Mo. State Conference of the Nat'l Ass'n v. State

• Citation: 601 S.W.3d 241
• Decision Date: 23 June 2020
• Docket Number: No. SC 98536,SC 98536
• Parties: MISSOURI STATE CONFERENCE OF the NATIONAL ASSOCIATION FOR the ADVANCEMENT OF COLORED PEOPLE, et al., Appellants, v. STATE of Missouri, et al., Respondents.
• Court: Missouri Supreme Court

601 S.W.3d 241

MISSOURI STATE CONFERENCE OF the NATIONAL ASSOCIATION FOR the ADVANCEMENT OF COLORED PEOPLE, et al., Appellants,

v.STATE of Missouri, et al., Respondents.

No. SC 98536

Supreme Court of Missouri, en banc.

Opinion issued June 23, 2020

The challengers were represented by Sophia Lin Lakin and Jonathan s. Topaz of the ACLU Foundation in New York, (212) 519-7836.

Anthony E. Rothert, Jessie Steffan and Kayla Deloach of the Missouri Foundation in St. Louis, (314) 652-3114.

Gillian R. Wilcox of the ACLU of Missouri Foundation in Kansas City, (816) 470-9933; and Denise D. Lieberman of the Missouri Voter Protection Coalition in St. Louis, (314) 780-1833.

PER CURIAM

The Missouri State Conference of the National Association for the Advancement of Colored People, the League of Women Voters of Missouri, Javier A. Del Villar, Kamisha D. Webb, and Cecil E. Wattree ("petitioners") appeal the circuit court's dismissal of their petition for declaratory judgment and injunctive relief for failure to state a claim upon which relief could be granted. In four counts, petitioners sought injunctive and declaratory relief with respect to Missouri's absentee voting statute, section 115.277. Petitioners abandoned count II on appeal; therefore, the circuit court's judgment with respect to count II is affirmed. Counts I, III, and IV of the petition state claims upon which relief could be granted; therefore, the circuit court's judgment with respect to those counts is reversed, and the cause is remanded.

Factual and Procedural Background

Prior to the signing of SB 631 on June 4, 2020, Missouri had no vote-by-mail system available to all registered voters. Missouri's only mechanism for non-in-person voting was the absentee voting procedure set out in section 115.277, but that procedure was available to only a subset of registered voters. Only those registered voters with the circumstances set forth in section 115.277.1(1)-(6) could vote absentee. And, under the provisions in section 115.277, most registered voters with one of the enumerated circumstances would have needed to have their absentee ballots acknowledged in person before returning them by mail. All other voters had to physically appear at their designated polling places on an election day to vote.

In response to the severe acute respiratory syndrome coronavirus 2 (COVID-19) pandemic and the upcoming August primary and November general elections, on April 17, 2020, petitioners filed a four-count petition for injunctive and declaratory relief in the Cole County circuit court. Due to the transmissibility of COVID-19 through person-to-person contact, petitioners sought injunctive and declaratory relief to secure the ability to exercise their constitutional right to vote – but to do so without leaving their homes to reduce the risk of contracting or spreading COVID-19 during the process.¹

Petitioners’ count I sought a declaration that the authorization in section 115.277.1(2), which permits any registered Missouri voter to vote absentee without notarization if they are unable to vote in person due to confinement due to illness or disability, applies to persons who are confining themselves at home due to COVID-19.² Count II sought a declaration that the inconsistent interpretation of section 115.277.1(2) by local election authorities regarding whether it authorizes such voters to vote absentee by mail without notarizing their ballots violates the Equal Protection Clause of the Missouri Constitution.³ Count III sought a declaration that allowing some, but not all, voters to vote absentee by mail violates the right to vote provided by the Missouri Constitution.⁴

Finally, count IV sought a declaration that, in the same situation, allowing some voters to vote absentee by mail without notarization but requiring others to obtain in-person notarization imposes costs of obtaining notarization that other voters need not face and violates the right to vote provided by the Missouri Constitution.⁵ Petitioners’ objective under Count IV was to secure for all registered Missouri voters the ability to vote by mail without the risks of contracting and spreading COVID-19 through the notarization or in-person voting process and without the costs, including time and transportation, required to obtain in-person notarization of a mail-in or absentee ballot. On appeal, petitioners have clarified they seek the requested relief only for the August 2020 primary and November 2020 general elections due to the COVID-19 pandemic.

