Org. for Black Struggle v. Ashcroft

• Decision Date: 23 October 2020
• Docket Number: No. 20-3121,20-3121
• Parties: ORGANIZATION FOR BLACK STRUGGLE ; St. Louis A. Philip Randolph Institute; Greater Kansas City A. Philip Randolph Institute; National Council of Jewish Women, St. Louis; Missouri Faith Voices, Plaintiffs-Appellees, v. John R. ASHCROFT, in his official capacity as Missouri Secretary of State, Defendant-Appellant. Greene County Clerk's Office; Jackson County Election Board; St. Charles County Election Authority; St. Louis County Election Board, Defendants. AARP; AARP Foundation Amici Curiae.
• Court: U.S. Court of Appeals — Eighth Circuit

978 F.3d 603

ORGANIZATION FOR BLACK STRUGGLE ; St. Louis A. Philip Randolph Institute; Greater Kansas City A. Philip Randolph Institute; National Council of Jewish Women, St. Louis; Missouri Faith Voices, Plaintiffs-Appellees,

v.John R. ASHCROFT, in his official capacity as Missouri Secretary of State, Defendant-Appellant.

Greene County Clerk's Office; Jackson County Election Board; St. Charles County Election Authority; St. Louis County Election Board, Defendants.

AARP; AARP Foundation Amici Curiae.

No. 20-3121

United States Court of Appeals, Eighth Circuit.

Submitted: October 12, 2020

Filed: October 23, 2020

Anthony E. Rothert, Jessie Steffan, Kayla Deloach, ACLU of Missouri Foundation, St. Louis, MO, Naila Awan, Kathryn Sadasivan, DEMOS, New York, NY, Chiraag Bains, DEMOS, Washington, DC, Denise Lieberman, Missouri Voter Protection Coalition, St. Louis, MO, Ezra Rosenberg, Ryan Snow, Lawyers' Committee for Civil Rights Under Law, Washington, DC, for plaintiffs-appellees.

D. John Sauer, Julie Marie Blake, Asst. Attys. Gen., Jefferson City, MO, for defendant-appellant.

Before SHEPHERD, KELLY, and GRASZ, Circuit Judges.

SHEPHERD, Circuit Judge.

The Organization for Black Struggle, the St. Louis A. Philip Randolph Institute, the Greater Kansas City A. Philip Randolph Institute, the National Council of Jewish Women St. Louis Section, and Missouri Faith Voices (Plaintiffs) sought a temporary restraining order and preliminary injunction against the enforcement of portions of Mo. Rev. Stat. § 115.302, which provides for voting by mail-in ballot due to the ongoing global pandemic. As relevant to this appeal, Plaintiffs alleged that the statute violated the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution by treating mail-in ballots differently than absentee ballots, requiring the former to be returned by mail only while allowing the latter to be returned by mail or in-person, either from the voter himself or a relative within the second degree of consanguinity. The district court entered a preliminary injunction in favor of the Plaintiffs, and, on motion of John Ashcroft, in his capacity as the Missouri Secretary of State (the Secretary), entered a temporary administrative stay of the preliminary injunction.¹ The Secretary has appealed the district court's order and also moved to stay the injunction pending appeal. For the following reasons, we grant the Secretary's motion to stay the injunction pending disposition of the appeal.

I.

In June 2020, in response to the ongoing COVID-19 pandemic, the Missouri Legislature enacted Senate Bill 631, which amended the statutory provision regarding absentee ballots and created a new statutory provision allowing mail-in ballots for remaining 2020 elections. The law added a new category of voters eligible to cast absentee ballots—individuals who are in an at-risk category for COVID-19—and allowed all Missouri registered voters to cast a mail-in ballot. By the terms of the law, these changes will remain in effect only until December 31, 2020.

Although the rules for casting absentee or mail-in ballots largely mirror one another, there is one notable difference: while absentee voters may return their ballots by mail or in person—delivering the ballot to the election authority themselves or through a relative within the second degree of consanguinity—mail-in voters may return their ballots only through United States Postal Service (USPS) mail. Both mail-in and absentee ballots must be received by the close of polls on election day, and election authorities may not count ballots received after the 7:00 p.m. deadline. As relevant to this appeal, Plaintiffs argued that this difference between absentee and mail-in ballots resulted in an equal protection violation because the differing treatment between the groups placed an undue burden on the right to vote for those seeking to avail themselves of the mail-in ballot procedures.

The district court concluded that, while the burden on the right to vote by requiring return of mail-in ballots by USPS mail was seemingly minimal, the risk of total disenfranchisement to the voter, through no fault of his or her own, combined with the existing procedures in place to accommodate the return of remote ballots to the election authority, demonstrated Plaintiffs’ likelihood of success on the merits. The district court also found that the remaining Dataphase Sys., Inc. v. C L Sys., Inc., 640 F.2d 109, 114 (8th Cir. 1981), factors for granting a preliminary injunction—irreparable harm, balance of the harms, and the public interest—weighed in favor of granting the injunction.

