Joshua Peters, The Missouri Attorney General, Intervenor/Respondent v. Rachel M. Johns

SUPREME COURT OF MISSOURI
en banc
JOSHUA PETERS, )
)
Respondent, )
)
THE MISSOURI ATTORNEY GENERAL, )
)
Intervenor/Respondent, )
)
v. ) No. SC95678
)
RACHEL JOHNS, )
)
Appellant. )

APPEAL FROM THE CIRCUIT COURT OF THE CITY OF ST. LOUIS
The Honorable Julian L. Bush, Judge

Opinion issued May 20, 2016

Article III, section 4 of the Missouri Constitution provides that a state

representative must have been a “qualified voter” for two years prior to the day of the

representative’s election, which necessarily means that the representative must have been

registered to vote during that time. In this appeal, Rachel Johns, a candidate for the

office of state representative, challenges the “qualified voter” requirement as violating the

First and Fourteenth Amendments of the federal constitution by penalizing her for

engaging in protected speech, denying her access to the ballot, burdening the voting
rights of herself and other voters of District 76, and unjustifiably denying her the equal

protection of the law.

This Court finds that the “qualified voter” requirement is constitutional. Johns’

failure to register to vote does not constitute “symbolic speech” subject to First

Amendment protection because it is not conduct that is inherently expressive. Nor does

the requirement unjustifiably burden Johns’ right to run for office or the voting rights of

Johns and the other voters in her district because it imposes only a de minimis burden on

those rights by temporarily delaying Johns’ ability to seek office and the voters’

corresponding opportunity to vote for her. The “qualified voter” requirement is a state

constitutional provision adopted by voters that serves the legitimate interests of requiring

candidates to take certain minimal steps to demonstrate their seriousness about engaging

in Missouri’s political, social, and civic processes. The judgment is affirmed.

I. Factual & Procedural Background

The facts in this case are undisputed. Rachel Johns seeks the Democratic party’s

nomination for Missouri State Representative in the District 76. 1 She filed a declaration

of candidacy with the Missouri Secretary of State, in which she stated under oath, that

she “will qualify” to hold the office of state representative pursuant to the Missouri

Constitution’s requirements for that office.

1
The primary election is August 2, 2016. The person nominated will appear on the ballot for the
general election on November 8, 2016.
2
 Respondent Joshua Peters, 2 another candidate for the Democratic party’s

nomination for Missouri State Representative in the District 76, filed a petition pursuant

to section 115.526, RSMo 2000, with the Circuit Court of the City of St. Louis seeking to

disqualify Johns as a candidate and have her name removed from any official election

ballot. Peters argued that Johns cannot meet the two-year durational voter registration

requirement of article III, section 4 of the Missouri Constitution because she did not

register to vote until February 4, 2015, which is less than two years before the general

election date of November 8, 2016.

Although Johns agreed that she does not meet the two-year voter registration

requirement, she argued that such requirement is constitutionally invalid as applied to

her. She contended the requirement, by temporarily disqualifying her from running for

office, penalized her for engaging in an act of political expression protected by the First

Amendment to the United States Constitution as incorporated by the Fourteenth

Amendment. Johns also argued that the requirement unconstitutionally burdened the

voting rights of herself and the voters of the District 76. The parties filed cross-motions

for judgment on the pleadings. The circuit court determined that the voter registration

requirement did not violate the First or Fourteenth Amendments. Johns appeals. 3

2
Peters is currently serving as the state representative from this district and is seeking reelection.
Additionally, this Court granted the State’s motion to intervene in this appeal. The American
Civil Liberties Union (ACLU) also appears, as amicus, on behalf of Johns.
3
This Court has exclusive jurisdiction of the appeal. MO. CONST. art. V, sec. 3.
3
 II. Standard of Review

The constitutional validity of a statute is a question of law subject to de novo

review. Geier v. Mo. Ethics Comm’n, 474 S.W.3d 560, 564 (Mo. banc 2015). Similarly,

the validity of a provision of the Missouri Constitution is also a question of law subject to

de novo review. See Brown v. Carnahan, 370 S.W.3d 637, 647 (Mo. banc 2012)

(constitutional provisions are subject to the same interpretive rules as other laws).

III. Analysis

A. A “Qualified Voter” in Article III, Section 4 is a Registered Voter

The issue on appeal is whether the durational voter registration requirement of

article III, section 4 violates the constitutional rights of Johns and the voters of District

76. 4 Before turning to the constitutional issues, the Court must first address the meaning

of the term “qualified voter” in the challenged provision. Article III, section 4 of the

Missouri Constitution, titled “Qualifications of representatives,” states:

Each representative shall be twenty-four years of age, and next before the
day of his election shall have been a qualified voter for two years and a
resident of the county or district which he is chosen to represent for one
year, if such county or district shall have been so long established, and if
not, then of the county or district from which the same shall have been
taken.

4
Johns also challenges section 21.080, RSMo 2000 (“qualifications of representatives”), which
tracks the language of article III, section 4 except that the statute requires a representative to
have been a “voter” for two years rather than a “qualified voter.” When the constitution sets out
the requirements for a particular office, the constitutional provision controls over any additional
or different qualifications set out by the legislature. Labor’s Educ. & Political Club-Indep. v.
Danforth, 561 S.W.2d 339, 343 (Mo. banc 1977). This Court holds that section 21.080 restates
the requirements of article III, section 4 despite its failure to use the term “qualified.” As such,
this opinion will reference only article III, section 4.
4
(emphasis added). The ACLU argues that the term “qualified voter” should not be

interpreted to mean a registered voter but, rather, any individual who possesses the

constitutional qualifications to vote, even if unregistered.

To determine the meaning of the term “qualified voter” and its relationship to

voter registration, a brief history of the Missouri Constitution is helpful. Under the 1875

constitution, the term “qualified voter” was used in two ways. First, as with the provision

at issue here, “qualified voter” was used to describe the qualifications to hold legislative

and judicial offices. 5 The second use of “qualified voter” was to describe who elected

those and other officials. 6 Under the 1875 constitution, those entitled to vote were,

generally, “male citizen[s] of the United States” over the age of 21 years who had, prior

to the election in which they wished to vote, resided in Missouri for one year and the

relevant county, city, or town for 60 days. MO. CONST. art. VIII, sec. 2 (1875). Voter

registration was not listed as a requirement because, at that time, registration was

required for only the most populous areas. MO. CONST. art. VIII, sec. 5 (1875).

Accordingly, under the 1875 constitution, the term “qualified voter” would have

included all those who could appear at the polls and vote on election day, and whether

such persons were registered depended on where they lived. There can be no doubt,

5
See e.g. MO. CONST. art. IV, sec. 4 (1875) (state representatives to be qualified voters for two
years prior to election); art. IV, sec. 6 (state senators to be qualified voters for three years prior to
election); art. VI, sec. 26 (circuit judges to be qualified voters for three years prior to election).
6
See e.g. MO. CONST. art. IV, sec. 2 (1875) (state representatives chosen every second year by
qualified voters); art. IV, sec. 5 (state senators chosen by qualified voters of their districts); art.
VI, sec. 5 (supreme court judges elected by qualified voters of the state); art. VI, sec. 25 (circuit
court judges elected by qualified voters of each circuit).
5
however, that where registration was in place, the fact of being registered was considered

a requirement to be a qualified voter. This much is clear from this Court’s decision in

State ex rel. Woodson v. Brassfield:

While the registration law was in force, they only were qualified voters
whose names were placed on the registration books. This was the final,
qualifying act, and no matter if a citizen possessed every other
qualification, if not registered, he was not a qualified voter. It was not the
right to register which constituted one a qualified voter, but the fact of
being registered as such, was also essential. A qualified voter is one who
by law, at an election, is entitled to vote. If, by the law, a person was not
entitled to vote, whether in consequence of a disability which deprived him
of the right to register, or of his neglect to register with a perfect right to do
so, he was equally disqualified.

67 Mo. 331, 336-37 (Mo. 1878).

That a qualified voter in an election is one who is registered when and where

registration is required is further apparent under the current constitution, adopted in 1945.

Article VIII, section 2 now states that all United States citizens over the age of 18 years

who are residents of Missouri and of the political subdivision in which they seek to vote

“are entitled to vote at all elections . . . if the election is one for which registration is

required if they are registered within the time prescribed by law . . . .” MO. CONST. art.

