The Missouri Supreme Court heard arguments Thursday on whether a portion of the state’s voter identification law is unconstitutional.
The law allows three methods to cast a vote. People can show a photo ID; another form of identification, like a utility bill, but are then required to sign an affidavit; or they can cast a provisional ballot, which will only count once they return to show ID or election workers match their signatures with a past ballot.
The signed affidavit option is what Priorities USA, a Democratic-aligned voting rights group, argues is unconstitutional. Last year, Senior Cole County Circuit Judge Richard Callahan agreed, saying the language in the affidavit was misleading and confusing.
During oral arguments, Marc Elias, representing Priorities USA, said the affidavit discourages people from voting because they are subject to perjury. He pointed out what he considers flaws within the affidavit, line by line.
“That sentence says, ‘I do not possess a form of personal identification approved for voting.’ Well, what (does) possess mean in that sentence?” he asked. “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 the Secretary of State’s office answered that “possess” means voters do not currently have the ID on them.
“But then we turn to the next sentence,” he said. “‘As a person who does not possess a form of identification approved for voting, I acknowledge I am able to receive free of charge ID.’ Well, that’s not true, if in fact, they have a driver’s license and they left it at home.”
The state argued that the affidavit is constitutional because it “accurately summarizes the statute” and has not kept anyone from voting.
“There is no individual voter who, while they were at the polls, read the affidavit and said, ‘I can’t sign this, I find it too confusing. I find it too contradictory,’” argued John Sauer of the Missouri Attorney General’s Office. “Tens of thousands of voters had voted using Option 2 over multiple elections by that time.”
However, during the trial in the lower court, two voters testified that they would not have signed the affidavit again because the language was confusing. When Sauer was pressed on this, he said those voters did still cast a ballot.
Sauer also argued that the Circuit Court decision, which ruled that the state could no longer require voters to sign an affidavit, went too far. The court should have allowed the secretary of state to redraft an affidavit it deemed acceptable, he said.
“I think it was extremely surprising that the trial court did not, at the very least, sever out the portion of the affidavit that it found to be misleading and confusing,” Sauer said.
Sauer suggested that, if the Supreme Court finds a violation within the affidavit, it could allow Secretary of State Jay Ashcroft to rewrite the affidavit instead of declaring it unconstitutional.
If the Supreme Court finds it unconstitutional, the state Legislature could rewrite portions of the voter ID law or the affidavit itself.
When asked why he preferred sending it back to the Secretary of State instead, which could result in more litigation, Sauer said: “Rulemaking authority is granted to the Secretary of State. And secondly, as a practical matter, I point out that either way there will probably be another lawsuit.”