Is This Necessary? An Analysis of the Court's Relaxed Application of Anderson in Peters v. Johns.

Author:Hadlow, Aaron

    In recent years, policing tactics have undergone increased public scrutiny as Black Lives Matter (1) and other social activists have called attention to incidents where police officers have used lethal force. Reports, such as the United States Department of Justice's Investigation of the Ferguson Police Department, (2) have revealed deeply systemic policing practices that enforce poverty among minority groups by means of racially-targeted policing practices and subsequent penalties. Perhaps nowhere in the country are these issues more pressing upon the minds of voters than in the St. Louis, Missouri, community. These issues are what motivated St. Louisan Rachel Johns to seek the Missouri House of Representatives' seat for her North County community. These issues are what motivated her to engage a political system that she had long felt "failed her." Johns, as any who seeks to do the hard work of effecting positive community change, was met with adversity: Her candidacy was challenged because she failed to meet the formal election requirements of Missouri's Constitution. The courts agreed with her challenger, and Johns was told she must wait--wait to run until 2018, wait to pursue her and her supporters' political objectives, and wait for the uncertain tides of political momentum to change, perhaps unfavorably.

    This Note analyzes the Supreme Court of Missouri's application of Anderson v. Celebrezze in one of Missouri's most recent candidacy requirement cases, Peters v. Johns. (3) It argues that the court underappreciated the burden imposed on Johns by its two-year voter registration requirement. (4) Part II discusses the facts and holding of Peters v. Johns. Part III provides the legal background to help understand the court's decision. Part IV discusses the court's reasoning in Peters v. Johns, while Part V argues for a more rigorous application of the Anderson test.


    On February 4, 2015, Rachel Johns, a resident of the 76th District of the Missouri House of Representatives, registered to vote. (5) In 2016, Johns declared her candidacy for the Democratic Party's nominee for the 76th District, which was to be decided during the August 2, 2016, primary. (6) Johns filed the required paperwork with the Missouri Secretary of State's Office. (7) Johns stated under oath that she "will qualify" to hold the office of state representative as required by Missouri's Constitution. (8)

    Joshua Peters, the incumbent, was also running in the Democratic primary for the 76th District. (9) Peters filed suit in the Circuit Court of the City of St. Louis challenging Johns's candidacy. (10) Peters challenged Johns's candidacy pursuant to Missouri Revised Statute section 115.526 because she would not have been a registered voter for two years prior to the November 8, 2016, general election. (11) Peters argued that Johns, therefore, could not meet the two-year durational voter registration requirement found in article III, section 4 of the Missouri Constitution. (12) Article III, section 4 requires a candidate to be "a qualified voter for two years" prior to the date of the general election. (13) Peters sought to have Johns removed from the Democratic primary ballot. (14)

    Johns argued that the durational voter registration requirement was constitutionally invalid because its temporary disqualification of her candidacy was a penalty for engaging in First Amendment protected "expressive speech." (15) Johns stated that she had not registered to vote because to do so "would mean endorsing a system that had continued to fail her community." (16) Further, Johns argued that the durational voter registration requirement unconstitutionally burdened her voting rights and the voting rights of the residents of her legislative district. (17)

    The Circuit Court for the City of St. Louis held that the durational voter registration requirement did not constitutionally violate the First or Fourteenth Amendment. (18) The circuit court ruled that Johns be removed from the primary ballot. (19) Johns appealed directly to the Supreme Court of Missouri pursuant to the court's exclusive jurisdiction over constitutional questions. (20) The Supreme Court of Missouri held that (1) a "qualified voter" under article III, section 4 is a registered voter; (2) Johns failed to preserve at trial a Fourteenth Amendment Equal Protection claim; (21) (3) Johns's failure to register as a voter did not qualify as "expressive speech" under the First Amendment; and (4) article III, section 4 requirements did not violate the voting rights of Johns or the voters in her legislative district. (22)


    The holding in Peters v. Johns requires an understanding of the court's application of the First Amendment to the issues of symbolic speech, voting requirements, candidacy requirements, and associational rights. Part A of this section overviews the history of Missouri's voter registration requirements for candidacy. Part B of this section briefly reviews judicial levels of scrutiny. Part C of this section outlines a few relevant cases on expressive conduct. Part D of this section discusses durational voter registration requirements and the impact of those requirements on (1) candidacy rights and (2) voter rights.