The district court thus granted in part Plaintiffs’ motion for a preliminary injunction and temporary restraining order and ordered the State to allow mail-ballots to be received by the same method as absentee ballots. The district court further ordered the State to immediately take steps to abide by the order, including informing the voting public that mail-in ballots could be returned in person. When the Secretary notified the district court of his intent to appeal the ruling, he also requested that the district court enter a temporary administrative stay to allow both the district court and the Eighth Circuit to rule on a request for stay pending appeal. The district court granted the motion. Now before us is the Secretary's motion for a stay pending appeal.

II.

In determining whether to issue a stay pending appeal, we consider four factors: (1) whether the party seeking the stay has demonstrated a strong likelihood of success on the merits; (2) whether the party seeking the stay will be irreparably injured without a stay; (3) whether a stay would substantially injure other parties; and (4) the public's interest. Brakebill v. Jaeger, 905 F.3d 553, 557 (8th Cir. 2018) (citing Hilton v. Braunskill, 481 U.S. 770, 776, 107 S.Ct. 2113, 95 L.Ed.2d 724 (1987) ). "The most important factor is likelihood of success on the merits, although a showing of irreparable injury without a stay is also required." Id.

First, the Secretary has shown a strong likelihood of success on the merits.² We evaluate the Secretary's likelihood of success under the so-called Anderson - Burdick standard, which we apply to determine the proper level of scrutiny in considering the constitutionality of a statute implicating the right to vote. See Burdick v. Takushi, 504 U.S. 428, 433, 112 S.Ct. 2059, 119 L.Ed.2d 245 (1992) ("Each provision of a code ... ‘inevitably affects—at least to some degree—the individual's right to vote and his right to associate with others for political ends.’ " (quoting Anderson v. Celebrezze, 460 U.S. 780, 788, 103 S.Ct. 1564, 75 L.Ed.2d 547 (1983) )). Under this standard,

[a] court considering a challenge to a state election law must weigh "the character and magnitude of the asserted injury to the rights protected by the First and Fourteenth Amendments that the plaintiff seeks to vindicate" against "the precise interests put forward by the State as justifications for the burden imposed by its rule," taking into consideration "the extent to which those interests make it necessary to burden the plaintiff's rights."

Id. at 434, 112 S.Ct. 2059 (quoting Anderson, 460 U.S. at 789, 103 S.Ct. 1564 ). Where a statute imposes a severe burden on a plaintiff's rights, it must be "narrowly tailored and advance a compelling state interest." Timmons v. Twin Cities Area New Party, 520 U.S. 351, 358, 117 S.Ct. 1364, 137 L.Ed.2d 589 (1997). "Lesser burdens, however, trigger less exacting review, and a State's ‘important regulatory interests’ will usually be enough to justify ‘reasonable, nondiscriminatory restrictions.’ " Id. (citation omitted).

The challenged legislation imposes changes that are offered in addition to in-person voting, rather than as a replacement for in-person voting. As other courts have stated, "as long as the state allows voting in person, there is no constitutional right to vote by mail." Common Cause Ind. v. Lawson, No. 20-2911, 977 F.3d 663, 664 (7th Cir. Oct. 13, 2020). And the changes impose a de minimis burden on voters if they are concerned that their ballots will not be received by the election board on time: they simply may make arrangements to put completed ballots in the mail earlier. Regarding the Plaintiffs’ claims about the unreliability of the USPS, the Plaintiffs have presented weak evidence. Plaintiffs have presented nothing more than anecdotal evidence of the unreliability of the USPS or delivery delays, along with advice from the USPS that early mailing of ballots to mail-in voters and early return of ballots is the best way to ensure that all ballots are received and counted. The evidence presented by the State shows that in the August 2020 elections, a small percentage of total absentee and mail-in ballots, only 1 percent, was rejected because an absentee or mail-in ballot was received after the deadline. There is also no evidence in the record regarding when rejected mail-in ballots were postmarked, which makes it impossible to ascertain if the late receipt of ballots was due to USPS delays.

Because the alleged burden of returning a ballot by mail is not severe (indeed it imposes a lesser burden than would be required of in-person delivery), the State is not required to demonstrate a compelling state interest. Timmons, 520 U.S. at 358, 117 S.Ct. 1364. And the likelihood that some ballots are likely to be rejected as being received after the deadline does not transform the burden into one that is severe. See New Ga. Project v. Raffensperger, No. 20-13360, 976 F.3d 1278, 1281 (11th Cir. Oct. 2, 2020) ("In the end, as a legal matter, it is just not enough to conclude that if some ballots are likely to be rejected because of a rule, ‘the burden on many voters will be severe.’ " (citation omitted)). Given the foregoing, it is a reasonable and rational exercise of the State's authority to regulate elections to require the return of...