JEFFERSON CITY, Mo. (CN) — A lawyer for Missouri argued Tuesday that a lawsuit seeking to allow all eligible voters in the state to cast absentee ballots in light of Covid-19 pandemic is overly broad and would fundamentally change how those ballots are issued.
In a hearing Tuesday afternoon in Cole County Circuit Court, Missouri Solicitor General John Sauer argued the case should be dismissed.
“The relief plaintiffs are asking for would make absentee voting the dominant form of voting in Missouri,” Sauer argued before Circuit Judge Jon Beetem. “Traditionally, absentee voting has been considered the exception to the rule rather than the rule.”
The American Civil Liberties Union, ACLU of Missouri and Missouri Voter Protection Coalition filed the 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 seek 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.
But Sauer contended the suit argued for “unfettered” absentee voting. He 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 more than 3,800 cases have been confirmed. He further argued that the plaintiffs are asking for these absentee ballots to be submitted without signature verification, making the system ripe for voter fraud.
“Their prayer for relief would bring a radical revolution as to how voting is done in the state of Missouri,” Sauer told the court.
ACLU attorney Tony Rothert, representing the plaintiffs, pushed back on the state’s claims.
“This is about the fundamental right to vote without risk to health and life,” he told the court.
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.
“Just because Covid-19 is not said repeatedly [throughout the complaint] does not mean it isn’t about Covid-19,” Rothert told the court.
He finished by addressing Sauer’s voter fraud argument, saying there are numerous ways to detect and prevent such fraud and that this lawsuit doesn’t affect or diminish them.
Michael Wolff, a former chief justice of the Missouri Supreme Court and professor emeritus and former dean of St. Louis University Law School, 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.
“The answer to this central question would be obvious if all persons infected with the Covid-19 virus were exhibiting symptoms,” Wolff wrote. “But they are not. In the absence of widespread testing, even asymptomatic persons are presumed to be carriers of the virus and may transmit the virus to others.”
The memo continued, “This is the reason local and state authorities are issuing stay-at-home orders for all non-essential workers and banning non-essential travel and gatherings of more than ten persons. These restrictions of course would apply to the kind of close-quarters contact, however brief or extensive, which occurs at polling places even where social-distancing practices are in place.”
Wolff states that the plain meaning of the law’s text does not require a voter to be ill, but rather confined due to illness.
In a letter attached to Wolff’s memo, Dr. Victoria Fraser, wrote that is exactly the scenario facing Missouri voters during the Covid-19 pandemic.
“The risk of serious Covid-19 disease varies with the individual’s age, health status, and other risk factors,” wrote Fraser, who is the Adolphus Busch Professor of Medicine and chair of the Department of Medicine at the Washington University School of Medicine in St. Louis.
She continued, “Due to the limited resources to perform widespread Covid-19 testing, we are not currently able to identify everyone who is Covid-19 positive, exposed, immune or still at risk. Requiring voters to vote in-person at polling places, when Missouri provides a mail-in option, does not align with CDC guidelines and creates and unnecessary risk to individuals and to the public.”
Wolff’s memo states that the overall purpose of the law is to increase voter participation. He suggested that the Missouri Legislature could pass an amendment to apply absentee voting specifically for the current pandemic, but believes the current language is sufficient for the law to address the issue without legal wrangling.
The memo uses an April 7 election in Wisconsin as a cautionary tale. After the state’s Supreme Court overruled the governor’s order to postpone the election due to Covid-19 concerns, state health officials have identified 19 voters and election officials who tested positive for the virus after the election.
“The bottom line is the same legal as that supported by expert medial opinion: The government should not ask or require voters ‘to jeopardize their health or their lives in order to exercise their fundamental right to vote,’” Wolff concludes. “If a voter determined that the prospect of contagion puts the voter at risk of illness, ‘the decision to apply for a mailed-in absentee ballot is a valid confinement due to illness.’”
Beetem will take the case under advisement and a ruling could be issued by early next week.
Missouri has elections scheduled for June, August and November.