    1. The Meaning of a "Qualified Voter"

      Missouri Constitution article III, section 4 lays out the "qualifications of representatives." (23) Article III, section 4's durational voter registration provision requires representatives to "be twenty-four years of age, and next before the day of his election shall have been a qualified voter for two years." (24) The legislature's use of the words "qualified voter" dates back to Missouri's 1875 Constitution. (25) Under the 1875 Constitution, (26) other candidacy provisions similarly had a durational "qualified voter" requirement. (27) "Qualified voter" was also used to describe those entitled to vote. (28)

      The court first read "qualified voter" to mean "registered voter" in State ex. rel. Woodson v. Brassfield. (29) In that case the court noted that if a law required registration, then a qualified voter was only one that had fulfilled the registration requirements. (30) Notably, under Missouri's 1875 Constitution, only white males twenty-one years of age or older were eligible for registration and thus, qualification. (31) As voting rights expanded beyond the narrow class eligible (32) under the court's early interpretation of "qualified voter," the court continued to reaffirm that "qualified voter" meant "registered voter." (33)

    2. Levels of Scrutiny

      There are generally three levels of scrutiny applied by a court when it reviews a state law or regulation that restricts constitutionally protected activity. (34) Those three levels of scrutiny are (1) rational basis, (2) intermediate, interchangeably called "heightened," and (3) strict scrutiny. The level of scrutiny applied is determined by the constitutional right at issue. If a court regards a right as more important or fundamental, then the court examines the purpose of the state restriction more closely. Review under the rational basis test is the most deferential to state interests underlying a statute or regulation of constitutionally protected activity. A state restriction will be upheld under rational basis review if it is "rationally related to a legitimate state interest." (35) Formulations of the test applied for intermediate scrutiny vary, though generally courts balance the imposition of the restriction on the right at issue against the State's "important or substantial" interest underlying the restriction. (36) Finally, strict scrutiny requires the state restriction on constitutional rights be "narrowly tailored" to achieve a "compelling state interest." (37)

      Under these tiers of review, the court often upholds state restrictions of individual rights when reviewed under rational basis. Similarly, outcomes under intermediate scrutiny review often favor state restrictions. (38) Unlike rational basis and intermediate scrutiny, strict scrutiny often results in courts striking down state restrictions on individual rights. (39)

    3. Symbolic Speech and Expressive Conduct

      The First Amendment protects "expressive conduct" as a species of "symbolic speech." (40) But, a party asserting a free-speech claim must first "demonstrate that the First Amendment even applies." (41) This burden of first demonstration may be met by showing that the conduct in question was expressive. (42) Expressive conduct may trigger First Amendment protections when it is "sufficiently imbued with elements of communication." (43)

      In Clark v. Community for Creative Non-violence, the U.S. Supreme Court did not disturb a lower court's finding of expressive conduct when demonstrators sought to sleep on the National Mall in Washington, D.C., in structures constructed to symbolize the plight of the homeless. (44) The Court upheld a National Park Service regulation, which prohibited overnight camping at the National Mall, on the basis of reasonable time, place, and manner restrictions. (45) In addressing the preliminarily issue whether conduct was expressive, and thereby warranting application of the First Amendment, the Court noted that "it is the obligation of the person desiring to engage in assertedly expressive conduct to demonstrate that the First Amendment even applies." (46) This ruling did not "deviate from the general rule that one seeking relief bears the burden of demonstrating that he is entitled to it." (47) Subsequent First Amendment analysis for expressive conduct is predicated on this initial showing. (48)

      The Supreme Court has given instructions on meeting this burden. (49) One way to meet this burden is to show that conduct is "necessarily expressive." (50) In United States v. O'Brien, the Court reviewed the constitutionality of 50 U.S.C. [section] 462(b), which prohibited the willful or knowing destruction or mutilation of one's...

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