Priorities USA v. State | Cases | Westlaw

Priorities USA, Mildred Gutierrez, Ri Jayden Patrick, and West County Community Action Network (“Respondents”)¹ *451 filed a petition for declaratory and injunctive relief against the Missouri secretary of state, alleging section 115.427 unconstitutionally burdens individuals’ right to vote. Specifically, they contend that prospective voters, because of their personal circumstances, will have difficulty adhering to section 115.427's photo identification requirements.² After a bench trial, the circuit court entered a judgment finding section 115.427 constitutional except for subsections 2(1) and 3, the affidavit requirement. Subsection 2(1) permits individuals to vote with listed forms of non-photo identification if they execute an affidavit that meets certain requirements. The related subsection 3 provides the affidavit language. The circuit court enjoined the State from requiring individuals who vote under this option to execute the affidavit required under subsections 2(1) and 3. The circuit court also enjoined the State from disseminating materials indicating photo identification is required to vote. The State appeals.

Because the affidavit requirement of sections 115.427.2(1) and 115.427.3 is misleading and contradictory, the circuit court's judgment declaring the affidavit requirement unconstitutional is affirmed. Further, the circuit court did not err in enjoining the State from requiring individuals who vote under the non-photo identification option provided in section 115.427.2(1) to execute the affidavit or in enjoining the dissemination of materials indicating photo identification is required to vote. The circuit court's judgment is affirmed.

In 2016, the legislature truly agreed to and passed section 115.427, which became effective in 2017. Section 115.427 establishes three options under which individuals can identify themselves for purposes of voting.

Under the first option, in subsection 1 of section 115.427, an individual can present acceptable forms of personal identification, all of which contain the individual's photograph. Under the second option, as found in subsection 2 of section 115.427, an individual who does not possess the types of photo identification provided under the first option can vote by executing a statutorily specified affidavit and presenting a form of non-photo identification expressly authorized by section 115.427.2(1). The affidavit individuals are required to execute under the second option must be “substantially” in the form provided in section 115.427.3. Individuals must aver they are listed in the precinct register, do not possess personal identification approved for voting, are eligible to receive a Missouri non-driver's license free of charge, and are required to present a form of personal identification to vote. Section 115.427.3.

Finally, under the third option, individuals can cast a provisional ballot, which will be counted if: (1) the voter returns to the polling place during the polling hours and provides an approved form of photo identification under option one, or (2) the election authority compares the individual's signature with the signature reflected on the election authority's file and confirms the individual is eligible to vote at that particular polling place. Section 115.427.4.

Respondents filed a petition for declaratory and injunctive relief against the secretary of state, alleging section 115.427 unconstitutionally restricts the right to vote in Missouri by imposing burdens on prospective voters who, because of their personal circumstances, will have difficulty adhering to section 115.427's identification requirements.

*452 After a bench trial, the circuit court entered a judgment finding section 115.427 constitutional except for the affidavit requirement in subsections 2(1) and 3. The circuit court determined the affidavit was contradictory and misleading and, accordingly, impermissibly infringed on an individual's right to vote. The circuit court enjoined the State from requiring individuals who vote under the second option to execute the affidavit required under subsections 2(1) and 3. The circuit court also enjoined the State from disseminating materials that indicated photo identification is required to vote. The State appeals.³

This Court reviews de novo a challenge to the constitutional validity of a statute. Williams v. Mercy Clinic Springfield Cmtys., 568 S.W.3d 396, 406 (Mo. banc 2019). A statute is presumed constitutional and will not be found unconstitutional unless it “clearly and undoubtedly violates the constitution.” Id. (quotation omitted). “Nonetheless, if a statute conflicts with a constitutional provision or provisions, this Court must hold the statute invalid.” Weinschenk v. State, 203 S.W.3d 201, 210 (Mo. banc 2006). The party challenging the statute's constitutional validity bears the burden of proving a violation. Williams, 568 S.W.3d at 406.

“The issuance of injunctive relief, along with the terms and provisions thereof, rests largely with the sound discretion of the trial court.” Edmunds v. Sigma Chapter of Alpha Kappa, 87 S.W.3d 21, 29 (Mo. App. 2002). The circuit court “is vested with a broad discretionary power to shape and fashion relief to fit the particular facts, circumstances and equities of the case before it.” Burg v. Dampier, 346 S.W.3d 343, 357 (Mo. App. 2011).

The State argues the circuit court erred in enjoining the use of the affidavit when voting under option two because the affidavit requirement does not burden the right to vote and is constitutional. In response, Respondents assert the affidavit requirement is misleading and contradictory and, accordingly, impinges on voters’ right to equal protection and the fundamental right to vote as guaranteed by the Missouri Constitution.

