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Missouri voter ID law before state Supreme Court: What to know


JEFFERSON CITY, Mo. — Missouri’s controversial voter ID law is finally before the state’s highest court.

The Missouri Supreme Court heard oral arguments in the case Thursday. At issue is a 2016 law requiring photo identification or a sworn affidavit when voting. 

“We are excited to have that final determination,” Secretary of State Jay Ashcroft told The Missouri Times earlier this week regarding the law being brought before the Supreme Court. “It was really confusing for voters in 2018, when … before the election, the court changed the rules. We had to change signage, retrain poll workers, and try to get the word out to voters.” 

The case pits the Attorney General’s Office against a prominent voting rights attorney who has represented a variety of high profile national Democrats, including former presidential nominee Hillary Clinton and 2020 contender Kamala Harris. 

Read on for a look at what the law said, what is being challenged, and how it came about in the first place. 

What does the law say? 

The law dictated voters have three options when voting in person: present a current Missouri driver’s license, nondriver’s license, passport, or military or veteran identification; present an alternative form of non-photo ID along with a sworn affidavit; cast a provisional ballot. 

Due to a court ruling last year, the state is not able to enforce the sworn affidavit portion of the law. 

What’s being challenged?

It’s that second option — the sworn affidavit — that has caused legal consternation. 

Marc Elias, who represents Priorities USA, the Democratic-aligned group advocating for voting rights, argued the affidavit is “misleading and confusing” and “compels certain voters to attest, under penalty of perjury, to an outright misstatement of law” in a brief filed with the court. 

Before the court Thursday, Elias pointed to the word “possess” and questioned the meaning. 

“That sentence says, ‘I do not possess a form of personal identification approved for voting.’ Well, what [does] possess mean in that sentence? Does that mean I have an ID, but I forgot it at home — at which point, I possess the ID, and I can’t sign the affidavit — or does it mean I don’t have an ID at all,” Elias said. 

“But then we turn to the next sentence: ‘As a person who does not possess a form of identification approved for voting, I acknowledge I am able to eligible to receive free of charge an ID,’” he continued. “Well, that’s not true if, in fact, they have a driver’s license, and they left it at home.”

He added the state has interpreted “possess” to mean two different things in either sentence. In the first, it means the individual simply did not bring the identification to the polls; in the second it means the person does not have identification at all. 

He argued voters are left to “intuit” what the sentences mean. 

But John Sauer with the Missouri Attorney General’s Office argued the provision hasn’t actually hindered voters. 

“No individual voter who [was] at the polls said, ‘I can’t sign this. It’s too confusing. I find it contradictory,’” Sauer argued. 

He said if the court decides the language needs clarification, it should be up to the secretary of state — not the court — to fix the wording. 

Elias, a venerable attorney who worked for Clinton and has tackled a variety of election and voting cases, said “there’s no authority” for allowing Ashcroft to amend the ruling. 

Elias is the chair of Perkins Coie’s Political Law Group.

Where are we now?

Priorities USA sued in June 2018, and Cole County Judge Richard Callahan enjoined the portions of the law, particularly prohibiting Missourians from being required to sign the “contradictory and misleading” affidavit. He also prohibited the use of other materials that suggested photo identification is a prerequisite for voting. 

The state appealed, and the Missouri Supreme Court is left to decide multiple factors, including whether the entire use of an affidavit when voting under the second option should be enjoined and if the affidavit summarizes the voter ID statute correctly and doesn’t burden the right to vote. 

The court also said it needs to determine whether the secretary of state has the appropriate authority to rewrite the affidavit portion. 

How did the law come about? 

In 2016, voters approved a constitutional amendment allowing legislators to pass voter requirements at the polls. 

The same year — before Missourians hit the polls — lawmakers passed the voter ID law. It was vetoed by Gov. Jay Nixon but the General Assembly overrode the governor’s objections. The measure was contingent upon Missourians approving the constitutional amendment and went into effect in 2017. 

Thursday’s oral arguments can be heard here

Alisha Shurr contributed to this report.