VIII, sec. 2 (emphasis added). Because there is no question that, today, registration is

required everywhere in the state to vote in a general election, the term “qualified voter” is

synonymous with “registered voter” when used in the constitution to describe the

electorate. And there is no indication that the drafters of the constitution intended the

term “qualified voter,” when used to describe the electorate, to mean something different

6
from when it is used as a qualification to hold office. As a result, where the constitution

uses the term “qualified voter” as a requirement to hold political office, that term means

registered voter. This has long been the settled interpretation in Missouri law, 7 and that

interpretation is now reaffirmed.

B. Johns’ Equal Protection Argument Was Not Preserved

Recognizing that she does not meet the two-year voter registration requirement

imposed by article III, section 4, Johns asserts that the voter registration requirement is

invalid under the United States Constitution. 8 As an initial matter, this Court must

discern precisely what constitutional challenges Johns raises and which are properly

preserved for review. In her motion for judgment on the pleadings before the circuit

court, Johns stated that she was raising “two distinct bases for her constitutional

challenge.” First, she asserted that the requirement unconstitutionally penalized her, by

disqualifying her candidacy, for engaging in protected speech—electing not to register to

vote as an act of political protest. She also argued the requirement unconstitutionally

burdened both her own voting rights and the voting rights of the voters of District 76.

These challenges were ruled on by the circuit court and are preserved for review.

7
See Woodson, 67 Mo. at 336-37 (Mo. 1878); State ex rel. Burke v. Campbell, 542 S.W.2d 355,
357-58 (Mo. App. 1976); State ex rel. Mason v. Cnty. Legislature, 75 S.W.3d 884, 887-88 (Mo.
App. 2002).
8
This appeal is hampered by the fact that Johns’ point relied on is clearly multifarious,
containing more than one basis for reversal. Multifarious points relied on are noncompliant with
Rule 84.04(d) and preserve nothing for review. Nevertheless, this Court gratuitously exercises
its discretion to review the defective point and resolve the issues on the merits.
7
 On appeal, Johns now additionally argues that the voter registration requirement

violates the Equal Protection Clause of the Fourteenth Amendment to the United States

Constitution by creating an unjustified classification between long-term registered voters

(those registered to vote for at least the two years preceding the next general election) and

recently registered voters (those registered to vote for less than two years preceding the

next general election).

To properly raise a constitutional challenge, a party must: (1) raise the

constitutional question at the first opportunity; (2) state with specificity the constitutional

provision on which the challenge rests; (3) set forth facts showing the violation; and

(4) preserve the question throughout the proceedings for appellate review. Mayes v. Saint

Luke’s Hosp. of Kansas City, 430 S.W.3d 260, 266 (Mo. banc 2014). This rule is

intended to prevent surprise to the opposing party and to accord the circuit court an

opportunity to fairly identify and rule on the issue. Id.

Johns’ pleadings undoubtedly did not state with specificity an equal protection

challenge. Although she clearly stated “two distinct bases” for her challenge, an equal

protection violation based on a classification between similarly situated voters was not

one of them. Regardless, she asserts that her general citation of the Fourteenth

Amendment was sufficient to raise her equal protection claim, as the Equal Protection

Clause is embedded within that amendment. Citing the Fourteenth Amendment

generally, however, does not meet the requisite specificity for preservation. The

Fourteenth Amendment has several provisions, including the Due Process Clause. In

8
light of Johns’ First Amendment claims, it is evident from her pleadings that her general

citation to the Fourteenth Amendment was only as a means of applying the First

Amendment to the State of Missouri, through the Due Process Clause. See Gibson v.

Brewer, 952 S.W.2d 239, 246 (Mo. banc 1997) (“the First Amendment applies to the

states by incorporation into the Fourteenth Amendment”).

Johns is correct that her pleadings below cited ballot access cases that employed

equal protection analysis. In particular, she relied on Labor’s Educ. & Political Club-

Indep. v. Danforth for the proposition that the Equal Protection Clause requires the

application of strict scrutiny to a provision denying “the right to run for public office

based on the particular office sought.” 561 S.W.2d 339, 348 (Mo. banc 1977). However,

she did not state that she suffered an equal protection violation. Without specifically

citing such a violation, it is simply untenable to argue that the circuit court was fairly

presented the opportunity to decide this issue. Indeed, the circuit court’s judgment ruled

on every other argument in her pleadings but did not mention equal protection.

The Court is sensitive to the accelerated timetable on which these election cases

are decided. Yet the rules of preservation are clear. Because Johns failed to raise an

equal protection challenge with any specificity at the earliest opportunity, it is waived.

Mayes, 430 S.W.3d at 266.

C. Johns’ Failure to Register to Vote Does Not Invoke First Amendment Protection

Johns contends that the two-year durational voter registration requirement violates

her rights under the First Amendment to the United States Constitution because it

9
imposes a penalty on her – disqualifying her from running for office – for engaging in

speech. The First Amendment, made applicable to the states by the Fourteenth

Amendment, provides that Congress “shall make no law . . . abridging the freedom of

speech.” U.S. CONST. amend. I. Laws that burden political speech are subject to strict

scrutiny, which requires the government to prove that the restriction furthers a

compelling interest and is narrowly tailored to achieve that interest. Arizona Free Enter.

Club’s Freedom Club PAC v. Bennett, 564 U.S. 721, 734 (2011). Johns, as the party

asserting a free speech claim, must first demonstrate – beyond a “plausible contention” –

that the First Amendment applies. Clark v. Cmty. For Creative Non-Violence, 468 U.S.

288, 293 n.5 (1984).

The “speech” that Johns argues is burdened, or penalized, by the voter registration

requirement is her failure to register to vote. Of course, she does not assert that

intentionally failing to register to vote is literally “speech” as one might commonly

understand that term. Rather, her claim falls under the “symbolic speech” jurisprudence,

in which the Supreme Court has recognized that some conduct may be sufficiently

expressive so as to bring it within the First Amendment’s protection. Rumsfeld v. Forum

for Academic & Inst. Rights, Inc., 547 U.S. 47, 65 (2006). To that end, Johns argues that

her failure to register to vote was an act of political expression. She asserts that she

intentionally did not register because to do so “would mean endorsing a system that had

continued to fail her community.”

10
 In arguing that her conduct of failing to register to vote was sufficiently expressive

to merit First Amendment protection, Johns relies on Buckley v. Am. Constitutional Law

Found., Inc., 525 U.S. 182 (1999). In Buckley, the Supreme Court struck down, under

the First Amendment, a provision of a Colorado law that required the circulators of

initiative petitions to be registered voters. Id. at 197. The State attempted to justify the

law by asserting an interest in policing lawbreakers among petition circulators. Id. at

196. In other words, Colorado’s justification was that a voter registration requirement

would ensure that circulators of initiative petitions would be “amenable to the Secretary

of State’s subpoena power.” Id. The State admitted the law burdened political speech

because it reduced the number of individuals who could circulate initiative petitions. Id.

at 195. It argued, however, that the burden was minimal because registering to vote was

“exceptionally easy.” Id.

The Supreme Court found that the State’s “ease of registration” argument missed

the point because some of the plaintiffs in the case testified that they intentionally did not

register to vote as an act of political protest. Id. at 195-96. Johns seizes onto this aspect

of Buckley to argue that failure to register to vote is protected by the First Amendment

when done for the purpose of political protest. Her reliance is misplaced and

mischaracterizes the holding of Buckley. The Supreme Court in Buckley did not hold, nor

even discuss, whether the plaintiffs’ claimed failure to register out of protest constituted

expressive conduct. That was not the issue in Buckley. The speech burdened by the voter

registration requirement in Buckley was not the ability to engage in a political protest by

11
not registering to vote; rather, it was the circulation of initiative petitions. In that regard,

the Supreme Court found that the circulation of initiative petitions was “core political

speech” for which First Amendment protection was “at its zenith.” Id. at 186-87.

Because the speech at issue was at the core of the First Amendment’s protection, and

because the State’s interest in policing lawbreakers could be adequately met by other

provisions of the Colorado law, the Supreme Court struck down the voter registration

requirement. Id. at 197.

Buckley does not aid Johns because the Supreme Court engaged in no analysis of

whether the intentional failure to register to vote constituted “symbolic speech.” This

Court must now address that question. While some conduct may be sufficiently

expressive to be protected under the First Amendment, the Supreme Court has rejected

the view that a “limitless variety of conduct can be labeled ‘speech’ whenever the person

engaging in the conduct intends thereby to express an idea.” U.S. v. O’Brien, 391 U.S.

