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Professor Dan Tokaji
Election reform, the Voting Rights Act, the Help America Vote Act, and related topics -- with special attention to the voting rights of people of color, non-English proficient citizens, and people with disabilities

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Equal Vote
Monday, October 16
Missouri Supreme Court Strikes Down Photo ID Law
Breaking news: The Missouri Supreme Court today issued this opinion upholding a lower court decision that struck down that state's voter identification law. The AP has this report.

The per curiam opinion relies on the Missouri Constitution's provisions protecting voting rights. Here's an excerpt from the opinion summary:
(1) The trial court properly held that SB 1014's photo ID requirement violates the equal protection clause of article I, section 2 of the state constitution. It also properly held that the photo ID requirement violates the right to vote as guaranteed by article I, section 25 of the state constitution, which provides more expansive and concrete protection to the right to vote than the federal constitution. In reaching these conclusions, this Court applies strict scrutiny analysis, in which any limitation on a fundamental right must serve compelling state interests and must be narrowly tailored to meet those interests. SB 1014's photo ID requirement fails to pass constitutional scrutiny because it creates a heavy burden on the fundamental right to vote and is not narrowly tailored to meet a compelling state interest.

(2) Many of the between 3 and 4 percent of Missourians who lack the requisite photo ID are eligible registered voters who, under the new law, will not be able to cast a regular ballot (or, after 2008 when the provisional ballot availability expires, any ballot at all) unless they obtain the requisite photo ID. Requiring these Missourians to obtain one of the limited types of photo ID approved by SB 1014 in order to vote is more than a de minimis (very small or trifling) burden on their constitutional right of suffrage.

(3) The United States Supreme Court has held that wealth or payment of money should have no relation to the free exercise of the right to vote. Harper v. Va. Bd. of Elections, 383 U.S. 663, 668 (1966). There can be no lesser requirement under Missouri law. The fact that Missouri has waived the costs normally charged for a non-driver's license does not make the license free because, as the evidence showed, Missourians without certified copies of the documentation needed for the license still must expend sums of money to obtain the license. Specific Missouri voters testified that to acquire the requisite photo ID, at the very least they will have to incur the costs associated with birth certificates, which in Missouri costs $15. The evidence also showed that, if a person requires documentation beyond a birth certificate, the costs are greater.... The trial court correctly concluded that the photo ID provisions of SB 1014 represent a heavy and substantial burden on Missourians' free exercise of their right to vote.

(4) While Missouri has a compelling state interest in preserving the integrity of the election process and preventing voter fraud, the trial court properly found that the evidence presented negates the claim that the photo ID requirement is narrowly tailored to accomplish that purpose. The parties acknowledge that the photo ID requirement can only prevent impersonation of a registered voter and will not affect absentee ballot fraud or registration fraud. There was no evidence of any voter impersonation fraud in Missouri since the general assembly enacted the previous version of section 115.427, which was passed in 2002 in response to the federal Help America Vote Act and allowed voters to present many more and different types of identification in order to vote. While Missouri also has an interest in combating perceptions of voter fraud, where the fundamental rights to vote of Missouri citizens are at stake, more than mere perception is required for their abridgment. The identification requirement does not address any perception of voter fraud with precision, nor is it necessary to solve any existing voter fraud problems. This requirement, therefore, fails to pass constitutional scrutiny and cannot stand.
One justice (Judge Stephen Limbaugh) dissents on the ground that the parts of the law that take effect now are constitutional and that the challenge to those that take effect in later years aren't yet ripe.

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Moritz College of Law The Ohio State University