Circuit court judge rules Missouri mail-in voting laws not too restrictive

A Cole County circuit judge ruled Thursday that Missouri’s comparably restrictive mail-in voting laws aren’t unconstitutional because mail-in voting isn’t a fundamental right in the state.

The lawsuit, brought by the Washington, D.C.-based American Women organization and three St. Louis County plaintiffs, challenged a number of election laws that advocates say make voting in the state too inaccessible — especially during the COVID-19 pandemic.

The lawsuit challenged Missouri’s practice of rejecting any ballot received by local election authorities after the polls close on Election Day, the requirement that all mail-in ballots and some absentee ballots be notarized and that all mail-in ballots be returned through the postal service.

“Restrictions placed on mail-in balloting do not violate the fundamental right to vote because mail-in balloting is not a fundamental right under the Missouri Constitution,” Circuit Judge Daniel Green wrote in his decision.

“The authority to allow one to vote not in person and not on Election Day is commended to the legislature in our constitution.”

The legislature approved special 2020 provisions allowing any Missouri voter to cast a mail ballot this year. Voters who are at risk for contracting the virus, including anyone age 65 or older, can cast an absentee ballot without getting it notarized.

But Secretary of State Jay Ashcroft still promotes in-person voting as the best option for Missourians. He says that for every 50 mail-in and absentee ballots cast, local election authorities will reject at least one — a rate nearly double the national average.

“It is hard to dispute that by law, absentee balloting is currently a privilege — not a right,” said Charles Hatfield, a lawyer representing the plaintiffs in the case. “Until people decide to change the Missouri Constitution, I think that is the law.

“The issue here is that even though it’s a privilege, you have to treat people equally.”

Local election authorities in many states, including Kansas, count mail-in ballots received up to a few days after the polls close as long as they are postmarked by Election Day. Missouri officials only count late absentee ballots sent in by active duty military members and their immediate family.

“If you’re in the military or you’re a family member of a military person, even though you live in Missouri — even though you might be in Kansas City on Election Day — your vote, as long as it’s postmarked by Election Day, it can count up to the Friday after the election,” Hatfield said.

“If your neighbor is not in the military and their ballot doesn’t get there until the Friday after the election, it doesn’t count. To us, that’s a pretty big issue.”

The burden of drastically increased mail-in voting on the U.S. Postal Service could lead to delays in ballot delivery. Officials encourage voters casting a mail-in ballot to return it as soon as possible.

The Pennsylvania Supreme Court recently ruled that absentee ballots in the state could be counted up to the Friday after Election Day. On Monday, the U.S. Supreme Court declined without comment to take up the case, affirming the lower court’s ruling.

Voter accessibility advocates have also notched key victories in other states, including Wisconsin, where an appeals court agreed last month to give voters more time to return their absentee ballots.

Closer to home, though, the 8th Circuit Court of Appeals ruled Thursday that Missouri voters cannot return their mail-in ballots in person, as voters in neighboring Kansas can.

With the election 11 days away, Hatfield said his team is still deciding whether or not to appeal the Cole County decision to the Missouri Supreme Court.

This story was originally published October 23, 2020 at 4:55 PM.