367, 376 (1968). Rather, First Amendment protection extends only to conduct that is

“inherently expressive.” Rumsfeld, 547 U.S. at 66. “Inherently expressive” conduct is

that which possesses sufficient communicative elements to bring the First Amendment

into play. Texas v. Johnson, 491 U.S. 397, 404 (1989). This Court must ask whether “an

intent to convey a particularized message was present, and whether the likelihood was

great that the message would be understood by those who viewed it.” Id.

Johns’ failure to register to vote does not qualify as symbolic speech. On this

record, the only evidence that her failure to register was motivated by a desire to protest

12
the political system is her own statements to that effect. While this Court does not doubt

the sincerity of Johns’ motivations both in abstaining from political involvement and now

seeking an active role in government, the record is devoid of any communicative

elements accompanying her conduct to activate First Amendment protections. The law

of symbolic speech clearly teaches that there must be more than mere conduct. See, e.g.,

Rumsfeld, 547 U.S. at 66 (law schools’ exclusion of military recruiters was only

expressive when accompanied by explanatory speech). The failure to register to vote is

actually the absence of conduct. Johns does not assert that anyone viewed the voter

registration records and observed her absence therefrom. Further, she does not allege that

she told anyone that she intentionally did not register, much less that she did so as an act

of protest. Without more, there is simply no basis under the First Amendment to hold

that Johns’ failure to register as an act of protest was any different from anyone else’s

failure to register simply out of neglect or indifference. 9 Because Johns’ failure to

register to vote does not invoke First Amendment protection, her challenge to article III,

section 4 on this basis fails.

D. Article III, Section 4 Does Not Violate Johns’ Candidacy or Voting Rights

Johns’ second challenge to article III, section 4’s two-year durational voter

registration requirement encompasses a number of overlapping constitutional rights

9
The case was submitted to the circuit court on stipulated facts. As a result, Johns argues that
Peters stipulated to her assertion in her pleadings that the decision not to register to vote was an
“expressive act of protest.” Despite this stipulation, it is still a question of law for the circuit
court as to whether her conduct merited First Amendment protection.
13
derived from the First and Fourteenth Amendments. When considering a challenge to a

ballot access statute, the Supreme Court has set forth the applicable analysis:

Constitutional challenges to specific provisions of a State's election laws
therefore cannot be resolved by any “litmus-paper test” that will separate
valid from invalid restrictions. Instead, a court must . . . first consider the
character and magnitude of the asserted injury to the rights protected by the
First and Fourteenth Amendments that the plaintiff seeks to vindicate. It
then must identify and evaluate the precise interests put forward by the
State as justifications for the burden imposed by its rule. In passing
judgment, the Court must not only determine the legitimacy and strength of
each of those interests; it also must consider the extent to which those
interests make it necessary to burden the plaintiff's rights. Only after
weighing all these factors is the reviewing court in a position to decide
whether the challenged provision is unconstitutional.

Anderson v. Celebrezze, 460 U.S. 780, 789 (1983). Accordingly, this Court must weigh

the character and magnitude of the asserted injury against the interests put forth by the

State to justify the burden imposed by the law. 10

1. The Constitutional Rights at Issue

In beginning the analysis, it must be first determined what constitutional rights are

implicated. Johns’ claim is two-fold. She argues that article III, section 4 burdens her

own access to the ballot as a candidate as well as the voting rights of the voters in her

district. The rights of a candidate and the rights of voters are distinct, and the difference

is significant. A candidate’s right to access the ballot (i.e., run for office) is not a

10
Although, as stated above, this opinion is based directly on the First and Fourteenth
Amendments and does not engage in a separate Equal Protection Clause analysis, this decision
necessarily relies, as did the Anderson Court, on the analysis of a number of cases applying the
“fundamental rights” strand of equal protection law. See Anderson, 460 U.S. at 786 n.7.
14
fundamental right. 11 The right to vote, however, is fundamental. Beil v. City of Akron,

660 F.2d 166, 169 (6th Cir. 1981). It is crucial to determine, however, what voting rights

are actually implicated by a candidacy restriction.

A durational voter registration requirement as a candidacy restriction does not

limit a voter’s ability to cast a vote. Regulations that limit the right to vote properly fall

within the body of law addressing durational voter requirements under the United States

Constitution’s “right to travel.” 12 These cases employ a different analysis than that which

is required to address article III, section 4, which is a candidacy regulation because it acts

to limit the number of candidates who may appear on a ballot. 13 Notwithstanding this

key distinction, the Supreme Court has held that “the rights of voters and the rights of

candidates do not lend themselves to neat separation; laws that affect candidates always

have at least some theoretical, correlative effect on voters.” Bullock v. Carter, 405 U.S.

134, 143 (1972). Accordingly, candidacy restrictions do affect, to some degree, the First

Amendment associational rights of voters, sometimes referred to as the voters’ right to

“cast their votes effectively.” Williams v. Rhodes, 393 U.S. 23, 30 (1968). See also

Burdick v. Takushi, 504 U.S. 428, 433 (1992) (Election laws, whether they govern the

11
Both this Court and the United States Supreme Court have held that the right to seek office is
not fundamental, and Johns does not disagree. See Coyne v. Edwards, 395 S.W.3d 509, 517
(Mo. banc 2013) (citing Clements v. Fashing, 457 U.S. 957, 964-65 (1982)).
12
See, e.g., Dunn v. Blumstein, 405 U.S. 330, 360 (1972) (Tennessee durational voter
requirement violated the Equal Protection Clause because it burdened, without a compelling
justification, the voting rights of bona fide residents who had recently moved to the state).
13
See Thournir v. Meyer, 909 F.2d 408, 412 (10th Cir. 1990) (“election laws impacting upon the
travel freedoms which have been invalidated by Dunn are not analogous to the statutes imposing
burdens on candidacy”).
15
qualifications of voters, the eligibility of candidates, or the voting process itself,

inevitably affect “the individual's right to vote and his right to associate with others for

political ends”). 14

2. Level of Scrutiny

Having determined the candidate and voter rights at issue, the next step is to

ascertain the level of constitutional protection to which such rights are entitled. The

critical inquiry here is choosing the correct level of scrutiny to apply—strict scrutiny or

rational basis review. Under strict scrutiny, an election regulation will be upheld “only if

it is narrowly tailored to serve a compelling state interest.” Arizona Libertarian Party v.

Reagan, 798 F.3d 723, 729-30 (9th Cir. 2015). By contrast, under rational basis review,

when an election law imposes “only reasonable, nondiscriminatory restrictions upon the

First and Fourteenth Amendment rights of voters, the State’s important regulatory

interests are generally sufficient to justify the restrictions.” Burdick, 504 U.S. at 434.

Under this lesser standard, the Court evaluates only “whether the requirement is justified

by a legitimate interest and is a reasonable way of accomplishing this goal.” Schulz v.

Williams, 44 F.3d 48, 57 (2d Cir. 1994).

The Eighth Circuit has recently noted that determining which level of scrutiny to

apply is no simple task.

14
Despite the fact that the voters of District 76 are not parties to this case, Johns has standing to
assert their rights because, although she is a putative candidate, she also is herself a voter of
District 76. See McLain v. Meier, 851 F.2d 1045, 1048 (8th Cir. 1988) (because he was a voter,
candidate had a sufficient personal stake in the outcome of a challenge to state’s ballot access
laws).
16
 In considering a challenge to a ballot access statute, we are reminded ballot
access statutes are not susceptible of easy analysis, nor is the appropriate
standard of review always easy to discern. Although several cases address
ballot access issues, no opinion from either the United States Supreme
Court or the Eighth Circuit has clearly defined the appropriate standard for
reviewing these constitutional challenges. Instead, each provides for a
case-by-case assessment of the burdens and interests affected by a disputed
statute . . . .

Libertarian Party of North Dakota v. Jaeger, 659 F.3d 687, 693 (8th Cir. 2011). It is

tempting to assume the application of strict scrutiny due to the implication of voting

rights, regarded as “among our most precious freedoms.” Williams, 393 U.S. at 30. The

Supreme Court has been clear, however, that “to subject every voting regulation to strict

scrutiny . . . would tie the hands of States seeking to assure that elections are operated

equitably and efficiently.” Burdick, 504 U.S. at 433. “Accordingly, the mere fact that a

State’s system creates barriers tending to limit the field of candidates from which voters

might choose does not of itself compel close scrutiny.” Id.

