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DOCKET SUMMARIES
SUPREME COURT OF MISSOURI
Monday, June 15, 2020
Due to concerns regarding the coronavirus disease 2019 (COVID-19), oral arguments scheduled for June 2020 will be conducted remotely, unless the parties request their cases be submitted on briefs.
Scheduled for 10 a.m. – SC98536
Missouri State Conference of the National Association for the Advancement of Colored People, et al. v. State of Missouri, et al.
Cole County
Challenges to election law in light of COVID-19
Listen to the oral argument: SC98536 MP3 file
The challengers were represented during arguments by Sophia Lin Lakin of the ACLU Foundation in New York City; the state was represented by Solicitor General D. John Sauer of the attorney general’s office in Jefferson City.
Since March 2020, Missouri has been under a state of emergency due to the novel coronavirus disease 2019 (COVID-19). Section 115.658, RSMo, allows for limited absentee voting by mail. Some ballots cast by mail must be notarized, but no such requirement applies to absentee ballots cast pursuant to section 115.277.1(2), RSMo. The secretary of state has not advised local election officials whether confining oneself at home to avoid contracting or spreading COVID-19 constitutes a valid excuse to cast an absentee ballot by mail, without a notary seal, under section 115.277.1(2). Local election officials are scheduled to send absentee ballots for the August 2020 primary election beginning June 23 and for the November 2020 general election beginning September 22.
In May 2020, the legislature passed Senate Bill No. 631, which makes two changes to voting through December 2020. First, it authorizes voters who have COVID-19 or in one of eight defined categories of individuals at risk for contracting or spreading COVID-19 to cast an absentee ballot without having the signature notarized. Second, it creates a new process for any voter to mail in votes for which they have had their signatures notarized. The governor on June 4 signed SB 631 into law.
In April 2020, the Missouri State Conference of the National Association for the Advancement of Colored People, the League of Women Voters of Missouri and three registered voters (collectively, the challengers) sued the state, the secretary of state and local election officials (collectively, the state), seeking declaratory and injunctive relief. Three counts of the petition are at issue on appeal. In count I, the challengers alleged section 115.277.1(2) authorizes any voter who fears contracting COVID-19 through in-person voting to cast an absentee ballot without a notary seal. In count III, the challengers alleged section 115.277 violates the right to vote under article I, section 25 of the state constitution by excluding voters who expect to confine themselves to avoid contracting or spreading COVID-19 from casting an absentee ballot by mail. In section IV, the challengers alleged section 115.277’s requirement of a notary seal to vote by mail violates the state constitution’s right to vote. The state moved to dismiss the lawsuit. Following briefing and a hearing, the circuit court granted the state’s motion and entered judgment in the state’s favor. The court held the challengers failed to state claims on which relief could be granted, finding someone who is not ill or disabled does not qualify for non-notarized absentee voting under section 115.277.1(2) and finding there is no constitutional right to cast an absentee ballot for any reason or without signature verification. The challengers appeal.
This appeal presents several questions for this Court regarding whether the challengers failed to allege facts sufficient to state claims for declaratory and injunctive relief; the extent to which SB 631 renders the challengers’ claims moot during 2020 elections; and whether the challengers’ claims extend beyond the pandemic to any voter wishing to cast an absentee ballot in any future election. Related issues include whether eligible Missouri voters who have not tested positive for COVID-19, but who are self-quarantining to avoid contracting or spreading the virus, qualify as incapacitated or confined due to “illness” or “disability” under section 115.277.1(2) so as to cast absentee ballots without notarization; whether section 115.277.1(2) violates article I, section 25 and article VIII, section 2 of the state constitution by forcing voters to risk their own and community health, against health precautions including social distancing, to exercise their right to vote; and whether the courts have authority to determine whether and how to authorize absentee voting, including during a pandemic. Another question involves whether the Missouri NAACP and League of Women Voters sufficiently pleaded facts to support their standing (legal ability) to bring the lawsuit. Related issues include whether the organizations have established associational standing by showing they are membership organizations comprised at least in part of eligible voters who wish to vote by mail without a notary to avoid contracting or spreading COVID-19 or organizational standing by showing they assist and educate their members about absentee voting during the pandemic.
