Hindsight 20/20: Missouri's Use of Statutory Interpretation as a Key Insight for Future Litigation: Missouri State Conference of Nat'l Ass'n for the Advancement of Colored People v. State.

AuthorStout, Mackenzie L.

    In Missouri State Conference of Nat 'l Ass'n for the Advancement of Colored People v. State (hereinafter "NAACP v. State"), the Supreme Court of Missouri interpreted a Missouri statute that expanded the right to vote absentee in response to the COVID-19 pandemic. (1) The new provision allowed all registered Missouri voters to vote absentee during the 2020 elections but required most absentee voters to have their ballots notarized. (2) Voters who were "confined due to illness" or qualified as part of an "at-risk" category, however, were not required to have their ballots notarized. (3) Appellants challenged the bill, claiming that voluntarily confining oneself as a precautionary measure and in accordance with social distancing guidelines was a form of "confinement due to illness," which would permit valid absentee voting without requiring the certification of a notary. (4) Appellants also argued that requiring notarization for individuals that do not fall into the enumerated categories infringed on their fundamental right to vote under the Missouri Constitution. (5) The Supreme Court of Missouri employed various methods of statutory interpretation to determine when individuals are "confined due to illness" and how enacted safety and social distancing measures affect the Constitutional right to vote. (6) The decision in NAACP v. State provides insight into the Supreme Court of Missouri's interpretation of legislative action in response to emergency situations. (7)

    This Note analyzes the Supreme Court of Missouri's approach to statutory interpretation and provides insight into the value the Court places on different canons of interpretation. Part II describes the facts and holding of NAACP v. State. Part III analyzes various states' voting statutes and legislative responses to the COVID-19 Pandemic. Additionally, Part III details the canons of interpretation the Supreme Court of Missouri has previously used in its decisions. Part IV explains the decision in NAACP v. State. Finally, Part V comments on the newfound clarity this decision provides and explains the court's preferences regarding statutory interpretation revealed in this holding - a finding that will be valuable for future litigation.


    Missouri voting laws have long recognized the importance of absentee voting for individuals who cannot - or should not - be present at the polls on Election Day. (8) However, the law historically limited the ability to vote absentee to categories of individuals enumerated in Mo. Rev. Stat. [section] 115.277. (9) Relevant here, [section] 115.227.1(2) permits a registered Missouri voter to vote by absentee ballot if such voter "expects to be prevented from going to the polls to vote on Election Day due to: incapacity or confinement due to illness or physical disability, including a person who is primarily responsible for the physical care of a person who is incapacitated or confined due to illness or disability." (10)

    In March 2020, a novel virus, COVID-19, swept the United States. (11) The state of Missouri had high rates of infection, which increased during the spring of 2020. (12) As a result, Missouri voters became concerned about their ability to vote in the highly anticipated and strongly contested presidential election in November 2020. (13) In response to this growing concern, the Missouri Senate passed Senate Bill 631, which expanded eligibility for absentee voting without the requirement of a notary certification. (14) This bill, [section] 115.277.1(7), permitted absentee voting without a notary's signature "[f]or an election that occurs during the year 2020," when "the voter has contracted or is an at-risk category for contracting or transmitting severe acute respiratory syndrome coronavirus." (15) Section 115.277 further defined the "at-risk" categories of individuals to include voters who:

    (1) Are sixty-five years of age or older; (2) Live in a long-term care facility licensed under chapter 198; (3) Have chronic lung disease or moderate to severe asthma; (4) Have serious heart conditions; (5) Are immunocompromised; (6) Have diabetes; (7) Have chronic kidney disease and are undergoing dialysis; or (8) Have liver disease. (16) In addition to expanding eligibility for absentee voting without a notary's acknowledgment under [section] 115.277.1(7), Senate Bill 631 also created a new section, [section] 115.302.1, which allowed any registered Missouri elector to vote absentee for any remaining 2020 election if a notary or other official authorized their ballot. (17)

    Despite the expansion of absentee voting during the 2020 elections, Appellants in NAACP v. State argued the notary or public authorization requirement created a public health risk during the COVID-19 pandemic because it required close contact between prospective voters and authorizing agents. (18) Doctors and professors of epidemiology filed an amicus brief which explained the infectiousness of COVID-19, the risks the virus posed to all individuals - especially those in a high-risk category - and the fear that that in-person voting on Election Day could cause an increase in the spread of the virus. (19)

