Absentee voting by mail is coming to Missouri in 2020 – if a lawsuit filed by the American Civil Liberties Union, ACLU of Missouri, and Missouri Voter Protection Coalition prevails.
They demand this from Cole County Circuit Court because the COVID-19 pandemic “poses an existential threat to Missourian’s ability to safely participate in their electoral democracy,” as they argue in a 34-page class-action petition filed on Friday, April 17. The Missouri State Conference of the National Association for the Advancement of Colored People is the lead named plaintiff in the plaintiff class. Missouri Secretary of State John R. (Jay) Ashcroft is the lead defendant.
The context, of course, is the public health concern about voting in person during a pandemic. As they argue, “Thousands of eligible voters cannot be physically lining up with others at their traditional polling places, touch the same equipment, have face-to-face interactions with poll workers, and more without contravening the advice of public health experts and threatening public safety, elections workers, and the health of individual voters and their families.”
They note that Missouri law already provides six reasons a voter may cite to vote absentee, one of which “readily extends to cover all Missouri voters who wish to confine themselves at home and vote absentee to avoid contracting or spreading the virus that causes COVID-19.” That reason is: “incapacity or confinement due to illness.”
As they point out in the petition, Governor Mike Parson – who is on the ballot this year – has said that trying to avoid infection by the novel coronavirus “does not constitute a valid excuse” to vote absentee. However, Ashcroft, the state’s top election authority, has said that local election officials must interpret the statute for themselves. This lack of clarity is unacceptable, they argue, because providing an explanation deemed invalid could be judged as making a false statement on an absentee ballot, which is a Class One felony.
The director of the Jackson County Election Board, they note, has stated that “fear of contracting or spreading the COVID-19 virus is not a legal reason to vote absentee in Missouri.” For that reason, Jackson County Prosecutor Jean Peters Baker is among the named defendants, since her office would consider the prosecution of any election felonies. In a twist, she also chairs the Missouri Democratic Party, which traditionally favors making voting easier, just as Parson and Ashcroft’s Republican Party typically tries to restrict access to voting.
“As an African American, there are members of our community who remember facing death just for exercising their constitutional right to vote,” said Nimrod Chapel, president of the Missouri State Conference of the NAACP. “COVID-19 offers that same risk with Secretary Ashcroft’s dereliction of duty to provide safe elections, which is within his powers in Missouri state law. If Secretary Ashcroft fails to act, death will be the new poll tax in the state of Missouri.”
Without clarification on this matter from the court, the plaintiffs’ counsel argues, “Missouri voters face the unconscionable choice between protecting their health and the health of their families and neighbors and forfeiting their right to vote or voting absentee at the risk of their ballots being discarded and potential criminal prosecution.”
The matter is particularly pressing for lead plaintiff the Missouri State Conference of the NAACP, they argue, because COVID-19 is having a disproportionate impact on African Americans. On the day the suit was filed, 502 of the 788 COVID-19 cases in the City of St. Louis were African Americans – that’s 64% of the cases, while only 45.9% of the city’s population is African-American, according to the U.S. Census. On April 17, 36 of the 70 COVID-19 deaths in St. Louis County were of black people, or 51%, while according to the Census the county’s population is only 24.9% black.
The class also includes a black voter from Kansas City named Kamisha D. Webb who has several of the preexisting conditions that help to explain why COVID-19 has been so devastating to black people.
Crucially, the plaintiffs argue, “There is no vaccine, cure, or herd immunity” for COVID-19 and none is expected to be available before Missouri voters elect, among other officials, a president, governor, attorney general and, indeed, a secretary of state – the lead defendant, Ashcroft, is himself on the ballot this year.
They cite no less an authority than the now-famous Dr. Anthony Fauci, head of the National Institute of Allergy and Infectious Diseases, who recently said that he “can’t guarantee” in-person voting will be safe even in November.
They ask the court to declare that fear of COVID-19 infection is a valid reason to vote absentee due to “incapacity or confinement due to illness.” They also ask the court to issue an injunction prohibiting Ashcroft and other election officials “from limiting the availability of absentee voting without a notary seal” – in other words, making it possible to vote absentee without a notary.
“Missourians should not have to expose themselves to a deadly virus in order to vote,” said Tony Rothert of the ACLU of Missouri. “Despite some feigned confusion by elected officials, Missouri law allows absentee voting by mail in situations like this. The secretary of state knows this and could clear this up, but he insists a court should do it. We are taking his advice and going to court.”
Read the complaint at https://tinyurl.com/ACLU-COVID.