Rather, it is the severity of the burden on the asserted constitutional rights that

produces the level of scrutiny, and not the nature of the burdened right itself, as is often

the case in traditional fundamental rights analysis. Id. at 434. If the burden is severe,

strict scrutiny applies. Arizona Libertarian Party, 798 F.3d at 729-30. If the burden is de

minimis, rational basis review applies. Id. With this in mind, the Court now addresses

the severity of the burdens placed on Johns’ candidacy and on the rights of the voters of

District 76 and weighs those burdens against the State’s interests.

17
 3. Johns’ Access to the Ballot as a Candidate

The burden imposed on Johns’ candidacy is not severe. Johns is now registered to

vote, and absent some change in her status, 15 she will be eligible to run for office in the

next general election in 2018. This durational voter registration requirement results in a

temporary burden as it delays, but does not prevent, her candidacy. It is well-settled that

such a delay is a slight burden. See Clements, 457 U.S. at 967 (requirement that a justice

of the peace complete his four-year term before being eligible to run for election to the

legislature did not violate the First Amendment because a waiting period “is hardly a

significant barrier to candidacy”); Stiles v. Blunt, 912 F.2d 260, 265-66 (8th Cir. 1990)

(requirement in article III, section 4 of Missouri Constitution that state representatives be

24 years old did not violate equal protection rights of underage putative candidate

because the candidate was “not forever precluded from running”).

Article III, section 4 is also nondiscriminatory. In two related strands of ballot

access cases (albeit decided under the Equal Protection Clause), the Supreme Court’s

analysis has often focused on an election law’s discriminatory impact. 16 The first strand

of cases involves election laws, typically candidate filing fee schemes, that impose

burdens unique to candidates and voters of lesser economic status. Clements, 457 U.S. at

15
While Missouri does not provide for an individual to unregister to vote, Johns could lose her
right to vote if she were adjudged incapacitated, incarcerated, on probation or parole after
commission of a felony, or convicted of a crime connected with “the right of suffrage.” Section
115.133.2, RSMo Supp. 2013.
16
See Turner v. Fouche, 396 U.S. 346, 363 (1970) (there is a “federal constitutional right to be
considered for public service without the burden of invidiously discriminatory
disqualifications”).
18
964. The second strand involves laws that impose burdens on small political parties or

independent candidates, typically requiring these parties or candidates to demonstrate a

certain level of support among the electorate before obtaining a place on the ballot. Id.

Though the case at hand is not decided under the Equal Protection Clause, the Court

nonetheless notes that no such discriminatory concerns are presented by article III,

section 4. The durational voter registration requirement applies to any putative candidate

for state representative, regardless of economic status or political affiliation.

Given the minimal delay placed on Johns’ candidacy by article III, section 4, the

provision’s nondiscriminatory impact, and the fact that the right to run for office is not

fundamental, 17 rational basis review applies. Accordingly, the Court must ask “whether

the requirement is justified by a legitimate interest and is a reasonable way of

accomplishing this goal.” Schulz, 44 F.3d at 57.

The Supreme Court recognizes that “there must be a substantial regulation of

elections if they are to be fair and honest and if some sort of order, rather than chaos, is to

accompany the democratic processes.” Buckley, 525 U.S. at 187. States have a

legitimate, even compelling, interest in protecting the integrity of their electoral systems

17
See Coyne, 395 S.W3d at 517. Furthermore, the inability to run for state representative does
not impact the right to travel, as the dissenting opinion suggests. In Chimento v. Stark, the New
Hampshire District Court upheld the state constitution’s seven-year residency requirement for
gubernatorial candidates. 353 F. Supp. 1211, 1218 (D. N.H. 1973), aff’d without opinion, 414
U.S. 802 (1973). The court found that it “cannot be seriously argued that the inability to run for
Governor is a real impediment to interstate travel.” Id. The court found that the candidate
residency restriction was unlike the voter residency restriction at issue in Dunn, where the voter
residency requirement in fact disenfranchised a large number of people. Id. “While the
Governorship of New Hampshire may be a coveted prize, it is one that is seriously sought after
by only a very few.” Chimento, 353 F. Supp. at 1218.
19
from frivolous candidacies, ensuring that election processes are efficient, and avoiding

voter confusion caused by an overcrowded ballot. Libertarian Party of North Dakota,

659 F.3d at 697. Though Johns argues that there are no actual concerns of frivolous

candidacies or voter confusion presented here because she is sufficiently serious and is

the only candidate opposing Peters. These concerns have repeatedly been recognized to

be sufficient to justify reasonable restrictions on access to the ballot, and the State need

make no showing of their actual existence in each particular case. See Munro v. Socialist

Workers Party, 479 U.S. 189, 194-95 (1986) (Supreme Court has “never required a State

to make a particularized showing of the existence of voter confusion, ballot

overcrowding, or the presence of frivolous candidacies prior to the imposition of

reasonable restrictions on ballot access”).

The State also argues that Missouri has an interest in encouraging candidates to

show a level of commitment to the electoral process and exhibit meaningful social

engagement and interest in Missouri civic affairs. At this point it must be noted that, in

addition to the durational voter registration requirement, article III, section 4 also

contains a requirement that state representatives be a resident of their chosen district for

one year prior to election. The residency requirement ensures that state representative

candidates are sufficiently familiar with the people and issues of the district they seek to

represent. But the voter registration requirement is not a mere proxy residency

requirement. It arguably serves a different purpose.

20
 Unlike the residency requirement in article III, section 4, the voter registration

requirement does not require a candidate to be registered in a particular district but,

rather, is satisfied by two years of registration anywhere in Missouri. 18 General elections

in Missouri occur every two years. As a result, this requirement addresses the

seriousness of candidates in a general election by ensuring that they were eligible to vote

in at least one preceding general election.

Johns and the dissenting opinion suggest that the State can have no interest in

encouraging legislative officials to show a minimal level of commitment to the political

system before being considered a serious, or non-frivolous, candidate for office. 19 The

18
Article III, section 4 does not on its face require two years of voter registration in Missouri.
The two-year durational voter registration requirement first appeared in the 1865 Missouri
Constitution. It originally required a state representative to be “a qualified voter of this state two
years.” MO. CONST. art. IV, sec. III (1865) (emphasis added). When the 1945 constitution was
adopted, voters chose to omit the language “of this state.” MO. CONST. art. III, sec. 4 (1945).
The Court declines to specifically hold that registration outside of Missouri would satisfy the
requirement as that question is not before the Court. However, the removal of the language “in
this state” perhaps further underscores the notion that the provision has little to do with residency
but, rather, is concerned with social and civic engagement.
19
In arguing that voter registration bears no relationship to a candidate’s seriousness, the
dissenting opinion relies on Gangemi v. Rosengard, in which the Supreme Court of New Jersey
struck down, on state equal protection grounds, a law requiring elected municipal officers in first
class cities to be registered voters for two years prior to election. 207 A.2d 665 (N.J. 1965).
That case is of little value here, as the Gangemi court struck down the law because it applied
only to certain municipalities based on population and whether they were classified as a “city.”
Id. at 670. Article III, section 4, makes no such arbitrary classification, and so Gangemi is of
little help in evaluating the strength of the State’s interest here. More persuasive is Peters’
citation of Broadwater v. State, in which the Maryland court of appeals recognized that “it would
be anomalous for those who make and enforce the laws . . . to have so little interest in public
affairs as not to be registered.” 510 A.2d 583, 588 (Md. 1986).
Similarly, Johns relies on Henderson v. Fort Worth Indep. Sch. Dist., in which the Fifth
Circuit struck down, under the Equal Protection Clause, a local statute requiring school board
officials to be registered voters in the district for three years prior to election. 526 F.2d 286, 293
(5th Cir. 1976). In that case, the State’s justification for the statute was a desire for
21
people of Missouri clearly disagree—it is noteworthy that the durational voter

registration is a constitutional provision, adopted by the voters. It is not unreasonable for

the people of Missouri to have decided that those who seek to govern should not only

reside in the district they seek to represent, but also should take a simple step to

demonstrate sufficient seriousness about Missouri’s general election process and social

and civic engagement at large. And, as discussed, the requirement has been a part of the

Missouri Constitution since 1865 and has never before been challenged. While the “dead

hand of the past should not be allowed to shape the future,” if the registration requirement

is to be eliminated, that task is better accomplished by the voters through the

constitutional amendment process, not by courts. Chimento, 353 F. Supp. at 1217

(“something more than the disappointment of one frustrated candidate is needed to erase

a constitutional provision that goes back to 1784 and was never challenged until now”).

