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Missouri Restrictions on Registration & Absentee Voting Outreach Efforts May Violate State Free Speech Protection

Election Law Society · March 15, 2023 ·

By Gray Whitsett

This summer, Missouri state legislators approved wide-ranging legislation that imposes new requirements on registering to vote and casting a ballot, alters presidential primaries, and expands absentee voting ahead of Election Day. The new law, popularly referred to as HB 1878, was passed in the wake of the 2020 election to address unsubstantiated claims of election fraud. As with many overhauls to state election codes, HB 1878 has been the subject of significant criticism, namely for provisions that heighten voter ID requirements and limit civic engagement organizations from encouraging and assisting with voter registration. Each of these components is being challenged in state court.

The complaint against restrictions on voter registration activity presents an interesting challenge under the Missouri Constitution.

In League of Women Voters of Missouri v. Missouri, the plaintiffs, which include the Missouri NAACP, have challenged four HB 1878 requirements affecting nonpartisan advocacy groups that engage in voter registration activity. The four provisions:

  1. Prohibit individuals from being paid or compensated “for soliciting voter registration applications”;
  2. Require individuals, regardless of compensation, to register with the state as “voter registration solicitors” if they solicit more than 10 registration applications;
  3. Require such registration solicitors to be registered Missouri voters; and
  4. Prohibit individuals and organizations from soliciting voters to complete absentee ballot applications.

The plaintiffs allege these provisions violate protections of free speech, free association, and due process of law guaranteed under the state constitution. Primarily, they claim that by targeting dissemination of information about and advocacy for voter registration, the state regulated speech based on its content, and because this constitutes political speech, the state infringed on “core protected expression.” This infringement is exacerbated by the unclear definitions of “compensation” and “solicitation” used in the statute, which they allege fail to provide fair notice to the public of what conduct would violate the law.

They further claim the law’s ambiguity creates severe administrative burdens and jeopardizes their “organizational mission[s].” Both organizations conduct significant voter registration activity throughout the state by employing a small number of salaried administrative staff and recruiting a large volunteer force. These volunteers are typically reimbursed for gas mileage and supplies, treated to food and snacks, and given organizationally branded materials like T-shirts, pencils, and clipboards to keep. In their suit, the League of Women Voters and the NAACP purport that the statute’s language of “compensation” may encompass these reimbursements and gifts, exposing all their volunteers to liability or depriving the organizations of basic volunteer recruitment incentives.

Perhaps more consequentially, the vagueness of “solicitation” leaves the organizations’ voter registration and absentee voting outreach programs in uncertainty. The plaintiffs contend it is unclear what constitutes a solicitation to register to vote or to vote absentee. While some interactions involve directly asking voters to register or vote absentee, the majority of outreach involves conventional voter registration drives where the public approaches a table or booth, asks a few basic questions, and completes a registration application. During the course of this interaction, volunteers often end up informing voters that they may be eligible to vote absentee based on what the voter says to them. The plaintiffs fear that solicitation, broadly defined, could ensnare all of these exchanges, which would require all volunteers to have to register with the state as “voter registration solicitors” and further expose volunteers to criminal liability.

The plaintiffs argue the requirement that solicitors be registered Missouri voters creates additional administrative burdens. Generally, it would require voter outreach groups to conduct a screening process for volunteers and prevent former felons, noncitizens, and anyone under 18 from being able to participate. It also would impede volunteers who may travel across state lines to support registration efforts, which may impact border cities like St. Louis and Kansas City. The plaintiffs claim these limits go to the heart of their organizations’ missions of involving the whole community in their advocacy and create logistical challenges that seem tailored to hampering their organizations’ functioning.

Regardless of the impacts of HB 1878, the plaintiffs’ case is striking because they are bringing claims under the state constitution’s voting rights guarantee, which the Missouri Supreme Court has previously said is “more expansive and concrete” than federal protections. Broadly speaking, the litigants’ hope that the combined rights of free speech and voting contained in the state constitution will render the law unconstitutional. While this approach will be necessarily limited to Missouri, it may reflect the broader call for voting rights groups to adopt a state-based approach to securing protections under the various voting provisions in state constitutions.

