For the last two election cycles, the Missouri Supreme Court has considered arguments from would-be political candidates who couldn’t get on the ballot because they waited too long to register to vote.
In a 4-3 ruling on Friday afternoon, the court struck a nearly definitive blow to the legal argument that such candidates’ federal constitutional rights were being violated.
“We got so close on this,” lamented Dave Roland of the Freedom Center of Missouri. “We got so close.”
Roland represented Rachel Johns, who sought to challenge incumbent Rep. Joshua Peters in the Democratic primary for the 76th House District in St. Louis. Peters challenged Johns’ qualifications, as she had not registered to vote until February 2015. The Missouri Constitution requires candidates for the House of Representatives to have been registered to vote for at least two years as of the election date.
In a 45-page opinion issued just a day after the court heard arguments in the case, the court’s majority affirmed Johns’ removal, saying that requiring her to wait until 2018 to run for office was not too heavy of a burden.
Johns had challenged the state’s constitutional requirement as a violation of her rights under the U.S. Constitution, but the Supreme Court’s majority turned aside the argument.
“It is not unreasonable for the people of Missouri to have decided that those who seek to govern should not only reside in the district they seek to represent, but also should take a simple step to demonstrate sufficient seriousness about Missouri’s general election process and social and civic engagement at large,” Judge Mary R. Russell wrote for the majority.
An attorney for Peters, Matthew B. Vianello of Jacobson Press & Fields, was surprised at how quickly the court issued the opinion but was thrilled with the outcome.
“I see both sides, and certainly I’m happy with the position the majority took, as is my client,” he said.
Johns, a St. Louis community activist, had said she didn’t register to vote as an act of political protest against what she saw as a broken electoral system, and that barring her from running for office penalized her for that expressive act.
Russell, however, said Johns’ initial refusal to register to vote was not “symbolic speech” subject to First Amendment protection.
“While this Court does not doubt the sincerity of Johns’ motivations both in abstaining from political involvement and now seeking an active role in government, the record is devoid of any communicative elements accompanying her conduct to activate First Amendment protections,” Russell wrote. “The law of symbolic speech clearly teaches that there must be more than mere conduct … The failure to register to vote is actually the absence of conduct.”
Judge Laura Denvir Stith, joined by Chief Judge Patricia Breckenridge and Judge Richard Teitelman, dissented from the ruling. Although Stith agreed that Johns’ free speech rights weren’t violated, she said the delay in her ability to seek office was less minimal than the majority let on, as Johns registered to vote “a mere three months after the 2014 election, but that was not soon enough.”
“She will have had to wait some 45 months before she can be elected to office should the voters wish to choose her as their state representative, a substantial burden on her right to run for office and on the right of voters to vote for her,” Stith wrote.
Stith also said no statewide offices impose a registration requirement, adding that registration was a poor proxy for the seriousness and public-mindedness of candidates.
“Indeed, while all citizens may wish their fellow voters and elected officials to display these characteristics, if proof that elected officials actually display such characteristics were required, then there would be an abundance of cases brought throughout the courts of this and every state as candidates contested whether their opponents adequately displayed these civic virtues,” Stith wrote.
The court left one avenue open for a potential future challenge. Johns had argued that the registration requirement violated her equal protection rights, but the court said she’d failed to preserve that argument for appeal. Technically, that means a future candidate in the same situation could try to raise that argument, though Vianello was doubtful it would work.
“I think the result would be the same,” he said. “I certainly think that it closes all question that not registering to vote out of political expression or out of disdain for politics is not protected by the First Amendment. That’s the one thing that all seven of the Supreme Court judges agreed on.”
In a similar case two years ago, another candidate, Natalie Vowell, had challenged the Secretary of State’s Office for refusing to place her on the ballot because she too had refused to register to vote until less than two years before the election. The Supreme Court heard arguments in the case but didn’t issue an opinion, leaving the constitutional issues in the case unaddressed. 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. Vowell went on to lose the primary election.
Roland, who had also represented Vowell, was frustrated that the Supreme Court didn’t show more leniency on the equal protection argument, given the short time-frame in which the case was litigated. Given the court’s ruling, Roland said he planned to abandon a separate constitutional challenge Johns had filed in Cole County Circuit Court.
With Johns off the ballot, Peters will not face a challenger in the Democratic primary or the November general election. Roland said that lack of choice might make the case attractive to the U.S. Supreme Court, but even if the high court took the case he doubted it would be in time to restore Johns to the ballot.
“It was very frustrating, particularly for the voters of state House District 76, who now have zero choice as to who’s going to be their representative for this next legislative term,” he said.
The case is Peters v. Johns, SC95678.