The two-year voter registration requirement is a reasonable method of addressing

these legitimate interests because it ensures that a prospective legislator has taken the

minimal steps necessary to be entitled to participate in the electoral process. The people

of Missouri have, through multiple drafts of the state constitution, decided that a

knowledgeable candidates able to handle the complex matters of the office. Id. at 292. The
court was not persuaded, finding that voter registration was a “crude index” for such
qualifications and that the regulation likely disqualified a significant number of residents of the
district from the office. Id. Again, this case is meaningfully distinct. The State here does not
argue that voter registration is related to any specific skill or knowledge inherent in serving as a
capable legislator. Rather, the State believes that eligibility to vote in one preceding general
election is some minimal evidence that a candidate is serious about Missouri’s political system.
Indeed, this is perhaps why the voter registration requirement, unlike that at issue in Henderson,
does not require a candidate to be registered in his respective district for two years.
22
commitment to the state’s political system is some evidence of a candidate’s seriousness.

In light of the fact that the State clearly cannot mandate civic involvement or voting as

requirements for political office, a two-year voter registration requirement is a reasonable

and minimally intrusive method of encouraging such interests. Further, “registration for

primary election voters and candidates for political office are ‘classic’ examples of

permissible regulation.” Buckley, 504 U.S. at 196. When viewed realistically, the two-

year voter registration requirement acts as only a de minimis burden on Johns’ ability to

participate in the election process. Accordingly, article III, section 4 does not violate the

First or Fourteenth Amendment on this basis. 20

4. Voting Rights of Voters of District 76

As with Johns’ access to the ballot as a candidate, in evaluating the impact of the

voter registration requirement on the voters of District 76, the Court must look to the

severity of the burden placed on voting rights to determine the level of scrutiny. Again,

“the mere fact that a State’s system creates barriers tending to limit the field of candidates

from which voters might choose does not of itself compel close scrutiny.” Burdick, 504

U.S. at 433. Rather, when voting rights are at issue, the Court’s task is to “examine in a

realistic light the extent and nature of [the candidacy restriction’s] impact on voters.”

Anderson, 460 U.S. at 786.

20
The State also argues that it was Johns’ voluntary decision not to register to vote. Because she
is presumed to know the law, the State posits that she was aware of the durational voter
registration requirement for candidacy for state representative and cannot now complain.
23
 Johns argues that she and other voters of District 76 cannot cast their votes

effectively if she is stricken from the ballot because Peters will then be the only candidate

remaining on the primary ballot. The Supreme Court, however, has never held that the

removal from the ballot of one candidate constituted a severe burden on voter choice.

Moreover, voters do not have a right to support a specific candidate. See Anderson, 460

U.S. at 792 n.12 (“Although a disaffiliation provision may preclude such voters from

supporting a particular ineligible candidate, they remain free to support and promote

other candidates who satisfy the State’s . . . requirements”); Blunt, 912 F.2d at 266 (the

“fundamental rights of voting, speech, and association do not confer upon [voters] an

absolute right to support a specific candidate regardless of whether he or she has satisfied

reasonable eligibility requirements”); Citizens for Legislative Choice v. Miller, 144 F.3d

916, 921 (6th Cir. 1998) (“A voter has no right to vote for a specific candidate or even a

particular class of candidates”). Given that this case concerns only Johns’ inability to

seek the office of state representative in 2016, it cannot be said that her removal from the

ballot “adversely affect[s] the democratic election process or the voters’ participation

therein.” Chimento, 353 F. Supp. at 1218.

Like the de minimis burden on Johns herself, the burden on voters is also de

minimis. Article III, section 4’s nondiscriminatory21 durational voter registration

21
As previously discussed, the provision would temporarily delay any candidate who did not
timely register to vote, regardless of the candidate’s economic status or political affiliation.
24
requirement does not impact the right of the voters to vote, it only temporarily delays

their ability to vote for Johns. Accordingly, rational basis review follows.

The State’s justification for the durational voter registration requirement’s burden

on voting rights is the same as the justification it offers for the burden on Johns herself.

The State’s interests in regulating the fairness of its elections and ensuring that candidates

for state representative demonstrate sufficient seriousness about the electoral systems and

social and civic engagement are legitimate. The two-year durational voter registration

requirement is rationally related to those interests and a reasonable method of furthering

them. Accordingly, article III, section 4 does not violate the First Amendment voting

rights of the voters of District 76.

Conclusion

The circuit court’s judgment is affirmed.

___________________________
Mary R. Russell, Judge

Fischer, Draper, and Wilson, JJ., concur;
Stith, J., dissents in separate opinion filed;
Breckenridge, C.J., and Teitelman, J., concur in opinion of Stith, J.

25
 SUPREME COURT OF MISSOURI
en banc
JOSHUA PETERS, )
)
Respondent, )
)
THE MISSOURI ATTORNEY GENERAL, )
)
Intervenor/Respondent, ) No. SC95678
)
vs. )
)
RACHEL M. JOHNS, )
)
Appellant. )

DISSENTING OPINION

I concur in the principal opinion’s holding that Ms. Johns does not state a First

Amendment claim for violation of her free speech rights. I disagree with the principal

opinion’s determination that Ms. Johns does not state a claim for violation of her First

and Fourteenth Amendment rights and the rights of voters in her district to vote for a

candidate of their choice in the upcoming election.

I. Missouri’s Two-Year Durational Voter Registration Requirement Is Invalid
because it Places an Unnecessary and Substantial Burden on Ms. Johns and
Voters

A. A Multi-Factor Test Must be Used to Determine Whether a Law Imposes a
Substantial Burden on the Rights of Voters and on Ms. Johns

Ms. Johns correctly notes that the Supreme Court has held that restrictions on the

right to run for public office implicate not only a potential candidate’s right to seek
government office, but also “‘burden[] … the right of qualified voters, regardless of their

political persuasion, to cast their votes effectively. Both of these rights, of course, rank

among our most precious freedoms.’” Anderson v. Celebrezze, 460 U.S. 780, 787 (1983),

citing, Williams v. Rhodes, 393 U.S. 23, 30–31 (1968). “[T]he rights of voters and the

rights of candidates do not lend themselves to neat separation; laws that affect candidates

always have at least some theoretical, correlative effect on voters.” Bullock v. Carter,

405 U.S. 134, 143 (1972). “[T]hese rights of voters are fundamental.” Celebrezze, 460

U.S. at 788. “[V]oting is of the most fundamental significance under our constitutional

structure.” Burdick v. Takushi, 504 U.S. 428, 433 (1992).

The Supreme Court has described the process this Court must use when evaluating

challenges to election laws as follows:

Constitutional challenges to specific provisions of a State's election laws
therefore cannot be resolved by any “litmus-paper test” that will separate
valid from invalid restrictions. Instead, a court must … first consider the
character and magnitude of the asserted injury to the rights protected by the
First and Fourteenth Amendments that the plaintiff seeks to vindicate. It
then must identify and evaluate the precise interests put forward by the
State as justifications for the burden imposed by its rule. In passing
judgment, the Court must not only determine the legitimacy and strength
of each of those interests; it also must consider the extent to which those
interests make it necessary to burden the plaintiff's rights. Only after
weighing all these factors is the reviewing court in a position to decide
whether the challenged provision is unconstitutional.

Celebrezze, 460 U.S. at 789 (emphasis added).

In other words, a court cannot simply do what the majority does here and consider

in the abstract whether it believes that a two-year delay in the right to run for office

imposes a substantial burden on the rights of would-be candidates and voters, or whether

instead such a burden, because not permanent, is inherently de minimus. Such an
2
approach to the analysis is incomplete. Rather, in all cases alleging an election restriction

is constitutionally invalid a court must weigh the burden in context by considering all

three factors set out in Celebrezze before determining whether the burden is sufficiently

substantial to require strict scrutiny or sufficiently de minimus in context so that rational

basis scrutiny is permissible.

