Organization for Black Struggle et al v. Ashcroft et al

Filing 65

ORDER: Granting in part and denying in part #23 Motion for preliminary injunction; granting in part and denying in part #23 motion for TRO. Signed on 10/9/20 by District Judge Brian C. Wimes. (Kern, Kendra)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
CENTRAL DIVISION

ORGANIZATION FOR BLACK
STRUGGLE, et al.,
Plaintiffs,
v.
JOHN R. ASHCROFT,
in his official capacity as
Missouri Secretary of State, et al.,
Defendants.

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Case No. 2:20-CV-04184-BCW

ORDER
Plaintiffs the Organization for Black Struggle, the St. Louis A. Philip Randolph Institute,
the Greater Kansas City A. Philip Randolph Institute, the National Council of Jewish Women St.
Louis Section, and Missouri Faith Voices (hereinafter, “Plaintiffs”) are seeking a temporary
restraining order (“TRO”) and preliminary injunction based on three claims, two of which allege
Equal Protection and Due Process violations of the Fourteenth Amendment to the U.S Constitution
and the third claim alleging a violation of the Materiality Provision of the Civil Rights Act of 1964,
52 U.S.C. § 10101(a)(2)(B).1 Defendants, through John R. Ashcroft, in his official capacity as
Secretary of State of Missouri, oppose the motion seeking injunctive relief. The Court, being duly
advised of the premises, grants in part and denies in part Plaintiffs’ motion for preliminary
injunctive relief and TRO.

1

Amici curie the American Association of Retired Persons (AARP) and the AARP Foundation filed briefing in support
of Plaintiffs’ motion.

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BACKGROUND
Plaintiffs, on September 17, 2020, filed three claims against Defendant Ashcroft and the
county election authorities of Greene County, Jackson County, St. Charles County, and St. Louis
County. The three claims relate from Senate Bill 631.
Prior to 2020, Missouri authorized absentee voting for six specific categories of voters and
all other Missouri voters voted in person. See Mo. Rev. Stat. § 115.277.1(1)-(6). In response to the
COVID-19 pandemic, on June 4, 2020, the Missouri legislature enacted Senate Bill 631, which
added an additional category (7) to absentee voting, allowing individuals who are in “an at-risk
category” for COVID-19 to cast an absentee ballot without notarization. The bill also enacted new
section Mo. Rev. Stat. § 115.302 allowing all Missourians who are registered voters to “mail-in”
vote for elections in 2020.
The new law establishes different procedures for absentee voters and mail-in voters.2
Absentee ballots may be requested by mail, email, fax, or in person. Mo. Rev. Stat. § 115.279.1.
On the other hand, mail-in ballots must be requested either by mail or in person. Mo. Rev. Stat. §
115.302.1. Similarly though, if a request for an absentee ballot or a mail-in ballot is rejected, the
local election authority (LEA) is required by statute to notify the applicant of the reason his or her
application for a remote ballot, whether under § 115.277 or § 115.302, was rejected. In each
instance, the remote ballot applicant can challenge the application rejection decision with the
Elections Division of the Secretary of State’s Office.
Once a remote voter’s ballot application is approved and the remote voter receives the
remote ballot, the process to complete the remote ballot is the same. The voter must fill out his or

2

For purposes of this Order, the Court refers to those voters casting ballots under Mo. Rev. Stat. § 115.277 and Mo.
Rev. Stat. § 115.302 as “remote voters,” and ballots submitted under either § 115.277 for absentee, or § 115.302 for
mail-in, as “remote ballots”.