As the federal judiciary continues its relative disinterest in strengthening voting rights nationally, spectators are likely to see increased litigation at the state level. League of Women Voters may become one of the first of many such state battles, and a victory for the plaintiffs in a state dominated by election-skeptics may demonstrate how this strategy can bear fruit.

In Maine, Fight Over Foreign Financing Has Only Just Begun

Election Law Society · December 17, 2021 ·

By: Connor Skelly

A fight over an electrical transmission line in the Great North Woods has ignited a firestorm around the ability of foreign government owned corporations to spend money on electioneering in the state of Maine, with implications that could stretch all the way back to the Supreme Court’s Citizens United decision.

LD 194 was passed by the Maine Legislature in the wake of Hydro-Quebec, a company that is solely owned by Quebec’s provincial government, spending $10 million dollars on campaigning against a referendum that would have halted the constructed of a 145-mile transmission line that would bring the company’s electricity into Maine. While entities owned by foreign governments are already prohibited by both federal and Maine law from contributing money to candidates, a loophole still exists that allows them to contribute money in Maine’s popular referendums. LD 194 was meant to close this loophole. The bill prohibited companies with 10% or more ownership by foreign governments from contributing money in any Maine election, including referendums.

[Read more…] about In Maine, Fight Over Foreign Financing Has Only Just Begun

Ninth Circuit Brings Out-of-State Donors In From The Cold

Election Law Society · November 22, 2021 ·

By: Ellie Halfacre

When Wes Keller ran for re-election to the Alaska House of Representatives in 2015, his brother-in-law David Thompson tried to support his candidacy and donate $500 to the campaign. However, due to §15.13.072(e)(3) of Alaska’s elections statute, he was unable to do so. Under this law, Keller’s campaign had already received the maximum dollar amount it could accept from nonresidents—$3,000—according to the state’s restrictions on campaign contributions. Thompson, a Wisconsin resident, sued, challenging Alaska’s campaign finance laws under the First and Fourteenth Amendments.

The law that barred Thompson’s donation, §15.13.072, specified several fundraising limitations on out-of-state donors: candidates could not accept more than $20,000 a year from nonresident donors for gubernatorial campaigns, $5,000 a year for state senate campaigns, and $3,000 a year for campaigns for state representative, or municipal or other office.

[Read more…] about Ninth Circuit Brings Out-of-State Donors In From The Cold

What’s in a Name?: Pennsylvania Requires Signatures For Mail-In Ballots To Be Counted And Decides Not To Throw Out Ballots For Signature Verification Issues

vebrankovic · November 16, 2020 ·

By Jessica Washington

Pennsylvania requires a signature for all mail-in ballots. The voter’s signature must match the voter’s permanent registration card.  If the signature matches, the voter’s ballot is counted. If the signature does not match, the voter’s ballot is discarded.

Prior to this year, signatures for mail-in ballots have been an issue. They are poised to become an even greater problem as a result of the COVID-19 pandemic taking the world by storm. As a result of the pandemic, many people have begun to work from home, had their groceries delivered to their door, and have limited their need to go out in accordance with health guidelines. As a result of the COVID-19 pandemic, more people than ever are expected to vote through mail-in ballots. This increases the chance that more ballots than ever will be discounted as a result of rejected signatures.

[Read more…] about What’s in a Name?: Pennsylvania Requires Signatures For Mail-In Ballots To Be Counted And Decides Not To Throw Out Ballots For Signature Verification Issues

Money Talks, but Donors’ Voices Don’t Matter

Election Law Society · July 7, 2020 ·

By: Helen L. Brewer

The U.S. Supreme Court has long held that spending money on political campaigns is a First Amendment right. Donations to, and expenditures by, campaigns—according to the Court—are political speech. As such, the First Amendment protects this money from government regulation. Laws can only place limits on campaign money if there is a risk the money will cause quid pro quo corruption or the appearance of such corruption. Therefore, despite the First Amendment’s protection of campaign funds, individual donations to candidate campaigns can be limited by the government. This prevents an individual from donating mass amounts of money to a campaign in exchange for special treatment when the candidate is elected to office.
[Read more…] about Money Talks, but Donors’ Voices Don’t Matter

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