This means that first, this Court must identify “the character and magnitude of the

asserted injury to the rights protected by the First and Fourteenth Amendments that the

plaintiff seeks to vindicate.” Id. (Emphasis added). The Court cannot stop there,

however. It, then, must continue its analysis so it can “identify and evaluate the precise

interest put forward by the State as justifications for the burden imposed by its rule …

[and] determine the legitimacy and strength of each of those interests ….” Id. (Emphasis

added). Finally, in assessing the legitimacy and strength of the State’s interest, this Court

must also “consider the extent to which those interests make it necessary to burden the

plaintiff’s rights.” Id. (Emphasis added).

In other words, the substantiality of the burden depends on the strength and

legitimacy of the State’s interests, and whether it is necessary to burden plaintiff’s rights

to achieve these interests. If the interest is minimal or the necessity of imposing the

burden questionable, then the burden is more likely to be substantial than where the

interest protected is high and its connection to and the necessity for the burden to protect

that interest is great. Only after undertaking this analysis will a court be in the position to

determine whether to apply strict or rational basis scrutiny, and only then will a court be

in a position to determine whether that restriction is constitutional. Id.

3
 In Bullock, the Supreme Court undertook this analysis and determined that, while

barriers to voting do not automatically require the use of strict scrutiny, they did in that

case because the high filing fees at issue there would as a practical matter exclude many

candidates from running for office and would substantially limit the voters’ choice of

candidates. 405 U.S. at 143–44. Bullock therefore applied strict scrutiny, and struck

down the filing fee laws.

Similarly, here, to determine whether strict scrutiny will apply, this Court must

“examine in a realistic light the extent and nature” of the impact of the durational voter

registration requirement on voters. Id. at 143. “[T]he severity of the burden the election

law imposes on the plaintiff’s rights dictates the level of scrutiny applied ….”Arizona

Libertarian Party v. Reagan, 798 F.3d 723, 729 (9th Cir. 2015). If that burden is severe,

strict scrutiny applies, which means that “any severe restriction [must] be narrowly drawn

to advance a state interest of compelling importance.” Norman v. Reed, 502 U.S. 279,

289 (1992). If the burden is de minimis, rational basis review applies, and the restriction

will be stricken down if arbitrary and not rationally related to the state’s identified

purpose. Arizona Libertarian Party, 798 F.3d at 729.

Application of the Celebrezze factors to the current facts demonstrates that the

burden on Ms. Johns and on the voters is far greater than acknowledged by the majority,

the interests the State gives as justification for its implementation do not outweigh this

burden and the burden is not necessary to effectuate those interests. Therefore, strict

scrutiny applies.

4
 B. The Two-Year Voter Registration Requirement Imposes a Substantial Burden

The majority opinion, like the Respondent, asserts that because the two-year voter

registration requirement lasts, by definition, “only” two years, it should be considered

merely a “temporary” hurdle to running for office and so inherently is not substantial.

Ms. Johns can simply wait until the next election to run for office, they say, and what

difference will two more years make?

Of course, every durational voter registration requirement merely delays rather

than forever bars a candidate from running for office. If this were a sufficient basis in

itself to hold that the burden imposed by such durational voter registration requirements

were not substantial, then no durational restriction would ever be subjected to strict

scrutiny, for a time-based limitation is, inherently, limited in time. No court, prior to

today, has suggested that a state has such a carte blanche to impose temporal registration

restrictions on who may run for office. To the contrary, as just discussed, a multi-factor

weighing process must be undertaken, for which the mantra of “temporary burden” is not

an adequate substitute.

Moreover, the description of the burden as only causing a two-year delay in

running for office is not accurate. The statute does require that one who runs for office

must have been registered for two years, but that actually results in far more than a two

year delay in seeking office where, as here, the office the challenger seeks to hold is one

that requires re-election every two years. That is because even if a potential challenger

registered to vote the week after the 2014 election, that person would not be able to meet

the two-year registration requirement for running in the 2016 election. The challenger

5
would have to wait until 2018 to run. That is nearly what occurred here, for Ms. Johns

registered to vote a mere three months after the 2014 election, but that was not soon

enough. She will have had to wait some 45 months before she can be elected to office

should the voters wish to choose her as their state representative, a substantial burden on

her right to run for office and on the right of voters to vote for her.

The Fifth Circuit addressed a very similar issue involving the validity of a

three-year voter registration requirement to run for school board in Henderson v. Ft.

Worth Indep. Sch. Dist., 526 F.2d 286 (5th Cir. 1976). If such “temporary” delays in

running for office were inherently de minimus, as the majority here holds, then the Fifth

Circuit’s analysis would have been short and swift; it would have said that a mere

three-year delay is not substantial because it imposes only a temporary delay and,

therefore, is subject only to rational basis review. This is not what the Fifth Circuit did,

however. Instead, it undertook the type of analysis required by Celebrezze and that I

implore this Court to undertake here.

Applying this more appropriate analysis, the Fifth Circuit held the operative factor

in determining whether a burden is substantial was not that the restriction delayed

candidacies only for a three-year period, but rather that during those three years the

restriction created a bar that was “absolute in its operation” for those who had not

registered three years in advance. Id. at 291–92. For this reason, “[the restriction]

denies access to what must be assumed is a significant number of potential school board

candidates, and on that basis the statute’s impact on voters is substantial.” Id. at 292

(emphasis added). Henderson went on to invalidate the restriction as not sufficiently

6
related to the purposes identified to justify this substantial burden. Id.

It is not surprising that Henderson reached this result, for in other contexts the

United States Supreme Court has recognized that burdens on the exercise of rights

resulting from statutes imposing temporal limitations do impose substantial burdens. For

instance, Shapiro v. Thompson, 394 U.S. 618, 627, 638 (1969), overruled on other

grounds by Edelman v. Jordan 415 U.S. 651, 670–71 (1974), held that a one-year

residency requirement before being eligible for welfare assistance in the District of

Columbia violated the equal protection clause. Similarly, Memorial Hosp. v. Maricopa

Cnty, 415 U.S. 250, 251 (1974), struck down a one-year residency requirement as a

condition to receiving nonemergency hospitalization or medical care at the county’s

expense as a violation of the equal protection clause. Although the latter two cases were

decided based on the burden imposed on different rights than are at issue in the case at

hand today, they show the flaws in the reasoning used by the majority to uphold the voter

registration requirement in this case – that the restriction is only for two years, and such a

temporary delay in being allowed to assert ones rights inherently does not impose a

substantial burden.

To the contrary, simply because the burden a restriction imposes is temporary does

not end our inquiry. This Court still must look at the effect the durational requirement

has on the rights of Ms. Johns and voters and weigh that against the interests of the State.

The two cases relied on by the majority to support its contrary reasoning that

temporarily delaying candidates from running for office only poses a “slight burden” on

candidates and voters – Clements v. Fashing, 457 U.S. 957 (1982), and Stiles v. Blunt,

7
912 F.2d 260 (8th Cir. 1990) – are not on point. In Clements, the Supreme Court upheld

a Texas statute requiring a sitting justice of the peace to complete his term before being

eligible to run for a legislative seat because it was reasonable to require a current office

holder to finish his term before running for a new office. For this reason, “[i]n

establishing a maximum ‘waiting period’ of two years for candidacy by a Justice of the

Peace for legislature, [the statute] places a de minimis burden on the political aspirations

of a current office holder.” 457 U.S. at 967 (emphasis in original). Furthermore, the

substantial interest that Texas sought to vindicate in restricting sitting justices of the

peace from running in legislative races in Clements has no application here. In Clements,

the legitimate concern was raised that:

The demands of a political campaign may tempt a Justice of the Peace to
devote less than his full time and energies to the responsibilities of his
office. A campaigning Justice of the Peace might be tempted to render
decisions and take actions that might serve more to further his political
ambitions than the responsibilities of his office. The State's interests are
especially important with regard to judicial officers. It is a serious
accusation to charge a judicial officer with making a politically motivated
decision.

Id. at 968. Here, of course, Ms. Johns is not a current officeholder, nor is there any

indication she has ever held office, nor can she hold elective office as a state

representative until at least 2018 under the current scheme.

Stiles, similarly, is distinguishable. In Stiles, the Eighth Circuit upheld a

requirement that a person running for state representative must be 24 years old. 912

F.2d at 265–66. Of course, as all people do grow older, their being any particular age is

“temporary,” as the Eighth Circuit noted. Id. at 266. The Eighth Circuit did not hold this

was itself a sufficient basis, however, to uphold the age limitation on running for office.
8
It went on to consider Celebrezze’s requirement that a court assess the strength and

legitimacy of the State’s interest and compare it with the right being temporarily

restricted. In Stiles, these interests were rather clear: Missouri has an interest in having

candidates who have “some degree of maturity and life experience” and there is a

correlation between age and maturity. Id. at 267. The age limitation, therefore, was

directly related to the nature of the State’s interest. Id. at 267–68.

