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Supreme Court to consider voting during pandemic

The Missouri legislature recently made it easier to vote absentee during the COVID-19 pandemic. The Missouri Supreme Court is being asked to take it a step further.

The high court is set to hear arguments at 10 a.m. Monday, June 15 in a lawsuit from the Missouri branches of the NAACP and the League of Women Voters, who argue that voters should not be forced to expose themselves and others by leaving their homes during the COVID-19 crisis.

The suit, which was filed in April and dismissed by a Cole County judge in May, is already partly moot. On June 4, Gov. Mike Parson signed Senate Bill 631, which temporarily allows voters who have health conditions that put them at risk of contracting COVID-19 to cast an absentee ballot without having to get a notary’s seal.

Voters who don’t meet the pandemic-specific exceptions can request a mail-in absentee ballot, but it must be notarized, as is already required for most absentee ballots. The provisions expire at the end of the year.

Although SB 631 resolves some of the claims in the suit, it doesn’t go far enough, according to the plaintiffs, who are represented by the American Civil Liberties Union’s national and Missouri operations. Even people who don’t show signs of COVID-19 or have specific vulnerabilities can get and transmit the disease, according to the suit. That puts voters in the untenable position of exposing themselves to the disease, voting absentee in defiance of the law or not voting at all.

“The message from the government has been clear for months, including in this litigation: Stay home and avoid person-to-person contact, even if it costs your vote,” the plaintiffs wrote in a brief filed shortly after SB 631 was signed. “This is a constitutionally impermissible choice to impose on voters.”

Even without the pandemic-related exceptions, Missouri law permits voters who face “incapacity or confinement due to illness or physical disability” to cast an absentee ballot without notarization. The exception, clearly written without a pandemic in mind, has both sides arguing that applying it under current circumstances would require the Supreme Court to read words into the statute.

The Missouri Attorney General’s Office argues that the language doesn’t apply to people who merely fear they could contract or spread the disease at a polling place.

“In ordinary English, one would not say that a person who is not ill or disabled is ‘confined due to illness or physical disability,” Solicitor General D. John Sauer wrote. “One might say that they are ‘confined due to fear of illness,’ but that is not what the statute says.”

The ACLU, in turn, called that a “belittling characterization.” The statute, wrote ACLU of Missouri legal director Anthony Rothert, “does not include a ‘suffering’ requirement.”

“It is much simpler: A voter need only expect to be confined due to an illness or disability,” he wrote. If voters stay home to avoid a widespread deadly disease with no immunity or vaccine, “they are confined ‘because of,’ or ‘due to,’ the COVID-19 illness.”

The attorney general alleges that the ACLU’s argument could mean that every Missouri voter has a constitutional right to cast an absentee ballot without notarization even after the COVID-19 crisis has passed, as the suit’s claims also could be applied to illnesses ranging from SARS to the common cold.

“This interpretation would upend the statutory scheme by effectively transforming absentee voting from a limited exception into the predominant method of voting in Missouri,” the brief said. The ACLU denied that it was seeking such a broad ruling.

The case has drawn amicus briefs urging the court to side with the plaintiffs. A group of 11 epidemiologists — represented by former Missouri Supreme Court Judge and Saint Louis University School of Law Dean Michael A. Wolff — argued that polling locations are “particularly susceptible” to virus transmission, given the large numbers of people who line up and vote in common areas.

Meanwhile, a brief on behalf of Lorraine C. Minnite, an associate professor of public policy at Rutgers University-Camden and the author of the 2010 book “The Myth of Voter Fraud,” responded to the state’s argument that notarization of absentee ballots was needed to fight voter fraud.

Parson, in signing the recent bill, said voting absentee “without a reason and without a signature verification” was not a secure way to handle such ballots. Minnite, however, argued that “there is little support for the claim that notarization or witness verification of absentee ballots reduces what little fraud there is in the absentee balloting process.”

The case is Missouri State Conference of the National Association for the Advancement of Colored People et al. v. State of Missouri, SC98536.

Coronavirus crisis

This item is part of Missouri Lawyers Media's free coverage of how the COVID-19 pandemic has affected the legal community.

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