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her name, address, signature attesting he or she is authorized to cast the ballot, and (for absentee
ballots) the reason for voting absentee on the ballot envelope. Mo. Rev. Stat. § 115.302.8; §
115.291.1. A remote voter’s failure to state a reason for voting absentee does not result in rejection
of the ballot, but a voter’s failure to provide on the ballot envelope his or her name, address, and/or
signature attesting they are authorized to cast the ballot results in rejection of the ballot. Mo. Rev.
Stat. § 115.294.
All ballots must be received by the close of polls on election day. Election authorities may
not count ballots received after 7:00 p.m. on election day. Mo. Rev. Stat. § 115.293.1.
Absentee ballots may be returned one of two ways – by mail, or in person. If the absentee
voter chooses the latter option, he or she delivers the ballot to the election authority or may have a
relative return the absentee ballot on the voter’s behalf, as long as the relative is within the second
degree of consanguinity or affinity. Mo. Rev. Stat. § 115.291.2.
By contrast, “[e]ach mail-in ballot shall be returned to the election authority in the ballot
envelope and shall only be returned by the voter by United States mail.” Mo. Rev. Stat. §
115.302.12.
In the instant motion, Plaintiffs argue they are entitled to a preliminary injunction and TRO
with respect to each of their three claims for relief against Defendants. With respect to Count I,
Plaintiffs argue the 2020 remote ballot rules violate equal protection because Defendants treat
those availing themselves of mail-in voting different from those availing themselves of absentee
voting, imposing an undue burden on the right to vote. Plaintiffs assert a violation of equal
protection because an absentee voter may apply for an absentee ballot in person, by mail, by email,
or by fax, while a mail-in voter may apply for an absentee ballot only in person or by mail. Further,
Plaintiffs assert a violation of equal protection because while an absentee voter may return his or

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her ballot to the election authority by mail, or in person, or through a close relative, a mail-in voter
may return his or her ballot to the election authority only through U.S. mail. Plaintiffs seek to
enjoin Defendants’ enforcement of these differing treatments.
With respect to Count II, Plaintiffs argue they are entitled to injunctive relief against
Defendants’ alleged violations of the materiality provision of the Civil Rights Act by rejecting
ballot applications and ballots for immaterial errors.
With respect to Count III, Plaintiffs argue they are entitled to injunctive relief against
Defendants’ failure to provide voters with notice and a meaningful opportunity to cure any ballot
errors before rejecting the ballot.
LEGAL STANDARD
A preliminary injunction is an “extraordinary remedy,” and “the burden of establishing the
propriety of an injunction is on the movant.” Watkins Inc. v. Lewis, 346 F.3d 841, 844 (8th Cir.
2003). The following factors are relevant to the Court’s consideration of whether to grant
injunctive relief: “(1) the likelihood of the movant’s success on the merits; (2) the threat of
irreparable harm to the movant in the absence of relief; (3) the balance of the harm and the harm
that the relief would cause to other litigants; and (4) the public interest.” Id. (citing Dataphase Sys.,
Inc. v. CL Sys., Inc., 640 F.2d 109, 114 (8th Cir. 1981)). Likelihood of success on the merits is the
“most significant” favor, and “the absence of a likelihood of success on the merits strongly
suggests that preliminary injunctive relief should be denied.” Barrett v. Claycomb, 705 F.3d 315,
320 (8th Cir. 2013).
ANALYSIS
“[S]tanding is a jurisdictional prerequisite that must be resolved before reaching the merits
of a suit.” City of Clarkson Valley v. Mineta, 495 F.3d 567, 569 (8th Cir. 2007). “In essence, the

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question of standing is whether the litigant is entitled to have the court decide the merits of the
dispute or of particular issues.” Warth v. Seldin, 422 U.S. 490, 498 (1975). “[S]tanding imports
justiciability: whether the plaintiff has made out a ‘case or controversy’ between himself and the
defendant within the meaning of Article III. This is the threshold question in every federal case,
determining the power of the court to entertain suit.” Id.
The standing inquiry requires the plaintiff to allege “some threatened or actual injury”
traceable to the defendant, such that the plaintiff has “such a personal stake in the outcome of the
controversy as to warrant his invocation of federal-court jurisdiction and to justify exercise of the
court’s remedial power on his behalf.” Id. at 498-99.
To demonstrate Article III standing, a plaintiff must show each of the following: “(1) an
injury in fact; (2) a causal connection between the injury and the challenged conduct; and (3) the
likelihood that a favorable decision by the court will redress the alleged injury.” Iowa League of
Cities v. Env’t Prot. Agency, 711 F.3d 844, 869 (8th Cir. 2013). An injury in fact sufficient to
confer standing must be concrete and particularized, as well as actual and imminent, as opposed
to hypothetical. Friends of the Earth, Inc. v. Laidlaw Env’t Servs. (TOC), Inc., 528 U.S. 167, 18081 (2000); Warth, 422 U.S. at 501 (requiring a “distinct and palpable injury”).
Defendants argue Plaintiffs, as advocacy organizations, do not have standing to assert any
of their claims. First, Defendants argue all of Plaintiffs’ claims are alleged under 42 U.S.C. § 1983,
which protects only individual rights. Further, Defendants argue Plaintiffs have not shown
standing through any of its individual members through which Plaintiffs might establish
associational standing.
Plaintiffs argue they have established organizational standing such that they have suffered
cognizable injuries, traceable to the defendants, that are amenable to redress through injunctive

