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Missouri has had a serious and recurring problem with multiple-cast and fraudulent ballots, and general misrepresentation of identity at election polls. News reports estimate that the names of more than 10,000 deceased people appear on Missouri’s voter rolls.1 In October 2006, nearly 1,500 “potentially fraudulent” voter registration cards were discovered in St. Louis City, including those of three deceased persons.2 

Several organizations have been implicated in the fraud through investigations over the years. Operation Big Vote delivered 3,800 “suspect” voter registration cards to the St. Louis City Election Board in March 2001 on the mayoral primary’s deadline registration date. Among those purported to have registered were several prominent deceased St. Louisians and one dog.3 The ensuing investigation resulted in guilty pleas from six canvassers4 and conviction of the organization’s leader.5 All of the cards in the aforementioned October 2006 news report had been turned in by the Association of Community Organizations for Reform Now (ACORN).6 In St. Louis County ACORN turned in hundreds of incorrect address change cards, including one “signed” by a dead person.7 Thousands more suspicious cards surfaced in Kansas City on the eve of 2006 general election. One member of the Kansas City Board of Elections vividly described the voter rolls as having been “raped.”8 Most of the cards originated with ACORN.9 On the Wednesday before Election Day, a federal grand jury in the Western District of Missouri indicted four ACORN employees for intentionally submitting false voter registration cards.10 

The problem has been no less pronounced in general elections. News reports estimated at least 235 deceased persons “voted” in 2004.11 In 2000, 1,268 St. Louis residents who had not registered by the deadline nonetheless voted by court order.12 A study by Matt Blunt, then the Secretary of State and now Governor, concluded that 1,233 of these persons should not have been allowed to vote.13 The Blunt Report also found that 114 federal and state felons illegally voted,14 68 people “likely” voted more than once,15 and 14 ballots were cast in the names of deceased individuals.16 A less exhaustive study conducted by the outgoing Secretary of State, published in early 2001, found that 135 individuals who were not registered voters and did not have a court order nonetheless were allowed to vote.17

The state legislature began to respond to the public perception that Missouri’s ballot boxes were vulnerable to fraud and mismanagement by passing an election reform bill in 2002. The bill, which brought Missouri into compliance with the federal Help America Vote Act, contained a voter ID requirement.18 Previously, Missouri law merely required a voter somehow to “identify himself” in order to receive a ballot. Under the 2002 bill, voters were required to present some form of “personal identification,” including any state or federal ID, a college ID card, or a current utility bill or pay stub.19 Voters whose identity could not be determined at the polls were permitted to cast a provisional ballot that would be verified and counted at a later date.20

The 2006 Missouri Voter Protection Act strengthened the ID requirement by defining “personal identification” as a state-issued driver or non-driver license, any photographic military ID, or any other non-expired state or federal government document bearing the voter’s signature and photo.21 A two-year transition period was added to ease the law’s impact. During the transition period, any voter who could not produce acceptable identification could still vote with a provisional ballot after (1) signing an affidavit affirming his or her identity, and (2) producing valid identification per the 2002 law.22 Mentally or physically handicapped voters, voters older than sixty-five, and voters whose religious beliefs prevented them from having an accepted form of identification were permanently exempted from the ID requirement and could vote after signing a similar affidavit.23 All other voters who did not have an acceptable form of identification could obtain non-driver licenses from the state free of charge; a “mobile processing unit” would bring non-driver licenses to the elderly and disabled free of charge.24 Governor Blunt signed the Act on June 14, 2006. 

Plaintiffs filed suit against the law in state and federal court, but the federal suit (spearheaded by People for the American Way) was stayed. At the state level, Jackson County sued claiming that the law violated a portion of the Missouri Constitution known as the Hancock Amendment, which prohibits the state from imposing unfunded mandates on political subdivisions.25 Jackson County argued that because counties likely would have to process more provisional ballots, especially during the transitional period, the new law created an unfunded mandate. In a separate suit, a group of individual plaintiffs claimed that the law burdened their right to vote in violation of the state constitution.26

The state suits were consolidated for a trial before Circuit Judge Richard Callahan, who overturned the law on September 14, 2006.27 It is unclear from the opinion what level of scrutiny Judge Callahan employed (rational basis, intermediate, strict), or whether he overturned the law on equal protection grounds or because it infringed on a fundamental right shared by all citizens. Whatever the reason, Callahan concluded that the “voting restrictions imposed by SB 1014 impermissibly infringe[d] on core voting right [sic] guaranteed by the Missouri Constitution.” Judge Callahan rejected the Hancock Amendment challenge, which argument the plaintiffs dropped on appeal.

