JEFFERSON CITY, Mo. (CN) — The Missouri Supreme Court on Tuesday revived a lawsuit seeking to expand absentee voting for this year’s primary and general elections due to the Covid-19 pandemic.
In a unanimous en banc ruling, the Supreme Court remanded three of the four counts in a lawsuit filed by the American Civil Liberties Union to the circuit judge who had dismissed them this month. The ACLU abandoned the other count on appeal.
“The circuit court should have overruled the motion to dismiss and should not have undertaken any analysis of the merits of petitioners’ claims in ruling on that motion,” according to the 9-page opinion. “Because the merits of the petition were not before the circuit court on the state’s motion to dismiss, the circuit court erred in entering a judgment on the merits.”
Sophia Lakin, deputy director of the voting rights project for the ACLU, lauded the decision.
“It reaffirms our argument that this is a serious health crisis,” said Lakin, who presented the ACLU’s case to the Supreme Court on June 16.
A spokesman for the state declined comment, citing state policy of not discussing pending litigation.
The ACLU, ACLU of Missouri and Missouri Voter Protection Coalition filed the 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 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 may invoke the confinement-due-to-illness reason for absentee voting. A state judge rejected that request in May, prompting the appeal.
Since then, Missouri’s Republican-dominated Legislature passed Senate Bill 631, which expanded mail-in voting options and narrowed the legal grounds for the ACLU’s case. Gov. Mike Parson, a Republican, signed the bill into law June 4 and it took effect immediately.
“On remand, the parties and the circuit court can address the significant changes in circumstances that have occurred after the petition was filed and the judgment dismissing the petition was entered, i.e., the governor’s executive orders, the statutory changes in SB 631 that are now in effect,” the Supreme Court ruled.
Lakin said the bill, which allows for those in at-risk groups for Covid-19 to allow to vote by mail without signature verification, does not go far enough. For example, caregivers for at-risk people are not exempt.
“The numbers (for Covid-19 in Missouri) are going up,” Lakin said in an interview. “I think they had a record day over the weekend, and I think the state argued that they were expected to go down.”
Missouri set single-day records for new Covid-19 cases on both Saturday and Sunday, with more than 800 cases reported over the weekend.
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 question the court was asking when the case went up is, did the passage of Senate Bill 631 moot the case?” Wolff said in an interview. “I think it’s pretty clear that it did not moot the case, because for the category of voters who are under the age of 65 and don't have any of the conditions covered by the bill, they can still be confined due to illness even if they don’t have asthma or heart disease or lung disease or something else that's listed in the new law.”
Wolff said the wording of the law is key.
“The law doesn't say you have to have symptoms,” Wolff said. “It doesn't say you have to be sick. It says you have to be confined due to illness. Not an illness. Not your illness. Just due to Illness.”
While the trial judge ruled against the ACLU on merits, the Supreme Court’s remand might have sent a message.
“The judge might take the signal that the Supreme Court wants him to do a ruling on the merits, and if they really thought he was right about what he said, why wouldn’t they just affirm and be done with it?” Wolff said. “I think the plaintiffs have a realistic chance of prevailing.”
But time is of the essence. Absentee ballots for the August primary went out on the same day that the Supreme Court handed down its ruling.
Wolff said it is not likely that a case can be tried and possibly appealed to the Missouri Supreme Court or Missouri Court of Appeals in time for the August election, but the November election is definitely in play given an expedited schedule.
Lakin is preparing for just that.
“We are caucusing tonight to plan our next move,” she said.
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