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relief. Plaintiffs further assert they have associational standing because their members otherwise
have standing on their own, their members’ rights at issue are related to Plaintiffs’ purposes, and
neither the claims at issue nor the relief sought requires the participation of any individual member.
“An association may have standing in its own right to seek judicial relief from injury to
itself . . .” Warth, 422 U.S. at 511. “Standing may be found when there is a concrete and
demonstrable injury to an organization’s activities which drains its resources and is more than
simply a setback to its abstract social interests.” Nat’l Fed. of Blind of Mo. v. Cross, 184 F.3d 973,
979 (8th Cir. 1999) (citing Havens Realty Corp. v. Coleman, 455 U.S. 363, 379 (1982)).
“If in a proper case the association seeks a declaration, injunction or other form of
prospective relief, it can be reasonably supposed that the remedy, if granted, will inure to the
benefit of those members of the association actually injured.” Warth, 422 U.S. at 515.
In this case, Plaintiffs are each advocacy organizations involved in efforts to promote voter
registration and education and to protect the right to vote. For example, the Organization for Black
Struggle (OBS) was founded to “address the needs and issues of the Black working-class” and is
involved in efforts “to end voter suppression and disenfranchisement.” (Doc. #1 at 7). Under the
allegations of the complaint, OBS has diverted resources from its usual election year advocacy
work to combat confusion and difficulties relating to the 2020 remote ballot rules. Each named
plaintiff organization similarly alleges involvement in issues relating to voting rights, and the
diversion of resources from other core work in order to educate the public and to dispel confusion
relating to the 2020 remote ballot rules. The Court is thus satisfied Plaintiffs each have standing
through diversion of resources from its other core work and pre-election activities, and that these
diversions of resources are more than a minimal setback to an abstract interest. Additionally,
Plaintiffs’ alleged injury is traceable to the 2020 remote ballot rules which Defendants enforce and

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implement. Finally, Plaintiffs seek only declaratory and injunctive relief, such that their claims are
amenable to redress through a decision in Plaintiffs’ favor. The Court finds Plaintiffs have
organizational standing to assert Counts I, II, and III.
Moreover, though the complaint does not identify any particular member of any one of the
plaintiff organizations, Plaintiffs’ individual members have the right to vote and thus standing to
litigate an impingement on that right. Associational standing requires Plaintiffs to show “(a)
members would otherwise have standing to sue in their own right”; this requirement is thus
satisfied. Hunt v. Wash. State Apple Advert. Comm’n, 432 U.S. 333, 333 (1977). In addition to
demonstrating members’ standing to sue in their own right, associational standing requires the
association to show “(b) the interests it seeks to protect are germane to the organization’s purpose;
and (c) neither the claim asserted nor the relief requested requires the participation of individual
members in the lawsuit.” Id.
As referenced, under the allegations of the complaint, Plaintiffs’ alleged missions and
community roles relate to voter registration and education, and/or the protection of the right to
vote. Further, because Plaintiffs seek declaratory and injunctive relief, a decision favorable to
Plaintiffs will accrue to the benefit of Plaintiffs’ members and the constituencies they serve, and
there is no need for individual joinder of each or any member. Thus, the Court finds Plaintiffs have
associational standing for Counts I, II, and III.
Because the Court is satisfied of Plaintiffs’ standing, the Court turns to consideration of the
merits of whether Plaintiffs have demonstrated a right to preliminary injunctive relief. Carlson v.
Arrowhead Concrete Works, Inc., 445 F.3d 1046, 1050 (8th Cir. 2006).

