’s equal protection claim fails as a matter of law because plaintiffs did not assert that the burdens of in-person voting during the Covid-19 outbreak were the same for voters in rural counties with few or zero cases compared to voters in metropolitan areas with thousands of confirmed cases.
Beetem concluded his dismissal by finding against the lawsuit’s request for mail-in votes to be sent in without notarization, ruling that it far exceeds the Covid-19 pandemic and that “there is no constitutional right to cast an absentee ballot in Missouri law.”
Michael Wolff, a former chief justice of the Missouri Supreme Court and professor emeritus and former dean of St. Louis University Law School, disagrees with Beetem’s characterization of fear keeping voters away from the polls instead of an actual illness.
“Judge Beetem says the plain language, he read into it the voter’s illness,” Wolff said in an interview. “The actual statutory language is due to illness. Now he infers that means you are ill.”
Prior to the ruling, Wolff wrote a memorandum of law regarding the lawsuit to interested election authorities and voters. The memo, which is also signed by 80 Missouri Bar members, states that while there is no case law construing statutory reasons for voting absentee, contemporary cases before the state’s high court can provide guidance on the issue.
“Frankly, with this particular illness, how do you know that much in advance that you’re going to be ill if it’s truly about you being ill?” Wolff said. “There’s some time in advance for when you have to apply for an absentee ballot. Sometimes this thing comes down pretty quickly. You don’t know if you’re going to be ill or not.”
But while Wolff disagrees with Beetem’s characterization, the ruling could have teeth in the upper courts.
“One of the things [plaintiffs have] raised is that voting, because voting is a fundamental right, that restrictions on voting are therefore invalid. The problem with that is I think that Beetem says, and he could have a point there, that the absentee provisions might just be permissive in terms of the Missouri Constitution rather than something the legislature has to do, so I’m not sure how this thing will turn out,” Wolff said.
Adding to the issue is the recent passage of Senate Bill 631 by Missouri’s GOP-dominated Legislature, a measure designed to expand absentee voting in light of Covid-19 for 2020 only. Republican Governor Mike Parson has not signed it yet and Secretary of State Jay Ashcroft, also a Republican, is already on record as opposing it.
Rothert said the bill would provide relief to some Missouri voters, but falls short of offering absentee voting for all state voters during this pandemic.
“It’s not signed yet and it won’t be at the earliest [until] early June, which is a time when absentee ballots are already being requested,” Rothert said.
The ACLU has requested an expedited hearing from the Missouri Supreme Court. With absentee ballots for the August primary set to go out on June 23, Rothert hopes have briefings done in the first week of June.