Two constitutional provisions establish “with unmistakable clarity” that Missouri citizens have a fundamental right to vote. Weinschenk, 203 S.W.3d at 211. Article I, section 25 provides that “all elections shall be free and open; and no power, civil or military, shall at any time interfere to prevent the free exercise of the right of suffrage.” Article VIII, section 2 establishes the qualifications necessary to vote in Missouri. Missouri courts have made clear that, pursuant to these provisions, the right to vote is fundamental. Weinschenk, 203 S.W.3d at 211 & n.15.

Further, the Missouri Constitution guarantees its citizens the equal protection of the laws. Mo. Const. art. I, sec. 2 (“[A]ll persons are created equal and are entitled to equal rights and opportunity under the law.”). But, as this Court has *453 previously indicated, “some regulation of the voting process is necessary to protect the right to vote itself.” Weinschenk, 203 S.W.3d at 212. To determine the level of scrutiny that should be applied to evaluate a statute addressing the right to vote, Missouri courts first evaluate the extent of the burden imposed by the statute. Id. If a statute severely burdens the right to vote, strict scrutiny applies, which means the law “will be upheld only if it is narrowly tailored to serve a compelling state interest.” Peters v. Johns, 489 S.W.3d 262, 273 (Mo. banc 2016) (quotation omitted). Conversely, when the law does not impose a heavy burden on the right to vote, it is subject to the less stringent rational basis review. Weinschenk, 203 S.W.3d at 215-16.

This Court need not evaluate the extent of the burden imposed by the affidavit requirement because the requirement does not satisfy even rational basis review. The State asserts the affidavit requirement combats voter fraud through “verify[ing] a voter's identity and eligibility to vote.” Such an interest is legitimate – and even compelling. Weinschenk, 203 S.W.3d at 217. But to satisfy the lowest level of scrutiny, rational basis review, the affidavit requirement must be rationally related to this interest. Id. at 215-16. In other words, the requirement must be “a reasonable way of accomplishing this goal.” Peters, 489 S.W.3d at 273 (quotations omitted).

The affidavit requirement is set out in sections 115.427.2(1) and 115.427.3. Subsection 2(1) provides that an individual who appears at a polling place without an approved form of photo identification under option one⁴ but who is “otherwise qualified to vote” may cast a regular ballot provided the individual presents an approved form of non-photo identification as specified under option two in section 115.427.2(1)⁵ and executes an affidavit that meets certain requirements. Subsection 3 then provides that the affidavit must be “substantially in the following form”:

The affidavit requirement in sections 115.427.2(1) and 115.427.3 is contradictory and misleading for several reasons. The affidavit language in subsection 3 requires individuals who vote under option two to aver that they “do not possess a form of personal identification approved for voting.” Section 115.427.3. If “form of personal identification” means any identification, photo or non-photo, approved under section 115.427, then the affidavit is misleading because individuals voting under option two are required to swear under oath that they do not possess such identification but then must present non-photo identification approved under option two. Section 115.427.3. But if, consistent with the affidavit requirements in subsection 2(1),⁶ the phrase “form of personal identification” means only photo identification approved under option one, then the later sentence in the affidavit that provides individuals must acknowledge they are “required to present a form of personal identification, as prescribed by law, in order to vote,” see section 115.427.3, is contradictory because individuals can vote by presenting non-photo identification as described in option two. See section 115.427.2(1). For this reason, the language of subsection 2, which provides that individuals signing the affidavit must acknowledge they are “required to present a form of personal identification, as described in subsection 1 of this section, in order to vote,” is inaccurate. See section 115.427.2(1).⁷ Under either interpretation, an individual voting under option two is required to sign an ambiguous, contradictory statement under oath and subject to the penalty of perjury.

The testimony of several witnesses highlighted the confusion that resulted from the affidavit's contradiction. Gutierrez, who voted in November 2017 after signing the affidavit and presenting her social security card, voter identification card, and birth certificate, testified she found the affidavit's language concerning. By signing the affidavit, Gutierrez swore under penalty of perjury that she did not possess a form of personal identification approved for voting when, in reality, she “had all kinds of forms of identification.” The affidavit led her to believe that she needed photo identification to vote in future elections.⁸ Similarly, *455 Patrick,⁹ who voted in the November 2017 election by presenting their voter identification card and signing the affidavit, testified the language of the affidavit was confusing and ambiguous because it required them to state they do not possess personal identification when they, in fact, did have their voter identification card.¹⁰ Both Gutierrez and Patrick testified they would not sign the affidavit to vote in a future election.

The record further indicates that election officials did not understand the affidavit requirement. For example, Gutierrez was informed by an election official that she would need to obtain photo identification to vote in the next election, and one of Respondents’ witnesses, David King, was told he could not vote despite presenting his voter registration card – an acceptable form of non-photo identification under option two. Section 115.427.2(1).