The Supreme Court of Missouri held that SB 1014 violated the Equal Protection Clause of the Missouri Constitution.28 The court used strict scrutiny, and decided the case under the Missouri Constitution (although it made reference to federal precedent throughout the opinion). Under the federal REAL ID Act of 2005, a citizen needs a U.S. passport or birth certificate in order to receive a driver or non-driver license. Missouri charges $15 for an official birth certificate; an expedited U.S. passport can cost upwards of $200. The court identified additional “practical costs,” such as navigating state and federal government bureaucracies, and traveling to and from government agencies in pursuit of the required documentation. The custom of a married woman taking her husband’s name convinced the court that the law disproportionately affected women, and extrapolated from that to hypothesize about the difficulties that the poor, elderly, and disabled could face under the new law. It therefore concluded that the law substantially burdened a fundamental right, and could not be justified unless found “necessary to accomplish a compelling state interest.”

While recognizing that the state has a “compelling interest in preserving electoral integrity and combating voter fraud,” the court held that SB 1014 could not withstand strict scrutiny. First, the court deferred to the trial court’s factual findings and held that “voter impersonation fraud” has not been a problem in Missouri since the 2002 ID requirement was enacted. Thus, the court held that the state’s asserted interest was nonexistent. It also held that the photo ID requirement would not work to prevent other types of alleged voter fraud, such as “absentee ballot fraud, voter intimidation, and inflated voter registration rolls.” Thus, the court concluded that the law was not narrowly tailored to prevent voter fraud. From reading the decision, however, it is not clear whether the law failed the “compelling interest” prong, the “narrowly tailored” prong, or both (under the strict scrutiny standard).

The court also rejected the argument that the law combated the perception of voter fraud. The court was worried that “the tactic of shaping public misperception could be used in the future as a mechanism for further burdening the right to vote or other fundamental rights.”

Alone in dissent from the court’s unsigned per curiam opinion, Justice Stephen Limbaugh argued that the issue was not yet ripe. To Limbaugh’s mind, the law’s two-year transition period meant that no citizen’s right to vote would be burdened until the 2008 general election because they could easily cast a provisional ballot in the meantime. Limbaugh would have held that the plaintiffs lacked standing until 2008. Justice Limbaugh further noted in his dissent that even assuming arguendo that “voter impersonation fraud” never happens in Missouri, for what reason does a person register to vote under a false name, except ultimately to commit voter impersonation fraud?29

Critics of this case have argued that whether one agrees with the court’s reasons for overturning the Voter Protection Act, the decision effectively short-circuited the democratic process. Had the court found the law’s transition period severable and constitutional (as Limbaugh did), voters would have experienced the new law in effect. Voters who had to cast provisional ballots in 2006 would have realized that to vote in 2008 they would need to obtain a photo ID from the state, which would require various official documents. Legislators could have been contacted, pressure groups could have formed, and the people’s representatives could have debated amending or repealing the law. Having been thoroughly vetted in the court of public opinion, the issue would have been fully ripe for consideration by the state supreme court in 2008.

Meanwhile, the need to protect the integrity of Missouri’s election process remains. Supporters of the 2006 Act recently announced that the legislature would address the issue again in 2007.30 Hoping to prevent a replay of 2006, the bill’s sponsor acknowledges that the state must find a way to pay for the documents (passport, birth certificate) voters need to receive a state-issued photo ID. But after the court’s decision in Weinschenk, the constitutionality of any such law is doubtful. It is certain, however, that this issue is not going away any time soon.

*John Hilton is a graduate of Harvard Law School and a member of the Kansas City Federalist Society chapter.

 

Endnotes

1 Matt Wynn, Columbia Missourian, “Deceased Still on State’s Voting Rolls,” Nov. 2, 2006. 2 Jo Mannies, St. Louis Post-Dispatch, “Suspect Voter Registration Cards Found in St. Louis,” Oct. 11, 2006. 

