The Coronavirus outbreak threatens our democracy. Crowd-size restrictions limit how many people can be in a polling place at once, and a lot of folks will choose to stay home rather than risk getting sick, especially as the outbreak escalates. Already, Missouri has moved one election from April to June.
Our democracy must go on. Missouri’s current laws permit emergency mail-in voting right now, and our state officials need to educate the public immediately.
Background on Missouri’s Current Laws
Missouri already has absentee voting. We do not have what’s called “no-excuse” absentee voting. That means voters must have a legally valid excuse to vote absentee by mail.
One of those excuses is “incapacity or confinement due to illness or physical disability, including a person who is primarily responsible for the physical care of a person who is incapacitated or confined due to illness or disability.” RSMo. 115.277.1(2). Illness is an excuse. But what if I’m not sick? The law doesn’t say you have to be. It just says “due to illness.” In fact, the law goes on to clearly include at least one situation where you aren’t sick; you could be taking care of someone else. The law does not exclude a disease outbreak as an excuse.
Under Missouri’s current law requiring an excuse, Missourians should be able to vote absentee. That means Missourians can vote by mail. RSMo. 115.287.1. The ballot must be delivered to Missourians and include free return. RSMo. 115.285.
Additionally, during times of an emergency declaration like we are in now, the Secretary of State can allow voting by “facsimile transmission device or system.” RSMo. 115.291.3. That term does not appear to be fully defined, giving the Secretary of State leeway in providing an alternative way for voters to vote. The Governor also has wide authority to suspend regulations and legal requirements during a state of emergency. RSMo. 44.100.
What about notaries? Are they necessary in this process, especially at a time when we’re trying not to meet in-person?
A notary is not required if the vote is done absentee due to illness. RSMo. 115.291.1. Again, the law does not state whose illness. Under the law, a disease outbreak does not require absentee ballots to be notarized.
Considerations in Expanding Absentee Voting
There are some concerns with expanding mail-in voting in Missouri. We have to ensure that everyone in the state can vote absentee. That means ensuring our mail system is accessible to all Missourians. It means allowing folks to vote absentee at election boards in-person too if they so choose or need assistance, which means setting up election board sites to prevent the spread of disease. It means our election authorities will need a plan and the support to efficiently collect and sort absentee ballots, verify signatures, and count votes.
We can learn from the experience of other states. And Missouri is no stranger to mail-in voting. We have provisions for mail-in voting on non-partisan issue elections (RSMo. 115.650–660) and for our absentee ballot system for all elections.
Missouri’s election officials and volunteers work extremely hard to preserve our democracy. We must join them in this fight.
Recommendations for our Government
We can protect our right to vote in Missouri. Here’s what our government should do:
- The Secretary of State should inform all election authorities that the Coronavirus outbreak is a valid excuse for absentee voting under current Missouri law. The Attorney General should issue an advisory opinion finding that the disease outbreak is a valid excuse. And the Governor should support this interpretation and use his emergency powers to provide further legal support for absentee voting.
- The Governor, Secretary of State, and Attorney General should confer with election officials to design a mass-absentee voting plan that protects public safety, efficiently collects and counts votes, ensures sufficient staffing and funding, and makes the ballot accessible to all eligible voters.
- State officials should conduct substantial outreach and educate the public about our right to vote and the opportunity to vote absentee.
- The Secretary of State should create an online portal allowing Missourians to easily request an absentee ballot.
- If needed, the legislature should convene to make any changes to the law as necessary. Currently, several pending bills have already proposed no-excuse absentee voting or modifications to the valid excuses. These bills include: House Bill 1312; House Bill 1393; House Bill 1530; House Bill 1665; and Senate Bill 657. The legislature should also consider altering the requirement to request a ballot to streamline the process or eliminate it during an emergency like this one to allow every registered voter to receive an absentee ballot by mail.
- The Governor should consider using his emergency powers to suspend the requirement to request an absentee ballot and allow the Secretary of State to send a ballot to every registered voter.
- In the event that election authorities do not allow Missourians to vote, the Attorney General should act immediately to protect our rights.
The strongest weapon we have against a disease outbreak is our community. We have developed so many tools to keep our community going even when the world tries to keep us physically apart. We must pull together to protect our right to vote, preserve the Republic, and keep our democracy going.
Elad Gross is a candidate for Missouri Attorney General and former Assistant Attorney General of Missouri. You can join our efforts to serve the public at EladGross.org.