November 6 is fast approaching. And no matter your political stripe, these midterm elections will prove to be monumental in determining the direction of our country. Will it come down to a rebuke of President Trump and his policies, or will they encourage him to stay the course? Will the Republicans continue to control all three branches of government, or will Democrats emerge from the minority and provide some form of oversight? Will two-term incumbent Senator Claire McCaskill be unseated? Will a number of constitutional amendments pass? And what if you’re one of the estimated 5% of eligible Missouri voters without photo identification? Will you be able to participate?
Thanks to an order and judgment entered by a circuit court judge in Cole County, Missouri, the answer to that question is now more clear than ever. On October 9, 2018, Senior Circuit Judge Richard G. Callahan ordered, adjudged and decreed in Priorities USA, et al. v. State of Missouri, et al., Case No. 18C-CC00226, Cole County Circuit Court, Missouri, that the State of Missouri is permanently enjoined from disseminating materials to the effect that a photo identification is required to vote. Judge Callahan further enjoined the State of Missouri from disseminating materials with the graphic that voters will be asked to show a photo identification card without specifying other forms of identification that voters may also show. Although these rulings are drawn directly from the texts of the Missouri Photo Voter ID Law (HB 1631), Missouri Secretary of State Jay Ashcroft has vowed to appeal them to a higher court to have them reversed.
In wondering if Secretary of State Ashcroft follows through on his promise to appeal, and in wondering what a Missouri appellate court might do in that case, it’s important to note Judge Callahan specifically found the Missouri General Assembly was within its constitutional prerogative under the Missouri Constitution in adopting the Missouri Photo Voter ID Law, and with one exception being that the particular form of the affidavit voters were required to sign if they presented an approved non-photo form of identification to vote was improper, found the law to be constitutional. So, what the Missouri appellate court would be considering is whether the ruling enjoining Missouri state officials from telling voters that a photo identification is required to vote, which it is not, should be reversed. And also the order further enjoining these state officials from promoting that voters will be asked to show a photo identification card without also specifying other forms of identification voters may also show, which is misleading, should also be reversed. Only time will tell. And the clock is ticking because November 6 is almost here.
It’s important to note the Missouri Supreme Court struck down an earlier version of a Missouri photo voter identification law on state constitutional grounds, holding in Weinschenk v. State that voting is a fundamental right under the Missouri Constitution and the burdens that law placed on voting in Missouri were not narrowly tailored to prevent unwarranted burdens on voting. So, as a fundamental right, don’t allow local election authorities prevent you from voting in Missouri if you don’t have photo identification.
You have one of three options when seeking to cast a ballot in person on election day:
Option 1: Present a current Missouri driver or non-driver’s license, current U.S. passport, or a military or veteran’s identification card.
Option 2: Present a student identification card, a voter registration card, a utility bill, bank statement, government check, paycheck, or another government document showing your name and address, and sign an affidavit that you are the person on the identification and the resident voter.
Option 3: Sign a sworn statement on a provisional ballot envelope that you are a registered voter, and cast the provisional ballot, provided this ballot will only be counted if you either (a) return with a photo identification from Option One, or (b) a local election official determines your signature on the provisional ballot matches your signature on file.
So, make sure you know your rights on election day. If you’re an eligible and registered voter on election day and are denied your right to vote because you don’t have a photo identification card, whatever you do, don’t leave. Use either Option 2 or Option 3. And vote!
And if you’re proposing new Missouri state or local regulations, ordinances, or legislation to be passed or promoted, it’s important to be able to write them so all or parts of them don’t get stripped from application or enjoined, as Judge Callahan did with the Missouri Photo Voter ID Law. If you need assistance in this regard, you may wish to consult with experienced counsel at Cosgrove Law Group.