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A. Plaintiffs’ motion for preliminary injunction and TRO based on Count I is granted.
1. Likelihood of success on the merits
Count I alleges the 2020 remote ballot rules impose an undue burden on the right to vote
because those availing themselves of mail-in voting are subject to different requirements for ballot
applications and for casting their ballot as compared with absentee voters.
Plaintiffs argue the remote ballot rules violate equal protection as applied to remote voters
who are not eligible to vote absentee because they are not statutorily at-risk for COVID-19 or
otherwise eligible under § 115.277.1.
The first aspect of this equal protection challenge is that voters eligible to vote absentee
can apply for their remote ballot electronically, while this option is not available to mail-in
applicants.
The second aspect of this equal protection challenge is that absentee ballots can be dropped
in person to the LEA, where mail-in ballots are accepted by U.S. mail only.
Plaintiffs seek to enjoin Defendants’ different treatment for remote ballots by (1) allowing
any voter seeking to vote remotely to apply for a remote ballot through the same means, whether
it be in person, through a close relative, by mail, or by email or fax; and (2) allowing any voter
seeking to vote remotely to return his or her ballot to the election authority in person, through a
close relative, or by mail, thus enjoining § 115.302’s requirement that mail-in ballots may be
returned by U.S. mail only.
Plaintiffs allege the requirement that mail-in votes must be received by the election
authority only by U.S. mail poses a risk of disenfranchisement through no fault of the voter because
more people are seeking to vote remotely in an effort to avoid exposure to the coronavirus, leading
to a higher volume of time-sensitive mail to be processed through an already overburdened U.S.

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Postal Service.3 Plaintiffs allege this risk of disenfranchisement is not justified by any legitimate
state interests because Missouri law already provides that election authorities may accept absentee
ballots not only by mail, but also in person.
Defendants argue the procedures for applying for and returning mail-in ballots are
reasonable and nondiscriminatory and serve important regulatory interests. Defendants argue the
State’s interests in these mail-in requirements include “clarity, uniformity, ballot security,
preserving limited state resources, reducing administrative burdens, and avoiding voter
confusions.”
“A court considering a challenge to a state election law must weigh ‘the character and
magnitude of the asserted injury to the rights protected by the First and Fourteenth Amendments
that the plaintiff seeks to vindicate against the precise interests put forward by the State as
justifications for the burden imposed by its rule taking into consideration the extent to which those
interests make it necessary to burden the plaintiff’s rights.” Burdick v. Takushi, 504 U.S. 428, 434
(1992) (quoting Anderson v. Celebrezze, 460 U.S. 780, 788-89 (1983)).
“Under this standard, the rigorousness of [the] inquiry into the propriety of a state election
law depends on the extent to which a challenged regulation burdens First and Fourteenth
Amendment rights.” Id.
When the challenged restrictions are “severe” then the regulation must be “narrowly drawn
to advance a state interest of compelling importance.” Id. (quoting Norman v. Reed, 502 U.S 279,
289 (1992)).

USPS sent a letter to Ashcroft on July 31, 2020 recognizing “risk that, at least in certain circumstances, ballots may
be requested in a manner that is consistent with your election rules and returned properly, and yet not be returned in
time to be counted.” (Doc. #27-22).
3

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But when the challenged restriction imposed by the state election law creates 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 restriction
imposed. Id.
The Court first considers Count I with respect to equal protection in the ballot application
process. Defendants argue the 2020 remote ballot rules installed new processes allowing more
Missourians to vote remotely, which required them to create new materials and train election
officials on brand new election procedures. Defendants specifically argue the way voters can
request mail-in ballots is purposefully limited and serves the reasonable interest of requiring LEAs
to monitor only one avenue for providing mail-in ballots.
While “election laws will invariably impose some burden upon individual voters,” the
distinction between Defendants’ processing of remote ballot applications is not justified based on
Defendants’ own arguments. Burdick, 504 U.S. at 433. Defendants argue the 2020 remote ballot
rules were installed to accommodate an influx of remote voters during the global pandemic. On
this basis, Defendants’ training and materials for LEAs already accounted for this increase in
remote ballots, and presumably Defendants’ election preparation anticipates votes from all eligible
Missourians. Thus, there is no merit to Defendants’ argument that there exists a reasonable basis
to allow only absentee voters to request their remote ballot through electronic means; the number
of ballots to be processed remains the same.
Moreover, Defendants’ chaos argument is undercut by the existing absentee voter statute;
the processes and means through which Defendants process remote ballot applications already
exists and LEAs are already trained on the process. Additionally, in the Court’s view, any chaos

