JEFFERSON CITY, Mo. — Getting a ballot notarized is an extra step Missourians must take to vote by mail that other states, like Illinois, do not require. In an effort to get the Missouri ballot notary requirement thrown out, a group that includes the Missouri NAACP and the League of Women Voters sued the state.
The group lost. The Supreme Court of Missouri upheld the ballot notarization law.
“The new absentee and mail-in ballot statutes do not affect the right of voters to go the polls to vote," states the court's opinion. "Because Appellants have specifically stated that they do not challenge the new absentee and mail-in ballot statutes on any other constitutional ground, such as violating their due process or equal protection rights, or that these provisions have a disparate impact on a protected class or otherwise violate recognized constitutional rights, this Court rejects Appellants’ constitutional claims.”
Any registered voter can vote by mail in Missouri this election with the new "mail-in ballot" option. However, all mail-in, and most absentee ballots, need to be notarized.
Some voters do not need to have their ballots notarized though, including people who are confined due to illness or physical disability and their caretakers, and this year, those who have or are in an at-risk category for COVID-19.
The ACLU lawyers on the case are not seeing it as a total loss though, focusing on a concurring opinion from one of the judges, who points out: it's reasonable for any Missouri voter to expect to either get COVID-19 or have to quarantine on Election Day, during the ongoing pandemic. He argued that much like the provision allowing a voter to cast an absentee ballot if they expect to be absent on Election Day, the issue hinges on the word “expect.”
“It does not matter – at the time the voter applies for the absentee ballot – how objectively likely or unlikely this is to happen. And it does not matter whether – on Election Day – it actually happens. All that matters is whether the voter genuinely – but entirely subjectively – “expects” it will happen at the time he or she applies for an absentee ballot,” reads the concurring opinion. “In the face of these conditions, therefore, it would be easy to understand if a voter were to apply for an absentee ballot on the ground that he or she genuinely “expects” to be incapacitated or confined and unable to vote on Election Day due to having (or having been exposed to) COVID-19.”
Attorneys for the ACLU who fought the case say that's enough for a voter to apply for an absentee ballot using "confinement due to illness" as their excuse, where no notary would be required.
KNOW TO VOTE: What does it mean to get your ballot notarized?
“[The] mixed opinions from the Missouri Supreme Court make clear what we have said from the start: Missouri voters get to decide for themselves whether they are eligible to vote absentee without a notary during COVID-19,” the ACLU said in a statement. “It is reasonable for any voter to expect now that she might have to stay away from the polls on Election Day because she will have contracted or been exposed to the virus. That is enough to apply for an absentee ballot under the “confinement-due-to-illness” provision.”
However, the majority opinion says that interpretation might make it too easy to vote without notary in the future, going past what the law intends.
“While Appellants argue their position is limited to the unique situation of the COVID-19 pandemic, the practical effect of Appellants’ position is that any eligible voter who expects to voluntarily confine him or herself on the date of an election to avoid contracting or spreading any illness—from COVID-19 to the flu to the common cold—could cast an absentee ballot without notarizing his or her ballot envelope regardless of whether he or she expects to be sick or ill on the date of the election. All future voters beyond the 2020 election could claim they expect to confine themselves 'due to illness' under Appellants’ suggested interpretation of that phrase. This result is clearly contrary to the plain and ordinary meaning of this absentee provision.”
While this means there is still room for interpretation on whether or not that provision could apply to anyone, League of Women Voters co-president Nancy Miller said the organization has spoken with local election authorities. She said she is confident local election directors will honor an absentee ballot request due to confinement honoring the more flexible interpretation put forth in that concurring opinion. The decision on the notary requirement may not have gone the plaintiffs' way, but this interpretation is why League of Women Voters told 5 On Your side the ruling includes a small win.
The main takeaway from the ruling should be that if you requested any mail ballot that requires a notary to count, that it is still needed.
If you have already requested your absentee ballot with an excuse that does require a notary, you cannot change your excuse now. The ballot mailed to you will require a notary unless you fall within a category of a voter for whom a notary is not necessary—then your ballot envelope will not require one.
And if you have not requested your ballot in the mail yet, you need to hurry. The deadline to request a ballot is Oct. 21 in Missouri, but it is better to act early to account for processing and mail time.
KNOW TO VOTE: Voting dates and deadlines to know
This is one of two rulings over the weekend that caused confusion for some voters and access advocates. While voters can turn in an absentee ballot in person, mail-in ballots must be mailed back.
In a separate case, a federal judge ruled last week that voters should be able to return mail-in ballots by hand, too. The secretary of state appealed that decision and the order's been delayed.
This means as of now, voters must still have to return mail-in ballots by mail.