Thursday, June 30, 2016

Peters v. Johns

Opinion handed down May 20, 2016 
            In Peters v. Johns, the Supreme Court of Missouri resolved the constitutionality of requiring a state representative candidate to register in Missouri for at least two years to be eligible for election.[1] The court ruled with a 4-3 margin that the refusal to register is not an act of “symbolic speech,” and that the requirement does not violate either the First or Fourteenth Amendments of the U.S. Constitution.[2]

I. Facts and Holding
            In the Missouri primary elections of 2016, Rachel Johns, a resident of St. Louis, Missouri, sought the Democratic nomination for state representative in District 76.[3] Johns filed a declaration of candidacy with the Missouri Secretary of State, which stated that she will qualify under the Missouri Constitution’s requirements to hold the office of state representative.[4] Another candidate for the same seat, Joshua Peters, challenged Johns’s candidacy on the grounds that Johns was not qualified to hold office because, pursuant to article III, section 4, of the Missouri Constitution, she was not registered to vote at least two years prior to the general election date of November 8, 2016.[5]
            Johns admitted that she had not registered in time to meet the two-year requirement; however, she challenged the requirement on the grounds that it violated her First Amendment right to freedom of speech and the Fourteenth Amendment’s guarantee of equal protection of the laws.[6] The circuit court held that the requirement did not violate the Missouri constitution, and Johns appealed.[7] The Supreme Court of Missouri upheld the decision, finding that refusing to register to vote is not “symbolic speech” subject to First Amendment protection, and that the requirement does not unjustifiably burden the right to run for office or a voter’s right to vote for a particular candidate.[8]
II. Legal Background
            Article III, section 4 of the Missouri Constitution, as adopted in 1875, states that:
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.[9]

            Both the Missouri Court of Appeals for the Western District and the Missouri Court of Appeals for the Eastern District have previously construed the phrase “qualified voter” to mean that the individual not only possess the necessary qualifications to vote, but also is actually registered to vote.[10] Both courts have held, despite the fact that the phrase “registered voter” appears elsewhere in the Missouri Constitution,[11] that the term “qualified voter” also requires an individual to actually be registered to vote.[12]
III. Instant Decision
            The Supreme Court of Missouri held that not only does the term “qualified voter” as it appears in article III, section 4 of the Missouri Constitution require actual registration for greater than two years, but also that such a requirement is not unconstitutionally void as a violation of a candidate’s freedom of speech, or a violation of equal protection.[13] The court rejected the argument that there is a distinction between “registered voter” and “qualified voter” as it is used in the Missouri Constitution and found that in order to be qualified to vote, one must be registered.[14]
            Johns made several arguments challenging the constitutionality of the requirement. First, Johns claimed that the requirement violates her rights under the First Amendment of the U.S. Constitution because it imposes a penalty for engaging in speech.[15] Johns claimed that her refusal to register to vote was symbolic speech and was an act of political expression.[16] Johns had moved to the St. Louis area in 2014 after participating in protests following the fatal shooting of Michael Brown by police officer Darren Wilson.[17][BC2]  Johns stated that she refused to register to vote until several months after the grand jury refused to indict Officer Wilson because she had lost faith in the political system.[18] Johns decided to register in February 2015 after she decided to run for state representative.[19]
            The court rejected the argument that Johns’s refusal to register to vote constituted “symbolic speech” and noted that because the failure to register to vote is not “inherently expressive,” it did not rise to the level of speech that would garner First Amendment protection.[20]
Additionally, Johns challenged the requirement on the grounds that it violated her First Amendment and Fourteenth Amendment right of access to the ballot.[21] She also contended the requirement violated other voters’ rights to the ballot, in that the voters would not be allowed to vote for her if she were not a candidate.[22] The court, applying a rational basis test, held that the burden created by the restriction is so small that any restriction on these rights is outweighed by the state’s interests of encouraging candidates to be involved and educated about the political system.[23]
IV. Comment
            The court’s decision has interesting implications for what constitutes “symbolic speech,” particularly in the context of speech that is predicated upon inaction. The court here found that Johns’s conduct, because it was not inherently expressive and was thus indistinguishable from mere apathy, did not constitute “symbolic speech.”[24]
In that aspect, the court’s decision is not in line with other recent interpretations of what constitutes “symbolic speech.”[25] Several recent decisions have found that the failure to act or refusal to act constitutes symbolic speech.[26] For example, courts have held that refusing to recite the Pledge of Allegiance or national anthem is an act of symbolic speech that is protected by the First Amendment.[27]
Such a refusal is indistinguishable from the conduct in this case. Both instances involve a refusal to engage in conduct as an act of protest, and in both instances, the act of abstaining does not inherently communicate a particular viewpoint, nor is it distinguishable from mere apathy. While clearly not all refusals to act should be considered protected speech, here, as in the above cases, the conduct in the circumstances is expressive to the point that it should be protected. As stated above, Johns had recently moved to St. Louis for the sole purpose of participating in demonstrations and other concerted action against the Ferguson Police Department and other local government entities.[28][BC3]  It is clear from the surrounding circumstances that Johns was both active in and educated about local politics, and her refusal to register to vote was not due to apathy but was instead a refusal to engage in a political system that she believed was corrupt and discriminatory. The court failed to consider these circumstances in determining whether her particular conduct was sufficiently expressive and incorrectly concluded that her conduct should not be protected as speech.
Additionally, as the dissent argues, the court’s decision improperly applies a rational basis test, rather than strict scrutiny.[29] In considering the constitutionality of restrictions on elections, the court should apply a multi-factor test to determine the significance of the burden compared to the extent to which the legitimate state interest makes it necessary to burden the plaintiff’s rights.[30]
Here, the state’s interest in requiring registration is low. The majority argues that the state has an interest in “protecting the integrity of [its] electoral system from frivolous candidates.”[31] The court also argues that the restriction is necessary to ensure that candidates have an interest in Missouri civic affairs.[32]
However, the court fails to explain how the requirement furthers these interests. A citizen does not become more educated about local affairs simply by virtue of registering to vote. Nor does the act of registering demonstrate an interest in local politics. As the dissent points out, only a third of registered voters actually exercise their right to vote.[33] The facts of this case illustrate that someone that refuses to register can often times be more educated and active in local politics than an average registered voter, as Johns moved to the city for the sole purpose of being active in political demonstrations.
Furthermore, the election itself more effectively promotes the state interests than requiring registration. If a candidate is not suited to hold office because of apathy or ignorance regarding local issues, it is unlikely he or she will be elected. The court’s decision ironically displays a level of distrust in the electoral process, as the majority seemingly does not trust registered voters to be informed or involved enough to reject candidates who are unfit for office.
            As discussed above, the court held that rational basis applies because the burden created by the restriction is de minimis.[34] While the court incorrectly reaches this conclusion solely because the requirement is limited in time, even under a rational basis test, the requirement is unconstitutional, as the registration requirement does virtually nothing to further the state’s interests.
            The court’s decision has important implications regarding the interpretation of “symbolic speech” and the constitutionality of certain restrictions placed on candidates running for political office. Because the refusal to register to vote should be considered “symbolic speech,” and because the state has virtually zero legitimate interests that are advanced by such a requirement, the court should have found the requirement void as unconstitutional.
-Brandon Wood