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relating to the 2020 remote ballot rules would be assuaged by unanimity relative to the processing
of remote ballot applications.
Notwithstanding the likelihood of Plaintiffs’ success on the merits on this aspect of Count
I, practical considerations work against injunctive relief with specific respect to Plaintiffs’ equal
protection claim relative to remote ballot applications. First, like the absentee voter statute, the
mail-in voter statute provides a mechanism for LEAs to notify voters that there is some deficiency
on the remote ballot application that prevents the LEAs from providing a ballot. Second, those
remote voters who have applied for their remote ballots by now are, despite any delay attributable
to the USPS, likely to receive their ballots with enough time to return mail them before the
deadline.
By contrast, these practical concerns do not implicate Plaintiffs’ equal protection challenge
on the aspect of Defendants’ different treatment in the way remote ballots can be returned to the
LEAs so that they can be counted.
Missouri law prohibits election authorities from counting ballots received after the close of
polls on election day. Though the 2020 remote ballot rules allow for more remote voters, those
remote voters who are eligible to vote absentee under § 115.277 have, because they can walk their
completed ballot into the LEA if they need to, less risk of total disenfranchisement. By contrast,
those remote voters not eligible to vote absentee, and instead voting under § 115.302, even if they
do everything right and plan well in advance, run the risk of total disenfranchisement in the form
of their vote not being counted because of delays not of the voter’s own making.
Defendants argue the process for mail-in ballots protects ballot security and against voter
fraud. However, the absentee voter statute already provides an acceptable framework to serve these
interests. Defendants do not argue any particular risk of voter fraud for mail-in ballots that is not

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also a risk for absentee ballots. In fact, both remote ballot statutes provide for the same required
information, suggesting the mechanism for preventing voter fraud under § 115.277 is adequate for
preventing voter fraud under § 115.302.
Finally, Defendants argue requiring mail-in ballots be returned by U.S. mail, as opposed to
permitting them to be dropped off in-person at the election authority or through a close relative
like an absentee voter may do, imposes a minimal burden. To be sure, in a vacuum, placing a mailin ballot in the mail is not a high burden on voters. However, when the postal service has informed
the State that it may have issues delivering mail in time, in addition to the expected increase in
volume for remote votes, the new mail-in rules require much more from the mail-in voter than
simply placing his or her ballot in the mailbox. For one thing, Missouri voters who are not in a
“high-risk” category to vote absentee must request, again through the mail, their mail-in ballots
well in advance of election day and wait for the ballot, at which time the mail-in voter must hope
the ballot is delivered, again through the mail, in time for the voter to complete the ballot, get the
ballot envelope notarized, and get it back in the mail no later than October 27, 2020 and hope the
ballot is received by the election authority before close of polls on election day. Under the scheme
to cast an absentee ballot, the absentee voter has the option to, if they worry their ballot will not
make it to the election authority in time to be counted, or for any other number of infinite reasons,
deliver the absentee ballot to the election authority in person. Mail-in voters do not have the same
option to take steps to ensure their ballot is cast.
The Court recognizes Plaintiffs’ argument is somewhat counter-intuitive. Plaintiffs are
seeking the opportunity for remote voters, who were hoping to avoid exposure to the coronavirus
by voting remotely, to go to the polling places those voters were trying to avoid. However, allowing
all remote voters to deliver his or her completed ballot in person to the LEA provides for all remote

