Peters v. Johns

• Decision Date: 20 May 2016
• Docket Number: No. SC 95678,SC 95678
• Citation: 489 S.W.3d 262
• Parties: Joshua Peters, Respondent, The Missouri Attorney General, Intervenor/Respondent, v. Rachel Johns, Appellant.
• Court: Missouri Supreme Court

489 S.W.3d 262

Joshua Peters, Respondent, The Missouri Attorney General, Intervenor/Respondent,

v.Rachel Johns, Appellant.

No. SC 95678

Supreme Court of Missouri, en banc .

Opinion issued May 20, 2016

Johns was represented by David E. Roland of the Freedom Center of Missouri in Mexico, Missouri, (314) 604–6621.

Peters was represented by Matthew B. Vianello of Jacobson Press & Fields PC in Clayton, (314) 899–9789.

The attorney general was represented by Solicitor General James R. Layton of the attorney general's office in Jefferson City, (573) 751–3321.

The American Civil Liberties Union of Missouri Foundation, which filed a brief as a friend of the Court, was represented by Anthony E. Rothert and Jessica M. Steffan of the foundation in St. Louis, (314) 652-3114, and Gillian R. Wilcox of the foundation in Kansas City, (816) 470–9933.

Mary R. Russell, Judge

Article III, section 4 of the Missouri Constitution provides that a state representative must have been a “qualified voter” for two years prior to the day of the representative's election, which necessarily means that the representative must have been registered to vote during that time. In this appeal, Rachel Johns, a candidate for the office of state representative, challenges the “qualified voter” requirement as violating the First and Fourteenth Amendments of the federal constitution by penalizing her for engaging in protected speech, denying her access to the ballot, burdening the voting rights of herself and other voters of District 76, and unjustifiably denying her the equal protection of the law.

This Court finds that the “qualified voter” requirement is constitutional. Johns' failure to register to vote does not constitute “symbolic speech” subject to First Amendment protection because it is not conduct that is inherently expressive. Nor does the requirement unjustifiably burden Johns' right to run for office or the voting rights of Johns and the other voters in her district because it imposes only a de minimis burden on those rights by temporarily delaying Johns' ability to seek office and the voters' corresponding opportunity to vote for her. The “qualified voter” requirement is a state constitutional provision adopted by voters that serves the legitimate interests of requiring candidates to take certain minimal steps to demonstrate their seriousness about engaging in Missouri's political, social, and civic processes. The judgment is affirmed.

I. Factual & Procedural Background

The facts in this case are undisputed. Rachel Johns seeks the Democratic party's nomination for Missouri State Representative in the District 76.¹ She filed a declaration of candidacy with the Missouri Secretary of State, in which she stated under oath, that she “will qualify” to hold the office of state representative pursuant to the Missouri Constitution's requirements for that office.

Respondent Joshua Peters,² another candidate for the Democratic party's nomination for Missouri State Representative in the District 76, filed a petition pursuant to section 115.526, RSMo 2000, with the Circuit Court of the City of St. Louis seeking to disqualify Johns as a candidate and have her name removed from any official election ballot. Peters argued that Johns cannot meet the two-year durational voter registration requirement of article III, section 4 of the Missouri Constitution because she did not register to vote until February 4, 2015, which is less than two years before the general election date of November 8, 2016.

Although Johns agreed that she does not meet the two-year voter registration requirement, she argued that such requirement is constitutionally invalid as applied to her. She contended the requirement, by temporarily disqualifying her from running for office, penalized her for engaging in an act of political expression protected by the First Amendment to the United States Constitution as incorporated by the Fourteenth Amendment. Johns also argued that the requirement unconstitutionally burdened the voting rights of herself and the voters of the District 76. The parties filed cross-motions for judgment on the pleadings. The circuit court determined that the voter registration requirement did not violate the First or Fourteenth Amendments. Johns appeals.³

II. Standard of Review

The constitutional validity of a statute is a question of law subject to de novo review. Geier v. Mo. Ethics Comm'n, 474 S.W.3d 560, 564 (Mo. banc 2015). Similarly, the validity of a provision of the Missouri Constitution is also a question of law subject to de novo review. See Brown v. Carnahan, 370 S.W.3d 637, 647 (Mo. banc 2012) (constitutional provisions are subject to the same interpretive rules as other laws).