Here, Missouri’s “temporary” voter registration requirement is comparable to the

“temporary” restriction stricken in Henderson and is just as great a burden on the rights

of voters as are other stricter durational restrictions on other fundamental rights that, for

similar reasons have been held unduly burdensome. See, e.g., Shapiro, 394 U.S. at 627,

638 (1969); Memorial Hospital, 415 U.S. at 251. Further, like in Henderson, the

two-year voter registration requirement denies access to anyone who has failed to register

to vote more than two years before the next election, and imposes a ban on running for

office that has no exceptions and “absolute in its operation” during that two-year period.

Pursuant to the test set forth in Celebrezze, this Court therefore must turn to

consider the “precise interests put forward by the State as justifications for the burden

imposed by [this] rule.” 460 U.S. at 789. It then must “determine the legitimacy and

strength of each of [the State’s] interests … [and] must consider the extent to which those

interests make necessary to burden the plaintiff’s rights.” Id. “Only after weighing all of

these factors is the reviewing court in a position to decide whether the challenged

provision is unconstitutional.” Id. As explained below, this analysis shows that this

burden is not necessary to protect Missouri’s identified interest in requiring two-year

9
voter registration for potential state representatives – to ensure serious and committed

candidates.

C. The Interests Identified by the State In Having Civic-Minded Citizens Run for
Office are Not Furthered by the Two-Year Voter Registration Restriction

Respondent argues in his brief that the two-year voter registration restriction

ensures that Missouri’s “State Representative candidates are serious, committed to the

electoral process, and exhibit a meaningful interest in public affairs. Encouraging would-

be candidates to participate in elections furthers this compelling state interest.” The State

similarly argues in its brief that “disqualifying candidates failing to meet the two-year

voter registration requirement is to ensure that office holders have an established stake in

the administration of government in the community they seek to represent.”

While having candidates who are serious and committed to the electoral process

and have an established stake in the administration of local government may be desirable,

surely the State is not suggesting that it could constitutionally limit the ability to run for

office to only those persons who display those characteristics, which are located nowhere

in Missouri statutes, nor set out in the Missouri Constitution. Indeed, while all citizens

may wish their fellow voters and elected officials to display these characteristics, if proof

that elected officials actually display such characteristics were required, then there would

be an abundance of cases brought throughout the courts of this and every state as

candidates contested whether their opponents adequately displayed these civic virtues.

Even if it were a legitimate state goal to limit candidates to those who show

serious commitment to public affairs, however, the State has failed to show that to meet

that goal it is necessary to burden a potential candidate’s rights, and potential voters’
10
rights, by prohibiting people from running for state representative unless they have been

registered to vote for two years.

Why is registration any more relevant to guaranteeing a committed and civic-

minded representative than would be other far stronger indicators of public mindedness,

such as testifying about public issues, demonstrating for or against public issues of the

day, being active in the League of Women Voters, working for a candidate for election,

or any of a dozen other indicators of civic pride and interest? A person can register to

vote without engaging in any of these or any other type of civic involvement,

participation in community activities, or even interaction with any members of the

community. Certainly the State did not present any evidence that the mere act of voter

registration leads to further civic involvement.

Indeed, as the State notes, only a third of registered voters even vote at all. Yet,

the State did not condition running for office on actually voting, but only on having

circumnavigated the bureaucratic process sufficiently to register, a task that the State

suggests is very simple to accomplish. How, then, does completing the registration forms

provide necessary proof that one is qualified to be a state representative?

The Fifth Circuit rejected just such irrelevancies in striking down the three-year

durational voter requirement in Henderson, stating that the “three year ‘qualified voter’

requirement … goes beyond the necessary power of the state to prescribe minimal

candidate qualifications and denies appellant … rights secured by the Equal Protection

Clause of the Fourteenth Amendment.” 526 F.2d. at 293 (emphasis added). Indeed,

Henderson noted the irony of such a durational registration requirement as it pertained to

11
the plaintiff, who had lived in the community he sought to represent for 13 years: “The

importance of this distinction—between residency and registration—is no more amply

demonstrated than by the fact that appellant Henderson has been a resident of the Fort

Worth School District for thirteen years, but will still be ineligible as a candidate in the

1976 election.” Id. at 290.

Board of Sup’rs of Prince George’s Cnty v. Goodsell, 396 A.2d 1033, 1039 (Md.

App. 1979), rejected a similar argument, holding that “[t]he Board has suggested no

relationship between mere registration and ‘awareness of the County.’ And we can

perceive little additional familiarity a long-time resident of the County would have with

local issues simply by being registered to vote.” (Emphasis added).

For these same reasons, Missouri’s requirement that potential candidates be

registered to vote for two years is not necessary to achieve its interest in having serious,

committed candidates. Indeed, the State itself recognizes that a durational voter

registration requirement is not necessary to identify those who are qualified for public

office, for no State level public office other than the office of State Representative has a

two-year registration requirement. While the office of State Senator requires a three-

year registration, and some state judicial seats require nine-year registration, the

candidate could run for Governor, Lieutenant Governor, Attorney General, Secretary of

State, and State Auditor without ever having been registered to vote; and run for a host of

other state and local offices by simply registering to vote at the time of the election.

Similar inconsistency in imposing a supposedly “necessary” registration

requirement has led other courts to conclude that a registration restriction imposes an

12
unnecessary burden on voting rights and so to invalidate their respective durational voter

registration requirements. The New Jersey Supreme Court, in Gangemi v. Rosengard,

207 A.2d 665, 669 (N.J. 1965), for instance, said that if registering to vote for a certain

period ensures qualified candidates, why did the requirement not apply to candidates for

Governor, Senator, or Assemblyman? Similarly, in Treiman v. Malmquist, 342 So.2d

972, 976 (Fla. 1977), the Florida Supreme Court found noteworthy “the fact that this

restriction applies solely to candidates for judicial office. No such similar restraint is

placed on candidates for any other political office.” Id.

The State makes the similar argument that it “can rationally conclude that the

legislature is better served by someone who took the time necessary to at least become

eligible to vote for who should serve the current term.” But, the discussion is about being

qualified to run not for the current term but for the next term after registration. Why is

such a long registration requirement a necessary burden on Ms. Johns’ and voters’ rights?

Why is it not up to the voters to determine by their votes whether they value whatever

character trait may be shown by registering earlier than one’s opponent? While

registration to vote may say something about knowledge of the voting process, it is far

less relevant than many other actions or characteristics, and could not be considered to

impose a necessary burden to elect a responsible legislator.

It was for these reasons that in Celebrezze itself the Supreme Court rejected a very

similar argument. In that case, an Ohio statute required all independent candidates to

register by March to be placed on the November ballot. 460 U.S. at 794. Ohio argued

that this requirement promoted informed voters by giving voters time to educate

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themselves about otherwise unknown independent candidates. Id. at 796. But the

Supreme Court held that, far from educating voters, “A State’s claim that it is enhancing

the ability of its citizenry to make wise decisions by restricting the flow of information to

them must be viewed with some skepticism.” Id. at 798. It further noted that “the best

means [to educate voters] is to open the channels of communication rather than to close

them[]” through arbitrary restraints. Id.

Similarly, in Goodsell the Maryland Court of Appeals rejected an argument that a

durational voter registration requirement ensured candidates had an awareness of the

county they wished to serve and prevented “frivolous candidates” from running for

office. 396 A.2d at 1039. Goodsell held that “in a democracy, the appropriate judges of

which candidates are frivolous, and which candidates have the greater commitment to the

County, are the voters on election day.” Id. (Emphasis added)

Finally in Gangemi, the New Jersey Supreme Court refused to uphold a durational

voter registration requirement because “individual fitness is something the voters decide

and the intensity of a candidate’s interest is part and parcel of that subject. The

Legislature cannot take that issue from them. [The two-year voter registration

requirement] would do so; it is therefore invalid.” 207 A.2d at 669 (emphasis added).