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voters, and not just those eligible to vote absentee, to avoid the potential risk of coronavirus that
they might otherwise not be able to avoid at their polling place on election day.
In sum, considered alone, requiring a remote voter to put a ballot in a mailbox does not
sound like a particularly arduous or severe burden. However, Defendants have presented no
reasonable justification for different treatment of remote voters. On this basis, because the right to
vote is at issue and the risk is total disenfranchisement even if the voter does everything right, and
because the Defendants already have a scheme in place to accommodate remote ballots, the Court
finds Plaintiffs likely to succeed on the merits of Count I as it relates to the manner in which remote
ballots can be returned to the election authority.
2. Irreparable harm, balance of the harms, public interest
The other Dataphase factors also weigh in favor of preliminary injunctive relief. Plaintiffs’
irreparable harm is the denial of the right to vote. Gen. Motors Corp. v. Harry Brown’s LLC, 563
F.3d 312, 318 (8th Cir. 2009) (irreparable harm incurred when harm cannot be compensated
through damages).
Further, as discussed above, the harm to Defendants in relying on the absentee voting
scheme for all remote ballots is minimal; the infrastructure already exists. By contrast, requiring
remote voters who do not otherwise meet the requirements to vote absentee to apply for and return
their ballots only by mail runs a risk of disenfranchisement.
Finally, the Court finds the public interest factor weighs in favor of injunctive relief.
Burdick, 504 U.S. at 441 (quoting Wesberry v. Sanders, 376 U.S. 1, 17 (1964) (“No right is more
precious in a free country than that of having a voice in the election of those who make the laws
under which, as good citizens, we must live.”). The protection of right to vote “is always in the
public interest.” League of Women Voters of Mo. v. Ashcroft, 336 F. Supp. 3d 998, 1006 (W.D.

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Mo. 2018) (citing Action NC v. Strach, 216 F. Supp. 3d 597, 622 (M.D.N.C. 2016); Obama for
Am. v. Husted, 697 F.3d 423, 436 (6th Cir. 2012); Fish v. Kobach, 840 F.3d 710, 752 (10th Cir.
2016)).
The Court concludes Plaintiffs are entitled to preliminary injunctive relief on Count I as
set forth above.
B. Plaintiffs’ motion for preliminary injunction and TRO based on Count II is denied.
1. Likelihood of success on the merits
Plaintiffs seek injunctive relief under Count II for violations of the Civil Rights Act’s
Materiality Provision, 52 U.S.C. § 10101(a)(2)(B) based on Defendants’ alleged rejection of
remote ballot applications and remote ballot envelopes. Plaintiffs assert they are likely to succeed
on the merits of this claim because Defendants, or more precisely, LEAs, reject incomplete
applications for remote ballots, as well as remote ballots returned in ballot envelopes with
deficiencies, even when these errors are not material.
Defendants argue Plaintiffs cannot show a likelihood of success on the merits under §
10101(a)(2)(B). First, Defendants argue the materiality provision does not create a private right of
action; only the attorney general may initiate a claim for violation of this statute. Second,
Defendants argue the materiality provision applies only to registration and application materials
and not to errors and omissions on ballot envelopes. Third, Defendants argue the materiality
provision does not prohibit Defendants’ rejection of ballot envelopes that are unclear as to the
voter’s name, address, and attestation.
The materiality provision is as follows:
[n]o person acting under color of law shall . . . deny the right of any individual to
vote in any election because of an error or omission on any record or paper relating
to any application, registration, or other act requisite to voting, if such error or