III. Analysis

A. A “Qualified Voter” in Article III, Section 4 is a Registered Voter

The issue on appeal is whether the durational voter registration requirement of article III, section 4 violates the constitutional rights of Johns and the voters of District 76.⁴ Before turning to the constitutional issues, the Court must first address the meaning of the term “qualified voter” in the challenged provision. Article III, section 4 of the Missouri Constitution, titled “Qualifications of representatives,” states:

Each representative shall be twenty-four years of age, and next before the day of his election shall have been a qualified voter for two years and a resident of the county or district which he is chosen to represent for one year, if such county or district shall have been so long established, and if not, then of the county or district from which the same shall have been taken.

(emphasis added). The ACLU argues that the term “qualified voter” should not be interpreted to mean a registered voter but, rather, any individual who possesses the constitutional qualifications to vote, even if unregistered.

To determine the meaning of the term “qualified voter” and its relationship to voter registration, a brief history of the Missouri Constitution is helpful. Under the 1875 constitution, the term “qualified voter” was used in two ways. First, as with the provision at issue here, “qualified voter” was used to describe the qualifications to hold legislative and judicial offices.⁵ The second use of “qualified voter” was to describe who elected those and other officials.⁶ Under the 1875 constitution, those entitled to vote were, generally, “male citizen[s] of the United States” over the age of 21 years who had, prior to the election in which they wished to vote, resided in Missouri for one year and the relevant county, city, or town for 60 days. Mo. Const . art. VIII, sec. 2 (1875). Voter registration was not listed as a requirement because, at that time, registration was required for only the most populous areas. Mo. Const. art. VIII, sec. 5 (1875).

Accordingly, under the 1875 constitution, the term “qualified voter” would have included all those who could appear at the polls and vote on election day, and whether such persons were registered depended on where they lived. There can be no doubt, however, that where registration was in place, the fact of being registered was considered a requirement to be a qualified voter. This much is clear from this Court's decision in State ex rel. Woodson v. Brassfield:

While the registration law was in force, they only were qualified voters whose names were placed on the registration books. This was the final, qualifying act, and no matter if a citizen possessed every other qualification, if not registered, he was not a qualified voter. It was not the right to register which constituted one a qualified voter, but the fact of being registered as such, was also essential. A qualified voter is one who by law, at an election, is entitled to vote. If, by the law, a person was not entitled to vote, whether in consequence of a disability which deprived him of the right to register, or of his neglect to register with a perfect right to do so, he was equally disqualified.

67 Mo. 331, 336–37 (Mo. 1878).

That a qualified voter in an election is one who is registered when and where registration is required is further apparent under the current constitution, adopted in 1945. Article VIII, section 2 now states that all United States citizens over the age of 18 years who are residents of Missouri and of the political subdivision in which they seek to vote “are entitled to vote at all elections ... if the election is one for which registration is required if they are registered within the time prescribed by law....” Mo. Const. art. VIII, sec. 2 (emphasis added). Because there is no question that, today, registration is required everywhere in the state to vote in a general election, the term “qualified voter” is synonymous with “registered voter” when used in the constitution to describe the electorate. And there is no indication that the drafters of the constitution intended the term “qualified voter,” when used to describe the electorate, to mean something different from when it is used as a qualification to hold office. As a result, where the constitution uses the term “qualified voter” as a requirement to hold political office, that term means registered voter. This has long been the settled interpretation in Missouri law,⁷ and that interpretation is now reaffirmed.

B. Johns' Equal Protection Argument Was Not Preserved

Recognizing that she does not meet the two-year voter registration requirement imposed by article III, section 4, Johns asserts that the voter registration requirement is invalid under the United States Constitution.⁸ As an initial matter, this Court must discern precisely what constitutional challenges Johns raises and which are properly preserved for review. In her motion for judgment on the pleadings before the circuit court, Johns stated that she was raising “two distinct bases for her constitutional challenge.” First, she asserted that the requirement unconstitutionally penalized her, by disqualifying her candidacy, for engaging in protected speech—electing not...