Although the State has an interest in combatting voter fraud, requiring individuals voting under option two to sign a contradictory, misleading affidavit is not a reasonable means to accomplish that goal. See Ambers-Phillips v. SSM DePaul Health Ctr., 459 S.W.3d 901, 912 (Mo. banc 2015) (noting a statute fails rational basis review if it “rests on grounds wholly irrelevant to the achievement of the state's objective”). For this reason, the affidavit requirement of sections 115.427.2(1) and 115.427.3 does not pass muster under any level of scrutiny. Accordingly, the circuit court's judgment declaring the affidavit requirement unconstitutional is affirmed.

After declaring the affidavit requirement unconstitutional, the circuit court enjoined the State from requiring voters who cast a ballot under option two to execute the affidavit. The State argues the circuit court erred in severing the affidavit requirement in its entirety. According to the State, two alternative, narrower remedies existed. First, the State argues the circuit court should have allowed the secretary of state to rewrite the affidavit language. In the alternative, the State argues the circuit court should have severed only the parts of the affidavit requirement the circuit court found unconstitutional.

Section 115.427.3 provides that the affidavit's language must be substantially in the form provided by the statute, implying the form in section 115.427.3 need not be followed exactly. The State argues the circuit court should have allowed the secretary of state to modify the affidavit's language to address the circuit court's constitutional concerns.¹¹

*456 This proposed remedy falls short of rectifying the affidavit requirement's constitutional flaw. Although the affidavit need only be substantially in the following form provided in section 115.427.3, any modification must be consistent with the affidavit requirements in section 115.427.2(1), which the secretary of state has no authority to alter. Pursuant to section 115.427.2(1), the affidavit must include language “acknowledging that the individual is required to present a form of personal identification, as described in subsection 1 of this section, in order to vote.” As emphasized above, such a statement is misleading, as option one photo identification is not required to vote. Accordingly, because any modification by the secretary of state must follow the requirements in section 115.427.2(1) and include this misleading statement, allowing the secretary of state to rewrite the affidavit's language is not an adequate remedy.¹²

In the alternative, the State asserts the circuit court should not have enjoined the affidavit requirement entirely but instead should have severed only the portions of the text it found unconstitutional. While “[t]he provisions of every statute are severable,” when a portion of a statute is found unconstitutional, the remaining provisions will not be upheld if they are “so essentially and inseparably connected with, and so dependent upon, the void provision that it cannot be presumed the legislature would have enacted the valid provisions without the void one.” Section 1.140; see also Weinschenk, 203 S.W.3d at 219. This Court employs a two-part test to determine whether valid parts of a statute can be upheld despite the statute's unconstitutional parts. Dodson v. Ferrara, 491 S.W.3d 542, 558 (Mo. banc 2016). First, this Court considers whether, “after separating the invalid portions, the remaining portions are in all respects complete and susceptible of constitutional enforcement.” Id. Then, this Court considers whether “the remaining statute is one that the legislature would have enacted if it had known that the rescinded portion was invalid.” Id.

As established above, the phrase “form of personal identification” as used in sections 115.427.2(1) and 115.427.3 is misleading and contradictory. For this reason, the portion of the affidavit requiring individuals to aver they “do not possess a form of personal identification approved for voting” and the portion of the affidavit requiring *457 individuals to acknowledge they are “required to present a form of personal identification, as prescribed by law, in order to vote” as well as the corresponding language in section 115.427.2(1) are unconstitutional. Under either interpretation of the meaning of “form of personal identification,” an individual voting under option two is required to sign an ambiguous, contradictory statement under oath and subject to the penalty of perjury.

After this language is severed, the affidavit language in section 115.427.3 reads, in pertinent part:

While removing this language eliminates any constitutional concerns, requiring individuals to sign this modified version of the affidavit would be futile, as all voters are required to sign a precinct register establishing the voter's identity and qualification to vote. See section 115.427.8 (“I hereby certify that I am qualified to vote at this election by signing my name and verifying my address by signing my initials next to my address.”). The precinct register further provides notice that “[i]t is against the law for anyone to vote, or attempt to vote, without having a lawful right to vote.” Id. Because the modified version of the affidavit would essentially replicate the information in the precinct register that every voter must sign, the legislature would not have enacted the modified affidavit. See Akin v. Dir. of Revenue, 934 S.W.2d 295, 300 (Mo. banc 1996) (emphasizing that in applying the severability doctrine, it is presumed that the legislature would not enact a statute with a meaningless sentence).¹⁴

*458 Although the dissenting opinion does not reject this Court's holding that the affidavit requirement of sections 115.427.2(1) and 115.427.3 is misleading, contradictory, and unconstitutional, the dissenting opinion disagrees with this Court's decision to affirm the circuit court's severance of the affidavit requirement. The dissenting opinion presents two alternative remedies it believes should have been adopted instead. For the reasons below, both remedies are nonsensical.