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omission is not material in determining whether such individual is qualified under
State law to vote in such election . . . .
52 U.S.C. § 10101(a)(2)(B). This statute “was intended to address the practice of requiring
unnecessary information for voter registration with the intent that such requirements would
increase the number of errors or omissions on the application forms, thus providing an excuse to
disqualify potential voters.” Martin v. Crittenden, 347 F. Supp. 3d 1302, 1308 (N.D. Ga. 2018)
(quoting Schwier v. Cox, 340 F.3d 1284, 1294 (11th Cir. 2003)).
Missouri law requires all remote ballot applications be in writing and provide the
applicant’s name, the address of registration, the mailing address if requesting a ballot by mail,
signature, and the reason for the remote ballot request. Mo. Rev. Stat. §§ 115.279.2; 115.302.2, .4.
Similarly, Missouri law requires a remote ballot be returned in a ballot envelope reflecting the
voter’s name, address, and attestation / signature. Mo. Rev. Stat. §§ 115.283.1, 115.295.2.
In addition, both § 115.279 and § 115.302 provide for the LEA to notify the remote ballot
applicant in the event the application is deficient, such that a voter would be aware that he or she
needed to take additional steps to provide the required information.
These categories of required information are not immaterial to voter qualification. The
information required on remote ballot applications and remote ballot envelopes is material to
determining voter qualification. Therefore, LEAs may reject applications and ballots that do not
clearly indicate the required information required by Missouri statute without offending 52 U.S.C.
§ 10101(a)(2)(B). The Court concludes Plaintiffs are unlikely to succeed on the merits of Count
II.
2. Irreparable harm, balance of harms, public interest
As to the remaining Dataphase factors, election regulations, and perhaps in particular those
related to voter qualification, serve the public interest because they protect the integrity of
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elections. Burdick, 504 U.S. at 433. Defendants’ interest in confirming voter qualification through
the statutory means identified thus outweighs any harm to Plaintiffs.
Plaintiffs’ motion for preliminary injunctive relief on Count II is denied.
C. Plaintiffs’ motion for preliminary injunction and TRO based on Count III is
denied.
1. Likelihood of success on the merits
Plaintiffs argue a likelihood of success on the merits of Count III alleging violation of
procedural due process because Missouri law does not provide its remote voters with adequate
notice and an opportunity to cure any ballot errors. Plaintiffs assert that the 2020 remote ballot
rules create a liberty interest in the right to vote by mail to which procedural due process applies.
Defendants argue Plaintiffs cannot demonstrate a likelihood of success on the merits of
Count III because there is no liberty interest in the right to vote by mail.
“Procedural due process imposes constraints on governmental decisions which deprive
individuals of liberty or property interests within the meaning of the Due Process Clause of the
Fifth or Fourteenth Amendment.” Mathews v. Eldridge, 424 U.S. 319, 332 (1976). “Due process
is flexible and calls for such procedural protections as the particular situation demands,” and
requires consideration of the governmental and private interests at issue. Id. at 334 (citing
Morrissey v. Brewer, 408 U.S. 471, 481 (1972)).
A procedural due process claim requires a two-step analysis: (1) “first, whether there exists
a liberty or property interest of which a person has been deprived” and, if yes, (2) “whether the
procedures followed by the State were constitutionally sufficient.” Jenner v. Nikolas, 828 F.3d 713,
716 (8th Cir. 2016) (citing Swarthout v. Cooke, 562 U.S. 216, 219 (2011).

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Plaintiffs allege Missouri, through §§ 115.277 and 115.302, has conferred on eligible voters
a protected liberty interest in voting by mail, such that the state must provide, before rejecting a
remote ballot, notice to the voter and the opportunity to cure the ballot error giving rise to the
rejection. Plaintiffs allege that because Missouri does not uniformly provide for notice to and the
opportunity to cure any errors to remote voters, Plaintiffs are denied procedural due process.
Further, Plaintiffs argues that even where certain election authorities notify remote voters of any
ballot errors, the opportunity to cure requires the remote voter to correct the errors in person, which
Plaintiffs allege is not a meaningful opportunity that fulfills constitutional requirements.
Plaintiffs’ success on their procedural due process claim first requires them to establish the
existence of a liberty or property interests and the deprivation of the same. Schmidt v. Des Moines
Pub. Sch., 655 F.3d 811, 817-18 (8th Cir. 2011) (citing Gordon v. Hansen, 168 F.3d 1109, 1114
(8th Cir. 1999)). Recognized liberty interests may arise from the Due Process Clause, or they may
also arise “from an expectation or interest created by state law or policies.” Wilkinson v. Austin,
545 U.S. 209, 221 (2005).
While the right to vote is certainly a substantive due process right, the right to vote by mail
is not a liberty interest to which procedural due process protections apply. Indeed, Plaintiffs
concede there exists no constitutional right, under Missouri or federal law, to cast a remote ballot.
(Doc. #27 at 32). To the extent Plaintiffs argue Missouri has created a protected liberty interest in
the right to cast a remote ballot in light of the COVID-19 pandemic, the Court is unpersuaded.
Straughan v. Meyers, 187 S.W. 1159, 1164 (Mo. 1916) (voting by mail as a special privilege);
Barks v. Turnbeau, 573 S.W.2d 677, 681 (Mo. Ct. App. 1978) (voting absentee is a privilege not a
right); State ex rel. Hand v. Bilyeu, 351 S.W.2d 457 (Mo. 1961).
Plaintiffs are not likely to succeed on the merits of Count III.