So too here, the State would argue that this restriction on would-be candidates

promotes qualified, involved, and committed candidates. But, just like in Celebrezze,

Goodsell, and Gangemi, restricting the rights of candidates and voters simply because the

candidate did not register to vote more than two years prior to an election is not necessary

to produce high-quality candidates for state representative. Neither is there any

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constitutional basis for making a candidate’s level of civic engagement and commitment

a requirement to run for office as opposed to a personal characteristic that can be brought

up as a natural part of a competitive race, challenged by the opponent and debated

vigorously.

Weighing the burden placed on Ms. Johns and voters against the strength and

legitimacy of Missouri’s interests, the two-year voter registration requirement is not

necessary to achieve these interests and, therefore, places a substantial burden on the First

and Fourteenth amendment rights of Ms. Johns and voters. Finding that this restriction

imposes a substantial burden, strict scrutiny must be applied, and this burden does not

pass strict scrutiny. See Norman, 502 U.S. at 289.

II. The Durational Voter Registration Restriction Is Invalid Whether Subject to
Strict or Rational Basis Scrutiny

The State itself conceded at oral argument that the two-year registration

requirement cannot stand if it is subjected to strict scrutiny. This is because the State has

no compelling interest in precluding voters from considering otherwise qualified

candidates simply because they have been registered to vote for only one year, or in the

case of Ms. Johns, until she has been registered for 45 months, rather than for two years.

Moreover, even if ensuring serious and committed candidates with a stake in the

community they wish to serve was a compelling interest, a two-year voter registration is

not a narrowly-tailored way to accomplish this goal. This law simply does not pass strict

scrutiny. For these reasons, I would hold the two-year registration requirement invalid.

Even applying rational basis review, however, this arbitrary two-year durational

voter registration requirement should be held unconstitutional. The very issues discussed
15
above in analyzing why the registration requirement imposes a substantial burden

demonstrate why that burden also is arbitrary and irrational. In fact, although Missouri

has not had occasion to consider whether there is a rational basis for such a durational

voter registration requirement, similar restrictions have been challenged around the

country and have not withstood constitutional review. See, e.g., Gangemi, 207 A.2d 665

(N.J. 1965); Treiman, 342 So.2d 972 (Fla. 1977); Goodsell, 396 A.2d 1033 (Md. App.

1979). 1

The high courts in at least two states have held that, even under a rational basis

standard, these types of durational voter registration requirements are invalid. In

Gangemi, the New Jersey Supreme Court could not even “conceive a rational connection

between the supposed aim of the [registration requirement] and class of municipalities to

which its operation is limited.” 207 A.2d at 670. Similarly, in Treiman, the Florida

Supreme Court held that even a one-year voter registration requirement “does not serve

any reasonable or legitimate state interest. It does not in any way protect the integrity of

the election process or purity of the ballot; it does not serve to keep the ballot within

manageable limits ….. The barrier it erects is an unnecessary restraint on one’s right to

1
While some of these cases have been decided on equal protection grounds, the courts’
analysis of the validity of durational voter registration requirements are still relevant here
for this same reasoning applies to Ms. Johns’ arguments concerning restriction of her
rights and those of the voters. In her cross-motion for judgment on the pleadings Ms.
Johns did raise the effect of these restrictions on her Fourteenth Amendment equal
protection rights, but the majority holds she did not do so sufficiently to preserve the
separate equal protection argument because she did not specifically state this was an
alternative ground for relief. There is no point in undertaking a separate equal protection
analysis here, other than to state that Ms. Johns raises very serious equal protection
arguments.
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seek elective office.” 342 So.2d at 976 (emphasis added).

In Goodsell, although the court struck down a five-year voter registration

requirement using strict scrutiny analysis, it implied that even under a rational basis test,

it could not perceive a relationship between the restriction and the state’s interest, stating:

“The Board has suggested no relationship between mere registration and ‘awareness of

the County.’ And we can perceive little additional familiarity a long-time resident of the

County would have with local issues simply by being registered to vote.” 396 A.2d at

1039 (emphasis added). Registering to vote two years prior to the election simply does

not further the interest of assuring that individual candidates will be any more qualified,

serious, or committed than those who have not.

Rather than promoting qualified candidates, the two-year voter registration

requirement punishes those individuals who had not previously been involved in public

service but who may have been inspired to run for political office and register to vote

within two years of an election, by eliminating them from contention in the upcoming

election. Far from “encouraging would-be candidates to participate in elections,” the

durational voter registration requirement may dissuade would-be candidates from running

in the next election because the candidate did not sign a voter registration application

within the two-year requirement. Indeed, if citizens in a particular district are roused by

the words of a would-be candidate during the years preceding an election but are

prohibited from voting for that candidate, it may deter them from voting or participating

in future elections, thwarting the State’s interest in encouraging civic involvement.

Further, to the extent that the two-year voter registration provision requires

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registration in Missouri, it is a restriction on the right to travel and so would be subject to

strict scrutiny and should be invalidated on that basis. It certainly is not narrowly tailored

to the asserted state interest in having candidates show an interest in the electoral process.

See, e.g., Saenz v. Roe, 526 U.S. 489 (1999).

In fact, though, there may be no travel restriction imposed by the registration

requirement, for neither article III, section 4 nor section 21.080 require that the candidate

seeking office have been registered in Missouri for the two-year period prior to the

election at which they wish to run for office. These laws require only that the would-be

candidate be a “qualified voter,” which has been interpreted to mean “registered voter.”

See State ex rel. Burke v. Campbell, 542 S.W.2d 355, 358 (Mo. App. 1976). They do not

require the candidate to be a “qualified voter of this state.” Of course, to actually take

office the candidate would have to actually reside in the district the candidate seeks to

represent and would have had to change registration at some point, but that does not

apply to the entire two-year period in question.

If the statute and constitution simply were silent as to where one must be

registered, it might be logical to infer that the registration must have to be in Missouri for

the full period of time nonetheless. But, the legislative history in this area does not

permit such an inference. As the majority notes the Missouri constitution originally

required a state representative to be a “qualified voter of this state two years.” MO.

CONST. art. IV, sec. III (1865) (emphasis added). But, the words “of this state,” were

removed from the 1945 constitution. MO. CONST. art. III, sec. 4 (1945). A purpose must

be inferred from such a language change, and the only one that seems to exist is that the

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people wanted a potential candidate to qualify under Missouri law to run for state

representative even if registered in an entirely different state for most of the prior

two-year period.

The majority claims the lack of requirement that the registration be in Missouri

shows that the voter registration requirement had little to do with residency, and simply is

concerned with social and civic engagement. But, why would a candidate’s civil and

social engagement in another state bear any rational relationship to whether the candidate

is qualified to run for state representative in Missouri?

Perhaps for this reason, the State’s and Respondent’s briefs make clear that they

believe that it is engagement in Missouri’s political system that is relevant. Respondent

noted in his brief: “Because Missouri’s general elections occur once every two years, Art.

III, Sec. 4 encourages would-be State Representatives to register to vote and participate

in the electoral process before running for that office.” And the State noted: “the rational

purpose for temporarily disqualifying candidates failing to meet the two-year voter

registration requirement is to ensure that office holders have an established stake in the

administration and in the community they seek to represent.” Yet, allowing registration

in another state would not serve either of these goals.

Far more relevant to showing commitment to the community the candidate seeks

to represent is the requirement of a one-year residency in the district to run for office.

See MO. CONST., art. III, sec. 4 and § 21.080. That requirement does at least ensure that

the person have experience in the community the person seeks to represent. Indeed, even

if a limitation to registration in Missouri were read into the registration requirement, it is

19
uncontested that neither the constitution nor any statute requires that the registration be in

the community in which the person is running for office. The candidate could register in

Kansas City and then run for office in and vote in Ferguson if the one-year residency

requirement were met so long as the candidate’s registration was transferred to the local

district. The State’s argument then, that it has an interest in having candidates who at

least have some “established stake” in their community, evaporates if the two-year voter

register requirement is satisfied by a candidate who has not been registered for two years

in the community the candidate seeks to serve.

For these reasons, as well as the reasons considered earlier in addressing whether

the burden is a substantial one, I would hold that the two-year durational voter

registration requirement is unconstitutional. I believe that it places a substantial burden

on the First and Fourteenth amendment rights of Ms. Johns and voters and is not

narrowly-tailored to achieve the State’s purported interest in promoting civic education

and ensuring candidates who have an “established stake” in their community. But, even

if this Court were correct in applying rational basis review, Missouri’s two-year voter

registration requirement is not rationally related to a legitimate state interest. I therefore

dissent.

_________________________________
LAURA DENVIR STITH, JUDGE

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