First, the dissenting opinion suggests the circuit court should have severed section 115.427.2 in its entirety, rather than severing only the affidavit requirement language. Op. at 461. As the dissenting opinion notes, if option two – the non-photo identification option – is severed, two options for voting remain, option one and option three. See sections 115.427.1; 115.427.4. Under option one, an individual cannot vote without showing a government-issued photo identification. Section 115.427.1. Under option three, an individual's vote will not be counted unless (1) the voter returns to the polling place during the polling hours and provides an approved form of photo identification under option one, or (2) the election authority compares the individual's signature with the signature on the election authority's file and confirms the individual is eligible to vote at that particular polling place. Section 115.427.4. The record reflects the signature-matching process could result in an over-rejection of legitimate signatures, as there is no training or uniform standards election officials follow.¹⁵ So, regardless of whether individuals vote pursuant to option one or option three, to ensure their votes are counted, individuals must show photo identification. Sections 115.427.1; 115.427.4(1)(a).

In effect, the dissenting opinion's proposal to sever option two in its entirety would result in individuals having to present government-issued photo identification to ensure their votes are counted. In Weinschenk, this Court made clear that requiring individuals to present photo identification to vote is unconstitutional. 203 S.W.3d at 219. Weinschenk emphasized that some individuals, due to their personal circumstances, experience hurdles when attempting to obtain photo identification, id. at 215, a concern that remains relevant in the instant case.¹⁶ Obtaining *459 photo identification requires appropriate documentation, time, and the ability to navigate bureaucracies.¹⁷ Id. “Those things that require substantial planning in advance of an election to preserve the right to vote can tend to ‘eliminate from the franchise a substantial number of voters who did not plan so far ahead.’ ” Id. (quoting Harman v. Forssenius, 380 U.S. 528, 539-40, 85 S.Ct. 1177, 14 L.Ed.2d 50 (1965)). For these reasons, the dissenting opinion's first proposed remedy poses constitutional concerns and could not have been adopted by this Court.¹⁸

Second, the dissenting opinion proposes the circuit court could have severed only the contradictory affidavit language “but maintain[ed] the affidavit requirement for non-photo identification voting.” Op. at 463. Notably, the dissenting opinion is not specific regarding which part of the affidavit's language it would have severed. Regardless, as made clear above, after the unconstitutional provisions are severed, the modified version of the affidavit would essentially replicate the information in the precinct register that every voter must sign. Accordingly, the legislature would not have enacted the modified affidavit. See Akin, 934 S.W.2d at 300.

For these reasons, the dissenting opinion's proposed remedies are nonsensical, and the circuit court did not err in enjoining the affidavit requirement in its entirety.

The circuit court also enjoined the State from disseminating “materials with *460 the graphic that voters will be asked to show a photo identification card without specifying other forms of identification which voters may also show.” The State argues the circuit court erred in enjoining the secretary of state from disseminating such materials because these materials accurately reflect section 115.427’s requirements.

Section 115.427.5 assigns the secretary of state the duty to notify the public of the personal identification requirements of section 115.427. Section 115.427.5 provides:

The State asserts the advertisement is an accurate statement of section 115.427 because when individuals vote they are asked to show photo identification. But no part of section 115.427 mandates that election officials ask individuals for photo identification. Indeed, at trial the State asserted that while election officials may request photo identification, they are not required to, as “all [three] methods of voting are equally valid.” The advertisement misleads individuals into believing photo identification is required to vote, which is an inaccurate characterization of section 115.427.¹⁹

After finding the advertisement misleading, the circuit court had discretion to “shape and fashion relief to fit the particular facts, circumstances and equities of the case before it.” State ex rel. Ideker, Inc. v. Grate, 437 S.W.3d 279, 287 (Mo. App. 2014). The injunction was limited in scope, as it enjoined the State from disseminating only those “materials with the graphic that voters will be asked to show a photo identification card without specifying other forms of identification which voters may *461 also show.” The decision to enjoin these materials is well-supported in the record. The circuit court did not abuse its discretion in enjoining the secretary of state from disseminating materials that provide a misleading description of section 115.427’s requirements.

Because the affidavit requirement of sections 115.427.2(1) and 115.427.3 is misleading and contradictory, the circuit court's judgment declaring the affidavit requirement unconstitutional is affirmed. Further, the circuit court did not err in enjoining the State from requiring individuals who vote under the non-photo identification option provided in section 115.427.2(1) to execute the affidavit or in enjoining it from disseminating materials indicating photo identification is required to vote. The circuit court's judgment is affirmed.