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2. Irreparable harm, balance of the harms, and public interest
As to the remaining Dataphase factors with respect to Count III, Plaintiffs have not
sufficiently alleged irreparable harm as to the lack of notice and cure provisions because the right
to vote by mail does not trigger procedure due process protections. The balance of the harms on
this count weighs against injunctive relief because the record shows Defendants have already been
required to rely on volunteers for notification efforts under the current scheme. Finally, the public
interest favors Defendants’ confirmation of eligibility requirements to cast a ballot and the State’s
adequate allocation of resources as to the availability of notice and cure procedures.
The Court thus concludes Plaintiffs’ motion for injunctive relief on Count III is denied.
CONCLUSION AND REMEDY
For the foregoing reasons, after weighing all relevant factors, this Court concludes
Plaintiffs are likely to succeed on the merits of Count I, and any harm or cost to Defendants to
comply with the Court’s order are outweighed by the imminent and irreparable harm to be incurred
by Plaintiffs, and thus Missouri voters, under S.B. 631’s different treatment of “absentee voters”
versus “mail-in voters” for the manner in which these two categories of remote voters may return
their ballot to the election authority to be cast.
Although the Court has found favorably for Plaintiffs on their equal protection claim under
Count I, it is not lost on this Court the timing of the lawsuit and the relatively short period of time
before the November 3, 2020 election. The Court is cognizant that the process for remote voting
commenced on September 22, 2020, and Missourians have requested and received absentee or
mail-in ballots, and further, that Defendants have implemented S.B. 631 and disseminated
educational materials statewide consistent with the new law.

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Given this reality, the Court will not require Defendants and their respective agents,
officers, employees, successors, and any and all acting together or under the direction or control
of the Secretary of State to change the methods for which Defendants accept remote ballot
applications. The last day to request a remote ballot is October 22, 2020. To require Defendants to
change their policies and educational materials at this stage is not practical and, moreover, has
potential to create more confusion among LEAs.
By contrast, however, the Court finds there is adequate time for Defendants to address the
equal protection violation borne out by the record as it relates to the return of remote ballots to the
election authority to be cast and counted. Because all remote ballots must be received by the close
of polls on election day, there is sufficient time to disseminate the simple message to Defendants,
their respective agents, officers employees, successors, and any and all acting together or under
the direction or control of the Secretary of State, and the public, that any ballot received through
the mail may be returned through the mail or in person (or through a relative within the second
degree of consanguinity or affinity) to the election authority. In this context, any harm or cost to
Defendants in implementing this change is minimal, especially when weighed against the risk of
total disenfranchisement of Missouri voters. Accordingly, it is hereby
ORDERED Plaintiffs’ Motion for Preliminary Injunction and Temporary Restraining
Order (Doc. #23) is GRANTED IN PART and DENIED PART. The motion is granted on Count I
and denied on Counts II and III. It is further
ORDERED Defendants their respective agents, officers employees, successors, and any
and all acting together or under the direction or control of the Secretary of State shall not reject or
otherwise fail to count any otherwise valid remote ballot – whether absentee or mail-in – that is
returned by mail, or in person by the voter, or through a relative of the voter who is within the

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second degree of consanguinity or affinity, at or before the close of polls on Election Day. It is
further
ORDERED Defendants shall immediately and as soon as practicable implement this Order
through distribution to all LEAs, and shall otherwise take steps to inform the voting public that
any ballot received through the mail can be returned by mail or in person or through a close relative,
i.e. the same manners in which absentee ballots are cast.
IT IS SO ORDERED.

DATED: October 9, 2020
/s/ Brian C. Wimes
JUDGE BRIAN C. WIMES
UNITED STATES DISTRICT COURT

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