The state did not file an answer to the petition. Rather, on May 5, 2020, the state filed a motion to dismiss the petition under Rule 55.27(a)(6), claiming petitioners had failed to state any claims upon which relief could be granted. The circuit court took up the motion and, after concluding petitioners were not entitled to the declarations (and related relief) they sought, sustained the motion to dismiss as to all counts on May 18, 2020.⁶ Petitioners appeal the dismissal of Counts I, III, and IV, but have abandoned their claim in Count II. This Court has exclusive appellate jurisdiction owing to the constitutional challenges to section 115.277 in Counts III and IV. Mo. Const. art. V, § 3.⁷

Recent Developments

Before turning to the merits of petitioners’ appeal, this Court must outline important developments: the passage and signing into law of Senate Bill No. 631 and the passage of House Bill No. 1655. On May 15, 2020, the legislature truly agreed and finally passed SB 631 with an emergency clause providing the bill would become effective immediately "upon its passage and approval." SB 631, 100th Gen. Assemb., § B (2020). SB 631 repeals and replaces section 115.277, providing for expanded absentee and mail-in voting for the remaining 2020 elections. SB 631 reenacts section 115.277 with language identical to that of the former statute, except it adds new sections 115.277.1(7) and 115.277.6 pertaining to elections held during 2020.

Specifically, for the remainder of 2020, section 115.277.1(7) authorizes any voter who has "contracted or is in an at-risk category for contracting" COVID-19 to vote by absentee ballot. At-risk voters are defined in new section 115.277.6 as:

For purposes of this section, the voters who are in an at-risk category for contracting or transmitting severe acute respiratory syndrome coronavirus 2 are voters who: (1) Are sixty-five years of age or older; (2) Live in a long-term care facility licensed under chapter 198; (3) Have chronic lung disease

or moderate to severe asthma ; (4) Have serious heart conditions; (5) Are immunocompromised; (6) Have diabetes ; (7) Have chronic kidney disease and are undergoing dialysis; or (8) Have liver disease.

SB 631, 100th Gen. Assemb., § 115.277.6 (2020). Such at-risk voters are authorized to vote absentee by mail in any election during 2020 without having their signatures on their ballot envelopes acknowledged⁸ by a notary or other official authorized by law to administer oaths. Id. § 115.283.8; § 115.291.1.

SB 631, in newly adopted section 115.302.1, further authorizes all registered Missouri voters to cast a mail-in ballot in any election held in 2020, provided the ballot is acknowledged as provided in sections 115.302.11 and 115.291.1. In other words, SB 631 authorizes all registered voters to vote by mail with their signatures on the ballot envelopes so long as the signatures are acknowledged by a notary or other person authorized to administer oaths. SB 631 further authorized a subset of at-risk registered voters, as that term is statutorily defined, to vote absentee by mail without such acknowledgement in the remaining 2020 elections. SB 631 was delivered to the governor May 27, 2020, and signed into law June 4, 2020, becoming immediately effective on that day.

The legislature also passed a separate bill, HB 1655, which authorizes many notarial acts to be done remotely, without the need to appear personally before the notary, with certain requirements and potential notary fees and costs.⁹ Section 442.145.1.

The governor has not yet signed HB 1655 into law. Because HB 1655 does not contain an emergency clause, if signed, it will not take effect until August 28, 2020. The governor issued Executive Order 20-08 on April 6, 2020, and, since the circuit court's decision in this matter, has extended that order to August 28, 2020.¹⁰ Pursuant to the governor's emergency authority under sections 44.100, RSMo Supp. 2009, and 44.110, RSMo 2000, Executive Order 20-08 suspends the requirement of personal appearance before a notary due to health concerns raised by COVID-19. The order further authorizes notarizations to take place via "audio-video technology." Executive Order 20-08's authorization of remote notarizations, therefore, will be effective during the absentee ballot period for the August 2020 primary election. It has not been extended to include the November 2020 general election, although HB 1655, if signed, would be effective during the absentee and mail-in ballot period preceding the November 2020 general election.

Standard of Review

"This Court reviews a circuit court's sustaining of a motion to dismiss de novo. " Mitchell v. Phillips , 596 S.W.3d 120, 122 (Mo. banc 2020).

A motion to dismiss for failure to state a claim on which relief can be granted is solely a test of the adequacy of the petition. When considering whether a petition fails to state a claim upon which relief can be granted, this Court must accept all properly pleaded facts as true, giving the pleadings their broadest intendment, and construe all allegations favorably to the pleader.

Id. at 122-23.

Petition States Claims for Relief

A motion to dismiss does not permit the circuit court – or this Court on appeal – to determine the merits of a claim. Instead, the proper inquiry on a motion to dismiss "is solely a test of the adequacy of the petition." Id. at 122. In other words, the claimant merely must allege facts sufficient to state a cognizable cause of...