Missouri Supreme Court Kills a Catch-22 Voter ID Law

The remarkable opinion mounts a defense of trans and nonbinary voters’ rights.

Four people fill out ballots at voting booths in a gymnasium.
Voters cast ballots at a polling place on Nov. 6, 2018, in Kirkwood, Missouri. Scott Olson/Getty Images

The Missouri Supreme Court invalidated a key portion of the state’s voter ID law on Tuesday, crushing Republican legislators’ latest effort to suppress the franchise through draconian regulations. Justice Mary Rhodes Russell’s opinion for the court shot down a bizarre law forcing voters who lack a government photo ID to sign a contradictory affidavit that could subject them to perjury charges. Her decision made a point to defend the voting rights of disadvantaged groups—including, notably, trans and nonbinary people—whom other judges often overlook in assessing attacks on suffrage. Russell expands the court’s recognition of who suffers when politicians restrict the vote and how disenfranchisement undermines their equal participation in democracy. Her 5–2 decision, which rests on the state constitution, cannot be appealed to the U.S. Supreme Court, meaning it is the last word on the law.

Missouri’s conservative lawmakers have spent years trying to make voters present identification at the polls. In 2006, the legislature passed a voter ID statute, but the Missouri Supreme Court promptly struck it down. The court’s decision rested on two provisions in the state constitution—one that bars the government from interfering with “the free exercise of the rights of suffrage,” and another that guarantees to everyone “equal rights and opportunity under the law.” Unlike the U.S. Constitution, the court reasoned, Missouri’s constitution explicitly protects the “fundamental right” to cast an equal vote in each election. And the voter ID law, which discriminated against “the poor, elderly and disabled,” violated this right with no justification.

Ten years later, the legislature sought to override the court by placing a constitutional amendment on the ballot allowing voter ID legislation. There is no evidence of mass voter fraud in Missouri (or any other state) in recent history, yet Missourians passed the amendment and allowed the legislature to implement voter ID. The new law directed citizens to present a government photo ID to vote. But it also allowed them to cast a ballot by presenting some other identification and signing an affidavit, an exception known as “option two.”

That exception formed the basis of Tuesday’s ruling, because it is so bizarre, so garbled and contradictory, that it seems designed to scare voters out of casting a ballot. Here’s how option two works: If you don’t have a Missouri license or a federal ID, you can provide some other documentation, like a utility bill or bank statement, that contains your name and address. You can also provide a student ID from a school within Missouri. But if you use one of these lesser IDs, you also have to sign an affidavit. That affidavit states that you “do not possess a form of personal identification approved for voting.” It also compels you to “acknowledge” that you are “required to present a form of personal identification, as prescribed by law, in order to vote.”

Think about that for a moment. By signing the form, you are swearing under oath that you do not have the necessary ID to vote while acknowledging that you must have the necessary ID to vote. How can that be? As Russell explained, the affidavit is “misleading” because it suggests that a nongovernmental ID—a bank statement, for instance—is not “approved for voting.” It’s also “inaccurate,” because these nongovernmental IDs are “approved for voting” under the law. And, worst of all, the affidavit is downright “contradictory”: It requires you to present some identification and then swear that you do not have any identification.

The voters who brought this lawsuit feared that if they signed the affidavit, they would face criminal prosecution. Election officials did not understand the form either, leading them to turn away qualified voters in 2017, before a lower court blocked the law. If individuals trained in executing election law cannot decipher it, how could a layperson possibly decode this Kafkaesque word salad—under penalty of perjury, no less? Concluding that the affidavit unconstitutionally infringed on citizens’ right to vote, Russell invalidated it. Missouri voters will now be able to cast a ballot with a wide array of identification records, free from any obligation to sign a troubling, incoherent affidavit.

When the court struck down Missouri’s former voter ID law in 2006, it focused on the burdens placed on certain disadvantaged individuals—low-income people who can’t afford a license, as well as elderly or disabled people who struggle to navigate the state’s licensing bureaucracy. Russell’s decision recognizes a broader category of people harmed by limitations on access to the ballot, most notably gender minorities. She highlights the struggles of one plaintiff, a transgender Missourian named Patrick, who wanted to vote with an official state ID to avoid the affidavit. But, Russell explained:

Patrick testified that they do not have appropriate documentation to obtain a birth certificate or nondriver’s license that reflects their correct gender. The record reflects that to obtain photo identification, Patrick would be required to obtain a court order or affidavit from a health care practitioner indicating they underwent gender transformation surgery.

The two dissenting justices argued that the court should simply invalidate option two entirely, forcing every voter to present a government photo ID to cast a ballot. But this “nonsensical” solution, Russell wrote, would create an unconstitutional system in which people like Patrick would lose their right to vote. Missouri’s discriminatory gender marker laws bar many transgender and nonbinary people from obtaining an accurate state photo ID. The government, Russell noted, cannot place such an obstacle in the path of qualified voters.

It is refreshing to see a judge condemn the hoops that many transgender people must jump through to obtain a valid voter ID. A majority of states make it difficult for trans residents to acquire documents that accurately reflect their gender. In at least 18 states, including Missouri, individuals must undergo medical transition—which some trans people do not need—then provide proof of treatment to the government. Other states require a court order, and a handful refuse to change legal gender at all.

Moreover, only 14 states plus the District of Columbia allow residents to use nonbinary gender markers on their licenses. Missouri does not have this option, so people like Patrick can never obtain a state photo ID that accurately reflects their gender. And without that ID, election officials can turn them away.

This problem is well documented in the 34 states that require photo ID, yet it is frequently disregarded by the courts. In 2018, the Williams Institute estimated that in just eight of these states, 78,000 transgender voters faced disenfranchisement. Low-income individuals were more likely to experience this problem, in part because so many states (including Missouri) force them to undergo (potentially unnecessary) surgery and then get a court order, an expensive and time-consuming process. Advocacy groups have created guides to walk Americans through “voting while trans,” yet for so many people, the barriers to the ballot box remain insurmountable. Russell’s opinion should ensure that, in Missouri, no person will be turned away from the polls because of their gender identity.

As the federal judiciary, under the influence of Donald Trump’s appointees, grows increasingly hostile to voting rights, the fight for the franchise will move to state courts. We’ve already seen state judges in North Carolina and Pennsylvania take up the mantle under their own state constitutions. These piecemeal victories are no substitute for a U.S. Supreme Court committed to voting equality. But SCOTUS has brushed off the burdens of voter ID as minimal, ignoring the struggles of people like Patrick. It’s up to state supreme courts like Missouri’s to fill the void and guard against senseless voter suppression.

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