Weinschenk v. State, SC 88039

Decision Date16 October 2006
Docket NumberNo. SC 88039,SC 88039
Citation203 S.W.3d 201
PartiesKathleen Weinschenk, et al., Respondents, v. State of Missouri, Appellant, Robin Carnahan, Secretary of State, Respondent, Dale Morris and Senator Delbert Scott, Intervenors-Appellants.
CourtMissouri Supreme Court

Mark E. Long, Mark F. (Thor) Hearne, II, James B. Deutsch and Alok Ahuja, Counsel for Appellant.

Barbara Jane Wood, Don M. Downing and Erica L. Airsman, Counsel for Respondent.



After a 2006 statute was enacted requiring registered voters to present certain types of state- or federally-issued photographic identification in order to cast regular ballots, Ms. Kathleen Weinschenk and others sued the state to block enforcement of the law on the grounds that it interfered with the fundamental right to vote as protected by the Missouri and United States constitutions. Ms. Weinschenk and the others claimed that the new law required them and other voters — particularly those who are low-income, disabled or elderly and who do not have driver's licenses — to spend money to obtain the necessary documents such as birth certificates in order to obtain the requisite photo ID. The trial court declared the law unconstitutional.

The State of Missouri and Intervenors Dale Morris and Senator Delbert Scott (collectively "Appellants"),1 appeal the trial court's holding that the portion of Senate Bill 1014 ("SB 1014") requiring presentation of certain forms of photographic identification ("photo ID") to vote is unconstitutional because it violates Missourians' rights to vote and to equal protection of the laws. These rights are at the core of Missouri's constitution and, hence, receive state constitutional protections even more extensive than those provided by the federal constitution. The trial court so held because it found that those portions of SB 1014, which now are found at Section 115.427, 2006 Mo. Laws 728-32,2 ("Photo-ID Requirement") unnecessarily burden the right to vote of Missourians who are properly registered but are nonetheless barred from voting at their designated voting precinct (or permitted to vote only provisionally) because they do not have one of the limited types of identifying documents required by SB 1014 to exercise their right of suffrage.

This Court agrees that SB 1014's Photo-ID Requirement violates Missouri's equal protection clause, Mo. Const. art. I, sec. 2, and Missouri's constitutional guarantee of the right of its qualified, registered citizens to vote. Mo. Const. art. I, sec. 25; art. VIII, sec. 2. While this Court fully agrees with Appellants that there is a compelling state interest in preventing voter fraud, the evidence supports the trial court's conclusion that the Photo-ID Requirement is not narrowly tailored to accomplish that purpose.

Witnesses in the trial court did testify to past instances of fraud in the form of absentee ballot and registration fraud. But, as Appellants acknowledge, the Photo-ID Requirement is intended to prevent only impersonation of a registered voter and will not affect absentee ballot or registration fraud. The evidence below shows, however, that our legislature has already eliminated the opportunity to commit voter impersonation fraud with the enactment of the precautions it adopted in response to the federal Help America Vote Act ("HAVA") in 2002.3 In fact, the only specific instance of possible fraud that has occurred since 2002 of which the witnesses were aware involved an attempt (whether intentional or accidental is not clear) by a person who had voted absentee to then vote in person. This conduct would not be affected by SB 1014 and was discovered and prevented prior to the implementation of the Photo-ID Requirement.

Appellants argue that the Photo-ID Requirement nonetheless should remain in place because it will reassure voters who "perceive" that fraud exists. As there has been no reported case of voter impersonation fraud since the HAVA protections were put in place, however, this justification places too great an encumbrance on the right to vote of Missourians who cannot show the very specific and often costly to obtain photo IDs the statute requires.

The statute does provide an alternative identification procedure that will allow voters who lack one of the specified photo IDs to cast a provisional ballot in certain elections between now and November 2008, but these transitional provisions are not severable from the permanent provisions, so this Court need not decide the question of their constitutionality.

Accordingly, the trial court judgment enjoining enforcement of the Photo-ID Requirement of SB 1014, now section 115.427, is affirmed.