    The Supreme Court of Missouri heard the case pursuant to Article V [section] 3 of the Missouri Constitution. (20) The NAACP, the League of Women Voters of Missouri, Meredith Langlitz, and Javier A. Del Vilar (collectively "Appellants") appealed the circuit court's denial of declaratory and injunctive relief. (21) Appellants filed their original claim in April 2020. (22) The State of Missouri moved to dismiss for failure to state a claim upon which relief could be granted. (23) The circuit court granted the State's motion, (24) and Appellants timely appealed. (25) While the appeal was pending, Senate Bill 631 passed the Missouri Legislature. (26) In light of the new bill, the Supreme Court of Missouri remanded the case to the circuit court. (27) The parties exchanged discovery, and the case was tried on the merits to consider the effect of the new legislation. (28) The circuit court entered judgment on two counts. (29) First, the court found, under Count I, as a matter of statutory interpretation, voters who voluntarily choose to confine themselves on Election Day due to fear of contracting COVID-19 are not "confine[d] due to illness or disability" within the plain and ordinary meaning of Mo. Rev. Stat. [section] 115.277(2). (30) Second, under Count II, the circuit court held that Appellants' argument that the notary requirement presented unconstitutional health risks was unsupported by law and evidence. (31)

    Appellants raised challenges to the circuit court's ruling on Counts I and II. (32) First, regarding Count I, Appellants argued [section] 115.277(2) "permits registered voters who expect to confine themselves on Election Day due to COVID-19 to vote absentee in Missouri without a notary seal." (33) Appellants claimed that confinement due to illness during the COVID-19 pandemic includes voters who voluntarily stay home to avoid spreading or contracting the virus regardless of whether the voter expects to be ill or actually have contracted the virus on Election Day. (34) Therefore, Appellants argued that since these voters are "confined due to illness" within the meaning of [section] 115.277.1(2), they should be permitted to vote absentee without the requirement of a notary acknowledgement. (35) The State responded by arguing that voters who voluntarily choose to confine themselves, but do not actually expect to be ill on Election Day, are not "confined" within the meaning of [section] 115.277.1(2); therefore, voters who voluntarily confine themselves would require a notary acknowledgment for their ballot. (36) To support its conclusion, the State explained the plain and ordinary meaning of the words "illness" and "confinement" as stated in [section] 115.277.1(2) would not include voluntary confinement. (37) The State argued a person would not say they are "confined" due to illness if they were not actually ill; instead, the individual would say they are "confined due to the fear of illness." (38) Further, the State pointed out this additional phrase is omitted from the statute, evidencing the legislature's intent to require an actual illness. (39) Similarly, the State argued Webster's dictionary definition of "confinement" required "restraint." (40) This "restraint" element means that the illness must cause the confinement, not an individual's willing decision. (41)

    The State also argued the "expectation" requirement did not apply to voluntary confinement under a separate statute, [section] 115.287.2, which provides for situations where an individual "becomes confined due to illness or injury, an election authority will deliver a ballot, witness the signing, and return the absentee ballot." (42) Finally, the State argued that permitting voluntary confinement to constitute "confinement due to illness" would render [section] 115.277.1(7), enacted under Senate Bill 631, superfluous. (43) The State argued [section] 115.277.1(7) addressed situations where "at-risk" individuals could vote absentee, without a notary, in order to protect themselves from significant health risks. (44) Therefore, if [section] 115.277.1(2) already included voluntary confinement, this new provision would have been redundant. (45)

    Regarding Count II, Appellants argued the circuit court erred when it held that requiring voters to obtain a notary acknowledgement during the COVID-19 pandemic was not a constitutional violation. (46) The circuit court initially questioned whether any level of scrutiny applied to the alleged constitutional violation and then determined the notary requirement was "subject, at most, to rational-basis scrutiny." (47) Appellants argued the enforcement of statutes that prevent all voters from casting an absentee ballot without acknowledgment by a notary during the COVID-19 pandemic created a severe burden on...

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