3 Jo Mannies, St. Louis Post-Dispatch, “Director of Get-Out-The-Vote Program Subpoenaed by Federal Grand Jury,” April 21, 2001. 

4 Robert Patrick, St. Louis Post-Dispatch, “6 Plead Guilty in Vote Fraud Case,” Dec. 17, 2004. 

5 Robert Patrick, St. Louis Post-Dispatch, “Jury Finds Montgomery Guilty in Vote Fraud Case,” Feb. 11, 2005. 

6 Id. 

7 Jo Mannies, St. Louis Post-Disptach, “More Bogus Election Forms Found”, Oct. 25, 2006. 

8 Dave Helling, KC Buzz Blog, “James: The registration rolls are a mess,” 11/21/06, available at http://kcbuzzblog.typepad.com/ kcbuzzblog/2006/11/james_the_regis.html (last accessed Nov. 29, 2006). 

9 Dave Helling, The Kansas City Star, “Election Officials Seek Voter Registration Inquiry,” Oct. 24, 2006. 

10 Dave Helling, The Kansas City Star, “False Voter Registrations Allegedly Submitted,” Nov. 1, 2006. 

11 Supra note 1. 

12 “Mandate for Reform: Election Turmoil in St. Louis, November 7, 2000,” by Secretary of State Matt Blunt, issued on 7/24/2001, at 8. available at http://bond.senate.gov/mandate.pdf (last accessed Oct. 29, 2006). 

13 Id. A sampling of excuses from the voters’ affidavits: “Forgot to [register],” “Missed registration deadline of 10/11/00”, “for the democratic party,” and “I don’t know.” 

14 Id. at 8-9, 24-25. 

15 Id. at 9, 25-26. 

16 Id. at 9, 26. 

17 “Analysis and General Recommendations Report Regarding the November, 2000 General Election in the City of St. Louis,” by Secretary of State Rebecca McDowell Cook, issued on Jan. 4, 2000, at 9. Copy of report on file with the author.

18 Senate Bill 675, § 115.427.1(1)-(6), available at http://www.senate.state. mo.us/02info/billtext/tat/SB675.htm (last accessed 11/13/06). 

19 Id. 

20 R.S.Mo. § 115.430 (Supp. 2006). 

21 R.S.Mo. § 115.427.1(1)-(4) (Supp. 2006), available at http://www. moga.state.mo.us/statutes/C100-199/1150000427.HTM (last accessed 12/4/06). 

22 R.S.Mo. § 115.427.13 (Supp. 2006), available at http://www.moga.state. mo.us/statutes/C100-199/1150000427.HTM (last accessed Dec. 4, 2006). 

23 Id. at § 115.427.3-4. 

24 Id. at § 115.427.7. 

25 MO. CONST. Art. X, § 21 (Supp. 2006), available at http://www.moga.state.mo.us/const/A10021.HTM (last accessed Dec. 4, 2006). 

26 MO. CONST. Art I, § 25 (Supp. 2006), available at http://www.moga.state. mo.us/const/A01025.HTM; art. VIII, § 2 (Supp. 2006), available at http:// www.moga.state.mo.us/const/A08002.HTM (last accessed Dec. 4, 2006). 

27 Weinschenk v. Missouri, case no. 06AC-CC00656, and Jackson County v. Missouri, case no. 06AC-CC00587, both in Circuit Court of Cole County, Missouri (Division II). Copy of opinion on file with the author. 

28 Weinschenk v. Missouri, 203 S.W.3d 201 (Mo. 2006). 

29 Id. at 228. 

30 Bob Priddy, MISSOURINET, “Voter Photo ID to Return,” 1/12/2007, available at http://www.missourinet.com/gestalt/ go.cfm?objectid=D8C287FA-3594-496F-9D382DA84B387D66&dbtransl ator=local.cfm (last accessed Jan. 12, 2007).

Note from the Editor: The Federalist Society takes no positions on particular legal and public policy matters. Any expressions of opinion are those of the author. We welcome responses to the views presented here. To join the debate, please email us at [email protected].