SB 1014's Photo-ID Requirement prohibits otherwise qualified and lawfully registered Missourians from voting if they present only out-of-state picture identification, social security cards, utility bills, school or work IDs, or other documents that served as proper identification under the version of section 115.427 in effect prior to the enactment of SB 1014.4 See sec. 115.427.1, RSMo Supp. 2005. As amended by SB 1014, section 115.427 now requires that Missourians present as identification a document issued by the state or federal governments that contains the person's name as listed in the voter registration records, the person's photograph, and an expiration date showing that the ID is not expired. Sec. 115.427.1.5 In practical effect, the only documents that most Missourians would have that could meet these requirements are a Missouri driver's or non-driver's license or a United States passport.6

The record below reveals that between 3 and 4 percent of Missouri citizens lack the requisite photo ID and would, thus, need to obtain a driver's or non-driver's license or a passport in order to vote. Specifically, the trial court noted that the Secretary of State's analysis in August 2006 estimated that approximately 240,000 registered voters may not have the required photo ID and that the Department of Revenue's estimate of the same was approximately 169, 215 individuals. Each of these forms of ID, however, normally costs money to obtain. This presents a practical problem for Missourians who will be discouraged from attempting to vote because of their concern that they must pay a fee to do so. It also presents a legal problem in that the United States Supreme Court held in Harper v. Virginia State Board of Elections, 383 U.S. 663 (1966), that any tax or fee imposed on the right to vote presents an undue burden on the exercise of that right. As the high court stated, wealth or payment of money should have no relation to the free exercise of the right to vote. Harper, 383 U.S. at 668 ("To introduce wealth or payment of a fee as a measure of a voter's qualifications is to introduce a capricious or irrelevant factor").

The legislature provided that Missourians who lack a proper unexpired photo ID may obtain a Missouri non-driver's license free of charge. Sec. 115.427.7. To aid them in doing so, SB 1014 provides that "mobile processing units," at which these free non-driver's licenses can be obtained, will be made available upon request to "any disabled or elderly person otherwise competent to vote . . . [who is] physically unable to otherwise obtain" a non-driver's license. Id.

SB 1014 also provides a mechanism for waiving the Photo-ID Requirement for certain classes of persons who are otherwise registered and meet all of Missouri's constitutional qualifications to vote but, under SB 1014, nonetheless would be denied the right to vote for lack of a proper ID. Those persons can cast a "provisional ballot" if they sign an affidavit swearing that the reason they have no acceptable photo ID is that they are unable to obtain such identification because of a disability or handicap, because of a sincerely held religious belief, or because they were born on or before 1941. Sec. 115.427.4. Lack of funds or time to undertake the sometimes laborious process of obtaining a proper photo ID in situations in which a birth certificate is not easily available or in which a woman has changed her name since birth are not grounds for casting a provisional ballot under this provision.7

In addition, the provisional ballot will not be counted unless the signature on the affidavit matches the signature on file with the election authority. Id. An election official testified below that signatures may change over time or due to disability or age. Further, the trial court found that at least one of the individual plaintiffs in this case "is unable to make a consistent signature or mark, [and] therefore, her signature will not match the signature on her voter registration record." Nonetheless, no exception to the signature match requirement is made for Missourians who are unable, because of disability or age, to make a signature or whose signature has changed due to disability or the passage of time since they made their original signature when they initially registered to vote. Thus, such persons' provisional ballots will not be counted under the statute.8

Plaintiffs allege that the particular Photo-ID Requirement set out in SB 1014 (unlike the anti-fraud ID provisions required under HAVA and in effect in Missouri from 2002 until SB 1014 became effective) does not pass constitutional scrutiny on a multitude of grounds.9 The trial court agreed that Plaintiffs established the unconstitutionality of SB 1014 on three grounds relating to the burdens the law imposes on Missourians' free exercise of their right to vote as set out in the Missouri Constitution.10

More specifically, the trial court agreed with Plaintiffs that, while on its face the Photo-ID Requirement appears to permit Missourians without an acceptable photo ID to obtain one without cost, in reality it does not do so because the Photo-ID Requirement of SB 1014 must be read together with the requirements of the Federal REAL ID Act of 2005, Pub. L....

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