The Missouri Supreme Court on Thursday weighed the allegedly “heavy burden” that candidates for some state offices face because they must be registered to vote for at least two years.
In an expedited case that likely marked its last oral argument of the summer, the Supreme Court considered whether to restore Rachel Johns to the Democratic primary ballot for the 76th House District in St. Louis.
Johns is seeking to challenge incumbent Rep. Joshua Peters. Peters challenged Johns’ qualifications, as she had not registered to vote until February 2015. The Missouri Constitution, however, requires candidates to have been registered to vote for at least two years as of the election date. A St. Louis circuit judge last month ordered Johns’ name not to be printed on the ballot.
Johns’ lawyer, Dave Roland of the Freedom Center of Missouri, argues that the state’s two-year registration requirement violates Johns’ federal constitutional rights. Johns, a St. Louis community activist, says she initially didn’t register to vote as an act of political protest against what she saw as a broken electoral system. Roland argues the state’s registration requirement denies voters a potential choice on the ballot for no good reason, and that Johns’ is being penalized for the expressive act of choosing to not register to vote.
The court, however, seemed reluctant to override the requirement.
“You’re asking us to strike down not a statute but a constitutional provision as written by the people that has been a part of our constitution for over 140 years,” Judge Mary R. Russell said.
Russell added the issue of whether or how long one has been registered to vote frequently comes up in elections, noting that it even has been mentioned in the current presidential campaign — an apparent reference to Donald Trump’s children being unable to vote for their father in the New York primary because they missed the state’s voter registration deadline.
“It’s still something the people seem to be concerned about,” she said.
“If the people decide this is a matter that’s important to them, the people can decide that and chose not to vote for Ms. Johns,” Roland responded. “It’s a legitimate matter of political conversation; it is not a legitimate matter to keep someone out of the conversation.”
Several judges also noted that it was only a temporary delay in Johns’ ability to run for office. Roland, however, said that delay was important.
“She is completely excluded from running in this election cycle, and that makes a difference,” he said.
But an attorney for Peters, Matthew B. Vianello of Jacobson Press & Fields, said any burden was only “temporary and minimal.”
“The burden is, you cannot run this time but you can run next time,” he said.
The Missouri Attorney General’s Office reiterated that argument. Solicitor General Jim Layton said the registration requirement serves a rational purpose by demonstrating a “commitment to participating in the life of the people of the state of Missouri.”
Layton added that Johns voluntarily chose not to register to vote, an argument that Judge George W. Draper III found compelling.
“When she said ‘I’m not voting,’ for whatever reason, she also knew that by not voting she would not be able to run for an office that had a requirement such as this,” Draper said.
Judge Laura Denvir Stith, however, noted that only House and Senate seats have a voter registration requirement, while statewide offices do not, which could undercut the state’s argument.
Roland said Layton’s argument proved his point.
“Your honors, what we’ve just heard is the solicitor general arguing that the state of Missouri is to be allowed to penalize a citizen for engaging in expressive activity protected by the First Amendment of the U.S Constitution,” he said. “That cannot be correct.”
The Supreme Court considered a similar case two years ago, when another late-to-register candidate, Natalie Vowell, challenged the Secretary of State’s Office refusal to place her on the ballot for a St. Louis House seat. The Supreme Court heard arguments in the case but didn’t issue an opinion. Instead, it left in place an earlier appeals court ruling that the Secretary of State didn’t have authority to keep Vowell off the ballot. The constitutional issues in the case were never addressed. Vowell went on to lose the primary election.
In an amicus brief in Thursday’s case, the American Civil Liberties Union of Missouri urged the Supreme Court to overturn the underlying precedents that are keeping Johns off the ballot. The Missouri Constitution requires a candidate to have been a “qualified voter.” In 1976, the Court of Appeals Eastern District ruled in State ex rel. Burke v. Campbell that a “qualified voter” meant a registered voter.
The ACLU argued that the two terms are not synonymous and that the Supreme Court should interpret the phrase to mean that candidates simply must possess the qualifications to vote. The court did not directly address that argument at Thursday’s hearing.
The case is Peters v. Johns, SC95678.