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
[2] Id.
at *9.
[3] Id.
at *1.
[4] 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.
[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), http://gm1-mowebvarnish.newscyclecloud.com/article/20160523/NEWS/160529655
[18] Id.
[19] Id.
[22] Id.
[23] Id.
[24] Id.
at *10.
[26] Id.
[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.
[34] Id.
at *11 (majority opinion).