Certain doctors and professors filed briefs as friends of the Court. A group of 11 epidemiologists argue, because COVID-19 is highly contagious and can be prevented effectively only through social distancing, using in-person polling locations and requiring voters to have absentee ballots notarized present unavoidable increased risks of transmitting the virus that causes COVID-19. Political scientist and public policy Professor Lorraine Minnite argues fraud committed by voters – including impersonation fraud using an absentee ballot – is “exceedingly rare,” and there is no evidence requiring a notary or other witness reduces absentee ballot fraud.
The challengers were represented during arguments by Sophia Lin Lakin of the ACLU Foundation in New York City; the state was represented by Solicitor General D. John Sauer of the attorney general’s office in Jefferson City.
Since March 2020, Missouri has been under a state of emergency due to the novel coronavirus disease 2019 (COVID-19). Section 115.658, RSMo, allows for limited absentee voting by mail. Some ballots cast by mail must be notarized, but no such requirement applies to absentee ballots cast pursuant to section 115.277.1(2), RSMo. The secretary of state has not advised local election officials whether confining oneself at home to avoid contracting or spreading COVID-19 constitutes a valid excuse to cast an absentee ballot by mail, without a notary seal, under section 115.277.1(2). Local election officials are scheduled to send absentee ballots for the August 2020 primary election beginning June 23 and for the November 2020 general election beginning September 22.
In May 2020, the legislature passed Senate Bill No. 631, which makes two changes to voting through December 2020. First, it authorizes voters who have COVID-19 or in one of eight defined categories of individuals at risk for contracting or spreading COVID-19 to cast an absentee ballot without having the signature notarized. Second, it creates a new process for any voter to mail in votes for which they have had their signatures notarized. The governor on June 4 signed SB 631 into law.
In April 2020, the Missouri State Conference of the National Association for the Advancement of Colored People, the League of Women Voters of Missouri and three registered voters (collectively, the challengers) sued the state, the secretary of state and local election officials (collectively, the state), seeking declaratory and injunctive relief. Three counts of the petition are at issue on appeal. In count I, the challengers alleged section 115.277.1(2) authorizes any voter who fears contracting COVID-19 through in-person voting to cast an absentee ballot without a notary seal. In count III, the challengers alleged section 115.277 violates the right to vote under article I, section 25 of the state constitution by excluding voters who expect to confine themselves to avoid contracting or spreading COVID-19 from casting an absentee ballot by mail. In section IV, the challengers alleged section 115.277’s requirement of a notary seal to vote by mail violates the state constitution’s right to vote. The state moved to dismiss the lawsuit. Following briefing and a hearing, the circuit court granted the state’s motion and entered judgment in the state’s favor. The court held the challengers failed to state claims on which relief could be granted, finding someone who is not ill or disabled does not qualify for non-notarized absentee voting under section 115.277.1(2) and finding there is no constitutional right to cast an absentee ballot for any reason or without signature verification. The challengers appeal.
This appeal presents several questions for this Court regarding whether the challengers failed to allege facts sufficient to state claims for declaratory and injunctive relief; the extent to which SB 631 renders the challengers’ claims moot during 2020 elections; and whether the challengers’ claims extend beyond the pandemic to any voter wishing to cast an absentee ballot in any future election. Related issues include whether eligible Missouri voters who have not tested positive for COVID-19, but who are self-quarantining to avoid contracting or spreading the virus, qualify as incapacitated or confined due to “illness” or “disability” under section 115.277.1(2) so as to cast absentee ballots without notarization; whether section 115.277.1(2) violates article I, section 25 and article VIII, section 2 of the state constitution by forcing voters to risk their own and community health, against health precautions including social distancing, to exercise their right to vote; and whether the courts have authority to determine whether and how to authorize absentee voting, including during a pandemic. Another question involves whether the Missouri NAACP and League of Women Voters sufficiently pleaded facts to support their standing (legal ability) to bring the lawsuit. Related issues include whether the organizations have established associational standing by showing they are membership organizations comprised at least in part of eligible voters who wish to vote by mail without a notary to avoid contracting or spreading COVID-19 or organizational standing by showing they assist and educate their members about absentee voting during the pandemic.
Certain doctors and professors filed briefs as friends of the Court. A group of 11 epidemiologists argue, because COVID-19 is highly contagious and can be prevented effectively only through social distancing, using in-person polling locations and requiring voters to have absentee ballots notarized present unavoidable increased risks of transmitting the virus that causes COVID-19. Political scientist and public policy Professor Lorraine Minnite argues fraud committed by voters – including impersonation fraud using an absentee ballot – is “exceedingly rare,” and there is no evidence requiring a notary or other witness reduces absentee ballot fraud.