[1] Peters v. Johns, No. SC 95678, 2016 WL 2997589 (Mo. May 20, 2016) (en banc).
[2] Id. at *9.
[3] Id. at *1.
[4] Id.
[5] Id.
[6] Id. at *2.
[7] Id.
[8] Id.
[9] Mo. Const. art. III, § 4.
[10] See State ex. rel. Burke v. Campbell, 542 S.W.2d 355, 357-58 (Mo. Ct. App. 1976); see also State ex. rel. Mason v. Cnty. Legislature, 75 S.W.3d 884, 887-88 (Mo. Ct. App. 2002).
[11]  See Mo. Const. art. VI, § 30(a) (requiring petition proposing exercise of powers to be signed by “registered voters”).
[12] See State ex. rel. Burke, 542 S.W.2d at 357-58; see also State ex. Rel. Mason, 75 S.W.3d at 887-88.
[13] Peters, 2016 WL 2997589, at *11.
[14] Id. at *2.
[15] Id. at *4.
[16] Id. at *5.
[17] Summer Ballentine, Missouri Court Backs Voter-Registration Rule for Candidates, Associated Press (May 24, 2016),
[18] Id.
[19] Id.
[20] Peters, 2016 WL 2997589, at *5-6.
[21] Id. at *6.
[22] Id.
[23] Id.
[24] Id. at *10.
[25]See Bradley A. Smith, Unfree Speech: The Folly of Campaign Finance Reform 114 (2001).
[26] Id.
[27] See Circle Sch. v. Phillips, 270 F. Supp. 2d 616, 627-28 (E.D. Penn. 2003).
[28] Ballentine, supra note 17.
[29] Peters v. Johns, No. SC 95678, 2016 WL 2997589, at *12 (Mo. May 20, 2016) (en banc) (Stith, J., dissenting). 
[30] Id.
[31] Id. at *9 (majority opinion).
[32] Id.
[33] Id. at *15 (Stith, J., dissenting). 
[34] Id. at *11 (majority opinion).